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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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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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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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