[Federal Register: September 8, 2005 (Volume 70, Number 173)]
[Rules and Regulations]
[Page 53419-53478]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se05-10]
[[Page 53419]]
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Part II
Environmental Protection Agency
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40 CFR Parts 124, 260, et al.
Hazardous Waste Management System; Standardized Permit for RCRA
Hazardous Waste Management Facilities; Final Rule
[[Page 53420]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 124, 260, 261, 267, and 270
[RCRA-2001-0029; FRL-7948-4]
RIN 2050-AE44
Hazardous Waste Management System; Standardized Permit for RCRA
Hazardous Waste Management Facilities
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
revisions to the RCRA hazardous waste permitting program, originally
proposed on October 12, 2001, to allow for a ``standardized permit.''
The standardized permit will be available to RCRA treatment, storage,
and disposal facilities (TSDs) otherwise subject to RCRA permitting
that generate and then store or non-thermally treat hazardous waste on-
site in tanks, containers, and containment buildings.
The standardized permit will also be available to facilities which
receive hazardous waste generated off-site by a generator under the
same ownership as the receiving facility, and which then store or non-
thermally treat the hazardous waste in containers, tanks, or
containment buildings. The standardized permit will streamline the
permitting process by allowing facilities to obtain and modify permits
more easily, while still achieving the same level of environmental
protection as individual permits.
This rule finalizes the proposal, with changes based on public
comments. In the preamble to proposed rule, the Agency also requested
comments on other permitting-related topics including: how cleanups
under non-RCRA state cleanup programs might be reflected in RCRA
permits; the conclusions about captive insurance in a March, 2001
report by EPA's Inspector General; and whether insurers that provide
financial assurance for hazardous waste and PCB facilities have a
minimum rating from commercial rating services. The Agency is not
taking action at this point on these questions.
DATES: This rule is effective on October 11, 2005. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of October 11, 2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. RCRA-2001-0029. All documents in the docket are listed in the
DOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
DOCKET or in hard copy at the Resource Conservation and Recovery Act
(RCRA) Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the RCRA Docket is (202) 566-0270
FOR FURTHER INFORMATION CONTACT: Jeff Gaines, Permits and State
Programs Division, Office of Solid Waste, Mail Code 5303W,
Environmental Protection Agency,1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 703-308-8655; fax number: 703-
308-8609; e-mail address: gaines.jeff@epa.gov.
SUPPLEMENTARY INFORMATION:
How Can I Get Copies of the Standardized Permit Rule and Other Related
Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. RCRA-2001-0029. The official public docket
is the collection of materials specifically referenced in this action,
any public comments received, and other information related to this
action. Although a part of the official docket, the public docket does
not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is available for public viewing at the RCRA Information
Center in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified above. Once in
the system, select ``search,'' then key in the appropriate docket
identification number. 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, appear in a response to comments document that we will
place in the official record for this rulemaking.
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
MSWLF: Municipal Solid Waste Landfill Facilities
NAICS: North American Industry Classification System
NPDES: National Pollution Discharge Elimination System
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
SIC: Standard Industrial Classification
SBREFA: Small Business Regulatory Enforcement Fairness Act
SWMU: Solid Waste Management Unit
TSD: Treatment Storage and Disposal (facility)
UMRA: Unfunded Mandates Reform Act
The contents of today's preamble are listed in the following
outline:
I. Authority
II. Overview and Background
A. Background
[[Page 53421]]
B. Overview
1. Effect of Today's Rule
2. What Is Being Finalized in Today's Rule
C. What Is a Standardized Permit?
D. Who Is Eligible for a Standardized Permit?
E. Other General Comments on the Standardized Permit Rule
F. Should a Standard Form Be Developed for Preparing the
Required Part B Information?
G. Should the Current Provisions for Final Issuance of an
Individual Permit Apply to Standardized Permits?
III. Section by Section Analysis and Response to Comments for the 40
CFR Part 124 Requirements Related to the Standardized Permit Rule
A. Applying for a Standardized Permit
1. How Do I Apply for a Standardized Permit?
a. Conduct a Pre-application Meeting
b. Submit a Notice of Intent To Operate Under the Standardized
Permit Along With Appropriate Supporting Documents
2. How Do I Switch From an Individual Permit to a Standardized
Permit?
B. Issuing a Standardized Permit
1. How Does the Regulatory Agency Prepare a Draft Standardized
Permit?
a. Drafting Terms and Conditions for the Supplemental Portion
b. Denying Coverage Under the Standardized Permit
c. Preparing the Draft Permit Decision
2. How Does the Regulatory Agency Prepare a Final Standardized
Permit?
C. Public Involvement in the Standardized Permit Process
1. Requirements for Public Notices
2. Opportunities for Public Comments and Hearings
3. Responding to Comments
4. May I, as an Interested Party, Appeal a Final Permit
Decision?
D. Maintaining a Standardized Permit
1. What Types of Changes Can Owners or Operators Make?
2. What Are the Definitions of Routine, Routine With Prior
Agency Approval, and Significant Changes and What Are the
Requirements for Making Those Changes?
a. Routine Changes
b. Routine Changes With Prior Agency Approval
c. Significant Changes
3. How Do I Renew a Standardized Permit?
IV. Section by Section Analysis and Response to Comments for the 40
CFR Part 267 Requirements Related to the Standardized Permit Rule
A. Overview
B. Subpart A--General
1. Purpose, Scope, and Applicability
2. Relationship to Interim Status Standards
3. Imminent Hazard Action
C. Subpart B--General Facility Standards
1. Applicability
2. How Do I Comply with this Subpart?
3. How Do I Obtain an EPA Identification Number?
4. What Are the Waste Analysis Requirements?
5. What Are the Security Requirements?
6. What Are the Inspection Schedule Requirements?
7. What Are the Training Requirements?
8. What Are the Requirements for Managing Ignitable, Reactive,
or Incompatible Waste?
9. What Are the Location Standards?
D. Subpart C--Preparedness and Prevention
1. What Are the Design and Operation Standards?
2. What Equipment Must I Have?
3. What Are the Testing and Maintenance Requirements for
Equipment?
4. What Are the Requirements for Access to Communication
Equipment or an Alarm System?
5. What Are the Requirements for Access for Personnel and
Equipment During Emergencies?
6. What Are the Requirements for Arrangements with Local
Authorities for Emergencies?
E. Subpart D--Contingency Plans and Emergency Procedures
F. Subpart E--Record Keeping, Reporting, and Notifying
G. Subpart F--Releases from Solid Waste Management Units
H. Subpart G--Closure
1. Does this Subpart Apply to Me?
2. What General Standards Must I Meet When I Stop Operating the
Unit?
3. What Procedures Must I Follow?
4. Will the Public Have the Opportunity to Comment on the Plan?
5. What Happens If the Plan Is Not Approved?
6. After I Stop Operating, How Long Do I Have Until I Must
Close?
7. What Must I Do With Contaminated Equipment, Structures, and
Soils?
8. How Do I Certify Closure?
I. Subpart H--Financial Requirements
1. Who Has to Comply with this Subpart and Briefly What Must
They Do?
2. Definitions
3. Closure Cost Estimates
4. Financial Assurance for Closure
5. Post Closure Financial Responsibility
6. Liability Requirements
7. Other Provisions of the Financial Requirements
J. Subpart I--Use and Management of Containers
K. Subpart J--Use and Management of Tanks
1. Does this Subpart Apply to Me?
2. What Are the Required Design and Construction Standards for
New Tank Systems or Components?
3. What Handling and Inspection Procedures Must I Follow During
Installation of New Tank Systems?
4. What Testing Must I Do for New Tank Systems?
5. What Installation Requirements Must I Follow?
6. What Are the Secondary Containment Requirements?
7. What Are the Required Devices for Secondary Containment and
What Are Their Design, Operating, and Installation Requirements?
8. What Are the Requirements for Ancillary Equipment?
9. What Are the General Operating Requirements for a Tank
System?
10. What Inspection Requirements Must I Meet?
11. What Must I Do in Case of a Leak or Spill?
12. What Must I Do When I Stop Operating the Tank System?
13. What Special Requirements Must I Meet for Ignitable or
Reactive Wastes?
14. What Special Requirements Must I Meet for Incompatible
Wastes?
15. What Air Emission Standards Apply?
L. Subpart DD--Use and Management of Containment Buildings
V. Section by Section Analysis and Response to Comments for the 40
CFR Part 270 Requirements Related to the Standardized Permit Rule
A. Specific Changes to Part 270
1. Purpose and Scope
2. Definitions
3. Permit Applications
4. Permit Re-application
5. Transfer of Permits
6. Continuation of Expiring Permits
7. Standardized Permits
B. Standardized Permits
1. General Information about Standardized Permits
a. What Is a RCRA Standardized Permit?
b. Who Is Eligible for a Standardized Permit?
c. What Requirements of Part 270 Apply to a Standardized Permit?
2. Applying for a Standardized Permit
a. How Do I Apply for a Standardized Permit?
b. What Information Must I Submit to the Permitting Agency to
Support My Standardized Permit?
3. What Information Must I Keep at the Facility?
a. Section 270.290(d)
b. Section 270.290(m)
VI. State Authorization
A. Applicability of the Rule in Authorized States
B. Effect of State Authorization
VII. Regulatory Assessments
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
VIII. List of References
I. Authority
The Environmental Protection Agency is promulgating these
regulations under
[[Page 53422]]
the authority of sections 1003, 2002(a), 3004, 3005, 3006, 3007, and
3010 of the Solid Waste Disposal Act of 1970, as amended by the
Resource Conservation and Recovery Act of 1976 (RCRA), as amended by
the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C.
6902, 6912(a), 6924-6926, and 6930.
II. Overview and Background
A. Background
On October 12, 2001, we proposed revisions to the RCRA Hazardous
Waste permitting program to allow for a ``standardized permit'' for
RCRA TSDs that are otherwise subject to permitting and that generate
and then store and/or non-thermally treat hazardous waste on-site in
tanks, containers, and containment buildings. In the proposal, we also
requested comment on expanding the scope of the rule, e.g., to all off-
site facilities, to facilities who centralize their waste management
operations, or to recyclers. The proposal laid out a streamlined
approach to the permitting process, anticipating savings to both the
regulatory authority and the permit applicant, while still providing
protection to human health and the environment. Today's final rule
adopts that proposal with some changes based on comments.\1\
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\1\ The Agency also took comment on other permitting related
topics, including how facilities can satisfy corrective action
through alternate cleanup programs, and issues related to financial
assurance. The Agency is deferring action on those portions of the
proposal.
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B. Overview
This final rule describes the standardized permit, who is eligible
for the permit, how facilities apply for the permit, how to make
changes to the permit, and what the responsibilities are for the
regulatory authority in reviewing and issuing the permit.
1. Effect of Today's Rule
Today's action potentially affects about 870 to 1,130 private
sector and federal facilities that (a) generate and then store and/or
non-thermally treat hazardous wastes on-site in tanks, containers, and/
or containment buildings; and (b) which receive hazardous waste
generated off-site by a generator that is under the same ownership as
the receiving facility, and then store or non-thermally treat the
hazardous waste in containers, tanks, or containment buildings. We
estimate that these three types of eligible units represent 50%
prevalence of the eleven major types of hazardous waste management
units. Table 1 below identifies the economic sectors and associated
counts of RCRA hazardous waste management units and facilities likely
to be affected by this action. It is possible that other types of
entities not identified in the Table could also be impacted; however
the rule only affects three types of waste units. To determine whether
you may be impacted, you should carefully examine the applicability
section of the rule.
Table 1.--Identity of Economic Sectors Which Own and Operate Facilities Potentially Affected by This Rule*
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Count of facilities with potentially affected hazardous waste management units
(Note: low-end represents ``on-site'' only, and high-end represents on-site + off-
site units)
SIC code Economic sector NAICS code -----------------------------------------------------------------------------------
Waste containment
Waste Containers Waste tank systems* buildings
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0.............. Agriculture, Forestry 11......................... 21 to 30.................. 12 to 17.................. 0.
& Fisheries.
1.............. Mining, Oil/Gas & 21, 23..................... 26 to 37.................. 16 to 23.................. 0.
Construction.
2.............. Manufacturing (Food, 31-33, 511................. 427 to 606................ 313 to 445................ 5 to 7.
Textile/Apparel,
Lumber/Wood,
Furniture/Fixtures,
Paper, Printing/
Publishing, Chemicals
& Allied Products,
Petroleum/Coal).
3.............. Manufacturing (Rubber/ 31-33...................... 285 to 405................ 136 to 193................ 17 to 24.
Plastic, Leather,
Stone/Clay/Glass,
Primary Metals,
Fabricated Metals,
Industrial Machinery,
Electronics,
Transportation
Equipment,
Instruments, & Misc.
Mfg).
4.............. Transport, 22, 48, 49, 513, 562....... 272 to 386................ 201 to 285................ 10 to 14.
Communication,
Utilities.
5.............. Wholesale & Retail 42, 44, 45................. 175 to 249................ 132 to 187................ 3 to 4.
Trade.
6.............. Finance, Insurance & 52, 53..................... 5 to 7.................... 2 to 3.................... 0.
Real Estate.
7.............. Services (Hotels, 71, 72, 512, 514, 811, 812. 221 to 314................ 183 to 260................ 2 to 3.
Personal, Automotive,
Repair, Motion
Pictures, &
Recreation).
8.............. Services (Health, 54, 55, 561, 61, 62, 813, 90 to 128................. 38 to 54.................. 0.
Legal, Social, 814.
Museums/Gardens,
Membership
Organizations &
Engineering Mgt.).
9.............. Public Administration, 92......................... 200 to 284................ 85 to 121................. 4 to 6.
Environment & Not
Elsewhere Classified.
Non-duplicative column ........................... 800 to 1,136.............. 623 to 885................ 22 to 31.
totals** =.
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Non-duplicative total 866 to 1,133 facilities
for three waste unit
types =.
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Explanatory Notes:
(a) SIC = ``Standard Industrial Classification'' system.
(b) NAICS = ``North American Industry Classification System'', adopted by the U.S. Federal Government in 1997, replacing the SIC code system (for SIC/
NAICS conversion tables see http://www.census.gov/epcd/www/naics.html).
(c) * Only above-ground hazardous waste tanks are potentially eligible, not in-ground or underground tanks.
(d) ** Some facilities report multiple SIC and NAICS 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.
2. What Is Being Finalized in Today's Rule?
We are finalizing revisions to the hazardous waste permitting
program to allow for issuance of a RCRA standardized permit for RCRA
TSDs that
[[Page 53423]]
are otherwise subject to RCRA permitting and that generate hazardous
waste, and then store and/or non-thermally treat that waste on-site in
tanks, containers, and/or containment buildings. The standardized
permit will also be available to facilities that receive hazardous
waste generated from off-site, as long as the off-site generator that
sends the waste is under the same ownership as the receiving facility,
and then stores or non-thermally treats the hazardous waste in
containers, tanks, or containment buildings. Throughout the remainder
of this preamble, the term ``manage'' and ``management'' will be used
to mean storage or non-thermal treatment, unless otherwise noted. The
specific provisions being finalized in today's rule are discussed in
Sections III, IV, and V of this preamble. In this final rule, some
changes have been made from what was proposed. Some of those changes
include: Requiring the submission of the closure plan with the Notice
of Intent, rather than 180 days prior to closure; adding a third
category for making changes to permits (modifications); allowing for a
180-day extension to completing closure; and allowing a 30-day
extension for agency review of the Notice of Intent materials. We are
also requiring that off-site facilities, that are eligible for the
standardized permit, must submit a waste analysis plan with their
Notice of Intent.
C. What Is a Standardized Permit?
A standardized permit is a special kind of permit that would be
available for certain facilities that manage hazardous waste in tanks,
containers, and containment buildings. The permit consists of two
parts: A uniform portion included in all cases, and a supplemental
portion included at EPA's or the State permitting authority's
discretion. (See Section I.C.1 of the proposed rule at 66 FR 52195 for
a more detailed discussion regarding the two parts of the permit.) The
part 267 requirements being finalized today provide the basis for the
uniform portion of the permit. The supplemental portion includes
additional provisions deemed necessary to be protective of human health
and the environment, including any corrective action, and would be
based on site-specific factors at the facility.
D. Who Is Eligible for a Standardized Permit?
Throughout this preamble, we use the terms on-site and off-site in
reference to facilities managing hazardous waste. When we use the term
off-site, we use it to help describe where the waste is being managed.
For example, if facility ``A'' generates a waste and then sends the
waste to facility ``B'' for treatment, storage or disposal, the waste
is being managed off-site. In the final rule, two types of facilities
will be eligible for a standardized permit. To be eligible, a facility
must:
(1) Generate hazardous waste and then store or non-thermally treat
the hazardous waste on-site in containers, tanks, or containment
buildings, or
(2) Receive hazardous waste generated from off-site by a generator
under the same ownership as the receiving facility, and then store or
non-thermally treat the hazardous waste in containers, tanks, or
containment buildings.
In the proposed rule, we limited the applicability of the
standardized permit to those facilities that manage hazardous waste on-
site. However, we also requested comment on whether we should extend
eligibility to facilities managing wastes generated off-site
(commercials, recyclers, and captives). A number of commenters argued
that we should extend eligibility to off-site facilities suggesting
that commercial facilities are better prepared and equipped to conduct
waste storage (since they were specifically in the hazardous waste
management business), that the rule would provide flexibility for
facilities in accepting a variety of waste streams, and would benefit
facilities and States by reducing costs.
On the other hand, other commenters, particularly States, believed
that the standardized permit should be limited to facilities that
generate and manage hazardous waste on-site and not be extended to off-
site facilities. Commenters argued that such off-site facilities are
often more complex and may in some cases pose a greater potential for
harm to the environment. Other concerns were also raised, including
that off-site facilities might not have adequate knowledge of the
wastes they receive, that off-site facilities may potentially accept a
wide variety of incompatible wastes, and that inadequate waste analysis
could be a problem for off-site facilities. As such, these commenters
argued that direct review of the permit application (i.e., the material
normally submitted as part of a Part B application) by the permitting
authority was an essential step in permitting off-site facilities.
A number of commenters noted that some facilities accept waste from
off-site locations of the same company for centralized management of
their wastes, and argued that these facilities would be appropriate
candidates for a standardized permit. For example, one commenter
suggested these types of facilities could be granted a standardized
permit on a case-by-case basis, depending on complexity of their
processes and waste streams.
Another commenter noted that extending the standardized permit to
centralized facilities would allow a company with multiple
manufacturing locations to centralize its management of hazardous waste
at a single location without being denied the tangible benefits of
streamlined permitting proposed in the Standardized Permitting Rule.
Since the company would only be managing its own waste generated from
its own operations, the company could reasonably be expected to know
the chemical make-up and compatibility of the different incoming waste
streams. Moreover, companies have procedures in place to assure that
off-site waste streams are properly stored and/or treated at
centralized locations.
Another commenter noted that managing wastes at these facilities
(centralized facilities) should not be more complicated or require
greater attention than managing wastes generated on-site because ``* *
* a company managing only its own waste generated at several locations
* * * should know what specific wastes are generated by the company and
be able to manage them properly at a centralized location.''
Still another commenter noted problems with off-site facilities in
general, but also noted that it would expect that fewer problems would
result from allowing off-site facilities who manage only their own
wastes generated at different locations to be eligible for the
standardized permit because of the familiarity of the company with the
composition and character of its own wastes.
Another commenter argued that multiple sources of waste generated
by the same company and managed in a consolidated fashion at a
treatment/storage (T/S) facility owned and operated by that company (a
captive facility as opposed to a commercial one) should still be
eligible for the standardized permit. Captive facilities have greater
control over the waste generation process and therefore the
characteristics of the waste to be managed at the T/S facility.
In response to comments on the proposal, the Agency has been
persuaded by the commenters who argued that facilities that receive
hazardous waste generated off-site by a generator under the same
ownership as the receiving facility, and then stores or non-thermally
treats the hazardous waste in containers, tanks, or
[[Page 53424]]
containment buildings should be eligible for the standardized permit.
Therefore, the final rule expands the eligibility so that a facility
with a standardized permit can also receive waste generated at another
location that is under the same ownership as the receiving facility.
For example, waste from one company could be sent to the standardized
permit facility owned by that company. This would also apply to wholly
owned subsidiaries, for example where a national corporation had wholly
owned subsidiaries separately incorporated in different States. As long
as the corporate ownership was the same, and the same corporate entity
had ultimate oversight and responsibility, off-site management under
the standardized permit would be allowed. EPA anticipates that this
change will broaden the benefits of this rule to operations under the
same entity. To use this flexibility, the Notice of Intent must include
documentation that the off-site facility is under the same ownership as
the facility seeking the standardized permit. In addition, to receive
wastes from off-site, facilities must also submit a waste analysis plan
with the Notice of Intent. We discuss the need for waste analysis plans
later in the preamble in Section IV.C.4.
With respect to federal facilities, this rule would allow the
transfer of waste between sites under the jurisdiction, custody, or
control of the same federal agency. For instance, today's rule would,
for instance, allow waste from one Department of Defense installation
to go to another such installation because the Department has overall
responsibility for the waste. The Department of Energy's comments on
the proposal suggested allowing for consolidation of waste from
multiple facilities within the DOE complex at a regional facility with
a standardized permit. This expansion of the eligibility would allow
for this consolidation.
EPA did not, however, extend the applicability to wastes that were
not generated by the same entity. While we are extending eligibility to
a limited subset of off-site facilities, we are not extending
eligibility for the standardized permit rule to all off-site
facilities.
One commenter noted that ``As the number of waste streams increases
so does the complexity of identification and handling. As a commercial
TSD a large portion of our infrastructure is devoted to waste
identification, verification analysis to ensure proper disposal. This
follows detailed procedures. The `physical' aspects such as handling,
storage or treatment are minor compared to the identification, tracking
and documentation aspects of waste handling. It is difficult to
conceive how the EPA could allow this kind of activity to be conducted
without prior review of appropriate procedures.''
Another commenter noted that ``In general, facilities that treat or
store waste generated off-site should not be allowed to get a
standardized permit. Most of the facilities which accept off-site
wastes are commercial facilities that accept many of the waste codes
listed in 40 CFR part 261. This creates the need for a fairly in-depth
waste analysis plan which would be hard to review within the 120-day
limit.''
Because of the potential variation in types of wastes managed at
off-site facilities in general, and the length of time necessary to
review waste analysis plans associated with such facilities, we believe
it appropriate to limit applicability of the standardized permit rule
to those facilities receiving wastes from generators under the same
ownership as the receiving facility.
Commenters expressed concerns about the complexity of operations on
many ``non-captive'' and commercial facilities, the large number of
wastes that may come in to the sites from many different locations and
the environmental problems they've encountered. Commenters believed
such facilities needed closer scrutiny to ensure they are operating in
a safe manner, and would be better served by operating under an
individual RCRA permit. In considering all the comments, and in
attempting to balance the streamlined permitting that would be gained
from the rule against the possible risk to human health and the
environment, we have decided to allow the following types of facilities
to be eligible for the standardized permit: (1) Facilities that manage
their hazardous waste on-site in tanks, containers, and containment
buildings and (2) facilities that receive hazardous waste generated
off-site by a generator under the same ownership as the receiving
facility, and then store or non-thermally treat the hazardous waste in
containers, tanks, or containment buildings. The response to comments
document on this final rule provides additional discussion on this
topic.
It should also be noted that the Agency is exploring whether to
extend eligibility for the standardized permit to other off-site
facilities that have demonstrated superior environmental performance;
the National Performance Track Program provides an example of the kind
of criteria/facilities that EPA is considering in this context.\2\ We
believe it may be appropriate to offer this option to such facilities
to further encourage superior environmental results. In fact, the
Agency believes it important to reward companies that are top
environmental performers and therefore, believe that such a change may
be appropriate. The Agency anticipates issuing a proposed rulemaking
involving Performance Track facilities in the near future.
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\2\ The National Environmental Performance Track program
recognizes and encourages top environmental performance among
private and public facilities in the United States. Performance
Track members go beyond compliance with regulatory requirements to
achieve environmental excellence. Currently the program has
approximately 300 members.
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An additional situation involves facilities that manage hazardous
wastes in units eligible for the standardized permit, and also manage
hazardous wastes in other types of waste management units. In our
proposal, we solicited comment on whether a facility that manages some
of its hazardous waste in on-site storage and/or non-thermal treatment
units and some of its hazardous waste in other types of waste
management units should be eligible for a standardized permit for their
storage and/or non-thermal treatment activities. Several commenters
agreed that on-site storage should be eligible for the standardized
permit, even if the facility has other permitted operations on-site.
Other commenters, however, did not support this measure, noting that
having two regimes of RCRA permitting at the same facility would
complicate matters. In this final rule, we are allowing facilities to
have both a standardized permit for their eligible units, and an
individual permit for their other regulated waste management activities
because we believe there is a benefit in terms of permit streamlining
for those eligible units. Some facilities may have a significant
portion of their operations devoted to standardized permit-eligible
storage and/or non-thermal treatment activities, which may make a dual
permitting scenario worthwhile. Moreover, if a facility believes that
having two RCRA permitting schemes at their plant would complicate
matters, they need not apply for a standardized permit.
Therefore, the final rule will allow facilities with regular RCRA
permits to apply for a standardized permit for their storage and non-
thermal treatment operations occurring in eligible units. Such
facilities could then have an individual permit for some of their
operations, and a standardized permit for their eligible units.
However, the
[[Page 53425]]
Director has the final decision on whether a facility will be allowed
to operate with dual permits, based on facility-specific factors.
One commenter urged the Agency to be clearer in the final rule that
the standardized permit rule will not require generators, already
exempt from permitting in certain circumstances under Sec. 262.34, to
obtain permits. This rulemaking does not modify the provisions
applicable to generators managing wastes within the time limits and
conditions of Sec. 262.34. It applies only to activities of RCRA TSDs
that are otherwise subject to permitting (and who generate and then
store or treat waste on-site in containers, tanks, or containment
buildings, or facilities that receive hazardous waste generated off-
site by a generator under the same ownership as the receiving facility,
and then store or non-thermally treat the hazardous waste in
containers, tanks, or containment buildings). We have revised the
regulatory language and the preamble to make this point clear.
E. Other General Comments on the Standardized Permit Rule
We believe the standardized permit should result in time and
resource savings in the overall permitting process. While owners/
operators of such facilities will be required to gather nearly the same
information that an individual permit applicant must gather, such
information (e.g., Part B application) will only need to be kept at the
facility, or other location designated by the Director, as opposed to
submitting it to the permitting authority. In fact, several commenters
mentioned that the standardized permit would provide a less cumbersome
approach for such storage units, than would the individual RCRA
permitting process. Specifically noted was the provision that fewer
documents would need to be submitted in the application phase, which
should save time during the application review phase. We believe that
because the standardized permit process would involve review of fewer
materials, permits could be issued in less time than with the typical
Part B permitting process.
Some commenters argued that the standardized permit process does
not facilitate public involvement, because the technical parts of the
application will not be circulated as is the case with the individual
permitting process, or because the public might not feel comfortable
going to the facility to review information. We believe the public will
have ample opportunity to be involved, both with the pre-application
meeting, and during the public comment period after the draft permit is
public noticed. It should also be noted that the Director has the
discretion to establish an information repository that contains the
permit information at a location off-site from the facility, if such a
location will better foster public participation. To the extent that
the public has concerns with the uniform portion of the permit being
fully protective because of unique facility circumstances, the public
can request that these concerns be addressed in the supplemental
portion of the permit. Nevertheless, the facility would still be
subject to similar management standards and thus, would still be fully
protective of human health and the environment.
Other commenters argued that the standardized permit process could
result in unsafe waste storage practices, because not all the technical
information about the facility processes would be reviewed prior to
permit issuance. We disagree with these commenters. We believe the
regulations in today's rule provide the mechanisms necessary to ensure
safe waste management even without requiring the up-front submission of
all of the technical information about the facility processes.
The units eligible for the standardized permit (tanks, containers,
and containment buildings) are relatively straightforward technologies,
with straightforward permitting requirements, and, as we discuss in the
proposed rule preamble (66 FR 52196), 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 allows adequate
interaction and oversight by the regulating agency and would provide
sufficient technical controls to protect human health and the
environment. Furthermore, the permitting requirements in part 267
largely reflect the existing part 264 requirements, which are
protective of human health and the environment. For example, part 267
includes unit specific requirements for how waste management units are
operated and maintained (e.g., secondary containment, response to
spills, condition of units, etc.). Part 267 also includes corrective
action and financial responsibility requirements. Today's rule also
provides for public comment and review on the draft permit prior to
final permit issuance, as well as a mechanism for public involvement
prior to the submission of the Notice of Intent. In addition, even
though this information will not be required to be submitted as part of
the Notice of Intent, the information must be retained at the facility,
and be made available for the Director/Permitting authority to review,
should any questions remain about whether a standardized or individual
permit should be issued, or whether additional site-specific conditions
are necessary. Finally, the Director retains the ability to impose any
site-specific conditions, in the supplemental portion of the permit,
necessary to protect human health and the environment. Thus, the
standardized permit process, while it will likely speed up the process
of issuing permits for eligible facilities that store or non-thermally
treat waste in tanks, containers, or containment buildings, will do so
in a manner that would still provide full protection of human health
and the environment.
One commenter requested clarification that the standardized permit
could apply to mixed wastes. The standardized permit rule could in fact
apply to the management of mixed waste, presuming the other regulatory
conditions were met.
Finally, one commenter noted that the standardized permit process
would limit the regulatory authority's ability to determine compliance
with the waste analysis and closure plans. We agree with the commenter,
at least with respect to the closure plan, and in part to the waste
analysis plan. The rule has been modified to require facilities to
submit a closure plan with the Notice of Intent. Requiring the plan up
front would allow the regulatory authority to review the plan, and
would also allow the public to review the plan during the public
comment period for the publicly noticed permit. The closure plan would
become part of the permit at final permit issuance. The rule also has
been modified to require submission of the waste analysis plan for
facilities that are
[[Page 53426]]
applying to manage waste that were generated off-site.
Due to the streamlined nature of the standardized permit process,
we believe that facilities conducting routine storage and treatment on-
site have good knowledge of the characteristics of the waste they
generate and manage and should be able to safely operate within a self-
certification of compliance process, while maintaining the extensive
information, normally submitted with a Part B application, on-site.
Furthermore, 40 CFR 267.13 provides a detailed account of the waste
analysis plan requirements, which when combined with an audit and
compliance certification should be sufficient to ensure compliance.
However, facilities that receive waste from off-site will be required
to submit a waste analysis plan and maintain a copy of the waste
analysis plan on-site. Although we generally believe that common
ownership between the generating and receiving facilities means that
the receiving facility could reasonably be expected to have a greater
familiarity with the characteristics of the wastes generated from off-
site than other off-site facilities, such facilities will still likely
have less knowledge/familiarity than the waste generator. Consequently,
the Agency believes that the additional safeguard provided by
submission of the waste analysis plan is necessary to reduce any
uncertainties regarding extension of the standardized permit to such
facilities, and to allow the regulatory authority an adequate
opportunity to determine whether management procedures are adequately
protective, or whether additional, site-specific conditions are
warranted.
F. Should a Standard Form Be Developed for Preparing the Required
``Part B'' Information?
We requested comment in the proposal on whether we should develop a
``fill-in-the-blank'' type form that facilities could use as a tool to
help prepare the information required to be maintained at the facility.
A number of commenters supported the development of a ``fill in the
blank'' type of form. Therefore, we are currently looking into the
feasibility of developing a form that can be used to assist permit
applicants gather the required information that must be maintained at
the facility to support a standardized permit. If and when a form is
developed, it will be available from EPA on OSW's hazardous waste
permitting Web site at: http://www.epa.gov/epaoswer /hazwaste/permit/
index.htm.
G. Should the Current Provisions for Final Issuance of an Individual
Permit Apply to Standardized Permits?
As proposed, the provisions for final issuance of the standardized
permit are set forth in Sec. 124.205, and are the same as the current
procedures for final issuance of an individual permit, codified in
Sec. 124.15. We did not receive any significant comment on this
question, and believe that the current provisions for final permit
issuance are appropriate for issuing standardized permits. Therefore,
we are finalizing Sec. 124.205, as proposed.
III. Section by Section Analysis and Response to Comments for the 40
CFR Part 124 Requirements Related to the Standardized Permit Rule
A. Applying for a Standardized Permit
This section discusses the overall process of how owners and/or
operators apply for and obtain a standardized permit. For
clarification, the application for a standardized permit is known as a
``Notice of Intent.''
1. How Do I Apply for a Standardized Permit?
This part of the preamble discusses the steps involved in applying
for a standardized permit which are laid out in 40 CFR part 124
subparts A, B, and G. The steps involve the pre-application meeting
with the public followed by the submission of a Notice of Intent and
supporting materials. The Notice of Intent and supporting materials, in
most cases, should provide sufficient information for the Director to
make a draft permit decision. Any lack of information could be a basis
for the Director to determine that a facility is ineligible for a
standardized permit.
a. How Do I Conduct a Pre-Application Meeting?
Today's rule subjects you to the existing requirements of Sec.
124.31, obligating you to advertise and host a meeting with the
neighboring community before submitting your Notice of Intent. The
meeting with your community is designed to 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. The meeting discussion should address topics such as: The
type of facility, the location, the general processes involved, the
types of wastes managed, and planned waste minimization and pollution
control measures. The discussions also could include such topics as
planned procedures for preventing or responding to accidents or
releases. When you submit your Notice of Intent, you will need to
provide a summary of the meeting, including a list of attendees. No
major comments were received on this section and we are finalizing
Sec. 124.31 as proposed.
The Agency encourages facilities to refer to the RCRA Public
Participation Manual (EPA530-R-96-007, September 1996, available at
http://www.epa.gov/epaoswer/hazwaste/permit /pubpart/manual.htm) to
promote successful and equitable public involvement in RCRA permitting
activities.
b. How Do I Submit a Notice of Intent To Operate Under the Standardized
Permit?
The requirement to submit a Notice of Intent to operate under a
standardized permit is laid out in Sec. 124.202, and is consistent
with the process and terminology currently used for NPDES general
permits. The Notice of Intent is composed of the documents described
under Sec. 270.275 and include the RCRA Part A information, the
closure plan, the closure cost estimate, documentation of the financial
instrument to cover closure, information supporting that you meet the
location standards, the pre-application meeting, and materials required
under Sec. 270.280 (which include the required certifications and
audit report). In addition, facilities that wish to accept waste from
off-site, the Notice of Intent must include the waste analysis plan,
and documentation that the originating generator and the facility
seeking the standardized permit are under the same owner.
While the proposal did not require submission of the closure plan
at the time the Notice of Intent was submitted, the final rule does
include this requirement. Several commenters argued that the closure
plan should be submitted to help assure the regulatory authority of the
owner/operator's ability to complete closure, and also that a closure
plan would help support closure cost estimate figures. We agree with
these commenters and are finalizing the rule to require submittal of
the closure plan with the Notice of Intent. See also the discussion in
Section IV.G, for additional explanation of EPA's decision to require
submission of the closure plan with the Notice of Intent. It should be
noted that the closure plan should provide sufficient detail to assure
the Director that the facility can close and show how the facility will
be closed. Failure to submit sufficient information in the closure plan
might be cause for a facility to be considered ineligible for a
standardized permit. In addition to the closure plan, a closure
[[Page 53427]]
cost estimate must be submitted, as must documentation showing the
existence of a financial assurance instrument sufficient to cover
closure.
Some commenters also argued that the waste analysis plan should be
submitted with the Notice of Intent, and that submitting the plan would
help assure the regulatory authority that the owner/operator has
adequate knowledge of the waste streams being managed (waste
compatibilities, characterization), especially if the rule were
extended to include off-site facilities.
We generally believe that on-site facilities have good knowledge of
the wastes they are managing, and therefore, we are not requiring that
waste analysis plans be submitted with their Notice of Intent. Due to
the streamlined nature of the standardized permit process, we believe
that facilities conducting routine storage and treatment on-site have
good knowledge of the characteristics of the waste they generate and
manage, and should be able to safely operate within a self-
certification of compliance process, while maintaining the extensive
information, normally submitted with a Part B application, on-site.
Furthermore, 40 CFR 267.13 provides a detailed account of the waste
analysis plan requirements, which when combined with an audit and
compliance certification should be sufficient to ensure compliance. In
the final rule, we will not require waste analysis plans for such
facilities to be submitted, but maintained on-site. However, as noted
previously, the Agency is also allowing facilities that receive
hazardous waste generated off-site by a generator under the same
ownership as the receiving facility, to also be eligible for the
standardized permit. In this situation, the facility will be required
to submit the waste analysis plan with the Notice of Intent. As
discussed previously, we believe it necessary for the waste analysis
plan to be submitted to help ensure that waste management procedures
are adequately protective.
You must also certify, as required by Sec. 270.280, that, at the
time the Notice of Intent is submitted, that the facility is in
compliance with the requirements of part 267, or in the case of a new
facility, that the facility will comply with the part 267 requirements
when the facility is built and operated. (The proposed rule did not
specifically contain a provision to allow the generator to submit the
Notice of Intent for new facilities, that are designed, but built
later. We believe that such a provision is appropriate and are adding
such a provision to the final rule, at Sec. 270.280(a)(1)(ii). In
addition to certifying compliance, a compliance audit must be
completed. This audit is a systematic, documented, and objective review
of the facility's operations and practices related to meeting
environmental requirements, in order to assess the compliance status
prior to submitting the Notice of Intent. The audit results must be
included in an Audit Report with the compliance certification as
supporting documentation to the Notice of Intent.
Regarding compliance audits, several commenters argued that we
should not require audits at all, because doing so might unnecessarily
burden facilities. Several commenters supported the need for conducting
the audit, noting that doing so helped ensure compliance with the
regulations and familiarity with facility operations. Other commenters
argued that facilities be allowed to perform self-audits, and not be
limited to conducting independent, third-party audits. Another
commenter, arguing for only third-party audits, believed that some
owners or operators of TSDs subject to this rule do not have the
expertise to adequately audit their facility's operations. While we
appreciate the comments, we believe that compliance audits are an
integral part of the standardized permitting process, serving to help
ensure that a facility is complying with the applicable requirements.
Compliance audits are intended to support the self-certification
process, and should not unnecessarily burden facilities. While there
may be some owners/operators who lack the expertise to conduct audits
we believe it unnecessary to require that only third parties conduct
audits, because many facility owners are familiar with, and have the
expertise to audit their operations. We did not include specific
regulatory provisions detailing how facilities must conduct compliance
audits in the final rule, but provided general information and web
links to guidance materials for conducting audits. (see Section V.B.3).
In addition, the final rule does require that the auditor sign and
certify that the audit report is accurate, prior to submitting to the
Director with the Notice of Intent, which provides an additional
safeguard.
Another commenter said the proposal was not clear on how existing
facilities would comply with the part 267 standards if a permit is
issued. In the RCRA permit program, terms of how a facility will comply
with the permit, once a permit is issued, are specified in the permit.
This will continue to be the case for standardized permits--the uniform
portion of the permit will contain the requirements as specified by
part 267, and the supplemental portion will provide site specific
standards, as needed.
Another commenter argued that the Notice of Intent and supporting
documents submission will potentially strain RCRA enforcement
resources, as focus is directed to confirm the adequacy of audits and
certifications provided by the permit applicant. While it is
foreseeable that some additional effort will likely be placed on the
Agency's enforcement resources, we believe that the units eligible for
a standardized permit involve rather straightforward conditions.
2. How Do I Switch From an Individual Permit to a Standardized Permit?
Switching from an individual permit to a standardized permit could
involve a few scenarios. In general, and the most likely case, is where
a facility's units are all eligible for the standardized permit. In
this case, you could request the Director of the regulatory agency to
revoke your individual permit and issue a standardized permit. For
facilities where only some of the units are eligible for a standardized
permit, you could request the Director to modify the original permit to
no longer include those units, and issue a standardized permit for
those units. The revocation and reissuance procedures are in Sec.
124.203, as allowed by Sec. 270.41, and are finalized as proposed.
One commenter, while supportive of allowing facilities to switch to
a standardized permit for eligible activities while keeping other
activities under an individual permit, believed that revocation and
reissuance should not be the required procedure to accomplish this. The
commenter suggested that the facility should only need to submit a
Notice of Intent for the standardized permit operations and, in
addition, a conforming modification to the existing permit. We agree
with the commenter that submission of the Notice of Intent along with a
modification can work in many instances (modification, revocation, and
reissuance procedures appear in today's rule at Sec. 124.5). Another
commenter argued that a newly permitted facility should not be able to
have their permit revoked, and a standardized permit issued, until the
term of the existing permit comes to an end. Otherwise, allowing the
revocation might be overly burdensome to states. While we agree that
there may be some instances where switching to a standardized permit
may be challenging to States, we also do not want to burden facilities
who are eligible for a standardized permit. In any event, States, who
for the most part implement the permitting program, will
[[Page 53428]]
decide at what point they will allow facilities to switch from the
individual permit to the standardized permit.
B. Issuing a Standardized Permit
1. How Would You as the Regulatory Agency Prepare a Draft Standardized
Permit?
Under the final rule, three steps are involved in preparing a draft
permit. Step one is for you (as the regulatory agency) to review the
Notice of Intent and supporting information and determine if the
facility is eligible for a standardized permit. Second, you would
tentatively decide whether to grant or deny coverage under the
standardized permit. If a decision is made to grant coverage, the draft
standardized permit would propose appropriate terms and conditions, if
any, to include in the supplemental portion of the permit. Lastly, you
would prepare your draft permit decision within 120 days after
receiving the Notice of Intent and supporting information. If
necessary, a one time 30-day extension is permitted for review of the
information, and preparation of the draft permit. Such extensions might
be appropriate in cases involving site specific situations requiring
more review. We received comments regarding time periods for an
extension, from no extension to 180 days. We have decided to limit the
extension to 30 days since we believe that due to the nature of the
types of units that are eligible for the standardized permit--
containers, tanks, and containment buildings, that a one-time 30 day
extension should be all that is necessary.
a. Drafting Terms and Conditions for the Supplemental Portion
As noted previously, the supplemental portion of the standardized
permit would include any additional provisions that are deemed
necessary to protect human health and the environment and would be
issued based on the regulatory agency's specific determination of the
conditions at the particular facility. If you, as the Director of the
regulatory agency, decide to grant coverage under the standardized
permit, you must determine whether supplemental conditions are
appropriate or necessary and if so, tentatively identify appropriate
facility-specific conditions to impose in the supplemental portion of
the standardized permit, and include those conditions as part of the
draft permit. These proposed facility-specific conditions would go
beyond the standard conditions in the uniform portion of the
standardized permit. (The uniform portion of the permit includes
standards based on the applicable part 267 requirements.) The
supplemental terms and conditions would be those you deem necessary for
corrective action purposes, or to ensure protection of human health and
the environment. We expect that the need to have supplemental
conditions, beyond corrective action requirements, will not be a common
occurrence. The authority to impose corrective action conditions is
found in RCRA section 3004(u) and (v), as well as EPA's implementing
regulations at 40 CFR 267.101, and authority to impose conditions for
protection of human health and the environment is found at RCRA section
3005(c)(3), as well as EPA's implementing regulations at 40 CFR
270.32(b)(2).
One commenter noted that it was unclear how the regulatory
authority would obtain site-specific information in developing permit
conditions. It should be noted that Sec. 270.10(k) allows the Director
to require the submission of such information as necessary to establish
permit conditions. In addition, information from the public meeting and
inspections could be the basis to help develop permit conditions, as
appropriate.
Another commenter supported the idea suggested in the preamble that
a facility owner or operator should be allowed to ``suggest
supplemental conditions that he/she would like the responsible
regulatory agency to attach to the standardized permit,'' and suggested
regulatory language to specifically allow that provision. While we
certainly support allowing facilities to submit suggested conditions,
we do not believe it necessary to specifically include that in the
regulations, as it could confuse some permit applicants about what is
actually required. If a particular owner/operator wants to suggest that
supplemental conditions be included in their standardized permit, they
are free to do so in the Notice of Intent.
b. Denying Coverage Under the Standardized Permit
The provisions of Sec. 124.206 for denying coverage under a
standardized permit are finalized as proposed. Specifically, under the
final rule, the Director could tentatively deny a facility coverage
under the standardized permit. Reasons for denial could include failure
of the facility owner or operator to submit all the information
required under Sec. 270.275, or that the facility does not meet the
eligibility requirements for a standardized permit (that is, the
facility's activities are outside the scope of the permit). The
Director could also deny coverage based on a facility's compliance
history (see Sec. 124.204(b)).
Instances of poor compliance history exists where previous
violations by a facility establish a pattern of disregard of
environmental requirements under RCRA or other environmental statutes.
Some of the factors used to evaluate a facility's compliance history
may include:
--Number of previous violations
--Seriousness of previous violations
--The facility's response with regard to correction of the problem
(e.g., how quickly the facility achieved compliance)
Consideration of compliance history reflects the self-implementing
nature of the requirements that are being imposed under the uniform
portion of the standardized permit. A facility with a demonstrated
history of noncompliance may not be a viable candidate for a
standardized permit. Beyond these points, we believe it is difficult to
develop specific criteria defining ``poor'' compliance history. We
believe that the permitting authority is in the best position to
determine whether or not a facility has a compliance history that is so
poor as to determine that they should be ineligible for a standardized
permit.
A number of commenters believe that the regulations should be
clearer on the criteria for denying coverage under the standardized
permit, and offered suggested situations that could weigh heavily in
deciding whether or not to deny a facility from receiving a
standardized permit. Among the reasons suggested for denial included a
facility's demonstrated history of non-compliance with regulations or
permit conditions, demonstrated history of submitting incomplete or
deficient permit applications, and that the facility does not meet the
criteria of eligibility in Sec. 124.201.
The suggested reasons are consistent with our intent to limit the
eligibility for the standardized permit to those facilities that can
demonstrate, or have demonstrated, an ability to adhere to the
regulations, as we discussed in the preamble to the proposed rule (see
66 FR 52203, Section IV.B.2). Section 124.204(b) provides specific
eligibility criteria. Under 124.204(b)(2)(iv), you may consider the
facility's compliance history, in cases where the facility is operating
under RCRA interim status, or has an existing permit and is choosing to
convert to a standardized permit. Poor compliance history could
indicate a facility that might more appropriately
[[Page 53429]]
be served by an individual permit, or, of course, permit denial if
warranted.
c. Preparing the Draft Permit Decision
Under Sec. 124.204(c), the Director needs to make a draft permit
decision within 120 days of receiving the Notice of Intent and
supporting information. In addition, we are allowing a one time 30-day
extension. The original proposal called for a draft permit decision
within 120 days, and requested comment on whether additional time
should be allowed. Several commenters agreed with the proposal that 120
days is sufficient time to review the information submitted with the
Notice of Intent. However, other commenters have argued that the
initial 120-day period would not be adequate time to review all the
information submitted and conduct the required public comment period.
Suggested extensions ranged from those who suggested no extension, all
the way up to 180 days suggested by one commenter. We understand that
some states have additional requirements that permit applicants must
meet, that may necessitate an extension. However, we believe that most
submissions should be reviewable in the 120-day time frame.
Furthermore, under the standardized permit rule, the public comment
period begins once the draft permit is public noticed, and is not part
of the 120-day review period.
Nevertheless, there may be situations where additional time is
needed, for example, to work out a particular approach to an issue
requiring a supplemental condition. For these facilities, and in
response to comments, the Agency is providing a one-time extension of
30 days. We believe that the 120-day initial time period, with a one
time 30-day extension will provide sufficient time to issue a draft
permit (or permit denial).
2. How Does the Regulatory Agency Prepare a Final Standardized Permit?
After the close of the public comment period, the Director would
make a final determination on the draft permit decision (i.e., whether
to grant or deny coverage for a facility to operate under the
standardized permit). The Director would use the same procedures to
finalize a draft standardized permit as he or she would use to finalize
a draft individual permit, found in Sec. 124.15. Commenters supported
this provision of the rule; therefore, Sec. 124.205 for preparing a
final permit decision is finalized, as proposed.
C. Public Involvement in the Standardized Permit Process
Public involvement begins early in the standardized permitting
process, starting with the public meeting that must occur prior to
submission of the Notice of Intent. This meeting is described in more
detail in preamble section III.A.1.a.
1. Requirements for Public Notices
The provisions of Sec. 124.207 require the Director to issue a
public notice announcing the draft permit decision. The procedures and
time periods for public comment are the same as for commenting on draft
individual permits. Because we received no significant comment, we are
finalizing Sec. 124.207 as proposed.
2. Opportunities for Public Comments and Hearings
The provisions for the comment period and hearings are found in
Sec. 124.208. Because we received no significant comment, we are
finalizing Sec. 124.208 as proposed.
3. Responding to Comments
The requirements for responding to comments are found in Sec.
124.209. Because we received no significant comment, we are finalizing
Sec. 124.209 as proposed.
4. Appealing a Final Permit Decision
Under today's final rule, according to Sec. 124.210, you may
appeal the final permit decision to the Environmental Appeals Board
within 30 days. You may appeal the permit, including any terms and
conditions in the supplemental portion, but only after the final
determination is made. At that time, you may also appeal the
eligibility of the facility for the standardized permit. (For example,
you may challenge whether a unit is a tank.) You may not appeal the
terms and conditions of the uniform portion of the standardized permit.
One commenter noted that appealing the supplemental portion of the
permit might call into question whether the facility can still operate
safely under the unappealed portion of the permit. Just as occurs in
the current regulatory process, if an appealed section of the permit is
required for safe management of hazardous waste in that unit, then
waste cannot be managed in the unit until the appeal has been
adjudicated. See 40 CFR 124.16(a). For a standardized permit, if the
supplemental portion of the permit is necessary for safe waste
management, and that part of the permit is appealed, then waste may not
be managed in the unit until the appeal is resolved. However, if the
appealed supplemental portion of the permit deals with SWMU corrective
action issues, then safe waste management in the eligible units can
likely occur. More directly stated, if the appealed parts of the permit
are unrelated to the units eligible for the standardized permit, then
safe waste management in those eligible units can likely occur.
D. Maintaining a Standardized Permit
This portion of the preamble discusses what is being finalized
today regarding how your standardized permit is modified over time to
reflect changes in the facility's design or operations. While the rule
provides a mechanism for making changes to standardized permits, we
envision that few changes to the actual permit would likely be
necessary. This is because standardized permits contain standard
conditions based on the requirements of Part 267, and that many changes
at the facility would only affect the information kept on-site and not
the actual permit. The only thing that would have to be modified,
typically, would be supplemental conditions that are unique to the
facility. However, when changes to the standardized permit are
necessary, they will fall into the categories described below.
1. What Types of Changes Could Owners or Operators Make?
The proposed rule set forth two categories of modifications,
routine and significant, for making changes to standardized permits.
Routine changes included those changes that, under an individual permit
situation, would be classified as either a class 1 or class 2
modification under Sec. 270.42 appendix I, while significant changes
included those changes that would have been class 3 modifications. The
final rule modifies the routine changes category originally proposed,
and adds a third category, routine changes requiring prior approval.
The actual procedures for performing routine and significant changes
are finalized, as proposed; the only change made is to allow routine
changes requiring prior agency approval, as described below.
Several commenters argued that some class 2 modifications are more
like class 3 modifications, and should not be considered as routine
changes under a standardized permit, but as significant changes.
Furthermore, because some class 1 modifications require prior approval
under an individual permit, those changes should be treated similarly
under a standardized permit. For example, several commenters noted that
changes in ownership should not
[[Page 53430]]
simply be a routine change under the standardized permit rule, but
should require prior approval from the regulatory agency, because of
financial assurance and compliance history concerns about a new owner.
Under the original proposed rule, ``routine changes'' encompassed
both class 1 and class 2 modifications, leaving class 3 modifications
to be addressed as ``significant changes.'' We agree with commenters to
the extent that some changes to standardized permits should require
prior approval, especially changes that would require prior approval
under individual permitting.
Therefore, the final rule adds a third category of changes to
permits, ``routine changes with prior approval.'' (See the next section
for a description of the types of modifications that would fall into
the various categories.) The addition of another category between
``routine'' and ``significant'' should help address the concern that
some class 2 modifications are more like class 3 modifications and
should be treated as significant changes, because now all class 2
modifications will require prior approval under the standardized
permit. Rather than class 2 modifications being a ``routine change'' as
described in the proposed rule, class 2 modifications will now require
prior approval, as will class 1 modifications normally requiring prior
approval.
While we are adding a third category, the overall permit change
process is more streamlined than the existing modification process. The
new category--``routine with prior approval''--would not involve a
public comment or hearing process, as would be the case with regular
class 2 modifications, but would require a notification to, and
acknowledgment and approval from the regulatory authority, and also,
within 90 calendar days of the approval, notification to the facility's
mailing list. The Director would need to respond within 90 days of
receiving the modification request, either approving or denying the
request.
2. What Are the Definitions of Routine Changes, Routine Changes With
Prior Agency Approval, and Significant Changes, and What Are the
Requirements for Making Those Changes?
a. Routine Changes
Routine changes are any changes that qualify as a class 1
modification under 40 CFR 270.42 Appendix I that do not require prior
approval by the regulatory authority. The requirements for making
routine changes are found at Sec. 124.212. The procedures for making
routine changes are described in the preamble of the proposed rule at
66 FR 52206 (Section VI.C). Basically, these procedures allow routine
changes to be made without notifying the regulatory authority, as long
as those changes do not amend any of the information that was
originally submitted under Sec. 270.275 during the standardized permit
application process. If the change amends the information provided
under Sec. 270.275, then the revised information must be provided to
the Director, the facility mailing list, and to state and local
governments, as described in Sec. 124.212(b)(1) and (2).
b. Routine Changes With Prior Agency Approval
Routine changes with prior agency approval are changes that,
according to 40 CFR 270.42 Appendix I, either qualify as class 1
modifications requiring prior agency approval, or as class 2
modifications. The requirements for making routine changes with prior
agency approval are found at Sec. 124.213. The procedures for making
changes with prior approval include the same steps that must be
followed for making changes that amend the information submitted under
Sec. 270.275 (see Sec. 124.212(b)(1) and ( 2)), and also require
approval from the Director.
c. Significant Changes
Significant changes are any changes that qualify as: (1) Class 3
permit modifications under 40 CFR 270.42 Appendix I, (2) any changes
not specifically identified in Appendix I, or (3) any changes that
amend the terms or conditions in the supplemental portion of the
standardized permit. The requirements for making significant changes
are found at Sec. 124.214. The procedures for making significant
changes to the standardized permit are very similar to the initial
standardized permitting process, and is described in the preamble of
the proposed rule at 66 FR 52206 (Section VI.D), and are finalized, as
proposed.
3. How Do I Renew a Standardized Permit?
The process to renew a standardized permit is the same as for
renewing an individual permit. See Sec. Sec. 270.11(h) and 270.30(b).
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). We did not receive any
significant comment regarding the process of renewing a standardized
permit, and therefore, are finalizing this section, as proposed.
IV. Section by Section Analysis and Response to Comments for the Part
267 Standards for Owners and Operators of Hazardous Waste Facilities
Operating Under a Standardized Permit
A. Overview
Most of the proposed part 267 requirements have been finalized, as
proposed, with few exceptions, which are discussed later in this
section. The requirements in part 267 form the basis for the uniform
portion of the standardized permit, which is a required part of all
standardized permits.
Some commenters argued that the standardized permit rule only adds
another set of regulations, and thus, adds to the difficulty of keeping
track of the various permits. We acknowledge this rule does add another
set of regulations to the CFR. However, these regulations replace the
existing technical regulations (part 264) that already apply to tanks,
containers, and containment buildings, which these facilities are
already subject to. Thus, we would disagree with the commenter that all
we are doing is subjecting these units to additional regulation.
Moreover, as stated previously, we believe that this rule will help
streamline the permitting process, saving time and resources for both
the facility and the regulatory agency, while maintaining protection of
human health and the environment.
B. Subpart A--General
1. Purpose, Scope, and Applicability
The final rule sets forth the minimum national standards for
facilities managing wastes under a standardized permit. The final part
267 standards apply to owners and operators who store or non-thermally
treat their wastes on-site in tanks, containers, and containment
buildings, and to facilities that manage wastes generated off-site, by
a generator under the same ownership as the receiving facility. Based
on comments, there appeared to be some confusion on whether facilities
with thermal treatment units could apply for a standardized permit for
their eligible units in which non-thermal treatment or storage is being
conducted. A facility may apply for a standardized permit for its
eligible units, regardless of what other hazardous waste management is
occurring at the facility. For example, a hazardous waste incineration
facility that conducts tank storage for wastes generated on site may
apply for a standardized permit for the tank storage. Except for a
clarifying
[[Page 53431]]
correction to the part 270 reference (subpart J rather than subpart I),
the language of Sec. 267.1 is finalized, as proposed.
2. Relationship to Interim Status Standards
The final Sec. 267.2 provisions are similar to the Sec. 264.3
provisions. If you are currently complying with the requirements for
interim status, you will need to continue to comply with the interim
status standards specified in part 265 until final disposition of your
standardized permit application. We received no significant comments on
this section. Thus, the Sec. 267.2 requirements are finalized, as
proposed.
3. Imminent Hazard Action
The final Sec. 267.3 provisions repeats the current Sec. 264.4
provisions concerning imminent and substantial hazards. We received no
significant comments on this section, and therefore, are finalizing
these provisions, as proposed.
C. Subpart B--General Facility Standards
These standards are similar to the general facility standards
currently found in 40 CFR part 264 subpart B. These standards describe
how to obtain an EPA identification number, requirements for waste
analysis, security requirements, inspection schedules, employee
training, managing ignitable, reactive or incompatible wastes, and
location standards.
1. Applicability
The applicability language in Sec. 267.10 is finalized, as
proposed, except for the change in the reference to subpart I to
subpart J, of part 267. The reason for this change is editorial. No
significant comments were received on this section. The purpose of part
267 is to establish minimum national standards for facilities managing
waste under a standardized permit, and as such would apply to owners
and operators of facilities who non-thermally treat and/or store
hazardous waste on-site in tanks, containers, and/or containment
buildings, as well as facilities that receive hazardous waste generated
off-site by a generator under the same ownership as the receiving
facility and who store or non-thermally treat the hazardous waste in
containers, tanks, or containment buildings.
2. How Do I Comply With This Subpart?
Section 267.11 lists the steps you need to take if the 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. We are finalizing Sec. 267.11, as proposed, because no
substantive comments were received on this section.
3. How Do I Obtain an EPA Identification Number?
Section 267.12 generally repeats the requirement currently in Sec.
264.11 with the addition of whom to contact for information. No
significant comments were received on this section, and thus, we are
finalizing this provision, as proposed.
4. What Are the Waste Analysis Requirements?
The provisions of Sec. 267.13 are finalized and include a change
related to eligible off-site facilities. These provisions generally
require owners and operators to prepare a waste analysis plan and keep
it on-site at their facility. Eligible facilities that receive wastes
generated off-site must submit a waste analysis plan with their Notice
of Intent, as well as retain the plan on-site.
Several commenters expressed the need for submission and approval
of waste analysis plans, particularly if the rule was extended to
include off-site facilities. Because we are extending the rule to
certain off-site facilities, as described previously, we are requiring
those facilities to submit a waste analysis plan with the Notice of
Intent. Most commenters addressing waste analysis plans supported the
idea that on-site facilities would not need to submit waste analysis
plans. Therefore, we are not requiring on-site facilities to submit
waste analysis plans with the Notice of Intent. (See the discussions of
on-site versus off-site in section II.D, and on waste analysis plans in
section III.A.1.b of this preamble.)
A number of commenters discussed the importance of waste analysis
plans. DOE noted that a key aspect of the acceptability of this
approach [extending the rule to eligible offsites] would be the proper
design and implementation of waste analysis requirements to ensure the
compatibility of wastes from multiple off-site sources that are stored
and treated together. For example, at least one DOE site that receives
waste from off-site believes it has as much knowledge and confidence in
the compatibility of the off-site wastes as it has for waste generated
on-site, because of its approach to waste analysis.
DOE also noted that ``to verify that acceptable waste analysis
requirements are in place at a facility managing waste from off-site,
they suggest that EPA require the facility to submit a waste analysis
plan with the Notice of Intent to operate under a standardized permit.
One commenter noted that where a facility has numerous processes
contributing hazardous waste to a storage or treatment unit, the waste
analysis plan would be significantly more complex. In this case, it may
be prudent to submit the waste analysis plan with the initial
notification to ensure that waste management procedures are adequately
protective.
Based on these comments and the need they expressed to have
adequate knowledge of wastes being received from off-site, we are
requiring that waste analysis plans be submitted to the regulatory
agency with the Notice of Intent. Multiple facilities under the same
owner may be in different states, and may have variations in their
waste streams. States should have waste analysis information concerning
wastes generated in facilities located in other states in deciding
whether the facility should receive a standardized permit, and in
ensuring that waste analysis at the receiving facility will be
sufficient to protect human health and the environment.
5. What Are the Security Requirements?
The Sec. 267.14 security provisions are similar to the Sec.
264.14 provisions. The proposal in Sec. 267.14(a) and (b) provided for
an exemption from the security provisions by requiring a certification
that both of the conditions in Sec. 267.14(a) are met. While several
commenters supported the exemption in the proposal, most of the
commenters believed that the proposed security provisions are
reasonable, and that there is no reason for an exemption from those
provisions. If, for example, a facility wants consideration for an
exemption due to site-specific conditions, such a facility might likely
be a better candidate for an individual permit, than for a standardized
permit. Commenters also noted that the conditions for the exemption are
rarely met.
Based on the comments submitted and upon reflection of the Agency's
overall goal in issuing the standardized permit rule, we believe that
having an exemption provision would add to the complexity of what is
intended to be a streamlined permit process. If allowed, the exemption
would require review and approval stages, adding to the time necessary
for issuance of a draft permit. Therefore, the final rule does not
include the exemption proposed in Sec. 267.14(a), and the remaining
language in Sec. 267.14 has been edited accordingly.
[[Page 53432]]
6. What Are the Inspection Schedule Requirements?
The Sec. 267.15 inspection schedule requirements are finalized, as
proposed. No significant comments were received on this section.
7. What Are the Training Requirements?
The Sec. 267.16 training requirements are essentially the same as
the training standards in Sec. 264.16, and are finalized, as proposed.
No significant comments were received on this section. Owners/operators
will be required to keep a description of the training program and
individual personnel training logs with other required records at their
facility.
8. What Are the Requirements for Managing Ignitable, Reactive, or
Incompatible Waste?
The general requirements of Sec. 267.17 for managing ignitable,
reactive, or incompatible waste are very similar to the requirements
found in Sec. 264.17, and are finalized, as proposed. No significant
comments were received on this section. These general requirements
minimize the potential for accidents when handling ignitable or
reactive wastes, or when mixing incompatible wastes.
9. What Are the Location Standards?
The Sec. 267.18 location standards are similar to the requirements
found in Sec. 264.18, except that today's final rule does not provide
for a waiver from the 100-year floodplain restriction, based on the
ability to remove the waste.
Most commenters agreed with the Agency that we should not allow a
waiver from the location requirements that prohibit locating a facility
in a 100-year floodplain, if wastes can be removed before flood waters
reach the facility. Commenters provided similar arguments to those
regarding the exemption from the security provisions. Moreover, they
argued that if a facility believes, based on site-specific conditions,
that they should be eligible for a waiver, that the facility would
likely be better suited for an individual permit. We agree with these
commenters.
However, some commenters argued that the waiver provision should be
available for siting a facility in the 100-year floodplain in order to
maximize regulatory relief. We disagree. Similar to our reasons for not
having an exemption from the security provisions of Sec. 267.14, we
believe that having a waiver from the location standards would only add
to the complexity of what is intended to be a streamlined permit
process. If allowed, waivers would require review and approval stages,
adding to the time necessary for issuance of a draft permit, which
detracts from the intent of permit streamlining. Therefore, we are not
providing for a waiver from the floodplain location standards in the
final rule.
D. Subpart C--Preparedness and Prevention
This subpart requires you as the owner or operator to minimize
threats to human health and the environment caused by the release of
waste from unplanned events.
1. What Are the Design and Operation Standards?
The requirements of Sec. 267.31 are the same as those found in
Sec. 264.31, and include requirements on how to design, construct,
maintain and operate your facility to minimize threats to human health
and the environment. No significant comments were received on this
section. Therefore, we are finalizing the requirements, as proposed.
2. What Equipment Am I Required To Have?
Section 267.32 equipment requirements are finalized, as proposed.
This section requires you to have certain equipment at the facility,
including an alarm system, communication equipment, fire extinguishers
and fire control equipment, and either water at adequate volume and
pressure to supply hose streams, foam equipment, or water spray
systems. The section also provides an exemption for certain equipment,
otherwise required, if the potential hazards at the facility don't
warrant the equipment. To make use of that equipment exemption, you
would need to submit a certification and keep documentation supporting
the exemption at your facility. This exemption has been retained for
two reasons: It avoids unnecessary expenditures, and the exemption does
not require approval of a demonstration by the permitting agency.
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. No significant comments were received on this section.
3. What Are the Testing and Maintenance Requirements for Equipment?
Section 267.33 is finalized, as proposed, requiring the testing of
all equipment identified in Sec. 267.32. No significant comments were
received on this section.
4. What Are the Requirements for Access to Communication Equipment or
an Alarm System?
Section 267.34 requires all personnel involved in waste handling to
have ready access to communication equipment and alarms. The
requirement would not apply when the equipment is not required under
Sec. 267.32. No significant comments were received on this section.
Therefore, this section is finalized, as proposed.
5. What Are the Requirements for Access for Personnel and Equipment
During Emergencies?
Section 267.35 is being finalized with additional language as
described below. Specifically, a commenter suggested adding the
following language to the end of proposed Sec. 267.35: ``as
appropriate considering the type of waste being stored or treated.'' We
agree with the suggested change because it acknowledges that certain
wastes may not necessarily require spill control or fire equipment
access to the area.
6. What Are the Requirements for Arrangements With Local Authorities
for Emergencies?
Section 267.36, regarding making arrangements with local entities
such as police, fire, and response authorities, is finalized, as
proposed. No significant comments were received on this section.
E. Subpart D--Contingency Plans and Emergency Procedures
This subpart contains standards requiring a contingency plan that
describes how hazards to human health and the environment will be
minimized. These requirements are similar to those in part 264 subpart
D with the exception that you are not required to submit the plan with
your application.
The following Sections of subpart D are finalized, as proposed,
because no significant comments were received.
a. Purpose of the Contingency Plan (Sec. 267.51)
b. What is Required to be in the Contingency Plan? (Sec. 267.52)
c. Who is Required to Have Copies of the Contingency Plan? (Sec.
267.53)
c. Revising the Contingency Plan (Sec. 267.54)
d. Role of the Emergency Coordinator (Sec. 267.55)
e. Emergency Procedures for the Emergency Coordinator (Sec. Sec.
267.56 and 267.57)
F. Subpart E--Manifest System, Record keeping, Reporting, and Notifying
This subpart of part 267 contains the standardized permit manifest
system, record keeping, reporting, and notifying
[[Page 53433]]
requirements. We changed the name of the heading for subpart E to
reflect the applicability of the manifest system requirements in cases
involving eligible off-site facilities.
1. When Would I Need To Manifest My Waste?
Today's rule extends eligibility for the standardized permit to
certain off-site facilities. Because the proposal only addressed on-
site generator facilities, Sec. 267.70 did not include all of the
provisions from Sec. 264.71 ``Use of the Manifest System.'' We,
therefore, are finalizing today's rule to insert the provisions of
Sec. 264.71 into Sec. 267.71, now titled ``Use of the Manifest
System,'' and the provisions of Sec. 264.72 into Sec. 267.72, now
titled ``Manifest Discrepancies.''
With these insertions, the proposed Sec. Sec. 267.71 through and
267.74 are renumbered and finalized as follows:
a. Section 267.71 becomes Sec. 267.73 (What Information Must I
Keep?);
b. Section 267.72 becomes Sec. 267.74 (Who Sees the Records?);
c. Section 267.73 becomes Sec. 267.75 (What Reports Must I Prepare
and to Whom Do I Send Them?); and
d. Section 267.74 becomes Sec. 267.76 (What Notifications Must I
Make?).
Because we are extending eligibility to certain off-site facilities, we
are adding paragraphs to Sec. Sec. 267.73 and 267.75 that relate to
off-site facilities (e.g., Sec. 267.73(b)(11) and (12) and Sec.
267.75(c) and (d)).
One commentor suggested that a change to include manifest
requirements in the final rule be made to allow for off-site facility
eligibility. Because we are extending this rule to certain off-site
facilities, where an owner/operator manages their own waste generated
at several locations, the suggested change to Subpart E was
appropriate.
2. What Information Would I Need To Keep?
For similar reasons as with the section on ``when would I need to
manifest my waste?,'' proposed Sec. 267.71 was developed with on-site
generator facilities only. Because certain off-site facilities are now
included, we are adding the applicable provisions from Sec. 264.71
that relate to off-site facilities, into Sec. 267.73.
One commentor noted that there appeared to be some confusion on
retention times for records. The retention time for records, unless
otherwise noted, is until the facility is closed, as is stated at Sec.
267.73(b).
According to Sec. 267.73(b), records must be retained until the
facility is closed. In addition, Sec. 267.74(b) further states this
retention period can be extended due to an unresolved enforcement
action involving the facility or as requested by the Administrator. For
the purpose of clarity, we removed the words ``and how long do I keep
them'' from the heading of Sec. 267.74.
3. Who Sees the Records?
Proposed Sec. 267.72 regarding submission of records to the
permitting authority is finalized at Sec. 267.74. No significant
comments were received on this section.
4. What Reports Do I Need To Prepare and to Whom Would I Need To Send
Them?
Because we are finalizing today's rule to extend to certain off-
site facilities, we are adding the applicable provisions from Sec.
264.76 (Unmanifested Wastes) to proposed Sec. 267.73, and finalizing
that section at Sec. 267.75. No significant comments were received on
this section.
5. What Notifications Must I Make?
Proposed Sec. 267.74 is finalized as Sec. 267.76. No significant
comments were received on this section.
G. Subpart F--Releases From Solid Waste Management Units
Section 267.101 of the final rule sets forth requirements for
corrective action at facilities that obtain standardized permits. These
requirements have not been changed from the October 12, 2001 proposed
rule.
Section 3004(u) of RCRA provides that all permits issued after
November 8, 1984 and under the authority of section 3005 must require
corrective action for all releases of hazardous waste or constituents
from any solid waste management units (SWMU) at the facility, as
necessary to protect human health and the environment (see also 40 CFR
264.101). 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 as necessary to protect human health and the
environment beyond the facility boundary, where permission to conduct
such corrective action can be obtained. Because standardized permits,
like non-standardized permits (i.e., individual permits and permits-by-
rule), will be issued under the authority of section 3005 of RCRA,
these statutory corrective action requirements extend to standardized
permits as well. Section 267.101(b) provides that corrective action
provisions will be specified in the supplemental portion of the
standardized permit (as necessary to protect human health and the
environment). In the October 12, 2001 proposed rule, the Agency did not
propose standardized permit conditions for corrective action. The
Agency explained that, while it was attempting to streamline the permit
application and permit issuance processes by developing generic design
and operating standards for storage permits, it had to balance the
desire for a streamlined permitting process against the need for
flexibility in the corrective action program. The Agency recognized
that most sites in the RCRA corrective action universe are unique, and
that site-specific determinations for corrective action remedies are
vital to assuring the best remedy is selected at each site. The Agency
therefore proposed the same site-specific flexibility for corrective
action under standardized permits as is available under non-
standardized permits. The Agency believed that this approach would
provide flexibility to fashion remedies that are protective of human
health and the environment and that reflect the conditions and the
complexities of each facility. The Agency solicited comment on this
approach, but also requested suggestions for standardized corrective
action permit conditions.
The Agency received few comments on this proposed approach. While
some commenters agreed that site-specific flexibility should be
preserved for corrective action, some suggested standard permit
conditions that the Agency might adopt.
One commenter suggested that the Agency develop standard permit
conditions for presumptive remedies or specified corrective action
approaches which could be incorporated into the uniform portion of the
standardized permit. Though the Agency agreed that the commenter raised
interesting ideas, the Agency did not develop standard permit
conditions based on this comment for several reasons. First, the
commenter did not provide sufficient detail to develop standard
conditions, and developing the suggested standard permit conditions
would have required significant effort on the part of the Agency. The
Agency did not believe that the level of interest demonstrated by
commenters for standard permit conditions for corrective action
warranted those efforts. In addition, the Agency did not believe that
this rule was an appropriate forum for addressing the type of
streamlined approach suggested by the commenter.
[[Page 53434]]
Presumptive remedies and generic standards for streamlined approaches
to corrective action are based on factors such as type of waste and
media requiring cleanup--factors unrelated to the eligibility criteria
for standardized permitted facilities. Thus, presumptive remedies and
generic standards for streamlined approaches to corrective action are
program-wide issues that the Agency believes are better addressed in
other forums.
Another commenter suggested that standardized permits should
contain several standard permit conditions, at a minimum, including
notification requirements for, and assessment of, newly identified
solid waste management units, areas of concern, and newly identified
releases; content requirements for workplans and reports; approval
procedures for workplans and reports; and approval procedures for final
remedies. The Agency did not develop standard permit conditions in
response to this comment. As was the case with the first commenter,
this commenter did not provide the detail that would have been
necessary to develop standard permit conditions. Further, the process-
oriented permit conditions suggested by the commenter would have been
inconsistent with the Agency's approach to implementation of the
corrective action program. Since the time of the proposal, the Agency
has continued to move away from a process-oriented corrective action
approach toward a results-based strategy for corrective action. In
September, 2003, the Agency issued guidance entitled ``Results-Based
Approaches and Tailored Oversight Guidance,'' which encouraged the use,
where appropriate, of results-based approaches to corrective action. As
described in the guidance, results-based approaches emphasize outcomes,
or results, in cleaning up releases, and strives to tailor process
requirements to the characteristics of the specific corrective action.
The Agency believes that development of the standard permit conditions
for corrective action as suggested by the commenter would not be
consistent with a results-based approach.
The Agency believes that the better approach is to continue to
allow regulators the flexibility to develop permit conditions based on
the conditions at the site. Thus, Sec. 267.101(b) provides that
provisions (or schedules of compliance) for corrective action will be
specified in the supplemental portion of a standardized permit, and
Sec. 267.101(c) provides for corrective action beyond the facility
boundary. These paragraphs impose requirements for corrective action at
facilities that receive standardized permits that are identical to
those requirements imposed by Sec. 264.101 at facilities that receive
non-standardized permits.
In the proposed rule (see 66 FR 52191), the Agency also solicited
comment on how cleanups under cleanup programs other than the
authorized RCRA program (or under ``alternate authorities'') might be
addressed in RCRA permits, including facilities with standardized
permits. The Agency identified two approaches that might be used to
address an alternate cleanup authority in a RCRA permit--the approaches
were referred to as ``postponement'' and ``deferral.'' Under the
postponement approach, the permitting authority would postpone the
determination of RCRA-specific corrective action provisions until a
cleanup under an alternate State authority is completed. Under the
deferral approach, the permitting authority would make a determination
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. The Agency requested comment on the
postponement and deferral approaches as part of its ongoing effort to
determine how to effectively utilize alternate authorities to address
corrective action needs at RCRA facilities.
The Agency is not taking final action in this final rule with
respect to the issues raised regarding alternate authorities. The
Agency does note, however, that since the time of the proposed rule,
the Agency has continued, outside of the context of this rulemaking, to
support the appropriate use at specific sites of alternate authorities
to address RCRA corrective action, not only at permitted facilities,
but at other RCRA facilities as well.\3\ The Agency plans to address
issues and options related to the use of alternate authorities
discussed in the proposal, including how to address alternate
authorities in RCRA permits, outside of the context of this
rulemaking.\4\
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\3\ Alternate authorities are utilized at RCRA facilities in
most States. These authorities include a variety of cleanup
programs, including voluntary programs and state superfund-type
programs.
\4\ It should be noted that since issues related to use of
alternate authorities are not addressed in this final rule, the
Agency did not respond to comments related to those issues.
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H. Subpart G--Closure
1. Does This Subpart Apply to Me?
The language of Sec. 267.110 is finalized, as proposed, since no
significant comments were received on this section. You are subject to
the requirements of subpart G if you own or operate a facility treating
or storing hazardous waste under a standardized permit.
2. What General Standards Must I Meet When I Stop Operating the Unit?
The language of Sec. 267.111 has been modified to further
reinforce that facilities under a standardized permit must clean close.
If a facility under a standardized permit cannot clean close, then the
owner/operator of the facility must pursue post-closure options.
3. What Procedures Must I Follow?
As discussed below, Sec. 267.112 has been revised to require that
the closure plan be submitted with the Notice of Intent, instead of 180
days prior to closure, as proposed. The closure plan, as part of the
permit, would be approved with final permit issuance.
The Agency requested comments on several aspects of the closure
plan in the proposed rule. Specifically, while the Agency proposed to
require that the closure plan be submitted at least 180 days prior to
closure, we also requested comment on whether the closure plan should
be submitted with the Notice of Intent; not allowing the option to
close as a landfill and therefore require clean closure of the units
addressed in the standardized permit; and not allowing time extensions
for closure. We also requested comments and suggestions for procedures
to be followed in the event that you do not know that you are to
receive the final volume of hazardous waste until you are within the
180 day period, and proposed options for that occurrence. Finally, we
invited comment on an option of not requiring a closure plan, but,
instead, including closure conditions in the standardized permit. Our
response to these comments are addressed in this section of the
preamble and in the Response to Comments document.
The majority of the comments received supported a requirement that
the closure plan be submitted with the Notice of Intent. Those who
favored the closure plan being submitted with the Notice of Intent
argued that early submittal of the closure plan would be more
protective of human health and the environment because it would allow
for better cost estimates, would allow for early negotiation of closure
conditions, and would avoid the problem of meeting time frames within
the 180-day window. Moreover, as noted previously, requiring the plan
up front would allow the regulatory authority to review the plan and
assure the regulatory authority of the owner/operator's ability to
complete closure. Early submission of a closure plan would also help
support closure cost
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estimate figures. Finally, the revision would allow the public to
review the plan during the public comment period for the publicly
noticed permit. Consequently, we agree that it would be more
appropriate to require that the closure plan be submitted with the
Notice of Intent and have modified the rule accordingly.
With this change to require closure plan submissions with the
Notice of Intent, we have modified the proposed Sec. 267.112(c)
language to account for changes to the facility requiring a change to
the closure plan. These changes may include, but are not limited to,
changes in the operating plan, facility design, change in the year of
closure, and unexpected events. These conditions were not relevant in
the proposed rule where the closure plan was not required until 180
days prior to closure.
4. Will the Public Have the Opportunity To Comment on the Plan?
Based on the changes discussed in the previous section, the public
will have an opportunity to review the closure plan during the public
comment period that occurs once the draft permit is public noticed.
5. What Happens if the Plan Is Not Approved?
Because of the change made to require that the closure plan be
submitted with the Notice of Intent, Sec. 267.114 is no longer
appropriate and thus, is not included in the final rule. The plans are
considered approved when the final permit is issued, becoming part of
the permit. If the plan is not acceptable, then the standardized permit
will not be issued.
6. After I Stop Operating, How Long Until I Must Close?
The proposed rule required that closure begin within 30 days after
the facility received its final volume of hazardous waste, and that
clean closure be completed within 180 days after receiving the final
volume of waste, with no time extensions. (The rule intends that
eligible units should be able to clean close.) Our rationale for
requiring clean closure of the units subject to the standardized permit
was to reduce the likelihood of any unforeseen circumstances and thus,
it would be unlikely that closure would take longer than 180 days.
Nevertheless, in the proposal, we invited comments on the need for
extending the closure time period to allow for more time to clean
close.
Most commenters agree with the Agency that, in most cases, 180 days
is an adequate amount of time to clean close container units, tank
storage units, and containment buildings. However, commenters also
believed it appropriate (and necessary) to include a provision in the
final rule that would allow for an extension for circumstances beyond
the control of the owner/operator.
Based on these comments and the Agency's experience in implementing
the hazardous waste program, we agree with the commenters that a
provision should be included in the final rule that would allow a one-
time extension for circumstances beyond the control of the owner/
operator. Therefore, we are including a provision in the final
regulations at Sec. 267.115 to allow for a one-time extension of 180
days to the time allowed to clean close to address circumstances beyond
the control of the owner/operator. In cases where closure is expected
to take more time, the facility will be required to use post-closure
options to close.
7. What Must I Do With Contaminated Equipment, Structures, and Soils?
The language of Sec. 267.116 is finalized, as proposed. No
comments were received on this section.
8. How Do I Certify Closure?
The language of Sec. 267.117 is finalized, as proposed. No
comments were received on this section.
I. Subpart H--Financial Requirements
Much of the regulatory language in this final 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 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 parts 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 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 in addition to 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 their responsibilities in
accordance with, 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 issued regulatory
language based upon first and second person subjects.
1. Who must comply with this subpart and briefly what must they do?
The financial responsibility requirements for the standardized permit
largely mirror the provisions found currently in 40 CFR part 264
subpart H. As discussed more fully below, the major differences involve
the pay-in period for a trust for a new facility, and the adoption of a
financial test that differs from the current financial test under 40
CFR part 264 subpart H. Both of these provisions were included in the
proposal. Under Sec. 267.140, you must 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 Sec.
267.1(b), and Sec. 267.140(d) which, like current part 264 subpart H,
exempts the States and the Federal government from the requirements of
this subpart. If you are subject to these regulations, you must prepare
a closure cost estimate, demonstrate financial assurance for closure,
and demonstrate financial assurance for liability. You must 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 in Sec. 267.141 largely
follow those currently used in Sec. 264.141. As discussed below, the
proposed regulatory text included, as a method of complying with the
financial assurance requirements, a financial test that reflected the
test that EPA had proposed for other hazardous waste TSDFs. Because
this proposed test did not use some of the terms in the part 264
financial test, EPA omitted those
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definitions from proposed part 267. For the standardized permit rule,
EPA has adopted the financial tests that were contained in the proposal
and so the definitions that were omitted from the proposal are again
omitted from the final text of Sec. 267.141.
3. Closure cost estimates. For traditional permits, the closure
plan forms one of the bases for estimating closure costs. However,
under the proposed rule, the holder of a standardized permit would not
have had to prepare a closure plan until 180 days before closure.
Therefore, EPA developed proposed regulatory language that could
accommodate this difference. As previously discussed, many commenters
objected to this provision (in part because of the difficulty of
developing precise cost estimates in the absence of a closure plan) and
so in the final rule, EPA has required that the closure plan be
submitted with the Notice of Intent and be approved before the issuance
of the standardized permit. (See section H. Subpart G, Closure
preceding this section for further discussion of this issue.) Because
approval of the closure plan is now required before the issuance of the
standardized permit, the closure cost estimating requirements can be
and are the same as for holders of individual permits. Thus, the
regulatory language that was included in the proposal that would have
accommodated the difference between proposed Sec. 267.142(a)(1), (2),
and (5) and the current part 264 subpart H has been removed from the
final rule, and a new Sec. 267.142(c) added. Under Sec. 270.275(i), a
copy of the closure cost estimate must be submitted with the Notice of
Intent. This is consistent with the requirement for other permits in
Sec. 270.14(b)(15).
As under the requirements for other permitted facilities, you must
develop and keep at the facility a detailed written estimate, in
current dollars, of the cost of closing the facility in accordance with
the closure requirements of Sec. Sec. 267.111 through 267.117, and
applicable closure requirements in Sec. Sec. 267.176, 267.201, and
267.1108. As under the requirements for facilities operating under
individual permits, you must base these cost estimates upon a closure
plan. Under Sec. 267.142(a)(1), the estimate must 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 requiring 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. In addition, 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
(Sec. 267.142(a)(3)). This disallowance of a salvage credit reflects
the Agency's conviction that allowing salvage value to be credited is
inconsistent with the goal of ensuring adequate funds are available in
the event that the owner or operator fails to cover the costs of
closure. Further, your cost estimate may not incorporate a zero cost
for hazardous waste or non-hazardous waste that you might be able to
sell. The value of waste at closure sometime in the future is too
speculative to allow it to offset closure costs (Sec. 267.142(a)(4)).
Under Sec. 267.142(b), you must adjust the closure cost estimate
for inflation within 60 days before the anniversary date you
established for the financial instruments utilized 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 must 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. Because the financial test submission must be
updated for inflation within 90 days of the close of the firm's fiscal
year, effectively both users of the financial test and corporate
guarantee, and users of the other mechanisms must update the cost
estimates on the same schedule.
However, we requested 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 have made this requirement the same as the deadline
for updating the financial test. After evaluating the public comments,
we decided to keep the dates for updating cost estimates for holders of
standardized permits the same as for individual permits. Changing these
dates would have made them inconsistent with the dates for individual
permits. While two commenters recommended the change, another
recommended against it and we determined that keeping the dates
consistent with the other program requirements would be preferable.
In adjusting your cost estimate, you may 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 those
regulations specify the use of the Implicit Price Deflator for Gross
National Product rather than the Gross Domestic Product. We proposed
using the Gross Domestic Product deflator under this rule because the
Gross Domestic Product Deflator 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 to
better comply with the requirement to adjust your cost estimate for
inflation. We received no adverse comment on using the Gross Domestic
Product deflator and therefore, have included it in the final rule. EPA
notes it has issued guidance allowing owners and operators of
facilities with individual permits to use the Implicit Price Deflator
for Gross Domestic Product under Sec. 264.142 so long as they are
consistent in its use.
Under proposed Sec. 267.142(a)(5), you would have been required to
revise your closure cost estimate in accordance with the closure plan
within 30 days after submitting your closure plan. This provision is
not part of the final rule because now the closure plan must be
submitted with the Notice of Intent. The requirements for closure costs
are the same in Sec. 267.142 as in Sec. 264.142. You would also
adjust the 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 and have been
incorporated into this final rule.
As with the current Sec. 264.142(c) requirement, under Sec.
267.142(c), you must update the closure cost estimate when a
modification to the closure plan has been approved. If you modify your
operations so that the cost of closure would increase, you must
increase the closure cost estimate and provide fi