Tuesday
February 8, 1983
Part HI
Environmental
Protection
Hazardous Waste Permit Program;
Standards Applicable to Owners and
Operators of Hazardous: Waste
Management Facilities; Proposed Rule
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5872
Federal Register / Vol. 48, No. 27 / Tuesday, February 8. 1983 / Prpposedj.ules_
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122,123 and 264
[SW FRL 2039-2]
Hazardous Waste Management
System; the Hazardous Waste Permit
Program; Standards Applicable to
Owners and Operators of Hazardous
Waste Management Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: On February 26,1080 and
May 19,1980, the Environmental
Protection Agency (EPA) published
regulations which established a system
to manage hazardous waste. Those
regulations provide that permits issued
by EPA (and States with authorization to
issue permits under the Resource
Conservation and Recovery Act (RCRAJ
for hazardous waste treatment, storage
and disposal facilities will be effective
for a fixed term not to exceed 10 years.
During the fixed term, EPA and
authorized States have limited
opportunities for reopening a permit to
make changes in permit conditions.
EPA is today proposing to amend the
regulations to provide that RCRA
permits will be effective for the
designated operating life of each facility,
and the period of post-closure care for
land disposal facilities. Under this
proposal, EPA and authorized States .
would have increased opportunities for
teopening permits during their terms.
EPA is proposing this change in an effort
to streamline the RCRA permitting ' -
procedure, reduce paperwork, and to
respond to settlement negotiations in a
lawsuit involving the RCRA regulations.
EPA anticipates that protecton of
human health and the environment
would not be affected by this section.
EPA also estimates that this action
would result in a savings to the
regulated community of approximately
$88.5 million if EPA promulgates this ,
rule and if States with authorization to
issue RCRA permits elect to issue those
permits effective for the designed
operating life of each facility plus the
post-closure period.
DATES: EPA will accept public
comments on the proposed amendment
until April 11,1983.
ADDRESSES: Comments should be
addressed to the Docket Clerk, Office of
Solid Waste (WH-562), U.S.
Environmental Protection Agency,
WashingtonrD.C. 20460.
Communications should identify the
regulatory docket number as "Section
122.9—Duration of Permits".
The public docket for this proposed
rule is located in Room S-269C, U.S.
Environmental Protection Agency, 401 M
Street, SW, Washington, D.C., and'is
available for viewing from 9:00 a.m. to
4:00 p.m. Monday through Friday
excluding holidays.
FOR FURTHER INFORMATION CONTACT:
Amy Mills, Office of Solid Waste (WH-
563), U.S. Environmental Protection
Agency, Washington, D.C. 20460, or call
(202) 382-4755, or the RCRA Hotline at
(800) 424-9346 or (202) 382-3000.
SUPPLEMENTARY INFORMATION:
I. Background
On February 26,1980 and May 19,
1980, EPA promulgated regulations
pursuant to the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6901 et
seq. The regulations establish a system
to manage hazardous waste, and include
provisions under which EPA issues
permits to owners or operators of
facilities that treat, store or dispose of
hazardous waste (40 CFR Part 122, 45 FR
33418).' Section 122.9 of those
regulations specifies that permits issued
to hazardous waste management
facilities will be effective for a fixed
term of 10 years or less. At the end of
each permit term, the permittee must
apply for and receive a nevv permit if he
plans to continue his operation. The
purpose of this requirement is to assure
changes in regulations or available
technology are integrated into permits
on a periodic basis.
The May 19 rule also contains a
provision which gives EPA the
opportunity to revise permit conditions
during the term of the permit (§ 122.15).
For most of the allowable causes" for
permit modifications, EPA may initiate a
change with or without the consent of
the permittee (§ 122.15(a) (1), (2), and (5)
and 122.15(b))." However, in an attempt
to provide permittees with greater
certainty during the terms of their
permits, the May 19 regulations limited
the cause for permit modifications
resulting from changes to EPA
regulations to instances when
VThe RCRA permitting requirements are
contained in EPA's consolidated permit regulations,
originally promulgated on May 19,1980 and codified
in 40 CFR Parts 122-124. These regulations have
been continuously supplemented and amended, Th,e
most important amendments occurred on January
12,1981, when EPA promulgated permitting
regulations for storage and treatment facilities (46
FR 2802); on January 23,1981, when EPA
promulgated permitting regulations for incinerators
(46 FR.766S); and July 26,1982, when EPA
promulgated permtting regulations for land disposal
facilities (47 FR 32274). ,
modification is requested by the
permittee (§ 122.15(a)(3)).
EPA has re-examined the .maximum
10-year permit term and its implications
for both the regulated community and
the Agency. The subject arose in recent
negotiations in a lawsuit involving the
consolidated permit regulations. (NRDC |
vEPA, No. 80-1607 and consolidated
cases, D.C. Cir., filed June 2,1980).'The
petitioners in that case claim that the
current regulations unreasonably requirel
EPA to repeatedly review an entire
facility's operation every 10 years or
less, and reopen and re-evaluate all of
the issues which were resolved when
the initial permit was issued. Some
facilities are designed to operate 30 • /
years or more; thus, under the current
regulations an entire facility may be re-
evaluated three or more times during its
operating life. These extensive re-
evaluations would proceed regardless of J
whether there'had been any substantive
changes in the facility's design or
operation, or in the regulations on which
its initial permit had-been based.
The petitioners further claim that
repeating the permit application process
every 10 years or less can lose a
significant burden to the regulated
community. First, there can be a
substantial monetary burden associated
with the extensive paperwork involved
in applying for a permit. Second, the 10-
year permit presents disadvanteges to
the facility owner who may plan to
operate for more than 10 years but can
only obtain approval for his facility for
10 years at a time.
EPA agrees'that the curent limit to
permit duration can pose certain
disadvantages to the regulated
community. The Agency also finds that
the procedures for issuing permits, i.e.,
, reviewing each permit application,
preparing a draft permit, providing an
opportunity for public hearing, and
preparing a final permit, can be very
time-consuming and resource-intensive •
for the Agency. Under the current
.regulations, EPA would have to repeat
these procedures at least once every 10
years for each facility.
EPA wishes to avoid the unnecessary
expiration and reissuance of permits at
arbitrary intervals of 10 years or less
and the attendant costs andpaperwoik
burdens, At the same time, the Agency
believes it must maintain some oversight
of the operation of a facility during the
term of its permit. Therefore, EPA is
today proposing an approach which
'For further explanation of the procedural
aspects of the NRDC v EPA suit, see the preamble
to the technical amendments to 40 CFR Parts 122 .
and 124 in the April 8,1982 Federal Register (47 FR
15304).
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Federal Register / •VgL',4& No. 27 / Tuesday/^efouary 8, J983 ? Proposed Riiles
accomplishes both goals and; which also
would resolve the issue to the
satisfaction of the NRDG petitioners.,
II.'Lifetime Permits
Rather than issuing permits effective
| for ug to 10 years, EPA is today
proposing to issue "lifetime" permits,
i.e., permits effective for the designed
operating life of each facility, and for the
post-closure care period and ground-
water monitoring compliance period for
I Jand disposal facilities. The advantage to
this approach is that a permit need only-
he issued once for a facility. A permit
would be issued for less than the
designed operating life of a facility only
"if the permit applicant so requests.
When and if this- system goes into effect,
the initial permit for a facility currently
operating with interim status would be
written to cover the remainder of the
facility's designed operating life, as'well
as the post-closure care period and
ground-water monitoring compliance
period for land disposal facilities. For
facilities which have already been
issued a permit, the next permit would ,'
be written to cover the remainder of the
facility's designed operating life (and the
post-closure care period and ground-
water monitoring compliance period), or
the owner or operator could request a
modification of his current permit,3
A. Designed Operating Life
. The designed operating life of a
facility is the period of time, estimated
by the owner or operator and approved
by EPA, for which the facility is
designed to operate, and during which
operation is expected to .continue. It is
the same estimate used to establish the
date of final closure in a facility's
closure plan, and to establish a pay-in
period for closure and post-closure trust
funds. ' .
Designed; operating life can be
determined by considering several'
factors. For instance, the manufacturer's
warranty or estimated service life of'the
materials used in the construction of the
facility may affect designed operating
life. Consideration must also- be given to
the weakening effect of some hazardous
wastes on the materials of construction,
particularly in the case of corrosive
wastes. The volume of waste to be
handled may also contribute to the rate
of wear. The age of the construction
materials should also be considered,
especially when a permit is sought for
an existing facility operating with
partially worn equipment. •
• 'A permit could be modified for this causeunder
§ 122.15(a)(3) because the standards on which the
permit was based were changed by promulgafion.pf
new standards after the permit was issued.
The designed operating life may also
vary with the type of processes used at
the facility. Landfills and surface
impoundments may have predictable fill
rates; therefore"the designed operating:
life may simply be determined by
estimating when the, facility's capacity
will be reached. On the other hand, the
owner or operator of a storage facility
with tanks may plan to replace each
tank as its service life; expires [e.g., after
20 or 30 years) but continue the general
operation of the facility for a total of 60
years. :
In some cases, the operating life of the
facility may be underestimated when
the permit is written, and the permit
may therefore expire before the facility
is ready fop closure;. The owner or
operator may then seek modificaiion or
,reissuance of his permit.
Some facilities may contain two or
more units which have designed
operating lives of differing length's. For
instance, one facility may contain a
storage tank which is designed to
operate for 20 years, and a container
storage area designed to operate for 5
years. In that case, EPA could issue a
permit effective for the designed
operating life of the unit expected to be
in operation the longest (i.e., the tank),
but condition" the permit so that a
second unit (i.e., the container storage
area) may be operated only until its
designed operating life expires. The
Agency invites comments from the
public on how to handle situations
involving multiple; units with different
designed operating lives. .
Some owners and operators of
hazardous waste management facilities
may have difficulty estimating, the
operating life of their facilities. v
Particularly in the case of a new"facility,
the owner or operator may plan to
continue operation indefinitely. In
anticipation of such instances, it may be
appropriate for EPA to set an upper limit
or cap on the duration of all RCRA
permits of, for example, 50 or 70 years.
The Agency requests comments and
suggestions on whether a cap should be
established in this rule for "lifetime"
permits, and if so, what length of time
would be reasonable.
B. Post-Closure Period and Ground-
Water Monitoring Compliance Period
EPA is proposing that the "lifetime"
permit cover the period of post-closure
care and compliance with ground-water
monitoring standards for land disposal
facilities. The post-closure care period
for a land disposal facility is generally
30 years. [See § 264.117:), The permit for
any facility that includes a land disposal
unit, e.g.. a landfill or disposal surface -
impoundment, weiuld be issued for the
term of the designed operating life of the
facility plus the pipst-closure period. The
permit conditions applicable after the
end of the designed operating life of the
facility would be those relating to post-
closure care of the facility.
In the Federal Register of July 26,1982,
EPA published permitting Standards for
land disposal facilities that impose post-
closure responsibilities concerning
ground-water protection (47 FR 32349). .
Compliance with the ground-water
protection standards in those
regulations will require an owner or
operator to conduct ground-water
monitoring andt in some cases, take
corrective action measures to remedy
ground-water contamination after ,
facility closure1. Accordingly, the •
duration of a permit for a land disposal
facility would extend as long as would
be necessary to assure compliance with
the ground-water! protection standards ..
in the land disposal regulations.
///. Increased OpportunitieSffoK
Modifications to Permits,
Today's proposal also broadens the
set of circumstances under which a ;- •
permit may be modified during its; term.
As discussed abcive, § 122.15 currently
provides that a.permit can be modified
during its term to conform to newly
promulgated regulations or judicial
decisions* only if the permittee requests
such a modification. EPA is proposing to
amend § 122.15Ca)(;3> to allow the
Agency, as well as the permittee, to
initiate a permit modification when the
standards or regulations on which.the
permit is based have been changed due
to either promulgation of new
regulations or a judicial decision. If EPA
promulgated the lifetime permit rule but
did not make thisi corresponding change
to § 122.15, EPA would have no;
mechanism for bnnging an existing;
facility into compliance with regulations
promulgated after the issuance of a
permit. However; with this change to
§ 122.15, as the eiiirrent standards- for ,
hazardous waste management facilities
are changed in the future, the Agency
would be able toiincorporate those new
standards into existing permits when
'appropriate. | -
Under today's proposal, EPA would
have the ability tp initiate modifications
to a permit if nev' standards are
promulgated or a judicial decision is. •
made which affects the basis of the
permit. This may raise concerns among
the regulated community as to whether
existing facilities will be required to
undergo extensive retrofitting in the
future, as EPA amends its Part 264;
regulations. Section 3004 of RCRA
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Federal Register / Vol. 48, 'No."27 "j Tuesday; Febma'ry 8, .1983 /Proposed Rules
directs EPA to distinguish, where
appropriate, between new and existing
facilities when promulgating regulations
applicable to hazardous waste
management facilities. Accordingly,
EPA will specify the applicability of
future standards to either new or
existing facilities or both in proposed
and final regulations. If today's
proposed rule is promulgated in final
form, EPA will consider initiating
modifications to an existing permit
when standards for existing facilities
are promulgated which, affect the basis
of that permit.
Today's proposed rule would also
amend § 122.15(a)(7) to allow for
modification of a permit if the permit
fails to include any applicable
requirement under RCRA which is in
effect prior to the date of permit
issuance. This amendment would ensure
that if a regulatory requirement is
inadvertently overlooked in the
preparation of a permit, the permit can
be reopened and modified to reflect that
requirement. Under the present
permitting system, such an error in a
permit can only be corrected when the
permit is periodically reissued. With
lifetime permits, however, there would
be no such periodic opportunity for
making a correction, and some permits
may be effective for periods much longer
than 10 years (the current maximum).
Therefore, the Agency proposes to allow
for corrections to a permit during its
effective term. A modification under this
provision could be initiated by the
permittee or the Agency.4
EPA intends to make a second change
to § 122.15(a)(7) to correct a
typographical error in § 122.15{a)(7)(ii)
made in the January 12,1981 Federal
Register (46 FR 2889). As printed on
January 12, that section provides that
the Director may make certain
modifications to permits when he
determines that they are "unwarranted".
This word obviously should have been
"warranted" (46 FR 2841). EPA will
correct this error either when today's
amendments are published in final form
or in a separate technical amendment.
IV. Regulatory Effect of Lifetime Permit
Proposal
The proposed change to permit
duration would limit EPA's ability to
issue permits for less than the designed
operating life of a facility, and would
reduce the ability of the public to
periodically scrutinize aspects of a
facility's operation. However, this loss
would be counter-balanced by the
Agency's increased ability to reopen
permits under the proposed changes to
§ 122,15(a)(3) and § 122.15(a)(7). The
Agency also would continue to have
authority to initiate permit modifications
if there are alterations to a facility
(§ 122.15(a)(l)) or if the Director receives
information pertinent to the facility
which was not available when the
permit was issued (§ 122.15(a)(2)). Thus,
EPA would have several avenues for
effecting necessary changes to the
operation of a facility during the
duration of its permit.
In addition,' EPA would still have the
ability to terminate a facility's permit for
cause under § 122.16. Also, EPA
continues to have authority, under
.Section 7003 of RCRA. to bring suit
against any owner or operator whose
facility "may present an imminent and
substantial endangerment to health or
the environment." EPA has additional
authority under Section 3013 of RCRA to
require an owner or operator to conduct
.monitoring, testing, and analysis when
the presence or release of waste "may
present a substantial hazard to human
health or the environment." With these
safeguards, the Agency believes it will
have sufficient means to protect human
health and the environment while
streamlining the permit program.
Financial Requirements
Conforming amendments to the
financial requirements in
§§ 264.143(a)(3) and 264.145(a)[3) are
also being proposed today. These
amendments would modify the
maximum pay-in period for closure and
post-closure trust funds for permitted
facilities to reflect the changes in permit .
duration being proposed today.
Under the current regulations, the
maximum pay-in period for trust funds
during Interim status is 20 years or the
remaining operating life as estimated in
the closure plan,5 whichever period is
shorter. The maximum pay-in period for
permitted facilities is currently the term
of the initial permit (i.e., up to 10 years),
or the remaining operating life as
estimated in the closure plan, whichever
period is shorter. Under the proposed
amendments, the pay-in period for
permitted facilities would be the'term of
the initial RCRA permit, or the
remaining operating life of the facility as
estimated in the closure plan, or 20
years, whichever is shorter.
For the reasons set forth in the
December 30,1980 Background
Document for the financial
requirements, EPA determined that
*Th« Agency may use information supplied by a
third party, such as an interested citizen, to initiate
• permit change.
5 Under the closure plan requirements in
§§ 264.112 and 265.112, the expected year of closure
must be specified and the plan must be kept current.
there should be a maximum pay-in
period for closure and post-closure trust
funds, and selected 20 years as that
period. In establishing the current
financial requirements, EPA further
limited the pay-in period for permitted
facilities to the term of the initial permit
so that trust funds would be fully funded
when the initial permits expire.
However, if the proposed amendment to
§ 122.9 (duration of permits) is
promulgated in final form, and
thenceforth EPA issues "lifetime"
permits, the maximum trust pay-in
period for permitted facilities as
determined under the present financial
requirements (which allow the period to
extend for the permit term) would be
extended from a maximum of 10 years to
40 or more years in many cases. As
noted above, EPA has determined that
20 years is the maximum allowable pay-
in period. Therefore, if the proposed
amendment regarding duration of
permits is adopted, the Agency proposes
that an accompanying amendment to the
financial requirements in Part 264 limit
the pay-in period for trust funds for
permitted facilities to the term of the
initial RCRA permit operating life, or 20
years, whichever period is shorter.
The amendment to Part 264 would
further provide that if a trust were
established during interim status, its'
pay-in period would not be extended by
the awarding of a permit, i.e., for no
facility would the pay-in period extend
beyond 20"years. The proposed language
states that the pay-in period will be as
, established in the interim status
standards, or the term of the initial
RCRA permit, whichever period is
shorter.
State Program Requirements
Conforming amendments to the State
Program Requirements in Part 123 are
also being proposed as part of today's
action. EPA is proposing to provide that
States which are authorized to issue
RCRA permits may issue those permits
effective for the designed operating life
of each facility and the post-closure care
period. . .
Part 123 of the May 19,1980, '
regulations set forth the criteria under
which State governments may obtain
authorization to implement the RCRA
program in lieu of the Federal
government. States may receive
"interim" authorization by establishing
a regulatory program for hazardous
waste management that EPA approves
as being "substantially equivalent" to
the Federal program.6 Phasell of interim
•For a'.discussion of State authorization ot the
RCRA program, see the preamble to 40 CFP Part
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5875
authorization includes authorization of
States to issue RCRA permits.
EPA established in § 123.129(d) that
States applying for Phase II interim
authorization must have' requirements
for permitting that are substantially .
equivalent to EPA's, including the
requirements for the duration'of permits
in § 122.9 In paragraph (e) of § 123.129,
EPA further defines substantial <
equivalence to the Federal standards for
permit duration by requiring that States
with Phase II interim authorization not
issue RCRA permits that are effective
for longer than ten years. The Agency
could have adopted a more flexible
interpretation of substantial equivalence
to the Federal program, but for policy
reasons, defined substantial equivalence
to the Federal standards for the duration
of permits quite narrowly.
As explained earlier in this preamble,
EPA is proposing to amend the
permitting standards for Federally-
issued RCRA permits, including
§ § 122.9,122.15, 264.143 and 265.143;
This regulatory action is partially in.
response to the settlement reached
between EPA and the petitioners who
raised RCRA-related issues in NRDC v
EPA, No. 80-1607 and consolidated
cases, (D.C. Cir., filed June 2,1980'.) The
settlement agreement also stipulates
that EPA will propose to revise ,
§ 123.129(e) to provide that States: with
interim authorization may issue permits
effective for the designed operating life
, of each facility. EPA proposes to
- accomplish this by deleting § 123.129(e)
from the regulations. The limit for permit
duration would thus be removed.
With the removal of § 123.129Ce)l* .
States with Phase II interim '
authorization would not be limited to
ten-year permit terms, but under
§ 123.129(d), they still would be required
to establish requirements for permits
that are "substantially equivalent" to
the provisions listed in § 123.7, including^
§ § 122.9 and 122.15v For the purpose of
State authorization, EPA would consider
State requirements similar to either a
combination o"£ the, current standards
under |§ 122.9 and 122.15 or a
combination of the proposed standards
under those sections to be substantially
equivalent to the Federal standards.
Currently, § 122.9 limits permit terms to
ten years, and 122.15 provides limited
opportunities, for EPA to reopen permits
and make changes to permit conditions.
In comparison, the proposed amendment
to § 122.9 would provide for "lifetime"
123, in the May 19,1980, Federal Register [45 FR
33386), and the preamble discussion accompanying
the January 26,1981 amendments to those
regulations (46 FR 8298). The State authorization
requirements also were amended on July 26,1982
(47 FR 32373). ,
permits, and the proposed amendment
to § 122:15 would increase EPA's
opportunities for reopening those ..
permits. If today's proposal is
promulgated, States applying for Phase
II interim authorization could use either ...
approach to establish substantial.
equivalence to the Federal requirements.
Further, States authorized to issue
RCRA permits could thereby choose
which permitting method is most
practical to implement in their particular
State. ' ;
As set forth in § 122.21(d) of EPA's
land disposal regulations, land disposal'
facilities must have RCRA permits
•during the period of post-closure care
(47 FR 32369, July 26,1982). Accordingly,,
in today's' proposed amendment to • ".
§ 122.9, EPA is proposing that the
"lifetime" permit cover Ihe post-closure
period as well as the designed operating
life of land disposal facilities. If today's
proposal is promulgated, States which
elect to adopt lifetime permits would
need to demonstrate to EPA that their
permit durations for land disposal
facilities cover the post-closure period.
States which elect to issue permits to
land disposal facilities with a term of
ten years or less must demonstrate that
their programs provide for the issuance
of term permits during the, post-closure
period.
States receiving'final authorization
under RCRA must, in accordance with
§ 123.7(a), establish provisions at least
as stringent as those in §.§ 122.9 and
122.15. The "Note" in § 123.7(a), as
promulgated May 19,1980, requires that
the stringency of each provision be
considered separately, and prohibits,
any "tradeoff of the degree of ,
stringency between one provision and
another. Therefore, if the proposed
amendments to § 122.9 and 122.15 are
promulgated in final form, and the
"Note" remains unchanged^. States.
applying for final authorization would
not be required to issue lifetime permits
(i.e., States could be more stringent than
the Federal program by issuing permits
for shorter durations), but they would be
required to have the permit reopening
abilities specified in §• 122.15 (i.e., the
State regulations would have to contain;
causes for reopening permits that are at
least as stringent as those causes in
§ 122.15).
However, the purpose of the -
aforementioned regulatory change to
§ 123.129 is to allow States with interim
authorization to make a trade-off
between the duration of RCRA permits
.and the State's ability to reopen permits
during their terms. EPA believes.that
States with final authorization should
have the same option. Consequently,
EPA is today proposing;to amend the
Note in§ 123.7(a) to clarify that States
with final authorization to implement
RCRA may have provisions which, in
combination, ;are at least as stringent as ',
a combination of §•§ 122.9 and 122.15. If
today's proposal is promulgated. States
applying for final authorization could
adopt an approach similar either to the
current standards under § § 122.9 and
122.15 or to the proposed standards
.under those sections in order to
establish equivalence with Federal
standards.7 i
Request for Comments -.-.'.
The Agency invites comments on all
aspects of theise proposed regulations,
including all issues raised in the
preamble. Several of these proposed
amendments to the RCRA permitting
system are pEirt of the settlement
reached betweert EPA and the '
petitioners wlSio raised RCRA-related
issues in NRDC vEPA, No. 80-1607 and
consolidated eases (D.C. Cir., filed June
2,1980). EPA ^anticipates that
firializatiori of today's proposal will
provide part of the basis for the •
settlement of this litigation. However,
EPA will carefully consider all timely
public comments on this proposal before
making its final decision.
Effective Date
Section 301p(b) of RCRA provides that
EPA's hazardous wa'ste regulations and
revisions thereto take .effect six months
after their promulgation. In addition, 5
U.S.C. 553(d);of the Administrative - _•
Procedure Act require* that substantive
rules not bec6me effective until at least
30 days after promulgation. The purpose
of these requirements is to allow
persons affected by the rulemaking
sufficient lead time to prepare to comply
with major now regulatory requirements.
However, for, the amendments proposed
today, the Agency believes that delaying
the effective date for any period of time:
would cause substantial andx
unnecessary tusruptibtfin the
implementation of the regulations and
would be contrary to the public interest.
These amendments, if promulgated in ,.
final form, would allow EPA and
authorized States to issue RCRA permits
for the designed operating life of each
facility, thus relieving owners and
operators of hazardous waste
management facilities from having to
reapply for a RCRA permit every 10
- 'It should also; be noted that under il23.37(d)
permits issued: by States prior to the approval of
final authorization may need to be modified'after
final authorization is granted to ensure that the
conditions, of th& permits comply with RCRA
requirements. | .• > , , •
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Federal Register / Vol. 48 No. 27 / Tuesday, February 8, 1983 / Proposed Rules
years or less. The Agency believes that
this is not the type of regulation revision
that Congress had in mind when it
provided a delay between the
promulgation and the effective date of
revisions to regulations. Therefore, the
Agency plans to make these
amendments effective immediately K
and when they are promulgated in final
form, but requests comments on whether
such action would cause hardship for
the regulated community or otherwise
be inappropriate.
Compliance With Executive Order 12291
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This proposed regulation is
not major because it will not result in an
effect on the economy of $100 million or
more, nor will it result in an increase in
costs or prices to industry. There would
be no adverse impact on the ability of
U.S.-bnsed enterprises to compete with
foreign-based enterprises in domestic or
export markets. Because this
amendment is not a major regulation, no
Regulatory Impact Analysis is being
conducted.
These amendments were submitted to
the Office of Management and Budget
for review as required by Executive
Order 12291. Any comments from OMB
to EPA and any response to those
comments are available for viewing at
the Office of Solid Waste docket, Room
S-26flC, U.S, E.P.A., 401 M St. SW,
Washington, D.C. 20460.
President's Task Force on Regulatory
Relief
The President's Task Force on
Regulatory Relief designated the
Consolidated Permit Regulations (40
CFR Parts 122-124) for review by EPA.
This proposal supports the goals of the
Task force by reducing burden on the
regulated community. This proposal also
fulfills EPA's obligations in the
settlement of industry litigation on the
Consolidated Permit Regulations. In
addition to settling the litigation, the
Agency also plans to:
• Propose other substantive changes
to further streamline the Agency's
permitting process, and
• Deconsolidate the regulations to
make them more easily usable by the
public.
As a result of deconsolidation, there will
bo some reorganization of the
regulations. Thus, this proposed
amendment may be finalized in a.
different format and location than it
appears in the current regulations and
Uie settlement agreement.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., Federal agencies must
prepare a regulatory flexibility analysis
for all proposed rules to assess their
"impact on small entities. No regulatory
flexibility analysis is required, however,
where the head of the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities.
The economic impact of this
regulation would be to reduce the costs
of complying with EPA's hazardous
waste management regulations for
. owners and operators of hazardous
waste management facilities (including
those which are small entities).
Accordingly, I hereby certify, pursuant
to 5 U.S.C. 601(b), that this proposed rule
would not have a significant economic
impact on a substantial number of small
entities.
List of Subjects
40 CFR Part 122
Administrative practice and '
procedure, Air pollution control,
Confidential business information,
Hazardous materials, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
. control, Water supply.
40 CFR Part 123
Confidential business information,
Hazardous materials, Indian lands,
Intergovernmental relations, Penalties,
, Reporting and recordkeepihg
requirements, Waste treatment and
disposal, Water pollution control, Water
supply.
40 CFR Part 264
Hazardous materials, Insurance,
packaging and containers, Reporting
and recordkeeping requirements,
Security measures, Surety bonds, Waste
treatment and disposal.
Dated: January 28,1983.
Anne M. Gorsuch,
Administrator.
It is proposed that Title 40 of the Code
of Federal Regulations be'amended as
follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
1. The authority citation for Part 122
reads as follows:
Authority: Resource Conservation and
Recovery Act, as amended, (RCRA), 42 U.S.C.
6901 etseg.i Safe Drinking Water Act, 42
U.S.C. 300f et seq.; Clean Water Act, 33
U.S.C. 1251 etseq.; Clean Air^Act, 42 U.S.C.
1857etseg. , "
2. Section 122.9 is amended by
revising paragraphs (b) and (e) to read
as follows:
- § 122.9 Duration of permits.
* * * * * -
(b) RCRA. Except as provided in
paragraph (e) of this section and
§ 122.30, RCRA permits shall be,
effective for thfe fixed term of the
designed operating life of the facility (in
the case of an new facility) or the
remainder of the designed operating life
of the facility (in the case of an existing
facility). For land disposal facilities, the
term of RCRA permits shall include the
post-closure care period or compliance
period, whichever is longer, in addition
to the designed operating life of the
facility. The designed operating life of
tRe facility is the period of time,
estimated by the owner or operator and
approved by EPA, for which the facility
is designed to operate, and during which
operation is expected to continue.'The
estimate should reflect consideration of
the construction materials,of the facility,
the volume and type of waste the facility
expects to handle, and the processes the
facility will employ.
* * * * . *
(e) The Regional Administrator may
issue any NPDES, UIC or 404 permit for
a duration that is less than the full
allowable term under this section; for
RCRA permits only, the Regional
Administrator may issue a permit for a
duration that is less than the full
allowable term under this section only
when the permit applicant so requests.
3. Section 1.22.15 is amended in
paragraph (a)(3) by revising the
introductory text and paragraph
(a)(3)(i)(A) and adding paragraph
(a)(7)(ix) to read as follows:
§ 122.15 Modification or revocation and
reissuance of permits.
. (a)* *'* . • •
(3) New Regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of new or amended
standards or regulations or by judicial
decision after the permit was issued.
Permits for RCRA facilities and UIC
Class II or III wells may be modified
during their terms for this cause without'
following the conditions of paragraphs
(a)(3)(i) and (ii) of this section. All other
permits may be modified for this cause
only as follows:
(i) For promulgation of amended
standards or regulations, when:
(A) The permit condition requested to
be modified was based on a
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Federal Register / Vol. 48, No. 27 /, Tuesday, February 8, 1983 / K-oposed Rules
promulgated Part 146 (UIC) regulation,
or a promulgated effluent limitation
guideline or EPA approved or
promulgated water quality standard
(NPDES); and *
* * * * *
(7) For RCRA only, the Director may
modify a permit: .' .
* * * - * *
(ix) When the permit fails to include .
any applicable requirement under RCRA
which is in effect prior to the date of
permit issuance.
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for Part 123
reads as follows:
Authority: Resource Conservation and
Recovery Act, as amended, 42 U.S.G. 6901 el
.seq; Safe Drinking Water Act, 42 U.S.C. 300f
et seq.; Clean Water Act, 33 U.S.G. 1251 et
seq. ... - .. . -
2. Section 123.7 is amended by
revising the note following paragraph (a)
to read as follows:
§123.7 Requirements for permitting.
(a)* * *• . '.-'_'"
Note.—States need not implement
provisions indentical to the above listed
provisions or the provisions listed in
§§ 123,7(b)-(d). Implemented provisions, must,
however, establish requirements at least as
stringent as the corresponding listed
provisions. While States may impose more
stringent requirements, they may not make
one requirement more.lenientias a tradeoff
• for making another requirement more
stringent; for example, by requiring that
public hearings be held prior to issuing any
permit while reducing the amount of advance
notice of such a hearing. However, for
provisions (5] and (10),« tradeoff may be
made between the duration of RCRA permits
and the ability of States to'reopen RCRA
permits during their terms if the combined
regulatory effect of the two provisions is
equivalent to that of Federal program.
State programs may, if they have adequate
legal authority, implement any of the
provisions of Parts 122 and 124. See for '
example, § 122.5(d) (continuation of permits]
and § 124.4 (consolidation of permit
processing). ' ' •
§123.129 [Amended]
3. In § 123.129, paragraph (e) is
removed.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE MANAGEMENT
FACILITIES
1. The authority citation for Part 264
reads as follows:
Authority: Sec. 1006, 2002, and 3004,. of the
Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of
1976, as airiended, 42 U.S.C. 6905,. 6912(a) and
6924. "• '"-''..-"•'. '
2, Section 264.143 is amended by
revising paragraph (a)(3) to read as
follows: , ,
§ 264.143 Financial assurance for closure.
M* * * ... '-' "..";-
(3) Payments into the trust fund must
be made annually by the owner or
operator until the value of the trust fund
equals the current closure cost estimate.
The period over which annual payments
, are required is hereafter referred to as
the "pay-in period." The payments into
the trust fund must be made as follows:
(i) For a new facility, the pay-in period
is the term of the initial RCRA permit, or
the remaining operating life of the
facility as estimated in the closure plan,
or 20 years beginning with the effective
date of the permit, whichever period is
shorter. The first payment must be made
before the initial receipt of hazardous
waste at the facility for treatment,
storage, or disposal. A receipt from the
trustee for this payment must be
submitted by the owner or operator to
the Regional Administrator before this
initial receipt of hazardous waste. The
first payment must be at least equal to
the current closure cost estimate, except
as provided in § 264.143(g), divided by._
the number of years in the pay-in period.
Subsequent payments must be made no '
later than 30 days after each
anniversary date of the first payment.
The amount of each subsequent
payment must be determined by this
formula:
Next payment= ^Tr" .
Where CE is the current closure cost
estimate, CV is the current value of the
trust fund,;and Y is the number of years
remaining in the pay-in period.
(ii) For existing facilities, if an owner
or operator establishes a trust fund as
specified in § 265.143(a) of this chapter,
and the value of that trust fund is less .
than the current.closure cost estimate
when a permit is awarded for the
facility, the amount of the current -
closure cost estimate still to be paid into
the trust fund must be paid over the time
remaining in the pay-in period as
established under § 265.143(a)(3), or the
term of the initial RCRA permit,
whichever period is shorter. Payments
must continue to be made no later than
30 days after each anniversary date.of
the first payment made pursuant to Part
265 of this chapter. The amount of each
payment must be determined by this
formula: • • . . •
Next payment=CE~CY. , . . - .
Y '."•.-.
. where CE is the current closure cost:
estimate, CV is the current value of the
trust fund, and Y is the number of years ~
remaining in the pay-in period.
* * * 'i *• *
,**•* i - "
3. Section 2134.145 is amended by
revising paragraph (a)(3) to read as .
follows: i /• • -. .
§264.145 Financial assurance for post-
closure care, j'
(a)* *_*• jv* '.'.;.- ••• - :; '•'-,.
[3) Payments into the trust fund must
be made annually by the owner or
-operator until the value of the trust fund
equals the current post-closure cost
estimate. The period over which annual
' payments are ^required is hereafter
referred to as the "pay-in period." the
payments into the trust fund must be
, made as jfollows:
(i) For a new facility, the pay-period is
the term of this "initial RCRA permit, or
the remaining operating Jife of the
facility as estimated in the closure plan,
or 20 years beginning with the effective
date of the permit, whichever period is
shorter. The first payment must be made
before the initial receipt of hazardous
waste at the facility for disposal. A :
receipt from the trustee for this payment
must be submitted by the owner or
operator to the Regional Administrator
before this initial receipt of hazardous
waste. The first payment must be at
least equal to the current post-closure
cost estimate, except as provided in
§ 264.145(g), divided by the number of
' years in the pay-in period. Subsequent
payments must be made no later than 30
days after each anniversary date of the
first payment. The amount of each.
subsequent payment must be
determined by this formula:
Next payment =-^-$r- —
.j •'.,...--. . .
•where CE is the current post-closure
cost estimate, CV is the current value of
the trust fund,1 and Y is the number of
years remaining in the pay-in period.
(ii) For existing.facilities, if an owner
or operator establishes a trust fund as
specifiedin § 265.145(a) of this chapter,
and the value of that trust fund is less .
than the current post-closure cost
'estimate when a permit is awarded for
the' facility, the amount of the current
post-closure cost estimate still to be
paid into the trust fund must be paid
over the time remaining in-the pay-in
period as established under
§ 265.145(a)(3J, or the term of the initial
RCRA permit.-whichever period is
shorter. Payments must continue to be
made no later., than 3.0 days after each
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Arista! Register / Vol. 48. NoJT/ Tuesday. February 8, 1983 / Proposed Rules
anniversary date of the first payment
made- pursuant to Part 265 of this
chapter. The amount of each payment
must be determined by this formula:
Next payment=CE"CV
where CE is the current post-closure
cost fislimate, CV is the current value of
the trust fund, and Y is the number of
years remaining in the pay-in period.
|FK Doo 93-KKH Filed Z-7-03; &« ani|
sssa-so-M *•
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United Statos
Environmental Protection
Agency
Official Business
Penalty for Private Use
$300
Washington DC 20460
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