[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27300]
[[Page Unknown]]
[Federal Register: November 8, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 264, et al.
Standards Applicable to Owners and Operators of Closed and Closing
Hazardous Waste Management Facilities; Post-Closure Permit Requirement;
Closure Process; State Corrective Action Enforcement Authority;
Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 264, 265, 270, and 271
[FRL-5100-2]
RIN 2050-AD55
Standards Applicable to Owners and Operators of Closed and
Closing Hazardous Waste Management Facilities; Post-Closure Permit
Requirement; Closure Process; State Corrective Action Enforcement
Authority
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule and request for public comment.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend the regulations under the Resource Conservation and Recovery Act
(RCRA) in two areas. First, the Agency is proposing to remove the
current requirement for a post-closure permit, and allow the Agency to
use alternative authorities to address facilities with units requiring
post-closure care. In addition, the Agency is proposing to amend the
regulations governing State authorization to require authorized States
to adopt, as part of an adequate enforcement program, authority to
address corrective action at interim status facilities. This action
also solicits comment on several issues related to closure and
corrective action at hazardous waste management facilities.
DATES: Comments must be received on or before January 9, 1995.
ADDRESSES: Written comments on today's proposal should be addressed to
the docket clerk at the following address: Environmental Protection
Agency, RCRA Docket (OS-305), 401 M St., SW., Washington, DC 20460.
Commentors should send one original and two copies and place the docket
number (F-94-PCPP-FFFFF) on the comments. The docket is open from 9:00
a.m. to 4:00 p.m., Monday through Friday, except for Federal holidays.
Docket materials may be reviewed by appointment by calling 202-260-
9327. A maximum of 100 pages of material may be copied at no cost from
any one regulatory docket. Additional copies are $0.15 per page.
FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline (1-800-424-
9346) toll free, or (202-260-9327) in Washington, D.C. (for technical
information); Barbara Foster (703-308-7057), Office of Solid Waste,
Mail Code 5303W, U.S. Environmental Protection Agency, Washington D.C.
20460 (issues related to closure or post-closure care), or Ellen
Kandell (703-603-8996), Office of Enforcement and Compliance Assurance,
Mail Code 5502G, U.S. Environmental Protection Agency, Washington, DC
20460 (enforcement-related issues).
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Proposed Provisions Related to Closure and Post-Closure
Requirements
A. Background Information
1. Overview of RCRA Permit Requirements
2. The Closure Process
3. Post-Closure Care
4. Developments Since 1982
5. Response to Post-1982 Developments
6. State Involvement in Development of This Proposed Rule
B. Summary and Discussion of Proposed Provisions
C. Section-by-Section Analysis
1. Section 270.1(c)--Use of Alternative Legal Authorities to
Address Post-Closure Care
2. Section 265.121--Interim Status Post-Closure Care
Requirements for Facilities Subject to Sec. 270.1(c)(7)
3. Post-Closure Plans and Permits
4. Alternate Authorities Issued Prior to the Effective Date of
the Rule
III. Request For Public Comment on Closure and Post-Closure Related
Issues
A. Regulatory Timeframes
1. Closure Plan Review and Approval Process
2. Timeframes for Completion of Closure Activities
B. Regulatory Distinction Between Regulated Units Undergoing
Corrective Action and Non-Regulated Solid Waste Management Units
IV. Proposed Provisions Related to State Enforcement Authority to
Compel Corrective Action at Interim Status Facilities
A. Background Information
B. Summary of Proposed Provisions
C. Analysis and Discussion
D. EPA's Interpretation of the Scope of Section 3008(h)
1. Definition of Facility
2. Definition of Release
3. Off-site Releases
4. Compelling Compliance
5. Application of Order Authority
V. Request for Comment on Authorizing States to Use State Orders to
Impose Corrective Action at Permitted Facilities
VI. Public Participation
A. Public Participation Requirements When Issuing a Section
3008(h) Order in Lieu of a Post-Closure Permit
B. Public Participation Requirements for State Corrective Action
Orders at Interim Status Facilities
C. Public Participation Requirements for Orders Used to Address
Corrective Action Permitted Facilities in Lieu of Sections 3004(u)
and (v)
VII. Effect of Today's Rule on State Authorization
A. Applicability of Rules in Authorized States
B. Effect of Today's Proposed Revisions to Closure and Post-
Closure Requirements on State Authorizations
C. Effect of Today's Proposed Revisions to Requirements for
Enforcement Authority on State Authorizations
1. Requirement to Adopt Provisions of Today's Proposal
2. Effect of Proposed Rule on Federal Enforcement Authorities in
States that Obtain Authorization for Today's Proposed Provisions
VIII. Regulatory Impact Analysis
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Authority
These regulations are proposed under the authority of sections
2002(a), 3004, 3005, and 3006 of the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6924, 6925, and 6926.
II. Proposed Provisions Related to Closure and Post-Closure
Requirements
A. Background Information
1. Overview of RCRA Permit Requirements
Section 3004 of the Resource Conservation Recovery Act (RCRA)
requires the Administrator of EPA to develop regulations applicable to
owners and operators of hazardous waste treatment, storage, or disposal
facilities, as necessary to protect human health and the environment.
Section 3005 requires the EPA Administrator to promulgate regulations
requiring each person owning or operating a treatment, storage, or
disposal facility to have a permit, and to establish requirements for
permit applications. Recognizing that the Agency would require a period
of time to issue permits to all facilities, Congress provided, under
section 3005(e) of RCRA, that qualifying owners and operators could
obtain ``interim status'' and be treated as having been issued permits
until EPA takes final administrative action on their permit
applications. The privilege of continuing hazardous waste management
operations during interim status carries with it the responsibility of
complying with appropriate portions of the section 3004 standards.
EPA has issued numerous regulations to implement RCRA requirements
for hazardous waste management facilities. These regulations include
the standards of 40 CFR part 264 (which apply to facilities that have
been issued RCRA permits), part 265 (which apply to interim status
facilities), and part 270 (which provide standards for permit
issuance). The general requirements for closure are found at 40 CFR
parts 264 and 265, subpart G.
2. The Closure Process
The closure regulations at 40 CFR parts 264 and 265, subpart G
require owners and operators of hazardous waste management units to
close these units in a manner that is protective of human health and
the environment and that minimizes the post-closure release of
hazardous constituents to the environment. These regulations also
establish procedures for closure: they require owners and operators to
submit closure plans to the Agency for their hazardous waste management
units, and they require Agency approval of those closure plans.
In addition, parts 264 and 265 establish specific requirements for
closure of different types of units. Under parts 264 and 265, subpart
L, owners and operators of landfills are required to cover the unit
with an impermeable cap designed to prevent infiltration of liquid into
the unit; then owners or operators must conduct post-closure care
(including maintenance of the cap and groundwater monitoring). Owners
and operators of surface impoundments and waste piles have the option
either to remove or decontaminate all hazardous waste and constituents
from the unit, or to leave waste in place, cover the unit with an
impermeable cap, and conduct post-closure care. Closure of land
treatment facilities must be conducted in accordance with closure and
post-closure care procedures of Secs. 264.280 and 265.280. As part of
the closure plan approval process, the Agency has the authority to
require owners and operators to remove some or all of the waste from
any type of unit at the time of closure, if doing so is necessary for
the closure to meet the performance standard of Sec. 264.111 or
Sec. 265.111.
Owners and operators of incinerators and storage and treatment
units (e.g., tanks and containers) are required to remove or
decontaminate all soils, structures, and equipment at closure. Owners
and operators of tanks who are unable to do so must close the unit as a
landfill and conduct post-closure care.
3. Post-Closure Care
As discussed above, owners and operators of hazardous waste
management units that close with waste in place must conduct post-
closure care at those units, including groundwater monitoring and
maintenance of the cap. EPA's current regulations anticipate that these
requirements, for the most part, will be imposed through RCRA permits.
Under 40 CFR 270.1, permits are required for the post-closure period
for any landfill, waste pile, surface impoundment, or land treatment
unit that received waste after July 26, 1982, or ceased the receipt of
wastes prior to July 26, 1982, but did not certify closure until after
January 26, 1983. In addition, Sec. 270.1(c)(5) requires owners and
operators of surface impoundments, land treatment units, and waste
piles that closed by removal or decontamination under former part 265
standards to obtain a post-closure permit unless they demonstrate that
the closure met the current standards for closure by removal or
decontamination.
In the case of operating land disposal facilities, the RCRA permit,
when first issued, incorporates the closure plan and applicable post-
closure provisions. These post-closure conditions become effective
after the facility ceases to manage hazardous waste and the closure
plan has been implemented. The permit, when issued, also requires
compliance with part 264 subpart F groundwater monitoring standards,
and (if the permit was issued after November, 1984) it would include
terms implementing the facility-wide corrective action requirements of
RCRA section 3004(u). Like the post-closure care provisions, these
requirements remain in effect after closure of the hazardous waste
management unit.
For interim status facilities that close without having obtained an
operating permit, the post-closure permit (typically issued after
completion of closure) performs a critical regulatory function. First,
in securing a permit, the facility must meet the permit application
requirements of part 270, which require extensive information on the
hydrogeologic characteristics of the site and extent of any groundwater
contamination. Second, once the post-closure permit has been issued,
the facility then becomes subject to the standards of part 264 rather
than part 265, most significantly to the site-specific groundwater
monitoring requirements of part 264, subpart F. Third, the post-closure
permit imposes facility-wide corrective action to satisfy the
requirements of section 3004(u). Finally, the public involvement
procedures of the permitting process assure that the public is informed
of and has an opportunity to comment on permit conditions.
4. Developments Since 1982
Though EPA has amended the 1982 subpart G regulations on several
occasions, the basic closure process and the requirement for a post-
closure permit remain in place. Several significant developments since
1982, however, suggest that the closure process and standards should be
revisited.
a. The agency has gained experience in the area of closure and
post-closure. In 1982, when the regulatory structure for closure was
established, the Agency had no experience with closure of RCRA
regulated units. Since 1982, the Agency and authorized States have
approved thousands of closure plans, and overseen the closure
activities taking place under those plans. It has become evident that
closure of these units is frequently more complex than EPA envisioned
in 1982. In many cases, particularly with unlined land-based units, the
unit has released hazardous waste and constituents into the surrounding
soils and groundwater. In these cases, the closure activity is not
simply a matter of capping a unit, or removing waste from the unit, but
instead may require a significant undertaking to clean up contaminated
soil and groundwater. The procedures established in the closure
regulations were not designed to address these types of activities.
For example, it has become evident that the two options for closure
provided in the current regulations (i.e., remove or decontaminate all
waste from the unit, or cover the entire unit with an impermeable cap)
do not provide the best remedy in all situations. In fact, the
requirement that an impermeable cap be placed on the unit if all waste
has not been removed may, if read narrowly, discourage implementation
of more protective remedies. This issue is discussed later in this
preamble.
In addition to gaining experience in the closure process, EPA and
the States have issued more than 150 post-closure permits since 1982.
In the course of reviewing post-closure permit applications, however,
the EPA Regions and States have encountered many facilities where post-
closure permit issuance proved difficult or, in some cases, impossible.
Generally, the Regions and States have found two major difficulties in
post-closure permit issuance. The first is that, in many cases, the
facility chose to close, or was forced to close, because it could not
comply with part 265 standards--particularly, groundwater monitoring
and financial assurance. If a facility cannot meet these requirements,
EPA cannot issue a permit to it because section 3005(c) of RCRA
requires facilities to be in compliance with applicable requirements at
the time of permit issuance. The second difficulty is that the owner or
operator often has little incentive to seek a post-closure permit.
Without a strong incentive on the part of the facility owner or
operator to provide a complete application, the permitting process can
be significantly protracted. These difficulties are discussed further
in section IV.A. of this preamble.
b. The agency has acquired new corrective action authority. In
1984, the Hazardous and Solid Waste Amendments (HSWA) to RCRA provided
EPA with broad new authorities, under sections 3004(u), 3004(v), and
3008(h), to compel corrective action (i.e., cleanup) of facilities
subject to regulation under RCRA Subtitle C. Corrective action has
since become a major component of the RCRA Subtitle C program.
Approximately 1100 hazardous waste management facilities are now in the
process of implementing corrective action requirements specified under
orders or permits.
The RCRA corrective action authorities, and the process that has
been developed for implementing these authorities, require owners and
operators to investigate the nature and extent of releases of hazardous
waste or hazardous constituents at RCRA facilities (i.e., to soils,
groundwater, and other environmental media). Owners and operators are
required to investigate releases from solid waste management units at
the facility, including releases from ``regulated units'' not addressed
under subpart F of part 264. At the direction of the Agency, owners and
operators are also required to characterize the sources of releases
(i.e., the units from which wastes or constituents have been released),
and to develop options for remediation of the facility. Remediation
will typically address cleanup of the media contaminated by releases,
and removal or containment of the source.
In practice, the corrective action process is highly site-specific,
and involves direct oversight by the reviewing Agency. The process
provides considerable flexibility to the Agency to tailor
investigations, and to decide on remedies that reflect the conditions
and the complexities of each facility. The process of investigating and
achieving cleanup goals at facilities is often technically complex, and
can take many years to complete. This is the case particularly for
groundwater contamination in complex hydrogeologic conditions. Given
the site-specific nature of corrective action, the technical challenges
involved, and the large number of RCRA facilities that may require
cleanup, EPA is pursuing an implementation strategy for the corrective
action program that involves assessing the environmental priority of
each facility from the standpoint of its need for corrective action,
and focusing the program's resources on high priority facilities. This
implementation strategy is discussed in more detail below.
c. The agency has developed a strategy for addressing worst sites
first under RCRA. In 1990, EPA conducted the RCRA Implementation Study
(RIS). This was the Agency's first comprehensive, in-depth evaluation
of the RCRA hazardous waste program, its evolution, and its future. EPA
produced the RIS after extensive discussion with stakeholders, private
and public, in the RCRA program (i.e., industry, environmental groups,
States, and the Agency). The RIS set forth a series of detailed
recommendations regarding how to best ensure effective implementation
of the RCRA program. An underlying theme throughout was the need to
identify sound, environmentally-based implementation priorities in each
area of the RCRA program and to demonstrate that those priorities are
being effectively and efficiently addressed. The RIS advocated the use
of strategic planning to define expectations and make choices among
competing priorities.
In response to the RIS recommendations, EPA has developed and is
implementing a comprehensive strategy for addressing the RCRA
treatment, storage, and disposal universe. At the heart of this
strategy is the principle that EPA and the authorized States should
address the universe of hazardous waste management facilities on the
basis of environmental priorities. Further, at any given site, EPA or
the State should use whatever regulatory authority is best suited to
achieving environmental success. One essential element of this strategy
is a system to prioritize facilities based upon their risk. This allows
the Agency to address the RCRA universe on a ``worst-site-first''
basis. Another is providing the regulator flexibility in choosing
regulatory options to address a given problem, rather than focusing on
the number of particular regulatory actions taken.
This approach is consistent with the Agency's response to recent
recommendations from the General Accounting Office (GAO). In two
recently issued reports, GAO evaluated EPA's progress in implementing
the RCRA closure and post-closure program at land disposal facilities.
In the first report, entitled Progress in Closing and Cleaning Up
Hazardous Waste Facilities, issued in May of 1991, GAO criticized the
Agency's progress in closing land disposal facilities that lost interim
status in 1985. The report cited limited progress in this area as a
basis for its concern that the Agency was placing too little emphasis
on closing land disposal facilities, even though these facilities may
pose some of the greatest environmental threats. In April of 1992, GAO
issued another report entitled Impediments Delay Timely Closing and
Cleanup of Facilities. This report criticized the Agency's progress in
issuing post-closure permits and cited facility non-compliance with
groundwater monitoring requirements as a result of permitting delays.
In both of these reports, GAO recommended that EPA devote more of its
time and resources specifically to addressing closed and closing land
disposal facilities.
The Agency agrees with GAO's concerns about addressing risk at
closed and closing land disposal facilities, but believes that those
risks must be addressed within the context of the Agency's overall
strategy for implementing the RCRA program. The Agency has, for several
years, been carrying out a combined closure and corrective action
strategy that relies on all of EPA's authorities to address
environmental issues at all RCRA facilities on a worst-site-first
basis. The foundation of this strategy is the Agency's system for
ranking RCRA facilities based on environmental priority. This system
was developed to enable EPA to focus its resources on deterring
violations and remediating contamination at RCRA facilities that
present the highest priority for risk reduction and prevention. (It
should be noted that, because of their nature, closed and closing land
disposal facilities often rank as high priority.) EPA's priority-based
approach dictates that resource commitments be made based on the
priority ranking of facilities. This strategy acknowledges that
activities to address risk at high priority facilities may take
precedence over procedural activities (e.g., permitting) at lower
priority facilities. EPA believes that this priority-based approach to
RCRA implementation provides the best use of available resources by
ensuring progress at high priority facilities across the RCRA universe,
including closed and closing land disposal facilities.
5. Response to Post-1982 Developments
In light of the developments discussed above, the Agency is
reviewing the current closure and post-closure regulations. EPA's goals
are to make the closure process more realistic, integrate the closure
and corrective action processes, and provide greater flexibility in
addressing risks at closed sites. Today's notice is the first step in
that direction. It sets out several amendments to the closure
regulations, including a new approach to addressing post-closure needs
at facilities currently subject to post-closure permit requirements.
In addition to the regulatory changes in today's proposal, section
IV of this preamble solicits comment on further changes to the closure
process. After reviewing public comment submitted in response to
today's notice, the Agency will consider proposing further revisions to
the closure process.
6. State Involvement in Development of This Proposed Rule
Under the terms of Executive Order 12875, the Federal Government is
urged to establish regular and meaningful consultation and
collaboration with State, local, and tribal governments on Federal
matters that significantly or uniquely affect their communities.
Because this proposed rule would affect State RCRA programs, we
provided the rule to the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO) to obtain their reaction. Seven
States submitted written comments and nine States participated in a
conference call with EPA on April 7, 1994, to discuss States' concerns.
The States' written comments and a summary of the April 7 conference
call can be found in the docket for this proposed rule.
The States supported the proposal to remove the post-closure permit
requirement. The States strongly supported removing the distinction
between closing regulated units and solid waste management units, which
is discussed in section III.B. of this preamble.
Generally, States supported the inclusion of a corrective action
order authority as part of an adequate enforcement program. Concerns
were expressed that the Agency's review procedure of such order
authorities would be duplicative of efforts undertaken during a State's
authorization of HSWA corrective action at permitted facilities. The
Agency recognizes that in some cases States' corrective action
enforcement authorities may, indeed, have been reviewed by EPA during
the authorization process for section 3004(u) authority, and determined
to meet the requirements of this proposal. Where EPA determines this is
the case, this proposed rule would not require States to submit
additional information; in addition, EPA would minimize its review.
B. Summary and Discussion of Proposed Provisions
Today's notice proposes a new approach to addressing post-closure
environmental needs at facilities that have not received an operating
permit, and that have units requiring post-closure care. It proposes to
modify the post-closure permit requirement to allow the Agency either
to issue a permit to address post-closure care at a facility, or to
impose the same substantive requirements at the facility using
alternative legal authorities (e.g., a post-closure plan to address the
regulated unit, and an enforcement action to address the solid waste
management units at the facility).
Today's proposal reaffirms that post-closure care requirements
apply to all landfills, waste piles, surface impoundments, and land
treatment units that received waste after July 26, 1982, or that ceased
the receipt of wastes prior to July 26, 1982, but did not certify
closure until after January 26, 1983. Under current regulations at
Sec. 270.l(c), all facilities subject to post-closure care requirements
must obtain RCRA permits. Today's proposal is intended to allow EPA or
an authorized State to use any other available legal authority as an
alternative to the post-closure permit, as long as that authority
provides the same level of protection and public participation as does
the post-closure permit.
As discussed above, under the current regulations, facilities that
cease operation without obtaining a permit are required to close and
conduct post-closure care under the self-implementing standards of Part
265 until the Agency issues a post-closure permit to the facility. This
proposed rule would not modify those interim status standards
applicable to closed and closing land disposal facilities. Thus, for
example, those facilities would continue to be required to conduct
closure under approved closure plans, conduct post-closure care under
an approved post-closure plan, and obtain financial assurance.
As a result of this proposal, rather than issue a post-closure
permit to impose requirements beyond the self-implementing interim
status standards, the Agency could use a variety of regulatory
authorities. To ensure that the authority chosen by the Agency will
provide the same level of environmental protection, this proposal
specifically requires owners and operators to comply with the same
regulatory requirements that would be imposed through a post-closure
permit when those requirements are imposed by the Agency, regardless of
the regulatory authority selected. Those requirements include the
requirements of Part 264, Subpart F, facility-wide corrective action,
and public involvement at the time of remedy selection (if corrective
action is required).
The Agency is proposing to remove the permit requirement and allow
the use of other authorities at post-closure facilities because it has
concluded that a permit is not always the best authority for addressing
environmental risk at these facilities. In fact, as was mentioned
earlier, in the course of issuing post-closure permits over the past
several years, EPA and the States have encountered many facilities at
which post-closure permit issuance was difficult or, in some cases,
impossible. Several obstacles to post-closure permit issuance have been
identified.
One obstacle is a lack of incentive on the part of post-closure
permit applicants. Unlike facility owners or operators seeking
operating permits, owners or operators of closed or closing facilities
often have little incentive to obtain post-closure permits,
particularly where the post-closure unit is the only unit at the
facility. While permit denial is a significant threat to a facility
owner seeking an operating permit, it makes little difference to the
owner of a facility that is already closed and that no longer actively
manages hazardous waste. In the past, where the owner or operator has
been uncooperative in obtaining a post-closure permit, the Agency and
authorized States have taken enforcement actions to facilitate the
permit issuance process, and to bring facilities into compliance with
the applicable regulatory requirements so that a permit could be
issued. Today's rule would allow the Agency to bring an uncooperative
facility into compliance with the regulations through an enforcement
action, and relieve the Agency of its obligation to force the facility
through the permit application process, which was generally designed
under the assumption that the permit applicant desired a permit. Under
the proposal, while the Agency would not lose its authority to issue a
post-closure permit at the facility by taking action under an
alternative authority (e.g., an enforcement action), it would no longer
be required to do so if all applicable regulatory requirements have
been imposed at the facility.
The financial status of the facility owner or operator is often
another obstacle. Closed and closing land disposal facilities subject
to post-closure permit requirements are in many cases businesses that
are no longer operating and may be in poor financial condition, or they
may be without significant resources. In fact, many facilities
currently in the closure universe were forced to close because they
could not meet the RCRA financial assurance requirements. Yet meeting
these requirements is a precondition for receiving an RCRA permit,
regardless of whether it is an operating permit or a post-closure
permit. Where an owner or operator is financially unable to meet the
threshold post-closure financial requirements for permit issuance, the
current regulations do not allow EPA to issue a post-closure permit--
despite the regulatory requirement that these facilities obtain such a
permit.
Similarly, some closing facilities are located in areas where it is
difficult to satisfy the Part 264, Subpart F and Part 270 groundwater
monitoring standards. For example, in some areas of complex
hydrogeology, it may be technically impractical for a facility to
install an adequate groundwater monitoring system. The regulatory
agency would deny a permit application from an operating facility in
such a situation, because denial prevents further receipt of waste and
forces the facility to close. Denial of a post-closure permit
application from a closed facility, however, is meaningless in such a
situation, because it would have no effect on management of wastes
already disposed of at the site and would leave any environmental
problems there unaddressed.
To address environmental risk at facilities such as those described
above, Regions and States have frequently utilized legal authorities
other than permits. Use of enforcement actions enables the Agency to
place these facilities on a schedule of compliance for meeting
financial assurance and/or groundwater monitoring requirements over a
period of time. And, even where enforcement actions cannot bring about
full regulatory compliance (e.g., where the owner or operator cannot
secure financial assurance), they will enable the Agency to prescribe
actions to address the most significant environmental risks at the
facility. For example, EPA has often issued corrective action orders
under the authority of section 3008(h) to address releases from solid
waste management units at these facilities. In other cases, Federal or
State Superfund authorities have been used to address cleanup at sites.
However, under the current regulations, EPA or the State is still
required to issue a post-closure permit even where the environmental
risks associated with the facility have been addressed through other
authorities.
EPA believes that this proposed rule, by allowing the use of
alternative authorities will enable the Agency more effectively to
address post-closure care at a significant number of uncooperative and
financially burdened facilities. The Agency recognizes, however, that
today's proposal may have little practical effect on the Agency's
ability to address those facilities that are in too precarious a
financial state to meet even an extended schedule of compliance for
financial assurance or groundwater monitoring. It is important to note,
however, that EPA's prioritization strategy considers the financial
status of facilities and elevates in importance those whose financial
condition indicates that timely action will increase the likelihood
that owners or operators will be able to meet their post-closure
obligations. And, in some cases, where the owner or operator's
financial condition prevents it from fulfilling its obligations under
RCRA, the facility may be referred to Superfund.
EPA believes that more flexible use of the full range of available
authorities will provide a more comprehensive approach to ensuring
effective post-closure care at RCRA facilities. This approach will
enable the Agency to address facilities on a worst-site-first basis
using the regulatory or legal authority that is most effective at a
given site. Examples of when an authority other than a post-closure
permit may be most appropriately applied include cases where the owner
or operator is financially incapable of meeting the threshold
requirements for permit issuance, such as compliance with the financial
assurance requirements, or where the owner or operator may be
uncooperative and an enforcement action is necessary.
On the other hand, a post-closure permit will generally be the
preferable mechanism for cooperative facilities capable of meeting
financial assurance requirements. It has been the experience of several
EPA Regions and States that many facility owners or operators will
cooperate in the development of a post-closure permit, while they would
oppose the same conditions in an enforcement order. Additionally,
permit issuance may be advantageous in some situations because it
enables the Regional Administrator or State Director to invoke the
omnibus authority of section 3005(c)(3) of RCRA at facilities with
special environmental needs that are outside the scope of the current
regulations. In these cases, post-closure permits would continue to
provide the best means of addressing the needs of the facility.
EPA has always interpreted sections 3004(a) and 3005 of RCRA to
authorize--but not compel--the issuance of permits to implement post-
closure care requirements at facilities that have ceased operating. As
EPA explained when it first established the post-closure permit
requirement, it ``could have issued regulations * * * that are
enforceable independent of a permit to impose many of the requirements
that apply to a facility after closure * * *'' (47 FR 32366, July 26,
1982). EPA, however, believed that permits would be the most effective
enforcement vehicle, primarily because they facilitate the development
of site-specific conditions tailored to individual waste management
facilities. Id. The U.S. Court of Appeals for the District of Columbia
Circuit has also ruled that the statute authorizes, but does not
require, post-closure permits. (See In re Consolidated Land Disposal
Regulation Litigation, 938 F2d 1386, 1388-89 (D.C. Cir. 1991)).
Today's proposed amendments would eliminate the regulatory
requirement that EPA issue permits to all facilities subject to post-
closure care requirements. This proposal, EPA has concluded, not only
makes policy sense but is fully consistent with the statute, because
the post-closure permit requirement is a regulatory rather than a
statutory construct.
Although EPA is proposing to allow alternatives to post-closure
permits, today's proposed regulations ensure that all substantive
conditions currently imposed through post-closure permits are imposed
at all facilities subject to post-closure care requirements, regardless
of which regulatory or legal authority is used. This proposal specifies
that the Agency must impose at these facilities, through enforceable
legal authorities, the requirements of part 264, subpart F and
facility-wide corrective action. In addition, this proposal would
require that the owner or operator provide to the Agency the same
information required by the permit issuance process. It would also
maintain the requirement for facility-wide corrective action, and it
would require public involvement at the time of remedy selection, if
corrective action were necessary, or when the Agency determines that
corrective action is not required at the facility.
These provisions would ensure that all the substantive requirements
of a post-closure permit would be imposed when an alternative mechanism
was used. In combination with requirements already imposed on interim
status facilities through the part 265 interim status standards, these
minimum requirements would ensure that all aspects of post-closure care
are fully addressed.
C. Section-By-Section Analysis
Today's proposal would modify several provisions of the RCRA
regulations in both the permit issuance procedures of part 270, as well
as the requirements for interim status facilities of part 265. Each
modification is described in detail below.
1. Section 270.1(c)--Use of Alternative Legal Authorities to Address
Post-Closure Care
EPA is proposing two amendments to Sec. 270.1(c). First, the Agency
is proposing to revise Sec. 270.1(c) to provide an alternative to the
requirement that post-closure permits be issued to closed landfills,
waste piles, surface impoundments, and land treatment units, where
post-closure care and corrective action are imposed through an
enforceable alternative authority. Second, EPA is proposing a new
Sec. 270.1(c)(7), which allows the EPA Regional Administrator (or an
authorized State) to use alternate authorities to impose post-closure
care requirements in lieu of a permit. Under this section, the Agency
would be required to impose on post-closure facilities subject to
alternative authorities the basic requirements imposed through post-
closure permits. (These requirements are specified in proposed
Sec. 265.121, described below.) However, the Agency would have the
discretion to impose those conditions through a permit, a RCRA
enforcement authority, a Superfund authority, or a combination of these
or other legal authorities. Similarly, an authorized State could impose
conditions under a State cleanup authority. What is essential, in EPA's
view, is that facilities meet the substantive standards currently
imposed through post-closure permits, not that a specific regulatory
authority be used to impose these standards.
2. Section 265.121--Interim Status Post-Closure Care Requirements for
Facilities Subject to Section 270.1(c)(7)
The current regulations at Secs. 265.117 through 265.120 govern
post-closure care at interim status regulated units that close and
conduct post-closure care without obtaining a permit. Under today's
proposal, regulated units would continue to be subject to the
requirements of part 265 for post-closure care, including the
requirement to obtain a post-closure plan. Following the post-closure
care period, the regulated units would remain in interim status until
and unless interim status were terminated by the Agency through one of
the available means (e.g., final permit determination).
However, the current interim status post-closure care requirements
are in some respects less stringent than post-closure permit
requirements, specifically, the groundwater requirements of part 264,
the facility-wide corrective action requirements, and the public
involvement procedures associated with permit issuance. Therefore, to
assure that facilities that do not obtain a post-closure permit are
subject to the same requirements as those that do, today's proposal
would add a new Sec. 265.121. That section, which would be applicable
to those facilities subject to the requirements of Sec. 270.1(c)(7)
that close and conduct post-closure care without obtaining a permit,
would require that those facilities meet the same substantive
requirements as permitted facilities must meet before the Regional
Administrator can consider the post-closure needs at the facility to be
addressed. Those requirements are described below.
a. Part 264 subpart F ground-water monitoring and corrective action
program (sections 264.90-264.100). Currently, the post-closure permit
imposes part 264, subpart F requirements at closed land disposal units.
Today's proposal would require that post-closure enforcement actions or
other mechanisms used as alternatives to post-closure permits include
conditions imposing part 264, subpart F standards on closed and closing
land disposal units. Part 265 groundwater monitoring requirements for
interim status land disposal units are less comprehensive than those
established under the part 264, subpart F standards for permitted
facilities. Whereas part 265 sets minimum standards for the
installation of detection monitoring wells (e.g., one upgradient and
three downgradient wells), part 264 establishes broader standards for
establishing a more comprehensive monitoring system to ensure early
detection of any releases of hazardous constituents. The specific
details of the system are worked out through the permitting process.
Consequently, compliance with part 264 standards usually results in a
more extensive network of monitoring wells. Similarly, part 265
specifies a limited set of indicator parameters that must be monitored,
while part 264 establishes a more comprehensive approach under which
the owner or operator is required to design a monitoring program around
site-specific indicator parameters. As a result, monitoring systems
designed in accordance with part 264 standards are specifically
tailored to the constituents of concern at each individual site.
Additionally, part 264 compliance monitoring standards are more
comprehensive than part 265 standards both in terms of monitoring
frequency and the range of constituents that must be monitored.
Finally, the part 264, subpart F regulations provide for corrective
action for releases to groundwater whereas part 265 does not.
In light of these differences, the Agency is proposing that all
units subject to post-closure care requirements be required to meet
part 264, subpart F standards. This approach is designed to ensure
equivalent protection of human health and the environment at all
facilities, regardless of which legal authority used to address post-
closure care.
b. Facility-wide corrective action. Under section 3004(u) of RCRA,
which was added to the statute as part of the 1984 Hazardous and Solid
Waste Amendments (HSWA), hazardous waste permits issued after November
8, 1984, must include provisions requiring the facility owner or
operator to take corrective action to address releases of hazardous
waste or hazardous constituents from solid waste management units
(SWMUs) at the facility. Section 3004(v) of HSWA extends corrective
action authority to cover releases migrating off-site; section 3008(h)
provides EPA enforcement authority to require corrective action at
interim status facilities.
EPA has codified corrective action requirements at 40 CFR 264.101
and currently implements these requirements through the permitting
process; at the same time, the Agency has made extensive use of the
section 3008(h) authority to impose corrective action at interim status
facilities. In addition, to facilitate the process, EPA proposed more
extensive corrective action regulations in July, 1990, under a new part
264, subpart S, and recently finalized several sections of that
proposal related to temporary units and corrective action management
units (see 58 FR 8658, February 16, 1993). The subpart S proposal set
forth EPA's interpretation of the statutory requirements at that time.
EPA recognizes that corrective action requirements are a central
aspect of the HSWA amendments and that the post-closure permit
currently provides the primary means of ensuring that corrective action
will be adequately addressed at RCRA land disposal facilities that
close without first receiving an operating permit. In allowing
alternatives to the post-closure permit, EPA has no intention of
undercutting or limiting its corrective action authority or the scope
of the corrective action program. Consistent with this principle,
today's proposal would require that authorities used at post-closure
facilities as an alternative to post-closure permits impose corrective
action requirements consistent with the statute and Sec. 264.101 of the
regulations, as described in this preamble.
Today's proposal would not specify the authorities that EPA or a
State could use to impose corrective action as an alternative to a
post-closure permit--only that the authority must be consistent with
RCRA corrective action requirements. Certainly, RCRA section 3008(h)
orders would be appropriate, but EPA does not believe it makes sense to
limit alternative authorities to this section. For example, many States
(including States not yet authorized for section 3004 (u) and (v)
corrective action authority), have their own cleanup or State Superfund
authorities that are consistent with RCRA corrective action authority.
EPA believes that actions under these authorities should be allowed as
alternatives to post-closure permits, as long as they are consistent
with RCRA corrective action requirements. Similarly, if a facility is
being addressed under a federal Superfund action, and the action
addresses all releases at the site, issuance of a post-closure permit
should be unnecessary.
In requiring facility-wide corrective action consistent with RCRA
section 3004 (u) and (v) provisions, EPA does not intend to require
that alternative authorities use procedures identical to those in EPA's
Subpart S proposal. For example, compliance with the NCP procedures for
remedy selection would satisfy these proposed requirements. EPA wishes
to emphasize, however, that to be considered consistent, an alternative
approach to corrective action at a facility would have to include
facility-wide assessments, and it would have to address possible
releases (including off-site releases) from all solid waste management
units within the facility boundary. Anything less than that, in EPA's
view, would not meet the basic requirements of RCRA sections 3004 (u)
and (v). EPA believes that this proposed approach is appropriate
because it provides reasonable flexibility for regulatory agencies
using available authorities to address environmental problems at RCRA
sites. At the same time, however, the Agency requests comment on this
approach and suggestions for alternatives.
c. Public participation. Section 7004 of RCRA requires public
participation in the permit issuance process. EPA has codified this
requirement and has established specific public participation
procedures for RCRA permitting at 40 CFR part 124. In the case of post-
closure permits, these procedures assure that the public has access to
information gathered by the Agency about the facility, and has an
opportunity to review the Agency's decisions related to the regulated
unit and to facility-wide corrective action. In addition, EPA's permit
regulations in part 270 typically require a permit modification--with
public participation--at the time a corrective action remedy is
selected, if section 3004(u) corrective action is required as part of a
facility's permit.
In developing today's proposal, the Agency sought to assure that by
allowing alternative post-closure mechanisms, the Agency would provide
adequate, mandatory public participation in the post-closure and
corrective action processes. EPA believes that the current interim
status procedures for closure and post-closure plan approval and
modification (Secs. 265.112 and 265.118) provide for acceptable public
participation. While the procedures for plan approval are not identical
to those used in permit issuance, they do require public notice and
provide an opportunity for written public comment; they also include an
opportunity for a hearing.1 In EPA's view, these requirements
ensure a reasonable opportunity for public participation in decisions
that affect long-term care of the regulated unit.
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\1\The specific differences between public participation in
permit issuance and post-closure plan approval are: permits allow a
45-day public comment period, plans allow 30 days; opportunity to
comment must be noticed in local newspapers and through radio spots
for permits, but only in newspapers for plans; the Regional
Administrator is required to hold a public hearing if asked in the
case of permits, but a hearing on a plan is held at the Regional
Administrators discretion; and permit decisions are subject to
Agency appeal procedures, while approved plans are not. Both,
however, may be challenged in the courts.
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At the same time, EPA acknowledges that the public currently has no
absolute assurance that it will have an opportunity to participate in
the corrective action process when corrective action is imposed through
an enforcement order. EPA's enforcement programs have retained
discretion to limit public participation when circumstances require it.
However, where orders will operate in lieu of permits (which always
require public participation), EPA is proposing to limit this
discretion and require a minimum level of public participation for all
facilities, except in rare cases as described below.
In proposing to make public participation mandatory, EPA notes that
many cleanup authorities, including the federal Superfund authority and
a number of State cleanup programs, already provide for significant
levels of public participation in the majority of cases. In the case of
CERCLA actions, procedures for public participation at point of remedy
selection are established in Sec. 300.430(f) of the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP). In addition, the
CERCLA Community Relations Program guidance (``Community Relations in
Superfund, A Handout'') provides for extensive involvement of the
public in Superfund actions. This guidance sets forth a community
relations plan designed to promote two-way communication between the
public and the lead Agency. In the case of corrective action imposed
through RCRA enforcement orders, EPA has issued guidance announcing its
policy to provide opportunity for public involvement at the time of
remedy selection (see ``RCRA Corrective Action Decision Documents: The
Statement of Basis and Response to Comment,'' issued on April 29, 1991,
which is available in the docket for this rulemaking).
Today's proposal would establish, at Sec. 265.121(b), minimum
requirements for public involvement in the remedy selection process.
These requirements would apply to both regulated units and solid waste
management units subject to the requirements of Sec. 270.1(c)(7), at
which closure and/or corrective action is imposed through an
alternative authority, in lieu of a post-closure permit. Section
265.121(b) would require, at the point of remedy selection, public
involvement that includes, at a minimum, the following procedures:
Public notification of the proposed remedy through a major newspaper;
opportunity for public comment (at least 30 days); opportunity for a
public meeting; availability of a transcript of the public meeting;
availability of written summary of significant comments and information
submitted and the EPA or State response; and, if the remedy is
significantly revised during the public participation process, a
written summary of significant changes or opportunity to comment on a
revised remedy selection.
In developing the proposed minimum requirements for public
involvement under an alternate mechanism, the Agency intends to provide
States and Regions the opportunity to continue to use public
participation procedures established under existing authorities,
provided that they meet the requirements in Sec. 265.121(b). Most
Federal and State statutes and regulations already require that
affected communities be informed about and involved in decisions
regarding response to hazardous releases. In developing today's
proposal, the Agency wished to avoid imposing new requirements that
would force EPA and States to amend existing public participation
procedures in order to use an alternate mechanism in lieu of a permit.
The Agency believes that today's proposal establishes minimum
requirements necessary for adequate public involvement that are, at the
same time, likely to be met by most public involvement procedures for
remedy selection. For example, compliance with either the permit
issuance procedures of part 124 or the NCP procedures for remedy
selection would satisfy these proposed requirements. Similarly, use of
public participation procedures imposed under other Federal and State
authorities would also be allowed, if those procedures met the minimum
criteria set forth under Sec. 265.121(b) of today's proposal. The
Agency solicits comment on the requirements for public involvement at
remedy selection proposed today. Specifically, the Agency solicits
comment on State or Federal authorities with public involvement
requirements that would not satisfy today's proposed rule, and on the
adequacy of today's proposed minimum requirements.
While today's proposed rule would require public participation at
the point of remedy selection for facilities subject to
Sec. 270.1(c)(7), the Agency recognizes that there may be cases where
emergency remedial actions may be needed to address immediate threats.
Therefore, while today's proposal would ensure a minimum 30-day public
comment period for corrective action remedies imposed under an
alternative mechanism in most cases, EPA is proposing to allow
reduction or elimination of the public comment period if the Regional
Administrator determines that even a short delay in the implementation
of the remedy would adversely impact human health or the environment.
The Agency anticipates that this discretionary authority will be
invoked only in rare circumstances. Where the Agency finds it is
necessary to implement the remedy prior to the public comment period,
Sec. 265.121(b) of today's proposal would require the Regional
Administrator to solicit public comment on the remedy before making a
determination that the facility's corrective action needs have been
addressed in full.
As an alternative to providing an exemption to the public
involvement procedures for section 3008(h), as described above, EPA
solicits comment on whether to rely on RCRA, CERCLA, and State imminent
and substantial endangerment authorities where immediate action is
necessary.
Also, the Agency recognizes that corrective action at some
facilities subject to Sec. 270.1(c)(7) may have been implemented
through a non-permit authority prior to the effective date of today's
proposal. In these cases, Sec. 265.121(c) would require the Regional
Administrator to evaluate whether the remedy satisfies the requirements
of this rule before considering the facility addressed. This process is
discussed in more detail in section II.C.4. of this preamble.
d. Section 270.27 information requirements. RCRA permitting
regulations do not distinguish between information requirements for
operating permits and post-closure permits. Facilities seeking post-
closure permits must generally provide EPA, as part of their Part B
permit applications, the facility-level information required in
Sec. 270.14 as well as relevant unit-specific information required in
Secs. 270.16, 270.17, 270.18, 270.20, and 270.21. EPA needs this
information to ensure compliance with part 264 requirements during
operation and throughout the post-closure care period. Information
required under Sec. 270.14 includes such areas as general inspection
schedules, floodplain information, the post-closure plan, the notice of
deed or appropriate alternate instrument, closure and post-closure care
cost estimates, site characterization and groundwater monitoring for
land disposal facilities, and exposure information for landfills and
surface impoundments.
The Agency has found that certain of the 270 information
requirements are essential to ensuring proper post-closure while others
are generally less relevant to post-closure. The most important
information for setting long-term post-closure conditions are
groundwater characterization and monitoring data, long-term care of the
regulated unit and monitoring systems (e.g., inspections and systems
maintenance), and information on SWMUs and possible releases.
Therefore, EPA is today proposing to add a new section (Sec. 270.27) to
identify that subset of the Part B application information that must be
submitted for post-closure permits. Under today's proposal, an owner or
operator seeking a post-closure permit would have to submit only that
information specifically required for such permits under newly added
Sec. 270.27, unless otherwise specified by the Regional Administrator.
The specific items required in post-closure permit applications are:
--A general description of the facility;
--A description of security procedures and equipment;
--A copy of the general inspection schedule;
--Justification for any request for waiver of preparedness and
prevention requirements;
--Facility location information;
--A copy of the post-closure plan;
--Documentation that required post-closure notices have been filed;
--The post-closure cost estimate for the facility;
--Proof of financial assurance;
--A topographic map; and
--Information regarding protection of groundwater (e.g., monitoring
data, groundwater monitoring system design, site characterization
information)
--Information regarding solid waste management units at the facility.
In many cases, this information will be sufficient for the
permitting agency to develop a draft permit. However, since RCRA
permits are site-dependent, EPA believes it is important that the
Regional Administrator have the ability to specify additional
information needs on a case-by-case basis. Accordingly, to ensure
availability of any information needed to address post-closure care at
surface impoundments (Sec. 270.17), waste piles (Sec. 270.18), land
treatment facilities (Sec. 270.20) and landfills (Sec. 270.21),
Sec. 270.27 of today's proposal would authorize the Regional
Administrator to require any of the Part B information specified in
these sections in addition to that already required for post-closure
permits at these types of units. This approach would enable the
Regional Administrator to require additional information as needed but
would not otherwise compel the owner or operator to submit information
that is irrelevant to post-closure care determinations.
To ensure substantive equivalency of authorities used in lieu of
post-closure permits, today's proposal would require that part 270
information specifically required for post-closure permits must also be
provided upon request by the Agency when an alternative authority is
used in place of a post-closure permit. EPA requests comment on this
approach.
3. Post-Closure Plans and Permits
EPA anticipates that, in many cases where a post-closure permit is
inappropriate or difficult to issue, the regulatory agency will choose
to issue a post-closure plan under interim status authorities to
address long-term care of the regulated unit (e.g., groundwater
monitoring and maintenance of the cap) and a section 3008(h) order for
facility-wide corrective action. EPA generally believes that this
approach provides a reasonable alternative to a post-closure permit, as
long as the substantive post-closure care requirements of proposed
Sec. 265.121 are satisfied.
EPA believes that, for the most part, proposed Sec. 265.121
requirements can be satisfied using this approach. The section 3008(h)
corrective action order would be structured to address all SWMUs on the
facility, and public participation, under EPA's current policy, would
occur at the time of corrective action remedy selection. The post-
closure plan approval would be subject to public comment, in accordance
with Sec. 265.118, and it would in most respects impose appropriate
long-term care requirements.
To assure that the post-closure plan will provide the same degree
of environmental protection as would a permit, EPA is proposing in
Sec. 265.121(a)(1) to provide EPA the authority to impose part 264
groundwater monitoring requirements through the part 265 post-closure
plan process. In addition, proposed Sec. 265.121(a)(3) would provide
EPA the authority to require submission of information necessary to
impose part 264 groundwater monitoring requirements through a post-
closure plan. This authority would expand the options available to the
Agency to address post-closure facilities, without affecting the level
of environmental protection or public participation.
4. Alternate Authorities Issued Prior to the Effective Date of the
Final Rule
It is likely that prior to final promulgation of this rule, EPA and
authorized States will have initiated and, in some cases, completed
actions under a variety of regulatory authorities, other than post-
closure permits, to address post-closure and corrective action at
facilities currently subject to post-closure permit requirements. It
also is likely that those actions, if taken after promulgation, would
have satisfied the requirements of this rule. The Agency does not
believe it would make sense to require EPA or the State to go through
procedural steps to satisfy regulatory requirements where environmental
needs at a facility have been addressed adequately. Therefore, the
Agency is proposing, under Sec. 265.121(c), a procedure for the Agency
to review activities initiated or conducted in full prior to
promulgation of this rule, to determine whether the requirements
applicable to the facility have been met.
Under proposed Sec. 265.121(c), EPA would provide public notice of
its activities at the facility and its determination that the facility
has been addressed, and solicit public comment. After review of public
comment, the Agency would determine whether the activities conducted at
the facility were adequate to satisfy the requirements of part 265. If
the activities were found to be deficient, EPA would impose additional
requirements either by amending the existing order, issuing a new
order, modifying the post-closure plan, or requiring a post-closure
permit.
III. Request for Public Comment on Closure and Post-Closure Related
Issues
Today's notice proposes several amendments to the regulations
governing closure and post-closure care. It is important to clarify
that the regulatory amendments proposed today represent an initial step
in a broader effort to improve the existing closure process. The Agency
recognizes the need to amend the existing regulations beyond what is
proposed today.
Specifically, the Agency recognizes a need to more effectively
integrate the closure and corrective action activities at facilities,
and to have closure requirements and timeframes that reflect the
complexities of such activities. In the following discussion, the
Agency solicits comment on both of these issues. In addition to
soliciting comment on both specific issues discussed below, the Agency
also solicits general comment on the closure process, including
impediments to implementing the current requirements and options to
improve the process.
A. Regulatory Timeframes
As was discussed above, the current closure regulations were
promulgated before the Agency had any experience with closure under
RCRA standards; not surprisingly, therefore, they do not always reflect
the complexity of closure activities. One oversimplification in the
current closure process is the imposition of timeframes for closure
activities and closure plan approval. Expectations built based on these
timeframes (as well as other factors) have caused GAO to criticize the
pace at which the Agency is bringing facilities to closure.
In a report issued in May of 1991, entitled Progress in Closing and
Cleaning Up Hazardous Waste Facilities, GAO criticized the Agency's
progress in completing closure activities at the approximately 1000
land disposal facilities that lost interim status in 1985. GAO pointed
to the regulatory timeframes in the closure process and determined that
the closure activities should be complete at those facilities. In a
later report entitled Impediments Delay Timely Closing and Cleanup of
Facilities, issued in April of 1992, GAO expressed concerns that owners
and operators can almost indefinitely delay the closure process. GAO
suggested that the Agency should use the regulatory closure timeframes
to prevent prolonged cleanup activities.
The Agency disagrees that the current regulatory timeframes for
closure completion could be used to ensure that closure is completed
within those timeframes. Rather, the Agency believes, as was discussed
earlier in this preamble, that in many cases the timeframes for closure
completion do not reflect the technical complexity of the process. In
the following discussion, the Agency solicits comment on options for
removing or extending the timeframes in the current closure
regulations.
1. Closure Plan Review and Approval Process
In 1982, the Agency promulgated regulations that included
timeframes for review and approval of closure plans. At the time, the
Agency believed the timeframes were reasonable. Under these
regulations, EPA must approve, modify, or disapprove a closure plan
within 90 days of its initial submission. Upon disapproval of the plan,
the owner or operator must submit a new or revised plan within 30 days.
The Agency then has 60 days to approve or modify the resubmitted plan.
These timeframes were developed before the Agency had experience
implementing closure, and prior to the enactment of HSWA. Since that
time, experience has indicated that closures are often more complex
than anticipated, particularly for older units requiring corrective
action. Consequently, the timeframes established in the regulations
often are not met by the Agency and the regulated community. Based on
this experience, the Agency today seeks comment on the need to revise
existing timeframes, and on alternative approaches to the review and
approval process.
EPA specifically seeks comment on the option of eliminating
mandatory timeframes. This change would allow for case-by-case
variation in the time allowed for closure plan review and revision. The
time required to process individual closure plans varies widely
according to the scope and complexity of the closure activity, the
quality of the plan submitted, and the extent of revision required. An
additional important variable is the need to coordinate closure with
corrective action required at the site. In addition to providing
flexibility to account for site-specific variation, removing timeframes
would allow EPA and the States to prioritize their workloads and to
process closure plans on a worst-site first basis.
On the other hand, EPA recognizes the need to maintain
accountability for timely and effective implementation of RCRA.
Timeframes provide a simple, straightforward means of auditing
performance and, by removing them, the Agency may be removing an
important means of insuring accountability. In light of this concern, a
second alternative may be to retain but extend the current timeframes
to more accurately reflect time needed to complete specific closure
activities. The Agency is not now suggesting alternate time periods,
but solicits comment on specific timeframes that may be more reasonable
and appropriate.
2. Timeframes for Completion of Closure Activities
Under existing regulations, facilities must complete closure within
180 days of receipt of the final volume of hazardous waste, or 180 days
after the closure plan has been approved, whichever is later.
Extensions may be approved upon demonstration of need. These timeframes
are designed to prevent closures from dragging on for indefinite
periods. The Agency is concerned that if closure is not addressed in a
timely manner, there is an increased likelihood of releases from the
unit into the environment, and that the financial situation of the
facility may deteriorate such that it will be unable to complete
closure activities on its own.
On the other hand, the Agency has found that the 180-day time
period has been insufficient for a majority of closed and closing RCRA
facilities. Activities required to complete closure (e.g. securing
contracts, developing plans and specifications, bidding and
construction) have proven to be more time consuming and complicated
than originally anticipated. As noted above, the size and scope of the
closure activities are important variables that may significantly
affect time required to achieve final closure. Appropriate timeframes
may also vary widely based on the type of remedies pursued.
Bioremediation or waste fixation, for example, may constitute
effective, albeit longer-term means of meeting closure performance
standards. Another important consideration that frequently warrants
extension of the closure period is the need to schedule closure
activities to correspond with required corrective action.
Extensions may be granted if the owner or operator can demonstrate
need in accordance with existing provisions. EPA is concerned, however,
that extensions may have become the rule rather than the exception.
Based on these concerns, EPA is considering revision of the 180-day
closure completion period. Given the site-specific nature of time
needed to complete closure, EPA is considering proposing that time
periods for completing closure be developed on a facility specific
basis through the closure plan process. Another alternative would be to
establish a longer more appropriate mandatory time period for
completing closure.
Under any alternative, EPA believes it is appropriate to retain the
existing provision that, in instances where closure will take longer
than 180 days, the owner or operator must certify that he has taken and
will continue to take all steps to prevent threats to human health and
the environment.
EPA solicits comments on whether the 180-day closure completion
period should be revised and, if so, how it should be amended to
provide necessary flexibility while ensuring effective and timely
closures.
B. Regulatory Distinction Between Regulated Units Undergoing Corrective
Action and Non-Regulated Solid Waste Management Units
The universe of closed and closing regulated land disposal units
includes a number of units that have released hazardous wastes and
constituents into soils and groundwater surrounding the unit. In terms
of the environmental risk associated with these regulated units, and
the activities necessary to address that risk, these units are
indistinguishable from non-regulated solid waste management units. In
many cases, particularly in the case of unlined land-based units,
closure of the regulated unit will involve many of the same activities
as do corrective actions conducted under the authority of Sec. 264.101
or RCRA section 3008(h). However, in the case of regulated units, the
regulations of parts 264 and 265 governing groundwater monitoring,
closure and post-closure care, and financial assurance continue to
apply during cleanup.
The Agency is concerned that this dual regulatory scheme often
limits the Agency's ability to determine the best remedy at regulated
units. The Agency believes that there are many situations where
allowing the Regional Administrator to make a site-specific
determination, rather than strictly applying the full range of parts
264 and 265 requirements, would better serve the goal of expedited
closure of the unit.
Consider, for example, the situation where EPA or an authorized
State addresses, through its corrective action authorities, a
collection of adjacent units releasing hazardous constituents to the
environment. If one of those units were a regulated unit, while the
others were non-regulated solid waste management units, two regulatory
regimes would arguably apply. Under the current regulatory structure,
EPA might select remedies for the solid waste management units through
the proposed 40 CFR subpart S process, while the regulated unit would
remain subject to part 264 and part 265 closure and groundwater
monitoring requirements. Thus, in one case groundwater cleanup levels
would be selected through a balancing process comparable to
Superfund's, while for the regulated unit, the owner or operator might
be required to clean the site up to background, or seek an Alternative
Concentration Limit under Sec. 264.94. In this case, EPA does not
believe retaining a dual regulatory structure serves the goal of
expedited cleanups. Rather, it believes that the corrective action
process, which was specifically designed for remedial activities, would
be more appropriate to address the closed regulated units.
In other cases, the regulations might prevent the owner or operator
from closing the unit in a manner that meets the closure performance
standard of Secs. 264.111 and 265.111. For example, where waste has
been removed from a unit but contaminated soils remain, the remedy that
might best prevent future releases from the unit could include
installation of an infiltration system and flushing of soils over time
to remove remaining contamination. However, the requirement of
Secs. 264.310 and 265.310 that the unit be covered with an impermeable
RCRA cap would arguably rule out or significantly complicate the
remedy, because soils could not be flushed beneath a cap, and the
contaminated soils would remain untreated.
The Agency is considering amendments to the requirements of parts
264 and 265 that would reduce or eliminate the regulatory distinction
between closed or closing regulated units that require corrective
action and other solid waste management units. EPA, therefore, solicits
comment on whether to allow the Regional Administrator to establish
groundwater monitoring, closure and post-closure care, and financial
assurance requirements on a site-specific basis at regulated units
addressed through the corrective action process. Under this approach,
the Regional Administrator would look to the corrective action process,
rather than the unit-specific technical standards designed for
regulated units, to determine remedial objectives and standards. This
would allow EPA to develop, through the corrective action process, a
consistent overall remedy, tailored to the specifics of the situation.
The Agency specifically solicits the following information:
(1) Situations where it is important to retain the regulatory
distinction between regulated units undergoing corrective action and
other solid waste management units,
(2) Specific requirements applicable to regulated units that should
be retained (if any),
(3) Situations where it is important to eliminate the distinction
between regulated units undergoing corrective action and other solid
waste management units, and
(4) Specific requirements applicable to regulated units that impede
cleanup at those units.
IV. Proposed Provisions Related to State Enforcement Authority to
Compel Corrective Action at Interim Status Facilities
A. Background Information
The HSWA amendments of 1984 substantially expanded corrective
action authorities for both permitted RCRA facilities and facilities
operating under interim status. Section 3004(u) requires that any
hazardous waste management permit issued after November 8, 1984,
address corrective action for releases of hazardous waste or hazardous
constituents from any solid waste management unit (SWMU) at the
facility. Section 3004(v) extends corrective action authority to cover
releases migrating off-site. Section 3008(h) provides EPA with
enforcement authority to require corrective action at interim status
facilities. Sections 3004 (u) and (v) became immediately effective in
all States and are administered by EPA until States become authorized
for HSWA corrective action (see section VI of this preamble for further
discussion). Section 3008(h) also became effective immediately.
On July 15, 1985, and December 1, 1987, the Agency codified in
Sec. 264.101 the requirements of sections 3004 (u) and (v) for
addressing corrective action at permitted facilities (see 50 FR 28747
and 52 FR 45788). As a result, States wishing to obtain or retain
authorization to implement subtitle C hazardous waste management
programs must adopt permitting authorities that are at least as
stringent as the provisions in Sec. 264.101.
Prior to today's rule, however, the Agency had not proposed that
States adopt as part of an adequate enforcement program, the authority
to issue enforcement orders to compel corrective action at interim
status facilities (section 3008(h) authority). While many States may
have authorities comparable to section 3008(h), they have not been
reviewed by the Agency through the State authorization process. EPA is
proposing today to require States to adopt such authority. As with all
other EPA enforcement authorities, EPA will maintain it's authority to
implement section 3008(h).
B. Summary of Proposed Provisions
The Agency, through today's proposal, would require States to
adopt, as part of an adequate enforcement program, the authority to
issue enforcement orders to compel corrective action at interim status
facilities. States will now need to be authorized for both corrective
action at permitted facilities under authorities comparable to sections
3004 (u) and (v) and at interim status facilities under an authority
comparable to section 3008(h). States may choose to enhance their
enforcement program by adopting an authority comparable to section
3008(h) prior to authorization for corrective action at permitted
facilities. For example, a State with a cleanup authority that can
address interim status facilities could include such authority as part
of its adequate enforcement program, even if it did not yet have
authority to address corrective action at permitted facilities.
The Agency would require that the State interim status enforcement
authorities be comparable in scope to section 3008(h) authority.
Section III.C. of this preamble describes conditions that a State
enforcement authority would have to meet to be considered comparable to
section 3008(h) authority.
C. Analysis and Discussion
The RCRA regulations at Sec. 271.16 specify the requirements for
enforcement authorities that States must meet in order to gain and
maintain authorization to administer the RCRA program. The Agency is
proposing to amend the requirements for enforcement authorities at
Sec. 271.16 to require States to have authority to compel corrective
action at interim status facilities.
The Agency believes that requiring States to adopt such authority
will enhance the State's role as the primary implementing authority for
the RCRA Subtitle C program. Furthermore, today's proposal will ensure
that States have the full range of RCRA clean up authority granted EPA
by Congress, and, therefore, will promote a more complete and
consistent delegation of the corrective action program to the States.
As currently practiced, delegation of the corrective action program to
address permitted facilities, but not interim status facilities, causes
confusion in the regulated community and makes it more difficult for
the States to establish priorities and manage resources efficiently.
Furthermore, redundant or inconsistent regulation may result. Today's
proposal enhances the State's ability to take the lead for RCRA cleanup
activities at all RCRA treatment, storage, and disposal facilities--
interim status as well as permitted. Furthermore, EPA believes that
this will promote consistency between corrective actions compelled by
the Federal and State corrective action programs. The proposed
regulations will ensure that equivalent corrective action activities
are implemented at interim status facilities, regardless of whether the
action is initiated by EPA or a State.
The Agency believes that most States, especially those authorized
for corrective action under sections 3004 (u) and (v), may already have
the type of enforcement authority that would be required by today's
proposal. EPA specifically requests comment from States as to whether
the Agency is correct in this assumption. In addition, the Agency
requests comment regarding the difficulty of obtaining such an
enforcement authority in States where it does not already exist.
Requiring States to obtain the ability to issue interim status
corrective action orders also complements today's proposal to allow
alternative mechanisms (i.e., orders) to replace post-closure permits.
Today's proposal ensures that all States have authority to address both
corrective action and post-closure care at interim status facilities.
The Agency will retain its ability to issue section 3008(h) orders.
The Agency believes that in many cases, it will be more efficient to
continue to implement section 3008(h) orders already in place, even if
the facility is located in a State which has adopted a corrective
action order authority as part of their adequate enforcement program.
Issuance of a State corrective action order to an interim status
facility would not preclude subsequent corrective action requirements
pursuant to sections 3004 (u) and (v). Although EPA would retain the
authority to issue section 3008(h) orders to interim status facilities,
the Agency anticipates that such actions would be filed in States
authorized for interim status corrective action authority only after
careful consideration and only in cases that meet any of the following
criteria:
(1) The State fails to take timely and appropriate action;
(2) The State's action is clearly inadequate; or
(3) Cases that are of national significance. Of course, the Agency
will consider using its section 3008(h) authority to compel corrective
action if requested by a State.
The Agency does not intend to duplicate past efforts conducted as
part of the State authorization process for HSWA corrective action
through this rulemaking. Where appropriate, the Agency will review
previously submitted State corrective action authorization packages for
permitted facilities to evaluate a State's interim status corrective
action order authority. However, it may be necessary for States to
augment previous authorization packages with supplemental information
to enable the Agency to evaluate fully such order authorities.
Under this proposed rule, States that have not yet been authorized
for corrective action at permitted facilities could apply for
authorization for corrective action authority at interim status
facilities. In such a case, EPA would require the State to develop a
Memorandum of Agreement (MOA) with EPA to provide the Agency the
opportunity to comment on draft orders prior to issuance. Prior to
today's proposal, EPA has not established a right to comment on draft
orders. However, in the case where States are not yet authorized for
corrective action at permitted facilities, the Agency believes that it
would be important to have such opportunity to ensure consistent
implementation of the RCRA corrective action program. To accommodate
variations in State procedural rules, EPA would allow these States and
the Regions to decide exactly how and when EPA would submit comments on
State orders in the State/EPA MOA.
D. EPA's Interpretation of the Scope of Section 3008(h)
The Agency uses section 3008(h) authority to address releases at
interim status facilities authorized to operate under section 3005(e)
of RCRA. In a December 16, 1985, memorandum from J. Winston Porter,
then Assistant Administrator of the Office of Solid Waste and Emergency
Response, ``Interpretation of Section 3008(h) of the Solid Waste
Disposal Act,'' EPA interpreted section 3008(h) to enable the Agency to
respond to releases of hazardous waste or hazardous constituents at
facilities that have, had, or should have had authorization to operate
under interim status by taking either judicial or administrative
action. States must demonstrate that their authority can address an
equally broad universe of facilities, through either judicial or
administrative action, and that their order authorities, at a minimum,
meet the criteria discussed below.\2\
---------------------------------------------------------------------------
\2\The Agency's interpretation of the corrective action
authorities under section 3008(h) and sections 3004 (u) and (v) are
virtually identical. Therefore, criteria discussed in this section
related to the Agency's interpretation of section 3008(h) are
applicable to the discussion of sections 3004 (u) and (v) in section
IV of this preamble, unless otherwise noted.
---------------------------------------------------------------------------
1. Definition of Facility
In a recent rule, (Corrective Action Management Units and Temporary
Units (58 FR 8658, February 16, 1993)), EPA defined ``facility'' for
corrective action purposes as ``all contiguous property under the
control of the owner or operator seeking a permit under Subtitle C of
RCRA.'' The Agency interprets ``facility'' to have the same meaning
under section 3008(h). EPA is proposing that States must demonstrate
that their cleanup order authorities contain a definition of
``facility'' that is at least as broad as that available under section
3008(h) or that the State authority otherwise has a scope as broad as
section 3008(h).
2. Definition of Release
While the statute does not define the term ``release,'' the Agency
has interpreted the term to be at least as broad as the definition of
release under CERCLA section 101 (22). The Agency considers a release
to be any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into
the environment. The legislative history (***) also makes it clear that
the term release is not limited to releases to ground water. Therefore,
the Agency uses section 3008(h) to address releases of hazardous waste
or hazardous constituents\3\ from a facility. EPA is proposing that
States demonstrate that their corrective action order authorities
include a definition of release that is as broad as that being used by
EPA under section 3008(h), or otherwise has the authority to address
all ``releases'' as defined under that section.
---------------------------------------------------------------------------
\3\Hazardous constituents are the substances listed in 40 CFR,
Part 261, Appendix 8.
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3. Off-Site Releases
EPA interprets section 3008(h) to include the responsibility to
address corrective action beyond the facility boundaries as set out in
section 3004(v). Section 3004(v) requires owners and operators to take
corrective action beyond the facility boundary where such action is
necessary to protect human health and the environment unless the owner
or operator of the facility demonstrates that, despite best efforts, it
is unable to obtain the necessary permission to undertake such action.
EPA proposes to require States to be able to impose similarly stringent
requirements.
4. Compelling Compliance
In cases of failure to comply with an order issued under section
3008(h) of RCRA, EPA may assess a civil penalty of up to $25,000 for
each day of non-compliance. Section 3008(h) also allows EPA to commence
a civil action for appropriate relief including a temporary or
permanent injunction, or a suspension or revocation of a facility's
authority to operate under interim status.
Before States enforcement programs can be deemed adequate under
today's proposal (i.e., authority to address corrective action at
interim status facilities), they must have the ability, either judicial
or administrative, to assess and collect civil penalties. Current
requirements for adequate enforcement programs found in Secs. 271.15
and 271.16, require States to have administrative or judicial authority
to assess penalties up to $10,000 per day. Although section 3008(h)
enables the Agency to assess penalties up to $25,000 per day, at this
time, EPA is not proposing to require States programs to meet the
penalty amounts currently specified in section 3008(h). However, the
Agency is seeking comment on whether Secs. 271.15 and 271.16 should be
amended to require States to demonstrate that their penalty authority
is consistent with EPA's (the ability to collect penalties of up to
$25,000 per day for non-compliance with RCRA and/or its regulations).
In addition, EPA will accept any State authority as part of their
adequate enforcement program that allows assessment and collection of
penalties for non-compliance with a cleanup order. States must be able
to apply such penalty authority to facilities subject to interim status
requirements under Subtitle C.
Today's proposal would also require States to demonstrate that they
have the ability to suspend or revoke a facility's authority to operate
under interim status and commence a civil action for appropriate
relief, including a temporary or permanent injunction under the cleanup
order authority or under a separate authority that can be applied to
interim status facilities.
5. Application of Order Authority
EPA believes that State enforcement programs will be enhanced by
requiring that such programs have the authority to use orders to
address corrective action at interim status facilities. To provide
States flexibility to satisfy this newly proposed requirement for
authorization, EPA would allow States to request authorization for any
State law or enforcement authority that meets the minimum requirements
of section 3008(h) as discussed earlier in this section of the
preamble.
Furthermore, the Agency has found that in some States, those
agencies responsible for the RCRA program may not be responsible for
enforcing RCRA order requirements. For example, the State's interim
status corrective action orders might only be enforceable through the
State Attorney General's Office. In this case, a Memorandum of
Agreement (MOA) would be required between the two State agencies to
allocate responsibilities for any necessary enforcement. Such MOA must
be available for Agency review.
In order to facilitate authorization of State enforcement programs,
the Agency requests comment on whether or not it would be appropriate
to provide interim authorization for the corrective action order
authority as proposed in today's rule.
V. Request for Comment on Authorizing States to Use State Orders to
Impose Corrective Action at Permitted Facilities
In the course of authorizing States for sections 3004 (u) and (v)
authority, the Agency has recognized that some States would like to
compel corrective action at permitted facilities (all TSD facilities)
through a State order, in lieu of writing specific permit conditions to
implement section 3004 (u) and (v). For example, a State that has years
of experience implementing a broad and powerful cleanup order authority
may prefer to rely on this authority rather than imposing corrective
action through permits; or a State that is already requiring facility-
wide cleanup through an order issued under a State statute may find
that at the time of permit issuance, no additional permit requirements
are necessary.
To ensure that such cleanup orders meet the requirements of
sections 3004(u) and (v), EPA would require States to assess the
completed cleanup conducted under an order against the requirements of
sections 3004(u) and (v). In addition, such orders must be incorporated
by reference in the permit, which means the State's normal permit
appeal procedures apply to the provisions of the order. Finally, the
permit would need to include ``reopener'' language to ensure that if
the requirements of sections 3004(u) and (v) were not met, the State
would have the opportunity to modify the permit to require any
additional work.
EPA is seeking comment on whether this concept (i.e., using orders
in lieu of section 3004(u) and (v) permit conditions) should be made
available to the States as an option for implementing corrective
action, and whether it would be useful to facilitate cleanups and
provide flexibility to States seeking authorization for corrective
action. If this concept were eventually adopted, States wishing to use
cleanup order authority as the principal vehicle for corrective action
at permitted facilities would have to demonstrate to EPA that the order
authority is at least as broad as the requirements of sections 3004(u)
and (v). The specific requirements for section 3004(u) and (v) can be
found under the similar discussion of section 3008(h) requirements
found in section IV. of this preamble. Please note, however, that the
Agency is not expanding its interpretation of section 3008(h) authority
to include permitted facilities. Rather, the Agency believes that some
States may have very broad authorities that can address both interim
status and permitted facilities.
VI. Public Participation
It is the Agency's policy to provide a meaningful opportunity for
members of the public to be informed of, and participate in, decisions
that affect them and their communities. This policy applies to
corrective action conducted under both orders and permits.
In this notice, the Agency is proposing to:
(1) Allow the use of orders in lieu of post-closure permits, and
(2) Require States to adopt authority, as part of their authorized
programs, to address corrective action at interim status facilities.
Furthermore, the Agency has asked for comment on allowing States to
address corrective action through order authorities in lieu of sections
3004(u) and (v) at permitted facilities. The Agency would involve the
public in each of these scenarios through the following procedures.
A. Public Participation Requirements When Issuing a Section 3008(h)
Order in Lieu of a Post-Closure Permit
Under today's proposal, all orders issued in lieu of post-closure
permit conditions, in conformance with proposed Sec. 270.1(c)(7), must
follow the public participation procedures of 40 CFR part 121, which
are discussed in section V.A.2.c. of this preamble.
B. Public Participation Requirements for State Corrective Action Orders
at Interim Status Facilities
Today's proposal would require States to obtain the ability to
address corrective action at interim status facilities with an order
authority. Current Agency policy strongly encourages that the
opportunity for public participation be provided prior to final remedy
selection.4 Therefore, States seeking authorization for 3008(h)
order authority must have a rule or a policy for public participation
that is consistent with EPA's current policy.
---------------------------------------------------------------------------
\4\ This policy reflects section 7004(b) of RCRA, which requires
EPA to provide for and encourage public participation in RCRA
actions, including enforcement.
---------------------------------------------------------------------------
At this time, the Agency is also asking for comment on whether it
would be appropriate to mandate the use of public participation through
regulation (specifically the public participation regulations proposed
under today's rule at section V.A.2.c. (40 CFR part 121)), for all
orders addressing RCRA corrective action at interim status facilities.
C. Public Participation Requirements for Orders Used to Address
Corrective Action at Permitted Facilities in Lieu of Sections 3004(u)
and (v)
The Agency is asking for comment on whether it would be appropriate
to allow State corrective action order authorities to address
corrective action at permitted facilities in lieu of sections 3004(u)
and (v). States seeking to be authorized for such authority would have
to demonstrate that their cleanup order authority provides for public
participation prior to final remedy selection. The Agency solicits
comment on whether it should require that those public participation
requirements be equivalent to the requirements of parts 124 and 270, or
whether it should approve the use of alternative procedures.
VII. Effect of Today's Proposed Rule on State Authorization
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State (See 40 CFR
part 271 for the standards and requirements for authorization).
Following authorization, EPA retains the enforcement authorities of
sections 3008, 7003, and 3013 of RCRA, although authorized States have
primary enforcement responsibility.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final authorization administered its hazardous waste program
entirely in lieu of the Federal program. The Federal requirements no
longer applied in the authorized State, and EPA could not issue permits
for any facilities in a State where the State was authorized to permit.
When new, more stringent Federal requirements were promulgated or
enacted, the State was obligated to enact equivalent authority within
specified timeframes. New Federal requirements did not take effect in
an authorized State until the State adopted the requirements as State
law.
In contrast, under section 3006(g) of RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time they take effect in unauthorized States. EPA is
directed to carry out those requirements and prohibitions in authorized
States, including issuance of permits, until the State is granted
authorization to do so. While States must still adopt more stringent
HSWA-related provisions as State law to retain final authorization, the
HSWA requirements apply in authorized States in the interim.
B. Effect of Today's Proposed Revisions to Closure and Post-Closure
Requirements on State Authorizations
This rule proposes revisions to the post-closure requirements under
HSWA and non-HSWA authorities. The proposed requirements in
Secs. 265.110, 265.121 (except for paragraph 265.121(a)(2)), 270.1, and
270.27 are proposed under non-HSWA authority. Thus, those requirements
would become immediately effective only in States that do not have
final authorization, and would not be applicable in authorized States
unless and until the State revises its program to adopt equivalent
requirements. Section 265.121(a)(2) is proposed under HSWA authority.
Thus, that section would become immediately effective in all States.
In general, 40 CFR 271.21(e)(2) requires States that have final
authorization to modify their programs to reflect Federal program
changes and to subsequently submit the modifications to EPA for
approval. It should be noted, however, that authorized States are only
required to modify their programs when EPA promulgates Federal
standards that are more stringent or broader in scope than the existing
Federal standards. Section 3009 of RCRA allows States to impose
standards more stringent than those in the Federal program. For those
Federal program changes that are not more stringent or reduce the scope
of the Federal program, States are not required to modify their
programs (See 40 CFR 271.1(i)).
The provisions of today's rule related to post-closure permit
requirements are not more stringent than the existing Federal
requirements. Therefore, authorized States are not required to modify
their programs to adopt requirements equivalent to the provisions
contained in today's proposed rule. If the State does modify its
program, EPA must approve the modification for the State requirements
to become subtitle C RCRA requirements.
C. Effect of Today's Proposed Revisions to Requirements for Enforcement
Authority on State Authorizations
1. Requirement to Adopt Provisions of Today's Proposal
The provisions of today's rule requiring States to adopt
enforcement authorities comparable to section 3008(h) are more
stringent than the current Federal program. Therefore, States wishing
to seek or retain authorization would be required to adopt those
provisions.
2. Effect of Proposed Rule on Federal Enforcement Authorities in States
that Obtain Authorization for Today's Proposed Provisions
Since 1980, EPA has required States to adopt civil and criminal
enforcement authorities to enforce violations of authorized State
statutes and regulations. EPA's authority to use its own enforcement
authorities, however, does not terminate when it authorizes a State's
enforcement program.
Section 3008(a) allows EPA to enforce any ``requirement'' of
subtitle C. This provision allows EPA to bring administrative and/or
judicial enforcement actions to enforce subtitle C requirements even in
States authorized to implement subtitle C programs in lieu of the
federal program. (Section 3008(a)(2) clearly reflects this authority.)
EPA has always used this authority sparingly because it believes States
should take the lead role in enforcing their authorized programs.
Nevertheless, EPA's continuing enforcement authority can be an
essential tool in ensuring that the regulated community meets its
obligations to manage hazardous waste in a manner that provides
adequate protection for human health and the environment. For the same
reasons, EPA will retain its authority to issue corrective action
orders to interim status facilities under section 3008(h).
VIII. Regulatory Impact Analysis
A. Executive Order 12866
Under Executive Order 12866, which was published in the Federal
Register on October 4, 1993 (see 58 FR 51735), the Agency must
determine whether a regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under the terms of Executive Order 12866, OMB has notified EPA that
it considers this a ``significant regulatory action'' within the
meaning of the Executive Order. EPA has submitted this action to OMB
for review. Changes made in response to OMB suggestions or
recommendations are documented in the public record for this rulemaking
(see Docket # F-94-PCPP-FFFFF).
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. at the
time the Agency publishes a proposed or final rule, it must prepare a
Regulatory Flexibility Analysis that describes the impact of the rule
on small entities, unless the Administrator certifies that the rule
will not have significant economic impact on a substantial number of
small entities. The provisions of today's rule would expand the options
available to address post-closure care so that a permit would not be
required in every case, would impose no requirements on owners and
operators in addition to those already in effect--nor would the
provisions of this proposal that would require States to adopt, as part
of an adequate enforcement program, authority to compel corrective
action at interim status facilities. Therefore, pursuant to 5 U.S.C.
601b, I certify that this regulation will not have significant economic
impact on a substantial number of small entities.
C. Paperwork Reduction Act
The recordkeeping and reporting requirements of this proposed rule
would replace similar requirements already promulgated. Thus, this rule
imposes no net increase in recordkeeping and reporting requirements. As
a result, the reporting, notification, or recordkeeping (information)
provisions of this rule do not need to be submitted for approval to the
Office of Management and Budget (OMB) under section 3504(b) of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects
40 CFR Part 264
Air pollution control, Hazardous waste, Insurance, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Surety bonds.
40 CFR Part 265
Air pollution control, Hazardous waste, Insurance, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Surety bonds, Water supply.
40 CFR Part 270
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Indians--lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Dated: October 25, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, chapter I, title 40 of the
Code of Federal Regulations is proposed to be amended as follows:
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
2. Section 264.90 is amended by adding a new paragraph (e) to read
as follows:
Sec. 264.90 Applicability.
* * * * *
(e) The regulations of this subpart apply to all owners and
operators subject to the requirements of Sec. 270.1(c)(7) of this
chapter to obtain either a post-closure permit or equivalent mechanism.
Where these facilities are addressed through mechanisms other than a
permit, references to ``in the permit'' in this subpart mean in
whatever mechanism the Agency uses to implement the post-closure
requirements. In the case of unpermitted facilities that are required
by Sec. 265.121 of this chapter to comply with the requirements of this
section, any necessary corrective action will be specified in the
enforcement order or other enforceable document issued by the Agency in
lieu of a post-closure permit.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935, and 6936.
2. Section 265.110 is amended by adding a new paragraph (c) to read
as follows:
Sec. 265.110 Applicability.
* * * * *
(c) Section 265.121 applies to owners and operators of units that
are subject to the requirements of Sec. 270.1(c)(7) of this chapter and
do not obtain a post-closure permit for the unit.
3. A new Sec. 265.121 is added to subpart G to read as follows:
Sec. 265.121 Additional post-closure requirements.
(a) The Agency will impose the following additional requirements on
owners or operators that do not obtain a post-closure permit but are
subject to post-closure care requirements:
(1) The requirements of Secs. 264.90-264.100 of this chapter;
(2) Facility-wide corrective action, consistent with Sec. 264.101
of this chapter;
(3) The information submission requirements of Sec. 270.27 of this
chapter;
(b) The Regional Administrator must either:
(1) Provide opportunity for public participation, at the point of
remedy selection if corrective action is required at the facility, or
upon making a determination that corrective action is not needed, that
includes the following:
(i) Publication of a notice of availability and a brief analysis of
the proposed remedy, or notice of the determination that corrective
action is not needed, in a major local newspaper of general
circulation;
(ii) A reasonable opportunity, not less than 30 calendar days, for
public comment and, upon timely request, extend the public comment for
a period by a minimum of 30 additional days;
(iii) Opportunity for a public meeting to be held during the public
comment period at a location convenient to the population center
nearest the site at issue;
(iv) A tape or written transcript of the public meeting available
to the public;
(v) A written summary of significant comments and information
submitted during the public comment period and the EPA or State
response to each issue available to the public;
(vi) In the written summary required in paragraph (b)(1)(v) of this
section, a discussion of significant changes in documentation
supporting the final remedy selected or a request for additional
comment on a revised remedy selection if, after publication of the
proposed remedy and prior to the adoption of the selected remedy, the
remedy is changed such that it significantly differs from the original
proposal with respect to scope, performance, or cost as a result of new
information; or
(2) If the Regional Administrator determines that even a short
delay in the implementation of the remedy would adversely affect human
health or the environment, the Regional Administrator may comply with
the requirements of paragraph (b)(1) of this section after initiation
of the remedy. These requirements must be met before the Regional
Administrator may consider the facility addressed under
Sec. 270.1(c)(7) of this chapter.
(c) If the activities required of the owner or operator by this
section were initiated or conducted prior to [effective date of the
final rule], the Regional Administrator may make a determination that
the requirements of paragraphs (a) (1), (2), and (3) of this section
have been met. Upon making that determination, the Regional
Administrator must, before considering the facility to be fully
addressed under Sec. 270.1(c)(7)(ii) of this chapter, provide the
public notice of that determination in accordance with the procedures
outlined in paragraph (b)(1) of this section.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
1. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
2. Section 270.1 is amended by revising paragraph (c) introductory
text and adding a new paragraph (c)(7) to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) Scope of the RCRA permit requirement. RCRA requires a permit
for the ``treatment,'' ``storage,'' and ``disposal'' of any ``hazardous
waste'' as identified or listed in part 261 of this chapter.
The terms ``treatment,'' ``storage,'' ``disposal,'' and ``hazardous
waste'' are defined in Sec. 270.2. Owners and operators of hazardous
waste management units must have permits during the active life
(including the closure period) of the unit. Owners and operators of
surface impoundments, landfills, land treatment units, and waste pile
units that received waste after July 26, 1982, or that certified
closure (according to Sec. 265.115 of this chapter) after January 26,
1983, must have post-closure permits, unless they demonstrate closure
by removal or decontamination as provided under Sec. 270.1(c) (5) and
(6), or they comply with the alternative post-closure requirements of
Sec. 270.1(c)(7)(i)(B). If a post-closure permit is required, the
permit must address applicable part 264 Groundwater Monitoring,
Unsaturated Zone Monitoring, Corrective Action, and Post-closure Care
Requirements of this chapter. The denial of a permit for the active
life of a hazardous waste management facility or unit does not affect
the requirement to obtain a post-closure permit under this section.
* * * * *
(7) Post-closure care permits. (i) Unless they demonstrate closure
by removal or decontamination as provided by Sec. 270.1 (c)(5) and
(c)(6), owners or operators of surface impoundments, landfills, land
treatment units, and waste pile units that received wastes after July
26, 1982, or that certified closure (according to Sec. 265.115 of this
chapter) after January 26, 1983, must comply with either of the
following requirements, as determined by the Regional Administrator:
(A) Obtain a post-closure permit in accordance with Sec. 270.1(c);
or
(B) Obtain an enforceable order or other enforceable document (or
combination thereof), or be subject to a CERCLA response action or
state response action imposing the conditions specified in Sec. 265.121
of this chapter.
(ii) The Regional Administrator must assure that post-closure needs
at facilities subject to the requirements of this paragraph (c)(7) are
addressed under either paragraph (c)(7)(i)(A) or (c)(7)(i)(B) of this
section.
4. Section 270.14 is amended by adding a sentence to the end of
paragraph (a) to read as follows:
Sec. 270.14 Contents of part B: General requirements.
(a) * * * For post-closure permits, only the information specified
in Sec. 270.27 is required in Part B of the permit application.
* * * * *
5. A new Sec. 270.27 is added to subpart B to read as follows:
Sec. 270.27 Part B information requirements for post-closure permits.
For post-closure permits, the owner or operator is required to
submit only the information specified in Secs. 270.14(b) (1), (4), (5),
(6), (11), (13), (14), (16), (18) and (19), 270.14(c), and 270.14(d),
unless the Regional Administrator determines that additional
information from Secs. 270.14, 270.16, 270.17, 270.18, 270.20, or
270.21 is necessary.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
1. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C 6905, 6912(a), and 6926.
2. Section 271.16 is amended by adding a new paragraph (e) to read
as follows:
Sec. 271.16 Requirements for enforcement authority.
* * * * *
(e) Any State administering a program shall have available judicial
or administrative action to respond to releases of hazardous waste or
hazardous constituents at interim status facilities as provided by
section 3008(h).
[FR Doc. 94-27300 Filed 11-7-94; 8:45 am]
BILLING CODE 6560-50-P
