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            Thursday
            October 22, 1998
Part II



Environmental

Protection  Agency

40 CFR Parts 264, 265, 270, and 271
Standards Applicable to Owners and
Operators of Closed and Closing
Hazardous Waste Management Facilities:
Post-Closure Permit Requirement and
Closure Process; Final  Rule

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  56710      Federal Register/Vol. 63, No.  204/Thursday, October 22, 1998/Rules and Regulations
  ENVIRONMENTAL PROTECTION
  AGENCY

  40 CFR Parts 264,265,270, and 271
  [FRL-6178-7]
  RIN 2050-AD55

  Standards Applicable to Owners and
  Operators of Closed and Closing
  Hazardous Waste Management
  Facilities; Post-Closure Permit
  Requirement; Closure Process

  AGENCY: Environmental Protection
  Agency.
  ACTION: Final rule.

  SUMMARY: The Environmental Protection
  Agency (EPA) is amending the
  regulations under the Resource
  Conservation and Recovery Act (RCRA)
  in two areas. First, the Agency is
  modifying the requirement for a post-
  closure permit, to allow EPA and the
 authorized States to use a variety of
 authorities to impose requirements on
 non-permitted land disposal units
 requiring post-closure care. As a result
 of this rule, regulators have the
 flexibility to use alternate mechanisms
 under a variety of authorities to address
 these requirements, based on the
 particular needs at the facility.
   Second, for all facilities, the Agency
 is amending the regulations governing
 closure of land-based units that have
 released hazardous constituents, to
 allow certain units to be addressed
 through the corrective action program.
 As a result of this rule, EPA and the
 authorized States will have discretion to
 use corrective action requirements,
 rather than closure requirements, to
 address the regulated units. This
 flexibility will reduce the potential for
 confusion and inefficiency created by
 the application of two different
 regulatory requirements.
  Finally, the Agency is specifying the
 Part B information submission
 requirements for facilities that receive
 post-closure permits.
 DATES: This rule is effective October 22,
 1998.
 ADDRESSES:  Supporting materials are
 available for viewing in the RCRA
 Information Center (RIC), located at
 Crystal Gateway I, First  Floor,  1235
Jefferson Davis Highway, Arlington, VA.
The Docket Identification Number is F-
98-PCPF-FFFFF. The RIC is open from
9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. To
review docket materials, it is
recommended that the public make an
appointment by calling (703) 603-9230.
The public may copy a maximum of 100
pages from any regulatory docket at no
 charge. Additional copies cost $0.15/
 page. The index and some supporting
 materials are available electronically.
 See the Supplementary Information
 section for information on accessing
 them.
 FOR FURTHER INFORMATION CONTACT: For
 general information, contact the RCRA
 Hotline at (800) 424-9346 or TDD (800)
 553-7672 (hearing impaired). In the
 Washington, DC metropolitan area, call
 (703) 412-9810 or TDD (703) 412-3323.
   For more detailed information on
 specific aspects of this rulemaking,
 contact Barbara Foster, Office of Solid
 Waste, Mail Code 5303W, U.S.
 Environmental Protection Agency, 401
 M St. SW, Washington DC 20460,  (703-
 308-7057),
 foster.barbara@epamail.epa.gov
 SUPPLEMENTARY INFORMATION : The  index
 and the following supporting materials
 are  available on the Internet: Economic
 Assessment. Follow these instructions
 to access the information electronically:
 WWW: http://www.epa.gov/epaoswer/
   osw/hazwaste.htm#closure
 FTP: ftp.epa.gov
 Login: anonymous
 Password:
   foster.barbara@epamail.epa.gov
 Files are located in /pub/epaoswer

 Preamble Outline
 I. Authority
 n. Background Information
  A. Overview of RCRA. Permit Authorities
   1.  Closure and Post-Closure Care
  2.  SubpartF
  B. Overview of HSWA Corrective Action
    Authorities
  C. Overview of Proposed Rule
  1. Elements of the Proposal that are
    Promulgated in this Final Rule
  a. Post-Closure Care Under Alternatives to
    Permits
  b. Remediation Requirements for Land-
    Based Units with Releases to the
    Environment
  c. Post-Closure Permit Information
    Submission Requirements
  2. Elements of the Proposal that are not
   Promulgated in this Final Rule
  a. State Equivalent—Corrective Action
   Enforcement Authority for Interim Status
   Facilities
  fa. Timeframes for Closure
ffl. Section-by-Section Analysis and
   Response to Comment
 A. Overview of Final Rule
  1. Post-Closure Care Under Alternatives to
   Permits
 2. Remediation Requirements for Land-
   Based Units with Releases to the
   Environment
 3. Post-Closure Permit Part B Information
   Submission Requirements
 B. Post-Closure Care Under Alternatives to
   Permits
 1. Use of Alternative Mechanisms to
   Address Post-Closure Care (§ 270.1 (c))
 a. Detailed Discussion of Final Rule
    b. Response to Comment
    2. Requirements for Alterative Mechanisms
    a. Part B Information Submission
      Requirements (§265.121(a)(l))
    b. Subpart F Groundwater Monitoring and
      Corrective Action Program
      (§§265.121(c)(3) and 264.901—264.100)
    c. Facility-wide Corrective Action
      (§265.121 (a) (2))
    3. Public Involvement (§§265.121(b))
    a. Overview
    b. Response to Comment
    4. Enforceable Documents Issued Prior to
     the Effective Date of this Rule
      (§265.121(b)(3)
    a. Overview
    b. Response to Comment
    C. Remediation Requirements for Land-
     Based Units with Releases to the
     Environment
    1. Overview
   2. Response to Comment
   D. Post-Closure Permit Part B Information
     Submission Requirements (§ 270.28)
    1. Overview
   2. Response to Comment
 IV. State Authorization
   A. Authorization of State Programs
   B. Enforcement Authorities
   C. Effect of this Rule on State
     Authorizations
   D. Review of State Program Applications
   1. Post-Closure Care Under Alternatives to
     Permits
   2. Remediation Requirements for Land-
     Based Units With Releases to the
     Environment
   3. Post-Closure Permit Part B Information
     Submission Requirements
 V. Effective Date
 VI. Regulatory Assessments
   A. Executive Order 12866
   B. Regulatory Flexibility Act
   C. Unfunded Mandates Reform Act
   D. Paperwork Reduction Act
   E. Executive Order  13045: Protection of
     Children from Environmental Health
    Risks and Safety Risks
   F. National Technology Transfer and
    Advancement Act
   G. Executive Order 12898: Environmental
    Justice
   H. Executive Order 12875: Enhancing
    Intergovernmental Partnerships
   I. Executive Order 13084: Consultation and
    Coordination with Indian Tribal
    Governments
  J. Submission to Congress and the  General
    Accounting Office
VH. Brownfields

I. Authority

   These regulations are promulgated
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.

n. Background Information

A. Overview of RCRA Permit Authorities
  Section 3004 of the Resource
Conservation Recovery Act (RCRA)
requires the Administrator of EPA to

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             Federal Register/Vol.  63,  No. 204/Thursday. October 22, 1998/Rules and Regulations     56711
  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 include the standards of 40 CFR
 Part 264 (which apply to hazardous
 waste management units at facilities
 that have been issued RCRA permits),
 Part 265 (which apply, to hazardous
 waste management  units at interim
 status facilities), and Part 270 (which
 provide standards for permit issuance).
 1. Closure and Post-Closure Care
   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 releases
 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 N, owners
 and operators of landfills are required to
 cover the unit with an impermeable cap
 designed to minimize infiltration of
 liquid into the unit;  then owners or
 operators must conduct post-closure
 care (including maintenance of the cap
 and groundwater monitoring). Under
 Subparts K and L of  Parts 264 and 265,
 owners and operators of surface
 impoundments and waste piles must
either remove or decontaminate all
hazardous waste and constituents from
the unit, or leave waste in place, install
  a .final cover over the unit, and conduct
  post-closure care. Closure of land
  treatment facilities must be conducted
  in accordance with closure and post-
  closure care procedures of §§ 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 § 264.111 or § 265.111.
    Under Subparts I and J of Parts 264
  and 265, owners and operators of non-
  land based 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 (see, for
  example, §265.197(b)).
   Where post-closure care is required,
  owners and operators must comply with
  the requirements of §§ 264.117-120 or
  §§265.117-120. These provisions
  establish a post-closure plan approval
  process, similar to the closure plan
  approval process, and requirements for
  maintenance of the RCRA cap during
 the post-closure care period. Facilities
 also must comply with the groundwater
 requirements of Part 264 or Part 265
 Subpart F during the same period.
 2. Subpart F
   The requirements of Parts 264 and
 265, Subpart F apply to  "regulated
 units," defined in § 264.90(a) (2) as any
 landfill, surface impoundment, waste
 pile, or land treatment unit that received
 hazardous waste after July 26,1982 or
 that certified closure after July 26, 1983.
 While the standards of Parts 264 and
 265, Subparts G (closure and post-
 closure care) and H (financial assurance)
 are equivalent for permitted and interim
 status facilities, 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 the Part 265,
  Subpart F regulations do not.

  B. Overview of HSWA Corrective Action
  Authorities

   In the 1984 Hazardous and Solid
  Waste Amendments (HSWA) to RCRA,
  Congress expanded EPA's authority to
  address releases from all solid waste
  management units (SWMUs) at
  hazardous waste management facilities.
  Section 3004 (u) of HSWA required that
  any permit issued under section 3005 (c)
  of RCRA to a treatment, storage, or
  disposal facility after November 8, 1984,
  address corrective action for releases of
  hazardous wastes or hazardous
  constituents from any SWMU at the
 facility. Section 3004(v) authorized EPA
 to require corrective action beyond the
 facility boundary where appropriate.
 Section 3008 (h) provided EPA with
 authority to issue administrative orders
 or bring court action to require
 corrective action or other measures, as
 appropriate, when there is or has been
 a release of hazardous waste or,  (under
 EPA's interpretation) of hazardous
 constituents from a facility authorized
 to operate under section 3005(e).
   In a December 16, 1985 memorandum
 entitled Interpretation of Section
 3008(h) of the Solid Waste Disposal Act,
 EPA interpreted section 3008 (h) to
 apply not only to  facilities that met the
 requirement for obtaining interim status,
 but also to facilities that were subject to
 but did not fully comply with the
 requirements for interim status, as well
 as to facilities that lost interim status
 pursuant to 40 CFR Part 124 or sections
 3005 (c) or 3005 (e) (2) of RCRA. Later, in
 an August 10, 1989 memorandum
 entitled Coordination of Corrective
 Action Through Permits and Orders
 (OSWER Directive 9502.1989(04)), EPA
 clarified that interpretation by stating
that a section 3008 (h) order cannot be
issued to a facility after final disposition
of the permit application.

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 56712     Federal Register/Vol. 63, No. 204/Thursday, October 22, 1998/Rules and Regulations

   In practice, the corrective action
 process is highly site-specific, and
 involves direct oversight by the
 reviewing Agency. Unlike the closure
 process, which provides two options
 (closure with waste in place and closure
 by complete removal and
 decontamination), the corrective action
 process provides considerable flexibility
 to the Agency to decide on remedies
 that reflect the conditions and the
 complexities of each facility. For
 example, depending on the site-specific
 circumstances, remedies may attain
 media cleanup standards through
 various combinations of removal,
 treatment, engineering, and institutional
 controls.
   EPA has codified corrective action
 requirements at §§264.101,264.552,
 and 264.553, and currently implements
 these requirements through the
 permitting process. EPA also
 Implements corrective action by issuing
 corrective action orders under section
 3008(h) of RCRA. In addition, to
 facilitate the corrective action process,
 EPA proposed more extensive corrective
 action regulations on July 27,1990,
 under a new Part 264  Subpart S (see 55
 FR 30798). The July 27,1990 Subpart S
 proposal set forth EPA's interpretation
 of the statutory requirements at that
 time. Later, EPA promulgated several
 sections of that proposal related to
 temporary units, corrective action
 management units, and the definition of
 "facility" (see 58 FR8658, February 16,
 1993).
   On May 1,1996, the Agency issued a
 Federal Register notice (61 FR 19432)
 defining the goals of the corrective
 action program, and providing guidance
 on its implementation. The notice also
 announced the Agency's Corrective
 Action Initiative and soliciting comment
 on issues related to the corrective action
 program. This initiative is a
 reevaluation effort to identify and
 implement improvements to the
 corrective action program, and to focus
 that program more clearly on
 environmental results. The notice
specified five goals of the Corrective
Action Initiative: (1) to create a
consistent, holistic approach to cleanup
at RCRA facilities: (2) to establish
protective, practical cleanup
expectations; (3) to shift more of the
responsibilities for achieving cleanup
goals to the regulated community; (4) to
focus on opportunities to streamline and
reduce costs; and (5) to enhance
opportunities for timely, meaningful
public participation.
  C. Overview of Proposed Rule
  1. Elements of the Proposal That Are
  Promulgated in This Final Rule
   a. Post-closure care under alternatives
  to permits. The regulations promulgated
  in this rule were proposed by the
  Agency on Novembers, 1994 (see
  Standards Applicable to Owners and
  Operators of Closed and Closing
  Hazardous Waste Management
  Facilities; Post-Closure Permit
  Requirement; Closure Process; State
  Corrective Action Authority (59 FR
  55778)). That proposal was designed to
  give EPA and the authorized States
  greater flexibility in remediating RCRA
  facilities by modifying the regulations in
  several areas.
   First, EPA proposed to allow EPA and
  authorized States to use a variety of
  legal authorities when addressing
 facilities that require post-closure care.
 Under the proposal, the Agency would
 continue to impose the same substantive
 groundwater, post-closure care, and
 corrective action requirements as it
 would under a permit, and would
 provide for adequate public
 participation.
   The Agency proposed this change to
 provide regulators the necessary
 flexibility to use the best regulatory
 approach in addressing these sites. Prior
 to today's rule, section 270.1 required
 owners and operators of landfills, waste
 piles, surface impoundments, or 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, to obtain post-closure permits
 (unless they demonstrated that they met
 the § 270.1 requirements for closure by
 removal).
  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.
 Permits issued after November, 1984
 also would impose the facility-wide
 corrective action requirements of RCRA
 section 3004 (u), if necessary.
  For interim status facilities that close
 without obtaining an operating permit,
 the requirement for a post-closure
 permit (typically issued after
 completion of closure) performed an
 important regulatory function. First, to
secure a permit, the facility had to 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
  was issued, the facility became 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 imposed
  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.
   The requirement for post-closure
  permits was promulgated in 1982. At
  the time, the Agency believed that
  permits would be the most effective
  means to develop site-specific
  groundwater monitoring programs
  tailored to individual waste
  management facilities (see 47 FR 32366,
 July 26, 1982). Since that time, the
 Agency and the authorized States have
 issued hundreds of permits to closed
 and closing interim status facilities. In
 the course of issuing these permits, EPA
 and the States have encountered many
 facilities where post-closure permit
 issuance proved difficult or, in some
 cases, impossible. Generally, the
 Regions and States  have encountered
 two major difficulties when issuing
 post-closure permits. First, some
 facilities chose to close, or are forced to
 close, because they cannot 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. Second, owners or operators
 often have  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.
  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 enable the

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             Federal Register/Vol.  63,  No. 204/Thursday,  October 22, 1998/Rules and Regulations     56713
  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 regulated units
  and/or other SWMUs at these facilities.
  In other cases. Federal or State
  Superfund authorities have been used to
  address cleanup at sites. However, prior
  to this rule, EPA or the State was still
  required to issue a post-closure permit
  even where the environmental risks
  associated with the facility were
  addressed through other authorities.
   EPA is promulgating, with minor
  revisions, those provisions of the
  November 8,1994 proposal that remove
  the requirement to issue post-closure
  permits at each facility, and allow post-
  closure care requirements to be imposed
 using either permits or approved
 alternate authorities. Those provisions
 are promulgated in this rule in
 §§ 265.121, 270.1 (c), and 271.16, and are
 discussed in sections m.A. and m.B.
 below.
   b. Remediation requirements for land-
 based units with releases to the
 environment. The November 8, 1994
 proposal also solicited comment on
 several issues related to the regulatory
 distinction between regulated units and
 SWMUs.
   In 1982, when the regulatory structure
 for closure was established, the Agency
 had litde experience with closure of
 RCRA regulated units. Since 1982, the
 Agency and authorized States have
 approved hundreds 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
 some cases, the unit may be located near
 SWMUs or areas of concern that also
 have released hazardous constituents to
 the environment. As a result, the
 cleanup of similar releases may be
 subject to two different sets of standards
 and two different sets of procedures.
 EPA is concerned that this dual
 regulatory structure may unnecessarily
 impede cleanups.
  In the November 8, 1994 proposal, the
 Agency addressed this issue by
 requesting comment on giving
 discretion to the Agency or the
 authorized State to impose requirements
 developed for corrective action in lieu
of the requirements of Subparts F
 (groundwater), G (closure and post-
closure), and H (financial assurance) at
certain regulated units. After reviewing
  the comments, which largely supported
  the concept, EPA has decided to
  promulgate provisions providing that
  discretion for certain regulated units,
  both permitted and interim status, that
  appear to have released to the
  environment, if SWMUs also appear to
  have contributed to the same release.
  Those provisions are promulgated in
  this rule in §§264.90(f), 264.110(c),
  264.140(d), 265.90(f), 265.110(d), and
  265.140(d), and are discussed in
  sections m.A. and IHC. below.
    c. Post-closure permit information
  submission requirements. In the
  November 8, 1994 rule, EPA proposed
  to add a new § 270.27 to identify that
  subset of the Part B application
  information that must be submitted for
  post-closure permits. Under that
  provision, an owner or operator seeking
  a post-closure permit would have to
  submit only that information
  specifically required for post-closure
  permits under that section, unless
  otherwise directed by the Regional
 Administrator. Under the proposal, the
 information required under § 270.27
 would be submitted upon request by the
 Regional Administrator.
   Proposed §270.27 is promulgated in
 § 270.28 of this final rule.

 2. Elements of the Proposal That Are not
 Promulgated in This Final Rule
   a. State equivalent—corrective action
 enforcement authority for interim status
 facilities. The November 8, 1994
 proposal also would have required
 States to adopt enforcement authority
 equivalent to section 3008 (h)  corrective
 action authority as part of their
 authorized program. Though many
 commenters supported this portion of
 the proposal, many State commenters
 strongly objected to it for several
 reasons.
  Although EPA has the authority to
 require authorized States to have
 adequate enforcement programs, the
 Agency, after considering public
 comment, has decided not to proceed at
 this time with the requirement that
 States adopt section 3008(h)-equivalent
 authority as part of their authorized
 enforcement program. EPA believes the
 States raised significant issues that
 would need to be resolved prior to
 promulgation. This is not a final
 decision on this issue—the Agency may
 determine at a future date to adopt such
 a requirement.
  EPA notes that States seeking
 authorization to issue enforceable
 documents in lieu of post-closure
 permits will need to submit their
alternative legal authorities to  EPA for
review. As part of that review, EPA will
determine whether the State authorities
  are broad enough to impose facility-
  wide corrective action at interim status
  facilities. Submission of these
  alternative authorities will be required
  only for States seeking authorization for
  this rule. It will not be required of all
  States.
    b. Timeframes for closure. The
  Novembers, 1994 proposal requested
  comment on whether the Agency should
  make modifications to the closure
  process, in particular, to the timeframes
  for closure. The Agency recognized that
  the current timeframes may, in some
  cases,  not be adequate where the closure
  is really a cleanup activity, rather than
  the more straightforward capping or
  waste removal activities contemplated
  in 1982.
   Though public comment generally
  agreed that the closure timeframes are
  not adequate, the Agency is not
  promulgating this provision of the
  November 8, 1994 proposal at this time.
  EPA, however, is promulgating a rule
  that will allow overseeing agencies to
  replace closure requirements—
  including closure timeframes—with
  requirements developed under
  corrective action, at some facilities. EPA
  expects that these revisions will allow
 site-specific flexibility for timeframes
 for some of the complex closures,
 thereby providing, in part, the relief
 intended by the proposal.

 HI. Section-by-Section Analysis and
 Response to Comment
 A. Overview of Final Rule
 1. Post-Closure Care Under Alternatives
 to Permits
   This  final rule creates an optional,
 new procedural mechanism for
 imposing requirements on units or
 facilities that closed without obtaining a
 permit. It ensures that these units have
 to meet the same substantive
 requirements that apply to units
 receiving post-closure permits.
  The post-closure requirements for
 permitted facilities in Part 264 are more
 extensive than the analogous Part 265
 interim status requirements in three
 areas: (1) the requirements for
 submission of information under Part
 270; (2)  Part 264 Subpart F requirements
 for groundwater management and
 corrective action for releases to
 groundwater; and (3) facility-wide
 corrective action requirements for
 releases from SWMUs under § 264.101.
 To impose equivalent requirements at
 interim  status facilities, EPA or an
 authorized State must issue an
enforceable document that performs
many of the functions of a permit. Thus,
the enforceable  document must impose:
 (1) the requirements of new

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 56714     Federal Register/Vol. 63, No. 204/Thursday,  October 22,  1998/Rules and Regulations
 §265.121 (a)(l), which imposes
 information requirements that are  •
 relevant to closed facilities needing
 permits only for post-closure care; (2)
 the requirements of new § 265.121 (a) (3),
 which applies Part 264 groundwater
 standards to the regulated unit; and (3)
 the requirements of new § 265.121 (a) (2),
 which imposes facility-wide corrective
 action consistent with § 264.101.
   The remaining requirements that
 apply during the post-closure care
 period relate to the maintenance of the
 closed unit and financial responsibility.
 The permitting and interim status
 standards for these requirements are
 virtually identical. Consequently, these
 requirements need not be addressed in
 the enforceable alternative to the
 permit—rather, the relevant portions of
 Part 265 Subparts G and H will continue
 to apply. Post-closure care requirements
 will normally continue to be set out in
 the facility's approved closure plan.
 Financial responsibility requirements
 are self-implementing. (Of course, EPA
 or an authorized State may chose to
 incorporate the Part 265 requirements
 for post-closure care and financial
 responsibility into an enforceable
 document, if they wish.)
  The new, non-permit mechanisms
 provide opportunities for public
 participation, which differ somewhat
 from those set out in the permit
 issuance and modification procedures of
 Parts 124 and 270. EPA's new
 requirements reflect the Agency's efforts
 to provide as much public participation
 as possible, but also reflect the Agency's
 awareness that most of the alternate
 mechanisms used to address corrective
 action will be enforcement orders.
   The current procedures for issuing
 post-closure permits first provide an
 opportunity for public comment at the
 time the permit is issued. This typically
 means that the public is able to
 comment on the plan for investigating
 suspected releases at the facility. Permit
 modification procedures then provide
 opportunities to comment at the time
 the permit authority selects a remedy for
 the facility. They also provide an
 opportunity to comment when the
 permit authority concludes that
 corrective action is complete. Under the
 Federal rules used by EPA,
 opportunities to file administrative
 appeals are available after each of these
 steps. (EPA, however, does not require
 States to provide for administrative
 appeals of permits).
   The new public participation
 requirements for enforceable documents
 are codified at § 265.121 (b). They
 require the overseeing agency to provide
 public notice and an opportunity to
 comment: (1) when the Agency becomes
 involved in a remediation at the facility
 as a regulatory or enforcement matter;
 (2) on the proposed remedy and the
 assumptions upon which the remedy is
 based; and (3) prior to making the final
 decision that remedial action is
 complete at the facility. They do not
 require either EPA or the States to
 provide opportunities for administrative
 appeals. EPA recognizes that, at least at
 the Federal level, this changes the
 opportunities for public involvement in ,
 the requirements that will govern closed
 hazardous waste facilities. EPA believes
 these requirements equal, and in some
 respect exceed, the current permitting
 requirements for public participation.
 On the other hand, the new
 requirements do not require an
 opportunity for administrative appeal.
 While this approach to a certain extent
 lessens the public's opportunity to
 challenge a decision, EPA believes that
 rights to administrative appeals (which
 can be  exercised by a regulated facility
 as well as the public) are inappropriate
 in an enforcement context.
   The final rule defines "enforceable
 document" at §270.1 (c) (7). Generally,
 Federal orders under section 3008 (h) of
 RCRA and section 106 of CERCLA will
 fall within this definition and be
 eligible, as well as State orders issued
 under authorities reviewed and
 approved by EPA. Fund-financed
 actions under section 104 of CERCLA
 also will be eligible. Closure and post-
 closure plans, and State enforcement
 authorities analogous to RCRA section
 3008(a) enforcement authority also will
 be appropriate mechanisms.
   Table 1 summarizes these
 requirements.
                      TABLE 1.—ENFORCEABLE DOCUMENTS IN LIEU OF POST-CLOSURE PERMITS
Subject
Facility Information 	
Groundwater Protection 	 	
Corrective Action 	 ...
Public Participation 	
Financial Responsibility 	
Post-Closure Care of Regulated Unit 	
Regulations for permits
. §70 28 	
Part 264 Subpart F*
f64 101
Parts 124 and 270 ..
Part 264 Subpart H *
Part 264, Subpart G* ..
Regulations for en-
forceable documents
§270 28 (see
§265.121)
Part 264 Subpart F
(see §265.1 21)*
§264 101 (see
§265.121)
§265 121
Part 265 Subpart H *
Part 265, Subpart G*
  ' For certain land-based units suspected of contributing to releases to the environment, these requirements may be replaced by site-specific re-
quirements developed under corrective action. See new §§264.90(f), 264,110(c), 264.140(d), 265.90(f), 265.110(d), and 265.140(d) of this final
rule.
2. Remediation Requirements for Land-
Based Units With Releases to the
Environment
  The second portion of this final rule
provides flexibility to regulators in
another area of the RCRA regulations.
As described above, two different sets of
RCRA requirements arguably apply to a
single release if both regulated units and
SWMUs have contributed to the release.
This rule provides flexibility to
harmonize the two sets of requirements
by substituting corrective action
requirements for requirements for
regulated units set out in Part 264 (for
permitted facilities) or Part 265 (for
interim status facilities). These optional,
new provisions are available to
regulators at a broad range of RCRA
facilities, including, but not limited to,
those covered by the change to post-
closure permitting described above.
  This portion of the rule provides EPA
and authorized States with discretion to
prescribe alternative groundwater
monitoring, closure and post-closure,
and financial responsibility standards at
both operating and closed facilities,
where EPA (or a State) finds that a
release of hazardous waste or hazardous
constituents has occurred, and both a
regulated unit and one or more SWMUs

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              Federal  Register/Vol.  63,  No. 204/Thursday,  October  22,  1998/Rules and Regulations     56715
  (or areas of concern») are likely to have
  contributed to the release.
    For permitted facilities, the
  alternative standards will be issued in
  the permit (or issued in an enforceable
  document (as defined in §270.1(c)(7))),
  which is referenced in the permit). EPA
  and authorized States may develop the
  cleanup requirements for the regulated
  unit and SWMUs under non-permit
  authorities, such as CERCLA or a State
  superfund statute, but they must
  incorporate them into the permit, or
  incorporate them into an enforceable
  document, which is referenced in the
  permit.
    For interim status facilities, EPA or
  States authorized to implement this
  portion of this final rule must impose
  alternative closure, groundwater
  monitoring, and/or financial
  responsibility standards for interim
  status facilities in an enforceable
  document. "Enforceable documents" for
  this rule include RCRA section 3008 (h)
  orders, actions under sections 104 or
  106 of CERCLA, or State actions under
  authorities reviewed and approved by
  EPA as described below. If EPA or an
 authorized State issues alternative
 closure standards, the facility's closure
 plan and/or post-closure plan must be
 amended to set forth the alternative
 provisions, or to reference the
 enforceable document that sets forth
 those  provision.

 3. Post-Closure Part B Permit
 Information Submission Requirements
   To ensure substantive equivalency of
 authorities used in lieu of post-closure
 permits, this final rule requires owners
 and operators to submit the same
 information specifically required for
 post-closure permits, upon request by
 the Agency, when an alternative
 authority is used in lieu of a post-
 closure permit. Section 265.121 (a) (1)
 requires owners and operators obtaining
 enforceable documents in lieu of post-
 closure permits to submit the
 information required in § 270.28.
  Section 270.28,2 which is
 promulgated in this final rule,
 establishes information submission
 requirements for post-closure permits.
 As is discussed in detail in section HID.
 of this preamble, § 270.28 specifies
 information that the Regional
 Administrator will request to issue a
  1 Area of concern means any area of a facUity
under the control or ownership of an owner or
operator where a release to the environment of
hazardous wastes or hazardous constituents has
occurred, is suspected to have occurred, or may
occur, regardless of the frequency or duration (see
final RCRA section 3008(h) Model Consent Order.
December 15. 1993).
  2 This provision was promulgated as § 270.72.
  post-closure permit, and requires
  owners and operators to submit that
  information. It includes information the
  Agency believes will be important for
  all post-closure permits, that is,
  groundwater characterization and
  monitoring data, information related to
  long-term care of the regulated unit and
  monitoring systems, and information on
  SWMUs and possible releases. In
  addition, recognizing that additional
  information may be needed on a site-
  specific basis, § 270.28 also allows the
  Regional Administrator to require any of
  the Part B information specified in
  §§270.17, 270.18, 270.20, and 270.21.
  Section 265.121 (a) (1) adopts this
  approach for alternative mechanisms as
  well.

  B. Post-Closure Care Under Alternatives
  to Permits

  1. Use of Alternative Mechanisms To
  Address Post-Closure Care (§270.1(c))
   a. Detailed discussion of final rule.
  Section 270. l(c), amended by this rule,
  requires owners and operators closing
  unpermitted regulated units with waste
  in place either to: (1) obtain a post-
  closure permit, or (2) comply with the
  alternative post-closure requirements of
  § 270.1 (c) (7). Prior to this rule, owners
  and operators of regulated units
 requiring post-closure care had to obtain
 permits for the post-closure period. This
 rule, by allowing another alternative to
 post-closure permitting,  provides
 regulators with flexibility to address the
 post-closure period at RCRA facilities
 using a variety of legal authorities,
 including enforcement mechanisms.
   Facilities that close with waste in
 place, without obtaining a permit, and
 then use non-permit mechanisms in lieu
 of a permit to address post-closure
 responsibilities, will have to meet three
 important requirements that apply to
 facilities that receive permits: (1) the
 more extensive groundwater monitoring
 required under Part 264,  as they apply
 to regulated units; (2)  certain
 requirements for information about the
 facility found in Part 270 that enable the
 overseeing agency to implement the Part
 264 monitoring requirements; and (3)
 facilityrwide  corrective action for
 SWMUs as required under § 264.101.
 These requirements are set out in new
 § 265.121, which applies  to interim
 status facilities requiring post-closure
 care.
  EPA and States authorized for this
 rule must impose these requirements in
 enforceable documents, as defined in
 § 270.1 (c) (7) of this rule, if they are
being issued in lieu of permits. Federal
enforcement orders issued under
sections 3008 (a) and 3008 (h) qualify as
  enforceable documents. Post-closure
  plans issued by EPA under § 265.118,
  which are enforceable under section
  3008(a), also will qualify. Orders issued
  under section 106 of CERCLA will also
  be eligible, as will decision documents
  describing response actions under  •
  CERCLA section 104. Although
  response actions under section 104 are
  often carried out by EPA using monies
  from the Superfund, rather than by
  responsible parties under orders, it is
  reasonable to rely on them because EPA
  is responsible for carrying out the
  cleanup work. EPA does not intend this
  rule to revise the existing policy to defer
  from listing on Superfund's National
  Priorities List (NPL) those facilities that
  are subject to RCRA corrective action.
  However, since the policy permits the
  listing of some RCRA facilities on the
  NPL (such as bankrupt or recalcitrant
  facilities), some of the facilities subject
  to this rule may also be eligible for
  cleanup under CERCLA section 104,
  and EPA (or an authorized State) may
  wish to rely on the CERCLA action to
  discharge the facility's cleanup
  responsibilities.
   States obtaining authorization for this
  rule will be able to use enforceable
  cleanup orders similar to EPA's section
  3008 (h) orders, as well as State
 superfund authorities. EPA has not yet
 formally reviewed these State cleanup
 authorities, so it will require States that
 wish to use them to submit them for
 review as part of the State authorization
 process. EPA will determine whether
 they provide: (1) the substantive
 requirement of adequate authority to
 compel cleanup of all releases from
 SWMUs within a facility's boundary, as
 needed to protect human health and the
 environment (see new § 265.121 (a) (2)),
 and (2) procedural requirements to
 ensure compliance (i.e., adequate
 penalty and injunctive authority to
 address failures to comply) (see new
 § 271.16(e)). EPA does not anticipate
 that plans for truly "voluntary"
 cleanups will meet the enforceability
 requirement, although it is willing to
 look at mechanisms called "voluntary"
 plans or agreements to determine
 whether the State has adequate
 authority to compel compliance. (EPA
 emphasizes that this rule does not
 preclude the use of State "voluntary"
 authorities to address cleanup at RCRA
 facilities and, indeed, EPA encourages
 their use under the appropriate
 circumstances. Nor does it affect the
 ability of EPA Regions to enter into
 memoranda of agreement or other
mechanisms promoting the use of State
voluntary programs at RCRA facilities,
where appropriate. This rule only

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 56716      Federal Register/Vol. 63, No.  204/Thursday,  October 22, 1998/Rules and  Regulations
 addresses the question of whether the
 State uses these authorities to satisfy the
 post-closure permit obligation.)
   EPA expects that, in some cases, the
 overseeing agency or agencies will
 choose to use more than one mechanism
 to ensure that the substantive post-
 closure requirements in new §265.121
 are imposed. For example, if EPA were
 addressing a facility with releases at
 SWMUs and a regulated unit with no
 release, it could issue a section 3008 (h)
 order to address the releases from the
 SWMUs. EPA, however, might decide
 that such an order would not be the
 most effective means of imposing long-
 term groundwater monitoring
 requirements for the non-leaking
 regulated unit. The new requirements
 could be imposed on the regulated unit
 in a revised interim status post-closure
 plan. Alternatively, EPA could issue a
 section 3008 (a) order to enforce the new
 requirements (codified in this rule at
 §265.121). Sometimes, multiple
 agencies may be involved. For example,
 a State that does not have a cleanup
 order authority could revise an interim
 Status post-closure plan (or issue a State
 enforcement order analogous to section
 3008(a)) to address a regulated unit, and
 rely on an EPA section 3008 (h) order to
 address any releases from SWMUs.
  Facilities subject to the new § 265.121
 will remain subject to all other
 applicable interim status requirements,
 including requirements for financial
 assurance. These remaining interim
 status requirements are virtually
 identical to permit requirements, so
 there is no need to address them in the
 new alternatives to post-closure permits.
 These interim status requirements will
 continue to be enforceable under section
 3008(a) and analogous State authorities.
  Facilities subject to the new §265.121
 also will remain subject to section
 3008(h) authority unless or until EPA or
 the authorized State issues a final
 disposition of a permit application
 under § 270.73, thereby terminating
 interim status at the facility. It should be
 noted that in a Federal Register notice
 dated May 1, 1996 (61 FR 19432, at
 19453-4) EPA erroneously stated that
 facilities at which the regulated units
 clean closed under interim status no
 longer have interim status. EPA corrects
 that statement in this rule and restates
 the Agency's longstanding position that
 interim status is terminated only by a
 final disposition of a permit application,
 or by the methods outlined in § 270.73,
which do not include clean closure. The
May 1.1996. Federal Register notice
 correctly stated that section 3008(h)
 continues to apply at clean closed
facilities where there has been no final
disposition of a permit application.
 Similarly, section 3008 (h) continues to
 apply at facilities addressed through an
 approved alternate authority until final
 disposition of a permit application
 under § 270.73. Issuance of an alternate
 mechanism does not terminate interim
 status authorities.
   b. Response to comment Commenters
 on the proposed rule largely supported
 the provisions that would remove the
 permit requirement. Many commenters
 agreed with the Agency that the rule
 allows flexibility to regulators, yet
 maintains protection of human health
 and the environment.
   Some commenters objected that the
 Agency should have the authority to
 issue an order or a permit, but should
 not be able to issue an order, and later
 to issue a permit to the facility. EPA
 disagrees. The Agency currently has the
 authority to issue a permit after the
 facility is addressed through an
 alternate authority, such as an
 enforcement order. This rule does not
 modify the Agency's authority to issue
 permits in this situation. Rather, it takes
 away the permitting obligation in cases
 where the facility is addressed through
 an alternate mechanism, by making the
 permit one of several options to address
 the facility. EPA believes this approach
 makes sense, and allows EPA to chose
 the best available mechanism, while
 retaining authority to use whatever
 authority is necessary to protect human
 health and the environment. EPA notes,
 however, that it is not likely to issue a
 permit to impose requirements that a
 facility has already satisfied under an
 alternate,  enforceable document. Rather,
 it would limit a permit to requirements
 that, for some reason, had not been fully
 satisfied.
  Several commenters expressed
 concern over discussion in the preamble
 of the November 8, 1994 proposal
 related to  uncooperative facilities. The
 preamble explained that 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,
 the post-closure permit is likely not the
 best mechanism to use. The preamble
 further explained that a post-closure
 permit will generally be the preferable
mechanism for cooperative facilities
 capable of meeting financial assurance
requirements.
  Several  commenters interpreted this
 discussion to limit the use of alternate
mechanisms to uncooperative facilities
not in compliance with  applicable
financial assurance and groundwater
requirements. Commenters objected that
 facilities should not be rewarded for
 non-compliance, and that the proposal
 was making the post-closure care
 process more burdensome for compliant
 facilities. Other commenters thought the
 Agency was proposing to exempt non-
 compliant facilities from certain
 requirements.
   The Agency did not intend to limit
 the use of alternate authorities to
 facilities not in compliance with
 applicable RCRA requirements. EPA
 only identified these facilities as
 examples of where an enforcement
 mechanism was more appropriate than
 a permit. Furthermore, EPA does not
 consider the imposition of alternative
 enforcement authorities to be a
 "reward," since such authorities might
 often include stipulated penalties and,
 in any case, would impose the same
 substantive standards as a permit. EPA
 will retain section  3008(a) authority to
 enforce against closed interim status
 facilities that have failed to meet Part
 265 financial assurance requirements.
 As to groundwater monitoring, this rule
 will substitute the  stricter Part 264
 requirements for the original Part 265
 requirements. EPA will retain authority
 to use section 3008 (a) to enforce past
 violations of the Part 265 monitoring
 requirements and to assure that the
 facility complies with Part 264
 requirements once they are put in place
 by a revised interim status post-closure
 plan (or other enforceable mechanism).
 The rule will also require facility-wide
 corrective action as required under
 permits. More important, EPA notes that
 the new authority to use alternatives to
 post-closure permits is not limited to
 facilities that are out of compliance with
 Part 265 requirements. All facilities that
 have closed (or that, in the future, will
 close) with waste in place without
 obtaining a permit  are eligible.
  Many commenters objected that this
 preamble discussion appeared to
 remove the interim status groundwater
 and financial assurance requirements at
 facilities not in compliance with the
 regulations. However, the Agency did
 not eliminate interim status financial
 assurance requirements. Facilities
 addressed through  alternate
 mechanisms remain subject to the
 financial assurance requirements of Part
 265 Subpart H. They become subject to
 the more prescriptive groundwater
 requirements of Part 264 Subpart F.
 Rather than waive requirements at non-
 compliant facilities, as commenters
believe, this rule continues to require
compliance with upgraded
requirements.
  Some commenters believed that the
choice of mechanism should be left to
the facility, or that the options should

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             Federal Register/Vol. 63, No.  204/Thursday, October 22, 1998/Rules and  Regulations     5671T
  be discussed at length to achieve
  consensus. These commenters believed
  that an otherwise reluctant owner or
  operator is more likely to commit
  resources to meet agency goals if
  regulatory alternatives and
  consequences are clearly discussed and
  understood up-front.
    Other commenters believed that the
  regulations should specify when an
  alternative authority would be used in
  lieu of a permit, and remove some of the
  Agency's discretion:
    EPA did not take either approach
  suggested by these commenters. EPA
  agrees with commenters that the owner
  or operator generally should be involved
  in discussions related to the selection of
  mechanisms. This is particularly true of
  cooperative facilities in compliance
  with applicable requirements and
  eligible for  post-closure permits. EPA
  intends to take into consideration the
 preference of facility owners and
 operators in deciding how to address
 these facilities, and it encourages
 authorized States to do so as well.
 However, EPA believes that it is
 important to provide the Agency and
 authorized States flexibility to consider
 all factors when deciding what authority
 to use to address a site. These factors
 will include conditions at the site, the
 availability of alternate State authorities,
 availability of resources, preference of
 the owner or operator and the local
 public, and the compliance status of the
 owner or operator. The Agency believes
 that fay attempting to establish criteria in
 this rule,  it would unnecessarily limit
 the flexibility to make the decision that
 best ensures protection of human health
 and the environment at each site.
   Some commenters believed the owner
 or operator should have opportunity to
 challenge the Agency's or authorized
 State's choice of mechanism. EPA
 disagrees, and believes that the choice
 of mechanism to use to address a facility
 is an inherently governmental decision
 that should not be subject to challenge.
 EPA believes this approach is consistent
 with longstanding policy on
 enforcement discretion, and is vital to
 an effective enforcement program.
   This rule limits the use of alternate
 mechanisms to facilities that have not
 received permits. Some commenters
 believed that the Agency should modify
 the rule to allow permits to be converted
 to orders and allow owners or operators
 of permitted facilities to address the
 post-closure period through another
 mechanism.
  EPA has not adopted the commenter's
suggestion, as this rulemaking deals
only with  alternative mechanisms for
closed facilities that have not yet
received post-closure permits. It should
  be noted that existing §§ 264.117(a) (2) (i)
  and 265.117(a)(2)(i) address
  commenters' concern to some extent by
  allowing the Agency to shorten the post-
  closure period upon a determination
  that the shortened period is protective
  of human health and the environment.
    Another commenter suggested that
  EPA should be allowed to use
  alternative authorities at closed
  facilities, needing post-closure permits,
  that have submitted a Part B permit
  application. The Agency agrees that it
  should not be precluded from using
  alternative mechanisms at these
  facilities so long as it has not issued a
  Part B permit.
    Some commenters objected to the
  provisions of the rule that would
  remove the requirement that EPA use
  the post-closure permit as the vehicle to
  impose Part 264 requirements for post-
  closure care.  One commenter believed
  that the Agency should use enforcement
  orders to overcome the obstacles to
  permitting it described (such as non-
  compliance with financial assurance
 requirements). This commenter believed
 that post-closure permitting is
 protracted because EPA has not used its
 enforcement authority to move facilities
 through the permitting process, and has
 not made issuing post-closure permits a
 priority.
   EPA disagrees  with this commenter.
 There are many facilities in the RCRA
 universe that  are not able to meet the
 financial assurance requirements of
 Subpart H. While EPA can take
 enforcement actions against these
 facilities to bring them into compliance
 to the extent possible, there are some
 facilities that never will be able to meet
 those requirements, despite an
 enforcement order. As was explained
 above, EPA will not be able to issue
 permits to such facilities. Further, the
 Agency believes that the flexibility
 provided by this rule is important, not
 only to address non-compliant facilities,
 but to allow regulators to use the most
 appropriate authority available to them
 at all facilities. This choice may be
 based on many factors, including the
 specific conditions at the facility,
 availability of approved alternate State
 cleanup authorities, and recalcitrance of
 the facility. Thus, while the Agency
 agrees with the commenter that it is
 important to take  enforcement actions
 against facilities to bring them into
 compliance whenever possible, and that
 enforcement authorities should be used
 to expedite the permitting process, it
 does not agree that post-closure permits
should or can be issued to all facilities.
Further, EPA is more interested in
obtaining environmental results than in
   the choice of mechanism used, and in
   eliminating redundant processes.
     Other commenters believed that the
.   Agency remains subject to the permit
   deadline for land disposal facilities in
   RCRA section 3005 (c) (2) (A) (i). Those
   commenters believed that revisions to
   the rules that reduce the existence of or
 •  scope of this mandatory duty to issue
   post-closure permits in a timely manner
   violate section 3005 (c) of RCRA, and
   that Congress enacted the permit
   deadlines based upon the rules then in
   effect.
    EPA agrees that section 3005 (c) of
  RCRA required the Administrator to
  issue  or deny a final permit for each
  applicant for a land disposal permit by
  November, 1988. EPA also agrees that,
  so long as its regulations require it to
  issue post-closure permits to land
  disposal facilities, those post-closure
  permits are subject  to the statutory
  deadline. EPA, however, does not agree
  that section 3005 (c) deprives it of
  authority to determine whether post-
  closure permits are  necessary or
  desirable means of imposing post-
  closure care requirements. Section
  3005 (c) imposes a deadline for
  permitting, but does not define the
  scope  of the permitting requirement.
    In 1982, when EPA promulgated the
  post-closure permit requirement, it had
  discretion under the statute to choose a
 procedural mechanism for imposing
 post-closure care requirements on
 facilities that closed while in interim
 status. It selected permits rather than
 interim status closure plans or other
 alternatives. The fact that Congress
 enacted a deadline for issuing permits to
 land disposal facilities in 1984 did not
 change that discretion. Nothing in the
 statute or the legislative history of the
 section 3005 (c) indicates that Congress
 was aware of or concerned about EPA's
 use of permits to impose post-closure
 care requirements at facilities closing
 under interim status. The legislative
 history of other portions of the 1984
 amendments suggests that Congress was
 concerned that EPA's 1984 regulations
 for land disposal facilities imposed
 more stringent requirements for ground-
 water monitoring and closure on
 permitted facilities than on interim
 status facilities. EPA, however, has
 eliminated this discrepancy, amending
 the rules for closure on March  19, 1987
 (see 52  FR 8704), and the rules for
 groundwater monitoring today.
   Essentially, this commenter argues
 that Congress "ratified" EPA's  1982
 post-closure permit rule, making it part
 of the statute so that EPA could no
 longer revisit it. EPA does not agree
with this interpretation of section
3005 (c). Nothing in the statute or the

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  56718      Federal Register/VoI. 63, No.  204/Thursday,  October  22,  1998/Rules and Regulations
  legislative history suggests that Congress
  wanted to prohibit EPA from revising
  this part—or, indeed, any part—of the
  rules defining the scope of the permit
  requirement. The same is true for the
  requirement for public participation in
  permittingset out in section 7004 (b) (1)
  of RCRA. There is no evidence that
  Congress intended the public
  participation requirements to create a
  statutory duty to issue post-closure
  permits.
   EPA acknowledges that it could deny
  post-closure permits for all of the land
  disposal facilities that obtain
  enforceable documents in lieu of post-
  closure permits. Permit denials would
  satisfy the requirement of section
  3005 (c) to issue or deny final permits.
  EPA. however, does not believe that
  Congress intended it to impose a
  deadline on the denial of permits for
 facilities no longer obligated  to have
  them. The Agency believes it is simply
 not reasonable to interpret the statute to
 require EPA to spend scarce resources
 on actions with so little environmental
 significance.
   Other commenters questioned
 whether issuance of an alternate
 mechanism would terminate  interim
 status. This rule does not modify the
 requirements to terminate interim
 status, which are outlined in  § 270.73.
 Thus, facilities that have units that
 closed with waste in place under
 interim status, and do not receive a
 post-closure permit as a result of this
 rule,  will remain in interim status until
 there is final disposition of a permit
 application (in the case of these closed
 facilities, a permit denial) under
 § 270.73(a). EPA recognizes that owners
 and operators may want to terminate
 interim status when all RCRA activities
 are complete at a facility to bring
 finality to those activities, and that this
 is an  important issue not only to
 facilities subject to post-closure
 requirements, but to all facilities that
 closed without obtaining a RCRA
 permit. EPA plans to issue guidance
 related to denial of permit applications
 for purposes of terminating interim
 status at closed facilities that have
 completed all RCRA activities,
 including facility-wide corrective
 action.
  The Agency agrees that some
 integration of the closure and facility-
wide  corrective action requirements is
warranted. The Agency has taken steps
in this final rule to address the situation
where two units are involved in the
same  remedy and there is potential for
the two sets of requirements to conflict.
  Other commenters raised concerns
that the rule would affect EPA's current
policy of using only one authority—
  CERCLA or RCRA—at a site. Another
  commenter conditioned support for the
  proposal on EPA clarifying that it does
  not intend to modify its current
  Superfund policy that defers
  remediation activities to RCRA
  corrective action authority. On June 10,
  1986, EPA published a final policy that
  allowed the Agency to defer listing
  RCRA-related sites on Superfund's
  National Priorities List (see 51 FR
  21054). This commenter is concerned
  that if the Agency adopts the rule as
  proposed, which would allow use of
  Superfund orders as an alternative
  mechanism for RCRA post-closure
  permits, then the Agency would begin
  to deviate from that policy. The
  commenter believes that the reasons for
  deferral to RCRA authority cited in the
  deferral policy are still valid.
   This rule does not modify the
  Agency's current policies related to the
  applicability of CERCLA and RCRA at
  hazardous waste sites. For example, the
 rule does not affect CERCLA listing
 policy. The Agency expects that RCRA
 facilities will, generally, continue to be
 handled under RCRA, rather than
 CERCLA. Rather, the result of this rule
 is that once the Agency decides to
 address a site under CERCLA authority,
 EPA is no longer required to issue a
 post-closure permit at the site, as long
 as the CERCLA cleanup has the same
 scope as a corrective action cleanup
 would have.

 2. Requirements for Alternative
 Mechanisms
  Under the provisions of this rule that
 remove the requirement for post-closure
 permits, regulated units that do not
 obtain a post-closure permit generally
 will remain subject to the requirements
 for interim status units throughout the
 post-closure care period. However,
 because the interim status post-closure
 care requirements are in some respects
 less stringent than post-closure permit
 requirements, the Agency is
 promulgating § 265.121. This section
 recognizes the difference in substantive
 requirements applicable to permitted
 and interim status post-closure units,
 and assures that this rule will not result
 in less stringent requirements at units
 addressed through alternate
 mechanisms.
  Specifically, §265.121 requires
 owners and operators of regulated units
 addressed through an alternate
 mechanism to comply with the
 groundwater requirements of Part 264
 Subpart F (with respect to that unit), to
submit information required under Part
270, and to address facility-wide
corrective action. EPA will review State
order authorities to ensure that they are
  capable of imposing these requirements
  before authorizing States to use them.
    a. Part B In formation Submission
  Requirements (§265.121 (a)<(!)). i.
  Overview. To ensure substantive
  equivalency of authorities used in lieu
  of post-closure permits, this rule
  requires owners and operators to submit
  the Part 270 information specifically
  required for post-closure permits, upon
  request by the Agency, when an
  enforceable document is issued in lieu
  of a post-closure permit. The
  information submission requirements
  for post-closure permits are
  promulgated in this final rule in
  § 270.28, and are discussed in detail in
  section III.D. of this preamble. Section
  270.28 specifies  information the Agency
  believes will be important for all post-
  closure permits,  and, in turn, for all
  enforceable documents issued in lieu of
  post-closure permits, that is,
  groundwater characterization and
  monitoring data, information related to
  long-term care of the regulated unit and
  monitoring systems, and information on
  SWMUs and possible releases.
   In addition, recognizing that
  additional information may be needed
  on a site-specific basis, § 270.28 also
  allows the Regional Administrator to
 require any of the Part B information
 specified in §§270.17, 270.18, 270.20,
 and 270.21. Section 265.121 (a)(1) adopts
 this approach for enforceable
 documents issued in lieu of post-closure
 permits as well.
   ii. Response to Comment. One
 commenter asked EPA to state explicitly
 in the rule that facilities pursuing the
 alternative approach would not be
 required to submit the information
 required in § 265.121 (a) (1) any earlier
 than they would otherwise be required
 to submit a Part B application. EPA
 agrees with the commenter that the
 information would not be required
 earlier in the case of an alternate
 authority than it would be in the case
 of a permit. In the case of post-closure
 permits, the Agency typically calls in
 Part B information when it is ready to
 begin working on the permit
 application. This has become the
 Agency's practice because the Agency
 recognizes that, if information is
 submitted earlier, it can become
 outdated and have to be replaced when
 it is time to work on the permit. The
Agency is extending this practice to
instances where a non-permit
mechanism is used to address post-
closure care. As in the case of the post-
closure permit, the information required
by §265.121(a)(l)  for non-permitted
facilities need not be submitted to the
Agency until the Agency requests it.

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              Federal Register/Vol. 63, No. 204/Thursday, October 22, 1998/Rules and  Regulations     56719
    b. Subpart F Groundwater Monitoring
  and Corrective Action Program
  (§§265.121(c)(3) and 264.90—264.100).
  i. Overview. This rule requires owners
  and operators of facilities with regulated
  units addressed through a non-permit
  mechanism under § 270.1 (c) (7) to meet
  the requirements of Part 264, Subpart F.
 -Section 265.118(c)(4) requires that the
  post-closure plan include provisions
  that implement the Part 264 Subpart F
  requirements.3 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. Commenters generally
  supported this approach, and the
  Agency is promulgating this provision
  as proposed.
    ii. Response to Comment. Though
  many commenters supported the
  proposed provision, others argued that
  it was an illegal expansion of the
  Agency's statutory authority. EPA
  disagrees. The statute does not limit
  EPA's ability to impose more stringent
  groundwater monitoring requirements
  on interim status facilities. EPA
  developed the current regulations based
  on the premise that facilities would
 remain in interim status only
 temporarily and ultimately would
 receive permits and become subject to
 the requirements of Part 264 for
 groundwater. As a result of this rule,
 however, some facilities that closed
 while still under interim status
 standards will not receive a permit. EPA
 believes it is within the Agency's
 statutory authority to modify the
 regulations and assure that those
 facilities ultimately comply with the
 more stringent requirements of Part 264,
 whether a permit is issued or an
 alternate authority is used to address
 post-closure care.
   One commenter conditioned support
 for the proposal on EPA removing Part
 264 groundwater requirements for
 regulated units, and requiring instead
 that they have a groundwater
 monitoring and response program that is
 necessary to protect human health and
 the environment.
   In the second part of this rule, EPA is
 providing discretion to waive Part 264
 groundwater monitoring only in cases
 where corrective action will provide
 opportunities for oversight by the
 implementing Agency. In other cases,
 the Agency continues to believe that it
 needs the detailed requirements of Part
  3 Note that §§ 264.90(f) and 265.90(f) of this rule
amend the requirements of Subpart F to allow the
Regional Administrator to replace Subpart F
requirements at regulated units with requirements
developed through a corrective action process, in
some cases (seesection III.B. of this preamble).
  264, with interaction with the
  overseeing agency, to ensure protection
  of human health and the environment.
  In proposing to modify the requirement
  for post-closure permits, the Agency did
  not intend to remove or modify the
  groundwater requirements applicable to
  regulated units under post-closure
  permits—'only to allow regulators to use
  a variety of mechanisms to impose those
  requirements. Thus,  EPA believes that
  commenter's request extends to issues
  that are outside the scope of this
  rulemaking.
    c. Facility-Wide Corrective Action
  (§265.121 (a)(2)). i. Overview. This rule
  requires that authorities used at post-
  closure facilities as alternatives to post-
  closure permits impose corrective action
  requirements consistent with the statute
  and §264.101 of the regulations. The
  rule does 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
  are appropriate, but EPA has not limited
  alternative authorities to this section.
  State enforcement authorities analogous
  to section 3008(h) or State cleanup or
 superfund authorities also would be
 appropriate, if they were used
 consistently with the  requirements of
 § 265.121 (seerequirements for State
 authorization in section IV.D.1. of this
 preamble).
   In requiring facility-wide corrective
 action consistent with RCRA section
 3004 (u) and (v) provisions, EPA does
 not intend to require that cleanup
 programs relying oh alternative
 authorities use the procedures of EPA's
 Subpart S proposal (which the Agency
 significantly revised in its May, 1996
 ANPR)  or permit requirements. Rather,
 the authorities must be broad enough to
 meet the performance standards of
 §264.101. For example, compliance
 with the National Contingency Plan
 (NCP) procedures for remedy selection
 would satisfy these proposed
 requirements. EPA wishes to emphasize,
 however, that an alternative approach to
 corrective action at a facility, used in
 lieu of a permit, must include a facility-
 wide assessment, must address releases
 of hazardous wastes or constituents to
 all media from all SWMUs within the
 facility boundary (as well as off-site
 releases to the extent required under
 section 3004(v)—as necessary to protect
 human health and the  environment),
 and must be protective of human health
 and the  environment. Anything less
 than that, in  EPA's view, would not
meet the basic requirements of RCRA
sections 3004(u) and (v) or §264.101.
  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.
    ii. Response to Comment.
  Commenters generally supported this
  provision, and many commenters agreed
  that the Agency should not require
  corrective action procedures identical to
  those in EPA's Subpart S proposal.
    Some commenters objected to the
  principle that corrective action be
  consistent with the Subpart S proposal.
  These commenters believe that because
  the Subpart S requirements and
  procedures are not final, it is legally
  indefensible to base a rule on them.
  Another commenter believed that until
  Subpart S regulations are codified and
  adopted, corrective action clean-up
  standards should meet the RCRA
  closure performance standard.
    EPA agrees that alternative authorities
  used to address corrective action should
  be consistent with promulgated
  standards and with the statute. EPA did
  not intend this rule to require
  compliance with portions of the Subpart
  S proposal that have not yet been made
  final. Rather, this rule requires that the
  authorities must be consistent with
  promulgated § 264.101. It should be
  noted that authorities consistent with
  §264.101 include provisions originally
  proposed under Subpart S, that is,
  provisions allowing designation and use
  of corrective action management units
  (§ 264.552) and temporary units
  (§264.553).

 3. Public Involvement (§ 265.121 (b))
   a. Overview. The public involvement
 provisions proposed in the November 8,
 1994 rule are modified in this final rule.
 In the November 8, 1994 rule, the
 Agency proposed to require a minimum
 level of mandatory public participation
 for all facilities where alternate
 authorities were used in lieu of post-
 closure permits. Proposed § 262.121 (b)
 would have established the following
 requirements at the point of remedy
 selection: (1) public notification of the
 proposed remedy through a local
 newspaper; (2) opportunity for public
 comment (at least 30 days); (3)
 availability of a transcript of the public
 meeting; (4) availability of a written
 summary of significant comments and
 information submitted, and the EPA or
 State response; and, (5) 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. The Agency proposed
an exception to these requirements in

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 56720     Federal  Register/Vol. 63, No.  204/Thursday, October 22, 1998/Rules  and Regulations
 § 265.121 (b) (2), whereby if a delay in
 the implementation of the remedy
 would adversely affect human health or
 the environment, EPA could delay the
 implementation of the public
 Involvement requirements.
   This final rule requires the Regional
 Administrator to assure that a
 meaningful opportunity for public
 Involvement occurs, which includes, at
 a minimum, public notice and
 opportunity for comment, at three key
 stages—when EPA or the authorized
 State agency first becomes involved in
 the cleanup process as a regulatory or
 enforcement matter, when EPA or the
 authorized State Agency is ready to
 approve a remedy for the site (this
 opportunity must include a chance to
 comment on the assumptions on which
 the remedy is based), and when EPA or
 the authorized State is ready to decide
 that remedial action is complete at a
 facility. The rule does not limit public
 involvement to these stages of cleanup;
 rather, it encourages early, open, and
 continuous involvement of the public
 when alternate authorities are used at a
 facility in lieu of post-closure permits,
 similar to the public involvement
 provided by the permitting process. In
 addition to notifying the public at these
 three key stages. EPA believes
 meaningful public involvement
 includes regular updating of the
 community on the progress made
 cleaning up the facility.
  Additionally, it is the Agency's
 expectation that owners and operators
 conducting cleanups prior to the
 Agency's or authorized State's
 involvement will involve the public in
 decisions throughout the remediation
 process. Owners and operators should
 provide notice and opportunity to
 comment prior to selecting a remedy if
 they wish to later rely on that remedy
 as part of an enforceable document
 issued in lieu of a post-closure permit.
 The Agency took this approach based on
 several considerations.
  First, it is EPA's policy to encourage
 public involvement early and often in
 the permitting process, in its
 remediation programs, as well as in
 other Agency actions. EPA wanted this
 rule to be consistent with that policy.
  Second, EPA recognized that the post-
 closure permit process assures
 opportunity for public involvement at
 the time of permit issuance, and through
 the permit modification procedures.
 EPA wanted this rule to provide similar
 opportunities when an alternate
 authority is used to address a facility.
  Third, EPA recognized that existing
State and Federal authorities provide for
 public involvement through widely
varying processes. EPA wanted to
  provide sufficient procedural flexibility
  to minimize the likelihood that States
  would have to modify the public
  involvement provisions of their existing
  cleanup programs to qualify for
  authorization, yet EPA wanted to assure,
  at the same time, that those programs
  provided for meaningful public
  participation at key stages of the
  remediation process.
   Fourth, EPA recognizes that many
  cleanup activities have taken place prior
  to promulgation of this rule and others
  will take place prior to the adoption of
  the State's program for this rule through
  Federal, State, and facility-initiated
  actions, and EPA recognizes that those
  cleanups may or may not have involved
  the public in the way specified in the
 final rule. In cases where the cleanup
 began prior to the effective date of the
 rule, EPA did not want to require post-
 closure permits to be issued simply
 because the early stages of public
 involvement procedures of this rule
 were not met.
   Finally, EPA recognized that in some
 cases, where delay in a cleanup  might
 have an impact on human health and
 the environment, public involvement
 may not be possible prior to
 implementation of the remedy. EPA did
 not want to delay cleanup in those
 cases, but wanted to assure that the
 public was involved in the process as
 promptly as possible after the
 emergency was addressed. EPA wanted
 this rule to allow cleanups to take place
 immediately in these cases, but assure
 that public involvement would follow at
 the earliest opportunity. As explained
 below, the final rule authorizes EPA or
 the authorized State to modify public
 involvement requirements in those
 circumstances.
  This rule encourages early public
 involvement by requiring public
 involvement (which at a minimum
 includes public notice and opportunity
 for comment) as soon as the authorized
 regulatory agency becomes involved in
 the cleanup process as a regulatory or
 enforcement matter (unless this might
 lead to a delay in the cleanup that
 would adversely affect human health
 and the environment). In most cases, the
 Agency anticipates, this will be very
 early in the process, prior to remedy
 selection—certainly before any Agency-
 prescribed remedies occur (except in
 cases of emergency). For example, the
 affected community should be notified
 and given an opportunity to comment
 prior to the initiation of any activity to
 assess contamination or prior to the
 implementation of any interim measure.
 By requiring early public notice of
activities at a site, the Agency intends
this rule to encourage involvement of
  the public throughout the cleanup
  process.
   EPA proposed to require public
  involvement during the remedy
  selection process. EPA is retaining this
  requirement in the final rule. EPA has,
  however, made the requirement more
  specific by requiring public notice and
  comment on both the proposed remedy
  and the assumptions upon which it is
  based, including site characterization
  and land use.
   The Agency understands "remedy
  selection" as a term of art in the RCRA
  corrective action or in the Superfund
  process, where the regulatory agency
  either selects or approves a remedy
  proposed by the owner or operator. In
  some cases an owner or operator may
  implement an action that could be
  considered a "remedy" prior to the
 Agency or State's involvement or
 oversight. The owner or operator should
 provide notice and opportunity to
 comment on the prospective remedy
 and its underlying assumptions,
 otherwise, any enforceable document
 developed later may not be eligible to
 substitute for a post-closure permit. In
 those cases, the owner or operator may
 have to follow the permit process to
 obtain a post-closure permit or to obtain
 a permit denial (if no further action is
 necessary).
  This rule also requires public
 involvement to assure that notice and
 opportunity to comment take place prior
 to the Agency or authorized State
 deciding that remedial action is
 complete at a facility. When additional
 corrective action is no longer needed,
 the Agency could terminate an
 enforcement order or terminate interim
 status at the facility through the permit
 denial process in Part 124. Either
 process would ensure full opportunity
 for public participation, including
 permit appeal provisions. The rule,
 however, would allow alternative
 mechanisms, as long as the Agency or
 the authorized State provided public
 notice of its actions, and opportunity to
 comment prior to making the  final
 decision that remedial action is
 complete at the facility.
  This rule also requires that  all public
 involvement be meaningful. Meaningful
 public participation is achieved when
 all impacted and affected parties have
 ample time to participate in the facility
 cleanup decisions. In many cases
 meaningful public involvement will
require careful planning and more than
notice and opportunity for comment. In
some cases, meaningful public notice
may require bilingual notifications or
publication of legal notices in city or
community newspapers (or other media,
such as radio, church organizations and

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             Federal Register/Vol. 63, No. 204/Thursday, October 22, 1998/Rules  and Regulations     56721
 community newsletters). EPA
 recommends that parties responsible for
 involving the public provide
 information at all key milestones in the
 remediation process, and site fact
 sheets. Existing forums of community
 communication such as regular
 community meetings and electronic
 bulletin boards can be used to provide
 regular progress reports on the facility
 cleanup. Additionally, EPA
 recommends that parties responsible for
 involving the public update the
 community regularly on the progress
 made cleaning up the facility.
   Often, the level of public involvement
 will depend on the significance of the
 action—for example, the Agency may
 simply notify the public of a decision to
 remove a small quantity of waste, but
 higher levels of involvement would be
 called for at remedy selection in a major
 remedial action, or when a decision is
 made that may impose significant
 restrictions on land use. For these
 reasons, EPA believes that public
 involvement should be tailored to the
 needs at the site, and has provided
 flexibility in this rule.
   EPA has long recognized that the level
 of public involvement should be
 determined by the significance of the
 action taking place. For example, in a
 final rule dated May 24, 1993 (see 58 FR
 29886), EPA promulgated regulations to
 govern modification of permits. Those
 regulations established different levels
 of public involvement depending on the
 significance of the permit modification.
 Class 1 modifications require minimal
 public involvement—the permittee  must
 send a notice of the permit modification
 to all persons on the facility mailing list,
 and to the appropriate units of State and
 local government. Persons may request
 review of the permit modifications.
 Class 3 modifications, on the other
 hand, require far more extensive
 involvement of the public—publication
 in a local newspaper, a public meeting,
 and a public comment period. To assist
 owners and operators in implementing
 the rule, in Appendix 1 to §270.42,  EPA
 classified different activities as class 1,
 2, or 3 modifications, based on the
 significance of the action.
  EPA also issued guidance on public
 involvement which complements the
 approach in this rule (see the RCRA
 Public Participation Manual, September,
 1996, EPA 530-R-96-007). This manual
 provides guidance on addressing public
 participation in the permit process,
 including permitting and enforcement
remedial action activities. It emphasizes
the importance of cooperation and
communication, and highlights the
public's role in providing valuable
input. It stresses the importance of early
  and meaningful involvement of the
  public in Agency activities, and of open
  access to information. In addition to the
  manual, EPA fully endorses The Model
  Plan for Public Participation, developed
  by the Public Participation and
  Accountability Subcommittee of the
  National Environmental Justice
  Advisory Council (a Federal Advisory
  Council to the U.S. Environmental
  Protection Agency). The Model Plan
  encourages public participation in all
  aspects of environmental
  decisionmaking. It emphasizes that
  communities, including all types of
  stakeholders, and regulatory agencies
  should be seen as equal partners in any
  dialogue on environmental justice
  issues. The model also recognizes the
  importance of maintaining honesty and
  integrity in the process by clearly
  articulating goals, expectations and
  limitations. EPA encourages regulators
  and owners and operators implementing
  the provisions of this final rule to refer
 to these guidances.
   It should be noted that the Agency
 proposed in § 265.121 (b) (2) to allow the
 Regional Administrator to delay or
 waive the public participation
 requirements upon a determination that
 even a short delay in the
 implementation of the remedy would
 adversely affect human health or the
 environment. EPA believes this
 flexibility is important to assure
 protection of human health and the
 environment, and has promulgated that
 provision, with minor revisions, in this
 final rule.
   It also should be noted that the
 Agency proposed a § 265.121 (b) (3),
 which would have allowed EPA to
 address a facility using an approved
 alternate authority where cleanup
 activities were conducted prior to the
 effective date of this rule, but the public
 involvement procedures of this rule
 were not met. That provision would
 have required the Agency to conduct
 public involvement before considering
 the facility fully addressed under
 § 270.1 (c) (7) (ii). The Agency has
 retained this provision.
   b. Response to Comment. EPA
 received a variety of comments on the
 public involvement provisions of this
 rule. Some commenters believed the
 Agency had not gone far enough to
 assure public participation when
 alternate authorities are used in lieu of
 permits; others agreed with the
Agency's approach; and others believed
the public participation provisions of
the proposal were too stringent. EPA
considered those comments in
developing the public involvement
provisions of this final rule. Those
comments are discussed below.
    i. The proposed rule did not preserve
  public involvement procedures when an
  alternate mechanism is used. Many
  commenters believed that, despite
  statements in the preamble to the
  contrary, the Agency had not gone far
  enough in the proposed rule to preserve
  the public involvement procedures
  when alternate authorities are used in
  lieu of post-closure permits. These
  commenters believed that if the Agency
  allows alternate authorities to replace
  post-closure permits, it should assure
  that the public involvement procedures
  of the alternate authority are equivalent
  to that of a permit. These commenters
  believed that the proposal failed to do
  so in several respects.
    First, these commenters noted that
  public participation was required by the
  proposal only at the time of remedy
  selection. Commenters pointed out that
  remedy selection occurs at a later stage
  of the remedial action process,
  following the development of schedules
  of compliance, and the preparation and
  evaluation of plans, reports, and
  remedial investigations. They pointed
  out that many decisions have already
  been made by the point of remedy
  selection, and that earlier public
  involvement allows more meaningful
  opportunity to affect those decisions.
  Commenters noted that when remedial
  action is implemented through a permit,
 these steps are subject to public
 participation requirements, through
 either permit issuance or permit
 modification procedures.
   EPA agrees with the concerns raised
 by these commenters and that the public
 should be included in the
 decisionmaking process as early as
 possible. EPA agrees that early public
 participation provides the community a
 more meaningful role  in the process.
   To address these concerns, this rule
 requires public involvement to begin
 when the authorized agency first
 becomes involved in the cleanup
 process as a regulatory or enforcement
 matter. The Agency anticipates that, in
 most cases, this will be very early in the
 cleanup process, prior to proposed
 remedy selection.
   Second, several commenters objected
 that no rights of appeal are provided or
 guaranteed when an alternative
 mechanism is used in lieu of a permit,
 even though such rights are provided in
 the permitting process. These
 commenters believed that these appeal
 rights must be preserved as part of the
 final rule for alternative mechanisms to
 be as protective as the post-closure
 permit. These commenters pointed out
 that under existing procedures, a
hearing is available under Part 124
procedures to challenge a permit, while

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 56722      Federal Register/Vol. 63, No. 204/Thursday, October 22, 1998/Rules and Regulations
 EPA hearing procedures established for
 the respondent only under section
 3008(h). Part 24 are less formal and
 comprehensive. Also, no pre-
 enforcement review is available for
 CERCLA 106 orders. These commenters
 believe that an alternate authority used
 in lieu of a post-closure permit should
 be reviewable under Part 124.
   EPA recognizes that this rule does not
 guarantee pre-enforcement review of
 remedies implemented through
 alternate authorities. However, neither
 RCRA nor the Administrative Procedure
 Act require EPA to provide
 opportunities for the public to obtain
 judicial review of enforcement orders.
 For example, no such review is required
 under section 3008 (h). Further, EPA
 believes that the ability to require
 prompt cleanup is important to assuring
 protection of human health and the
 environment. The new rule will make it
 easier to require cleanup at facilities
 where permit issuance would have been
 difficult or impossible. Thus, on
 balance, the rule promotes
 environmental protection. Finally,
 issuance of these alternatives orders
 does not terminate interim status. To
 terminate interim status, the Agency
 must make a final permit determination
 under the procedures of Part 124, and
 that decision, like a decision to issue a
 permit, is reviewable. Members of the
 public who believe that additional
 cleanup is required to meet the
 requirements of §264.101 can raise that
 issue at that time.
  One commenter objected that the
 proposal is at odds with Executive
 Order 12898, which instructs EPA to
 ensure greater public participation by
 minority and low-income populations at
 hazardous waste sites. This commenter
 expressed concern that the rule as
 proposed would  further isolate
 vulnerable populations from the
 decislonmaking process.
  EPA disagrees  with commenter that
 the effect of this rule will be to isolate
 minority and low-income populations
from the decisionmaking process. EPA
 has promulgated requirements in this
final rule that assure meaningful
 involvement of the public in cleanups at
 post-closure facilities regardless of the
mechanism used. These requirements
will apply to all post-closure facilities,
and will benefit all populations,
including minority and low-income. In
addition, EPA emphasizes that it will
implement the rule in full compliance
with Executive Order 12898. Other
commenters pointed out that Part 124
requires a 45-day public comment
period, while the proposal required only
30 days. Some commenters believed
that the procedures associated with
 alternative post-closure mechanisms
 should follow the public participation
 procedures associated with permit
 issuance to make sure coverage is
 adequate and consistent. One
 commenter suggested that the rule
 specify a minimum comment period,
 and allow a longer period, at the
 Regional Administrator's discretion.
 Another commenter believed that since
 EPA has not demonstrated that public
 involvement procedures are hindering
 cleanups, there is no justification for
 lesser procedures.
   EPA disagrees with the commenters
 that minimum comment period times or
 specific procedures are necessary, and
 did not establish detailed procedural
 requirements for public involvement in
 this final rule. However, EPA does
 expect the public to be given an
 opportunity to get involved early in the
 process and ample time to participate in
 the facility cleanup decisions. EPA took
 this approach because it recognizes that
 many different approaches to public
 participation have proved successful,
 and it did not wish to restrict existing
 State or Federal programs unnecessarily.
 The approach in this rule allows States
 to implement their own  established
 procedures—as long as they provide for
 public notice and comment at the key
 stages in the process required by this
 rule.
  ii. The public involvement procedures
 of the proposed rule were adequate.
 Other commenters believed that the
 level of public participation proposed
 by the Agency was adequate, and would
 provide an effective mechanism for
 adequately informing the public with
 regard to proposed remedies, and
 allowing public comment and public
 involvement in the remedy selection
 process.
  Other commenters who generally
 agreed with the Agency's approach,
 requested some modifications in the
 final rule. One such commenter
 supported the requirement for public
 participation during the remedy
 selection process, but believed that the
 rule should also include a requirement
 for a brief description of the scope of the
 contamination to be remediated, if any,
 and a requirement for the placement of
 supporting documents in a local
 information repository. Another
 commenter believed that the rule must
 explicitly require that public access to
 information submitted for alternative
 mechanisms should be provided as if
 the information were contained in the
 Part B permit application.
  EPA agrees that this type of
 information should be made available to
the public, and anticipates that it will,
where appropriate. However,  as
 discussed above, the Agency is not
 prescribing detailed procedural
 requirements for public involvement in
 this final rule. The Agency intends this
 rule to provide meaningful public
 involvement while, at the same time,
 provide maximum flexibility to States to
 implement their cleanup programs. The
 Agency recognizes that, clearly, public
 involvement cannot be meaningful if
 there is not adequate access to
 information and, therefore, the Agency
 encourages regulators and owners or
 operators to make information regarding
 the site available to the public. At the
 same time, the Agency does not want to
 prescribe in detail in this final rule
 when and how the regulatory agency
 should provide information to the
 public. By requiring meaningful
 involvement of the public, the Agency
 believes that this final rule addresses
 commenter's concerns by requiring
 meaningful public involvement, which
 includes adequate access to information,
 and that detailed regulations prescribing
 access to specific information are not
 necessary.
   One commenter agreed with the
 provision of the  proposal that would
 allow EPA to waive public involvement
 procedures where immediate action is
 necessary to protect human health or
 the environment, but believed that
 public involvement should not be
 waived for long-term actions. EPA
 agrees with this commenter and the rule
 reflects this approach. In proposing the
 waiver provision of § 265.121 (b), EPA
 intended to allow regulatory agencies to
 delay public involvement and get
 cleanup underway immediately, where
 necessary to protect human health and
 the environment, but not to remove the
 requirement for public participation. In
 response to this comment,  EPA has
 modified the regulatory language of
 § 265.121 (b) in this final rule to clarify
 the Agency's intent.
  iii. The public involvement
 procedures of the proposed rule were
 too stringent. A third group of
 commenters believed that the public
 involvement requirements of the
 proposal were too stringent, and did not
 provide enough flexibility to the States.
 For example, one commenter stated that
 the proposed public participation
 requirements for alternative
 mechanisms were excessive,
 unnecessary, and inconsistent with
 existing public participation
 requirements. Another stated that there
 is no need for public participation for
remedial action orders and closure plan
approval to be equivalent to the
requirements of Part 124 and Part 270,
and that alternate, less stringent
procedures would suffice.

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              Federal Register/Vol. 63, No.  204/Thursday, October 22, 1998/Rules and Regulations     56733
    EPA believes that public involvement
  is important in all agency actions,
  including enforcement orders.
  Consequently, EPA is requiring public
  participation at three key stages.
    Some commenters believed that EPA
  should defer to State programs for
  public involvement as long as they
.  provide basic due process and
  reasonable public input. These
  commenters believed that States should
  have reasonable flexibility to make site-
  specific determinations regarding the
  level of public participation that is
  appropriate at a site, and to adopt public
  involvement procedures that meet the
  needs of their own State. They believed
  that the benefits of public comment are
  preserved by requiring the States to
  provide public notice, and that specific
  differences in process are of differences
  of degree, and not substance.
   EPA agrees that many States have
  developed cleanup programs with
  appropriate public involvement, and
  has tried to balance the  need to ensure
  adequate public participation against
  requirements that constrain States. EPA
  believes the approach in the final rule
  strikes an appropriate balance. EPA, for
  example, allows States to decide how
  much notice must be given, and how
 long comment periods must last.
   Some commenters believed that the
 proposal would expand the current
 requirements for public involvement.
 According to these commenters, when
 post-closure permits are modified to
 incorporate a proposed remedy, the
 current requirements for permit
 modification require publication in a
 newspaper for seven days, a public
 hearing, and a 60-day public comment
 period, regardless of how the action is
 changed based on public comment. The
 proposal would require much more at
 remedy selection, thus would be more
 expansive than the existing regulations.
To maintain consistency, commenters
believed the rule should mirror the
public involvement procedures of
§270.41.
  EPA acknowledges the commenter's
concern, and believes that it has
addressed them by leaving the details of
the notification process and the length
of the comment period to the discretion
of the overseeing agency.
  Some commenters did not agree that
public involvement procedures should
apply to actions taken under section
3008 (h), because public comment on an
enforcement proceeding would be
inappropriate and would unnecessarily
complicate and confuse the process,
while increasing costs and delaying the
process. One commenter pointed out
that the  public currently has no
assurance it will have opportunity to
  participate in the remedial action
  process when remedial action is
  implemented through an enforcement
  order, as the Agency's enforcement
  programs have discretion to limit public
  participation, yet there is no evidence
  that the lack of public participation in
  enforcement orders has been
 ' detrimental to the process.
    EPA disagrees with this commenter
  that public involvement unnecessarily
  complicates and confuses the cleanup
  process—in fact, the Agency believes
  that the public is an important
  contributor to the cleanup process. It
  helps ensure that remediation does, in
 fact, protect human health and the
 environment, and that remedies are
 based upon reasonable.assumptions,
 including assumptions of future land
 use. EPA is committed to public
 involvement in its oversight of cleanup
 decisions, and the Agency's policy is to
 provide for meaningful public notice
 and comment with every section
 3008(h) order. The requirements
 promulgated in this final rule are
 consistent with current EPA guidance
 on section 3008 (h) orders.
   Another commenter believed that
 EPA should recognize the wide array of
 actions that may occur, from small to
 significant, and the increasing tendency
 to accomplish remedial action through a
 series of interim measures, rather than
 a single major action. This commenter
 believed that the Agency should tailor
 public participation measures to ensure
 participation during significant actions
 without slowing the conduct of the
 program by requiring extensive
 administrative procedures for each and
 every small action that may be taken.
 The commenter believed that the public
 participation measures should be
 flexible enough to ensure adequate
 public involvement and avoid serving as
 yet another brake on the system.
   EPA believes that the approach to
 public involvement in this final rule
 addresses this commenter's concern.
 The rule requires public involvement
 when the Agency becomes involved in
 a remediation at the facility as a
 regulatory or enforcement matter; on the
 proposed preferred remedy and the
 assumptions upon which the remedy is
 based, in particular those related to land
 use and site characterization; and prior
 to making the final decision that
 remedial action is complete at the
 facility. EPA expects that these
 requirements will be applied flexibly,
 and it does not expect "extensive
 administrative procedures for each and
 every action." For example, in some
 cases, public comment might be
provided on a general strategy, which
included interim measures as well as
  specific final cleanup standards. In
  other cases, the public might prefer
  monthly or quarterly updates to activiry-
  by-activity notice. The point is that the
  public must have early involvement and
  must have an opportunity to comment
  before the regulatory agency commits
  itself to a final remedy or decides final
  remedial action is complete at the
  facility. Within this framework, EPA
  believes the regulatory agency has
  opportunity to structure a reasonable
  approach based on the needs at the site.
  At the same time, the public is put on
  notice early in the process that activities
  are taking place.

  4. Enforceable Documents Issued Prior
  to the Effective Date of This Rule
  (§265.121(b)(3))
    a. Overview. It is likely that, prior to
  final promulgation of this rule EPA and
  authorized States will have required site
  assessments or cleanup under a variety
  of authorities, other than post-closure
  permits, at facilities currently subject to
  post-closure permit requirements. Most
  of these actions, if taken after
  promulgation, would have satisfied the
  requirements of this rule. EPA proposed
  and is taking final action to provide a
  means to give credit to such prior
  cleanup actions by soliciting public
  comment on the activities conducted
  before the effective date of the rule
    Under § 265.121 (b) (3), EPA must
  provide an opportunity for public
  comment if the enforceable document
  imposing those remedies is intended to
  be used in lieu of a permit. Depending
 on public comment, EPA may impose
 additional requirements either by
 amending the existing order, issuing a
 new order, modifying the post-closure
 plan, or requiring a post-closure permit.
   b. Response to Comment. Several
 commenters objected to this provision
 of the rule.
   According to one commenter, the
 proposed approach, if designed to
 provide finality to owners or operators,
 was a good idea in that it could provide
 them with early assurance that they
 would not have to repeat closure, post-
 closure, cleanup or investigations at a
 later date. However, this commenter
 strongly  opposed this provision to the
 extent that it contemplates any such
 post hoc adequacy determinations
 would be the impetus to reinvestigate
 and/or require additional remedial
 actions with respect to prior closure/
 post-closure activities. In addition, the
 commenter believed that when an
 owner or operator receives an adequacy
 determination under proposed
 § 265.121 (c) for prior closure/post-
closure activities under an alternative
legal authority, these activities should

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 56724      Federal Register/Vol.  63,  No. 204/Thursday, October 22, 1998/Rules and Regulations
 be expressly recognized as adequate in
 any subsequently-issued permit to
 assure the finality of any prior closure/
 post-closure determinations.
   Another commenter opposed any
 effort to retroactively apply new, more
 restrictive standards (for public
 involvement or selection of remedies) to
 past remedial actions, and to approved
 closures. According to the commenter,
 actions undertaken in good faith by the
 owner or operator with Agency approval
 should be done with reasonable
 assurance that they will be considered
 completed. The commenter believed
 that uncertainty would discourage
 remedial actions.
   Another commenter believed that this
 provision is beyond EPA's statutory
 authority. This commenter believed that
 EPA cannot conveniently ignore
 agreements entered into by it or States
 that were presumably within their
 authority. This issuance of a new
 regulation does not allow EPA to void
 binding agreements. Owners that have
 encouraged the Agency to use an order
 or consent agreement to oversee
 remedial action could be required to
 Implement different remedial actions
 simply because EPA promulgates a new
 regulation. The commenter believed that
 this provision would impose more
 onerous requirements for responsible
 owners and operators of facilities that
 are currently implementing remedial
 action.
   Another commenter suggested that
 before reopening an action, EPA should
 be required to demonstrate that the
 cleanup was not protective of human
 health and the environment. Another
 commenter expressed concern that any
 action undertaken in the past would be
 unlikely to meet current regulatory
 requirements, yet was likely taken by a
 cooperative facility aggressive in
 fulfilling its regulatory obligations at the
 time. According to the commenter, to
 reevaluate these facilities without any
 indication of potential environmental
 harm would create a costly
 administrative burden to both the
 Agency and the owner or operator,
 without any benefit to human health
 and the environment.
  EPA agrees with the commenters that
 expressed concern about any
 uncertainty that might arise for owners
 and operators due to this provision.
 However, EPA disagrees that this is the
 effect of this provision. This provision
 does not impose new requirements on
 owners and operators retroactively,
since owners and operators were subject
to RCRA permit requirements (including
section 3004 (u)) prior to this rule.
Instead, §265.121(e) would extend the
benefits of this rule to post-closure
 activities or cleanups conducted under
 enforceable documents issued before the
 rule was in effect even where these
 documents had not included public
 involvement. (Where the public had
 already had an opportunity to comment
 on the mechanism, there would be no
 need to invoke this provision.) EPA
 does not intend this provision to result
 in duplicative regulatory action, or to
 allow reopening of decisions that had
 already been made. Instead, it would
 simply ensure the public's opportunity
 to comment on a mechanism being used
 in lieu of a permit, if the public had not
 had an opportunity up to that point.
   EPA can understand the commenter's
 concerns about re-opening past
 cleanups. EPA and authorized States
 certainly do not expect to re-open
 acceptable remedies where they are
 already underway. EPA believes that, in
 most situations, the public would have
 been involved in the remedy selection.
 In cases where the public was involved,
 the Agency does not intend this
 provision to provide an opportunity to
 revisit issues that already were raised
 and addressed. Rather, the provision is
 designed to make this final rule
 available to facilities that may have
 begun cleanup prior to the effective
 date,  while, at the same time, assuring
 that the public has had opportunity to
 raise  issues prior to the Agency's final
 decision that corrective action is not
 needed or is no longer need at the site.
 Even under the current corrective action
 process, remedies undertaken before the
 permit is issued are typically
 incorporated into the permit through the
 permit procedures. Owners and
 operators of closed interim status
 facilities or non-RCRA State programs
 currently may conduct cleanups outside
 the post-closure permit process. When
 EPA or a State  issues a post-closure
 permit, it must determine that any prior
 cleanup meets the requirements of
 RCRA section 3004(u). If it does not—
 that is, if the cleanup is not protective
 of human health and the environment,
 or there are significant areas it does not
 address—EPA or the State may impose
 permit requirements requiring
 additional remediation work. Citizens
 may also raise the same issues in
 comment periods on draft post-closure
 permits and in challenges to permits
 that are issued. Thus, facilities face
 these  issues regardless of whether or not
 EPA allows older cleanups to be
recognized under this new alternative to
post-closure permits.
  In any case, EPA expects owners and
operators conducting cleanups without
involving EPA  to involve the public at
an early stage. EPA strongly discourages
owners and operators from waiting until
 the end of the process to involve the
 public. If concerns are raised by the
 public regarding the actions taken under
 the alternative mechanism, EPA may
 require additional action through an
 order or permit. Therefore, EPA is
 promulgating § 265.121 (b) (3).

 C. Remediation Requirements for Land-
 Based Units With Releases to the
 Environment

 1. Overview
   In the 1994 notice, EPA requested
 comment on the possibility of allowing
 the Regional Administrator to establish
 groundwater monitoring, closure and
 post-closure, and financial assurance
 requirements on a site-specific basis at
 regulated units addressed through the
 corrective action process (see 59 FR
 55778 at 55787-88). EPA specifically
 requested comment on this prospect for
 regulated units clustered with non-
 regulated units, all of which were
 releasing hazardous constituents to the
 environment, because of the concern
 that two different regulatory regimes
 would apply—for example, the
 regulated units could be subject to the
 detailed requirements of Part 264
 (which were developed as  a preventive
 requirement), while the non-regulated
 units could be subject to the more
 flexible remedial requirements for
 corrective action under §264.101 and
 associated guidance.
   EPA is promulgating in this notice
 final rules that will provide flexibility
 where a regulated unit is situated among
 SWMUs (or areas of concern), a release
 has occurred, and both the regulated
 unit and one or more SWMUs (or areas
 of concern) are suspected of
 contributing to the release. The final
 rule described in this section allows
 EPA and the authorized States to
 replace the regulatory requirements of
 Subparts F, G, and H at certain regulated
 units with alternative requirements
 developed under a remediation
 authority. This portion of the rule is
 designed to eliminate some of the
 problems Regions and  States have
 encountered where two sets of
 requirements apply at a cleanup site—
 requirements for closure at the regulated
 unit, and corrective action requirements
 at the SWMUs. It applies to both
 permitted and interim status units. It
 also applies to both operating and
 closed facilities. Further, it can be used
 at closed facilities using alternative
 authorities in lieu of post-closure
 permits.
  The closure process in Parts 264 and
 265 was promulgated in 1982, before the
Agency had much experience with
closure of RCRA units. Since that time,

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              Federal Register/Vol.  63,  No. 204/Thursday,  October 22, 1998/Rules and Regulations      56725
  EPA has learned that, when a unit has
  released hazardous waste or
  constituents into surrounding soils and
  groundwater, closure is not simply a
  matter of capping the unit, or removing
  the waste, 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 the complexity and variety of
  issues involved in remediation. Most
  remediation processes, on the other
  hand, were designed to allow site-
  specific remedy selection, because of
  the complexity of and variation among
  sites.
    Similarly, the groundwater
  monitoring requirements designed for
  regulated units do not provide sufficient
  flexibility for complex cleanups. The
  requirement to place wells at the
  downgradient edge of a regulated unit
  often would not make sense if there are
  SWMUs further downgradient. Also, the
  Part 264 regulations contain specific
  requirements for the selection of
  cleanup levels for hazardous
  constituents released to groundwater,
  and do not provide for considerations of
  technical practicability, which are
  critical in a remediation context.
  Corrective action and other remediation
  authorities provide more flexible (yet
  protective) regimes for selecting cleanup
 levels.
   Financial responsibility for closure or
 post-closure care may also work at cross
 purposes with financial responsibility
 for corrective action. It makes sense to
 allow a facility with funds set aside for
 closure of a regulated unit to spend
 those funds on a broader corrective
 action, when the regulated unit is being
 addressed in that corrective action.
   This portion of this rule revises the
 requirements of Parts 264 and 265
 Subparts F, G, and H, by adding new
 §§264.90(f), 264.110(c), 264.140(d),
 265.90(f), 265.110(d), and  265.140(d).
 Those provisions allow EPA to address
 environmental needs at certain closing
 regulated units with more flexible, but
 protective, site-specific requirements
 developed through a remediation
 process. EPA is providing flexibility
 where a Regional Administrator (or
 State Director) finds that a regulated
 unit is situated among SWMUs (or areas
 of concern), a release has occurred, and
 the regulated unit and one or more of
 the SWMUs (or areas of concern)  are
 likely to have contributed to the release.
  To provide greater flexibility for the
 cleanup of regulated units in this
 situation, EPA is giving the Regional
Administrator (or State Director)
discretion to replace the requirements
for .closure, groundwater monitoring.
  and financial responsibility set out in
  Parts 264 and 265 with standards
  tailored specifically for the cleanup. For
  closure, the new "generalized" standard
  is protecting human health and the
  environment by meeting the closure
  performance standard in either
  §264.111(a) and (b) or §265.111(a) and
  (b). For groundwater monitoring and
  financial responsibility, the new
  standard is protection of human health
  and the environment. The Regional
  Administrator can use these new
  standards to integrate the cleanup
  requirements for the regulated unit into
  the requirements for the SWMUs
  developed under remediation
  authorities. In addition, to reduce
  duplicative administrative processes,
  EPA is not requiring that the alternative
  requirements be incorporated into the
  permit, closure plan, and/or post-
  closure plan in all cases. In the case of
  permitted facilities, alternative
  requirements for a regulated unit might
  be included in the permit where related
  SWMUs were being addressed  under
  RCRA section 3004 (u), the permitting
  corrective action authority. EPA,
  however, wants the Regional
  Administrator to be able to use other
  authorities to develop the requirements
  for regulated units and related SWMUs,
  such as RCRA section 3008 (h),  CERCLA,
  and approved State remediation
  authorities. This rule, therefore, allows
  the Regional Administrator (or an
 authorized State) to determine that there
 is no need to impose the unit-specific
 requirements of Part 264 or Part 265
 because alternative requirements
 developed under an approved
 remediation authority will protect
 human health and the environment. The
 requirements for the regulated unit and
 the SWMUs developed under that
 authority can be set out in the permit or
 in an approved closure plan and/or
 post-closure plan, or can be set out in
 another enforceable document (as
 defined in §270.1(c)(7)), and referenced
 in the permit or approved closure plan
 and/or post-closure plan.
  For permitted facilities, EPA is
 modifying the requirements for content
 of the closure plan and closure plan
 modification by adding new
 §264.112(b)(8) and (c)(2)(iv), and post-
 closure plan content and post-closure
 plan modificationat§264.118(b)(4) and
 (d) (2) (iv) to require owners and
 operators to incorporate the alternative
 requirements into the closure plan and/
 or post-closure plan, or to incorporate
 into those plans a reference to the
enforceable document (or permit
section) that sets forth those
requirements. To do so, the owner or
   operator would use the existing
   procedures for closure plan and post-
   closure plan approval and modification
   in Part 264, and for permit
   modifications in Part 270. EPA expects
   that any such decision would be a
   "class 3" modification.
    For interim status facilities, EPA is
   similarly adding new §§ 265.112(b)(8)
   and (c) (2) (iv) and 265.118 (c) (5) and
   (d) (1) (iv)to require owners and operators
   to incorporate alternative requirements
   into the closure plan and/or post-
  closure plan, or to incorporate into
  those plans a reference to the
  enforceable document that sets forth
  those requirements. To do so, the owner
  or operator would use the existing
  procedures for closure plan and post-
  closure plan approval and modification
  in Part 265.
    Members of the public may also
  utilize current procedures to challenge
  either the specifics of how EPA is
  addressing a regulated  unit as part of
  corrective action (for example, if the
  corrective action is imposed through a
  RCRA permit),  or the decision by EPA
  or the State to address the regulated unit
  under alternative requirements set out
  in an enforceable document. Under
  EPA's federal rules, members of the
  public may file administrative appeals
  for permits; they may challenge closure
  or post-closure  plans in court.
    The Regional Administrator (or State
  Director) may use existing procedures
 for modifying permits or closure plans
 to revisit corrective action requirements
 for regulated units set out in permits or
 to revisit cleanups under alternative
 enforceable documents. EPA's rules
 allow permits, closure plans, and post-
 closure plans to be modified when
 significant new  information arises after
 the issuance of the plan or permit. Some
 developments during remediation may
justify use of this authority. For
 example, if a non-RCRA agency in
 charge of an alternate authority selected
 a very different remedy which, in the
 RCRA authority's judgement, would not
 adequately protect human health and
 the environment, the RCRA authority
 might consider this to be new
information warranting reconsideration
of the decision to defer existing RCRA
requirements for regulated units.
   Because the concept of deferring
closure, groundwater monitoring, and
financial responsibility requirements is
new, EPA is limiting the range of
authorities that can be used to craft
alternate requirements. First, a Regional
Administrator (or State Director) may
defer regulated unit requirements in
favor of requirements crafted under
corrective action for permits under
RCRA section 3004 (u) and corrective

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 56726     Federal Register /Vol. 63, No.  204/Thursday,  October 22, 1998/Rules and Regulations
 action orders for interim status facilities
 under RCRA section 3008 (h). The
 Regional Administrator (or State
 Director) may also defer to requirements
 established in actions under CERCLA
 section 104 and 106. EPA is familiar
 with the scope of these legal authorities
 and the enforcement mechanisms that
 accompany them. Any Regional
 Administrator (or State Director)
 wishing to defer to regulated unit
 requirements developed under these
 authorities need only consider whether
 the requirements will, in fact, protect
 human health and the environment.
  EPA also wants State Directors to be
 able to defer to State remedial
 authorities outside of RCRA. EPA,
 however, is less familiar with these
 authorities and their enforcement
 mechanisms. EPA, therefore, is
 requiring any State that wishes to use a
 non-RCRA authority to craft alternative
 regulatory requirements to submit that
 authority to EPA for review in the State
 authorization process. EPA will review
 the scope of the legal authority. It will
 determine for example, whether the
 authority can provide for cleanup of
 releases from a regulated unit to all
 media, as required under §§ 264.111 (b)
 and 265.111 (b). EPA will also review
 the State's mechanisms for enforcing the
 alternative requirements. Where a State
 will not be incorporating the new
 regulated unit requirements directly
 into a permit or closure plan enforceable
 under RCRA, EPA needs to have some
 assurance that it will be able to enforce
 them, if necessary. EPA is, in this
 notice, amending the existing
 requirements for enforcement of State
 programs in §271.16 to add a new
 requirement regarding the enforceability
 of these new, alternative regulated unit
 requirements. Recognizing that effective
 enforcement mechanisms may vary
 greatly from State to State, EPA is
 promulgating a general standard, rather
 than a list of specific enforcement
 requirements.
  This rule also allows the Agency to
 transfer the financial assurance
 requirements of Part 264 or Part 265
 Subpart H to the corrective action
 process, when the regulated unit is
 addressed through corrective action.
This provision does not allow the
Agency to waive the requirements for
financial assurance at a regulated unit.
Owners and operators of regulated units
remain subject to the requirement to
provide financial assurance to address
cleanup at the unit—however, this rule
allows EPA or the authorized States to
develop site-specific financial assurance
requirements for corrective action at the
unit, and transfer funds set aside under
Subpart H for closure, post-closure, and
 third-party liability requirements to
 address corrective action. This
 provision may be invoked by EPA or by
 a State authorized for this rule only in
 cases where the alternative cleanup
 authority requires financial assurance
 for the corrective action.
   In addition to the financial assurance
 requirements for closure and post-
 closure care. Parts 264 and 265 Subpart
 H require owners and operators to
 provide assurances that they can pay
 claims for damages to third-parties
 arising from accidental occurrences at
 the facility. The Agency, however,
 typically has not required third-party
 liability coverage as part of financial
 assurance for corrective action. (The
 general third-party funds required by
 Parts 264 and 265 would, of course,
 apply to accidents involving hazardous
 waste management occurring during
 corrective action.) This rule allows the
 Regional Administrators and authorized
 States to release funded third-party
 liability assurances, or to relieve owners
 and operators from the obligation to
 provide third-party liability assurance,
 where all regulated units at the facility
 are being addressed under §§264.90(f),
 264.110(c), 264.140(d), 265.90(f),
 265.110(d) or 265.140(d). EPA expects
 this action would be warranted under
 limited circumstances—for example, it
 might be warranted where all regulated
 units at the facility are being addressed
 through corrective action, and the
 Regional Administrator finds that it is
 necessary to use the third-party liability
 funds to pay for the cleanup. It should
 be noted that where a facility is subject
 to third-party liability requirements
 because of regulated units other than
 those being addressed under
 §§264.90(f), 264.110(c),  264.140(d),
 265.90(f), 265.110(d) or 265.140(d), the
 facility remains subject to the
 requirement for third-party liability
 coverage.
 2. Response to Comment
  In the preamble of the proposed rule
 (see 59 FR 55778 at 55787 and 55688),
 EPA requested comment on the need for
 provisions allowing regulated units to
 be addressed through a remediation
 process. The Agency described a
 situation where a collection of adjacent
 SWMUs and a regulated unit are
 releasing hazardous constituents to the
 environment. Prior to this rule, EPA
 would have been required to impose the
 requirements of Part 264 or Part 265 for
financial assurance, closure, and
groundwater monitoring and
remediation of the regulated unit, and to
select remedies for the SWMUs through
the RCRA corrective action process.
This situation was inconsistent with a
 major objective of EPA's Subpart S
 initiative discussed above, that is, to
 create a consistent, holistic approach to
 cleanup at RCRA facilities.
   Many commenters supported the
 approach described by EPA in the
 preamble to the proposal. Commenters
 on the proposed rule agreed with EPA
 that regulated units and non-regulated
 SWMUs are often indistinguishable in
 terms of risk, and most supported
 integration of the closure and corrective
 action programs.
   Many commenters had encountered
 situations similar to those described by
 the Agency, and believed that the
 closure process prevented the best
 remedy at those sites. Several
 commenters agreed that it is often
 difficult to identify the source of
 contamination, particularly when many
 SWMUs are located near each other.
 Commenters cited situations where the
 boundaries of regulated units and non-
 regulated units overlap, or where
 contaminant plumes have commingled
 as situations where the regulatory
 distinction between regulated and non-
 regulated SWMUs is particularly
 troublesome.
   Some commenters believed that the
 corrective action process, which was
 specifically designed to address
 remediation, rather than the closure
 process, which has preventative goals,
 should be used to address all units at a
 facility.
   EPA does not believe that the closure
 process is inappropriate for all regulated
 units with releases. However, it does
 believe that it does not make sense to
 have two separate remedial processes
 working to clean up a single release, so
 it is providing relief where a regulated
 unit and one or more SWMUs appear to
 have contributed to the same release.
 EPA believes the Regional
 Administrator should be able to choose,
 on a case-by-case basis, whether to
 apply the  current Part 264 and 265
 requirements to the SWMUs or the more
 flexible remediation requirements to the
 regulated unit. This final rule provides
 the Regional Administrator with the
 discretion needed to make this choice.
   Several  commenters mentioned that
 having two regulatory programs for
 RCRA units is complicated by State
 authorization issues—some States are
 authorized for the base RCRA program,
 thus are responsible for closure, but are
 not authorized for corrective action. In
 these States, two agencies are
 responsible for reviewing plans, and
 making decisions. Another commenter's
regulatory agency has taken the position
that any detectable levels of organics left
 in soil or groundwater during closure
will require capping and post-closure

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              Federal  Register/Vol.  63,  No. 204/Thursday,  October  22,  1998/Rules and Regulations     56TZT
  monitoring of the unit, whereas the
  corrective action program uses risk-
  based cleanup standards. Thus, there is
  potential for different areas of a facility
  to be cleaned up to different sets of
  standards, even if the areas are adjacent
  to each other, and exposure patterns are
  identical. Commenters believed that a
  single/uniform set of cleanup standards
  should be established for all units
  regardless of the time the waste or
  contaminant was placed in the unit, and
  regardless of the regulatory program that
  has jurisdiction.
    EPA cannot eliminate all of the
  complexities caused by the State
  authorization requirements. However,
  States that are authorized for the base
  program will be  able to request
  authorization for this rule. They may
  request authority to address regulated
  units as part of corrective action. EPA
  also notes that there is no Federal
  requirement that facilities cap-any
  detectable levels of organics left in soil
  or groundwater during closure.
   Other commenters raised concerns
  about EPA's proposal that closure and
  cleanup standards be integrated. Some
  commenters expressed concern that the
  Agency's proposal might be an attempt
  to extend the closure requirements to
  non-regulated units, rather than to
  address all SWMUs through the
  corrective action process. Some
 commenters said that they have had to
 close non-regulated units as regulated
 units because they could not identify
 the source of contamination at a site.
 These commenters believe that the
 corrective action  process, not closure
 requirements, should be the applicable
 requirements at SWMUs requiring
 remediation.
   The Agency agrees that regulated unit
 standards were not designed for
 SWMUs subject to corrective action.
 The Agency intends this rule to provide
 Regional Administrators and State
 Directors with discretion to choose
 whether to apply  current Part 264 and
 265 standards to regulated units closed
 as part of a broader corrective action, or
 to address them through cleanup
 requirements. This rule is not intended
 as a way to bring SWMUs under Part
 264 or Part 265 unit-specific standards.
  A few commenters supported
 retaining the distinction between
 regulated units and other SWMUs. One
 commenter believed the Agency should
 retain the closure  process at all
 regulated units because the regulatory
 timeframes of that process result in a
 quicker remedy selection than the open-
 ended corrective action process. This
commenter feared that removing closure
requirements at regulated units would
delay cleanups. Another commenter
  objected that site-specific
  determinations delay any process
  because they are an open door to
  extended negotiations, disputes, and
  litigation, and allow inconsistent
  decisions. This commenter believed that
  the closure regulations provide
  consistent requirements.
    The Agency .agrees with the
  commenter that the closure
  requirements, including the timeframes
  incorporated in the closure process, are
  generally appropriate where a release
  has not occurred. EPA, however, does
  not agree that these procedures are well-
  suited to remediation of environmental
  releases. EPA believes that, where a
  regulated unit is located among SWMUs
  (or areas of concern), and releases have
  or are likely to have occurred, applying
  two sets of regulatory requirements can
  slow, rather than hasten the cleanup.
  Thus, in this final rule, EPA is allowing
  regulators discretion to apply alternate
  requirements to the closing regulated
  unit developed under a remediation
  authority.
    Another commenter suggested
  retaining the closure requirements if the
  regulated unit is a landfill, because,
  according to commenter, landfills
  typically are large and isolated. The
  commenter also suggested the closure
  requirements be retained in situations
  where routine monitoring is necessary,
'  or in situations where waste in the
  regulated unit is very hazardous.  This
  commenter suggested that the closure
 standards  be retained where the units
 contain similar wastes, but were used at
 different times, and where there are
 multiple adjacent sources of
 contamination with overlapping
 parameters of concern.
   This rule retains the closure
 requirements for isolated units. This
 final rule allows the Regional
 Administrator to replace the
 requirements of Subparts F, G, and H
 with alternative requirements developed
 for corrective action only where a
regulated unit is situated among
SWMUs (or areas of concern), a release
has occurred, and both the regulated
unit and one or more SWMUs (or areas
of concern) are likely to have
contributed to the release.
  EPA disagrees that the type of waste
involved or the need for monitoring
should determine which set of
regulatory requirements must be used to
address the unit, or that routine
monitoring can be imposed only
through the closure process. EPA
believes that remediation processes can
be used to provide protective cleanups
for all types of wastes, and can be used
to impose sufficient groundwater
monitoring requirements.
     Another commenter suggested that
   the timeframes for initiating corrective
   action (§264.99(h)(2)) and other
   administrative and reporting
   requirements of Part 264 Subpart F be
   retained in all cases. However, EPA
   disagrees with this commenter and has
   chosen to allow greater flexibility
   provided by alternate remedial
   authorities for regulated units
   surrounded by SWMUs that are both
   suspected to have released to the
   environment.
    One commenter conditioned its
   approval of this change on due process
   rights of owner or operator being
   maintained. EPA believes the existing
  rights available to an owner or operator
  in federal enforcement actions
  appropriately address due process rights
  and this rule does not modify these
  rights.
    Some commenters asked for
  clarification of how integration of
  closure and corrective action would
  work administratively. EPA has
  provided this information in the
  preamble discussion above.
    Another commenter stated that the
  proposal contradicted itself by first
  claiming that protections imposed
  through alternative mechanisms would
  be equivalent to those of a post-closure
  permit, and  then proposing that closure
  standards be developed on a site-
  specific basis under the corrective
  action process. The commenter
  requested EPA to clarify its intention in
  this regard, and to ensure that the
  regulatory requirements were truly the
  same for closure and post-closure
  activities conducted with or without a
 permit.
   In response to this comment, EPA
 clarifies that it intends for the closure of
 regulated units to be subject to
 consistent substantive standards,
 regardless of whether that closure is
 addressed under a permit or under an
 alternate authority. EPA believes the
 requirements of § 265.121 make this
 point clearly. The commenter's concern
 derives from  EPA's proposal (and
 decision in this final rule) to amend the
 closure standards to allow the
 integration of closure and corrective
 action at certain specified closed or
 closing units. These new standards
 apply equally to all eligible regulated
 units, regardless of whether they are
 subject to permits or interim status.
 Thus, while EPA has amended the
 closure standards as they apply to
 certain regulated units, it has retained a
 consistent approach to closure under
 the permit process and under alternate
 authorities. To the extent that the
 commenter is objecting to EPA's
decision to allow use of alternative, site-

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 56728     Federal Register/Vol. 63, No.  204/Thursday,  October 22,  1998/Rules and  Regulations
 specific requirements in lieu of the
 generic requirements of Subparts F, G,
 and H, EPA, as explained above,
 believes that the need to coordinate the
 cleanup of "mingled" releases
 outweighs any perceived benefits of the
 more specific requirements for regulated
 units.
   In the preamble of the proposed rule,
 the Agency described a second remedial
 situation where the closure standards
 might not be appropriate—where waste
 has been removed from a unit but
 contaminated soils remain, and the
 remedy that might best prevent future
 releases from the unit would be
 precluded by the requirement for a
 RCRA cap,
   Many commenters agreed with the
 Agency that the requirement for a RCRA
 cap may impede remedies. Several
 commenters agreed that the closure
 regulations do not consider remediation
 as an alternative to capping the unit, yet
 many currently available remedial
 technologies are more protective to
 human health and the environment in
 the long term than is capping, and that
 the Agency should provide flexibility to
 pursue such options in the closure of
 regulated units. Many commenters also
 agreed that required RCRA caps are very
 expensive and often provide little
 additional environmental protection
 where most waste has been removed
 from the unit.
   However, the Agency is not
 proceeding with revisions to the closure
 requirements that would modify the
 requirement for a RCRA cap (or other
 closure, groundwater, or financial
 assurance requirements) beyond the
 situations outlined in §§ 264.90(f),
 264.110(c). 264.140(d), 265.90(f),
 265.110(d). and 265.140(d).Thus, the
 unit described by commenters could be
 addressed under corrective action
 procedures only if it was situated among
 SWMUs or areas of concern, and was
 part of a broader corrective action. EPA
 was not prepared, at the time this rule
 was made final, to make a final decision
 on this issue. EPA will consider
 additional action in this area if, in
 implementing this final rule, the Agency
 Identifies further opportunities for
 integrating closure and corrective
 action,
 D. Post-Closure Permit Part B
 Information Submission Requirements
 $270.28)
 1. Overview
  EPA is promulgating § 270.28, which
establishes information submission
requirements for post-closure permits.
Prior to this rule, the information
submission requirements of Part 270 did
 not distinguish between operating
 permits and post-closure permits, and
 facilities seeking post-closure permits
 were generally expected to provide EPA,
 as part of their Part B permit
 applications, the facility-level
 information specified in §270.14 as well
 as relevant unit-specific information
 required in §§270.16, 270.17, 270.18,
 270.20, and 270.21.
   However, EPA recognized that certain
 of the Part 270 information
 requirements are important to ensuring
 proper post-closure care, while others
 are generally less relevant to post-
 closure. The Agency believes 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 adding a new § 270.28
 to identify that subset of the Part B
 application information that must be
 submitted for post-closure permits.
  As a result of this provision, an owner
 or operator seeking a post-closure
 permit must submit only that
 information specifically required for
 such permits under newly added
 § 270.28, 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 SWMUs 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-specific, 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 (§270.17), waste piles
 (§ 270.18), land treatment facilities
 (§270.20) and landfills (§270.21),
 § 270.28 of this rule authorizes 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
 enables the Regional Administrator to
 require additional information as
 needed, but does not otherwise compel
 the owner or operator to submit
 information that is irrelevant to post-
 closure care determinations.

 2. Response to Comment
   Commenters generally supported the
 provisions of the proposed rule related
 to information submission
 requirements, and EPA is promulgating
 the provisions as proposed. Some
 commenters suggested that additional
 information be required by § 270.28
 (e.g., one commenter suggested the
 Agency require the chemical and
 physical analysis of §270.14 (b) (2), and
 the training plan information required
 by §270.14(b)(12)). However, after
 considering these comments, EPA  is
 promulgating the proposed
 requirements because the Agency
 believes they will provide the Agency
 with the information it needs to address
 post-closure care in most instances. The
 information suggested by commenter is
 not, in the Agency's experience,
 routinely needed for post-closure
 permits. For example, § 270.14(b) (2),
 suggested by commenter, requires a
 chemical and physical analysis of waste
 to be handled at the facility—but, in the
 case of post-closure permits, the
 regulated unit is closed, and will not be
 handling wastes. Similarly,
 §270.14(b)(12) requires the owner or
 operator to train persons who will be
 operating the facility—but, in the case of
 a post-closure permit, the facility will
 not be operating.
  If for some reason this information is
 needed by the Agency, this rule does
 not preclude the Agency from requiring
 it. As was discussed above, this rule
 provides the Agency authority to obtain
 additional information on a case-by-case
 basis, as needed, but, for most
 situations, requires only the minimum
 information necessary for all post-
 closure situations. This approach, the
 Agency believes, provides sufficient
 information to the overseeing agency to
 ensure adequate post-closure care, while
 minimizing the information submission
requirements for all owners and
operators. However, as a result of this
final rule,  EPA will request information

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              Federal Register/Vol.  63, No. 204/Thursday,  October 22,  1998/Rules and Regulations     56739
  for post-closure permit applications
  beyond the information specified in
  § 270.28 only when necessary on a case-
  by-case basis.

  IV. State Authorization

  A. Authorization of State Programs
    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 state authorization).
    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, the new requirements and
  prohibitions of 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 HS WA-
 related provisions as State law to retain
 final authorization, the HSWA
 requirements apply in  authorized States
 in the interim. In general, § 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. 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
 § 271.1 (i)). Section 3009 of RCRA aUows
 States to impose standards more
stringent than those in the Federal
program.

B. Enforcement Authorities
  Since 1980, certification of adequate
enforcement authority has been a
  condition of State authorization. EPA's
  authority to use its own enforcement
  authorities, however, does not terminate
  when it authorizes a State's enforcement
  program: Following authorization, EPA
  retains the enforcement authorities of
  sections 3008, 7003, and 3013 of RCRA,
  although authorized States have primary
  enforcement responsibility. •

  C. Effect of this Rule on State
  Authorizations

    This rule promulgates revisions to the
  post-closure requirements under HSWA
  and non-HSWA authorities. The
  requirements in §§264.90(e), 265.110(c),
  265.118(c)(4), 265.121 (except for
  paragraph 265.121(a)(2)), 270.1,
  270.14(a), and 270.28, which remove the
  post-closure permit requirement and
  allow the use of alternate mechanisms,
  are promulgated under non-HSWA
  authority. Thus, those requirements are
  immediately effective only in States that
  do not have final authorization for the
  base RCRA program, and are not
  applicable in authorized States unless
  and until the State revises its program
  to adopt equivalent requirements. These
  new standards are not more stringent
  than current requirements and,
  therefore, States are not required to
  adopt them.
   Sections 264.90(f),264.110(c),
  264.140(d), 265.90(f), 265.110(d),
 265.140(d), and 27M6(e), which allow
 the Agency to address closing regulated
 units through the corrective action
 program, are promulgated under HSWA
 authority. Except for § 271.16(e) these
 provisions provide additional options to
 regulators, and, therefore, are not more
 stringent than the current base RCRA
 program requiring closure of all
 regulated units. Authorized States are
 required to modify their programs only
 if the new Federal provisions are more
 stringent.
  Further, because these HSWA
 provisions in this rule are not more
 stringent, they are immediately effective
 only in those States not authorized for
 the base RCRA program. In States
 authorized for the RCRA base program,
 these HSWA provisions cannot be
 enforced until and unless the State
 adopts them. Once a State adopts these
 provisions, they can be implemented by
 EPA before the State is authorized for
 the regulation change because they are
 promulgated pursuant to HSWA
authority, and are thus immediately
effective in the State.
 '  D. Review of State Program Applications

   1. Post-Closure Care Under Alternatives
   to Permits

     Sections 264.90(e), 265.110(c)
   265.118(c) (4), 265.121, and 270.1 of this
   final rule remove the requirement for
   post-closure permits, and allow EPA
   and the authorized States to address
   facilities needing post-closure care
   using alternate authorities. All States
   seeking authorization for the above
   provisions of this rule must submit an
   application that includes regulations at
  least as stringent as these provisions, as
  well as the information required under
  §271.21. In all States, this information
  will include copies of State statutes and
  regulations demonstrating that the State
  program includes the provisions
  promulgated in this rule in the sections
  listed above. EPA will review this
 information to determine that the State
 has adopted provisions to assure that
 authorities used in lieu of post-closure
 permits are as stringent as the Federal
 program.
    In addition, States must submit an
  application that includes copies of the
  statutes and regulations the State plans
  to use in lieu of the section 3004 (u)
  provisions of a post-closure permit to
  address corrective action at interim
  status facilities. For example, many
  States authorized for corrective action
  have cleanup authorities, which they
  apply at interim status facilities. EPA
  will review those statutes and
  regulations to determine whether the
  alternate authority is sufficient to
  impose requirements consistent with
 § 264.101. At a minimum, that authority
 must be sufficiently broad to allow the
 authorized authority to: (1) require
 facility-wide assessments; (2) address all
 releases of hazardous wastes or
 constituents to all media from all
 SWMUs within the facility boundary as
 well as off-site releases to the extent
 required under section 3004 (v) (to the
 extent that releases pose a threat to
 human health and the environment);
 and (3) impose remedies that are
 protective of human health and the
 environment. This review by EPA will
 assure that actions taken at closed
 facilities under an alternate authority
 are as protective as those that would be
 taken under a post-closure permit. In
 addition, EPA is promulgating in this
 final rule a revision to § 271.16 to
 ensure that these alternate authorities
 are adequately enforceable. EPA will
review the State's authority to
determine whether it includes the
authority to sue in court, and to assess
penalties.

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 56730     Federal Register/Vol. 63, No.  204/Thursday, October  22,  1998/Rules and Regulations
 2. Remediation Requirements for Land-
 Based Units With Releases to the
 Environment
   Sections 264.90(f), 264.110(c),
 264.140(d), 265.90(fj, 265.110(d), and
 265.140(d) of this rule allow EPA or the
 authorized State to replace requirements
 of Part 264 or 265 Subpart F and G with
 analogous requirements developed
 through the corrective action process.
 When regulated units are addressed
 through the corrective action process,
 these provisions allow the Agency to
 transfer financial assurance
 requirements to corrective action as
 well. Sections 264.112(b) and (c),
 264.118ft)) and (d). 265.112(b) and (c),
 and 265.118(c) and (d) contain
 procedures for owners and operators to
 implement this flexibility.
  To obtain authorization for
 §§264.90(f). 264.110(c). and264.140(d).
 which apply at permitted facilities.
 States must be authorized for section
 3004 (u) or submit an application that
 includes copies of the statutes and
 regulations the State plans to  use to
 develop a remedy at regulated units. To
 obtain authorization for §§ 265.90(f),
 265.110(d). and 265.140(d), which apply
 at interim status facilities, States must
 submit an application that includes
 copies of the statutes and regulations
 the State plans to use to develop a
 remedy at regulated units. As in the case
 of alternate authorities submitted for
 approval to be used in lieu of post-
 closure permits, authorities to be used
 to implement §§265.90(f), 265.110(d),
 and 265.140(d) must impose corrective
 action consistent with § 264.101, and
 must be sufficiently broad to impose
 minimum requirements. They must
 allow the regulatory authority to: (1)
 include facility-wide assessments; (2)
 address all releases of hazardous wastes
 or constituents to all media from all
 SWMUs within the facility boundary as
 well as off-site releases to the extent
 required under section 3004 (v) (to the
 extent necessary to protect human
 health and the environment); and (3) be
 protective of human health and the
 environment. Further, they must
 include authority to sue in court, and to
 assess penalties, consistent with
 § 271.16. For §265.90(f), the authority
 must allow the State to require financial
 assurance.
 3. Post-Closure Permit Part B
 Information Submission Requirements
  Section 270.28, which specifies
 information that must be submitted for
 post-closure permits, is promulgated
under non-HSWA authority and is not
more stringent than the current RCRA
program. Therefore, § 270.28 does not
 become effective in an authorized State
 until and unless the State obtains
 authorization for that provision.
 Further, authorized States are not
 required to modify their programs to
 adopt § 270.28.

 V. Effective Date
   This final rule is effective
 immediately. Section 3010(b)(l) of
 RCRA allows EPA to promulgate an
 immediately effective rule where the
 Administrator finds that the regulated
 community does not need additional
 time to come into compliance with the
 rule. Similarly, the Administrative
 Procedures Act (APA) provides for an
 immediate effective date for rules that
 relieve a restriction (see 5 U.S.C.
 553(4) (1)).
   This rule does not impose any
 requirements on the regulated
 community; rather, the rule provides
 flexibility in the regulations with which
 the regulated community is required to
 comply. The Agency finds that the
 regulated community does not need six
 months to come into compliance.

 VI. Regulatory Assessments

 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" on the basis of (4) 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).
   This final rule establishes two main
 changes to the procedures required for
 closure and post-closure care. First, it
 allows EPA and the authorized States
 the option of either issuing post-closure
 permits or using alternative mechanisms
 for ensuring the proper management
 and care of facilities after their closure.
 Second, it amends the regulations
 governing closure of regulated units to
 allow, under certain circumstances, the
 regulatory agency to address regulated
 units through Federal or State cleanup
 programs, instead of applying Part 264
 and 265 standards for closure.
   The first provision benefits the
 regulated community by providing a
 potential avoidance of the permit
 process for post-closure, as well as
 eliminating duplication of effort in
 cases, where EPA and the States have
 already issued enforcement orders to
 ensure expeditious action by facility
 operators. The cost savings for this
 change are estimated to be a total of
 $507,000, and are discussed in further
 detail in the Economic Impact Analysis
 background document, which has been
 placed in the docket. The second gives
 EPA and States discretion to replace
 regulatory requirements applying to
 closed regulated units with site-specific
 requirements developed through
 cleanup authorities. It does not affect
 any authority EPA and authorized States
 have to impose the closure
 requirements. Further, the requirements
 for corrective action are not more
 stringent than those required for closure
 under Parts 264 and 265. Consequently,
 no cost assessment was prepared for the
 second main provision of the rule.

 B. Regulatory Flexibility Act
  Under the Regulatory Flexibility Act
 (5 U.S.C. 601 et seq., as amended by the
 Small Business Regulatory Enforcement
 Fairness Act (SBREFA) of 1996), at the
 time the Agency publishes a proposed
 or final rule, it must prepare and make
 available for public comment a
 Regulatory Flexibility Analysis that
 describes the effect of the rule on small
 entities. However, no regulatory
 flexibility analysis is required if the
 Administrator certifies that the rule will
 not have significant adverse impact on
 a substantial number of small entities.
  SBREFA amended the Regulatory
 Flexibility Act to require Federal
 agencies to provide a statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities. The following discussion
explains EPA's determination.

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              Federal Register/Vol. 63, No. 204/Thursday, October 22, 1998/Rules  and Regulations     56731
    The first portion of this final rule
  would provide regulatory relief by
  expanding the options available to
  address post-closure care so that a
  permit would not be required in every
  case. No new requirements would be
  imposed on owners and operators in
  addition to those already in effect. The
  Agency .estimates a cost savings of
  $500,000 as a result of this portion of
  the rule. Additional details related to
  this cost savings are included in the
  Economic Impact Analysis, which can
  be found in the docket. The second part
  of the final rule makes available more
  flexible standards regarding closure,
  groundwater monitoring, and financial
  assurance for some facilities. It also
  imposes no new requirements.
  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. Unfunded Mandates Reform Act
   Title II of the Unfunded Mandates
  Reform Act of 1995 (UMRA), P.L. 104-
  4, establishes requirements for Federal
  Agencies to assess the effects of their
  regulatory actions on State, local, and
  tribal governments, and on the private
  sector. Under section 202 of the UMRA,
  EPA generally must prepare a written
  statement, including a cost-benefit
  analysis, for proposed and final rules
 with "Federal mandates" that may
 result in expenditures by local, and
 tribal governments, in the aggregate, or
 by private sector, of $100 million or
 more in any one year. Before
 promulgating an EPA rule for which a
 written statement is needed, section 205
 of the UMRA generally requires EPA to
 identify and consider a reasonable
 number of regulatory alternatives and
 adopt the least costly, most cost-
 effective, or least burdensome
 alternative that achieves the objectives
 of the rule. The provisions of section
 205 do not apply when they are
 inconsistent with applicable law.
 Moreover, section 205 allows EPA to
 adopt an alternative other than the least
 costly, most cost-effective, or least
 burdensome alternative if the
 Administrator publishes with the final
 rule an explanation why that alternative
 was not adopted. Before EPA establishes
 any regulatory requirements that may
 significantly or uniquely affect small
 governments, including tribal
 governments, it must have developed
 under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
  proposals with significant Federal
  intergovernmental mandates, and
  informing, educating, and advising
  small governments on compliance with
  the regulatory requirements.
    EPA has determined that this rule
  does not include a Federal mandate that
  may result in estimated costs of $ 100
  million or more to either State, local, or
  tribal governments in the aggregate, or
  the private sector in any one year.
  Neither portion of this rule is more
  stringent than the current Federal
  program, therefore, States are not
  required to adopt them (see section V of
  this preamble). In addition, this rule
  imposes no new requirements on
  owners and operators, but, rather,
  allows flexibility to regulators to
  implement requirements already in
  place. As stated above, EPA estimates a
  cost savings of $500,000 for the
  provisions of the final rule. EPA also
  has concluded that this rule will  not
  significantly  or uniquely affect small
  governments. Small governments will
  not be responsible for implementing the
  rule. Although they may be owners or
  operators of facilities regulated by the
  rule, the rule does not impose any new
  requirements.

  D. Paperwork Reduction Act
   The Office  of Management and  Budget
  (OMB) has approved the information
  collection requirements contained in
  this rule under the provisions of the
  Paperwork Reduction Act, 44 U.S.C.
  3501 et seq. and has assigned OMB
 control number 2050-0009 (EPA ICR
 Number 1573.05).
   EPA believes the changes to the
 information collection do not constitute
 a substantive  or material modification.
 The recordkeeping and reporting
 requirements  of this rule would replace
 or reduce similar requirements already
 promulgated and covered under the
 existing Information Collection Request
 (ICR). There is no net increase in
 recordkeeping and reporting
 requirements. As a result, the reporting,
 notification, or recordkeeping
 (information) provisions of this rule will
 not need to be submitted for approval to
 the Office of Management and Budget
 (OMB) under section 3504 (b) of the
 Paperwork Reduction Act, 44 U.S.C.
 3501 et. seq..
  The current  ICR expires on December
 31, 1999. During the ICR renewal
 process, EPA will prepare an ICR
 document with an estimate of the
 burden reduction resulting from the
 decreased reporting provisions of this
 rule, and will publish in the Federal
Register a Notice announcing the
availability of that ICR and soliciting
public comments.
     Burden means the total time, effort, or
   financial resources expended by persons
   to generate, maintain, retain, or disclose
   or provide information to or for a
   Federal agency. This includes the time
   needed to review instructions; develop,
   acquire, install, and utilize technology'
   and systems for the purposes of
   collecting, validating,  and verifying
   information, processing and
   maintaining information, and disclosing
   and providing information; adjust the
   existing ways to comply with any
   previously applicable instructions and
  requirements; train personnel to  be able
  to respond to a collection of
  information; search data sources;
  complete and review the collection of
  information; and transmit or otherwise
  disclose the information.
    An agency may not conduct or
  sponsor, and a person is not required to
  respond to, a collection of information
  unless it displays a currently valid OMB
  control number. The OMB control
  numbers for EPA's regulations are listed
  in 40 CFR Part 9 and 48 CFR Chapter
  15.

  E. Executive Order 13045: Protection of
  Children From Environmental Health
  Risks and Safety Risks
    Executive Order 13045, entitled
  "Protection of Children from
  Environmental Health Risks and Safety
  Risks" (see 62 FR 19885, April 23, 1997)
  applies to any rule that EPA determines:
  (1) is "economically significant" as
  defined under Executive Order 12866,
  and  (2) the environmental health or
 safety risk addressed by the rule has a
 disproportionate effect on children. If
 the regulatory action meets both criteria,
 the Agency must evaluate the
 environmental health or safety effects of
 the planned rule on children, and
 explain why the planned regulation is
 preferable to other potentially effective
 and reasonably feasible  alternatives
 considered by the Agency.
   This final rule is not subject to E.O.
 13045 because this is not an
 "economically significant" regulatory
 action as defined by E.O. 12866. In
 addition, the rule does not involve
 decisions based on environmental
 health or safety risks.

 F. National Technology Transfer and
 Advancement Act
  Under section 12(d) of the National
Technology Transfer and Advancement
Act, the Agency is directed to use
voluntary consensus standards in its
regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,

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 56732     Federal Register/Vol. 63, No.  204/Thursday,  October 22, 1998/Rules  and Regulations
 test methods, sampling procedures,
 business practices, etc.) that are
 developed or adopted by voluntary
 consensus standard bodies. Where
 available and potentially applicable
 voluntary consensus standards are not
 used by EPA, the Act requires the
 Agency to provide Congress, through
 the Office of Management and Budget,
 an explanation of the reasons for not
 using such standards.
   EPA is not promulgating technical
 standards as part of today's final rule.
 Thus, the Agency has not considered
 the use of voluntary consensus
 standards in developing this rule.
 G. Executive Order 12898:
 Environmental Justice
   Under Executive Order 12898,
 "Federal Actions to Address
 Environmental Justice in Minority
 Populations and Low-Income
 Populations," as well as through EPA's
 April 1995, "Environmental Justice
 Strategy. OSWER Environmental Justice
 Task Force Action Agenda Report," and
 National Environmental Justice
 Advisory Council, EPA has undertaken
 to incorporate environmental justice
 into its policies and programs. EPA is
 committed to addressing environmental
justice concerns, and is assuming a
 leadership role in environmental justice
 initiatives to enhance environmental
 quality for all residents of the United
 States. The Agency's goals are to ensure
 that no segment of the population,
 regardless of race, color, national origin,
 or Income, bears disproportionately
 high and adverse human health and
 environmental effects as a result of
 EPA's policies, programs, and activities,
 and all people live in clean and
 sustainable communities. To address
 this goal, EPA considered the impacts of
 this final rule on low-income
 populations and minority populations
 and concluded that this final rule will
 potentially advance environmental
justice causes. The process for public
 involvement set forth in this final rule
 encourages all potentially affected
segments of the population to
 participate in public hearings and/or to
 provide comment on health and
environmental concerns that may arise
pursuant to a proposed Agency action
 under the rule. EPA believes that public
 involvement should include regular
updating of the community on the
 progress made cleaning up the facility.
Public participation should provide all
 impacted and affected parties ample
time to participate in the facility
cleanup decisions. In many cases,
public involvement should include
bilingual notifications or publication of
legal notices in community newspapers.
 H. Executive Order 12875: Enhancing
 Intergovernmental Partnerships
   Under Executive Order 12875, EPA
 may not issue a regulation that is not
 required by statute and that creates a
 mandate upon a State, local or tribal
 government, unless the Federal
 government provides the funds
 necessary to pay the direct compliance
 costs incurred by those governments. If
 EPA complies by consulting. Executive
 Order 12875 requires EPA to provide to
 the Office of Management and Budget a
 description of the extent of EPA's prior
 consultation with representatives of
 affected State, local and tribal
 governments, the nature of their
 concerns, copies of any written
 communications from the governments,
 and a statement supporting the need to
 issue the regulation. In addition,
 Executive Order 12875 requires EPA to
 develop an effective process permitting
 elected  officials and other
 representatives of State, local and tribal
 governments "to provide meaningful
 and timely input in the development of
 regulatory proposals containing
 significant unfunded mandates."
  This rule does not create a mandate
 on State, local or tribal governments.
 The rule does not impose any
 enforceable duties on these entities. It
 provides more flexibility for States and
 tribes to implement already-existing
 requirements. Accordingly, the
 requirements of section 1 (a) of
 Executive Order 12875 do not  apply to
 this rule.
 /. Executive Order 13084: Consultation
 and Coordination With Indian Tribal
 Governments
  Under Executive Order 13084, EPA
 may not issue a regulation that is not
 required by statute, that significantly or
 uniquely affects the communities of
 Indian tribal governments, and that
 imposes substantial direct compliance
 costs  on those communities, unless the
 Federal  government provides the funds
 necessary to pay the direct compliance
 costs  incurred by the tribal
 governments. If EPA complies  by
 consulting. Executive Order 13084
 requires EPA to provide to the  Office of
 Management and Budget, in a separately
 identified section of the preamble to the
 rule, a description of the extent of EPA's
 prior consultation with representatives
 of affected tribal governments,  a
 summary of the nature of their concerns,
 and a statement supporting the need to
 issue the regulation. In addition,
 Executive Order 13084 requires EPA to
 develop an effective process permitting
elected and other representatives of
Indian tribal governments "to provide
 meaningful and timely input in the
 development of regulatory policies on
 matters that significantly or uniquely
 affect their communities."
   This rule does not significantly or
 uniquely affect the communities of
 Indian tribal governments. In addition,
 this rule imposes no new requirements
 on owners and operators, but, rather,
 allows flexibility to regulators to
 implement requirements already in
 place. Accordingly, the requirements of
 section 3(b) of Executive Order 13084
 do not apply to this rule.

 J. Submission to Congress and the
 General Accounting Office
   The Congressional Review Act, 5
 U.S.C. 801(a)(l)(A),asaddedby the .
 Small Business Regulatory Enforcement
 Fairness Act of 1996, generally provides
 that before a rule may take effect, the
 agency promulgating the rule must
 submit a rule report, which includes a
 copy of the rule, to each House of the
 Congress and to the Comptroller General
 of the United States. EPA will submit a
 report containing this rule and other
 required information to the U.S. Senate,
 the U.S. House of Representatives, and
 the Comptroller General of the General
 Accounting Office prior to publication
 of the rule in this Federal Register. A
 major rule cannot take effect until 60
 days after it is published in the Federal
 Register. This rule is not a "major rule"
 as defined by 5 U.S.C 804(2).
 VII.  Brownfields
   In February 1995, EPA announced its
 Brownfields Action Agenda, launching
 the first Federal effort of its kind
 designed to empower States, Tribes,
 communities, and other parties to safely
 cleanup, reuse, and return brownfields
 to productive use. To broaden the
 mandate of the original agenda, in 1997
 EPA initiated the Brownfields National
 Partnership Agenda, involving nearly
 twenty other Federal agencies in
 brownfields cleanup and reuse. Since
 the 1995 announcement, EPA has
 funded brownfields pilots, reduced
 barriers to cleanup and redevelopment
 by clarifying environmental liability
 issues, developed partnerships with
 interested stakeholders, and stressed the
 importance of environmental workforce
 training. In implementing the Agenda,
 EPA, to date, has focused primarily on
 issues associated with CERCLA.
 Representatives from cities, industries,
 and other stakeholders, however, have
recently begun emphasizing the
 importance of looking beyond CERCLA
and addressing issues at brownfield
sites in a more comprehensive manner.
  This final rule furthers the
Administration's brownfields work by

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              Federal Register/Vol. 63, No.  204/Thursday,  October 22,  1998/Rules and  Regulations     56733
  removing barriers posed by RCRA
  regulations. Modifying the post-closure
  permit requirement and allowing the
  use of an alternative authority to clean
  up regulated and solid waste
  management units, expedites the clean
  up of RCRA facilities and makes such
  property available for reuse.

  List of Subjects

  40 CFR Part 264
    Environmental protection, Hazardous
  waste, Closure, Corrective action, Post-
  closure, Permitting.

  40 CFR Part 265
    Hazardous waste, Closure, Corrective
  action, Post-closure, Permitting.
  40 CFR Part 270
    Hazardous waste, Post-closure,
  Permitting.

  40 CFR Part 271
    State authorization, Enforcement
  authority.
   Dated: October 15, 1998.
  Carol M. Browner,
  Administrator.
   For the reasons set out in the
  preamble, Chapter 1 Title 40 of the Code
  of Federal Regulations is 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 new paragraphs (e) and (f) to
 read as follows:

 §264.90  Applicability.
 *    *     *    *    *
  (e) The regulations of this subpart
 apply to all owners and operators
 subject to the requirements of 40 CFR
 270.1 (c) (7), when the Agency issues
 either a post-closure permit or an
 enforceable document (as defined in 40
 CFR 270.1 (c) (7)) at the facility. When
 the Agency issues an enforceable
 document, references in this subpart to
 "in the permit" mean "in the
 enforceable document."
  (f) The Regional Administrator may
 replace all or part of the requirements of
 §§ 264.91 through 264.100 applying to a
 regulated unit with alternative
requirements for groundwater
monitoring and corrective action for
releases to groundwater set out in  the
   permit (or in an enforceable document)
   (as defined in 40 CFR 270.1 (c) (7)) where
   the Regional Administrator determines
   that:
     (1) The regulated unit is situated
   among solid waste management units
   (or areas of concern), a release has
   occurred, and both the regulated unit
   and one or more solid waste
   management unit(s)  (or areas of
   concern) are likely to have contributed
   to the release; and
    (2) It is not necessary to apply the
  groundwater monitoring and corrective
  action requirements  of §§264.91
  through 264.100 because alternative
  requirements will protect human health
  and the environment.
    3. Section 264.110 is amended by
  adding a new paragraph (c) to read as
  follows:

  §264.110  Applicability.
  *    *    *    *     *
    (c) The Regional Administrator may
  replace all or part of the requirements of
  this subpart (and the unit-specific
  standards referenced in § 264.111 (c)
  applying to a regulated unit), with
  alternative requirements set out in a
  permit or in an enforceable document
  (as defined in 40 CFR 270.1(c)(7)),
  where the Regional Administrator
  determines that:
    (1) The regulated unit is situated
  among solid waste management units
  (or areas of concern),  a release has
  occurred, and both the regulated unit
  and one or more solid waste
  management unit(s) (or areas of
  concern) are likely to  have contributed
 to the release; and
   (2) It is not necessary to apply the
 closure requirements of this subpart
  (and those referenced herein) because
 the alternative requirements will protect
 human health and the environment and
 will satisfy the closure performance
 standard of § 264.111  (a) and (b).
   4. Section 264.112 is amended by
 adding new paragraphs (b)(8) and
 (c)(2)(iv) to read as follows:

 § 264.112  Closure plan; amendment of
 plan.
 *    *     *    *    *
   (b)
   (8) For facilities where the Regional
 Administrator has applied alternative
 requirements at a regulated unit under
 §§264.90(f), 264.110(d), and/or
 § 264.140(d), either the alternative
 requirements applying to the regulated
 unit, or a reference to the enforceable
 document containing those alternative
requirements.
   (c) * * *
   (2) * * *
   (iv) the owner or operator requests the
Regional Administrator to apply
   alternative requirements to a regulated
   unit under §§264.90(f),264.110(c), and/
   or§264.140(d).
   *    *     *    *  .  *
     5. Section 264.118 is amended by
   adding new paragraphs (b) (4) and
   (d) (2) (iv) to read as follows:
   *****

   § 264.118  Post-closure plan; amendment
   of plan.
     (b) * * *
     (4) For facilities where the Regional
   Administrator has applied alternative
   requirements at a regulated unit under
   §§264.90(f), 264.110(c), and/or
   §§ 264.140(d), either the alternative
  requirements that apply to the regulated
  unit, or a reference to the enforceable
  document containing those
  requirements.
  *****
    (d) * * *
    (2) * * *
    (iv) The owner or operator requests
  the Regional Administrator to apply
  alternative requirements to a regulated
  unit under §§264.90(f), 264.110(c), and/
  or§264.140(d).
  *****

    6. Section 264.140 is amended by
  adding a new paragraph (d) to read as
  follows:

  §264.140  Applicability.
  *****
    (d) The Regional Administrator may
  replace all or part of the requirements of
  this subpart applying to a regulated unit
  with alternative requirements for
 financial assurance set out in the permit
 or in an enforceable document (as
 defined in 40 CFR 270.1 (c) (7)), where
 the Regional Administrator:
   (1) Prescribes alternative requirements
 for the regulated unit under § 264.90(f)
 and/or § 264.110(d); and
   (2) Determines that it is not necessary
 to apply the requirements of this
 subpart because the alternative financial
 assurance requirements will protect
 human health and the environment.

 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, 6906, 6912
 6922, 6923, 6924, 6925, 6935, 6936  and
 6937.

   2. Section 265.90 is amended fay
adding new paragraph (f) to read as
follows:

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56734     Federal Register/Vol.  63,  No. 204/Thursday, October 22, 1998/Rules and  Regulations
§265.90  Applicability.
*****

  (0 The Regional Administrator may
replace all or part of the requirements of
this subpart applying to a regulated unit
(as defined in 40 CFR 264.90}. with
alternative requirements developed for
groundwater monitoring set out in an
approved closure or post-closure plan or
In an enforceable document (as defined
in 40 CFR 270.1(c)(7)), where the
Regional Administrator determines that:
  (1) A regulated unit is situated among
solid waste management units (or areas
of concern), a release has occurred, and
both the regulated unit and one or more
solid waste management unit(s) (or
areas of concern) are likely to have
contributed to the release; and
  (2) It is not necessary to apply the
requirements of this subpart because the
alternative requirements will protect
human health and the environment. The
alternative standards for the regulated
unit must meet the requirements of 40
CFR 264.101 (a).
  3. Section 265.110 is amended by
adding new paragraphs (c) and (d) to
read as follows:

§255.110   Applicability.
*****
  (c) Section 265.121 applies to owners
and operators of units that are subject to
the requirements of 40 CFR 270.1 (c) (7)
and are regulated under an enforceable
document (as defined in 40 CFR
270.1(c)(7)).
  (d) The Regional Administrator may
replace all or part of the requirements of
this subpart (and the unit-specific
standards in § 265.111 (c)) applying to a
regulated unit (as defined in 40 CFR
264.90), with alternative requirements
for closure set out in an approved
closure or post-closure plan, or in an
enforceable document (as defined in 40
CFR 270.1(c)(7)), where the Regional
Administrator determines that:
  (1) A regulated unit is situated among
solid waste management units (or areas
of concern), a release has occurred, and
both the regulated unit and one or more
solid waste management unit(s) (or
areas of concern) are likely to have
contributed to the release, and
  (2) It is not necessary to apply the
closure requirements of this subpart
(and/or those referenced herein) because
the alternative requirements will protect
human health and the environment, and
will satisfy the closure performance
standard of §265.111 (a) and (b).
  4. Section 265.112 is amended by
adding new paragraphs (b)(8) and
(c)(l)(iv) to read as follows:
 §265.112  Closure plan; amendment of
 plan.
 *****
   (b) * * *
   (8) For facilities where the Regional
 Administrator has applied alternative
 requirements at a regulated unit under
 §§265.90(f), 265.110(d), and/or
 265.140(d), either the alternative
 requirements applying to the regulated
 unit, or a reference to the enforceable
 document containing those alternative
 requirements.
   (c) * * *
   (D * * *
   (iv) The owner or operator requests
 the Regional Administrator to apply
 alternative requirements to a regulated
 unit under §§ 265.90(f), 265.110(d), and/
 or265.140(d).
 *****
   5. § 265.118 is amended by adding
 new paragraphs (c) (4) and (5), and
 (d) (1) (iii) to read as follows:

 § 265.118  Post-closure plan; amendment
 of plan.
 *****
   (c) * *  *
   (4) For facilities subject to § 265.121.
 provisions that satisfy the requirements
 of§265.121(a)(l)and(3).
   (5) For facilities where the Regional
 Administrator has applied alternative
 requirements at a regulated unit under
 §§265.90(f), 265.110(d), and/or
 265.140(d), either the alternative
 requirements that apply to the regulated
 unit, or a reference to the enforceable
 document containing those
 requirements.
   (d) * *  *
   (1) * *  *
   (iii) The owner or operator requests
 the Regional Administrator to apply
 alternative requirements to a regulated
 unit under §§ 265.90(f), 265.110(d),  and/
 or265.140(d).
 *****
  5. A new § 265.121 is added to
 Subpart G to read as follows:

 §265.121   Post-closure requirements for
facilities that obtain enforceable documents
 in lieu of post-closure permits.
  (a) Owners and operators who are
subject to the requirement to obtain a
post-closure permit under 40 CFR
 270. l(c), but who obtain enforceable
 documents in lieu of post-closure
permits, as provided under 40 CFR
 270.1 (c) (7), must comply with the
following requirements:
  (1) The requirements to submit
information about the facility in 40 CFR
270.28;
  (2) The requirements for facility-wide
corrective action in § 264.101 of this
chapter;
   (3) The requirements of 40 CFR
 264.91 through 264.100.
   (b)(l) The Regional Administrator, in
 issuing enforceable documents under
 § 265.121 in lieu of permits, will assure
 a meaningful opportunity for.public
 involvement which, at a minimum,
 includes public notice and opportunity
 for public comment:
   (i) When the Agency becomes
 involved in a remediation at the facility
 as a regulatory or enforcement matter;
   (ii) On the proposed preferred remedy
 and the assumptions upon which the
 remedy is based, in particular those
 related to land use and site
 characterization; and
   (iii) At the time of a proposed
 decision that remedial action is
 complete at the facility. These
 requirements must be met before the
 Regional Administrator may consider
 that the facility has met the
 requirements of 40 CFR 270.1 (c) (7),
 unless the facility qualifies for a
 modification to these public
 involvement procedures under
 paragraph (b) (2) or (3) of this section.
   (2)  If the Regional Administrator
 determines that even a short delay in
 the implementation of a remedy would
 adversely affect human health or the
 environment, the Regional
 Administrator may delay compliance
 with the requirements of paragraph
 (b) (1) of this section and implement the
 remedy immediately. However, the
 Regional Administrator must assure
 involvement of the public at the earliest
 opportunity, and, in all cases, upon
 making the decision that additional
 remedial action is not needed at the
 facility.
  (3) The Regional Administrator may
 allow a remediation initiated prior to
 October 22, 1998 to substitute for
 corrective action required under a post-
 closure permit even if the public
 involvement requirements of paragraph
 (b) (1) of this section have not been met
 so long as the Regional Administrator
 assures that notice and comment on the
 decision that no further remediation is
 necessary to protect human health and
 the environment takes place at the
 earliest reasonable opportunity after
 October 22, 1998.
  6. Section 265.140 is amended by
 adding a new paragraph (d) to read as
 follows:

 §265.140  Applicability.
 *****
  (d) The Regional Administrator may
replace all or part of the requirements of
this subpart applying to a regulated unit
with alternative requirements for
financial assurance set out in the permit
or in an enforceable document (as

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             Federal  Register/Vol. 63, No.  204/Thursday,  October 22,  1998/Rules and Regulations      56735
 defined in 40 CFR 270.1 (c) (7)), where
 the Regional Administrator:
   (1) Prescribes alternative requirements
 for the regulated unit under § 265.90(f)
 and/or 265.110(d), and
   (2) Determines that it is not necessary
 to apply the requirements of this
 subpart because the alternative financial
 assurance requirements will protect
 human health and the environment.

 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:

 § 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 40 CFR part 261.
 The terms "treatment," "storage,"
 "disposal," and "hazardous waste" are
 defined in §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 §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
§ 270.1 (c) (5) and (6), or obtain an
enforceable document in lieu of a post-
closure permit, as provided under
  paragraph (c)(7) of this section. If a post-
  closure permit is required, the permit
  must address applicable 40 CFR 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) Enforceable documents for post-
  closure care. At the discretion of the
  Regional Administrator, an owner or
  operator may obtain, in lieu of a post-
  closure permit, an enforceable
  document imposing the requirements of
  40 CFR 265.121. "Enforceable
 document" means an order, a plan, or
 other document issued by EPA or by an
 authorized State under an authority that
 meets the requirements of 40 CFR
 271.16 (e) including, but not limited to,
 a corrective action order issued by EPA
 under section 3008 (h), a CERCLA
 remedial action, or a closure or post-
 closure plan.
   3. Section 270.14 is amended by
 adding a sentence to the end of
 paragraph (a) to read as follows:

 §270.14  Contents of part B: General
 requirements.
   (a) * * * For post-closure permits,
 only the information specified in
 § 270.28 is required in Part B of the
 permit application.
 *****
  4. A new § 270.28 is added to Subpart
 B to read as follows:

 § 270.28  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 §§ 270.14 (b) (1),
 (4), (5), (6), (11), (13), (14), (16), (18) and
 (19), (c), and (d), unless the Regional
Administrator determines that
  additional information from §§ 270 14
  270.16, 270.17, 270.18, 270.20, or
  270.21 is necessary. The owner or
  operator is required to submit the same
  information when an alternative
  authority is used in lieu of a post-
  closure permit as provided in
  §270.1(c)(7).

  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:

 § 271.16  Requirements for enforcement
 authority.
 *****

   (e) Any State authority used to issue
 an enforceable document either in lieu
 of a post-closure permit as provided in
 40 CFR 270.1 (c) (7), or as a source of
 alternative requirements for regulated
 units, as provided under 40 CFR
 264.90®, 264.110(c), 264.140(d),
 265.90(d), 265.110(d), and 265.140(d),
 shall have available the following
 remedies:
   (1) Authority to sue in courts of
 competent jurisdiction to enjoin any
 threatened or continuing violation of the
 requirements of such documents, as
 well as authority to compel compliance
 with requirements for corrective action
 or other emergency response  measures
 deemed necessary to protect human
 health and the environment; and
  (2) Authority to access or sue to
 recover in court civil penalties,
 including fines, for violations of
 requirements in such documents.
 [FR Doc. 98-28221 Filed 10-19-98; 10:16
am]
BILLING CODE 6560-5D-P

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