85 060
Tuesday
May 10, 1983
Part IV
Environmental
Protection Agency
Hazardous Waste Management System:
The Hazardous Waste Permit Program;
Proposed Rules
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Federal Register / Vol. 48. No. 91 / Tuesday, May 10, 1983 / Proposed Rules
ENVIRONMENTAL PROTECTION.
AGENCY
40 CFR Parts 124 and 270
ISWH-FRL 2251-6)
Hazardous Waste Management
System: The Hazardous Waste Permit
Program; Procedures for
Declslonmaklng
'AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule and request for
comments. _^_
SUMMARY: The Environmental Protection
Agency is proposing,to amend its
hazardous waste permit regulations
today. These regulations were
promulgated pursuant to Subtitle C of
the Resource Conservation and
Recovery Act (RCRA). and were
included in the Consolidated Permit
Regulations, The Agency is proposing to
allow owners and operators of existing
hazardous waste management facilities
' who submit an incomplete Part A of the
RCRA permit application t» receive a
notice of the deficiency and an
opportunity to explain or cure the
deficiency before the owner or operator
is subject to EPA enforcement for
operation without a permit The Agency
also is proposing to, amend the
regulations to require that if the
Administrator denies a request for a
, panel hearing on an initial permit for an
existing hazardous waste management
facility, he must give his reasons for the
denial.
Today's actions are prompted by a
settlement stipulation concerning these
issues in the lawsuit on the
Consolidated Permit Regulations. These
proposed amendments will not have an
economic impact on the regulated
community, nor will they have any
impact on public health or the
environment.
DATE: EPA will accept comments on
these proposed amendments until
July II. 1983.
ADDRESS: Comments on these
amendments should should be
addressed to the Docket Cle'rk (Docket
3005—Hearings), Office of Solid Waste
(WH-5G3), U.S. Environmental
Protection Agency, Washingtion, D.C.
20460.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline, toll free at (800) 424-9346
or in Washington, D.C. at 382-3000. For
specific information on this proposed
amendment, contact Deborah Wolpe.
Office of Solid Waste (WH-563), U.S.
Environmental Protection Agency,
Washington. D.C. 20480 (202) 382-4754.
SUPPLEMENTARY INFORMATION:
I. Background
On Februaryj26,1980, and May 19,
1980. EPA promulgated regulations
implementing Subtitle C of the Solid
Waste Disposal Act. as amended by the
Resource Conservation and Recovery
Act of 1976, as Amended (RCRA), 42
U.S.C. 6901 et seq. These regulations
establish the first phase of a
comprehensive program for the handling
and management of hazardous waste (40
CFR Parts 260-265, 45 FR 33066-33289).
In addition, on May 19,1980, EPA
promulgated the Consolidated Permit
Regulations, governing five permit
programs.' On January , 1983, the
Consolidated Permit Regulations were
deconsolidated. Each permit program
now appears in a separate Part of the
Code of Federal Regulations. The
changes proposed today concern only
the RCRA portion of the Consolidated
Permit Regulations, now codified at 40
CFR Part 270.
The Subtitle C RCRA regulations,
among other things, require hazardous
waste management (HWM) facilities .
which treat, store, or dispose of
hazardous waste to obtain a permit from
EPA or an authorized state 2 and require
that hazardous] wastes be designated
for, delivered tp, and treated, stored, or
disposed of only in these permitted
facilities.
, Recognizing the EPA would not be
able to issue permits to all HWM
facilities before the Subtitle C program
became effective. Section 3005(e) of
RCRA provided that a facility that meets
certain requirements will be treated as
having been issued a permit until such
time as final administrative action is
taken on its petmit application. This
statutory authorization to operate a
HWM facility between the effective date
of the Subtitle C program (November 19,
'The five permit programs which were covered
by the Consolidated Permit Regulation are: the
hazardous waste management (HWM) program
under Subtitle C of RCRA. the Underground
Injection Control (VIC) program under Part C of the
Safe Drinking Water Act, the National Pollutant
Discharge Elimination System (NPDES) program
under section 402 of the Clean Water Act, the
"Dredge and Fill" program under section 404 of the
Clean Water Act and the Prevention of Significant
Deterioration (PSD) program under regulations
implementing section 165 of the Clean Air Act [45
FR 33290-33588 (May 19.1980). previously codified
at 40 CFR'Parts 122-124).
'Pursuant to Section 3006 of RCRA, a state may
obtain authorization to run the hazardous waste
program in lieu of the Federal program. For a
discussion of state] authorization of the RCRA
program, see the preamble to 40 CFR Part 123 (now
Part 271) in the May 19,1980 Federal Register, 45 FR
33388. and the preamble discussion accompanying
the January 26, Ifl^l amendments to those
regulations, 46 FR 8298; and subsequent
amendments on July 28,1982.47 FR 32373.
1980) and the issuance or denial of a
final permit, is known as "interim
status."
Interim status is conferred on any
person who:
(1) Owns and operates a facility
required to have a permit, which is in
existence on November 19,1980;
(2) has complied with the
requirements of Section 3010(a) of
RCRA (notification of hazardous waste
activity); and
(3) has made an application for a
permit under Section 3005 of RCRA.
EPA has defined the term "application
for a permit" under section 3005(e) to
mean only Part A of the permit
application [See 40 CFR 270.70]. The
application for a RCRA hazardous
waste management permit is in two
parts—A and B. Part A includes some
very basic information about a facility
such as its location, owner, the wastes it
handles and the processes it employs
[see 40 CFR 270.13]. Part B consists of
more technical information reflecting the
facility standards in 40 CFR Part 264. To
qualify for interm status, however, only
Part A of the permit application must be
submitted.
This preamble and today's proposed
amendments relate to the procedural
aspects of failure to qualify for interim
status, arid denial of a permit.
II. Failure to Qualify for Interim Status
An owner or operator of a HWM
facility may fail to qualify for interim
status for any of the reasons listed in the
statute as prerequisites to interim status:
(a) The facility was not in existence on
or before November 19,1980; (b) the
owner or operator failed-to comply with
Section 3010 of RCRA (i.e., failed to
notify, if required); or (c) the owner or
operator failed to submit Part A of his
permit application on time.3 In addition,
an owner or operator may fail to qualify
for interim status if he fails to submit a
complete Part A permit application.
Section 270.70 of the regulations
currently states that if, upon
examination or reexammation of a Part
A application, EPA determines that it
fails to meet the standards of the
regulations, EPA may notify the owner
or operator that the application is
deficient. Section 270.70 provides that
the result of such a determination is that
the owner or operator is not entitled to
* Failure to file a Part A on time may not always
result in a failure to qualify for interim status. The
Agency may, by compliance order issued under
Section 3008 of RCRA. extend the date by which the
owner or operator of an existing HWM facility may
submit Part A of its permit application, as there is
no statutory deadline for submitting the permit
application. [See 40 CPR 270.10(e)(3)).
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Federal Register / Vol. 48, No. 91 / Tuesday. MaylO.M83./Jfropoaed Rules
interim status, and is subject to EPA
enforcement for operating without a
permit.
Petitioners in the litigation on the
Consolidated Permit Regulations, NRDC
v. EPA, No. 80-1607, and consolidated
cases (D.C. Cir., filed June Z, 1980),»
argued that a determination that an
'owner or operator never acquired
interim status cannot be made without
some procedural safeguards. They
argued that notice and opportunity for
comment are necessary before the
Agency can require a facility to cease
operations because it failed to qualify
for interim status.
The Agency believes that, as a
practical matter, there are procedural
safeguards already in place. It is
standard operating procedure to allow a
facility to correct, explain, or resubmit
Part A of the permit application if it is
found deficient, although such a
procedure is not included in the
regulations. To assuage petitioners'
concerns, however, the Agency is today
proposing to amend § 270.70 to expressly
provide that before EPA determines that
Part A of a permit application is
deficient, it will notify the owner or
operator in writing of the apparent
deficiency. The notice will specify the
grounds for EPA's belief that the
application is deficient, and will give the
owner or operator 30 days from the date
of receipt to respond to the notification
and to explain or cure the deficiency. If,
after such notice and opportunity for
response, EPA still finds that the
application is deficient, it then can take
appropriate enforcement action.
Some petitioners asserted that, in
addition to notice and opportunity for
comment on EPA's decision that a Part
A application is deficient, the permit
applicant should be granted a hearing
on request. In EPA's view, a hearing is
unnecessary. The statute does not
require a hearing and issues in
controversy should be simple and
straight-forward enough to be resolved
without resort to a hearing.
This proposal would put in regulatory
form what is already standard Agency
procedure. EPA believes that it is
reasonable to give permit applicants an
opportunity to cure deficient
applications. Today's proposal would
guarantee applicants that opportunity.
III. Opportunity for a Hearing Prior to
Denial of an Initial Permit
As stated earlier, Section 3Q05(e) of
RCRA states that any person who owns
or operates an existing facility meeting
the criteria listed in that section, shall
be treated as having been issued a
RCRA permit until such time as final
administrative disposition of the permit
application is made. Final
administrative disposition occurs when
EPA either issues or denies the permit.
The petitioners in the NRDC lawsuit
raised several issues concerning the
issuance or denial of an initial RCRA
permit. They argued that due process
requires the opportunity for a hearing
before a permit is denied for a facility
operating under interim status. In
addition, they argued that the imposition
of extensive, expensive, conditions in a
permit might be tantamount to a denial
of a permit, therefore a hearing should
be available in such situations as well.
The petitioners admitted that a full
evidentiary hearing would not be
necessary in every case, but some type
of hearing ought to be available.5
EPA's position with respect to formal
adjudicatory hearings was stated in the
preamble to the May 19. I960
regulations. It is EPA's position that
such hearings are not required for the
issuance of RCRA permits. The Agency
stated that the requirements of due
process are flexible, and that other
procedures may be used which can be
adapted to the nature of the problem
being addressed (See 45 FR 33409-
33411).
EPA believes that the current
regulations meet the applicable due
process tests. The regulations provide
for notice of what the Agency proposes
to do, an opportunity to challenge that
proposal both through written comments
and an informal public hearing, and a
response to comments and a decision
based on the administrative record.
• For further discussion of the NRDCv. EPA case
and the settlement agreement filed on the RCRA-
related issues, see the preamble to the proposed
amendments on owner signature and certification,
47 FR 32038 (July 23,1982).
8 There are three types of hearings available
under Part 124. These are: (1) Public hearings.
Public, or informal, hearing must be held whenever
the Director receives written notice of opposition to
a RCRA draft permit and a request for a hearing
within 45 days of public notice of the draft permit
[See 40 CFR 124.121]; (2) Evidentiary hearings.
Evidentiary hearings under Subpart E of Part 124
are formal adversarial hearings conducted by a
judicial officer pursuant to forma! rules of practice.
Evidentiary hearings are available under Section
3008 of RCRA in connection with the termination of
a RCRA permit. They are not available upon the
issuance or denial of a RCRA permit. See 40 CFR
124.12 and 124.71(a) and the preamble discussion at
45 FR 33409-11; and (3) Panel hearings. Panel
hearings under Subpart F of Part 124 are
nonadversarial hearings before a panel consisting of
three or more EPA employees having special
expertise or responsibility in areas related to the
issues to be decided. A panel hearing is available
whenever the Regional Administrator determines
that as a matter of discretion, it would be an
appropriate way to process a draft permit.
Evidentiary hearings and Pane) hearings are both
considered formal adjudicatory hearings, as they
conform to the formal hearing requirements of the
Administrative Procedure Act.
Petitioners believed that the May 19,
1980 regulations only gave a right to this
public hearing in situation were EPA
proposed to issue a permit, and not
when the Agency proposed to deny a
permit. As promulgated OH May 19,1980,
section 124.12(a) stated that the Director
shall hold a public hearing whenever
there is a " * * * significant degree of
public interest in a draft permit." EPA's
intention when promulgating this
regulation was to provide a public
hearing in situations where EPA issues
either a tentative decision to issue or to
deny a permit. In fact, a notice of intent
to deny a permit is considered a draft
permit.8 This was clarified hi
amendments promulgated on July 15,
1981 (46 FR 36704) in response to an
amendment to Section 7006(b) of RCRA.
As stated in the preamble to those
amendments, the Agency intends that
the requirement to hold an informal
hearing (when one is requested) apply to
cases where the Agency has tentatively
decided to deny a permit as well as
when the Agency has tentatively
decided to issue a permit. All that RCRA
and due process require is the
opportunity for an informal hearing.
That opportunity exists both for the
issuance and denial of a RCRA permit.
The petitioners also were concerned
that in some instances, there would be
complicated factual issues that could be
addressed better through a formal,
rather than an informal, hearing. As the
regulations are currently written, the
Regional Administrator always has the
discretion to hold a formal panel
hearing. However, the petitioners
objected to a lack of assurance in the
regulations that they would receive a
written response to a request for such a
hearing, should the Regional
Administrator deny the request. They
were concerned that there would be
situations were EPA and the permit
applicant would disagree about changes
necessary to bring the facility into
compliance with the regulations. In
situations where the Regional
Administrator proposes to issue a
permit, but the applicant disagrees as to
major permit conditions, the petitioners
want the opportunity for a panel
hearing.
As a matter of policy, EPA has
determined that permit applicants
should have an opportunity for a panel
hearing when there is a tentative
decision to deny the initial permit for an
8 If the Director tentatively decides to deny the
permit, he issues a "notice of intent to deny" the
permit A notice of intent to deny is a type of draft
permit, which is processed under the same
procedures as any draft permit [See 40 CFR
124.6{b)].
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Federal Register / Vol. 48, No. 91 / Tuesday, May 10, 1983 / Proposed Rules
existing facility, and where the .
applicant and EPA disagree on major
conditions in the initial draft permit for
an existing facility. Today's proposed
amendment to § 124.12(e}(2) provides
assurance that such a hearing will not
be arbitrarily denied.
Under today's proposal, the permit
applicant may request a panel hearing
pursuant to §124.114. Such a request
must be made before the end of the 45-
day public comment period. The
applicant must explain in his request
why he believes that the issues for
which he requests a hearing are genuine
issues of material fact, and are issues
which are determinative with respect to
one or more contested permit
conditions Jf the Regional
Administrator denies the request for a
panel hearing, he must send a brief
written statement to the applicant
explaining his reasons for concluding
that no determinative issues have been
presented for resolution in a panel
hearing.
This proposal would give the
petitioners the assurance they want that
a panel hearing will not be
unreasonably denied.
It should be noted that in
circumstances where the1 Administrator
remands an appeal to the Regional
Administrator, the Administrator may
direct the Regional Administrator to
hold a non-adversary panel hearing, if
none has been held before.
VI. Economic Impact
These proposed amendments\ill not
have any economic impact on the
regulated community, as stated in the
background information, it is standard
operating procedure for the Agency to
allow an applicant the opportunity to
correct, explain or cure an incomplete
Part A of the RCRA permit. This
proposal, therefore does not change
anything but the regulatory language.
The second regulatory change
requires the Regional Administrator to
provide a written reason for denying an
applicant's request for a formal hearing.
This proposed change increases the
paperwork of the Regional
Administrator, but does not affect the
regulated community.
VII. Request for Comments
The Agency invites comments on all
aspects of these proposed regulations.
EPA anticipates that finalization of
today's proposal will provide part of the
basis for the settlement of the NRDCv.
EPA litigation affecting the RCRA
portion of the Consolidated Permit
Regulations. However. EPA will
carefully consider all public comments
on this proposal before making its final
decision.
VIII. Effective Date
Section 3QlO(b) of RCRA provides that
EPA's hazardous waste regulations, and
revisions thereto take effect six months
after their promulgation. In addition,
Section 553(d) of the Administrative
Procedure ^.ct requires publication of a
substantive rule not less than 30 days
before its_ effective date. The purpose of
these requirements is to allow the
regulated community sufficient lead
time to prepare to comply with major
new regulatory requirements. For the
amendments proposed today, however,
the Agency believes that an effective
date 30 days or six months after
promulgation would cause unnecessary
disruption in the implementation of the
regulations [and might deny the public
certain safeguards in the permitting
process. These amendments, if
promulgated in final form, would not
impose substatlve requirements on the
regulated community, but rather would
guarantee certain procedural
safeguards. The Agency believes that
this is not the type of regulation that
Congress had in mind when.it provided
a delay between the promulgation and
the effective date of revisions to
regulations. Consequently, EPA believes
that it will have good cause to make
these amendments effective
' immediately if and when they are
promulgated in final form, but requests
comments on whether such action
would .cause hardship for the regulated
community or would otherwise be
inappropriate.
IX. Executive Order 12291
Under Executive Order 12291 (46 FR
12193. February 19,1981), EPA must
judge whether a regulation is "Major"
and therefore subject to the requirement
of a Regulatory Impact Analysis. A
major rule is defined as a regulation
which is likbly to result in:
—An annual effect on the economy of
$100 million or more;
—A major increase in costs or prices for
consumers, individual industries,
Federal, State or local government
agencies or geographic regions; or
—Significant adverse effects on
competition, employment, investment,
productivity, innovation or on the
ability of [United States-based
enterprises to compete with foreign-
based enterprises in domestic or
export markets.
This regulation is not major because it
will not result in an effect on the
economy of $100 million or more. It
merely provides some procedural
safeguards upon the failure to qualify for
interim status and the issuance or denial
of a RCRA permit. There will be no
adverse impact on the ability of U.S.-
based enterprises to compete with
foreign-based enterprises in domestic or
export markets. This amendment is not
a major regulation, therefore no
Regulatory Impact Analysis is being
prepared.
This amendment was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
X. Paperwork Reduction Act .
In accordance with the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et
seq., the reporting or recordkeeping
provisions that .are included in this
proposed rule have been submitted to
the Office of Management and Budget
(OMB) for approval under Section
3504(h) of the Act. Any final rule will
include an explanation of how the
reporting or recordkeeping provisions
contained therein respond to any
comments by OMB or the public. .
XL 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 the burden of
the RCRA portion of the Consolidated
Permit Regulations (now
deconsolidated) on the regulated
community. This proposal also fulfills
one of EPA's obligations in the
settlement of industry litigation on the
RCRA portion of the Consolidated
Permit Regulations. In addition to
issuing proposals aimed at settling the
litigation, the Agency has
deconsolidated the regulations to make
them more easily usable by the public.
As a result of deconsolidation, there
was some reorganization of the
regulations. Thus, this proposed
amendment is in somewhat different
format and location than it appeared in
the settlement agreement.
XII. Regulator;/ Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., whenever an
agency is required to publish a general
notice of proposed rulemaking for any
rule, it must prepare and make available |
for public comment a regulatory
flexibility analysis which describes the
impact of the proposed rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
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Federal Register / Vol. 48, No, 91 / Tuesday. May 10.
211M
analysis is required, however, if the
head of the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
This amendment imposes no
substantive requirements on the
regulated community. Accordingly, I •
hereby certify that this proposed
regulation, if issued in Final form, will
not have a significant economic impact
on a substantial number of small
entities.
Dated: April 26,1983.
Lea L. Verstandig,
Acting Administrator.
List of Subjects
40 CFR Part 270
Administrative practice and
procedure, Air pollution control,
Hazardous materials, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control, Water supply, Confidential
business information.
40 CFR Part 124
Administrative practice and
procedure, Air pollution control,
Hazardous materials, Waste treatment
and disposal, Waste pollution control.
Water supply, Indians—lands.
PART 270—[AMENDED]
It is proposed that 40 CFR Parts 270
and 124 be amended as follows:
1. The authority citation for Part 270
reads as follows:
Authority: Sections 1006, 2002(a), 3005, 3007
and 7004 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (RCRA)'
(42 U.S.C. 6901, 6912(a), 6925, 6927 and 6974).
2. In Part 270, it is proposed to amend
§ 270.70 by revising paragraph (b) to
read as follows:
§ 270.70 Quaitfy.'iig tor Interim status.
* * w * *
(b) Failure to qualify for interim
status. If EPA has reason to believe
upon examination of a Part A
application that it fails to meet the
requirements of § 270.13, it shall notify
the owner or operator in writing of the
apparent deficiency. Such notice shall
specify the grounds for EPA's belief that
the application is deficient. The owner
or operator shall have 30 days from
receipt to respond to such a notification
and to explain or cure the alleged
deficiency in his Part A application. If,
after such notification and opportunity
for response, EPA determines that the
application is deficient it may take
appropriate enforcement action.
PART 124—[AMENDED]
3. The authority citation for Part 124
reads as follows:
Authority: The Resource Conservation and
Recovery Act, 42 U.S.C. 6901 etseq.; the Safe
Drinking Water Act, 42 U.S.C. 300(f) et seq.:
the Clean Water Act, 33 U.S.C. 1251 et seq.:
the Clean Air Act. 42 U.S.C. 1857 et seq.
4. In Part 124, it is proposed to amend
§ 124.12 by revising paragraph (e) to
read as follows:
§ 124.12 Public hearings.
*fl * * * * .
(e)(l) At his or her discretion, the
Regional Administrator may specify that
RCRA or UIC permits be processed
under the procedures in Subpart F.
(2) For initial RCRA permits for
existing HWM facilities, the Regional
Administrator shall have the discretion
to provide a hearing under the -
procedures in Subpart F. The permit
applicant may request such a hearing
pursuant to § 124.114 on one or more
issues, if the applicant explains in his
request why he or she believes those
issues: (1) Are genuine issues of material
fact and; (2) are determinative with
respect to one or more contested permit
conditions, identified as such in the
applicant's request, that would require
extensive changes to the facility
("contested major permit conditions"). If
the Regional Administrator decides to
deny the request, he or she shall send to
the applicant a brief written statement
of his or her reasons for concluding that
no such determinative issues have been
presented for resolution in such a
hearing.
1FR Doc. 83-13492 Filed 5-9-S3; 6:45 am]
BILLING CODE 6560-50-M
40 CFR Parts 264 and 270
[SW FRL 2251-7]
Hazardous Waste Management
System: Standards Applicable to
Owners and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; and the Hazardous
Waste Permit Program
AGENCY: Environmental Protection
Agency.
ACTSON: Proposed rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today proposing to
amend the hazardous waste permit
regulations. The regulations require.
among other things, that a permittee
under the Resource Conservation and
Recovery Act maintain records of all
ground-water monitoring data for the
active life of the hazardous waste
mangement facility. Today's proposal
would change this requirement to allow
the permittee to retain records of
ground-water monitoring data for ten
consecutive years only. This proposal
eliminates a burdensom recordkeeping •
requirement withouf compromising
protection of human health and the
environment.
This amendent, if promulgated in the
same form as proposed here, would
result in an estimated savings to the
regulated community of approximately
$45,000 a year by reducing the burden of
retaining ground-water monitoring
records.
DATE: EPA will accept comments on this
proposal until July 11,1983.
ADDRESS: Comments should be
addressed to the Docket Clerk, Office of
Solid Waste (WH-562), U.S.
Environmental Protection Agency,
Washington, D.C. 20460.
Communications should identify the
docket as "Docket 3004—Ground-water
Monitoring Data."
FOR FURTHER INFORMATION CONTACT:
The RCRA Hotline toll-free at (800) 424-
9346 or in Washington, D.C. at 382-3000;
or Deborah Wolpe, Office of Solid <
Waste (WH-S63), U.S. Environmental
Protection Agency, Washington, D,C.
20460(202)382-4754. ,,-... . ( . r,
SUPPLEMENTARY INFORMATION: On "'
February 26,1980, and Slay 19,1980,
EPA promulgated regulations
implementing Subtitle C of the Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976, as amended (RCRA), 42
U.S.C. 6901 et seq. These regulations
established the first phase of a
comprehensive program for the handling
and management of hazardous waste (40
CFR Parts 260-265, 45 FR 33066-33289).
In addition, on May 19,1980, EPA
promulgated the Consolidated Permit
Regulations governing five permit
programs.1 On January , 1983, the
Consolidated Permit Regulations were
deconsolidated. Each of the five permit
programs now appears hi a separate
Part of the Code of Federal Regulations.
The changes proposed today affect only
'The five permit programs which were covered
by the Consolidated Permit Regulations are: The
Hazardous Waste Management (HWM) program
under Subtitle C of RCRA, the Underground
Injection Control (UIC) program under Part C of the
Safe Drinking Water Act, the National Pollutant
Discharge Elimination System (NPDES) program
under Section 402 of the Clean Water Act, the State
"Dredge or fill" program under Section 404 of the
Clean Water Act, and the Prevention of Significant
Deterioration (PSD) program under regulations
implementing Section 165 of the Clean Air Act
[Previously codified in 40 CFR Parts 12Z-124,45 FR
33290-33588].
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Federal Register / Vol. 48, No. 91 / Tuesday, May 10. 1983 / Proposed Rules
the hazardous waste permit program .
under Subtitle C of RCRA, now codified
at 40 CFR Part 270.
Section 270.30 lists conditions which
are applicable to all RCRA permits.
Among them is a requirement that the
permittee retain records of all
monitoring information for a period of at
least three years from the date of the
sample, measurement, report or
application. See 40 CFR 270,30{j)[2)
[originally 5122.7(j)(2)]. Section
270.30(j)(2) additionally requires,
however, that the permittee maintain
records "from all ground-water
monitoring wells and associated ground-
water surface elevations, for the active
life of the facility, and for disposal
facilities for the post-closure care period
as well."
In addition, 40 CFR 264.73 states
lhat the owner or operator of a
permitted facility must keep a written
operating record at the facility
containing certain information, including
ground-water monitoring data, which
must be included in the operating record
until closure of the facility. (See 40 CFR
264.73(b)).
Section 270.800)(2) has been
challenged as unreasonable in a lawsuit
on the Consolidated Permit Regulations,
NRDC v. EPA, No. 80-1607 and
consolidated cases, (B.C. Cir., filed June
2,1980}.* Petitioners in the suit claimed
that this requirement of maintaining
records for the active life of the facility
is unnecessary, as the permit-issuing
authority can readily obtain the
necessary information from the RCRA
annual reports required under 40 CFR
265.7S(f) and 265.94.'
Athough EPA does not agree that it is
duplicative to require the facility owner
or operator to maintain such data for the
lifetime of the facility, the Agency
believes that this recordkeeping
requirement is more burdensome than it
need be. The Agency is therefore
proposing to amend § 270.30(j)(2) to
require the permittee to retain records of
all ground-water monitoring activities
for ten consecutive years only, and to
amend § 264.73 to require that the
permittee maintain the ground-water
* For further discussion of the NRDC v. EPA
Inwsuit and the settlement agreement filed on the
RCRA-rcUled Issues In the case, see the preamble
(o the proposed amendments to II 122.4 and 122.7
concerning owner signature and certification, (now
SS i-a.7 «nd 270.11), 47 FR 32038 (July 23.1982).
1 This was the litigants' actual argument. Their
assumption was that Part 264 would contain
requirements very similar to || 205.75(0 and 265.94.
In fact, however, the Part 265 requirements do not
apply to permitted facilities. There currently is no
such requirement that ground-water monitoring data
be reported In the annual report for permitted
facilities (Part 284). Therefore, the argument that
maintaining these records at the permitted facility is
dnpllcallve has no basis.
monitoring data in the facility's written
operating record also for ten years. The
Agency believes that ten years is a
reasonable period of time to require the
facility owner or operator to maintain
records. In addition to this ten year
record of mpnitoring data, ground-water
quality background values will be
specified in! the permit itself. The last'
ten years of ground-water monitoring
data, in addition to the background
values is sufficient information for the
facility owner or operator and EPA to
make a realistic assessment of changes
in ground-vVater quality.
It should be noted that on a case by
case basis, EPA may always require a
facility to retain the ground-water
monitoring records for more than ten
• years. Section 264.74 states that the
retention period for all records under
Part 264 is extended automatically
during the course of any unresolved
enforcement action regarding the facility
or as requested by the Administrator for
other reasons. Therefore, the effect of
this proposal would be to eliminate a
burdensome recordkeeping requirement
without compromising EPA's access to
information, or the protection of human
health and the environment.
IV. Request for Comments
The Agency invites comments on all
aspects of these proposed regulations.
EPA anticipates that finalization of
today's proposal will provide part of the
basis for settlement of the NRDC v. EPA
litigation affecting the RCRA portion of
the Consolidated Permit Regulations.
However, EPA will carefully consider all
public comments on this proposal before
making its final decision. EPA is
specifically requesting comments on
whether reducing the recordkeeping
requirement f°r groundwater monitoring
data-to ten years is sufficient to meet the
objectives of Subpart F, and whether it
is clear that this proposal requires the
owner or operator to retain the data
from the last ten consecutive years, and
not any random ten yeacs.
V. Economic Impact
The change proposed today will only
affect facilities that require ground
water monitoring, i.e. landfills, surface
impoundments, land treatment units and
some waste piles.
EPA estimates that this proposal will
reduce compliance costs to the regulated
community by approximately $45,000 a
year. This represents an annual cost
savings of approximately $30 per
facility.
VI. Executive Order 12291
Under Executive Order 12291, (46 FR
12193, February 19,1981), EPA must
judge whether a regulation is "Major"
and therefore subject to the requirement
of a Regulatory Impact Analysis. A
major rule is defined as a regulation
which is likely to result in:
—An annual effect on the economy of
$100 million or more;
—A major increase in costs or prices
for consumers, individual industries,
Federal, State or local government
agencies or geographic regions; or
—Significant adverse effects on
competition, employment, investment,
productivity, innovation or on the ability
of United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
This regulation is not major because it
will not result in an effect on the
economy of $100 million or more
annually. Although it will effect the
economy, the effect will not be the result
of an increase in costs or prices to
industry in terms of compliance with the
regulations. Rather, the effect is to
reduce the cost of compliance slightly.
There .will be no adverse impact on the
ability of the U.S.-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
Therefore, this amendment is not a
major regulation, and no regulatory
impact analysis is being prepared.
This amendment was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291. Any comments from OMB to EPA
and any EPA response to those
comments are available for public
inspection at the Office of Solid Waste
Docket, Room S-269, U.S. EPA, 401M
Street, SW, Washington, D.C., 20460.
VII. Paperwork Reduction Act
The information reporting and
recordkeeping provisions in this rule
have been submitted for approval to the
Office of Management and Budget
(OMB) under Section 3504(b) of the
Paperwork Reduction Act of 1980,44 .
U.S.C. 3501 et seq, Any final rule will
explain how its reporting or
recordkeeping provisions respond to any
OMB or public comments.
VIII. 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 jof the
Task Force by reducing the burden on
the regulated community. This proposal
also fulfills one of EPA's obligations in
the settlement of the RCRA portion of
industry litigation on the Consolidated
Permit Regulations. In addition to
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Federal Register / Vol. 48, No. 91 / Tuesday, May 10, 1983 / Proposed Rules
21103
issuing proposals aimed at settling the
litigation, the Agency has
deconsolidated the regulations to make
them more easily usable by the public.
As a result of deconsolidation, there
was some reorganization of the
regulations. Thus, this proposed
amendment is in somewhat different
format and location than it appeared in
the settlement agreement.
IX. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., whenever an
agency is required to publish a general
notice of proposed rulemaking, it must
prepare and make available for public
comment a regulatory flexibility
analysis which describes the impact of
the proposed rule on small entities (i.e.,
small businesses, small organizations,
and small governmental jurisdictions).
No regulatory flexibility analysis is
required, however, if the head of the
agency certifies that the rule will not
have a significant economic impact on a
substantial number of small entities.
This amendment will not have a
significant economic impact on a
substantial number of small entities
because it imposes no new substantive
requirements. It will result in a slight
reduction of regulatory requirements.
Accordingly, I hereby certify that this
proposed regulation, if issued in final
form, will not have a significant
economic impact on a substantial
number of small entities.
Dated: April 28,1983,
iee. L, Verstandig,
Acting Administrator.
List of Subjects .
40 CFR Part 264
Hazardous materials, Packaging and
containers, Recordkeeping and reporting
requirements. Security measures, Surety
bonds, Waste treatment and disposal.
40 CFR Part 270
Administrative practice and
procedure, Hazardous material, Air
pollution control, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control, Water supply, Confidential
business information.
PART 270—[AMENDED]
It is proposed that Title 40, Part 270 of
the Code of Federal Regulations be
amended as follows:
1. The authority citation for Part 270
reads as follows:
Authority: Sections 1006, 2002(a), 3005, 3007
and 7004 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
§§ 6905, 6912(a), 6925, 6927 and 6974].
2. It is proposed that;40:C'FR Part 270
be amended by revising paragraph (j)(2)
of § 270,30 to read as follows:
§ 270.30 Conditions applicable to all
permits.
*****
(j) *' * *
(2) The permittee shall retain records
of all monitoring information, including
all calibration and maintenance records
and all original strip chart recordings for
continuous monitoring instrumentation,
copies of all reports required by this
' permit, and records of all data used to
complete the application for this permit,
for a period of at least 3 years from the
date of the sample, measurement, report
or application. The permittee shall
maintain records of all ground-water
monitoring data and associated
evaluations for ten years. Whese time
periods may be extended by request of
the Director at any time.
PART 264—[AMENDED]
3. The authority citation for Part 264
reads as follows:
Authority: Sections 1006, 2002{a), 3001
through 3007, 3010 and 7004 of the Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. 6905, 69l2(a),
6921 through 6927, 6930 and 6974).
4. It is proposed that 40 CFR Part 264
be amended by revising paragraph (b} of
§ 264.73 to read as follows:
§ 264.73 Operating record:
* * *" * *
(b) The following information, other
than the Subpart F ground-water
monitoring data required in paragraph
(b)(6) of this section, must be recorded,
as it becomes available, and maintained
in the operating record until closure of
the facility. Data associated with
Subpart F ground-water monitoring must
be recorded, as it becomes available,
and maintained in the operating record
for ten years.
*****
(PR Doc. 63-12490 Filed 5-9-83; 8:45 am)
BILLING CODE 6560-50-M
40 CFR Part 270
[SW H-FRt 2251-8]
Hazardous Waste Management
System; the Hazardous Waste Permit
Program
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today proposing to
amend its hazardous waste permit
regulations to allow some, hazardous
waste permits to be automatically
transferred from the original permitted
owner to-the new owner of a hazardous
waste treatment, storage, or disposal
facility if the original owner gives 90
days advance notice of the transfer. This
proposal would only allow such
transfers to occur automatically if the
new owner makes no changes in the
operation of the facility, and meets other
prerequisites specified in these proposed
regulations.
Because these amendments are
proposed, they will have no immediate
economic impact. If these amendments
are promulgated in the same form as
proposed today, the Agency expects that
they will result in a minimal savings to
the regulated community ..The savings
would be realized by reducing the time
and procedural requirements involved in
transferring a permit to a'new owner or
operator. There would be no impact on
the environment as this proposal would
result in a reduction of paperwork, but
no reduction of substantive
requirements.
DATE: The Agency will accept comments
on these proposed amendments until
July 11.1983.
ADDRESS: Comments on these
amendments should be addressed to the
Docket Clerk (Docket 3005—Transfers of
Permits), Office of Solid Waste (WH-
562), U.S. Environmental Protection
Agency, Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT.
The RCRA hotline toll-free at (800) 424-
9346 in Washington, D.C. at (202) 382-
3000; or Deborah Wolpe, Office of Solid
Waste (WH-563), U.S. Environmental
Protection Agency, Washington, D.C.
20460 (202) 382-4754.
SUPPLEMENTARY IMPORTATION:
I. Introduction
On February 26,1980 and May 19,
1980, EPA promulgated regulations
implementing Subtitle C of the Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976, as amended (RCRA), 42
U.S.C. 6901 et seq. These regulations
established the first phase of a
comprehensive regulatory program for
the handling and management of
hazardous waste (40 CFR Parts 260=-265,
45 FR 3306&r33289). In addition, on May
19,1980, EPA promulgated the
Consolidated Permit Regulations
governing five permit programs.1 (40
1 The five permit, programs which were governed
by the Consolidated Permit Regulations are: the
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21104
Federal Register / Vol. 48.JO/91
CFR Parts 122-124,45 FR 33290-33588).
Subsequently, on January ,-1983, the
Consolidated Permit Regulations were
deconsolidated. Each of the five permit
programs now appears in a separate
Part of the Code of Federal Regulations.
The changes proposed today concern
only one of these permit programs—the
hazardous waste permit program under
Subtitle C of RCRA, now located at 40
CFR Part 270.
The Subtitle C regulations require,
among other things, that facilities which
treat, store, or dispose of hazardous
waste obtain a permit from EPA or an
authorized state,* and require that
hazardous wastes be designated for,
delivered to, and treated, stored, or
disposed of only in these permitted
facilities. A RCRA permit is obtained by
the owner, and, if the facility is owned
by one person and operated by another,
by the operator of a hazardous waste
management (HWM) facility. See 40
CFR 270.7(b).
The privileges associated with a
RCRA permit attach only to the person ,
authorized to conduct the permitted
activity and are not inherently
assignable. As a practical matter,
however, the Agency allows changes in
ownership or operational control of
some facilities to occur without
requiring the issuance of an entirely new
permit
II. Current Regulations on Transferring
Permits
Permits are not transferable to any
person except after notice to the .
Director.8 When the Director receives
notice of a proposed change in
ownership or operational control, he
decides whether the change should
Involve: (1) A revocation and reissuance
of the permit; (2) a "major" modification
to the existing permit; or (3) a minor
hamrdoui waste management (HWM) program
under Subtitle C or RCRA; the Underground
Injection Control (UIC) program under Fart C of the
Safe Drinking Water Act: the National Pollutant
Diichorgo Elimination System (NPDES) program
under Section 402 of tho Clean Water Act; the State
"Dredge or Fill" program under Section 404 of the
Clean Water Act; and the Prevention of Significant
Deterioration (PSD] program under regulations
Implementing Section IBS of the Clear Air Apt.
1 Section 3009 of RCRA provides that the
Adminlitrator of EPA shall authorize state
hazardous waste management programs to operate
In their respective Jurisdictions In lieu of the Federal
program. Such programs must meet minimum EPA
guidelines. See the preamble to 40 CFR Part 123
(now Part 271) In the May 19,1980 Federal Register,
45 FR 33389: the preamble discussion accompanying
iho January 28,1931 amendments to those
regulations, 40 FR 8298; and subsequent
amendments on July 28,1B82.47 FR 32373.
*Tho term "Director" as used in the hazardous
waste permit regulations, is defined to mean the
EPA Regional Administrator or the State Director of
an authorized state program, es the circumstances
require. Sea 40 CFR 270.1.
modification to the existing permit.4 The
type and extent of the changes to the
permit necessitated by the transfer of
control determine whether and how the
permit will be transferred. Each of these
approaches entails different procedures
and consequences.5
A. Transfer by Revocation and
Reissuance
The Director may require revocation
and reissuance of any permit that is
being transferred. As a practical matter,
such procedure^ probably would be
invoked only when the new owner or
operator proposes significant changes to
the facility such as changes in the
processes used and the wastes handled.
The revocation and reissuance of a
permit entails essentially the same
procedures as-issuance of a permit., A
new permit application must be
submitted, and all applicable procedures
in 40 CFR Part 124 must be followed, i.e.,
a draft permit must be prepared, and
public notice arid an opportunity for
public comment and hearing on the draft
permit must be given. The entire permit
is reopened when a permit is being
revoked and reissued.
This method pf transferring permits is
therefore time-consuming. For this
reason it generally will be used only
when the new owner or operator will
change the operation of the entire
facility significantly.
B. Transfer by "Major" Modification of
the Permit
\
In many cases, a change in ownership
or operational control will involve only
a modification to the existing permit,
rather than a complete revocation of the
existing permit and issuance of a new
permit. A modification generally should
be adequate if the changes necessitated
by the transfer do not entail numerous
significant changes to the existing
permit. For example, if the new pemittee
proposes changes to the closure or post-
closure plan, or financial mechanisms,
but not the actual operation of the
currently permitted facility, a major
modification should be sufficient.
A major modification to a permit still
requires that the procedures outlined in
40 CFR Part 124 (i.e., draft permit, public
notice etc.) be followed. However, only
those portions of the permit application
concerning the conditions being changed
or added is required, and only those
permit conditions which are being
modified are reopened at this time.
Thus, the public is informed of the
changes and has an opportunity to
comment, but the transfer would not be
as involved or time-consuming as a
transfer which entails revocation and
reissuance of a permit. Of course the
permittee may always request that the
transfer be handled as a revocation and
reissuance, rather than a modification to
an existing permit.
C, Transfer by Minor Modification of
the Permit
Some changes in ownership or
operational control may require only a
minor modification of the permit under
40 CFR 270.42(d). Section 270.42
provides that, in certain circumstances,
with the consent of the permittee, the
Director may modify a permit without
following the procedures of Part 124
when there is a change in ownership or
operational control. A transfer may only
be handled as a minor modification to
the permit if the Director determines
that no changes to the permit other than
the change in ownership or operational
control (and any other changes listed in
§ 270.42 as minor modificationss are
necessary, and provided that a written
agreement containing a specific date for
transfer of permit responsibility,
coverage, and liability between the
current and new permittee has been
submitted to the Director. (See 40 CFR
270.42(d)). For example, a transfer of
control between subsidiaries of the
same corporation should involve only a
change in name, and therefore could be
treated as a minor modification to the
permit.
A minor modification may be
processed much faster than either a
major modification, or a revocation and
reissuance, as no draft permit need be
prepared, and no public notice
procedures are required. However, the .
permittee must wait for EPA to act on
the modification before the transfer may
take place, and transfer by minor
modification is only available under
very limited circumstances.
4 See 40 CFR 270.30(l)(3)..The Director may
require modification or revocation or reissuance of
the permit to change the name of the permittee and
incorporate such other requirements as may be
necessary.
5 Automatic transfers are allowed for NPDES and
certain UIC permits only, but not RCRA permits.
See 40 CFR 122.61 and 144.38.
"The other changes listed in 5 270.42 as minor
modifications to RCRA permits are changes in the
lists of facility coordinators or equipment in the
contingency plan; changes in the estimates of
maximum inventory in the closure plan; changes in
the estimates of the expected year of closure;
changes approving periods longer than 90 or 180
days for the time allowed for closure; certain
changes in the trial burn for incinerators; and
certain changes in land treatment programs. The
Agency is planning to propose to expand the list of
minor modifications in the near future.
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Federal Register / Vol. 48, No, 91 / Tuesday, May 10, 1983 / Proposed Rules
21105
D, Automatic Transfer of Permits
The regulations currently do not
provide for automatic transfers of RCRA
permits. However, NPDES and some
UIC permits may be transferred to a
new permittee automatically, if the
requirements of § § 122.61 or 144.38 are
fulfilled. For an NPDES or UIC permit to
be transferred automatically, the current
permittee must notify the Director at
least 30 days in advance of the proposed
transfer date, and include in the notice a
written agreement containing a specific
date for the transfer of permit
responsibility, coverage and liability.
The transfer is automatic if the Director
does not notify them of his intent to
modify or revoke and reissue the permit
within the 30 days.
For NPDES and UIC permits that are
automatically transferred under
§§ 122.61 or 144.38 the cause for
modification survives the transfer, so
that the Director may later modify the
permit to reflect the changes to the
facility resulting from the transfer,
without holding up the transfer. This
procedure allows a transfer to take
place with no delay other than the 30-
day notice period. This procedure is less
burdensome on new owners or'
operators, therefore, as they need not
wait for EPA to make the change to the
permits, as they do when the permit is
modified or revoked and reissued prior
to the actual transfer.
III. Proposed Changes
Section 270.40, concerning transfers of
RCRA permits, has been challenged as
unreasonably restrictive. Industry
petitioners, in settlement discussions
dealing with the lawsuit on the
consolidated permit regulations,7 have
argued that requiring a modification or
revocation and reissuance of a permit
for most RCRA permits before a transfer
may take place is unduly burdensome.
They have asserted that the
requirements, details, and formalities
attending property transfers are
burdensome enough without involving
EPA. Thus, they suggest that EPA should
allow transfers of RCRA permits under
an approach similar to that used for
NPDES and UIC permits, allowing
"automatic" transfers of permits for
RCRA facilities.
Today the Agency is proposing to
allow some RCRA permits to be
transferred automatically, under a
scheme similar to that used for NPDES
7 NRDC v. EPA, No. 80-1607 and consolidated
cases (D.C. Cir., filed June 2,1980). For further
discussion of the lawsuit and the settlement
agreement dealing with the RCRA-related issues in
the case, see the preamble to the proposed .
amendments to §§.122.4 and 122.6 (now §§ 270.7
and 270.31). 47 FR 32038 {July 23,1982).
and some UIC permits. The Agency
agrees that nsany transfers'; ought to be
subject to a streamlined transfer
procedure, one not involving prior
Agency action. :
Today's proposal provides that a
transfer may take place "automatically"
if the new permittee proposes no
changes in the operation of the facility
and the Director receives notice from
the existing permittee at least 90 days in
advance of the proposed transfer date
and receives a written agreement
containing: (1) A specific date for
transfer of permit responsibility,
coverage and liability; (2) a
demonstration that the financial
responsibility regulations will be met by
the new permittee, including a copy of ,
the appropriate documents; and (3) a
signed statement by the new permittee
agreeing to comply with the existing
permit conditions and the revised
financial instruments.
If the new permittee does not receive
notice from the Director within the 90-
day advance notice period that
modification or revocation and
reissuance is necessary prior to the
transfer, the transfer is effective on the
date specified hi the notice. EPA would
plan to modify the permit, after the date
of transfer, to reflect the new owner or
operator's name and the revised
financial instruments. If, however, the
Director gives notice within the 90-day
- advance notice period, that a major or
minor modification or revocation and
reissuance of the permit is necessary
prior to the transfer, the applicable
procedures must be followed.
This is a change from the May 19,1980
regulations. In the preamble to those
regulations, the Agency stated that for
RCRA facilities, it would always be
necessary to modify the permits upon
the transfer of ownership or operational
control of the permitted facility. EPA
had determined that this was necessary
because we believed that all RCRA
permits would contain conditions which
would be personal to the permittee-and
which necessarily would change when
the permittee changes, such as the
closure and post-closure plans, the
contingency plan, and provisions for
financial responsibility.
The Agency no longer believes that all
of the closure, inspection, and
contingency plans are personal to the
permittee. Many can be generally
applicable to the facility. To expedite
transfers of property, EPA is proposing
to allow an automatic transfer of the
permit when these conditions would not
chang'e, and then later process the
facility's change of name and financial
instruments as a modification to the
permit.
It will be up to the original and new
permittees whether they wish to apply
to the Director for an automatic transfer
or a minor modification, the major
difference being that for a minor
modification, they would wait for the
Agency to take action on the permit
modification before the transfer takes
place.
it should be noted that EPA does not
intend to allow any automatic transfers
where a major modification to the
permit would be necessary.
Ninety days is the same amount of
advance notice that is required by EPA
for transfers of facilities during interim.
status, [See 40 CFR 270.72). The Agency
believes that in most cases, it needs that
amount of time to review the revised
financial instruments. It has been the
Agency's experience, however, that the
90-day notice period may need to-be
shortened in certain circumstances, e.g.,
a court-ordered transfer of ownership
necessitating a permit transfer in less
than 90-days. Therefore, the Agency is
proposing to add a provision to
§ 270.40(b) that for good cause shown by
either the existing or new permittee, the
Director may allow a shorter advance
notice period.
The Director must get actual notice of
the transfer before the 90-days advance
notice period begins. The permittee is
therefore advised to send his notice by
certified mail.
IV. Transfer of State Permits
Many states preclude any permit
transfers and require that new facility
owners apply for and obtain a new
permit in all instances of changes in
ownership or operational control. This
proposal would not affect transfers of
permits in states which preclude permit
transfers under state law because
Section 3009 of RCRA allows States to
impose requirements that are more
stringent than those imposed by the
Federal regulations.
V. Economic Impact
EPA estimates that the savings
attributable to this proposal would be
equal to the difference between the cost
of a minor modification to a permit and
the cost of the automatic transfer (i.e.,
difference in when the modification to
the permit occurs). This amendment
merely allows the permittee a measure
of convenience, by assuring the
permittee that he may make his
modification within 90 days. Because
the cost of this convenience is
negligible, there would be very little if
any cost savings.
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Federal Register / Vol. 48. No. 91 /Tuesday, May 10. 1983 /ProposedRules
VI. Request for Comments
The Agency invites comments on all
aapecls of these proposed regulations.
EPA anticipates that finalizaticn of
today's proposal will provide part of the
basis for the settlement of the NRDC v.
EPA lawsuit on the RCRA portion of the
conslidated permit regulations.
However, EPA will carefully consider all
public comments on this proposal before
making its final decision.
VII. Effective Date
Section 3010{b) of RCRA provides that
EPA's hazardous waste regulations, and
revisions thereto take effect six months
after their promulgation. In addition,
section 553(d) of the Administrative
Procedure Act requires publication of a
substantive rule note less than 30 days
before its effective date. The purpose of
these requirements is to allow the
regulated community sufficient lead
time to prepare to comply with major
new regulatory requirements. For the
amendments proposed today, however,
the Agency believes that an effective
date six months after promulgation
would cause unnecessary disruption in
the implementation of the hazardous"
waste management program and would
contravene the purpose of these
amendments. These amendments, if
promulgated in final form, would allow
some RCRA permits to be transferred
from a permittee to a new owner or
operator without prior modification or
revocation and reissuance.
The Agency believes that this is not
the type of regulation that Congress had
in mind when it provided a delay
between the promulgation and the
effective date of revisions to regulations.
, Indeed, this is a rule that would relieve
an existing restriction. (See 42 U.S.C.
553(d)(l)). Consequently, EPA believes
that it will have good cause to make
these amendments effective
immediately if and when they are
promulgated in final form, but requests
comments on whether such action
would cause hardship for the regulated
community or would otherwise be
inappropriate.
VIII. Executive Order 12291
Under Executive Order 12291 (46 FR
12193, February 19,1981), EPA must
judge whether a regulation is "Major"
and therefore subject to the requirement
of a regulatory Impact Analysis. A
major rule is defined as a regulation
which is likely to result in:
—An annual effect on the economy of
$100 million or more;
—A major increase hi costs or prices
for consumers, individual industries,
Federal, State or local government
agencies or geographic regions; or
—Significant adverse effects on
competition, employment, investment,
productivity, innovation or on the ability
of United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
The regulation is not major because it
will not result in an effect on the
economy of $100 million or more. There
will be no adverse impact on the ability
of the U.S.-based enterprises to compete
with foreign-based enterprises in
domestic or export markets. This
amendment is not a major regulation,
therefore no Regulatory Impact Analysis
is being prepared.
This amendment was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
IX. Paperwork Reduction Act
The reporting or recordkeeping
provisions in this rule have been
submitted for approval to the Office of
Management and Budget (OMB) under
Section 3504(b) of the Paperwork
Reduction Act of 1980,44 U.S.C. 3501 et.
seq. Any final rule will explain how its
reporting or recordkeeping provisions
respond to any OMB or public
comments.
X. 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 proposalsupports the goals of the
Task Force by reducing the burden on
the regulated community. This proposal
also fulfills one of EPA's obligations in
the settlement pf the RCRA portion of
industry litigation on the Consolidated
Permit Regulations. In addition to
issuing proposals aimed at settling the
litigation the Agency has deconsolidated
the regulations' to make them more
easily usable by the public. As a result
of deconsolidation there was some
reorganization [of the regulations. Thus.
this proposed amendment is in
somewhat different format and location
than it appeared in the settlement
agreement.
XI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 etseq., whenever an
agency is required to publish general
notice of proposed rulemaking for any
rule, it must, prepare and make available
for public comment a regulatory
flexibility analysis which describes the
impact of the proposed rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
These amendments will not have a
significant economic impact on a
substantial number of small entities. If
these amendments are promulgated in
the same form as proposed today, the
Agency expects that it will result in
minimal savings to the community.
Accordingly, I hereby certify that this
proposed regulation, if issued in final
form, will not have a significant
economic impact on a substantial
number of small entities.
Dated: April 26,1983.
Lee L. Verstandig
Acting Administrator.
List of Subjects in 40 CFR Part 270
Administrative practices and
procedure, Reporting and recordkeeping
requirements, Hazardous materials,
Waste treatment and disposal, Water
pollution control, Water supply,
Confidential business information.
PART 270—[AMENDED]
It is proposed that 40 CFR Part 270 be
amended as follows:
1. The authority citation for Part 270
reads as follows:
Authority: Sections 1006, 2002, 3005, 3007
and 7004 of the Solid Waste Disposal Act, as
amended by of the Resource Conservation
and Recovery Act of 1976, as amended
(RCRA) (42 U.S.C. 6905, 6912, 6925, 6927 and
6974).
2. It is proposed that § 270.40 be
amended by designating the existing
section as paragraph (a) and by adding
a new paragraph (b) to read as follows:
§ 270.40 Transfer of permits.
* * - * * *
(b] Automatic Transfers. As an
alternative to transfers under paragraph
(a) of this section, any RCRA permit
may be automatically transferred to a
new permittee if the new permittee
proposes no changes in operation, and:
(1) The Director receives notice by
certified mail from the existing permittee
at least 90 days in advance of the
proposed transfer date specified in the
agreement mentioned in paragraph
(b}(2) of this section, unless the
Administrator allows a shorter advance
notice period for good cause shown by
the existing or new permittee;
(2) The notice includes: (i) A written
agreement between the existing and
new permittee, signed by both,
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21107
containing a specific date for transfer of
permit responsibility, coverage, and
liability; (ii) a demonstration that the
financial responsibility requirements of
40 CFR Part 264 will be met by the new
permittee, including a copy of the
revised financial instruments or other
appropriate documents; (in) a signed
statement by the new permittee agreeing
to comply with the existing permit
conditions, and the revised financial
requirements; and
(3) The new permittee receives no
notice from the Director, Within 90 days
from the date the Director received the
notice referred to in paragraph (b)(l] of
this section, that mddification, or
revocation and reissuance of the permit
is necessary. If such notice is not
received, the transfer is effective on the
date specified in the agreement
mentioned in paragraph (b)(2) of this
section. EPA may modify the permit
after the effective date of the transfer to
include the new permittee's name and
the revised financial instruments. If,
within the 90 day advance notice period,
the Director gives notice that
modification or revocation and
reissuance of the permit is necessary
under § 270.41{b)(2), the applicable
procedures of Part 124 must be followed,
rather than these procedures for an
automatic transfer.
[PR Doc. 83-12491 Hied S-9--83: 8:45 am|
81LUNO CODE 65BO-5CS-M
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