January--26, 1-981.
Requirements for Authorization of State
Hazardous Waste Programs
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§298
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Federal Register / Vol. 46, No. 16 ./ Monday, January 26. 1981 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 123
[SW FRL 1724-6]
Requirements for Authorization of .
State Hazardous Waste Programs
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Interim final rule and request
for comments.
SUMMARY: EPA has previously
promulgated regulations establishing
requirements for the authorization of
State hazardous waste programs under
Section 3006(c) of the Resource
Conservation and Recovery Act
(RCRA). as amended. These regulations
were published in the Federal Register
on May 19,1980 (45 FR 33384 et seq.).
The regulations provided for two phases
of interim authorization, corresponding
to the two basic phases in which the
underlying Federal program takes effect.
The amendments published today are
changes in the schedule and related
requirements of Phase II of interim
authorization. The application and
effective dates for final authorization
have also been changed. These
amendments are necessary to reconcile
the interim and final authorization
programs with changes in the schedule
for promulgation of the underlying
Federal program.
DATES:
Effective Date: January 28,1981.
Comment Date: These amendments
are promulgated as interim final rules.
The Agency will accept comments on •
them until March 27,1981.
ADDRESSES: Comments on the
amendments should be sent to Docket
Clerk [Docket No. 3006], Office of Solid
Waste (WH-563), U.S. Environmental
Protection Agency, 401M Street SW.,
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT:
John Skinner, Director, State Programs
and Resource Recovery Division, Office
of Solid Waste (WH-563), U.S.
Environmental Protection Agency,
Washington, D.C. 20460, (202) 755-9107.
SUPPLEMENTARY INFORMATION:
/. Background
EPA promulgated regulatory
requirements for the authorization of
State hazardous waste programs under
Section 3006(c) of RCRA on May 19,
1980 (45 FR 33384 et seq.}. The preamble
to these regulations noted that interim
authorization of State programs would
be implemented in two phases
corresponding to the two basic phases
in which the underlying Federal
regulations were to be promulgated.
The first set of Federal regulations (on
which Phase I of interim authorization is
based) became effective on November
19,1980. These regulations
accomplished the initial identification of
characteristics of hazardous waste and
listing of hazardous wastes (Part 261),
established the standards applicable to
generators and transporters of
hazardous wastes, including the
manifest system (Parts 262 and 263), and
established "interim status" standards
applicable to existing hazardous waste
management (HWM) facilities before
they receive permits (Part 265). The
second set of regulations (on which
Phase II of interim authorization would
have been based) was then projected to
include technical standards for
permitting of hazardous waste
treatment, storage and disposal facilities
(Part 264) and permitting procedures and
requirements (Parts 122 and 124).
The preamble to those regulations
explained that it would be inconsistent
and contrary to Congressional intent to
delay interim authorization until all of
the Federal program was established.
Because of the Congressional mandate
that qualified States take formal
responsibility for the program as soon as
possible, EPA elected to allow interim
authorization in phases corresponding to
the underlying phases of the Federal
program. Further discussion of the
rationale for this approach can be found
at 45 FR 33386-33387.
The content and timing of Phase II of
interim authorization have now been
significantly affected by changes in the
manner in which the underlying Federal
regulations (40 CFR Part 264) are being
promulgated. The Agency had expected
that the full set of Part 264 technical
standards would be promulgated in the
fall of 1930, creating the complete set of
initial standards-governing treatment,
storage and disposal facilities. This
schedule would have allowed States to
apply for all of Phase n interim
authorization starting in the fall of 1980
and to administer a full RCRA permit
program starting on the effective date of
the Part 264 regulations (spring of 1981).
However, the task of producing a full
set of complex technical standards for
the wide range of HWM facilities has
proven to be an extraordinarily difficult
and lengthy process. Even with a major .
commitment of resources from
throughout the Agency devoted to the
development of these regulations, EPA .
has come to the conclusion that it is not
possible to promulgate all of the Part 264
regulations in final (or interim final)
form by the end of 1980. As explained in •
the Federal Register of January 12,1981
(46 FR 2801), EPA's initial Part 264
facility standard promulgation includes
many of the Subparts of Part 264 in final
or interim final form. But certain
Subparts of Part 264 will not be initially
promulgated until a' later date. This
includes one of the more important
Subparts (Subpart N, Landfills).
Because of this schedule, the Phase II
interim authorization program must be
modified. It will not be possible to
authorize State hazardous waste permit
programs for types of facilities for which
the necessary Federal facility standards
have not yet been promulgated. This
situation raises a number of questions
concerning the content and timing of
Phase II of interim authorization, and
the beginning of final authorization,
- whiqh are addressed in this
promulgation and preamble.
//. General Approach to Phase II of
Interim Authorization
When it became clear that all of the
Federal facility standards would not be
promulgated at one time, EPA had two
basic options for Phase II authorization
of State programs. The first option was
to postpone Phase II of interim
authorization until the entire set of*
Federal facility standards is
promulgated. Under this approach,
States could not have applied for Phase
II until the last major Subpart of 40 CFR
Part 264, Subparts F through R was
promulgated, at which time they could
apply for all of Phase II. The
commencement of State permitting
• programs under RCRA would also have
been delayed. The second option was to
divide Phase II of interim authorization
into several "components" and to
authorize State permitting programs for
specific categories of facilities when the
Federal standards for those facilities are
promulgated.
EPA has decided to make the Phase II
process as flexible as possible within
the constraints of RCRA. EPA's basic
approach will be to divide Phase II into
components and allow States to decide
which application strategy they wish to
pursue. That is to say, States can either
wait until the entire set of Federal
standards are promulgated and apply
for Phase H at that time or apply for
Phase II in components as the Federal
standards are promulgated. Each
approach has advantages and
disadvantages which are discussed
below.
The first approach, delayed
application, maintains the unified nature
of the Phase II application process and
is thus more simple administratively. It
also provides additional time for States
to review the Federal regulations and
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Federal Register / Vol. 46, No. 16 / Monday, January 26, 1981 / Rules and^Regulations
develop the necessary statutory,
regulatory, and program elements.
However, it results In a Federal permit
program in the State until the State
receives authorization for the entire'
Phase II program. Permits can be issued
for facilities covered in the first Part'264
standards on the effective dateoHhose
standards. Some Federal permitting
actions will be necessary for hew
facilities, given the lack of existing '
treatment, storage and disposal capacity
and the need to establish facilities
which satisfy the environmental and
human health requirementsjof the Part
264 standards. Since underpins
approach a State tvould not be able to
receive interim authorization for its
permitting programs forperhaps a year
and a half following the first Part 264
promulgations, a direct Federal
permitting and enforcement role would
exist hi the State during thisperiod.
A number of States already have
hazardous waste permitting programs
developed under State law. The
resulting dual Federal-State programs
created by this approach would lead to
some confusion and duplication of
effort, although EPA would attempt to
minimize this through the use of,
cooperative arrangements [see 45 FR
33784).
The second approach, application hi
components, eliminates some of these
problems in that it enables States to
apply for Phase n of interim
authorization shortly after the initial
promulgation of the Part 264 technical
facility standards. States can apply for
interim authorization of their permitting
programs for specific categories of
facilities on or shortly after the
promulgation of the Federal Part 264
standards which allow the jssuance of
State RCRA permits to those categories
of facilities. *
• However this approach does
complicate the application process for
Phase II interim authorization. A revised
State application will be necessary for
each component, or group of
components, of Phase n^TJie application
will be subject to the requirements set
forth in Part 123, Subpart F, including
EPA review, public participation, and
public hearing. •
In order to simplify the application
process, EPA will announce the effective
date and content of each component of
Phase II of interim authorization in a
'In a separate action In today's Federal Register,
EPA is promulgating Part 267 standards which it
will use for a limited time to issue permits to new ,
land disposal facilities. For the reasons explained in
the preamble to those standards, EPA will not be
using the Part 287 regulations to authorize State
permitting programs.
Federal Register notice.'The notice will
list:
-• The effective date of the component
[i.e., the date oh which State
authorizations for that component can
take effect; this will normally be the .
effective date of the regulations
comprising the component);
« The categories of facilities (e.g.,
tanks) covered in the component;
• The facility standards under Part
264 covered in the component; and
• The permit requirements and
procedures under Parts 122 and 124
covered in the component; currently
EPA expects that all of these will be
part of the first component.
States will thus be given explicit
information concerning what aspects of
interim authorization can be applied for
with the announcement of each '•
component.
EPA anticipates that there will be
three components of Phase II, although
subsequent Part 264 promulgations may
create a need for additional
components. The Phase II application
structure produced by these
'amendments can accommodate such
additional components. EPA may
combine separate Part 264
promulgations which occur within a few
months of each other into one
component of Phase H, in order to
simplify and reduce the burden of, the
application process.
, Dividing Phase H of interim
authorization into components satisfies
the Congressional intent for timely State
access to authorization. It also reduces
the possibility of duplicate permit
programs and inefficient use of Federal
and State resources.
States will be able to apply fora
component of Phase n on or shortly
after the promulgation of the underlying
Federal standards for that component.
States will be able to receive interim
authorization .for that component within
six nionths (i.e., on the effective date of
that component). This should help
eliminate the existence of dual Federal
and State' programs and .should reduce
the Federal presence in States likely to
receive interim authorization for Steir
permit prograni. : -. .
During the time before a State is
.authorized for a component of Phase II,
EPA has the authority for regulation of
facilities covered in that component in
that State. EPA will work closely with
States which appear to be moving in a
timely manner toward Phase II interim
authorization to reduce any duplication
or confusion. The Federal permitting
role, especially.for existing facilities,
will be relatively minor in such States
.during the short period before the State
is authorized.
The general approach to Phase II of
.interim authorization which EPA has
adopted results in a more complex
application process arid schedule than
previously promulgated. EPA has
attempted to write the necessary
amendments to Part 123 as clearly as
possible and to "provide additional
explanations and examples in this
preamble. The appendix to this
preamble provides a section-by-section
detailed analysis of the amendments,
their rationale, and how they will work.
In addition, EPA personnel will work
closely with State agencies and the
public to ensure that the revised process
is implemented hi an efficient manner.
Today's amendments do not change a
large portion of 40 CFR Part 123, Subpart
F, but they make changes to many
different sections. In order to make
Subpart F easier to use, EPA is .
reprinting it to iis entirety, as amended.
This reprint includes a recent
amendment to § 123.128(f)(2). It also
includes an amendment,to § 123.128(g),
which appears separately in today's ' .
Federal Register.
Iff. Interim Fined Promulgation
• EPA believes that the use of advance
notice and comment procedures for
these essentially technical amendments
to 40 CFR Part 123, Subparts B and F
would be impracticable and contrary to
the public interest, and therefore finds
that good cause exists for adopting this
change in interim final form (see 5
U.S.C. § 553(b)(E}). Delay in
promulgating these amendments would
cause substantial confusion and
disruption of existing programs for
States which want to begin the
application process for the first '••
components of Phase H. Without these
amendments, States, the regulated
community and the general public would
not know how EPA will handle the
authorization of State permitting
programs under RCRA now that the
Federal regulations which comprise
Phasfe H are being promulgated at
different times. In order to allow the
State authorization process, which
began in November 1960, to continue to
proceed fri an orderly fashion, EPA is
promulgating today's amendments to 40
CFR Part 123, Subparts B and F in
interim final form. EPA will accept
comments on these amendments for 60
days and will make any further changes
deemed necessary as a result of those
comments.,
IV. Effective Date
RCRA does not specify when EPA's
regulations governing the authorization
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8300 Federal Register / Vol. 46, No. 16 / Monday, January 26, 1981 / Rules and Regulations
of State programs are to take effect (see
Section 3010(b) of RCRA, 42 U.S.C.
I 6930{b}). The Administrative
Procedure Act (see 5 U.S.C. § 553(d})
requires that the effective date for a
regulation be not less than 30 days from
the date of publication, unless there is
good cause for an earlier date. EPA
finds that good cause exists for making
those amendments effective upon
publication. As discussed above in
section in of this preamble, the process
of interim authorization of State
hazardous waste programs has begun,
and is continuing. A delayed effective
date for these amendments would
confuse and disrupt the ongoing process.
Appendix—Analysis of Amendments
EPA is today amending 40 CFR Part
123, Subpart F (Requirements for Interim
Authorization of State Hazardous Waste
Programs) to reconcile Phase n of
interim authorization with the changes
In the schedule for promulgation of^the
Federal facility standards. The
substantive program requirements for
Phase n for the most part have not been
changed. Also, the basic structure and .
numbering of Subpart F have not been
significantly changed. Rather, these
amendments implement needed changes
in the schedule and related requirements
for Phase n to keep the interim
authorization program in
correspondence with the underlying
Federal program. EPA is also amending
40 CFR Part 123. Subpart B (Additional
Requirements for State Hazardous
Waste Programs), to adjust the
beginning dates of the final
authorization program to the changes in
the interim authorization program. The
major changes and their rationale are
discussed below in the narrative for the
appropriate sections of Subparts B and
F.
Subpart B—Additional Requirements
for State Hazardous Waste Programs
Only one paragraph of this Subpart is
revised in today's amendments:
1123.31 Purpose and scope,
Paragraph (c) of this section in the
May 19 promulgation provided that
States could apply for final
authorization "at any time after the
initial promulgation of Phase H", and
that State final authorization programs
could take effect on the effective date of
Phase H. However, as noted above, the
"initial promulgation of Phase II" (i.e.,
the promulgation of the first Part 264
technical Facility standards) did not
include all of the underlying Federal
standards which State hazardous waste
programs will need to address in order
to receive final authorization. It will not
be possible to grant final authorization
to States until the necessary Federal
standards have been promulgated and
the last component of Phase II of interim
authorization is in place.
Therefore, paragraph (c) has been
revised to provide that States may apply
for final authorization "at any time after
the promulgation of the last component
of Phase II." This promulgation will
complete the job of outlining the
requirements for final authorization.2
Likewise, State final authorization
programs can take effect on the effective
date of the last component of Phase II.
EPA will publish notices in the Federal
Register on the promulgation and
effective dates of the last component of
Phase II, so that States will be aware of
the beginning of the final authorization
process.
Subpart F—Requirements for Interim
Authorization of State Hazardous Waste
Programs
A number of sections of Subpart F
have been changed to adjust the Phase
n interim authorization process. EPA
has chosen to print the entire Subpart as
revised in today's promulgation, so that
readers will have easy access to the
current language. This appendix
discusses the major changes in each
section of Subpart F:
§ 123.121 Purpose and scope.
Paragraph (b) of this section in the
May 19 promulgation explained the
general content and application process
for the two phases of interim
authorization. Because Phase II has
been modified by the changes in the
underlying Federal regulations,
paragraph (b) has been revised to
introduce two new paragraphs (c) and
M-
New paragraph (c) states that because
the Federal facility standards will be
issued in several separate
promulgations, "Phase II of interim
authorization will be implemented in
several components". Each component
of Phase H interim authorization Will
correspond to specified Parts and
Subparts of the Federal regulations. For
each component, States will be allowed
to administer a permit program in lieu of
the corresponding Federal permit
program.
8 EPA may allow final authorization to begin, i.e.,
may announce the promulgation of the last
component of Phase n, with one or two Part 264
Subparts unpromulgated. EPA may decide to do this
if, for example, the standards for thermal treatment
or chemical, physical and biological treatment have
not been promulgated when the land disposal
standards are promulgated.
EPA will describe each component of
Phase II in a Federal Register notice
which announces that States may apply
for interim authorization for the
component, provides the effective date
of the component, and specifically
identifies the elements of the Federal
hazardous waste permit program
corresponding to the component. This
process is described in paragraph (c)(2)
of § 123.121.
The Federal Register notices will
clearly define the-content and timing of
each component of Phase II. For
example, each notice will list:
• The specific categories of facilities
(e.g., tanks, containers, incinerators,
landfills) covered by that component;
• The facility standards under 40 CFR
Part 264 covered by that component; and
• The permit requirements and
procedures under 40 CFR Parts 122 and
124 covered by that component
(although EPA expects all of these to be
required in the first component).
The notice will also announce the
effective date of that component, i.e., the
date upon which State program
authorizations for that component will
take effect.
Paragraph (c)(3) of § 123.121 describes
the general effect of State receipt of
interim authorization for a component of
Phase II. The most important effect is
that such a State will be able to issue
RCRA permits for the categories of
facilities covered in that component. For
example, EPA may announce that a
component includes permitting
standards for containers (based on the
Federal standards in Part 264, Subpart
I). A State receiving interim
authorization for that component will be
authorized to issue RCRA permits to
facilities handling containers (and to the
other facilities covered in that
component).
A. State will not be able to issue
RCRA permits for facilities if the
component covering those facilities has
not been promulgated. Of course, a State
will not be able to issue RCRA permits
for facilities if the State does not have
interim authorization for the .component
of Phase II which includes those
facilities.
New paragraph (d) of § 123.121
explains how States may apply for the
two phases of interim authorization,
now that Phase II is made up of at least
three components. This paragraph has
been included to emphasize the
flexibility States have in deciding when
to apply for Phase H. Four examples are
given of the ways in which States can
apply, ranging from sequential
application each time an element of
interim authorization (e.g., Phase I, a
component of Phase II) is promulgated
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to one application covering all of interim
authorization submitted after the last
component of Phase II is promulgated.
Section 123.122 provides the more
detailed regulatory framework for the
timing-of the application process.
1123.122, Schedule*
The division of Phase n into
components creates a number of
.changes in the'mterim authorization
schedule as followsr
Duration of interim, authorization. In
the May 19 preamble, EPA announced
that interim authorization would be
limited "to 2 years from the effective
date of the full initial RCRA program
. regulations, which includes the Phase II
regulations. . ,". (For;a discussion of
this policy in light of RCRA Section
30Q6(c), see 45 FR 33386-33387.)
This basic approach has been
maintained in today's amendments. The
"full initial RGRA program regulations"
will not take effect until the last major
piece of the Federal facility standards
(40 CFR Part 264) is in place. Therefore,
paragraph (b){l) of this section provides
- that the final two-year period for interim
uthorization begins with the effective
date"3f4h8 last component of Phase n.
Paragrap&4sHl) of &**- section
provides that StatSSjnay apply for .
interim authorization aFany time prior
to the end of the Sth month after the
effective date of the last component of
Phase n. This schedule is in keeping
with the earlier policy of allowing States
one year after the promulgation of the
"full initial RCRA program regulations" ,
to apply for interim authorization. The
deadline; for, such applications has
merely been changed to reflect the
delayed promulgation of the last major
piece of the Federal facility standards.
Thus, the effective date of the last
component of Phase n starts two interim
authorization "clocks": interim
authorization may extend for two years
from that date and States may apply for
interim authorization for six months
from that date. When the last
component of Phase II is effective, EPA
will publish a notice in the Federal
Register announcing this date and its
significance, to provide a clear
notification to all concerned parties.
Timing of Phase I application* The
May 19 preamble stated that FJPA had
created an "application window,
approximately one year in length"
during which a State could apply for
interim authorization for Phase I without
an accompanying application for Phase
II. The preamble noted that this period
of time was necessary since "States will
have to make quite a few changes in
their existing programs to conform them
to the substantial equivalence
requirement. Letting this year overlap
the promulgation date of the Phase II
regulations will mean that there will not'
be any abrupt interruptions in filing and
processing of State applications for
interim authorization" (45 FR 3*3387),
The basic concept of a one year Phase
I application window, overlapping the
promulgation: of the Federal facility
standards, has been: changed in today's
amendments, in order to'maintain the
one year application window for the
Phase II components. Paragraph (c)(3)
provides that States may apply for
Phase I alone until a months after the
effective date of the first component "of
.Phase II. This date will occur in January
1982. EPA has provided this additional
time for States to apply for Phase I alone .
so that the general approach and the
principles of the Phase II application
process will apply to States which have
not received Phase I authorization as
well as to authorized States.
If EPA provided a shorter period of
' time for Phase I application alone, then ,
unauthorized States would be placed in
an unfair position. For example, if a
shorter period of time were provided, a
State which has been working diligently
to make the program changes necessary
for Phase I, but was unable to submit a
complete Phase I application for another
six months or more, would have to apply
for the first components of Phase II in
addition to Phase I. Such a State would
have to begin anew to make the changes
required for the first components of .
Phase n and would have to wait until it
made these changes before it could
receive Phase I authorization. In effect,
the State would not be given the
opportunity to decide whether to apply
for Phase II sequentially or all at once,
since it would have to apply for the first
components of Phase H in order to
proceed with its application, for Phase I.
In addition, the State would not
necessarily have a year from the .
announcement of the first components
to make necessary program changes and
apply for those components, if it
accelerated its Phase II application in
order to receive Phase I authorization as.
soon as possible. These constraints
would not be facedby States already
authorized for Phase L
To avoid these inequities and to ,
satisfy Congressional intent for timely
State authorizations,, EPA has decided to
extend the time for State applications, •
for Phase I alone. This, nineteen month
period (May, 1980 to January, 1982) is a
reasonable, accommodation' to State •
needs for flexibility within the context
of the Phase II structure created by >
. these amendments.
Timing of Phase II application. Ks
discussed earlier, States have the option
of applying for interim authorization for
a component of Phase-H once EPA has
announced the promulgation of that
component. Paragraph (c)(4) provides
this authority. '
The concept of a one year application
windowfbrPhase II provided in the
May 19 regulations has been continued
in these amendments; However, since
Phase H now consists of at least three
components, States have been provided
a one year application window for each
component. The same arguments in
favor of this approach for Phase I and
Phase IT apply to each component of
Phase H. Thus, paragraph (c)(5) provides
,that a State may apply for a component
of Phase II without applying for
subsequent components of Phase II for
one year following the promulgation of
that component.,
The May 19 regulations required
States with interim authorization for
Phase I to apply for Phase II by 6 months
after the: effective date of the Phase n
regulations or the Phase I authorization
would expire. The rationale for: this
requirement, was to reduce "the time
during which States would be operating:
interim authorization programs that did
not correspond to the then, effective
Federal program, and to keep States • •
moving toward final authorization" (45
FR 33388).
EPA still believes .that this approach
to Phase II application is reasonable. But
the delay in some of the Federal
standards, upon which Phase His; based
requires a,modification:of this approach..
Some States maynot wish to apply for
Phase IT "in pieces," due to the cost and
complexity of such an application;
strategy; These amendments have'given
such States the flexibility to wait until
all of Phase II is promulgated before
submitting a Phase ft application.
Because EPA expects that all
components of Phase II will be
promulgated withirr a year, such
flexibility does not create serious delays
in State progress toward equivalent
programs. To require States which have
already received Phase I authorization
to apply for eacE component of Phase n
within 6 months of its effective date
would eliminate this flexibility without
serving any beneficial function.
Therefore, today's amendments at
paragraph (c)(7) require that States
which have received interim
authorization for parts of the program
(Phase lor Phase I and some
components of Phase II) apply for all'of.-
Phase II within 6 months of .the effective
date of the last component of Phase II
Conditions for Phase II Application.
Paragraph (d) of this, section in the May
19 regulations provided that no State
could apply for Phase H unless it was
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8302 Federal Register / Vol. 46. No. 16 / Monday, January 26, 1981 / Rules and Regulations
already authorized for Phase I or was
simultaneously applying for both
phases. The principle behind this
requirement was that the two phases of
interim authorization are not
Independent programs but are segments
of the same program which have been
developed at slightly different times.
One result of this principle is that a
State with Phase I authorization must
apply for Phase II within a certain time
period. In addition, since Phase I
established much of the basic structure
and requirements of the RCRA
hazardous waste management program
(e.g., identification of wastes and the
manifest system), a State can never be
authorized for Phase H alone.
Today's amendments adopt this basic
principle and apply to the new Phase n
circumstances. Thus, States can never
be authorized for one component of
Phase II without receiving all earlier
components. Paragraph (d)(l) of
§ 123.122 provides that no State may
apply for a component of Phase II unless
it (1) has already received authorization
for all previously promulgated elements
of the program (Phase I and any earlier
components of Phase II), or (2) is
simultaneously applying for whatever
already promulgated elements of the
program have not been received along
with the component For example, a
State which has received authorization
for Phase I only and desires to apply for
the second component of Phase II, must
apply at the same time for the first
component of Phase n in order to bring
its program up to date. A State can also
choose to amend its program each tune
a component of Phase n is promulgated
and thus move at the same speed and on
a parallel track to the unfolding Federal
program.
Changes in the Federal Regulations. A
second condition for Phase II
application Is based upon changes in the
Federal system. The Federal hazardous
waste regulations have been amended
in a number of places since their initial
promulgation. EPA has been asked how
and when States must add these
amendments to their applications for
interim authorization or to then- already
authorized programs, so that the State
programs remain "substantially
equivalent" to the current Federal
program.
The most efficient way for States to
bring then- programs into conformance
with the current Federal program is to
make the necessary changes whenever
they apply for a component of Phase H.
States applying for a component will
have to modify their program in any
case in order to meet the requirements
of the component. Adding other Federal
regulation changes which have been
made as of the date of announcement of
the component is not an unreasonable
requirement, and moves the State
toward final authorization.
Therefore, new paragraph (d)(2)
requires States to include in their
application for a component of Phase II
all program requirements which have
been promulgated on or before the date
that the component for which they are
applying was promulgated. For example,
a State applying for the first component
of Phase II would have to include in its
application all amendments to Phase I
requirements which have been
promulgated on or before the date the
first component was promulgated. In
other words, it would have to address
all changes to Phase I requirements
adopted after May 19,1980 and through
the announcement of the first
component of Phase II that EPA deems
are necessary for a State program to
maintain its substantial equivalence to
the Federal program.
Each Federal Register notice which'
announces a component of Phase II will
specifically identify the elements of the
Federal program (including amendments
to Phase I and previously promulgated
Phase n components) which must be
included in a State's application for that
component.
§§ 123.123 through 123.127 Elements of
a program submission.
Most of the amendments to these
sections are simple .changes in phrases,
such as changing "Phase II" to "a
component of Phase II". The major
-effect of this group of amendments is to
require that a State applying for a
component of Phase II include the
applicable requirements for that
component in each element of its
application (e.g., program description). A
State already authorized for Phase I or
for earlier components of Phase II must
amend each element of its application
where necessary to reflect the
requirements for the component for
which it is applying.
Two of today's changes.merit an
additional comment:
First, § 123.125(a) requires the State
Attorney General or independent legal
counsel to certify in the application for a
component of Phase II that the enabling
legislation for the program for that
component (and any other components"
included in the application) was in
existence within 90 days of the
promulgation of the regulations
comprising the component(s). This
requirement carries out one of the basic
mandates of RCRA Section 3006(c). The
statute requires that, in order to be
eligible for interim authorization, a State
must have a hazardous waste program
in existence pursuant to State law
within ninety days after the date of
promulgation of regulations under
Sections 3002, 3003, 3004 and 3005. EPA
interprets this requirement to mean that,
as a minimum, a State must have
enabling legislation in place. EPA is
applying the requirement for State
enabling legislation to each major
element under RCRA Section 3004
contained in a component. The
legislative authority must be in place
within 90 days of the promulgation of
each set of Federal Phase II regulations,
since each component is created by a
major § 3004 promulgation. (It should be
noted that States must have the
authority within 90 days of the
regulations' promulgation even if they
do not intend to apply for that
component until a later date.)
Sticond, the § 123.127 requirements for
State authorization plans have been
modified to take into account the
existence of components of Phase II. A
State applying for a component must
address in its authorization plan the
portions of the final authorization
program that are included in that
component (as well as the portions—
included in Phase I or previous
components of Phase.E): Since the full
set of requirements for final
authorization will be known when the
last major piece of the Federal program
is promulgated, authorization plans
submitted with an application for the
last component of Phase II must address
all additions and modifications
necessary for final authorization.
§ 123.128 Program requirements for
interim authorization for Phase I.
The only amendment to this section
included in this promulgation is directed
at State programs authorized for Phase I
except for generator, transporter or
related manifest requirements. Section
123.128(d) as promulgated on May 19,
1980 allowed States to receive Phase I
interim authorization without these
requirements if certain conditions were
met. Today's amendment provides that a
State which has received Phase I
authorization under the terms of this
paragraph may apply for interim
authorization to implement those
generator, transporter, or manifest
requirements as a part of its application
for a Phase II component or "as
mutually agreed upon between EPA and
the State." EPA's intention is that such
States will ordinarily apply for these
requirements as a part of a Phase II
application. However, in some cases
(e.g., where only minor program
modifications are necessary for a State
to apply for these requirements), EPA
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Federal Register / Vol. 46, No. 16 / Monday, January 28, 1981 / Rules and Regulations 8303
and the State may agree to a separate
application covering'the Phase I
generator, transporter or manifest
requirements. ,
I £23.125 Additional program
requirements, for Phase II in terim
authorization*
The May 13 regulation provided that
States applying for Phase H must have
facility standards "that provide -
substantially the same degree of human
health and environmental protection" as
the Federal. Part 264 standards, This
basic requirement has been maintained
in paragraph [a), with an adjustment to
reflect the division of Phase II into
components. An application for a
.componentof Phase II must meet this
requirement for those facility standards
corresponding to that component. Thust
a State applying for the second
component of Phase II must have facility,
standards meeting the above test for all
Federal Part 264 standards contained in
the second component of Phase n, as,
specified in the Federal Register notice
which-announced that component.
The basic requirement that States
have a permit program for specified
• hazardous waste management facilities
haSrnot been changed. The only
amendment to paragraph (b)(l) has been
the addition of language limiting this
requirement to the categories of
facilities covered in the component of
Phase 13 for which the State is applying.
For example, if standards under Part
264 Subpart J (Containers) are found in
the first component, a State applying for
the first component must include a
permitting requirement for containers in
its application. If standards under
Subpart N (Landfills), however, are not
included in that component (or previous
components), the State cannot apply-for
authorization for permitting landfills.
This approach enables States to
administer a RCRA permit program for
each category of facilities--on or shortly
after the effective date of the underlying
Federal Part 264 standards for that
category. ... -
New paragraph (£} of this section
addresses State coverage of facilitiesr
which would receive a permit by rule
under the Federal program. The Federal
permit by rule provisions in § 122.26
apply to ocean disposal barges and
vessels and certain POTWs and
injection wells. Such facilities are
deemed to have a RCRA permit if they
have specified permits under other EPA
programs: and if they comply with
specified regulations under the Federal
hazardous waste program, listed in
1122.26,
State programs applying for any
component of Phase H interim
authorization must require that facilities
covered by Federal permits by rule '
comply with standards that are at least
substantially equivalent to the
applicable standards; in § 122.26. For
example, injection wells must comply
with State standards which- are at least
substantially equivalent to the Federal
conditions for injection wells listed at
§ 122.26(b). Such standards do not have
to be imposed through issuance of a
State permit, although States- may
include these facilities in their RCRA
permit system* States may also use a
permit by rule system. The standards
under either approach must be fully
enforceable. (States are, of course, free
to impose standards which are more
stringent than the Federal standards,
under § 123.121(i).)
§ 123.135 Approval process.
The amendments to this section make
the interim authorization approval
process applicable to a State submission
for any component of Phase II. Thus,
following receipt of a1 complete program
submission for a component, EPA will
give the required Federal Register
notices, make copies of the submission •
available to the public and provide for
public comment and a public hearing.
(The hearing may be cancelled if
"significant public interest in a hearing
is not expressed.") ,
EPA expects to issue a revised edition
of the RCRA State Interim Authorization
Guidance Manual, which will describe
in more detail the application and
review process. EPA intends to make
the application process for components
of Phase n as simple as possible within
the statutory and regulatory framework.
For example, authorized States applying
for a component of Phase n need not
revise all of their earlier application;
rather, amendments need only address
the specific additional program elements
required for that, component {and for
any changes in previous parts of the
authorization created by modifications
in the Federal program, as stated in
§ 123.122(d)(2)).
§123.137 Reversion of State programs*
This section provides for termination
of authorized programs that do not meet
'the requirements of § 123.122(c)(7,).'
Authorized programs must submit an
amended submission covering all
components of Phase II by 6 months
after the effective^ date of the last
component, and that amended
submission must meet the .requirements
of the Federal program, or else the
authorized.State program then reverts to
EPA.
(Sections 1006, 2002(a), and 3006 of the Solid
Waste'Disposal Act, as amended by the
Resource Conservation and Recovery Act of
1976, as amended, 42 IT.S.C.§§ 6S05,.6912(aJ,
and 6926)
Dated: January 17,1981.
Douglas M. Gosiie, ' .
Administrator.
Title 40;CFR Part 123 is; amended as
follows:
1. The authority citation for Part. 123:
Subparts B and F reads as follows:
(Sections 1008, 2002(a], and 3006 of the Solid
Waste Disposal Act, as amended'by the
Resource Conservation and Recovery Act of
1976, as amended, 42U.S.C 6905, 69I2(a) and
6926)
2. By re vising paragraph (c) of
§ 123.31 to read as follows:
i 123.31 Purpose and scope.
* * * * #.-
(e)(l) States may apply for final
authorization at any time after the
promulgation of the last component of
Phase II.
Note.—EPA will publish a notice in the
Federal Rsgister announcing, the beginning of
the application period for final authorization.
(2) State programs under final
authorization shall not take effect until
the effective date of the last component
of Phase II.
* *• * * *
3. By revising Subpart F to. read: as
follows:'
Subpart F—Requirements for Interim:
Authorization of State Hazardous Waste
Prpgrams- -.,.-••
See. '
123.121 Purpose and scooe.
123.122 Schedule.
123.123 Elements of a program submission.
123.124 Program description.
123.125 Attorney General's statement. •
123.126 Memorandum of agreement.
123.127 Authorization plan.
123.128 Program requirement* for interim
authorization for Phase L
123;129 Additional program requirements
for interim authorization for Phase IE
123.130 Interstate movement of hazardous
waste. •
123.131 Progress reports.
123.132 Sharing of information.
123.133 Coordination with other programs.
123.134 EPA review of State permits.
123.135 Approval process.
123.136 Withdrawal of State programs.
123.137 Reversion of State programs*.
Subpart F—Requirements for Interim
Authorisation of State Hazardous
Waste Programs
§123.121 Purpose and scope.
(a) This Subpart specifier all of the
requirements a State program must meet
in order to obtain interim authorization
-------
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8304 Federal Register / Vol. 46, No. 16 / Monday, January 26, 1981 / Rules and Regulations
under section 3006(c) of RCRA. The
requirements a State program must meet
in order to obtain final authorization
under section 3006(b) of RCRA are
specified in Subparts A and B.
(b) Interim authorization of State
programs under this Subpart may occur
in two phases. The first phase (Phase 1}
allows States to administer a hazardous
waste program in lieu of and
corresponding to that portion of the
Federal program which covers
identification and listing of hazardous
waste (40 CER Part 201), generators (40
CFR Part 262) and transporters (40 CFR
Part 263} of hazardous wastes, and
establishes preliminary (interim status]
standards for hazardous waste
treatment, storage and disposal facilities
(40 CFR Part 265). The second phase
(Phase II) allows States to administer a
permit program for hazardous waste
treatment, storage and disposal facilities
in lieu of and corresponding to the
Federal hazardous waste permit
program (40 CFR Parts 122,124, and
284), as explained in paragraph (c) of
this section.
(c) Because some of the Subparts of
the Federal regulations containing
standards for hazardous waste
treatment, storage, and disposal
facilities (40 CFR Part 264) will be
promulgated at different times, Phase n
of interim authorization will be
implemented in several components.
(1) Each component of Phase n of
interim authorization will correspond to
specified Parts and Subparts of the
Federal regulations.
(2) EPA will announce each
component of Phase II of interim
authorization in a Federal Register
notice. The notice will announce that
States may apply for interim
authorization for one or more
components. The notice will also
provide the effective date of the
component(s) and specifically identify
the Parts and Subparts of the Federal
regulations comprising the
component(s).
(3) States meeting the requirements of
this Subpart will be allowed to
administer a permit program in lieu of
the corresponding Federal hazardous
waste permit program for each
component for which they have received
interim authorization,
(d) States may apply for interim
authorization either sequentially or all
at once, as long as they adhere to the
schedule in § 123.122. For example,
States may:
(1) applylor interim authorization for
Phase I and amend that application each
time a component of Phase II is
announced; or
(2) apply for interim authorization for
Phase I, wait until the last component of
Phase II has been announced, and
amend the Phase I application at that
time to include all components of Phase
II; or
(3) apply at the same time for interim
authorization for Phase I and for already
announced components of Phase II, and
amend that application each time an
additional component of Phase II is
announced; or
(4) wait until the last component of
Phase II has been announced, and apply
at the same time for interim
authorization for Phase I and for all
components of Phase II.
Note.—§ 123.122 provides a more detailed
schedule of the interim authorization
application process.
(e) The Administrator shall approve a
State program which meets the
applicable requirements of this Subpart.
(f) Upon approval of a State program
for a component of Phase II, the
Administrator shall suspend the
issuance of Federal permits for those
activities subject to the approved State
program.
(g) Any State program approved by
the Administrator under this Subpart
shall at all times be conducted in
accordance with this' Subpart.
(h) Lack of authority to regulate
activities on Indian lands does not
impair a State's ability to obtain interim
authorization under this Subpart. EPA
will administer the program on Indian
lands if the State does not seek this
authority,
Note.—States are advised to contact the
United States Department of Interior, Bureau
of Indian Affairs, concerning authority over
Indian lands.
(i) Nothing in this Subpart precludes a
State from:
(1) Adopting or enforcing
requirements which are more stringent
or more extensive than those required
under this Subpart.
. (2) Operating a program with a greater
scope of coverage than that required
under this Subpart. Where an approved
program has a greater scope of coverage
than required by Federal law the
additional coverage is not part of the
Federally approved program.
§123.122 Schedule.
(a) Interim authorization for Phase I
shall not take effect until Phase I
commences. Interim authorization for
each component of Phase II shall not
take effect .until the effective date of that
component.
(b)(l) Interim authorization may
extend for a 24-month period from the
effective date of the last component of
Phase II.
Note.—EPA will publish a notice in the
Federal Register announcing the beginning of
this 24-month period.
(2) At the end of this period all interim
authorizations automatically expire and
EPA shall administer the Federal
program in any State which has not
received final authorization.
(c)(l) A State may apply for interim
authorization at any time prior to
expiration of the 6th month of the 24-
month period beginning with the
effective date of the last component of
Phase II.
(2) A State applying for interim
authorization prior to the announcement
of the first component of Phase II shall
apply only for interim authorization for
Phase I.
(3) A State may apply for interim
authorization for Phase I alone (without
applying for interim authorization for
any component of Phase II) until six
months after the effective date of the
first component of Phase II.
(4) A State may apply for interim
authorization for a component of Phase
II upon the announcement of that
component, provided that the State
meets the requirements of paragraph (d)
of this section.
[5] A State may apply for interim
authorization for a component of Phase
II without applying for interim
authorization for subsequent
components of Phase II for one year
following the announcement of that
component, provided that the State
meets the requirements of paragraph (d)
of this section.
(6) A State applying for interim
authorization for a component of Phase
II more than one year after the
announcement of that component must
apply for all components announced
more than one year before the date of
the application.
(7) A State which has received interim'
authorization for Phase I (or interim
authorization for Phase I and for some
but not all of the components of Phase
II) shall amend its original submission to
include all of the components of Phase II
not later than 6 months after the
effective date of the last component of
Phase II.-
(d)(l) No State may apply for interim
authorization for a component of Phase
II unless it: (i) has received interim
authorization for Phase I and for all
previous components of Phase II; or (ii)
is simultaneously applying for interim
authorization for that component of
Phase II and for any previously
promulgated elements of interim
authorization (Phase I and previous
components of Phase II) for which the
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Federal Register / Vol. 46, No. 16 / Monday, January 26, 1981 / Rules and Regulations
8305
State has not previously received
interim authorization.
(2) A State applying for interim
authorization, for a component of Phase
II shall include in its application all
interim authorization program
requirements promulgated on or before
the date that component of Phase II was
promulgated. A State which has
received interim authorization for Phase
I (or interim authorization for Phase I
and for previous components of Phase "
II) shall amend its original application
when applying for a component of Phase
II to include all interiin authorization .
program requirements promulgated on
or before the date that component of
Phase II was announced.
§ 123.123 Elements of a program
submission.
(a) States applying for iriferim
authorization shall submitat least three
copies of a program submission to EPA
containing the following:
(1) A letter from the Governor of the
State requesting State program
approval;
(2) A complete program description,
as required by § 123.124, describing how
the State intends to carry out its
responsibilities under this subpart;
(3) An Attorney General's statement
as required by § 123.125;
(4) A Memorandum of Agreement
with the Regional Administrator as
" required by § 123.126;
[5] An authorization-plan as required
by § 123.127;
(6) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures. • .
(b) Within 30 days of receipt by EPA '
of a State program submission, EPA will
' notify the State whether its submission
is complete. If a State's submission is
found to be complete, EPA's formal
review of the proposed State program
shall be deemed to have begun on the
date of receipt of the State's submission.
See § 123.135. If a State's submission is
found to *be incomplete, formal review
shall not begin until all the necessary
information is received by EPA.
(c) If the.State's submission is
materially changed during the formal
review period, the formal review period
shall recommence upon receipt of'the
revised submission.
(d) A State simultaneously applying
for interim authorization for both Phase
I and a component of Phase II shall
prepare a single submission?
(e) A State applying for interim
authorization for a component of Phase
II after receiving interim authorization
for Phase I (or for Phase I and previous
components of Phase II) shall amend its
previous submission for interim
authorization as specified in §§123.124
to 123.127. ,
,§133.124 Program description.
Any State that wishes to administer a
program under this Subpart shall submit
to the Regional Administrator a
complete description of the program it
proposes to administer in lieu of the
Federal program under State law. A
State applying only for interim
authorization for a component of Phase
II shall amend its program description
for interim authorization for Phase I (or
for Phase I and previous components of
Phase II) as necessary to reflect the
program it proposes to administer to
meet the requirements for interim
authorization corresponding to.the
component of Phase fl for which the
State is applying. The program
description shall include: , ,
(a) A description in narrative form of
the scope, structure, coverage, and
processes of the State program.
(b) A description (including
organization charts) of the organization
and structure of the. State agency or
agencies which will have responsibility
for administering the program including
the information listed below. If more
than one agency is responsible for
administration of the program, each
agency must have Statewide jurisdiction
over a class of activities. The
responsibilities of each agency must be
delineated, their procedures for
coordination set forth, and one of the
agencies must be designated a "lead
agency" to facilitate communications
between EPA and the State agencies
having program responsibility. Where
the State proposes to administer a
program of greater scope of coverage
than is required by Federal law, the
information provided under this section
shall indicate the resources dedicated to
administering the Federally required
portion of thp program.
(1) A description of the State agency ,
staff who will be engaged in carrying
out the State program, including the
number, occupations, and general duties
of the employees. The State need not
submit complete job descriptions for
every employee engaged in carrying out
the State program.
(2) An itemization of the proposed or
actual costs of establishing and •-
administering the program, including
cost of the personnel listed in paragraph
(b)(l) of this section, cost of
administrative support and cost of
technical support.
. (3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money,
available to the State Director to meet
the costs listed in paragraph (b)(2) of
this section identifying any restrictions
or limitations upon this funding.
(c) A description of applicable State
•procedures, including permitting
procedures, and any State appellate •
review procedures.
Note.—.States applying only for interim
authorization for Phase I need describe
permitting procedures only to the extent they
will be utilized to assure compliance with
standards substantially equivalent to 40 CFR
Part 265.
(d) Copies of the forms and the
manifest format the State intends to use
in its program. Forms used by the State
need not be identical to the forms used
by-EPA, but should require the same
basic information. If,the State chooses
to use uniform national forms it should
so note.
(e) A complete description of the
State's compliance monitoring and
enforcement program.
(f) A description of the State manifest
system if the State has such a system
and of the procedures the State will use
to coordinate information with other
approved State programs and the
Federal program regarding interstate
and international shipments.'
(g) An estimate of the number of the
" following:
(1) Generators;
(2) Transporters; and
(3) Dn- and off-site treatment, storage
and disposal facilities including a brief
description of the types of facilities and
an indication, if applicable, of the permit
•status of these facilities.
§ 123.125 Attorney General's statement. •
(a) Any State seeking to administer a
program under this Subpart shall sjubmit
a statement from the State Attorney
General (or the attorney for those State
or interstate agencies which have
independent legal counsel), that the .
laws, of the State, or the .interstate
compact, provide adequate authority to
carry out the program described under
§ 123.124 and to meet the applicable
requirements of .this Subpart, This
statement shall include citations to the
specific statutes, administrative
regulations, and, where appropriate,
judicial decisions which demonstrate.
adequate authority. Except as provided
in § 123.128(d), the State Attorney
General or independent legal counsel
must certify that the enabling legislation
for the program for Phase I was in
existence within 90 days of the
promulgation of Phase I. In the case of a
State applying for interim authorization
for a component of Phase II, the State
Attorney General or independent legal
counsel must certify that the enabling
legislation for the program for that
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8308
Federal Register / Vol. 48, No. 16 / Monday, January 26, 1981 / Rules and Regulations
component was In existence within 90
days of the promulgation of the
regulations comprising that component
State statutes and regulations cited by
the State Attorney General or
independent legal counsel shall be
lawfully adopted at the time the
statement is signed and shall be fully
effective by the time the program is
approved. To qufalify as "independent
legal counsel" the attorney signing the
statement required by this section must
have full authority to independently
represent the State agency in court on
all matters pertaining to the State
program. In the case of a State applying
only for interim authorization for a
component of Phase n, the Attorney
General's statement submitted for
Interim authorization for Phase I (or for
Phase I and previous components of
Phase II) shall be amended and
recertified to demonstrate adequate
authority to carry out all requirements of
that component.
(b)(l) In the case of a State applying
for interim authorization for Phase I, the
Attorney General's statement shall
certify that the authorization plan under
1123.127(a), if carried out, would
provide the State with enabling
authority and regulations adequate to
meet the requirements for final
authorization contained in Phase I.
{2} In the case of a State applying for
interim authorization for a component of
Phase n, the Attorney General's
statement shall certify that the
authorization plan under § 123.127(b), if
carried out, would provide the State
with enabling authority and regulations
adequate to meet all the requirements
for final authorization contained in that
component of Phase n.
(c) Where a State seeks authority over
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State's authority.
$ 123.128 Memorandum of agreement.
(a) The State Director and the
Regional Administrator shall execute a
Memorandum of Agreement (MOA). In
addition to meeting the requirements of
paragraph [b) of this section, and, if
applicable, paragraph (c) of this section,
the Memorandum of Agreement may
include other terms, conditions, or
agreements relevant to the
administration and enforcement of the
State's regulatory program which are not
inconsistent with this subpart. No
Memorandum of Agreements shall be
approved which contains provisions
which restrict EPA's statutory oversight
responsibility. In the case of a State
applying only for interim authorization
for a component of Phase n, the
Memorandum of Agreement shall be
f.
amended and re-executed to include the
requirements of paragraph (c) of this
section and any necessary revisions to
the requirements of paragraph (b) of this
section.
(b) The Memorandum of Agreement
shall include the following:
(1) Provisions for the prompt transfer
from EPA to the State of information
obtained in notifications made pursuant
to section 3010 of RCRA and received by
EPA prior to the approval of the State
program, EPA identification numbers for
new generators, transporters, and
treatment, storage, and disposal
facilities, and any other information
relevant to effective program operation
not already in the possession of the
State Director [e.g., pending permit
applications, compliance reports, etc.).
(2) Provisions specifying the frequency
and content of reports, documents, and
other information which the State is
required to submit to EPA. The State
shall allow EPA to routinely review
State^ecords, reports, and files relevant
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
when appropriate.
(3) Provisions on the State's
compliance monitoring and enforcing
program including:
(i) Provisions for coordination of
compliance monitoring activities by the
State and EPA. These may specify the
basis on which the Regional
Administrator will select facilities or
activities within the State for EPA
inspection. The Regional Administrator
will normally notify the State at least 7
days before any such inspection; and
(ii) Procedures to assure coordination
of enforcement activities.
(4) Provisions for modification of the
Memorandum of Agreement in
accordance with this Part.
(5) A provision allowing EPA to
conduct compliance inspections of all
generators, transporters, and HWM
facilities during interim authorization.
The Regional Administrator and the^
State Director may agree to limitations
regarding compliance inspections of
generators, transporters, and non-major
HWM facilities.
(6) A provision that no limitations on
EPA compliance inspection of '
generators, transporters, and non-major
HWM facilities under paragraph (b)(5)
of this section shall restrict EPA's right
to inspect any HWM facility, generator,
or transporter which it has cause to
believe is not in compliance with RCRA;
however, before conducting such an
inspection, EPA will normally allow the
State a reasonable opportunity to
conduct a compliance evaluation
inspection.
(7) A provision delineating respective .
State and EPA responsibilities during
the interim authorization period.
(c) In the case of a State applying for
interim authorization for a component of
Phase n, the Memorandum of
Agreement shall also include the
following, as applicable to the
component of Phase n for which the
State is applying:
(1) Provisions for prompt transfer from
EPA to the State of pending permit
applications and support files for permit
issuance. Where existing permits are
transferred to the State for
administration, the Memorandum of
Agreement shall contain provisions
specifying a procedure for transferring
responsibility for these permits. If a
State lacks the authority to directly
administer permits issued by the Federal
government, a procedure may be
established to transfer responsibility for
these permits.
(2) Provisions specifying classes and
categories of permit applications and
draft permits that the State Director will
send to the Regional Administrator for
review and comment. The State Director
shall promptly forward to EPA copies of
permit applications and draft permits for
all major HWM facilities. The Regional
Administrator and the State Director
may agree to limitations regarding
review of and comment on permit
applications and draft permits for non-
major HWM facilities. The State
Director shall supply EPA copies of final
permits for all major HWM facilities.
(3) Where appropriate, provisions for
joint processing of permits by the State
and EPA for facilities or activities which
require permits under different
programs, from both EPA and the State.
§ 123.127 Authorization plan.
The State must submit an
"authorization plan" which shall
describe the additions and modifications
necessary for the State program to
qualify for final authorization as soon as
practicable, but no later, than the end of
the interim authorization period. This
plan shall include the nature of and
schedules for any changes in State
legislation and regulations; resource
levels; actions the State must take to
control the complete universe of
hazardous waste listed or designated
under section 3001 of RCRA as soon as
possible; the manifest and permit
systems; and the surveillance and
enforcement program which'will be
necessary in order for the State to
become eligible for final authorization.
(a)(l) In the case of a State applying
only for interim authorization for Phase
I, the authorization plan shall describe
the additions and modifications
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^deral JRegjster/ Vol. 46, No. 16 / MoQfoy.January .^'^f^L/..^^° j°jj^"!g^g°^_ " 83Q7
necessary for the State program to meet
the requirements for final authorization
contained in Phase I.
(2) In the case of a State applying only
for interim authorization for a
component of Phase II, the authorization
*plan for Phase I (or for Phase I and
previous components of Phase II) shall
be amended to meet the requirements of
paragraph (b) of this section.
(b)(l) In the case of a State applying
for interim authorization for a
component of Phase-II, the authorization
plan shall describe the additions and
, modifications necessary for the State
program to meet the requirements for
final authorization corresponding to that
component of Phase ,11 and the
requirements for final authorization
correspojiding to Phase I and previous
components of Phase II.
(2) In the case of a State applying for
interim authorization for the last
component of Phase II, the authorization
plan shall describe the additions and
modifications necessary for the State
program to meet all the requirements for
final authorization.
§123.128 Program requirements for
interim authorization for Phase I.
The following requirements are .
applicable to States applying for interim
authorization for Phase I. If a State does
not have legislative authority or
-. regulatory control over certain activities
that do not occur in the State, the State
may be granted interim authorization for
Phase I provided the State authorization
plan under § 123.127 provides for the
development of a complete program as
soon as practicable after receiving
interim authorization. '
(a) Requirements for identification
and listing of hazardous waste. The
State program must control a universe of
hazardous wastes generated, . "
transported, treated, stored, and
disposed of in the State which is nearly
t identical to that which would be
controlled by the Federal program under
40 CFR Part 261.
{b) Requirements for generators of
hazardous waste.
(1) This paragraph applies unless the
State comes within the exceptions
described under paragraph (d) of this
section.
(2) The State program must cover all
generators of hazardous wastes
controlled by the State.
(3) The State shall have the authority
to. require and shall require all
generators covered by the State program
to comply with reporting and
recordkeeping requirements •
substantially equivalent to those found
at 40 CFR §§ 262.40 and 262.41.
(4) The State program must require
that generators who accumulate
hazardous wastes for short periodsvof
, tune prior to shipment do so in a manner
that does not present a hazard to human
health or the environment.
(5) The State program shall provide
requirements respecting international
shipments which are substantially
equivalent to those at 40 CFR § 282.50,
except that advance notification of
international shipment, as required by
40 CFR § 262.50(b)(l), shall be filed with
the Administrator. The State may
'require that a copy of such advance
notice be filed with the State Director, or
may require equivalent reporting
procedures.
Note.—Such notices shall be mailed to
Hazardous Waste Export, Division for
Oceans and Regulatory Affairs (A-107), U.S.
Environmental Protection Agency,
Washington, D.C. 20460.
(6) The State program must require
that such generators of hazardous waste
who transport (or offer for transport)
such hazardous waste off-site use a
manifest system that ensures that inter-
and intrastate shipments of hazardous
waste are designated for delivery, and,
in the case of intrastate shipment, are
delivered only to facilities that are
authorized to operate under an
approved State program or the Federal
program. ,
[7) The State manifest system must
require that:
(i) The manifest itself identify the
generator, transporter, designated
facility to which the hazardous waste
will be.transported, and the hazardous
waste being transported;
(ii) The manifest accompany all
wastes offered for transport, except in
the case of shipments by rail or water
specified in § § 262.23(c) and 263.20(e);
and ' ' -
, (iii) Shipments of hazardous waste
that are not delivered to a designated
facility are either identified and reported
by the generator to the State in which
the shipment originated or are
independently identified by the State in
which the shipment originated.
(8) In the case of interstate shipments
for which the manifest has not been
returned, the State program must .
provide for notification to the State in
which the facility designated on the
manifest is located and to the State hi
which the shipment may have been
delivered (or to EPA in the case, of
unauthorized States).
(c) Requirements for transporters of
hazardous wastes.
(1) This paragraph applies unless the
State comes within the exceptions
described under paragraph (d) of this
section.
(2) The State program must cover all
transporters of hazardous waste
controlled by the State.
(3) The State shall have the authority
to require and shall require all
transporters covered by the State
program to comply with recordkeeping
requirements substantially equivalent to
those found at 40 CFR § 263.22.
(4) The State program must require
such transporters of hazardous waste to
use a manifest system that ensures that
inter- and intrastate shipments of
hazardous waste are delivered only to
facilities that are authorized under an
approved State program or the Federal
program.
(5) The State program must require
that transporters carry the manifest with
all shipments, except hi the case of
shipments by rail or water specified in
40 CFR § 263.20(e).
(6) For hazardous,wastes that are
discharged in transit, the State program
must require that transporters notify
appropriate State, local, and Federal
agencies of the discharges, and clean up
the wastes or take action so that the
wastes do not present a hazard to
human health or the environment. These
requirements shall be substantially
equivalent to those found at 40 CFR
§§263.30 and 263.31.
{A) Limited exceptions from generator,
transporter, and related manifest
requirements.
A State applying for interim
authorization for Phase I which mee'ts
all the requirements for such interim
authorization except that it does not
have statutory or regulatory authority
for the manifest system or other
generator or transporter requirements
discussed in paragraphs (b) and (c) of
this section may be granted interim
authorization, if the State authorization
plan under § 123.127 delineates the
necessary steps for obtaining this
authority no later than the end of the
interim authorization period under
§ 123.122(b). A State may apply for ,
interim authorization to implement the
manifest system and other generator
and transporter requirements if the
enabling legislation for that part of the
program Was in existence within 90 days
of the promulgation of Phase I. States
which have received interim
authorization for Phase I under the
terms of this paragraph may apply for
interim authorization to implement the
manifest system and other generator
and transporter requirements as a part
of the State's submission for any
component of Phase II or as mutually
agreed upon between EPA and the
State. Until the State manifest system
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8308
Federal Register / Vol. 46. No. 16 /Monday, January 26, 1981 / Rales and Regulations^
and other generator and transporter
requirements are .approved by EPA, all
Federal requirements for generators and
transporters (including use of the
Federal manifest system] shall apply in
such States and enforcement
responsibility for that part of the
program shall remain, with the Federal
Government. The universe of wastes for
which these Federal requirements apply
shall be the universe of wastes
controlled by the State under paragraph
(a) of this section.
(e) Requirements for hazardous waste
treatment, storage, and disposal
facilities.
States must have standards applicable
to HWM facilities which are
substantially equivalent to 40 CFRPart
265, State law shall prohibit the
operation of facilities not in compliance
with such standards. These standards
shall include:
(1) Preparedness for and prevention of
releases of hazardous waste controlled
by the State under paragraph (a) of this
section and contingency plans and
emergency procedures to be followed in
the event of a release of such hazardous
waste;
(2) Closure and post-closure
requirements;
(3) Grourtdwater monitoring;
(4) Security to prevent unknowing and
unauthorized access to the facility;
(5) Facility personnel training;
[6} Inspection, monitoring,
recordkeeping, and reporting;
(7) Compliance with the manifest
system including the requirement that
the facility owner or operator or the
State hi which the facility is located
must return a copy of the manifest to the
generator or to the State in which the
generator is located indicating delivery
of the waste shipment; and
(8) Other facility standards to the
extent that they are included in 40 CFR
Part 265, except that Subpart R
(standards for injection wells) may be
included in the State standards, at the,
State's option.
(f) Requirements for enforcement
authority.
(1) Any State agency administering a
program under this Subpart shall have
the following authority to remedy
violations of State program
requirements:
(i) Authority to restrain immediately
by order or by suit in State court any
person from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or the environment;
(ii) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement, including, where
.,•., ..
appropriate, permit conditions, without
the necessity of a prior revocation of the
permit; and
(iii) For any program violation, to
assess or sue to recover in court civil
penalties in at least the amount of $1000
per day to seek criminal fines in at least
the amount of $1000 per day.
(2) Any State administering a program
under this Subpart shall provide for.
public participation in the State
enforcement process by providing either:
(i) Authority which allows
intervention as of right in any civil
action to obtain the remedies specified
in paragraph (f)(l) (ii] and (iii) of this
section by any citizen having an interest
which is or may be adversely affected;
or •
(ii)(A) Assurance by the appropriate
State agency that it will investigate and
provide written responses to all citizen
complaints submitted pursuant to the
procedures specified in paragraph
(g)(2)(iv) of this section;
(B) Assurance by the appropriate
State enforcement authority that it will
not oppose intervention by any citizen
when permissive intervention is
authorized by statute, rule, or regulation;
and
(C) Assurance by the appropriate
State enforcement authority that it will
publish notice of and provide at least 30
days for public comment on all proposed
settlements of civil enforcement actions,
except in cases where a settlement
requires some immediate action (e.g.,
cleanup) which if otherwise delayed
could result in substantial damage to
either public health or the environment.
(g) Requirements for compliance
evaluation programs.
(1) A State program under this
Subpart shall have procedures for
receipt, evaluation, recordkeeping, and
investigation for possible enforcement of
all required notices and reports.
(2) The State program shall (i) include
independent State inspection and -
surveillance authority to determine
compliance or non-compliance with
applicable program requirements; or (ii)
the State program shall indicate that the
State will rely on and act under the
inspection authority provided hi Section
3007(a)ofRCRA.
(3) If the State is relying on
independent State inspection and
surveillance authority, the authority
shall include authority to enter any
conveyance,'vehicle, facility, or
premises subject to regulation or in
which records relevant to program
operation are kept in order to inspect,
obtain samples, monitor or otherwise
investigate compliance with the State
program. States whose law requires a
search warrant prior to, entry comply
with,this requirement.
(4) -If the State is relying on the
authority in Section 3007(a), the State
program must contain assurances that
there are no provisions of State law
which prevent the. State from using that,
authority.
(5) The Stats program must include:
(i) The capability to make
comprehensive surveys of any activities
subject to the State Director's authority
in order to identify persons subject to
regulation who have failed to comply
with program requirements;
(ii.) A program for periodic inspections
of the activities subject to regulation;
(iii) The capability to investigate
evidence of violations of applicable
program and permit requirements; and
(iv) Procedures to determine
compliance or non-compliance with
applicable program requirements
including procedures for receiving and
ensuring proper consideration of
information submitted by the public
about violations. Public effort in
reporting violations shall be encouraged,
and the State Director shall make
available information on reporting
procedures.
(6) Investigatory inspections shall be
conducted, samples shall be taken, and
other information, shall be gathered in a
manner (e.g., using proper "chain of
custody" procedures) that will produce
evidence admissible in an enforcement
proceeding or in court.
§ 123.129 Additional program
requirements for interim authorization for
Phase ii.
In addition to the requirements of
§ l'23.128, the following requirements are
applicable to States applying for interim
-authorization for a component of Phase
n.
(a) State programs must have
standards applicable to hazardous
waste management facilities that
provide substantially the same degree of
human health and environmental
protection as the standards promulgated
in the Subparts of 40 CFR Part 264
comprising that component. •
(b)£L) State programs shall require a
permit for owners and operators of
those hazardous waste treatment,
storage, and disposal facilities:
(i) corresponding to that component;
(ii) which handle any waste controlled
by the State under § 123.128(a); and
(iii) for which a permit is required
under 40 CFR Part 122.
(2) The State program shall prohibit
the operation,of such facilities without a
permit, provided States may authorize
owners and operators of facilities which
would qualify for interim status under
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JFederal Register / Vol. 46, No. 16 /Monday, January 26, 1981 / Rules, and Regulations
8309
the Federal program (if State law so
authorizes) to remain in operation
. pending permit action. Where State law
authorizes such continued operation it
shall require compliance by owners and
operators of such facilities with
standards substantially equivalent to
EPA's interim status standards under 40
CFR Part 265.
(c) All permits issued by the State
under this section shall require
compliance with the standards adopted
by the State in accordance with
paragraph (a) of this section.
(d) State programs shall have
requirements for permitting which are'
substantially equivalent to the
provisions listed in §§ 123.7 (a) and (b).
(e) A State with interim authorization
for a component of Phase II may not
issue permits pursuant to that
component with a term greater than ten
years.
(f) State programs shall require that a
facility which, under the Federal
hazardous waste management program,
would be-deemed to have a Federal
permit if the conditions.established in
§ 122.26 of this chapter are met, comply
with standards at least substantially
• equivalent to the applicable standards
in § 122.26 of this chapter. Such
: standards need not be imposed through
issuance of a permit, but must be fully
enforceable. .
§123.130 Interstate movement of
hazardous waste.
(a) If a waste is transported from a
State where it is listed or designated as
hazardous under the program applicable
in that State, whether that is the Federal
program or an approved State program,
into a State with interim authorization
where it is not listed or designated, the
waste must be manifested in accordance
with the laws of the State where the
waste was generated and must be
treated, stored, or disposed of as ,
required by the laws of the State into
which it has been transported.
(b) If a waste is transported from a
State with interim authorization where it
is not listed or designated as hazardous
into a State where it is listed or
designated as hazardous under the
program applicable in that State,
whether that is the Federal program or
an approved State program, the waste
must be treated, stored, or disposed of in
accordance with the law applicable in
the State into which it has been
transported.
(c) In all cases of interstate movement
of hazardous waste, as defined by 40
CFR Part 261, generators and
transporters must meet DOT
requirements in 49 GFR Parts 172,173,
178, and 179 (e.g., for shipping paper.
packaging, labeling, marking, and
placarding)..
§ 123.131 Progress reports.
The State Director shall submit a
semi-annual progress report to the EPA
Regional Administrator within 4 weeks
of the date 6 months after Phase I
commences, and at 6-month intervals
thereafter until the expiration of interim
authorization. The reports shall briefly
summarize, in a manner and form
prescribed by the Regional
Administrator, the State's compliance in
meeting the requirements of the
authorization plan, the reasons and
proposed'remedies for any delay in
meeting milestones, and the anticipated
problems and solutions for the next
reporting period.
§ 123.132 Sharing of information.
(a) Any information obtained or used
in the administration of a State program
shall be available to EPA upon request
without restriction. If the information
has been submitted to the State under a
claim of confidentiality, the State must
submit that claim to EPA when
providing information under this
Subpart. Any information obtained from
a State and subject to a claim of
confidentiality will be treated in
accordance with the regulations in 40
CFR Part 2. If EPA obtains from a State
information that is not claimed to be
confidential, EPA may make that
information available to the public
without further notice.
(b) EPA shall furnish to States with
- approved programs the information in
its files not submitted under a claim of
confidentiality which the State needs in
order to implement its approved
programs. EPA shall furnish to States
with approved programs information
submitted to EPA under a claim of
confidentiality, which the State needs in
order to implement its approved
program, subject to the conditions in 40
,CFRPart2.
§123,133 Coordination with other
programs.
(a) Issuance of State permits under
this Part maybe coordinated, or
provided in Part 124, with issuance of
NPDES, 404, andUIC permits whether
they are controlled by the State, EPA, or
the Corps of Engineers.
(b) The State Director of any . •
approved program which may affect the
planning for and development of
hazardous waste management facilities
and practices shall consult and
coordinate with agencies designated ,
under section 4006(b) of RCRA (40 CFR
Part 255) as responsible for the
development and implementation of
State solid waste management plans
under section 4002(b) of RCRA (40 CFR
Part 256).
§ 123.134 EPA review of State permits.
(a) The Regional Administrator may
comment on permit applications and
draft permits as provided in the
Memorandum of Agreement under
§ 123.126. " -
. (b) Where EPA indicates, in a
comment, that issuance of the permit
would be inconsistent with the approved
State program, EPA shall include in the
comment: ...
(1) A statement of the reasons for the
comment (including the section of RCRA
or regulations promulgated thereunder
that support the.comment); and
(2) The actions"that should be taken
by the State Director in order to address
the comments (including the conditions
which the permit would include if it
were issued by the Regional
Administrator).
(c) A copy of any comment shall be
sent to the permit applicant by the
Regional Administrator.
(d) The Regional Administrator shall
withdraw such a comment when
satisfied that the State has met.or
refuted his or her concerns. :
(e) Under section 3008(a)(3) of RCRA,
EPA may terminate a State-issued
permit in accordance with the
procedures of Part 124, Subpart E or
.bring an enforcement action in
accordance with the procedures of 40
CFR Part 22 in the case of a violation of
a State program requirement. In
exercising these authorities, EPA will
observe the following conditions:
(1) The Regional Administrator may
take action under section 3008(a)(3) of
RCRA against a holder of a State-issued
permit at any tune on the ground that
the permittee is not complying with a
condition of that permit.
(2) The Regional Administrator may
take action under section 3008(a)(3) of
RCRA against a holder of a State-issued
permit at any time on the ground that
the permittee is not complying with a
condition"that the Regional •
Administrator in commenting on the
permit application or draft permit stated
was necessary to implement approved
State program requirements, whether or
not that condition was. included in the
final permit.
(3) The Regional Administrator may
not take action under section 3008(a)(3)
of RCRA against a holder of a State-
issued permit on the ground that the
permittee is not complying with a
condition necessary to implement
approved State program requirements
unless the Regional Administrator
stated in commenting on the permit
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8310 Federal Register / Vol. 46, No. 16 / Monday, January 28, 1981 / Rules and Regulations
application or draft permit that that
condition was necessary.
(4) The Regional Administrator may
take action under section 7003 of RCRA
against a. permit holder at any time
whether or not the permit holder is
complying with the permit conditions.
§ 123.135 Approval process.
(a) Within 30 days of receipt of a
complete program submission for Phase
I or for a component of Phase H of
interim authorization, the Regional
Administrator shall:
(1) Issue notice in the Federal Register
and hi accordance with § 123.39{a)(l) of
a public hearing on the State's
application for interim authorization.
Such public hearing will be held by EPA
no earlier than 30 days after notice of
the hearing, provided that if significant
public interest hi a hearing is not
expressed, the hearing may be cancelled
if a statement to this effect is included in
the public notice. The State shall
participate in any public hearing held by
EPA.
(2) Afford the public 30 days after the
notice to comment on the State's
submission; and
(3) Note the availability of the State's
submission for inspection and copying
by the public. The State submission
shall, at a minimum, be available in the
main office of the lead State agency and
in the EPA Regional Office.
(b) Within 90 days of the notice in the
Federal Register required by paragraph
(a)(l) of this section, the Administrator
shall make a final determination
whether or not to approve the State's
program taking into account any
comments submitted. The Administrator
win give notice of this final
determination in the Federal Register
and in accordance with § 123.3fl(a)(l).
The notification shall include a concise
statement of the reasons for this
determination, and a response to
significant comments received.
(cj Where a State has received interim
authorisatlpn for Phase I or for Phase I
and for some but not all components of
Phase 11 the same procedures required in
paragraphs (a) and (b) of this section
shall be used in determining whether the
amended program submission meets the
requirements of the Federal program.
1123.136 Withdrawal of State programs.
(a) The criteria and procedures for
withdrawal set forth in §§ 123.14 and 15
apply to this section.
(b) In addition to the criteria in
1123.14, a State program may be
withdrawn if a State which has obtained
interim authorization fails to meet the
schedule for or accomplish the additions
or revisions of its program set forth in its
authorization plan.
§ 123.13? Reversion of State programs.
(a) A State program approved for
interim authorization for Phase I or for
Phase I and for some but not ail
components of Phase II shall terminate
on the last day of the 6th month after the
effective date of the last component of
Phase II and EPA shall administer and
enforce the Federal program in the State
commencing on that date if the State has
failed to submit by that date an
amended submission pursuant to
§ 123.122(c)(7).
(b) A State program approved for
interim authorization for Phase I or for
Phase I and for some but not all
components of Phase II shall terminate
and EPA shall administer and enforce
the Federal program in the State if the
Regional Administrator determines
pursuant to § 123.135(c] that a program
submission amended pursuant to
§ 123.122(c)(7) does not meet the
requirements of the Federal program.
[FR Doc. 81-2533 Ftied 1-23--81; &45 am]
BiU-IHG CODE 6560-SO-H
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