[Federal Register Volume 66, Number 198 (Friday, October 12, 2001)]
[Proposed Rules]
[Pages 52192-52268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24204]
[[Page 52191]]
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Part II
Environmental Protection Agency
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40 CFR Parts 124, 260, 267, and 270
Hazardous Waste Management System; Standardized Permit; Corrective
Action; and Financial Responsibility for RCRA Hazardous Waste
Management Facilities; Proposed Rule
Federal Register / Vol. 66, No. 198 / Friday, October 12, 2001 /
Proposed Rules
[[Page 52192]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 124, 260, 267, and 270
[FRL-7066-6]
RIN 2050-8E44
Hazardous Waste Management System; Standardized Permit;
Corrective Action; and Financial Responsibility for RCRA Hazardous
Waste Management Facilities
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule; request for public comment.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
revisions to the RCRA hazardous waste permitting program to allow a
``standardized permit.'' The standardized permit would be available to
facilities that generate hazardous waste and then manage the waste in
units such as tanks, containers, and containment buildings. This
proposed revision to the RCRA permitting program reflects one of the
recommendations of EPA's special task force, known as the Permits
Improvement Team (PIT), which was convened to evaluate permitting
activities and to make specific recommendations to improve these
activities. The standardized permit should streamline the permit
process by allowing facilities to obtain and modify permits more easily
while maintaining the protectiveness currently existing in the
individual RCRA permit process. In addition to the requirements
proposed in this Federal Register document, we also are soliciting
comment on two issues related to RCRA treatment, storage, and disposal
facilities. We are requesting comment on how all facilities receiving
permits (standardized, individual, and permits by rule) can satisfy
RCRA corrective action requirements by conducting cleanup under the
direction of appropriate alternative state cleanup programs. We also
are requesting comment on the conclusions about captive insurance in a
March, 2001 report by EPA's Inspector General, and on a requirement
that insurers that provide financial assurance for hazardous waste and
PCB facilities have a minimum rating from commercial rating services.
DATES: Comments on this proposal must be submitted by December 11,
2001.
ADDRESSES: If you wish to comment on this proposal, you must send an
original and two copies of your comments, referencing docket number F-
2001-SPRP-FFFFF to: RCRA Docket Information Center, Office of Solid
Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA,
HQ), 1200 Pennsylvania Avenue, NW, Washington, DC 20460. Hand
deliveries of comments should be made to the Arlington, VA, address
below. You may also submit comments electronically through the Internet
to: [email protected]. Comments in electronic format must
also reference the docket number F-2001-SPRP-FFFFF. If you choose to
submit your comments electronically, you must submit them as an ASCII
file avoiding the use of special characters and any form of encryption.
You should not submit electronically any confidential business
information (CBI). 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, 1200 Pennsylvania Avenue, NW,
Washington, DC 20460.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC), located at Crystal Gateway I,
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal
holidays. To review docket materials, we recommend that you make an
appointment by calling 703-603-9230. You 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 of this
Federal Register document for information on accessing the index and
these supporting materials.
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, DC,
metropolitan area, call 703-412-9810 or TDD 703-412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Vernon Myers, Office of Solid Waste, 5303W, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW,
Washington, DC 20460, (703-308-8660), ([email protected]).
SUPPLEMENTARY INFORMATION:
The index and some supporting materials are available on the
Internet: http://www.epa.gov/epaoswer/hazwaste/permit/index.htm
The official record for this action will be kept in paper form.
Accordingly, we will transfer all comments received electronically into
paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the paper record maintained at the RCRA Information Center.
Our responses to comments, whether the comments are written or
electronic, will be in a notice in the Federal Register or in a
response to comments document we will place in the official record for
this rulemaking. EPA will not immediately reply to commenters
electronically other than to seek clarification of electronic comments
that may be garbled in transmission or during conversion to paper form,
as discussed above.
Acronyms used in today's preamble are listed below:
APA: Administrative Procedures Act
EAB: Environmental Appeals Board
EPA: Environmental Protection Agency
CAMU: Corrective Action Management Unit
CFR: Code of Federal Regulations
EO: Executive Order
FR: Federal Regulations
HSWA: Hazardous and Solid Waste Amendments
MOU: Memorandum of Understanding
NTTAA: National Technology Transfer and Advancement Act
OMB: Office of Management and Budget
PIT: Permit Improvement Team
PPE: Personal Protection Equipment
RCRA: Resource Conservation and Recovery Act
RFA: RCRA Facility Assessment
SBREFA: Small Business Regulatory Enforcement Fairness Act
SWMU: Solid Waste Management Unit
UMRA: Unfunded Mandates Reform Act
The contents of today's preamble are listed in the following
outline:
I. Overview and Background
A. Why do this Proposed Rule and Preamble Read so Differently From
other Regulations?
B. Who is Potentially Affected by this Proposed Rule?
C. What is the Agency's Proposal?
1. What is a RCRA Standardized Permit?
2. Why are we Proposing a RCRA Standardized Permit?
3. What would be the Advantages of a Standardized Permit?
4. Who would be Eligible for a Standardized Permit?
D. What are the Differences between the Existing Individual
Permitting System and the Proposed Standardized Permitting Process?
1. What are the Steps for Obtaining an Individual Permit?
2. What are the Proposed Steps for Obtaining a Standardized
Permit?
3. How does the Proposed Process for Standardized Permits
Compare to the Process for Individual Permits?
Process for Individual Permits?
E. Public Comments on this Rulemaking
[[Page 52193]]
1. How can I Influence EPA's Thinking on this Rule?
2. What Topics are not Appropriate for Public Comment?
3. What Topics are we Specifically Requesting Public Comment on?
F. What Law Authorizes this Proposed Rule?
II. Conforming Amendments to General Permit Process
A. What Changes would we Make to 40 CFR Part 124 Subpart A--General
Program Requirements?
B. How would the RCRA Expanded Public Participation Requirements
Change?
C. Where would I find the Procedures Governing RCRA Standardized
Permits?
III. Applying for a Standardized Permit
A. How would I Apply for a Standardized Permit?
1. Conduct a pre-application meeting with the community.
2. Submit a Notice of Intent to operate under the standardized
permit along with appropriate supporting documents.
B. How would I Switch from an Individual Permit to a Standardized
Permit?
IV. Issuing a Standardized Permit
A. How would the Regulatory Agency Prepare a Draft Standardized
Permit?
1. Drafting terms and conditions for the supplemental portion.
2. Denying coverage under the standardized permit.
3. Preparing your draft permit decision in 120 days.
B. How would the Regulatory Agency Prepare a Final Standardized
Permit?
C. In what Situations could Facility Owners or Operators be Required
to Apply for an Individual Permit?
V. Proposed Opportunities for Public Involvement in the Standardized
Permit Process
A. What are the Proposed Requirements for Public Notices?
B. What are the Proposed Opportunities for Public Comments and
Hearings?
C. What are the Proposed Requirements for Responding to Comments?
D. How could People Appeal a Final Standardized Permit Decision
under the Proposal?
VI. Maintaining a Standardized Permit
A. What Types of Changes could Owners or Operators Make?
B. What are the Proposed Definitions of Routine And Significant
Changes?
C. What are the Proposed Standardized Permit Procedures for Making
Routine Changes?
D. What are the Proposed Standardized Permit Procedures for Making
Significant Changes?
E. What would be the Proposed Process for Renewing Standardized
Permits?
VII. Proposed Part 267 Standards for Owners and Operators of Hazardous
Waste Facilities Operating Under A Standardized Permit
A. Overview
B. Subpart A--General
1. What are the purpose, scope and applicability of this
proposed part?
2. What is the proposed relationship to interim status
standards?
3. How would this subpart affect an imminent hazard action?
C. Subpart B--General Facility Standards
1. Would this subpart apply to me?
2. How would I comply with this subpart?
3. How would I obtain an identification number?
4. What are the proposed waste analysis requirements?
5. What are the proposed security requirements?
6. What are the proposed general inspection schedule
requirements?
7. What training would my employees be required to have?
8. What are the proposed requirements for managing ignitable,
reactive, or incompatible waste?
9. What are the proposed standards for selecting the location of
my facility?
10. Would I be required to have a construction quality assurance
program?
D. Subpart C--Preparedness and Prevention
1. What are the proposed general design and operation standards?
2. What equipment would I be required to have?
3. What are the proposed testing and maintenance requirements
for the equipment?
4. When would personnel be required to have access to
communication equipment or an alarm system?
5. How would I ensure access for personnel and equipment during
emergencies?
6. What arrangements would I be required to make with local
authorities for emergencies?
E. Subpart D--Contingency Plan and Emergency Procedures
1. What is the purpose of the proposed contingency plan and how
would I use it?
2. What would be required to be in my contingency plan?
3. Who would be required to have copies of the contingency plan?
4. When would I have to revise the contingency plan?
5. What is the proposed role of the emergency coordinator?
6. What are the proposed emergency procedures for the emergency
coordinator?
F. Subpart E--Record Keeping, Reporting, and Notifying
1. When would I need to manifest my waste?
2. What information would I need to keep?
3. What records would I provide to the permitting agency?
4. What reports would I need to prepare and who would I send
them to?
5. What notifications would be required?
G. Subpart F--Releases from Solid Waste Management Units
1. Would this proposed rule require me to address releases of
hazardous waste or constituents from solid waste management units?
2. Are the proposed corrective action requirements for
standardized permits different from the corrective action
requirements for individual permits?
3. Why are we proposing these requirements?
4. Why would the proposed corrective action requirements be
included in the supplemental portion of the standardized permit?
5. Would I be able to utilize the flexibility provided by CAMUs,
temporary units, and staging piles when I conduct corrective action
under a standardized permit?
H. Subpart G--Closure
1. What general standards would I need to meet when I stop
operating the unit?
2. What procedures would I need to follow?
3. After I stop operating, how long would I have until I close
the unit?
4. What would I have to do with contaminated equipment,
structures, and soils?
5. How would I certify closure?
I. Subpart H--Financial Requirements
1. Who would have to comply with this subpart and briefly what
would they have to do?
2. Definitions.
3. Closure cost estimates.
4. Methods for estimating costs for units eligible for
standardized permits.
5. We considered six options for developing cost estimates, but
preferred three of them for this proposal.
6. Option 4, Standard forms for estimating closure costs.
7. Option 5, Default estimates for estimating closure costs.
8. Option 6, Waiving the cost estimate for facilities using the
financial test or corporate guarantee.
9. Availability of information on EPA's proposed approaches.
10. Financial assurance for closure.
11. Post closure financial responsibility.
12. Liability requirements.
13. Other provisions of the financial requirements.
J. Subpart I--Use and management of containers
1. Would this subpart apply to me?
2. What standards would apply to the containers?
3. What are the proposed inspection requirements?
4. What proposed standards apply to the container storage area?
5. What special requirements would I need to meet for ignitable
or reactive waste?
6. What special requirements would I need to meet for
incompatible wastes?
7. What would I need to do when I want to stop using the
containers?
8. What air emission standards are proposed apply?
K. Subpart J--Tank Systems
1. Would this subpart apply to me?
2. What are the proposed required design and construction
standards for new tank systems or components?
3. What are the proposed handling and inspection requirements
for new tank systems?
4. What testing would be required?
5. What installation requirements would be required?
6. What are the proposed preventative requirements for
containing a release?
[[Page 52194]]
7. What are the proposed devices for secondary containment and
what are their design, operating and installation requirements?
8. What are the proposed requirements for ancillary equipment?
9. What are the proposed general operating requirements for tank
systems?
10. What are the proposed inspection requirements?
11. What would I do in case of a leak or a spill?
12. What would I do when I stop operating the tank system?
13. What are the proposed special requirements for ignitable or
reactive wastes?
14. What are the proposed special requirements for incompatible
wastes?
15. What air emission standards are proposed?
L. Subpart DD--Containment Buildings
1. Would this subpart apply to me?
2. What are the proposed design and operating standards for
containment buildings?
3. What additional design and operating standards would apply if
liquids will be in my containment building?
4. What are the proposed other requirements to prevent releases?
5. What would I do if I detect a release?
6. What would I do if my containment building contains areas
both with and without secondary containment?
7. Could a containment building be considered secondary
containment for other units?
8. How would I obtain a waiver from secondary containment
requirements?
9. What would I do when I stop operating the containment
building?
VIII. Conforming Permit Changes to Part 270
A. Overview of Part 270 Changes.
B. Specific Changes to Part 270.
1. Overview of the RCRA Program
2. Definitions.
3. Permit applications.
4. Permit reapplication.
5. Transfer of permits.
6. Modification or revocation and reissuance of permits.
7. Continuation of expiring permits.
8. Standardized permit.
IX. RCRA Standardized Permits
A. General Information about Standardized Permits.
B. What Information would I Need to Submit to the Permitting Agency
to Support my Standardized Permit Application?
1. RCRA Part A application information.
2. Preapplication meeting summary.
3. Compliance with location standards.
4. Compliance with other Federal laws.
5. Solid waste management units.
6. Certification of compliance with proposed part 267
requirements.
C. What are the Proposed Certification Requirements?
1. Certification of compliance.
2. Certification of availability of information.
3. What happens if my facility is not in compliance with
proposed part 267 requirements at the time I submit my Notice of
Intent?
D. What Information would be Required to be Kept at my Facility?
1. General facility information.
2. Container information.
3. Tank information.
4. Equipment information.
5. Air emission control information.
E. How would I Modify my RCRA Standardized Permit?
X. Public Comment on Corrective Action and Financial Assurance Issues
A. Corrective Action.
1. Could I satisfy the RCRA corrective action requirements for
my site by conducting cleanup under an alternate State program?
2. How would EPA and the authorized States address the alternate
authority cleanup provisions in the RCRA permit?
3. How would EPA or the authorized State determine that cleanups
conducted under an alternate cleanup program would satisfy the
requirements of section 264.101?
B. Financial Assurance.
XI. State Authorization
A. Applicability of Rules in Authorized States.
B. Effect on State Authorization.
XII. Regulatory Assessments
A. Executive Order 12866.
1. Assessment of Potential Costs and Benefits.
a. Description of entities to which this rule applies.
b. Description of potential benefits of this rule.
c. Description of potential costs of this rule.
d. Description of potential net benefits of the rule.
B. Regulatory Flexibility Act.
C. Unfunded Mandates Reform Act.
D. Paperwork Reduction Act.
E. Executive Order 13045: Children's Health
F. National Technology Transfer and Advancement Act.
G. Executive Order 12898: Environmental Justice.
H. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments.
I. Executive Order 13132: Federalism.
J. Executive Order 13211: Energy Effects.
XIII. List of References
I. Overview and Background
A. Why Do This Proposed Rule and Preamble Read so Differently From
Other Regulations?
We wrote today's proposed regulations and preamble in ``readable
regulations'' format. We tried to use the active rather than the
passive voice, plain language, a question-answer format, and other
techniques to make it easier for the readers to find and understand
information in today's rule and preamble. The pronoun ``we'' refers to
EPA and the pronoun ``you'' refers to the person who would be subject
to these proposed requirements (which could be either a facility owner/
operator or a Director of a regulatory agency). Once promulgated in a
final rule, all requirements, including those set forth in table
format, will constitute binding, enforceable requirements.
B. Who Is Potentially Affected by This Proposed Rule?
Today's action, if finalized, could potentially affect an estimated
866 RCRA-permitted private sector facilities which store and/or non-
thermally treat RCRA hazardous wastes on-site, using tanks, containers
and/or containment buildings. Table 1 below displays the SIC/NAICS code
economic sectors associated with these facilities.
Table 1.--Economic Sectors Which Own and Operate Facilities Potentially Affected by this Proposal
[Facilities with eligible RCRA hazardous waste management units](a)
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Count of Potentially Affected Facilities
Economic Sector -----------------------------------------------
SIC (b) Description NAICS (b) equivalent Tank Containment
Containers systems Bldgs. Total
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0................ Agriculture, Forestry 11................... 21 12 0 .......
& Fisheries.
1................ Mining, Oil/Gas & 21, 23............... 26 16 0 .......
Construction.
2................ Manufacturing(c)...... 31-33, 511........... 427 313 5 .......
3................ Manufacturing 31-33................ 285 136 17 .......
(continued)(d).
4................ Transport, 22, 48, 49, 513, 562. 272 201 10 .......
Communication,
Utilities.
5................ Wholesale & Retail 42, 44, 45........... 175 132 3 .......
Trade.
6................ Finance, Insurance & 52, 53............... 5 2 0 .......
Real Estate.
7................ Services(e)........... 71, 72, 512, 514, 221 183 2 .......
811, 812.
[[Page 52195]]
8................ Services 54, 55, 561, 61, 62, 90 38 0 .......
(continued)(f). 813, 814.
9................ Public Admin, 92................... 200 85 4 .......
Environment & NEC.
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Non-duplicative column totals(g) =
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800 623 22 866
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Explanatory Notes:
(a) Source: EPA Office of Solid Waste customized query of RCRIS and BRS databases (data as of March 2000).
(b) SIC = ``Standard Industrial Classification'' system.
NAICS = ``North American Industry Classification System'', adopted by the US Federal Government in 1997,
replacing the SIC code system (for SIC/NAICS conversion tables see http://www.census.gov/epcd/www/naics.html).
(c) SIC 2 Manufacturing = Food, Textile/Apparel, Lumber/Wood, Furniture/Fixtures, Paper, Printing/Publishing,
Chemicals/Allied Products, & Petroleum/Coal.
(d) SIC 3 Manufacturing = Rubber/Plastic, Leather, Stone/Clay/Glass, Primary Metals, Fabricated Metals,
Industrial Machinery, Electronics, Transportation Equipment, Instruments, & Misc. Mfrg.
(e) SIC 7 Services = Hotels, Personal, Automotive, Repair, Motion Pictures, & Recreation.
(f) SIC 8 Services = Health, Legal, Social, Museums/Gardens, Membership Orgs & Engineering/Mngmnt.
(g) Some facilities report multiple SIC codes for their operations to the EPA; consequently both the facility
and unit total counts in this table exceed the non-duplicative total numbers of facilities shown in the bottom
row above.
C. What Is the Agency's Proposal?
We are proposing revisions to the RCRA hazardous waste permitting
program to allow a type of general permit, called a ``standardized
permit.'' The standardized permit would be available to facilities that
generate hazardous waste and then manage the waste in units such as
tanks, containers, and containment buildings. In addition to the
requirements proposed today, we also are soliciting comment on two
issues related to RCRA treatment, storage, and disposal facilities. We
are requesting comment on how all facilities receiving permits
(standardized, individual, and permits by rule) can satisfy RCRA
corrective action requirements by conducting cleanup under the
direction of appropriate alternative state cleanup programs. We also
are requesting comment on a requirement that insurers that provide
financial assurance for hazardous waste and PCB facilities have a
minimum rating from commercial rating services.
1. What Is a RCRA Standardized Permit?
We are proposing to define a ``standardized permit'' as a general
permit for facilities that generate waste and routinely manage the
waste on-site in tanks, containers, and containment buildings. The RCRA
standardized permit would be a document that EPA or the authorized
state issues. It would consists of two components: A uniform portion
that is included in all cases, and a supplemental portion that would be
included at EPA's or the Director's discretion. The terms and
requirements that we are proposing as part of today's rulemaking would
constitute the uniform portion of the standardized permit (see Section
VII: Proposed Part 267 Standards for Owners and Operators of Hazardous
Waste Facilities Operating Under a Standardized Permit). All facilities
that are authorized to operate under the standardized permit would need
to comply with these applicable terms and conditions.
In developing a permit process for the RCRA standardized permit, we
need to satisfy both the statutory requirements in RCRA and Agency
policy to provide for local public participation and to ensure that
permits include all terms and conditions necessary to protect human
health and the environment. Under the proposed permitting scheme for
standardized permits, the uniform terms of the standardized permit
would be the same nationwide, but there would be an opportunity to add
conditions tailored to each particular site. This would ensure that we
meet the statutory standard of protectiveness (see Section IV A 1: How
would the Regulatory Agency Prepare a Draft Standardized Permit?). In
order to satisfy the statutory standard and agency policy for local
public participation, RCRA pre-application meeting requirements are
included in the proposed standardized permit process as well as other
opportunities for public involvement that are traditionally part of the
permit issuance process (see Section V: Proposed Opportunities for
Public Involvement in the Standardized Permit Process).
We are proposing that the documents and certification the permittee
submits with the notice of intent to be covered by the standardized
permit would become attachments to the RCRA standardized permit (see
Section IX B: What Information would I need to Submit to the Permitting
Agency to Support my Standardized Permit Application). These documents
and certification include the general RCRA Part A information, the pre-
application meeting summary, the location standard information, the
permittee's self audit, and the owner's certification of compliance and
information availability. This is similar to the way individual RCRA
permits are issued with sections of the permit application placed in
appendices.
2. Why Are We Proposing a RCRA Standardized Permit?
In 1984, the Agency proposed a standard permit application form and
requirements (49 FR 29524, July 20, 1984) for facilities that generated
hazardous waste on-site and then stored it in above-ground tanks or
containers. The 1984 proposal considered similar issues that are
discussed in today's proposal. However, the 1984 proposal was never
finalized at that time because of the new requirements imposed by the
Hazardous and Solid Waste Amendments of 1984.
The Agency convened a special task force in 1994 to look at
permitting activities throughout its different programs and to make
specific recommendations to improve these permitting programs. This
task force,
[[Page 52196]]
known as the Permits Improvement Team (PIT), spent two years working
with stakeholders from the Agency, State permitting agencies, industry,
and the environmental community. The PIT stakeholders suggested, among
other things, that permitting activities should be commensurate with
the complexity of the activity. The stakeholders felt that current
Agency permitting programs were not flexible enough to allow
streamlined procedures for routine permitting activities.
Under the RCRA program, facilities that store, treat, or dispose of
hazardous waste currently must obtain site-specific ``individual''
permits prescribing conditions for each ``unit'' (e.g., tank, container
area, etc.) in which hazardous waste is managed. Experience gained by
the Agency and states over the past 15 years has shown that the
complexity of waste management varies by type of activity. Some
activities, such as thermal treatment or land disposal of hazardous
waste, are more complex than storage of hazardous waste. We believe
that thermal treatment and land disposal activities continue to warrant
``individual'' permits, prescribing unit-specific conditions.
Similarly, we also believe that the storage of hazardous waste military
munitions should continue under the individual permitting program. The
site-specific nature of the management of hazardous waste military
munitions generally are not routine activities the lend themselves to
standardized conditions. However, we also believe that some
accommodation can be made for hazardous waste management practices in
standardized units such as tanks, container storage areas, and
containment buildings. The PIT recommended, among other things, that
regulations be developed to allow ``standardized permits'' for on-site
storage and non-thermal treatment of hazardous waste in tanks,
containers, and containment buildings.
Today, we are proposing to revise the RCRA regulations to allow
this type of standardized permit for several reasons. First, this new
permitting system is intended to streamline the administrative
permitting process and shorten the time required to obtain a RCRA
permit, without lessening the environmental protection provided by the
permit. The new permit system would also reduce the amount of time and
administrative resources required to maintain a RCRA permit throughout
the operating life of the facility by providing streamlined permit
modification and renewal processes for the standardized permit.
Second, such a standardized permit process takes into account the
relative risks posed by the on-site storage and non-thermal treatment
of hazardous waste in tanks, containers, and containment buildings.
These units are relatively simple to design and properly construct. The
engineering and construction knowledge and skills necessary to design
and construct these units are relatively basic. These units are in
common usage in many applications and are frequently bought ``off-the-
shelf'' or built from ``off-the-shelf'' designs. Industry associations
and standards organizations have developed standards for these units
that are in widespread use. Past experience with these units indicates
that they are simpler to design, construct, and manage than units such
as combustion units or land disposal units. Storage and non-thermal
treatment of waste in these types of units is generally less
complicated than thermal treatment of waste (e.g. combustion of
hazardous waste in incinerators, boilers, or industrial furnaces) or
disposal of waste (e.g. landfilling). It is easier to control risks at
these simpler storage and treatment units. We believe that the
streamlined standardized permit, as proposed, would allow adequate
interaction and oversight by the regulating agency and would provide
sufficient technical controls to protect human health and the
environment.
Third, although the proposed standardized permit would streamline
some of the administrative permitting process, we are not proposing to
streamline the public participation requirements and technical
standards. The proposed standards and requirements are for the most
part the same requirements that apply under the current hazardous waste
permitting system. We are only proposing minimal changes to the general
facility standards and several minor changes to the technical
requirements for tanks, containers, and containment buildings. Because
the technical standards remain substantially unchanged, the level of
environmental protection that the standardized permit offers would
remain high.
3. What Would Be the Advantages of a Standardized Permit?
The proposed standardized permit application procedures are less
cumbersome than the procedures for an individual permit. You would not
have to submit the amount of information needed to support an
individual permit application; although you would need to keep the
required information at your facility. Maintaining your standardized
permit should be easier because the permit modification procedures
would be less cumbersome for a standardized permit than for an
individual permit.
Although the standardized permit process would be more streamlined
than the process for individual permits, we are proposing that you must
continue to comply with waste management practices, day-to-day
housekeeping, and judicious maintenance programs found in the
``individual'' RCRA permit program. As mentioned, one of the benefits
of the proposed standardized permit would be the reduced paperwork
burden and effort associated with the permit application submittal and
review process. Since, under the proposal, the permitting agency would
no longer be involved with detailed review of permit application
material associated with waste management unit design and operation, it
would be incumbent on you to properly design, operate, and maintain the
waste management units and facility operations subject to the
standardized permit.
You should not construe the more efficient standardized permitting
process as a reduced compliance burden. Under today's proposal,
compliance with proper waste management practices would be ensured by
your operation, maintenance and inspection programs and routine
inspection by the permitting agency. Similar to the individual
permitting system, failure to maintain waste management practices that
protect human health and the environment could result in revocation of
the standardized permit by the permitting agency, as well as in civil
and/or criminal penalties.
In addition the burden reductions for facilities, permitting
agencies should be able to more efficiently administer the proposed
standardized permit program. Since the application for a standardized
permit is intended to be less burdensome than the current RCRA permit
requirements, the administrative record should be easier to maintain.
Also, the proposed permit modification procedures for a standardized
permit should reduce the administrative burden on the permitting
agency. EPA welcomes comments on the anticipated advantages--as well as
any disadvantages--of a standardized permit.
4. Who Would Be Eligible for a Standardized Permit?
We are proposing to allow generators to apply for standardized
permits for hazardous wastes that they non-thermally treat or store on-
site in tanks, containers, or containment buildings.
[[Page 52197]]
Once a standardized permit rule is promulgated, we would inform you of
your eligibility when we make a decision on your permit application.
Although you may be eligible for a standardized permit, you would not
have to apply for one if you choose not to. Instead you would have the
option of applying for an individual RCRA hazardous waste permit. In
Section I E 3: What Topics are we Specifically Requesting Public
Comment on?, we are taking comment on whether treatment/storage of off-
site waste should be eligible for a standardized permit.
D. What Are the Differences Between the Existing Individual Permitting
System and the Proposed Standardized Permitting Process?
1. What Are the Steps for Obtaining an Individual Permit?
Permits for the management of hazardous waste are issued according
to the procedures established in 40 CFR parts 124 and 270. The permit
process generally follows the steps laid out briefly below:
You, as the owner or operator of a hazardous waste
management facility, develop an individual site-specific permit
application.
Early in the permitting process (i.e., before submitting
an application for a permit), you hold an informal public meeting to
discuss proposed hazardous waste management activities with community
members.
You then send the permit application to the permitting
agency and the permitting agency announces the submission of a permit
application by sending a notice to community members.
The permitting agency then reviews the application for
completeness.
Following this review, the permitting agency either begins
to develop a draft permit applying the section 3004 standards that are
codified in 40 CFR part 264 or determines that it intends to deny the
permit.
The permitting agency then gives public notice of the
draft permit or intent to deny, allows a 45-day comment period, and
holds a public hearing, if requested, before it issues or denies the
permit.
The permit for your facility typically becomes effective
30 days after the issuing agency serves notice of the final permit
decision. Within 30 days after the final permit decision, an appeal of
the decision to the Environmental Appeals Board (EAB) may be initiated.
Decisions of the EAB are subject to judicial review.
2. What Are the Proposed Steps for Obtaining a Standardized Permit?
We propose that the RCRA standardized permit process follow the
steps laid out briefly below. We discuss each of these steps in more
detail in later sections of this preamble.
First, you, as a facility owner or operator, would
advertise and conduct a meeting with your neighboring community to
discuss potential operations. (see Section III A 1: Conduct a pre-
application meeting with the community.)
Then you would submit to the regulatory agency a Notice of
Intent to operate under the standardized permit. We are proposing that
you must include with the notice a summary of the meeting with the
community, certain certifications required under proposed Sec. 270.280,
and the Part A information required under Sec. 270.13. (see Section III
A 2: Submit a Notice of Intent to operate under the standardized permit
with appropriate supporting documents.)
Within 120 days of receiving the notice of intent and
accompanying information, the Director of the regulatory agency would
need to make a preliminary decision to either grant or deny you
coverage under the standardized permit. (see Section IV A: How would
the Regulatory Agency Prepare a Draft Standardized Permit?)
If the Director anticipates granting coverage, he or she
would prepare a draft standardized permit. We are proposing that the
draft standardized permit would consist of a uniform portion that
applies to all facilities, and any additional terms or conditions that
the Director tentatively decides to apply to your specific facility.
These site-specific terms or conditions would constitute a supplemental
portion of your standardized permit. (see Section IV A: How would the
Regulatory Agency Prepare a Draft Standardized Permit?)
The Director would provide public notice of the draft
permit. Under the proposal, the public notice would initiates a 45-day
public comment period; any requests for a public hearing would need to
be made during the public comment period. We are proposing that the
public could comment on your facility's eligibility as well as on the
supplemental conditions that the Director tentatively identified. The
public could also offer comments on the need for additional
supplemental conditions. (see Section V: Proposed Opportunities for
Public Involvement in the Standardized Permit Process.)
Following the public comment period (and public hearing,
if any), the Director would make a final permit decision. These
requirements would include responding to public comments. (see Section
IV B: How would the Regulatory Agency Prepare a Final Standardized
Permit? and Section V: Proposed Opportunities for Public Involvement in
the Standardized Permit Process.)
The standardized permit for your facility typically would
become effective 30 days after the final permit decision. Also, we are
proposing that within 30 days after the Director makes a final decision
on an EPA permit, an appeal of the decision to the Environmental
Appeals Board (EAB) could be initiated. [Note: Although the final EPA
permit decision is subject to appeal to the EAB, we are proposing that
the terms and conditions of the uniform portion of the standardized
permit would not be subject to EAB review.] Decisions of the EAB are
subject to judicial review. (see Section V D: How could People Appeal a
Final Standardized Permit Decision Under the Proposal?)
3. How Does the Proposed Process for Standardized Permits Compare to
the Process for Individual Permits?
We (or states authorized by us) currently issue site-specific RCRA
permits to operate hazardous waste management facilities on an
individual basis. Each facility applies for a permit, and we (or the
authorized state) write the site-specific permit. The requirements
governing how we process a RCRA individual permit application are laid
out in 40 CFR parts 124 and 270. In general, the individual process
requires you to prepare a much more detailed permit application and the
regulatory agency to conduct a more extensive review. The ``back and
forth'' between permit applicants and regulators that normally takes
place as both parties come to agreement on the completeness and
accuracy of the application can impose a significant workload and
delay. Under our proposed standardized permit procedures, we streamline
this activity. Table 2 offers a step-by-step comparison of the
individual permitting process as administered by EPA and the proposed
standardized permitting process.
[[Page 52198]]
Table 2.--Permitting Process Comparison
------------------------------------------------------------------------
Proposed
Steps in the EPA permitting process Individual standardized
permit permit
------------------------------------------------------------------------
Advertise and conduct pre-application
meeting (facility)...................
Submit permit application/Notice of
Intent (facility)....................
Provide public notice at application
submittal (agency)...................
Review application for completeness
(agency).............................
Issue Notices of Deficiency (NODs) as
necessary (agency)...................
Respond to NODs (facility)............
Determine application is complete
(agency).............................
Make draft permit decision (agency)...
---------------------------------
(no deadline) (within 120 days)
---------------------------------
Prepare draft permit and statement of
basis or fact sheet (agency).........
Establish administrative record
(agency).............................
Provide public notice of draft permit
decision (agency)....................
45 day public comment period;
opportunity for public hearing.......
Make final permit determination;
respond to comments (agency).........
Final permit becomes effective;
deadline for appeals to EAB..........
------------------------------------------------------------------------
Note.--The blanks represent permitting process steps that are not
explicit regulatory requirements under the proposed standardized
permits. However, we are proposing that during the 120-day review and
processing period of the application by the permitting Agency, the
Director would determine the adequacy of the permit application
including completeness.
We are also proposing new procedures for modifying standardized
permits. In brief, these new procedures would allow you to make certain
types of routine changes without prior approval, provided you inform
both the regulatory agency and the public of the changes. For more
significant changes, you would have to request approval from the
regulatory agency before making the changes. The proposed modification
process is discussed in detail in Section VI: Maintaining a
Standardized Permit.
E. Public Comments on This Rulemaking
1. 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, information on how this
rule may effect you, or other relevant information. We welcome your
views on all aspects of this proposed rule, but we request comments in
particular on the items in Section I D 3 below. Your comments will be
most effective if you follow the suggestions below:
Explain your views as clearly as possible and why you feel
that way.
Provide solid technical and cost data to support your
views.
If you estimate potential costs, explain how you arrived
at the estimate.
Tell us which parts you support, as well as those you
disagree with.
Provide specific examples to illustrate your concerns.
Offer specific alternatives.
Refer your comments to specific sections of the proposal,
such as the units or page numbers of the preamble, or the regulatory
sections.
Make sure to submit your comments by the deadline in this
notice.
Be sure to include the name, date, and docket number with
your comments.
2. What Topics Are Not Appropriate for Public Comment?
The proposed provisions for standardized permits are modeled on the
existing permit requirements for storing hazardous waste. While
tailored specifically for standardized permits, many of the rules are
restatements of the existing regulations in plain language format to
make them easier to understand. We welcome comment on whether these
rules are appropriate for standardized permits and whether, in
restating and reorganizing the existing regulatory requirements, we
inadvertently changed their meaning. Nevertheless, we are not reopening
the existing regulations to public comment, except those provisions
explicitly modified by this proposal.
3. What Topics Are we Specifically Requesting Public Comment on?
In addition to general comments about the scope of the standardized
permit and its impacts, EPA seeks public comment on the specific
regulatory provisions addressed below. We are also requesting comment
on corrective action and financial assurance in Section X: Public
Comment on Corrective Action and Financial Assurance Issues.
We are interested in the public's views on the following items:
a. Should a facility which manages some of its hazardous waste in
on-site storage and treatment units and some of its hazardous waste in
other types of waste management units be eligible for a standardized
permit for the on-site storage and treatment activities? There are
currently facilities in the RCRA hazardous waste universe that have
multiple waste management units. It is not uncommon for a hazardous
waste facility to have storage and treatment units, and other units
such as thermal treatment units or disposal units.
Under the existing RCRA individual permitting system (see
Secs. 270.1(c)(4) and 270.29), we can issue or deny a permit for one or
more units at a facility without simultaneously issuing or denying a
permit for all units at the facility. In other words, a facility's RCRA
permit under the existing permitting system does not necessarily cover
every unit at the facility. We drafted the proposed standardized permit
regulations so that a facility could obtain both an individual permit
for any disposal or thermal treatment activities and a standardized
permit for any on-site storage and treatment activities. Although it
may be resource-intensive for a facility with multiple types of units
to choose to go through the RCRA permitting process several times,
facilities may see an advantage in obtaining a standardized permit for
a portion of their operations. This is
[[Page 52199]]
because continued maintenance of a standardized permit should be less
burdensome than following the current individual permit modification
procedures because of the simplified procedures. We encourage your
comments and supporting data on this topic. As currently proposed,
standardized permits would not relieve facilities of any substantive
compliance requirements; rather, such permits would only streamline the
permitting process.
b. Should we expand the applicability of the RCRA standardized
permit to include facilities that treat or store waste generated off-
site? Such situations could include facilities that take off-site waste
from any source as well as a more limited operation where companies
with more than one manufacturing location would like to centralize
their management of any generated waste at one location. One of the
concerns that we have heard about the management of waste generated
off-site is that some facilities' owners or operators may not always
have complete knowledge of the compatibility of the different waste
streams that are brought onto their facilities. Therefore, management
of such wastes may be more complicated and require greater attention.
In some cases, uncertainty regarding the full chemical make-up of
incoming wastes might pose additional risks not readily apparent to the
receiving facility. This potential situation may be less likely to
occur at a company managing only its own waste generated at several
locations, since the company should know what specific wastes are
generated by the company and be able to manage them properly at a
centralized location. We are interested in your views and supporting
data on this topic. As mentioned above, the proposed standardized
permits would not relieve facilities of any substantive compliance
requirements, including those that are intended to ensure protection of
human health and the environment.
c. We are also interested in feedback on a proposal to allow RCRA
standardized permits at RCRA permitted off-site hazardous waste
recycling facilities. A major goal of EPA is to eliminate regulatory
disincentives to safe hazardous waste recycling. Providing regulatory
relief for these types of facilities might encourage additional firms
to enter the hazardous waste recycling business.
Under current RCRA rules, recycling units are not regulated. As a
result, existing requirements focus on the safe storage of hazardous
recyclable materials in tanks, containers and containment buildings
prior to entering the recycling process. Environmental health and
safety for the storage of these materials is addressed comprehensively
under part 264, subparts I, J and DD, respectively, as well as part
270. Facilities must, at a minimum, manage these materials in units of
good condition, respond to releases in a timely manner, inspect units
at least weekly, and address concerns of ignitable, reactive and
incompatible wastes.
RCRA permitted hazardous waste recycling facilities frequently must
make changes to their business operations that require a permit
modification from the EPA or State authorizing agency. Such changes
usually do not pose a risk to human health and the environment.
However, such changes can take months to approve because of the backlog
in permitting work. Therefore, in order to facilitate hazardous waste
recycling activities, the Agency is interested in obtaining the views
from the public on a proposal that would allow RCRA permitted hazardous
waste recycling facilities to follow the modification process that is
described in Section VI: Maintaining a standardized Permit.
d. We are also asking for comment on additional opportunities
within the framework of the standardized permit, to reduce the burden
and cost of the permitting process for facilities, while still
maintaining the protectiveness afforded by the RCRA standardized permit
process. Specifically, we are interested in whether we should look into
the feasibility of developing a ``fill-in-the-blank'' type standard
format for each type of covered unit that facilities could then use to
prepare required ``Part B'' information that would be required to be
retained at the facility. This fill-in-the-blank type standard format
could be offered to facilities as guidance to further reduce the
permitting burden.
e. Throughout the preamble we request comment on various topics.
Some of the sections that we are seeking comments on are:
1. Section I C 3: What are the anticipated advantages and
disadvantages of a standardized permit?
2. Section IV A 3: Is 120 days an appropriate time frame for making
a draft permit decision? Should we allow a one time extension to the
120 day requirement?
3. Section IV B: Is it appropriate to apply the current provisions
for final issuance of an individual permit to a process for issuing
standardized permits?
4. Section VI B: Are the categories for determining the
significance of the permit change appropriate?
5. Section VII C 5: Is an exemption from security provisions
appropriate for facilities operating under standardized permit?
6. Section VII C 9: Should we retain the floodplain waste removal
waiver in the standardized permit?
7. Section VII G 4: What standard conditions might be used for
corrective action requirements under a standardized permit?
8. Section VII H: What policy and procedure should be followed in
the event that a facility cannot submit a closure plan 180 days prior
to last receiving the last volume of waste? Should we drop the closure
plan requirement?
9. Section VII H 1: What other options should be available to
facilities that cannot clean close?
10. Section VII H 3: Is an 180 day closure time period appropriate
and under what circumstances should it be extended?
11. Section VII I 4: What information is available that compares
the closure cost estimate with the actual cost incurred performing
closure?
12. Section VII I 6: What information is most crucial for
estimating cost of closure of an eligible unit?
13. Section VII I 13: Do States currently assume responsibility for
facility compliance and would they obtain standardized permits?
14. Section VII K: Should underground and in-ground tank systems be
excluded from standardized permits?
15. Section IX C 1: Are there significant benefits of a compliance
audit and under what conditions would such audits need to be performed
by an independent third party?
16. Section IX C 2: Should a waste analysis plan be submitted?
Under what circumstances?
17. Section X A 1: For all types of permits, should facilities be
able to satisfy RCRA correction action requirements by conducting
cleanup under an alternative State program? Under what circumstances?
18. Section X A 2: What methods should EPA and the authorized
States use to address the alternate authority cleanup provisions in
RCRA permits?
19. Section X A 3: How would EPA or the authorized State determine
that cleanups conducted under an alternate cleanup program would
satisfy corrective action requirements?
20. Section X B: Should pure captive insurance be treated
differently than third party liability?
21. Section XII A 1 b: What are the potential benefits of permit
streamlining?
[[Page 52200]]
F. What Law Authorizes This Proposed Rule?
We are proposing these regulations under the authority of sections
1003, 2002(a), 3004, 3005, 3006 and 3010 of the Solid Waste Disposal
Action 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. 6902, 6912(a), 6924-6926, and
6930.
II. Conforming Amendments to General Permit Process
A. What Changes Would we Make to 40 CFR Part 124 Subpart A--General
Program Requirements?
The General Program Requirements (subpart A) in part 124 apply to
many of our permitting programs, not just to RCRA Permits.
Consequently, we could not rewrite all of this subpart according to
plain language guidelines. We are proposing, however, to amend certain
sections to accommodate RCRA standardized permit procedures. We refer
to these types of amendments as conforming changes. The proposed
standardized permit procedures themselves would be in a separate
subpart, which we discuss later.
The conforming changes we propose to the General Program
Requirements would ensure that we have fully incorporated the
standardized permit into the existing regulations. For example, we are
proposing changes to Sec. 124.1 Purpose and Scope and Sec. 124.2
Definitions to include references to the RCRA standardized permit.
We are also proposing to amend Sec. 124.5(c) to have the
standardized permit procedures apply in circumstances where an
individual permit is being ``revoked and reissued.'' This change would
allow you to convert from an individual permit (if you already have
one) to a standardized permit. We are also proposing amendments to 40
CFR 270.41(b) to add conversion to a standardized permit as a cause for
revocation and reissuance.
B. How Would the RCRA Expanded Public Participation Requirements
Change?
The current RCRA expanded public participation requirements are in
40 CFR part 124 subpart B--Specific Procedures Applicable to RCRA
Permits (these are the procedures specific to the RCRA program that
apply in addition to the public participation elements of the General
Program Requirements in subpart A). We propose conforming changes in
both Secs. 124.31 and 124.32 governing pre-application meeting and
notice requirements and public notice requirements at the application
stage, respectively.\1\ The proposed amendments clarify the
applicability of the requirements in those sections to the standardized
permit (in brief, the pre-application requirements apply under the
proposal, but the public notice at application does not since we are
proposing to incorporate other notice requirements into proposed
Sec. 124.207).
---------------------------------------------------------------------------
\1\ Although we are proposing the conforming changes necessary
to accommodate the standardized permit procedures, we are not
rewriting all of the expanded public participation requirements into
plain language during this rule development effort.
---------------------------------------------------------------------------
We are not proposing any changes to Sec. 124.33 Information
repository (or to existing Sec. 270.30(m) Information repository).
Under the proposal, the Director of a regulatory agency could require
you to establish and maintain an information repository whether you are
applying for an individual permit or a standardized permit. Since we
are proposing that anyone seeking standardized permits must certify
that the information being maintained onsite is readily available to
both the regulatory agency and the public (see proposed Sec. 270.280),
we anticipate the Director generally would not need to invoke the
information repository requirement. We acknowledge, however, that there
may be situations where a community has a special need for access to
information, and so are not precluding the use of the information
repository requirement in this proposed rule.
Since the waste management activities at facilities eligible for
the proposed standardized permit are relatively less controversial than
other types of management activities, we anticipate that people in
nearby communities would generally not object to going to a facility to
review information. However, if it is impractical to go to the
facility, people could ask the Director to require a separate
information repository. The way the requirement is currently worded
(see Sec. existing 124.33(d)), you would get a ``first choice'' at
selecting a location, although the Director would have the authority to
select an alternate location. According to Sec. 124.33(d), if the
Director found the site unsuitable for the purposes and persons who
need the repository, then the Director could specify a more appropriate
site, such as the local library.
C. Where Would I Find the Procedures Governing RCRA Standardized
Permits?
We are proposing a new subpart G to 40 CFR part 124 that would
contain the procedural requirements for the RCRA standardized permit.
Although existing subpart B is reserved for specific procedures
applicable to RCRA permits, there are an insufficient number of
available sections in that subpart to accommodate all of the
standardized permit requirements. We are proposing to leave the RCRA
expanded public involvement requirements in subpart B, and establish
the RCRA standardized permit procedures in subpart G, starting with
Sec. 124.200. Proposed Subpart G is organized into several subdivisions
shown in Table 3.
Table 3.--Subpart G Organization
------------------------------------------------------------------------
Centered headings Section numbers
------------------------------------------------------------------------
General Information about Secs. 124.200-124.201
Standardized Permits.
Applying for a Standardized Permit.. Secs. 124.202-124.203
Issuing a Standardized Permit....... Secs. 124.204-124.206
Opportunities for Public Involvement Secs. 124.207-124.210
in the Standardized Permit Process.
Maintaining a Standardized Permit... Secs. 124.211-124.213
------------------------------------------------------------------------
[[Page 52201]]
III. Applying for a Standardized Permit
A. How Would I Apply for a Standardized Permit?
We are proposing that you must follow the applicable requirements
in 40 CFR part 124 subparts A, B, and G, as well as the requirements in
40 CFR part 270 subpart I. The first activity you would need to do is
conduct a pre-application meeting with your neighboring community (see
Sec. 124.31). After you hold the meeting, we are proposing that you
would submit a notice of intent to operate under the standardized
permit, along with a summary of the meeting and the certifications and
supporting documents we require under Sec. 270.275, to the Director of
the appropriate regulatory agency. In the remainder of this section we
provide additional information on the proposal for a pre-application
meeting and the Notice of Intent.
1. Conduct a Pre-Application Meeting With the Community
We continue to be firmly committed to public involvement in the
permitting process. As mentioned in Section II B: How would the RCRA
Public Participation Requirements Change?, we are proposing to apply
the pre-application meeting requirement to owners or operators of
facilities seeking coverage under a RCRA standardized permit. If we
apply the requirements of Sec. 124.31 to the standardized permit
process, you as the facility owner or operator would be obligated to
advertise and host a meeting with your neighboring community before
submitting your Part B application. This meeting is intended as an
important first step in establishing good relations between you and the
community.
As we said in the preamble for the RCRA Expanded Public
Participation Final Rule (see 60 FR 63422-63423, December 11, 1995), we
do not expect such a meeting to be a forum for examining technical
aspects of your facility operations in extensive detail. Instead, the
meeting should provide an open, flexible, and informal occasion for you
and the public to share ideas, educate each other, and start building
the framework for a solid working relationship. Although we did not
prescribe required discussion topics for a pre-application meeting in
the 1995 final rule, we encourage you to address, at the level of
detail that is practical at the time of the meeting, such topics as:
The type of facility, the location, the general processes involved, the
types of wastes generated and managed, and implementation of waste
minimization and pollution control measures. The discussions could also
include such topics as planned procedures and equipment for preventing
or responding to accidents or releases. Of course, the public retains
the opportunity to submit comments during the proposed formal public
comment period as well.
We would like to reaffirm our commitment to the policies we
expressed in the RCRA Public Participation Manual (EPA530-R-96-007,
September 1996, available from the RCRA Hotline or at http://www.epa.gov/epaoswer/hazwaste/permit/pubpart/manual.htm) for promoting
successful and equitable public involvement in RCRA permitting
activities. We encourage facilities, communities, and permitting
agencies to refer to that Manual when planning public involvement
activities. The Manual emphasizes the need to tailor activities to the
needs of the situation at hand. For example, if the community around a
facility includes people who do not speak English as their primary
language, we encourage both facilities and permitting agencies to
provide multilingual notices.
2. Submit a Notice of Intent To Operate Under the Standardized Permit
Along With Appropriate Supporting Documents
If you want to operate under a standardized permit, we are
proposing that you must let the regulatory agency know of your intent
to do so. We are proposing in Sec. 124.202 to require owners or
operators of facilities seeking coverage under a RCRA standardized
permit to submit a ``notice of intent to operate under the standardized
permit.'' This is consistent with the process and terminology currently
used for NPDES general permits.
We are also proposing you send in with your notice of intent
several supporting documents: The certifications required under
proposed Secs. 270.275 (which include the Part A information, and pre-
application meeting summary with ancillary materials) and 270.280
(which include the required certifications and audit report). Section
270.280 would require you to certify that your facility meets the
performance standards and waste management unit design requirements of
proposed Part 267. Section 124.31 would require you to submit a summary
of the pre-application meeting where you discussed with the community
your planned waste management activities. The RCRA Part A permit
information includes the types and volumes of hazardous waste that you
will manage and the types of units that you will use. As discussed
later, we anticipate that these materials should provide sufficient
information for the Director to make a draft permit decision.
We are proposing that you submit with your Notice of Intent a
compliance certification as described in Sec. 270.280. These proposed
regulations governing the compliance certification would require you
either to (1) certify compliance with part 267 or, (2) if you determine
that your facility is not in compliance, provide a description of what
aspects of your operations are not in compliance with the part 267
regulations (specifying which regulations) and provide a schedule
indicating when your facility will achieve compliance with RCRA
regulations. As required by current regulations, the schedule would be
subject to approval by the permitting authority and the permitting
authority would not make a final permit determination until after you
have achieved compliance.
Under the proposal, you would have to conduct an internal audit to
complete the compliance certification. We propose that this audit would
be a systematic, documented, and objective review of your operations
and practices related to meeting environmental requirements to assess
the compliance status prior to submitting the Notice of Intent. You
would need to include the audit results with the compliance
certification when you submit the certification to the regulatory
agency as a supporting document to your Notice of Intent.
B. How Would I Switch From an Individual Permit to a Standardized
Permit?
We are proposing that you could request the Director of the
regulatory agency to revoke your individual permit and reissue you a
standardized permit. We anticipate that some of you who currently
operate under an individual permit may wish to convert to the
standardized permit, once regulations to establish such permits are
promulgated. We believe there would be advantages to switching to the
standardized permit. For example, the proposed technical requirements
for the standardized permit (see part 267) would impose significantly
fewer reporting requirements than part 264 (e.g. no Part B application
submittal required at initial permit stage or for permit renewal),
which in turn would reduce your paperwork burden. Also, under today's
proposal, you would be able to take advantage of the proposed
streamlined modification procedures for any future changes to your
facility.
[[Page 52202]]
We are proposing that you could initiate the conversion at any
point. If there is a substantial amount of time remaining in your
permit term, you could initiate the conversion by requesting to have
your individual permit revoked and reissued as a standardized permit.
We propose this provision in Sec. 124.203, which refers to the
procedures in Sec. 124.5 governing revocation and reissuance of
permits. Under existing regulations (Sec. 124.5(a)), any interested
person, including the permittee, can request the regulatory agency to
revoke and reissue a permit, as long as the reasons are specified in
Sec. 270.41. We are proposing to amend the causes for revocation and
reissuance in Sec. 270.41(b) to add conversion from an individual
permit to the standardized permit. Once a permittee submits this
request, we propose applying the procedures for RCRA standardized
permits in 40 CFR part 124 subpart G. If, on the other hand, you are
nearing the end of your permit term, you could convert simply by
deciding to pursue your permit renewal as a standardized permit rather
than as an individual permit (see Section VIII B 4: Permit
reapplication).
IV. Issuing a Standardized Permit
A. How Would the Regulatory Agency Prepare a Draft Standardized Permit?
We are proposing that you, as the Director of a regulatory agency,
would have to follow three steps to prepare a draft standardized
permit.\2\ First, you would review the incoming Notice of Intent and
supporting information and determine whether the facility is eligible
for the standardized permit. Second, you would tentatively decide
whether to grant or deny coverage under the standardized permit. We are
proposing that, if you decide to grant coverage, you would then propose
appropriate terms and conditions, if any, to include in the
supplemental portion of the permit. Finally, you would prepare your
draft permit decision within 120 days after receiving the notice of
intent and supporting information. We propose in Sec. 124.204(c) that
your tentative determination either to grant coverage under the
standardized permit, including any tentatively identified facility-
specific conditions in a supplemental portion, or to deny coverage
under the standardized permit, would constitute a draft permit
decision. Of course, you would not have to wait until the end of the
120 days to make your draft permit decision, and could provide notice
of your decision earlier. You would need to follow many of the proposed
requirements in part 124 subpart A in processing the standardized
permit application and preparing your draft permit decision. To help
you determine which requirements apply, we propose in Sec. 124.204(d),
the applicability of relevant subpart A sections in the context of the
RCRA standardized permit, as it would be administered by EPA.
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\2\ We are proposing that you would follow the standardized
permit procedures if you are issuing an EPA standardized permit; you
would follow equivalent state permitting procedures if you are
issuing a state permit in a state authorized to issue standardized
permits.
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In this section, we concentrate our discussion on three areas of
the proposal: drafting terms and conditions for the supplemental
portion, denying coverage under the standardized permit, and preparing
your draft permit decision in 120 days.
1. Drafting Terms and Conditions for the Supplemental Portion
If you, as the Director, decide to grant coverage under the
standardized permit, we are proposing that you must tentatively
identify appropriate facility-specific conditions, if any, to impose in
the supplemental portion of the standardized permit, and include those
conditions as part of the draft permit. (Note: If a need for additional
facility-specific conditions arises after you make a permit
determination, or any of the facility-specific conditions you initially
included need to be amended at a later time, you could modify the
permit at that time, in accordance with existing provisions in
Sec. 270.41.) These proposed facility-specific conditions would go
beyond the nationwide conditions in the uniform portion of the
standardized permit. We propose that the site-specific conditions that
you impose would be those that, in your discretion, are necessary for
corrective action purposes or otherwise to ensure protection of human
health and the environment. Your authority to impose permit conditions
necessary for corrective action purposes comes from RCRA section
3004(u) and (v) and EPA regulations at 40 CFR 267.101. Your authority
(and your obligation) to impose permit conditions that ensure
protection of human health and the environment (including conditions
requiring cleanup of any contamination not subject to 3004(u) and (v))
comes from the ``omnibus'' provision of RCRA section 3005(c)(3) and EPA
regulations at 40 CFR 270.32(b)(2).
We anticipate that in certain cases communities may raise the need
for site-specific conditions, or actually propose such conditions,
during the proposed pre-application meeting. You would see the
community's concerns or proposed conditions in the meeting summary that
the facility owner or operator submits with their notice of intent. For
example, the community may express concern that certain waste
management units are too close to the facility's boundaries. To address
the concern, you might specify how far back from the boundaries to
place the units. As another example, the community might have concerns
or pertinent information about the facility's location in relation to
local flood patterns, especially if the facility is located in a 100-
year floodplain area. (Under the Sec. 267.18 locations standards,
facilities can locate in the 100-year floodplain only if the waste
management units are properly designed, constructed and operated to
prevent damage during flooding events.) You may need to address this
situation by imposing site-specific conditions similar to what would be
considered under the current individual permit process.
Of course, under the proposal, a facility owner or operator could
voluntarily suggest additional permit requirements in response to
community concerns or to address corrective action. We are proposing
that a facility owner or operator could include a statement with their
Notice of Intent specifying additional conditions they would like you
to attach to their standardized permit.
If you found that some of the general design or management
standards of 40 CFR part 267 are not adequate for a particular
facility, we are proposing that you could determine that more stringent
standards would be necessary. We do not anticipate that more stringent
standards would be necessary in most standardized situations. However,
if you determine more stringent standards are necessary for a
particular facility, then you would add conditions in the supplemental
portion of the standardized permit.
We are proposing that you could determine, in some situations, that
there is no need for additional site-specific conditions to satisfy
regulatory requirements or to ensure protection of human health and the
environment, and that a facility could operate under the terms of the
uniform portion of the permit alone. In these situations, you would
simply not include any conditions, beyond those in the uniform portion,
as part of the draft permit. This scenario is certainly plausible,
since existing regulatory controls for the types of units eligible for
the proposed standardized permit (e.g., tanks, containers) generally do
not need much site-specific variation. Where a site
[[Page 52203]]
requires corrective action, however, the corrective action
requirements, which are generally not uniform among sites, could drive
the need for supplemental permit conditions.
2. Denying Coverage Under the Standardized Permit
We are proposing that you, as the Director, could decide to
tentatively deny coverage under the standardized permit--for example,
if a facility owner or operator failed to submit all the information
required under Sec. 270.275, or if the facility does not meet the
eligibility requirements for a standardized permit (e.g., the
facility's activities are outside the scope of the standardized
permit). We also propose that you could consider the facility's
compliance history, in situations where the facility is operating under
RCRA interim status or already has an individual permit and is choosing
to convert to the standardized permit. Given the self-implementing
nature of the proposed requirements in the uniform portion of the
standardized permit, we believe that it is important that the facility
demonstrate its ability to adhere to the regulations. If a facility has
a demonstrated history of not complying with applicable requirements,
it may not be a viable candidate for a standardized permit. We welcome
your comments on this issue.
We are also proposing that you may decide not to allow a facility
to operate under the standardized permit where such a permit cannot
ensure protection of human health and the environment, even if
additional site-specific conditions were imposed. We are proposing that
facilities that you determine are ineligible for the standardized
permit would, of course, still have the option of applying for an
individual permit.
3. Preparing Your Draft Permit Decision in 120 Days
Under proposed Sec. 124.204(c), you, as the Director, would need to
make a draft permit decision within 120 days of receiving a notice of
intent and supporting documents from the facility owner or operator.
The proposed 120-day time frame for issuing the draft permit is a new
concept in the RCRA program. Although the existing process for RCRA
individual permits requires EPA to determine the completeness of an
application within a set time frame (60 days), it does not impose any
time limit for issuing a draft permit. To ensure that the standardized
permitting process does, in fact, streamline the administrative process
and shorten the time required to obtain the permit, we believe it is
appropriate to propose a time limit for preparing standardized permits.
On the other hand, it is important to allow a sufficient period of time
for you to review the supporting documents for information that may
influence your decision on a facility's eligibility for the
standardized permit or prompt you to develop facility-specific
conditions to include in a supplemental portion. We suggest that a
limit of 120 days would still provide a reasonable amount of time for
you to review the supporting documents to (1) determine that the
facility is in compliance with applicable regulations (in the case of
existing facilities); (2) propose conditions that might be necessary
for corrective action purposes, or to otherwise ensure protection of
public health and the environment; or (3) propose conditions to address
community concerns raised in the early public meeting. This time would
also afford you the opportunity to consult with the community or the
facility, if necessary to expand on the information submitted with the
Notice of Intent.
We request your comments on whether 120 days is an appropriate time
frame for a draft permit decision, or whether a longer or shorter time
frame would be more suitable. We anticipate that the proposed 120-day
period leading up to the draft permit decision would provide sufficient
time for you, as the Director, to decide whether to grant or deny
coverage under the standardized permit. We would also like comments on
whether we should allow for a one-time extension to the time limit, and
what an appropriate amount of time for such an extension might be. For
example, if state and EPA regional permitting authorities anticipate
that they might continue to have joint permitting issues under the
standardized permit scenario (such as those that currently exist under
the individual permit scenario), how much additional time would be
sufficient to address joint permitting or other types of permitting
issues? Would a one-time, 90-day extension period be an appropriate
amount of time to address concerns? Is some other time period more
appropriate? We would also like comments on whether to suspend the 120
day ``clock'' if site-specific conditions require a comprehensive site
visit and follow up by the permitting authority. Under this approach
the review ``clock'' would be restarted after the site-specific issues
were resolved.
B. How Would the Regulatory Agency Prepare a Final Standardized Permit?
We are proposing that, after the close of the public comment
period, you, as the Director, would make a final determination on your
draft permit decision. In other words, you would decide whether to
grant or deny coverage to a facility to operate under the standardized
permit. In arriving at your decision you would need to consider all
significant comments on the draft decision that were raised during the
public comment period or the public hearing, if one took place. If you
decide to grant coverage, you would, as part of your final permit
decision, make a final determination on the facility's eligibility, and
on the terms and conditions to include in the supplemental portion, if
any. As we discuss below, we propose applying the current procedures
for final issuance of an individual permit, codified in Sec. 124.15, to
the standardized permit as well.
Once you issue a draft standardized permit, we are proposing that
you would follow the same procedures for finalizing the permit that you
use to finalize a draft individual permit for a facility--i.e., you
would generally follow the procedures of 40 CFR part 124, subpart A,
with the exception of certain steps as modified in subpart G.
We propose in Sec. 124.205 which sections of part 124 subpart A
would apply to the preparation of your final permit decisions, in the
context of a RCRA standardized permit process, as administered by EPA.
These proposed procedures include, among other things, requirements for
responding to comments, establishing an administrative record, and the
issuance and effective date of the final permit. For example, by
applying the provisions in Sec. 124.15 Issuance and effective date of
the permit, we are proposing that your final permit decision would
become effective 30 days after you announce it, with three possible
exceptions: (1) You specify a later date in your notice of final
determination; (2) someone requests an appeal under Sec. 124.19 Appeal
of RCRA, UIC, and PSD Permits (Sec. 124.19 is referenced by
Sec. 124.210 May I, as an interested party in the permit process,
appeal a final standardized permit?); or, (3) you received no comments
requesting a change in the terms and conditions in the supplemental
portion. In this third situation, the permit would become effective
immediately upon issuance of your notice. We welcome comments on
whether it is appropriate to apply the current provisions of
Sec. 124.15 for final issuance of an individual permit to the process
for issuing standardized permits. However, we are not reopening for
comment the provisions of Sec. 124.15
[[Page 52204]]
or the Part 124 permit procedures more generally.
C. In What Situations Could Facility Owners or Operators Be Required To
Apply for an Individual Permit?
We are proposing to provide the flexibility for you, as the
Director of a permitting agency, to require a facility owner or
operator to obtain an individual permit (see Sec. 124.206). We are also
proposing to allow any interested person to petition you to require a
facility to get an individual permit. We do not anticipate that you
would invoke this provision very often. There are at least two reasons
for such a situation. The first is if the facility is not eligible for
the standardized permit. The second is if the facility has a poor
compliance record while operating under the standardized permit. Given
the self-implementing nature of the technical requirements applicable
to the facility, we believe it will be important that the facility
demonstrate its ability to adhere to the regulations. If a facility has
consistently failed to fulfill this obligation in the past, then it
likely warrants the more in-depth review that occurs under the
individual permit scenario. We are proposing that if you decide to
invoke this provision, you would have to provide notice to the facility
of your decision, including a description of the reasons that led up to
your decision. We are interested in you comments on this topic.
V. Proposed Opportunities for Public Involvement in the
Standardized Permit Process
A. What Are the Proposed Requirements for Public Notices?
We propose in Sec. 124.207 that you (the Director) would issue a
public notice announcing your draft permit decision, and place in a
location accessible to the community near the facility or at your
office a copy of: the draft permit denial or the draft standardized
permit (including both the uniform portion and the supplemental
portion, if any); the statement of basis or fact sheet; the facility's
notice of intent to operate under the standardized permit; and the
supporting documents. We are limiting these proposed requirements to
the information that the facility owner or operator actually submits to
you, since we are proposing in Sec. 270.280 that you would certify that
the information that supports the Notice of Intent and the
certifications (e.g., all the technical design information for the
units) would be available for review at the facility itself. We request
comments on whether the public notice requirements are sufficient.
The public notice requirements we are proposing in Sec. 124.207 for
announcing your draft permit decision for RCRA standardized permits
mirror the public notice requirements for individual RCRA permits that
are specified in Sec. 124.10(c). These current requirements specify how
you must develop and maintain facility mailing lists and to whom you
must send public notices. We are likewise proposing to mirror the
methods for distributing public notices. For example, under proposed
Sec. 124.207, you would need to publish public notices in a local
newspaper and broadcast them over local radio stations.
Section 124.207(c) lays out the proposed content for the notice,
such as contact people at both the facility and the permitting agency,
the location where you put the draft standardized permit and the
supporting information, a brief description of the facility and its
operations (including an address or a map showing the facility's
location), and an address people can write to join the facility's
mailing list. The notice would also provide a mailing address to which
people may direct comments, information, opinions and inquiries. We are
also proposing that you would provide public notice of your final
permit determination according to the requirements in Sec. 124.207. We
believe the information in this notice will provide the public an
adequate opportunity to stay involved in the standardized permitting
process beyond the initial meeting with the facility owners or
operators. We are interested in your comments on the appropriateness of
this proposed public notice procedure which is modeled after the
existing individual RCRA permit public notice procedure.
B. What Are the Proposed Opportunities for Public Comments and
Hearings?
We are proposing that the notice described in Sec. 124.207 would
initiate a 45-day public comment period (see proposed Sec. 124.208).
Anyone who chooses to comment on your draft standardized permit
decision would need to submit their comments to you in writing. We are
proposing a 45 days because it parallels the existing public comment
period on a draft individual RCRA permit.
During the public comment period, we are proposing that anyone
could ask you to hold a public hearing. They would need to submit their
request for a hearing to you in writing and would state the nature of
the issues they want to address in the hearing. You could hold a public
hearing whenever you find, on the basis of requests, a significant
degree of public interest in your draft permit decision. You could also
hold a public hearing at your discretion, whenever, for instance, such
a hearing might clarify one or more issues involved in your permit
decision. However, as is the case for RCRA individual permits, we are
proposing that you must hold a public hearing whenever you receive
written notice of opposition to a standardized permit and a request for
a hearing within the public comment period. The hearing should be held
at a location that is convenient to the community, for example, at a
town hall or school auditorium. As is the case in the individual
permitting process, you would need to automatically extend the public
comment period to the close of any public hearing you schedule.
We also propose that the requirements for providing public notice
of the hearing, and governing the manner in which the hearing will be
conducted, be the same as those followed by the individual RCRA
permitting process (see Secs. 124.10(c), 124.12(b), (c), and (d)). We
propose in Sec. 124.208(d) that you provide the public notice at least
30 days before the hearing. This requirement is consistent with the
timing requirements in 124.10(b) for individual permits. Under the
proposal, you could give notice of the hearing at the same time you
provide public notice of your draft permit decision, and you could
combine the two notices.
During the public comment period, we are proposing that interested
parties could provide comments on your draft permit decision, including
the facility's eligibility for the standardized permit. For example,
they could ask you to reconsider a facility's eligibility to operate
under the standardized permit. They could also comment on any site-
specific conditions, either those you proposed in a draft supplemental
portion, or those the commenters would like you to impose when you make
your final permit decision. We discuss examples of site-specific
conditions in Section IV A 1: Drafting terms and conditions for the
supplemental portion. We are also proposing that people could also
comment on your decision to deny the permit because sufficient
conditions could not be imposed.
Although we are proposing the terms and conditions of the uniform
portion on a national basis in Part 267 (see Section VII: Proposed Part
267 Standards for Owners and Operators of Hazardous Waste Facilities
Operating Under a Standardized Permit), which makes them subject to
public comment and challenge as part of this rulemaking,
[[Page 52205]]
we are also proposing that the public may comment on the adequacy of
those terms and conditions in the context of a particular facility. In
other words, if people believe there are site-specific factors that
impact the effectiveness of those national standards in protecting
human health and the environment, they can submit comments to this
effect. In this situation, the terms of the uniform portion would still
apply to the facility, but you could impose additional conditions in
the supplemental portion to ensure that the facility indeed operates in
a manner that is protective of human health and the environment. We
request your comments on the adequacy of the proposed opportunities for
public comments and hearings, and whether they should be strengthened
or even relaxed (given that the management units potentially eligible
for the standardized permits are more straightforward).
C. What Are the Proposed Requirements for Responding to Comments?
We are proposing that, at the time you make your final decision on
the draft permit, you must also provide a response to comments you
received during the public comment period. We propose in Sec. 124.209
that the requirements for the response to comments under the
standardized permit process be consistent with the requirements under
the individual permit process. That is, your response would (1) specify
any additional site-specific conditions that you changed in the final
permit, and the reasons for the change, and (2) describe and respond to
all significant comments on the facility's ability to meet the general
requirements, and on any additional conditions necessary to protect
human health and the environment. You would make your response to
comments available to the public. We are also proposing that you would
include in the administrative record for your final permit decision any
documents cited in your response to comments. If new points are raised
or new material supplied during the public comment period, you could
document your response to those matters by adding new materials to the
administrative record.
We are also proposing to allow you to request additional
information from the facility (i.e., information beyond that submitted
with their notice of intent and supporting documents). We are including
this provision to address situations that may arise when you need
additional information to adequately respond to the comments, or to
make decisions about additional conditions you may need to add to the
standardized permit for a particular facility. This provision parallels
the authority we have under 40 CFR 270.10(k). We are requesting your
comments on this topic.
D. How could People Appeal a Final Standardized Permit Decision Under
the Proposal?
We propose in Sec. 124.210 to allow interested parties to appeal
your final EPA permit decision to EPA's Environmental Appeals Board
(EAB) within 30 days. Anyone who filed comments on the draft permit
decision, either in writing or orally at the public hearing, if one
took place, could initiate an appeal. We are proposing that the
procedures for appealing permit decisions in Sec. 124.19 also apply to
standardized permits. A petition to the EAB is currently a prerequisite
to seeking judicial review of a final permit determination. Appeals of
RCRA permit actions are often resolved at the administrative appeal
step, and do not progress to judicial appeal. We believe the
administrative appeal is important to propose as part of the RCRA
standardized permitting procedures.
Under today's proposal, people could appeal the standardized
permit, including any terms and conditions in the supplemental portion,
only after you make your final permit decision. They could also appeal
your decision about the facility's eligibility for the standardized
permit at this time (e.g., someone may challenge that the unit is not a
tank but a thermal treatment unit, and thus not eligible for coverage
under the proposed standardized permit). People could not, however,
appeal the terms and conditions of the uniform portion. As we point out
in Section V B: What are the Proposed Opportunities for Public Comments
and Hearings?, we are proposing to promulgate the uniform portion of
the permit as regulation, which would make it subject to public notice
and comment procedures that are an integral component of our rule-
making process. Once the uniform portion becomes a final rule, it could
not be challenged after 90 days under RCRA section 7006(a)(1).
VI. Maintaining a Standardized Permit
A. What Types of Changes Could Owners or Operators Make?
Regardless of what type of permit you (the owner or operator) may
have, you will likely need to modify your permit over time to reflect
changes in your facility's design or operations. For example, you may
add new units or start managing a different waste stream, or you may
need to reflect administrative changes, like name changes or changes in
ownership.
We believe many changes to standardized permits, as proposed, can
occur without regulatory oversight or with greatly reduced regulatory
oversight and processing time. We also recognize that not all potential
changes are of the same magnitude, and thus not all potential changes
need to follow one prescribed set of procedures. Consequently, we
propose categorizing potential modifications to your standardized
permit into two categories: Routine changes and significant changes.
B. What Are the Proposed Definitions of Routine and Significant
Changes?
We are proposing to define routine changes as any changes that
qualify as class 1 or 2 permit modifications under 40 CFR 270.42
Appendix I (commonly referred to as the permit modification table).
These types of changes typically include things such as: Administrative
and informational changes, changes in ownership or operational control,
changes to allow less than 25% increase in capacity of a hazardous
waste management unit, and changes to allow you to store different
wastes at your facility as long as they undergo similar waste
management processes.
We are proposing to define significant changes as: (1) Any changes
that qualify as class 3 permit modifications under 40 CFR 270.42
Appendix I, (2) any changes that are not specifically identified in
Appendix I, or (3) any changes that amend terms or conditions in the
supplemental portion of your standardized permit. These types of
changes typically include such things as a greater than 25% increase in
a unit's capacity, as well as managing wastes that you did not
previously identify and which require different management processes
than those you currently use.
We decided to propose categorizing modifications in this way
because it is consistent with the approach we used in the existing RCRA
pre-application meeting requirements in Sec. 124.31(a). In applying
those requirements, we are proposing that the pre-application meeting
would only apply to renewal applications in cases where the facility
owner or operator was proposing a significant change in facility
operations. Additionally, in Sec. 124.31(a) we said that for the
purposes of that section, ``a `significant change' is any change that
would qualify as a class 3 permit modification under 40 CFR 270.42.''
We would like people to comment on whether these categories are
appropriate, and whether the
[[Page 52206]]
procedures we describe in the following two sections correctly reflect
the appropriate level of regulatory oversight necessary for these
levels of changes. Of particular interest to us is whether changes in
ownership or operational control should be included with routine
changes. Is there a need for the permitting authority to evaluate the
impacts of owner or operator changes on existing permits prior to such
changes being made (as currently provided for in Secs. 270.40 and
270.42), to confirm that the new owner(s) or operator(s) are legitimate
and financially capable of complying with the facility's closure and
post-closure care responsibilities and corrective action obligations,
if any?
C. What Are the Proposed Standardized Permit Procedures for Making
Routine Changes?
We propose in Sec. 124.212 to allow you to make routine changes
without prior approval by the regulatory agency. If the changes amend
any of the information you submitted under proposed Sec. 270.275,
however, you would need to submit the revised information to the
Director before you make the change. For example, Sec. 270.275(a) would
require you to provide the Part A information to the Director. The Part
A form includes information such as your name and address. If you
change ownership or operational control of your facility, this would be
a routine change (it is a type of class 1 modification in Sec. 270.42
Appendix I) which you can make without obtaining approval from the
Director. However, the Director would need to know of these types of
changes (for purposes including accountability and liability), and so
it would be important for the Director to have the revised information.
In cases where you have to provide notice to the Director, you would
also provide notice of the changes to the facility mailing list and to
appropriate units of state and local government before putting the
changes in place.
We are not proposing to require you to provide advance notice of
all routine changes. Some types of modifications that qualify as
routine may not amend information submitted under Sec. 270.275. For
example, some changes could be within the scope of the uniform portion
of your standardized permit (e.g., a less than 25% capacity increase in
a unit). Under the proposed standardized permit scheme, you would not
provide detailed information about the technical aspects of your
operations. You would instead certify that you meet the technical
standards in part 267. Since you would not submit the detailed
information as part of the permit application, it would not make sense
to submit modifications to that information. In other words, the
information would not be part of a permit application and would not
result in any facility-specific permit conditions that the Director
would need to modify. We are proposing that, regardless of what routine
changes you make, you would still need to operate your facility in
accordance with the proposed design and management standards of part
267, and you would still be bound by the certifications submitted with
the notice of intent to operate under the standardized permit. We
request your comments on these proposed procedures.
D. What Are the Proposed Standardized Permit Procedures for Making
Significant Changes?
If you want to make significant changes to your facility, you would
need to follow a set of procedures we are proposing in Sec. 124.213
that closely resemble the initial standardized permitting process.
Under the proposed Sec. 124.213 procedures, you would initiate the
process for making significant changes by publishing a notice
announcing a public meeting on your permit modification request. Since
the site-specific conditions by their very nature relate directly to
your facility and your neighboring community, and could be the direct
result of community input, we believe it is important to make sure the
community is aware of potential changes to those conditions. Therefore,
we propose requiring you to advertise and conduct a meeting with the
public about the proposed modifications. This meeting would be similar
to the pre-application meeting you must conduct as part of the initial
standardized permitting process.\3\ For example, as proposed, you would
hold both meetings prior to submitting the notice of intent either to
operate under the standardized permit or to modify the standardized
permit. As in the case of the initial meeting, you would provide notice
of the meeting about the proposed changes at least 30 days beforehand
and in the same manner (i.e., as required by Sec. 124.31(d). During the
meeting, you would solicit questions from the community and inform the
community of the proposed changes to your facility's hazardous waste
management activities. Also, as in the case with the initial meeting,
you would post a sign-in sheet or otherwise provide a voluntary
opportunity for attendees to provide their names and addresses.
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\3\ The meeting we propose here is also consistent with current
class 3 modification regulations for individual permits. Those
regulations include a requirement for you to conduct a public
meeting as part of the modification process (see 40 CFR
270.42(c)(4)).
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We are proposing that, after the public meeting on the
modifications you want to make, you would submit a modification request
to the Director. In your request, you would describe the exact changes
you want to make, identify whether they are changes to the information
you submitted under 40 CFR 270.275 or to terms and conditions in the
supplemental portion of your standardized permit, and you would explain
why you need to make the changes. You would also include a summary of
the meeting, the list of attendees, and copies of any written comments
or materials people submitted at the meeting. We propose that the
Director would then have 120 days to make a tentative determination to
approve or not approve your modification request.
The proposed 120-day time frame for the Director to make a
tentative determination on the modification request is the same as the
proposed 120-day time frame that the Director would have to make a
draft decision about your initial standardized permit. We solicit
comments in Section IV A 3: Preparing your draft permit decision in 120
days, on the appropriateness of the 120-day time frame. If we adopt a
different time frame in the initial process in response to comments on
this proposal, we plan to make the same change in the modification
process as well. Nevertheless, we request comments on our assumption
that the modification process would require the same level of effort as
the initial process.
We are proposing that, once the Director makes a tentative
determination on your modification request, the remaining procedures
governing the initial standardized permitting process, i.e., the
procedures for providing public notice of the tentative determination,
public comment, public hearings, final determination, response to
comments, and appeals, would apply to the modification process as well.
We request your comments on the applicability of these proposed
procedures to the modification process.
E. What Would Be the Proposed Process for Renewing Standardized
Permits?
We examined the possibility of having a standardized permit remain
in effect for the entire life of a facility. The Agency's Permits
Improvement Team (PIT) included this as a possible approach for
streamlined permitting procedures in its recommendation for a RCRA
standardized permit. However,
[[Page 52207]]
we are bound by statute (under RCRA Section 3005(c)(3), see also
Sec. 270.50)) to limit the lifetime of a RCRA permit to a maximum of 10
years in length, and so are not proposing any new provisions to govern
renewals of standardized permits.
Under current regulations (see Secs. 270.11(h) and 270.30(b)), if
you wish to continue an activity regulated by your permit after the
expiration date of your permit you must submit a new application at
least 180 days before the expiration date unless you have obtained
permission for a later date. This same provision applies to you if you
operate under an individual permit, and would apply if you had a
standardized permit. To renew a standardized permit, you would follow
the same procedures as you would to initially obtain coverage under the
standardized permit (those in 40 CFR part 124 subpart G).
VII. Proposed Part 267 Standards for Owners and Operators of
Hazardous Waste Facilities Operating under a Standardized Permit
A. Overview
This section of the preamble discusses the specific part 267 RCRA
hazardous waste requirements that we propose standardized permitted
facilities must meet. The specific topics that will be discussed are:
1. General Facility Standards
2. Preparedness and Prevention
3. Contingency Plans and Emergency Procedures
4. Record Keeping, Reporting, and Notifying
5. Releases from Solid Waste Management Units
6. Closure of Units
7. Financial Requirements
8. Use of Management of Containers
9. Tank Systems, and
10. Containment Buildings.
We are proposing to add a new part to the RCRA hazardous waste
standards that specifies the general facility requirements and the unit
specific standards for RCRA hazardous waste facilities operating under
a standardized permit. These proposed requirements would form the basis
of the ``uniform'' portion of the standardized permit. Specifically,
during the standardized permit application process, you, as the
facility owner or operator, would certify that you are meeting the
performance standards and waste management unit design requirements of
part 267. You would prepare specific documentation on how your facility
is meeting the performance standards and unit-specific requirements
found in part 267, and would keep this information on-site at the
facility. You would not have to submit this information to the
permitting agency for review and approval. Table 4 offers a comparison
of the waste management standards found in part 264 (for the individual
permit) and in part 267 (for the standardized permit).
We request comment on all aspects of the proposed part 267 rules.
Since many of these provisions are restatements of the existing part
264 regulations in plain language format, we particularly invite
comment on whether, in rewriting and reorganizing the existing part 264
requirements, we inadvertently changed their meaning. As noted
previously, however, we are not reopening the existing regulations to
public comment, except those provisions explicitly modified by this
proposal. Nevertheless, we request comments on whether each of these
existing requirements should apply (and to what extent) to units
covered by standardized permits, which we consider inherently more
straightforward than other types of management units.
Table 4.--Technical Standard Comparison
----------------------------------------------------------------------------------------------------------------
Individual
permits Proposed Standardized Permit
----------------------------------------------------------------------------------------------------------------
Applicability:
Facilities that treat, store, or
dispose of hazardous waste.
Only for facilities that store or
non-thermally treat hazardous
waste on-site in tanks,
containers, or containment
buildings.
General Facility Standards:
EPA identification numbers.......
Waste analysis plans.............
Security.........................
Inspection schedules.............
Personnel training...............
Preventive measures..............
Floodplain and seismic location
standards.
Construction quality assurance...
Preparedness/Prevention:
Requirements for minimizing
threats from unplanned events.
Contingency Plan and Emergency
Procedures:
Requirements for contingency
plans that describe how hazards
from fire/explosion/and other
releases will be minimized.
Manifest system, record keeping and
reporting:
Requirements for keeping:
manifests for wastes accepted
from off-site.
Operating records................
Other records....................
Releases from Solid Waste Management
Units:
Requirements for ground water
monitoring.
solid waste management unit
corrective action.
Closure: Requirements for facility
closure including:
Closure performance standards....
A closure plan...................
However, closure plan not submitted until 6 months prior
to closure.
Time for closure.................
Post-closure.....................
Financial Assurance:
[[Page 52208]]
Requirements for financial
assurance for closure, post- Except financial assurance for post-closure and non-
closure, and liability. sudden liability requirements are not applicable.
Management Standards for Containers:
Requirements for management of
containers and container storage
areas, and closure.
Tank Systems:
Requirements for design and
installation of tanks, Except no waiver provision from secondary containment,
containment of releases, no underground tanks allowed, and clean closure
operating standards, required.
inspections, and closure.
Containment Buildings:
Requirements for design and
operation, and closure. Except, clean closure required.
----------------------------------------------------------------------------------------------------------------
We believe that the current minimum national requirements for
hazardous waste management in tanks, containers, and containment
buildings found in 40 CFR Part 264 are appropriate for facilities
covered under the proposed standardized permit. Therefore, we are
proposing to incorporate most of the part 264 standards for owners and
operators of hazardous waste facilities into the proposed part 267
standards with minor changes necessary to accommodate the intent of the
standardized permit. For example, we made some changes to accommodate
the reduced level of interaction under the standardized permit between
the permitting agency and the facility owner or operator. Other changes
were made to make the part 267 standards more readable. We believe that
the proposed part 267 standards provide the same baseline of protection
that the part 264 standards do.
B. Subpart A--General
1. What Are the Purpose, Scope, and Applicability of This Proposed
Part?
In Sec. 267.1, we discuss the purpose, scope, and applicability of
the part 267 regulations. The purpose of proposed part 267 would be to
establish minimum national standards for facilities managing waste
under a standardized permit. As discussed previously in Section I C 4:
Who would be Eligible for a Standardized Permit?, facilities that
generate waste and then manage the waste on-site in tanks, containers,
or containment buildings would be eligible for a standardized permit
under today's proposal. The proposed part 267 regulations would apply
to owners and operators of facilities who non-thermally treat or store
waste under a standardized permit as described in Sec. 270.67. We
explain that three categories of facilities are exempt from the part
264 regulations, and the proposed part 267 regulations would include
the same exemptions.
First, the existing part 261 regulations contain requirements for
the identification and listing of hazardous waste and also discuss
several waste streams that are not hazardous waste. Facilities that
manage these exempted wastes and non-hazardous waste are not currently
subject to the part 264 standards. Similarly, we are proposing that
facilities managing these excluded wastes would not be subject to the
proposed part 267 standards.
Second, Sec. 264.1(f) currently provides an exemption from the part
264 regulations for facilities that manage hazardous waste if the state
in which the hazardous waste management activity is occurring has a
RCRA hazardous waste program authorized under part 271 of this chapter.
The proposed part 267 regulations would also contain this provision.
Finally, existing Sec. 264.1(g) requirements provide an exemption
from the part 264 regulations for various facilities and individuals
who manage hazardous waste, such as small quantity waste generators,
certain recyclers, farmers disposing of waste pesticides, to name a
few. The proposed part 267 regulations would also contain the
Sec. 264.1(g) exemption provisions.
2. What Is the Proposed Relationship to Interim Status Standards?
The provisions of proposed Sec. 267.2 discuss the relationship of
the standardized permit requirements to the interim status standards.
Under section 3005(e) of RCRA, owners and operators of hazardous waste
treatment, storage, and disposal facilities in existence on November
19, 1980 or when they are subjected to RCRA permitting, and who submit
appropriate notification and a Part A permit application have ``interim
status.'' The proposed Sec. 267.2 provisions are similar to those found
in the current Sec. 264.3. Under the proposed provisions, if you are
currently complying with the requirements for interim status as defined
in section 3005(e) of RCRA and qualifying for interim status under
Sec. 270.70, you would be required to continue to comply with the
interim status standards specified in part 265 until final disposition
of your standardized permit application.
3. How Would This Subpart Affect an Imminent Hazard Action?
Proposed Sec. 267.3 repeats the provisions found currently in
Sec. 264.4 concerning imminent and substantial hazards. As this
proposed provision states, the permitting agency could issue
enforcement orders to a facility if an imminent and substantial
endangerment to human health or the environment is present, even if the
facility is complying with the proposed part 267 provisions.
C. Subpart B--General Facility Standards
This section of the preamble discusses the general facility
standards that we are proposing for standardized permitted facilities.
These proposed general facility standards are similar to the general
facility standards currently found in the 40 CFR part 264 subpart B.
They describe how you would obtain an EPA identification number, and
what the proposed requirements would be for waste analysis, site
security, general inspection schedule, employee training, managing
ignitable, reactive, or incompatible waste, and locations standards. We
are requesting your
[[Page 52209]]
comments on the appropriateness of these proposed general facility
standards.
1. Would This Subpart Apply to Me?
Section 267.10 contains the proposed applicability language of this
subpart. This section states that ``this subpart applies to you if you
own or operate a facility that treats or stores hazardous waste under a
part 270 subpart I standardized permit, except as provided in
Sec. 267.1(b).'' We repeat this applicability language in all the
proposed subparts of part 267.
2. How Would I Comply With This Subpart?
Proposed Sec. 267.11 lists the steps that you would take if this
subpart applies to you. Specifically, you would obtain an EPA
identification number, and follow prescribed requirements for waste
analysis, security, inspections, training, special waste handling, and
location standards.
3. How Would I Obtain an Identification Number?
Proposed Sec. 267.12 repeats the requirement found currently in
Sec. 264.11 on identification numbers with the addition of who to
contact for information. Permitting agencies use a facility's
identification number to track the operations at the facility and to
enter the facility in their hazardous waste facility data system. The
existing notice requirements of Sec. 264.12(a) and (b) are not
applicable to the proposed standardized permit situation because, under
this proposal, no waste would be coming onto a standardized permitted
facility from any off-site sources. The existing requirements of
Sec. 264.12(c), stipulating that you notify a new owner or operator of
your facility of the requirements of both this part and part 270, are
included in proposed subpart E (Record keeping, reporting, and
notifications).
4. What Are the Proposed Waste Analysis Requirements?
Proposed Sec. 267.13 discusses general waste analysis requirements
and repeats most of the requirements currently found in Sec. 264.13
except for those specific to off-site generated waste and land disposal
units, which are not proposed to be eligible for standardized permits.
We are not proposing to include in Sec. 267.13 off-site waste and
disposal units discussed in Secs. 264.13(a)(3)(ii), (a)(4), (b)(5),
(b)(7), and (c).
Under the standardized permit procedures proposed in Sec. 270.67,
you, as the facility owner or operator, would be required to develop a
waste analysis plan and keep it at your facility. You can find the
proposed waste analysis plan requirements in Sec. 267.13(b). The waste
analysis plan would describe sampling and analytical procedures. The
purpose of the waste analysis plan would be to ensure that you possess
sufficient information on the properties of the waste to be able to
treat or store the waste in a safe manner. The waste analysis plan
required by proposed Sec. 267.13 (b) should be the same level of detail
as the existing plan currently required by Sec. 264.13. You would be
required to specify in the plan the level of analysis you would perform
on your waste and the frequency with which you would repeat the
analysis.
5. What Are the Proposed Security Requirements?
The facility security procedures we proposed in Sec. 267.14 are
important factors in the safe management of hazardous waste. These
proposed requirements are similar to the security requirements found in
current Sec. 264.14. The provisions of Sec. 267.14 would require you to
have security procedures that prevent the unknowing entry of people and
minimize the potential for the unauthorized entry of people or
livestock onto the active portion of the facility. We are proposing
that, during inspection of the facility, the permitting agency could
review the security procedures and determine if the components of the
security system are in place and in working order.
If you wish an exemption to any component of the security system,
as provided under the proposed provisions in Sec. 267.14(a) (similar to
provisions of Sec. 264.14), you would be required to prepare a written
justification and keep it readily available on-site at your facility.
This procedure is different from the existing Sec. 264.14 provisions in
that you would not make the demonstration to the Director, but instead
self-certify that you qualify for the exemption. This self-
certification is similar to the demonstration currently available to
interim status facilities under Sec. 265.14. The proposed Sec. 267.14
provision contains two conditions for the exemption: (1) If
unauthorized entry will not result in injury to people or livestock who
might enter the facility, and (2) if such entry will not result in
injury to the environment (for example, as a result of disturbing the
waste or the equipment within the active portion of the facility).
Because past experience shows us that these two conditions are rarely
satisfied, we do not expect many of you would be able to qualify for
the proposed exemption from security requirements. We invite comment on
the inclusion of this proposed exemption for standardized permits. Do
you believe that the exemption from security provisions is appropriate
for facilities operating under standardized permits?
6. What Are the Proposed General Inspection Schedule Requirements?
We propose requiring you to make the general inspection schedule,
as well as the inspection logs or summaries, as described in proposed
Sec. 267.15, readily available at your facility. You would generally
develop and follow your own written inspection schedules. You would be
required to base the written inspection schedule described in proposed
Sec. 267.15 on your facility's critical processes, equipment, and
structures, and on the potential for failure and the rate of
deterioration processes (for example, corrosion) that may lead to
failure (just as is required currently in Sec. 264.15). We are
proposing to retain minimum inspection requirements and schedules for
tanks, containers, and containment buildings. You would be required to
incorporate these inspection schedules into your written inspection
schedules. You would document all repairs and responses to problems
noted during inspections in your inspection log and keep the
documentation with the inspection schedule. Several of the regulatory
citations currently in Sec. 264.15(b)(4) are not appropriate because
they refer to units that are not eligible for the proposed standardized
permit (for example, thermal treatment units and land disposal units);
therefore, we are not including these citations in the proposed
Sec. 267.15(b)(3) requirements.
7. What Training Would my Employees be Required to Have?
The purpose of the training requirement is to reduce the potential
for mistakes that might threaten human health or the environment by
ensuring that facility personnel are knowledgeable in the areas to
which they are assigned. The proposed standards found in Sec. 267.16
are essentially the same as the training standards currently in
Sec. 264.16, and include requirements that specify what training your
personnel would be required to have and when they need to receive
training to do their jobs. You would be required to keep a description
of the training program and individual personnel training logs with the
other required records at your facility.
[[Page 52210]]
8. What Are the Proposed Requirements for Managing Ignitable, Reactive,
or Incompatible Waste?
We propose general requirements for handling ignitable, reactive,
or incompatible waste in Sec. 267.17 which are similar to the existing
requirements found in Sec. 264.17. These general requirements minimize
the potential for accidents when you handle ignitable or reactive
waste, or when you mix incompatible wastes. Extreme heat or pressure,
fires, explosions, violent reactions, or damage to the structural
integrity of the device or unit containing the waste are clearly
undesirable because of the likelihood that they will cause injury or
death or release hazardous waste into the environment.
9. What Are the Proposed Standards for Selecting the Location of my
Facility?
The proposed technical standards would require you to comply with
location standards described in Sec. 267.18. These standards are
similar to the location standards currently found in Sec. 264.18. We
believe that the location characteristics of a facility are an
important consideration in ensuring safe waste management. The hazards
a facility could present to human health and the environment may be
increased by locating a facility in certain areas. These proposed
location standards are designed to reduce these additional risks. We
believe that you should be required to submit the information required
by the location standards to the permitting agency, because the
location of the facility is a site-specific factor that determines its
suitability for hazardous waste management activities. We discuss the
submittal of this information to the permitting agency in more detail
later in Section IX B: What Information would I need to submit to the
Permitting Agency to Support my Standardized Permit Application?
The proposed location standards found in Sec. 267.18 would restrict
the siting and waste management activities of facilities in floodplains
and seismic zones. We determined in 1981 that waste management
activities should be restricted in those two areas because of the risks
that these locations pose.
The existing Sec. 264.18(c) provision that sets forth location
standards for salt domes, salt bed formations, and underground mines
and caves is not included in the proposed location standards of
Sec. 267.18 because this provision deals with hazardous waste disposal
which is not eligible for a proposed standardized permit.
The proposed Sec. 267.18 standards retain the existing
Sec. 264.18(b) provisions allowing facilities to locate within a 100-
year floodplain as long as the facility meets proper design,
construction, and operating requirements to prevent washout, and to
seek a waiver if the facility can remove the waste before flood waters
can reach the facility. If a waiver is granted, the facility to where
the waste is moved would be required to either have a RCRA permit to
manage that particular waste or have interim status. We invite comments
on whether we should retain the floodplain waste removal waiver in the
standardized permit. It has been our experience that the submittal and
approval of any waiver involves a lengthy review process. This review
process may defeat the streamlined permitting goal of the standardized
permit.
The Sec. 264.18(b)(ii) provisions are specific to land disposal
waste management activities and is not applicable to the standardized
permit situation. Therefore, these requirements have not been added to
the proposed Sec. 267.18(b) provisions.
10. Would I Be Required To Have a Construction Quality Assurance
Program?
No, under the proposed rule, you would not need a construction
quality assurance program because you are not managing waste in land
disposal units. The existing Sec. 264.19 construction quality assurance
program has provisions that are applicable to surface impoundments,
waste piles, and landfill units. Because these units are considered
land disposal units and not eligible for a proposed standardized
permit, the construction quality assurance program is not included in
the proposed part 267 requirements. Therefore, we did not include a
section containing those provisions.
D. Subpart C--Preparedness and Prevention
This proposed subpart contains standards that would require you, as
the owner or operator of a hazardous waste facility, to minimize
threats to human health and the environment caused by the release of
waste from a fire, explosion or any unplanned event. Except where
noted, the proposed requirements of this subpart are the same as those
currently found in subpart C of part 264. We are requesting your
comments on these proposed preparedness and prevention requirements.
1. What Are the Proposed General Design and Operation Standards?
Proposed Sec. 267.31 would require you to design, construct,
maintain, and operate your facility to minimize threats to human health
and the environment caused by the release of waste being managed at the
facility from a fire, explosion or any unplanned event. This is the
same provision that is found in existing Sec. 264.31.
2. What Equipment Would I Be Required To Have?
Proposed Sec. 267.32 would require you to have certain equipment at
the facility, including an alarm system, communication equipment, fire
extinguishers and fire control equipment, and either water for hose
streams, foam equipment, or water spray systems. This proposed
provision would also allow you to not have certain equipment if the
potential hazards at the facility don't warrant having the equipment.
This proposed section differs from the existing Sec. 264.32 in that the
Director would not have to make a determination about whether your
facility can be exempt from having some of the required equipment.
However, you would be required to keep documentation supporting any
equipment exemption at the facility and you would make the
documentation available for review by the permitting agency and the
public. In this respect, the proposed Sec. 267.32 is the same as the
current Sec. 265.32 regulation governing interim status facilities.
3. What Are the Proposed Testing and Maintenance Requirements for the
Equipment?
Proposed Sec. 267.33 would require you to test and maintain, as
necessary, all the equipment proposed in Sec. 267.32 so that it would
be ready when needed. This provision is the same as the requirements
currently found in Sec. 264.33.
4. When Would Personnel Be Required To Have Access to Communication
Equipment or an Alarm System?
Proposed Sec. 267.34 would require all personnel involved in waste
handling to have ready access to the communication equipment and
alarms, including situations when only one employee is working at the
facility. The requirement would not apply when the equipment is not
required under proposed Sec. 267.32. As opposed to the existing
requirements in Sec. 264.34, no prior determination by the Regional
Administrator would be required for the exemption. However, you should
keep documentation supporting the exemption at your
[[Page 52211]]
facility, and would be required to make it available for review by the
public and the permitting Agency. This is the same approach applicable
to interim status facilities under existing Sec. 265.34.
5. How Would I Ensure Access for Personnel and Equipment During
Emergencies?
Proposed Sec. 267.35 would require you to maintain sufficient aisle
space to allow for rapid remediation of any emergency. The aisle space
should be wide enough to allow personnel, fire protection equipment,
spill control equipment, and decontamination equipment to move to any
facility operation in the case of an emergency. This provision is the
same as the current Sec. 264.35 requirement, except for the provision
for a waiver in Sec. 264.35. We have not provided for a waiver in
proposed Sec. 267.35 because we do not believe, under the proposed
standardized permit, that a situation would arise when sufficient aisle
space should not nor could not be provided.
6. What Arrangements Would I Be Required To Make With Local Authorities
for Emergencies?
The proposed Sec. 267.36 provisions would require you to attempt to
make arrangements with local police, fire and emergency response
authorities, and hospitals to assist in responding to emergencies.
These requirements are similar to those found in existing Sec. 264.37
and include provisions on familiarizing emergency response personnel
with the facility layout, properties of the wastes you manage, possible
evacuation routes, and types of injuries or illnesses that could result
from fires, explosions, or releases at the facility. You would be
required to document, in the facility's operating record, any refusal
on the part of any of the State or local authorities to enter into such
arrangements.
E. Subpart D--Contingency Plan and Emergency Procedures
This proposed subpart contains standards that would require your
facility to have a contingency plan that describes how hazards to human
health and the environment will be minimized. The requirements of this
proposed subpart are similar to the provisions currently found in
subpart D of part 264, with the exception that you would not be
required to submit the plan with your application.
1. What Is the Purpose of the Proposed Contingency Plan and How Would I
Use it?
The proposed provisions of Sec. 267.51 would require you to have a
contingency plan at your facility. The purpose of the plan is to
minimize hazards to human health or the environment whenever a fire,
explosion or unplanned event results in the release of hazardous waste
or hazardous waste constituents. You would be required to comply with
the proposed requirements of Sec. 267.51 immediately whenever there is
a fire, explosion, or release of hazardous waste or hazardous
constituents that could threaten human health or the environment. The
proposed requirements in Sec. 267.51 are the same as the provisions
currently found in Sec. 264.51.
2. What Would Be Required To Be in my Contingency Plan?
Under proposed Sec. 267.52, you would be required to include the
following in your contingency plan: a description of the planned
response to emergencies at your facility; any arrangements with local
and state agencies to provide emergency response support (Sec. 267.36);
a list of your facility's emergency coordinators, a list of your
facility's emergency equipment; and an evacuation plan, where
necessary. The primary purpose of the proposed contingency plan is to
ensure that you have anticipated potential emergencies and have
developed appropriate response plans. Under EPA's existing ``one-plan''
guidance for contingency planning (61 FR 28641, June 5, 1996), you are
currently allowed to consolidate multiple plans that may be required
under various regulations into one functional emergency response plan.
Facilities that are required to comply with the existing Sec. 264.52
requirements, are allowed to meet these requirements by following the
``one-plan'' guidance. Likewise, if you need to comply with proposed
Sec. 267.52 requirements, you would not need to prepare a separate plan
if you already had a contingency plan that followed the ``one-plan''
guidance. The proposed requirements of Sec. 267.52 are similar to the
current provisions of Sec. 264.52. However, proposed Sec. 267.52 does
not include the existing requirement of Sec. 264.52(d) to submit the
compliance plan information at the time of certification. However, this
information would be kept at the facility as proposed by
Sec. 270.290(g).
3. Who Would Be Required To Have Copies of the Contingency Plan?
Section 267.53, as proposed, would require that you keep a current
copy of the plan at your facility and give copies to all local
authorities, including hospitals, that may be called in the event of an
emergency. This requirement is the same as the provision in current
Sec. 264.53. You may choose, in the interests of promoting good
community relations, to provide a copy of the plan to the heads of any
local community groups as well. EPA has learned anecdotally that
communities can be very interested in this type of information.
4. When Would I Have To Revise the Contingency Plan?
Proposed Sec. 267.54 lists the criteria that dictate when you would
need to revise the contingency plan. The proposed Sec. 267.54
requirements are the same as provisions currently found in Sec. 264.54.
Factors that would require you to modify the contingency plan include
changes in any of the lists of equipment or emergency coordinators, a
failure of the plan when it was implemented, permit revision, and
changes in design, construction, operation, or maintenance that
materially increase the potential for harm to human health or the
environment.
5. What Is the Proposed Role of the Emergency Coordinator?
Section 267.55, as proposed, would require at least one employee to
be responsible for coordinating all emergency responses. The employee
may be either at the facility or on call, and would be required to be
knowledgeable of all aspects of the contingency plan, the facility
operations, the waste handled, location of records, and facility
layout. Equally important, the employee should be able to commit
necessary resources to implement the contingency plan. Existing
Sec. 264.55 has the same requirements.
6. What Are the Proposed Emergency Procedures for the Emergency
Coordinator?
Proposed Sec. 267.56, which elaborates on the responsibilities of
the emergency coordinator, is the same as the existing provisions found
in Sec. 264.56. Applicable responsibilities vary with type and variety
of waste handled and the complexity of the facility. The
responsibilities include the following: activating alarms; notifying
appropriate State and local authorities, as needed; identifying the
nature, source, and extent of any release; assessing possible
[[Page 52212]]
hazards to human health or the environment; and monitoring for leaks,
pressure buildups, gas generation, or ruptures, as appropriate.
Proposed Sec. 267.57 discusses actions that the emergency
coordinator would be required to take after an emergency. These actions
include the following: the treatment, storage, or disposal of any
materials or waste that result from a release, fire, or explosion at
the facility; and the examination and replacement, if necessary, of any
emergency equipment you use in response to the emergency. This
provision corresponds to existing Sec. 264.56(g) and (h).
Proposed Sec. 267.58 identifies your responsibilities, as the owner
or operator of a hazardous waste management facility, operating under a
standardized permit. You would be required to notify the Director and
appropriate state and local authorities about details of the incident
that required implementing the contingency plan. This provision
corresponds to existing Sec. 264.56 (i) and (j) .
F. Subpart E--Recordkeeping, Reporting, and Notifying
This proposed subpart of 267 contains the standardized permit
record keeping, reporting and notifying requirements.
1. When Would I Need To Manifest my Waste?
Because the part 267 standardized permit regulations, as proposed,
would not apply to facility owners and operators who receive waste from
off-site, the requirements currently found in Sec. 264.71 (a), (b), and
(d) are not included in Sec. 267.71. Existing regulations that apply to
waste sent from the generator Sec. 264.71(c), has been retained in
proposed Sec. 267.70. This is because there could be situations where
waste generated, stored, or treated at a facility operating under a
standardized permit could be shipped off-site for final treatment or
disposal. Also this proposed subpart has been renamed (compared to
subpart E of part 264) to reflect that no manifest system is involved.
The existing provisions of Sec. 264.72, which cover manifest
discrepancies, apply only to wastes received from off-site sources.
Because the proposed rule does not currently apply to off-site
shipments, we did not include that section in Part 267. As mentioned
earlier in Section I E 3, we are interested in your comments on whether
the scope of the proposed standardized permit regulations should be
expended to include facilities that treat or store waste generated off-
site.
2. What Information Would I Need To Keep?
Proposed Sec. 267.71 would require you to maintain a record of
operations at your facility. This provision is similar to the current
requirements found in Sec. 264.73. You would be required to keep the
operating record at your facility until final closure of your facility.
The information that you would place in the operating record includes
the following: descriptions and quantities of waste handled, location
of the wastes at the facility, results of waste analyses and
determinations, reports of incidents that required implementing the
contingency plan, inspection reports, monitoring and testing data,
closure cost estimates, waste minimization certification, and
information required under the land disposal restrictions found in part
268 of this chapter. Under existing Sec. 268.7, if a generator sends
waste off-site for land disposal, the generator must determine if the
waste has to be treated before it can be land disposed. The generator
must keep records that were used to make this determination. Because
proposed part 267 only applies to the on-site storage and treatment of
hazardous waste, certain existing paragraphs in Sec. 264.73 were not
included in the proposed Sec. 267.71 standards.
3. What Records Would I Provide to the Permitting Agency?
Proposed Sec. 267.72 stipulates that you would furnish all records
required in this part upon request to the permitting authority. This is
the same requirement currently found in Sec. 264.74. It should be noted
that proposed part 270 subpart I requires many of the same records be
made available to the public for review. However, the Agency is not
proposing to make the entire operating record available for public
review. This is the same as the current situation; a RCRA facility's
operating record is not subject to public review. However, the
information described in part 270 subpart I is subject to public
disclosure. See Section IX B: What Information would I Need to Submit
to the Permitting Agency to Support my Standardized Permit
Application?, and Section IX D: What Information would be Required to
be Kept at My Facility?. The existing provisions in Sec. 264.74(c) are
not proposed for Sec. 267.71, because they apply to land disposal,
which is not currently covered by the proposed standardized permit.
4. What Reports Would I Need To Prepare and Who Would I Need To Send
Them to?
Proposed Sec. 267.73 contains the same requirement for submitting a
biennial report as the existing requirements of Sec. 264.75. As with
264.75, the report covers a facility's activities including: the method
of treating or storing waste, the most recent cost estimate for
closure, waste reduction efforts, and changes in waste volume and
toxicity. Section 264.75(c) and (d), which applies to off-site
facilities and wastes received, have not been included in proposed
Sec. 267.73, because the proposed standardized permit does not apply to
such facilities.
Because the existing Sec. 264.76 provision for unmanifested waste
report applies to facilities that receive waste from off-site, which is
not currently allowed under the proposed standardized permit rule, that
section has not been included in proposed Sec. 267.73.
Proposed Sec. 267.73 also lists reports, in addition to the
biennial report, that you would have to submit in special
circumstances. You would report on fires, releases, and explosions at
your facility and report when your facility closes. You would also
submit any other reports required for container storage units, tanks,
and containment buildings, and reports required under the air standards
in part 264 subparts AA, BB, and CC.
5. What Notifications Would Be Required?
If your facility changes owner or operator, you would be required
to notify that person, in writing, of the proposed requirements of
Sec. 267.74 as well as those in proposed part 270.
G. Subpart F--Releases From Solid Waste Management Units
1. Would This Proposed Rule Require me To Address Releases of Hazardous
Waste or Constituents From Solid Waste Management Units?
This proposed rule would require you to undertake corrective action
to address releases of hazardous waste or constituents from solid waste
management units (SWMUs) ( the ``facility-wide corrective action
requirement imposed by section 3004(u)) if your facility, or a portion
of your facility, as a condition of your standardized permit (unless of
course, standardized permit conditions are being added to an existing
permit that already addresses corrective action).
The corrective action requirements proposed for standardized
permits for
[[Page 52213]]
storage facilities are identical in substance to the existing
corrective action requirements for non-standardized permits for such
facilities\4\ and, as in the case of non-standardized permits, site-
specific cleanup requirements would be required to be determined on a
site-by-site basis. Because corrective action requirements are site-
specific, EPA or the authorized State would include them in the
supplemental portion of your standardized permit.
---------------------------------------------------------------------------
\4\ The specific language of the provisions, however, differs
from the language in Part 264 because of the Agency's recent efforts
to use ``plain language'' techniques when drafting regulations and
other documents.
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2. Are the Proposed Corrective Action Requirements for Standardized
Permits Different From the Corrective Action Requirements for
Individual Permits?
The proposed corrective action requirements for standardized
permits are specified in Sec. 267.101 of part 267 subpart F and are
analogous in substance to the current requirements of Sec. 264.101,
which otherwise would apply to the facilities addressed in this
proposed rule.\5\ Proposed Sec. 267.101(a) (analogous to existing
Sec. 264.101(a)) would impose the general RCRA section 3004(u)
requirement that all facilities seeking a permit must conduct
corrective action as necessary to protect human health and the
environment for all releases of hazardous wastes or constituents from
solid waste management units at the facility. Proposed Sec. 267.101(b)
(analogous to existing Sec. 264.101(b)) would require that the permit
specify a schedule of compliance for completing corrective action at
the facility (where corrective action is not completed prior to permit
issuance), and provide assurances of financial responsibility for
completing corrective action. Proposed Sec. 267.101(c) (analogous to
existing Sec. 264.101(c)) generally would require you to conduct
corrective action beyond the facility boundary, and to provide
financial assurance for such corrective action. Proposed
Sec. 267.101(d) (analogous to existing Sec. 264.101(d)) provides that
facilities that require a RCRA permit only because they treat, store,
or dispose of hazardous waste in the course of conducting a cleanup are
not subject to the facility-wide proposed corrective action
requirements of Sec. 267.101.
---------------------------------------------------------------------------
\5\ You should note that there are significant differences
between existing part 264 subpart F and proposed part 267 subpart F,
because the hazardous waste management units that are proposed to be
eligible for standardized permits are not subject to most existing
provisions of part 264 Subpart F. The existing requirements of
Secs. 264.91-100, apply to ``regulated units,'' which are currently
defined in Sec. 264.90 as surface impoundments, waste piles, and
land treatment units or landfills that receives hazardous waste
after July 26, 1982. Since these units are not proposed to be
eligible for the standardized permits, proposed part 267 Subpart F
does not contain provisions analogous to sections 264.91-100.
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3. Why Are we Proposing These Requirements?
In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the
Resource Conservation and Recovery Act (RCRA), Congress directed EPA to
require corrective action as necessary to protect human health and the
environment for releases from all solid waste management units (SWMUs)
at hazardous waste treatment, storage, and disposable facilities
seeking a permit. Section 3004(u) of RCRA requires that any permit
issued under section 3005(c) of RCRA to such a facility after November
8, 1984, address corrective action for releases of hazardous wastes or
hazardous constituents from any SWMU at the facility. Section 3004(u)
requires that schedules of compliance (where corrective action cannot
be completed prior to permit issuance) and financial assurances for
completing such corrective action be included in the permit. In
addition, section 3004(v) directs EPA to require corrective action
beyond the facility boundary, where permission to conduct such
corrective action can be obtained. Because standardized permits, like
non-standardized permits (individual permits and permits-by-rule),
would be issued under the authority of section 3005 of RCRA to
facilities seeking a permit, these corrective action requirements
extend to standardized permits as well and EPA has included these
requirements for corrective action in proposed part 267.
4. Why Would the Proposed Corrective Action Requirements Be Included in
the Supplemental Portion of the Standardized Permit?
One of EPA's objectives in developing this proposed rule was to
streamline the permit application and permit issuance processes by
developing generic design and operating standards for storage permits,
thereby avoiding detailed review of permit applications. To the extent
possible, we have developed such standards and proposed them in this
rule. However, in developing this proposal, we had to balance our
desire for a streamlined permitting process against the need for
flexibility in the corrective action program. In the past 16 years,
since we began implementing the corrective action mandates of HSWA, EPA
has been reminded consistently that most sites in the RCRA universe are
unique, and that site-specific determinations for corrective action
remedies are typically vital to assuring the best remedy is selected at
each site. Based on this experience, rather than attempting to develop
generic standards for corrective action, we chose early in the
development of this proposed rule to utilize the same site-specific
flexibility for corrective action under standardized permits as is
currently available under non-standardized permits. That corrective
action process provides us with considerable flexibility to fashion
remedies that are protective of human health and the environment and
that reflect the conditions and the complexities of each facility.
We solicit comment on this proposed approach to corrective action
in standardized permits. Further, though we have not proposed
standardized permit conditions for corrective action, we specifically
request suggestions for standardized permit conditions that might be
used for corrective action under standardized permits.
5. Would I Be Able To Utilize the Flexibility Provided by CAMUs,
Temporary Units, and Staging Piles When I Conduct Corrective Action
Under a Standardized Permit?
All of the flexible mechanisms available under non-standardized
permits for corrective action would be available to you under a
standardized permit. To utilize any of these mechanisms, you would be
required to comply with the existing requirements in part 264 that are
applicable to them.
H. Subpart G--Closure
The title of this subpart has been changed from the current part
264 subpart G title: ``Closure and Post-Closure'' because we are
proposing that facilities with standardized permits be required to meet
clean closure standards (or obtain individual RCRA post-closure permits
instead). Also, land disposal facilities (which are subject to post-
closure care) are not proposed to be eligible for standardized permits.
For most cases, the basic proposed requirements of subpart G in
part 267 parallel the existing provisions in part 264 subpart G.
However, we propose several changes to the closure provisions in part
267. These proposed changes include the following: the closure plan not
being submitted until at least 180 days prior to closure, not allowing
the option to close as a landfill and therefore requiring clean
closure, and not allowing time extensions for closure. The policy
considerations prompting these changes are discussed in further detail
below.
[[Page 52214]]
The purpose of these proposed changes is to streamline the closure
process in appropriate areas by eliminating unnecessary review and
approval of plans by the permitting agency. By not requiring a closure
plan until 180 days before closing, you would have better knowledge of
what steps and procedures should be taken to ensure closure of each
waste management unit. This would preclude the necessity of changing
the plan and modifying the permit, which is typically the sequence of
events under the existing individual permit process.
Once a standardized permit rule is promulgated, we would recommend
that you begin preparing your closure plan as early as possible prior
to the submittal of the plan, preferably when the other documents that
are normally part of the existing Part B application are prepared. This
would allow you to update and change the plan as more details become
available. We are proposing that the plan be required to be submitted
at least 180 days before you expect to begin closure, and you may not
know that date until shortly before the 180-day period. Once a final
rule is in place, preparing the plan early would better enable you to
meet the deadline.
We are asking comments and suggestions for procedures to be
followed in the event that you do not know you are to receive the last
volume of hazardous waste until you are within the 180-day period. As
the proposed regulations read, you would be required to submit the
closure plan at least 180 days before you begin closure, and you would
be required to complete closure within 180 days of receiving the last
hazardous waste shipment, but you would not be able to begin closure
without an approved closure plan. If, because of circumstances that you
could not have foreseen, you were unable to submit a closure plan in
the time required, you could be in violation of the regulations.
We have considered several options for addressing this situation,
and we invite comments on these as well as suggestions for other
possible options. One option would be to require the closure plan to be
submitted with the original permit application, as in individual
permits. Another approach would be a waiver limited to narrow
circumstances, such as a bankruptcy forcing an unexpected final
shipment of waste. Alternatively, we could attempt to develop a
standardized closure plan for each type of unit. The Agency could also
leave this aspect of the proposal unchanged, which would place the
burden of compliance on you. Under that approach, if you are in a type
of business in which it is difficult to predict when the final shipment
of waste might occur, we would encourage you to consider submitting
your closure plan early to minimize potential noncompliance.
We also intend to simplify the closure plan requirements, by
proposing to require the units covered by the standardized permit to
meet ``clean closure requirements.'' We believe that in most cases the
units can meet these requirements and therefore would not require post-
closure care. Consequently, part 267 subpart G, as proposed, contains
no provisions for units to close as a landfill or to undergo post-
closure care. If your facility could not be clean-closed, you would be
required to apply for an individual ``post-closure care'' permit under
the proposed rule. No separate provisions are proposed for modifying
the closure plan. We believe that a plan submitted at least 180 days
before clean closing a container storage area, tank system, or
containment building would not require modifying. Since the closure
plan would become part of the permit, we are proposing that any changes
to the closure plan would be required to follow the permit modification
procedures found in Secs. 124.211-213. We solicit comments on this
requirement and whether our assumptions are valid.
We are also considering an option of not requiring a closure plan.
A written plan may not be necessary because we are proposing to require
clean closure of all units, and because the procedures for clean
closing the types of units subject to this rule should not vary
greatly. Instead, we would use inspections and certifications to assure
that the unit(s) were closed in accordance with the clean closure
performance standards in Sec. 267.111 (general closure standards),
Sec. 267.176 (containers), Sec. 267.201 (tanks), and Sec. 267.1108
(containment buildings).
Under this proposed option, the clean closure requirements,
including any site-specific requirements, would be written as
conditions into the permit. The permitting agency inspectors would
verify that all remaining hazardous waste was properly removed and that
decontamination and removal of equipment was accomplished according to
the permit conditions. The independent professional engineer would also
certify that the facility was closed according to the permit
conditions, rather than the closure plan as currently proposed in
Sec. 267.117. You would still be required to notify the director 45
days before you expect to begin final closure of a unit, so that the
permitting agency inspectors and the independent professional engineer
can be present.
We invite comments on the feasibility of not requiring a closure
plan and on the enforecability of performance standards in the permit.
We note that, if you select option 4 as a means of estimating closure
cost (see Section VII.I.6.) you would have collected all of the
information necessary to prepare a detailed closure plan.
Operations at the units affected by this proposed rule should not
effect your ability to clean closure because spills should not occur.
The containment standards for container storage areas in section
Sec. 267.173 are designed to prevent releases from accidental spills.
Furthermore, the proposed standards do not allow a waiver from
secondary containment for tanks systems, which will also prevent
releases from accidental spills. Finally, the proposed standards
require that any releases be quickly collected and contained. For these
reasons, a detailed closure plan may also not be necessary.
1. What General Standards Would I Need To Meet When I Stop Operating
the Unit?
The proposed closure performance standards of part 267 subpart G
are the same as the performance standards currently found in part 264
subpart G. Tanks, container storage areas, and containment buildings
are required in both part 264 and under today's proposal to ``clean
close.'' Both parts 264 and 267, however, allow you to close tanks and
containment buildings as landfills if you cannot attain clean closure.
Under the proposed part 267 standards, you would be required to obtain
an individual post-closure permit, separate from the standardized
permit, if you do not clean close. Thus, for these types of units to
continue to be eligible for the standardized permit, you would be
required to remove all waste, decontaminate the containment unit, and
clean up any spills during closure. The proposed performance standard
found in Sec. 267.111 would require you to minimize the need for
further maintenance and to minimize or eliminate the potential for
post-closure escape of hazardous waste, hazardous constituents,
leachate, contaminated run-off, or hazardous waste decomposition
products to the extent necessary to protect human health and the
environment. We propose minor citation changes in Sec. 267.111(c) to
remove inapplicable regulatory references that were in the existing
requirements in Sec. 264.111.
We invite comments on whether to make other options available to
facilities
[[Page 52215]]
that cannot meet the clean closure standards. Under the Post-Closure
rule (63 FR 56710, October 22, 1998), if you own or operate a facility
with land disposal units, you would have the options of obtaining a
post-closure permit or integrating the closure of the unit with on-
going corrective action activities in progress at the facility. We are
interested in comments on whether a similar process should be available
to storage and treatment units covered by the standardized permit that
have difficulty clean closing. Under this option, you may not have to
obtain an individual post-closure permit if you can address the
residual contamination at the closing unit by on-going corrective
action activities at your facility.
2. What Procedures Would I Need To Follow?
You would need to follow the procedures listed in proposed
Secs. 267.111-267.113. These requirements for a written closure plan in
proposed Sec. 267.112 parallel those in existing Sec. 264.112, for the
most part. One notable exception is that you would not have to submit
the plan until at least 180 days before you expect to begin closure.
Generally, closure of a unit begins within 90 days of receiving the
last volume of waste. Under today's proposal, you would be required to
notify the permitting authority 45 days prior to beginning the final
closure of a unit. You would still have your closure plan approved by
the Director before you begin closure. In addition, because you would
not submit the plan with the Notice of Intent described in Section III
A 2: Submit a Notice of Intent to operate under the standardized permit
along with appropriate supporting documents, the Director would provide
the public an opportunity to comment on the plan. You would provide
persons on the facility mailing list with a copy of the closure plan at
the same time you submit a copy to the permitting authority. You would
also place a notice in the local newspaper notifying the public of the
opportunity to comment on the plan. The comment period would be open
for 30 days. After review of the public comments, the permitting agency
would approve, modify, or disapprove the plan. The permitting authority
would have 60 days after receipt of the closure plan to make its
decision on it.
You would identify and describe in the plan all steps necessary to
perform partial and/or final closure of the facility. The proposed
Sec. 267.112(b) provisions describe the contents of the closure plan.
These provisions are similar to the current requirements found in
Sec. 264.112(b) with a few exceptions. You would be required to
describe in the plan how you would close each hazardous waste
management unit in accordance with the closure performance standards of
proposed Sec. 267.111. You would also include, in the plan, an estimate
of the maximum inventory of hazardous waste on-site at the facility and
a detailed description of the method you would use during final closure
for removing, transporting, treating, storing, or disposing of all
hazardous waste and identify the types of off-site hazardous waste
units you plan to use. You would describe the steps needed to remove or
decontaminate hazardous waste residues, contaminated containment system
components, contaminated soils, and contaminated ground water. You
would also include a schedule for closure of each hazardous waste
management unit and the total time for closure of each unit.
No provisions are included in proposed Sec. 267.112 for closing
land disposal units or combustion facilities because they are not
proposed to be eligible for a standardized permit. We would retain the
provision that allows you to modify the closure plan before you notify
the Director of your intent to close. Even though you do not have to
submit a closure plan until 180 days before you begin closing, we
understand that unusual circumstances could cause you to change how you
plan to close your facility. To allow for that situation, we have
included procedures for modifying your closure plan through a permit
modification. Proposed Sec. 267.112(c) includes procedures for amending
the closure plan. As with the original plan, you would have to submit
the modified plan to the Director of the permitting authority for
approval before you could begin closure. Proposed Sec. 267.112 does not
contain provisions that require you to modify the closure plan. We do
not anticipate that we would need to require you to change the plan
given the fact you are submitting it just six months prior to closure
of the units.
We are proposing in Sec. 267.112(d) to greatly simplify the
existing Sec. 264.112(d) requirement for you to notify the Regional
Administrator when closure is expected to begin. This simplification
results from several factors. First, we are proposing to limit the
applicability of the standardized permit to on-site storage and
treatment units. Second, we are proposing to allow only clean closure
of the units covered by a standardized permit. Third, we are proposing
to prohibit any extensions to the start of closure. These factors are
intended to greatly simplify the closure notification provisions
currently found in Sec. 264.112(d).
We used provisions similar to those found in the current part 265
interim status requirements as a model for the proposed provisions
found in Sec. 267.112(d). We modified slightly in proposed
Sec. 267.112(c) and Sec. 267.113 the existing Sec. 265.112 (d)(4)
process for submitting and approving the closure plan. Proposed
Sec. 267.113 requires the Director to make the closure plan available
for public review and comment. This provision is necessary because the
closure plan is not available for comment by the public at the time the
``notice of intent'' is submitted to the permitting agency.
3. After I Stop Operating, How Long Would I Have Until I Close the
Unit?
We are proposing to simplify the requirements for the time allowed
for closure in proposed Sec. 267.115 from those found in existing
Sec. 264.113. As proposed, Sec. 267.115(a) would require you to begin
closure of the unit following the approved closure plan within 90 days
after you receive the final volume of hazardous waste. Because we are
proposing to require you to clean close the hazardous waste management
units, and because you would not have to submit the closure plan until
six months prior to closure under this proposal, we do not expect you
to need any extension to the closure period. Additionally, the nature
of the units subject to this rulemaking reduces the likelihood of any
unforseen circumstances making the closure take longer than planned. We
have therefore decided to propose that no time extensions for closing
are appropriate for the standardized permit. The Sec. 267.115(b)
provisions, as proposed, require you to complete final closure
activities in accordance with your approved closure plan within 180
days after receiving the final volume of waste. We do not believe that
the existing Sec. 264.113(c) provisions are appropriate for
standardized permitting because they focus on the timing of
demonstrations for extending the closure period. Existing Sec. 264.113
(d) and (e) have not been incorporated into proposed part 267 because
they apply to land disposal units which are not considered in this
proposed rule.
The Agency invites comments on the requirement for closure within
180 days. Extensive ground water contamination may prevent the owner or
operator from completing clean closure within 180 days. Under this
situation, should the Agency allow for extending the closure time
period or
[[Page 52216]]
should the owner or operator be required to apply for a post-closure
permit (or use the corrective action process)?
4. What Would I Have To Do With Contaminated Equipment, Structures, and
Soils?
We are proposing to adopt the requirements for disposal or
decontamination of equipment, structures, and soils that are currently
found in Sec. 264.114 for standardized permits. Proposed Sec. 267.116
repeats most of the existing part 264 requirements. You would have to
properly dispose of or decontaminate all equipment, structures, and
soils. You would be required to handle any waste that is removed during
closure of a unit according to the generator standards of existing part
262. Several regulatory citations found in existing Sec. 264.114 were
not repeated in proposed Sec. 267.114 because they are applicable to
land disposal or combustion situations.
5. How Would I Certify Closure?
The provision for certifying closure is in proposed Sec. 267.117
and is similar to the current provision in Sec. 264.115. This proposed
provision would require you to submit a certification, signed by you
and by an independent registered professional engineer, that you have
closed your facility following the approved closure plan.
I. Subpart H--Financial Requirements
Much of the regulatory language in this proposed rule uses a format
of questions and answers that refers to the permittee as ``you'' and to
EPA as ``we.'' Except for the introduction to the regulations
(Sec. 267.140), the proposed language in Subpart H does not follow the
question and answer format, and it does not use these first and second
person pronouns to identify the subject. There are two main reasons for
this difference. First, the underlying current financial responsibility
regulations in subpart H of 40 CFR 264 and 265, which remain integral
to the proposed part 267 regulations, do not use first and second
person pronouns, and EPA has not rewritten the existing part 264 and
265 regulations to conform to the question and answer format. The
regulations proposed here cross reference the existing part 264
regulations extensively, and often provide that compliance with an
existing part 264 provision would constitute compliance with proposed
part 267. This linkage of the regulations is necessary so that firms
with facilities under both existing part 264 (or part 265 regulations)
and proposed part 267 could use the same mechanism for more than one
facility, thus eliminating the expense of a separate mechanism. EPA
expects that several firms using the proposed standardized permit could
have other facilities operating under existing part 265 interim status
or part 264 permitting standards.
Second, unlike many other permitting regulations, the
responsibilities in the financial assurance regulations often extend to
parties other than EPA (or the state permitting agency) and the
permittee. For example, a trustee agrees to perform certain functions
as part of a trust agreement where EPA is the beneficiary, but EPA is
not a signatory. Third, parties must fulfill these responsibilities and
the language used for the documents often must conform to specific
industry standards such as the Uniform Commercial Code. Because third
parties are integral to the operation of the financial responsibility
regulations, EPA has not proposed regulatory language based upon first
and second person subjects.
If in the future EPA revises the language of existing parts 264 and
265, including the financial requirements sections, then EPA will make
corresponding changes in proposed part 267 requirements. This would
allow the changes to be consistent across facilities. At present, EPA
believes that it is more important to maintain consistency with the
existing part 264 and part 265 standards than to introduce
substantially different proposed regulatory language in part 267 for
the financial requirements.
1. Who Would Have To Comply With This Subpart and Briefly What Would
They Have To Do?
The financial responsibility requirements proposed for the
standardized permit largely mirror the provisions found currently in 40
CFR part 264 subpart H. Under proposed Sec. 267.140 you would have to
comply with these regulations if you are the owner or operator of a
facility that treats or stores waste under a standardized permit,
except as provided under proposed Sec. 267.1(b), and Sec. 267.140(d),
which similarly to current part 264 subpart H, would exempt the States
and the Federal government from the requirements of this proposed
subpart. If you are subject to these proposed regulations, you would be
required to prepare a closure cost estimate, demonstrate financial
assurance for closure, and demonstrate financial assurance for
liability. You would also notify the Regional Administrator if you are
named as a debtor in a bankruptcy proceeding under Title
11(Bankruptcy), U.S. Code.
2. Definitions
The definitions and terms proposed in Sec. 267.141 largely follow
those currently used in Sec. 264.141. As discussed below, the proposed
regulatory text includes a financial test as a method of complying with
the financial assurance requirements that reflects the test that EPA
has proposed for other hazardous waste TSDFs. Because this proposed
test does not use some of the terms in the current financial test, EPA
has not included all of the definitions in the current part 264
regulations in the proposed part 267. If EPA promulgates the current
Subtitle C financial test instead, EPA will include those definitions
when it promulgates this rule in final form.
3. Closure Cost Estimates
For the financial assurance portion of the standardized permit rule
proposal, EPA has tried to develop a process that takes into account
the differing regulatory and operating status of facilities that will
seek a standardized permit. The first group is facilities that already
are subject to part 265 subpart H interim status standards and are
already providing financial assurance. The second group of facilities
may already be permitted and providing financial assurance under the
part 264 subpart H requirements, but wish to switch to a standardized
permit. Both of these types of facilities will already have closure
plans, cost estimates and financial assurance instruments in place
before receiving a standardized permit. EPA believes that the
regulations proposed here will not cause conflicts for facilities that
are already complying with the existing part 264 and 265 standards. EPA
requests comments on any aspects of this proposal that appears to cause
conflicts for facilities switching from either part 264 or part 265
requirements to a proposed standardized permit.
The third group is new facilities that will adopt the standardized
permit so that they can begin operation. The proposed standardized
permit rule would require them to have a closure cost estimate even if
they do not yet have a closure plan. There is no separate deadline for
the initial estimate. The cost estimate is necessary to comply with the
requirement for a financial responsibility instrument which has its own
deadline.
Similar to the requirements for other permitted facilities, you
would be required to develop and keep at the facility a detailed
written estimate, in
[[Page 52217]]
current dollars, of the cost of closing the facility in accordance with
the proposed closure requirements of Secs. 267.111 through 267.117, and
applicable closure proposed requirements in Secs. 267.176, 267.201, and
267.1108. Unlike the requirements for facilities operating under
individual permits, initially you would not have to base these cost
estimates upon a closure plan, since treatment and storage facilities
with a standardized permit need not have a closure plan until six
months before closure begins. However, we propose retaining the other
requirements for closure cost estimates. Under proposed
Sec. 267.142(a)(1) the estimate would equal the cost of final closure
at the point in your facility's active life when the extent and manner
of its operation would make closure the most expensive. We are
proposing in Sec. 267.142(a)(2) that you base the closure cost estimate
on the cost to hire a third party to close the facility. The closure
cost estimate may not incorporate any salvage value from the sale of
hazardous waste, non-hazardous waste, facility structures or equipment,
land, or other assets associated with the facility at the time of
partial or final closure (proposed Sec. 267.142(a)(3)). Further, your
cost estimate may not incorporate a zero cost for hazardous waste or
non-hazardous waste that you might be able to sell because they have an
economic value (proposed Sec. 267.142(a)(4)).
In proposed Sec. 267.142(b) you would be required to adjust the
closure cost estimate for inflation within 60 days before the
anniversary of the date you established the financial instruments to
comply with Sec. 267.143. Proposed Sec. 267.143, which we discuss
below, would require an instrument to demonstrate financial assurance
for closure. If you use the financial test or corporate guarantee to
demonstrate financial responsibility, you would be required to update
your closure cost estimate for inflation within 30 days after the close
of the firm's fiscal year and before submitting the updated financial
test information to the Regional Administrator. We are asking for
public comment on whether to change the deadline for updating the cost
estimate for inflation for users of the financial test to 90 days after
the close of the fiscal year. Changing to 90 days would make this
requirement consistent with the deadline for updating the financial
test. In adjusting your cost estimate, you could recalculate the
maximum costs in current dollars or use an inflation factor derived
from the Implicit Price Deflator for Gross Domestic Product published
by the U.S. Department of Commerce. This is a slightly different
specification for the adjustment than is currently in Sec. 264.142
because the existing regulations currently specify the use of the
Implicit Price Deflator for Gross National Product rather than the
Gross Domestic Product. We are proposing to use the Gross Domestic
Product deflator since it is more readily available. Generally, the
differences between the two series are not significant and we believe
using the more readily available information will help you comply with
this requirement.
Under proposed Sec. 267.142(a)(5), you would be required to revise
your closure cost estimate in accordance with the closure plan within
30 days after submitting your closure plan. You would also adjust this
revised closure cost estimate for inflation as proposed in
Sec. 267.142(b). These requirements mirror those currently in part 264
for facilities operating under individual permits.
Unlike the current Sec. 264.142(c) requirement, you do not have to
update the closure cost estimate when a modification to the closure
plan has been approved. This is because there is no provision for
updating an existing closure plan. Since you only need to submit a
closure plan 180 days before closure, there is no need to have a
provision allowing for modification of the plan, or for updating the
cost estimate as a result of the modification. However, this absence of
a modification requirement does not change your responsibility to
maintain a current cost estimate. If you modify your operations so that
the cost of closure would increase, you would be required to increase
the closure cost estimate and provide financial assurance for that
amount under proposed Sec. 267.143.
Similarly, the proposed requirements in Sec. 267.142(c) correspond
to the existing requirements in Sec. 264.142(d) and would require you
to maintain the latest cost estimate at the facility, and, when the
cost estimate has been adjusted for inflation as proposed under
Sec. 267.142, the latest adjusted closure cost estimate.
Currently, we are aware of various methods that owners or operators
use to prepare closure cost estimates. You may base cost estimates for
closure, in part, on your past experience closing other facilities. You
also may use handbooks to estimate costs for labor, materials, and
equipment associated with performing closure activities, such as
decontamination, sampling and analysis of wastes or residues, or the
off-site transportation and disposal of wastes. In addition, you may
reference specific quotes or cost estimates from contractors to perform
various closure activities. Whichever method of cost estimating you
choose, you would be required to have a cost estimate that meets all of
the proposed requirements of Sec. 267.142, and you would need to
demonstrate that it meets the requirements.
4. Methods for Estimating Costs for Units Eligible for Standardized
Permits
We would not require owners or operators of units eligible for
standardized permits to submit to the implementing agency a complete
closure plan as part of the initial standardized permitting process.
However, we would still require you to prepare a cost estimate for
closure as part of the initial standardized permitting process and
under proposed Sec. 267.112(a) to submit the closure plan at least 180
days prior to closure. In addition, under proposed Sec. 267.142(a)(5)
you would be required to submit a revised closure cost estimate no
later than 30 days after submitting a closure plan. In conjunction with
today's proposed rule, we are assessing different options that would
provide to owners and operators several methods for preparing closure
cost estimates for units eligible for standardized permits. Use of the
methods would be optional. We intend to design methods that would
reduce the burden on the regulated community of complying with proposed
requirements under Sec. 267.142 by enabling you to generate estimates
that you and the permitting agency can accept as reasonably accurate
without preparing an accompanying closure plan for those units. To
facilitate the use of any of these alternative methods, we expect to
provide guidance explaining the methods in detail and identifying the
types of information that you will need to use them.
We recognize that estimating closure costs before developing a
closure plan means that you might potentially have less information to
factor into your estimates, which could make them less accurate. We are
interested in obtaining information on the practical difference between
the quality of cost estimates without closure plans and the quality of
costs estimates currently received by permitting agencies. While we
believe that the closure plan can lead to more accurate estimates, we
also have some information that even with closure plans, cost estimates
can be incomplete or low.
We compared closure cost estimates submitted to states in one of
our regions to an estimate we developed using a cost estimating
methodology. This
[[Page 52218]]
comparison showed a fairly consistent pattern of lower estimates from
the owners and operators than from the methodology. Overall, the cost
estimates from the owner or operator were about one-half of the
estimates generated by the methodology's model.
We recognize that our evaluation of closure cost estimates only
compares estimates developed by owners or operators to estimates
generated using our methodology. We did not compare cost estimates from
either of these sources with the actual costs incurred by viable owners
and operators, or by States which have had to perform closures on
facilities with non-viable (bankrupt) owners or operators. We seek
information from owners or operators or state permitting agencies which
compares the closure cost estimates with the costs actually incurred in
performing closure, either by the owner or operator, or the state
permitting authority. For more information on EPA's comparison of
closure cost estimates please see the document entitled ``Revised Draft
Report on Analysis of Cost Estimates for Closure and Post-Closure
Care,'' PRC Environmental Management, Inc., October 15, 1996 in the
docket, and also on the Internet. See Supplementary Information.
Because adequate cost estimates are an essential component of the
financial responsibility program, EPA considered several options for
improving cost estimates.
5. We Considered Six Options for Developing Cost Estimates, but Prefer
Three of Them for This Proposal
We considered six options for guidance for developing closure cost
estimates for units eligible for the standardized permit. Under each of
the options we considered, our goal was to reduce the burden on owners
and operators of developing such cost estimates. The options we
considered were:
(1) Have owners or operators provide to the permitting agency
specific data from which the agency will calculate cost estimates for
closure;
(2) Prepare a methodology for the agency to use to generate
``default'' cost estimates for closure;
(3) Develop a cost estimate matrix based on historical data;
(4) Provide to owners or operators standard forms that they can use
to calculate cost estimates for closure;
(5) Prepare a methodology for owners or operators to prepare
``default'' cost estimates for closure; and
(6) Waive requirements to develop cost estimates for eligible units
based on the owners or operators ability to demonstrate financial
assurance for closure and post-closure care for all other types of
units using the financial test or corporate guarantee.
Further information on these options appears in the docket to this
rule.
We believe that Options 1 and 2: would remove from the owner or
operator the responsibility of preparing a cost estimate for closure,
would impose a significant administrative burden on the implementing
agency, and might prevent the owner or operator from providing
financial assurance for the unit immediately upon submitting its permit
application because the owner or operator would have to wait for the
implementing agency to generate a cost estimate before the amount of
assurance required for closure of the unit could be determined.
Under Option 3, we would use actual costs government agencies
incurred when performing closure at abandoned facilities to develop
default cost estimates. We believe that we might be able to obtain such
data from the files of authorized states or EPA regions that managed
closures at facilities when the owners or operators were unwilling or
unable to do so. Because the cost data would reflect actual third-party
expenditures incurred by the government, default cost estimates based
on this research might provide a more realistic basis for
demonstrations of financial assurance than cost estimates prepared
under more traditional methods.
We have considered this option carefully because it might provide
us cost data for closure that are more accurate than those currently
available from other widely-used cost estimating methodologies. We may
wish to undertake efforts to gather historical cost data for closures
of abandoned facilities in the future. At this time, however, we have
elected not to propose Option 3 because we do not currently have this
information. If we receive sufficient information during the public
comment period to support it, we may use such information in the final
rule. We requests comments on the advisability of pursuing this option.
As noted above, however, we are requesting that anyone who may have
historical cost data regarding the closure of any type of RCRA
hazardous waste facility (not just facilities with only the types of
units eligible for the standardized permit), or who knows how we might
readily access such data, submit it to us for further consideration. To
be useful for this effort, the historical cost data should be: (1) Be
specific to the actual costs and whether these costs were incurred when
either the governmental agency or another entity closed specific units,
(2) be specific whether the facilities were abandoned or not, (3) be in
sufficient detail to identify costs for specific closure activities,
and (4) state when the closure activities occurred. Being able to
relate specific costs to specific activities is an important factor in
ensuring that we use the data properly when developing methods to
estimate closure costs for units at facilities, particularly because
the total costs incurred to effect ``closure'' at abandoned facilities
frequently include costs of both corrective action and closure
activities. Because the distinction between corrective action and
closure activities is not always clear, it can be difficult to
differentiate between costs that pertain only to closure activities for
the regulated unit and all other costs associated with the cleanup of a
site. However, we can only use those cost data that differentiate the
closure activities to support the development of less burdensome
methods for estimating closure costs.
6. Option 4, Standard Forms for Estimating Closure Costs
Under Option 4, EPA developed draft standard forms that you could
use to estimate the costs of closing those units proposed to be
eligible for a standardized permit. (See the report entitled ``Closure
Cost Estimates for Standardized Permits, Background Document--Option
4,'' prepared by Tetra Tech EM Inc., December 31, 1998, available in
the docket to this rulemaking and also electronically. See
Supplementary Information.) Because cost data derived from private,
nationally recognized sources often are proprietary, the draft forms do
not contain suggested costs for specific closure activities. The draft
forms, however, provide you with a methodology that would help reduce
the burden on you by standardizing the cost estimating process. Use of
the draft forms also would help to ensure that you recognize all
applicable closure activities and incorporate them into your cost
estimates for those activities.
Use of the draft forms would reduce the burden of complying with
the applicable regulations because the draft forms would provide a
step-by-step approach for developing cost estimates for closure. The
draft forms would identify the specific activities required for closure
in a standard format, so using the forms also would also reduce the
burden on the regulatory agency of reviewing and evaluating cost
estimates that you submit. It would be easier for the agency to review
and evaluate the
[[Page 52219]]
adequacy of cost estimates based on the forms because the agency could
more easily check the costs of specific activities for reasonableness.
However, we recognize that some may wish for a larger reduction of
burden associated with cost estimating and so in addition to this
option we have also developed an Option 5, discussed below, that has a
larger burden reduction, but tends to produce higher cost estimates
than this option.
What Information Would I Need To Develop Cost Estimates for Containers?
In the case of container storage areas, information you would need
to use the draft forms to develop closure cost estimates would include:
(1) Type and physical state of each waste you plan to store; (2)
maximum capacity of each waste you plan to manage; (3) types of
containers that you plan to use (for example, 55-gallon drums); (4)
surface area of all pads, berms, or other secondary containment
structures; (5) types of heavy equipment you plan to use during closure
activities; (6) level of personal protective equipment (PPE) you
anticipate needing during closure activities; (7) methods of
decontamination you plan to use for the unit and for heavy equipment;
(8) number and types of samples you plan to take and appropriate
analytical procedures you anticipate using to determine ``clean''
closure; (9) a prediction of whether you will close with the
containment system in place or will remove the containment system; and
(10) methods you anticipate using to treat and dispose of all wastes
you remove and all residues you generate during closure.
What Information Would I Need To Develop Cost Estimates for Tanks?
In the case of tanks, information you would need to use the draft
forms to develop closure cost estimates would include: (1) Types of
tanks; (2) type and physical state of each waste you plan to store or
treat in the tanks; (3) maximum capacity of each type of waste you plan
to store or treat in the tanks; (4) interior surface area of the tanks;
(5) length and nominal diameter of all ancillary piping; (6) surface
area of all pads, berms, or other secondary containment structures; (7)
types of heavy equipment you anticipate using during closure
activities; (8) level of PPE you anticipate needing during closure
activities; (9) methods of decontamination you expect to use for the
unit and for heavy equipment; (10) number and types of samples you plan
to take and appropriate analytical procedures you anticipate using to
determine ``clean'' closure; (11) a prediction of whether you will
close the tanks in place or will disassemble and remove them; and (12)
methods you anticipate using to treat and dispose of all wastes you
remove and all residues you generate during closure.
What Information Would I Need To Develop Cost Estimates for Containment
Buildings?
In the case of containment buildings, information you would need to
use the draft forms to develop cost estimates would include: (1) Type
and physical state of each waste you plan to store at the unit; (2)
maximum capacity of each waste you plan to store at the unit; (3)
interior surface area of the containment building; (4) types of heavy
equipment you plan to use during closure activities; (5) level of PPE
you anticipate needing during closure activities; (6) methods of
decontamination you plan to use for the unit and for heavy equipment;
(7) number and types of samples you plan to take and appropriate
analytical procedures you anticipate using to be performed to determine
``clean'' closure; (8) a prediction of whether you will close the
containment building in place or will remove the containment building;
and (9) methods you anticipate using to treat and dispose of all wastes
you removed and all residues you generate during closure.
Using the draft forms and the information listed above, you would
be able to estimate costs for all applicable closure activities for
each of the three proposed types of eligible units. In addition to all
basic closure activities, the forms would allow you to estimate costs
for items such as certification of closure, contingencies, and
management and design that frequently are overlooked during the
preparation of cost estimates for closure.
We request comments on the potential for further development of
Option 4. We recognize that of the information needs listed above for
each proposed type of eligible unit, certain factors may be more
crucial than others in increasing the accuracy of estimated costs. Some
factors might not be necessary at all, or would not be cost-effective.
Therefore, we also request comments on which of the information needs
listed above to require for use in estimating the costs for closure for
the proposed eligible units.
7. Option 5, Default Estimates for Estimating Closure Costs
Option 5 uses data from available cost estimating methodologies to
develop ``default'' cost estimates for proposed eligible units. The
methodology uses only a minimal amount of key, unit-specific data, you
would use those data to calculate costs for all closure activities for
each unit. (See the report entitled ``Closure Cost Estimates for
Standard Permits, Background Document--Option 5,'' prepared by Tetra
Tech EM Inc., December 31, 1998, available in the docket to this
rulemaking.) To use this methodology, you would only need the following
data: (1) Type of unit; (2) maximum capacity of each waste that would
be managed at the unit; and, (3) type and physical state of each waste
that would be managed at the unit.
We have developed a possible methodology for container storage
areas and tank systems. (We do not have sufficient information to
develop this methodology for containment buildings.) The methodology
for tank systems differentiates the costs based on whether you close
the tanks in place or remove them. The approach further differentiates
the costs based on whether the wastes are ignitable or non-ignitable.
For both container storage and tank systems, costs per gallon can vary
by the volume of waste in gallons. To determine the cost of closing the
unit (exclusive of the cost of treating and disposing of the waste),
you would multiply the cost per gallon for the size and type of unit by
the maximum number of gallons of waste.
To determine the cost of treating and disposing of the waste in the
units, we developed a table showing these costs per gallons for
different types of waste. First, you would have to determine whether
the waste is an aqueous waste or a non-aqueous waste. For an aqueous
waste, a table shows a different multiplier depending upon whether the
waste is in drums or in bulk, because waste in bulk form is less
expensive to treat and dispose of. For several dry wastes there is also
a table that provides a cost per gallon for treatment and disposal.
Again, you would produce a cost estimate for treating and disposing of
the waste by multiplying the quantity of waste by the estimated cost
per gallon. The total estimated cost for the facility would be the
costs of closing the units plus the cost of treating and disposing of
the maximum amount of waste you plan to handle.
We compared the costs using Option 5 with those using industry
standard costs in Option 4. Our comparison shows that except for the
smallest operations, the cost estimates in Option 5 are higher by an
average of one-quarter to one-third. Thus, if you would want to
minimize the amount of time necessary to derive a cost estimate, you
could
[[Page 52220]]
simply use the information in Option 5. Using Option 5 could be
especially useful for those of you who would use the financial test and
so do not incur the expense of obtaining a third party instrument whose
costs depends upon the amount assured. Alternatively, if you would
prefer to use a more involved method to obtain a more accurate closure
cost estimate, you could use Option 4 or a more complicated approach of
your choice. Currently, we believe that additional efforts by us to
make the estimates generated using Option 5 (which is quick and easy to
use) closer to the estimates generated by Option 4 or other methods are
not warranted. Variations can occur around any closure cost estimates.
While we have discussed these alternative methods of estimating
closure costs, the purpose of the proposed regulatory requirement for
those of you operating under the standardized permit remains the same
as for a facility currently operating under a Part 264 permit or under
interim status. Under proposed Sec. 267.142 you would be required to
have a closure cost estimate that ensures you have sufficient funds
available to close your facility properly. While options 4 and 5
provide simplified methods of estimating these costs, you would still
be responsible for ensuring that the use of these methods provides an
estimate that will cover the costs of closure by a third party.
8. Option 6, Waiving the Cost Estimate for Facilities Using the
Financial Test or Corporate Guarantee
Under Option 6, we would waive the requirement that you develop
cost estimates if you are able to demonstrate financial assurance for
closure and post-closure care using the financial test or the corporate
guarantee. We discuss the actual requirements of the financial test in
a later section of the preamble. As discuss more fully latter, under
this approach we presume a firm that passes the financial test has the
financial wherewithal to close the facility. We base our presumption on
the fact that a firm that passes the financial test has a very low
probability of bankruptcy, and because the closure costs would not
represent a significant outlay for the firm in comparison with its net
worth.
9. Availability of Information on EPA's Proposed Approaches
The regulatory language in this proposal does not specify any of
the six options outlined above. Instead the proposed regulatory
language in Sec. 267.142 includes only the requirement to develop the
cost estimate. We intend to provide guidance on how to estimate closure
costs for facilities with a standardized permit which have not already
developed a closure plan. (Once the facility has submitted a closure
plan, EPA proposes that the facility must update the closure cost
estimate within 30 days to reflect the information in the closure
plan). We have included in the docket to this rulemaking information
explaining more fully the approaches for estimating costs under options
4 and 5. We seek comments on the advisability of these options (and on
option 6 which we discuss more fully below) and on whether the use of
guidance for cost estimating in the absence of a closure plan is
advisable. If the commenter believes that we should require the use of
a particular cost estimating techniques in the standardized permit
regulations, we would like information on how to maintain current
costing methodologies in regulations. Since methodologies change over
time, this approach could obligate us to update the regulations
periodically and authorized states to adopt the updated language.
10. Financial Assurance for Closure
We designed the requirements proposed in Sec. 267.142(a)(1)-(4) to
ensure that the cost estimate which forms the basis for determining the
amount of the financial assurance instrument required in Sec. 267.143
would provide sufficient funds to close the facility properly at any
time. We want to ensure that there would be sufficient financial
resources to close the facility properly even in the event that you
enter bankruptcy. The requirements proposed in Sec. 267.143 specify the
mechanisms from which you can choose to demonstrate financial assurance
for closure obligations.
The proposed Sec. 267.143 provides you the same mechanisms that are
available to owners and operators of facilities operating under permits
currently issued under part 264. However, we have made modifications to
these requirements (from the analogous requirements in part 264) to
account for the particular circumstances of the standardized permit.
The differences between the requirements under Secs. 264.143 and
267.143 are discussed below.
Closure Trust Fund (Sec. 267.143(a)). Under the proposed
Sec. 267.143(a) the pay-in period for the closure trust fund for the
standardized permit facility would differ slightly from the requirement
for facilities with permits issued under part 264. Currently, if you
have a new facility seeking coverage under a part 264 permit, you must
make annual payments into the trust fund over the remaining life of
your facility, as estimated by your closure plan, or over the life of
the permit which is usually ten years, whichever is shorter. Under the
proposed standardized permit procedures, however, you would not have to
provide a closure plan as part of the initial permitting process.
Without the requirement for a closure plan as part of the initial
process, we needed a time period over which to compute the pay-in
period, and so are proposing a period of three years. We chose this
time period, which is shorter than the life of the permit as currently
allowed for individual permits under Sec. 264.143(a)(3), because the
current requirements in Sec. 264.143(a)(3) were selected to accommodate
types of operations, such as landfills, which would normally be
receiving waste over a period of years, with potentially increasing
closure costs over that time period. Conversely, we do not expect
facilities proposing to operate under the standardized permit to build
up their waste volumes, and the resulting closure costs, over time.
Moreover, the cost for closing a facility operating under the
standardized permit would not include the costs of ground water
monitoring, covers, or post-closure monitoring, so we would expect the
cost to be less than for many of the other types of facilities with
individual permits that are currently subject to Sec. 264.143.
Therefore, we anticipate that the burden of the three year pay-in
period will not be excessive. Further, we note that requiring a three
year pay-in period can preclude some potential problems that can arise
under the longer pay-in period. For example, a long pay-in period can
lead to insufficient funds being available at the time of closure. If
the financial condition of the permittee were to deteriorate toward the
beginning of the period, the owner or operator would not yet have
funded a substantial fraction of the trust, and the permitting
authority could be left with insufficient funds for closure in the
event of the permittee's failure to perform closure. Furthermore, the
three year period is consistent with the requirements for financial
assurance for commercial storers of PCB wastes. See
Sec. 761.65(g)(1)(i). EPA requests comment on the proposed use of three
years as the pay-in period for a trust fund in the absence of a closure
plan.
We are proposing to simplify the requirements for the pay-in period
for a trust fund for existing facilities seeking coverage under the
standardized permit and wishing to use a trust fund to demonstrate
financial assurance. An
[[Page 52221]]
existing facility whose trust fund's value is less than its closure
cost estimate when it receives a standardized permit would have 60 days
to increase the value of the trust to the amount of the closure cost
estimate. The requirement proposed in Sec. 267.143(a)(3) clarifies that
the 60 days will apply both to existing facilities under interim status
and under individual permits, regardless of when they obtain a
standardized permit. This means that it would effectively have a 60 day
pay-in period.
The Agency arrived at this proposed requirement by considering the
two classes of existing facilities that could use a trust fund with the
standardized permit: Those currently operating under interim status
(part 265 standards) and those operating under part 264 permits. A
facility operating under interim status and using a trust fund must
fully fund its trust by July 6, 2002, which is twenty years after the
effective date of the Sec. 265.143 standards. See Sec. 265.143(a)(3),
and 47 FR 15432. For such a facility, the deadline for a fully funded
trust under interim status would probably be close to the effective
date of their standardized permit. The effective date of a standardized
permit would be after we promulgate this proposed rule in final form,
and, in authorized States, after the State has adopted the rule and
begun to issue these permits. Therefore, EPA proposes a 60 day pay-in
period for an existing interim status facility seeking a standardized
permit and using a trust fund to demonstrate financial assurance. This
60 day period is the same deadline facing an interim status facility
that must increase the amount of a trust fund after the end of the pay-
in period.
A facility that already has an individual permit based on the
existing part 264 requirements must fully fund the trust over the term
of the initial permit (or over the remaining life of the facility,
whichever is shorter). See Sec. 264.143(a)(3). Thus a facility that
wishes to convert to a standardized permit rather than renew its
existing permit should already have funded its trust fully. A permitted
facility using a trust could also decide to convert to a standardized
permit before the normal end of its current permit's life by asking to
have its individual permit revoked and reissued as a standardized
permit. Under existing Sec. 264.143(a)(3), owners or operators must
make payments into the trust annually over the ``term of the initial
permit,'' or the remaining operating life of the facility, whichever is
shorter. This is the ``pay-in period'' for an existing permitted
facility. By terminating its permit early (in order to convert to the
standardized permit), the owner or operator in effect terminates the
pay-in period. After the pay-in period which would end at the end of
the life of the initial Part 264 permit, an owner or operator using a
trust must comply with existing Sec. 264.143(a)(6) and maintain within
60 days the value of the trust to at least the amount of the closure
cost estimate (or obtain other financial assurance). Therefore the 60
day requirement in the proposed standardized permit regulations is the
same as in the current 264 standards.
Surety Bonds (Sec. 267.143(b) and (c)). The proposed rule would
allow you to use surety bonds guaranteeing either payment or
performance as mechanisms for demonstrating compliance with proposed
Sec. 267.143(b) or (c) respectively. As in the existing part 264
subpart H standards, you must also establish a standby trust fund.
Letter of Credit (Sec. 267.143(d). The proposed regulations would
allow you to use an irrevocable standby letter of credit, and a standby
trust fund as specified in existing Sec. 264.143(d).
Closure Insurance (Sec. 267.143(e)). Under proposed
Sec. 267.143(e), we would allow you to use insurance as a mechanism for
demonstrating financial assurance for closure. The requirements of this
section reference the corresponding existing requirements in
Sec. 264.143(e).
Some companies which do not qualify for the financial test
(discussed more fully latter) for any or all of their obligations, have
sought to use captive insurance as a method of self insurance. These
companies can establish a pure captive insurer subsidiary to provide
insurance for the parent company's costs of closure, or third party
liability requirements. The pure captive insurance company provides
insurance for the parent, and the parent can have direct involvement
and influence over the insurance company's major operations such as
underwriting, claims management, and investment. We discuss captive
insurance in more detail in Section X B: Financial assurance.
Financial Test (Sec. 267.143(f)) and Corporate Guarantee
(Sec. 267.143(g)). The proposed regulation in Sec. 267.143(f) would
allow the use of a financial test by you or by a corporate guarantor as
currently provided in Sec. 264.143(f) though the tests proposed here
differ from those currently in effect in parts 264 and 265. We proposed
changes to the financial test on July 1, 1991 (56 FR 30201) for owners
and operators of treatment, storage and disposal facilities. In
addition, on October 12, 1994 (59 FR 51523) we proposed changes to the
domestic asset requirement for the RCRA Subtitle C financial test when
we proposed a financial test for private owners and operators of
municipal solid waste landfill facilities (MSWLFs). It is important to
understand how the proposed changes to the financial test could affect
the proposed standardized permit rule.
The proposed changes to the financial test would make the test less
available to firms more likely to enter bankruptcy. The test would do
this by changing the financial test ratios to make the test less
available to firms with large debts compared with their cash flow or
net worth. However, the proposed test allows firms that pass to assure
a higher level of obligations than the current RCRA Subtitle C
financial test. Under the current financial test, companies must have
tangible net worth at least six times the amount of the obligations
covered, and also at least $10 million. Firms that pass the proposed
test can assure an amount of obligations up to $10 million less than
their tangible net worth.
We anticipate that companies passing the proposed financial test
will be much more likely to cover all of their obligations than under
the current rule. This occurs because the additive requirement
(tangible net worth of at least $10 million more than the amount of
obligations covered) covers a larger amount of obligations that the six
times multiple of the current rule. With this in mind, we are seeking
public comment on not requiring a firm to prepare a closure cost
estimate for units covered by the standardized permit if it passes the
financial test and can cover all of its other obligations with the
financial test. By all of their other obligations, we mean to include
costs for liability, closure, post-closure care and corrective action
under RCRA Subtitle C; costs for closure, post-closure care, and, if
necessary, corrective action obligations for municipal solid waste
landfills under RCRA Subtitle D; closure costs for PCB storage
facilities; plugging and abandonment costs for Class I wells under the
UIC program; financial assurance obligations for underground storage
tanks; financial assurance for actions under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA); and
any other environmental obligations (see proposed
Sec. 267.143(f)(2)(i)(A)(1)). If such a company could no longer pass
the financial test, it would have to prepare a cost estimate and
provide a financial assurance mechanism through a third party.
We promulgated a final regulation establishing a financial test for
private
[[Page 52222]]
owners and operators of municipal solid waste landfill facilities April
10, 1998 (63 FR 17706). That financial test differs from the regulatory
text in the rule proposed for RCRA Subtitle C facilities. To assist the
reader in determining what the proposed financial test for the
standardized permit could look like if we were to adopt the test
proposed for Subtitle C and adopted for municipal solid waste landfill
facilities, we have included proposed regulatory text in this notice.
We could also determine that we would use the financial test currently
in existing Sec. 264.143(f), Sec. 264.147(f), and the associated
language for the instruments in Sec. 264.151(f) and (g) if we should
promulgate the standardized permit rule in final form before
promulgating revisions to the RCRA Subtitle C financial test.
In the record keeping and reporting requirements of today's
proposal we have proposed the requirements for a special report from
the firm's independent certified public accountant consistent with
those in existing Sec. 258.74(e)(2)(i)(C) rather than the existing
Sec. 264.143(f)(3)(i). Under the existing financial test for hazardous
waste facilities, we always require a special report from the firm's
independent certified public accountant (Sec. 264.143(f)(3)(i)), even
if the data in the chief financial officer's letter come directly from
the annual report. The proposed requirement (Sec. 267.143(f)(2)(i)(C))
would only require a special report from the independent certified
public accountant in instances where we cannot verify financial data in
the chief financial officer's letter from the firm's financial report.
This change could reduce the reporting burden for users of the
financial test whose submissions of information could be verified from
their audited financial statements, and eliminate for these companies
the expense of requiring a letter from the outside auditor. We are
interested in comments on the appropriateness of reducing this
reporting burden, whether this would also be appropriate for facilities
currently regulated under part 264 or 265, and whether this change
would significantly reduce the reporting burden and by how much.
Today's proposed regulatory language has some other differences
from the current RCRA Subtitle C test regulations. The first is that we
do not prescribe language for the chief financial officer's letter as
we currently do under Sec. 264.151(f). The advantage of this approach
would be the additional flexibility it provides to facilities that
could operate under the standardized permit and who would use the
financial test. Another advantage to this approach might be that
requiring standard language could make compliance easier, since the
chief financial officer would not have to choose the wording of the
letter. EPA could also promulgate a final regulation that includes the
language requirement similar or identical to that currently in
Sec. 264.151. We request information from States and the regulated
community on the need for specific language, or whether the current
arrangement used in the municipal solid waste landfill regulations
(Sec. 258.74), which does not specify the language of the letter, is
appropriate. Second, today's proposed language follows the model of the
existing part 258 regulations by giving a separate section for the
regulations governing the use of a corporate guarantee.
Use of Multiple Mechanisms. Under proposed Sec. 267.143(h) you
could utilize a combination of mechanisms at your facility. In the
proposed revisions to the RCRA Subtitle C financial test (56 FR 30201),
EPA proposed to allow the combination of the financial test with
another mechanism for demonstrating financial responsibility for
closure at a single location. We propose to allow this same flexibility
for facilities qualifying for the standardized permit.
Under proposed Sec. 267.143(i), if you have multiple facilities
with a standardized permit you would be able to use a single mechanism
for more than one of your facilities. This provides the same
flexibility that owners or operators of facilities with individual
permits or interim status facilities have under existing Secs. 264.143
and 265.143.
11. Post Closure Financial Responsibility
Because the proposed standardized permit rule would only be
available to facilities that can clean close, the proposed standardized
permit regulation does not anticipate a need for post-closure cost
estimates, or financial assurance for post-closure care. Similarly
there is no need for mechanisms for combining financial assurance for
closure and post-closure care. Therefore, the proposed regulations in
part 267 do not have provisions reflecting the existing requirements of
Sec. 264.144-146.
12. Liability Requirements
We are proposing to require financial assurance for third party
liability for sudden accidental occurrences. We propose that you have
and maintain liability coverage of at least $1 million per occurrence,
with an annual aggregate of at least $2 million exclusive of legal
costs (Sec. 267.147(a)). These proposed requirements are the same as
for facilities with individual permits, and apply to the facility or a
group of facilities. Thus, if the owner or operator of facilities with
individual permits had the required liability coverage for them, the
addition of facilities under the standardized permit would not increase
the dollar amount of the liability coverage.
The proposed mechanisms available for demonstrating financial
assurance for third party liability would be the same under the
standardized permit rule as for units covered by individual permits. In
this proposed rule, we have arranged the mechanisms in the same order
as they appear for closure, even though this is different from the
order currently in Sec. 264.147. We request comments on whether this
makes the regulation easier to follow, or if we should organize
proposed Sec. 267.147 in the same order as existing Sec. 264.147. The
mechanisms for third party liability would be a trust fund
(Sec. 267.147(a)(1), surety bond (Sec. 267.147(a)(2), letter of credit
(Sec. 267.147(a)(3), insurance (Sec. 267.147(a)(4), financial test
(Sec. 267.147(a)(5), or guarantee (Sec. 267.147(a)(6). Furthermore, we
would also allow the use of multiple mechanisms under proposed
Sec. 267.147(a)(7), as allowed under existing Sec. 264.147(a)(6).
As noted above, we are considering whether to disallow the use of
captive insurance as a mechanism for providing financial assurance for
closure. However, we believe that liability requirements are generally
better suited to the use of insurance. Insurance is a mechanism for
protecting from risk, or the probability that an unfortunate event may
occur. Closure is a certain event because an owner or operator (or the
permitting authority in the event of the permittee's bankruptcy) will
have to close its hazardous waste facility and so the risk only
involves the timing of the closure, and not whether it might occur.
Because the hazardous waste regulations are designed to protect human
health and the environment, a release from a facility that could affect
a third party is not a certainty, and in fact, there can be a low
probability of a facility having a release that could affect a third
party. We request comments on whether pure captive insurance should be
treated differently for third party liability where there is a risk of
an event occurring than for closure where the risk involves the timing
of an event that will occur.
We are proposing that the standardized permit would not be
available for land disposal units such as
[[Page 52223]]
surface impoundments, landfills, land treatment facilities, or disposal
miscellaneous units. Therefore, requirements for land disposal units
under existing Sec. 264.147(b) to maintain third party liability for
non-sudden accidental occurrences should not be necessary for
standardized permit units. The proposed regulation reserves
Sec. 267.147(b).
Because the proposed standardized permit is intended to rely upon
limited interaction between the permittee and the permitting agency, we
believe it would not be appropriate to include the provisions of
existing Sec. 264.147(c) and (d). These provisions, respectively, allow
the owner or operator to request a variance from the amounts required
in Sec. 264.147(a), or allow the Regional Administrator to require a
different amount. Thus, there are no corresponding provisions in the
proposed Sec. 264.147 and the corresponding paragraphs are reserved.
Along with the proposed changes to the financial test for closure,
we have previously proposed changes to the financial test for liability
coverage (56 FR 30201 and 59 FR 51523). Under the proposed test, we
expect that more owners and operators will be able to pass the
liability financial test than under the current financial test. We
expect that when we promulgate these tests in final form that they
would also apply to the standardized permit. We are publishing the
language of the proposed liability financial test here for your
convenience. If we promulgate the standardized permit rule in final
form before final promulgation of the revised RCRA Subtitle C financial
test, we may use the current RCRA Subtitle C financial test in the
final standardized permit rule.
13. Other Provisions of the Financial Requirements
We are proposing that the requirements in existing Sec. 264.148 to
notify the permitting authority in the event of a bankruptcy would
apply also to the standardized permit (see proposed Sec. 267.148). We
have also referenced this requirement in proposed Sec. 267.140(c).
Under existing Sec. 264.149, if your facility is in a state where
EPA administers the program but the state imposes its own financial
assurance mechanism, you may continue to use the state approved
mechanism. There are only three states where we administer the program,
and we do not expect that these states have their own mechanisms.
Therefore, we are not including an analogous provision, and have
reserved Sec. 267.149.
In the financial responsibility regulations covering facilities
with permits under part 264, States can assume responsibility for an
owner or operator's compliance with existing Secs. 264.143 and 147
(Sec. 264.150). We have included a similar provision (Sec. 267.150) in
this proposal, but request comment on whether such a provision is
appropriate. Do States in fact undertake such responsibilities, and
would they for holders of a standardized permit?
The proposed language of Secs. 267.143 and 267.147 references
existing Sec. 264.151, and would require the use of the language in
existing Sec. 264.151. Section 264.151 contains the exact wording of
the instruments used to demonstrate financial assurance. In light of
the substantial amount of text in existing Sec. 264.151, we have
decided not to propose the creation of a Sec. 267.151. This is similar
to our decision not to include the instrument language in the current
interim status standards in part 265. We request comments on suggested
changes to the language of Sec. 264.151 that we should make for
consistency with the proposed standardized permit rule.
J. Subpart I--Use and Management of Containers
The proposed standards for the use and management of containers in
this subpart of part 267 are similar to the existing provisions in
subpart I of part 264. However, we are proposing conforming changes to
reflect the standardized permit rather than the individual permit. We
also are proposing changes to make the requirements more readable. We
request comments on these changes, and whether additional modifications
are warranted.
1. Would This Subpart Apply to Me?
These proposed standards would apply to you if you own or operate a
facility that stores hazardous waste under a standardized permit,
except as provided in proposed Sec. 267.1(b). Note that, under existing
Secs. 261.7 and 261.33(c), if you empty a hazardous waste from a
container, the residue remaining in the container is not considered a
hazardous waste if the container is ``empty'' as defined in Sec. 261.7.
If the container is ``empty'' we are proposing that the management of
the container would be exempt from the requirements of this subpart.
2. What Standards Would Apply to the Containers?
We are proposing that the requirements of Sec. 267.171 would be the
same as standards currently found in Sec. 264.171. This provision would
require you, as the facility owner or operator, to transfer hazardous
waste from a leaking container to a container in good condition, or
otherwise manage the waste in a manner that complies with the proposed
part 267 requirements.
Proposed Sec. 267.171 would require that the container be made of
materials or lined with materials that will not react with the
hazardous wastes being stored. We are proposing this requirement, which
is the same as that in existing Sec. 264.172, to ensure that the
container is suitable for managing the wastes.
Proposed Sec. 267.171 would further require you to close (keep
covered) all containers that store hazardous waste except when
necessary to handle the waste, and that care be taken not to rupture
the container or somehow create a leak. This proposed provision is the
same as the existing Sec. 264.173 standards. Note that the U.S.
Department of Transportation regulations, including those in 49 CFR
173.28, govern the reuse of containers in transportation.
3. What Are the Proposed Inspection Requirements?
Section 267.172, as proposed, would require you to inspect at least
once a week to check for leaking containers. This proposed requirement
is the same as the current Sec. 264.174 provision. If you find a leak,
you would need to follow the proposed procedures in Secs. 267.15(c) and
267.171.
4. What Proposed Standards Apply to the Container Storage Area?
Section 267.173, of the proposed rule, specifies the design and
operation requirements of a system for containing any leaks, spills, or
precipitation. These requirements would apply if you are storing free
liquids in the containers. As proposed, they would also apply, even if
no free liquids are present, for F020, F021, F022, F023, F026, and F027
wastes. The containment system would need to contain 10 percent of the
volume of all the containers or the volume of the largest container,
whichever is greater. Also, you would need to prevent run-on to the
storage area unless the containment system is large enough to contain
that container volume and the run-on. You would need to remove any
spills or leaks as soon as possible to avoid overflowing the
containment system. These proposed provisions are the same as the
requirements in existing Sec. 264.175.
Note that if the collected material is a hazardous waste under part
261 of this chapter, we are proposing that you must
[[Page 52224]]
manage it as a hazardous waste in accordance with all applicable
requirements of parts 262 through 266 of this chapter. If the collected
material is discharged through a point source to waters of the United
States, it would be subject to the requirements of section 402 of the
Clean Water Act, as amended, under our proposed rule.
5. What Special Requirements Would I Need To Meet for Ignitable or
Reactive Waste?
Under proposed Sec. 267.174, we would require that you store
ignitable or reactive waste no closer than 50 feet from your facility's
property line. The general requirements proposed in Sec. 267.17(a)
provide additional requirements for ignitable or reactive wastes. This
proposed standard is the same as the provision currently in
Sec. 264.176.
6. What Special Requirements Would I Need To Meet for Incompatible
Wastes?
Under proposed Sec. 267.175, we would stipulate that you cannot
place incompatible wastes in the same container. This provision would
also apply to an unwashed container that previously held an
incompatible waste. The exception to this prohibition is found in
proposed Sec. 267.17(b), which would stipulate precautions that you
would need to take if you have to mix incompatible wastes.
Section 267.175, as proposed, would further require that you
physically separate incompatible wastes from other wastes and protect
them with barriers such as dikes, berms, or walls. The purpose of this
proposed section is to prevent fires, explosions, gaseous emissions,
leaching, or other discharge of hazardous waste or hazardous waste
constituents which could result from the mixing of incompatible waste
or materials if containers break or leak. All of these proposed
provisions are the same as the existing Sec. 264.177 requirements.
7. What Would I Need To Do When I Want To Stop Using the Containers?
Section 267.176, as proposed, would require clean closure of the
facility. This proposed requirement would require you to remove all
hazardous waste and residues and to decontaminate or remove all
components that came in contact with the hazardous wastes, including
soils. These proposed requirements are the same as the existing
provisions in Sec. 264.178. Under our proposal, unless you can
demonstrate, following Sec. 261.3(d), that the solid waste removed from
the containment system is not a hazardous waste, you would become a
generator of hazardous waste and would need to manage it in accordance
with all applicable requirements of parts 262 through 266 of this
chapter. This provision would apply to any solid waste you remove from
the container system during closure as well as during the operating
period.
8. What Air Emission Standards Are Proposed?
We are proposing that the air emission standards in Sec. 267.177 be
similar to those currently in Sec. 264.179. Under the proposed rule,
you would need to comply with the requirements of subparts AA, BB, and
CC of part 264. There is a one notable difference between proposed
Sec. 267.177 and the current Sec. 264.179. Section 267.177, as
proposed, would only allow the following control devices: thermal vapor
incinerator, catalytic vapor incinerator, flame, boiler, process
heater, condenser, and carbon absorption unit. This is because
performance testing and reporting is required in part 264 subpart AA
and BB to support alternative control devices. This requires close
interaction on the part of the facility owner/operator and the
permitting agency. Because this proposed rule is intended to reduce the
burdens of such interactions, we have chosen to limit the type of
control devices. We welcome public comment on this decision.
K. Subpart J--Tank Systems
We believe that most of the tank system standards in subpart J of
part 264 would be appropriate for tank units operating under a
standardized permit. However, some provisions in today's proposed tank
requirements are different from those in part 264. Today's proposal
would require secondary containment for all tank systems managing free
liquids, with no provisions for waivers. The waiver provision in the
part 264 standards requires significant work on the part of you, as the
facility owner or operator, to justify that secondary containment is
not necessary. It also requires that the permitting agency review the
waiver demonstration and determine its appropriateness. The close
review and exchange of materials taking place during the waiver process
do not fit the intent of the standardized permit. Part of our premise
in developing the standardized permit is that a high level of
interaction between the permittee and the permitting agency is not
necessary. In addition, our experience is that few owners or operators
have availed themselves of this waiver provision. We welcome public
comment on this topic.
We are not requiring integrity testing for tanks managing free
liquids and operating under a standardized permit because we would
require secondary containment. Under the existing part 264 tank
standards, we only require tanks that don't have secondary containment
to undergo annual integrity testing. Also, we are proposing that the
standardized permit only apply to above ground or on ground tanks (for
example, tanks raised off the ground or resting on a pad or the ground
surface). Therefore, as proposed, underground or in-ground tank systems
would not be eligible for a standardized permit. This is because we
would rely on inspections to ensure compliance with the standardized
permit. Underground and in-ground tank systems are inherently harder to
inspect than above ground or on ground tanks. We are soliciting
comments on the merits of excluding underground and in-ground tank
systems from obtaining standardized permits.
Finally, as explained above in the preamble for subpart G, you
would be required to clean close all units at the facility. We believe
that a properly designed, constructed, and operated tank system with
secondary containment should always be able to clean close with minimal
unforseen contingencies.
1. Would This Subpart Apply to Me?
Subpart J of part 267 would apply to you if you own or operate a
facility that treats or stores hazardous wastes in above ground or on
ground tanks under a standardized permit. We would, however, provide
exemptions from some requirements of subpart J for special situations.
Specifically, the requirement for secondary containment, as specified
in Sec. 267.195, would not apply to you if you have tanks that do not
contain free liquids and are inside of a building or for tanks or sumps
that you are using as secondary containment. All other tanks that
manage hazardous waste, whether it's a free liquid or not, would
require secondary containment.
2. What Are the Proposed Design and Construction Standards for New Tank
Systems or Components?
The proposed Sec. 267.191 provisions differs from existing
Sec. 264.192 requirements in several areas. First, under the proposed
standardized permitting process there would be no ``part B
application'' therefore we did not include any references to the part B
application in the proposed Sec. 267.191 standards. Under this section,
you would still be required to obtain a written assessment, reviewed
and certified by an independent, registered
[[Page 52225]]
professional engineer, attesting to the structural integrity and
acceptability of tank system. However, instead of requiring you to
submit this estimate to the Regional Administrator, this section would
require you to retain it at your facility. The assessment would be
required to show that the foundation, structural support, seams, and
connections are adequately designed and that the tank system has
sufficient structural strength to ensure that it will not collapse,
rupture or fail. The design and construction requirements in proposed
Sec. 267.191 would be the same as the current Sec. 264.192 provisions.
However, the proposed requirements in proposed Sec. 267.191 differ from
the part 264 standards in that facilities with underground tank systems
or components not be eligible for a standardized permit. Therefore, we
would not be carrying over the existing provisions in
Secs. 264.192(a)(4) and 264.192(c) in today's proposal. The Agency
invites comments on whether we should allow underground piping
connecting above ground or in-ground tank systems under a standardized
permit. The proposed regulations in the part 267 tank standards do not
allow any underground tank components, including piping. If, in the
final rule, the Agency chooses to include underground tanks, part 267
would include provision similar currently found in Sec. 264.192.
3. What Are the Proposed Handling and Inspection Requirements for New
Tank Systems?
Proposed Sec. 267.192 retains the same requirements as existing
Sec. 264.192(b). You would be required to follow these requirements
during the installation phase of the new tank system to ensure that the
integrity of the system is maintained.
4. What Testing Would Be Required?
As with existing Sec. 264.192(d), you would be required to test for
leaks as proposed in Sec. 267.193.
5. What Installation Requirements Would Be Required?
In addition to the general requirements proposed in Sec. 267.192
and Sec. 267.193 regarding installation, you would be required to
follow the specific installation requirements proposed in Sec. 267.194.
These are the same requirements found in existing 264.192(e), (f), and
(g).
6. What Are the Proposed Preventative Requirements for Containing a
Release?
The proposed Sec. 267.195 standards would require secondary
containment and a leak detection system for all tank systems (except
indoor tanks that do not contain free liquids.) Neither the age of the
tank nor the waste it contains would be taken into consideration when
deciding when a tank needs secondary containment; the secondary
containment requirement would apply to all new and existing tanks for
which you would be seeking a standardized permit. All proposed design,
installation, and operating requirements of Sec. 267.195 are identical
to the current provisions Sec. 264.193, except for the current part 264
requirement to submit a demonstration to the Director when the leak
detection and removal system cannot detect a leak within 24 hours of it
occurring. Instead, you would self-certify and document that a leak or
spill cannot be detected and/or removed within 24 hours. You would keep
this documentation on-site and make it available for review by the
permitting agency.
7. What Are the Proposed Devices for Secondary Containment and What Are
Their Design, Operating, and Installation Requirements?
Proposed Sec. 267.196 lists the specific devices that you would be
required to use in providing secondary containment, as well as the
design, operating, and installation requirements for each one. These
requirements are the same as those in existing Sec. 264.193 (d) and
(e).
8. What Are the Proposed Requirements for Ancillary Equipment?
The proposed requirements for ancillary equipment in Sec. 267.197
are the same as the existing provisions in Sec. 264.193 (f). We have
retained the requirement for secondary containment for all ancillary
equipment, such as piping, valves and pumps. We have also retained the
exemption from secondary containment for four particular situations.
9. What Are the Proposed General Operating Requirements for Tank
Systems?
The proposed requirements in Sec. 267.198 are identical to those
currently in Sec. 264.194. This section stipulates that you manage your
tanks to prevent the tank system from rupturing, leaking, corroding, or
failing in any manner. Also, proposed Sec. 267.198 specifies controls
and practices for preventing spills and overflows from occurring. It
includes spill prevention controls, overfill prevention controls, and
the maintenance of freeboard in uncovered tanks.
10. What Are the Proposed Inspection Requirements?
The inspection requirements of proposed Sec. 267.199 are the same
as current provisions in Sec. 264.195, noting, however, that today's
proposed part 267 standards apply to above ground tank systems only.
You would be required to inspect your tank system daily to detect
corrosion or releases and to check data from monitoring and leak
detection equipment. These provisions would also require you to inspect
any cathodic protection systems on a regular schedule. Note that
proposed Sec. 267.15(c) would require you to fix any deterioration or
malfunction that you find. Further, proposed Sec. 267.200 would require
you to notify the Director within 24 hours of confirming a leak, and 40
CFR part 302 and part 355 may require you to notify the National
Response Center or state and local emergency responders of a release.
You would be required to document all inspections in your facility's
operating record.
11. What Would I Do in Case of a Leak or a Spill?
Proposed Sec. 267.200 specifies the procedures you would be
required to follow in the event of a leak or spill from a tank system
or secondary containment system, or if a tank system or secondary
containment system is unfit for use. The proposed Sec. 267.200
provisions are similar to the current requirements found in
Sec. 264.196 with a few modifications. We did not propose in
Sec. 267.200 the current provisions of Sec. 264.196 related to releases
from a tank system without secondary containment because all tank
systems operating under a standardized permit would be required to have
secondary containment.
The proposed Sec. 267.200 provisions require that, in the case of a
leak or a spill you would be required to immediately remove the tank
systems or secondary containment systems from service. These provisions
also identify the steps you would be required to take to stop the flow
of hazardous waste and find the source of the release, and to remove
the released waste within 24 hours. You would have to report any
releases to the Director within 24 hours of detection. We have included
in this section the same exception that is currently available in
Sec. 264.196 for reporting small releases that you clean up quickly.
The proposed Sec. 267.200 provisions would require you to submit a more
detailed report on any release to the environment to the Director
within 30 days of the release. This section would also require you to
close the tank
[[Page 52226]]
system unless you satisfy specified repair requirements. Any major
repairs must be certified by an independent, qualified, registered,
professional engineer, in accordance with Sec. 270.11(d), before you
return the tank system to service.
12. What Would I Do When I Stop Operating the Tank System?
When you stop operating the tank system you would be required to
clean close it. The proposed Sec. 267.201 requirements differ from
Sec. 264.197 standards in two important areas. As stated earlier, we
are not proposing to allow any waivers from secondary containment for
tank systems operating under a standardized permit. Therefore, we would
not carry over the existing Sec. 264.197 provisions for closing a tank
system that does not have secondary containment to proposed
Sec. 267.201. Another important difference is that if you cannot clean
close a tank system, you would be required to close it as a landfill
under part 264. Therefore, you would have to submit a RCRA part B
application described in Sec. 270.14 and follow the RCRA individual
permitting process to obtain a post-closure permit.
13. What Are the Proposed Special Requirements for Ignitable or
Reactive Waste?
The proposed Sec. 267.202 provisions are the same as the existing
Sec. 264.198 standards. This section would require special handling of
ignitable or reactive wastes before you can store them in tanks. The
section would require that you: (1) Manage the wastes so that they are
no longer ignitable or reactive (before or after being placed in the
tank); (2) store or treat the waste to prevent the waste from igniting
or reacting; or (3) use the tank system strictly for emergencies.
Additionally, you would be required to adhere to all requirements for
maintenance of protective distances as specified in the National Fire
Protection Association's ``Flammable and Combustible Liquids Code.''
14. What Are the Proposed Special Requirements for Incompatible Wastes?
Proposed Sec. 267.203 stipulates, as does existing Sec. 264.199,
that you could not place incompatible wastes in the same tank system,
or in a tank system that previously held an incompatible waste and has
not been decontaminated, unless you follow the provisions proposed in
Sec. 267.17(b). Proposed Sec. 267.17(b) specifies precautions that you
would be required to take if you have to store incompatible wastes in
the same tank system.
15. What Air Emission Standards Are Proposed?
Proposed Sec. 267.204 contains similar requirements to those
currently in Sec. 264.200 for complying with subparts AA, BB, and CC of
part 264 of this chapter. There is one notable difference between
proposed Sec. 267.204 and existing Sec. 264.200. Proposed Sec. 267.204
only allows the following control devices: thermal vapor incinerator,
catalytic vapor incinerator, flame, boiler, process heater, condenser,
and carbon absorption unit. This is because performance testing and
reporting is required in part 264 subpart AA and BB to support
alternative control devices. This requires close interaction on the
part of the facility owner/operator and the permitting agency, which is
not appropriate for the standardized permit.
L. Subpart DD--Containment Buildings
The Agency is proposing to adopt most of the design and operating
requirements for containment buildings in part 264 directly into the
standardized permit standards of part 267. However, we are proposing
changes to several of the existing part 264 requirements as we tailor
the analogous part 267 requirements to the standardized permit. First,
containment buildings that would be managing free liquids would need to
have secondary containment measures in place. You would not be allowed
to delay the installation of secondary containment measures. As with
the secondary containment requirement for tanks, we believe that the
part 264 secondary containment waiver demonstration and its subsequent
review by the permitting agency does not fit with the intent of the
standardized permit. We are, however, proposing to retain the provision
that allows you to request a waiver if the only liquids in the building
are the result of required dust suppression measures. Another change
from the part 264 standards that we are proposing would be to require
clean closure of containment buildings. We believe if your containment
buildings have secondary containment, and they are properly designed,
constructed and operated, you should be able to clean close them with
minimal problems.
1. Would This Subpart Apply to me?
This subpart would apply to you if you own or operate a facility
that stores or treats hazardous wastes on-site in containment
buildings. As with the current requirements in subpart DD of part 264,
if the unit was designed and operated according to proposed
Sec. 267.1101, you would not be subject to the land disposal
restrictions in RCRA section 3004(k).
2. What Are the Proposed Design and Operating Standards for Containment
Buildings?
Proposed Sec. 267.1101 stipulates design and operating standards
similar to those currently in Sec. 264.1101. We are proposing specific
design requirements for floor, walls, doors, and windows, as well as
for the primary barrier which would come in contact with the waste.
3. What Additional Design and Operating Standards Would Apply if
Liquids Will Be in my Containment Building?
If you plan to use your containment building to treat or store
hazardous wastes that contain free liquids, then the primary barrier
would be required to be able to prevent the migration of hazardous
constituents into the barrier. You could accomplish this, for example,
by putting a geomembrane on top of a concrete surface. You would also
be required to install a secondary containment system. The function of
the secondary containment would be to allow the use of a leak detection
system capable of detecting leaks in the primary barrier, and to
collect the liquids that could penetrate the primary barrier. Proposed
Sec. 267.1102 stipulates the same design requirements for the secondary
containment system as does existing Sec. 264.1101. This proposed
section would also require a certification by a qualified registered
professional engineer that the unit meets all design and operating
requirements.
The existing Sec. 264.1101 provisions allow you to delay
implementation of secondary containment for existing containment
buildings and describe the process for granting the delay. We are not
proposing such a delay for containment buildings under a standardized
permit. We believe that, in the interest of streamlining the
standardized permitting process, the permitting agency should not have
to review any demonstrations. The standardized permitting process does
not provide for an iterative process of submitting a demonstration for
a waiver, and responding to comments.
4. What Are the Proposed Other Requirements To Prevent Releases?
The proposed Sec. 267.1103 would require you to use certain
controls and practices to make certain any hazardous waste stored in
your containment building does not leave the building. These are the
same requirements currently in Sec. 264.1101(c). These requirements
include maintenance of
[[Page 52227]]
the primary barrier and of the height of the waste in relation to the
wall height. Also, you would be required to take measures to prevent
tracking of the waste by personnel and equipment, including
decontamination procedures. Finally, this section would require methods
of containing fugitive emissions so that you could meet a ``no visible
emissions'' standard.
5. What Would I Do if I Detect a Release?
The proposed Sec. 267.1106 provisions specify procedures for
responding to releases of hazardous waste that are the same as those
currently in Sec. 264.1101(c)(3). These procedures would require you to
enter all such incidents in your facility's operating record, and to
notify the Regional Administrator both of the release and of the
repairs.
6. What Would I Do if My Containment Building Contains Areas Both With
and Without Secondary Containment?
Proposed Sec. 267.1105 addresses those buildings with areas where
you would manage wastes with free liquids and areas where you either
would manage wastes without free liquids or you would have a waiver
from secondary containment requirements in proposed 267.1104. For
buildings with this type of ``mixed use'', you could construct a
portion without secondary containment. The requirements in proposed
Sec. 267.1105, which are the same as those currently in
Sec. 264.1101(d), and are designed to prevent migration of the wastes
that require secondary containment to the areas that do not.
7. Could a Containment Building Be Considered Secondary Containment for
Other Units?
Proposed Sec. 267.1107 addresses the specific instance of a tank
being inside of a containment building. In this situation, the
containment building would be the secondary containment system for the
tank if it meets the proposed requirements of Sec. 267.1107. This
provision is the same as currently in Sec. 264.1101(b)(3)(iii).
8. How Would I Obtain a Waiver From Secondary Containment Requirements?
Proposed Sec. 267.1104 would allow for a waiver from secondary
containment if the only liquids in the building were a result of
required dust suppression and you could assure the containment of
liquids and wastes without secondary containment. This would be the
only waiver from secondary containment. We are providing it because we
believe you could easily make the demonstration without an iterative
process with the permitting agency. This is the same waiver allowed
currently in Sec. 264.1101(e).
9. What Would I Do When I Stop Operating the Containment Building?
The proposed Sec. 267.1108 closure provisions would require the
clean closure of containment buildings. This is similar to the proposed
standardized permit requirements for container storage areas and tanks.
During closure of the containment building, you would have to remove or
decontaminate all waste residues from subsoils and containment system
components. You should have no problem meeting clean closure
requirements for a properly designed and operated containment building.
However, if for some reason you cannot clean close your facility, you
would be required to submit a part B application for an individual
post-closure care permit for closure as a landfill. We discussed this
before in more detail in Section VII H: Subpart G--Closure.
VIII. Conforming Permit Changes to Part 270
A. Overview of Proposed Part 270 Changes
We are proposing to modify the hazardous waste permit program
requirements by adding a new type of permit: The standardized permit.
The hazardous waste permit program requirements are in part 270. This
part of the RCRA hazardous waste regulations contains specific
requirements for permit applications, permit conditions, changes to
permits, expiration and continuation of permits, interim status, and
special forms of permits.
Under the existing hazardous waste permitting system, facility
owners and operators must obtain an ``individual'' permit based on
site-specific information in order to manage hazardous waste. We
briefly described the existing individual permitting system in Section
I D 1: What are the steps in Obtaining an Individual Permit?. As
previously discussed, we propose allowing standardized permits for
certain types of hazardous waste management activities: The storage and
non-thermal treatment of hazardous waste in tanks, containers, and
containment buildings at facilities that generate the waste. We are
proposing to add Sec. 270.67 to part 270 subpart F and to add part 270
subpart I that would allow a special form of permit, a RCRA
standardized permit.
We request comment on the changed sections and added sections of
part 270 rules. As noted previously, however, we are not reopening the
existing regulations to public comment, except those provisions
explicitly modified by this proposal.
B. Specific Changes Proposed for Part 270
We are proposing certain ancillary changes to other sections of
part 270 to ensure we have fully incorporated the standardized permit
into the existing regulations. These include: Proposed changes to
Sec. 270.1 (b) Overview of the RCRA Permit Program, Sec. 270.2
Definitions, Sec. 270.10(a) Applying for a permit, Sec. 270.10(h)
Reapplying for a permit, Sec. 270.40 (a) and (b) Transfer of Permits,
Sec. 270.41 Modify or revoking and reissuing permits, and Sec. 270.51
Continuation of expiring Permits.
1. Overview of the RCRA Program
We are proposing to add a sentence to Sec. 270.1(b) that briefly
mentions that a facility that treats or stores hazardous waste on-site
could be eligible for a standardized permit.
2. Definitions
We are proposing to add ``standardized permit'' to the definition
list in Sec. 270.2. This definition for standardized permit is the same
definition that we are proposing to add to part 124: ``Standardized
permit means a RCRA permit authorizing management of hazardous waste
under part 124 subpart G and part 270 subpart I. The standardized
permit may have two parts: A uniform portion issued in all cases and a
supplemental portion issued at the Director's discretion.'' We are also
proposing to modify the definition of ``permit'' to include a
standardized permit.
3. Permit Applications
We are proposing to modify Sec. 270.10(a) to make it more readable
and to add a sentence to the Permit application section clarifying that
the procedures for application, and issuance of a standardized permit
are in part 124 subpart G and part 270 subpart I. However, as noted in
Table 5: Permit program comparison, many of the current part 270 permit
administration requirements would still be applicable for the
standardized permit.
4. Permit Reapplication
We are proposing to modify Sec. 270.10(h) to make it more readable
and to take into account the standardized permit. If your facility is
operating under an individual permit and
[[Page 52228]]
manages waste on-site in tanks, containers, or containment buildings,
then you could meet the reapplication requirement for these units by
submitting a notice of intent to operate under a standardized permit at
least 180 days prior to expiration of your individual permit. Likewise,
if your facility is operating under a standardized permit, you would
submit a notice of intent at least 180 days before the expiration date
of the permit.
5. Transfer of Permits
We are proposing to make changes to Sec. 270.40 (b) that would
allow transfer of a standardized permit to a new owner or operator. The
change to this paragraph adds applicable reference to Secs. 270.320 and
124.212. A transfer of a standardized permit to a new owner or operator
would qualify as a routine permit modification and would follow
appropriate procedures for this category of standardized permit
modification.
6. Modification or Revocation and Reissuance of Permits
We are proposing to make two changes to Sec. 270.41. First, we
would add a reference to Sec. 270.320, which includes the requirements
for modifying standardized permits. Also, we are proposing a new
paragraph (b)(3) which would specify another reason for revocation and
reissuance of a permit. This new paragraph would apply where a facility
owner or operator with an individual RCRA permit wishes to operate
under a standardized permit. This was discussed earlier in Section III
B: How would I Switch from an Individual Permit to a Standardized
Permit. Under this situation, you would request revocation of the
individual permit and issuance of a standardized permit. The causes for
modification (Sec. 270.41(a)), modification or revocation and
reissuance (Sec. 270.41(b)), and facility siting (Sec. 270.41(c)) that
apply to an individual permit would also apply to a standardized
permit.
7. Continuation of Expiring Permits
We are proposing to modify Sec. 270.51 by adding a new subsection
(e) which discusses continuation of expiring standardized permits. This
new paragraph is similar to the requirements in existing Sec. 270.51(a)
except we have replaced references to the permit, permit application,
and Secs. 270.14 through 270.29 citations with references to the
standardized permit, notice of intent, and part 124 as appropriate. We
are proposing this provision under the authority of the Administrative
Procedures Act (APA).
We are also proposing to add paragraph (2) to this subsection
because we want to give you the opportunity to continue to operate
under an existing permit if you submit an individual permit application
following the Regional Administrator's decision that you are not
eligible for a standardized permit.
Under this paragraph, you would be able to continue to operate by
submitting an application for an individual permit within 60 days of
the Director giving you notice of your ineligibility for the
standardized permit. This would be the case even if the Director
provides the notice after your previous permit has expired. Under this
proposed scheme, as long as your reapplication for a standardized
permit is timely, you would qualify under the APA and Sec. 270.51 for
an administrative continuance of the permit. We view the later
reapplication for an individual permit as simply a part of the ongoing
reapplication process.
8. Standardized Permit
As discussed above in Section I C: What is the Agency's Proposal,
we are proposing to add a new type of permit (e.g. ``standardized
permit'') to part 270 subpart F: Special Forms of Permits. Section
270.67 contains the general statement allowing the permitting authority
the ability to issue standardized permits.
IX. RCRA Standardized Permits
A. General Information About Proposed Standardized Permits
In proposed Secs. 270.250 and 270.255, we describe what a proposed
standardized permit is and who would be eligible for one. This has been
discussed earlier in Section I C: What is the Agency's Proposal.
Although proposed regulatory language on these two topic is already in
part 124 and 267, we have repeated these requirements in part 270 to
give Subpart I better context.
In proposed Sec. 270.260, we describe what sections and subparts of
part 270 would be applicable to standardized permits. Table 5 offers a
comparison of the hazardous waste permit program provisions of part 270
that are applicable to individual permits and proposed standardized
permits. Most of the part 270 requirements applicable to individual
permits would also be applicable to standardized permits except where
noted in Table 4 and proposed Sec. 270.260.
Table 5.--Comparison of the Provisions of the Individual Permit Program
and the Proposed Standardized Permit Program
------------------------------------------------------------------------
Proposed
Individual standardized
permits permits
------------------------------------------------------------------------
General Information:
Definitions.......................
Consideration under Federal laws..
Effect of permit..................
Noncompliance and reporting
program by the Director..........
Permit Application:
General application requirements..
Special form of permit procedures
specific to standardized permits.
Confidentiality of information....
Signatories on permit application
and reports......................
Contents of part A of permit
application......................
Contents of Part B of permit
application submitted............
Permit information kept at
facility.........................
Permit Denial.....................
Permit Conditions:
Conditions Applicable to all
permits..........................
Requirements for recording and
reporting of monitoring results..
Establishing permit conditions....
Schedule of compliance............
[[Page 52229]]
Changes to Permits:
Transfer of permits...............
Modification or revocation and
reissuance of permits............
Permit modification requirements..
Special modification requirements
for standardized permits.........
Termination of permits............
Expiration and Continuation of
Permits:
Duration of permits...............
Continuation of expiring permits..
Interim Status:
Qualifying for interim status.....
Operation during interim status...
Changes during interim status.....
Termination of interim status.....
------------------------------------------------------------------------
B. What Information Would I Need to Submit to the Permitting Agency to
Support My Standardized Permit Application?
We are proposing that you submit certain information to the
permitting authority. Under proposed Sec. 270.275, you would submit
with the notice of intent: (1) The part A information required by
Sec. 270.13, (2) A meeting summary and other materials required by
Sec. 124.31, (3) Documentation of compliance with the location
standards of Sec. 267.18 and Sec. 270.14(b)(11), (4) Information that
allows the Director to carry out our obligations under other Federal
laws as required by Sec. 270.3, (5) Solid waste management unit
information Sec. 270.14(d), and (6) A certification meeting the
requirements of proposed Sec. 270.280.
1. RCRA Part A Application Information
Section 270.275(a) would require you to submit the information
required by Sec. 270.13. This information is the general Part A
application information required currently from all facility owners or
operators seeking a RCRA individual permit. The Part A information
includes: (a) General information on the hazardous waste management
activity requiring a permit, the name and mailing address of your
facility along with its latitude and longitude, (b) SIC codes that best
reflect the products or services your facility provides, (c) the
operator's name, address, phone number, and the ownership status of the
facility, (d) the owner's name , address, and phone number, (e) whether
your facility is located on Indian lands, (f) an indication of whether
your facility is new or existing, (g) for existing facilities, a scale
drawing showing past, present and future waste management areas along
with photographs clearly delineating waste management structures, (h) a
description of the processes you use to manage the waste, (i) a
specification of the hazardous waste you treat or store at the
facility, (j) an estimate of volumes of hazardous waste your facility
manages annually, (k) a listing of all permits approved or applied for
including federal and state Permits, (l) a topographic map which
extends at least 1 mile beyond the facility boundary in all directions
and indicates the location of the facility, the waste management areas,
surface waters, and drinking water wells, and (m) a description of
nature of the business. We published a document, RCRA Part A Permit
Application (EPA form 8700-23 (October 1999), which describes the Part
A application in detail and includes instructions for filling out the
application form. You would be able to comply with proposed
Sec. 270.275(a) requirements by attaching a completed EPA Form 8700-23
or State equivalent form to the notice of intent to be covered by the
standardized permit.
2. Preapplication Meeting Summary
Proposed Sec. 270.275(b) would require you to submit a copy of the
meeting summary and ancillary materials required by Sec. 124.31. This
is the pre-application meeting that you host with the community before
submitting a Notice of Intent. This meeting is also required if you are
seeking an individual RCRA hazardous waste permit. As discussed above
in Section III A 1: Conduct a pre-application meeting with the
community, the meeting should provide an informal occasion for you and
the public to share ideas, educate each other, and start building the
framework for a working relationship. We encourage you to address
topics such as: the type of facility, the location, the types of waste
generated and managed, and waste minimization and pollution control
measures. You would submit a summary of the meeting, along with a list
of the attendees and their addresses, and copies of any comments or
materials submitted at the meeting.
3. Compliance With Location Standards
We are proposing under Sec. 270.275(c), that you submit
documentation that your facility is in compliance with the location
standards described in Sec. 267.18 and Sec. 270.14(b)(11). We believe
that the location of a facility is an important site-specific aspect of
safe waste management. Therefore, we propose to continue to require the
submittal of the documentation of compliance with the location
standards. This documentation would include several analyses.
First, if you have a new facility, you would have to determine the
applicability of the seismic standard by checking if your facility is
in a political jurisdiction listed in the regulations at appendix VI of
part 264. The demonstration should show no recent faults are present
within 3000 feet of the facility. If you find evidence of a recent
fault, then your demonstration would need to show that no fault exists
within 200 feet of an area where you are going to manage waste.
Second, you (whether your facility is new or already existing)
would need to determine whether your facility is located in a 100-year
floodplain. If your facility is in a 100-year floodplain, you would
provide information on engineered structures which are designed to
prevent washout or emergency procedures to remove hazardous waste to
safety prior to flooding.
[[Page 52230]]
4. Compliance With Other Federal laws
We are proposing in Sec. 270.275(d) that you submit information
necessary for the Regional Administrator to carry out his/her duties
under other federal laws as required by existing Sec. 270.3. This
requirement is similar to the provision found in Sec. 270.14(b)(20).
Specifically, the Regional Administrator would need to meet various
obligations under several Federal laws: the Wild and Scenic Rivers Act.
16 U.S.C. 1273 et. seq., the National Historic Preservation Act of
1966. 16 U.S.C. 470 et seq., the Endangered Species Act. 16 U.S.C. 1531
et seq., the Coastal Zone Management Act. 16 U.S.C. 1451 et seq., and
the Fish and Wildlife Coordination Act. 16 U.S.C. 611 et seq. You
should discuss with the Regional Administrator the specific information
that you would need to submit with your notice of intent for him/her to
meet the obligations of these Federal laws. Failure to submit this
information could either significantly delay the issuance of the
standardized permit or result in denying the standardized permit and
requiring you to obtain an individual RCRA permit.
5. Solid Waste Management Units
Under current regulations in Sec. 270.14(d), permit applicants must
include certain information about solid waste management units in their
permit applications. Under the approach we are proposing today, you
would need to submit this information to the permitting agency. As
discussed in Section VII G: Subpart F--Releases from Solid Waste
Management Units, corrective action requirements depend on site
specific circumstances. The information that would be required to be
submitted on solid waste management units includes: (1) The location of
the unit on the facility topographic map; (2) a designation of the type
of unit (e.g., storage, treatment, disposal); (3) a description of the
general dimensions and structure of the unit, with any available
drawings; (4) the dates over which the unit was operated; (5) to the
extent available, a list of the types of wastes that have been managed
in the unit; and (6) all available information pertaining to any
releases of hazardous wastes or hazardous constituents from the unit.
We would use this information to make decisions about the specific
types of corrective actions, if any, that might be necessary to protect
human health and the environment at your facility.
We believe that most of the facilities which would operate under a
standardized permit are currently operating under RCRA interim status
or an individual RCRA permit, and so would have already completed a
RCRA Facility Assessment. Therefore, you should have this information
available for all solid waste management units at your facility. In
situations where you do not have this information available when you
apply for a standardized permit, we will either develop the information
(e.g., by conducting a RCRA Facility Assessment) or may require you to
develop and submit it prior to issuing your permit.
6. Certification of Compliance With Proposed Part 267 Requirements
Proposed Sec. 270.275(f) would require you to submit a
certification meeting the requirements of proposed Sec. 270.280.
Submittal of this certification would put you on record that you
understand your obligation to comply with all the proposed requirements
of part 267.
C. What Are the Proposed Certification Requirements?
1. Certification of Compliance
Proposed Sec. 270.280 would require you to certify that your
facility is either in compliance with all applicable proposed
requirements of part 267 or would come into compliance with all
applicable requirements. You would also certify that you would continue
to remain in compliance with proposed part 267 during the term of your
permit. The Resource Conservation and Recovery Act (RCRA) provides for
severe penalties for submitting false information on application forms.
If you knowingly submit false information or make a false
representation you would be subject to significant monetary penalties
and possible imprisonment. The proposed certification that you would be
in compliance with proposed part 267 requirements would apply to new
facilities and existing facilities currently operating under interim
status or an individual RCRA permit. Your certification would be based
on an internal audit of your facility's operations. You would submit
the certification of compliance along with a copy of the audit to the
Director.
We are aware that the level of detail in compliance audits can
range from the very general to the very specific. Although we don't
expect the audit reports to consist of only a few pages of findings,
they should not involve extensive documentation. The audits should be
comprehensive and the reports should include supporting materials such
as completed audit checklists. We expect to issue guidance on audit
reporting concurrent with issuance of the final rule.
We are asking for public comments on the benefits of such an audit
and whether the audit should be performed by an independent third
party. Our current proposal allows the facility owner or operator to
perform the compliance audit.
2. Certification of Availability of Information
Proposed Sec. 270.280 also would require you to certify that the
information required by proposed Secs. 270.290-270.315 would be
available at your facility for review by the public and the permitting
authority. This would be a major departure from the existing RCRA
permitting program. Under the proposed standardized permit, you would
not have to submit most of the information contained in individual RCRA
permit Part B applications currently required by Sec. 270.14. Instead
of submitting detailed Part B type information to the permitting
authority, you would retain this information on-site at your facility.
Furthermore, you would certify when submitting the notice of intent to
be covered by a standardized permit that the Part B type information
would be available for on-site for review by the public and the
permitting agency.
As previously mentioned, we are not proposing to require you to
submit the waste analysis plan with your notice of intent because of
the relatively simple waste management practices that take place at the
proposed type of facilities eligible for a standardized permit. We do
not feel that it would be necessary for you to submit the waste
analysis plan with the notice of intent or for the permitting agency to
review the waste analysis plan prior to permit issuance. However, we
are interested in the public's views on the submittal of the waste
analysis plan. Specifically, are there waste management situations that
may occur at an on-site hazardous waste treatment or storage facility
that warrant the review of the waste analysis plan prior to permitting
the facility? For example, does a waste analysis plan for a large
facility with many different waste streams warrant prior review? We
encourage the public to provide detailed descriptions of any situation
that they are aware of in their comments to us.
3. What Happens if my Facility Is Not in Compliance With the Proposed
Part 267 Requirements at the Time I Submit my Notice of Intent?
Your standardized permit would not be issued until you are in
compliance with proposed part 267 requirements. If
[[Page 52231]]
your facility is not in compliance with applicable part 267
requirements when you submit your notice of intent, you would submit a
certification stating that your facility would come into compliance and
provide a schedule detailing when your facility would achieve
compliance with applicable requirements. Your suggested schedule would
be required to meet the requirements of existing Sec. 270.33 and
include an enforceable sequence of actions with specific milestones.
The milestones should clearly delineate when compliance would be
attained for each proposed part 267 requirement that your facility
would currently not be in compliance with. Delay in coming into
compliance with applicable regulations would delay issuance of the
standardized permit and could be a reason for the Director to extend
the 120 day time period for making a draft permit decision (see Section
IV: Issuing a Standardized Permit). A poor compliance history could
also contribute to a Director's decision to not allow coverage under
the standardized permit.
D. What Information Would Be Required To Be Kept at my Facility?
We are proposing that information that you would normally submit to
the permitting agency in a Part B permit application be kept at your
facility. The specific information that you would keep at your facility
would be based on the general and specific Part B permit application
requirements currently found in Secs. 270.14-270.27.
We are proposing that you keep this information at the facility
(and make it available for review by agency inspectors and the public)
instead of submitting it to the permitting agency. We expect that you
would consolidate the information in one area at the facility to the
extent practicable to facilitate access. Maintaining the information
on-site would streamline the administrative permitting process and
should shorten the time required to obtain a RCRA permit, without
lessening the environmental protection provided by the permit. There
could be some situations where people in the community may need special
access to the information (i.e., beyond having it available on-site).
For example, there could be facility safety issues that necessitate the
information being kept at an off-site location. To address these
situations, we propose to apply the information repository requirements
codified in existing Secs. 124.33 and 270.30(m) to standardized
permits. In other words, the permitting agency could require you to set
up and maintain an information repository, and keep it up to date with
information relevant to the standardized permit. Although you could
initially choose the location, the Director could override your choice.
The Director would have final say in where the repository is
established and could require it to be located at an off-site location,
such as a public library. We would not require that the information be
maintained off-site in all cases. As discussed in Section I: Overview
and Background, waste management activities at facilities eligible for
the standardized permit have traditionally posed relatively less risk
than other types of management activities, so we anticipate that people
in nearby communities would generally not object to going to the
facility to review the information.
1. General Facility Information
The proposed requirements in Sec. 270.290 are the same as the
existing Sec. 270.14(b) requirements with minor exceptions. We believe
that it is appropriate to clearly articulate the information
requirements with which facility owners or operators would have to
comply. Therefore, we repeat many of the general information
requirements of existing Sec. 270.14(b) verbatim in these proposed
Sec. 270.290 requirements. We made minor changes in the requirements to
make appropriate citation changes and for readability reasons. Existing
part 264 citations were in most cases changed to part 267 citations.
You will notice that there is no parallel reference in proposed
paragraph Sec. 270.290(c) to existing Sec. 264.13(c) as there is in
existing Sec. 270.14(b)(3) because Sec. 264.13(c) is applicable to
facilities treating or storing waste generated off-site. As discussed
previously, the proposed standardized permit is only applicable to on-
site facilities. Also, we did not include several of the inspection
schedules currently required by Sec. 270.14(b)(5) in proposed
Sec. 270.290(e) because they are for units not eligible for the
proposed standardized permit (e.g. surface impoundments, landfills,
waste piles, land treatment unit, and miscellaneous units). In
addition, you would be required to submit the facility location
information currently required by Sec. 270.14(b)(11) with your Notice
of Intent. Therefore, we are proposing to reserve Sec. 270.290(k) in
order to maintain the parallel structure between this section and
existing Sec. 270.14(b). We have omitted several of the regulatory
citations in existing Sec. 270.14(b)(13) from proposed Sec. 270.290(m)
because they are for units not eligible for the proposed standardized
permit. In addition, we have omitted references and regulatory
citations to the post-closure plan currently found in
Sec. 270.14(b)(13) from proposed Sec. 270.290(m) because the post-
closure plan would no longer be applicable. As discussed above in
Section VII H: Subpart G--Closure, all units that receive a
standardized permit would be required to either clean close or apply
for an individual RCRA post-closure permit. Since existing
Sec. 270.14(b)(14) refers to disposal units, which would not be
eligible for a proposed standardized permit, we have not carried over
this requirement and have reserved Sec. 270.290(n) to maintain a
parallel regulatory structure. We have modified the proposed regulatory
text in Sec. 270.290(o) from the text in existing Sec. 270.14(b)(15).
This is because the last phrase referring to the Part B in paragraph
Sec. 270.14(b)(15) would not be applicable to proposed standardized
permits. Since existing Sec. 270.14(b)(16) refers to post-closure cost
estimates, there is no parallel requirement proposed for standardized
permits. Therefore, Sec. 270.290(p) has been reserved.
Requirements in existing paragraphs Sec. 270.14 (b)(20), (b)(21)
and (b)(22) are either not appropriate for the proposed standardized
permit or are already addressed. Existing paragraph Sec. 270.14(b)(20)
requires an information submittal for the purposes of the Regional
Administrator to carry out his/her duties under other Federal Laws. We
propose this requirement in Sec. 270.275(d), which would require that
information to be submitted to the permitting agency to support your
application. The current requirements of Sec. 270.14(b)(21) are not
applicable because they are for land disposal facilities. The existing
requirements of Sec. 270.14(b)(22) discuss the pre-application meeting
and the submittal of the meeting summary along with other items. We
proposed these requirements in Sec. 270.275(b), specifying that you
would be required to submit these items with the Notice of Intent as
discussed previously. We are not proposing to include the requirements
of Sec. 270.14(c) because they address ground water monitoring that we
believe is unnecessary for the types of units that would be eligible
for proposed standardized permits.
2. Container Information
The container information requirements we are proposing today in
Sec. 270.300 are similar to the current requirements in Sec. 270.15. In
developing the proposed language for proposed Sec. 270.300, we modified
the existing
[[Page 52232]]
Sec. 270.15 requirements to make them more readable. You would be
required to keep information at your facility on the design and
operation of the container storage area including its containment
system. You would also keep diagrams showing the location of ignitable,
reactive, and incompatible waste at your facility along with drawings
showing compliance with appropriate buffer zones.
3. Tank Information
Under today's proposal, you would have to keep tank system
information onsite at the facility. This information deals with design,
construction, and operation parameters. The proposed Sec. 270.305
requirements are similar to the individual permit requirements
currently in Sec. 270.16. However, we would not carry over to proposed
Sec. 270.305, the current requirements from Sec. 270.16(h). The
existing Sec. 270.16(h) requirements deal with tanks with variances
from secondary containment. As discussed previously, we are proposing
that tanks have secondary containment to be eligible for the
standardized permit.
4. Equipment Information
Under today's proposal, you would be required to keep onsite the
information required for equipment subject to the part 264 subpart BB
requirements (air emissions standards for equipment leaks). These
information requirements concern emission standards for equipment that
contains or comes in contact with hazardous waste with organic
concentrations of at least 10 percent by weight. The proposed
Sec. 270.310 requirements are similar to the individual permit
requirements currently found in Sec. 270.25. The proposed Sec. 270.315
requirements differ from the existing Sec. 270.25 provisions in one
main area. The performance test plan currently required by
Sec. 270.25(c) for alternative control devices is not included in
proposed Sec. 270.315 requirements because proposed Secs. 267.177 and
267.204 would only allow the following control devices: thermal vapor
incinerator, catalytic vapor incinerator, flame, boiler, process
heater, condenser, and carbon absorption unit. This is because the
performance testing and reporting to support alternative control
devices would require close interaction on the part of the facility
owner/operator and the permitting agency, which would not be
appropriate for the standardized permit.
5. Air Emission Control Information
We are also proposing to have you keep onsite the information
required for tanks and containers subject to the part 264 subpart CC
standards (air emission standards for tanks, surface impoundments and
containers). The proposed Sec. 270.315 requirements for air emission
controls would be similar to the existing Sec. 270.27 requirements for
facilities seeking individual permits. These information requirements
concern compliance with the air emission controls that apply to
facilities managing hazardous waste in tanks and containers. The
proposed Sec. 270.315 requirements contain minor changes to the current
Sec. 270.27 provisions because surface impoundments would not be
eligible for standardized permits.
E. How Would I Modify my RCRA Standardized Permit?
You would modify your RCRA standardized permit by following the
procedures found in proposed Secs. 124.211-213. As mentioned above in
Section VI: Maintaining a Standardized Permit, today's proposed
modification procedures are separated into: (1) Routine changes to the
standardized permit; and (2) significant changes. You would follow
these procedures in lieu of the permit modification procedures found in
existing Sec. 270.42, which describe permittee initiated permit
modifications for individual permits.
X. Public Comment on Corrective Action and Financial Assurance
Issues
As was discussed previously, in addition to requesting public
comment on the proposed provisions of this rule, we are requesting
public comment on some additional issues related to corrective action
and financial assurance requirements. These additional issues
potentially affect the universe of RCRA treatment, storage, and
disposal, including those that would receive standardized permits. We
have discussed these issues, and our reasons for soliciting comment on
them, in detail below.
A. Corrective Action
1. Could I Satisfy the RCRA Corrective Action Requirements for my Site
by Conducting Cleanup Under an Alternate State Program? \6\
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\6\ The discussion in this notice addresses only alternate State
cleanup authorities. For information on conducting cleanup under
non-RCRA Federal authorities see a memorandum dated September 24,
1996 from Steven A. Herman and Elliott P. Laws to RCRA/CERCLA
National Policy Managers entitled ``Coordination between RCRA
Corrective Action and Closure and CERCLA Site Activities.''
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EPA is soliciting comment on whether and under what conditions it
should adopt a policy that would promote the use of cleanup programs
other than the authorized RCRA program to satisfy corrective action
requirements at permitted facilities. In the discussion below, EPA
presents several issues and options related to the use of such
alternate authorities. You should note that these issues and options
are presented by the Agency for the purpose of soliciting ideas. In
developing this discussion, EPA did not develop an Agency position on
these issues--rather, the Agency chose to present for comment the
options and issues it currently is considering. Thus, the following
discussion does not represent the Agency's position on the use of
alternate authorities, and should not be used as guidance on the issues
discussed.
Currently, when an alternate State authority is used to address
corrective action at a facility, the provisions of the cleanup order
issued by the alternate authority are typically either written into the
RCRA permit as conditions, or are incorporated by reference in the
permit. In both cases, the provisions of the cleanup order become RCRA
permit conditions, which are subject to administrative and judicial
review at the time of permit issuance and may be enforced under RCRA.
EPA is considering issuing a policy to address the use, in
appropriate circumstances, of alternate cleanup authorities to satisfy
the corrective action requirements of a permit. Under such a policy,
EPA would recommend general guidelines for determining whether action
under an alternate authority will result in cleanups that meet the
requirements of Sec. 264.101, and would specify how the alternate
authority cleanup generally should be addressed in the permit to ensure
enforceability of cleanup requirements. This policy, if adopted, would
likely apply at all facilities receiving RCRA permits, including
standardized permits. It should be noted that, although the Agency
currently is contemplating issuing policy guidance on the alternate
authority issue, the Agency may decide instead to issue the guidance
provisions discussed in this section as final regulations. EPA solicits
comment on whether such a policy, if adopted, should be promulgated as
regulations or issued as guidance.
EPA believes that many alternate State cleanup programs conduct
cleanups that are protective of human health and the environment, and
that many alternate State cleanup authorities
[[Page 52233]]
offer features such as streamlined procedures, provisions for voluntary
cleanup, and provisions for collection of user fees to pay for State
oversight which, if used at RCRA facilities, could help speed the pace
of RCRA cleanups nationwide. At the same time, EPA recognizes its
responsibility to ensure that cleanups conducted at facilities subject
to RCRA corrective action requirements satisfy the requirements of RCRA
sections 3004(u) and (v) and the ``omnibus'' provision of section
3005(c)(3) (i.e., are protective of human health and the environment).
EPA believes that by developing a policy that recommends guidelines for
the use of alternate authorities at permitted facilities, the Agency
would be able to leverage the potential offered by alternate
authorities, while at the same time ensuring that cleanups conducted
under those authorities satisfy the statutory requirements of RCRA.
Whether cleanup at facilities subject to RCRA corrective action is
conducted under a Federal cleanup program (e.g., RCRA corrective action
or CERCLA), an authorized RCRA corrective action program, or an
alternate State cleanup program, EPA is responsible for reporting the
progress of cleanups at RCRA treatment, storage, and disposal
facilities to Congress and to the public, and for overseeing
implementation of the RCRA corrective action program in authorized
States. To meet these responsibilities, EPA regularly solicits
information from the States regarding the progress of cleanups at RCRA
treatment, storage, and disposal facilities, regardless of the
authority under which they are being conducted, and includes this
information in a national data base for reporting progress at those
facilities. It should be noted that, if EPA develops a policy regarding
the use of alternate authorities in permits, that practice would not
change--EPA would still expect States to provide this information to
the Agency.
It also should be noted that Sec. 264.101(b) requires financial
assurance for corrective action, and use of an alternate cleanup
program at a RCRA permitted facility would not modify that requirement.
If an alternate cleanup program were used to address corrective action
at a RCRA permitted facility, the permit issuing agency (EPA or the
authorized State) would be responsible for ensuring that adequate
financial assurance was available to satisfy the requirement of
Sec. 264.101 (or authorized State equivalent).
Issues related to potential adoption of this policy, and specific
requests for comment are detailed below.
2. How Would EPA and the Authorized States Address the Alternate
Authority Cleanup Provisions in the RCRA Permit?
At facilities where cleanup is completed satisfactorily prior to
permit issuance, EPA or the State authorized for corrective action must
make a determination that no additional corrective action is necessary
to protect human health and the environment and consequently includes
no provisions requiring corrective action in the permit (except those
necessary to address future releases). Where corrective action is not
completed satisfactorily prior to permit issuance, there may be a
number of approaches to allow cleanups conducted under alternate State
cleanup programs to satisfy the RCRA permit requirements for corrective
action under section 3004(u) and (v).
EPA is soliciting comment on whether to recommend, under certain
circumstances, two methods of addressing, within the RCRA permit, the
cleanups conducted pursuant to alternate State authorities. Both
methods address situations where corrective action is determined by the
Agency to be necessary to protect human health and the environment at
the time of permit issuance. Under the first method, referred to as
``postponement,'' the permit issuing agency would postpone the
determination of RCRA-specific corrective action provisions until after
a cleanup under an alternate State authority is completed. Under the
second method, referred to in this notice as ``deferral,'' the permit
issuing agency would make a determination that a cleanup conducted
under an alternate authority will satisfy the corrective action
requirements at the site, then completely defer corrective action
requirements to the alternate program. Both of these methods are
discussed below.
Postponement. Using the postponement method, the agency issuing the
RCRA permit would determine, considering the recommended criteria (see
discussion below), whether the planned or ongoing cleanup under the
alternate program would satisfy the requirements of Sec. 264.101 (i.e.,
whether it would result in a cleanup that is protective of human health
and the environment). The agency would determine that, while corrective
action is necessary at the facility, the requirements of Sec. 264.101
will likely be satisfied by the planned or ongoing cleanup, so specific
permit cleanup conditions are not necessary at the time of permit
issuance. Instead, the Agency would incorporate a schedule of
compliance into the permit that, among other things, postpones the
final decision on whether specific cleanup conditions need to be
included in the RCRA permit until completion of the cleanup under the
alternate authority (the schedule of compliance should also include
requirements, as appropriate, to report to EPA on the progress of the
alternative state cleanup). EPA or the authorized State issuing the
permit would make the decision to postpone imposition of specific
cleanup permit requirements based on an analysis, considering the
recommended criteria, of either the specific corrective action
contemplated by the alternate cleanup program, on a review of the
alternate program itself, or both, as appropriate. Where the agency
determines that the cleanup under the alternate program, or the
alternate program itself, would not likely result in a cleanup that is
protective of human health and the environment, there would be no
postponement and specific cleanup conditions would be required in the
RCRA permit at the outset.
As described above, if the agency finds that specific permit
cleanup conditions are not necessary at the time of permit issuance,
the agency would include in the permit a schedule under which the
agency would make a determination, upon completion of the alternative
cleanup, whether the requirements of Sec. 264.101 have been satisfied.
At that time, if the agency were to determine that the cleanup did not
satisfy the requirements of Sec. 264.101, it would impose further
corrective action as necessary to protect human health and the
environment, and modify the permit to reflect that determination (using
the procedures in Sec. 270.41 for modifications based on new
information). The basis for the agency's determination at the time of
permit issuance that it is reasonable to postpone a determination on
the need for RCRA-specific cleanup requirements until completion of
cleanup under the alternate State authority would be part of the
administrative record for the permit, and the public would have
opportunity to comment on the postponement decision prior to permit
issuance. Similarly, the basis for the determination, upon completion
of the alternative state program cleanup, whether additional corrective
action is required would be part of the administrative record for the
permit; the Agency would include in the permit procedures for making
such a determination, including an opportunity for public notice and
comment. These
[[Page 52234]]
Agency decisions would be subject to applicable administrative and
judicial review. It is important to note that under this approach,
during the course of the cleanup, the conditions of the order or other
mechanism issued under the alternate State authority would not be
enforceable RCRA permit conditions and, therefore, would not be
enforceable under RCRA by EPA or citizens. However, under
Sec. 270.41(a) (or the authorized State equivalent), EPA or the
authorized State would have authority to modify the permit if new
information revealed that the cleanup under the alternate authority was
not protective, and that RCRA-specific conditions were necessary to
protect human health and the environment at that time.
Further, as a condition to allowing postponement of corrective
action, EPA or the authorized State would include in the permit
schedule of compliance some type of conditions to assure that the
Agency or State agency would be made aware of changed conditions at the
site, so that the decision to postpone could be reviewed and corrective
action conditions incorporated into the permit, if necessary. These
conditions could be structured in several ways. For example, the permit
might include a requirement that the permittee notify EPA or the
authorized State if the conditions upon which the determination to
postpone is made change (e.g., if cleanup under the alternate authority
is not proceeding for some reason). Alternatively, the permit might
require periodic reporting to the Agency or State agency; at that time
the decision to postpone the inclusion of specific corrective action
conditions could be reviewed. If necessary, specific corrective action
conditions could then be incorporated into the permit. Another option
would be to include in the permit schedule of compliance conditions
such that EPA or the authorized State agency would receive notice prior
to and after the completion of significant milestones of the cleanup.
This also would allow for the opportunity to review the decision to
postpone imposition of specific cleanup provisions in the RCRA
permit.\7\
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\7\ EPA does not intend that the decision to postpone normally
would be revisited. Moreover, EPA would not expect permits to
require that the cleanup under the non-RCRA program wait for
approval from the RCRA authorized program before proceeding with the
cleanup. Instead, it would be incumbent upon the RCRA program to
undertake affirmative steps if it was concerned with how the cleanup
was proceeding under the non-RCRA program.
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EPA solicits comment on whether it should, as a general matter,
recommend use of the postponement method and on situations where
postponement may or may not be appropriate.
Deferral. A second approach, referred to in this notice as
``deferral,'' would allow EPA or the authorized State to completely
defer corrective action requirements to an alternate cleanup program.
To implement the deferral approach, upon permit issuance, EPA or the
authorized State would make the finding that corrective action is
necessary, and that the appropriate corrective action at the site would
be the State action run by the State alternate program. Under this
approach, the permit issuing agency would include in the permit a
condition requiring the facility to meet all requirements of an
alternate State cleanup program order or agreement (or whatever legal
mechanism is used by the State program to document the facility's
cleanup obligations). The permit would clearly state that the State
alternate program is the sole implementer of the cleanup, in other
words, it would be the State program that is responsible for the day-
to-day implementation of the cleanup without intervention by EPA. It
should be noted, however, that because the cleanup requirements imposed
by the State alternate authority would, under this approach, become
RCRA permit conditions, they would be enforceable by EPA and by
citizens. For example, if the alternate authority order specified a
deadline for completion of specific interim measures, if such measures
were not implemented by that deadline, EPA (or a citizen) could bring
an action for enforcement of that requirement under RCRA.
Unlike under the postponement approach, the permitting agency's
deferral would not be conditioned on a review conducted at the end of
the cleanup. Rather, it would be based on an analysis at the time of
permitting, considering the recommended criteria, of the specific
corrective action contemplated by the alternate cleanup program, or on
a review of the alternate program itself, and demonstrating that the
cleanup at the facility will be protective of human health and the
environment. The review of the alternate program could include a
general prior review (see discussion below) with a particular
determination about deferral when issuing the permit. The basis for the
agency's decision to defer would be part of the administrative record
for the permit, and the public would have opportunity to comment on the
decision prior to permit issuance. The final deferral decision would be
subject to applicable administrative and judicial review.
EPA solicits comment on whether it should, as a general matter,
recommend the use of the deferral method and on situations where
deferral may or may not be appropriate.
3. How Would EPA or the Authorized State Determine That Cleanups
Conducted Under an Alternate Cleanup Program Would Satisfy the
Requirements of Sec. 264.101?
Upon issuing a permit at a facility where the Agency has determined
that corrective action is necessary, EPA or the authorized State must
make a determination that the provisions of the permit addressing
corrective action satisfy the requirements of Sec. 264.101, i.e., that
they require ``corrective action as necessary to protect human health
and the environment * * *''(see Sec. 264.101(a)). This determination
would be no different where the requirements of Sec. 264.101 are to be
satisfied by a cleanup conducted through an alternate cleanup program
at a RCRA permitted facility. In order to make the determination that
the permit requires corrective action ``as necessary to protect human
health and the environment,'' (or, in the case of postponement, that
the alternate program cleanup is likely to be adequate, and it
therefore is reasonable to set a schedule that postpones the
determination of whether specific corrective action requirements are
necessary to protect human health and the environment), the Agency or
the authorized State would either: (1) Review the alternate program and
make a determination that cleanups conducted under that program will,
or likely will, satisfy the requirements of Sec. 264.101 \8\; or (2)
review the provisions of an existing site-specific cleanup order (or
equivalent) and find that it will satisfy the requirements of
Sec. 264.101. Therefore, EPA believes that a policy supporting use of
alternate authorities at permitted sites should include guidance for
assessment of alternate cleanup programs.
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\8\ It should be noted that although the decision whether it is
appropriate to postpone or defer in any particular instance will be
informed by the results of prior program review (and EPA does not
generally expect that additional review of a previously reviewed
program will be necessary at the time of permit issuance), that
decision will be made on a case-by-case basis in the course of
permit issuance.
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EPA is soliciting comment on: (1) What assessment factors should be
recommended for assessing an alternate program (or site-specific
cleanup); and (2) what role should EPA assume in reviewing and
approving alternate State cleanup programs.
Assessment Criteria. EPA believes that a policy addressing use of
alternate State cleanup programs at RCRA
[[Page 52235]]
permitted facilities should recommend criteria for assessment and
evaluation of those programs. EPA already has provided guidance on
assessment and review of alternate programs on two occasions. In a
memorandum dated November 14, 1996 from Elliot P. Laws and Steven A.
Herman to Superfund National Policy Members entitled ``Interim
Approaches for Regional Relations with State Voluntary Cleanup
Programs,'' (the VCP guidance) EPA recommended six baseline criteria
for evaluating the adequacy of State voluntary cleanup programs. (A
copy of the VCP guidance is available in the docket for today's
proposal.) In the October 22, 1998 final Post-Closure rule (see 63 FR
56710 at 56792), EPA established criteria to evaluate the alternate
authorities that would be used in lieu of a post-closure permit to
address corrective action. The criteria from the VCP guidance and the
Post-Closure rule are outlined below. EPA solicits comment on
recommending the use of the VCP guidance criteria and/or the Post-
Closure rule criteria to evaluate alternate programs for use in RCRA
permits. EPA also solicits comment on other criteria that might be
appropriate.
It should be noted that EPA would not necessarily deny the use of
an alternate cleanup program at a RCRA permitted facility because it
does not meet all of the criteria developed by the Agency. EPA believes
that inadequacies of an alternate State program could be addressed by
supplementing the program through conditions in the RCRA permit. For
example, if the Agency determined that an alternate program did not
provide for meaningful public involvement, the Agency could still use
the approaches outlined above, but also include specific permit
provisions requiring such public participation (or ask the alternate
state program to enhance public participation at the specific site in
question). EPA solicits comment on this approach.
VCP Guidance Criteria. In the November 14, 1996 VCP guidance, EPA
established the baseline criteria for evaluating adequacy of State
voluntary cleanup programs. These criteria are used by the Agency in
negotiating Memoranda of Agreement (MOAs) with States for purposes of
dividing cleanup responsibilities between EPA's Superfund program and
the States. By negotiating these MOAs, EPA seeks to develop
partnerships with the States to encourage cleanups at non-NPL sites,
including brownfields.
Under the guidance, voluntary cleanup programs should be evaluated
to assure they have the following:
Opportunities for meaningful public involvement;
Response actions that are protective of human health and
the environment;
Adequate resources to ensure that response actions are
conducted in an appropriate and timely manner, and that both technical
assistance and streamlined procedures, where appropriate, are
available;
Mechanisms for the written approval of response action
plans and a certification or similar documentation indicating that
response actions are complete;
Adequate oversight to ensure that response actions are
conducted in such a manner to assure protection of human health and the
environment; and
Capability, through enforcement or other authorities, of
ensuring completion of response actions if the party conducing the
response action fails or refuses to complete the necessary response
actions, including operation and maintenance or long-term monitoring
activities.
Many of these listed criteria are the same as those used in the
authorization process for state RCRA corrective action programs.
However, it should be noted that the review of resources available to
voluntary cleanup programs during the MOA process is typically
significantly less detailed than the capability assessment associated
with State authorization. Regardless of which criteria may ultimately
be used, EPA does not believe the level of overall review of the
alternate program would be the same level as an authorization review.
Instead, the review would simply need to be sufficient to support a
determination that the use of the alternate program will, or in the
case of postponement likely will, result in protective cleanups, i.e.,
will satisfy the requirements of Sec. 264.101.
EPA solicits comment on whether these factors are appropriate to
consider in the context of reviewing alternate cleanup programs for use
at permitted facilities. In particular, EPA solicits comment on to what
extent the reviewing agency should consider the practices, resources,
and oversight capability of the alternate program when determining
whether cleanups conducted under the program will satisfy the
requirements of Sec. 264.101. Finally, EPA solicits comment on whether
other aspects of the alternate program, not listed above, also should
be considered.
Post-Closure Rule Criteria. In the final Post-Closure rule, the
Agency established that an assessment of a cleanup program must
demonstrate, at a minimum, that the authority is sufficiently broad to:
(1) Require facility-wide assessments; (2) address all releases of
hazardous wastes or constituents to all media for all SWMUs within the
facility boundary as well as off-site releases to the extent required
under RCRA section 3004(v) (to the extent that releases pose a threat
to human health and the environment); and (3) impose remedies that are
protective of human health and the environment. In promulgating that
final rule, EPA determined that these criteria are appropriate for
evaluation of alternate authorities that would be used in lieu of post-
closure permits to satisfy corrective action requirements. EPA solicits
comments on whether these factors are appropriate for reviewing
alternate programs for use at permitted facilities.
Over the years, EPA has provided guidance on imposing remedies that
are protective of human health and the environment, and that will
achieve corrective action cleanup objectives. On May 1, 1996, EPA
published an Advance Notice of Proposed Rulemaking (ANPR) (see 61 FR
19432), which serves as the primary guidance for the corrective action
program. EPA expects that any policy issued on the use of alternate
cleanup programs at RCRA permitted facilities would provide that, when
evaluating a State's alternate cleanup program, EPA or the authorized
State should consider whether cleanups conducted under the program are
at least as protective as the EPA corrective action program or the
equivalent State corrective action program authorized by EPA, as
implemented under the ANPR guidelines.
In addition to the criteria discussed above, the Post-Closure final
rule required that a cleanup conducted under an alternate authority
include meaningful opportunity for public involvement (see
Sec. 265.121(b)). EPA believes that public involvement is a critical
component of a corrective action process that assures that cleanups are
protective of human health and the environment, and that any policy
supporting use of alternate authorities at permitted facilities must
include meaningful involvement of the public. The final Post-Closure
rule established criteria for meaningful public involvement--at a
minimum, public notice and opportunity for comment at three key stages
of cleanup: (1) When EPA or the authorized State agency first becomes
involved in the cleanup process as a regulatory or enforcement matter,
(2) when EPA or the authorized State agency is ready to approve a
remedy for the site (this opportunity
[[Page 52236]]
must include a chance to comment on the assumptions on which the remedy
is based), and (3) when EPA or the authorized State is ready to decide
that remedial action is complete at the facility. EPA solicits comment
on whether these are the appropriate public involvement criteria to
recommend for cleanups conducted under alternate authorities at
permitted facilities.
The final Post-Closure rule also discussed the need for the
alternate authority to have adequate enforcement authority. EPA
specifically stated in the preamble to that rule, that the alternate
authorities ``must include the authority to sue in court, and to assess
penalties, consistent with Sec. 271.16'' (see 62 FR 56710 at 56730).
The referenced regulation specifically requires that the alternate
program have the authority to enjoin any threatened or continuing
violation of the requirements, and the authority to compel compliance
with requirements for corrective action or other emergency response
measures deemed necessary to protect human health and the environment.
These provisions assure that program conducting the cleanup will be
able to enforce the cleanup requirements imposed at the facility in a
timely manner. As in the case of the Post-closure rule, EPA wants to
assure that, where a cleanup is conducted through an alternate cleanup
program at a RCRA permitted facility, the Agency or the authorized
State will be able to enforce the cleanup requirements in a timely
manner.
General Process for Review of Alternate Cleanup Programs. EPA
believes that, as a general matter, the Agency should review state
alternate program in advance of relying on them at individual sites in
the state. EPA believe such an up-front review would result in faster
permit decisions overall, since it would provide, in advance, useful
record support for a postponement of deferral decision at a specific
site. In addition, any potential issues associated with alternate
authority would be worked out in advance of individual permit
decisions. EPA therefore solicits comment on two options for
documenting the up-front review of an alternate program. EPA approves
RCRA cleanup programs through the corrective action authorization
process (and reviews alternate authorities as part of authorization for
the Post-Closure rule). EPA also conducts less formal reviews as part
of program oversight, and as part of Federal-State joint implementation
efforts. These less formal reviews typically result in site-specific or
program-wide agreements between EPA and States. Under the first option,
EPA could use an authorization approach, where the State would submit,
among other things, copies of the statutes and regulations for the
alternate cleanup authority, to demonstrate that the program would
result in protective cleanups. Under the second option, EPA and the
State could enter into an MOU, or other agreement, regarding permit
determinations and the use of a particular alternate authority for RCRA
corrective action facilities (e.g., a VCP MOA for RCRA corrective
action). EPA solicits comment on these two options, when they should be
used, and whether other options should be considered. In either case,
the purpose of this up-front review would be to make an early
assessment of the fitness of an alternate cleanup program for use at
permitted facilities in the State. Of course, although the decision
whether it is appropriate to postpone or defer in any particular
instance will be informed by the results of this prior program review
(and EPA does not generally expect that additional review of a
previously reviewed program will be necessary at the time of permit
issuance) that decision will be made on a case-by-case basis in the
course of permit issuance.
In some cases, EPA may already have reviewed an alternate State
cleanup authority for other purposes. For example, EPA may have
reviewed and approved the authority during authorization of the State
RCRA program for the Post-Closure Rule. In other cases, EPA may have
reviewed the authority during the process of authorizing the State RCRA
program for section 3004(u) corrective action. EPA solicits comment on
whether alternate cleanup authorities that have been reviewed during
the authorization process should be evaluated again. EPA also solicits
comments on other situations where the Agency may have reviewed the
alternate authority and where it might be unnecessary to conduct
additional review.
Process for Review of Alternate Cleanup Programs In States
Authorized for RCRA Corrective Action. EPA solicits comment on what is
an appropriate level of participation for the Agency in the review and
assessment of an alternate program in a state authorized for RCRA
corrective action. In particular, EPA solicits comment on whether it is
necessary for EPA to review and approve an alternate program before a
State authorized for corrective action defers to that program in a
permit, or postpones corrective action under a permit pending a cleanup
conducted under the alternate program. While a State authorized for
corrective action is responsible for implementing the program, the
Agency retains oversight responsibility in authorized States; EPA
believes that review and assessment of alternate cleanup programs used
in the ways outlined above, should be considered part of the Agency's
oversight responsibility. EPA solicits comment on to what extent review
and assessment of alternate programs should be considered part of the
Agency's oversight responsibilities, and on what its role should be in
evaluating alternate State cleanup programs.
B. Financial Assurance
EPA's Office of Inspector General (OIG) recently issued an audit
report on financial assurance for closure (RCRA Financial Assurance for
Closure and Post-Closure, Audit Report No. 2001-P-007, U.S.
Environmental Protection Agency Office of Inspector General, March 30,
2001. (Available at http://www.epa.gov/oigearth/audit/list301/finalreport330.pdf, and in the docket to today's proposed rulemaking).
The report raised several issues regarding the use of pure captive
insurance for closure. The report states:
We believe that insurance policies issued by a ``captive''
insurance company do not provide an adequate level of assurance
because we found no independence between facility failure and the
failure of the mechanism.
In addition, the report concluded that the sampled captive insurance
policies did not allow assignment to a new owner or operator as
required by the regulations. EPA has sent a letter to the Vermont
Department of Banking, Insurance, Securities and Health Care
Administration requesting information on the assignment of captive
insurance policies issued by insurers domiciled there. The docket to
this rulemaking includes copies of EPA's letter and Vermont's response.
The audit report also recommends that the Agency investigate complex
insurance issues with the States to determine the States' need for
guidance. EPA requests comments on the conclusions in the OIG report.
EPA also requests information from States, the insurance industry, and
the regulated community on the need for the guidance suggested by OIG,
appropriate topics, and information that should be included.
The OIG report considers captive insurance to be a form of ``self
insurance,'' and in that sense is similar to the financial test. For
the financial test, EPA has information on the probability that a
company which passes the financial test could enter bankruptcy and so
be unable financially
[[Page 52237]]
to fulfill its closure obligations. This information comes from data on
bankruptcy rates, and default rates on bonds of various ratings. For
captive insurance, we have no specific information, and therefore would
like States, organizations, companies, or individuals to provide us
with any information they may have on the risks associated with captive
insurers, and experience with their payment of claims for closure,
post-closure care, or third party liability under RCRA.
The financial status of the parent company and the pure captive
insurer is potentially important because regulatory agencies might be
forced to perform closure at a facility if the parent were to enter
bankruptcy without having closed the facility and if the captive
insurance company could not afford to close the facility promptly or
properly. While the proposed financial test requires a company have a
tangible net worth of at least $10 million more than the amount of
obligations covered, the capitalization requirements for captive
insurers can be much smaller. Vermont, for example, has a minimum
capitalization requirement for a pure captive insurance company of
$250,000. The cost of a RCRA closure could surpass that amount.
In addition, we are not aware of any state that covers captive
insurance with State insurance funds that pay off claims in the event
of the failure of the insurer. Because the captive insurer is providing
insurance for its parent company, a State that would provide such
coverage for claims might be creating a disincentive for prudent risk
management. However, this means that in the event of bankruptcy by the
company and the default of the captive insurer, EPA or the State might
not have the funds available for closure. Therefore, we request
comments on the use of captive insurance as a financial assurance
mechanism for closure.
We also request comments on any additional requirements for
insurers in general, such as minimum ratings (and appropriate rating
agencies), beyond the current requirement to ``be licensed to transact
the business of insurance or eligible to provide insurance as an excess
or surplus lines insurer, in one or more States.'' (See
Sec. 264.143(e)(1)). We are interested in this information not only for
potential users of the standardized permit, but also for other
facilities that demonstrate financial assurance for environmental
obligations through the use of insurance. Insurance is currently an
allowable mechanism for demonstrating financial assurance for closure
in Secs. 258.74, 264.143, 265.143 as well as 761.65. Insurance is also
an allowable mechanism for demonstrating financial assurance for the
costs of plugging and abandonment of Class I hazardous waste injection
wells under Sec. 144.63.
Specifically, EPA is considering a requirement that an insurer, in
addition to being ``licensed to transact the business of insurance or
eligible to provide insurance as an excess or surplus lines insurer, in
one or more States,'' meet at least one of the following requirements:
a rating of Aaa, Aa or A by Moody's, or a rating of AAA, AA or A by
Standard & Poor's, or a rating of A++, A+, A or A- from A.M. Best
Company.
EPA recognizes that these ratings may appear to be more stringent
than the requirements it has established for companies that qualify on
the basis of a bond rating to self-insure under the financial test in,
for example, subpart H of parts 264 and 265. This is appropriate
because a company that previously qualified to use the financial test
and then becomes ineligible because of a reduced bond rating is still
likely to qualify for a third party instrument such as a surety bond or
a letter of credit. However, third party providers of financial
assurance generally service a group of owners and operators that are
financially weaker than those qualifying for the financial test
(otherwise they would have used the less expensive financial test as a
mechanism to comply with the financial assurance requirements). If a
third party provider, such as an insurer, loses its qualification to
provide assurance, its customers can find it very difficult to obtain
another instrument within the 60 day period required by the
regulations. Until the customers obtain a new instrument, the policy
remains in force, but the certainty of payment is less than with a more
qualified company. By imposing an additional requirement on the
financial strength of the insurer, EPA expects to reduce the
possibility that a permitting authority is faced with having a claim on
a third party for closure which the third party cannot fund.
XI. State Authorization
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer the RCRA hazardous waste program within the State. A State
may receive authorization by following the approval process described
under part 271. See 40 CFR part 271 for the overall standards and
requirements for authorization. Following authorization, the State
requirements authorized by EPA apply in lieu of equivalent Federal
requirements and become Federally enforceable as requirements of RCRA.
EPA maintains independent authority to bring enforcement actions under
RCRA sections 3007, 3008, 3013, and 7003. Authorized States also have
independent authority to bring enforcement actions under State law.
After a State receives initial authorization, new Federal
requirements promulgated under RCRA authority existing prior to the
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that
State until the State adopts and receives authorization for equivalent
State requirements. In contrast, under RCRA section 3006 (g)(42 U.S.C.
6926(g)), new Federal requirements and prohibitions imposed pursuant to
HSWA provisions take effect in authorized States at the same time they
take effect in unauthorized States. As such, EPA carries out HSWA
requirements and prohibitions in authorized States, including the
issuance of new permits implementing those requirements, until EPA
authorized the State to do so.
Authorized States are required to modify their programs when EPA
promulgates Federal requirements that are more stringent or broader in
scope than existing Federal requirements. RCRA section 3009 allows
States to impose standards more stringent than those in the Federal
program. See also 40 CFR 271.1(i). Therefore, authorized States are not
required to adopt Federal regulations, both HSWA and non-HSWA, that are
considered equivalent or less stringent than existing Federal
requirements.
B. Effect of State Authorizations
Today's proposal, if finalized, will promulgate regulations that
are not HSWA-related. Thus, the standards proposed today will be
applicable on the effective date only in those States that do not have
final authorization. In authorized States, the requirements would not
be applicable until the State revises its program to adopt equivalent
requirements under State law.
Authorized States are required to modify their programs only when
EPA promulgates Federal regulations that are more stringent or broader
in scope than the authorized State regulations. For those changes that
are less stringent or reduce the scope of the Federal program, States
are not required to modify their programs. This is a result of section
3009 of RCRA, which allows States to impose more stringent regulations
than the Federal program.
[[Page 52238]]
Today's rule however, is considered to be neither more nor less
stringent than the current standards. Therefore, authorized States
would not be required to modify their programs to adopt regulations
consistent with and equivalent to today's proposed standards.
As in the case of individual permit procedures, a state that
chooses to adopt and request authorization for issuing standardized
permits must adopt permitting procedures equivalent, but not identical
to those promulgated by EPA. The authorization regulations in 40 CFR
271.14 lists several provisions of the permitting regulations which EPA
determined are necessary for an equivalent permitting program. States
would need to adopt a similar scope of legal authorities for issuing
standardized permits as for individual permits.
XII. Regulatory Assessments
A. Executive Order 12866
Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] we
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 entitlement, 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.
Pursuant to the terms of Executive Order 12866, OMB has determined
that this proposed rule is a ``significant regulatory action'' because
it raises novel legal or policy issues. As such, we submitted this
action to OMB for review before publishing it in the Federal Register.
Changes made in response to OMB suggestions or recommendations are
documented in the public record in support of this proposal.
1. Assessment of Potential Costs and Benefits
For regulations that are projected to have significant economic
impacts, Agencies are required to conduct a ``Regulatory Impact
Assessment'' of potential costs and benefits of the regulation.
Although OMB has not designated this proposed rule as economically
significant, we have completed a preliminary economic analysis of the
proposed rule, the results of which we summarize below and present for
public review and comment.
a. Description of entities to which this rule applies. This rule
potentially applies to approximately 866 existing private sector
facilities which non-thermally treat and/or store RCRA hazardous waste
in tanks, containers, and containment buildings. The rule only applies
to on-site treatment and storage of hazardous waste, not to off-site
commercial treatment and storage facilities. Eligible facilities may
voluntarily participate in the RCRA standardized permit program. We
designed the proposed rule to reduce the information reporting
requirements for eligible facilities, as well as to reduce EPA and
state administrative review time for these permit activities. Eligible
facilities are a mix of small, medium and large facilities.
b. Description of potential benefits of this rule. The RCRA
standardized permit proposal is an optional rule designed to streamline
the regulatory burden to EPA/states as well as to private sector
facilities covered by the rule, by reducing the amount of information
collected, submitted and reviewed for RCRA permit actions (i.e., new
RCRA permit applications, RCRA permit modifications, and RCRA permit
renewals). Because the rule proposes to streamline existing RCRA
regulation, rather than add new RCRA regulation, we expect
implementation of the rule by the EPA and by states with EPA-authorized
permitting programs to result in economic benefits in the form of
national cost savings from reducing both government and private sector
resources required for the RCRA permit process. The public is
particularly encouraged to comment on desired permit streamlining
benefits.
Based on an economic analysis, we estimate that the potential
average annual cost savings to eligible facilities resulting from
implementation of this rule will range from approximately $100 to
$5,800 per permit action (i.e., between two to 140 administrative
burden hours reduction per permit action, which is equivalent to 4% to
14% reduction in burden hours compared to the baseline (existing) RCRA
permit program), depending on the type of individual permit they're
converting from and the type of eligible treatment and storage
equipment. We estimate that an average of 55% of annual permit actions
will involve container systems, 43% will involve tank systems, and 2%
containment buildings. Aggregated over an average annual 135 RCRA
standardized permit actions (11% of which are expected to consist of
conversion of existing permits, 61% of interim status and new facility
permit applications, 18% modification permit applications, and 10%
permit renewal applications upon expiration), produces an expected
national cost savings benefit for RCRA permitting of between $0.36 to
$0.53 million annually. This annual savings consists of 76% of benefits
to the private sector eligible facilities, and 24% of benefits to EPA/
state permit authorities. Potential cost savings benefits are
incremental to the average annual cost associated with the current RCRA
permitting program.
c. Description of potential costs of this rule. We believe that the
costs to EPA and states of implementing the standardized permit option
will be minimal, and therefore we did not estimate them in the economic
analysis. Private sector costs associated with this rule have been
included and netted-out in the incremental cost comparison of the
preliminary economic analysis.
d. Description of potential net benefits of the rule. Because
implementation costs are relatively minimal or have otherwise been
netted-out from the cost savings analysis as explained above, the $0.36
to $0.56 million in average annual national cost savings benefits
identified above, also represent the potential net benefits associated
with implementation of this rule.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant adverse
economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small
[[Page 52239]]
entities. The following discussion explains EPA's determination.
The Agency has determined that today's proposed rule will not have
a significant adverse economic impact on a substantial number of small
entities, since the rule has direct effects only on state agencies.
Otherwise, the proposal is expected to provide net annual benefits (in
the form of administrative paperwork burden reduction cost savings)
from the voluntary participation by eligible facilities in the private
sector. Therefore, we did not prepare an RFA. Based on the foregoing
discussion, I hereby certify that this rule will not have a significant
adverse economic 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 UMRA, we
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 which must have a written
statement, 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 us to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes an explanation with the final rule. Before we
establish any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, we
must develop, 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 our regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
Today's proposed 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. The proposed rule imposes no
enforceable duty on any State, local or tribal governments or the
private sector. Thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments are not authorized for the RCRA program
and therefore will not be implementing these rules.
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. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1935.01) 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., S.W.; Washington, DC 20460, by e-mail at
[email protected], or by calling (202) 260-2740. A copy may
also be downloaded off the Internet at http://www.epa.gov/icr.
Section 270.275 requires that applicants for a standardized permit
submit to the permitting agency information that will be used as the
basis of the standardized permit application. This information
includes:
Part A permit information required by section 270.13;
A summary of the pre-application public meeting and other
materials required by section 124.31;
Documentation of compliance with the location standards of
sections 267.18 and 270.14(b)(11);
Information that allows the Director to carry out his
obligations under other Federal laws required in Sec. 270.3;
Solid waste management unit information required by
Sec. 270.14(d); and
A signed certification of the facility's compliance with
part 267, as specified at Sec. 270.280.
EPA needs this information to comprehensively evaluate the
potential risk posed by facilities seeking permits. This information
aids EPA in meeting its goal of ascertaining and minimizing risks to
human health and the environment from hazardous waste management
facilities.
In addition, facilities that store or treat hazardous waste under a
standardized permit must keep at their facilities general types of
information (Sec. 267.290), as well as unit-specific information for
containers (Sec. 267.300), tanks (Sec. 267.305), equipment subject to
part 264, subpart BB (Sec. 270.310), and tanks and containers subject
to part 264, subpart CC (Sec. 270.315). EPA anticipates that the owner
or operator will use this information to ensure that tanks, containers,
and other equipment are in good condition and that operating
requirements are being satisfied, and to prevent placing in proximity
wastes that are incompatible with other wastes that are likely to
ignite or explode. EPA needs this information to evaluate compliance of
facilities with the permitting standards. These requirements contribute
to EPA's goal of insuring that hazardous waste management facilities
are operated in a manner fully protective of human health and the
environment.
Information collection requirements in the standardized permit
proposal are authorized by sections 2002 and 3007 of RCRA, as amended.
In particular, section 2002 gives the Administrator the authority to
promulgate such regulations as are necessary to carry out the functions
of this subchapter. Section 3007 gives EPA the authority to compel
anyone who generates, stores, treats, transports, disposes of or
otherwise handles or has handled hazardous wastes to ``furnish
information related to such wastes'' and make such information
available to the government for ``the purposes of * * *enforcing the
provisions of this chapter.'' EPA believes the information collection
requirements in the proposal are consistent with the Agency's
responsibility to protect human health and the environment.
Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which define
EPA's general policy on public disclosure of information, contain
provisions for confidentiality. However, the Agency does not anticipate
that businesses will assert a claim of confidentiality covering all or
part of the information that would be requested pursuant to the
proposed information collection requirements. If such a claim were
asserted, EPA must and will treat the information in accordance with
the regulations cited above. EPA also will assure that this information
collection complies with the Privacy Act of 1974 and OMB Circular 108.
Further, no questions of a sensitive nature are included in the
proposed information collection requirements.
EPA estimates that a total of 175 (permitted, interim status, and
new) captive TSDFs per year will apply for a
[[Page 52240]]
RCRA standardized permit in the initial few years after its
implementation. EPA estimates that the annual respondent burden to be
approximately 13,367 hours, at an annual cost of $1,307,512. Assuming
each eligible TSDF responds once annually (i.e. process a RCRA permit
action), the average burden per response would be 76 hours. (Note that
this burden estimate does not net-out the baseline burden of the
existing RCRA permit program, as was done in the economic analysis
summarized a few sections above).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
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 to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., SW, Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW, Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.'' Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after October 12, 2001, a comment to OMB is best assured of
having its full effect if OMB receives it by November 13, 2001. The
final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
E. Executive Order 13045: Children's Health
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 F.R. 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.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pubic Law No. 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 us
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, we
are 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
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, we have
initiated efforts to incorporate environmental justice into our
policies and programs. We are committed to addressing environmental
justice concerns and have assumed a leadership role in environmental
justice initiatives to enhance environmental quality for all residents
of the United States. Our 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 our policies, programs, and activities, and that
all people live in clean and sustainable communities. To address this
goal, we considered the impacts of this rule on low-income populations
and minority populations.
We concluded that today's final rule will potentially advance
environmental justice goals because the public involvement process set
forth in today's rule improves the opportunity for all potentially
affected segments of the population to participate in public hearings
and/or to provide comment on health and environmental concerns that may
arise pursuant to a proposed Agency action under this rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There is no impact to tribal governments as the result of the standard
permit. Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment
[[Page 52241]]
on this proposed rule from tribal officials.
I. 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'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
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.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. Also, when EPA transmits a draft final rule with federalism
implications to OMB for review pursuant to Executive Order 12866, EPA
must include a certification from the agency's Federalism Official
stating that EPA has met the requirements of Executive Order 13132 in a
meaningful and timely manner.
This proposed rule 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.
Rather, it would provide more flexibility for States to implement
already-existing requirements. Thus, the requirements of section 6 of
the Executive Order do not apply to this rule.
Nevertheless, EPA worked closely with state governments in the
development of this proposed rule. We distributed drafts of the
proposed rule to California and Wisconsin for their review and comment.
We also distributed copies of the proposed rule to the Association of
State and Territorial Solid Waste Management Officials. These states
and state organizations provided meaningful and timely input to the
agency in the development of this proposal.
J. Executive Order 13211: Energy Effects
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, we have
concluded that this rule is not likely to have any adverse energy
effects
XIII. List of References
1. The EPA Permit Improvement Team Final Draft of Concept Paper on
Environmental Permitting and Task Force Recommendations. EPA, April
1996.
2. The Nation's Hazardous Waste Management Program at a Crossroads: The
RCRA Implementation Study. EPA/530-SW-90-069, Office of Solid Waste and
Emergency Response, July 1990.
3. RCRA Part A Application. EPA/8700-23, October 1999.
4. RCRA Public Participation Manual. EPA/530-R-96-007, Office of Solid
Waste and Emergency Response, September 1996.
5. Summary of Standardized Permit Forum Meeting held in Arlington,
Virginia. October 1997.
6. Closure Cost Estimates for Standard Permits, Background Document--
Option 5. EPA, December 1998.
7. Closure Cost Estimates for Standard Permits, Background Document--
Option 4. EPA, December 1998.
8. Economics Background Document: Estimate of Potential National Cost
Savings for the Industrial Hazardous Waste ``Standardized'' RCRA Permit
Proposal, EPA Office of Solid Waste, Economics, Methods & Risk Analysis
Division, 03 May 2000, 73pp.
9. EPA Memorandum: Coordination between RCRA Corrective Action and
Closure and CERCLA Site Activities, From: Steven A. Herman and Elliott
P. Laws, To: RCRA/CERCLA National Policy Manages Region I-X, 24
September 1996.
10. EPA Memorandum: Interim Approaches for Regional Relations with
State Voluntary Cleanup Programs, From Elliot P. Laws and Steven A.
Herman, To: Superfund National Policy Members, 14 November 1996.
11. Final Post Closure Rule, 63 FR 56710, October 22, 1998.
12. Advance Notice of Proposed Rulemaking on RCRA Corrective Action
Program, 61 FR 19432, May 1, 1996.
List of Subjects
40 CFR Part 124
Administrative practice and procedure, Hazardous waste, RCRA
permits.
40 CFR Part 260
Hazardous waste.
40 CFR Part 267
Corrective action, Financial assurance, Hazardous waste, Reporting
and recordkeeping requirements, Standardized permit requirements.
40 CFR Part 270
Administrative practice and procedure, Hazardous waste, Permit
application and modification procedures, RCRA permits, Standardized
permit requirements.
Dated: September 20, 2001.
Christine Todd Whitman,
Administrator.
For reasons stated in the preamble, title 40 chapter I of the Code
of Federal Regulations is proposed to be amended as follows:
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air Act, 42
U.S.C. 1857 et seq.
2. Section 124.1 is amended by revising paragraph (b) to read as
follows:
Sec. 124.1 Purpose and scope.
* * * * *
(b) This part 124 is organized into six subparts. Subpart A
contains general procedural requirements applicable to all permit
programs covered by these regulations. Subparts B through G supplement
these general provisions
[[Page 52242]]
with requirements that apply to only one or more of the programs.
Subpart A describes the steps EPA will follow in receiving permit
applications, preparing draft permits, issuing public notice, inviting
public comment and holding public hearings on draft permits. Subpart A
also covers assembling an administrative record, responding to
comments, issuing a final permit decision, and allowing for
administrative appeal of the final permit decision. Subpart B contains
public participation requirements applicable to all RCRA hazardous
waste management facilities. Subpart C contains definitions and
specific procedural requirements for PSD permits. Subpart D applies to
NPDES permits until an evidentiary hearing begins, when subpart E
procedures take over for EPA-issued NPDES permits and EPA-terminated
RCRA permits. Subpart F, which is based on the ``initial licensing''
provisions of the Administrative Procedure Act (APA), can be used
instead of subparts A through E in appropriate cases. Subpart G
contains specific procedural requirements for RCRA standardized
permits, which, in some instances, change how the General Program
Requirements of subpart A apply in the context of the RCRA standardized
permit.
* * * * *
3. Section 124.2 is amended by revising the definition of
``permit'' in paragraph (a) and adding a definition for a standardized
permit in alphabetical order as follows:
Sec. 124.2 Definitions.
(a) * * *
Permit means an authorization, license or equivalent control
document issued by EPA or an ``approved State'' to implement the
requirements of this part and parts 122, 123, 144, 145, 233, 270, and
271 of this chapter. ``Permit'' includes RCRA ``permit by rule''
(Sec. 270.60), UIC area permit (Sec. 144.33), RCRA standardized permit
(Sec. 270.67), NPDES or 404 ``general permit'' (Secs. 270.61, 144.34,
and 233.38). Permit does not include RCRA interim status (Sec. 270.70),
UIC authorization by rule (Sec. 144.21), or any permit which has not
yet been the subject of final agency action, such as a ``draft permit''
or a ``proposed permit.''
* * * * *
Standardized permit (RCRA) means a RCRA permit authorizing
management of hazardous waste issued under subpart G of this part and
40 part 270, subpart I. The standardized permit may have two parts: A
uniform portion issued in all cases and a supplemental portion issued
at the Director's discretion.
* * * * *
4. Section 124.5(c) is amended by revising paragraph (c) heading
and paragraph (c)(1) as follows:
Sec. 124.5 Modification, revocation and reissuance, or termination of
permits.
* * * * *
(c) (Applicable to State programs, see 40 CFR 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). (1) If the Director
tentatively decides to modify or revoke and reissue a permit under 40
CFR 122.62 (NPDES), 144.39 (UIC), 233.14 (404), or 270.41 (other than
270.41(b)(3)) or 270.42(c) (RCRA), he or she shall prepare a draft
permit under Sec. 124.6 incorporating the proposed changes. The
Director may request additional information and, in the case of a
modified permit, may require the submission of an updated application.
In the case of revoked and reissued permits, other than under 40 CFR
270.41(b)(3), the Director shall require the submission of a new
application. In the case of revoked and reissued permits under 40 CFR
270.41(b)(3), the Director and the permittee shall comply with the
appropriate requirements in 40 CFR part 124, subpart G for RCRA
standardized permits.
* * * * *
5. Section 124.31 is amended by revising paragraphs (a), (b), and
(c) as follows:
Sec. 124.31 Pre-application public meeting and notice.
(a) Applicability. The requirements of this section shall apply to
all RCRA part B applications seeking initial permits for hazardous
waste management units over which EPA has permit issuance authority.
The requirements of this section shall also apply to RCRA part B
applications seeking renewal of permits for such units, where the
renewal application is proposing a significant change in facility
operations. For the purposes of this section, a ``significant change''
is any change that would qualify as a class 3 permit modification under
40 CFR 270.42. For the purposes of this section only, ``hazardous waste
management units over which EPA has permit issuance authority'' refers
to hazardous waste management units for which the State where the units
are located has not been authorized to issue RCRA permits pursuant to
40 CFR part 271. The requirements of this section shall also apply to
hazardous waste management facilities for which facility owners or
operators are seeking coverage under a RCRA standardized permit (see 40
part 270, subpart I). The requirements of this section do not apply to
permit modifications under 40 CFR 270.42 or to applications that are
submitted for the sole purpose of conducting post-closure activities or
post-closure activities and corrective action at a facility.
(b) Prior to the submission of a part B RCRA permit application for
a facility, or to the submission of a written notice of intent to be
covered by a RCRA standardized permit (see 40 CFR part 270, subpart I),
the applicant must hold at least one meeting with the public in order
to solicit questions from the community and inform the community of
proposed hazardous waste management activities. The applicant shall
post a sign-in sheet or otherwise provide a voluntary opportunity for
attendees to provide their names and addresses.
(c) The applicant shall submit a summary of the meeting, along with
the list of attendees and their addresses developed under paragraph (b)
of this section, and copies of any written comments or materials
submitted at the meeting, to the permitting agency as a part of the
part B application, in accordance with 40 CFR 270.14(b), or with the
written notice of intent to be covered by a RCRA standardized permit
(see 40 CFR part 270, subpart I).
* * * * *
6. Section 124.32 is amended by revising paragraph (a) as follows:
Sec. 124.32 Public notice requirements at the application stage.
(a) Applicability. The requirements of this section shall apply to
all RCRA part B applications seeking initial permits for hazardous
waste management units over which EPA has permit issuance authority.
The requirements of this section shall also apply to RCRA part B
applications seeking renewal of permits for such units under 40 CFR
270.51. For the purposes of this section only, ``hazardous waste
management units over which EPA has permit issuance authority'' refers
to hazardous waste management units for which the State where the units
are located has not been authorized to issue RCRA permits pursuant to
40 CFR part 271. The requirements of this section do not apply to
hazardous waste units for which facility owners or operators are
seeking coverage under a RCRA standardized permit (see 40 CFR part 270,
subpart I)). The requirements of this section do not apply to permit
modifications under 40 CFR 270.42 or permit applications submitted for
the sole purpose of conducting post-closure
[[Page 52243]]
activities or post-closure activities and corrective action at a
facility.
* * * * *
7. Subpart G is added to read as follows:
Subpart G--Procedures for RCRA Standardized Permit
Sec.
General Information About Standardized Permits
124.200 What is a RCRA standardized permit?
124.201 Who is eligible for a standardized permit?
Applying for a Standardized Permit
124.202 How do I as a facility owner or operator apply for a
standardized permit?
124.203 How may I switch from my individual RCRA permit to a
standardized permit?
Issuing a Standardized Permit
124.204 What must I do as the Director of the regulatory agency to
prepare a draft standardized permit?
124.205 What must I do as the Director of the regulatory agency to
prepare a final standardized permit?
124.206 In what situations may I require a facility owner or
operator to apply for an individual permit?
Opportunities for Public Involvement in the Standardized Permit Process
124.207 What are the requirements for public notices?
124.208 What are the opportunities for public comments and hearings
on draft permit decisions?
124.209 What are the requirements for responding to comments?
124.210 May I, as an interested party in the permit process, appeal
a final standardized permit?
Maintaining a Standardized Permit
124.211 What types of changes may I make to my standardized permit?
124.212 What procedures must I follow to make routine changes?
124.213 What procedures must I follow to make significant changes?
Subpart G--Procedures for RCRA Standardized Permit
General Information About Standardized Permits
Sec. 124.200 What is a RCRA standardized permit?
The standardized permit is a special form of RCRA permit, that may
consist of two parts: A uniform portion that the Director issues in all
cases, and a supplemental portion that the Director issues at his or
her discretion. We formally define the term ``Standardized permit'' in
Sec. 124.2.
(a) What comprises the uniform portion? The uniform portion of a
standardized permit consists of terms and conditions, relevant to the
unit(s) you are operating at your facility, that EPA has promulgated in
40 CFR part 267 (Standards for Owners and Operators of Hazardous Waste
Facilities Operating under a Standardized Permit). If you intend to
operate under the standardized permit, you must comply with these
nationally applicable terms and conditions.
(b) What comprises the supplemental portion? The supplemental
portion of a standardized permit consists of site-specific terms and
conditions, beyond those of the uniform portion, that the Director may
impose on your particular facility, as necessary to protect human
health and the environment. If the Director issues you a supplemental
portion, you must comply with the site-specific terms and conditions it
imposes.
(1) If the Director determines that it is necessary, he or she must
include terms and conditions in your supplemental portion to institute
corrective action under 40 CFR 267.101 (or State equivalent) or to
otherwise protect human health and the environment.
(2) Unless otherwise specified, these supplemental permit terms and
conditions apply to your facility in addition to the terms and
conditions of the uniform portion of the standardized permit and not in
place of any of those terms and conditions.
Sec. 124.201 Who is eligible for a standardized permit?
If you generate hazardous waste and then non-thermally treat or
store the hazardous waste in tanks, containers, or containment
buildings, you may be eligible for a standardized permit. We will
inform you of your eligibility when we make a decision on your permit.
Applying for a Standardized Permit
Sec. 124.202 How do I as a facility owner or operator apply for a
standardized permit?
(a) You must follow the requirements in this subpart as well as
those in Sec. 124.31, 40 CFR 270.10 and 40 CFR part 270, subpart I.
(b) You must submit to the Director a written notice of your intent
to operate under the standardized permit. You must also include the
information and certifications required under 40 CFR part 270, subpart
I.
Sec. 124.203 How may I switch from my individual RCRA permit to a
standardized permit?
You may request that your individual permit be revoked and reissued
as a standardized permit, in accordance with Sec. 124.5.
Issuing a Standardized Permit
Sec. 124.204 What must I do as the Director of the regulatory agency
to prepare a draft standardized permit?
(a) You must review the notice of intent and supporting information
submitted by the facility owner or operator.
(b) You must determine whether the facility is or is not eligible
to operate under the standardized permit.
(1) If the facility is eligible for the standardized permit, you
must propose terms and conditions, if any, to include in a supplemental
portion. If you determine that these terms and conditions are necessary
to protect human health and the environment but for some reason cannot
be imposed, you must tentatively deny coverage under the standardized
permit.
(2) If the facility is not eligible for the standardized permit,
you must tentatively deny coverage under the standardized permit.
(c) You must prepare your draft permit decision within 120 days
after receiving a notice of intent and supporting documents from a
facility owner or operator. Your tentative determination under this
section to deny or grant coverage under the standardized permit,
including any proposed site-specific conditions in a supplemental
portion, constitutes a draft permit decision.
(d) Many requirements in subpart A of this part apply to processing
the standardized permit application and preparing your draft permit
decision. For example, your draft permit decision must be accompanied
by a statement of basis or fact sheet and must be based on the
administrative record. In preparing your draft permit decision, the
following provisions of subpart A of this part apply (subject to the
following modifications):
(1) Section 124.1 Purpose and Scope. All paragraphs.
(2) Section 124.2 Definitions. All paragraphs.
(3) Section 124.3 Application for a permit. All paragraphs except
paragraphs (c), (d), (f) and (g) of this section apply.
(4) Section 124.4 Consolidation of permit processing. All
paragraphs apply, however, in the context of the RCRA standardized
permit use the reference to Sec. 124.208 instead of the reference to
Sec. 124.10.
(5) Section 124.6 Draft permits. This section does not apply to the
RCRA standardized permit; procedures in this subpart apply instead.
(6) Section 124.7 Statement of basis. The entire section applies.
[[Page 52244]]
(7) Section 124.8 Fact sheet. All paragraphs apply, however, in the
context of the RCRA standardized permit use the reference to
Sec. 124.208 instead of the reference to Sec. 124.10.
(8) Section 124.9 Administrative record for draft permits when EPA
is the permitting authority. All paragraphs apply, however, in the
context of the RCRA standardized permit use the reference to
Sec. 124.204(c) instead of Sec. 124.6.
(9) Section 124.10 Public notice of permit actions and public
comment period. Only Secs. 124.10(c)(1)(ix) and (c)(1)(x)(A) apply to
the RCRA standardized permit. Most of Sec. 124.10 does not apply to the
RCRA standardized permit; Secs. 124.207, 124.208, and 124.209 apply
instead.
Sec. 124.205 What must I do as the Director of the regulatory agency
to prepare a final standardized permit?
As Director of the regulatory agency you must consider all comments
received during the public comment period (see Sec. 124.208) in making
your final permit decision. In addition, many requirements in subpart A
apply of this part to the public comment period, public hearings, and
preparation of your final permit decision. In preparing a final permit
decision, the following provisions of subpart A of this part apply
(subject to the following modifications):
(a) Section 124.1 Purpose and Scope. All paragraphs.
(b) Section 124.2 Definitions. All paragraphs.
(c) Section 124.11 Public comments and requests for public
hearings. This section does not apply to the RCRA standardized permit;
the procedures in Sec. 124.208 apply instead.
(d) Section 124.12 Public hearings. Paragraphs (b), (c), and (d)
apply.
(e) Section 124.13 Obligation to raise issues and provide
information during the public comment period. The entire section
applies, however, in the context of the RCRA standardized permit use
references to Sec. 124.208 instead of references to Sec. 124.10.
(f) Section124.14 Reopening of the public comment period. All
paragraphs apply, however, in the context of the RCRA standardized
permit, use the following references: in Sec. 124.14(b)(1) use
reference to Sec. 124.204 instead of Sec. 124.6; in Sec. 124.14(b)(3)
use reference to Sec. 124.208 instead of Sec. 124.10; in Sec. 124.14(c)
use references to Sec. 124.207 instead of Sec. 124.10.
(g) Section 124.15 Issuance and effective date of permit. All
paragraphs apply, however, in the context of the RCRA standardized
permit use the reference to Sec. 124.208 instead of Sec. 124.10.
(h) Section 124.16 Stays of contested permit conditions. All
paragraphs apply.
(i) Section 124.17 Response to comments. This section does not
apply to the RCRA standardized permit; procedures in Sec. 124.209 apply
instead.
(j) Section 124.18 Administrative record for final permit when EPA
is the permitting authority. All paragraphs apply, however, use
references to Sec. 124.209 instead of Sec. 124.17.
(k) Section 124.19 Appeal of RCRA, UIC, and PSD permits. All
paragraphs apply.
(l) Section 124.20 Computation of time. All paragraphs apply.
Sec. 124.206 In what situations may I require a facility owner or
operator to apply for an individual permit?
(a) If you determine that a facility is not eligible for the
standardized permit, you must inform the facility owner or operator
that they must apply for an individual permit.
(b) You may require any facility that has a standardized permit to
apply for and obtain an individual RCRA permit. Any interested person
may petition you to take action under this paragraph. Cases where you
may require an individual RCRA permit include, but are not limited to,
the following:
(1) The facility is not in compliance with the terms and conditions
of the standardized RCRA permit.
(2) Circumstances have changed since the time the facility owner or
operator applied for the standardized permit, so that the facility's
hazardous waste management practices are no longer appropriately
controlled under the standardized permit.
(c) You may require any facility authorized by a standardized
permit to apply for an individual RCRA permit only if you have notified
the facility owner or operator in writing that an individual permit
application is required. You must include in this notice a brief
statement of the reasons for your decision, a statement setting a
deadline for the owner or operator to file the application, and a
statement that on the effective date of the individual RCRA permit the
standardized permit as it applies to their facility automatically
terminates. You may grant additional time upon request from the
facility owner or operator.
(d) When you issue an individual RCRA permit to an owner or
operator otherwise subject to a standardized RCRA permit, the
standardized permit for their facility will automatically cease to
apply on the effective date of the individual permit.
Opportunities for Public Involvement in the Standardized Permit
Process
Sec. 124.207 What are the requirements for public notices?
(a) You, as the Director, must provide public notice of your draft
permit decision and must provide an opportunity for the public to
submit comments and request a hearing on that decision. You must
provide the public notice to:
(1) The applicant;
(2) Any other agency which you know has issued or is required to
issue a RCRA permit for the same facility or activity (including EPA
when the draft permit is prepared by the State);
(3) Federal and State agencies with jurisdiction over fish,
shellfish, and wildlife resources and over coastal zone management
plans, the Advisory Council on Historic Preservation, State Historic
Preservation Officers, including any affected States;
(4) To everyone on the facility mailing list developed according to
the requirements in Sec. 124.10(c)(1)(ix); and
(5) To any units of local government having jurisdiction over the
area where the facility is proposed to be located and to each State
agency having any authority under State law with respect to the
construction or operation of the facility.
(b) You must issue the public notice according to the following
methods:
(1) Publication in a daily or weekly major local newspaper of
general circulation and broadcast over local radio stations;
(2) When the program is being administered by an approved State, in
a manner constituting legal notice to the public under State law; and
(3) Any other method reasonably calculated to give actual notice of
the draft permit decision to the persons potentially affected by it,
including press releases or any other forum or medium to elicit public
participation.
(c) You must include the following information in the public
notice:
(1) The name and telephone number of the contact person at the
facility.
(2) The name and telephone number of your contact office, and a
mailing address to which people may direct comments, information,
opinions, or inquiries.
(3) An address to which people may write to be put on the facility
mailing list.
(4) The location where people may view and make copies of the draft
standardized permit and the notice of intent and supporting documents.
(5) A brief description of the facility and proposed operations,
including the
[[Page 52245]]
address or a map (for example, a sketched or copied street map) of the
facility location on the front page of the notice.
(6) The date that the facility owner or operator submitted the
notice of intent and supporting documents.
(d) At the same time that you issue the public notice under this
section, you must place the draft standardized permit (including both
the uniform portion and the supplemental portion, if any), the notice
of intent and supporting documents, and the statement of basis or fact
sheet in a location accessible to the public in the vicinity of the
facility or at your office.
Sec. 124.208 What are the opportunities for public comments and
hearings on draft permit decisions?
(a) The public notice that you issue under Sec. 124.207 must allow
at least 45 days for people to submit written comments on your draft
permit decision. This time is referred to as the public comment period.
You must automatically extend the public comment period to the close of
any public hearing under this section. The hearing officer may also
extend the comment period by so stating at the hearing.
(b) During the public comment period, any interested person may
submit written comments on the draft permit and may request a public
hearing. If someone wants to request a public hearing, they must submit
their request in writing to you. Their request must state the nature of
the issues they propose to raise during the hearing.
(c) You must hold a public hearing whenever you receive a written
notice of opposition to a standardized permit and a request for a
hearing within the public comment period under paragraph (a) of this
section. You may also hold a public hearing at your discretion,
whenever, for instance, such a hearing might clarify one or more issues
involved in the permit decision.
(d) Whenever possible, you must schedule a hearing under this
section at a location convenient to the nearest population center to
the facility. You must give public notice of the hearing at least 30
days before the date set for the hearing. (You may give the public
notice of the hearing at the same time you provide public notices of
the draft permit, and you may combine the two notices).
(e) You must give public notice of the hearing according to the
methods in Sec. 124.207(a) and (b). The hearing must be conducted
according to the procedures in Sec. 124.12(b), (c), and (d).
(f) In their written comments and during the public hearing, if
held, interested parties may provide comments on the draft permit
decision. These comments may include, but are not limited to, the
facility's eligibility for the standardized permit, the tentative
supplemental conditions you proposed, and the need for additional
supplemental conditions.
Sec. 124.209 What are the requirements for responding to comments?
(a) At the time you issue a final standardized permit, you must
also respond to comments received during the public comment period on
the draft permit. Your response must:
(1) Specify which additional conditions (i.e., those in the
supplemental portion), if any, you changed in the final permit, and the
reasons for the change.
(2) Briefly describe and respond to all significant comments on the
facility's ability to meet the general requirements (i.e., those terms
and conditions in the uniform portion) and on any additional conditions
necessary to protect human health and the environment raised during the
public comment period or during the hearing.
(3) Be available to the public.
(b) You may request additional information from the facility owner
or operator or inspect the facility if you need additional information
to adequately respond to significant comments or to make decisions
about conditions you may need to add to the supplemental portion of the
standardized permit.
(c) If you are the Director of an EPA permitting agency, you must
include in the administrative record for your final permit decision any
documents cited in the response to comments. If new points are raised
or new material supplied during the public comment period, you may
document your response to those matters by adding new materials to the
administrative record.
Sec. 124.210 May I, as an interested party in the permit process,
appeal a final standardized permit?
You may petition for administrative review of the Director's final
permit decision, including his or her decision that the facility is
eligible for the standardized permit, according to the procedures of
Sec. 124.19. However, the terms and conditions of the uniform portion
of the standardized permit are not subject to administrative review
under this provision.
Maintaining a Standardized Permit
Sec. 124.211 What types of changes may I make to my standardized
permit?
You may make both routine and significant changes. For the purposes
of this section:
(a) ``Routine changes'' are any changes that qualify as a class 1
or 2 permit modification under 40 CFR 270.42, Appendix I, and
(b) ``Significant changes'' are any changes that
(1) Qualify as a class 3 permit modification under 40 CFR 270.42,
Appendix I,
(2) Are not explicitly identified in 40 CFR 270.42, Appendix I, or
(3) Amend any terms or conditions in the supplemental portion of
your standardized permit.
Sec. 124.212 What procedures must I follow to make routine changes?
(a) You can make routine changes without obtaining approval from
the Director.
(b) If the routine changes you make amend the information you
submitted under 40 CFR 270.275 with your notice of intent to operate
under the standardized permit, then before you make the routine changes
you must:
(1) Submit to the Director the revised information pursuant to 40
CFR 270.275(a), and
(2) Provide notice of the changes to the facility mailing list and
to state and local governments in accordance with the procedures in
Sec. 124.10(c)(1)(ix) and (x).
Sec. 124.213 What procedures must I follow to make significant
changes?
(a) You must first provide notice of and conduct a public meeting.
(1) Public Meeting. You must hold a meeting with the public to
solicit questions from the community and inform the community of your
proposed modifications to your hazardous waste management activities.
You must post a sign-in sheet or otherwise provide a voluntary
opportunity for people attending the meeting to provide their names and
addresses.
(2) Public Notice. At least 30 days before you plan to hold the
meeting you must issue a public notice in accordance with the
requirements of Sec. 124.31(d).
(b) After holding the public meeting, you must submit a
modification request to the Director that:
(1) Describes the exact change(s) you want and whether they are
changes to information you provide under 40 CFR 270.275 or to terms and
conditions in the supplemental portion of your standardized permit;
[[Page 52246]]
(2) Explains why the modification is needed, and
(3) Includes a summary of the public meeting under paragraph (a) of
this section, along with the list of attendees and their addresses and
copies of any written comments or materials they submitted at the
meeting.
(c) Once the Director receives your modification request, he or she
must make a tentative determination within 120 days to approve or
disapprove your request.
(d) After the Director makes this tentative determination, the
procedures in Sec. 124.205 and Secs. 124.207 through 124.210 for
processing an initial request for coverage under the standardized
permit apply to making the final determination on the modification
request.
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
8. The authority citation for Part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, and 6974.
9. In Sec. 260.10, the first sentence of paragraph (2) of the
definition of ``facility'' is revised to read as follows:
Sec. 260.10 Definitions
* * * * *
Facility * * *
(2) For the purpose of implementing corrective action under 40 CFR
264.101 or 267.101, all contiguous property under the control of the
owner or operator seeking a permit under subtitle C of RCRA. * * *
* * * * *
10. Part 267 is added to read as follows:
PART 267--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
FACILITIES OPERATING UNDER A STANDARDIZED PERMIT
Subpart A--General
Sec.
267.1 What are the purpose, scope and applicability of this part?
267.2 What is the relationship to interim status standards?
267.3 How does this part affect an imminent hazard action?
Subpart B--General Facility Standards
267.10 Does this subpart apply to me?
267.11 What must I do to comply with this subpart?
267.12 How do I obtain an identification number?
267.13 What are my waste analysis requirements?
267.14 What are my security requirements?
267.15 What are my general inspection requirements?
267.16 What training must my employees have?
267.17 What are the requirements for managing ignitable, reactive,
or incompatible wastes?
267.18 What are the standards for selecting the location of my
facility?
Subpart C--Preparedness and Prevention
267.30 Does this subpart apply to me?
267.31 What are the general design and operation standards?
267.32 What equipment am I required to have?
267.33 What are the testing and maintenance requirements for the
equipment?
267.34 When must personnel have access to communication equipment
or an alarm system?
267.35 How do I ensure access for personnel and equipment during
emergencies?
267.36 What arrangements must I make with local authorities for
emergencies?
Subpart D--Contingency Plan and Emergency Procedures
267.50 Does this subpart apply to me?
267.51 What is the purpose of the contingency plan and how do I use
it?
267.52 What must be in the contingency plan?
267.53 Who must have copies of the contingency plan?
267.54 When must I amend the contingency plan?
267.55 What is the role of the emergency coordinator?
267.56 What are the required emergency procedures for the emergency
coordinator?
267.57 What must the emergency coordinator do after an emergency?
267.58 What notification and recordkeeping must I do after an
emergency?
Subpart E--Recordkeeping, Reporting, and Notifying
267.70 Does this subpart apply to me?
267.71 What information must I keep?
267.72 Who sees the records and how long do I keep them?
267.73 What reports must I prepare and to whom who do I send them?
267.74 What notifications must I make?
Subpart F--Releases from Solid Waste Management Units
267.90 Who must comply with this section?
267.91-267.100 [Reserved]
267.101 What must I do to address corrective action for solid waste
management units?
Subpart G--Closure
267.110 Does this subpart apply to me?
267.111 What general standards must I meet when I stop operating
the unit?
267.112 What procedures must I follow?
267.113 Will the public have the opportunity to comment on the
plan?
267.114 What happens if the plan is not approved?
267.115 After I stop operating, how long until I must close?
267.116 What must I do with contaminated equipment, structure, and
soils?
267.117 How do I certify closure?
Subpart H--Financial Requirements
267.140 Who must comply with this subpart, and briefly, what do
they have to do?
267.141 Definitions of terms as used in this subpart.
267.142 Cost estimate for closure.
267.143 Financial assurance for closure.
267.144-267.146 [Reserved]
267.147 Liability requirements.
267.148 Incapacity of owners or operators, guarantors, or financial
institutions.
267.149 [Reserved]
267.150 State assumption of responsibility.
Subpart I--Use and Management of Containers
267.170 Does this subpart apply to me?
267.171 What standards apply to the containers?
267.172 What are the inspection requirements?
267.173 What standards apply to the container storage areas?
267.174 What special requirements must I meet for ignitable or
reactive waste?
267.175 What special requirements must I meet for incompatible
wastes?
267.176 What must I do when I want to stop using the containers?
267.177 What air emission standards apply?
Subpart J--Tank Systems
267.190 Does this subpart apply to me?
267.191 What are the required design and construction standards for
new tank systems or components?
267.192 What handling and inspection procedures must I follow
during installation of new tank systems?
267.193 What testing must I do?
267.194 What installation requirements must I follow?
267.195 What are the secondary containment requirements?
267.196 What are the required devices for secondary containment
and what are their design, operating and installation requirements?
267.197 What are the requirements for ancillary equipment?
267.198 What are the general operating requirements for my tank
systems?
267.199 What inspection requirements must I meet?
267.200 What must I do in case of a leak or a spill?
267.201 What must I do when I stop operating the tank system?
267.202 What special requirements must I meet for ignitable or
reactive wastes?
267.203 What special requirements must I meet for incompatible
wastes?
267.204 What air emission standards apply?
Subparts K Through CC [Reserved]
Subpart DD--Containment buildings
267.1100 Does this subpart apply to me?
267.1101 What design and operating standards must my containment
building meet?
[[Page 52247]]
267.1102 What other requirements must I meet to prevent releases?
267.1103 What additional design and operating standards apply if
liquids will be in my containment building?
267.1104 How may I obtain a waiver from secondary containment
requirements?
267.1105 What do I do if my containment building contains areas
both with and without secondary containment?
267.1106 What do I do if I detect a release?
267.1107 Can a containment building itself be considered secondary
containment?
267.1108 What must I do when I stop operating the containment
building?
Authority: 42 U.S.C. 6902, 6912(a), 6924-6926, and 6930.
Subpart A--General
Sec. 267.1 What are the purpose, scope and applicability of this part?
(a) The purpose of this part is to establish minimum national
standards which define the acceptable management of hazardous waste
under a 40 CFR part 270, subpart I standardized permit.
(b) This part applies to owners and operators of facilities who
treat or store hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided otherwise in 40 CFR part 261,
subpart A, or 40 CFR 264.1(f) and (g).
Sec. 267.2 What is the relationship to interim status standards?
If you are a facility owner or operator who has fully complied with
the requirements for interim status--as defined in section 3005(e) of
RCRA and regulations under 40 CFR 270.70--you must comply with the
regulations specified in 40 CFR part 265 instead of the regulations in
this part, until final administrative disposition of the standardized
permit application is made, except as provided under 40 CFR part 264,
subpart S.
Sec. 267.3 How does this part affect an imminent hazard action?
Notwithstanding any other provisions of this part, enforcement
actions may be brought pursuant to section 7003 of RCRA.
Subpart B--General Facility Standards
Sec. 267.10 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided in Sec. 267.1(b).
Sec. 267.11 What must I do to comply with this subpart?
To comply with this subpart, you must obtain an identification
number, and follow the requirements below for waste analysis, security,
inspections, training, special waste handling, and location standards.
Sec. 267.12 How do I obtain an identification number?
You must apply to EPA for an EPA identification number following
the EPA notification procedures and using EPA form 8700-12. You may
obtain information and required forms from your state hazardous waste
regulatory agency or from your EPA regional office.
Sec. 267.13 What are my waste analysis requirements?
(a) Before you treat or store any hazardous wastes, you must obtain
a detailed chemical and physical analysis of a representative sample of
the wastes. At a minimum, the analysis must contain all the information
needed to treat or store the waste to comply with this part and 40 CFR
part 268.
(1) You may include data in the analysis that was developed under
40 CFR part 261, and published or documented data on the hazardous
waste or on hazardous waste generated from similar processes.
(2) You must repeat the analysis as necessary to ensure that it is
accurate and up to date. At a minimum, you must repeat the analysis if
the process or operation generating the hazardous wastes has changed.
(b) You must develop and follow a written waste analysis plan that
describes the procedures you will follow to comply with paragraph (a)
of this section. You must keep this plan at the facility. At a minimum,
the plan must specify all of the following:
(1) The hazardous waste parameters that you will analyze and the
rationale for selecting these parameters (that is, how analysis for
these parameters will provide sufficient information on the waste's
properties to comply with paragraph (a) of this section).
(2) The test methods you will use to test for these parameters.
(3) The sampling method you will use to obtain a representative
sample of the waste to be analyzed. You may obtain a representative
sample using either:
(i) One of the sampling methods described in appendix I of 40 CFR
part 261; or
(ii) An equivalent sampling method.
(4) How frequently you will review or repeat the initial analysis
of the waste to ensure that the analysis is accurate and up to date.
(5) Where applicable, the methods you will use to meet the
additional waste analysis requirements for specific waste management
methods as specified in 40 CFR 264.17, 264.1034(d), 264.1063(d), and
264.1083.
Sec. 267.14 What are my security requirements?
(a) You must prevent, and minimize the possibility for, livestock
and unauthorized people from entering the active portion of your
facility, unless you are exempt from the requirements because:
(1) Physical contact with the waste, structures, or equipment
within the active portion of the facility will not injure people or
livestock; and
(2) Disturbing the waste or equipment will not cause a violation of
the requirements of this part.
(b) You must keep records at the facility justifying the reasons
for your waiver under paragraphs (a)(1) and (2) of this section.
(c) Unless you are exempt under paragraphs (a)(1) and (2) of this
section, your facility must have:
(1) A 24-hour surveillance system (for example, television
monitoring or surveillance by guards or facility personnel) that
continuously monitors and controls entry onto the active portion of the
facility; or
(2) An artificial or natural barrier (for example, a fence in good
repair or a fence combined with a cliff) that completely surrounds the
active portion of the facility; and
(3) A means to control entry, at all times, through the gates or
other entrances to the active portion of the facility (for example, an
attendant, television monitors, locked entrance, or controlled roadway
access to the facility).
(d) Unless you are exempt under paragraphs (a)(1) and (2) of this
section, you must post a sign at each entrance to the active portion of
a facility, and at other prominent locations, in sufficient numbers to
be seen from any approach to this active portion. The sign must bear
the legend ``Danger--Unauthorized Personnel Keep Out.'' The legend must
be in English and in any other language predominant in the area
surrounding the facility (for example, facilities in counties bordering
the Canadian province of Quebec must post signs in French, and
facilities in counties bordering Mexico must post signs in Spanish),
and must be legible from a distance of at least 25 feet. You may use
existing signs with a legend other than ``Danger--Unauthorized
Personnel Keep Out'' if the legend on the sign indicates that only
authorized personnel are allowed to enter the active portion, and that
entry onto the active portion can be dangerous.
[[Page 52248]]
Sec. 267.15 What are my general inspection requirements?
(a) You must inspect your facility for malfunctions and
deterioration, operator errors, and discharges that may be causing, or
may lead to:
(1) Release of hazardous waste constituents to the environment; or
(2) A threat to human health. You must conduct these inspections
often enough to identify problems in time to correct them before they
result in harm to human health or the environment.
(b) You must develop and follow a written schedule for inspecting
monitoring equipment, safety and emergency equipment, security devices,
and operating and structural equipment (such as dikes and sump pumps)
that are important to preventing, detecting, or responding to
environmental or human health hazards.
(1) You must keep this schedule at the facility.
(2) The schedule must identify the equipment and devices you will
inspect and what problems you look for, such as malfunctions or
deterioration of equipment (for example, inoperative sump pump, leaking
fitting, etc.).
(3) The frequency of your inspections may vary for the items on the
schedule. However, the frequency should be based on the rate of
deterioration of the equipment and the probability of an environmental
or human health incident if the deterioration, malfunction, or any
operator error goes undetected between inspections. Areas subject to
spills, such as loading and unloading areas, must be inspected daily
when in use. At a minimum, the inspection schedule must include the
items and frequencies required in Secs. 267.174, 267.193, 267.195,
267.1103, and 40 CFR 264.1033, 264.1052, 264.1053, 264.1058, and
264.1083 through 264.1089, where applicable.
(c) You must remedy any deterioration or malfunction of equipment
or structures that the inspection reveals in time to prevent any
environmental or human health hazard. Where a hazard is imminent or has
already occurred, you must take remedial action immediately.
(d) You must record all inspections. You must keep these records
for at least three years from the date of inspection. At a minimum, you
must include the date and time of the inspection, the name of the
inspector, a notation of the observations made, and the date and nature
of any repairs or other remedial actions.
Sec. 267.16 What training must my employees have?
(a) Your facility personnel must successfully complete a program of
classroom instruction or on-the-job training that teaches them to
perform their duties in a way that ensures the facility's compliance
with the requirements of this part. You must ensure that this program
includes all the elements described in the documents that are required
under paragraph (d)(3) of this section.
(1) A person trained in hazardous waste management procedures must
direct this program, and must teach facility personnel hazardous waste
management procedures (including contingency plan implementation)
relevant to their employment positions.
(2) At a minimum, the training program must be designed to ensure
that facility personnel are able to respond effectively to emergencies
by including instruction on emergency procedures, emergency equipment,
and emergency systems, including all of the following, where
applicable:
(i) Procedures for using, inspecting, repairing, and replacing
facility emergency and monitoring equipment.
(ii) Key parameters for automatic waste feed cut-off systems.
(iii) Communications or alarm systems.
(iv) Response to fires or explosions.
(v) Response to ground water contamination incidents.
(vi) Shutdown of operations.
(b) Facility personnel must successfully complete the program
required in paragraph (a) of this section within six months after the
date of their employment or assignment to a facility, or to a new
position at a facility, whichever is later. Employees hired after the
effective date of your standardized permit must not work in
unsupervised positions until they have completed the training
requirements of paragraph (a) of this section.
(c) Facility personnel must take part in an annual review of the
initial training required in paragraph (a) of this section.
(d) You must maintain the following documents and records at your
facility:
(1) The job title for each position at the facility related to
hazardous waste management, and the name of the employee filling each
job;
(2) A written job description for each position listed under
paragraph (d)(1) of this section. This description must include the
requisite skill, education, or other qualifications, and duties of
employees assigned to each position;
(3) A written description of the type and amount of both
introductory and continuing training that will be given to each person
filling a position listed under paragraph (d)(1) of this section;
(4) Records that document that facility personnel have received and
completed the training or job experience required under paragraphs (a),
(b), and (c) of this section.
(e) You must keep training records on current personnel until your
facility closes. You must keep training records on former employees for
at least three years from the date the employee last worked at your
facility. Personnel training records may accompany personnel
transferred within your company.
Sec. 267.17 What are the requirements for managing ignitable,
reactive, or incompatible wastes?
(a) You must take precautions to prevent accidental ignition or
reaction of ignitable or reactive waste by following these
requirements:
(1) You must separate these wastes and protect them from sources of
ignition or reaction such as: open flames, smoking, cutting and
welding, hot surfaces, frictional heat, sparks (static, electrical, or
mechanical), spontaneous ignition (for example, from heat-producing
chemical reactions), and radiant heat.
(2) While ignitable or reactive waste is being handled, you must
confine smoking and open flames to specially designated locations.
(3) ``No Smoking'' signs must be conspicuously placed wherever
there is a hazard from ignitable or reactive waste.
(b) If you treat or store ignitable or reactive waste, or mix
incompatible waste or incompatible wastes and other materials, you must
take precautions to prevent reactions that:
(1) Generate extreme heat or pressure, fire or explosions, or
violent reactions.
(2) Produce uncontrolled toxic mists, fumes, dusts, or gases in
sufficient quantities to threaten human health or the environment.
(3) Produce uncontrolled flammable fumes or gases in sufficient
quantities to pose a risk of fire or explosions.
(4) Damage the structural integrity of the device or facility.
(5) Threaten human health or the environment in any similar way.
(c) You must document compliance with paragraph (a) or (b) of this
section. You may base this documentation on references to published
scientific or engineering literature, data from trial tests (for
example bench scale or pilot scale tests), waste analyses (as specified
in Sec. 267.13), or the results of the treatment of similar wastes by
similar
[[Page 52249]]
treatment processes and under similar operating conditions.
Sec. 267.18 What are the standards for selecting the location of my
facility?
(a) You may not locate portions of new facilities where hazardous
waste will be treated or stored within 61 meters (200 feet) of a fault
that has had displacement in Holocene time.
(1) ``Fault'' means a fracture along which rocks on one side have
been displaced with respect to those on the other side.
(2) ``Displacement'' means the relative movement of any two sides
of a fault measured in any direction.
(3) ``Holocene'' means the most recent epoch of the Quaternary
period, extending from the end of the Pleistocene to the present.
Note to paragraph (a)(3): Procedures for demonstrating
compliance with this standard are specified in 40 CFR 270.14(b)(11).
Facilities which are located in political jurisdictions other than
those listed in appendix VI of 40 CFR part 264, are assumed to be in
compliance with this requirement.
(b) If your facility is located in a 100-year flood plain, it must
be designed, constructed, operated, and maintained to prevent washout
or any hazardous waste by a 100-year flood, unless you can demonstrate
to the Director's satisfaction that you will safely remove the waste,
before flood waters can reach the facility, to a location where the
wastes will not be vulnerable to flood waters.
(1) ``100-year flood plain'' means any land area that is subject to
a one percent or greater chance of flooding in any given year from any
source.
(2) ``Washout'' means the movement of hazardous waste from the
active portion of the facility as a result of flooding.
(3) ``100-year flood'' means a flood that has a one percent chance
of being equaled or exceeded in any given year.
Subpart C--Preparedness and Prevention
Sec. 267.30 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided in Sec. 267.1(b).
Sec. 267.31 What are the general design and operation standards?
You must design, construct, maintain, and operate your facility to
minimize the possibility of a fire, explosion, or any unplanned sudden
or non-sudden release of hazardous waste or hazardous waste
constituents to air, soil, or surface water that could threaten human
health or the environment.
Sec. 267.32 What equipment am I required to have?
Your facility must be equipped with all of the following, unless
none of the hazards posed by waste handled at the facility could
require a particular kind of equipment specified below:
(a) An internal communications or alarm system capable of providing
immediate emergency instruction (voice or signal) to facility
personnel.
(b) A device, such as a telephone (immediately available at the
scene of operations) or a hand-held two-way radio, capable of summoning
emergency assistance from local police departments, fire departments,
or State or local emergency response teams.
(c) Portable fire extinguishers, fire control equipment (including
special extinguishing equipment, such as that using foam, inert gas, or
dry chemicals), spill control equipment, and decontamination equipment.
(d) Water at adequate volume and pressure to supply water hose
streams, or foam-producing equipment, or automatic sprinklers, or water
spray systems.
Sec. 267.33 What are the testing and maintenance requirements for the
equipment?
You must test and maintain all required facility communications or
alarm systems, fire protection equipment, spill control equipment, and
decontamination equipment, as necessary, to assure its proper operation
in time of emergency.
Sec. 267.34 When must personnel have access to communication equipment
or an alarm system?
(a) Whenever hazardous waste is being poured, mixed, spread, or
otherwise handled, all personnel involved in the operation must have
immediate access to an internal alarm or emergency communication
device, either directly or through visual or voice contact with another
employee, unless the device is not required under Sec. 267.32.
(b) If just one employee is on the premises while the facility is
operating, that person must have immediate access to a device, such as
a telephone (immediately available at the scene of operation) or a
hand-held two-way radio, capable of summoning external emergency
assistance, unless not required under Sec. 267.32.
Sec. 267.35 How do I ensure access for personnel and equipment during
emergencies?
You must maintain enough aisle space to allow the unobstructed
movement of personnel, fire protection equipment, spill control
equipment, and decontamination equipment to any area of facility
operation in an emergency.
Sec. 267.36 What arrangements must I make with local authorities for
emergencies?
(a) You must attempt to make the following arrangements, as
appropriate for the type of waste handled at your facility and the
potential need for the services of these organizations:
(1) Arrangements to familiarize police, fire departments, and
emergency response teams with the layout of the facility, properties of
hazardous waste handled at the facility and associated hazards, places
where facility personnel would normally be working, entrances to and
roads inside the facility, and possible evacuation routes.
(2) Agreements designating primary emergency authority to a
specific police and a specific fire department where more than one
police and fire department might respond to an emergency, and
agreements with any others to provide support to the primary emergency
authority.
(3) Agreements with State emergency response teams, emergency
response contractors, and equipment suppliers.
(4) Arrangements to familiarize local hospitals with the properties
of hazardous waste handled at the facility and the types of injuries or
illnesses that could result from fires, explosions, or releases at the
facility.
(b) If State or local authorities decline to enter into such
arrangements, you must document the refusal in the operating record.
Subpart D--Contingency Plan and Emergency Procedures
Sec. 267.50 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided in Sec. 267.1(b).
Sec. 267.51 What is the purpose of the contingency plan and how do I
use it?
(a) You must have a contingency plan for your facility. You must
design the plan to minimize hazards to human health or the environment
from fires, explosions, or any unplanned sudden or non-sudden release
of hazardous waste or hazardous waste constituents to air, soil, or
surface water.
(b) You must implement the provisions of the plan immediately
[[Page 52250]]
whenever there is a fire, explosion, or release of hazardous waste or
hazardous waste constituents which could threaten human health or the
environment.
Sec. 267.52 What must be in the contingency plan?
(a) Your contingency plan must:
(1) Describe the actions facility personnel will take to comply
with Secs. 267.51 and 267.56 in response to fires, explosions, or any
unplanned sudden or non-sudden release of hazardous waste or hazardous
waste constituents to air, soil, or surface water at the facility.
(2) Describe all arrangements agreed upon under Sec. 267.36 by
local police departments, fire departments, hospitals, contractors, and
state and local emergency response teams to coordinate emergency
services.
(3) List names, addresses, and phone numbers (office and home) of
all persons qualified to act as emergency coordinator (see
Sec. 267.55), and you must keep the list up to date. Where more than
one person is listed, one must be named as primary emergency
coordinator and others must be listed in the order in which they will
assume responsibility as alternates.
(4) Include a current list of all emergency equipment at the
facility (such as fire extinguishing systems, spill control equipment,
communications and alarm systems (internal and external), and
decontamination equipment), where this equipment is required. In
addition, you must include the location and a physical description of
each item on the list, and a brief outline of its capabilities.
(5) Include an evacuation plan for facility personnel where there
is a possibility that evacuation could be necessary. You must describe
signal(s) to be used to begin evacuation, evacuation routes, and
alternate evacuation routes (in cases where the primary routes could be
blocked by releases of hazardous waste or fires).
(b) If you have already prepared a Spill Prevention, Control, and
Countermeasures (SPCC) Plan under 40 CFR part 112, or some other
emergency or contingency plan, you need only amend that plan to
incorporate hazardous waste management provisions that will comply with
the requirements of this part.
Sec. 267.53 Who must have copies of the contingency plan?
(a) You must maintain a copy of the plan with all revisions at the
facility; and
(b) You must submit a copy with all revisions to all local police
departments, fire departments, hospitals, and state and local emergency
response teams that may be called upon to provide emergency services.
Sec. 267.54 When must I amend the contingency plan?
You must review, and immediately amend the contingency plan, if
necessary, whenever:
(a) The facility permit is revised.
(b) The plan fails in an emergency.
(c) You change the facility (in its design, construction,
operation, maintenance, or other circumstances) in a way that
materially increases the potential for fires, explosions, or releases
of hazardous waste or hazardous waste constituents, or changes the
response necessary in an emergency.
(d) You change the list of emergency coordinators.
(e) You change the list of emergency equipment.
Sec. 267.55 What is the role of the emergency coordinator?
At least one employee must be either on the facility premises or on
call at all times (that is, available to respond to an emergency by
reaching the facility within a short period of time) who has the
responsibility for coordinating all emergency response measures. This
emergency coordinator must be thoroughly familiar with all aspects of
the facility's contingency plan, all operations and activities at the
facility, the location and characteristics of waste handled, the
location of all records within the facility, and the facility layout.
In addition, this person must have the authority to commit the
resources needed to carry out the contingency plan.
Sec. 267.56 What are the required emergency procedures for the
emergency coordinator?
(a) Whenever there is an imminent or actual emergency situation,
the emergency coordinator (or his designee when the emergency
coordinator is on call) must immediately:
(1) Activate internal facility alarm or communication systems,
where applicable, to notify all facility personnel, and
(2) Notify appropriate State or local agencies with designated
response roles if their help is needed.
(b) Whenever there is a release, fire, or explosion, the emergency
coordinator must:
(1) Immediately identify the character, exact source, amount, and
areal extent of any released materials. He may do this by observation
or review of facility records or manifests, and, if necessary, by
chemical analysis.
(2) Assess possible hazards to human health or the environment that
may result from the release, fire, or explosion. This assessment must
consider both direct and indirect effects of the release, fire, or
explosion. For example the assessment would consider the effects of any
toxic, irritating, or asphyxiating gases that are generated, or the
effects of any hazardous surface water run-off from water or chemical
agents used to control fire and heat-induced explosions.
(c) If the emergency coordinator determines that the facility has
had a release, fire, or explosion which could threaten human health, or
the environment, outside the facility, he must report his findings as
follows:
(1) If his assessment indicates that evacuation of local areas may
be advisable, he must immediately notify appropriate local authorities.
He must be available to help appropriate officials decide whether local
areas should be evacuated; and
(2) He must immediately notify either the government official
designated as the on-scene coordinator for that geographical area, or
the National Response Center (using their 24-hour toll-free number 800/
424-8802). The report must include:
(i) Name and telephone number of the reporter.
(ii) Name and address of facility.
(iii) Time and type of incident (for example, a release or a fire).
(iv) Name and quantity of material(s) involved, to the extent
known.
(v) The extent of injuries, if any.
(vi) The possible hazards to human health or the environment
outside the facility.
(d) During an emergency, the emergency coordinator must take all
reasonable measures necessary to ensure that fires, explosions, and
releases do not occur, recur, or spread to other hazardous waste at the
facility. These measures must include, where applicable, stopping
processes and operations, collecting and containing release waste, and
removing or isolating containers.
(e) If the facility stops operations in response to a fire,
explosion, or release, the emergency coordinator must monitor for
leaks, pressure buildup, gas generation, or ruptures in valves, pipes,
or other equipment, when appropriate.
Sec. 267.57 What must the emergency coordinator do after an emergency?
(a) Immediately after an emergency, the emergency coordinator must
provide for treating, storing, or disposing of recovered waste,
contaminated soil or surface water, or any other material that
[[Page 52251]]
results from a release, fire, or explosion at the facility.
(b) The emergency coordinator must ensure that, in the affected
area(s) of the facility:
(1) No waste that may be incompatible with the released material is
treated, stored, or disposed of until cleanup procedures are completed.
(2) All emergency equipment listed in the contingency plan is
cleaned and fit for its intended use before operations are resumed.
Sec. 267.58 What notification and recordkeeping must I do after an
emergency?
(a) You must notify the Regional Administrator, and appropriate
State and local authorities, that the facility is in compliance with
Sec. 267.57 (b) before operations are resumed in the affected area(s)
of the facility.
(b) You must note the time, date, and details of any incident that
requires implementing the contingency plan in the operating record.
Within 15 days after the incident, you must submit a written report on
the incident to the Regional Administrator. You must include the
following in the report:
(1) The name, address, and telephone number of the owner or
operator.
(2) The name, address, and telephone number of the facility.
(3) The date, time, and type of incident (e.g., fire, explosion).
(4) The name and quantity of material(s) involved.
(5) The extent of injuries, if any.
(6) An assessment of actual or potential hazards to human health or
the environment, where this is applicable.
(7) The estimated quantity and disposition of recovered material
that resulted from the incident.
Subpart E--Recordkeeping, Reporting, and Notifying
Sec. 267.70 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided in Sec. 267.1(b). In addition,
you must comply with the manifest requirements of 40 CFR part 262
whenever a shipment of hazardous waste is initiated from your facility.
Sec. 267.71 What information must I keep?
(a) You must keep a written operating record at your facility.
(b) You must record the following information, as it becomes
available, and maintain the operating record until you close the
facility:
(1) A description and the quantity of each type of hazardous waste
generated, and the method(s) and date(s) of its storage and/or
treatment at the facility as required by Appendix I of 40 CFR part 264;
(2) The location of each hazardous waste within the facility and
the quantity at each location;
(3) Records and results of waste analyses and waste determinations
you perform as specified in Secs. 267.13, 267.17, and 40 CFR 264.1034,
264.1063, 264.1083, and 268.7;
(4) Summary reports and details of all incidents that require you
to implement the contingency plan as specified in Sec. 267.858(b));
(5) Records and results of inspections as required by
Sec. 267.15(d) (except you need to keep these data for only three
years);
(6) Monitoring, testing or analytical data, and corrective action
when required by subpart F of this part and Secs. 267.191, 267.193,
267.195, and 40 CFR 264.1034(c) through 264.1034(f), 264.1035,
264.1063(d) through 264.1063(i), 264.1064, 264.1088, 264.1089, and
264.1090;
(7) All closure cost estimates under Sec. 267.142;
(8) Your certification, at least annually, that you have a program
in place to reduce the volume and toxicity of hazardous waste that you
generate to the degree that you determine to be economically
practicable; and that the proposed method of treatment or storage is
that practicable method currently available to you that minimizes the
present and future threat to human health and the environment;
(9) For an on-site treatment facility, the information contained in
the notice (except the manifest number), and the certification and
demonstration if applicable, required by you under 40 CFR 268.7; and
(10) For an on-site storage facility, the information in the notice
(except the manifest number), and the certification and demonstration
if applicable, required by you under 40 CFR 268.7.
Sec. 267.72 Who sees the records and how long do I keep them?
(a) You must furnish all records, including plans, required under
this part upon the request of any officer, employee, or representative
of EPA who is duly designated by the Administrator, and make them
available at all reasonable times for inspection.
(b) The retention period for all records required under this part
is extended automatically during the course of any unresolved
enforcement action involving the facility or as requested by the
Administrator.
Sec. 267.73 What reports must I prepare and to whom who do I send
them?
You must prepare a biennial report and other reports listed in
paragraph (b) of this section.
(a) Biennial report. You must prepare and submit a single copy of a
biennial report to the Regional Administrator by March 1 of each even
numbered year. The biennial report must be submitted on EPA form 8700-
13B. The report must cover facility activities during the previous
calendar year and must include:
(1) The EPA identification number, name, and address of the
facility;
(2) The calendar year covered by the report;
(3) The method of treatment or storage for each hazardous waste;
(4) The most recent closure cost estimate under Sec. 267.142; and,
(5) A description of the efforts undertaken during the year to
reduce the volume and toxicity of generated waste.
(6) A description of the changes in volume and toxicity of waste
actually achieved during the year in comparison to previous years to
the extent such information is available for the years prior to 1984.
(7) The certification signed by you.
(b) Additional reports. In addition to submitting the biennial
reports, you must also report to the Regional Administrator:
(1) Releases, fires, and explosions as specified in Sec. 267.58(b)
;
(2) Facility closures specified in Sec. 267.117; and,
(3) As otherwise required by subparts I, J, and DD of this part and
part 264, subparts AA, BB, CC.
Sec. 267.74 What notifications must I make?
Before transferring ownership or operation of a facility during its
operating life, you must notify the new owner or operator in writing of
the requirements of this part and 40 CFR part 270, subpart I.
Subpart F--Releases from Solid Waste Management Units
Sec. 267.90 Who must comply with this section?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided in Sec. 267.1(b), or unless
your facility already has a permit that imposes requirements for
corrective action under 40 CFR 264.101.
[[Page 52252]]
Secs. 267.91-267.100 [Reserved]
Sec. 267.101 What must I do to address corrective action for solid
waste management units?
(a) You must institute corrective action as necessary to protect
human health and the environment for all releases of hazardous waste or
constituents from any solid waste management unit at the facility,
regardless of the time at which waste was placed in such unit.
(b) The Regional Administrator will specify corrective action in
the supplemental portion of your standardized permit in accordance with
this section and 40 CFR part 264, subpart S. The Regional Administrator
will include in the supplemental portion of your standardized permit
schedules of compliance for corrective action (where corrective action
cannot be completed prior to issuance of the permit) and assurances of
financial responsibility for completing corrective action.
(c) You must implement corrective action beyond the facility
property boundary, where necessary to protect human health and the
environment, unless you demonstrate to the satisfaction of the Regional
Administrator that, despite your best efforts, you were unable to
obtain the necessary permission to undertake such actions. You are not
relieved of all responsibility to clean up a release that has migrated
beyond the facility boundary where off -site access is denied. On-site
measures to address such releases will be determined on a case-by-case
basis. You must provide assurances of financial responsibility for such
corrective action.
(d) You do not have to comply with this section if you are the
owner or operator of a remediation waste site unless your site is part
of a facility that is subject to a permit for treating, storing, or
disposing of hazardous wastes that are not remediation wastes.
Subpart G--Closure
Sec. 267.110 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste under a 40 CFR part 270, subpart I
standardized permit, except as provided in Sec. 267.1(b).
Sec. 267.111 What general standards must I meet when I stop operating
the unit?
You must close the storage and treatment units in a manner that:
(a) Minimizes the need for further maintenance; and
(b) Controls, minimizes, or eliminates, to the extent necessary to
protect human health and the environment, post-closure escape of
hazardous waste, hazardous constituents, leachate, contaminated run-
off, or hazardous waste decomposition products to the ground or surface
waters or to the atmosphere; and
(c) Meets the closure requirements of this subpart and the
requirements of Secs. 267.176, 267.201, and 267.1108.
Sec. 267.112 What procedures must I follow?
To close a facility, you must have an approved closure plan and
follow notification requirements.
(a) Submit a written closure plan.
(1) You must have a written closure plan. You must submit the plan
at least 180 days prior to closure. The Director must approve the
closure plan before closure work at the facility begins, and the plan
will become a condition of any RCRA permit.
(2) The Director's approval of the plan must ensure that the
approved plan is consistent with Secs. 267.111 through 267.115,
267.176, 267.201, and 267.1108.
(b) Satisfy the requirements for content of closure plan. The
closure plan must identify steps necessary to perform partial and/or
final closure of the facility. The closure plan must include, at least:
(1) A description of how each hazardous waste management unit at
the facility subject to this subpart will be closed following
Sec. 267.111.
(2) A description of how final closure of the facility will be
conducted in accordance with Sec. 267.111. The description must
identify the maximum extent of the operations which will be unclosed
during the active life of the facility.
(3) An estimate of the maximum inventory of hazardous wastes ever
on site during the active life of the facility and a detailed
description of the methods you will use during partial and/or final
closure, such as methods for removing, transporting, treating, storing,
or disposing of all hazardous wastes, and identification of the type(s)
of off-site hazardous waste management units to be used, if applicable.
(4) A detailed description of the steps needed to remove or
decontaminate all hazardous waste residues and contaminated containment
system components, equipment, structures, and soils during partial or
final closure. These might include procedures for cleaning equipment
and removing contaminated soils, methods for sampling and testing
surrounding soils, and criteria for determining the extent of
decontamination required to satisfy the closure performance standard;
(5) A detailed description of other activities necessary during the
closure period to ensure that partial or final closure satisfies the
closure performance standards.
(6) A schedule for closure of each hazardous waste management unit,
and for final closure of the facility. The schedule must include, at a
minimum, the total time required to close each hazardous waste
management unit and the time required for intervening closure
activities that allow tracking of progress of partial or final closure.
(c) You may submit a written request to the Director for a permit
modification, following applicable procedures in 40 CFR 124.211 to
amend the closure plan at any time before the notification of final
closure of the facility. You must include a copy of the amended closure
plan with the written request for review or approval by the Director.
The Director will approve, disapprove, or modify this amended plan in
accordance with the procedures in 40 CFR 124.211 and 270.320.
(d) Notification before final closure. (1) You must notify the
Director in writing at least 45 days before the date that you expect to
begin final closure of a treatment or storage tank, container storage,
or containment building.
(2) The date when you ``expect to begin closure'' must be no later
than 30 days after the date that any hazardous waste management unit
receives the known final volume of hazardous wastes.
(3) If your facility's permit is terminated, or if you are
otherwise ordered, by judicial decree or final order under Section 3008
of RCRA, to cease receiving hazardous wastes or to close, then the
requirements of this paragraph (d) do not apply. However, you must
close the facility following the deadlines established in Sec. 267.115.
Sec. 267.113 Will the public have the opportunity to comment on the
plan?
(a) The Director will provide you and the public, through a
newspaper notice, the opportunity to submit written comments on the
plan and to request modifications to the plan no later than 30 days
from the date of the notice. The Director will also, in response to a
request or at his/her own discretion, hold a public hearing whenever
such a hearing might clarify one or more issues concerning the closure
plan.
(b) The Director will give public notice of the hearing 30 days
before it occurs. Public notice of the hearing may be given at the same
time as notice of the opportunity for the public to submit written
comments, and the two notices may be combined.
[[Page 52253]]
(c) The Director will approve, modify, or disapprove the plan
within 60 days of its receipt.
Sec. 267.114 What happens if the plan is not approved?
(a) If the Director does not approve the plan, he must provide you
with a detailed written statement of reasons for the refusal and you
must then modify the plan or submit a new plan for approval within 30
days after receiving this written statement. The Director will approve
or modify this new plan in writing within 60 days.
(b) If the Director modifies the plan, this modified plan becomes
the approved closure plan. The Director must assure that the approved
plan is consistent with Secs. 267.111 through 267.115, Secs. 267.176,
267.201, and 267.1108. The Director must mail a copy of the modified
plan with a detailed statement of reasons for the modifications to you.
Sec. 267.115 After I stop operating, how long until I must close?
(a) Within 90 days after the final volume of hazardous waste is
sent to a unit, you must treat or remove from the unit all hazardous
wastes following the approved closure plan.
(b) You must complete final closure activities following the
approved closure plan within 180 days after the final volume of
hazardous wastes is sent to the unit.
(c) Nothing in this section precludes you from removing hazardous
wastes and decontaminating or dismantling equipment in accordance with
the approved final closure plan at any time before or after
notification of final closure.
Sec. 267.116 What must I do with contaminated equipment, structure,
and soils?
You must properly dispose of or decontaminate all contaminated
equipment, structures, and soils during the partial and final closure
periods. By removing any hazardous wastes or hazardous constituents
during partial and final closure, you may become a generator of
hazardous waste and must handle that waste following all applicable
requirements of 40 CFR part 262.
Sec. 267.117 How do I certify closure?
Within 60 days of the completion of final closure of each unit
under a part 270 subpart I standardized permit, you must submit to the
Director, by registered mail, a certification that each hazardous waste
management unit or facility, as applicable, has been closed following
the specifications in the closure plan. Both you and an independent
registered professional engineer must sign the certification. You must
furnish documentation supporting the independent registered
professional engineer's certification to the Director upon request
until he releases you from the financial assurance requirements for
closure under Sec. 267.143(i).
Subpart H--Financial Requirements
Sec. 267.140 Who must comply with this subpart, and briefly, what do
they have to do?
(a) The regulations in this subpart apply to owners and operators
who treat or store hazardous waste under a standardized permit, except
as provided in Sec. 267.1(b), or paragraph (d) of this section.
(b) The owner or operator must:
(1) Prepare a closure cost estimate as required in Sec. 267.142,
(2) Demonstrate financial assurance for closure as required in
Sec. 267.143, and
(3) Demonstrate financial assurance for liability as required in
Sec. 267.147.
(c) The owner or operator must notify the Regional Administrator if
the owner or operator is named as a debtor in a bankruptcy proceeding
under Title 11 (Bankruptcy), U. S. Code. (See also Sec. 267.148)
(d) States and the Federal government are exempt from the
requirements of this subpart.
Sec. 267.141 Definitions of terms as used in this subpart.
(a) Closure plan means the plan for closure prepared in accordance
with the requirements of Sec. 267.112.
(b) Current closure cost estimate means the most recent of the
estimates prepared in accordance with Sec. 267.142 (a), (b), and (c).
(c) [Reserved]
(d) Parent corporation means a corporation which directly owns at
least 50 percent of the voting stock of the corporation which is the
facility owner or operator; the latter corporation is deemed a
``subsidiary'' of the parent corporation.
(e) [Reserved]
(f) The following terms are used in the specifications for the
financial tests for closure and liability coverage. The definitions are
intended to assist in the understanding of these regulations and are
not intended to limit the meanings of terms in a way that conflicts
with generally accepted accounting practices:
(1) Assets means all existing and all probable future economic
benefits obtained or controlled by a particular entity.
(2) Current plugging and abandonment cost estimate means the most
recent of the estimates prepared in accordance with Sec. 144.62(a),
(b), and (c) of this chapter.
(3) Independently audited refers to an audit performed by an
independent certified public accountant in accordance with generally
accepted auditing standards.
(4) Liabilities means probable future sacrifices of economic
benefits arising from present obligations to transfer assets or provide
services to other entities in the future as a result of past
transactions or events.
(5) Tangible net worth means the tangible assets that remain after
deducting liabilities; such assets would not include intangibles such
as goodwill and rights to patents or royalties.
(g) In the liability insurance requirements the terms bodily injury
and property damage shall have the meanings given these terms by
applicable State law. However, these terms do not include those
liabilities which, consistent with standard industry practices, are
excluded from coverage in liability policies for bodily injury and
property damage. The Agency intends the meanings of other terms used in
the liability insurance requirements to be consistent with their common
meanings within the insurance industry. The definitions given below of
several of the terms are intended to assist in the understanding of
this part and are not intended to limit their meanings in a way that
conflicts with general insurance industry usage.
(1) Accidental occurrence means an accident, including continuous
or repeated exposure to conditions, which results in bodily injury or
property damage neither expected nor intended from the standpoint of
the insured.
(2) Legal defense costs means any expenses that an insurer incurs
in defending against claims of third parties brought under the terms
and conditions of an insurance policy.
(3) Sudden accidental occurrence means an occurrence which is not
continuous or repeated in nature.
(h) Substantial business relationship means the extent of a
business relationship necessary under applicable State law to make a
guarantee contract issued incident to that relationship valid and
enforceable. A ``substantial business relationship'' must arise from a
pattern of recent or ongoing business transactions, in addition to the
guarantee itself, such that a currently existing business relationship
between the guarantor and the owner or operator is demonstrated to the
satisfaction of the applicable EPA Regional Administrator.
[[Page 52254]]
Sec. 267.142 Cost estimate for closure.
(a) The owner or operator must have at the facility a detailed
written estimate, in current dollars, of the cost of closing the
facility in accordance with the requirements in Secs. 267.111 through
267.115 and applicable closure requirements in Secs. 267.176, 267.201,
267.1108.
(1) The estimate must equal the cost of final closure at the point
in the facility's active life when the extent and manner of its
operation would make closure the most expensive; and
(2) The closure cost estimate must be based on the costs to the
owner or operator of hiring a third party to close the facility. A
third party is a party who is neither a parent nor a subsidiary of the
owner or operator. (See definition of parent corporation in
Sec. 267.141(d).) The owner or operator may use costs for on-site
disposal if he can demonstrate that on-site disposal capacity will
exist at all times over the life of the facility.
(3) The closure cost estimate may not incorporate any salvage value
that may be realized with the sale of hazardous wastes, or non-
hazardous wastes, facility structures or equipment, land, or other
assets associated with the facility at the time of partial or final
closure.
(4) The owner or operator may not incorporate a zero cost for
hazardous wastes, or non-hazardous wastes that might have economic
value.
(5) Within 30 days after submitting a closure plan under
Sec. 267.112, revise the closure cost estimate so that it is in
accordance with the plan.
(b) During the active life of the facility, the owner or operator
must adjust the closure cost estimate for inflation within 60 days
prior to the anniversary date of the establishment of the financial
instrument(s) used to comply with Sec. 267.143. For owners and
operators using the financial test or corporate guarantee, the closure
cost estimate must be updated for inflation within 30 days after the
close of the firm's fiscal year and before submission of updated
information to the Regional Administrator as specified in
Sec. 267.143(f)(2)(iii). The adjustment may be made by recalculating
the maximum costs of closure in current dollars, or by using an
inflation factor derived from the most recent Implicit Price Deflator
for Gross Domestic Product published by the U.S. Department of Commerce
in its Survey of Current Business, as specified in paragraphs (b)(1)
and (2) of this section. The inflation factor is the result of dividing
the latest published annual Deflator by the Deflator for the previous
year.
(1) The first adjustment is made by multiplying the closure cost
estimate by the inflation factor. The result is the adjusted closure
cost estimate.
(2) Subsequent adjustments are made by multiplying the latest
adjusted closure cost estimate by the latest inflation factor.
(c) The owner or operator must keep the following at the facility
during the operating life of the facility: The latest closure cost
estimate prepared in accordance with paragraph (a) of this section and,
when this estimate has been adjusted in accordance with paragraph (b)
of this section, the latest adjusted closure cost estimate.
Sec. 267.143 Financial assurance for closure.
The owner or operator must establish financial assurance for
closure of each storage or treatment unit that he owns or operates. In
establishing financial assurance for closure, the owner or operator
must choose from the financial assurance mechanisms in paragraphs (a),
(b), (c), (d), (e), (f), and (g) of this section. The owner or operator
can also use a combination of mechanisms for a single facility if they
meet the requirement in paragraph (h) of this section, or may use a
single mechanism for multiple facilities as in paragraph (i) of this
section. The Regional Administrator will release the owner or operator
from the requirements of this section after the owner or operator meets
the criteria under paragraph (j) of this section.
(a) Closure Trust Fund. Owners and operators can use the ``closure
trust fund,'' that is specified in 40 CFR 264.143(a)(1), (2),and (a)(6)
through (11). For purposes of this paragraph, the following provisions
also apply:
(1) Payments into the trust fund for a new facility must be made
annually by the owner or operator over the remaining operating life of
the facility as estimated in the closure plan, or over 3 years,
whichever period is shorter. This period of time is hereafter referred
to as the ``pay-in period.''
(2) For a new facility, the first payment into the closure trust
fund must be made before the facility may accept the initial placement
of waste. A receipt from the trustee must be submitted by the owner or
operator to the Regional Administrator before this initial storage of
waste. The first payment must be at least equal to the current closure
cost estimate, divided by the number of years in the pay-in period,
except as provided in paragraph (h) of this section for multiple
mechanisms. Subsequent payments must be made no later than 30 days
after each anniversary date of the first payment. The owner or operator
determines the amount of each subsequent payment by subtracting the
current value of the trust fund from the current closure cost estimate,
and dividing this difference by the number of years remaining in the
pay-in period. Mathematically, the formula is:
Next Payment = (Current Closure Estimate--Current Value of the Trust
Fund) Divided by Years Remaining in the Pay-In Period.
(3) The owner or operator of a facility existing on the effective
date of this paragraph can establish a trust fund to meet this
paragraph's financial assurance requirements. If the value of the trust
fund is less than the current closure cost estimate when a final
approval of the permit is granted for the facility, the owner or
operator must pay the difference into the trust fund within 60 days.
(4) The owner or operator may accelerate payments into the trust
fund or deposit the full amount of the closure cost estimate when
establishing the trust fund. However, he must maintain the value of the
fund at no less than the value that the fund would have if annual
payments were made as specified in paragraph (a)(2) or (a)(3) of this
section.
(5) The owner or operator must submit a trust agreement with the
wording specified in 40 CFR 264.151(a)(1).
(b) Surety bond guaranteeing payment into a closure trust fund.
Owners and operators can use the ``surety bond guaranteeing payment
into a closure trust fund,'' as specified in 40 CFR 264.143(b),
including the use of the surety bond instrument specified at 40 CFR
264.151(b), and the standby trust specified at 40 CFR 264.143(b)(3).
(c) Surety bond guaranteeing performance of closure. Owners and
operators can use the ``surety bond guaranteeing performance of
closure,'' as specified in 40 CFR 264.143(c), the submission and use of
the surety bond instrument specified at 40 CFR 264.151(c), and the
standby trust specified at 40 CFR 264.143(c)(3).
(d) Closure letter of credit. Owners and operators can use the
``closure letter of credit'' specified in 40 CFR 264.143(d), the
submission and use of the irrevocable letter of credit instrument
specified in 40 CFR 264.151(d), and the standby trust specified in 40
CFR 264.143(d)(3).
(e) Closure insurance. Owners and operators can use ``closure
insurance,'' as specified in 40 CFR 264.143(e), utilizing the
certificate of insurance for closure specified at 40 CFR 264.151(e).
(f) Corporate financial test. An owner or operator that satisfies
the requirements of this paragraph may
[[Page 52255]]
demonstrate financial assurance up to the amount specified in this
paragraph:
(1) Financial component. (i) The owner or operator must satisfy one
of the following three conditions:
(A) A current rating for its senior unsecured debt of AAA, AA, A,
or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued
by Moody's; or
(B) A ratio of less than 1.5 comparing total liabilities to net
worth; or
(C) A ratio of greater than 0.10 comparing the sum of net income
plus depreciation, depletion and amortization, minus $10 million, to
total liabilities.
(ii) The tangible net worth of the owner or operator must be
greater than:
(A) The sum of the current environmental obligations (see paragraph
(f)(2)(i)(A)(1) of this section), including guarantees, covered by a
financial test plus $10 million except as provided in paragraph
(f)(1)(ii)(B) of this section.
(B) $10 million in tangible net worth plus the amount of any
guarantees that have not been recognized as liabilities on the
financial statements provided all of the environmental obligations (see
paragraph (f)(2)(i)(A)(1) of this section) covered by a financial test
are recognized as liabilities on the owner's or operator's audited
financial statements, and subject to the approval of the Regional
Administrator.
(iii) The owner or operator must have assets located in the United
States amounting to at least the sum of environmental obligations
covered by a financial test as described in paragraph (f)(2)(i)(A)(1)
of this section.
(2) Recordkeeping and reporting requirements. (i) The owner or
operator must submit the following items to the Regional Administrator:
(A) A letter signed by the owner's or operator's chief financial
officer that:
(1) Lists all the applicable current types, amounts, and sums of
environmental obligations covered by a financial test. These
obligations include both obligations in the programs which EPA directly
operates and obligations where EPA has delegated authority to a State
or approved a State's program. These obligations include, but are not
limited to:
(i) Liability, closure, post-closure and corrective action cost
estimates required for hazardous waste treatment, storage, and disposal
facilities under 40 CFR 264.101, 264.142, 264.144, 264.147, 265.142,
265.144, and 265.147.;
(ii) Cost estimates required for municipal solid waste management
facilities under 40 CFR 258.71, 258.72, and 258.73;
(iii) Current plugging cost estimates required for UIC facilities
under 40 CFR 144.62;
(iv) Cost estimates required for petroleum underground storage tank
facilities under 40 CFR 280.93;
(v) Cost estimates required for PCB storage facilities under 40 CFR
761.65;
(vi) Any financial assurance required under, or as part of an
action undertaken under, the Comprehensive Environmental Response,
Compensation, and Liability Act; and
(vii) Any other environmental obligations that are assured through
a financial test.
(2) Provides evidence demonstrating that the firm meets the
conditions of either paragraph (f)(1)(i)(A) or (f)(1)(i)(B) or
(f)(1)(i)(C) of this section and paragraphs (f)(1)(ii) and (f)(1)(iii)
of this section.
(B) A copy of the independent certified public accountant's
unqualified opinion of the owner's or operator's financial statements
for the latest completed fiscal year. To be eligible to use the
financial test, the owner's or operator's financial statements must
receive an unqualified opinion from the independent certified public
accountant. An adverse opinion, disclaimer of opinion, or other
qualified opinion will be cause for disallowance, with the potential
exception for qualified opinions provided in the next sentence. The
Regional Administrator may evaluate qualified opinions on a case-by-
case basis and allow use of the financial test in cases where the
Regional Administrator deems that the matters which form the basis for
the qualification are insufficient to warrant disallowance of the test.
If the Regional Administrator does not allow use of the test, the owner
or operator must provide alternate financial assurance that meets the
requirements of this section within 30 days after the notification of
disallowance.
(C) If the chief financial officer's letter providing evidence of
financial assurance includes financial data showing that owner or
operator satisfies paragraph (f)(1)(i)(B) or (f)(1)(i)(C) of this
section that are different from data in the audited financial
statements referred to in paragraph (f)(2)(i)(B) of this section or any
other audited financial statement or data filed with the SEC, then a
special report from the owner's or operator's independent certified
public accountant to the owner or operator is required. The special
report shall be based upon an agreed upon procedures engagement in
accordance with professional auditing standards and shall describe the
procedures performed in comparing the data in the chief financial
officer's letter derived from the independently audited, year-end
financial statements for the latest fiscal year with the amounts in
such financial statements, the findings of that comparison, and the
reasons for any differences.
(D) If the chief financial officer's letter provides a
demonstration that the firm has assured for environmental obligations
as provided in paragraph (f)(1)(ii)(B) of this section, then the letter
shall include a report from the independent certified public accountant
that verifies that all of the environmental obligations covered by a
financial test have been recognized as liabilities on the audited
financial statements, how these obligations have been measured and
reported, and that the tangible net worth of the firm is at least $10
million plus the amount of any guarantees provided.
(ii) The owner or operator of a new facility must submit the items
specified in paragraph (f)(2)(i) of this section to the Regional
Administrator at least 60 days before placing waste in the facility.
(iii) After the initial submission of items specified in paragraph
(f)(2)(i) of this section, the owner or operator must send updated
information to the Regional Administrator within 90 days following the
close of the owner or operator's fiscal year. The Regional
Administrator may provide up to an additional 45 days for an owner or
operator who can demonstrate that 90 days is insufficient time to
acquire audited financial statements. The updated information must
consist of all items specified in paragraph (f)(2)(i) of this section.
(iv) The owner or operator is no longer required to submit the
items specified in this paragraph (f)(2) of this section or comply with
the requirements of this paragraph (f) when:
(A) The owner or operator substitutes alternate financial assurance
as specified in this section that is not subject to these recordkeeping
and reporting requirements; or
(B) The Regional Administrator releases the owner or operator from
the requirements of this section in accordance with paragraph (j) of
this section.
(v) An owner or operator who no longer meets the requirements of
paragraph (f)(1) of this section cannot use the financial test to
demonstrate financial assurance. Instead an owner or operator who no
longer meets the requirements of paragraph (f)(1)of this section, must:
(A) Send notice to the Regional Administrator of intent to
establish alternate financial assurance as
[[Page 52256]]
specified in this section. The owner or operator must send this notice
by certified mail within 90 days following the close of the owner or
operator's fiscal year for which the year-end financial data show that
the owner or operator no longer meets the requirements of this section.
(B) Provide alternative financial assurance within 120 days after
the end of such fiscal year.
(vi) The Regional Administrator may, based on a reasonable belief
that the owner or operator may no longer meet the requirements of
paragraph (f)(1) of this section, require at any time the owner or
operator to provide reports of its financial condition in addition to
or including current financial test documentation as specified in
paragraph (f)(2) of this section. If the Regional Administrator finds
that the owner or operator no longer meets the requirements of
paragraph (f)(1) of this section, the owner or operator must provide
alternate financial assurance that meets the requirements of this
section.
(g) Corporate guarantee. (1) An owner or operator may meet the
requirements of this section by obtaining a written guarantee. The
guarantor must be the direct or higher-tier parent corporation of the
owner or operator, a firm whose parent corporation is also the parent
corporation of the owner or operator, or a firm with a ``substantial
business relationship'' with the owner or operator. The guarantor must
meet the requirements for owners or operators in paragraph (f) of this
section and must comply with the terms of the guarantee. The wording of
the guarantee must be identical to the wording in 40 CFR 264.151(h).
The certified copy of the guarantee must accompany the letter from the
guarantor's chief financial officer and accountants' opinions. If the
guarantor's parent corporation is also the parent corporation of the
owner or operator, the letter from the guarantor's chief financial
officer must describe the value received in consideration of the
guarantee. If the guarantor is a firm with a ``substantial business
relationship'' with the owner or operator, this letter must describe
this ``substantial business relationship'' and the value received in
consideration of the guarantee.
(2) For a new facility the guarantee must be effective and the
guarantor must submit the items in paragraph (g)(1) of this section and
the items specified in paragraph (f)(2)(i) of this section to the
Regional Administrator at least 60 days before the owner or operator
places waste in the facility.
(3) The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform closure at a facility
covered by the guarantee, the guarantor will:
(A) Perform, or pay a third party to perform closure (performance
guarantee); or
(B) Establish a fully funded trust fund as specified in paragraph
(a) of this section in the name of the owner or operator (payment
guarantee).
(ii) The guarantee will remain in force for as long as the owner or
operator must comply with the applicable financial assurance
requirements of this Subpart unless the guarantor sends prior notice of
cancellation by certified mail to the owner or operator and to the
Regional Administrator. Cancellation may not occur, however, during the
120 days beginning on the date of receipt of the notice of cancellation
by both the owner or operator and the Regional Administrator as
evidenced by the return receipts.
(iii) If notice of cancellation is given, the owner or operator
must, within 90 days following receipt of the cancellation notice by
the owner or operator and the Regional Administrator, obtain alternate
financial assurance, and submit documentation for that alternate
financial assurance to the Regional Administrator. If the owner or
operator fails to provide alternate financial assurance and obtain the
written approval of such alternative assurance from the Regional
Administrator within the 90-day period, the guarantor must provide that
alternate assurance in the name of the owner or operator and submit the
necessary documentation for the alternative assurance to the Regional
Administrator within 120 days of the cancellation notice.
(4) If a corporate guarantor no longer meets the requirements of
paragraph (f)(1) of this section, the owner or operator must, within 90
days, obtain alternative assurance, and submit the assurance to the
Regional Administrator for approval. If the owner or operator fails to
provide alternate financial assurance within the 90-day period, the
guarantor must provide that alternate assurance within the next 30
days, and submit it to the Regional Administrator for approval.
(5) The guarantor is no longer required to meet the requirements of
this paragraph (g) when:
(i) The owner or operator substitutes alternate financial assurance
as specified in this section; or
(ii) The owner or operator is released from the requirements of
this section in accordance with paragraph (j) of this section.
(h) Use of Multiple Financial Mechanisms. An owner or operator may
use more than one mechanism at a particular facility to satisfy the
requirements of this section. The acceptable mechanisms are trust
funds, surety bonds guaranteeing payment into a trust fund, letters of
credit, insurance, the financial test, and the guarantee, except owners
or operators cannot combine the financial test with the guarantee. The
mechanisms must be as specified in paragraphs (a), (b), (d), (e), (f),
and (g) of this section, except it is the combination of mechanisms
rather than a single mechanism that must provide assurance for an
amount at least equal to the cost estimate. If an owner or operator
uses a trust fund in combination with a surety bond or letter of
credit, he may use the trust fund as the standby trust for the other
mechanisms. A single trust fund can be established for two or more
mechanisms. The Regional Administrator may use any or all of the
mechanisms to provide for closure of the facility.
(i) Use of a financial mechanism for multiple facilities. An owner
or operator may use a financial mechanism for multiple facilities, as
specified in Sec. 264.143(h) of this chapter.
(j) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving certifications from the owner
or operator and an independent registered professional engineer that
final closure has been completed in accordance with the approved
closure plan, the Regional Administrator will notify the owner or
operator in writing that the owner or operator is no longer required by
this section to maintain financial assurance for final closure of the
facility, unless the Regional Administrator has reason to believe that
final closure has not been completed in accordance with the approved
closure plan. The Regional Administrator shall provide the owner or
operator with a detailed written statement of any such reasons to
believe that closure has not been conducted in accordance with the
approved closure plan.
Sec. 267.144--267.146 [Reserved]
Sec. 267.147 Liability requirements.
(a) Coverage for sudden accidental occurrences. An owner or
operator of a hazardous waste treatment or storage facility, or a group
of such facilities, must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden
accidental occurrences arising from operations of the facility or
[[Page 52257]]
group of facilities. The owner or operator must have and maintain
liability coverage for sudden accidental occurrences in the amount of
at least $1 million per occurrence with an annual aggregate of at least
$2 million, exclusive of legal defense costs. This liability coverage
may be demonstrated as specified in paragraphs (a) (1) through (a)(7)
of this section:
(1) Trust fund for liability coverage. An owner or operator may
meet the requirements of this section by obtaining a trust fund for
liability coverage as specified in 40 CFR 264.147(j).
(2) Surety bond for liability coverage. An owner or operator may
meet the requirements of this section by obtaining a surety bond for
liability coverage as specified in 40 CFR 264.147(i).
(3) Letter of credit for liability coverage. An owner or operator
may meet the requirements of this section by obtaining a letter of
credit for liability coverage as specified in 40 CFR 264.147(h).
(4) Insurance for liability coverage. An owner or operator may meet
the requirements of this section by obtaining liability insurance as
specified in 40 CFR 264.147(a)(1).
(5) Financial test for liability coverage. An owner or operator may
meet the requirements of this section by passing a financial test as
specified in paragraph (f) of this section.
(6) Guarantee for liability coverage. An owner or operator may meet
the requirements of this section by obtaining a guarantee as specified
in paragraph (g) of this section.
(7) Combination of mechanisms. An owner or operator may demonstrate
the required liability coverage through the use of combinations of
mechanisms as allowed by 40 CFR 264.147(a)(6).
(8) An owner or operator shall notify the Regional Administrator in
writing within 30 days whenever:
(i) A claim results in a reduction in the amount of financial
assurance for liability coverage provided by a financial instrument
authorized in paragraphs (a)(1) through (a)(7) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property
damages caused by a sudden accidental occurrence arising from the
operation of a hazardous waste treatment, storage, or disposal facility
is entered between the owner or operator and third-party claimant for
liability coverage under paragraphs (a)(1) through (a)(7) of this
section; or
(iii) A final court order establishing a judgment for bodily injury
or property damage caused by a sudden accidental occurrence arising
from the operation of a hazardous waste treatment, storage, or disposal
facility is issued against the owner or operator or an instrument that
is providing financial assurance for liability coverage under
paragraphs (a)(1) through (a)(7) of this section.
(b)--(d) [Reserved]
(e) Period of coverage. Within 60 days after receiving
certifications from the owner or operator and an independent registered
professional engineer that final closure has been completed in
accordance with the approved closure plan, the Regional Administrator
will notify the owner or operator in writing that he is no longer
required by this section to maintain liability coverage from that
facility, unless the Regional Administrator has reason to believe that
closure has not been in accordance with the approved closure plan.
(f) Financial test for liability coverage. An owner or operator
that satisfies the requirements of this paragraph (f) may demonstrate
financial assurance for liability up to the amount specified in this
paragraph (f):
(1) Financial component. (i) If using the financial test for only
liability coverage, the owner or operator must have tangible net worth
greater than the sum of the liability coverage to be demonstrated by
this test plus $10 million.
(ii) The owner or operator must have assets located in the United
States amounting to at least the amount of liability covered by this
financial test.
(iii) An owner or operator who is demonstrating coverage for
liability and any other environmental obligations, including closure
under Sec. 267.143(f), through a financial test must meet the
requirements of Sec. 267.143(f).
(2) Recordkeeping and reporting requirements. (i) The owner or
operator must submit the following items to the Regional Administrator:
(A) A letter signed by the owner's or operator's chief financial
officer that provides evidence demonstrating that the firm meets the
conditions of paragraphs (f)(1)(i) and (f)(1)(ii) of this section.
(B) A copy of the independent certified public accountant's
unqualified opinion of the owner's or operator's financial statements
for the latest completed fiscal year. To be eligible to use the
financial test, the owner's or operator's financial statements must
receive an unqualified opinion from the independent certified public
accountant. An adverse opinion, disclaimer of opinion, or other
qualified opinion will be cause for disallowance, with the potential
exception for qualified opinions provided in the next sentence. The
Regional Administrator may evaluate qualified opinions on a case-by-
case basis and allow use of the financial test in cases where the
Regional Administrator deems that the matters which form the basis for
the qualification are insufficient to warrant disallowance of the test.
If the Regional Administrator does not allow use of the test, the owner
or operator must provide alternate financial assurance that meets the
requirements of this section within 30 days after the notification of
disallowance.
(C) If the chief financial officer's letter providing evidence of
financial assurance includes financial data showing that owner or
operator satisfies paragraphs (f)(1)(i) and (ii) of this section that
are different from data in the audited financial statements referred to
in paragraph (f)(2)(i)(B) of this section or any other audited
financial statement or data filed with the SEC, then a special report
from the owner's or operator's independent certified public accountant
to the owner or operator is required. The special report shall be based
upon an agreed upon procedures engagement in accordance with
professional auditing standards and shall describe the procedures
performed in comparing the data in the chief financial officer's letter
derived from the independently audited, year-end financial statements
for the latest fiscal year with the amounts in such financial
statements, the findings of that comparison, and the reasons for any
differences.
(ii) The owner or operator of a new facility must submit the items
specified in paragraph (f)(2)(i) of this section to the Regional
Administrator at least 60 days before placing waste in the facility.
(iii) After the initial submission of items specified in paragraph
(f)(2)(i) of this section, the owner or operator must send updated
information to the Regional Administrator within 90 days following the
close of the owner or operator's fiscal year. The Regional
Administrator may provide up to an additional 45 days for an owner or
operator who can demonstrate that 90 days is insufficient time to
acquire audited financial statements. The updated information must
consist of all items specified in paragraph (f)(2)(i) of this section.
(iv) The owner or operator is no longer required to submit the
items specified in this paragraph (f)(2) or comply with the
requirements of this paragraph (f) when:
(A) The owner or operator substitutes alternate financial assurance
as specified in this section that is not
[[Page 52258]]
subject to these recordkeeping and reporting requirements; or
(B) The Regional Administrator releases the owner or operator from
the requirements of this section in accordance with paragraph (j) of
this section.
(v) An owner or operator who no longer meets the requirements of
paragraph (f)(1) of this section cannot use the financial test to
demonstrate financial assurance. An owner or operator who no longer
meets the requirements of paragraph (f)(1) of this section, must:
(A) Send notice to the Regional Administrator of intent to
establish alternate financial assurance as specified in this section.
The owner or operator must send this notice by certified mail within 90
days following the close the owner or operator's fiscal year for which
the year-end financial data show that the owner or operator no longer
meets the requirements of this section.
(B) Provide alternative financial assurance within 120 days after
the end of such fiscal year.
(vi) The Regional Administrator may, based on a reasonable belief
that the owner or operator may no longer meet the requirements of
paragraph (f)(1) of this section, require at any time the owner or
operator to provide reports of its financial condition in addition to
or including current financial test documentation as specified in
paragraph (f)(2) of this section. If the Regional Administrator finds
that the owner or operator no longer meets the requirements of
paragraph (f)(1) of this section, the owner or operator must provide
alternate financial assurance that meets the requirements of this
section.
(g) Guarantee for liability coverage. (1) Subject to paragraph
(g)(2) of this section, an owner or operator may meet the requirements
of this section by obtaining a written guarantee, hereinafter referred
to as ``guarantee.'' The guarantor must be the direct or higher-tier
parent corporation of the owner or operator, a firm whose parent
corporation is also the parent corporation of the owner or operator, or
a firm with a ``substantial business relationship'' with the owner or
operator. The guarantor must meet the requirements for owners or
operators in paragraphs (f)(1) through (f)(3) of this section. The
wording of the guarantee must be identical to the wording specified in
40 CFR 264.151(h)(2). A certified copy of the guarantee must accompany
the items sent to the Regional Administrator as specified in paragraph
(f)(2) of this section. One of these items must be the letter from the
guarantor's chief financial officer. If the guarantor's parent
corporation is also the parent corporation of the owner or operator,
this letter must describe the value received in consideration of the
guarantee. If the guarantor is a firm with a ``substantial business
relationship'' with the owner or operator, this letter must describe
this ``substantial business relationship'' and the value received in
consideration of the guarantee.
(i) If the owner or operator fails to satisfy a judgment based on a
determination of liability for bodily injury or property damage to
third parties caused by sudden accidental occurrences arising from the
operation of facilities covered by this corporate guarantee, or fails
to pay an amount agreed to in settlement of claims arising from or
alleged to arise from such injury or damage, the guarantor will do so
up to the limits of coverage.
(ii) [Reserved].
(2)(i) In the case of corporations incorporated in the United
States, a guarantee may be used to satisfy the requirements of this
section only if the Attorneys General or Insurance Commissioners of the
State in which the guarantor is incorporated; and each State in which a
facility covered by the guarantee is located have submitted a written
statement to EPA that a guarantee executed as described in this section
and 40 CFR 264.151(h)(2) is a legally valid and enforceable obligation
in that State.
(ii) In the case of corporations incorporated outside the United
States, a guarantee may be used to satisfy the requirements of this
section only if:
(A) The non-U.S. corporation has identified a registered agent for
service of process in each State in which a facility covered by the
guarantee is located and in the State in which it has its principal
place of business; and
(B) The Attorney General or Insurance Commissioner of each State in
which a facility covered by the guarantee is located and the State in
which the guarantor corporation has its principal place of business,
has submitted a written statement to EPA that a guarantee executed as
described in this section and 40 CFR 264.151(h)(2) is a legally valid
and enforceable obligation in that State.
Sec. 267.148 Incapacity of owners or operators, guarantors, or
financial institutions.
(a) An owner or operator must notify the Regional Administrator by
certified mail of the commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or
operator as debtor, within 10 days after commencement of the
proceeding. A guarantor of a corporate guarantee as specified in
Secs. 267.143(g) and 267.147(g) must make such a notification if he is
named as debtor, as required under the terms of the corporate guarantee
(Sec. 264.151(h)).
(b) An owner or operator who fulfills the requirements of
Sec. 267.143 or Sec. 267.147 by obtaining a trust fund, surety bond,
letter of credit, or insurance policy will be deemed to be without the
required financial assurance or liability coverage in the event of
bankruptcy of the trustee or issuing institution, or a suspension or
revocation of the authority of the trustee institution to act as
trustee or of the institution issuing the surety bond, letter of
credit, or insurance policy to issue such instruments. The owner or
operator must establish other financial assurance or liability coverage
within 60 days after such an event.
Sec. 267.149 [Reserved]
Sec. 267.150 State assumption of responsibility.
(a) If a State either assumes legal responsibility for an owner's
or operator's compliance with the closure care or liability
requirements of this part or assures that funds will be available from
State sources to cover those requirements, the owner or operator will
be in compliance with the requirements of Sec. 267.143 or Sec. 267.147
if the Regional Administrator determines that the State's assumption of
responsibility is at least equivalent to the financial mechanisms
specified in this subpart. The Regional Administrator will evaluate the
equivalency of State guarantees principally in terms of certainty of
the availability of funds for the required closure care activities or
liability coverage and the amount of funds that will be made available.
The Regional Administrator may also consider other factors as he deems
appropriate. The owner or operator must submit to the Regional
Administrator a letter from the State describing the nature of the
State's assumption of responsibility together with a letter from the
owner or operator requesting that the State's assumption of
responsibility be considered acceptable for meeting the requirements of
this subpart. The letter from the State must include, or have attached
to it, the following information: the facility's EPA Identification
Number, name, and address, and the amount of funds for closure care or
liability coverage that are guaranteed by the State. The Regional
Administrator will notify the owner or
[[Page 52259]]
operator of his determination regarding the acceptability of the
State's guarantee in lieu of financial mechanisms specified in this
subpart. The Regional Administrator may require the owner or operator
to submit additional information as is deemed necessary to make this
determination. Pending this determination, the owner or operator will
be deemed to be in compliance with the requirements of Sec. 267.143 or
Sec. 267.147, as applicable.
(b) If a State's assumption of responsibility is found acceptable
as specified in paragraph (a) of this section except for the amount of
funds available, the owner or operator may satisfy the requirements of
this subpart by use of both the State's assurance and additional
financial mechanisms as specified in this subpart. The amount of funds
available through the State and Federal mechanisms must at least equal
the amount required by this subpart.
Subpart I--Use and Management of Containers
Sec. 267.170 Does this subpart apply to me?
This subpart applies to you if you own or operator a facility that
treats or stores hazardous waste in containers under a 40 CFR part 270,
subpart I standardized permit, except as provided in Sec. 267.1(b).
Sec. 267.171 What standards apply to the containers?
Standards apply to the condition of the containers, to the
compatibility of waste with the containers, and to the management of
the containers.
(a) Condition of containers. If a container holding hazardous waste
is not in good condition( for example, it exhibits severe rusting or
apparent structural defects) or if it begins to leak, you must either:
(1) Transfer the hazardous waste from this container to a container
that is in good condition; or
(2) Manage the waste in some other way that complies with the
requirements of this part.
(b) Compatibility of waste with containers. To ensure that the
ability of the container to contain the waste is not impaired, you must
use a container made of or lined with materials that are compatible and
will not react with the hazardous waste to be stored.
(c) Management of containers. (1) You must always keep a container
holding hazardous waste closed during storage, except when you add or
remove waste.
(2) You must never open, handle, or store a container holding
hazardous waste in a manner that may rupture the container or cause it
to leak.
Sec. 267.172 What are the inspection requirements?
At least weekly, you must inspect areas where you store containers
, looking for leaking containers and for deterioration of containers
and the containment system caused by corrosion or other factors.
Sec. 267.173 What standards apply to the container storage areas?
(a) You must design and operate a containment system for your
container storage areas according to the requirements in paragraph (b)
of this section, except as otherwise provided by paragraph (c) of this
section.
(b) The design and operating requirements for a containment system
are:
(1) A base must underlie the containers that is free of cracks or
gaps and is sufficiently impervious to contain leaks, spills, and
accumulated precipitation until the collected material is detected and
removed.
(2) The base must be sloped or the containment system must be
otherwise designed and operated to drain and remove liquids resulting
from leaks, spills, or precipitation, unless the containers are
elevated or are otherwise protected from contact with accumulated
liquids.
(3) The containment system must have sufficient capacity to contain
10% of the volume of containers, or the volume of the largest
container, whichever is greater. This requirement does not apply to
containers that do not contain free liquids.
(4) You must prevent run-on into the containment system unless the
collection system has sufficient excess capacity, in addition to that
required in paragraph (b)(3) of this section, to contain the liquid.
(5) You must remove any spilled or leaked waste and accumulated
precipitation rom the sump or collection area as promptly as is
necessary to prevent overflow of the collection system.
(c) Except as provided in paragraph (d) of this section, you do not
need a containment system as defined in paragraph (b) of this section
for storage areas that store containers holding only wastes with no
free liquids, if:
(1) The storage area is sloped or is otherwise designed and
operated to drain and remove liquid resulting from precipitation, or
(2) The containers are elevated or are otherwise protected from
contact with accumulated liquid.
(d) You must have a containment system defined by paragraph (b) of
this section for storage areas that store containers holding FO20,
FO21, FO22, FO23, FO26, and FO27 wastes , even if the wastes do not
contain free liquids.
Sec. 267.174 What special requirements must I meet for ignitable or
reactive waste?
You must locate containers holding ignitable or reactive waste at
least 15 meters (50 feet) from your facility property line. You must
also follow the general requirements for ignitable or reactive wastes
that are specified in Sec. 267.17(a).
Sec. 267.175 What special requirements must I meet for incompatible
wastes?
(a) You must not place incompatible wastes, or incompatible wastes
and materials (see appendix V to 40 CFR part 264 for examples), in the
same container, unless you comply with Sec. 267.17(b).
(b) You must not place hazardous waste in an unwashed container
that previously held an incompatible waste or material.
(c) You must separate a storage container holding a hazardous waste
that is incompatible with any waste or with other materials stored
nearby in other containers, piles, open tanks, or surface impoundments
from the other materials, or protect the containers by means of a dike,
berm, wall, or other device.
Sec. 267.176 What must I do when I want to stop using the containers?
You must remove all hazardous waste and hazardous waste residues
from the containment system. You must decontaminate or remove remaining
containers, liners, bases, and soil containing, or contaminated with,
hazardous waste or hazardous waste residues.
Sec. 267.177 What air emission standards apply?
You must manage all hazardous waste placed in a container according
to the requirements of subparts AA, BB, and CC of 40 CFR part 264.
Under a standardized permit, the following control devices are
permissible: Thermal vapor incinerator, catalytic vapor incinerator,
flame, boiler, process heater, condenser, and carbon absorption unit.
Subpart J--Tank Systems
Sec. 267.190 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste in above-ground or on-ground tanks
under a 40 CFR part 270, subpart I standardized permit, except as
provided in Sec. 267.1(b).
(a) You do not have to meet the secondary containment requirements
in
[[Page 52260]]
Sec. 267.195 if your tank systems do not contain free liquids and are
situated inside a building with an impermeable floor. You must
demonstrate the absence or presence of free liquids in the stored/
treated waste, using Method 9095 (Paint Filter Liquids Test) as
described in ``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA Publication SW-846, as incorporated by
reference in 40 CFR 260.11.
(b) You do not have to meet the secondary containment requirements
of Sec. 267.195(a) if your tank system, including sumps, as defined in
40 CFR 260.10, is part of a secondary containment system to collect or
contain releases of hazardous wastes.
Sec. 267.191 What are the required design and construction standards
for new tank systems or components?
You must ensure that the foundation, structural support, seams,
connections, and pressure controls (if applicable) are adequately
designed and that the tank system has sufficient structural strength,
compatibility with the waste(s) to be stored or treated, and corrosion
protection to ensure that it will not collapse, rupture, or fail. You
must obtain a written assessment, reviewed and certified by an
independent, qualified registered professional engineer, following 40
CFR 270.11(d), attesting that the tank system has sufficient structural
integrity and is acceptable for the storing and treating of hazardous
waste. This assessment must include, at a minimum, the following
information:
(a) Design standard(s) for the construction of tank(s) and/or the
ancillary equipment.
(b) Hazardous characteristics of the waste(s) to be handled.
(c) For new tank systems or components in which the external shell
of a metal tank or any external metal component of the tank system will
be in contact with the soil or with water, a determination by a
corrosion expert of:
(1) Factors affecting the potential for corrosion, such as:
(i) Soil moisture content.
(ii) Soil pH.
(iii) Soil sulfides level.
(iv) Soil resistivity.
(v) Structure to soil potential.
(vi) Influence of nearby underground metal structures (for example,
piping).
(vii) Existence of stray electric current.
(viii) Existing corrosion-protection measures (for example,
coating, cathodic protection).
(2) The type and degree of external corrosion protection needed to
ensure the integrity of the tank system during the use of the tank
system or component, consisting of one or more of the following:
(i) Corrosion-resistant materials of construction such as special
alloys, fiberglass reinforced plastic, etc.
(ii) Corrosion-resistant coating (such as epoxy, fiberglass, etc.)
with cathodic protection (for example, impressed current or sacrificial
anodes) and
(iii) Electrical isolation devices such as insulating joints,
flanges, etc.
(d) Design considerations to ensure that:
(1) Tank foundations will maintain the load of a full tank.
(2) Tank systems will be anchored to prevent flotation or
dislodgment where the tank system is placed in a saturated zone, or is
located within a seismic fault zone subject to the standards of
Sec. 267.18(a).
(3) Tank systems will withstand the effects of frost heave.
Sec. 267.192 What handling and inspection procedures must I follow
during installation of new tank systems?
(a) You must ensure that you follow proper handling procedures to
prevent damage to a new tank system during installation. Before placing
a new tank system or component in use, an independent, qualified
installation inspector or an independent, qualified, registered
professional engineer, either of whom is trained and experienced in the
proper installation of tank systems or components, must inspect the
system for the presence of any of the following items:
(1) Weld breaks.
(2) Punctures.
(3) Scrapes of protective coatings.
(4) Cracks.
(5) Corrosion.
(6) Other structural damage or inadequate construction/
installation.
(b) You must remedy all discrepancies before the tank system is
placed in use.
Sec. 267.193 What testing must I do?
You must test all new tanks and ancillary equipment for tightness
before you place them in use. If you find a tank system that is not
tight, you must perform all repairs necessary to remedy the leak(s) in
the system before you cover, enclose, or place the tank system into
use.
Sec. 267.194 What installation requirements must I follow?
(a) You must support and protect ancillary equipment against
physical damage and excessive stress due to settlement, vibration,
expansion, or contraction.
(b) You must provide the type and degree of corrosion protection
recommended by an independent corrosion expert, based on the
information provided under Sec. 267.191(c), to ensure the integrity of
the tank system during use of the tank system. An independent corrosion
expert must supervise the installation of a corrosion protection system
that is field fabricated to ensure proper installation.
(c) You must obtain, and keep at the facility, written statements
by those persons required to certify the design of the tank system and
to supervise the installation of the tank system as required in
Secs. 267.192, 267.193, and paragraphs (a) and (b) of this section. The
written statement must attest that the tank system was properly
designed and installed and that you made repairs under Sec. 267.192 and
267.193. These written statements must also include the certification
statement as required in 40 CFR 270.11(d).
Sec. 267.195 What are the secondary containment requirements?
To prevent the release of hazardous waste or hazardous constituents
to the environment, you must provide secondary containment that meets
the requirements of this section for all new and existing tank systems.
(a) Secondary containment systems must be:
(1) Designed, installed, and operated to prevent any migration of
wastes or accumulated liquid out of the system to the soil,
groundwater, or surface water at any time during the use of the tank
system; and
(2) Capable of detecting and collecting releases and accumulated
liquids until the collected material is removed.
(b) To meet the requirements of paragraph (a) of this section,
secondary containment systems must be, at a minimum:
(1) Constructed of or lined with materials that are compatible with
the wastes(s) to be placed in the tank system and must have sufficient
strength and thickness to prevent failure owing to pressure gradients
(including static head and external hydrological forces), physical
contact with the waste to which it is exposed, climatic conditions, and
the stress of daily operation (including stresses from nearby vehicular
traffic).
(2) Placed on a foundation or base capable of providing support to
the secondary containment system, resistance to pressure gradients
above and below the system, and capable of preventing failure due to
settlement, compression, or uplift.
(3) Provided with a leak-detection system that is designed and
operated so
[[Page 52261]]
that it will detect the failure of either the primary or secondary
containment structure or the presence of any release of hazardous waste
or accumulated liquid in the secondary containment system within 24
hours, or at the earliest practicable time.
(4) Sloped or otherwise designed or operated to drain and remove
liquids resulting from leaks, spills, or precipitation. You must remove
spilled or leaked waste and accumulated precipitation from the
secondary containment system within 24 hours, or as promptly as
possible to prevent harm to human health and the environment.
Sec. 267.196 What are the required devices for secondary containment
and what are their design, operating and installation requirements?
(a) Secondary containment for tanks must include one or more of the
following:
(1) A liner (external to the tank).
(2) A vault.
(3) A double-walled tank.
(4) An equivalent device; you must maintain documentation of
equivalency at the facility.
(b) External liner systems must be:
(1) Designed or operated to contain 100 percent of the capacity of
the largest tank within its boundary.
(2) Designed or operated to prevent run-on or infiltration of
precipitation into the secondary containment system unless the
collection system has sufficient excess capacity to contain run-on or
infiltration. The additional capacity must be sufficient to contain
precipitation from a 25-year, 24-hour rainfall event.
(3) Free of cracks or gaps.
(4) Designed and installed to surround the tank completely and to
cover all surrounding earth likely to come into contact with the waste
if the waste is released from the tank(s) (that is, capable of
preventing lateral as well as vertical migration of the waste).
(c) Vault systems must be:
(1) Designed or operated to contain 100 percent of the capacity of
the largest tank within its boundary.
(2) Designed or operated to prevent run-on or infiltration of
precipitation into the secondary containment system unless the
collection system has sufficient excess capacity to contain run-on or
infiltration. Such additional capacity must be sufficient to contain
precipitation from a 25-year, 24-hour rainfall event.
(3) Constructed with chemical-resistant water stops in place at all
joints (if any).
(4) Provided with an impermeable interior coating or lining that is
compatible with the stored waste and that will prevent migration of
waste into the concrete.
(5) Provided with a means to protect against the formation of and
ignition of vapors within the vault, if the waste being stored or
treated:
(i) Meets the definition of ignitable waste under 40 CFR 261.21.
(ii) Meets the definition of reactive waste under 40 CFR 261.21,
and may form an ignitable or explosive vapor.
(6) Provided with an exterior moisture barrier or be otherwise
designed or operated to prevent migration of moisture into the vault if
the vault is subject to hydraulic pressure.
(d) Double-walled tanks must be:
(1) Designed as an integral structure (that is, an inner tank
completely enveloped within an outer shell) so that any release from
the inner tank is contained by the outer shell.
(2) Protected, if constructed of metal, from both corrosion of the
primary tank interior and of the external surface of the outer shell.
(3) Provided with a built-in continuous leak detection system
capable of detecting a release within 24 hours, or at the earliest
practicable time.
Sec. 267.197 What are the requirements for ancillary equipment?
You must provide ancillary equipment with secondary containment
(for example, trench, jacketing, double-walled piping) that meets the
requirements of Sec. 267.196 (a) and (b), except for:
(a) Piping (exclusive of flanges, joints, valves, and other
connections) that are visually inspected for leaks on a daily basis.
(b) Welded flanges, welded joints, and welded connections, that are
visually inspected for leaks on a daily basis.
(c) Sealless or magnetic coupling pumps and sealless valves, that
are visually inspected for leaks on a daily basis.
(d) Pressurized aboveground piping systems with automatic shut-off
devices (for example, excess flow check valves, flow metering shutdown
devices, loss of pressure actuated shut-off devices) that are visually
inspected for leaks on a daily basis.
Sec. 267.198 What are the general operating requirements for my tank
systems?
(a) You must not place hazardous wastes or treatment reagents in a
tank system if they could cause the tank, its ancillary equipment, or
the containment system to rupture, leak, corrode, or otherwise fail.
(b) You must use appropriate controls and practices to prevent
spills and overflows from tank or containment systems. These include,
at a minimum:
(1) Spill prevention controls (for example, check valves, dry
disconnect couplings).
(2) Overfill prevention controls (for example, level sensing
devices, high level alarms, automatic feed cutoff, or bypass to a
standby tank).
(3) Sufficient freeboard in uncovered tanks to prevent overtopping
by wave or wind action or by precipitation.
(c) You must comply with the requirements of Sec. 267.200 if a leak
or spill occurs in the tank system.
Sec. 267.199 What inspection requirements must I meet?
You must comply with the following requirements for scheduling,
conducting, and documenting inspections.
(a) Develop and follow a schedule and procedure for inspecting
overfill controls.
(b) Inspect at least once each operating day:
(1) Aboveground portions of the tank system to detect corrosion or
releases of waste.
(2) Data gathered from monitoring and leak detection equipment (for
example, pressure or temperature gauges, monitoring wells) to ensure
that the tank system is being operated according to its design.
(3) The construction materials and the area immediately surrounding
the externally accessible portion of the tank system, including the
secondary containment system (for example, dikes) to detect erosion or
signs of releases of hazardous waste (for example, wet spots, dead
vegetation).
(c) Inspect cathodic protection systems, if present, according to,
at a minimum, the following schedule to ensure that they are
functioning properly:
(1) Confirm that the cathodic protection system is operating
properly within six months after initial installation and annually
thereafter.
(2) Inspect and/or test all sources of impressed current, as
appropriate, at least every other month.
(d) Document, in the operating record of the facility, an
inspection of those items in paragraphs (a) through (c) of this
section.
Sec. 267.200 What must I do in case of a leak or a spill?
If there has been a leak or a spill from a tank system or secondary
containment system, or if either system is unfit for use, you must
remove the system from service immediately, and you must satisfy the
following requirements:
[[Page 52262]]
(a) Immediately stop the flow of hazardous waste into the tank
system or secondary containment system and inspect the system to
determine the cause of the release.
(b) Remove the waste from the tank system or secondary containment
system.
(1) If the release was from the tank system, you must, within 24
hours after detecting the leak, remove as much of the waste as is
necessary to prevent further release of hazardous waste to the
environment and to allow inspection and repair of the tank system to be
performed.
(2) If the material released was to a secondary containment system,
you must remove all released materials within 24 hours or as quickly as
possible to prevent harm to human health and the environment.
(c) Immediately conduct a visual inspection of the release and,
based upon that inspection:
(1) Prevent further migration of the leak or spill to soils or
surface water.
(2) Remove, and properly dispose of, any visible contamination of
the soil or surface water.
(d) Report any release to the environment, except as provided in
paragraph (d)(2) of this section, to the Regional Administrator within
24 hours of its detection. If you have reported the release pursuant to
40 CFR part 302, that report will satisfy this requirement.
(1) You need not report on a leak or spill of hazardous waste if it
is:
(i) Less than or equal to a quantity of one (1) pound, and
(ii) Immediately contained and cleaned up.
(2) Within 30 days of detection of a release to the environment,
you must submit a report to the Regional Administrator containing the
following information:
(i) The likely route of migration of the release.
(ii) The characteristics of the surrounding soil (soil composition,
geology, hydrogeology, climate).
(iii) The results of any monitoring or sampling conducted in
connection with the release (if available). If sampling or monitoring
data relating to the release are not available within 30 days, you must
submit these data to the Regional Administrator as soon as they become
available.
(iv) The proximity to downgradient drinking water, surface water,
and populated areas.
(v) A description of response actions taken or planned.
(e) Either close the system or make necessary repairs.
(1) Unless you satisfy the requirements of paragraphs (e)(2) and
(3) of this section, you must close the tank system according to
Sec. 267.201.
(2) If the cause of the release was a spill that has not damaged
the integrity of the system, you may return the system to service as
soon as you remove the released waste and make any necessary repairs.
(3) If the cause of the release was a leak from the primary tank
system into the secondary containment system, you must repair the
system before returning the tank system to service.
(f) If you have made extensive repairs to a tank system in
accordance with paragraph (e) of this section (for example,
installation of an internal liner; repair of a ruptured primary
containment or secondary containment vessel), you may not return the
tank system to service unless the repair is certified by an
independent, qualified, registered, professional engineer in accordance
with 40 CFR 270.11(d).
(1) The engineer must certify that the repaired system is capable
of handling hazardous wastes without release for the intended life of
the system.
(2) You must submit this certification to the Regional
Administrator within seven days after returning the tank system to use.
Sec. 267.201 What must I do when I stop operating the tank system?
When you close a tank system, you must remove or decontaminate all
waste residues, contaminated containment system components (liners,
etc.), contaminated soils, and structures and equipment contaminated
with waste, and manage them as hazardous waste, unless 40 CFR 261.3(d)
applies. The closure plan, closure activities, cost estimates for
closure, and financial responsibility for tank systems must meet all of
the requirements specified in subparts G and H of this part.
Sec. 267.202 What special requirements must I meet for ignitable or
reactive wastes?
(a) You may not place ignitable or reactive waste in tank systems,
unless:
(1) You treat, render, or mix the waste before or immediately after
placement in the tank system so that:
(i) You comply with Sec. 267.17(b), and
(ii) The resulting waste, mixture, or dissolved material no longer
meets the definition of ignitable or reactive waste under Secs. 261.21
or 261.23 of this chapter, or
(2) You store or treat the waste in such a way that it is protected
from any material or conditions that may cause the waste to ignite or
react; or
(3) You use the tank system solely for emergencies.
(b) If you store or treat ignitable or reactive waste in a tank,
you must comply with the requirements for the maintenance of protective
distances between the waste management area and any public ways,
streets, alleys, or an adjoining property line that can be built upon
as required in Tables 2-1 through 2-6 of the National Fire Protection
Association's ``Flammable and Combustible Liquids Code,'' (1977 or
1981), (incorporated by reference, see 40 CFR 260.11).
Sec. 267.203 What special requirements must I meet for incompatible
wastes?
(a) You may not place incompatible wastes, or incompatible wastes
and materials, in the same tank system, unless you comply with
Sec. 267.17(b).
(b) You may not place hazardous waste in a tank system that has not
been decontaminated and that previously held an incompatible waste or
material, unless you comply with Sec. 267.17(b).
Sec. 267.204 What air emission standards apply?
You must manage all hazardous waste placed in a tank following the
requirements of subparts AA, BB, and CC of 40 CFR part 264. Under a
standardized permit, the following control devices are permissible:
thermal vapor incinerator, catalytic vapor incinerator, flame, boiler,
process heater, condenser, and carbon absorption unit.
Subparts K through CC [Reserved]
Subpart DD--Containment buildings
Sec. 267.1100 Does this subpart apply to me?
This subpart applies to you if you own or operate a facility that
treats or stores hazardous waste in containment buildings under a 40
CFR part 270, subpart I standardized permit, except as provided in
Sec. 267.1(b). Storage and/or treatment in your containment building is
not land disposal as defined in 40 CFR 268.2 if your unit meets the
requirements of Secs. 267.1101, 267.1102, and 267.1103.
Sec. 267.1101 What design and operating standards must my containment
building meet?
Your containment buildings must comply with the design and
operating standards in this section. EPA will consider standards
established by professional organizations generally recognized by the
industry such as the American Concrete Institute (ACI) and the American
Society of Testing Materials (ASTM) in judging the structural integrity
requirements of this section.
(a) The containment building must be completely enclosed with a
floor, walls,
[[Page 52263]]
and a roof to prevent exposure to the elements, (e.g., precipitation,
wind, run-on), and to assure containment of managed wastes.
(b) The floor and containment walls of the unit, including the
secondary containment system, if required under Sec. 267.1103, must be
designed and constructed of manmade materials of sufficient strength
and thickness to:
(1) Support themselves, the waste contents, and any personnel and
heavy equipment that operates within the unit.
(2) Prevent failure due to:
(i) Pressure gradients, settlement, compression, or uplift.
(ii) Physical contact with the hazardous wastes to which they are
exposed
(iii) Climatic conditions.
(iv) Stresses of daily operation, including the movement of heavy
equipment within the unit and contact of such equipment with
containment walls.
(v) Collapse or other failure.
(c) All surfaces to be in contact with hazardous wastes must be
chemically compatible with those wastes.
(d) You must not place incompatible hazardous wastes or treatment
reagents in the unit or its secondary containment system if they could
cause the unit or secondary containment system to leak, corrode, or
otherwise fail.
(e) A containment building must have a primary barrier designed to
withstand the movement of personnel, waste, and handling equipment in
the unit during the operating life of the unit and appropriate for the
physical and chemical characteristics of the waste to be managed.
(f) If appropriate to the nature of the waste management operation
to take place in the unit, an exception to the structural strength
requirement may be made for light-weight doors and windows that meet
these criteria:
(1) They provide an effective barrier against fugitive dust
emissions under Sec. 267.1102(d).
(2) The unit is designed and operated in a fashion that assures
that wastes will not actually come in contact with these openings.
(g) You must inspect and record in the facility's operating record,
at least once every seven days, data gathered from monitoring equipment
and leak detection equipment as well as the containment building and
the area immediately surrounding the containment building to detect
signs of releases of hazardous waste.
(h) You must obtain certification by a qualified registered
professional engineer that the containment building design meets the
requirements of Secs. 267.1102, 267.1103, and paragraphs (a) through
(f) of this section.
Sec. 267.1102 What other requirements must I meet to prevent releases?
You must use controls and practices to ensure containment of the
hazardous waste within the unit; and must, at a minimum:
(a) Maintain the primary barrier to be free of significant cracks,
gaps, corrosion, or other deterioration that could cause hazardous
waste to be released from the primary barrier.
(b) Maintain the level of the stored/treated hazardous waste within
the containment walls of the unit so that the height of any containment
wall is not exceeded.
(c) Take measures to prevent personnel or by equipment used in
handling the waste from tracking hazardous waste out of the unit. You
must designate an area to decontaminate equipment, and you must collect
and properly manage any rinsate.
(d) Take measures to control fugitive dust emissions such that any
openings (doors, windows, vents, cracks, etc.) exhibit no visible
emissions (see 40 CFR part 60, appendix A, Method 22--Visual
Determination of Fugitive Emissions from Material Sources and Smoke
Emissions from Flares). In addition, you must operate and maintain all
associated particulate collection devices (for example, fabric filter,
electrostatic precipitator) with sound air pollution control practices.
You must effectively maintain this state of no visible emissions at all
times during routine operating and maintenance conditions, including
when vehicles and personnel are entering and exiting the unit.
Sec. 267.1103 What additional design and operating standards apply if
liquids will be in my containment building?
If your containment building will be used to manage hazardous
wastes containing free liquids or treated with free liquids, as
determined by the paint filter test, by a visual examination, or by
other appropriate means, you must include:
(a) A primary barrier designed and constructed of materials to
prevent the migration of hazardous constituents into the barrier (for
example, a geomembrane covered by a concrete wear surface).
(b) A liquid collection and removal system to minimize the
accumulation of liquid on the primary barrier of the containment
building.
(1) The primary barrier must be sloped to drain liquids to the
associated collection system; and
(2) You must collect and remove liquids and waste to minimize
hydraulic head on the containment system at the earliest practicable
time.
(c) A secondary containment system, including a secondary barrier
designed and constructed to prevent migration of hazardous constituents
into the barrier, and a leak detection system capable of detecting
failure of the primary barrier and collecting accumulated hazardous
wastes and liquids at the earliest practical time.
(1) You may meet the requirements of the leak detection component
of the secondary containment system by installing a system that is, at
a minimum:
(i) Constructed with a bottom slope of 1 percent or more; and
(ii) Constructed of a granular drainage material with a hydraulic
conductivity of 1 x 10-2 cm/sec or more and a thickness of
12 inches (30.5 cm) or more, or constructed of synthetic or geonet
drainage materials with a transmissivity of 3 x 10-5
m2/sec or more.
(2) If you will be conducting treatment in the building, you must
design the area in which the treatment will be conducted to prevent the
release of liquids, wet materials, or liquid aerosols to other portions
of the building.
(3) You must construct the secondary containment system using
materials that are chemically resistant to the waste and liquids
managed in the containment building and of sufficient strength and
thickness to prevent collapse under the pressure exerted by overlaying
materials and by any equipment used in the containment building.
Sec. 267.1104 How may I obtain a waiver from secondary containment
requirements?
Notwithstanding any other provision of this subpart the Regional
Administrator may waive requirements for secondary containment for a
permitted containment building where you:
(a) Demonstrate that the only free liquids in the unit are limited
amounts of dust suppression liquids required to meet occupational
health and safety requirements, and
(b) Containment of managed wastes and dust suppression liquids can
be assured without a secondary containment system.
Sec. 267.1105 What do I do if my containment building contains areas
both with and without secondary containment?
For these containment buildings, you must:
(a) Design and operate each area in accordance with the
requirements enumerated in Secs. 267.1101 through 267.1103.
[[Page 52264]]
(b) Take measures to prevent the release of liquids or wet
materials into areas without secondary containment.
(c) Maintain in the facility's operating log a written description
of the operating procedures used to maintain the integrity of areas
without secondary containment.
Sec. 267.1106 What do I do if I detect a release?
Throughout the active life of the containment building, if you
detect a condition that could lead to or has caused a release of
hazardous waste, you must repair the condition promptly, in accordance
with the following procedures.
(a) Upon detection of a condition that has lead to a release of
hazardous waste (for example, upon detection of leakage from the
primary barrier) you must:
(1) Enter a record of the discovery in the facility operating
record;
(2) Immediately remove the portion of the containment building
affected by the condition from service;
(3) Determine what steps you must take to repair the containment
building, to remove any leakage from the secondary collection system,
and to establish a schedule for accomplishing the cleanup and repairs;
and
(4) Within 7 days after the discovery of the condition, notify the
Regional Administrator of the condition, and within 14 working days,
provide a written notice to the Regional Administrator with a
description of the steps taken to repair the containment building, and
the schedule for accomplishing the work.
(b) The Regional Administrator will review the information
submitted, make a determination regarding whether the containment
building must be removed from service completely or partially until
repairs and cleanup are complete, and notify you of the determination
and the underlying rationale in writing.
(c) Upon completing all repairs and cleanup, you must notify the
Regional Administrator in writing and provide a verification, signed by
a qualified, registered professional engineer, that the repairs and
cleanup have been completed according to the written plan submitted in
accordance with paragraph (a)(4) of this section.
Sec. 267.1107 Can a containment building itself be considered
secondary containment?
Containment buildings can serve as secondary containment systems
for tanks placed within the building under certain conditions.
(a) A containment building can serve as an external liner system
for a tank, provided it meets the requirements of Sec. 267.196(a).
(b) The containment building must also meet the requirements of
Sec. 267.195(a), (b)(1) and (2) to be considered an acceptable
secondary containment system for a tank.
Sec. 267.1108 What must I do when I stop operating the containment
building?
When you close a containment building, you must remove or
decontaminate all waste residues, contaminated containment system
components (liners, etc.) contaminated subsoils, and structures and
equipment contaminated with waste and leachate, and manage them as
hazardous waste unless 40 CFR 261.3(d) applies. The closure plan,
closure activities, cost estimates for closure, and financial
responsibility for containment buildings must meet all of the
requirements specified in subparts G and H of this part.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
11. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart A--General Information
12. Section 270.1(b) is amended by adding a sentence after the
second sentence of paragraph (b) to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(b) * * * Facilities that generate hazardous waste and then non-
thermally treat or store the hazardous waste in tanks, containers, or
containment buildings, may be eligible for a standardized permit under
subpart I of this part. * * *
* * * * *
13. Section 270.2 is amended by revising the definition for
``Permit'' and adding a definition for ``Standardized permit'' in
alphabetical order to read as follows:
Sec. 270.2 Definitions.
* * * * *
Permit means an authorization, license, or equivalent control
document issued by EPA or an approved State to implement the
requirements of this part and parts 271 and 124 of this chapter. Permit
includes permit by rule (Sec. 270.60), emergency permit (Sec. 270.61)
and standardized permit (subpart I of this part). Permit does not
include RCRA interim status (subpart G of this part), or any permit
which has not been the subject of final agency action, such as a draft
permit or a proposed permit.
* * * * *
Standardized permit means a RCRA permit issued under part 124,
subpart G of this chapter and subpart I of this part authorizing the
facility owner or operator to manage hazardous waste. The standardized
permit may have two parts: a uniform portion issued in all cases and a
supplemental portion issued at the Director's discretion.
* * * * *
Subpart B--Permit Application
14. Section 270.10 is amended by revising paragraphs (a) and (h) to
read as follows:
Sec. 270.10 General application requirements.
(a) Applying for a permit. Below is information on how to obtain a
permit and where to find requirements for specific permits:
(1) If you are covered by RCRA permits by rule (Sec. 270.60), you
need not apply.
(2) If you currently have interim status, you must apply for
permits when required by the Director.
(3) If you are required to have a permit (including new applicants
and permittees with expiring permits) you must complete, sign, and
submit an application to the Director as described in this section and
Secs. 270.70 through 270.73.
(4) If you are seeking an emergency permit, the procedures for
application, issuance, and administration are found exclusively in
Sec. 270.61.
(5) If you are seeking a research, development, and demonstration
permit, the procedures for application, issuance, and administration
are found exclusively in Sec. 270.65.
(6) If you are seeking a standardized permit, the procedures for
application and issuance are found in part 124, subpart G of this
chapter and subpart I of this part.
* * * * *
(h) Reapplying for a permit. If you have an effective permit and
you want to reapply for a new one, you have two options:
(1) You may submit a new application at least 180 days before the
expiration date of the effective permit, unless the Direction allows a
later date; or
(2) If you intend to be covered by a standardized permit, you may
submit a Notice of Intent as described in Sec. 270.51(e)(1) at least
180 days before the expiration date of the effective
[[Page 52265]]
permit, unless the Director allows a later date. (The Director may not
allow you to submit applications or Notices of Intent later than the
expiration date of the existing permit, except as allowed by
Sec. 270.51(e)(2)).
* * * * *
Subpart D--Changes to Permits
15. Section 270.40(b) is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 270.40 Transfer of permits.
* * * * *
(b) Changes in the ownership or operational control of a facility
may be made as a Class 1 modification with prior written approval of
the Director in accordance with Sec. 270.42 or as a routine change
under 40 CFR 124.212.
* * * * *
16. Section 270.41 is amended by revising the next to last sentence
of the introductory paragraph and adding paragraph (b)(3) to read as
follows:
Sec. 270.41 Modification or revocation and reissuance of permits.
* * * If a permit modification is requested by the permittee, the
Director shall approve or deny the request according to the procedures
of Sec. 270.42, or Sec. 270.320 and 40 CFR part 124, subpart G. * * * *
* * * * *
(b) * * *
(3) The Director has received notification under 40 CFR 124.202 (b)
of a facility owner or operator's intent to be covered by a
standardized permit.
* * * * *
Subpart E--Expiration and Continuation of Permits
17. Section 270.51 is amended by adding paragraph (e) as follows:
Sec. 270.51 Continuation of expiring permits.
* * * * *
(e) Standardized permits. (1) The conditions of your expired
standardized permit continue until the effective date of your new
permit (see 40 CFR 124.15) if all of the following are true:
(i) If EPA is the permit-issuing authority.
(ii) If you submit a timely and complete notice of intent under 40
CFR 124.202(b) requesting coverage under a RCRA standardized permit;
and
(iii) If the Director, through no fault on your part, does not
issue your permit before your previous permit expires (for example,
where it is impractical to make the permit effective by that date
because of time or resource constraints).
(2) In some cases, the Director may notify you that you are not
eligible for a standardized permit (see 40 CFR 124.206). In those
cases, the conditions of your expired permit will continue if you
submit the information specified in paragraph (a)(1) of this section
(that is, a complete application for a new permit) within 60 days after
you receive our notification that you are not eligible for a
standardized permit.
Subpart F--Special Forms of Permits
18. Add Sec. 270.67 to subpart F to read as follows:
Sec. 270.67 RCRA standardized permits for storage and treatment units.
RCRA standardized permits are special forms of permits for facility
owners or operators that generate hazardous waste and then non-
thermally treat or store the hazardous waste in tanks, containers, or
containment buildings. Standardized permit facility owners or operators
are regulated under subpart I of this part, part 124 subpart G of this
chapter, and part 267 of this chapter.
19. Subpart I is added to part 270 to read as follows:
Subpart I--RCRA Standardized Permits for Storage and Treatment
Units
Sec.
General Information About Standardized Permits
270.250 What is a RCRA standardized permit?
270.255 Who is eligible for a standardized permit?
270.260 What requirements of Part 270 apply to a standardized
permit?
Applying for a Standardized Permit
270.270 How do I apply for a standardized permit?
270.275 What information must I submit to the permitting agency to
support my standardized permit application?
270.280 What are the certification requirements?
270.285 What happens if my facility is not in compliance with 40
CFR part 267 requirements at the time I submit my notice of intent?
Information That Must Be Kept at Your Facility
270.290 What general types of information must I keep at my
facility?
270.300 What container information must I keep at my facility?
270.305 What tank information must I keep at my facility?
270.310 What equipment information must I keep at my facility?
270.315 What air emissions control information must I keep at my
facility?
Modifying a Standardized Permit
270.320 How do I modify my RCRA standardized permit?
Subpart I--RCRA Standardized Permits for Storage and Treatment
Units
General Information About Standardized Permits
Sec. 270.250 What is a RCRA standardized permit?
A RCRA standardized permit (RCRA) is a special type of permit that
authorizes you to manage hazardous waste. It is issued under 40 CFR
part 124, subpart G and subpart I of this part.
Sec. 270.255 Who is eligible for a standardized permit?
If you generate hazardous waste and then non-thermally treat or
store the hazardous waste in tanks, containers, or containment
buildings, you may be eligible for a standardized permit. We will
inform you of your eligibility when we make a decision on your permit
application.
Sec. 270.260 What requirements of part 270 apply to a standardized
permit?
The following subparts and sections of this part 270 apply to a
standardized permit:
(a) Subpart A--General Information: all sections.
(b) Subpart B--Permit Application: Secs. 270.10, 270.11, 270.12,
270.13 and 270.29.
(c) Subpart C--Permit Conditions : all sections.
(d) Subpart D--Changes to Permit: Secs. 270.40, 270.41, and 270.43.
(e) Subpart E--Expiration and Continuation of Permits: all
sections.
(f) Subpart F--Special Forms of Permits: Sec. 270.67.
(g) Subpart G--Interim Status: all sections.
(h) Subpart H--Remedial Action Plans: does not apply.
(i) Subpart I--Standardized Permits: all sections.
Applying for a Standardized Permit
Sec. 270.270 How do I apply for a standardized permit?
You apply for a standardized permit by following the procedures in
40 CFR part 124, subpart G and this subpart.
Sec. 270.275 What information must I submit to the permitting agency
to support my standardized permit application?
The information in paragraphs (a) through (f) of this section will
be the basis of your standardized permit application. You must submit
it to the Director when you submit your Notice
[[Page 52266]]
of Intent under 40 CFR 124.202(b) requesting coverage under a RCRA
standardized permit:
(a) The Part A information described in Sec. 270.13.
(b) A meeting summary and other materials required by 40 CFR
124.31.
(c) Documentation of compliance with the location standards of 40
CFR 267.18 and Sec. 270.14(b)(11).
(d) Information that allows the Director to carry out our
obligations under other Federal laws required in Sec. 270.3.
(e) Solid waste management unit information required by
Sec. 270.14(d).
(f) A certification meeting the requirements of Sec. 270.280 and an
audit of the facility's compliance status with 40 CFR part 267 as
required by Sec. 270.280.
Sec. 270.280 What are the certification requirements?
You must submit a signed certification based on your audit of your
facility's compliance with 40 CFR part 267.
(a) Your certification must read:
I certify under penalty of law that:
(1) My facility (include paragraph (a)(1)(i) or (ii) of this
section, whichever applies):
(i) Complies with all applicable requirements of 40 CFR part 267
and will continue to comply until the expiration of the permit; or
(ii) Will come into compliance before permit issuance with all
applicable requirements of 40 CFR part 267 and will then continue to
comply until expiration of the permit.
(2) I will make all information that I am required to maintain
at my facility by Secs. 270.290 through 277.315 readily available
for review by the permitting agency and the public; and,
(3) I will continue to make all information required by
Secs. 270.290 through 277.315 available until the permit expires. I
am aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment for
knowing violation.
(b) You must sign this certification following the requirements of
Sec. 270.11(a)(1) through (3).
(c) This certification must be based upon an audit that you conduct
of your facility's compliance status with 40 CFR part 267. You must
submit this audit to the Director with the 40 CFR 124.202(b) notice of
intent.
Sec. 270.285 What happens if my facility is not in compliance with 40
CFR part 267 requirements at the time I submit my notice of intent?
(a) If your facility is not in compliance with applicable
requirements of 40 CFR part 267 at the time you submit your Notice of
Intent, you must submit a compliance schedule to the Director. This
schedule must include an enforceable sequence of actions with
milestones, leading to compliance with the requirements for which your
facility is in noncompliance at the time your Notice of Intent
submittal.
(b) Before the Director issues your permit, your facility must be
in compliance with applicable 40 CFR part 267 requirements.
Information That Must Be Kept at Your Facility
Sec. 270.290 What general types of information must I keep at my
facility?
You must keep the following information at your facility:
(a) A general description of the facility.
(b) Chemical and physical analyses of the hazardous waste and
hazardous debris handled at the facility. At a minimum, these analyses
must contain all the information you must know to treat or store the
wastes properly under the requirements of 40 CFR part 267.
(c) A copy of the waste analysis plan required by 40 CFR 267.13(b).
(d) A description of the security procedures and equipment required
by 40 CFR 267.14, or a justification demonstrating the reasons for your
waiver from these requirements.
(e) A copy of the general inspection schedule required by 40 CFR
267.15(b). You must include in the inspection schedule applicable
requirements of 40 CFR 267.174, 267.193, 267.195, 264.1033, 264.1052,
264.1053, 264.1058, and 264.1088.
(f) A justification of any modification of the preparedness and
prevention requirements of 40 CFR part 267, subpart C.
(g) A copy of the contingency plan required by 40 CFR part 267,
subpart D.
(h) A description of procedures, structures, or equipment used at
the facility to:
(1) Prevent hazards in unloading operations (for example, use
ramps, special forklifts),
(2) Prevent runoff from hazardous waste handling areas to other
areas of the facility or environment, or to prevent flooding (for
example, with berms, dikes, trenches),
(3) Prevent contamination of water supplies,
(4) Mitigate effects of equipment failure and power outages,
(5) Prevent undue exposure of personnel to hazardous waste (for
example, requiring protective clothing), and
(6) Prevent releases to atmosphere,
(i) A description of precautions to prevent accidental ignition or
reaction of ignitable, reactive, or incompatible wastes as required by
40 CFR 267.17.
(j) Traffic pattern, estimated volume (number, types of vehicles)
and control (for example, show turns across traffic lanes, and stacking
lanes; describe access road surfacing and load bearing capacity; show
traffic control signals).
(k) [Reserved]
(l) An outline of both the introductory and continuing training
programs you will use to prepare employees to operate or maintain your
facility safely as required by 40 CFR 267.16. A brief description of
how training will be designed to meet actual job tasks under 40 CFR
267.16(a)(3) requirements.
(m) A copy of the closure plan required by 40 CFR 267.112. Include,
where applicable, as part of the plans, specific requirements in 40 CFR
267.176, 267.201, and 267.1108.
(n) [Reserved]
(o) The most recent closure cost estimate for your facility
prepared under 40 CFR 267.142 and a copy of the documentation required
to demonstrate financial assurance under 40 CFR 267.143. For a new
facility, you may gather the required documentation 60 days before the
initial receipt of hazardous wastes.
(p) [Reserved]
(q) Where applicable, a copy of the insurance policy or other
documentation that complies with the liability requirements of 40 CFR
267.147. For a new facility, documentation showing the amount of
insurance meeting the specification of 40 CFR 267.147(a) that you plan
to have in effect before initial receipt of hazardous waste for
treatment or storage.
(r) Where appropriate, proof of coverage by a State financial
mechanism as required by 40 CFR 267.149 or 267.150.
(s) A topographic map showing a distance of 1000 feet around your
facility at a scale of 2.5 centimeters (1 inch) equal to not more than
61.0 meters (200 feet). The map must show elevation contours. The
contour interval must show the pattern of surface water flow in the
vicinity of and from each operational unit of the facility. For
example, contours with an interval of 1.5 meters (5 feet), if relief is
greater than 6.1 meters (20 feet), or an interval of 0.6 meters (2
feet), if relief is less than 6.1 meters (20 feet). If your facility is
in a mountainous area, you should use large contour intervals to
adequately show topographic profiles of facilities. The map must
clearly show the following:
[[Page 52267]]
(1) Map scale and date.
(2) 100-year floodplain area.
(3) Surface waters including intermittent streams.
(4) Surrounding land uses (residential, commercial, agricultural,
recreational).
(5) A wind rose (i.e., prevailing wind-speed and direction).
(6) Orientation of the map (north arrow).
(7) Legal boundaries of your facility site.
(8) Access control (fences, gates).
(9) Injection and withdrawal wells both on-site and off-site.
(10) Buildings; treatment, storage, or disposal operations; or
other structure (recreation areas, runoff control systems, access and
internal roads, storm, sanitary, and process sewerage systems, loading
and unloading areas, fire control facilities, etc.)
(11) Barriers for drainage or flood control.
(12) Location of operational units within your facility, where
hazardous waste is (or will be) treated or stored. (Include equipment
cleanup areas).
Sec. 270.300 What container information must I keep at my facility?
If you store or treat hazardous waste in containers, you must keep
the following information at your facility:
(a) A description of the containment system to demonstrate
compliance with container storage area provisions of 40 CFR 267.173.
This description must show the following:
(1) Basic design parameters, dimensions, and materials of
construction.
(2) How the design promotes drainage or how containers are kept
from contact with standing liquids in the containment system.
(3) Capacity of the containment system relative to the number and
volume of containers to be stored.
(4) Provisions for preventing or managing run-on.
(5) How accumulated liquids can be analyzed and removed to prevent
overflow.
(b) For storage areas that store containers holding wastes that do
not contain free liquids, a demonstration of compliance with 40 CFR
267.173(c), including:
(1) Test procedures and results or other documentation or
information to show that the wastes do not contain free liquids.
(2) A description of how the storage area is designed or operated
to drain and remove liquids or how containers are kept from contact
with standing liquids.
(c) Sketches, drawings, or data demonstrating compliance with 40
CFR 267.174 (location of buffer zone (15m or 50ft) and containers
holding ignitable or reactive wastes) and 40 CFR 267.175(c) (location
of incompatible wastes in relation to each other), where applicable.
(d) Where incompatible wastes are stored or otherwise managed in
containers, a description of the procedures used to ensure compliance
with 40 CFR 267.175 (a) and (b), and 267.17 (b) and (c).
(e) Information on air emission control equipment as required by
Sec. 270.315.
Sec. 270.305 What tank information must I keep at my facility?
If you use tanks to store or treat hazardous waste, you must keep
the following information at your facility:
(a) A written assessment that is reviewed and certified by an
independent, qualified, registered professional engineer on the
structural integrity and suitability for handling hazardous waste of
each tank system, as required under 40 CFR 267.191 and 267.192.
(b) Dimensions and capacity of each tank.
(c) Description of feed systems, safety cutoff, bypass systems, and
pressure controls (e.g., vents).
(d) A diagram of piping, instrumentation, and process flow for each
tank system.
(e) A description of materials and equipment used to provide
external corrosion protection, as required under 40 CFR 267.191.
(f) For new tank systems, a detailed description of how the tank
system(s) will be installed in compliance with 40 CFR 267.192 and
267.194.
(g) Detailed plans and description of how the secondary containment
system for each tank system is or will be designed, constructed, and
operated to meet the requirements of 40 CFR 267.195 and 267.196.
(h) [Reserved].
(i) Description of controls and practices to prevent spills and
overflows, as required under 40 CFR 267.198.
(j) For tank systems in which ignitable, reactive, or incompatible
wastes are to be stored or treated, a description of how operating
procedures and tank system and facility design will achieve compliance
with the requirements of 40 CFR 267.202 and 267.203.
(k) Information on air emission control equipment as required by
Sec. 270.315.
Sec. 270.310 What equipment information must I keep at my facility?
If your facility has equipment to which 40 CFR part 264, subpart BB
applies, you must keep the following information at your facility:
(a) For each piece of equipment to which 40 CFR part 264 subpart BB
applies:
(1) Equipment identification number and hazardous waste management
unit identification.
(2) Approximate locations within the facility (e.g., identify the
hazardous waste management unit on a facility plot plan).
(3) Type of equipment (e.g., a pump or a pipeline valve).
(4) Percent by weight of total organics in the hazardous waste
stream at the equipment.
(5) Hazardous waste state at the equipment (e.g., gas/vapor or
liquid).
(6) Method of compliance with the standard (e.g., monthly leak
detection and repair, or equipped with dual mechanical seals).
(b) For facilities that cannot install a closed-vent system and
control device to comply with 40 CFR Part 264, subpart BB on the
effective date that the facility becomes subject to the subpart BB
provisions, an implementation schedule as specified in 40 CFR
264.1033(a)(2).
(c) Documentation that demonstrates compliance with the equipment
standards in 40 CFR 264.1052 and 264.1059. This documentation must
contain the records required under 40 CFR 264.1064.
(d) Documentation to demonstrate compliance with 40 CFR 264.1060
must include the following information:
(1) A list of all information references and sources used in
preparing the documentation.
(2) Records, including the dates, of each compliance test required
by 40 CFR 264.1033(j).
(3) A design analysis, specifications, drawings, schematics, and
piping and instrumentation diagrams based on the appropriate sections
of ``ATPI Course 415: Control of Gaseous Emissions'' (incorporated by
reference as specified in 40 CFR 260.11) or other engineering texts
acceptable to the Director that present basic control device design
information. The design analysis must address the vent stream
characteristics and control device operation parameters as specified in
40 CFR 264.1035(b)(4)(iii).
(4) A statement you signed and dated certifying that the operating
parameters used in the design analysis reasonably represent the
conditions that exist when the hazardous waste management unit is
[[Page 52268]]
operating at the highest load or capacity level reasonable expected to
occur.
(5) A statement you signed and dated certifying that the control
device is designed to operate at an efficiency of 95 weight percent or
greater.
Sec. 270.315 What air emissions control information must I keep at my
facility?
If you have air emission control equipment subject to 40 CFR part
264, subpart CC, you must keep the following information at your
facility:
(a) Documentation for each floating roof cover installed on a tank
subject to 40 CFR 264.1084(d)(1) or (d)(2) that includes information
you prepared or the cover manufacturer/vendor provided describing the
cover design, and your certification that the cover meets applicable
design specifications listed in 40 CFR 264.1084(e)(1) or (f)(1).
(b) Identification of each container area subject to the
requirements of 40 CFR part 264, subpart CC and your certification that
the requirements of this subpart are met.
(c) Documentation for each enclosure used to control air pollutant
emissions from tanks or containers under requirements of 40 CFR
264.1084(d)(5) or 264.1086(e)(1)(ii). You must include records for the
most recent set of calculations and measurements you performed to
verify that the enclosure meets the criteria of a permanent total
enclosure as specified in ``Procedure T--Criteria for and Verification
of a Permanent or Temporary Total Enclosure'' under 40 CFR 52.741,
appendix B.
(d) [Reserved]
(e) Documentation for each closed-vent system and control device
installed under requirements of 40 CFR 264.1087 that includes design
and performance information as specified in Sec. 270.24 (c) and (d).
(f) An emission monitoring plan for both Method 21 in 40 CFR Part
60, appendix A and control device monitoring methods. This plan must
include the following information: monitoring point(s), monitoring
methods for control devices, monitoring frequency, procedures for
documenting exceedences, and procedures for mitigating noncompliances.
Modifying a Standardized Permit
Sec. 270.320 How do I modify my RCRA standardized permit?
You can modify your RCRA standardized permit by following the
procedures found in 40 CFR 124.211 through 124.213.
[FR Doc. 01-24204 Filed 10-11-01; 8:45 am]
BILLING CODE 6560-50-P