1
Monday .
July 15, 1985
Part II
Environmental
Protection Agency
40 CFR Parts 260, 261, 262, 264, 265,
266, 270, 271, and 280
Hazardous Waste Management System:
Final Rule
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Federal Raster / Vol. a, Na 135 / Monday. July
ENVIRONMENTAL PROTECTION
~
ISWH-FRL2724-6J
Hazardous Waste Management
System; Final Codification Rule
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: On November 8,1984. the
President signed into law the Hazardous
(HSWA), This new starute.makes many
changes to EPA's existing hazardous
waste management program. The
purpose of this rule is to amend EPA's
existing hazardous waste regulations to
reflect those statutory provisions that
have immediate or short-term effects on
the regulated community. This rule also
adds Part 280 to the EPA regulations to
incorporate the interim prohibition of
new section 9003(g). added by the 1984
Amendments. This section prohibits the
installation of any new underground
storage tank for regulated substances
unless the tank is protected against
corrosion and structural failure and is
compatible with the substance to be
stored.
EFFECTIVE DATE These rules become
effective July 15.1985.
r«7Vri unemai •"otection Agenc
«1M Street. SW.. Washington. D.C.
20460. and is available for viewing from
9:00 a.m. to 4:00 p.m., Monday through
Friday, excluding Holidays.
FOR FURTHER INFORMATION CONTACT:
For technical information, contact Tim
Oleary, Office of Solid Waste fWH-
S62B). US. Environmental Protection
Agency, 401M Street SW., Washinston.
D.C 20460. Toll free: RCRA HoUtoT
(800-124-9346). In Washington. DjL
(202-382-3000). • '
SUPPLEMENTARY INFORMATION:
PrtambU Outllna
L Authority
IT. Background
IIL Purpose of Today'* Rule
IV. Olher Element* of EPA's Strategy for
Implementing Amendment*
V. Section by Section Analysis of Regulatory
Change*
A. Land Disposal Amendment*
. 1. Liquid* in Itndflll* •
2. Minimum technological requirement*
3. Corrective tctlon
; 4. Ground-water monitoring variance*
6. Salt dome formation*. *alt bed
formation*, underground mine*, and
cavea
6. Oust suppression
7- Underground injection
B. Small Quantity Generator*
C Permits and'lhterim Status
1. Preconstruction ban/TSCA Exception
2. Permit life .
3. Authority to add conditions
4. Expansion of interim flatus for newly
regulated unit* • ,
S. Loss of Interim status for failure to
submit Part B
D. Burning and Blending of Haiardou* -
Waste
t. Ban on hazardous waste in certain •
cement kilns
2. Labeling of hazardous waste fuels
3. Exception to labeling requirement
4. Household waste
S. Minimum technological requirement*
for incinerator*
E. Exposure Information and Health -
Acsessment*
F.DelisHng Procedure*
G. Research. Development, and
Demonstration Permit*
H. StataAuthorizatioa
1. Applicability of today's rule in
authorized States
2. Public availability of information
3. Extension of Interim Authorization
expiration date
. 4. Authorization under the HSWA:
application and revision requirements
L Hazardous Waste Export*
I. Waste Minimization
K. Financial Responsibility
L. Underground Storage Tanks
VL Regulatory Analysis
A. Executive Order 12291: Regulatory
Impact Analysis
a Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Estimated Cost of the Final Rule
L Authority
These regulations are issued under
authority of sections 2002(a). 3001, 3002.
3004, 3005. 3008.3010, 3015. 3017. 3019.
9001. and 9003 of the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act as amended. 42 U.S.C. 6912(a). 6921.
6922. 6924. 6923,6928.6930,6935.6937.
6939.6991. and 6993.
IL Background
On November 8, 1984. the President
signed into law the Hazardous and Solid
Waste Amendments of 1984 (HSWA). a
major new statute that will require -
profound changes in the way that this
country manages hazardous wastes. A
onef summary of the new law's major
provisions indicates the magnitude of
the changes:
-1. A new program for banning wastes
from land disposal. .
2. Prohibitions against certain land .
disposal practices (e.g.. placement of
Lquids in landfills: placement of waste
in salt bed formations, mines, and caves:
use of hazardous waste as a dust r. .
. suppressant: and certain types of
underground injection).
3. Minimum technological mea
for landfills, surface impoundmen j
incinerators.
4. Expanded requirements for ground-
water monitoring and cleanup at
permitted facilities.
5. Requirements for retrofitting certain
existing surface impoundments with *
liners.
6. Authority to expedite permits for
new and innovative treatment
technologies to foster research and
development
7. Authority to require permit
conditions beyond the scope of EPA's
existing regulations.
8. Tighter controls on small quantity
generators of hazardous waste.
9. Requirements to identify additional
hazardous wastes.
10. A full assessment of the hazards
posed by a waste before EPA may delist
11*
11. Requirements for thorough
inspections of State and Federal
facilities.
. 12. Enhanced Federal enforcement
authorities (including the ability to issue
corrective action orders" to interim
status facilities).
13. Specific controls on the burning
and blending of hazardous wastes as
fuels.
14. Specific requirements for the
regulation of used oil.
15. Tighter controls on the export o.
hazardous wastes.
16. A new program for identifying the
health risks presented by surface
impoundment and landfill facilities.
17. An expanded program for the
regulation of solid waste management
facilities.
18. Greater citizen involvement in
"Imminent and substantial hazard"
cases under section 7003.
19. A major new program for
regulating underground storage tanks
20. The establishment of a National
Ground Water Commission.
These comprehensive amendments
are all the more significant because of
the ambitious schedules the Congress
has established for the imposition of
these requirements. Many of the
provisions are already in effect: others
go into effect within very short time
frames. Other sections of the statute
establish "hammer" provisions fi e
Tequirements that go into effect by"
statute if EPA fails to issue regulations
by certain dates).
These hew amendments present
serious new challenges to EPA. the
regulated community, and the public at
large. The first of these challenges is the
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Federal Register / VoLjQ. No. 135 / Monday. My 15. 1935 / Rules and Remlatiota
287G3
task of developing a working
understanding of the new statutes
provisions. To fully appreciate the"
changes to EPA'a hazardous waste
program that have been made by this
statute, one must not only become •
familiar with the specifics of Individual
provisions but also must understand the
interrelationships that exist among the
various sections of the law.
As will be described in more detail In
the next section, today's rule is EPA's
effort to facilitate such an understanding
of the new amendments to RCRA. In
EPA's view, an early, clear articulation
. of the regulated community's new
responsibilities is an essential step in
- any strategy for the effective .
implementation of the Congress' will
IE. Purpose of Today's Rule
The purpose of today's rule is to
incorporate into the existing Subtitle C
regulations a set of requirements from
the new RCRA amendments that
become effective as a matter of statute
in the short term. EPA is making these
modifications to the existing rules
through a final rule that will be
immediately effective. In addition, EPA
is adding a new interim prohibition on
the installation of certain new
underground storage tanks. In light of
the fact that this rule is being issued
before there has been an opportunity for
public comment. EPA has, for the most
part simply codified into the regulations
the statutory language associated with
each provision.
Specifically, today's rule addresses
the following provisions of the RCRA
amendments:
1. The ban on placement of bulk liquid
hazardous waste and nonhazardous
liquids in landfills.
2. The permitting and interim status
requirements for double linen and
leachate collection systems at surface
impoundments and landfills.
•' 3. The redefinition of "regulated unit"
for purposes of the ground-water
monitoring and response program.
4. The obligation to institute
corrective action for solid waste
.' management units at permitted :
facilities. '. . .
5. The elimination of the double liner
variance from the ground-water
monitoring and response program
allowed for landfills, surface
impoundments, and waste piles.
8. The variance from ground-water
monitoring allowed for certain
engineered structures..
7. The ban on disposal in certain salt
dome formations, caves, and
underground mines... _. . '.'..-.
8. The ban on use of materials mixed
with dioxins or other hazardous waste
for dust suppression.
- 0- The interim-measures {i.e., manifest
and destination requirements) for small
quantity generators producing between
100 and 1000 kilograms of waste per
month.
10. The preconstruction ban with the
variance for PCS facilities having EPA
approvals under TSCA.
11. The restrictions on a facility's
permit life. . _
12. The authority to add conditions to
a permit beyond those provided for in
regulation*. - ,.
. 13. The extension of interim status to
facilities that become subject to -
permitting requirements because of new
regulatory requirements.
14. The loss of interim status for
facilities failing to submit Part B
applications within specific deadlines
and for %ilure to self-certify compliance
with ground-water monitoring and
financial responsibility requirements.
IS. The ban on the burning of
hazardous wastes in certain cement .
kilns.
• 18. The requirement to label
• hazardous waste fuels.
17. The exclusion for certain wastes
burned at resource recovery facilities.
18. The additional criteria (i.e., other
constituents or factors) that must be
evaluated before a waste can be
delisted.
19. The authority to foster innovative
research and development by the
issuance of special treatment permits
20. Extending the life of interim
authorization for State programs by one
year.
21. The requirement that State
programs assure the public availability
of information.
22. The identification of the new
requirements that will go into effect in
authorized States prior to State
authorization.
23. The requirements concerning
recordkeeping for hazardous waste
exports.
24. The requirements for generators
and owners or operators of treatment
storage, and disposal facilities to certify
that they have instituted a waste
minimization program. •
25. The interim prohibition on the
installation of any new underground
storage tank for regulated substances
unless the tank is protected against
corrosion and structural failure and is
compatible with the substance to be
stored.
EPA recognizes that many of these
provisions raise interpretive questions
For the most part EPA has avoided '
adding regulatory language to resolve
interpretive questions. This is in keeping
with EPA's view that the principal
purpose of today's rule is to codify the
new statutory requirements. EPA has
articulated in the preamble, however, its
view of what Congress intended these
new requirements to be. Such
statements of statutory interpretation
are derived from the legislative history
and EPA's view of Congressional
purposes for the new requirements.
In addition, EPA intends to prepare a
companion proposed rule to today's '
final rule that.proposes modifications to
the existing regulations to assist in
implementing the new statutory
provisions. This proposal will deal with
issues that are logical outgrowths of the
new provisions rather than matters
addressed directly by the statutory
language.
While it recognizes the importance of
public comment in its rulemaking
activity, EPA believes that the
circumstances presented by the new
RCRA amendments create a need for
swift administrative action before public
comment can be obtained. The
Administrative Procedures Act 5 U.S.C.
551, et set}., specifically recognizes that
there will be situations where an
administrative agency need not go
through a round of public comment
before issuing a substantive rule. Under
5 U.S.C I 553(b)(3)(B), a rule is exempt
from notice and public comment
requirements "when the agency for good
cause finds (and incorporates the
finding and a brief statement of reasons
therefore in the rules issued) that notice
and public procedures thereon are
impractical, unnecessary, or contrary to
the public interest"
The Administrative Conference of the
United States has recently summarized
the case law that has developed on the
use of the "good cause" exemption by
offering the following guidance to
administrative agencies:
Examples'of the types of situations
requiring us* of the exemption are those in
which (1) advance notice of rulemaking will
defeat the regulatory objective. (2) immediate
action is necessary to reduce or avoid health
hazard* of imminent harm to peraoni or
property, (3) Immediate action is required to
prevent serious dislocation in the
marketplace, and (4) delay in promulgation
will cauM an Injurious inconsistency
between an agency rule and a newly enacted
statute or judicial decision. ACUS Recc. 83-2:
The "Good Causa"Exemption from APA
Rulemoking Requirement*, I CFR Part
305.83-2 (1984).
An examination of the circumstance*
presented by the new amendments and
the limited objectives of this rule
indicates that EPA may properly invoke
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Federal Register / Vol. 50. NO/IM / M.nday. )uly 15. 1985 , Rule9 and Reaulationg
-r~»...wca44jr liJUJMllCU Uldl H CXpCd
EPA to make use of the good cause
, exemption in the early stages of its
implementation program. The
Conference Report on the statute [H.R.
Report No. 1133.98th Cong..'2d Sess
112 (1984)] states: I_.
For aboM proviitons of thi« Act which are
immediately Affective, it would be contrary to
the pttblic interest and impractical for EPA to
_ engage in the time-consuming rulemaking
E?JCoI""1 re1uired by Section A of the APA.
5 U.S.C Section 553. to cany out swiftly its
statutory mandate. Therefore, for such
Immediately effective provisions. EPA
• appropriately may invoke the "good cause-
exemption of 5 U.S.C. Section 5S3(b)(B) and
(d)(3J. to issuing fiaal substantive or
interpretative rules to implement those
, pro»T»ion«. Tnis will enable the Agency to
put into place (wifdy the enacted
requirements.
Second. Immediate'action serves
important public policy objectives. The
Congress has clearly indicated in the
new statute that many of its provisions
are to go into effect immediately or
within a very short period of time. If thai
objective is to be met it is vital that the
regulated community become aware of
the new requirements and fully
understand how their operations must
change. EPA's regulations provide the
most effective vehicle for officially
communicating the will of Congress. The
regulated community has been working
Wth fPA'1 regulations for several years
now. Those regulatfons have become the
touchstone for the hazardous waste
program, defining the basic
requirements that must be met. Many
permits that have been issued to owners
and operators of treatment, storage, and
disposal facilities reference specific
sections of the regulations. Many State
regulatory programs are modeled after
EPA's regulations: some States even
Incorporate EPA'i regulations by
reference. • . •'
Thus, by modifying the current EPA
regulations to reflect the new statutory
amendments. EPA is translating those
requirements into* the regulatory
. parlance with which the interested
public is most familiar. This step should
1* A!M »A _ll._*__• V _ m .« .
important aspect of any effective
enforcement program is an effort to put
regulated parties on notice of what the
law says so that they cannot claim that
they were confused about their
responsibilities.
fly reducing confusion about the
program and clarifying responsibilities
for enforcement purposes, EPA is
ultimately serving the basic purposes of
the statute—the protection of human .
health and the environment. An
atmosphere of confusion about the •
content of a new environmental law can
only paralyze efforts by responsible
segments of the regulated community to
move ahead to meet their
responsibilities and can only provide
anoJher excuse for those segments of the
regulatedTommunity that are not
inclined to comply with the law. Neither
result advances the Congress' objective
of promady reducing the threats to
human flealth and the environment
posed by hazardous waste management
Thus, EPA's efforts to codify the new
amendments into its regulations should
provide important immediate benefits
for protecting human health and the
environment
A iMrdconsideration is that EPA has
tried to minimize the need for public
comment on the final rule by codifying
the exact statutory language for most of
the provisions. Given this approach, the
.need for public comment on the final
rule is much reduced.
For the reasons described above, EPA
has concluded that there is good cause
to issue today's rule prior to receiving
public comment because, under the
circumstances, notice and comment
procedures would be impracticable,
unnecessary, and contrary to the public
interest under 5 U.S.C S53(b)(B). For the
same reasons. EPA believes that it has
good cause to make today's rule
immediately effective, instead of
f f c,Vo
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statute makes it dear that the ban
encompasses hazardous waste
containing free liquids even if • ...
absorbents have been added to such
waste. Until this ban takes effect on
May 8.1985, the requirements set forth
in EPA's existing regulations, as
promulgated on July 2^4982, remain
applicable. • - - •-— ' •_ -
The rule promulgated today amends
EPA's existing regulations for permitted
and interim status landfills to implement
. this new statutory provision. Section
264.314(a) (setting forth standards for
permitted landfills) and 5 285.314(a)
(setting forth standards for interim
status landfills) have been changed to
reflect the fact that the standards
contained therein remain applicable
only until May 8.-1985. at which point •
the absolute ban on the placement in
landfills of bulk or non-containerized
liquid hazardous waste or hazardous
waste containing free liquids takes
effect. This absolute ban is now codified
in a new paragraph (b) which has been
added both to-5 284.314 and to 5 285.314.
• The Agency interprets the ban on
"placement" to include, but not be
limited to: (1) Placing bulk liquids into a
landfill cell where the liquids are
solidified and then transferred to
another landfill cell, and (2) placing
treated bulk liquids still in liquid form
into a landfill cell prior to solidification.
The term "placement" is sufficiently
broad to encompass treatment, storage.
or disposal. The legislative history of a
related provision, section 3004(b)
(banning the placement of liquid
hazardous waste in salt domes,
underground mines, or caves) confirms
that Congress intended the ban on
satisfaction2 that: (1) The only
reasonably available alternative for
these non-hazardous liquids is a landfill
—arjinlined surface impoundment
(including units not operating pursuant
to a permit or interim status) which
already contains, or may reasonably be
anticipated to contain, hazardous waste.
and (2) the disposal of the non-
hazardous liquids in the owner or
"operator's landfill will not present a risk
of contamination to any underground
source of drinking water. This exception
is designed to prevent the shifting of
non-hazardous liquid waste from
Subtitle C landfills to muncipal landfills
and unlined surface impoundments that
contain or might contain hazardous
wastes due to prior disposal practices.
129 Cong. Rec. H8138 (daily ed, Oct 8,
1983). As used in this provision, the term
"unliaad" surface impoundment means
a surfaoi. impoundment that does not
meet the requirements of 40 CFR Part
284, Subpart K. as promulgated on July
26,1982.129 Cong. Rec. H8141 (daily ed.
—J. Section 3004(c)(3) specifies
term "underground source of
j water" has the same meaning
as provided in regulations promulgated
under the Safe Drinking Water Act (see
40 CFR 144.3).
To implement this provision.
paragraph (e) has been added to
55 264.314 and 265.314 (f) banning the
placement of a liquid which is not a
hazardous waste in permitted or interim
status landfills after November 8.1985.
These paragraphs essentially repeat the
prohibition and exemption found in
section 3004(c){3). In addition, the permit
application requirement pertaining to
landfills receiving bulk or non-
containerized liquid waste (5 270.21(h)J
is amended to reflect the fact that such
waste may continue to be received at
awaiting further treatment or disposal.
and to preclude use of such locations as
treatment chambers. See 129 Cong. Rec.
H8141 (daily ed* Oct. 6,1983). Thus, it is
evident that the ban is effective
regardless of the purpose of placing the
liquids into a landfill.
b. Ban on non-hazardous liquids.
HSWA also adds new section 3004(c)(3),
which imposes a ban on the placement
of non-hazardous liquids in permitted or
interim- status landfills after November
8,1985. This provision provides an
exemption from'the prohibition,
however, if the owner or operator of
such a landfill demonstrates to EPA's
2. Minimum Technological Requirements
HSWA amends section 3004 of RCRA
by adding a new paragraph (o) imposing
minimum technological requirements on
the owners or operators of certain
landfills and surface impoundments
seeking permits. HSWA also adds a new
section 3015 to RCRA imposing similar
requirements on certain interim status
waste piles, landfills, and surface
impoundments.
Specifically, section 3004{o)(l)(A)
provides that a permit for a new landfill
or surface impoundment, a new landfill
'The language of lection (c)(3) requirei
determination by the "Adminiitrator." •-
or surface impoundment unit at an
existing facility, or a replacement or
lateral expansion of an existing landfill-
or surface impoundment unit, must
require the installation of two or more
liners, a leachate collection system
above (in the case of a landfill) and
between the liners, and ground-water
monitoring. Section 3004(o)(5)(B) allows
tee use of a particular type of liner
design pending the issuance of EPA
regulations or guidance implementing
the double-liner requirement in section
3004(o)(l). In today's rule, this provision
appears in § 264.221 (c) (for surface
topoundments) and 5 264.301(c) (for
Section 3004(o)(2). codified in today's
rule at 85 264.221(d) and 264.30l(d).
provides an exemption from the section
3004(o)(l)(A) standards for liners and
leachate collection systems if
alternative design and operating
practices, together with location
characteristics, will prevent the
migration of hazardous constituents into
the ground water or surface water at
least as effectively as the liners and
leachate collection systems. Section
3004{o)(3) exempts certain monofills
from the double liner requirements. The
monofill exemption is added in
55 264.221(e) and 264.301(e).
Section 3015(b)(l) establishes
standards for interim status surface
impoundments and landfills. Any new
unit or replacement or lateral expansion
of an existing unit, is subject to the
requirements of section 3004(o) (relating
to minimum technological requirements),
with respect to waste received
beginning May 8.1985. According to
section 3015(b)(2), the owner or operator
of any unit subject to section 3015(b)
must notify EPA as least sixty days prior
to receiving waste and must file a Part B
application within six months of the
receipt of the notice. Today's rule adds
new | 265.221 to codify the requirements
for interim status surface
Impoundments. New $ 285.301 contains
the requirements for interim status
landfills.
Section 3015(b)(3) provides that the
owner or operator of a surface
impoundment or landfill who installs
liners and a leachate collection system
in good faith compliance with EPA
regulations and guidance documents.
may not be required to install a different
hner or leachate collection system at the
time that the facility receives its first
permit. Notwithstanding this provision.
the Administrator may require
installation of a new liner at permitting
if the Administrator has reason to
believe that the liner installed during
Interim status is leaking. The language
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01UUA9 YVCUIU; }J11C3« tUUJ U6W
ile unit, or replacement or lateral
expansion of an existing unit, must
comply with requirements for liners and
leachate collection provided in current
regulations or in revised_regulations
under section 3004{o). The new
standards are applicable to any new
waste pile unit or replacement or lateral
'expansion of an existing unit, with
respect to waste received bexinnmg
May 8.1385. Today's rule has added
these requirements in new 5 285.254.
. The following discussion explains in -
more detail the intended applicability
and content oTQie minimum
technological requirements.
ft. Who is affected by the statutory
amendments. Section 3004(o)(lJ(A).
specifies which facilities, units, and
lateral expansion* will have to comply -
with the new minimum technological
requirements at the time of permitting.
Section 3O1S specifies which units and
lateral expansions are subject to the
new standards during interim status.
This section of the preamble compares
the scope of (he two provisions and
explains who must comply with the new
requirements.
Under section 3004(o)(I)(A). a permit
issued after November 6,1984 mast
require liners, leachate collection, and
ground-water monitoring for each new
landfill or surface impoundment, each
new landfill or surface impoundment
unit at an existing facility, and each- '
replacement or lateral expansion of an
existing landfill or surface impoundment
unit. The requirements apply with
respect to waste received after the
issuance of the permit
Section 3015, which subjects the '
owner or operator of a waste pile.
landfill, of surface impoundment . *
operating under interim status to
minimum technological requirements
uses language similar to that used in
section 3004: uniu anbject to section
3015 include any new unit, any
replacement of an existing unit, and any
lateral expansion of an existing unit.
The provision applies with respect to
waste received beginning May a. 1885.
* Currently, EPA defines "unit" in the
preamble to the fury 26.1982. regulations
•as a eontinguoui area of land on or in
which waite is placed, or the largest
area in which there is a. significant
likelihood of mixing waste constituents '
In the same area. See 47 FR 32289. Thi»
definition envisions a unit as a defined
or bounded area designed to contain
waste, with either natural or artificial
boundaries. The legislative history to
HSWA confirms thai Congress intended
Sess. part l. at 60 (1983).
Consistent with this definition. EPA
considers that the available physical
evidence (e.g., berms. excavation, or
other construction) offers the best
indication of where the boundaries of a
unit are located. Other objective
information, euch as operating records
or the Part A permit application, also
may be used to identify the boundaries
of a unit
Surface impoundments win generally
be either excavated or bounded by
dikes. Similarly, most landfill trenches
or cells are excavated and the
boundaries of the unit will be readily
recognizable. For certain areafills and
waste piles, where no defined
boundaries exist and no construction or
excavation is necessary or planned
(becauss/waste is placed on the
•nprepared land surface), the
boundaries of the unit will be
determined based on various objective
factors, such as evidence in the facility
operating record or the Part A permit
application, which would indicate
whether a particular area was intended
. to be an individual unit (i.e., a bounded
area where waste will be placed).
Neither the statutory language nor the
legislative history specifically provides
an interpretation of the term "lateral
expansion." A lateral expansion would
be defined as an expansion of the
boundaries of the existing unit. Hence, if
an existing interim status surface
impoundment or landfill unit expands
after November 8,1984 to cover new
land area, the expanded area must
comply with the double liner and
leachate collection requirements if that
area is still receiving waste on May 8.
1585. Expansion is usually accomplished
in a surface impoundment by moving
dike* to create additional capacity, on in
a landfill by excavating additional areas
to enlarge an existing trench.
• For interim status purposes, section
3015 specifies that the new requirements
apply to a lateral expansion of an
_^ „.., ulal la wiuun me waste
management area" identified in the Part
A permit application.' In codifying the
•The language of i.cllon 3015 referi to a lataral
•xpanaion of an axiating unit that la -Siiiliui the
wa.te management ana identified in the permit
application submitted und« <^-M«. i/m ~ gpA n|(
new interim status requirements ir
§§ 265.221 (a). 255.254, and 265.301
EPA has used the term "area.- rath-
than the term "waste management area"
used in the statute. EPA believes *
Congress intended the term "waste
management area" to refer to the *rea
identified in the original or amended
Part A. The term "waste management ;
area" as used in EPA regulations has a
precise meaning: it designates the area
on which waste will be placed during
the active life of a regulated unit. See 40
CFR 284.95(b). Became "regulated unit"
is a term of art under the-ground-water
monitoring and response program, the
use of the term "waste management
area" will not always be appropriate in
the context of the provision dealing with
double-liner requirements. It is
reasonable to assume that Congress, in
using the term, intended to refer to the
area designated in-the Part A permit
application, not "waste management
area" as the term is used in § 254.95(b).
•A "replacement" waste pile or surface
impoundment unit is a unit that is taken
out of service and emptied by removing
afl or substantially all waste from it The
unit must be brought into compliance
with the minimum technological
requirements before it can be reused
See S. Rep. No. 284. 98th Cong., 1st Sess
24 (1983).
In codifying sections 3004(o)(i)(A)
301S, EPA had to determine what the
terms "new" and "existing" should
mean in this context. The statutory
scheme, the legislative history, and the
existing regulatory system support the
conclusion that the terms "new" and
"existing" must have different meanings
for the purposes of interim status
*5J 8nd °f pennittinS
The language of section 3015, and the
relationship of this provision to section
3004(0). dictate that the applicability of
the minimum technological requirements
to interim status units be determined
with reference to the date nt ana«**Mn_»
. uentA *.• . uaie °' enactment
of HSWA. November 8,1984. For
•The definition, of "new facility" and "axis*
eilitv" set out in EPA1, current - - '
ta* uner«0<"« KW.
Interpreted &• phrua -permit application
antamad oader aeoion 3005" to mean the
to mean the Part A
PFHi . »~V» ,A rA ' cumm "gul^'one at 40
CFH I 280.10 (October 21.1378 for "new" facilities.
and November IB. 1860 for "existing" faciulia.^
cannot be u.ed for the new regulations, because ma
apphcable date, do not relate to the purposes of the
D»er amendment, in HSWA.
New section 3004
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Federal Register
135 ^ Monday. Jutv 15. 3985 / Rules and Reflations
purposes of section 3015. • newanit. Rep. No. 284, 88th Cong., 1st Sess. 24
replacement of an muting wft. oT (1983). The provision acts to give owners
lateral: experts**, of an easting uortfe and operators the option of either
defined as aunit, replacement or lateral—dosing new anits or bringing the units
expansion that firrt receives waste after Into compliance wfth the double finer
and teachate collection requirements.
November 8,1934. Sach a nnft or
expansion must, comply with the • :
miniinaut technological requirements
with respect to waste received
beginning May 8,1965.* —
This interpretation of section 3015
tracks the unambigaoBs legists tive
' history to* this provision. The legislative
history define* new units, replacements,
and lateral expansion* for the purposes
of section 3015 as those units or lateral
•expansions that first receive waste after
the date of enactment of HSWA
(November 8,1984). The legislative .
history specifies that any sach nit or
expansion must comply with the
minimnm technological requirements if
it continue* to receive hazardous waste
six month* after enactment (May 1
1985). See S. Rep. No. 284,38th Cons,
1st Sess. 24 (1963).
Thus, any new unit replacement, or
lateral expansion of an existing unit that
first receives waste after November 8,
1984 is subject to the new requirements.
//such a unk is still receiving waste on
May 8,1985, the minimum technological
requirements must be in place on that
date. In effect the statute allow* such a
unit or- lateral expansion a six-month
period from the date of enactment of
HSWA to come into compliance with '
the new standards.
Moreover, the entire unit or lateral
expansion is subject to the new
standards if the unit continues- to receive
waste after May 8,I98S. This means that
If waste haa been placed in a new unit
or lateral expansion prior to May 8,
198S. the owner or operator must still
bring the entire unit into compliance
with the new liner and leachate
collection standards in order to continue
• using the unit after May 8.1985. The
language and legislative history of
section 3015 both, require that "new
units" have the required Boers and
leachate collection systems in order to
receive waste after May 8,198S. See S,
•The appftabany prmri afon for fnftrtm *t*ta*
bcHiUn tn At niu fix waale pita, tandflfla, tod
aerfac* jaapmmrtraenu, AJIhongh tecnm JCUS «•*!*
separately with mitt pile* (tectioi 3O1S<«4) and
with .uifac* Impoundment* and landfill* (itctiou
3O15(b)). the two aairiim* o*e identic*.? braxmn:
bo* *ns(a; and JClSfb) ™*ar to arw wo**,
teplacemenu and lateral expaniion* of cxiiling
unit*.
Section 301S(a) differ* from (ecffoa XnSTb) In that
the technical requirement* (mooted oa watte pile*
(a Magic-liner lyttea) an not the tame ai (fie
technical requirement! Impoaed' oa (amffiHi and
jurface impoundmenta (a double liner tyttcm).
The«e technical reqm'remmu are further explained
In Section* b. and d. befow.
Under section 3015, then, several
options are available for a new anft or
lateral expansion.* . •
(IJ tf the unit continues to operate on
May 8,1985. an owner or operator who
wishes to connirae using the whofe writ
must Kne the entire anit a* accordance
with the new requirements, ff the unit
has received waste between November
8. 1984, and May 8.1985. the owner or
operator will have to retrofit
(2) An owner or operator-may be aHe
to restructure a unit that has received-
waste between Novembers. 1984. and
May 8.1985, by creating a barrier
betweeartbe area that contains waste
and anylrapty area (e.g.. a berm within
a landfill trench]. The empty area would
then constitute a new unit which can
receive .waste after May 8.1985. if it
complies with the new statutory
requirements. To avoid retrofitting in
this sitnation. the owner or operator
would have to cease placing waste into
the portion of the old unit mat had
received waste between Novembers.
1984. and May 8,1985.
(3) If a new unit or a replacement or
lateral expansion of an existing unit
operating under interim status stops
receiving hazardous waste before May
8.1985, the anit need not comply with
the minimum technological
requirements, to other words, section
3015 does not impose any new *
requirements on an interim status nnft or
. lateral expansion that first receives •
waste after November 8.1984. but
ceases receiving'waste before May 8,
1985. '
The above analysis suggests that if a
unit had received waste prior to the date
of enactment of HSWA. it would
automancaBy be exempt from the
mirrirmnn technological requirements.
However, the legislative history
accompanying section 3015 indicates
that in addition to having already
received waste by the date of
enactment, a unit must also he
"operational" by that date in order to be
exempt from the new requirements. See
S. Rep. No. 284.98th Cong., 1st Sess. 24
(1983). EPA believes that in order to be
"operationar as of November 8.1984. a
unrt must have been constructed to
comply with all Federal State and local
requirements, including licenses and
permits, fa effect prior to the enactment
of HSWA. so that as of November 8
there was no legal impediment to the
operation of.the unit. EPA believes that
Congress woutd not have viewed a anit
as being operational unless ft was
authorized to receive waste and had the •
legal right ta operate.
If. for some reason, the entire unit wa»
not operational on November a [for
example, a liner or leachate collection
system required by a State permit was
not in place), only the part of the unit
which was ready to receive wnste ia
accordance with existing requirements
in effect on November & 1984. will be
exempt from the new requirements. EPA
believes that this is the only area that
can qualify as an "existing Kirt" nnder
sectiew 3004{o> given this legislative
history. An owner or operator who has
installed Knew or Feachate coflectren
systems which exceed the applicable
Federal. State or local requirements in
effect on November 8.1384. need not
have completed such installation by
November 8 in order for the unit to be
txemp< from the new double liner
provisions (as long as the applicable
legal requirements have already been
complied with). It saould be emphasized
that in order to be exempted from the
new minimum technology requirements.
the unit must satisfy both criteria
enumerated in the legislative history of
the bill from which this provision was
drawn: the unit must already have
begun receiving waste by th« date of
enactment of HSWA. and it must have
been fully operational by that date.
Section 3fllS does not expressly
identify the type of waste a unit must
contain in order-to qualify as an existing
unit. Based on the purposes of HSWA
and oa current regulatory practice, a
unit should qualify as an existing unit if,
it has received hazardous wastes or
solid wastes (as defined in 40 CFR 261.2J
or both before November 8,1964. This
characterization is appropriate for the
purposes of HSWA because it exempts
from the new requirements those units
for which retrofitting woald most Ekfily
be impracticable or dangeroas.
Retrofitting may be burdensome not
only for wastes identified or listed as
hazardous, but also for many non-
hazardous solid wastes as wefl. This-
rationale is also consistent with the
provision in current regulations
exempting from the single liner
requirements those units for which
retrofitting would be impracticable or
burdensome. See 47 FR 32290.32315.
As noted above, while section 3015
defines the applicability of the minimum
technological requirements to interim
status units, section 3004(o)(lHA)
applies the requirement* to permitted
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Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules fln. a.............
landfills and surface impoundments.' In
the context of the permit programTnew
facilities, new units, and replacements
or lateral expansions of existing units ~~
refer to those units or lateral expansions
that first receive waste after the date of
permit issuance. Such facilities, units.
replacements, or lateral expansions
must comply with the minimum
technological requirementsjinder '
section 3004(o)(l)(A). .
Today's regulations interpret section
3004(o)(l)(A) to apply to all facilities
that receive a permit after the date of
enactment of HSWA. The language of
section 3004(o)(l)(A) could be read to
impose the minimum technological
requirements only on those facilities for
which a Part B application is received
after the date of enactment7 Such a
limitation, however, would be
inconsistent with the new standards
established in section 3015. requiring
interim status units that first receive
waste after the enactment of HSWA to
comply with the minimum technological
requirements of section 3004(o). If
applied literally, the statutory language
could be read to require that a facility
comply with minimum technological
requirements during interim status but
be relieved from these same
requirements after permitting if the
permit application was received prior to
November 8.1984.
For example, an interim status landfill
for which a Part B application was
submitted prior to November 8.1984
would still be subject to new section
3015 during interim status. (The timing
of the submission of the Part B
application does not affect the
applicability of the minimum
technological requirements during
Interim status, because section 3015 -
applies to all new interim status units
and expansions.) If several trenches
were planned at the landfill, any new
interim status trench that began
receiving waste after November 8.1984
and continued to receive waste after
May 8.1985, would have to comply with
the new double liner requirements. After
the facility received iU permit it would
be subject to the requirements of section
3004(o). Applied literally, the language
of section 3004{o) could exempt from the
, «pp!Ie« only to permitted,
landfill* ajid turfict impoundment! and doe* not
bapott my ntw requirement* on permitted wane
pile*. All permitted wait* pile* will continue to be
iub|ect to the current regulation, f 28*231(a)(l).
which require* the portion* or uniu no* covered •
with waiu at permit lituanc* to have a aingle liner
and leachaU collection lyitem. .
'Section M04M1XA) refer, to facilities "for
which in application for a final determination
ret««lnj iuuaooe of* permit under tectioa
30M
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Federal
double liners and leachate caB&eBoaa
systems in good faith during interim
status cannot be required to retrod at—
the time of first permitting unless the
liner is leaking. Any landfill or surface
impoundment unit that received waste
and was operational before November 8,
1984. is exempt from the statutory
minimum technological requirements but
must comply with the Agency's current
single liner regulations at permitting.
b. Technical requirements: Linen and
leachate collection systems. New
section 3004(oJ(lJ(AJ(fJ adds * provision
requiring new units and lateral
expansions and replacements of existing
landfills and surface impoundments that
receive permits after November 8.1984,
to have two or more liners. Surface
impoundments must have a teachate
collection system between the liners,
• while landfills must have a leachate
collection system above and between
the liners. These new requirements are
codified in § 5 2M.2H(c} (setting out
design and operating requirements, for
permitted tiufave impoundments) and
284.301(c) (setting out design and
operating reqmrements for permitted
landfills). Every landfill or surface
'impoundment subject to the new law
must meet the stahrtorily mandated
minimum technological requirements for
two or more liners and a leachate
collection system above and between
the liners {for landfills) and two or more
liners with a leachate collection system
between the liners (for surface
impoimdmants), oniess the conditions
for a statutory variance are met (See
Section e. below for a dJscasskm of
variances.)
The Agency interprets section
. 3004(oHl)(AKi) to require that the liner
and the leachate collection system
between the oners **+"nrj to eny are* of
the unit that is in contact with, the
waste. This interpretation of be
statutory requirement is consistent with
the Agency's current regulatory practice
regarding the design of Hnera and
leachate collection systems. Congress
intended that the Agency's existing.
design standard* provide the basis !ae
interpreting the new ouBumua
technological requirements. See S. Ben.
No. 284, 98th Cong, 1st Sets. 27 (19831;
H.R. Rep. No. 198.98th Cong.. 1st Sesc.
part 1, at 83 (1983). In addition, the
legislative history suggests that the
leachata fjtlUx^jqg system fVmM act
both as a lemcbats collection and
removal system and a teak detection
system. These purposes can be achieved
only if the finecs and the ieacaate
collection system between the been -
cover ell surfaces at the- sarif that are te
.contact wfth the wastes. SeeS. Rep. No.
No.' 135'7. Monday. July 15. 1985 / Rules and Regulations 28709
284. 98th Cong, 1st Seas. 26 (1383); RR.
Rep. No. 198. 98th Cons, 1st «t<"u, oart l_
-~alfi2. 63 (1983).™"
Sections 2S4J21CcJ and 264J01(c.)
provide a broad narrative standard for
the new linei requirement: the
statutorily mandated double liners and
leachate correction systems ftfran
"protect human health and the
environment.'* This broad standard is
drawn directly from the statutory
language In section .3004(aJ. While
section 3004(o](lJ does not specifically
set forth a standard, that section is
ultimately designed to Implement the
mandate of section 300SlaJ.»It must be
assumed that Congress wanted EPA to
issue double finer standards "as
necessary to protect human health and
the environment* when enacting section
3004(0)..,
Undeletion smsfbftl); landfills and
surface impoundments operating under
interim states mast comply with the
minimum technological requirements set
out fa sjBctibn 3004(o). To implement this
statutory requirement today's rote
requires interim statos landfill and
surface impoundment units to comply
with the liner and leachate collection
requirements set out m the newPsrt 264
regulations described shore.
Specifically, new f 285.22If.aJ requires
interim status surface impoundments to
install liners and leachate collection
systems in compliance with { 264.22l(e).
Similarly, new { 26S.301(aJ requires
interim status landfills to install liners
and lescfaate collection systems in
compliance with $ 284.3Ol(c).
Section 3004(oH5KA) requires EPA to
promulgate regulations or issue
guidfince documents implementing the
requirements of section 3004{o)(l) within •
two yean after the enactment of
HSYVA. Until the affective date of rech
regulations or guidance documents.
•action 3004(oH5)(B) provides that the
requirement for the installation of two
or more oners may be satisfied by the
installation of a top tine* designed,
operated, and constructed of materials
to prevent the migration of any
constituent into such liner daring the
period the facility remains in operation
(including any post-closure monitoring
period) and a lower hner designed,
operated and constructed to prevent the
migration of eny constituent through the
lower hner during rwb period. The
statute further provides that a lower
liner shall be deemed to satisfy this
requirement if it is constructed of at
least a three-foot thick layer of
recoaapacied clay or other netor«l
•Steams XMto) begin* wflfc *• pfitut "ft«
refutation* under lubMctiea f»J at ttu* «*rti~i
material with a permeability of no more
than 1x10"' centimeter per second. This.
interim liner standard is codified in
§ § 264^21(cJ and 2S4J01(c). The statute
makes it dear that the standard set out
in section 3004(o)(5)(B} will be
superseded by EPA regulations or
guidance document* implementing the
statutory requirement contained in
section 3004(oJ(l}. The Congres* viewed
this interim design as a measure
intended to fill the gap before EPA
acted. See 130 Cong. Rec. S9132 (daily
ed. July 25,1984).
The statute does not mandate the use
of the liner standard set out in section
3004(o)(5KB) during the period prior-to
the issuance of implementing regulations
or guidance; rather, the statute provides
that the requirement for two or more
liners "may" be satisfied by following
• section 30mo]{5)(B). The Agency
believes that, during this interim period,
an owner or operator who wishes to
install a liner system other than the. ooe
described in section 3004(o)(5)(B) must
meet the broad narrative standard of
protection of human health, and the
environment.
c. Requirements under the good faith '
provision. As noted in Section a. above.
section 301S(b)(3) provides that if the
owner or operator has installed liners
and a leachate cofleclion system
pursuant to the requirements of section
3015 and in good faith compliance with "
regulations and guidance documents
governing liners and leachate collection
systems, the Administrator «han not
require the owner or operator to install a
different liner or leachate collection
system for the unit when issuing the first
permit, except that a new liner may be
required if the Administrator has reason
to believe that a liner installed during
interim status is leaking.
The intent of this provision was-to
provide that anyone who followed EPA
guidanca documents would be presumed
to have acted in good faith. Retrofitting
would be required in cases involving
fraud or gross noncompliance. including
failure to install a liner or leachate
collection system, installation of a Finer
or leachate collection system not in
compliance with EPA guidance
documents, or inadequate
documentation of any major design
feature or construction activity. In
addition, failure to submit the required
notice prior to receipt of waste (see
Section g. below} would result in the
elimination of the "good faith"
protections of this provision. See S. Rep.
No. 284. 98th Cong,, 1st Sess. 24-25
(1983).
In order to determine whether a liner
system has been installed in good faith.
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Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and' Regulations
the Agency will need to have
information showing that all appropriate
units have been lined in accordance
with EPA regulations and guidance —-
documents. The owner or operator
should provide the Agency with '
sufficient Information to allow the
Agency to determine what areas at any '
interim status facility are new unit*, or
replacements or lateral expansions of
existing units, as of November 8,1984.
EPA intends to issue guidance
documents on the installation of liners •
and leachate collection systems and on
, recordkeeping. EPA anticipates that the
owner or operator will be keeping
information showing that he complied
with EPA guidance in the facility
operating records described in § 285.73.
The Agency'! upcoming liner guidance
will also discuss a construction quality
assurance (CQA) plan. Such a plan
would document the liner design.
• materials, and installation procedures.
The Agency will review the operating
records and other documents at
permitting to assist in its determination
of good faith.
d. Waste piles. As discussed in
Section a. above, section 3004(o). which
establishes new double liner
requirements for permitted landfills and
surface impoundments, does not apply
to waste piles. The existing
requirements for a single liner and
leachate collection system, as set out in
§ 264.251. remain in effect for permitted
waste piles.
HSWA does impose new
requirements on interim status waste
piles. Section 301S(a) subjects the owner
or operator of a waste pile operating
under interim status to the requirements
for liners and leachate collection
systems or equivalent protection, as set
out in EPA regulations or as revised
under section 3004(o) (relating to
minimum technological requirements)
Essentially, the language in section
3015{a) provides that interim status
waste piles must comply either with
standards established under section
3004(o). or with standards in current
regulations. See S. Rep. No. 284,88th
Cong.. 1st Sees. 24 (1983). EPA has not
issued new standards for waste piles
• under the authority of section 3004(o).
Therefore, section 301S(a) requires
Interim status waste piles to comply
with requirements for a single liner and
leachate collection system, as set out in
existing { 284.251(a) (dealing with
permitting standards for waste piles).- '
Today's rule adds new J 285.254 to
codify that provision.
The reference in section 3015(a) to
"equivalent protection" is intended to
authorize waste piles to use the
variances to the liner and leachate
collection system requirements in
current regulations. See S. Rep. No 284
-88th-Cong., 1st Sess. 25 (1983). EPA
construes this provision to mean that
owners and operators of interim status
waste piles are eligible for the
exemptions from the single liner
requirement set out in $ 264.250(c)
(exempting from regulation under
! 284.251 any waste pile that is inside or
under a structure) and § 264.25l(b) '
(providing a variance if the owner or
operator demonstrates that alternate
design and operating practices, together
with location characteristics, will
^prevent the migration of any hazardous
constitutents into the ground water or
surface water at any future time).
e. Variances. Section 3004(o](2).
codified ih §| 284.221(d) and 264.301(d).
allaws language to mean
• variance from the liner and leachate collection
requirementa In W04(o)(lMA).
purposes of section 3005(j){2) as ei»l
synthetic liner or a clay liner, as I
at closure the clay liner, waste
materials, and contaminated soils are
removed or decontaminated to the
extent practicable. Today's regulation?
incorporate this definition of "liner" into
the monofill variance for surface
impoundments. EPA believes that it is
appropriate to incorporate this f
definition into the monofill variance for
surface impoundments because section
3005(j) itself deals with requirements For
• surface impoundments and because
giving a removal option to surface
impoundments is consistent with EPA's
current regulations. The definition of
"liner" in section 3005(j](i2)[A) has not
been included in the variance for
landfills because existing EPA
regulations do not allow such a removal
option for landfills. See 40 CFR 264 3*10
265.310."Nothing in the language or
legislative history'of section 3004(o)(3)
suggests that Congress, in establishing
the exemption for monofills. intended to
alter the closure requirements of the
.existing regulations by giving landfills a
closure option which the regulations
currently prohibit
Second, the statute requires that the
monofill be in compliance with generally
applicable ground-water monitoring
requirements for facilities with RCRA
-permits. The requirements for facilit
' with RCRA permits may be found ir
Subpart F of Part 264. Finally, the
monofill must be more than one-fourth
mile from an underground source of
drinking water, as defined in the Safe
Drinking Water Act regulations..
Alternatively, the monofill may meet
the requirements of section 3004(j](4)
which requires the owner or operator to
demonstrate that the monofill is located.
designed, and operated to assure no
migration of any hazardous constituent
into ground water or surface water at
any future time.
Under section 3004(o)(6). which is
codjfied to new § 284.301(k). any permit
for a landfill Ipcated within the Stateof
Alabama must require the installation of
two or more liners and a leachate
collection system above and between
the liners, notwithstanding any other
f™^8!?" of RCRA< The mtent Qf »ec«°n
3004{o)(6) is to provide that Alabama
" Carrent regulation* (Dow the owner or operator
of a aurfaee Impoundment (tw 40 CFR 284.228.
285.228) or waate pUe (iff 40 <3H 284.258, 285.258)
to remove or decontaminate all waate residue* and
other contaminated malarial* at doiura. The
regulation* eitabliih (pacific doiura and poet-
cloaure requirement* for facilities which remove
theie material* al cloeure. In contrail, the land/ill
regulation* eitablith cloaure requiremenl* only for
facilitiea that cloec with waita* Ir place.
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Federal Register / Vol. .,50. No. 135>.. Monday. July 15. 1985 / Ru!e3 and Regulations
28711
landfills are not eligible for the
variances set out in section 3CX»f»). See
RR. Rep. No. 1133.98th Cong, 2d Seas.
90 (1984); 129 Cong. Rec. S12819 (daily -
ed. Oct 5,1983) (statement of Sen.
Chafee). - ••-.......... .
Section 3015 subjects interim status
facilities to the minimiin^ technological
requirements of section 3004(o) but does
not make clear whether-interim status •
facilities are eligibile for thevariances
from the liners and leaehate collection
system in sections 3004(o)(2) and (o){3).
The Agency has interpreted section 3015
to allow interim status units to apply for
these variances. For interim status
surface impoundment!, 1285.221 allows
•• the owner or operator to obtain the
variances provided in § 264-221{b) (for
alternate designs) and i 284.221(e) (for
monofills). Similarily. f 285.301 makes
the variances in f 284.301(b) (for' •
alternate designs) and 1284.301(h) (for
monofills) available to the owner or
operator of a landfill operating under
interim status.
The Agency has construed the statute
In this way because a contrary approach
could subject interim status facilities to
technological requirements which are
potentially more stringent than those
applicable to permitted facilities. As
discussed earlier, such a result is
inconsistent with the general structure
of the Subtitle C regulations.
f. Ground-water monitoring. Section
. «004(o)(lKA)(ii) requires new permitted
landfills and surface impoundments,
new units, and replacements and lateral
expansions of existing units to have '
ground-water monitoring. The Agency
has construed this provision to refer to
the ground-water monitoring
requirements of Subpart F of Fart 284 of
the regulations. . .
Section 3015 requires interim status
. units to comply with the minimum
technological requirements for permitted
units as set out in section 3004(o). This
reference to section 3004(o] includes the
ground-water monitoring requirement
Section 3015 is ambiguous, however/
because it does not specify which
ground-water monitoring requirements
apply to interim status units. On the one
. hand the reference in section 3015 to the
. ground-water monitoring requirements
, set out in section 3004(o) could be. . .
construed to require interim status units
• to comply with the same ground-water
monitoring requirements which apply to
permitted units.
On this reading. Interim status units
would be subject to the requirements of
Subpart F of Part 284 of the regulations.
Alternatively, the provision could be
. construed merely to require ground-
. water monitoring for all interim status
units as specified in existing Part 285
regulations.
EPA has interpreted the ground-water
~-BTnnitoring requirement for interim
status units to refer to existing Part 285
requirements. Congress' intent in
requiring ground-water monitoring in
. section 3004(o) was to eliminate the
provision in current regulations allowing
double liners and ground-water
monitoring to be alternatives. See S.
Rep. No. 284. 98th Cong, 1st Seas. 28
(1983); H. R. Rep. No. 198. 98th Cong., 1st
Sess. part 1, at 83 (1983). There is no
indication that Congress sought to
change the existing ground-water
monitoring requirements for interim
status facilities with this provision..
Therefore, interim status surface -•'
impoundment and landfill units,
replacements, and expansions will'
continue^ to be subject to the ground-
water monitoring requirements of
Subpart F of Part 265. •
g. Notification. Section 3015(b)(2), •
codified in today's rule at 5 5 285.221(e}
and 265J01(e). calls for the owner or
operator of an interim status landfill or
surface impoundment unit subject to the
minimum technological requirements of
section 3015(b)(l) to notify the
Administrator at least sixty days prior
to receiving waste at that unit. Section
3015(b)(l) applies to units that first
receive waste after November 8,1984.
Owners or operators of these units must
" comply with the notice requirement if
such units are still receiving waste on
May 8,1985.
Section 30l5(b)(2) also provides that
within six months of receipt of notice,
EPA (or an authorized State) shall
require the owner or operator to file a
Part B application."EPA does not read
this provision to require a formal
request for a Part B permit application
by EPA or the State as now provided for
in EPA's permitting regulations. It is
clear that the Congress wanted the duty
to send in an application to become
automatic once the sixty-day
notification has been given. Therefore,
EPA is simply incorporating the duty to
submit an application directly into the
regulations.11 .
"Th« itatula HIM the phraaa "application for •
flaa) determination regarding iaauaaca of a permit."
which EPA bu cotutiutd to mean • Put B
application ud applicable po*t-cloiurt permit
application.
"Section 3005(e) provide* that interim itatua for
owner* and opcnton of land dltpoaaJ facilitla* will
terminate on November 4. IMS. onleu the owner or
operator lubmiU • Put B application before that
date. (See Section Ci of thi« preamble.) Thua. moat
fatilltfa* will have tubm'.ted a Part B by November
S. 1S8S, If not before that time. EPA thua conatruea
aeetion 3O15(bH2) to require an owner or operator to
aubmit a Part B six montha after the receipt of
notic* if the Part Bhaa not prevkmly been
•ubmirtad. , .
3. Corrective Action
a. Redefinition of Regulated Unit. The
Act introduces a new subsection (i) lo '
section 3005 which provides that the
ground-water monitoring, unsaturated
zone monitoring and corrective action
requirements applicable to new land
disposal units (i.e.. those requirements .
set forth in Part 284) are applicable to
landfills, surface impoundments, waste
piles or land treatment units that
received hazardous waste after July 28
1982. The legislative histories of the
House and Senate bills from which this
provision has been drawn reveal that
the intent of the provision is to override
.the existing EPA regulations which
subject such units to ground-water
monitoring and corrective action
requirements at the time of permitting
only if they receive hazardous waste
after January 28,1963. S. Rep. No. 284.
98th Cong., 1st Sess. 25-28 (1983); RR.
Rep. No. 198.98th Cong., 1st Seas., Part
1,44-5 (1983); 130 Cong. Rec. S13818
(daily edL Oct 5,1984). -
Accordingly, today's rule amends
{ 284.90(a) to provide that the general
ground-water monitoring and corrective
action requirements of Subpart F of Part
• 284 apply to landfills, surface
Impoundments, waste piles and land
treatment units that receive hazardous
waste after July 28,1982. Since the
unsaturated zone monitoring
requirements of § 284.278 were never
subject to the January 28.1983 cut-off,
this section has not been amended.
Active land treatment units continue to
be subject to unsaturated zone
monitoring requirements regardless of
the date on which hazardous wastes
were received at such units.
b. Cleanup of Continuing Releases.
Section 3004 of RCRA is amended by
adding paragraph (u) governing releases
at facilities seeking a permit under
Subtitle C This new subsection provides
that any permit issued after November
8,1984. must require corrective action
for all releases of hazardous waste or
constituents from any solid waste
management unit regardless of when
waste was placed at such unit. It further
requires financial assurance for the
completion of such corrective action.
The provision applies to any solid waste
management unit including inactive
units, at any treatment storage, or -
disposal facility seeking a permit under
section 3005(c) of RCRA. 130 Cong. Rec.
H11129 (daily ed. October 3.1984).
The Agency's jurisdiction under this
new provision is defined by a number of
key terms. First as noted above, this
new corrective action authority applies
to facilities seeking a permit under
-------
Subtitle C Congress is silent as to
whether the permits referred ftr» this
section include post-clo*ure permits as
well as operating permits. EPA sees nt»
. legal basis for departing from a literal
reading of the statute, which appears to
encompass any Section 3005(c) permit
within its mandate. Accordingly, any
salid waste management unit located at
a [acuity required to obtain a post-
dosurfi permit £Le, units that close after
January 2S. 1983 (5 270.l(c)) or an
operating permit wfll be subject to
corrective action for continuing releases
Section 3004(u) does not appear to
contemplate that its termi apply to solid
waste management units located at
facilities that are not required by
regulation to obtain a Subtitle C permit.
Accordingly, solid waste management
units located at interim status facilities'
tnat closed before January 26.1983. will
not be subject to section 3004(u) since
these facilities are not required to obtain
permits under the existing regulations.
Similarly, regulated units (now defined
as any-waste pile, landfill, surface
impoundment, or tend -treatment unit
that received -waste after July 26.1982]
ocated at facilities -which closed before
January 26.1983. are not required to
obtain post-closure permits."Releases
from such nnits may be addressed by
the interim status corrective action
orders authorized by section 300B(h) of
1
Ii->r.«— •-"• f*j**; aeuuuu l.JHTra.l
/EPA must assume mat in using the
tlrm "facility." Congress intended, in
fie absence of contrary statutory
language or legislative hwtory. to adopt
Ihe definition of this term traditionally
Jfemployed fay the Agency. The preamble
/to the July 28.1982. regulation elaborates
I on the definition of this term.
f Specifically, me preamble notes that
(When using the term facility'. EPA is
referring to the broadest extent of EPA's
area jurisdiction under Section 3004 of
RCRA. . (meaning] the entire site that
is under the control of the owns* or
operator engaged in hazardous waste
management" 47 PR-32268-9 fiulv ss
1982). The legislative histoVofAe
conference bhU makes it clear that
Congress was aware of the Agency's
?fvSrl!!t?n'Indi'CUS!l£ngnews8caon •
3004(v) (see subsection e. infra], the
• Congress noted EPA's position limiting
fhe scope of its remedial authorities to
Ihe property of the polluting facility. 130
ino**\~ V ,"":" i"auy «a. OcL 3.
1984). Accordingly, for purposes of
section 3004(aUhe term "facility" is not
•flouted to those portions of the owner's
property at which units for the
management of solid or hazardous
waste are located, but rather extends to
all contiguous, property under the owner
or operator'.* .control
The extent to which the above
interpretation applies to Federal
facilities raises legal and policy issues
that the agency has not yet resolved. To
address these issues, it is necessary to
examine the objectives of Section
3004(u). the purposes of HSWA, and the
relationship of RCRA to other Federal
laws. Permit applications for Federal
facilities will continue to be processed
out recognizing that final Federal facility
permits may not be issued where these
unresofred issues exist EPA will make
its best efforts to reach a resolution m
the next eottays.
The Agency's cleanup authority onder
section_$004{u) extends to all "solid
waste management units" at a facility
seeking a permit under section 300S(c).
• ?..tl:rm, '^alid waste management
unit includes any unit at the facility
from which hazardous constituents
nright migrate, irrespective of whether
the units were intended for the
management of solid and/or hazardous
wastes." HJL Rep. No. 198. 98th Cong..
1st Sess.. Part 1.80 fi983J. It is generally
not intended to encompass areas where
wastes were not placed in such units.
The legislative history notes that "[tlhe
term 'unit' is intended to be defined as
m the preamble (sicj to EPA regulations
published on July 28,1982 and as further
defined by EPA in the future." Id.
Consistent with that concept. EPA
believes that the term ^inif at least
encompasses the units identified in that
preamble, which refers to "containers.
Janks. surface impoundments, waste
T*n«i. land treatment units, landfills.
wells." 47 FR 32281 (July 2S. 1982).
fa understanding the scope of the term
solid waste management unit, several
points need to be made. First, units '
falling into the above categories are
subject to section 3004(u)- regardien of
their purposes. EPA has m the past
considered developing special standards
for certain types of units and has
temporarily exempted classes of units
from the substantive standards
applicable generally to hazardous waste
management units. For example, there
•re soeh exemptions far recycling wiits
(I 261.6) and for tanks qualifying as
'wastewater treatment units"
(! 264.l(g){8) and { 26SJ(cJ(lO)). Suca
units are solid waste management units
under RCRA and thus are subject'
Section 3004(u).
EPA expects that implementalic
corrective action requirements for
wastewater treatment tanks would be
limited to submission of descriptive
information with the permit application
and a preliminary assessment by EPA
•that did not indude sampling and
analysis. EPA will impose additional *
requirements where this first phase
turns up evidence of releases of
hazardous waste or constituents from
the tanks. EPA estimates that the costs
per facility for the initial phase would •
I!™*? anannualized cost of less than
WiOOO. ta addition, it may make sense.
cased on the same considerations that
motivated EPA's earlier examination of
special standards for these units, to
develop remedial investigation
requirements implementing section
3004(u) for these units that differ from
requirements applicable to other solid
waste management units.
Second, in considering injection wells
as units, it should be recognized that for
M Class I injection well" (as that term is
used in the Underground Injection
Control flHC) regulations under the Safe
Drinking Water Act), the injection gone
into which the well discharges is
essentially part of the waste
management unit Thns the
emplacement of liquids into an injec'
zone through a Class I well does no:
constitute a release from a solid was
, management unit but rather constitutes
migration within the solid waste
management unit
Third, the legislative history indicates
that the term "*olid waste management
unit is intended to limit EPA's
jurisdiction under section 3004(u) to
discernible units. One of the questions
rawed by thw definition is whether an
area on which a spill occurs is intended
io be viewed as a solid waste
management unit Clearly, a spill of
hazardous waste or hazardous
constituents from a discernible unit
wrould constitute a "release-Jrom a
solid waste management unit under the
definition of this term adopted by the
Agency (see below). Similarly, any
subsequent contamination resulting
from this spU! (e,g. subsequent releases
to air. ground water or surface water)
would also be considered a release from
the original solid waste management
unit and would thus be subject to EPA's
jurisdiction. .
EPA does not however, believe that
section 3004(u) applies to spills that
cannot be linked to solid waste
management units. For example, a spill
from a truck traveling through s facility
would not constitute a release from a
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Federal Register / Vol.^No. 135 / Monday. July 15. 1935 / Rules and Regulation
28713
solid waste management unit. It should
be recognized, however, that such a
spill, if it occurs after November 19. • ~
1980. is nonetheless actionable because
it constitutes illegal disposal (i.e.,
disposal that does not occur in an
authorized unit).
' - The Agency's authority under section
3004(u) encompasses "an releases of
hazardous waste or constituents" from
any solid waste management unit •
Section 3004{u) contemplates that EPA
will issue standards addressing
corrective action for such releases. Once
EPA establishes such standards they
will guide the Agency's decisions about
appropriate corrective action. Section
3004{u) also indicates, however, that
permits issued after November 8,1984.
must implement the corrective action
requirement. Therefore, until EPA
establishes specific standards under
section 3004(u) it ia reasonable for EPA
to make case-by-case decisions on the
appropriate corrective action, guided by
the general regulation being codified
today.
EPA believes that this language
contemplates coverage of any release of
hazardous constituents from a solid
waste management unit. The term
"hazardous constituent" as used in this
section is intended to mean those
constituents listed in Appendix VIII to
40 CFR Part 261 [H.R. Rep. No. 198. 98th
Cong., 1st Sess.. part 1. 6O-61 (1983)] and
includes hazardous constituents
released from solid waste and •
hazardous constituents that are reaction
byproducts. S. Rep. No. 98-284.98th
Cong., 1st Sess. 32 (1983).
While the statute does not explicitly
define the term "release." EPA believes
that the purposes behind the provision
indicate that the term should be at least
as broad as the definition of release
under CERCLA. See CERCLA { 101(22)
42 U.S.C. 9601. The legislative history of
Section 3004(u) clearly indicates that
one of its purposes was to prevent
RCRA sites from becoming future
burdens on the Supertund program. H.R.
Rep. No. 198,98th Cong, 1st slss, part
1.61 (1983). The Congress has, however.
placed constraints on the scope of
Section 3004(u) (i.e.. "solid waste
management unit", "hazardous
constituents" discussed above) that may
result in cleanups at RCRA facilities
that do not have the same breadth as
CERCLA cleanups. Within these
constraints, it is nonetheless logical to
use a definition of release that is at least
as broad as the definition under
CERCLA. Moreover, such an integration
with the CERCLA definition of release is
consistent with the spirit of section 1008
of RCRA. which calls for integration of
RCRA provisions with those of other
statutes administered by EPA.
Section 1006 also provides, however.
that EPA's integration of RCRA with
other statutes should be accomplished
"only to the extent that it can be done in
a manner consistent with the goals and
policies expressed in [RCRA] and in the
other acts." Thus certain elements of the
CERCLA definition are not in EPA's
view, part of the RCRA definition of
release. Certain CERCLA exemptions
are simply inapplicable, such as those
for emissions from certain engine
exhausts and for fertilizer applications.
Other exemptions are inappropriate.
The CERCLA exemption for releases
subject to the Atomic Energy Act and
the Uranium Mill Tailings Radiation
Control Act (UMTRCA) are not needed
becaus^RCRA includes a specific
statutory^scheme for how overlaps
between those statutes and RCRA are to
be addressed. See section 1004(27),
sectionrfOOe of RCRA. (Section 703 of
HSWA also specifically indicates that
nothing in the new amendments,
including section 3004(u). should be
construed to modify or amend
UMTRCA.) EPA also does not see
anything in the legislative history of
RCRA indicating ah intent to ignore
releases to the workplace at the facility.
Accordingly. EPA believes that the
term "release" under section 3004(u)
means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or
disposing into the environment The
Congress is currently considering
amendments to CERCLA that could alter
the scope of that program. If the scope of
CERCLA is altered. EPA will, consistent
with Section 1008 of RCRA. decide
whether modifications are needed in the
scope of the releases covered by Section
3004(u).
. Q is clear that Congress intended the
term "release" to encompass at least
releases to ground water. The Senate
legislative history notes that in order
"[to] assure corrective action is taken in
response to releases . . . the
Administrator will need to revise
groundwater [sic] monitoring
requirements . . . (emphasis added) S.
Rep. No. 284.98th Cong., 1st Sess. 32
(1983).
Similarly, the House legislative
history notes that the corrective action •
required for a release "must be
accomplished in the manner currently
prescribed in [1284.100]." H.R. Rep. No.
98th Cong.. 1st Sess. Part 1.60 (1983).
The requirements of 8 284.100 pertain
only to cleanup of ground water.
Accordingly, corrective action instituted
under the regulations promulgated today
must, at-a minimum, address any release
to ground water from a solid waste
1 management unit
However, there is nothing in the Act
or legislative history to suggest that
Congress explicitly intended to limit this
provision to releases to ground water.
As discussed previously, section 3004(u)
requires corrective action for all
releases of hazardous wastes or
constituents. EPA believes use of the
term "all releases" indicates Congress'
intent that section 3004(u) governs
releases to all media, including around
water.
The HSWA provides other evidence
of such an intent as well. As will be
discussed in more detail later, new
section 3008(h) authorizes EPA to issue
administrative orders requiring
corrective action at interim status
facilities as necessary to protect human
health and the environment That
authority can clearly reach media other
than ground water.1* See H.R. Rep. No.
1133,112 (1984). It is reasonable to
assume that Congress intended EPA's
powers to require cleanup at the time of
permitting to be at least as broad as its
power to do so under interim status.
Accordingly EPA believes that it is
authorized to address releases to air,
surface water, ground water, and soils
under section 3004(u).
Although the scope of section
3004(u)'s jurisdiction appears broad
given the definition of release and its
multimedia jurisdiction, the Agency haa
limited the application of this provision
by mandating corrective action only
where necessary to protect human
health and the environment. This
interpretation is consistent with the
legislative history of section 3004(u)
which provides that the "new
subsection (is) intended to assure that
appropriate corrective action is taken to
protect human health and the
environment from any past present or
future release of hazardous waste from
a permitted hazardous waste facility." S.
Rep. No. 284,98th Cong. 1st Sess.. 31
(1983).
Under this legal interpretation, the
Agency would not mandate corrective
action for all releases into the
environment For example, with respecV
to ground-water releases to the
uppermost aquifer only, the Agency
would only apply corrective action to
those releases which exceeded the 40
CFR Part 264 Subpart F Ground-Water
Protection Standards. The ground-water
'* By way of analogy It It il«o worth noting th««
t!w tea •tovirauMm- when defined ia Frdnnl
•nvlratUMnuJ aututa* bu genanlly toducUd all
media. See CERCLA 101(8) tnd FTFRA qj).
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28714 Federal Register / VoJ. 5q No. 135 / Monday. July 15. 1365 / Rules and
protection standard is defined by the
Subpart F regulations to be either-the
background concentration of the
constituent at issue or the maximum -
contaminant level for that constituent
established by the National Interim
Primary Drinking Water Regulations.
unless the owner or operator
demonstrates that an alternate
concentration limit is warranted.
It should be noted that, consistent
with Section 1006 of RCRA. EPA will
Implement Section 3004J uj in a manner
consistent with other EPA programs. For
, example, where a release from • solid
waste management unit is otherwise '
subject to regulation under Section 402
of the Clean Water Act, EPA will use
the NPDES program to address such a
discharge.
Section 3004(n) requires collective
action (or all releases of hazardous
• waste or constrtnenrs from any solid
waste management rait at a facility'
seeking a RCRA permit regardless of the
time at which such waste was placed in
such unit. This dear statutory directive
precludes a reading of the statute which
would limit an owner's or operator's
responsibilities to-waste placed in units
during his or her tennre. Accordingly.
the owner or operator of a solid waste
management unit containing only waste
placed mere by a previous owner would
be fully responsible for corrective action
for any release from such unit This
Interpretation would not, of course,
preclude such owner or operator from
bringing any action otherwise allowed
by law against the previous owner
seeking remuneration for the costs of
corrective action.
«»««»» P»UUU laauca 10 lacuines
containing solid waste management
units shall include schedules of
compliance and financial assurance for
completing any necessary corrective
action. The legislative history explains
that where insufficient information
exists at the time of permitting to specify
fa th« schedule of eompHancethe
corrective action reqmred (if any) and
the financial assurance needed to
ensure its completion, the schedule of
compliance Included In the permit may
• establish a time frame by which the
Information necessary to determine the
extent and coat of corrective action will
be obtained and financial assurance
demonstrated. 130 Cong. Rec. H11129
(daily ed. Oct 3,1984). Once the *
necessary information nas been
acquired, the perait is amended
(through the major modification process.
40 CFR 270.41(a)(2)J. to Incorporate
financial assurance and to institute tha
appropriate corrective action.
Today's rule adds a new section to
Subpart F. 5 264.101. to codify these new
standards for permitted facilities
-containing »olid~was1e management
units. New section 284.101(a) 'provides
that all section 3005(c) permits issued
after November 8,1984, shall require the
owner or operator of a treatment,
storage or disposal facility to institute
corrective action where necessary to
protect human health and the
environment whenever-EP.A determines
that there baa been a release of
hazardous waste or constituents from
any solid waste management unit
regardless of the time at which waste
•Was placed in such unit
Paragraph (b) of i 2B4.M1 oodifies the
statutory requirement that all permits
issued after November A, 1984. to
facilities containing solid waste
management units incorporate eifher a
schedule tlf compliance for completing
any necessary corrective action {for all
solid waste management units, and
except asdiscussed further in section c.
. infra, regfflated units with releases to
ground water in the uppermost aquifer)
or a schedule for gathering information
to determine the extent of corrective
action required (if any) and assurances
of financial responsibility for completing
such corrective action. Any permit
issued with a schedule of compliance
directing the owner or operator to gather"
infonnationjiecessary to determine the
extent and cost of corrective action
needed (if any) must include either ~~^
financial assurances for completing any s
corrective action deemed necessary )
t (where this can be determined at the '
time of permit issuance) or a schedule of:
compliance for obtaining the )
information necessary to determine the ^
cost of corrective action and j
demonstrating financial assurances. -•
In order to implement the provision of
new section 3004(u), the owner or
operator of any facility seeking a 3005(c)
permit to be issued after November 8,
1984, must submit with the permit
application sufficient information to
enable EPA to assess the applicability of
'section 3004(u) Jo the owner's or
operator's facility. EPA is not authorized '
to issue a permit absent a determination :
that the facility is in compliance with
the requirements of section 3004 [see I
300S(c).42US.C. 56925(c).J '
c. Relationship between sections
3004(u) and 3005(i). As noted earlier. *
new subsection fO of section 3005
provides that tha ground-water
monitoring, unsaturated zone
monitoring, and corrective action
standards applicable under section 3004
to new units will appry to -unit* receiving
waste after July 2& 1B82. The purpose of
this amendment, as explained in USP
pertinent legislative history, is to r
EPA's existing Part 264 standards l
that a regulated unit is defined as a
landfill, surface impoundment waste
pile, or land treatment unit that receives
hazardous waste after July 28.1382 '
(rather thaa after January 28.1983. as is
provided in EPA's existing regulations).
New subsection (u) of section 3004, on
the other hand, deals with a broader '
class of units: that is. all solid waste
management units that have received
solid waste (including hazardous waste)
at any time. Thus, regulated units, as
defined by 3005(i). are clearly a subset
of solid waste management units. In
assessing the effect of the Hazardous
and Solid Waste Amendments of 1384.
one of the major legal questions has
been how Congress intended to
reconcile these provisions. The
legislative history sheds some light upon
the intended relationship between these
provisions. , _
As noted above, the legislative history
of section 3005(i) suggests that the major
purpose of this provision is to ensure
that landfills, waste piles, surface
impoundments and land treatment units
that receive waste after July 26.1982. are
subject to the ground-water monitoring
and corrective action requirements
. contained ia existing Subpart F of Part
264. Subpart F deals exclusively with
releases to ground water in the
.uppermost aquifer. It provides explic
measures to be followed in detecting a
release to ground water and instituting
corrective action for any such release.
Section 3004(u). on the other hand, does
not limit corrective action to ground-
water releases. Moreover, it does not
prescribe specific measures to be taken
in detecting and correcting a release.
To the extent that section 3004(u)
could be read to impose on solid waste
management units different standards
for detection and correction of ground-
water releases than would be required
for regulated units under existing
Subpart F. it would appear to be
consistent with Congressional intent to
let the more explicit provision of section
3005(i) govern. On the other hand, to the
extent that section 3004(u) imposes
obligations that are not addressed by
section 3005(i) (such as the requirements
to correct releases to media other than
ground water and to demonstrate
financial assurance for corrective
action) there would appear to be little
basis for excluding a regulated unit .from
such obligations.
Accordingly, the Agency haa
interpreted these sections to provide
that regulated units, as newly defined bv
•action 3005(i). shall be subject to
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Federal Register / Vol^SO. No. 135 / Monday, [uly 15. 1985 f Rules and Regulations
28711
existing standards under Subgart F of The foregoing distinction* are
Part 264 in detecting and correcting any reflected in today's amendments.
release to ground water in the __ . Section 264;90{a)(l) provides that solid
uppermost aquifer. For all other ~—waste management units are subject to
releases, regulated units shall be subject the new detection, corrective action.
to the detection and •corrective action - • -
standards implemented under section
3004(i4> Similarly, the existing
exemptions from Subpart F
' requirements for gro'und.water
protection apply only to regulated unita
with releases to ground water in the
uppermost aquifer, not to cJ7 solid waste
management units.
By that same logic regulated unit* are
treated somewhat differently lot
purposes of the special financial
assurance and schedule of compliance
provisions in this section. Section
3004(u) authorize* EPA to incorporate
into a permit issued after November 8,
1984, to the owner or operator of a solid
waste management unit» schedule of
compliance allowing the owner or
operator to gather information to
establish the extent of any necessary
corrective action. Subpart F of Part 284
already establishes specific
requirements for gathering such
information for releases to ground water
in the uppermost aquifer at regulated
units. Since those units, defined as
"regulated units", generally are required
to gather sufficient ground-water data
daring interim status to determine
whether a release .has occurred, it would
.not be.appropriate to afford such units
an additional opportunity to gather such
information at the time of permit
issuance.1*
Since the "information collection"
type of schedule of compliance a cot
available to regulated units with
releases to the uppermost aquifer, the
financial assurance requirements in
section 3004(u] cannot be deferred
through a schedule of compliance far
such releases. Once the owner or
operator of a regulated unit hat
identified the releases to the uppermost
aquifer, pursuant to existing Subpart F
regulations, and developed a ooii
estimate of the necessary corrective
actioo. he becomes responsible for
establishing financial assurance ior
completion of the corrective action.
financial
fo tnd schedule of
'• It may b« argued Out Out adenab don not
apply to eerum vntie pile*. WAX* pile* •• not
•ubjcd t» grouiidwater ""•""""•u rfnn«j iatena
•talus. Accordingly, lome my miMrt that (h* owner
or operator of g weete -pHe wlH wrt teva determined
whether* nlean hu acoamd fcy ibe baa *f
permit inutnca. However. tme« wntt j*lt»i*»«
alway* been (ubiecS to ground-water ounuonaj
requirement! under Part 284 tad the attendant Part
270 application nwmhrrfa. the Agency beltevn that
many ownen or operaton al nut-fib* ban
datanaiMd.aKiM Urn* of •wort jaiwao* «k«
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28716
action requirements apply to releases-
from all solid waste management units
at UIC or NPDES facilities; including
units not regulated by the UIC or NPDES
programs. MPRSA permits, however,
cover all portions of ocean dumping
vessels. Hence, there are no unregulated
"units" within an ocean dumping
"facility", and no conforming, change Is
necessary. —
e. Cleanup beyond the property
boundary. New subsection (v) of section
3004 requires EPA to amend its
regulations to impose upon owners and
operators of hazardous waste treatment
storage, and disposal facilities the -
obligation to clean up any
contamination that has migrated beyond
the facility boundary. Specifically, this
provision requires that the owner or
operator institute corrective action
beyond tha facility boundary where ' '
necessary to protect human health and
the environment unless the owner or
operator demonstrates to EPA that
despite the owner's or operator's best
efforts, he is unable to obtain the
necessary permission to undertake such
action. This provision applies to all
permitted facilities, including facilities
containing landfills, surface
impoundments and waste piles that an
embraced by the new definition of
"regulated unit" (i.e» units receiving
waste after July 28.1982).
In the future. EPA intends to propose
regulations which impose upon owners
and operators of hazardous waste
management facilities the obligation to
clean up contamination that has
migrated beyond the facility boundary
as necessary to protect human health
and the environment Pending
promulgation of these regulations. EPA
intends, as required by the statute, to
issue orders to implement section
3004{v)'s directives on a case-by-case
basis.
L Interim status corrective action
authority. In addition to introducting tha
foregoing new statutory provision*
dealing with corrective acton, die
HSWA vest* EPA with authority to
Issue corrective action orders to interim
status facilities. The new provision.
section 3008(h), authorize* EPA to issue
such an order whenever it determines,
on the basis of any information, that '
there is. or ha* been, a release of
hazardous waste into the environment
from an interim status facility.
The authority conferred upon the /
Agency by this provision Is a broad one. '
The legislative history makes it clear
, that the term—release" as it is used in
this section is not limited to releases to
' ground water. 130 Cong. Rec. H1113S
{daily ed. October 3.1984). Indeed,
Congress specifically noted that interim
status corrective action orders could be
used to control air emissions. Id. The
• -ordewwy require corrective action or
any other response measure that EPA
determines is necessary to protect
human health and the environment
"The amendment is a supplement to
EPA's power to impose corrective action
through permits." Id. EPA is authorized
to exercise this order authority to apply
to interim status facilities those
"environmental atandards promulgated
under section 3004." Id. Since section
3004 has been amended to extend '
corrective action requirements to all
solid waste management units at
• facilities seeking a RCRA permit the
Agency interprets this mandate to
authorize the issuance of corrective
action orders to any interim status
facility containing solid waste
management«nit8, including regulated
units, from which there has been a
release to the environment Similarly, by
virtue of section 3004(v). the requirement
to institute jjtfrrective action beyond the
facility boundary becomes an applicable
section 3004 standard and may be
enforced through the section 3008(h)
order authority at interim statue
facilities.
Congress has made it clear that the
interim status corrective action order is
meant to be a flexible mechanism. The
legislative history notes, for example.
that this provision authorizes EPA to
issue an order which, as a first step.
requires the owner or operator to
characterize the extent of ground-water
contamination and to submit to EPA a
proposed corrective action plan.7<£ The
Agency and the owner could then confer
on the corrective action plan and
incorporate any modifications to the
plan in an amendment to the order.
According to tha new statutory
provision, any order issued pursuant to
this section may include a suspension or
revocation of a facility's authority to
operate under interim status. If anyone
named in an interim status corrective
action order fails to comply with the •
order, EPA may atmess a civil penalty of
up to $25,000 for each day of
noncompliance. In additon to the •
authority to issue corrective, action
order*, this provision confers upon EPA
the authority to commence a civil action
for appropriate relief, including a
temporary or permanent injunction.
4. Ground-Water Monitoring Variance*
Section 3004(p) of the HWSA
introduces a new provision governing
variances from general ground-water
monitoring requirements. Specifically,
paragraph (p) provides that ground*
water monitoring requirements • •
applicable to surface impoundments.
waste piles, landfills and land treatmp
units shall apply whether or not such
units are located above the seasonal
high water table, have two liners and a
leachate collection system, or have
liners that are periodically inspected.
The effect of this provision is to render
invalid several of the ground-water
monitoring waivers incorporated in
EPA's existing standards.
Sections 264.222, 254.252 and 264.302
of the existing regulations allow surface
impoundments, waste piles and landfills
to waive Sufapart F ground-water
monitoring requirements if such units
are fitted with a double liner, leak
detection system, leachate collection
system (in the case of landfills and
waste piles), and are located entirely
above the seasonal high water table. In
light of the above provision calling for •
ground-water monitoring
notwithstanding the presence of double
liners or location above the seasonal
high water table, these variances cannot
stand. Accordingly, today's final rule
deletes !5 264.222. 264.252 and 284.302.
Today's rule also deletes \ 264.253.
This section exempts any lined waste
pile from ground-water monitoring
requirements if such a pile is located
entirely above the seasonal high water
table and the waste is removed
periodically so that the liner can be
examined. Again, the plain language of
section 3004(p) would subject such a pi
to ground-water monitoring
requirements notwithstanding its
location above the seasonal high water
table and the periodic liner inspection.
Accordingly, the regulations have been
amended to reflect this change.
Section 3004(p) also introduces a new
variance from ground-water monitoring
requirements for engineered structures
that meet certain requirements.
Specifically, this variance is applicable
on a case-by-case basis, only to an
engineered structure that (l) does not
receive or contain liquid waste (or
waste containing free liquids). (2) is
designed and operated to exclude liquid
from precipitation or other runoff, (3)
has multiple leak detection systems
within the outer layer of containment
which are operated and maintained
throughout the life of the unit including
the closure and post-closure care
periods, and (4) prevents the migration
of hazardous constituents beyond the
outer layer of containment prior to the
end of the post-closure care period.
Section 264.90(b) of the existing
regulations has been amended to
incorporate this new ground-water
monitoring waiver.
The regulatory requirements set forth
in I 264.90(b)(2) repeat the statutory
-------
engineered structure must utilize
"multiple leak detection systems within
the outer layer of containment." EPA
has interpreted this reference to an
"outer" layer of containment to imply
that there must be at least one "inner"
layer as well. This interpretation is
supported by the legislative history
which provides that "faj qualifying
structure would also have to be
engineered to have inner-and outer
layers of containment enclosing the
waste." 130 Cong. Rec. S91T9 Mailv ed.
July 25.1984). Accordingly. , .
- ! 284.90(b){2)(iv) calls for both inner and
outer layers of containmenL.EPA has
also interpreted the reference to
"multiple leak detection systems within
the outer layer" to mean that a leak
detection system must be built into each
layer of containment Again, this
interpretation is expressly sanctioned
by the legislative history, which
provides that a leak detection system
must "be built Into the structure at each
internal containment layer." Id. Today's
rule-codifies this requirement at
S 264.90(bJ(2){v).
Section 3004|p) expressly states that
its provisions shall not be construed to
affect other regulatory exemptions or
waivers from ground-water monitoring
requirements to the extent that such
exemptions are consistent with the new
provisions. EPA interprets this provision
to mean that section 3004(p) does not
affect the ground-water monitoring
waiver contained in i 264.90(b)(41 which
exempts units at which "there Is no
potential for migration" of liquid to the
uppermost aquifer during the operating'
closure and port-closure periods. This
interpretation finds support in ths
legislative history which expwsfo
provides that the i 254 J0(b)(4) waiver is
not nullified by { 3Q04(p) S Rao No
284,98th Cong.. Ut Set.. W(1983J. Tie
Agency also believe* that the ground-
water waiver set forth in f 284 280fel
which exempts land treatment units
from ground-water monitoring if it is
demonstrated that hazardous
constituents have not migrated beyond
the treatment zone during the active life
of the land treatment unit m unaffected
by the new statutory pro vision."
One of the questions emerging from a
review of the new statute is the
relationship between section 3004{o]
"Thie interpretation ia in accordance with the
legislative hiatory which notea tiatcpan kora the
exemptiona apecified in H 284.222. ZS4.Z52..264 JO2
and 284.253. (hi* amendment don not affect otier
eumptiou from the grand-mtir roittodnc
systems) and must comply with ground-
water monitoring. The Agency has
interpreted this reference to ground-
water monitoring to mean that the units
. governed by section 3004(o) must
comply with applicable ground-water
monitoring requJrejnenta unless
exempted from such requirements in
accordance with paragraph (pj. As
noted previously, paragraph (p) allows
for an exemption from ground-water
monhoring only if a unit meets the new
engineered structure exemption, or
complies with 5 284.90(b)(4) or. in the
case of land treatment units, •
1264.280(6).
5. Salt Dome Formations. Salt Bed '
Formations. Underground Mines and
Caves.
Under new section 3004(b). the
Congress has placed strict controls."
effedive on the date of enactment, on
the placement of hazardous wastes in
salt dome formations, salt bed
formations, undergrovnd mines and
caves. The applicable requirements will
depend on whether a hazardous waste
falls into one of the two categories.
For all noncontainerized (or bulk)
liquid hazardous waste, the placement
of waste in the four settings identified
above is prohibited until:
(1) EPA has determined after notice
and opportunity for hearings oa the
record in the affected areas, that such
placement is protective of human health
and the environment •
(2} EPA has promulgated performance
and pegnitting standards lor such
facilities under Subtitle C; aad
(3) a permit has been issued lor the
facility-
Far containerized liquid hazardous
waste and all other .non-liquid
hazardous waste, the placement of such
waste in the four enumerated settings is
prohibited until a permit has been
issued for the facility. •
The new provision also provides that
EPA's decisions on banning land
disposal of certain hazardous wastes
under aection 3004 (d). (e) and (g) cannot
negate the prohibitions explicitly stated
in this provision. In other words. EPA
must take action under section 3004(b)
in order to lift the prohibitions stated
therein. In addition, the Congress makes
it clear that the prohibitions provided in
section 3004(b) do not apply to the •
Department of Energy Waste Isolation
Pilot Project hi New Mexico.
!n Integrating this provision into the
current regulations. EPA believe* that
this provision is best viewed as a
location standard that applies to all
treatment, storage, and disposal
facilities. The statutory language refers
to any "placement" of hazardous was'e
hi the four types of settings. This
language would appear to raclnde
treatment storage, and disposal
activities becanse «ach involves
placement of waste in the enumerated
settings.
Accordingly. EPA has included flri*
provision as a location standard in
5 284.1S and | 265.18. fa Part 265. the
ban applies absolutely to all hazardous
wastes because no wastes may be
placed in the enumerated settings until
an individual permit has been issued
under Part 284.
In Part 284. the ban only applies to
noncontainerized or bulk liquid •
. hazardous waste. For other hazardous
waste the issuance of a permit relieves
an owner or operator from the ban. The
statute appears to contemplate,
however, that EPA must take additional
steps beyond issuing a Part 284 permit
for noncontainerized hazardous waste
before EPA may relieve an owner or
operator from the ban. For example, the
statute states that EPA must conduct
some kind of hearing in an "affected
area" before a ban may be lifted. It is
unclear what this requirement
necessarily entails and how ihat process
might be integrated with EPA'a existing
permit program. Since EPA is not
prepared at this time to define what
steps Jnust be taken to lift the ban on
placement of noacontatnerizfid liquid
hazardous waste in the enumerated
settings, it has simply incorporated the
ban into the Part .284 provisions. Based
on further review/EPA may clarify
when the ban on noncontainerized
liquid hazardous waste can be lifted. '
EPA intends in the future to propose
regulations which would specifically
solicit comments on thia issue.
The ban in new section'3004(b)
applies to underground mines. EPA
believes that by using that term the
Congress did not intend to apply the ban
to strip mines. Operations at strip mines
involve removal of mineral deposits
located near the surface of the ground
by excavation of large surface areas.
This is m contrast to operations at shaft
mines. Strip mines will typically create a
large depression in the ground that
would be regulated as • surface
impoundment or a landfill under RCRA
if it was used to manage hazardous
wastes. EPA does not believe that the
Congress meant in section 30O4{b). to
modify how EPA generally regulates
surface impoundments and landfills.
Accordingly EPA believes that only
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28718
Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and Regulations
underground mines rather than airip~~
mines were meant to be covered by
section 3004(b). ... : -
8. Dust Suppression ~"". ',-',
New section 3004(1) prohibits use of .
hazardous waste (except hazardous
wastes exhibiting the characteristic of
ignitability and not hazardous for any
other reason) mixed with waste oil. used
oil. or other material for dust
suppression or for road treatment. The
provision is codified in a new Subpart C
to Part 266. a subpart reserved for
regulation of hazardous waste uses ' -
constituting disposal. . . - •
The statutory language raises a
number of issues. The first pertains to
the reference of dioxin: "Itjhe use of
waste oil or used oil or other material
which !< contaminated with dioxin or .
any other hazardous waste. V • •" The
. Issue is whether dioxin must be present
as « result of being added as hazardous
waste, or if the language refers to dioxin
contamination from any source. The
Agency believes that the ban applies
only when the dioxin is present as a
result of being added as a constituent in
• hazardous waste. This is indicated by
the fact that Congress placed the
provision in section 3004—where
regulatory jurisdiction is generally
limited to hazardous wastes identified
or listed in section 3001—and also by
the explanation in the legislative history
that the ban is for "hazardous waste •
contaminated materials • • •" s Rep
No. 284.98th Cong.. 1st. Sess. 23. :
A second issue is the reference to -"
"waste oil or used oil." Waste oil is
virgin oil that has been discarded before
use. The Agency believes the term wa«
used purposely (since the phrase is
otherwise redundant), so that if virgin '
oil is mixed with hazardous waste it
cannot be used legally as a dust •
suppressant or for treatment
The prohibition applies on iU face to
hazardous wastes that are mixed with
other materials, but doea not explicitly
ban the use of unmixed hazardous •
wastes (i.e.. hazardous wastes applied
directly as dust suppressants). The
Agency believes the provision should be
read as banning this type of direct -
•ppl cation. This appears to be the only
sensible reading because an unmixed
• waste is likely to be more hazardous
than a mixed, diluted one. Moreover, the
Conference Report states that the
provision "bans the use of • • "any
* * • hazardous waste as a dust •
suppressant." RR. Rep. No. 1133> mth
Cong, 2nd Sess. 88 (1984).
A,n"al '«•«• i» the question of what is
2iedJ? ,l*nd what 1§ h«zardou« waste.
The bill a prohibition applies on its face
only to used oil that it contaminated ... -
with hazardous waste, not to used oil
_applied directly, even if the used oil is
contaminated through use. At this time.
determining whether used oil is
contaminated by use or through
adulteration with a hazardous waste is a
question of fact to be decided on a case-
by-case basis. EPA plans to address this
issue in future nilemakings, including
those dealing with hazardous waste
fuels and with standards for recycled
oil. ... ...
7. Underground Injection '
- The HSWA introduces a new section
to RCRA governing the underground
injection of hazardous waste.'* Section
7010 bans the injection of hazardous
waste into or above any underground
formation which contains, within one- ••
quarter mile-pf the injection well, an
undergrouno\source of drinking water. •
This statutory ban on so-called "Class
IV" wells is effective automatically, six
months from, the date of enactment in
any State Which does not have identical
or more stringent prohibitions in effect •
under an "applicable undergound
injection control program" ("UIC"
program) (defined at 42 U.S.C. 300h-
l(d)) which has been approved or
prescribed by EPA under the Safe
Drinking Water Act ("SDWA"). 42
U.S.C. 300f et seq. In any State in which
the "applicable underground injection
. control program" does include an
identical or more stringent prohibition.
no new notice to the public or six-month
phase-in period is necessary, and the
ban may be enforced immediately.
In May 1984. EPA adopted a
regulatory ban upon all hazardous and
radioactive waste injection into or
above a USDW. effective six months
after the date the applicable *
underground injection control program
becomes effective. See 49 FR 20138.
20181 (May 11.1984) (codified at 40 CFR
144.13 (1984). Because this regulatory
ban was adopted pursuant to both the
SDWA and Subtitle C of RCRA, see 49
FR 20138, at 20138 (May 11.1984); 40
CFR 144.1(a) (1984). the regulatory ban
may be enforced pursuant to both
SDWA 1423. 42 U.S.C: 300h-2. and
RCRA 3008.42 U.S.C 6928. Furthermore.
as provided in HSWA 7010(c). the
•statutory prohibition on hazardous - -•
waste injection into such wells may be
"> In 40 CFR 144.13. ii amended on M«y 11. ns4
it 48 FR 20138 tt (CO.. EPA promulgated a bin on
' tuxardou* and radioactive wane injection into or
above "underground lource* of drinking water."
(Thii phnt*. often referred to »» "USDW,~ la
broadly defined la 40 CFR 144.3.) Congreu ratified
thai definiUoa IB I TTJNXd). Th« ban Include* an .
exception, ilrailar to that In (fa* (Unite, for
reinfection of treated, contaminated ground water
during an EPA-approved deinup «ction under
RCRAorCZRCLA. •• •...-..„. ,.,-.....
enforced pursuant to RCRA sections
7002 (citizen suits) and 7003 (imminer
and substantial endangerment) as well
as the SDWA. in States in which the
applicable UIC program includes the
same ban or a ban which is more
stringent. Finally, in States in which no
identical or more stringent prohibition
exists under the applicable UIC
program, and in which the
Administrator has not prescribed a UIC
program, the statutory ban imposed by
S 7010(a) may be enforced immediately
under sections 7002 or 7003 of RCRA.
and may later be enforced under the
SDWA-when the applicable
underground injection control program
includes the ban.
. Although EPA may invoke RCRA 3008
compliance order authority to enforce
the regulatory ban on these "Class IV"
wells in States where EPA implements
the UIC program, it appears that such
compliance order authority is not
available to the Agency to enforce the
statutory ban in States which have UIC
primary enforcement responsibility and
which have not yet adopted the full
Class IV ban now required by 40 CFR
144.13. This is because section 3008(a)
orders may be used only to enforce the
provisions of subtitle C of RCRA.
whereas Congress included section 7010
In subtitle G of the Act. EPA does not
believe that by referencing the
enforcement authority contained in
sections 7002 and "003. Congress has
precluded the Agency from enforcing the
regulatory ban on Class IV wells under
RCRA S 3008. or from initiating an
action in equity to enjoin a violation of
the prohibition contained in section
7010(a).
Section 7010(b) provides an exception
to the ban provision. The ban does not
apply to the injection of contaminated
ground water into the aquifer from
which it was withdrawn if
(1) The injection is part of a federally.
supervised cleanup action under RCRA
(e.g., corrective action requirements of
§ 264.100,101), or section 104 or 106 of
CERCLA;
(2) Contaminated ground water is
treated to substantially reduce
hazardous constituents prior to
injection; and
(3) Such cleanup, when completed.
will be sufficient to protect human
health and the environment. The
legislative history elaborates on the
Intent of this exception, noting that since
"[tjhe pumping, treatment and •
reinjection of already contaminated
ground water may be the preferred
removal or remedial technique" at some
site, such injections are not to be
-------
banned. 130 Cong. Rec. S9W8Jdaily ed -
July 25.1984). $.
A question of interpretation arises _
.with respect to section 7010(b}(3), which
requires that any response action or
corrective action involving reinjection of
contaminated ground water be sufficient
to protect human health and the
environment. Section 300.88(j) of the
CERCLA regulations" provides that a
remedial action must effectively mitigate
and minimize damage to and provide
adequate protection of public health.
welfare, and the environment. Similarly.
i 5 284.100 and 264.101 of the RCRA
regulations provide that any corrective
action program must protect human
health and the environment by meeting
the standards specified therein. Finally
the EPA regulations at 40 CFR 144.13{c)
provide that EPA must specifically
approve of any such reinjection. EPA
believes that any response or corrective
action carried out in conformance with
these provisions should be deemed to
satisfy the standard set forth in section
7010{b)(3). -
B. Small Quantity Generators
The HSWA adds a new subsection (d)
to section 3001 of RCRA designed to
modify EPA's current regulatory
exemption (40 CFR 2S1.S) of wastes
generated by small quantity generators
from full Subtitle C regulation."The
principal focus of section 3001(d) is a
comprehensive set of standards
specifically tailored to wastes produced
by small quantity generators of between '
100 kilograms and 1000 kilograms per
calendar month which EPA must
promulgate by March 31.1986 pursuant
™SS,r<£&di(1l- 3001(dX2). and
3001(d3(6). If EPA fails to promulgate
these small quantity generator -
standards by March 31.1986, the
requirements set forth in section
3001fdJ(8) automatically go into effect
Section 3001(d) makes certain
minimum requirements applicable to
small quantity generators of between
100 kilograms and 1000 kilograms per
calendar month effective before March
31.1986. Effective immediately, section
3001(dH5).provides that all hazardous
"Enactment of section 300I(d) eliminate! the
lime, initially railed with reipect to EPA'«
regulatory exemption of imall quantity generator!
in 1980. »to whether EPA DM legal authority to
conditionally exempt imall quantity generator*
from full Subtitle C regulation. Section MOI(dKl)
direct! EPA to promulgate lUndaroa applicable to
wane* generated by generator* of between 100
kilogram! and 1000 kilogram* per calendar month.
which may. punuanl to lection 300l(d)(2|. differ
from existing lubtitle C regulation! applicable to
wane* from larger quantity generator*. Section
3001(d)(4J further provide* that EPA may eitabiiih '
ilandard* for generator* of lea* thaa ipo kilogram*
per montk If taeb itandard* an required to protect
human health nnd the environment.
rt, ucng gre
than 100 kilograms but less than 1000 '
Jkiiograms oThazardous waste per
calendar month must be either treated
stored, or disposed of at a facility
having a permit under section 3005 of
RCRA or disposed of at a facility
authorized by a State to manage
municipal or industrial solid waste
Section 3001(d)(3) provides that, no later
than 270 days after enactment-
hazardous waste shipped off-site by a
generator producing greater than 100
kilograms but less than 1000 kilograms
during one calendar month must be
accompanied by a copy of the EPA
Uniform Hazardous Waste Manifest
form signed by the generator and
containing certain specified information.
EPA is publishing today regulatory
amfin_dments necessary to codify
requisements dictated by the statutory
amendments effective until March 31.
1986. These regulatory amendments will
remain in effect until standards are
pronittlgated pursuant to section
3001(d)(l) or until March 31.1986. *
whichever occurs first. The Agency has
already initiated a study of small
. quantity generators and will continue
this study consistent with the mandates
of Section 221(c). On the basis of this
study. EPA intends to propose and
promulgate a comprehensive set of small
quantity generator standards in
accordance with sections 3001(d)(l)
3001(d){2). and 3001(d)(6) of RCRA. In
the event the Agency finds it is unable
to promulgate these standards by March
31.1988. it may publish further
regulatory amendments to codify
additional requirements of section
3001(d)(8) that are applicable to small
quantity generators on March 31.1986.
The statutory provisions codified •
today affect only those generators
generating between 100 kilograms and
1000 kilograms of non-acutely hazardous
waste per calendar month. Section
3001(d}(7) of RCRA expressly provides
that existing EPA regulations pertaining
to acutely hazardous waste are not
affected by the statutory amendments.
Thus, these amendments, together with
existing regulations, distinguish three
classes of small quantity generators for
regulatory purposes:
(1) Those generating between 100
kilograms and11000 kilograms of non-
acutely hazardous waste per calendar
month:
(2) Those generating up to 100
kilograms of non-acutely hazardous
waste per calendar month: and
(3) Those generating acutely •
hazardous waste in those quantities
EPA is amending J 261.5 to reorgar.:.
existing provisions and to codify new
statutory requirements to provide a
separate paragraph for each class of
small quantity generators listed above.
Today's regulatory amendments add
three new paragraphs to § 261.5
designated as paragraphs (f). (g). and
in]: existing paragraphs (f) and fg) are
stricken: and existing paragraphs (h)
and fj) are redesignated as~(i) and (k).
respectively.
New paragraph (fl of 5 261.5
recodifies all existing requirements
applicable to small quantity generators
of acutely hazardous waste in quantitie
set forth in paragraph (e). It provides
that the generator must comply with
1282.11 to determine whether his waste
is hazardous (recodified from existing
paragraph fg)(l) of this section):
conditionally allows for on-site
accumulation'(recodified from existing
paragraph (f) of this section): and sets
out treatment, storage, and disposal
requirements {recodified from existing
paragraph (g){3) of this section).
New paragraph (g) of 5 261.5
recodifies existing requirements
applicable to small quantity generators
generating less than 100 kilograms of
non-acutely hazardous waste in one
calendar month.'0 It requires that
generators comply with § 262.11
(recodified from existing paragraph
(g)(l) of this section); conditionally
allows for on-site accumulation
(recodified from existing paragraph (f) o
this section): and provides for treatment.
storage, and disposal practices
(recodified from existing paragraph
(g)(3) of this section).
New paragraph (h) recodifies one
existing requirement and incorporates
new requirements pursuant to Sections
3001(d)(3) and 3001(d)(5) of RCRA.
applicable to generators generating
between 100 kilograms and 1000
kilograms of non-acutely hazardous
waste during one calendar month. The
existing provision requiring the
generator to comply with f 262.11 is
recodified from existing paragraph fglflt
of this section and is now found at
paragraph (h)(l).
J^JK^/KJ?(h)(3) codifies section
3001(d)(3) of RCRA requiring, effective
August 5.1985. any hazardous waste
shipped off-site by a generator of
•Section M01(d)(4) of RCRA provide! that EPA
may establiih itandarda applicable to imall
quantity generator* of lei* than 100 kilogram*
hazardou* wane per calendar month, if the
Administrator find* «uch itandardi necatury to
protect human health and the environment EPA ia
not publishing, at thi* time, any requirement*
applicable to Iheia generator* beyond Ihoae
currently required by exiiting | 281 J.
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28720
Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rule9
between 100 kilograms arid 1000
kilograms per month to be accompanied
by a copy of EPA's Uniform Hazardous
Waste Manifest form signed by the
generator. This form must contain the
following information:
(1) The name arid address of the '
generator
(2) The LLS. Department of
Transportation descriptiomjf.the waste
Including the proper shipping name,
hazard class, and identification
number u
(3) The number and type of
containers;
(4) The quantity of waste being
transported: and
(5) Tha name and address of the,
designated facility.
% This information corresponds to Items
3,9.11.12,13,14. and 18 of EPA's
Uniform Hazardous Waste Manifest
form 8700-22 and accompanying
instructions, promulgated by EPA on
March 20,1984 {40 CFR Part 282,
Appendix: 49 FR10490). Although use of
the form is mandatory after August 5,
1985. small quantity generators are not
required by Federal law to complete the
entire form or to comply with the full
manifest system established fay 40 CFR
Part 282 applicable to generators of
greater than 1000 kilograms of
hazardous waste per month. However.
States operating approved hazardous
waste programs in lieu of the Federal
program pursuanrto section 3006 of
RCRA may have additional manifest
requirements applicable to small
quantity generators. Generators in
States having their own hazardous
waste program are strongly advised to
contact the appropriate State agency
when completing this form to ensure
compliance with State law.
New paragraph (h](4) of { 281.5 sets
forth requirements for the treatment.
storage, or disposal of wastes produced
by generators of between loo kilogram* •
» Section 30JIfd](3) provide* tint [f ft.
Otputmtnt_* TranipoitatJoa CDOnrj description
d "no« ipplicabla- tk« muiftrt fora JbOlmuS
tn« EPA ktenunatioa number. orVftSSc
dticnpUca ofth* watt* or a description of tie
wine by hazardous wasta charciartetic. Todir-s
nilt doM not Include • proviilon allowing UM of
tbcM dcKriptf on* In tin of DOT* deaoXoca
became DOT* description will thvtyi t»
applicable. DOT* regulations impluncQtmg the
Hazardous Materlils Transportation Act reqturs all
shipments of heurdoes materiel* (• univem which
Includes all RCRA hazardous wntn) to be
sceompemed by • •hipping paper including OOTi
deicnpavt information. For inlpmanf s of hazaidous
win*. ti» completed manifest Mrvet the duel
parpen of satisfying both DOTi shipping piper
requirements end EPA's manifest requirements.
Thus, to order to conform with DOT* shipping
paper requirements, the manifest mini conula DOT
«»cnpUva Information including the proper , •
nipping name, hazard class, and idintificaaaa
.number UNN
and 1000 kilograms of nonacutely
hazardous wastes per month^These
^requirements allow a generator to either
treat w dispose of his hazardous waste
on-site or ensure delivery to an off-site
storage, treatment or disposal facility
providing that the on-site or off-site
facility is either
(1) Permitted fay EPA pursuant to
section 3005 or by a State having an
authorized permit program pursuant to
Part 271 of this chapter;
(2) fa interim status under Parts 270
and 285 of this chapter;
(3) Permitted, licensed, or registered
by a State to manage municipal or
industrial solid waste: or
(4] A facility which beneficially uses
or reuses, or legitimately recycles or
reclaims its waste; or treats its waste
prior to reuse, recycling or reclamation.
These ariVthe same requirements
currently applicable to small quantity
generators, recodified from | 261.5(g)(3J.
In retainingvthese requirements, EPA is
relying on*The only reading of section •
3001(d)(5) that is consistent with
Congress' overall scheme of small
quantity generator waste regulation and
the legislative history.
Section 3001(d)(5J governs the
destination of hazardous waste from
generators of between 100 kilograms
and 1000 kilograms from the date of
enactment until promulgation of the full
set of small quantity generator
standards or until March 31.1988 (when
the alternative provisions of section
3001[d)(8) become effective). It provides
that:
. . . any hazardous wnte. . . which Is not
treated, stored or disposed of at a hazardous
waste treatment, ctorage, or ditoui facility
with • permit under section 3005. shall b«
disposed of only In • facility which is
permitted. licensed, or registered by a State
to manage municipal or industrial solid
waste.
Section 3001(dJ(S) explicitly allows for
treatment storage, or disposal at a
facility with a permit under section 3005.
In addition, since a permit issued by a
State having an approved hazardous
waste permit program pursuant to
section 3006 generally has .the same
force and effect as a permit issued by
EPA under section 3005. section
3001(d)(5) also allows for small quantity
generator waste management at a
hazardous waste facility permitted by a
State. (See section 3006(d) of RCRA). to
implement this provision, today's rule
recodifies existing regulations •
(§5 261.5(g)(3] (i) and (iii)) to allow small
quantity generators of between 100
kilograms and 1000 kilograms of
hazardous waste to continue to treat
store, or dispose of such waste at a
facility having either an EPA- or Sis
issued hazardous waste permit
wiBjS'l'S Ian8ua8e of section
3001(d)(5) does not expressly provide for
treatment storage, or disposal of small v
quantity generator waste at a facility in
interim status. Section 3001(d)(5) refers
only to a facility "having a permit under
Section 3005." EPA has consistently
interpreted this language as meaning '
only a facility actually having obtained
a permit pursuant to Parts 270 and 264 of
this chapter (see, Hetnpstead County
and Nevada County Project, et a!, v. OS
EPA. 700 F. 2d 459 (8th Cir. 1983)). Since'
section 3001(d)(5) does not expressly
provide for treatment storage, or
disposal of small quantity generator
waste at a facility in interim status, a
strict reading of this section, apart from
other statutory provisions governing
small quantity generator waste, would
effectively rule out treatment storage, or
disposal at a facility in interim status.
As discussed below, EPA is rejecting
such a'restrictive reading of section
3001(d)(5) because it does not fit within
the statutory scheme chosen by
Congress for small quantity generator '
• waste and is not consistent with the
legislative history accompanying this
section.
EPA believes that implementation of
section 3001(d)(S) must be consistent
with the nature and structure of sectie
3001(d) governing small quantity
generator waste as a whole. The overall
statutory scheme chosen by Congress in
section 300l(d) provides that from the
date of enactment progressively more
stringent requirements are to be applied
to small quantity generator waste. This
phase-in of regulatory requirements
begins with the partial manifest
requirement of section 3001(d](3)
applicable to only generators of
between 100 kilograms and 1000
kilograms of hazardous waste per month
which remains in effect only until EPA
promulgates the full set of small
quantity generator standards. If EPA
fails to promulgate a full set of
standards by March 31.1988. additional
requirements will be applied to
generators of between 100 kilograms
and 1000 kilograms of hazardous waste
per month pursuant to section 300l(d)(8).
Both the minimum requirements of
section 3001(d)(8) for the full set of
standards and the alternative provisions
of section 3001(d)(8) allow treatment
storage, or disposal of small quantity
generator waste at a facility in interim
status. Implementation of section
3001(d)(5) based on a strict
interpretation would prohibit treatment
storage, or disposal of small quantity
generator waste at a facility in interim
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Federal Register / Vol. 50. No. 135 / Monday. July is, 1985
status and thus would produce the
anomalous and inconsistent-rjssult of
making interim requirements more
stringent than the full set of small
quantity generator standards or
alternative requirements of section
3001(d)(8). since either set of
requirements-allows management of
small quantity generator waste at an
interim status facility. EPA does not
believe that such a muit_caa be
reconciled with the Congressional
objective of imposing progressively
more stringent regulatory requirements
on small quantity generator waste.
This conclusion is bolstered by the
legislative history accompanying section
3001(d)(S). Both the conference report for
HSWA and the Senate report
accompanying the Solid Waste Disposal
Act Amendments of 1883,
S. 757 (from which this provision was
taken) indicate that Congress intended
section 3001(d){S) to allow treatment
• storage, or disposal of small quantity • '
generator waste at facilities having
interim status. The conference report'
explains that section 3001{d)(5) requires
that small quantity generator waste.
"shall go to Subtitle C facilities or
facilities licensed by a State to manege
municipal or industrial wastes." H.R.
Rep. No. 1133.98th Cong.. 2nd Sess. 103
(1984). Subtitle C of RCRA authorizes
management of hazardous waste at
either a facility with a permit under
sections 3004 and 3005 or at a facility
having interim status pursuant to section
3005. Accordingly, reference to "Subtitle
C facilities" includes facilities in interim
status. The Senate report on section
3001(d) (originally reported as section
3002(b)) explains that the language
having a permit under section 3005"
tacludes "both facilities that have a
Subtitle C permit issued by either EPA
or an authorized State or facilities with
interim status, since interim status
facilities an deemed to have a permit
under the language of section 3005."
[Emphasis added.] S. Rep. No. 284.98th
Cong, 1st Sess. 12 (1983). The8e
discussions relative to section 3001{d)(5)
dearly evidence Congress1 intent to
allow management of small quantity
generator waste at interim status
facilities. .
Similarly. EPA has retained the
existing provision allowing treatment or
storage as well as disposal of small
quantity generator waste at facilities
permitted, licensed, or registered by a
State to manage municipal or industrial
solid waste. Although section 3001(d)(5)
refers only to disposal of small quantity
generator waste at a State-approved
municipal or industrial solid waste
facility, the legislative history-indicates
• ,&'..
that Congress did not intend to restrict
use of State-authorized municipal or
industrial solid waste facilities to
disposal onlyrThe conference report
"States that small quantity generator
waste "shall go" to municipal or
industrial waste facilities, not limiting
. such destination to disposal. H. Rep No
1133, 98th Cong.. 2nd Sess. 103 (1984).
The Senate report on S. 757 from which
section 3001(d){5] was taken, explains
that this section was meant to codify
existing small quantity generator
regulatory requirements relative to
State-approved solid waste facilities
S. Rep. No. 284.98th Cong., 1st Sess. 9
(1983). Inasmuch as existing
requirements allow treatment and
storage of small quantity generator
waste at a State-approved solid waste
facility. Congress thus intended to
continue these requirements. Moreover.
allowjpg treatment and storage as well
as disposal of small quantity generator
waste in a State-approved solid waste
facility is consistent with the general
tjbjectfve in section 3001(d) of ensuring
sounti management of small quantity
generator waste; arguably, treatment or
storage of hazardous waste at a State-
• approved solid waste facility is less
environmentally threatening than
disposal of waste at such a facility.
Thus, State-approved industrial or
municipal solid waste facilities that
choose to accept hazardous wastes from
small quantity generators during the
interim before the effective date of the
Standards or March 31.1988. whichever
comes first, do not have to have either
interim status or a permit However, if
these facilities intend to continue
accepting hazardous wastes after the '
effective date of the standards or March
31,1988. they must have either interim
status or a permit since both the full set
. of standards and the alternate
provisions effective March 31.1986
restrict treatment, storage, and disposal
of small quantity generator waste to
Subtitle C facilities.**
•New paragraph (h](2) recodifies the
existing requirement (§ 261.5(0)
allowing small quantity generators to
accumulate on-site up to 1000 kilograms
of hazardous waste, provided that if the
accumulation limit of 1000 kilograms is
exceeded, all of the accumulated wastes
are subject to full Subtitle C regulation.
*• Section 3005(e)(l}{A)(u) provide* thai facilitie*
•in exi*tenca OB the effective date of *tarutory or
regulatory change* thai render the facility tubfect to
permit requirement* may qualify for interim itahia.
Since State-approved industrial and municipal >olld
waste facilitie* choosing to accept hazardous wane
after promulgation of the full act of standard* or
March Jl. IMS will be subject to permitting
requirements, they will be eligible for interim itatu*
punuant to section 300S(e)(IXAKIi).
2872
The HSWA does not explicitly address
on-site storage of small quantity
generator hazardous waste during the
period between enactment and the '
effective date of the full set of small
quantity generator standards. If the full
set of standards is not promulgated by
March 31.1986. the alternative
requirements of section 3001(d)(8) appiv
As discussed earlier. EPA does not
believe that Congress intended to place
more stringent requirements on small
quantity generator waste during the
interim before promulgation of the set of
small quantity generator standards, but
rather intended to maintain the status
quo with respect to the destination of
small quantity generator wastes.
Accordingly, EPA has retained the .
existing regulatory scheme for on-site
accumulation for up to 1000 kilograms of
hazardous waste.
C Permits/Interim Status
1. Preconstruction Ban/TSCA Exception
On May 19, i960 EPA promulgated
regulations prohibiting the construction
of new hazardous waste management
facilities without a finally effective
RCRA permit (40 CFR 270.10(0(1)). In
the HSWA. Congress adopted these
regulations by amending section 3005{a)
of RCRA to clarify the Administrator's
authority to require a RCRA permit to
construct a hazardous waste treatment.
storage, or disposal facility. The
preconstruction ban in section 3005(a) is,
however, qualified. The statute exempts
facilities constructed pursuant to an
approval issued by the Administrator
under section 8(e) of the Toxic
Substances Control Act (TSCA). for the
incineration of polychlorinated
biphenyls (PCBs). from the requirement
to have a RCRA permit prior to
construction. Any person owning or
operating such a facility may file an
application for a RCRA permit to
incinerate hazardous wastes at any time
after construction or operation of such a
facility.
The purpose of the TSCA exemption
from the preconstruction ban is to
remove an inconsistency between the
RCRA and TSCA regulations affecting
incinerators. As discussed previously.
under current RCRA regulations no
construction may occur prior to receipt
of a final permit However, under TSCA.
construction may occur prior to final
approval (the analogue of a RCRA
permit).
The Congressional intent underlying
the TSCA exemption is as follows:
(w)bere an incinerator has been constructed
and approved pursuant to TSCA for the
burning of PCS*, the owner or operator shall
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28722 Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and Regulations
not be precluded from applying for < RCRA
permit solely became a RCRA permit was~~-
not obtained prior to construction. The EPA.
regulation being codified by this amendment
was designed to assure that when it hat been
unable (o influence the location, design, and
construction chosen by the applicant the
permitting agency would notface a choice
between apprcmng an incinerator or "forcing
the abandonment or devaluation of the
premature investment.' Here, however, if a
company proceeded with construction.
obtained TSCA approval, and then sought a
RCRA permit the company would not have
to abandon or suffer a devaluation of its
investment if it was ultimately denied •
RCRA permit for the incinerator. Tie
company would still ha»e a PCS incinerator.
130 Cong. Rec. S.917S. (daily ed. July 25.1984J.
In order to codify the TSCA
exemption, the Agency is today
amending 5 270.10(f)(3). That provision
currently allows a person to begin
physical construction of a new
hazardous waste management facility •
subsequent to November 19.1980. but
prior to the effective date of the unit-
specific Part 264 standards (i.e.. Subpart
I et seq.) in limited circumstances. The
Agency believes that this provision is
legally inconsistent with the general
preconstruction ban and is. accordingly.
deleting that provision in today's rule.
The Agency is instead codifying the
section 3005{a) TSCA exemption in
S 270JO(fJ(3].
Congress did not specifically address
whether the TSCA exemption from the •
preconstruction ban is applicable to
uniU that store PCBs prior to
incineration at a TSCA-approved
incineration facility. Under the TSCA
regulation, any PCS articles or PCB
containers may be stored for disposal "
for up to one year (40 CFR 761.65). The
facility need not obtain a permit for
construction of the storage unit but must
ensure that the unit meets the criteria
specified in S 761.65. The Agency
believes that as a legal matter, the
TSCA exemption to the preconstruction
. baa for facilities constructed pursuant to
approval under TSCA it applicable to
storage units at these facilities in
compliance with 1761.65. To hold '
otherwise would eviscerate the '
statutory exemption since it is common
practice for frcilities to store PCBs prior
to incineration. . . .-..._..
2. Permit Life . • - ••".'•
On May 19.1980. EPA promulgated a •
regulation providing that RCRA permits
shall be effective for a fixed term not to
exceed 10 years. 40 CFR 122.9(a) (now
codified as 40 CFR 270.SO(a)). On
February 8.1983. EPA proposed to
amend that regulation to issue permits
for the life of the facility (48 FR 5B72)? la
response to that proposal. Congress; in •
HSWA. amended section 3005(cJ to
provide that any permit for a treatment
.storage, or disposal facility shall be for a
fixed" term, not to exceed 10 years.
In enacting this provision. Congress
stated that "with the advancing state of
technology and the long projected useful
life of many of these facilities, it is
preferable to limit permit life to the "
minimum period consistent with the cost
and administrative burden of issuing a
permit • • • Limited permit duration
will assure that facilities are
periodically reviewed and requirements
for them upgraded to reflect the current
state of the art." S. Rep. No. 284.98th
Cong., 1st Sess. 90 (1983).
The Agency believes that f 270.50fa>-
(c). as currently drafted, is consistent
with the statutory amendment to section
3005(c). Therefore, the Agency is not
- amending those regulations today.
The HSWAalso amends section
3005{c) to provide that each permit for •
land disposal facility shall be reviewed
5 years afterthe date of issuance or
reissoance jfnd shall be modified as
necessary to assure that the facility
complies with die currently applicable
requirements in sections 3004 and 3005.
Since section 3005 provides that the
Agency has the authority to issue
permits encompassing conditions
necessary to protect human health and
the environment the Agency may
modify land disposal permits to include
these conditions. '
In order to codify the amendment to
. section 3005('c). the Agency is tbday
amending S 270.50 by adding a new
subsection. 5 270.SO(d). That subsection
requires the Director to review the
permit fora land disposal facility 5
years after the date of. permit issuance
or reissuance and to modify the permit
in accordance with | 270.41.
The Agency is also amending
I 270.41(a) in order to implement the
amendment to section 3005(c). Section
270.41(a)(3] as currently drafted,
provides that permits may be modified ;
because of regulatory amendments only'
if the permittee requests such a
modification. That provision conflicts .
with the statutory requirement that the
Agency modify land disposal permits to
assure continued compliance with
applicable regulations. Accordingly, the
Agency is today amending $ 270.4l(a) by
adding a new cause for modification.
§ 270.41(a}(6). Section 270.41(a)(e)
provides that notwithstanding any other
.provision in f 270.«l(a). when a permit
for a land disposal facility is reviewed
under J 270.50(d), the Director shall
modify the permit to assure that the
facility continues to comply with the
currently applicable requirements in
Parts 284. 266. and 270. Since, as
discussed below, EPA has the author-fo-
under Part 270 to issue permit conditi
beyond those specified in the
regulations, the Agency may, where
appropriate, modify land disposal
permits to reflect conditions beyond
those specifically set forth in the
regulations under the authority of Part
270.
Pursuant to today's rule, the Agency
may modify permits to incorporate new
regulatory requirements without the
request of the permittee in the context of
land disposal permit reviews. Such
permit modifications would constitute
major modifications and would.
accordingly, be subject to the procedural
rights of notice and comment under 40
CFR Part 124 accorded permittees
undergoing major permit modifications.
3. Authority To Add Condition*
Is enacting HSWA, Congress
amended S 3005(c) to .provide that each
RCRA permit issued shall contain such
terms as the Administrator (or the State)
• determines necessary to protect" human
health and the environment. The
accompanying legislative history
indicates a Congressional intent to
authorize die Administrator to add
permit conditions beyond those
specified in the regulations. S. Rep. No.
284. 98th Cong.. 1st Sess. 31 (1983). The
Agency is today implementing this
amendment by adding a new subsectio
•to the RCRA regulations, concerning tht.
establishment of permit conditions,
§ 270.32(bK2).
Since the Administrator h«»5 the
authority to review land disposal facility
permits every five years to assure that
the facility operates in a manner which
protects human health and the
environment, the Administrator has the
authority to add permit conditions
where necessary to protect human •
healtii and the environment when
conducting such reviews of land
disposal facility*pennits under
f 270.50(d). The Administrator also has
the authority to add conditions
necessary to protect human health and
the environment when reviewing an
application for permit renewal. Such an
interpretation is in accordance with the
amendment to section 3005(c) which
specifically requires the permitting
authority, in any permit renewal, to
consider among other things
improvements in the state of control and
measurement technology as well as
changes In applicable regulations. Such
improvements and changes must be
incorporated in the renewed permit. S.
Rep. No. 284,98th Cong.. 1st Sess. 30-31
(1983). Improvements and changes in
control and measurement technology are
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Federal Register / Vol
SO. Kg 135 / Monday. July 15. 1985 / Kule3 and Regulations
factors thai Congress intendedjhe
Administrator Jo take into account when
adding permit terms and conditions as
necessary to protect human health and
the environment. Id. Accordingly, the
Administrator ias the authority under •
section 3005 to add conditions necessary
to protect human health and the
environment when reviewing an
application For permit fenewal. In
addition, the Administrator shall
consider any changes that may have
occurred in operation of the facHity
since the permit was issued, and other
information concerning the impact of the
facility on human health and the .
environmerU.
Section 3005(c) provides that each
RCRA permit issued under section 3005
shall contain such terms as the
Administrator deems necessary to
protect human health and the "
environment [emphasis added). The '
Congressional intent underlying this
amendment is to authorize the Agency
to impose permit conditions beyond
those mandated by the regulations, such
as new or better technologies or other
new requirements. S. Rep. No. 284. 98th
Cong.. 1st Sess. 31 (1983). The purpose of
this amendment is to upgrade facility
requirements in order to protect human
health and the environment. The Agency .
believes that the authority to issue
permits containing conditions deemed
necessary to protect human health and
the environment must encompass the .
authority to deny, permits where
necessary to afford such protection. To
hold otherwise would deprive this
statutory amendment of its intended
effect.
4. Expansion of Interim Status for Newly
Regulated Unita
Section 3005(e) of RCRA previously
restricted interim status to owners or
operators of "existing HWM facilities"
or facilities in operation or for which
construction commenced on or before
November 19. WHO. In HSWA, Congress
amended section 300S(e) by providing
that facilities in existence on the
effective date of statutory or regulatory
changes ander the Act that render the
facility subject to the requirement to
have a permit qualify for interim status
if they make an application for a permit
and comply with the section 3010
notification requirements. Facilities
which have been previously denied a
RCRA permit or for which authority to
operate the facility under RCRA has •
been previously terminated may not,
however, qualify for interim itatui *.
pursuant to the amendment to section
300S(e).
in the Jegisiative history ? .
accompanying this provision. Congress
indicated that the amendment to section
3005{e) would apply to facilities in
^existence which treat, store, or dispose
of newly listed hazardous wastes. The
legislative history also noted that
facilities which were previously
exempted from certain RCRA
requirements but subsequently became
subject to those requirements (e.g., smafl
quantity generators) would also be
eligible for interim status as a result of
this amendment. 130 Cong. Rec. S9170
(daily ed. July 25.1984).
If a unit at a facility has been
previously denied a RCRA permit or had
iU interim status terminated the owner
or operator of the facility may not
qualify for interim status for any unit at
the facility in existence on the effective
date of statutory or regulatory changes
that-render the facility subject to the
requirement to have a permit. This
interpretation is in accordance with the
legislative history which notes mat
faciljtjfts for which RCRA permits have
been previously denied or for which
interim status has been previously
; terminated would be unable to qualify
for interim status pursuant to-this
amendment under any circumstances.
Id.
As discussed previously, facilities
must submit a permit application in
order to qualify for interim status. In
order to implement the statutory
amendment to section 300S(e), the •
Agency is today amending 40 CFR
270.70(a). Section 270.70(«). as amended."
provides that owners and operator* of
facilities, in existence on the effective
date of changes under the Act that
require the facility to have.a permit.
qualify for interim status if they comply
with the requirements of 40 CFR 270.10
governing submission of Part A permit
applications. Since S 270.10 does not
currently provide Part A application
requirements for owners and operators
of these facilities, the Agency is today
amending the application requirements
in S 270.10(e) to reflect the new
§ 270.70(a). Today's rule provides that
owners and operators of HWM facilities
in existence on the effective date of
statutory or regulatory amendments
under RCRA that render the facility
subject to permit requirements must
submit Part A of their permit application
by the dates specified in 5 270.10(e)(lJ in
order to qualify for interim status. The
Agency is also adding a new provision.
! 270.70(c). in order to implement the
amendment to section 3005(e). Section
270.70fcJ provides that a person shall
not qualify for interim status if he owns
'oroperates a facility which has been
previously denied a RCRA permit or if
authority to operate the facility has be=
previously terminated.
amends section 3005fe) b-.
providing that interim .tatus for owners'
and operators of land disposal facilities
terminates within a 12-month period
unless the owner or operator submits a
Part B pnor to that date and certifies
compliance with the applicable ground-
water monitoring and financial
responsibility requirements. Congress
also amended section 3005(c) to provide
that interim status for owners and
operators of incinerators terminates by
November 8.1989 unless a Part B
application is submitted by November 8
1986. For all other facilities, interim
status terminates by November 8,1992.
unless an application is submitted by
November 6.1988. The Agency is today
amending the regulation concerning
termination of interim status. 40 CFR
270.73, to reflect these grounds for
termination of interim status.
In addition to amending § 270.73, the
Agency is also amending 40 CFR
270.lO(e)(4) which specifies the
application requirements for HWM
facilities. Section 270.10(e)(4) now
provides that an owner or operator shall
submit his Part B voluntarily or in
response to a request from the State or
EPA. Section 270.10(e)(4), as amended
today, provides that owners or operators
of HWM facilities must submit their Part
B application in accordance with the
dates specified in | 270.73. This
regulatory amendment conforms with
the statutory requirement that the
owner's or operator's duty to submit a
Part B application is mandatory. The
Agency or the State need not first
request the Part B application. It is the
Agency's intention, however, to
continue, as a matter of policy to
request Part B applications from owners
and operators of hazardous waste
management facilities, consistent with
the deadlines now specified in S 270.73
-".should also be noted that submission
of a UIC permit application would meet
the requirement to submit the Part B
application for facilities covered by the
UIC permit by rule (See 5 270.60(b)).
If at-the expiration of the specified
statutory time periods, the owner or
operator of the facility fails to submit his
Part B application or applicable
certifications of compliance, interim
status will terminate immediately under
section 3005. EPA need not take any
specific action to terminate the facility's
interim status. Requiring specific
Agency action prior to termination of
interim status would delay the •
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Federal Register / Vol. 50. No. 135 / Monday. July 1S. 1985 / Ru[e3 and Regulation3
termination of interim status which
would, in turn, conflict with the ~---~.
statutory requirement that interim status
terminates on the expiration of the
statutory time period. - •' • • - ' ":
A* discussed previously, the applicant
must certify compliance with applicable
ground-water monitoring and financial
responsibility requirements. The statute
is silent as to whether the-applicable
requirements are found in Parf264 or
Part 285. However, the legislative '.
history indicates that the applicable
ground-water monitoring requirements
are found in Part 285. In discussing the
amendment. Congress asserted that
since EPA's ground-water monitoring
requirements have been'in effect since
November 1981. there it no excuse for "
noncompliance at this late date. 129
Cong. Rec. H8142 (October 6.1983). The
ground-water monitoring requirements
in effect since November 1981 are those
found in Part 285, Subpart F. See
§ 285.90. Accordingly, certification with
the Part 265 ground-water monitoring
standards or the State analogue to the
Part 265 requirements will satisfy
section 3005(e)(3). In order to be
internally consistent with respect to
certifications of compliance under •
section 3005(eJ(3). the owner or operator
must certify compliance with the
financial responsibility requirements
found in Part 265 or the State analogue
to the Part 265 requirements rather than
• Part 204. . .
If the owner or operator of a facility
fails to submit the application or the
applicable certifications of compliance
for such facility, the statute provides
that interim status shall terminate for
such facility. The Agency believes that
. the termination of interim status only
affects the unit or units at the hazardous
waste management facility for which the
required information is not submitted.
For example, if a hazardous waste
management facility had both an
Incinerator and a land disposal unit, and
the owner or operator of the facility
submitted the Part B for the Incinerator
by the specified date but not for the land
disposal unit, Interim status would
terminate for the land disposal unit and
not for the incinerator.
. EPA believes this interpretation is
reasonable for several reasons. First
EPA sees no evidence in the legislative
history to suggest that Congress meant
to stop all operations at a large.
multiple-unit facility simply because one
unit has not properly submitted its Part
B application or applicable
certifications. Terminating waste
management at these units that are not
covered by the owner's or operator's
application or certification would teem
an adequate sanction to achieve the
Congressional purpose. Moreover.
allowing loss of interim status for a
jubsfil of units at a facility is consistent
with EPA's regulatory authority to
divide its consideration of units for
permitting purposes. See 5 270.l(c)(4).
Undsr its current regulations EPA may
grant or deny a permit to a set of units at
a facility without disturbing the facility's
interim status for other units at the
facility. .
D. Burning and Blending of Hazardous
Waste
1. Ban on Hazardous Waste to Certain
Cement Kilns
- - Section 204 of the Hazardous and
Solid.Waste Amendments of 1984
amends section 3004 of RCRA to
prohibit cement-kilns located in-
Incorporated cities with populations -
greater tharfSOO.OOO from burning
hazardous waste, or any fuel containing
a hazardous waste, unless they comply
with the regulations applicable to
hazardous waste incinerators. This
prohibition, contained in section
3004(a)(2}(Q. remains in effect until the
Agency develops substantive standards
for cement kilns burning hazardous
waste. As discussed more fully below,
the prohibition would not apply to
cement kilns burning petroleum coke
containing hazardous waste indigenous
to petroleum refining, unless the
petroleum coke exhibited a
characteristic of hazardous waste. See
RCRA amended sections 3004(q)(2)(CKi)
and 3004(q)(2)(A). respectively.
The "hazardous wastes" covered by
this prohibition are any hazardous
wastes identified or listed in regulations
implementing section 3001, and ~
explicitly include commercial chemical
products that are burned in lieu of their
original intended use. See RCRA
amended section 3004(g)(l).» The
statute supersedes the exemption for the
actual act of recycling (in this case.
burning in a cement kiln) found in
existing 5 261.8(b). and also in EPA's
recently published amendment, found in
amended 5 286.30. 50 FR at 667.
• We have codified the statutory
language in a new Subpart D to Part 286
Tor thii prohibition to apply.« commercial
chemical product moil be burned In lieu of iu
normil u*e. or idded to « fuel In lien of iu normal
u»e. A fuel merely containing a chemical on the
I 2S1.33 lilt It not automatically a hazardous wane
For (he fuel to be a weote. the chemical miut have
been a commercial product (or offapeaficatlon
variant or tplll reiidue thereof) when it waa added.
and the commercial chemical mint not be a fuel
it»elf. See H.R. Rep. Na 570. »7th Cong, 2d Sen is-
19 (J98Z). EPA haa recently amended I 2B1J3 u,',
manner virtually identical to the atalute. See SO FR
at MS (January 4.1885). .. °~»«
of the regulations. This Subpart is
reserved for rules dealing with burn
hazardous wastes in thermal
combustion devices other than
incinerators, namely boilers and
industrial furnaces. We also have made e
conforming changes to §§ 26:.6(a) and
281.33.
(i The statutory prohibition applies to
"fuels" containing hazardous wastes. *
The provision thus does not appear to
apply to cement kilns burning hazardous
wastes for material recovery. This is
consistent with legislative history
distinguishing between cement kilns
burning for energy and-material
recovery. See H.R. Rep. No. 198. 98th
Cong., 1st Sess. 40 (1983). An issue not
specifically addressed is the status of a
cement kiln burning hazardous waste
for the dual purposes of energy and
material recovery. In light of the
remedial purpose of the provision, and '
the broad reach of section 204 in
general, the Agency believes that
cement kilns burning for a dual purpose
are covered by the prohibition. See also
50 FR at 630-31 (January 4.1985).
2. Labeling of Hazardous Waste Fuels
The new statutory amendments also
require that any person who produces.
distributes, or markets a fuel containing
a hazardous waste, or a hazardous
waste burned directly as a fuel, must
include a warning label in the invoice
bill of sale for the fuel. The warning
label must state that the fuel contains
hazardous wastes, and must list the
hazardous wastes contained therein
See RCRA Section 3004{r)(l). The
legislative history indicates that tiiis
latter requirement is satisfied by
identifying wastes by generic classes
(such as "chlorinated solvent") rather
than by precise chemical name. H R
Rep. No. 198, 98th Cong., 1st Sess. 42
(1983). The warning label must be •
located conspicuously, and be printed in
conspicuous, legible, and contrasting
type. This requirement took effect on
February 6.1985. The warning label
requirement applies to fuels containing
any hazardous waste (with three
exceptions described below), and so
supersedes provisions in §| 261.6(a) and
261.33 of EPA's existing regulations [as
well as provisions in EPA's recent
Januarys amendment to § 281.6{a)J.
An issue arises as to precisely who is
to prepare a warning label, particularly
with reference to intra-company
shipments of hazardous waste fuels. The
labeling requirement applies to any
person required to notify under
paragraphs (1) and (3) of section 204.
namely persons who produce, market, or
distribute hazardous waste fuel. The
-------
legislative history indicate.s^hat the
removed" by reinsertion into the
purpose of the provision is 7o~put users
4. Household Waste
process. The Agency does not read this
and transporters on notice that they are
as a requirement that all.cdntaminants
handling a fuel potentially more
~*-be removed. This is shown by the
dangerous than a virgin fuel. HA. Rep.
No. 188 at 42; S. Rep. No. 284 at 40. The
Agency thus- is of the view that this .
requirement should apply whenever a
hazardous waste fuel is sent off-site
even iT the ultimate user is the same
company that producedItie fuel.
We note that the labeling requirement
may be superseded by EPA regulations.
RCRA section 3004(r)(l). EPA believes
tflat a hazardous waste manifest serves'
trie same function as the warning labeL
and is far more efficient to administer,
EPA thus proposed requiring a manifest
rather than a warning label. SO FR at
1704 (January 11.
~ -•—-—— -.«**». * >u« *Q aiiwvvji UV Ulc
legislative history, which states that this
standard was adopted by analogy to the
definition of rerefined oil in section
104(39) of RCRA. S. Rep. No. 284 at 41
Rerefining is a process that removes
some bul not all contaminants.
The Agency believes that the
requirement that wastesTse inserted into
a part of the refining process where
contaminants are removed means that
wastes must be inserted at or before a
point in the process designed to remove
toxic metal and organic contaminants in
the normal operation of the refining
process. The requirement does not
mean, however, that all contaminants in
, »_„„». .,.,.„ '" • meaa- however, that all contaminan
3. Exception to Labeling Requirement the.wjiste be removed Examples of
The statute contains three exceptions Part*««f *e refining process designed to
to the labeling requirement: for remove contaminants are atmospheric
hazardous waste-derived petroleum distillation towers, vacuum distiHatirm
coke, and for two types of hazardous
—.„, u..u iu« X.TU lyyea 01 nazaraou
waste-derived fuels from petroleum
refining operations. These are discussed
below in turn.
The exception for petroleum coke '
applies to petroleum coke which
. contains as ingredients oil-bearing
hazardoas wastes from petroleum
refining operations, for those wastes
that are indigenous to the refining
operations. Thus, if a refinery added
spent solvents to the coke, the coke
would not be exempt. See S. Rep. No.
284 at 38. Hazardous waste-derived
petroleum coke exhibiting a
characteristic of hazardous waste is not
exempt. In addition, the legislative
history is clear that only the petroleum
coke is exempt "the exemption for
hazardous waste to be converted to
coke begms only with the introduction
to the conversion process." Id. The
hazardous refinery wastes are subject to
regulation up until *h«* »-*-» »«ujecj 10
The '
.—,.„ -w.nduiLuaiua are aunospnenc
distillation towers, vacuum distillation
towers, fluid cokers. and catalytic
cracjemg operations.
Fuels resulting from refining
operations where hazardous wastes are
. added at or before these points would
not be automatically subject to the
warning label requirement. Conversely.
certain downstream refining operations
(e.g.. product finishing, blending, and
packaging operations) are not designed
to remove contaminants in. the sense
required by the bill These operations
are designed primarily to improve
product saleafaility: removal of toxic
metals and organics is incidental to this
purpose. Fuels containing hazardous
wastes added at these points in £he
process would have to have a warnina
label. .
The final exemption from labelling is
for oily wastes from petroleum refining
and transportation practices that are
inserted into (he petroleum refining
process as in the previous exemption.
-—- —-——o ««.«iM*A6ment js fop
hazardous waste-derived fuels from
petroleum refining operations (defined
as refining operations within SIC Cod*
2911). There are three conditions
precedent to this exemption: the wastes
must contain oil. they must be generated
and reinserted on-site into the refining
process at a point where contaminants
are removed, and they must be
converted into product along with
normal process streams. As with the -
previous exemption, this exemption
applies only to fuel containing wastes
that are indigenous to the petroleum
refining process. HJL Rep. No. 198 at 43 .
The legislation does not state
precisely what is meant by the •>>
requirement that 'JoontamiaanU (be)
*""•*"• ******n*\* A**J« * «i» cAcuipuon
Is to a large degree coextensive with the
previous one. but it differs in three
respects: it applies to "oily materials" as
well as to petroleum refining wastes; it
applies to wastes generated from
petroleum transportation practices (as
well as production and refining
practices), and the wastes need not be
generated and inserted on-site.
The Agency reads section 3004(r)(3) as
applying only to wastes not already
covered by section 3004(r)(2). Any other
reading would render section 3004(r)(2)
surplusage, violating standard tenets of
statutory construction. The legislative '
history in fact indicates that paragraph
(r)(3J was intended to apply to used oil
that is hazardous. SeeS. Rep. No. 28* at
New section 3001(g) adds a
clarification to the household waste
exclusion contained in 5 261.4(b)(l).
That regulation states that household
wastes are not hazardous wastes. The
preamble accompanying that regulatior
states that residues remaining after
treating household wastes also are not
hazardous wastes. 45 FR 33099 (May 19
TSoUj*
The legislative clarification is that a
resource recovery facility recovering
energy from burning municipal waste is
not considered to be managing
hazardous waste, provided the facility
*neets two conditions:
.(a) toe facility receives and bums onl-
household waste, and solid waste from
other sources that contains no
hazardous wastes; and
(b) the facility cannot accept
hazardous wastes from any non-
- household sources, and must adopt
precautionary measures—such as
contractual arrangements of other
notification procedures—to assure that
hazardous wastes are n). repeating the statutory
language. The statutory provision
appears to raise two principal issues:
(1) The status of facilities that, in spite
of good faith efforts, receive and bum
hazardous wastes; and
12) The status of residues from burning
household waste and non-hazardous
solid waste if the residue exhibits a
characteristic of hazardous waste.
As to the first issue, the statutory
language contains no exception for
facilities that, in spite of their best
efforts, receive hazardous wastes. The
legislative history indicates, however.
that if good faith precautionary
measures are in place and a resource
recovery facility still receives and bums
a hazardous waste, that the "facility
* * * should hot be penalized for the
occasional, inadvertent receipt of
hazardous waste S. Rep. No. 284
•t 61. Thus EPA believes that resource
recovery facilities do not become
Subtitle C facilities when they
inadvertently bum hazardous waste if
they have taken good faith measures to
avoid burning such waste.
The statute is silent as to whether
hazardous residues from burning
combined household and non-
household, non-hazardous waste are
hazardous wagte. These residues would
be hazardous wastes under present EPA
regulations if they exhibited a
characteristic. The legislative history
does not directly addrett this question.
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Federal Register / Vol. 50. No. 13S / Monday. July 15. 1985 / Rules and Regulations
although the Senate report can txrread
as enunicating a general policy of non-
regulation of these resource recovery
facilities if they carefully scrutinize their
Incoming wastes. On (he other hand. ,."
residues from burning could; in theory,
exhibit a characteristic of hazardous
waste even if no hazardous wastes are
. burned, for example, if toxic metals
become concentrated in the ash. Thin,
the requirement of scrutiny of incoming
wastes would not assure non-
hazardousness of the residue. EPA
-believes that the principal purpose of
section 3001(g] wai to prevent resource
recovery facilities that may
inadvertently burn hazardous waste. •
. despite good faith efforts to avoid such a
result, from becoming subject to the
Subtitle C regulations. EPA does not sea
in this provision an intent to exempt the
regulation of incinerator ash from the
burning of non-hazardous waste in
resource recovery facilities if the ash .
routinely exhibits a characteristic of
hazardous waste. However. EPA has no
evidence to indicate that these ash
residues are hazardous under existing .
rules. EPA doe* not believe the HSWA
impose new regulatory burdens on
resource recovery facilities that burn
household and other non-hazardous
waste, and the Agency has no plans to
impose additional responsibilities on
these facilities. Given the highly
beneficial nature of resource recovery
facilities, any future additional
regulation of their residues would have
to await consideration of the important
technical and policy issues that would
be posed in the event serious questions
arise about_the residues. . • . •
5. Minimum Technological Requirements
for Incinerators
Section 202(a) of the Amendments
adds a section 3004{o](l][B] to RCRA
which states that incinerators which
receive permits after enactment of the
Amendments must meet th« minimum
destruction and removal requirements
contained in 1284.'343(a) of EPA's
regulations. That regulatory provision
states that principal organic hazardous
constitutents (POHCs) in the waste feed
must b« destroyed and removed to a • .
minimum efficiency of 99.99% .
It is unnecessary to include any new
provisions in EPA's regulations because
the statute simply codifies the existing •
rules. We also note that the provision
does not preclude the Agency from • •
adopting a more stringent destruction
and removal requirement (the statute
refers to "attainment of a minimum •
destruction and removal efficiency").. •
Nor does it prohibit changes (either,
• acre or less stringent) in .other . ' -
performance standards for incinerators.
including those for control of hydrogen
chloride emissions or total participates.
—^Ensalry. the requirement applies only
to incinerators, and so does not mandate
minimum technological requirements for
other combustion units burning
hazardous waste, such as boilers and
industrial furnaces. See RR. Rep. No.
198 at 42. (Boilers and industrial
furnaces are subject to the same
ultimate standard as incinerators, but
need not meet the same technological
requirements.) ' -• •
E. Exposure Information and Health •
..Assessments .
: • In enacting the HSWA. Congress
amended Subtitle C of RCRA by adding
a new section concerning exposure
information and health assessments.
section 3QM, Under section 3019. RCRA
permit applications for landfills and
surface impoundments must be
accompanied by information on the
' potential foe the public to be exposed to
hazardousiwastes through releases
related to the unit The Administrator
will then make that information
available to the Agency for Toxic
Substances and Disease Registry
(ATSDR) established under the
Comprehensive Environmental
Response. Compensation and Liability
Act (CERCLA). Whenever the
Administrator or a State judges that the
release poses a substantial potential risk
to human health, the Administrator may
request the ATSDR to perform a health
assessment and take appropriate action
under CERCLA.
.In order to codify section 3019. the
Agency is today adding a new
regulatory provision. 40 CFR 270.10(j).
Section 270.10(j)(l) provides that Part B
applications for landfills or surface
impoundment* submitted after August 8,
1985, must be accompanied by certain
exposure information. Section
270.10(j](2) provides that by August 8.
1985. owners and operators of a landfill
or surface impoundment who have
already submitted their Part B
application are also required to submit
exposure information.
40 CFR 270.10(j) is applicable to both
operating permits and post'-closure
permits because in both types of permits
the owner or operator is required to
submit a Part B application. The -'
submittal of the Part B triggers the duty
to submit the exposure information.
Owners or operators of closed units or
active solid waste units for which a
post-closure permit is not required
would not be required to submit a Part
B. Therefore, owners and operators of
such units would not have to submit
exposure information.' . • • .
At a minimum, the exposure
information must address reasonable
foreseeable potential releases from
normal operations and accidents, the
potential pathways of human exposure
to hazardous wastes or constituents *
resulting from the releases, and the
potential magnitude and nature of the
human exposure resulting from the
releases. ' -
Section 3019 provides that exposure
• information must accompany the permit
application: the information is not part
of the permit application. In enacting
this provision. Congress intended that
the exposure information should not
delay the permitting process.
Submission of exposure information is
not a condition for permit issuance. 130
Cong. Rec. S9187 (daily ed. July 25,
'1984). Accordingly, the Agency is today
amending 40 CFR 270.10(c) to provide
that an application which is not
accompanied by exposure information
will not be deemed incomplete for
purposes of permitting a facility. This
interpretation is in accordance with the
legislative history which notes that
noncompliance with section 3019 is a
separate violation of RCRA and should
not be considered when determining the
completeness or adequacy of Part B
permit applications. 130 Cong. Rec.
S13322 (daily ed. October 5,1984).
Neither the statutory amendments n
the legislative history defines the term
"release." The statute does, however,"
provide that in conducting health
assessments, the potential,pathways of .
human exposure must be evaluated.
These pathways include ground or
surface water contamination, air
emissions, and food chain
contamination. Given the muhi-media
nature of the health assessment
pathways, and for the reasons
previously discussed in connection with
section 3004(u), it is appropriate to
model the definition of release after
section 101(22) of CERCLA. Pursuant to
section 101 of CERCLA, "release" means
any spilling, leaking, pumping, pouring,
emitting, emptying, discharging,
injecting, escaping, leaching, dumping;
or disposing into the environment, with
certain exclusions. Since the CERCLA
exclusions are not generally appropriate
for this section, the Agency will not
adopt these exclusions when defining a
"release". • • ' • •
Section 3019fa) provides that owners '
and operators who submitted Part B
applications prior to the date of
enactment of the HSWA must submit
exposure information by August 8,1985.
Section 3019(a) also provides that after
Auigust 8,1985 each Part B application •
shall be accompanied by exposure
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Federal Register / Vol.;.;50. No. 135 / Monday. July 15. 1985 / Rules and Regulations
2872-
information. The Agency intencTs that
owners and operators who submitted
Part B applications subsequent to the ~"
date of enactment but prior to August 8,
1985 must also submit exposure
information because section 3019(aJ •
requires that beginning on August 8.
1985. each Part B application shall be
accompanied by exposure, information.
A contrary interpretation would create a
gap in the implementation of section
3019 by not requiring exposure
information from owners and operators
who submitted Part B's between the
date of enactment and August 8.1985.
Such an interpretation would not be
justifiable in light of the fact that ail
owners and operators who submitted
Part BI'S prior to the date of enactment
must submit exposure information by
•August 8.1985. ....
K Delisting Procedures
The new amendments add a
paragraph (f) to section 3001.
establishing specific criteria and
procedures for delisting petitions. This
subsection requires EPA to consider
additional factors, such as constituents
other than those for which the waste
was listed, if the Administrator has a
reasonable basis to believe that such
additional factors could cause the waste
to be a hazardous waste. '
This provision is intended to eliminate
what both Houses of Congress
perceived as a defect in the standards
used by EPA to evaluate delisting
• petitions. The Senate noted that. "[t]he
Agency's practice has been to consider
only the constituents given as the
original justification for !he Agency's
decision to list a waste." S. Rep. No. 284.
98th Cong., 1st Sess. 33 (1983). This
practice, however, does not ensure that
wastes which are delisted are not
hazardous. EPA often could have listed
wastes for other constituents than those
used as the basis for the listing and cited
in Appendix VII of Part 281. A
petitioner's waste could be non-
hazardous with respect to the listed
constituents, and exempted from
regulation under recent EPA practices.
yet still be hazardous due to
constituents not considered. Id. (To the
same effect, see H.R. Rep. No. 198.98th
Cong.. 1st Sess. 57-58 (1983).) The
amendments also require the
Administrator to provide notice and an
opportunity for comment on the
additional factors considered before.
granting or denying a petition.
The statute forbids the granting of any
new temporary exclusions without
notice and comment as is currently , ••
permitted by J280.22(m) of EPA's '
regulations, since the statute calls for •
notice and comments on all petitions ~
evaluated after enactment of the
.amendmentSrWA provision in an earlier
1 Version of the House bill permitting the
continued issuance to temporary
exclusions, if notice and comment was
provided, was eliminated from the final
legislation. See H.R. Rep. No. 198. at 13.
58.
The amendments further set deadlines
for Agency action on all future petitions
received. To the maximum extent
practicable, the Agency must propose a
decision within twelve months of
receiving a complete application" and
grant or deny a petition within twenty-
four months. Unlike the self-executing
elimination of previously granted
temporary exclusions noted below, this
provision does not mean that the
petitions are granted by operation of the
statutfe if the Agency has not acted
withinihe time limits specified.
The statute also places a time limit on
the effectiveness of any temporary
exclusions granted before its enactment.
Beginning 24 months after enactment,
wastes covered by a petition granted
such a temporary exchjsion no longer
• will be exempted from RCRA
regulations, unless a final decision
granting or denying the petition, after
notice and comment, has been issued.
This provision reflects the desire of
Congress to eliminate the possibility
that a delisting petition will be
temporarily granted, without notice or
. an opportunity for comment and then
not reviewed for a final determination
within a reasonable time. See. e.g., S.
Rep., supra, at 33.
The new delisting standard and the
need for notice and comment require a
number of regulatory changes. The
Agency has changed the substantive
standard on which delisting petitions
are reviewed to conform to the statutory
mandate. In addition, today's regulation
eliminates the temporary exclusion
provision in the Agency's regulations.
"The Agency believes thet the ttatule prohibit!
temporary exclusion* es previously granted by EPA
(Le« exclusions, without notice and comment, bated
on a substantial likelihood that a petition eventually
would be granted). Exclusions still may be granted.
however, without notice and comment if the
requirements of the good cause exception. S U.S.C.
15S3(b)(3)(B). are mat.
•A complete application include* both th«
original submission by the petitioner and any
aubsequent information requested by EPA in order
to determine whether Ih* waste contains any
additional constituent* which could cause it to be a
hazardous wast*. Congress required the Agency to
consider, under certain circumstances, factor* other
than thot* for which the waste was listed. EPA does
not believe that Congress would haw expected the
Agency to make this determination without
adequate information. EPA therefore conclude* that
the time limit* incorporated in the amendment begin
to run only after the Agency ha* received all
information necuaary to determine whether the
waste is hazardous. • .
1. The New Substantive Standard
The primary change in 40 CFR 260.22
made in this regulation is to modify the
substantive standard on which defisting
petitions are evaluated, in accordance "
with the statute. The current regulation
requires that the petitioner demonstrate
to the satisfaction of the Administrator
that the waste produced does not meet
any of the criteria under which the
waste was listed and notes that a waste
so excluded still may be a hazardous
waste if it fails any of the characteristics
in Subpart C of Part 281 (40 CFR
260.22(a)). Today's regulation retains
these provisions, but requires in
addition that before a waste may be
excluded, the Administrator determine
that the waste does not satisfy any
factors other than those for which the
waste was listed or that there is no
reasonable basis to believe that such
additional factors could cause the waste
to be hazardous. This provision codifies
the two-prong test mandated fay the
amendments, i.e., the Agency must
consider both the factors for which the
waste was listed (in all cases) and the
factors and constituents other than
those for which the waste was listed (in
cases where the Administrator has a
reasonable basis to believe that these
additional factors could cause the waste
to be hazardous).
2. No New Temporary Exclusions'
The regulation eliminates the
provision authorizing temporary
exclusions, which were issued without
prior notice and comment when the
Administrator found that there was a
substantial likelihood that an exclusion
would be granted. 40 CFR 200.22(m).
Dissatisfaction with the lack of notice
and comment was a major impetus for
the revision of the delisting procedures.
See. e.q., S. Rep., supra, at 33.
Today's regulation require notice and
an opportunity for comment before a
delisting may be granted."Tie statute
mandates notice and an opportunity for
comment on the additional factors
(including additional constituents)
which the Agency now must consider.
before granting or denying a petition.
EPA regulations already require notice
and comment for petitions, other than
temporary exclusions. See 40 CFR
260.20. These provisions applied to
petitions which addressed only the
•The Agency believe* that the statute doet not
prohibit u*e of the APA provision permitting final
agency action without notice and comment if ther*
i* good cause. See 5 US.C. SS3(b](3KB). Then Is no
suggestion In the language of the amendment or the
legislative history that Congress meant to overrule
the APA. These regulations also permit the Agency
' to u*e the good cause exception.
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Rebate, / Vol. 50. NO. 135 / Monday, fuly 15. 1985 / Rules and Regulation*
constituents for which the waste was
listed. Congress wanted to ensure that
notice and comment would continue to
be required for the expanded petitions.
addressing not only the listed -., .
constituents, but any additional ' :
constituents as weiL The Agency
concludes that the Act mandates notice
and comment for all petitions, and for
the entire petition, and the regulation so
provides. .
C. Research. Development, and -
Demonstration Permit! ••
The HSWA adds section 3005(gJ
which provides EPA with authority to
issue permits for research, development
and demonstration treatment'activities.
The amendment grants EPA authority to
issue permits independent of existing
regulations relating to hazardous waste
treatment processes. EPA is directed to
include certain provisions in each permit
as well as any other requirements
deemed necessary to protect human
health and the environment With
several exceptions, the amendment also
allows waiver or modification of the
permit application and permit issuance
requirements of the general permit
regulations. •
EPA has codified this new authority in
S 270.65 of its regulations. This
regulation has four basic provisions.
Paragraph (a) of the regulation
authorizes the Administrator to issue
RD&D permits for innovative and
experimental treatment technologies or
processes for which permit standards
have not been established under Part
284 or 286. The regulation authorizes the
Administrator to establish permit terms
and conditions for the RD&D activities
as necessary to protect human health
and the environment The statutory
amendment allows the Administrator to
select the appropriate technical
standards for each RD&D activity to be
permitted. EPA is required to address
construction (if appropriate). limit
operation for not longer than one year,
and place limitations on the waste that
may be received to theme types and .
quantities of wastes deemed necessary
to conduct the RD&D activities. The
permit must Include the financial
.responsibility requirements currently in
EPA's regulations and other such
requirements as necessary to protect
health and environment. Other possible
requirements include, but are not -limited
to, provisions regarding monitoring,
operation, closure, remedial action, and •
.testing and providing information. EPA
may decide not to permit an RD&D
project if it determines that the project
even with restrictive permit terms and
conditions, may threaten human health
and environment • • . • . ..
Paragraph (b) provides that the
Agency will generally follow the
—permitting procedures of Parts 124 and
270. As authorized, EPA reserves the
right to waive or modify these
procedures to expedite permitting as
long as human health and the
.environment are protected. However,
EPA will not waive the public
participation procedures of Part 124
established under 5 7D04(b](2) of RCRA,
nor will EPA waive the financial
responsibility requirements currently in
EPA regulations.
Paragraph (c) implements the
statutory provision that authorizes the
Administrator to order an immediate
cessation of any operations at the
facility if necessary to protect human
health or the environment
Under paragraph (a) and the statutory
amendment-permits are initially to be
Issued for amaximum period of one •
year of operation. The legislative history
•provides that the permit is to be issued
for a maximum of 360 days of operation.
The 360-day time period does not refer
to calendar days, to periods of
construction, or to operation using
materials other »*""i hazardous waste.
(See 129 Cong. Rec. HS160 (daily ed,
October 8,1S63.) The permit may be
renewed up to three times for periods of
not more than one year of operating
days as provided in paragraph (d). EPA
has also amended 5 270.10(a) to provide
that procedures for issuing and
administering RD&D permits are
governed exclusively by } 270.05.
Congress made clear that RD&D
permits could cover a variety of
experimental activities, but suggested
several limitations on EPA authority.
The legislative history provides three
examples of the types of RD&D
activities which may be covered by this
section. [See 120 Cong. Rec. HS8180
(daily ed. October 8. 1S83)]. First a
common experiment involves ah
individual or company who has
designed on paper or in the laboratory
an innovative treatment system for
hazardous waste. In order to determine
whether this new technology is
technically feasible, a small pilot-scale
unit may be constructed and operated
for purposes of evaluation. If this is
successful a larger but still pilot-scale,
experimental unit may be constructed to
demonstrate the reliability, economic
feasibility, and environmental impacts
of the process.
A second type of hazardous waste
management experiment involves an
equipment vendor and a waste-
generating or processing customer.
Vendors often custom prepare storage
and processing equipment that is, tanks.
incinerators, etc, based on a customer's
individual needs, and this may require
one or more tests with a pilot facility
using samples of the customer's waste.
And third, a manufacturer or user of a
particular commercial treatment process
^ may want to improve its efficiency or
effectiveness or reduce environmental
impacts. This may involve the
construction of a pilot-scale treatment
unit that will be operated in an '
experimental mode to test new wastes
or alternate operating conditions. This
list of examples is not an exclusive list
of the activities that may be permitted.
' Congress also explained how it
expected EPA to operate in issuing
RD&D permits. Under this section, EPA
may permit (1) treatment technologies. -
processes, methods, or devices that are
innovative and experimental (2) for the "
sole purpose of gathering information to
evaluate their technical or economic
feasibility. These factors are discussed
below.
Fast, innovative and experimental
treatment technologies or processes
intended to be covered by this section at
a minimum include experimentation and
demonstration with technologies that
have never been utilized in commercial
application, as well as further
refinement and development or
performance testing of technologies that
in some form, have been operated in a '
commercial capacity.
Second, under a permit EPA may
allow the experimental treatment
activities and associated storage. Such
permits will not authorize disposal of
hazardous waste. The disposal of
hazardous waste must occur at a facility
which has received a RCRA permit
under Part 234 or which has interim
status. RD&D permits may only be
issued for the purpose of demonstration
or evaluation of the economic or
technical feasibility of a particular
treatment technology, process, method.
or device and associated storage. If the
waste management activity related to
the technology, unit, process, or device
is used at any time to store or treat
waste for any reasons other than the
conduct of a treatment experiment it
must be permitted and operated in
accordance with all applicable sections
of 40 CFR Parts 284 and 266. Id.
H. State Authorization
HSWA made several significant
changes regarding the authorization and
implementation of State hazardous
waste programs. Part 1 of this section
discusses the new, dual State-Federal
regulatory program in authorized States
and some conforming changes to the
State authorization regulations in Part
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287:
271 necessitated by the HS\5{A. Part 2 authorized States. Because of new
discusses section 3006{f). a new" section 3006(g). the requirements and
provision requiring authorized States to prohibitions-stemming from the
make information about hazardous - —^amendments take effect immediately in
waste facilities available to the public to all States, regardless of any less
the same extent that EPA would make ' ' —
the same information publicly available.
Part 3 discusses the extension of the
expiration date for interim authorization
under the 1976 RCRAiftior to the
•HSWA, responsibility fofThe RCRA .
program in a State with interim
authorization would have reverted to
EPA on or before January 26,1985 if the
State had not yet obtained final
authorization. Part 4 discusses the new
type of Interim authorization under the
HSWA.and the requirements States .
must meet to obtain and retain final
authorization ("moving target" and
program revisions).
The preamble to the proposed rule to
be published as a companion to this rule
addresses additional issues pertaining
to State authorization under the HSWA.
Both preambles should be read together.
1. Applicability of Today's Rule in
Authorized States
New section 3006{g) of RCRA
provides that any requirement or
prohibition which is applicable to the
generation, transportation, treatment.
storage, or disposal of hazardous waste
and which is imposed under the 1984
Amendments shall take effect in each
authorized State on the same date as
such requirement or prohibition takes
effect in non-authorized States. The
Administrator is directed to carry out
•uch requirements or prohibitions
directly in an authorized State until the
State is granted authorization to do so.
This includes the authority to issue or
deny permits or portions of permits
where the State is not yet authorized to
implement the requirements and
prohibitions established by the
amendments. (Section 227.)
These amendments dramatically alter
the existing Federal-State relationship
under section 3006 of RCRA. Before the
amendments, pursuant to sections
3006(b) or 3006(c). States with final
authorization or all phases of interim
authorization administered their
hazardous waste program entirely in
lieu of EPA. Changes to the Federal
Subtitle C program did not take effect
automatically in such States; States
needed to revise their programs to
include those changes and receive EPA's
approval. Further. EPA could not issue
permits for any facilities covered by the
Slate permitting program which EPA
had approved. See 40 CFR 264.1(f).
271.1(0.271.121(1).
In contrast, the new amendments
create a dual regulatory system in
stringent State statute, regulation, or
permit For example, even though a
facility may now hold a State RCRA
permit allowing it to dispose of bulk
liquid waste in a lined landfill. RCRA
prohibits it from doing so after May 8,
1985. (See section V.A.I, of preamble.)
And. even though authorized States
have previously promulgated their
permit application requirements.
facilities in all States will have to <
comply with new Federal permit
application requirements in Part 270.
EPA reviewed today's rule to
determine which provisions in it are
"requirements or prohibitions" that are
applicable to the generation.
transportation, treatment, storage, or
disposal of hazardous waste. EPA
concluded that all of the provisions in
the rule are requirements or
prohibitions. They therefore take effect
in authorized States and are.f ederally
enforceable.
The Agency started its analysis with
the Conference Report which specified
that certain requirements and
prohibitions should take effect
immediately in all States. (130 Cong..
Rec. H11134 (daily ed. Oct. 3.1984).)
With the exception ef the "Liquids in
landfills" provision, these provisions
were in the Senate version of the HSWA
and appear in 3001(d){3). (5), 3004(c), (1).
(o). (r). (u), 3005(c)(3), 3007(e)(l). 3015.
and 7010. as enacted. In addition. EPA
concluded that the household waste
exclusion in section 3001 (i), the delis ting
procedures in section 3001(f), the
requirements concerning corrective
action and ground-water monitoring in
section* 3004(p). (v), 3005(i). the
prohibition concerning salt domes in
section 3004(b), the ban on hazardous
waste in cement kilns in section
3004(q)(2)(Q. the requirement for health
assessments in section 3019. the
preconstmction ban in section 3005(a).
the termination of interim status and
extension of interim status requirements •
in section 3005(e), and the waste
minimization requirements in'section
3002(a)(6). (b) and 3005(h) are
requirement!! and prohibitions. EPA also
concluded that the requirements
concerning hazardous waste exports in
section 3017(g) were requirements
concerning the generation and
transportation of hazardous waste.
Finally, the Agency analyzed the
statute to determine whether EPA's
authority to issue research and
development permits under section
3005(g) is a requirement concerning the
treatment of hazardous waste. In doing
so. EPA considered whether sec1
3005(g} is the type of provision t
Congress would have wanted El .e
able to implement directly in authorized
States pursuant to section 3006(g). EPA
concluded that section 3005(g) was *
intended to be implemented by EPA in
the case of an authorized State which
does not have State legal authority to
issue permits to these types of facilities.
While the language in section 3005(g) is
discretionary ("The Administrator may
issue a research, development, and
demonstration permit ). EPA does
not believe that Congress, in amending
the statute to encourage new and
innovative technologies and to allow
permitting before section 3004 standards
are developed, intended to preclude the
issuance of permits to research and
development facilities in authorized
States.
Thus, pursuant to 3005{g) and 3006(g).
EPA is able to issue a research and
development permit, in consultation
with the State, to encourage
development of the innovative
technology. However, as discussed next,
an EPA permit could not override more
stringent State requirements governing
the facility or precluding its construction
or operation without a State permit.
Some of these new requirements and
prohibitions provide for variances and
exclusions. For example, exempti
from liner and ground-water rnon
requirements are available under u ,1
conditions. See. e.g.. § 264.90(b)(2).
. 5 264.221(d). In addition, facilities
constructed to incinerate PCBs pursuant"
to EPA's approval under section 6(e) of
the Toxic Substances Control Act are
exempted from the preconstructipn ban
in new 40 CFR 270.10(f)(l). See section
3005(a) of RCRA, as amended.
The Agency considered whether a
variance or exclusion from such" a
requirement was itself a "requirement"
or "prohibition" of the Act. EPA
concluded that the entire provision on a
subject matter—such as minimum
technological requirements—should be
treated as the "requirement" or
"prohibition" since all the subparts are
related. However, section 3009 of RCRA
and existing 40 CFR 27l.l(i) and 271.121
provide that nothing in RCRA prohibits
States, political subdivisions, or
localities from imposing more stringent
requirements than those in EPA's RCRA
regulations. Thus, any State or local
requirement that is more stringent than
a requirement or prohibition in today's
rule remains in effect under State or
local law.
As a practical matter, this means that
facilities in authorized States may not
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28730
Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rule9 and Regulations
be able to benefit from the Federal,. specify which EPA regulations
exclusions and variances as would Implement HSWA since these
facilities in non-authorized States iinleas_. requirements arrfinmediatery effective
and until the authorized Sfnto nmonrf. in a77*k«^.«j c>.»_. -n in.~*.
and until the authorized State amends
its more stringent regulations or
enabling authority. That result is
compelled by the Act; nothing in the
amendments or legislative history
suggests any Congressional intent to
override section 3009 or preempt more
stringent State requirements. Thus, the
universe of the more stringent .
provisions in the authorized State
program and today's rule defines the
applicable requirements. Each member
of the regulated community must
familiarize himself with both th« State
and Federal regulations to be assured
that he is in compliance with all
applicable requirements. EPA may
" enforce any violation of the authorized
State program, the HSWA. or today's
rule; a State may. of course, enforce
violations of its requirements regardless
of authorization status.
The Agency also wishes to emphasize
• that future regulations implementing the
requirements and prohibitions in the
HSWA will take effect in authorized
States at the same time that they take
effect in non-authorized States. For
example. EPA may publish additional
regulations further defining the double
liner requirement in today's rule. Eve'n
though a State may receive
authorization for today's double liner
requirements, any new EPA regulation
on double liners will be applicable in
that State until the State receives
authorization for the newly-amended
double liner requirement Thus, a State's
authorization status may change in
response to further implementation of
the HSWA. The Federal Register notices
promulgating new requirements will
explain their applicability in authorized
States.
EPA has made various changes to Part
271 to reflect EPA's new authority in
- authorized States. In 5 27l.l(a). a
reference to section 3006(0 of RCRA has
been added since a new State
authorization requirement appears in'
section 3006(f). Sections 271.1(f). 271.19.
271.l21(f). and 271.134 have been
amended to reflect the Administrator's
'new authority under sections 3006(c)
and (g) to issue permits in authorized
States. Without these changes the
regulations would continue to prohibit
EPA from permitting facilities in
authorized States.
A new section. 271.1(fJ. has been
added to identify the Federal program
requirements and prohibitions that are
promulgated or take effect pursuant to
HSWA. The Agency determined that It
was extremely important to clearly
In authorized States. These HWSA
provisions also impact whether interim
or final authorization is available to
States as discussed in detail in following
sections of this preamble. Therefore, the
Agency is creating a table in § 271.1(5}
that lists the HSWA regulations
promulgated to date (specifically, the
January 1985 dioxin waste listing and
today's final codification rule). Future
regulations promulgated under the
authority of the HSWA will be added to
the table in 1271.1(fl.
Sections 271.3(a) and 271.l21(c](3J
have been amended to reflect section
- 3006, as amended by the HSWA. and
section 3009. They now describe the
respective Federal and State roles in
adminisfe&jg Subtitle C and indicate
that all of the HSWA requirements
identified in 5 271.10) take immediate
effect in authorized States. In addition.
5 271.24 aed 1271.138 have been added
and j 27r.21(e)(l)(i) and § 271.121(a)
amended, to refer to the availability of
interim authorization under the HSWA.
EPA also amended Ji 284.1(0 and
265.1(c)(4) to clarify that the regulatory
modifications to Parts 264 and 285 made
by today's rule apply to the regulated
community in authorized States until a
State receives authorization to carry out
the new requiremerits.'This change is
necessary to reflect section 3008, as
amended, and is consistent with the
other amendments to Part 271.
2. Public Availability of Information
Section 3006(0 provides that
information obtained by authorized
States regarding facilities and sites for
the treatment, storage, and disposal of
hazardous waste must be made
available to the public hi substantially
the same manner, and to the same
degree, as would be the case if EPA
were carrying out the RCRA program in
the State. Previous to the HSWA. the
only EPA requirement in this area was
that the name and address of a permit
applicant could not be withheld from the
public. See 40 CFR 270.12(b); 271.14(0.
Initially. EPA has interpreted "In
substantially the same manner" in
section 3008(0 to refer to the procedures
EPA employs in deciding how and when
to release information under the
Freedom of Information Act (FOIA). 5
U.S.C. 552. EPA has interpreted "to the
same degree" to refer to the type and
quantity of information that is released
under EPA's FOIA regulations. Further
the Agency has concluded that
information regarding facilities and sites
would at least cover information
relating to permitting, compliance, and
enforcement and include information
gathered under section 3007 of RCRA (or
a State analogue). Section 271.17(c) has
been amended to address section
3006(0.
EPA's procedural and substantive
regulations implementing FOIA and
governing the treatment of confidential
business information are set forth in 40
CFR Part 2. Any State requirements
which are equivalent to those
regulations will satisfy section 3006(0-
While the use of "substantially the same
manner" In section 3006(0 seems to offer
the opportunity for greater flexibility
than an equivalent standard. EPA has
not had the opportunity to identify
whether different standards are feasible.
Thus, today's final rule does not go
beyond the statutory language, thereby*
allowing case-by-case judgments about
whether a State has satisfied section
3006(0-
Another issue concerns the effective
date of the section 3006(0 requirements.
The HSWA does not clearly indicate
whether a State may receive final
authorization after the date of
enactment if its application does not
demonstrate equivalence to section
3006(0. Section 3006(0 could be read as
requiring any State which did not
receive final authorization by the date of
enactment to demonstrate compliance
with the new requirement in order to be
authorized. EPA rejects that reading
because the Agency believes it is
inconsistent with the statute as a whole
and the legislative intent.
Section 225 of the amendments
specifically amended section 3006(b) to
allow the Administrator to authorize a
State program that is not fully
equivalent to the Federal program. That
amendment was intended to assure that
last minute changes to the Federal
program which the State did not have
time to adopt would not prevent an
otherwise qualified State from obtaining
final authorization. Further, the
Conference Report while ambiguous.
does stress the need to allow States
sufficient time to amend their programs
to implement section 3006(0. 130 Cons
Rec. H11134 (daily ed. Oct. 3.1984). The
Report in fact specifically refers to
EPA's regulations in 40 CFR 271.2i(e)
concerning the phase-in of new Federal
requirements.
Accordingly, EPA concludes that
States now applying for final
authorization are not legally required to
have an analogue to section 3006(0(1).
Such States, and States which have
already received final authorization
without demonstrating compliance with
section 3006(0. are required to revise
their programs to demonstrate
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Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rule3 and Regulations
28731
compliance pursuant to the time
schedules in f 271-21 (e). [See p*rt4 of
this preamble which, summarizes ~~
I 27t2l(e). The Agency intend* to
propose a rule which describe* . ~~
i 271.21(e) in depth,} • •- - . .
EPA notes that interim authorization.
as described in lections 227 and 223 of
the 1984 amendments, U not available
for this new requirement. Congress
made section 3006(f] an independent
requirement that is subject to Uia
standard in that provision, and not to a
test of "equivalency" or "substantial
equivalency." Thus, any State with final
authorization or applying for final
authorization to carry out the RCRA
program must demonstrate fnH
' compliance with section 3006{f) within
the timeframe* specified-in | 271.21(e}.
States applying'for interim authorization
need not address this provision.
9. Extension of faferim Authorization
Expiration Bate-" _. . . ;
• Section 3008{c) of RCRA. a* enacted
' in 197B. allowed EPA to grant "interim
authorization" to a State program that
EPA determined was "substaanaQy
equivalent" to the Federal program. EPA
established a phased approach to
interim authorization: Phase L covering
the EPA regulations in 4O CFR Parts 280-
263 and 285 (universe of hazardous
wastes, generator standards, transporter
standards, and standards for interim
status facilities) and Phase n.'covering
the EPA regulations in 40 CFR Parts 124.
264. and 270 (procedures and standards
for permitting hazardous waste
management facilities).
' Phase U. in turn, bas three
components. Phase HA covered general
permitting procedures and technical
standards for containers, tanks, surface
impoundments, and waste piles. Phase
HB covered incinerator facilities, and
Phase HO addressed landfills and land
treatment facilities. Some States were
authorized only for Phase t other*
received interim authorization for aQ
Phase I and n component*.
By statute Phase I and 0 interim
authorization were to expire after me
twenty-four month period beginning on
the date six months after the date of
promulgation of regulation* aider
section 3002 through 3006. (That
* expiration date was January 28. 1965.)
However, Congres* amended section '
3008(c) to provide that interim
authorization nnder the 197S Act end*
aoktw Aan January W. 19M.-
EPA has amended 1271.122XbHl) to •
reflect the new statutory date. Tka
Regional Administrator's *xi*ting
authority in i 27l.i37(a) to extend the
deadlines IB section 271.137t«) to • •
January 31,19» may o*wd if the •• ,
"good cause" finding in that provision
can be made.
Under J 271.l37(a). State programs
_^ .which-received-Interim authorization for
orflypart of me RCRA program were
supposed to revert to EPA by a certain
date if the State failed to apply for
• interim authorization for all components
• of the interim authorization program or
for final authorization. However, the
Regional Administrator was allowed to
extend this deadline for "good cause,"
thereby avoiding reversion.
When EPA promulgated ] 271.137fa),
the Agency did not anticipate that this
- deadline could extend to January 31.
1888. However. EPA believes it i*
appropriate for the Regional
Administrator to use J zn.!37[a] for
that purpose ff"good cause" exists.
Otherwise. States which are diligently
proceeding toward final authorization
would loat their interim authorization
because of their inability to obtain final
authorization before the January 1986
statutory deadline,
4. Authorization Under the HSWA:
Application and Revision Requirements
• Congress provided in section
3006(g)(2) that any State which has been
granted interim or final authorization
before the enactment of the HSWA may
apply for interim authorization to carry
out any requirement of the HSWA
which takes effect in authorized States
(i.e., today's rule and subsequent rules
implementing the HSWA). If the
Administrator fir**-? that the State
requirement is substantially equivalent
to the Federal requirement, he is
directed to grant the State interim
authorization to carry out the
requirement in lieu of EPA. Thus, as in
the 1976 RCRA, States have an
opportunity for a developmental period
of interim authorization before they are
required to b« equivalent to and no ten
. stringent«»"»" the HSWA program.
Several significant issues have arisen
concerning implementation of section
3006(g) and its relationship to the
deadline* States must meet to obtain
and maintain final authorization. Some
of these issues are discussed here and
others are discussed in the preamble to
the proposed rule to be published in the
near future.
To mJnirnrnt confusion, EPA has used
"1976 interim authorization' to refer to
Phase I aad Phase 0 interim
authorization nader RCRA a* enacted in
1976, and "1984 interim authorization" to
refer to the new type of interim
authorization under the HSWA.
Occasionally. "HSWA interim
authorization" is sotaatituled for 1964
Interim authorization.
a. Impact of HSWA on Existing
Authorized State Programs. One :r-
concerns the impact of the atnendr
on authorized States which have
requirements that are more stringent or
broader In scope than those required bv
Part 271 before the HSWA. At the time
some States received 1976 interim
authorization or final authorization, me
State program may have included
provisions the State believes are '
substarltially equivalent (or equivalent)
to some of the requirements in today's
rule. The question hat arisen about
whether such States automatically have
1984 interim authorization for those
requirements. EPA does not believe the
statute allows this result.
Section 3006(g](2) specifically allows
an authorized State to submit an
application demonstrating that its
"existing program contains (or has been
amended to include)" substantially
equivalent requirements. If States were
already authorized with respect to tho««
requirements, there would have been no
need for the reference to existing
programs in the above provision. Thus.
the statute contemplates that any State
seeking authority to administer the 1984
amendments in Lieu of EPA must submit
an application for EPA's approval Until
the application is approved, EPA would
enforce the Federal requirement.
It could be argued that this aspect
the amendments imposes an
unnecessary burden on (he States. In
fact submission of a new application
serves several important functions.
When the State submitted its original
application for 1976 interim
authorization or Bn^l authorization, the
State's Attorney General would not
have been able to certify substantial
equivalence (or equivalence) to the new
amendments since the amendment* had
not yet been passed. For the same
reason. EPA could not have determined
whether the State's regulations properly
implemented the amendments. Finally.
the public would not have had the
opportunity to comment on whether the
State's requirements were substantially
equivalent (or equivalent).
In sum. major elements of the
authorization process have not been
satisfied for those State*. Accordingly.
they must still submit an application to
receive 1964 interim authorization.
However, the application need not be
lengthy or complicated. While an
Attorney General's statement will
always be required, little explanation
will be required where the State**
authority i* clear. Further, all revision*
will not require addenda to me program
description or a memorandum of
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28732 Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / RuJes and Re?u}atians
agreement. EPA will issue further
guidance in this area. ^__
b. Applications and program
revisions: deadlines and requirements.
The relationship of 1984 intenn
authorization to final authorization
raises several issues relating to
§ 271.21{e). Section 271.21(e) (as
amended. 49 FR 21678. May 22,1984)
specifies which regulations a State must-
adopt to receive final autfibrization
("moving target") and contains .
deadlines by which States with final
authorization must modify their
programs to adopt new Federal "" -
requirements.
In summary, any State applying for
final authorization for the pre-HSWA'
.RCRA program after November 8". 1985
must have authority for those HSWA
« statutory provisions taking effect on
November 8,1984. and any State
applying for final authorization after
July IS, 1986 must also have authority for
the final rule appearing today. However,
a State program applying for final
authorization before those dates need
not have the authority described above.
Any State with final authorization.
regardless of the date it received or will
receive final authorization, must modify
its program by-November 8,1985, to
reflect the HSWA provisions taking
effect on November 8.1984 if only
regulatory changes are necessary to
change the State program, or by
November 8.1986 if statutory changes
are needed. Similarly, such- States must
modify their programs to reflect today's
final rule by July IS. 1986 or July IS. 1987
depending on whether regulatory or
statutory changes are necessary.
Extensions of up to six months for these
deadlines are available in certain
circumstances.
The above interpretation reflects
EPA's legal construction of 5 271.21(e)
as revised today to reflect HSWA. In
addition, the Agency is proposing some
major changes to 5 271.21(e} which will
be discussed at length in the preamble
to the proposed rule to be published hi '
the near future. If adopted, many of the
deadlines presented here will change.
b.l. States Applying for Final
Authorization. Section 3006(b) of RCRA
was amended by HSWA to provide
, more specificity with regard to the
requirements that apply to a State
submitting an application for final
authorization. It allows EPA to grant
final authorization to a State program
which is not equivalent to the Federal
program in effect at the time of
authorization, provided that the State
program is equivalent to the Federal
program in effect one year prior to •
submission of the State's application for
• final authorization. . • *
Section 271.21(e) currently requires a
State application to be reviewed based
pn the Federal program existing 12
—months prior to application submission
unless the State has made a good faith
effort to meet the 12 month deadline and
applies for an extension. Because the
opportunity for an extension in current
J 271.21(e)(l)(ii) would allow the State
program more time than provided in
Section 3006(b) to adopt changes to the
Federal program we- are deleting that
provision.
EPA is today adding a new £ 271.24 to
make clear that States which apply for
authorization after November 8,1984.
may apply for interim authorization for
the HSWA provisions. Section 3006(b)(l)
of RCRA. like existing $ 271.21(e)(l).
uses equivalence as the legal standard
for final authorization, suggesting that a
State applying for final authorization
after November 8,1984. would have to
apply for Mitel authorization for both the
pre-HSWA RCRA program and post-
HSWA requirements. However, section
3006(q) offers States the opportunity to
apply first for interim authorization for
the new amendments. The 1984 interim
authorization, like 1978 interim
authorization, allows a State to
demonstrate that its program is
"substantially equivalent" to EPA's.
rather than "equivalent to and no less
stringent than" EPA's.
EPA reads the two statutory
provisions together to offer States
applying for final authorization for the •
pre-HSWA program the opportunity to
qualify for either 1984 interim
authorization or final authorization to
carry out the new amendments. A
contrary reading requiring States to be
equivalent to the new amendments
would effectively deny them any
opportunity to receive 1984 interim
authorization—a result EPA has no
reason to believe Congress intended.
A State which does choose to meet
the "moving target" deadline by seeking
1984 interim authorization for portions
of its program will have to obtain final
authorization for those portions at a
later date. That date has not been
determined yet because, under the
statute, it will be the same date that
HSWA interim authorization expires.
That is. if HSWA interim authorization
were to expire, for example, on February
1.1990. States with HSWA interim
authorization would have to obtain final
authorization by that date. In the
proposed rule that will appear in the
Federal Register, EPA discusses various
options for the expiration date of interim
authorization under HSWA.
Section 271.21(e) is not expected to
affect the application process for States
which do not yet have final
authorization for the pre-HSWA RCRA
program. In order for States to receive
final authorization before the expiration
of interim authorization under the 1976
RCRA. they will have to submit their
applications to EPA by this summer—
several months before the time they
would be required to adopt
requirements based on the HSWA
provisions that took effect upon
enactment of today's rule. Thus, the
HSWA should not delay the
authorization of any State which
planned to receive final authorization by
January 31.1986. \
States applying for final authorization
are not. however, relieved of the
obligation to adopt regulations based on
today's rule. To the contrary, those
States must also proceed to adopt State
analogues to the HSWA provisions'that
took effect on November 8,1984 and
today's rule. States must read J 27l.21(e)
carefully: because of the deadlines
discussed there, it is possible that a
State will be required to have completed
its program revisions by about the same
time it expects to receive final
authorization. It should be noted.
however, that EPA will propose major
changes to $ 271.21(e) that would change
or suspend many of the deadlines
discussed above. The preamble of the
proposed rule will describe the proposed
amendments in detail..
. b. 2. States with Final Authorization.
An analogous change has been made to
§ 271.21 (e)(2) that provides for interim
authorization for States that have final
authorization for the pre-HSWA RCRA
program. As previously written, these
provisions would have required States
which already have final authorization.
or which will receive final authorization
before expiration of the $ 271.21(e){l)
deadline for making changes, to modify
their programs within one or two years
of this rule to become equivalent to the
Federal program. Since Congress has
now provided the opportunity for
interim authorization for new
requirements under the HSWA, the
Agency has concluded it is also
necessary to allow States the option of
complying with those deadlines by
modifying their programs to become
substantially equivalent to the Federal
HSWA program (the test for interim
authorization). Retaining the former
provisions would have diminished the
utility of 1984 interim authorization to
such an extent that the statutory
purpose would not have been achieved.
As explained before, however. States
which obtain 1984 interim authorization
will be required to obtain final
authorization subsequently.
-------
prior to the applicable f 271.21(e)
deadline. A State need cot seek
authorization for all provision* at once.
Indeed. States should apply now for
interim or final authorization for any
major portions of today'* rule for which
they already have legal authority.
However, for those areas hi which a
State needs to amend its regulations at
statute. EPA strongly encourages the
Slate to submit one program revision
application and not several piece-meal
applications. This consolidation of State
program revisions would minimi™
repetitive Slate and EPA involvement in
the approval process.
States should note that they may not
apply for final authorization to
implement requirements of the HSWA if
they have only interim authorization for
the pre-HSWA RCRA program. States
with interim authorization for all
components of pre-HSWA program may
apply for and be granted interim
authorization for the new requirements
However. ! 27l,138(b) specifies that if
the State fails to receive final
authorization for the pre-HSWA
program by January 31.1986. its program
(both pre-HSWA and HSWA) will revert
to EPA on that date.
Finally, States shoold be aware that
the deadlines for obtaining final
authorization in i 27l.2l(e) have'not
changed regarding regulatory
amendments unrelated to
implementation of HSWA. For example.
States must adopt regulations equivalent
to the recently promulgated redefinition
of solid waste (50 FR 614. January 4.
1985) within the one- or two-year
deadline specified in * 27L21(e); interim
authorization is not available. When
EPA promulgates new RCRA
regulations, the Agency will distinguish,
between those that implement HSWA
requirement! and thcwtlut do not •
/. Hazardous Waste Exports
1. Today's Amendment! •
A« part of the HSWA, Congress
enacted section 3017 governing the
. export of hazardous waste. Generally.
section 3017 prohibits the export of
hazardous waste unless the person •
exporting such waste: (1) Provide*
notification to the Administrator: (2) the
government of the receiving country has
consented to accept the waste: (3] a
copy of the receiving country's written '
consent is attached to the manifest
which accompanies the shipment and
(41 the shipment conforms to the terms
oftheconsent • ,..v. '.,. -.' -.
a— • —••••***.!** v>* i
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28734 Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and Regulations
are exempt from this requiremeBtfiince
section 3002(b) refers to "the manifest
required by [section 3002] subsection _
(a)[5)" and the7special manifest
provisions for small quantity generators
are imposed by section 3001(d). not
section 3002(a)(5). See S. Rep. No. 284.
98th Cong.. 1st Sess. 67 (1983).
The legislative history Jtc section
3002(b) makes clear that Congress1
objective in enacting this section was to
encourage generators of hazardous
waste to voluntarily reduce the quantity
and toxicity of waste generated. S. Rep.
No. 284. 98th Cong.. 1st Sess. 86 (1983).
The amendment does not authorize EPA
to interfere with or to intrude into the
production process by requiring
standards for waste minimization:
rather it specifically provides that the
.substantive determinations of
. "economically practicable" and
"practicable method currently
available" are to be made by the
generator in light of his own particular
circumstances. Thus, from an
enforcement perspective, the Agency
will be concerned primarily with
compliance with the certification
signatory requirement. Each generator
subject to the waste minimization
requirement should make a good faith
effort to minimize the amount and
toxicity of waste generated and to select
a means of treatment, storage, or
disposal most likely to minimize the
present and future threat to human
health and the environment
Section 3002 was further amended to
include a new requirement that
generators submit, at least once every
two years, a report describing their
efforts to minimize waste generation.
EPA is thus amending § 262.41. which
currently requires submission of a
biennial report to add two additional
waste minimization information items
required by the recently enacted section
3002(a)(6).
Congress also amended section 3005
of RCRA to provide that, effective
September 1.1985. RCRA permits for the
treatment, storage, or disposal of
hazardous waste on the-premises where
the waste was generated must contain a
certification by the permittee regarding
• efforts taken to minimize the amount
and toxicity of the generated wastes. In
order to implement this amendment.
EPA is today adding a new provision
S 264.73(b)(9) which provides that the
permittee record the waste minimization
certification in the written operating
record kept at the facility. The Agency is
also amending S 264.70 to provide that
S 284.73(b)(9) is only applicable to
permittees who treat, (lore, or dispose
of hazardous waste on the site where
such waste was generated. In order to
make it clear that this certification is
-iSiDplicable to permits, the Agency is
today amending | 270.30(j](2) to provide
that the requirement to retain the
operating record is a RCRA permit
condition.
K. Financial Responsibility '
Section 205 of the HSWA modifies
section 3004 of RCRA by adding
subsection (t) with respect to financial
responsibility requirements. EPA does
not believe that any new regulations are
required to implement section 3004(t).
Section 3004{t)(l) affirms the action
already taken by EPA in establishing
financial responsibility requirements in
40 CFR Parts 264 and 285, Subparts H.
While the trust fund and State-required
mechanisms are not mentioned in the
statute'a~r a means of providing financial
assuranceVor closure and post-closure
care or corrective action, there is no
evidence that Congress intended to
eliminat!|>either approach as a
permissible mechanism: EPA believes
that the trust fund is a viable instrument
for the assurance of closure and post-
closure care or corrective action and
that the trust fund is particularly well-
suited for small firms. The Agency uses
standby trust funds to collect money
from surety bonds and letters of credit. •
Without the standby trust funds, all
monies collected from the instruments
would revert to the U.S. Treasury and
the Agency would not be able to draw
on those funds directly for closure and'
post-closure activities. Accordingly, the
Agency will continue to allow the trust
fund to be used for financial assurance
under Subpart H.
Section 3004(t)(2) provides for the
assertion of a claim directly against the
guarantor providing evidence of
financial responsibility in cases where
the owner or operator is in bankruptcy.
reorganization or arrangement pursuant
to the Federal Bankruptcy Code, or
where judicial jurisdiction cannot be
obtained over an owner or operator
likely to be solvent at the time of
judgment
EPA interprets this provision to allow
for "direct action" against persons
providing insurance to owners or
operators under 40 CFR i S 284.147 and
265.147. While the working of the statute
allows direct action against
."guarantors." defined in section
3004(t)(4) to include persons who
provide evidence of financial
responsibility under that section, the
remarks of Senator Moynihan. who
introduced the direct action amendment,
indicate only an intention to allow
injured parties to assert ciaimi directly
against insurers where action against
the owner or operator would be
fruitless. 130 Cong. Rec. S9176 (da.lv ed.
July 25.1984).
The liability insurance requirements
in 55 264.147 and-265.147 are designed to
provide assurance for injuries caused to
persons and property by hazardous
waste disposal facilities. However, there
is no "injured party"perse when an
owner or operator fails to comply with
applicable closure and post-closure
requirements. Only EPA can require that
such obligations be performed.
Moreover, the mechanisms allowed by
EPA to provide closure and post-closure
assurance were crafted to ensure that
EPA could direct that the monies
assured by the mechanisms be applied
to closure and post-closure costs,
whether or not the owner or operator
was available or solvent. For these
reasons, the Agency does not believe
that the direct action amendment has
any applicability to the mechanisms
required for financial assurance of
closure or post-closure care.
L Underground Storage Tanks
The HSWA adds Subtitle I to RCRA
to govern the regulation of underground
storage tanks that are not subject to
regulation under Subtitle C. Section 9001
of Subtitle I defines "underground
storage tanks" as any one or
combination of tanks (including any
connected underground piping) which.
has ten percent or more of its volume '
beneath the surface of the ground
(including the volume of connected
pipes) and which is used to store
"regulated substances." Regulated
substances include (1) any substances
defined as "hazardous substances" in
section 101(14) of the Comprehensive
Environmental Response, Compensation
and Liability Act of 1980 (CERCLAJ that
are not regulated as "hazardous wastes"
under Subtitle C. and (2) petroteum.
including crude oil or any fraction
thereof. Expressly excluded from the
definition of underground storage tanks
are:
are:
(1) Farm or residential tanks with a
capacity of 1.100 gallons or less used to
store motor fuels for noncommercial use.
(2) Tanks used for storing heating oil
for consumptive use on the premises
where stored.
(3) Septic tanks.
(4) Pipelines regulated under other
acts.
(5) Surface impoundments, pits.
ponds, or lagoons.
(6) Storm water and waste water
collection system*.
(7) Flow-through process tanks.
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Federal Register / Vol. 50. No. 135 / Monday, July 15. 1985 / RuW and Reflations
. (8] Liquid traps or associated..
gathering line* related to oil or gas .. ;
production and gathering operations.'
(9) Storage tank* located in an ~"
underground area (such as a basement.
cellar, mineworking, drift, shaft, or
. runnel) if the tank is situated.upon or
above the surface of the floor.
Subtitle I establishes a comprehensive
scheme for the regulation of
underground storage tanks. Some of its
provisions require EPA to promulgate
requirements. Others go into effect
. without action on the part of EPA. The '
major provisions of Subtitle I include:
(1) A notification provision requiring '
that all owners of currently-used tanks
and non-operational tanks'taken out of '
service after January l, 1974, notify
designated State and local agencies of
the existence of their tanks (section
9002). • .
(2) A requirement that EPA • ' •'.
promulgate regulations governing
petroleum tanks within 27 months.
regulations governing new tanks
containing hazardous substances within
33 months, and regulations governing
existing tanks containing hazardous
substances within 45 months (section
9003). •
(3) A prohibition against the
installation of new tanks that do not
satisfy enumerated statutory
requirements (section 9003(g}).
(4) A provision for the approval of
State underground storage tank
programs that are no less stringent than
Federal regulations promulgated under
section 9003 (section 9004).
(5) A provision providing EPA
authority to inspect facilities, conduct
monitoring and testing at facilities, or to
require tank owners to conduct
monitoring and testing and to provide
Information pertaining to their tanks to
EPA (section 9005).
(8) A provision providing EPA
——————— * wMWMg** U4« uao ui
administrative orders, injunctions, or
dvil penalties (section 9008). •
, (7) A provision making tanks within
the control of Federal government
subject to Subtitle I requirements
(section 9007). .
(8) A requirement that EPA conduct
, the following studies: (i) a study
concerning petroleum tanks within 12
months: (ii) a study concerning tanks
containing hazardous substances within
38 months: and (Hi) a study concerning
exempted farm and heating oil tanks
within 38 months (section 9009}
section prohibits the installation of any
new underground storage tank for the :
purpose of storing regulated substances
unless (A) the tank will prevent releases
due to corrosion or structural failure for
the operational life of the tank: (B) the
tank is cathodically protected against .
corrosion, constructed of noncorrosive
material, or designed in a manner to
prevent the release or threatened
. release of any stored substance: and (c)
the material used in the construction or
lining of the tank is compatible with the
substance to be stored. Notwithstanding
the above requirements, section
9003(g)(2) permits the installation of
tanks without corrosion protection in
soU with a resistivity of 12,000 ohm-cm
or more. Today EPA is adding Part 280
to its regulations to incorporate the
interim .prohibition of section 9003(g)
New ^ ..
VL Regulatory Analysis
A. Executive Order 12291: Regulatory
Impact Analysis
Executive Order 12291 requires each
Federal agency to determine if a
regulation is a "major" rule as defined
by the Order and "to the extent
permitted by law," to prepare and
consider a Regulatory Impact Analysis
(RIA) in connection with every major
rule. OMB has indicated that the
regulation promulgated today is a major
rule; however, OMB has also concluded
that this rule is exempt from the RIA
requirement The exemption is based on
Section 8 of the Executive Order,
Exemptions, which states that
procedure! prescribed by this order «hall not
apply to: • • • (2) Any regulation for which
consideration or reconsideration under the
term* of the order would conflict with '
deadlines imposed by statute or by judicial
order.
Subtitle L the interim prohlbitioS of V
• section 9003(g) will go into effect -.
•"'"""""lly on May 7.1985. .without
.. prior EPA rulemaldng proceedings. That
EPA has prepared preliminary
estimates for the range of costs which
the final rule may impose on hazardous
and solid waste management units of
various kinds and sizes, and for the total
costs of the regulations. EPA estimated
lower bound, upper bound, and most •
likely estimates for each of the
provisions in the final rule that impose
costs. The costs of the individual
provisions were then aggregated to
develop total cost estimates. EPA's
general approach for estimating the
costs, as well an die detailed • .
assumptions underlying the estimates
for each of the provisions, are described
In Section D. In addition, EPA has begun
analyzing the impacts of the costs of
these requirements on particular waste-
generating industries and expects to
complete its analysis later this yew.
This regulation was submitted »
OMB for review under E.0.12291
B. Regulatory Flexibility Act
. The Regulatory Flexibility Act (5
U.S.C. 801 etaeq.} requires each Federal
agency to prepare a Regulatory
Flexibility Analysis (RFA) when it
promulgates a final rule. (5 U S C 6041
The purpose of the RFA is to describe •
the effects the regulations will have on
small entities and examine alternatives
that may reduce these effects. An
agency head may delay completing the
analysis for up to 180 days after
publishing the rule in the Federal
Register, if he publishes a finding that
the final rule is being promulgated in
response to an emergency that makes
timely compliance impracticable. (S
U.S.C808). .
EPA intends to examine the impact of
today's regulations on waste-generating
industries and will report results for
those industries where the regulations
have a'substantial impact on a
significant number of small entities.
Regulatory Flexibility Analysis
As indicted earlier in the preamble.
the purpose of this rule is to promptly
and effectively notify the regulated
community of their responsibility under
this new law. EPA believes this is a
.valid argument for evoking the
regulatory flexibility emergency
•provisions. ... •
C. Paperwork Reduction Act
The information collection
requirements contained in this rule have
been, approved by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1980.44 U.S.C. 3501 et
sea. and have been assigned OMB
control numbers: Notification 2050-0028;
Manifest 2050-0039: Generators 2050-
0035; Permittees 2050-0037; Biennial
Report 2050-0024; Blending and Bumina
Fuels 2050-0047; and Exposure
Assessments and Loss of Interim Status
2050-0007. ^
D. Estimated Coat of the Final Rule
1. General Approach
EPA estimated costs for each
provision of .the final rule which has
compliance activities associated with
• the provision. EPA developed estimates
of the affected population, the unit costs
of compliance, and the aggregate costs
of compliance for each provision, EPA
developed likely lower- and upper-
bound estimates of costs as well as a
most likely estimate. In some cases,
differences in assumptions about the
affected population determine the lo<
-------
and upper bounds ia others, thc/aige
reflects differences in assumptions'
about the unit costs of compliance with
the provision. Moreover, the npper- and
lower-bound estimates do not represent
the worst or lowest case costs. b«l,
rather, EPA's estimate of the aiatt
• reasonable upper and lower bounds.
The most likely estimate represents
either EPA's best estimate on in -some
cases, the midpoint of the upper and
lower bounds. Estimates we presented
as the aggregate costs for the proviaioa
for all affected facilities.
EPA developed its estimates of
affected populations largely on the basis
of EPA's "National Survey of Hazardous
• Waste Generators and Treatment
Storage and Disposal Facilities
Regulated Under RCRA in 1981"
(hereafter referred to as the "1961 RCRA
Survey").
EPA developed two different types of
. unit costs and applied these costs to the
affected population to estimate
provision-specific costs: (!) Costs taat
vary significantly with the size and type
of unit; and (2) costs that are the same.
regardless of the size or "type of units at
the facility. Costs that vary with the size
and type of unit were used to estimate
the costs of me minimum technological
requirements. Other requirements of this
final rule impose unit costs that are the
same, regardless of the size or type of
units at the facility. For example, the
cost to complete an exposure •
assessment depends on the level of
detail required in the assessment rather
than the size or type of unit.
The costs are presented in two ways:
First-year costs and annualized-present-
value [APV1 costs, and where
appropriate, are presented as low. most
likely, and upper bound estimates lot
each. First-year costs represent the
initial capital/startup costs plus first-
year operating costs (if applicable) that
the provision imposes. If the first-year
costs are the same as those in
succeeding years, the first-year cost win
equal the annuitized present value
Because the stream of costs over time
may be uneven. EPA converted this
stream to Its equivalent annual cost over
the life of the facility using discounted
cash flow analysis. First. EPA calculated
•the total present ralue (TPV} which is
the SUB of costs incurred in each year
divided by a discount factor, as follows:
in which costs are incurred. The cash
flows do nat iodude inflation, taxes, or
^depretiatioar'As such, the resulting
present vaiie cogt reports the full social
cost in real leans. •
In order to speead the costs evenly
over the ufe of the facility. EPA
anaualized the total present value by
multiplying it by a £«piial recovery
factor (CEFJ:
Of,
PV-
where the real rate of return (r) equals 3
percent and n Is the Aumbar of periods
where OL ls-the operating Iffe. Unless
otherwise specified, EPA assumed a 20
year operating life. The 3 percent real
rate of return and the 20-year operating
Me assumptions lead to « CRF of .0872.
The wiaaaKzed present value represent*
the annuaXrevenue required to cover the
costs imposed by me provision. This
value provides a consistent basis for
presenting and comparing costs of
differentiprovisions. However, it
implicitly assumes that facilities can
predict future costs and can recover
them at a steady rate over the life of the
facility.
2. Ban on Hazardous Liquids In Landfills
Provision
Effective May a 1985, this provision of
the final rule bans the placement of bulk
or noncontainerized liquid hazardous
waste in landfills. Under current Part
264 regulations, liquids are permitted in
lined landfills or in any landfill if the
liquids have been treated or stabilized.
Affected Population—Based on the
1981 RCRA Survey, EPA identified
seven landfills which accept hazardous
liquids; five of these, accounting for
approximately 57,000 metric tons (MT).
per year, solidify the liquids in the
landfill, while the other two, accounting
for 11.000 MT per year, place liquids
directly io their landfills. Theoe seven '
facilities represent the lower bound
estimate of the affected population.
To calculate an upper bound on the
number of affected landfills, EPA
assumed that the seven landfills
represented only one-half of firms
actually disposing of bulk liquid*.
Further. EPA assumes that the seven
additional landfills, for which there is no
information oa the quantity managed.
handle the same amount as those •
surveyed. - . • • • -
Unit Coct*—In order to treat the
liquids so that their placement in
landfills is acceptable. EPA assume*
that the wastes must be solidified
outside of the unit and then placed In
the landfill In order to solidify wastes
so that liquids are permanently fixed.
EPA assumes that the liquids wiH be
mixed wUh cement. The unit costs are
based on engineering cost estimates
developed for four model sizes of
solidification plants. Piant sizes are
based on MT per year of waste input
These plants would be built on site and
would be replaced once over the 20-year
expected lifetime of the facility. Over
the relevant range, the larger the
solidification plant, the smaller the per-
ton cost of solidifying the liquids. The
size of the solidification plant at each of
the affected landfills was adjusted to
match the needs of the facility."Tae
cost per ton solidified ringed from $235
for the smallest to $68 for the larsest
facility.
Total Costs—The total cost of the
provision was determined by
multiplying the quantity of bulk liquids
handled at each landfill by the
appropriate unit cost of constructing a
solidification plant with sufficient
capacity to meet current needs. The •
.lower-bound first-year costs are
estimated to be $7.4 million. The •
annutlized present value is $5.1 million.
The npper bound first-year costs are
$14.8 million; annualized costs are $10.2
million. The most likely costs represent
the average oWie lower and upper
bound estimates: Sll.l million in.the
first year, with an annualized cost of
$7.7 million.
3. Minimum Technological Requirements
Provisions—The final rule
requirements apply to each new landfill
or surface impoundment and to
replacements or lateral expansions of
existing landfills or surface
impoundments. The rule requires that
these units must have two or more liners
and a leachate collection system: the
leachate collection system must be
between the top and bottom liners for
surface impoundments-and above the
top liner and between the top and
bottom liners for landfills. The 1984
HSWA does not require existing surface
impoundments to immediately in«tqU
new liner and leachate collection
systems.
Affeetad Population: Landfills—Based
on the 1981 RCRA Survey, EPA
estimates that there are 199 active
landfills that handle hazardous waste.
EPA assumes that these landfills
operate for 20 years, with a new cell.
opening and closing each year. As each
landfill opens a new cell, the rule will
"Unit £Oiti wm d*Saed using ordinary !•••*
•qium ragnuloa of un emt for the laodd piuta.
Th« co*t faction* wwi oi tb* ioao C- «Q" wbtr*
•C I* A* ent Q it qiuntity to metric ton*. • i« «
CMMtaiH tad bta Oi'iab" coeffldtnt
-------
require that the cell be lined in
accordance with the double finer
standard. Therefore, all 199 landfills will
be affected annually by the final rule —-
because, as they open a new cell, they
will incur the additional cost imposed
by the double liner requirement
Because the engineering costs for the
affected population are specific to unit
size, EPA could generate engineering
coats for virtually any unifsize. To limit
• the number of unit cost estimates and to '
. simplify the analysis. EPA developed
size categories based on the actual size
.distribution of landfill units from the
• 1981RCRA Survey. Each landfill is
placed into one of eight size classes '
ranging from 500 MT per year to 123,000
MT per year.
• Affected Population: Surface
Impoundments—EPA estimates that
there are 758 hazardous waste facilities
with surface Impoundments and that on
average, each facility has 2J surface
impoundments, for a potentially affected
total population of 1.743 impoundments.
As detailed below, approximately 33
percent of these existing surface
• impoundments are expected to incur
costs associated with this regulation
within the next four years, when other -
provisions of the amendments will
require the remaining surface
impoundments "to retrofit
In the near term this provision will
affect only that portion of surface
impoundments which are laterally
expanded or replaced. Since lateral
expansion is an unlikely engineering
option for surface impoundments. EPA
estimated only the number of »
impoundments that are likely to be
replaced in the next four years. EPA
defines replacement as "a unit taken out
of service and emptied by removing all
or substantially all waste from if
Therefore. EPA regards dredging of a
surface impoundment as constirutina.
replacement Dredging is a normal part
of the operation of a surface '
Impoundment and EPA assumed that
impoundments are normally dredged
when the depth of settled sludge is eoual
to one-half of the operating depth. The
; time to dredging varies from 7 to over 13
years, depending on the size of the
impoundment Therefore the potentially
affected population of 1.743 surface
. impoundments has been reduced to
reflect the normal dredging schedules
for units of.six different model sizes.
Accordingly. EPA estimates that 194
surface impoundments would normally
be dredged in each of the next four
years. Finally. EPA assumes that the
facilities that would normally have
dredged in each of the next four yean
will postpone dredging one year (see
Unit Costs: Surface Impoundments
below).
. Unit Costx-tandfi/Is—Because EPA
"assumes that landfills are filled one cell
at a time and that one cell is filled each
year, the cost of the final rule is
estimated as the incremental cost of
opening and closing a new cell using the
design specified in the final rule. Under
the final rule, the new cell must comply
with a double liner and leachate
collection system requirement and must
be closed with an equivalent cap.
Instead of placing a single liner under
the new cell (as required under current
- Part 264 regulations), the owner or
operator must use a double liner. EPA
has defined an interim statutory,
synthetic/clay liner to conform with the
double liner requirement for the purpose
.of meeting the final rule requirements. •
The ot^st attributable to the final rule
is the incremental cost of opening and
closing new cells with as synthetic/clay
liner and two leachate collection
systemjCinstead of the single liner and
single leachate collection system .
currently required. The cost estimate
assume that the day for the liner is
available on-site. If this were not the
case, the costs would be larger, ranging
from 12 to S3 percent more than those
calculated, depending on facility size.
EPA assumed that it is unlikely that
facilities would need to bring clay from
off-site. - -
The first-year costs range from S8.200
for the smallest landfills to 8285,000 for
the largest. On a per-ton basis, the
incremental first-year cost is S12/MT for
the smallest landfills and under S2/MT
for the largest landfills.
Total Caste: Landfills—The initial
capital cost for all 199 landfills is S9.68
million: the estimate is the same for the
lower and upper bounds. The
annualized costs are S10.2 million.
Unit Casts: Surface Impoundments— '
Surface impoundment unit costs rely on
two major assumptions about •
compliance with the final rule. The first
is that, rather than retrofit existing
impoundments in accordance with the
regulation, operators will instead choose
the less costly option of-closing the
existing unit as a land disposal facility
and constructing a new surface
impoundment. The second assumption is
that due to the high cost of managing
hazardous waste in surface .
impoundments there will be additional
incentive for operators to minimize the
quantity of hazardous waste they place
in them, such that operators will
separate hazardous from non-hazardous
waste sources to decrease the volume of
hazardous waste that must be managed.
In order to model this expected
behavior on the part of operator
assumes first, that operators wil,
toe time until dredging by one year
because of the reduced flow of
hazardous waste into the impoundment.
The estimated 194 surface
impoundments that would normally
dredge in 1985 will delay their dredging
until 1986 and so on. Moreover. oncVtL
unit is ready for dredging (i.e. closure
and replacement), EPA further assumes
tnat the replacement impoundment will
be only approximately half as large as
the original impoundment. In terms of
the model sizes used to calculate costs
the new unit will be one model size
smaller than the impoundment it
replaces. The full cost to surface
impoundment facilities includes the cost
of both the new surface impoundment
and the cost of a new surface
impoundment to handle the non-
hazardous liquids. The cost of the latter
impoundment is not included in these
estimates of the cost of the minimum
technological requirements for land
disposal facilities. ' '
Given these assumptions, the new unit
coats of complying with the final rule
include the incremental costs of:
(1) Closing the old surface
impoundment as a land disposal facility
in the next few years instead of 20 years
from now:
(2) Constructing a new. smaller
impoundment within the next few > '
with the interim statutory double liner
and leachate collection system instead
of the current Part 264 singla liner and
leachate collection system: and
(3) Closing the new surface
impoundment with a cap equivalent to
the interim statutory liner, rather than
the cap specified in the existing Part 264
regulations.
The unit costs are dominated by
c osure costs for all model sizes: Moving
closure costs, approximately 20 years
forward means that the present value
practically doubles (an outlay of $100
today has a value of $181 in 20 years
assuming a 3 percent discount rate). The
initial year costs for closure of the old
unit accounts for between 46 and 79
percent of total initial year costs: the
balance is attributable to the cost of
land and constructing the new unit
. The annualized costs of compliance
with this rule vary from $55,000 per
facility for the smallest new
impoundments, to over $1.5 million for
the largest. The annualized cost per ton
managed in the newly constructed units '
ranges from approximately $18 for the
smallest impoundments down to less
than $1 per metric ton for the largest
impoundments. .. • . .
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Federal
/ Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and Reflations
Total Casts: Surface Impoundments—
The total annuaiized cost of the surface
impoundment provision in the final rule
is S33.2 million and is the same for die
lower and upper bounds. ••
Total Costs: Minimum Technological
Requirements—The first year costs ire
all from landfill compliance with the
' final rule and equal $9.58 million in both
the lower and upper bouaa estimates.
The total annualized coat ol the
provision is $83 J million.
4. Corrective Action " .
Provisions—The final rule requires
that any Subtitle C permit issued to a
RCRA facility after the date of
enactment must require corrective
action for all releases of hazardous
wastes or constituents from solid waste
management units as well as hazardous
waste management units at the facility.
The final rule giants EPA the authority'
to issue corrective action orders to
interim status facilities to clean up
releases from both solid and hazardous
waste management units on a site-
specific basis. This analysis only
addresses releases to ground water. It
does not estimate the costs of corrective
action for releases to other media.
Owners or operators of hazardous
waste management facilities must also
assure EPA that they can meet a
financial responsibility test for the
required expenditures. The costs of this
provision are treated later in this
section.
EPA developed estimates of corrective
action costs for releases from solid
W™e mana8«nent units {SWMU) at
RCRA facilities. Corrective action for
releases from active land disposal units
"J ca^y ret'uired nnder existing Part
264.SubpartFregulation8.Thi, -
provision of the final rule imposes TO
incremental costs on these units The
costs for SWMUs are based on •
corrective action for release, only up to
the facility boundary; the costs include
the cost of counterpumping and treating
contaminated ground water and. in
some cases, the cost of controUina the
source of contamination.
Affected Population: Solid Watte
Management (/aits—The final nde
requires owners or operators to take
•corrective action for releases fram solid
waste management units (SWMUs) at
facilities seeking Subtitle C (ECRA)
permi ts. The 1S81 RCRA Survey '
estimated that there are UM9 hazardous
waste land disposal facifctieaand 1769
hazardous waste treatment and storage
facilities. Many of these facilities also
have solid waste management anils. The
•size of the effected popalatioa.
therefore, depends an the atasaber of
these facilities with SWMUs and the
number of teak'ing SWMUs at each of
these facilities. To account for this
. unoertainty. EPA-developed low, high
andmost likely population estimates.
The lower bound estimate assumes
that there are no leaking SWMUs at the
1.049 hazardous waste land disposal
facilities, and that one-fourth (942) of the
3.769 treatment and storage facilities
have one leaking SWMU on-site. EPA
further assumed no releases from
. facilities in arid climates and that those
facilities granted ACLs under 5 264.94
are exempt from the requirements. EPA
assumes that 10 percent of the facilities
are in arid climates and 10 percent will
receive ACLs. Thus, the lower bound
estimate assumes that corrective action
begins immediately for these 754
SWMUs.
The upper bound assumes that 25
percent ofMl land disposal facilities
have a SWMU on site that is leaking. In
addition, each of the 3,789 treatment and
storage facilities has one leaking
SWMU. Thus the upper bound estimate
assumes that corrective action begins
immediately for all 4.031 faciiitiia.
EPA's most likely estimate assumes
that 12.5 percent of facilities with land .
disposal units, the midpoint of the upper
and lower bound, also have a SWMU.
• Also, one-fourth of the remaining
treatment and storage facilities have a
single leaking solid waste management
unit on site. Thus the best estimate
assumes that corrective action begins
immediately for 1,073 facilities.
Unit Caste: Corrective Action for
Solid Waste Management Units—The
unit costs of corrective action at
SWMUs include the cost of containing
or counterpumping the part of the plume
that extends to the facility boundary
and"then treating the contaminated
ground water. EPA used its Stochastic
Model of Corrective Action Costs to
estimate the costs of counterpumping
and treatment The model estimates
these costs based on various inputs
about the hydrogeology of sites, plume
characteristics, and treatment options.
Costs were adjusted to account for
replacement of capital over the term of
the corrective action. The mean length
of time for completing the corrective
action is 48 years. EPA auumes that the
mean distance from the disposal unit to
the facility boundary is 500 feet and that
the cost model can be used to
extrapolate costs for clean-up of plumes
of this length-^The first year oast far
f*n»*»4motUt»cn*tiiMytruivii*of
pkune length andauuned that thi co»l >.m«iont
8nium ell>fl
cleaning up a 500 foot plume is S622.000
per unit if the clean-up begins
immediately. The annualized present
value is $249.000.
Total Costs: Corrective A ction for
Solid Waste Management Units—The
estimates for first year corrective action
costs at facilities with SWMUs range
from $469 million to $2.5 billion. The
annualized costs range from $188 million
to $1.0 billion.
Unit Costs: Source Control for Solid
• Waste Management Units—In order to
protect human health and the •
environment, it may be necessary to do
more than contain or remove and treat
the contaminated ground water. One
additional component of the cost of
corrective action would be the cost to
remove or isolate the source of the
. plume from ground water. EPA assumed
that source control requirements would
only apply to SWMUs that have
releases requiring corrective action
(because active land disposal units at
RCRA facilities are already subject to
these requirements under the current
regulations).
As noted above in the general
approach, EPA generated upper and
lower bound cost estimates which
should not be regarded strictly as upper
and lower limits on total costs. This
point is important in light of the
sensitivity of source control cost
estimates to the assumptions about the
affected population. The first
assumption is that half of the facilities
with SWMUs are required to perform
corrective action involving source
control. The Second assumption involves
the distribution of three alternative
source control methods across affected
facilities. The three mrtfeads are:
controlling the source by removing it
building slurry walls, and capping the
unit.
• Source removal option: Source
removal, which requires both source
removal and solidification, is the most
expensive source control option. The
lowest excavation and solidification
costs per unit are $450.000 in the first
year for a V« acre surface impoundment
The annualized cost is $30.000. The
highest unit costs are for a 123,000 MT
per year landfill. The first year cost is
S63 miHion. 87 percent of which is the "
cost of solidification. The annualized
cost is $4.2 million.
• Slurry wall option: A less expensive
solution is to supplement the
counterpumping with a slurry wall
constructed around the unit, down to the
top of the saturated rone. The wall will
divert apgradient flow around the unit
and contain leakage from the unit itself.
first year costs for slurry walls range
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Federal Register / Vol
50. No. 135 / Monday. July 15. 1985 / Rules
^—
from SlO.OOO for the V* acre
impoundment to SS13.000 for fhe423,000
MT per year landfill; annualized costs
range from S672 to $34400. _
• Capping the unit The third opbon ia
to aolidify the waste in the mil and
place an impermeable cap on the unit
Because the waste must be solidified in
order to support the cover, this option
can be nearly as expensive as source
removal, especially for large units. First
year costs per facility range from
$142.900 for Vi acre impoundments
(S9.600 annualized) to 562 million for the
123.000 MT per year landfill ($4.2 million
annualized).
The choice of specific source control
measures can have a significant effect
on the costs. The most expensive option
may be as little as 11 times more
expensive than the least coat option for
' a given unit size, or as much as 120
, times more expensive^ As a result EPA
made several assumptions about the
source control option applicable to the
population.
For the lower bonnd. EPA assumed a
uniform distribution among the three
options: One-third of the affected
• -facilities capped the unit, one-third
excavated and solidified the waste, and
one-third constructed slurry walla.
For the upper bound and best
estimate. EPA selected the source
control option on the basis of depth to
the ground water at each site. If the
ground water ia within 10 feet of the
bottom of the unit, source removal is
necessary. (Based on information from
the 1981RCRA Survey. 67 percent of the
landfills .and 33 percent of the surface
impoundments met this criterion.)
Where the ground water is between 10
and 50 feet from the bottom of the unit,
the operator would construct a slurry
wall. (Twenty percent of the landfills
and the rest of the surface
impoundfaenti (37 percent) included in
the 1961HCRA Survey met this
criterion.) Finally, all odier SWMUs (Le.,
those situated more tiian SO feet above
the ground water) solidify the waste -
the unit and then cap it.
Total Casts: Source Control far
Waste Management Units—I^ low.
bound estimates for first year costs of
source control at SWMUs i* $1.4 billion
or $92 million annualized. The upper '
bound costs are Sll.7 billion for the first
year or $784 million annualized The
most likely first year costs are S3 1
billion. The most likely estimate of *
annualized costs is $208 million.
Total Costs: Solid Waste
Management [frits (Corrective Action
and Source Control)—Table VI-i
describes the individual components of
the costs of corrective action and source
control at solid waste management
units. Source control costs dominate the
first year costs because all of the source
control options require a one-time
investment. On an annualized basis.
counterpumping costs that continue for
many years are more important.
.-SUMUA** 0. BH* RULE CO.PECT.VE Ac™ COSTS AT FAOUT.ES W,TH SOUO WASTE MANAGEME«T
UNITS
Total Costs of the Provision—The
total costs of the provision include the
cost to clean up plumes from SWMUs to
the property boundary and the cost to
remove the source of contamination at
these units. When corrective action and
source control are considered, the lower
bound cost of the corrective action
provision is S280 million annually and
51.8 billion the first year. The upper
t^T™^^"*'*^ billion or •
S14 billion the first year. The most likely
annuallzed costs are $476 million with i
first year cost of $3.8 billion.
The cost estimates for the provision
S" v"7 "native «o the assumption that
t ^f£ tre*tment- •torage, and disposal
* Jac! I"" £«v<5 only one SWMU. If
facilities have more than one SWMU.
the co«u could increase dramatically.
5, Dust Suppression
Provition—Tbe final rule prohibiH the
use of used oil mixed with hazardous
waste, a* a dust suppressant
Affected Population—The provision
affects two distinct group,: first, firm.
that senerate th« ued oil and second.
firms that buy the'oil for re-use and
recycling. The highest value use of the
oil is ac a dust suppressant applied to
roads. EPA estimates that
approximately 68£ million gallons of
this type of used oil are applied to roads
each year. Under the final rule.
generators will no longer be able to sell
the oil for use as a dust suppressant.
Finns that apply oil to roads will have to
find an alternative to used oil and pay
the additional cost of the alternative.
Unit Costs—The cost to generators
• depends on the number and type of
alternate uses for the oil. For the Jower
bound. EPA estimates that generators
can simply sell the oil to other users at
no kws of revenue. The upper bound is
that the oil has no resale value and the
generators lose the revenue they earned
on the sale of the oil to road oiler*. The
most likely estimate reflects the fact that
the oil has some value, at least for its
BTU content, but no higher value thaa it
had aj a dust suppressant (or the
generators would have sought out tb«
higher rahte use).
For road oilers, the lower bound cost
assumes that they will switch to calcium
chloride. This means a higher cost per
gallon and a higher application rate. The
upper bound cost includes the same
assumptions plus a SO percent higher
application frequency.
Total Costs—The lower bound cost is
$16 million and is the same each year
The upper bound is S3S million and the
most likely cost is the average of ows
two. approximately $28 million.
8. Small Quantity Generators
Provision—The final rule imposes
interim requirements for small quantity
generators (SQGs) of hazardous waste.
The final rule only requires SQGs to fill
out portions of the Uniform Hazardous
Waste Manifest for shipments of their
waste.
'Affected Population—EPA. estimates
that between 100.000 and 175,000
generators produce between 100 and
1.000 kg. of hazardous waste per month.
Based on changes in the amount of time
that generators may store waste on-iite
without a storage permit. EPA estimates
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Federal Register / Vol. 50. No. 135 / Monday. July 15. 1935 / Rules and Regu!ations
that, on average, these generators will
send between 1.33 and 2 shipments-off-
site per year. If the generator stores
- waste for 270 days (the most allowed -
under the new rules), he would send 1.33
shipments off-site each year. If the
generator does not qualify for the 270
day storage period, he can store wastes
for 180 days and would therefore ship 2
, loads off-site each year on average.
Even if the generator stores for 270
days, the most waste he could
accumulate is 9.000 kg. (9 MT). far less
than a full load for either tank trucks or
flatbeds (assumed to be roughly 23 MT
and 18 MT respectively]. The effect of
this is that in the lower bound. 100.000
generators will each have 1.33
shipments per year, while in the upper
bound. 175.000 generators will each
have 2 shipments per year. The best
estimate assumes 100.000 generators,
each with 1.67 shipment per year.
Unit Costs—The generators are only
required to fill out a small part of the
Uniform National Manifest. Based on
EPA estimates of the time required, the
cost per manifest varies between S2.50
and $4.00 per manifest.
Total Cos/5—The lower bound cost is
$332.500 per yean the upper bound is
$1.400.000 and the most likely estimate
. is $542.750.
7. Burning and Blending
Provision—The final rule includes a
provision banning the burning of
hazardous waste in cement kilns which
are located in cities with populations
greater than 500.000.
Affected Population—EPA has
information on several cement kilns that
may currently burn or are considering
burning hazardous waste, but it is
difficult to estimate the actual
population affected by this provision.
For a lower bound estimate, EPA
assumes that the provision is merely
precautionary, and is designed to
preclude this activity until EPA develops
standards for these kilns. The upper
bound and most likely estimate is that
one kiln currently bums hazardous
waste.
Generators of the solvents burned in
the kiln will also be affected by the ban.
They will lose the revenue they would
> now earn on the sale of the waste to the
kiln operator and they may have to pay
to dispose of the waste.
Unit Costs—In the upper boundand
most likely scenarios, the owner of the
kiln will lose the cost advantage he
enjoyed by burning cheaper solvents in '
place of some other fuel. One facility
reported savings of S.29 per gallon on
the solvents burned: this is the
difference between burning hazardous
waste and number 9 fuel oil. '.
For the upper bound. EPA assumes
that generators of the solvents will lose
the revenue from the sale of the solvent
—• toJhfi kiln operator and will now have
to pay to dispose of the solvents. The
most likely estimate assumes that they
will pay only a moderate fee to dispose
of the solvents because of their BTU
content.
Total Costs—The lower bound costs
are zero. The upper bound cost is
$167.000 per year and the most likely
estimate is $108.000..
8. Exposure Assessments
Provision—The final rule requires all
owners and operators of landfills and
surface impoundments to supplement
their RCRA permit applications with
information on the potential for public'
exposure to releases from the unit. This
should include information on potential
releases. pVr-ways of exposure, and the
magnitude of possible exposures. In
general, owners and operators are not
expected tp collect additional data: they
can submit existing information.
Affected Population—The number of
applicants is expected to match the .
current estimates for facilities with
landfills-(199) and surface
impoundments (758) from the 1981
RCRA Survey. EPA also assumes that
there will be approximately 20 new
app4icants each year.
- Unit Costs—The costs of the final rule
are based on estimates of the paperwork
burden required of applicants to
assemble and transmit the required
information to EPA. Based on an
estimate of 120 hours per responde'nt
and an average cost of S16 per hour, the
cost per facility is estimafed at S1.920.
Total Costs—Most of the costs are
incurred in the first year. After that, only
new facilities need to submit the
information. The upper and lower bound
first year costs are $1.9 million:
annualized costs are $176.000.
9. Delisting
Provision—The final rule, requires that
generators petitioning to exclude a
waste generated at their facility from
regulation must submit information
beyond what is currently required. EPA
is required to consider factors other than
those for which the waste was originally
listed if those factors might cause EPA
to continue to .regard the substance as a
hazardous waste, i.e.. to not delist.
Affected Population^-To date. EPA
has processed 369 petitions under the
existing delisting provision. These
petitions will be reexamined in light of
this new regulation. In addition, based
on the past number of petitions per year,
EPA estimates that new petitions will
arrive at the rate of approximately 136
per year.
Unit Costs—EPA assumes that an
additional constituent analysis of the
waste in question will be required in
order to comply with the final rule. The
expected cost for these analyses plus
other petition costs is S3.00o"per petition.
Total Costs—Most of the costs occur
in the first year because of the need to
reexamine old petitions. The first year
upper and lower bound costs are
estimated at $1.5 million and the
annualized cost is S480.000.
10. Hazardous Waste Exports
Provision—The final rule requires
exporters of hazardous waste to submit
an annual report on their export activity.
The report may be submitted as part of
the biennial report or separately.
Affected Population—EPA assumes
that between ISO and 200 generators
export hazardous waste each year. The
lower bound estimate is 150. 200 is the
upper bound and 175 is the most likely.
• Unit Costs—When the information is
part of a biennial report, the cost of
supplying additional information
regarding exports is slight. EPA assumes
that the additional cost ranges from a
• lower bound of S10 to an upper bound of
$20. If Jhe export report is not part of a
biennial report, the costs will be higher.
EPA assumes the cpsts range from S20 to
5100. • ^
Total Costs—EPA estimates first year
and annualized costs of $2.250 for the
lower bound. S12.000 for the upper
bound, and S6.600 for the most likely.
11. Waste Minimization
Provision—The final rule requires that
generators filling out hazardous waste
manifests and TSDFs managing waste
generated on-site must certify that they
have taken economically practicable
steps to minimize wastes generated. AH
generators must report on these efforts
in their biennial reports.
Affected Population—Generators
shipping waste off-site must sign a
compliance statement on the manifest:
the incremental cost is negligible The
number of TSDFs that must certify
compliance is based on the total number
of TSDFs reported by "the RIA Survey
4.818. The affected population is 90
percent of the TSDF population based
on EPA assumptions that 90 percent of
all TSDFs generate waste on-site.
All generators must submit a report on
waste minimization in their biennial
report. The number of generators is
14.098 according to the 1981 RCRA
Survey: this is both the lower bound and
the most likely. The upper bound is that
all generators who notified must submit
-------
these reports. EPA estimates tjiat 48,791
biennial report! -would be required if all
notifiers were active.
Unit Costs—The certification costs for
generators are negligible and are
excluded here. For TSDFs. the costs are
estimated at less than $10. The coat of a
biennial report will increase between
$10 and $50, According to EPA
paperwork harden estimates, the
preparation of a biennial report will take
10 percent more time. This yields a most
likdy estimated cost of $13 per facility.
Total Costs—Lower bound first year
and annualized costs are 5141,000. EPA
estimates the upper bound costs at $2.5
million with a most likely estimate of
$205,000,
The other options all depend'in some
way on the expected cost of the
Corrective action that will be required A
"Tetter of credit involves a $420 fee plus .7
percent of the tmdiscoonted cost of the
corrective action: a surety bond costs
the same fixed fee plus 1 percent of the
undiscounted costs; and a trust fund
includes a $400 fee plus 3 percent of the
undiscounted cost.
The undiscounted coat of the '
corrective action is simply the sura of
the costs incurred cleaning up a plume
as far as the facility boundary over the
average length of time that pumping is
required (48 years). The cost estimate
12. Financial Responsibility
fto vision—^ The final rule requires "
Eicilities to perfonn oorrech'Ye action as
specified under § § 206 and 207 of the
amendments. In addition, facilities must
provide financial assurance for that
corrective action. •• . -
Affected Population— -The same
population estimates derived for the
corrective action provision apply here.
In.summary. the lower bound population
consists of 25 percent of the 3.769 '
treatment and storage facilities with
leaking solid waste management units-
10 percent of these are assumed to be
located in arid climates and another 10
percent are granted ACLs for
constituents found in the ground water
near the site, reducing the affected
population to 754 facilities.
The upper bound population estimate
assumes that 25 percent of the 1.049 land
disposal facilities have one leaking
SWMU. Each remaining treatment and
one leaking
*
The most likely population estimate is
.. «n •*»'•«• rf ** «PP« md lower
bound for land disposal facilities. For
treatment and storage facilities. 25
S WMU *" amaisd to taw one teak&il
The final assumption about the'-
population involves the difference ' "
.between the number of facilities and the
number of firms that own them. Only
firms are responsible for showing
• financial responsibility, not individual
facilities. £PA estimates that the •
average number of facilities per firm is
three. . • , - .;.
Unit Costs— EPA assumes four " '
possible mechanisms for firms to
demonstrate financial responsibility for '
corrective action. The least expensive
mechanism is the financial test or
guarantee. This may be provided- to «
firm based on certain information- about
Its financial condition lor $400. . : .-.
"^uucu i-*o ywrej. ins cost estimate
• reflects the cost of cleaning up a 500 foot
plume. The andiscbunted total cost for a
500 foot plume is S6.6 milling
The lower bound coat estimate
assumes that all affected firms can
satisfy tfae.financial responsibility
requirement with a financial test or
guarantee. That means that the cost to
each firm will be $400.
For the upper bound. EPA assumes
that eacjlfirm must establish a trust
. fund to prove it can meet the corrective
action coats. The cost of a trust fund to
meet these corrective action costs is
S5?-930 per facility or $179.000 per firm.
The most likely estimate assumes that
83 percent of the firms use a financial
test or guarantee. 9 percent use a letter
of credit 4 percent use surety bonds,
and 4 percent a trust fund. This is based
on the current distribution of allowable
demonstrations for closure and post-
closure care. Letters of credit will, cost
firms S139.000 for corrective-action to
the facility boundary. The corresponding
cost for firms using surety bonds is
$199,000.
Total Costs—The lower bound
estimate is 5100.400 for both the first
year and the annualized costs. The
upper bound is S241 million and the
most likely is $9.8 million.
13. Underground Storage Tanks
Provision—The final rule bans the
placement of new. unprotected steel
tanks in "corrosive" soils. The ban is
effective until EPA promulgates new
regulations in 2 yean.
Affected Population—EPA assumes
that 100.000 tanks are replaced each
year. Approximately 80,000 are for farm
and home use and are not subject to
these requirements. The remaining
40,000 tanks are for commercial/
industrial use. Approximately 28,000 of
these are metal tanks of which roughly
13.000 are unprotected carbon steel and
are subject to these requirements. Most
of those tanks (75 percent) are probably
placed in noncon-osive soils, defined as
soils with resistivity higher than 12.000
ohm-cms. ; •; 'j. •. ... ••
The owners or operators of all th
tanks will need to perfonn a soil
resistivity test. EPA assumes that
thirds will install cathodically protected
tanks instead of bare steel, and the rest
will install externally coated tanks. *
Unit Costs—The costs represent the
increment required by the final rule and
include the cost of a noil resistivity teat
($36), and installing a protected tank v
that is either cathodically protected (an
incremental cost above bare steel
ranging from S2.367 to $4.340 per tank
depending on the size of the tank), or
externally coated (incremental cost from
$632 to $1.774. depending oa size).
The lower bound unit cost includes
these incremental costs in the first year.
and replacement costs in year 14. EPA
assumes that unprotected steel tanks
that would have been placed in
corrosive soil without the regulation,
would fail in an average of 14 years. At
this time, the tank would have to be
replaced. The regulation forces the
owner to install a tank with a longer
expected lifetime (20 years), so me
owner pays more the first year, but
saves money over the 20 year horizon
because the tank lasts longer. This
conclusion is dependent on the
assumption that an owner would pet an
unprotected steel tank in corrosive soil,
as well as an assumed life of 14 years
for an unprotected tank, and the 3
percent discount rate.
- The upper bound unit costs includt.
the same incremental cost, but assumes
that even a bare steel tank would last
the full 20 year period so there is no
replacement cost in year 14.
The most likely estimate of the unit
cost is zero. EPA believes that owners
operate to maximize net present value
(and therefore minimize the present
value of costsj and would therefore not
install a tank that was expected to fail
so quickly. Given EPA's assumptions, an
owner would pursue the course of action
that minimized the present value of
costs. He would compare the
incremental cost of protecting the tank
now. to the discounted cost of replacing "
a failed tank in 14 years. If protecting
the bare tank were cheaper in present
value terms (which it is under these
assumptions) the owner would opt to
invest in a protected tank now. In short
the owner already optimizes, so there is
no need to "force" hi™ to comply with
regulations.
Total Costa—Under the lower bound
assumptions, the first year cost of the
regulation is S&Z million, but the
annualized "cast" is a net savings per
year of $870.000. because the owner will
not have to replace a failed tank. The
upper booad only indudes the costs of
-------
28742 - Federal Register / Vol. 50. No. 135 / Monday. July 15. 1965 / Rules and Regulations
installing protected tanks for two-years.
at which time the ban is replaced by
new regulations. The first year cost is
S6.2 million and the annualized present
value over 20 years is S1.1 million. The
most likely estimate is zero.- .. •
14. Total Cost of the Final Rule
_ /The sum of all-the annualized costs
"rarfges from a lower bound of $365
million to S2.1 billion. Table VI-2 shows
these annualized costs as well as the
TABLE Vl-2.—COSTS OF FINAL RULE • -•
first year costs, which range between
Sl.9 billion and S14.S billion. Corrective
action costs dominate both first year
and annualized costs in each scenario.
The Agency is soliciting comments on
these cost estimates.
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bound
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63.473.700
Z79.506.2S4
16.440.000
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0
, U50
100.400
364.S90.tM
uop«e
9.675.600
14.179.396.4Z3
34.930,000
1.400.000
166.920
1. 906.560
1.515.000
12.000
2.482.910
240.560.947
8.215.000
t4 493 099 760
bound
$10213.328
63.473 TOO
1.789.394.619
34.930.000
1.400.000
166.920
171213
48Z295
11000
2.4*2.910
240.560.947
1.113.446
—
Uoc
S11.126.GSO
3.785.989.500
25.sas.ooo
542.750
107.840
1.906.560
1J15.000
.6.SS3
204.954
t.803.290
0
— ^— — «~_^_^_
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542.750
107.640
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LUi of Subjects
4O CFR Part 2GO
Administrative practice and
procedure. Confidential business
information, Hazardous waste. Liquids
in landfills.
40 CFR Part 281
Hazardous waste. Small quantity
generators. Recycling. Delisting.
4O CFR Part 262
Hazardous materials transportation.
Hazardous waste. Imports, Labeling.
Packaging and containers. Reporting
and recordkeeping requirements. Waste
minimization.
40 CFR Part 264
Hazardous waste. Insurance.
Packaging and containers. Reporting
and recordkeeping requirements,
Exposure assessments. Corrective
action. Security measures. Surety bonds.
Liner requirements.
4O CFR Part 235 - . .'.' .
Hazardous waste. Insurance.
Packaging and containers. Corrective
action. Reporting and recordkeeping
. requirements. Security measures. Surety
bonds. Water supply.
40 CFR Part 266
Burning and blending.
40CFRPart270 , .
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation. Hazardous waste,. •• ••
Reporting and recordkeeping •. ••• ' •
requirements. Water pollution control
Water supply. Permit application
requirements.
40. CFR Part 271
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation. Hazardous waste.
Indians lands. Intergovernmental
relations. Penalties. Reporting and '
recordkeeping requirements. Water
pollution control. Water supply.
40 CFR Part 28O
Underground storage tanks. -
Dated: July 8. 1985.
Lea M. Thomas,
Administrator.
For the reasons set out in the
Preamble. Title 40 of the Code of Federal
Regulations is amended as follows:
PART 260— HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation, for Part 260 is
revised as follows:
Authority: Sees. 1006. 2002(a), 3001 through
3007. 3010. 3014. 3015. 3017. 3018. 3019. and
7004. Solid Waste Disposal Act as amended
by the Resource Conservation and Recovery
Act of 1976. as amended (42US.C. 6905.
6912(a). 6921 through 8927. 6930. 6934. 8935.
6937, 8938. 6939 and 6974).
2. 40 CFR Part 260 is amended by
revising 5 260.22(a), (cHe) to read as
follows:
5 260.22 Petition to amend Part 2<1 to
•xctud* • wast* produced at a particular
(«l Any person seeking- to exclude a
waste at a particular generating facility
from the lists in Subpart D of Part 281 '
may petition for a regulatory
amendment under this section and
§ 260.20. To be successful: •
(1) The petitioner must demonstrate to
the satisfaction of the Administrator
that the waste produced by a particular
generating facility does not meet any of
the criteria under which the waste, was
listed as a hazardous or an actutely
hazardous waste; and
(2) Based on a complete application.
the Administrator must determine.
where he has a reasonable basis to
believe that factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be a hazardous waste, that
such factors do not warrant retaining
the waste as a hazardous waste. A
waste which is so excluded, however.
still may be a hazardous waste by
operation of Subpart C of Part 281.
• * • « •
(c) If the waste is listed with codes
"J". "C". "R". or "E". in Subpart D,
(1) The petitioner must show that the
waste does not exhibit the relevant
characteristic for which the waste was
listed as defined in 5 261.21. $261.22.
S 261.23. or j 261.24 using any applicable
methods prescribed therein. The
petitioner also must show that the waste
does not exhibit any of the other
characteristics defined in 1 261.21,
§ 261.22. S 261.23. or $ 281.24 using any
applicable methods prescribed therein;
(2) Based on a complete application.
the Administrator must determine.
where he has a reasonable basis to
believe that factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be hazardous waste, that such '
-------
• Federal Register / Vol. 50. No. tM / Mn,..y. July 15. 19M , Ru]e3 anH
• factors do not warrant retaining the -
waste as a hazardous waste.-A^waste
which is so excluded, however, still may
.be a hazardous waste by operation of—
Subpart C'of Part 281.. - ...
• (d) If the waste is listed with code "T1
in Subpart D. . .__•:.
(1) The petitioner must demonstrate
that the waste:
(i) Does not contain the constituent or
• constituents (as defined in Appendix VH
of Part 261) that caused the .- .
Administrator to list the waste, using the
appropriate test methods prescribed in
Appendix HI: or
(ii) Although containing one or more
of the hazrdous constituents (as defined
£APPend« VH of Part 281) that caused
the Administrator to list the waste, does
not meet the criterion of 1281.ll(a)(3)
tVhen considering the factors used by
the Administrator in § 281.1l(a){3) (i)
through (xi) under which the waste was
listed as hazardous: and
(2) Based on a complete application.
the Administrator must determine.
where he has a reasonable basis to
believe that factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be a hazardous waste, that
such factors do not warrant retaining
the waste as a hazardous waste: and
(3) The petitioner must demonstrate
that the waste does not exhibit any of
the characteristics defined in § 281.21
I 261.22.1 261.23. and 5 261.24 using any
applicable methods prescribed therein:
(4) A waste which is so excluded.
however, still may be a hazardous
waste by operation of Subpart C of Part
261.
! is listed with the code
28743
§260.12
3. Section 260.22(m) is hereby
removed.
."PART 2*1—IDENTIFICATION AND
.LISTING OF HAZARDOUS WASTE
• 4. The authority citation for Part 261
continues to read as follows: •
Authority: Sections 1006. 2002(aJ. 3001. and
3001 of the Solid Waste Disposal Act a»
amended by the Resource Conservation and
. Recovery Act of 1878. as amended [42 U S C.
.eS05,8812(a). 8821, and 8922]. - -
& Section 231.4(b)(l) is revised to read
as follows:
1281.4 Exduofen*.
,u ty.?18 Petitfoner must demonstrate •
that the waste does not meet the
criterion of { 281.ll(a){2): and
•t. I2!?as{ed on a coraPlete application.
the Administrator must determine,
where he has a reasonable basis to '
*%%" th,at «ddiu<»wl factors (including
additional constituents) other thanthosf
for which the waste was listed could
cause the waste to be • hazardous
• waste, that such factors do not warrant
retaining the waste as a hazardous
waste: and
(3) The petitioner must demonstrate
that the waste does not exhibit any of
the characteristics defined in § 26121
! 281.22. § 261.23, and $ 261.24 using any
applicable methods prescribed therein: •
(4) A waste which is so excluded.
however, still may be a hazardous
waste by operation of Subpart C of-Part
.281. . ' .
(1) Household waste, including
household waste that has been
collected, transported, stored, treated,
disposeoVecovered (e.g., refuse-derived
fuel) or reused. "Household waste"
means any material (including garbage,
trash and sanitary wastes in septic
tanks) derived from households
(including single and multiple
residences, hotels and motels,
bunkhouses, ranger stations, crew
quarters, campgrounds, picnic grounds
and day-use recreation areas). A
resource recovery facility managing
municipal solid waste shall not be
deemed to be treating, storing, disposing
of, or otherwise managing hazardous
wastes for the purposes of regulation -
under this subtitle, if such facility— '
(i) Receives and burns only
(A) Household.waste (from single and
multiple dwellings, hotels, motels, and
other residential sources) and
(B) Solid waste from commercial or
industrial sources that does not contain
hazardous waste: and
(ii) Such facility .does not accept
hazardous wastes and the owner or
operator of such facility has established
contractual requirements or other
appropriate notification or inspection
procedures to assure that hazardous
. wastes are not received at or burned in
such facility. :
9261.5 [Amended]
6. Section 281.5 is amended by
redesignating paragraphs (h) and (i) as
(0 and (j) respectively.
7.40 CFR Part 281 is amended by
revising S 261.5(b). (f) and (g) and adding
(h) to read as follows:
J 281.5 Special requirements for
nuardouc waste generated by •mail
quantity generator*.
••••<>•
(b) Except for those wastes identified
to paragraphs (e), (f). (g). and (h) of this
section, a small quantity generator's - '
. hazardous wastes are not subject r
regulation under Parts 262 throusr
and Parts 270 and 124 of this chapi
and the notification requirements of
section 3010 of RCRA. provided the
. generator complies with the
: requirements of paragraphs (f). (g) and
, (h) of this section.
, (f) In order for hazardous wastes
generated by a small quantity generator
of acutely hazardous wastes in
quantities equal to or less than those set
forth in paragraph (e)(l) or (e)(2) of this
section to be excluded from full
regulation under this section, the
generator must comply with the
following requirements: •
(1) Section 281.11 of this chapter:
(2) The small quantity generator may
accumulate acutely hazardous waste on-
site. If he accumulates at any time
acutely hazardous wastes in quantities
greater than those set forth in paragraph
(e)(l) or (e)(2) of this section, all those
accumulated wastes for which the
accumulation limit was exceeded are
subject to regulation under Parts 262
through 265 and Parts 270 and 124 of this
chapter, and the applicable notification
• requirements of section 3010 of RCRA,
The time period of J 262.34 for
accumulation of wastes on-site begins
when the accumulated wastes exceed
the applicable exclusion limit;
(3) A small quantity generator ma\
either treat or dispose of his hazardous
waste in an on-site facility, or ensure
delivery to an off-site storage, treatment
or disposal facility, either of which is:
(i) Permitted under Part 270 of this
chapter;
(ii) In interim status under Parts 270
and 265 of this chapter
(iii) Authorized to manage hazardous
waste by a State with a hazardous
waste management program approved
under Part 271 of this chapter;
(iv]| Permitted, licensed, or registered
oy a State to manage municipal or
Industrial solid waste; or
(v) A facility which:
(A) Beneficially uses or reuses, or
legitimately recycles or reclaims its
waste; or
(B) Treats its waste prior to beneficial
use or reuse, or legitimate recycling or
reclamation. ^
(g) In order for hazardous waste
generated by a small quantity generator
to quantities of less than 100 kilograms
hazardous waste during a calendar
month to be excluded from full
regulation under this section, the
generator must comply with the
following requirements:
(1] Section 281.11 of this chapter;
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28744 Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and Regulation
(2) The small quantity generator-may
accumulate hazardous waste on-sitg. If
he accumulates at any time more than •_
total of 1000 kilograms of this hazardous
waste, all of those accumulated wastes
for which the accumulation limit was
exceeded are subject to regulation under
Parts 262 through 285 and Parts 270 and
124 of this chapter, and the applicable
notification requirements'bf section 3010
of RCRA. The time period of § 282.34 for
accumulation of wastes on-site begins
for a small quantity generator when the
accumulated wastes exceed 1000
kilogram*
(3) A small quantity generator may
either treat or dispose of his hazardoos
waste in an on-site facility, or ensure
delivery to an off-*ite storage, treatment
or disposal facility, either of which is:
(i) Permitted under Part 270 of this
chapter?
(ii) In interim status under Parts 270
and 265 of this chapter:
(iii) Authorized to manage hazardous
waste by a State with a hazardous
waste management program approved
under Part 271 of this chapter.
(iv) Permitted, licensed, or registered
by a State to manage municipal or
industrial solid waste: or
(v) A facility which:
(A) Beneficially uses or reuses, or •
legitimately recycles or reclaims its
waste: or
(B) Treats its waste prior to beneficial
use or reuse, or legitimate recycling or.
reclamation.
fh] In order for hazardous waste
generated by .a small quantity generator
in a quantity greater than 100 kilograms
but less than 1000 kilograms during a
calendar month to be excluded from full
regulation under this section, the
generator must comply with the
following requirements:
(1) Section 262.11 of this chapter;
(2) A small quantity generator may
accumulate hazardous waste on-site. If
he accumulates at any time more than a
total of 1000 kilograms of his hazardous
waste, all those accumulated wastes for
which the accumulation limit was
-. exceeded are au5]ect to regulation under
Parts 262 through 265 and Parts 270 and
124 of this chapter, and the applicable
notification requirements of section 3010
of RCRA. The time period of { 262.34 for
accumulation of hazardous waste on-
site begins for a small.quantity
generator when the accumulated wastes
exceed 1000 kilograms;
(3) Beginning August S. 1985. for any
hazardous waste shipped off-site, the
generator must ensure that such waste is
accompanied by a copy of the manifest
(EPA form 8700-22) signed by him and
containing the following information:
(i) The name and address of the
generator of the waste:
(ii) The United States Department of
Transportation description of the waste,
including tfce proper shipping name, • .
hazard class, and identification number
(UN/NAfc
(iii) The number and type of
container!;
(iv) The quantity of waste being
transported: and
(v) The name and address of the
facility designated to receive the waste.
(4) A small quantity generator may
either treat or dispose of his hazardous
waste in an on-site facility, or ensure
delivery to an off-site storage, treatment
or disposal facility, either of which is:
(i) Permitted under Part 270 of this
chapter
(ii) In interim status under Parts 270"
and 265 of this chapter:
(iii) Authorized to manage hazardous
waste by a State with a hazardous
waste management program approved
under Part 271 of this chapter:
(Iv) Permitted, licensed, or registered
by a Slate to manage municipal or
industrial solid waste: or
(v) A facility which;
(A) Beneficially uses or reuses, or
legitimately recycles or reclaims its
waste; or
(B) Treats its waste prior to beneficial
use or reuse, or legitimate recycling or
reclamation.
• • • » •
8. 40 CFR Part 261 is amended by
revising the introductory text and
adding an OMB control number to the
end of the section of § 281.33 to read as
follows:
$261.33 Discarded commercial er*mta*l
products, off-*p«clflcatlofl *p«cl«*,
container residues and spiH rtsMues
ttrareof.
The following materials or items are
hazardous wastes if and when they are
discarded or intended to be discarded.
^ when they are mixed with waste oil or
used oil or other material and applied to
the land for dust suppression or road
treatment or when, in lieu of their
original intended use, they are produced
for use as (or as a component of) a fuel.
distributed for use as a fuel, or burned
as a fuel.
• • • • •
(The reporting and recordkeeping
requirements contained in this lection were
approved by OMB under control number
. 2050-0047.)
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
9. The authority citation for Part 262 is
revised as follows:
Authority: Sees. 1O06,'2O02. 3O02. 3003. 3004.
3005. and 3017. of the Solid Waste Disposal
Act a* amended by the Resource
Conservation and Recovery Act of 1976. as
amended (42 U.S.C. 6906. 6912.8922. 8923,
6924. 8925, and 6637).
Appendix—{Amended]
10. The Uniform Hazardous Waste
Manifest form, in the Appendix to Part
282 is revised at follows:
WULMOCOOC u«o it u
-------
ftym.4aye.erf. OMa No. ZJOO44Q4 fmn, 7-31 4&
. ' •
C.Slew p«rUitV( a _ .. •.
^-•-:'<'''^.?-i«ijirrt «!" :v". Ti-'^.V'^".'V •»".' •
Iuiiv •" "uf
I S"fl"*lur«
20fKU.iv OWMT er Otxwitv Carnf
. ., »— .-^. ^,
I ""m*a>Ini«rr«
WA Nrm tTOO-a (Km. 4-M) rraMeui
-------
28748
Federal Register / Vol. 50. .No. 135 / Monday. Jnly 15. t985 / Ruie,
11. The Appendix to Part 282 is farther
amended by adding the following
sentence to Item 18 of the instruction* •
two spaces below the last sentence, and
proceeding the Note.
• • • • - * - v
Item IB. Genmtar't Certification •
• . • ••-• »
la signing the waste minimization
certification statement those generators who
have not been exempted by statute or
regulation from the duty to make • watte
minimization certification under section
30Q2(b) of RCRA are also certifying that they
have complied with the waste minimization
requnments.
12. Section 282.41(a) is amended by
revising (a)[8) and adding (a) (7) and (8)
to read at follows:
9282.41 Btamialraport
(•)•«••
. (8) A description of the efforts
undertaken during the year to reduce the
volume and toxiriry of waste generated.
(7} A description of the changes in
volume and toxicity of waste actually
achieved during the year in comparison
to previous years to the extent such"
information is available for years prior
to 1384. *
(8) The certification signed by the
generator or authorized representative.
• » • « .
$262.50 JAmenctedJ
' 13. In Section 282.50. existing
paragraphs (d) and (e) are redesignated
as paragraphs (e) and (f).
14. Section 262.50 is amended by
adding a new paragraph (d) and the
OMB control number to the end of the
section to read as follows:
1262.50 international •nlpRMnis,
(d) Any person exporting hazardous
waste identified-or listed mder this
chapter shall file with the Administrator
no later than March 1 of each year, a
, report summarizing «he typea. quantities,
frequency, and ultimata destination of
all such hazardous waste exported
during the previous gnianHat.
Authority: Sees. 1008. 2002(a). 3004. 3005 of
the Solid Waste Disposal Act as amended by
-.theiesource Conservation and Recovery Act
of 1970. as amended (42 U.S.C 6805, 6912fa]
6924. and 6925). ''
16.40 CFR Part 284 is amended by
adding a new paragraph § 284.l(f)(3) to'
read as follows:
1264,1 Purpose, scope, and applicability.
• • • • •
w • • • .
(3) To a person who treats, stores, or
disposes of hazardous waste in a State
which is authorized under Subpart A or
B of Part 271 of this-chapter if the State
has not been authorized to carry out th«
requirements and prohibitions
applicable to the treatment storage, or
disposal of hazardous waste at his
facility whjch AT* imposed pursuant to
the Hazardous and Solid Waste
Amendments of 1934. The requirement*
and prohibitions that are applicable
until a State receives authorization to
carry theafout include all Federal
program requirements identified in
5 271.1(j).
(Th« reporting and recordkeeping
reqmrements contained in this section were
approved by OMB under control number
2059-0024.)
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE. AND DISPOSAL
FACILITIES .-... 1
IS. The authority citation for Part 284
continues to read as follows:
• 17. In S 264.13. new paragraph (c) is
added to read as follows:
5 264.U Location standards.
(c) Salt dome formations, salt bed
• formations, underground mines and
caves. The placement of any
noncontainerized OP bulk liquid
hazardous- waste in any salt dome
formation, salt bed formation.
underground mine or cave is prohibited,
except for the Department of Energy
Waste Isolation Pilot Project in New
Mexico. _
18.40 CFR Part 264 is amended by
revising $ 2£AJQ as follows:
$264.70 Applicability.
The regulations hi this subpart apply
to owners and operators of both on-site
and off-site facilities, except as { 264.1
provides otherwise. Sections 264.71,
264.72. and 264.76 do not apply "to
owners and operators of on-site
facilities that do not receive any
hazardous waste from off-site sources.
Section 284.73{b) only applies to
permittees who treat store, or dispose
of hazardous wastes on-site where such
wastes were generated.
19. In $ 264.73, new paragraph (b)(9)
and an OMB control number are added
to read as follows:
$264.73 Operating record.
—(bjT-—-* - - -- - -
(9) A certification by the permittee no
Jess often than annually, that the
permittee has a program in place to
reduce the volume and toxicity of
hazardous waste that he generates to
the degree determined by the permittee
_ to be economically practicable: and the
proposed method of treatment storage
or disposal is that practicable method
currently available to the permittee
which minimizes the present and future
threat to human health and the
environment
(Th« reporting and recordkeeping
requiremenU contained in paragraph (bI9)
were approved by OMB under control
number 2050-0037.)
20. In 40 CFR Part 264, the beading for
Subpart F is revised to read as follows
Subpart F—Releases From Solid *
Waste Management Units
21. In 40 CFR Part 284. § 254.90 is
amended by revising paragraphs (a) aad
(b) to read as follows:
5264.90 Applicability.
(a)(l) Except as provided in paragraph
(b) of this section, the regulations in this
subpart apply to owners or operators of
facilities that treat, store or dispose of
hazardous waste. The owner or operator
must satisfy the requirements identified
in paragraph (a)(2) of this section for all
wastes (or constituents thereof)
contained in solid waste management
units at the facility, regardless of the •
time at which waste was placed in such
. units.
(2) All solid waste management units
must comply with the requirements in
i 264.101. A surface impoundment.
waste pile, and land treatment unit or
landfill that receives hazardous waste
after July 26.1932 (hereinafter referred
to as a "regulated unit") must comply
with the requirements of § $ 284 91-
284.100 in lieu of { 264.101 for purposes
of detecting, characterizing and
responding to releases to the uppermost
aquifer. The finanical responsibility
requirements of § 264.101 apply to
regulated units.
(b) The owner or operator's regulated
unit or units are not subject to regulation
for releases into the uppermost aquifer
under this subpart if:
(1) The owner or operator is exempted
under § 264.1: or
(2) He operates a unit which the
Regional Administrator finds:
(i) Is anTehgineered structure.
(u) Does not receive or contain liquid
waste or waste containing free liquids,
(iii) Is designed and operated to
exclude liquid, precipitation, aad other
run-on and run-off,
(iv) Has both inner and outer layers of
nmgnt " *
-------
Federal Register / VoL 50. No. 135 / Monday. 7uly IS. 1985 / Rules and Regulations 2S747
.(vj Has a leak detection system built
into each containment layer.
(vi) The owner or operator will
provide continuing operation-and
maintenance of these leak detection".
systems during the active life of the unit
and the closure and post-closure care
period*, and
(vii) To a reasonable degree of
certainty, will not allow hazardous
constiluents to migrate "beyond (he outer
containment layer prior to the end of-the
the post-closure care period.
(3) The Regional Administrator finds,
pursuant to § 264.280(d), (hat the
treatment zone of a land treatment unit
•that qualifies as a regulated unit does
not contain levels of hazardous
constituents that are above background
levels of those constituents by an
amount that is statistically significant
and if an unsaturated zone monitoring
program meeting the requirements of
i 264.278 has not shown a statistically
significant increase in hazardous
constituents below the treatment zone
during the operating life of the unit An
exemption under this paragraph can
only relieve an owner or operator of '
responsibility to meet the requirements
of this subpart during the post-closure
care period: or
(4) The Regional Administrator End*
that there is no potential for migration of
liquid from a regulated unit to the
uppermost aquifer during the active life
of the regulated unit (including the
closure period) and the port-closure care
period specified under § 264.117. This
demonstration must be certified by a
qualified geologist or geotechnical
engineer. In order to provide an
adequate margin of safety in the
prediction of potential migration of
liquid, the owner or operator must base
any predictions made under this
paragraph on assumptions that
maximize the rate of liquid migration.
(5} He designs and operates a pile in
compliance with S 284J250(c). - -
• • • • •
22, A new S 264.101 is added to Part
264. Subpart F to read at follows: '
1284.101 Cometh* action for Mild
wast* management untts.
(a) The owner or operator of a facility
seeking a permit for the treatment,
storage or disposal of hazardous waste
must institute corrective action as
necessary to protect human health and
the environment for all releases of •.
hazardous waste or constituents from
any solid waste management unit at the
facility, regardless of the time at which
waste was placed in such unit
' (b) Corrective action will be specified
In the permit The permit will .contra • •
schedules of compliance for such •
• cerjective action (where such corrective
action cannoJLbe completed prior to
•issuance of the permit) and assurances
of financial responsibility for completing
such corrective action.
{264.221 [Amended]
23. In { 234.221. paragraphs (c). (d).
and (ej are redesignated 1 as paragraphs
(f), (gj. tndfh). respectively.
24. In 5 284.221. the introductory text
of paragraph (a] k revised to read as
follows: ' . . .
§ 264.221 Dnlgn and operating
(a) Any surface impoundment that is
not covered by paragraph {c] of this
section or S 265.221 of this chapter must
have a liner for all portions of the
impoundment (except tor existing
portions of such impoundments). The
liner mTtst ba designed, constructed, and
installed to prevent any migration of
wastes out of the Impoundment to the
adjacent subsurface soil or ground
water or surface water at any time
during the active life (including the
. closure period) of the impoundment. The
liner may be constructed of materials
that may allow waste* .to migrate into
the liner (but not into the adjacent
subsurface soil or ground water or
surface waterj during the active life of
the facility, provided that the
impoundment is closed in accordance
with | 264.228(a)(l). For impoundments
that will be closed in accordance with
S 264.228(a)(2), the liner must be
constructed of materials that can
prevent wastes from migrating into the
liner during the active life of the facility.
The liner must be: * * *
• i» • * *
25. Section 264.221 is amended by
adding paragraphs (c). (d), and (e) to
read as follows:
J284J21 DMlgn and operating
requirement*.
* -e • • « '
(c) The owner or operator of each new
surface impoundment each new surface
impoundment unit at an existing facility,
each replacement of an existing surface
impoundment unit and each lateral
expansion of an existing surface
• impoundment unit must install two or
more liners and a leachate collection
system between such liners. The linen
and leachato collection system must
protect human health and the •
environment The requirements of this
paragraph shall apply with respect to all
waste received after the issuance of the
permit The requirement for the
installation of two or more linen in thi«
paragraph may be satisfied by tha
installation of a top liner designed, •
operated and constructed of matr i
prevent the migration of any con
into such liner during the period *
facility remains in operation (including
any post-closure monitoring period), and
a lower liner designed, operated, and '
constructed to prevent the migration of
any constituent through such finer
during such period. For the purpose af»
the preceding sentence, a lower liner
shall be deemed to satisfy such
requirement if it is constructed of at
least a 3-foot thick layer of recompacted
clay or other natural material with a
permeability of no more than lxi(Tf
centimeter per second.
(d) Paragraph (c) of this section will
not apply if the owner or operator
demonstrates to the Regional
Administrator, and the Regional
Administrator fi"^« for such surface
impoundment that alternative design
and operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituent
into the ground water or surface water
at least as effectively as such liners and
leachate collection systems.
(e) The double liner requirement set
forth in paragraph {c} of this section may
be waived by the Regional
Administrator for any mo nn fill, if:
(1) The monofill contains only
hazardous wastes from foundry rurp°^e
emission controls or metal caatin
molding sand, and such wastes d
.contain constituents which would
render the wastes hazardous for reasons
other than the EP toxiciry characteristics
in 9 261.24 of this chapter: and
(2)(i)(A) The monofill has at least one
liner for which there is no evidence that
such liner is leaking. For the purposes of
this paragraph, the term "liner" means a
liner designed, constructed, installed.
and operated to prevent hazardous
waste from passing into the liner at any
time during the active life of the facility.
or a liner designed, constructed.
installed and operated to prevent
hazardous waste from migrating beyood
the liner to adjacent subsurface soil,
ground water, or surface water at any
time during the active life of the facility.
In the case ef any surface impoundment
which has been exempted from the
requirements of paragraph (c) of this
section on the basis of a liner designed.
constructed, installed, and operated to
prevent hazardous waste from passing
beyond the finer, at the ctosore of such
impoundment the owner or operator
mint remove or decontaminate afl waste
residues, afl contaminated liner
material and contaminated toil to the
extent practicable. If all contaminated
soil is not removed or decontaminated.
the owner or operator of such
-------
""—•—^»^
impoundment will comply with -^
appropriate post-closure requirements.
including but not limited to ground-
water monitoring and corrective action;
(BJ The monofill is located more than
one-quarter mile from an underground
source of drinking water (as that term is
aefined in f 144.3 of this chapter); and
(Cj The monofill is in compliance with
generally applicable ground-water
monitoring requrements for facilities
with permits under RCRA { 3005(cfc or
(ii) The owner or operator
demonstrates that the monofill is
located, designed and operated so as to
assure that there will be no migration of
any hazardous constituent into ground
water or surface water at any future
time.
36. Section 284.301 is amended by
»dding new paragraphs fc) fdl fel
-OQrtojead as follows: ll>Wllej>
1284.301 Design and operating
requirement*. *
1264.222 [Removed] '-•
2& Section 284.222 is removed.
f 284^28 [Amended] - "
27. Section 264.228(b)(3) is removed,
ara8ra
5264.227 [Amended]*
28. Section 264.227(d)(2)(i) is amended
oy removing the phrase "or
§ 284.228(b)(2)."
§264.22« [Amended]
«n?;SeCtionL6l228(bW2" '« removed
and paragraphs fo)(3) and (b)(4) are
30. Section 284.228(d) is removed
626*252 [Removed]
31. Section 264.252 Is removed
126*253 [Removed]
32. Section 284.253 is removed
128*254 [Amended] - . .
33. Section 284.254(b)(2) is removed
and paragraphs (b)(3) and jb)(4) an
reaesignated as (b](2J and(b)(3),
respectively. • • •
126*301 [Amended] ' ";' ';" /.
34. Section 264.301 is amended by
redesignating paragraphs (el fd), [el. (fL'
and (g) as paragraph* (I), {gj, ft), (i), id
•
35. Section 284.301 is amended by
revising the introductory, text of
paragraph (a) to read as follows:
I284JM1 Oedgnand opting
f*o.ulr*nMiil*. • '
(a) Any landfill that is not covered by
paragraph (cj of this section or
1265.301(a) of this chapter must have a
liner system for all portions of the
landfill (except for existing portions of
•uch landfill). The liner system must
have: • • • . . *
i °"?nCT or operator of each new
landfill. *ach new landfill unit at an
existing facility, each replacement of an
existing landfill unit and each lateral
expansion of an existing landfill unit.
must install two or more liners and a
leachate collection system above and
between the liners. The liners and
leachate collection systems must protect
human health and the environment The
requirement for the installation of two
or more liners in this paragraph may be
satisfied by the installation of . top fan
designed, operated and constructed of
materials tc^prevent the migration of
any constituent into such liner during '
the period such facility remains in
operation (including any post-closure
monitoringjfcriod). and a lower liner
designed, operated, and constructed to
prevent the migration of any constituent
UJrough such liner during such period.
For the purpose of the preceding
sentence, a lower liner shall be deemed
to satisfy such requirement if it is
constructed of at least a 3-foot thick
layer of recompacted clay or other
natural material with a permeability of
nomore thanlxiO-Tcentimeterper
second.'
(d] Paragraph (c) of this section will
not apply if the owner or operator
demonstrates to the Regional
Administrator, and the Regional
Administrator finds for such landfill,
that alternative design and operating
practices, together with location
characteristics, will prevent the
migration of any hazardous constituent
Into the ground water or surface water
at least as effectively as such linen and
leachate collection systems.
fjfk P* double P**' "quirement set
forth in paragraph (cj of this section may
be waived by the Regional uam*'
Administrator for any monofill. ifi
(1J The monofill contains only
hazardous wastes from foundry furnace
emission controls or metal casting
molding sand, and such wastesdo not
contain constituents which would
(C) The monofill is in compliance with
generally applicable ground-water
monitoring requirements for facilities
with permits under RCRA SOOSfcl- or
(ii) The owner or operator
demonstrates that the monofill is
located designed and operated so as to
assure that there will be no migration of
any hazardous constituent into ground
water or surface water at any future
time.
(k) Any permit under RCRA SOOSfc)
which is issued for a landfill located
within the State of Alabama shall
require the installation of two or more
liners and a leachate collection system
above and between such liners,
notwithstanding any other provision of
1264.302 [Removed]
37. Section 284.302 is removed.
1264.303 [Amended]
38. Section 284.303{b)(2) is removed.
and paragraphs (b)(3), and (b)(4) are
federated ftj(2J and (b)(3).
respectively.
I264J10 [Amended]
39. Section 264.310(b)(2) is removed.
and paragraphs (b)(3) and (b)(4). (b)(s)
S3? ? L8!818 rede«8n«ted (b)(2). aKd
(b)(3) (b)(4) and (b)(S). respectiveiyT
40. Section 264.310(c) is removed
41. Section 264.314 is amended by '
revising the introductory text of
paragraph (a) to read as follows:
, SP«<**I re*julrem«rt, for bulk
and containerized wast*. ^^
(a) Bulk or non-containerized liquid
waste or waste containing free liquids
42, Paragraph (b) of f 284.314 is
•redesignated paragraph (d), and a new
paragraph (b) is added to read as
follows:
128*314 Special requirement* for bulk
and containerized waste.
; and
u«*u sMicfc iv lOaJUHK
(B) The monoflll is located more than
onesjuarter mile from ah underground^
source of drinking water (as thattenn Is
defined in 1144J of this chapter); and
ft) Effective May 8.1885. the
placement of bulk or non-containerized
liquid hazardous waste or hazardous
waste containing free liquids (whether
or not absorbents have been added) in
any landfill is prohibited •
43. Section 284.314 is amended by
adding paragraph (e) and an OMB
control number to read as follows:
-------
*~" »
Federal Register / VoL 50, No. 135 / Monday. July 15. 1965 / Rules and Regulation
(e) Effective Novembers. 1385. the
placement of any liquid wiu£h-ta not a
hazardous waste in a landfill »
prohibited unless the owner or operator
of such landfill demonstrates to the
Regional Administrator, at the Regional
Administrator determine*, that
(1) The only reasonably available
alternative to the placement in such
landfill ifl placemen! ir\ a lanrififl rr
unlined surface impoundment. M
or not permitted or operating under
interim status, which contains, or may '
reasonably be anticipated to C"ntain.
hazardous waste; and
(2) Placement in such owner or
operator's landfill win not present a risk
of contamination of any underground
source of drinking water (as that term is
defined in 1 M4J of this chapter.J
(Toe reporting »nd lecardkeeping
requirement! contained In this lection were
approved by OMB under control number
2050-0037.)
PART 265— INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND
DISPOSAL FACILITIES
44. The authority citation for Part 285
is revised to read as follows:
Authority: See*. 1008. 2002(«) . 3004. 3005
and 3015. Solid Waste Disposal Act. as
amended by the Resource Conservation and
Recovery Act •« amended (42 U.S.C. 6905,
8912(a), 6924. 6925. and 6935). •
45. Section 285.1 is amended by
revising paragraph (c)[4) to read as
follows:
1265.1
(c) • • *
{4} A person who treats, stores, or
disposes of hazardous waste in a State
with a RCRA hazardous waste program
authorized under Subparts A or B of Part
271 of tkis chapter, except that the
requirements of this part win continue to
apply.
(i] As stated la paragraph tc}(2) of this
section, if the authorized State RCRA
program does not cover disposal of
hazardous waste "by means of
underground injection; or
(hi To a person who treats, atorea. or
disposes of hazardous waste In a Stale
authorized under Subpart A or B of Part
271 of this chapter if the State has aot
been authorized to carry out the
requirements ami prohibitions
applicable to the treatment storage, or
disposal of hazardous waste at &s
facility which are imposed pursuant to •
the Hazardous and Solid Waste Act
Amendments of 1834. The requirements
and prohibitions that are applicable '
until a State receives authorization to
carry them out iadude ail Federal
program requirements identified ia
_JL_27I.l(jJ. ~"
46. In Part 265. Sabpart B, a new
S 265.1S ic added to read as foHows:
$265.18 location standards.
The placement of any hazardous
waste in a salt dome, salt bed formation,
underground mine or cave is prohibited,
except for the Department of Energy
Waste Isolation Riot Project in New
Mexico.
47. Part 285. Subpart B, is amended by
adding a new | 285.221 to read as
follows: . ' -.
§ 2*3.221 O*slgn r»qa!r*m*flts.
(«) The owner or operator of a surface
impoundment must install two or more
liners-and leachate collection system in
accordance with. $ 264.221(c) of this •
chapter, with respect to each new unit,
replacement of an existing unit or
lateraLexpansioa of an existing unit mat
is within the area identified in the Part
A permit application, and with respect
to waste received beginning May 8,
1985. •
(b) The owner or operator of each unit
. referred to in paragraph (a) of this
section must notify the Regional
Administrator at least sixty days prior
to receiving waste. The owner or
operator of each facility submitting
notice must file a Part B application
within six months of the receipt of such
notice.
(c) Paragraph (aj of this section will
not apply if the owner or operator
demonstrates to the Regional
Administrator, and the Regional
Administrator finds for such surface
impoundment, that alternative design
and operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituent
into.the ground water or surface water
at least as effectively as such liners and
leachate collection systems.
(dj The double liner requirement set
forth in paragraph {a) of this section
pay be waived by the Regional
Administrator for any moaofill. tt
(1) The monofill contains oaiy
hazardous wastes from foundry furnace
emission controls or metal casting . .
molding sand, and such wastes do not
contain constituents which would
render the wastes hazardous for reasons
other than the EP toxicity characteristics
in i ZS1J4 of mis chapter: and .
(2)(i)(A) The monofill has at least one .
liner for which there is HO evidence that
such liner in leaking, for the purpoees -of
this paragsaph the term "liner" means a
liner designed, constructed, installed.
and operated to prevent hazardoaa
waste from pawing into the line1
time during the active life of tht
or a liner designed, constructed.
installed, and operated to prevent
hazardous waste from migrating beyonc
the liner to adjacent subsurface soil*
ground water, or surface -water at any
time daring the active afe of the facility
In the case'of any surface impoundment
which-has been exempted from the
requirements of paragraph (a) of this
section on me basis of a liner designed.
constructed, installed, and operated to
prevent hazardous waste from passing
beyond the liner, at the closure of such
impoundment the owner or operator
must remove or decontaminate all wasti
residues, all contaminated liner
material, and contaminated soil to the
extent practicable. If all contaminated
soil it is not removed or
decontaminated, me owner of operator
of such impoundment must comply with
appropriate post-closure requirements.
including but not limited to ground-
water monitoring and corrective action:
(B) The monofill is located more than
one-quarter mile from an underground
source of drinking water (as that term is
defined in 3 144.3 of this chapter): and
(C) The monofill is in compliance with
generally applicable ground-water
monitoring requirements for facilities
with permits under. RCRA S 3005?
(ii) The owner or operator
demonstrates that the monofill is
located, designed and operated so as to
assure that there will be ao migration of
any hazardous constituent into ground
water or surface water at any future
time.
(e) In die case of any unit in which the
liner and ieachate collection system has
been installed pursuant to the
requirements of paragraph (a) of this
section and in good faith compliance
with paragraph (a) of this section and
with guidance documents governing
liners and leachate collection systems
under paragraph (a) of this section, no
"liner or leachate collection system
which is different from that which was
so installed pursuant to paragraph (a) of
this section wdl be required for such
unit by the Regional Administrator
when issuing the first permit to such
facility, except that the Regional
Administrator will not be precluded -
from requiring installation of a new liner
when the Regional Administrator has
reason to believe'that any liner installed
pursuant to the requirements of
paragraph (aj of this section is leaking.
48. Part 385 is amended by adding •
new f 285.254 to read as follows:
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28750
i 26SJ54 Design requirements. '
The owner or operator of a wastepUe
Is subject to the requirements for linen
and leachate collection systems or
equivalent protection provided in
! 284.251 of this chapter, with respect to
each new unit, replacement of an •
existing unit or lateral expansion of an
existing unit that is within the area
indentified in the Part A permit
application, and with respect to'waste
received beginning May 8,1985.
49. Part 285 is amended by adding a •
new S 285.301 to read as follows:
1265401 Design requirements.
(a) The owner or operator of a landfill
must install two or more liners-and
leachate collection systems above and
between such liners in accordance with
i 284.301(c) of this chapter, with respect
to each new unit, replacement of an
existing unit, or lateral expansion of an
existing unit that is within the area
Identified in the Part A permit :
application, and with respect to waste
received beginning May 8.1885.
(b) The owner or operator of each unit
referred to in paragraph (a) of this
section must notify the Regional
Administrator at least sixty days prior
to receiving waste. The owner or
operator of each facility submitting
notice must file a Part B application
within six months of the receipt of such
notice.
(c) Paragraph (a) of this section will
not apply if the owner or operator
demonstrates to the Regional
Administrator, and the Regional
Administrator finds for such landfill
that alternative design and operating
practices, together with location '
characteristics, will prevent the
migration of any hazardous constituent
into the ground water or surface water
at least as effectively as such liners and
leachate collection systems.
(d) The double liner requirement set
forth in paragraph (a) of this section
may be waived by the Regional
Administrator for any monofill. if: -
(1) The monofill contains only
hazardous wastes from foundry furnace
emission controls or metal casting
molding sand, and such wastes do not
contain constituents which would
render the wastes hazardous for reasons
other than thep toxicity characteristics
In S 281.24 of this chapter; and
(2)(i) (A) The monofill has at least one
liner for which there is no evidence that
such liner is leaking;
(B) The monofill is located more than
one-quarter mile from an underground
source of drinking water (as that term is
defined In i 144 J of this chapter); and
(C) The monofiU i. m compliance with
generally applicable ground-water .
monitoring requirements for facilities
with permits under RCRA $ 3005(c); or
(iij The owner oroperator
Demonstrates that the monofill is
located, designed and operated so as to-
assure that there will be no migration of
any hazardous constituent into ground
- water or surface water at any future
time.
(e) In the case of any unit in which the
liner and leachate collection system has
been installed pursuant to the
requirements of paragraph (a) of this -
section and in good faith compliance
with paragraph fa) of this section and
with guidance documents governing
liners and leachate collection systems
under paragraph (a) of this section, no
uner or leachate collection system •
which is different from that which was
- so installed pursuant to paragraph (al of
this sectidn^rill be required for such
unit by the Regional Administrator
when issuing the first permit to such
facility, except that the Regional
Administra^orwill not be precluded
from requiring installation of a new Uner
when the Regional Administrator has
reason to believe that any liner installed
pursuant to the requirements of
paragraph (a) of this section is leaking.
I26&314 [Amended]
50. Paragraphs (b) and (c) of 5 265.314
are redesignated as paragraphs (c) and
[ej, respectively, and paragraph (d) is
reserved.
51. Section 285:314 is amended by
revising the introductory text of
paragraph (a), and by adding new
paragraph (b) to read as follows:
§265.314 Special requirements for liquid
bulk and contelnmfetd waste.
(a) Bulk or non-containerized liquid
waste or waste containing free liquids
may be placed in a landfill prior to May
8.1885 only i£
~ • •
- (b) Effective May 8.1985. the
placement of bulk or non-containerized
liquid hazardous waste or hazardous
waste containing free liquids (whether
. or not absorbents have been added) in
any landfill is prohibited.
52. Section 285.314 is amended by
revising newly designated paragraph fe).
addjnga new paragraph (f). and adding
an OMB control number to the end of
the section to read as follows:
{265.314 Special requirement* f or buflc
and containerized waste. .
compliance with paragraph (c) of this
section is March 22.1982.
(f) Effective November 8,1985 the
Placement of any liquid which is not a
hazardous waste in a landfill is
prohibited unless the owner or operator
of such landfill demonstrates to the
Regional Administrator, or the Regional
Administrator determines, that:
(1) The only reasonably available
alternative to the placement in such
landfill is placement in a landfill or
unlined surface impoundment, whether-
or not permitted or operating under
interim status, which contains, or may
reasonably be anticipated to contain.
hazardous waste: and
(2) Placement in such owner or
operator's landfill will not present a risk
of contamination of any underground
source of drinking water (as that term is
defined in i 144.3-of this chapter).
(The reporting and recordkeeping
requirements contained. In this section were
spproved by OMB under control number
2050-0037]
PART 268—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
53. The authority citation for Part 268
continues to read as follows:
(e) The date for compliance with
. paragraph (a) of this section is
November 19,1981. The date for .
,. , *-10». 2002{a). and 3004. of
the Solid Waste Disposal Act. as amended by
the Resource Conservation and Recovery Act
of 1978. as amended (42 U.S.C. 6905, 69l2(a)
and 6924).
54. In Part 268. Subpart C. the text of
266.23 is redesignated as paragraph (a)
and a new paragraph (b) Is added to
read as follows:
§ 264.23 Standards applicable to users of
materials trmt ir* uMd In • manner that
constitute* disposal.
(b) The use of waste or used oil or
other material, which is contaminated
with dioxin or any other hazardous
waste (other than a waste identified
' solely on the basis of ignitability), for
dust suppression or road treatment is
prohibited.
55. In Part 268. Subpart D is amended
by adding $ 268.31 as set forth below.
I266J1 Prohibfflona, '
(a) [Reserved] . .
• (b)(l) Except as provided in paragraph
(b)(2) of this section, no fuel which
contains any hazardous waste may be
burned in any cement kiln which is
located within the boundaries of any
incorporated municipality with a
population greater than 500.000 (based
on the most recent census statistics) <
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Federal Register / Vol. 50. No. 135 / Monday. July l& 1985-/ Rule3 and Regulations
2S
' unless such kiln fully complies with
regulations under this chapter that are
' applicable to incinerators. ' • -
(2) This requirement does not apply to
petroleum refinery hazardous wastes
containing oil which are converted into
petroleum coke at the same facility at
.- which such wastes were generated.
unless the resulting coke product would
exceed one or more of the •
characteristics of hazardous waste in
Part 261, Subpart C.
56. In Part 266. Subpart D. { 266.34 is
amended by adding paragraph (d) and
adding an OMB control number to the
end of the section.
I2M.34 [Amended]- " " "
• • • • ' * • »,--'.:. ° ,
(d) Labelling. (1) Except as provided
in paragraphs (d)(2H4) of this section,
after February 8,1385. it shall be
unlawful for any person who produces,
distributes, or markets any fuel that
contains a hazardous waste to distribute
or market such fuel if the invoice or the
bill of sale fails:
(i) To bear the following statement
"WARNING: THIS FUEL CONTAINS
HAZARDOUS WASTE", and
(ii) To list the hazardous wastes
contained therein. Such statement must
be located in a conspicuous place on
every such invoice or bill of sale and
must appear in conspicuous and legible •
type iacontrast by typography, layout. .
or color with other printed matter on the
invoice or bill of sale.
(2) This requirement does not apply to
fuels produced from petroleum refining
hazardous waste containing oil if
(i) Such materials are generated and
reinserted on-site into the refining
process;
(ii) Contaminants are removed: and
(in) Such refining waste containing oil
is converted along with normal process
streams into petroleum-derived fuel
products at a facility at which crude oil
is refined into petroleum products and
which is classified as a number SIC 2911
facility under the Office of Management
and Budget Standard Industrial
Classification Manual' • •.• •
(3) This requirement does not apply to
fuels produced from oily materials
resulting from normal petroleum refining
production and transportation practices:
(i) Contaminants are removed: and
(ii) Such oily materials are converted
•long with normal process streams into
petroleum-derived fuel products at a
facility at which crude oil is refined into
petroleum products and which is
classified as a number SIC 2911 facility
under the Office of Management and
Budget Standard Industrial
Classification Manual.' '..••-• -p. ..'
(.4) This requirement does not apply to
petroleum-refinery hazardous wastes
-containing oil which are converted into
petroleum coke at the same facility at
which auch wastes were generated.
unless the resulting coke product would
exceed one or more of the
characteristics of hazardous waste in
Part 261. Subpart C. - • . -
(The reporting and recordkeeping
requirements contained In thii section were
approved by OMB under control number
2050-0047) '
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT .
PROGRAM ....
57. The authority citation for Part 270
as follows:
Aegiority: Sec*. 1000.2002. 3005.3007,3019,
and 7004 of the Solid Waste Disposal Act ai
amended by the Resource Conservation and
Recovery Art of 1978, a* amended (42 U.S.C
690$r6912. 6925. 6927. 6939, and 6974).
.. 58. In Part 270, S 270.10 is amended by
revising paragraphs (a) and (c), the
paragraph heading of (e), paragraphs
(e)(l). (f)(l), (f)(3J. adding (j). amending
paragraph (e)(4) by adding two
sentences to the end and by adding an
OMB control number to the end of the
section to read as follows:
$270.10 General application
requirements. •
(a) Permit application. Any person
who is required to have a permit
(including new applicants and
permittees with expiring permits) shall
complete, sign, and submit an
application to the Director as described
in this section and § § 270.70 through
270.73. Persons currently authorized
with interim status shall apply for
permits when required by the Director.
Persons covered by RCRA permits by
rule (5 270.60). need not apply.
Procedures for applications, issuance
and administration of emergency
permits are found exclusively in
§ 270.61. Procedures for application.
issuance and administration of research,
development and demonstration
permits are found Exclusively in
! 270.65.
.. (c) Completeness. The Director shall
not issue a permit before receiving a •
complete application for a permit except
for permits by rule, or emergency
permits. An application for a permit is
complete when the Director receives an
application form and any supplemental
information which are completed to his '
satisfaction. An application for a permit
is complete notwithstanding the failure
of the owner or operator to submit the
exposure information describ
paragraph (j) of this section.
• • i . ,
_ (e) Existing HWM facilities and
interim status qualifications. (1) flhvi
and operators of existing hazardous
waste management facilities or of
hazardous waste management faciliti
in existence on the effective date^of
statutory or regulatory amendments
under the act that render the facility
subject to the requirement to have a
RCRA permit must submit Part A of
their permit application no later than
(i) Six months after the date of
publication of regulations which first
require them to comply with the
standards set forth in 40 CFR Parts 26
or 286, or
(ii) Thirty days after the date they f
become subject to the standards set
forth in 40 CFR Part 285 or 266.
whichever first occurs.
• • • • *
(4) * • * Notwithstanding the abov
any owner or operator of an existing
HWM facility must submit a Part B
permit application in accordance with
the dates specified in } 270.73. Any
owner or operator of a land disposal
facility in existence on the effective d,
of statutory or regulatory amendments
under this Act that render the faei'itv
subject to the requirement to hf •
RCRA permit must submit a P&
application in accordance with *. _,:
specified in § 270.73.
(f) New HWM facilities. (1) Except E
provided in paragraph (f)(3) of this
section, no person shall begin physical
construction of a new HWM facility
without having submitted Part A and
Part B of the permit application and
having received a finally effective RCJ
permit
(3) Notwithstanding paragraph (f)(l)
of this section, a person may construct
facility for the incineration of •
polychlorinated biphenyls pursuant to
an approval Issued by the Administrat
under section (6)(e) of the Toxic
Substances Control Act and any perso
owning or operating such a facility ma-
at any time after construction or
operation of such facility has begun, fil
an application for a RCRA permit to
incinerate hazardous waste authorizinj
such facility to incinerate waste
identified or listed under Subtitle C of
RCRA.
• « • * *
0) Exposure information. (1) After
August 8, 1985. any Part B permit
application submitted by an own»- —
operator of a facility that stores
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28752
Federat Raster / Vol. 50. NO. 135 / Monday, July 15. 1985 , RultMt. ..., Regulaliong
or dispose of hazardous waste in-«~-_
surface impoundment or a landfill must
be accompanied by information,
reasonably ascertainable by the owner
or operator, on the potential for the
public to be exposed to hazardous
wastes or hazardous constituents
through releases related to the unit At a.
minimum, such information must
address: • . • ~~
(i) Reasonably foreseeable potential
releases from both normal operations
and accidents at the unit including
releases associated with transportation
to or from the unit;
(ii) The potential pathways of human
exposure to hazardous wastes or .
constituents resulting from the releases
described under paragraph (i}: and
(iii) The potential magnitude and
nature of the human exposure resulting
from such releases.
(2) By August 8.1985, owners and
operators of a landfill or a surface
impoundment who have already
submitted a Part B application must
submit the exposure information
required in paragraph (j)(ll of this '
section. .
(Reporting and recordkeeping requirements
contained in this lection were approved by '
OMB under control number 2050-0007.)
5270,17 [Amended]
59. Section 270.17 is amended by
removing paragraph {c}, redesignating
paragraphs (d), (e), (f), (g), (hi, (i) and (51
a8(c).(d).(e).(f).(g).(hXand{i] UJ
respectively.
6O. Section 270.18 is amended by
revising paragraph (b) to read as
follows: :
9270.18 Specific Psrt B Information
requirements for waste piles.
(b) If an exemption is sought to
S 264.251 and Subpart F of Part 284 as
provided by i 284.250(c) or { 284.90(2),
an explanation of how the standards of
1284.250(0] will be complied with or
detailed plans and an engineering report
describing how the requirements of
|284.90(bK2)winbemet ... ••
t « • , • • . «
61. Section 270.18 is amended by
removing paragraph (d), redesignating
Pafagraphs (e). (f). (g). (h). (i) and (j) a.
(d), (e). (f). (g). (h) and (i) respectively.
62. Section 270.18 is amended by
revising newiy designated paragraphed]
to read as follows:
(d) A description of how each waste
pile, including the liner and
appurtenances for control of run-on and
run-off, wifl be inspected in order to
meet the requirements of f 284.254(»)
and (b). This information should be • • •
included in the inspection plan
submitted under i 270.l4{b}[5).
1 83. Section 270.21 is amended by
revising paragraph (h) to read as
follows:
I27W1 Specific Part B Information
requirements
(h) If bulk or non-containerized liquid "
waste or wastes containing free liquids
is to be landfilled prior to May 8, 1985.
an explanation of how the requirements
of | 284.314(a) will be complied with;
64. Section 270.30 is amended by : -
revising the first sentence of paragraph
(JK2) to read as follows: ^P
1270 JO Conditions sepftcaMt to a*
permrtst "* .
• ••«%:» , -
or • •'
(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 the certification required by
J 264.73(b)(9) of this chapter, 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.
certification, or application. • • • .
* « » • •
65. Section 270.32 is amended by
revising paragraph (b} to read as
follows:
J 270.32 Establishing permit conditions.
(b)(l) Each RCRA permit shall
include permit conditions necessary to
achieve compliance with the Act and
regulations, including each of the
applicable requirements specified in 40
CFR Parts 284. 266, and 287. In satisfying
this provision, the Director may
incorporate applicable requirements of
40 CFR Parts 264, 288. and 287 directly
into the permit or establish other permit
conditions that are based on these parts.
(2) Each permit issued under section
3005 of this act shall contain terms and
ccaditions as the Administrator or State
Director determines necessary to protect
human health and the environment
• • • . • »
. 88. Section 270.41 is amended by
folfwf * neW paraffraPh WM to nad ai
} 270.41 Ifajor modification or rsvt
•nd reissusnce of permits.
(•)•• •.•"•.:*•_'.•£". ;:.:;
(6) Notwithstanding any other
provision in this section, when a permit
for a land disposal facility is reviewed
by the Director under f 27
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Federal Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rules and Regulations
capabilities of the technology .or process
and the effects of such technology or
process on human health and the
environment, and • ~
(3) Shall include such requirements as
the Administrator deems necessary to
protect Tiuman health and the
environment (including, but not limited
to. requirements regarding monitoring.
operation, financial responsibility,
closure, and remedial action), and such
requirements as the Administrator
deems necessary regarding testing and
providing of information to the
Administrator with respect to the
operation of the facility.
(b) For the purpose of expediting
review and issuance of permits under
this section, the Administrator may.
consistent with the protection of human
health and the environment modify or
waive permit application and permit
Issuance requirements in Parts 124 and •
270 except that there may be no,
modification or waiver of regulations
regarding financial responsibility
(including insurance) or of procedures
regarding public participation.
(c) The Administrator may order an
immediate termination of all operations.
at the facility at any time he determines
that termination is necessary to protect
human health and! the environment.
(d) Any permit issued under this
section may be renewed not more than
three times. Each such renewal shall be
for a period of not more than I year.
70. Section 270.70 is amended by
revising the introductory text of
paragraph (a) and by adding paragraph
(c) to read as follows: '
{270.70 Qualifying for Interim statua.
(a) Any person who owns or operates
an "existing HWM facility" or a facility
in existence on the effective date of
statutory or regulatory amendments
under the Act that render the facility
subject to the requirement to have an
RCRA permit shall have interim status
and shall be treated •• having been
issued a permit to the extent he or she
has:* • • ,:.:... ..-.
• • • ». . • .....'
(c) Paragraph (a) of this section shall
not apply to any facility which has been
previously denied a RCRA permit or if
authority to operate the facility under
RCRA has been previously terminated.
71. Section 270.73 is amended by
adding paragraphs (c). (d). (e), and (f)
and by adding an 6MB control number
to the end of the section to read as •
follows:
§270.73 Termination of Interim atatu*.
* * • • . *
(c) For owners or operators at each
land disposal facility which has been
granted interim status prior to
November 8.1984. on November 8.1983.
unless: •«-
"""(1) The owner or operator submits a
Part B application for a permit for such
facility prior to that date: and
(2) The owner or operator certifies
that such facility is in compliance with
all applicable ground-water monitoring
and financial responsibility
requirements.
(d) For owners or operators of each
land disposal facility which ia in
existence on the effective date of
statutory or regulatory amendments
under the Act that render the facility
subject to the requirement to have a
RCRA permit and which is granted
interim status, twelve months after the
date on which the facility first becomes
subject to ouch permit requirement
unleaft the owner or operator of such
facilit>s
(1) Submits a Part B application for a
RCRA permit for such facility before the
date^2 months after the date on which
the ftcility first becomes subject to such
permit requirement; and
(2) Certifies that such facility is in
compliance with all applicable ground
water monitoring and financial
responsibility requirements.
(e) For owners or operators of each
incinerator facility on November 8.1989.
unless the owner or operator of the
facility submits a Part B application for
a RCRA-permit for an incinerator
facility by November 8,1986.
(f) For owners or operators of any
facility (other than a land disposal or an
incinerator facility) oh November 8,
1992, unless the owner or operator of the
facility submits a Part B application for
a RCRA permit for the facility by
November 8.1988.
. (The reporting and recordlceeping
requirements contained in this section were
approved by OMB under control number
2050-0037.) .....
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS '
72. The authority citation for Part 271
continues to read as follows:
Authority: Sees. 1008.2002(a). and 3006 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(«).
and 6928).
73. Section 271.1 is amended by
revising paragraphs (a) and (f) and
adding paragraph (j) to read as follows:
§271.1 PurpoM and scop*.
(a) This subpart specifies the
procedures EPA will follow in
approving, revising, and withdrawing
approval of State programs and •'
requirements State programs IT
to be approved by the Adminis
under Sections 3006 (b) and {f) 01,^RA
• •••».
(f) Except as provided in 5 27t.3(a^(3)
upon approval of a State permitting
program, the Administrator shall
suspend the issuance of Federal permits
for those activities subject to the ?
approved State program.
• • • • * *
(}) Requirements and prohibitions
which are applicable to the generation.
transportation, treatment, storage, or
disposal of hazardous waste and which
are imposed pursuant to the Hazardous
and Solid Waste Amendments of 1984
(HSWA) include:
(1) Any requirement orprohibition
which has taken effect under HSWA.
and
(2) All regulations specified in Table
Note.—See 55 284.1(0(3), 265.1(c){4)(iiJ.
271.3(a). 271.21(e). and 271.121(c)(3) for
applicability.
TABLE 1.—REGULATIONS IMPLEMENTING THE
. HAZARDOUS AND Souo WASTE AMEND-
MENTS OF 1984
CWt*
1-u-as
Ju)y 15. IS8S.....L.
TO* & regulation
OiowvConUirana
Wanu. '
Codficatxxi RuM
rstenncc
SOFB
SOFH '
FvticrM
nunvxn).
74. Section 271.3 is amended by
revising paragraph (a) to read as
follows:
§ 271.3 Availability of final authorization.
(a) States approved under this subpart
are authorized to administer and enforce
their hazardous waste program in lieu of
the Federal program, except as provided
below:
(1) Any requirement or prohibition
which is applicable to the generation.
transportation, treatment, storage, or
disposal of hazardous waste and which
is imposed pursuant to the Hazardous
and Solid Waste Amendments of 1984
takes effect in each State having a
finally authorized State program on the
same date as such requirement takes
effect in other States. These
requirements and prohibitions are
identified in § 27i.l(j).
(2) The requirements and prohibitions
in J 271.l(j) supersede any less stringent
provision of a State program. The
Administrator if authorized to carry out
each such Federal requirement and
prohibition in an authorized State
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28754
r t where, pursuant to Sections
3006(b) or 3006(g)(2) of RCRA. the^tate
has received final or interim
authorization to cany out the particular
requirement or prohibition. Violations of
Federal requirements and prohibition!
effective in authorized States are
i and
.
(3) Until an authorized State program
is revised to reflect the amendments
made by the Hazardous and Solid
Waste Amendments of 1984 and such
program revisions receive final or
interim authorization pursuant to
or shall have the
authority in such State to issue or deny
P«nT"taJ°,r those Portions of permits
affected by the requirements and
prohibitiona established by the
Hazardous and Solid Waste
Amendments of 1984.
75. Section 271.17 is amended by
follow-* neW paragraph W to read a8
5271.17 Sharing of Information.
u -— •» -«w %««4 i\ mns 124 zoo
I2Tnonths:prior to 'the's^te™™^1"*
submission of it, official application.
waere a State program meets the
requirements of section 3006[b) of ROU
and this subpart it may receive final
authorization for any provision of its
program corresponding to a Federal
provision in effect on the date of the
otate s authorization. For purposes of
tile Federal requirements identified in
i 271.l(j). a State may seek interim
• authorization under } 271.21 in lieu of
final authorization.
• :• -.- • .
P) Any authorized State program
wuch requires revision because of a
Federal program change to this Part or
40 CFR Parts 124. 260-268. or 270 shall'
be modifiSa-within one year Cor two
years if a State statutory amendment Is
required) of the date of promulgation of
the Federal regulation. Authorized
States shati have one year (two years if
a statutory amendment is required) from
RPRA Cf !e.date of'^-implementing
KUtA statutory amendments to modify
Uieir programs. For purposes of the
*„*ra* requirements identified in
8 271.10), a State may satisfy this
tntTTKm***** f»M ~_. tin _ . > «
program must meet in order to obtain
"?ai authorization mdeT Section 3006fbl
of RCRA are specified in Subpart A. In
addition, § 271.138 addresses the
availability of interim authorization
under Section 3006{g)(2) of RCRA for
btates with interim authorization under
Section 3006{c) of RCRA.
authorization under
[c]I The State program must provide
for the public availability of information
±ss fe tsrr ^^sssasss
disposal of hazardous^alu Sh - ?&&*&*** "^orizati^
information must be made available to
the public in substantially the same
manner, and to the same degree, as
would be the case if the Administrator
was carrying oat the provisions of
Subtitle C of RCRA in the State/Interim
authorization under j 271.24 is not
available to demonstrate compliance
with this section.
76. Section 271.19 is amended by
adding a new paragraph (f) to read as
tOUOWK
78. Part 271 is amended by addins a
ST!"1 ««rthert»»on under
S271.1t EPA review of SUM permtta.
• * • * .
(f) Notwithstanding the above
provisions. EPA shall issue permit*, or
portions of permits, to facilities in
authorized States as necessary to
implement the Hazardous and Solid
Waste Amendments of 1984.
77. Section 271.21(e)fl)(ii) is removed.
paragraph (e)(l)(iii) is redesignated as
(e){lj(iij, and paragraphs (e)(I)(i) and
(e)(2) are revised to read as follows:
5271.21 Procedure* for revtelon of State
programs. - - •
f*)(l)(0 Official State applications for
final authorization shall be reviewed on
tn« bases of Federal self-implementing
statutory provisions that were in effect
12 months prior to the State's >
B o RA.
Any State which is applying for or has
been granted final authorization
pursuant to Section 3006{b) of RCRA
may submit to the Administrator^
evidence that its program contains (or
nas been amended to include) any
requirement which is substantially
equivalent to a requirement identified
8 271.10). Such States may request
interim authorization under Section
wreig) of RCRA to carry out the State
requirement in lieu of the Administrator
SSstetL011* the Federal re*ulrement to
Ah lS{f '"i"1"?,1!?8 lhe ^^rements of
this Subpart will be allowed to
administer a permit program in lieu of
the corresponding Federal hazardous
waste permit program for each
component for which they have received
interim authorization, except as
provided below:
(!) Any requirement of prohibition
which i. applicable to the generation.
transportation, treatment storage, or
disposal of hazardous waste and which
is imposed pursuant to the amendments
made by the Hazardous and Solid
Waste Amendments of 1984 takes effect
in each State having an interim
authorized State program on the same
date as such requirement takes effe* in
£2?£!atef- These re('uiren«nts and
prohibitions are identified in § 271.1U).
in PiJ,Pe,re
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Federar Register / Vol. 50. No. 135 / Monday. July 15. 1985 / Rulea and Regulation
80. Section 271.122 is amended by
revising paragraph (b)(l) to read as
follows and by removing the note which '
follows (b)(l): ._ .
1271.122 S6h«dut«,.
• • • • •
[b](l) Interim authorization for Phase I
and Phase n expires on January 31.1988.
81. Section 271.134 is amended by
•dding a new paragraph (f) to read as
follows:
1271.134 EPA ravfew of State parmtta. ^
(Q Notwithstanding the above
provisions. EPA shall issue permits, or
portions of permits, to facilities in
authorized States as necessary to
implement the Hazardous and Solid
Waste Amendments of 1984.
82. Part 271 is amended by adding a
new § 271.138 to read as follows:
i 271.138 Interim authorization under
aaction 3006{g) of RCRA.
(a) Any State which, before the date
of enactment of the Hazardous and
Solid Waste Amendments of 1984. has
an existing hazardous waste program
which has been granted interim
authorization for all components of
Phase U may submit to the
Administrator evidence that such
existing program contains (or has been
amended to include) any requirement
which is substantially equivalent to a
requirement referred to in J 271.1Q) of
this chapter. Such States may request
Interim authorization under section
3006(gJ of RCRA to carry out such
requirement in lieu of the Administrator
carrying out the Federal requirement in
the State.
(b) Any such interim authorization •
under section 3008(g) expires on January
31.1988. if a State program with interim
authorization under section 3006(c)
raverU to EPA on that date. See
i 271.122(b}(2) of this chapter.
(The reporting and recordkeeping
requirements contained in this lection were
approved by OMB under control number
2050-0037.)
83.40 CFR Part 280 is added as
follows:
PART 280—UNDERGROUND
^STORAGE TANKS
See.
200.1 Definition and exemption*.
280.2 Interim prohibition.
Authority: Seci. 9001 and 9003(g) of the
Solid Waste Disposal Act at revised by the
Resource Conservation and Recovery Act at
amended [42 U.S.C. 6991 and 6993(g)].
f 280.1 Daflnittona and exemption*.
"Person" has the same meaning as
provided in Section 1004(15) of the
Resource Conservation and Recovery
& Act ae amended, except that such term
Includes a consortiuta, a joint venture, a
commercial entity, and the United States
Government
"Regulated substance" means
fft^Any substance defined in Section
101(14} of the Comprehensive
Environmental Response. Compensation
and Liability Act of 1980 (but not
including any substance regulated as a
hazjttdous waste under Subtitle C of the
Resource Conservation and Recovery
Act as amended), and
. (b) Petroleum, including crude oil or
any fraction thereof which is liquid at
standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute).
"Release" means any spilling, leaking.
emitting, discharging, escaping, leaching,
or disposing from an underground
storage tank into ground water, surface
water, or subsurface soils.
"Underground storage tank" means
any one or combination of tank*
(including underground pipes connected
thereto] which is used to contain an
accumulation of regulated substances,
and the volume of which (including the
volume of the underground pipes
•connected thereto) is 10 per centum or
more beneath the surface of the ground.
Such term does not include any
(a) Farm or residential tank of 1,100
gallons or less capacity used for storing
motor fuel for noncommercial purposes,
(b) Tank used for storing heating oil
for consumptive use on the premises
where stored,
(c) Septic tank, .
(d) Pipeline facility (including
gathering lines):
(e) Regulated under the Natural Gas
Pipeline Safety Act of 1968 (49 U.S.C
App. 1671, et. seq.). or
(f) Regulated under the Hazardous
Liquid Pipeline Safety Act of 1979 (49
U.S.C App. 2001. et. seq.), or
(g) Which is an intraatate p
facility regulated under State u
comparable to the provisions of law
referred to in clause (e) and (f) cf,Jhis
definition.
(h) Surface impoundment, pit pond
lagoon,
(i) Storm water or waste waterf*
collection system.
(j) Flow-through process tank.
(k) Liquid trap or associated gathen
lines directly related to oil or gas
production and gathering operations, i
(1) Storage tank situated in an
underground area (such as a basemen1
. cellar, mineworking, drift shaft, or
. runnel) if the storage tank is situated
upon or above the surface of the
undesignated floor.
(m) Any pipes connected to any tanl
which is described in paragraphs (a)
through (1) of this section.
§ 280.2 Interim prohibition.
(a) Between May 7,1985 and the
effective date of the standards
promulgated by the Administrator und
section 9003(e) of the Hazardous and
Solid Waste Amendments of 1984, no
person may install an underground
storage tank for the purpose of storing
regulated substances unless such tank
(whether of single or double wall
construction):
(1) Will prevent releases due
corrosion or structural failure fo
operational life of the tank;
(2) Is cathodically protected against
corrosion, constructed of noncorrosive
material, steel clad with a noncorrosive
material, or designed in a manner to
prevent the release or threatened
release of any stored substance; and
(3) The material used in the
construction or lining of the tank is
compatible with the substance to be
stored
(b) Notwithstanding paragraph (a) of
this section, if soil tests conducted in
accordance with ASTM Standard G57-
78, or another standard approved by the
Administrator, show that soil resistivity
in an installation location is 12.000 ohm-
cm or more (unless a more stringent
standard is prescribed by the
Administrator by rule), a storage tank
without corrosion protection may be
installed In that location during the
period referred to in paragraph (a) of
this section.
[FR Doe. 85-13094 Filed 7-12-85: 8:45 am)
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