United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
530-SW-91 -047
&EPA
DIRECTIVE NUMBER: 9541.00-13
TITLE: State Program Advisory #8
APPROVAL DATE: March 1, 1991
EFFECTIVE DATE: March 1, 1991
ORIGINATING OFFICE: State Programs Branch
Office of Solid Waste
x FINAL
DRAFT
STATUS:
O A - Pending OMB Approval
D B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
Supplements OSWER Directive 9540.00-9A
OSWER OSWER OSWER OSWER
DIRECTIVE DIRECTIVE DIPECTIVF
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United States Environmental ProtectionAgency*
Washington. DC 20460
^^ ^^ TVWIIMIytWII, l^\f £.V*W
OSWER Directive Initiation Request
2. Originator Information
1 Directive Number
9541.00-13
3. Title
Jones
Mail Code
OS-342
Office
OSW
Telephone Code
(202) 382-2210
State Program Advisory #8 - State Program Changes for Non-HSWA Cluster VI
and HSWA Cluster II and Associated Revisions to the State Authorization Manual (SAT"
4. Summary of Directive (include brief statement of purpose)
This document extends policy given in the SAM (QSWER Directive #9540.00-9A) by
providing Checklists 64-70 and the revised models which are responsive to these
new checklists. These documents/as part of the SAM, provide guidance to the Regior
and States. They are used as models for authorization and codification.
Guidance / State Authorization / State Program
*. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
Yes What directive (number, title)
Yes What directive (number, title)
. Draft Level
A - Signed by AA/DAA
PD# 9540.00-9A
B - Signed by Office Director
D - In Development
C - For Review & Commeni
8. Document to be distributed to States by Headquarters? | x| Yes j_
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Lynn
r/o^-
fcldeof Solid Waste
10. Name and Title of Approving'Orficial
Sylvia K. Lowrance/ Director/ Office of Solid Waste
EPA Forni 1315-17 (Rev. 5-»7) Previous editions are obsolete.
OSWER OSWER OSWER C
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
MAR
1991
SUBJECT: State Programs Advisory Number Eight
FROM:
TO:
Sylvia K. Lowrance, Direct
Office of Solid Waste
Regional Waste Management Division Directors
EPA Regions I-X
The State and Regional Programs Branch (SRPB) has
periodically issued State Programs Advisories (SPAs) to update
the "State Consolidated Authorization Manual" (SCRAM) as new RCRA
program policies, regulations, and self-implementing statutory
provisions come into effect. Since the SCRAM was recently
replaced by the State Authorization Manual (SAM) which includes
RCRA program changes through June 30, 1989, current SPAs (SPA 8
and higher) will now update the SAM.
The intent of this memo is to send you SPA #8 which covers
RCRA program changes for the period July 1, 1989 through
December 31, 1989. Included in the SPA are seven new revision
checklists, model Attorney General's Statement language for the
changes covered by the SPA, and other revised materials. Please
note that a revision to the "First Third Scheduled Wastes" is
included in this SPA. Also, note that SPA 8 introduces Revision
Checklist 70 which covers changes to Part 124 which were
inadvertently not included as checklists in previous guidance.
If you have questions about any of these materials, please
contact Richard LaShier, Acting Chief, Regional Coordination &
Implementation Section, State and Regional Programs Branch at
FTS 382-2210.
Attachments
cc: Dev Barnes, OSW
Suzanne Rudzinski, OSW
Branch Chiefs, Regions I-X
Section Chiefs, Regions I-X
State Programs Liaisons
Printed on Recycled Paper
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Summary for State Program Advisory Eight
The following points briefly highlight the content of SPA 8. These points are organized by
topic.
Checklists
a. New
b. Existing
This SPA provides seven new revision checklists (Numbers 64 through 70)
and one amended checklist (Number 24), covering RCRA regulatory changes
for the period July 1, 1989 through December 31, 1989. Revision Checklists
64, 65, 67 and 70 as well as the amended Revision Checklist 24 were
added to non-HSWA Cluster VI. Checklists 66, 68 and 69 were added to
HSWA Cluster II.
Revision Checklist 70 contains a series of changes to Part 124 covering the
period January 1983 through December 31, 1989. These changes are part
of rules associated with a wide range of permit programs (e.g., Drinking
Water, NPDES), including RCRA permits. These changes have not been
previously addressed in the SAM, SCRAM or prior SPAs, and this checklist
helps States update their code appropriately.
The May 2, 1986 rule addressed by Revision Checklist 24 Incorrectly
designated the amendments to 264.113 and 265.113 as optional. Revision
Checklist 24 (Amended), included in this SPA, incorporates the June 26,
1990 (55 FR 25976) correction in which the 264.113 and 265.113
amendments are redeslgnated as more stringent. This amended checklist
must be submitted by States already authorized for Revision Checklist 24,
that did not adopt the 264.113 and 265.113 provisions, to modify their
regulatory programs. States must adopt these provisions by July 1, 1991
(July 1, 1992 for statutory changes). States that are not already authorized
for Revision Checklist 24 should use this amended checklist when applying
for the May 2, 1986 rule.
SPA 8 provides revised first pages for Revision Checklists 50 and 62,
explaining that Revision Checklist 66 makes additional changes to the First
Third Scheduled Wastes.
Cluster Information
SAM
SPA 8 delineates timeframes by which States must obtain authorization for
non-HSWA Cluster VI and HSWA Cluster II. Revision Checklists 64, 65, 67
and 70 open non-HSWA Cluster VI. Both clusters close on June 30, 1990.
For further information on the cluster rule, see September 26, 1986 (51 FR
33712).
This SPA provides updated Tables G-1 and Q-2, a Model Attorney General's
Statement, and a Checklist Linkage Table.
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STATE PROGRAM ADVISORY #8
A. STATE PROGRAM CHANGES FOR JULY 1, 1989 - DECEMBER 31, 1989
1. Delay of Closure Period for Hazardous Waste Management Facilities
Date: August 14, 1989 Reference: 54 FR 33376
Effective: November 13, 1989
Summary: This rule amends closure requirements applicable to certain types of hazardous
waste facilities. Under limited circumstances, facilities may delay closure to receive non-
hazardous wastes after the final receipt of hazardous waste. Owners and operators of
facilities delaying closure under today's rule will be required to operate under the full
permit requirements of 40 CFR Part 264 (or Part 265 requirements until a permit is
issued), including corrective action requirements. In addition, surface impoundments not in
compliance with liner and leachate collection system requirements will be required to
remove all hazardous wastes to the extent practicable. Facilities currently in interim status
that meet the requirements of today's rule may delay closure while the permit application
is being reviewed.
State Authorization: This is a non-HSWA rule and will be included in non-HSWA Cluster
VI. The standards promulgated in this rule are less stringent than or reduce the scope of
existing Federal requirements. Therefore, authorized States are not required to modify their
program to adopt these Delay of Closure provisions. The modification deadline for those
States wishing to adopt these provisions is July 1, 1991. Only final authorization is
available.
Note that States must adopt the Revision Checklist 24 amendments (May 2, 1986; 51 FR
16422) to 40 CFR 264.113 and 265.113 before or simultaneous with adopting the Delay of
Closure provisions. The May 2, 1986 final rule erroneously designated as optional
amendments to 40 CFR 264.113 and 265.113. A June 26, 1990 (55 FR 25976) notice
corrected this error and explained the relationship of the 40 CFR 264.113 and 265.113
amendments to authorization for the Delay of Closure provisions.
The State revision application must include a revised program description, an AG Statement
addendum, an addendum to the MOA (if appropriate), Revision Checklist 64, and
associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect the addition of this checklist. These revisions are addressed in
Section B of this SPA. A copy of Revision Checklist 64 and its associated FR notice may
be found in Attachment A.
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2. Mining Waste Exclusion I
Date: September 1, 1989 Reference: 54 FR 36592
— /
Effective: March 1, 1990
Summary: This final rule is in response to a Federal Appeals Court directive to narrow
the exclusion of wastes from extraction, beneficiation, and processing of ores and minerals
as this exclusion applies to mineral processing wastes. This rule provides the final criteria
by which mining processing wastes will be evaluated for continued exclusion. It also
finalizes the Bevill status of nine mineral processing waste streams that were proposed for
either retention or removal from the exclusion in the April 17, 1989 (54 FR 15316) notice.
The Agency has also modified the list of mineral processing wastes proposed for
conditional retention by the April notice. All other mineral processing wastes that have not
been listed for conditional retention will be permanently removed from the Bevill exclusion
as of the effective date of this rule.
Note that the checklist addressed by this final rule is titled "Mining Waste Exclusion I"
indicating that it is the first of two amendments to this exclusion. The second amendment
occurred at 55 FR 2322 on January 23, 1990 and is addressed by Revision Checklist 71 -
Mining Waste Exclusion n. This latter checklist will be part of SPA 9.
State Authorization: This is a non-HSWA rule and will be included in non-HSWA Cluster
VI. The State modification deadline is July 1, 1991. Only final authorization is available.
The State revision application must include a revised program description, an AG Statement
addendum, an addendum to the MOA (if appropriate), Revision Checklist 65, and
associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement in Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect the addition of this checklist. These revisions are addressed in
Section B of the SPA. A copy of Revision Checklist 65 and its associated FR notice may
be found in Attachment A.
3. Land Disposal Restrictions: Correction for the First Third Scheduled Wastes
Dates: September 6, 1989 Reference: 54 FR 36967
June 13, 1990 55 FR 23935
Effective: September 6, 1989
June 13, 1990
Summary: This rule correct errors and clarifies the language in the preamble and
regulations of August 17, 1988 (53 FR 31138, Revision Checklist 50) final rule. It also
makes several corrections to the May 2, 1989 (54 FR 18836, Revision Checklist 62) notice
that also corrected land disposal restrictions for die first third scheduled wastes. The June
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13, 1990 (55 FR 23935) notice made corrections to the September 6, 1989 (54 FR 36967)
notice.
State Authorization: This is a HSWA rule and will be included in HSWA Cluster II. The
State modification deadline is July 1, 1991. Both interim and final authorization are
available. The State revision application must include a revised program description, an
AG Statement addendum, an addendum to the MOA (if appropriate), Revision Checklist 66,
and associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect the addition of this checklist. These revisions are addressed in
Section B of the SPA. A copy of Revision Checklist 66 and its associated FR notices
may be found in Attachment A.
4. Testing and Monitoring Activities
Date: September 29, 1989 Reference: 54 FR 40260
Effective: October 30, 1989
Summary: This rule adds (to 40 CFR Part 261 Appendix m, Tables 2 and 3) 47
additional testing methods as approved methods where the regulation specified compliance
with appropriate SW-846 methods. The methods approved by this rule are among those set
forth in the Third Edition of the manual and its Update I. EPA plans to proceed with a
separate review of the remaining methods contained in the Third Edition and in its Update
I.
State Authorization: This is a non-HSWA rule and will be included in non-HSWA Cluster
VI. The State modification deadline is July 1, 1991. Only final authorization is available.
The State revision application must include a revised program description, an AG Statement
addendum, an addendum to the MOA (if appropriate), Revision Checklist 67, and
associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect the addition of this checklist. These revisions are addressed in
Section B of this SPA. A copy of Revision Checklist 67 and its associated FR notice may
be found in Attachment A.
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5. Reportable Quantity Adjustment Methyl Bromide Production Wastes
Date: October 6, 1989 Reference: 54 FR 41402
Effective: April 6, 1990
Summary: This rule adds two wastes (K131 and K132) to the list of hazardous wastes
from specific sources (40 CFR 261.32) and to two appendices (40 CFR 261 Appendix TO.
and VQ). The wastes, methyl bromide and dimethyl sulfate, are generated during the
production of methyl bromide.
State Authorization: This is a HSWA rule and will be included in HSWA Cluster n. The
State modification deadline is July 1, 1991. Both interim and final authorization are
available. The State revision application must include a revised program description, an
AG Statement addendum, an addendum to the MO A (if appropriate), Revision Checklist 68
and associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement of Appendix E and the Checklist Linkage Table of Appendix
H are necessary to reflect the addition of this checklist. These revisions are addressed in
Section B of this SPA. A copy of Revision Checklist 68 and its associated FR notice may
be found in Attachment A.
6. Reportable Quantity Adjustment
Date: December 11, 1989 Reference: 54 FR 50968
Effective: July 11, 1990
Summary: This rule lists as hazardous one generic category (F025) of waste generated
during the manufacture of chlorinated aliphatic hydrocarbons by free radical catalyzed
processes having carbon chain lengths ranging from one to five. EPA is also amending the
listing for F024. A February 10, 1984 interim rule (49 FR 5311) added two compounds to
Appendix VJH of Part 261. A technical correction to Appendix V7JJ on April 22, 1988
(53 FR 13382) inadvertently deleted one of those compounds, allyl chloride. In this rule,
EPA is making a technical correction to once again include allyl chloride in Appendix
vm.
State Authorization: This is a HSWA rule and will be included in HSWA Cluster n. The
State modification deadline is July 1, 1991. Both interim and final authorization are
available. The State revision application must include a revised program description, an
AG Statement addendum, an addendum to the MOA (if appropriate), Revision Checklist 69
and associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, the Model Revision
Attorney General's Statement in Appendix : Jid the Checklist Linkage Table of Appendix
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H are necessary to reflect the addition of this checklist. These revisions are addressed in
Section B of this SPA. Revision Checklist 69 and its associated FR notice may be found
in Attachment A.
7. Changes to Part 124 Not Accounted for by Present Checklists
Dates: April 1, 1983 Reference: 48 FR 14146
June 30, 1983 48 FR 30113
July 26, 1988 53 FR 28118
September 26, 1988 53 FR 37396
January 4, 1989 54 FR 246
Effective: April 1, 1983
June 30, 1983
July 26, 1988
October 26, 1988
January 4, 1989
This checklist brings Part 124 up to date by making minor changes which were not part of
the hazardous waste rules. The April 1, 1983 rule (48 FR 14146) reorganized the
presentation of permit program requirements governing the hazardous waste management
program and the other permit programs addressed by 40 CFR Part 124. The rule made no
substantive changes to any of the affected sections, but rather the'Agency made a physical
deconsolidation of its Consolidated Permit Program. Only minimal changes affected those
portions of Part 124 required for State authorization. These changes mostly relate to cross
referencing. In reprinted Part 124 in the April 1, 1983 FR notice, a number of
typographical errors were made as well as inadvertent omissions of paragraphs. The June
30, 1983 (48 FR 30113) and January 4, 1989 (54 FR 246) notices corrected these errors.
In developing the checklist for these rules, only the changes made by the April 1, 1983
rule that were not negated by the June 30, 1983 or January 4, 1989 notices were included.
Of the Part 124 sections required for State authorization notices, the September 26, 1988
rule only affected 124.10(c)(l)(iii) by clarifying that it is appropriate to treat Indian tribes
as States when giving public notice of activities listed under 124.10(a)(l).
The July 26, 1988 (53 FR 37396) rule redesignated certain portions of 124.10(c)(l). The
June 30, 1983 (48 FR 30113) and January 4, 1989 (54 Fjl 246) made minor wording
changes to 124.10(c)(l) and 124.12(a)(2).
State Authorization: Due to the timing of this checklist's release and the fact that none of
the above discussed final rules resulted from HSWA requirements, this rule is placed in
non-HSWA Cluster VI. The modification deadline is July 1, 1991. Only final
authorization is available. The State revision application must include a revised program
description, an AG Statement addendum, an addendum to the MOA (if appropriate),
Revision Checklist 70 and associated State regulations.
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SAM Update: Updates to Tables G-l and G-2 of Apr> -<*ix G, the Model Revision
Attorney General's Statement of Appendix E, and the -klist Linkage Table of Appendix
H are necessary to reflect the addition of this checklis. icse revisions are addressed in
Section B of this SPA. A copy of Revision Checklist may_be foiuid in Attachment A.
Due to the minor nature of the changes and the length 01 some of the Federal Register
Notices, the Revision Checklist 70 FR notices were not included in this SPA.
8. Standards Applicable to Owners and Operators of Hazardous Waste Treatment.
Storage, and Disposal Facilities; Correction
Date: June 26, 1990 Reference: 55 FR 25976
Effective: June 26, 1990
This correction to the final rule of May 2, 1986 (51 FR 16422) recharacterizes as more
stringent the amendments to 40 CFR 264.113 and 265.113. These amendments were
originally characterized as less stringent and designated as optional in Revision Checklist
24. This correction directs authorized States, that have not yet done so, to adopt these
more stringent amendments in order to maintain an equivalent hazardous waste regulatory
program. To accommodate this change, an amended Revision Checklist 24 is being issued
which removes the optional designation for the amendments to these two sections of code.
Additionally, States must adopt these recharacterized amendments prior to or simultaneous
with receiving authorization for the "Delay of Closure" rule promulgated on August 14,
1989 (54 FR 33376; Revision Checklist 64).
State Authorization: This is a non-HSWA rule and the correction to the final rule of May
2, 1986 is included in non-HSWA Cluster VI. The State modification deadline for
adopting the amendments of 40 CFR 264.113 and 265.113 is July 1, 1991. The State
modification deadline for all other Revision Checklist 24 provisions continues to be July 1,
1986, as these other provisions remain under • m-HSWA Ouster JJ. Only final
authorization is available. The State revision -plication must include a revised program
description, an AG Statement addendum, an addendum to the MOA (if appropriate),
Revision Checklist 24 (Amended), and associated State regulations.
SAM Update: Updates to Tables G-l and G-2 of Appendix G, and the Model Revision
Attorney General's Statement in Appendix E are necessary to reflect the amendment of this
checklist. These revisions are addressed in Section B of the SPA. A copy of Revision
Checklist 24 (Amended) and its associated FR notice may be found in Attachment A.
B. REVISIONS TO SAM
The addition of seven new checklists and one amended checklist necessitates revisions to
Tables G-l and G-2 of Appendix G, to the Model Revision Attorney General's Statement
in Appendix E, and the Checklist Linkage Table in Appendix H. These revised tables and
model are included in Attachment B and should replace these parts in the SAM manual.
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The revised Tables G-l and G-2 should replace pages 4-21 of Appendix G. Table
G-l was revised by: 1) adding Revision Checklists 64, 65, 67, 70, and Revision
Checklist 24 (Amended) to non-HSWA Cluster VI and 2) adding Revision
Checklists 66, 68 and 69 to HSWA Cluster H.
The revised Model Attorney General's Statement should replace pages 9 through 39
of SAM Appendix E. Section XXI C was revised, and Sections I A 12 and 13, I J,
I K, XV K, and XVI V were added to incorporate the final rules affecting
authorization from July 1, 1989 through December 31, 1989.
The revised Checklist Linkage Table should replace pages 3 through 6 of Appendix
H.
C. REVISIONS TO EXISTING REVISION CHECKLISTS
Attachment C contains replacement pages for Revision Checklists 50 and 62. A note was
added at the beginning of these checklists to explain the relationship of Revision Checklist
66 to them.
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ATTACHMENT A
New Revision Checklists
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RCRA REVISION CHECKLIST 64
Delay of Closure Period for Hazardous Waste.
Management Facilities /
54 FR 33376-33398
August 14, 1989
(Non-HSWA Cluster VI)
The June 26, 1990 (55 FR 25975) notice corrected the May 2, 1986 (51 FR 16422; Revision
Checklist 24) final rule which erroneously designated the amendments to 40 CFR 264.113 and
265.113 as less stringent. The June 26, 1990 notice also explains that States must adopt the
May 2, 1986 amendments to 40 CFR 264.113 and 265.113 prior to or simultaneous with receiving
authorization for the Delay of Closure provisions addressed by Revision Checklist 64. While this
checklist's provisions are optional, States choosing not to adopt them must still adopt the May 2,
1986 amendments to 40 CFR 264.113 and 265.113 because they are required changes. See the
amended version of Revision Checklist 24 for further information.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
siAit ANALOG is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
t GENERAL WASTE ANALYSIS
insert ", or non-
hazardous wastes if
applicable under
264.1 13(d)" after
"hazardous wastes"
insert ", or non-
hazardous wastes if
applicable under
264.1 13(d)" after
"hazardous wastes"
add ", or non-
hazardous waste if
applicable under
264. 113(d)" after
"hazardous waste"
264.13(a)(1)
264.13(a)(3)(i)
264.1 3(b)(1)
SUBPART G - CLOSURE AND POST-CLOSURE
f CLOSURE PLAN: AMENDMENT OF PLAN
place "(i)" after
"either:" and re-
desiqnate as below:
264.1 12(d)(2)
August 14, 1989 - Page 1 of 11
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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
redeslgnate the re-
mainder of the old
264.11 2(d)(2) as
264.11 2(d)(2)(i);
remove ", and will
continue to take,"
after "he has taken"
add new subparagraph
on the receipt of final
volume of non-
hazardous wastes by
units meeting
264.1 13(d) require-
ments; extension by
Regional Administrator
FEDERAL RCRA CITATION
264.1 12(d)(2)(i)
264.1 12(dH2)(ii)
ANALOGOUS
STATE CITATION /
STATE ANALOG IS:
"EOUKT"
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
t CLOSURE: TIME ALLOWED FOR CLOSURE
after "hazardous
wastes" add language
regarding the final
volume of non-
hazardous wastes
and owner/operator
compliance with
264.113(d)&(e)
after "hazardous
wastes" add language
regarding capacity to
receive non-
hazardous waste and
owner/operator com-
pliance with
264.11 3(d)&(e)
after "hazardous
wastes" add language
regarding the final
volume of non-
hazardous wastes and
owner/operator in
compliance with
264.113(d)&(e)
264.113(a)
264.1 13(a)(1)fii)(A)
264.113(b)
August 14, 1989 - Page 2 of 11
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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
after "hazardous
wastes" add language
regarding capacity to
receive non-hazardous
wastes and owner/
operator compliance
with 264.113(d)&(e)
replace reference to
"(a) and (b)" with
"(a)m and (bHD"
replace first reference
to "(a)" with "(a)(1)"
replace first reference
to "(b)" with "(b)(1)";
exception if owner/
operator subject to
264.113(d) deadlines
add new paragraph
regarding receipt of
non-hazardous waste;
conditions which must
be met:
permit modification
request meeting 270
and 124 requirements
demonstratinq:
has existing design
capacity to receive
non-hazardous wastes
likely to receive non-
hazardous wastes
within one year after
final receipt of
hazardous wastes
not incompatible with
remaining wastes or
with design and
operatino requirements
closure of hazardous
waste unit incom-
patible with continued
operation
operate in compliance
with all applicable
permit requirements
FEDERAL RCRA CITATION
264.1 13(b)mfli)(A)
264.113(c)
264.1 13(c)(1)
264.1 13(cH2)
264.113(d)
264.113(d)(1)
264.113(d)(1)(i)
264.113(d)(1)(ii)
264.1 13(d)(1HHi)
264.1 13(d)(1)(iv)
264.113(d)(1)(v)
ANALOGOUS
STATE CITATION /
STATE ANALOG IS:""
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 14, 1989 - Page 3 of 11
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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
what the request to
modify the permit
should include
permit modification
request includes re-
visions to account for
non-hazardous waste
receipt after final
volume of hazardous
wastes
submission to
Regional Administrator
special requirements
for surface impound-
ments not in com-
pliance with liner and
leachate collection
svstem requirements
permit modification
request:
contingent corrective
measures plan
hazardous waste
removal plan
removal of all hazard-
ous wastes Including
liquids and sludges to
extent practicable
when removal takes
longer than 90 days;
extension by Regional
Administrator
actions if detect a
statistically significant
release:
corrective measures in
accordance with plan
required by
264.113(e)m
conditions under which
wastes may continue
to be received
FEDERAL RCRA CITATION
264.1 13(dU2)
264.1 13(d)(3)
264.113(d)(4)
264.113(0)
264.1 13(e)(1)
264.11 3(e)(1M)
264.113(e)(1Uin
264.113(9) (2)
264.113(e)(3)
264.1 13(e)(4)
264.1 13(e)(4)(i)
264.113(e)(4)(in
ANALOGOUS- /
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 14, 1989 - Page 4 of 11
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RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
corrective measures In
less than one year if
necessary to protect
human health and
environment
semi-annual
reports
conditions under which
Regional Administrator
may require closure
if fail to implement
corrective measures
or no substantial
progress, the Regional
Administrator shall:
notify in writing that
closure required
according to
264.113(a) and (b)
deadlines
newspaper notice;
opportunity for
public comment
Regional Administrator
actions when no
written comments
are received
Regional Administrator
actions when written
comments are
received
no administrative
appeal
FEDERAL RCRA CITATION
264. 11 3(6) (4) (iii)
264.1 13(eU5)
264.113(e)(6)
264.113(e)(7)
264.113(eH7Hi)
264.1 13(e)(7)(ii)
264.113(e)(7)(iii)
264.1 13fe)(7)flv)
264.1 13(e)m(v)
ANALOGOUS /
STATE CITATION
OlAlt ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
SUBPART H - FINANCIAL REQUIREMENTS
t COST ESTIMATE FOR CLOSURE
after "hazardous
wastes" insert ", or
non-hazardous wastes
if applicable under
264.113(d)."
264.1 42(a)(3)
August 14, 1989 - Page 5 of 11
-------
RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
after "hazardous
wastes" insert ", or
non-hazardous wastes
if applicable under
264.113(d)."
FEDERAL RCRA CITATION
264.142(aW4)
ANALOGOUS- /
STATE CITATION
-•" — STATE-AFIALOa-IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
t GENERAL WASTE ANALYSIS
after "hazardous
wastes" add ", or non-
hazardous wastes if
applicable under
265.113(d)."
after "hazardous
wastes" add ", or non-
hazardous wastes if
applicable under
265.113(d)."
after "hazardous waste"
add ", or non-
hazardous waste if
applicable under
265.113(dV
265.13(a)(1)
265.1 3fa)f3)fl)
265.1 3ft>H1)
SUBPART G - CLOSURE AND POST-CLOSURE
CLOSURE PLAN: AME
add "(I)" after "either:"
and redesignate re-
mainder of paragraph
as below
redesignate remainder
of old 265.112(d)(2) as
265.112(dU2>m
MOMENT OF PLAN
265.11 2(d)(2)
265.1 12(d)(2)(i)
August 14, 1989 - Page 6 of 11
-------
RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
add new subparagraph
on receipt of final
volume of non-
hazardous wastes by
units meeting
265.11 3(d) require-
ments; extension by
Regional Administrator
FEDERAL RCRA CITATION
265.1 12(d)(2)(ii)
ANALOGOUS ,
STATE CITATION
STATE ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
t CLOSURE: TIME ALLOWED FOR CLOSURE
after "hazardous
wastes" add language
regarding the final
volume non-hazardous
wastes and owner/
operator compliance
with 265.1 13(d)&(e)
after "hazardous
wastes" add language
regarding the capacity
to receive non-
hazardous wastes and
owner/operator
compliance with
265.113(d)&(e)
after "hazardous
wastes" add language
regarding the final
volume of non-
hazardous wastes and
owner/operator com-
pliance with
265.113(d)&(e)
after "hazardous
wastes" add language
regarding the capacity
to receive non-
hazardous wastes and
owner/operator com-
pliance with
265.113(d)&(e)
replace references
to "(a) and (b)" with
"(a)(1) and (b)(1)"
replace first reference
to "(a)" with "(a)(1)"
265.113(a)
265.113(a)(1)(ii)(A)
265.113(b)
265.1 13(b)(1)(li)(A)
265.113(c)
265.113(c)(1)
August 14, 1989 - Page 7 of 11
-------
RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Faculties (cont'd)
FEDERAL REQUIREMENT
replace first reference
to "(b)" with "(b)(1)";
add exception if
owner/operator subject
to265.113(d)
deadlines
add new paragraph
regarding receipt of
non-hazardous wastes;
conditions which must
be met:
submits an amended
Part B application or a
Part B application if
not previously required
demonstratina:
has existing design
capacity to receive
non-hazardous wastes
likely to receive non-
hazardous wastes
within one year after
final receipt of
hazardous wastes
not incompatible with
remaining wastes or
with design and
ooeratina reauirements
closure of hazardous
waste unit incompat-
ible with continued
operation
operate in compliance
with all applicable
interim states
requirements
what the Part B
application should
include
Part B modification is
amended to account fo
non-hazardous waste
receipt after final
volume of hazardous
waste
FEDERAL RCRA CITATION
265.113(cU2)
265.113(d)
265.1 13(dH1)
265.113(d)(1)(n
265.1 13(
ANALOGOUS. /
STATE CITATION
EQUIV-
ALENT
MORE I
STRINGENT
BROADER
IN SCOPE
August 14, 1989 - Page 8 of 11
-------
RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
submission to
Reqional Administrator
special requirements
for surface impound-
ments not in com-
pliance with liner and
leachate collection
svstem requirements
submit with the Part B
application:
contingent corrective
measures plan
hazardous waste
removal plan
removal of all
hazardous wastes
Including liquids and
sludges to extent
practicable
when removal must
take place; extension
by Regional
Administrator
actions if detect a
statistically significant
release:
corrective measures in
accordance with plan
required by
265.1 13(e)(1)
conditions under which
wastes may continue
to be received
corrective measures
In less than one year
or cease receipt of
wastes until imple-
mented if necessary
to protect human
health and
environment
semi-annual
reports
conditions under which
Regional Administrator
mav require closure
FEDERAL RCRA CITATION
265.113(d)(4)
265.113(6)
265.113(e)(1)
265.113fe)m(i)
265.1 13(e)(1)(ii)
265.113(e)(2)
265.1 13(e)(3)
265.1 13(e)(4)
265.1 13(e)(4)(l)
265.1 13(e)(4)(li)
265.113(e)(4)(iii)
265.1 13(eU5)
265. 11 3(9 W6)
ANALOGOUS /
STATE CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 14, 1989 - Page 9 of 11
-------
RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
if fail to implement
corrective measures
or no substantial
progress, the Regional
Administrator shall:
notify in writing that
closure required
according to
265.11 3(a) and (b)
newspaper notice:
opportunity for
oublic comment
Regional Administrator
actions when no
written comments are
received
Regional Administrator
actions when written
comments are
received
no administrative
appeal
FEDERAL RCRA CITATION
265.1 13(eH7)
265.113(eU7Wi)
265.1 13(eH7) (ii)
265.113(eH7Hiii)
265.113(eH7Hiv)
265.113(e)(7Hv)
ANALOGOUS- /
STATE CITATION
" •STATE 'ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
SUBPART H - FINANCIAL REQUIREMENTS
t COST ESTIMATE FOR CLOSURE
after "hazardous
wastes" add ", or non-
hazardous wastes If
applicable under
265.113(d)"
after "hazardous
wastes" add ", or non-
hazardous wastes if
applicable under
265.1 13M"
265.1 42(a)(3)
265.142(a)(4)
August 14, 1989 - Page 10 of 11
-------
RCRA REVISION CHECKLIST 64: Delay of Closure Period for
Hazardous Waste Management Facilities (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV- I MORE BROADER
ALENT I STRINGENT I IN SCOPE
PART 270 - EPA ADMINISTERED PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART D - CHANGES TO PERMIT
t PERMIT MODIFICATION AT THE REQUEST OF THE PERMITTEE
add D.1.f. to
Appendix I
270.42. Appendix I
Modifications
Class
D. *
1. *
Extension of the closure period to
allow a landfill, surface Impoundment
or land treatment unit to receive
non-hazardous wastes after final
receipt of hazardous wastes under
§ 264.113(d) and (e)
August 14, 1989 - Page 11 of 11
-------
54 FR 33376-33398
Revision Checklist 64
-------
Monday
August 14, 1989
Part III
Environmental
Protection Agency
40 CFR Parts 264, 265, and 270
Delay of Closure Period for Hazardous
Waste Management; Final Rule
-------
33376 Federal Register / VoL 54. No. 155 / Monday. August 14. 1988 / Rules and Regulations
ENV1RONMEKTAL PROTECTION
AGENCY
40 CFR Parts 264,265 and 270
[FRL-3S7S-2]
BIN 2050-A871
Delay of Closure Period for Hazardous
Wast* Management Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today amending
portions of the closure requirements
under subtitle C of the Resource
Conservation and Recovery Act (RCRA)
applicable to owners and operators of
certain types of hazardous waste
facilities. Today's final rule allows,
under limited circumstances, a landfill,
surface impoundment or land treatment
unit to remain open after the final
receipt of hazardous wastes in order to
receive non-hazardous wastes in that
unit This final rule details the
circumstances tinder which a unit may
remain open to receive non-hazardous
wastes and describes the conditions
applicable to such units.
EFFECTIVE DATK November 13,1989.
ADDRESSES: The public docket for this
rulemaking is available for public
inspection in Room S-201. U.S.
Environmental Protection Agency, 401M
Street SW, Washington. DC 20480, from
9:00 a.m- to 4:00 p.m., Monday through
Friday, excluding Federal holidays. The
docket number is F-88-DCPP-FFFFF.
The public most make an appointment
to review docket materials by calling
(202) 475-9327. The public may copy
materials at the cost of 115 per page.
Charges under $15.00 an waived.
POM PUMTHCK INFORMATION CONTACT:
The RCRA Hotline at (800) 424-6348 (toll
free) or (202) 382-3000 to Washington,
DC or Permits Branch, Office of Solid
Waste (OS-MI) 133. Environmental
Protection Agency. 401M Street SW.,
Washington. DC 20480. (202) 382-4740.
IV. SecttonJby-Seeaon Analysis
A.ApplicnbiUqr
1. Surface Impoundments Not
Liner end Leachate Collection Syatesi.
Requirements
i Landfills /
, 3. Land Treatment Units
4. Other Treatment and Storage .Facffi-
ties
B. Part 284 Standards
1. General Conditions for Delay of Clo-
sure (| 284.113(d))
a. Demonstrations for Extensions to
Closure Deadlines (1264Jll3(dMlQ
(1) Design Capacity
(2) Receipt of Non-Hazardous Wast*
Within One Year
(3) Compatibility of Wsstes
(4) Incompatibility of Closure with
Continued Operations
b. Continued Compliance with Subtitle
C Requirements
c. Changes to Facility Plans
(|2e4.113(d)(2)J
d. Exposure Assessment mformanon
e. Permit Revisions (1284Jl3(dM4))
2. Additional Requirements to Surface
Impoundments that do not Meet Liner
and Leachate Collection System Re-
quirements (| 2B4.113(e))
a. Contingent Corrective Measures
Plan (| 2M.ll3(eXll)
b. Alternatives
(1) Allemetive l—Removal of Haz-
anfaas Wastes (i 284.113(e)C2)l
(a) Liquid and stodge removal
(b) Relationship to the mixture
rule
(2) Alternative i—Flushing Hazard-
OS* Wastes
(3) Alternative 3—Leaving Hazard-
ous Wastes in Place
6 Corrective Action Requirements
(I|284.113(eX4)and(S))
(1) Corrective Action Trigger
(2) Other Media
(3) Additional Corrective Measures
Requirements
d. BvaJusting the Progress e) Coneo-
nve Action (| 2M.113(e) (SL let and
Preamble Outhne
L Authority
IL Background
m. Summary of Today's Rule
3. Notification of
(|2a4.ll2(dH2))
C Part 270 Permit Modification Requests
(127042)
D. Conforming Changes
1. Conforming Changes to Part 26S Inter-
im Status Requirements
•.Eligibility
b. Ground-Water Monitoring end Cor-
rective Action
c. Applicability to New tnterhe, Status
Units
V. State Authorization
A. Applicability of Rules In Authorized
States
a Enact of Rule on State Authorizations
vl Executive Order 12291
VH. Paperwork Reduction Act
Vm. Regulatory Flexibility Act
L Authority
These regulations are issued under the
authority of sections 1008,2002(a), 3004,
3005. and 3006 of the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1978. as amended (42 U.S.C. 6905.
6912(a), 6924.6925 and 6926).
IL Background
Section 3004 of the Resource
Conservation and Recovery Act (RCRA)
requires the Administrator of EPA to
promulgate regulations establishing such
performance standards applicable to
owners and operators of hazardous
waste treatment storage, or disposal
facilities (TSDFs), as may be necessary
to protect human health and the
environment Section 3005 requires the
Administrator to promulgate regulations
requiring each person owning or
operating e TSDP to have a permit and
to establish requirements for permit
applications. Recognizing mat a period
of time would be required to issue
permits to all facilities, Congress created
"Interim status" in section 300S(e) of
RCRA. Owners and operators of
existing hazardous waste TSDFs who
qualify for interim status will be treated
as baring been issued permits until EPA
takes final administrative action on their
permit applications. The privilege of
carrying on operations during interim
status carries with it the responsibility
of complying with appropriate portions
of the section 3004 standards.
EPA has issued several sets of
regulations to implement these RCRA
requirements. These regulations include
part 264 (which provides standards for
owners and operators of TSDFs that
have been issued RCRA permits) and
part 265 (which provides standards for
owners and operators of interim status
TSDFs) of title 40 of the Code of Federal
Regulations (CFR). Subpart G within
these two parts addresses requirements
for closing TSDFs and maintaining them
after closure if necessary. The subpart G
requirements hi both of these parts,
particularly the closure deadlines found
in |i 264.112.266.112.264.113. and
265.113, will be affected by the
promulgation of todsy's final rule.
-------
Federal Register / Vol. M^ No. 155 / Monday, August 14. 1969 / Rules and Regulations 33377
The requirements of 5 5 264.113 and
265.113 were last amended on May 2,
1986 (51FR16422). In the May 1986
rulemaking, the Agency made
conforming changes to the requirements
in S3 264.113 (a) and (b) and 205.113 (a)
and (b) requiring that closure be
completed within ISO days after the final
receipt of hazardous wastes rather than
after the final receipt of wastes (51 FR
16422). After promulgation of the May 2,
1986 amendments, lawsuits were filed
challenging the requirement that closure
be completed within 180 days after the
final receipt of hazardous waste. The
litigants, Union Carbide Corporation
(Union Carbide) and the Chemical
Manufacturers Association (CMA),
contended that this change was
inconsistent with the Congressional
intent evidenced in the legislative
history of the Hazardous and Solid
Waste Amendments (HSWA) which
amended RCRA in 1984 regarding
closure of surface impoundments.
Further, the litigation contended that the
change was unnecessary to protect
human health and the environment, and
that it would discourage waste
minimization and other goals Congress
expressed in HSWA. EPA entered into
settlement discussions with the litigants.
To date, no settlement of the case has
been reached.
On June 6,1988 (53 FR 20738), the
Agency proposed a rule amending the
parts 264 and part 265 closure
requirements to allow owners and
operators of landfills and surface
impoundments meeting specific
eligibility criteria to delay closure of
their facilities to receive non-hazardous
waste following the final receipt of
hazardous waste. The rule proposed
general requirements for suiface
impoundments and landfills wishing to
remain open to receive non-hazardous
wastes and additional requirements for
surface impoundments that did not meet
the part 264 liner and leachate collection
system requirements.
The Agency received 24 comment
letters in response to the June 6,1988
proposal. The comments received were
filed in Docket *F-68-DCPP-FFFFF and
are available for public review.
Additionally, the Agency has prepared a
summary of these comments and the
Agency's response in a document
entitled "Response to Comments to June
6,1988 Proposed Rule to Allow Delay of
Closure Following the Final Receipt of
Hazardous Wastes (53 FR 20738)." This
document is available for public review
at the EPA RCRA Docket (Room 2427).
401M Street, Washington. DC 20460.
In brief, most commenters supported
allowing certain hazardous waste
management units the opportunity to
delay closure to receive only non-
hazardous wastes. These commenters
felt that the proposal provided owners
and operators of these hazardous waste
management units with needed
flexibility in their management
operations. These commenters also
agreed with the Agency position that the
proposed requirements would provide
adequate protection of human health
and the environment.
Commenters opposed to the proposal
generally objected to its applicability to
surface impoundments not satisfying the
liner and leachate collection aspects of
the minimum technology requirements
(MTR). Commenters expressed concern
that these units could not be operated in
a manner that would be adequately
protective of human health and the
environment. These commenters also
contended that the Agency did not have
the authoiity to allow these units to
remain open, since RCRA section 3005(j)
required them either to be retrofitted to
meet MTR, or to cease the receipt of
hazardous waste on November 8.1988.
The Agency has carefully considered the
comments received and is today
finalizing the proposal with a number of
changes which are discussed further in
later sections of this preamble.
III. Summary of Today's Rule
Today the Agency is promulgating
requirements amending 40 CFR 264.113
and 265.113, that will allow certain
landfills, surface impoundments, and
land treatment units to be eligible to
delay closure to receive only non-
hazardous waste after the final receipt
of hazardous waste. The Agency
believes that these units, including
• surface impoundments that do not meet
the part 264 liner and leachate collection
system elements of the minimum
technological requirements (MTR)
specified by RCRA section 3004(o). but
from which hazardous wastes have been
removed, can operate in an
environmentally protective manner by
meeting the requirements set forth in
this rule. The requirements promulgated
in today's rule specify general
conditions applicable to all surface
impoundments', landfills and land
tfSatment^units delaying closure, with
additional conditions imposed on
surface impoundments that do not meet
part 264 liner and leachate collection
system requirements.
Owners and operators of facilities
delaying closure under today's rule will
be required to operate under the full
permit requirements of 40 CFR part 264
(or part 265 requirements until a permit
is issued), including corrective action
requirements. In addition, surface
impoundments not in compliance with
liner and leachate collection system
requirements will be required to remove
all hazardous waste to the extent
practicable. Facilities currently in
interim status that meet the
requirements of today's rule may delay
closure while the permit application is
being reviewed.
• The general requirements in
{§ 264.113(d) and 265.113(d) applicable
to all owners and operators wishing to
delay closure are being finalized as
proposed with a few minor clarifying
changes. Theae requirements are
illustrated in Exhibit 1. Owners and
operators wishing to delay closure under
today's final rule must request a permit
modification at least 120 days prior to
final receipt of hazardous wastes, or, if
the facility is in interim status, submit
an amended part B application (or a part
B application if one has not been
previously submitted) at least 100 days
prior to the final receipt cf hazardous
wastes. Owners or operators of units
that received their final volume of
hazardous wastes before promulgation
of today's rule may delay closure if they
submit the required demonstrations and
permit modification (or amended part B
application) within 90 days of today's
Federal Register notice. Facilities which
lost interim status prior to today's notice
are ineligible to delay closure. These
units may, of course, submit permit
applications, which, if approved, could
allow them to receive non-hazardous
wastes pursuant to the applicable
requirements of today'* rule.
BILL!
COOCMM-H-M
-------
33378 Fadatal Register / Vol 54. No. 155 / Monday. August 14.1989 / Rules and Regulations
Exhibit I
Requirements Applicable to All Facilities
Wishing to Defer Closure /
Submit Permit Modification/
Revised Part B Application with
Demonstrations and Revised Plans
of §§264.113(d)/265.113(d)
120 Days (180 Days for Interim Status)
Rnal Receipt of
Hazardous Waste
•
^
1
1
1
1
I. _
Non-MTR Impoundments 1
Comply with § §264.1 13(e) I
and 265.11 3 (•). See
Exhibit 2 J
T
Receive Non-Hazardous Waste/
Continue to Comply with
Subtitle C
Notification
of Closure
30 Days (150 Days for Interim Status)
Rnal Receipt of
Non-Hazardous Waste/Closure
Net*: If a permit or permit modification Is denied at any
time, or Interim status terminated for the affected
unit, closure pursuent to Si 2*4.113(a) and (b) or
26S.113(a) and (b) must be Initiated.
S9509<-l
-------
Federal Regbtar / VoL 54, No. 155 / Monday. August 14, 1969 / Rotes and Regulations 33379
The request for a permit modification
or the amended part B application mu»t
include demonstrations that the unit has
the existing design capacity to manage
non-hazardous waste, and that the non-
hazardous wastes are not incompatible
with any hazardous or non-hazardous
wastes remaining in the unit In
addition, certain facility information
including the waste analysis plan,
ground-water monitoring plans, closure
and post closure plans and cost
estimates, financial assurance
demonstrations and the human exposure
assessment information required under
RCRA section 3019. must be updated as
necessary to account for receipt of only
non-hazardous waste.
Owners and operators of units
remaining open under today's rule must
also continue to comply with all
applicable part 264 permit requirements
(or part 265 requirements until a permit
is issued). Units may not remain open to
receive only non hazardous wastes if
the Regional Administrator determine*
that continued operation of the unit or
facility cannot be conducted in
accordance with these requirements
ensuring the protection of human health '
and the environment Finally, units-must
be closed in accordance with the
approved closure plan and the subpart
G regulations applicable to hazardous
waste management units, including
notification of the Agency in accordance
with the deadlines specified in
FS 264.112(d)(1)and265.112(d)(l).
Additionally, the owner or operator
must initiate closure under the following
circumstances: A request to modify the
permit to manage only non-hazardous
wastes is denied: the permit is
terminated or is revoked at any time: a
RCRA permit is denied for interim status
facilities; or interim status is otherwise
terminated. Closure most be conducted
in accordance with the approved closure
plan and the deadlines currently in
1264.113 (a) and (b) or { 285.113 (a) and
fl*
Today's rule also establishes
^additiopal requirements applicable to
surface impoundments that do not
satisfy the liner and leachate collection
system requirements specified under
RCRA section 3005(0 or have not
received a waiver from these
requirements, but wish to delay closure
to receive non-hazardous waste. These
additional requirements, including
removal of hazardous waste,
accelerated corrective measures, and
strict limitations on continued
operations following detection of a
release from the unit, will ensure that
these units are adequately protective of
human health and the environment. The
specific requirements are illustrated in
Exhibit 2 and summarized briefly below.
-------
33380 .Federal Register / Vol. 54, No. 155 / Monday, August 14.1989 / Rules and Regulations
Exhibit 2
Surface Impoundment/Waste Removal Alternative
Submit Permit Modification/Revised
Part B Application with Demonstration*
and Revised Plans of §§264.113(d)/
265.113(d) and Contingent Corrective
Measures Plan
Release Detected-
Implement Corrective
Measures
Closure if No
Substantial Progress*
f 120 Days (180 Days for Interim Status)
Final Receipt of Hazardous
Waste
I 90 Days
Removal of I
Hazardous Waste 1
\
i
Receive Non-
Hazardous Waste
\
i
Final Receipt of
Non-Hazardous Waste
\
i
Closure*
r/
i
L (
\(
Release Detected-
Implement Corrective
Measures
Closure if No
Substantial Progress*
* Unit continues to be subject to corrective
action requirements, If applicable.
KUJHO COM MW-IO-C
-------
Federal Register / Vol. 54. No. 155 / Monday. August 14. 1989 / Rule* and Regulations 333C1
Owner* and operators of surface
impoundments not meeting liner and
ieachate collection system requirements
•nust prepare and submit a contingent
Directive measures plan with their
request to modify their permit (or for
interim status facilities, with their
amended part B application). The plan
must include a description of corrective
measures that can be implemented
quickly if a release is detected and, if
waste may continue to be received, a
demonstration that continued receipt of
wastes following detection of a release
will not impede implementation of the
corrective measures. (The contents of
the plan are discussed in more detail in
rv.B.2.a of today's preamble).
Under the final rule, owners and
operators of surface impoundments not
meeting double liner and Ieachate
collection system requirements and who
wish to delay closure must remove all
hazardous liquids and remove all
sludges from the impoundment to the
extent practicable. If a release is
detected either prior to or after final
receipt of hazardous wastes at a surface
impoundment from which hazardous
wastes have been removed, corrective
measures must be implemented within
one year from the date of release.
Continued receipt of non-hazardous
wastes while corrective measures are
being implemented may occur only if the
twner or operator.already has an
ipproved contingent corrective
measures plan (or a full corrective
action plan) that accounts for the
continued receipt of non-hazardous
wastes and demonstrates that such
continued receipt of wastes will not
impede the progress of the corrective
action. If the corrective measures plan
has not been approved, receipt of waste
must cease until such a corrective
measures plan has been approved
If an owner or operator fails to make
substantial progress in conducting
corrective action, either by failure to
initiate actual remediation or
containment activities within the first
year and/or subsequently failing to
implement actions leading to substantial
progress towards achieving the facility's
ground-water protection standard
(GWPS) or background levels, if
applicable, he must initiate closure of
the impoundment in accordance with
the requirements of subpart G of part
264 or 265. Substantial progress towards
achieving the facility's GWPS or
background levels will be determined on
a case-by-case basis. The achievement
of substantial progress will be measured
by whether the owner or operator has
corrective action measures in place
vithin one year, and has met significant
plan milestones or deadline* in the
compliance schedule, permit or
enforcement order that establishes
timeframes for achieving the facility's
GWPS, or background levels. Today's
rule also includes administrative
procedures providing opportunity for
public comment on the Regional
Administrator's decision that
substantial progress has not been made .
and that closure of the unit is therefore
required.
IV. Section-by-Section Analysis
The following sections of this
preamble address the major issues
raised by commenters on the proposed
rule and present the Agency's response
to these major issues and rationale for
changes to the proposed rule. The
preamble is arranged in a section-by-
section sequence for ease of reference.
Section A addresses the applicability of
the rule. Section B discusses the part 264
technical requirements applicable to
permitted facilities. The part 270
procedural requirements applicable to
permitting are addressed in section C.
Section D discusses the conforming
changes to 265 interim status standards.
The requirements proposed in parts 264
and 265 are substanb'vely identical but
have slightly different procedural
requirements.
A. Applicability
Today's rule is restricted to permitted
and interim status landfill, land
treatment, and surface impoundment
units that (1) Are in compliance with
applicable permit or interim status
requirements (except double liner
requirements); (2) cease to receive
hazardous wastes; and (3) will
subsequently receive only non-
hazardous waste. The proposed rule did
not extend the option to delay closure to
land treatment units, but specifically
requested comments on whether the
option should be available to such units.
After considering public comments
received, the Agency has decided to
Allow land treatment units to delay
closure if they satisfy the eligibility
criteria in I 264.113(d) or i 265.113(d).
This change is discussed in greater
detail in section IV.AJ. below.
The rule does not extend the option to
delay closure to units that lost interim
status. Today's rule also does not
extend the option to delay closure to
manage only non-hazardous wastes to
storage or treatment tanks, container
storage areas, waste piles, or.
incinerators. If owners or operators of
such units wish to receive non-
hazardous wastes after the final receipt
of hazardous wastes, they must first
comply with the current closure
requirements. The Agency believes that
the activities necessary to close storage
units and incinerators (e.g., waste
removal and decontamination) are
compatible with the future use of the
unit and therefore requiring these units
to conduct closure prior to receiving
only non-hazardous wastes will not
impose an undue burden on owners or
operators.
1. Surface Impoundments Not Meeting
Liner and Leachate Collection System
Requirements
The proposal required surface
impoundments not meeting the MTR
liner and Ieachate collection system
standards to meet the general conditions
applicable to all units (S! 264.113(d) and
265.113(d)) as well as additional
requirements (5 J 284.113(e) and
265.113(e)). The proposed rule (Option 3,
I 284.113(e)(3]) allowed impoundments
in which wastes remained in place (Le.,
disposal impoundments) to delay
closure only if they were not leaking at
the time of the final receipt of hazardous
•waste. As described below, the
requirements of §5 264.113(e) and
265.113(e) have been modified in the
final rule in response to comments
received on the proposal
Many commenters favored the
provision of the proposal allowing non-
MTR surface impoundments to delay
closure and provided anecdotal
information in support of it Other
commenters opposed the proposal,
expressing concern that it would
adversely impact human health and the
environment Those commenters
asserted that the proposed rule would
violate the requirements in RCRA
section 3005(j) which require that
surface impoundments that have not met
MTR cease receipt storage, and
treatment of hazardous wastes on
November 8,1988. Commenters further
argued that because all hazardous
wastes would not be removed from the
impoundment (for instance, under one of
the options, no hazardous wastes were
required to be removed), and because
the facility would not cease activities
that involve the management of the
remaining hazardous wastes, the unit
should be considered an active
hazardous waste surface impoundment
and therefore would be in violation of
section 30050) of RCRA. These
commenters further asserted that the
proposal violates RCRA section
1003(a)(5) because the proposal achieves
protection of human health and the
environment by remediating releases,
rather than by preventing releases,
which they argued is required by the
statute.
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33382 ' Federal Register / VoL 54. No. 155 7 Monday. August 14. 1989 / Rule« and Regulations.
One of these commenten also
questioned the Agency's technical
judgment in allowing hazardous waste
to remain in surface impoundments
lacking double liners and leak detection
systems. The commenter noted that the
Agency previously has been unwilling to
rely solely on ground-water monitoring
and corrective action to detect and
cleanup releases, favoring instead a
combination of design and operating
requirements to minimize the potential
for releases. The commenter also
pointed out that the Agency had not
presented any data with this rulemaklng
indicating that the Agency now found
.that ground-water monitoring and
corrective action were more effective
than it believed in the past Finally, the
commenter expressed concern that
placing additional liquid non-hazardous
wastes into a surface impoundment
containing hazardous wastes could
increase the pressure head and.
consequently, increase the chances that
hazardous constituents from the
hazardous wastes would escape into the
environment
The Agency is not persuaded by the
commenters' legal arguments based on
section 3005{j). The Agency does not
believe that the use of the term
"storage" in RCRA section 3005(j) ban
the continued receipt of non-hazardous
wastes by impoundments that may
contain hazardous wastes. The statute
clearly requires that non-MTR surface
impoundments cease receiving
hazardous wastes by November 8,1988.
and all non-retrofitted impoundments
must comply with this requirement The
statute does not itself require closure of
these units. In a colloquy clarifying
statutory language. Senators Randolph
and Chafee indicated that the intent of
the provision was not to require
retrofitting for hazardous waste
impoundments that receive or store
hazardous waste prior to November 8.
1988. but cease to receive hazardous
waste after that date, and that requiring
such closure would not be necessary if
continued waste management in the
impoundment were conducted in a
manner ensuring continued protection of
human health and the environment (130
Cong. Rec. S0182 daily ed. July 25.1984).
The Agency does, however, agree
with the commenten that section
1003(a)(S) establishes the goal of
managing hazardous waste properly in
the first place, "thereby reducing the
need for corrective action at a future
date." However, the Agency believes
that Congress intended to allow the
Agency to determine the type of
regulatory controls needed to provide
"proper management" for each type of
hazardous waste management unit This
provision does not prohibit non-
retrofitted surface impoundments from
delaying closure to receive non-
hazardous wastes. Closure of these units
need not be required if the Agency
determines that the wastes in the ...
impoundment* can still be managed in
such a way as to reduce the need for
future corrective action.
The Agency has re-evaluated the
proposal in light of the technical and
policy concerns raised In the comments.
Upon reconsideration, the Agency has .
determined that only those non-
retrofitted impoundments that meet the
removal requirements described in
Option 1 of the proposal will be eligible
to delay closure. Surface impoundments
from which wastes are not removed will
not be permitted to delay closure.
Further, flushing of impoundments to
achieve only a 95 percent volume
displacement is not sufficient under the
final rule as evidence of waste removal
EPA. as noted by the commenten.
generally has adopted regulatory
requirements which impose both
prevention and detection and
remediation requirements for land
disposal units. This position was fint
articulated in the Agency's July 26,1982
rulemaking establishing standards for
land disposal facilities (47 FR 32274).
The 1982 rule promulgated two sets of
standards for landfills, surface
impoundments, waste piles, and land
treatment units. The design and
operating standards were intended to
minimize the formation and migration of
leachate and thus reduce the likelihood
of releases, while the ground-water
monitoring and response requirements
were promulgated to ensure that
releases would be detected and
corrective action measures implemented
in the event of a release. The Agency
reiterated its position on these dual
goals of prevention and protection in its
May 2.1986 rale establishing additional
closure, post-closure care, and financial
responsibility requirements for
hazardous waste facilities. In the
preamble to the 1986 final rule, the
Agency stated that "the hazardous
waste regulations incorporate a two-part
'prevention and care* system whose
overall goal is to minimize the formation
and migration of leachate to the
adjacent subsurface soil ground water,
or surface water." (51 FR 18432) The
Agency also relied on this position in
the May 29.1987 (52 FR 2218), proposal
to extend double liner and leachate
collection standards to certain new.
replacement and expansion landfills
and surface impoundments not required
to meet these standards under section
3004(o).
. The Agency also agrees with the
commenters that proposed Options 2
and 3 failed to require measures
sufficient to prevent releases from
impoundments. Consistent with
previous policies. EPA is not willing to
rely solely on detection and remediation
to provide protection for human health
and the environment at non-retrofitted
impoundments which retain significant
amounts of liquid. Under both of these
options, particularly Option 3,
significant amounts of hazardous liquids
would remain in surface impoundments
that lack liners and leachate collection
systems or have liners that do not meet
the standards that EPA would require
for new units. EPA shares the
commenter's concern that adding
additional non-hazardous liquids could
increase the pressure level in these
impoundments thereby increasing the
potential for releases of the remaining
hazardous wastes from these
impoundments. On re-examination the
Agency no longer believes that the
enhancements to the remediation
process that the Agency had proposed
(such as accelerated corrective action)
are sufficient to mitigate the possibility
that a release may escape early
detection and prompt remediation.
Consequently, the Agency believes that
protection of human health and the
environment requires prompt closure of
impoundments retaining significant
amounts of hazardous waste. Closure
will supply necessary "preventative"
measures by requiring the owner or
operator to either remove all hazardous
wastes and waste constituents or to
eliminate all free liquids and install an
impermeable cap to reduce the potential
for future releases of hazardous
constituents.
The Agency continues to believe that
proposed Option 1 does, however.
require sufficient preventative measures
to ensure continued protection of human
health and the environment Under this
option, the owner or operator must
remove all liquid hazardous wastes and
remove hazardous sludges to the extent
practicable. The Agency believes that
the significant reduction in the quantity
of waste in the unit will reduce the
threat posed by any release to the
environment While some small amount
of hazardous sludges may remain, the
required removal activity significantly
decreases the likelihood that a release
of hazardous constituents, leached from
the sludge at levels presenting a threat
to human health and the environment
will occur.
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Federal Register / Vol. 54, No. 155 / Monday, August 14, 1989 / Rules and Regulations 33383
To further ensure continued
environmental protection, the Agency
has retained the requirements it
proposed to expedite the detection and
remediation process. Units delaying
closure will be required to receive
permits and to operate under part 264
standards including ground-water
monitoring standards. These units will
therefore be subject to the same ground-
water monitoring requirements as units
meeting all MTR. Further, to ensure
prompt response and remediation in the
event of a release, accelerated
corrective action and/or closure of units
is required.
Surface impoundments not meeting
liner and leachate collection systems
requirements must submit a contingent
corrective measures plan describing
interim measures for handling a release
if it occurs and promptly implement this
plan if a release is detected. Detection of
releases will be determined using either
background levels or the ground-water
protection standard (GWPS) if one has
been established. Further, owners and
operators will not be allowed to delay
implementation of corrective measures
while a GWPS is being established.
The Agency therefore continues to
believe that the combination of waste
removal and stricter detection and
remediation requirements of
§! 264.113(e) and 265.113(e) will protect
human health and the environment and
be consistent with the objectives and
specific requirements of RCRA.
Accordingly, the Agency is finalizing
revised requirements in § § 264.113(e)
and 265.113(e) which allow surface
impoundments not meeting liner and
leachate collection system requirements
to delay closure if hazardous wastes are
first removed and other eligibility and
operating criteria are met. Section IV.B.2
discusses in more detail how the
proposed requirements have been
modified in response to comments.
2. Landfills
The proposed rule would allow
landfills that meet the general
requirements set forth in 55 264.113(d)
and 265.113(d) to delay closure. One
commenter opposed allowing landfills
not meeting MTR to delay closure. The
commenter contended that landfills not
meeting MTR would pose risks of
release similar to those posed by non-
retrofitted surface impoundments.
The Agency has considered the
commenter's concerns, but is
promulgating the final rule as proposed
allowing landfills to delay closure if
they meet the requirements in
S 264.113(d). Existing landfills are not
subject to the provisions of Section
3005(j) of RCRA that require surface
impoundments to retrofit or cease
receipt of hazardous waste by
November 8,1988. Existing landfills are,
however, subject to the requirements of
section 3004(o) of RCRA. Under section
3004(o) existing landfills must retrofit to—
meet MTR'or cease receipt of hazardous
waste only if they are laterally
expanded, or otherwise trigger the
replacement or new unit definitions.
The Agency believes that since
existing landfills not satisfying MTR
may remain in operation to handle
hazardous wastes, they should be
allowed to delay closure to receive only
non-hazardous wastes if they meet the
requirements of S 264.113(d) or
S 265.113(d), as applicable. The Agency
also disagrees with the commenter's
view of the risks presented by receipt of
non-hazardous waste at landfills. When
evaluating a request to delay closure of
an existing landfill, the Agency will
carefully consider the compatibility of
the hazardous and non-hazardous waste
to be managed in the landfill in addition
to all other requirements in J} 264.113(d)
and 265.113(d). Requiring landfills to
comply with §§ 264.1I3(e) and 265.1l3(e)
would result in units receiving only non-
hazardous wastes being subject to more
stringent requirements than landfills
receiving hazardous wastes.
Accordingly, under today's rule, landfills
are subject only to the requirements in
§5 264.113(d) and 205.113(d) to delay
closure.
3. Land Treatment Units
The proposed rule did not extend the
option to delay closure to land treatment
units. The Agency did, however,
specifically request comment on
whether the proposal should be
extended to land treatment units.
The majority of commenters on this
issue supported extending the option to
delay closure-to land treatment units.
Comments favoring the option pointed
out that many land treatment facilities
already manage both hazardous and
non-hazardous waste streams.
Commenters further asserted that land
treatment units pose a lower risk to
ground water than surface
impoundments and landfills because
hazardous constituents are degraded
and immobilized as part of treatment,
and that the destruction efficiency of a
land treatment unit may be improved
when non-hazardous wastes are
combined with hazardous wastes. One
commenter who opposed allowing land
treatment units to delay closure stated
that increased pressure and potential
explosive and subsidence hazards could
be caused by the acceptance of non-
hazardous wastes.
The Agency has considered these
comments and has expanded the final
rule to allow land treatment units to
delay closure if they satisfy the
eligibility Criteria of §5 264.113(d) and
265.113(d). The Agency believes that
land treatment units can delay closure
and operate in a manner that is
protective of human health and the
environment. All land treatment units
that delay closure will continue to be
subject to all subtitle C requirements for
land treatment units and the
requirements of § S 264.113(d) and
265.113(d) of today's rule. Existing
subtitle C regulations require owners
and operators of land treatment units to
demonstrate that the hazardous
constituents in the subtitle C wastes will
be completely degraded, transformed or
immobilized in the treatment zone. As
part of the permit or permit modification
(or amended Part B application for
interim status facilities] required to
delay closure, these owners and
operators will be required to
demonstrate that receipt of non-
hazardous waste will not inhibit the
degradation, transformation or
immobilization of the hazardous wastes
in the treatment zone. These factors,
together with the other requirements of
§§ 264.113(d) and 265.113(d) will ensure
that land treatment units delaying
closure are adequately protective of
human health and the environment.
4. Other Treatment and Storage
Facilities
The proposed rule would not allow
storage units (i.e., storage and treatment
tanks, container storage areas, or waste
piles) or incinerators to delay closure. In
the preamble to the proposal, the
Agency stated that if these units wanted
to delay closure in order to receive only
non-hazardous waste, they would first
be required to close in compliance with
the requirements of subpart G. The
requirements for closure of these units
involve removal or decontamination of
all wastes and waste residues,
containers, liners, bases and
contaminated soils, equipment and other
containment system components (40
CFR 264.178, 264.197. 264.258. 264.351,
265.197, and 265.351). These closure
requirements are not incompatible with
the reuse of these units for receipt of
only non-hazardous waste. Once the
unit has been emptied of all hazardous
wastes and decontaminated, it could
receive non-hazardous waste as a
subtitle D facility, without being subject
to the stricter provisions of today's rule.
Only one commenter recommended
that tanks and container storage areas
be allowed to delay closure. The Agency
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33384 Fwknl Register / VoL 54. No. 15S / Monday, August 14. 1969 / Rules and Regulations
continues to believe nut because the
activities which would be necessary to
delay closure are so similar to activities
required to dose these units, prohibiting
storage units from delaying closure
under today's role will not impose an
undue burden on the owners and
operators of these units. Therefore, the
final rule is promulgated as proposed
and is not applicable to storage and
treatment tanks, container storage
areas, waste piles and incinerators.
B. Part 264 Standards
The Agency proposed to amend
Si 284.112(d) and 264.113 (a), (b). and
(c). and to add new paragraphs (d) and
(e) to S 264.113. Sections 264.113 (a) and
(b) require a facility owner or operator
to treat dispose, or remove ail
hazardous wastes within 90 days and to
complete closure activities within 180
days of the final receipt of hazardous
wastes. Further. 5 284.112(d) establishes
that the date the owner or operator
expects to begin closure, which triggers
the notification requirements, is no later
than 30 days altar the receipt of the last
known volume of hazardous wastes.
Under 55 264.113 (a) and (b) and 265.113
(a) and (b). extensions to the closure
period may be granted in certain limited
circumstances. Today's rule provides an
additional justification for an extension
of the closure period to allow for
management of only non-hazardous
wastes. Additionally, a conforming
change is being made to 55 284.112(d)
and 264.113(c) to address deadlines for
closure of units that qualify to delay
closure. The changes to 5 284.113 being
promulgated today supplement existing
part 264 standards and provide
assurance that public health and the
environment will be adequately
protected at units delaying closure.
1. General Conditions for Delay of
Closure (S 264.113 (d)}
Section 264.113(d) of today's rule
establishes .the general requirements
applicable to all units delaying closure
to receive non-hazardous wastes after
the final receipt of hazardous wastes.
These requirements supplement existing
subtitle C requirements. The f 264.113(d)
requirements are discussed in ram
below.
a. Demonstration* for Extensions to
CJosun Deadline! (§304.113fd)(W.
Section 264.113(d)(l) of the proposed
rule required owners and operators of
facilities wishing to delay closure to
demonstrate as part of their permit
application or modification that (1) The
unity*) has adequate existing design
capacity to continue to receive waste:
(2) then is a reasonable likelihood that
non-hazardous wastes will be received
in the unit within one year of the final
receipt of hazardous waste; (3) non-
hazardous wastes received will be
compatible with any other wastes
remaining in the unit (4) closure of the
unit is incompatible with continued
operation of the facility; and W the .
facility will continue to be operated in "
compliance with all applicable permit or
interim status requirements.
The Agency received a number of
comments regarding these
demonstrations. Most commenters
recommended that the required
demonstrations be modified or deleted
from the final rule. The Agency
continues to believe, however, that the
demonstrations required in the proposal
are necessary to ensure that units
delaying closure to receive only non-
hazardous waste remain adequately
protective of human health and the
environment In many cases, the
required demonstrations are the same as
those currently required under
f i 2M.113(b) and 265.113(b) for units
wishing to temporarily suspend
hazardous waste management activities.
The Agency's rationale for retaining
each of the demonstrations is presented
below.
(1) Design Capacity- One commenter
recommended that the option to delay
closure not be restricted to a facility's
original design capacity. The Agency
continues to believe that it is prudent to
restrict the option to delay closure to the
existing design capacity. In proposing
these changes to the closure
requirements, the Agency recognized
that closure of a unit while the unit has
remaining capacity to receive non-
hazardous wastes could disrupt facility
operations or impose substantial
economic burdens on the facility owner
or operator. Where existing capacity can
be utilized to manage non-hazardous
wastes in a manner that remains
protective of human health and the
environment extensions to the closure
period may be allowed. The Agency
believes that it Is unwise to allow the
expansion of subtitle C units for
managing non-hazardous wastes, thus
resulting in large unit* subject to subtitle
C. Finally, the Agency does not believe
that many owners and operators would
want to expand their subtitle C units or
facilities simply to receive more non-
hazardous waste, since such lateral
expansion of surface impoundments and
landfills would trigger the liner and
leachate collection system requirements
of RCRA section 3004(o). The Agency
ff^pimmm^y that if additional non-
hazardous waste capacity is needed, a
facility choose to construct a unit
designed to handle non-hazardous
wastes hi accordance with Subtitle D
requirements.
(2) Receipt of Non-Hazardous Waste
Within One Year. A commenter —
suggested that the required
demonstration that wastes win be
received within one year of the final
receipt of hazardous waste be
documented (e.g.. through submission of
contracts indicating anticipated receipt
of non-hazardous waste) and that the
time period within which non-hazardods
wastes must be received should be
shortened to three months. The Agency
does not believe that such changes are
necessary. The provision allowing a unit
to remain open if it receives additional
wastes within one year of the final
receipt of hazardous wastes is
consistent with the provisions allowing
continued receipt of hazardous waste. In
implementing It 264.112(d)(2) and
285.112(d)(2). the Agency currently
determines on a case-by-case basis the
documentation that best supports the
claim that additional wastes will be
received and that sufficient design
capacity is remaining. In evaluating
these submissions, the Regional
Administrator generally takes into
account a number of factors including
those suggested by the commenter. such
as: (1) Unit or facility characteristics,
including capacity and operating
conditions; (2) demand for the facility:
(3) the owner or operator's business
plans: and (4) the history of facility
operations (OSWER Policy Directive
*947aoO-6, January 1987, pp. 3-16 and
3-17). Finally, the eligibility
requirements, including the
requirements to continue to comply with
all permit conditions or interim status
standards, if applicable, will ensure that
units remaining open following the final
receipt of hazardous waste are
protective of human health and the
environment
(3) Compatibility of Wastes. The
Agency received comments on the
compatibility demonstration
(Si 264.ll3(d)(1)(tv) and
285.113(dMl)(iv)) only with respect to
landfill units. Several commenters
challenged the Agency's suggestion in
the preamble that it would be difficult to
demonstrate that municipal solid wastes
would be compatible with hazardous
waste* remaining hi landfill units, and
therefore it would be unlikely that
receipt of municipal solid wastes would
be allowed. The Agency continues to
believe mat in most cases, it will be
difficult to demonstrate that municipal
solid waste* will be compatible with
hazardous waates remaining in a unit
delaying closure. Problems which are
anticipated include subsidence.
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Federal Register / VoL 54. No. 155 / Monday. August 14. 1989 / Roles and Regulations 83385
settlement of the cap. or leachaie and
methane gas production. The Agency
acknowledges, however, that some unite
have been specifically designed to co-
manage both hazardous and municipal
solid wastes. For these types of unite.
the Agency agrees with the commenter
that it may not be difficult to
demonstrate that the continued receipt
of non-hazardous wastes will be
compatible with the design of the unit
and with the hazardous wastes
remaining in the unit In cases where the
unit has not been designed specifically
to handle hazardous and non-hazardous
wastes, however, the Agency still
believes that it will be difficult to
demonstrate that the addition of non-
hazardous wastes will be compatible
with the remaining wastes in the unit
and with the facility design and
operating requirements of part 264. The
requirements of 55 2B4.113(d)(l)[iv) and
265.113(d)(l)(iv) therefore remain
unchanged. These requirements are
applicable to all types of unite eligible to
delay closure.
(4) Incompatibility of Closure With
Continued Operations. A few
commenters expressed confusion about
the requirement that owners and
operators demonstrate that closure of
the unit would be Incompatible with
continued operation of the facility.
After considering the commenters'
concerns, the Agency has decided to
retain the requirement that owners and
operators of unite delaying closure
demonstrate that closure of the unit '
would be incompatible with continued
operation of the facility
(S 264.113(d)(l)(iv)l. This requirement is
consistent with existing requirements
for requesting an extension to the
deadlines to begin closure for owners or
operators wishing to receive additional
hazardous wastes, and has not proved
to be .an implementation concern to
date. This demonstration can be
supported by submission of information
showing the role of Qw unit in the
facility's overall wast* management
scheme. The practical, rather than
economic, disruptions which closure of
the unit with remaining capacity would
have on facility operations should be
evidenced.
b. Continued Compliance With
Subtitle C Requirements, A few
commenters asserted that the Agency .
does not have the authority to require
continued compliance with Subtitle C
permitting requirements because unite
delaying closure would be "?tnagtng
only non-hazardous wastes. One
commenter recommended that the
Agency not require compliance with
both State and local regulations in .
addition to Subtitle C requirements to
•void duplicate and potentially
conflicting requirements. Finally one
commenter suggested that the Agency
clarify that surface impoundments not
mating liner and leachate collection
system requirements need not comply
with the permit requirements for
retrofitting.
RCRA provides the Agency ample
authority to regulate any unite that
received hazardous waste after
November 19. 1980. Unite wishing to
delay closure are currently regulated
under Subtitle C and remain regulated
as long as hazardous constituents from
those wastes remain in the units, unless
the owner or operator obtains a delisting
or satisfies clean closure requirements.
In specifying m the preamble to the
proposal that unite comply with
applicable State and local regulations,
the Agency was merely restating
existing requirements. Currently, an
owner or operator is subject to all
applicable State and local regulations in
addition to applicable Federal
requirements.
Finally, one cflrnuwnfor pointed out
that the requirement for surface
impoundments not designed to satisfy
the MTR liner and leachate collection
system requiremente to comply with all
part 264 permit requiremente could
cause confusion. The Agency wishes to
clarify that the MTR liner and leachate
collection requiremente are not
applicable permit requiremente for
surface impoundments operating «nAfir
a 1264.113(e) and ! 265.113(e)
extension. It should be noted mat lateral
expansion of unite delaying closure
pursuant to 11264.113(d) and (e) is not
allowed. Lateral expansion of such unite
would trigger the MTR requirements of
13004(o) as weO as constitute a
violation of today's regulation.
c. Changes to Facility Plans
(§2O4.U3{d)(2)). Section 2B4.113(d)(2)
proposed that owners and operators
submit with their permit m«yiiftf»«Hfm
request necessary and appropriate
changes to the waste analysis plan,
ground-water monitoring plan and
response plan, closure and post-closure
plans end cost estimates, and
demonstrations of financial assurance
required elsewhere in part 264. These
kllel existing
requiremente that facility plans be
revised to reflect substantial changes in
the types of hazardous wastes tnfif\g
handled or the hazardous waste
management practices employed.
Similarly, the Agency believes that to
ensure proper "^
reflect changes in unit operations for
managing only nan -hazardous wastes,
The Agency received very few
comments on the proposed requirement
to modify the ground-water monitoring
plan, cneure and port-closure plans and
cost estimates, and financial assurance
demonstrations (responses to these
comments appear in the Comment
Response Document). However, a
number of commenters objected to the
requirement to revise the waste analysis
plan. One commenter stated that
modifying the waste analysis plan is
unnecessary because wa^te
compatibility already will have been
demonstrated under the requiremente of
12B4.113(d)fl)(iii). In addition, this
commenter stated that the Subtitle C
waste analysis program cannot be
adapted to municipal solid wastes
because of the difficulty of obtaining the
necessary data. Under Subtitle C,
generators of hazardous wastes must
prepare a manifest identifying the
contents of each shipment of waste. In
contrast, generators of municipal solid
wastes are not required to compile the
data necessary to characterize mete
wastes. Thus, municipalities and
commercial trash collectors would be
unable to provide the TSDFs with data
on the exact content of municipal solid
waste (generally household wastes)
which would be necessary to comply
with the waste ant lysis plan
requirements.
The Agency continues to believe that
revision of the waste analyst: plan is
necessary and practicable in most cases.
Such information wiO be required to
support the compatibility demonstration
in 1264.113(d)(lXiii).The Agency would
expect the compatibility demonstration
required in 1264.113(d){lXUi) to cross-
reference the waste analysis plan as
evidence that non-hazardous waste
streams are compatible with previously
managed hazardous wastes.
It should be noted, however, that (he
final rule requires that the waste
analysis plan be revised "as necessary
and appropriate" to account for the
addition of additional or new non-
hazardous waste streams. The Agency
acknowledges that in some cases the
Subtitle C procedures for conducting
physical **™ *i»*mi«»«l waste analyses
and me requirements to prepare a waste
analysis pun describing these
procedures may be difficult to apply to
munici]
lures may
pal solid
wastes. For example.
receiving non-hazardous wastes,
selected plans should be revised to
generators of municipal trash (e^~
households) do not have the data .
necessary to characterize the wastes. In
such eases, the Agency may allow the
owner or operator to use his own
knowledge about the waste streams to
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33386 Federal Register / Vol 54. No. 155 / Monday. August 14. 1989 / Rules and Regulations
make the required compatibility
demonstration («.g, local ordinances
that prohibit certain types of wastes
from being disposed in the trash or
visual inspections of truckloada). This -
flexible approach is consistent with
current Agency practices.
d. Expoaun Assessment Information.
Section 284.113(d)(4) of the proposed
rule would have required owners and
operators wishing to delay closure to
submit the human exposure assessment
required under RCRA section 3019fa)
with the request to delay closure. This
section further would have required that
if the Regional Administrator
determined that the unit posed a
substantial risk to human health, then
the unit would not be eligible to delay
closure.
One commenter recommended that
the Regional Administrator determine
that continued use of the unit to receive
only nonhazardous waste would not
pose a substantial risk to human health.
Another commenter argued that the
requirement was stated in excessively.
vague language and provided no
opportunity for administrative appeal
Finally, a third commenter stated that
section 3019 information must be
submitted only upon submission of a
final part B permit application, and that
resubmission of the data should not be a
condition of delaying closure.
The Agency has considered the
commenters' recommendations and
agrees that resubmission of the human
exposure assessment information
required under RCRA section 3019(a) (40
CFR 270.100)} may not always be
necessary to demonstrate that a unit can
operate in a manner protective of human
health and the environment The
purpose of the information gathered
under the authority of RCRA section
3019 is to assist in the evaluation that a
unit delaying closure can continue to
operate in a manner protective of human
health •"** the environment. Therefore.
the Agency is modifying the final rule to
clarify that the information will only be
required to be updated "as necessary
and appropriate" to account for the
receipt of non-hazardous wastes
following final receipt of hazardous
wastes. The Agency la also <™*i
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Federal Register / VoL 54. No. 155 / Monday. August 14, 1986 / Rules and Regulations 33387
"meaningful** and timely. Tbe Agency .
believes that it is practical to anticipate
many of the actions that may be .1 -
necessary to remediate releases to
ground water. Hie measures outlined in
the contingent corrective measures plan
will often be the same types of measures
required under the full corrective action
plan. Among the measures discussed by
the Agency in the preamble to the
proposed rule that might be included in
the plan were extrapolation of future
contaminant movement, a discussion of
the likely contaminants of concern, and
a description of measures that can be
installed quickly to address releases of
different types of constituents or
releases at variable rates, and plumes of
different size and depth. In many cases
these actions will constitute interim
measures, such as alternate water
supplies, stabilization and repair of side
walls, dikes, and liners, or reduction of
head. Such interim measures would
prevent and contain releases and
complement any longer-term corrective
measures that may be required
following a detailed evaluation. The
plan should also describe in detail the
range of corrective measures that might
be used, including the equipment and
physical components required.
Finally, the owner or operator must
address whether continued receipt of
wastes would impede the progress of
corrective action and establish criteria
or milestones to ensure that substantial
progress in remediating the release is
achieved. As discussed further in
section rv.B3.cJ of today's preamble,
the owner or operator of a non-
retrofitted surface impoundment mast
cease the receipt of waste upon
detection of release unless he has an
approved)
t corrective
measures plan which demonstrates that
continued waste receipt will not imped*
the progress of the required corrective
measures.
b. Alternatives. Today's final nil*
•era ton,
jtionto
(I)j4/te/natrrv l—Oemo
Hazardous Wastes (§ 264
proposal offered owners
as a primary alternative
remove all hazardous lie
sludges from the surface .. oundment
prior to receipt of non-hazardous waste.
This option appears hi today's final rule
as Section 284.113(e)(2). This section
disnusmi comments received on this
option, as well as the applicability of the
mixture rule to impoundments removing
hazardous wastes.
(a) Liquid and t/udge removal. Under
the first alternative, proposed as
§ 264.113(e)(2}(i). the Agency proposed
that an owner or operator of a surface
impoundment remove all hazardous
liquids and hazardous sludges, to the
extent practicable without damaging the
Uner. from the impoundment prior to the
receipt of non-hazardous waste.1 In the
preamble, the Agency noted that for
nnUned units (I*, units with natural
clay liners), the hazardous wastes must
be removed down to the underlying and
adjacent soil. In addition, the proposal
specified that, m the event of a release
to ground water, the facility would have
to comply with the corrective action
requirements of proposed f 2M.113(e)(5)
and discussed In section IV 3Ac below.
The Agency also proposed that
owners or operators choosing this
alternative remove hazardous wastes
(liquid and sludges) no later than 90
days after die final receipt of hazardous
waste. Tbe proposal allowed the
Regional Administrator to approve a
request for a longer period of time based
on need (e.g, due to adverse weather
conditions or specific operating
practices), and on a demonstration that
an extension would not pose a threat to
human health and the i
impoundments that do not meet Uner
and ]eachate collection system •
liquids and stodges to the octant
practicable as • precondition of
delaying closure to receive1 un-
hazardous wastes. As part of tba
fhwj****"*1"*" required in the request •
to delay closure, an owner or operator
must include a plan for complying with
this waste removal requirement Two
alternatives originally proposed have -
not been finalized. The following section
summarizes the comments received on
the alternatives and describes the
Agency's final position.
deadline and criteria for requesting an
extension to me 90-day deadline in tbe
proposal were consistent wtth me
current provisions in 1 2M.ltt(a) for
removing aD p*****"1^1* wastes at
closure and for
to that deadline.
sting an extension
'
lined units. Removal need only be •' '
completed to the day. This darifieatior
does not affect the amount of materials
that may be required to be removed
from the unit at the time of final closure.
No other comments were received and
the provision is finalized as proposed.
(b) Relationship to the mixture rule. In
the preamble to the proposed rule, the
Agency discussed the applicability of
the "mixture rule" in the context of
owners or operators who treat wastes in
a series of surface impoundments. In
that discussion, the Agency stated that
in most cases, the mixture rule would
not apply because mixing of hazardous
sludge with non-hazardous influent
would be unlikely. Therefore, a non-
retrofitted surface impoundment
delaying dosure under the proposed rule
could discharge into a non-retrofitted
downstream surface impoundment.
because the discharged wastes would
not be considered *"»»«•«<««« The
Agency received several comments on
this interpretation of the "mixture rule."
(53 FR 20750) While several commenters
supported the Agency's interpretation,
other commenters argued that this
position is inconsistent with previous
Agency interpretations. Tbe commenters
who disagreed stated that when a non-
hazardous waste and a tisted hazardous
waste are co-mingled and co-managed
The Agency received one comment on
this proposed alternative requesting
clarification of whether natural day-
lined units should remove die day liners
along wtth die stodge. The requirement
to remove stodge from unlined units
"down to die underlying and adjacent
soirexdndestheUoerinnaturaQy-clay
•quintal to •pprapriu* M pnnct
in tbe same unit under any
circumstances, tbe entire mixture is
considered a listed hazardous waste
and must be managed appropriately.
Tbe Agency maintains that dw
discussion of the mixture rule contained
in tbe preamble to the proposal is
consistent with previous Agency
actions. Tbe Agency has consistently
interpreted tbe mixture rule not to apply
where a non-Hated waste is discharged
to a unit (La. surface impoundment)
even if that liquid generates a hazardous
sludge, unless the sludge is in some way
-mixed" wtth the liquid («*. scoured as
a result of operations in the unit). If the
Agency did not Interpret the mixture
rule in this manner, there would be no
point in carefully limiting listings to
testate stodges bat exclude
westewaters. Tbe alternate mixture rule
interpretation suggested by several
commenters would make the
wastewater hazardous as soon as the
hated sludge ww generated.
H»A believes tot the opportunity for
rnixtagofharardousstadgesand
hazardous nquids from impoundments
where unhazardous liquid* and sludges
have been removed to die extent
practicable as required by
If 284J13(eK2J and 255.H3W12) will be
manual. Opportunities for mixing will
be further diminished as additional nou
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33388 Federal Register / VoL 54, No, 155 / Monday. August 14. 19W / Rules and Regulations
hazardous sludge is generated. Were
uy mixing to occur, it would be
confined to the liquid/sludge interface. -
Levels of hazardous constituents
escaping from the hazardous sludge to
the non-hazardous liquid an not likely
to pose an appreciable risk to human
health and the environment Should the
impoundment be subsequently dredged
so that scouring or other physical mixing
occurs, the mixture rule would come into
effect (This rationale is discussed
further in 46 FR 56582, November 17.
1981).
Once all hazardous liquids and
hazardous sludges have been removed
to the extent practicable, free liquids
from such impoundments may be
discharged to non-MTR units because
the liquids would not be considered to
be hazardous wastes. Additionally, as
discussed earlier, to remain in
compliance with section 30050). non-
retrofitted impoundments wishing to
delay closure may not receive a non-
hazardous waste that generates a
hazardous waste or sludge.
(2) Alternative 2—Flushing Hazardous
Wastes. The proposal offered owners or
operators the second option of flushing
or displacing liquid hazardous wastes
and removing hazardous sludges. For
reasons discussed below, the Agency is
not finalizing this alternative.
The proposed "flushing" alternative
(proposed i 2M.113(e)(2)(ii)) would have
allowed an owner or operator to delay
closure of a surface impoundment
subject to § 264.1l3(e) if he removed the
hazardous sludges and also removed the
liquid hazardous waste and suspended
solids by flunking the unit with non-
hazardous influent until 95 percent of
the hazardous liquid had been removed.
In addition, the owner or operator would
have been required to demonstrate that
the remaining liquid waste •*"*
suspended solids did not exhibit a
characteristic of hazardous wastes as
denned in subpart C of part 261. Testing
for listed hazardous constituents.
however, was not required. The Agency
intended this alternative to apply
primarily to owners or operators of
biological treatment i*"p"«n« option to
delay closure is warranted for any .
irfnuMtt that retains up to 5
percent liquid hazardous waste. For die
reasons ftiminnd above and in section
IV.AJ of this preamble, die Agency has
decided to delete this option from the
final rule. The Agency points out
however, that owners and operators
who remove all liquids under
Alternative 1 may use flushing as a
removal method. The owner or operator
would have to demonstrate the complete
removal of hazardous liquids. Tracer
studies as described in the proposed
Alternative 2 (53 FR 20750). or modeling
studies may be used.
(3) Alternative 3—Leaving Hazardous
Wastes In floes. The third alternative
proposed in 1264.113(e)(3) would have
allowed owners or operators of
impoundments who intend to leave
hazardous wastes hi place at closure to
delay closure under limited
«-^f This Option *\tt has UOt
been finalized in today's rule. Because
hazardous wastes would not have been
removed prior to the receipt of non-
hazardpus wastes, the Agency proposed
more stringent requirements for these
impoundments than for impoundments
at which hazardous wastes would have
been removed. This alternative would
have been available only to those units
that had not detected a release at or
prior to the final receipt of hazardous
wastes. In addition, if a release had
been detected after the final receipt of
hazardous wastes, the owner or
operator would have been required to
initiate closure of the disposal
impoundment in accordance with the
approved closure plan no later than 30
days after the detection of the release
and implement the corrective measures
specified in the contingent corrective
measures plan no later than one year
after the release had been detected.
One commenter recommended that
impoundments which have not removed
hazardous wastes (impoundments using
proposed Alternative 3} not be allowed
to delay closure. This commenter felt
that these impoundments are more likely
to leak and would pose an excessive
threat to human health *"d the
environment As discussed in section
IV A.1 above, the Agency is not
th<« alternative. Upon
reconsideration, the Agency has
determined Out surface impoundments
from which hazardous wastes are not
removed present a greater threat of
release of hazardous constituents.
Therefore, these impoundments cannot
remain open to receive non-hazardous
waste and achieve the Agency's dual
goals of release prevention and
protection of human health and the
environment The Agency believes that
only the closure of these surface
impoundments will provide adequate
protection.
c. Corrective Action Requirements
(SS 284.1 J3(e) (4) and (5)). Under the
proposed rule, units that delayed closure
would remain subject to all applicable
part 264 corrective action requirements.
In addition, surface impoundments not
meeting the liner and leachate collection
system requirements would be subject
to more stringent requirements in the
event of a release. The following section
the comments received and
the Agency's final position on the
proposed trigger for corrective action,
reliance on ground-water monitoring
data to detect releases, and additional
corrective action requirements
applicable to surface impoundments not
meeting liner and leachate collection
system requirements.
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Federal Register / VoL 54. No. 155 / Monday. August 14. 1969 / Rules and Regulations 83389
(1) Corrective Action Trigger
(§§ 264.ll3(e)(4)). The Agency proposed
in §S 284.113(e)(S). (6). (7). ud (8) that
surface impoundments not meeting liner
and leachate collection system
requirements implement corrective
measures (and close, if wastes have
been left in place) if contamination is
detected. Detection occurs when there is
contamination that is statistically
greater than (or less than in the case of
pH) background levels for detection
monitoring parameters or hazardous
constituents specified in the permit or is
in excess of the GWPS. if one has been
established, at the point of compliance.
(For more information on the Agency's
final Ground-Water Monitoring
Statistical Rule, see October 11.1988,53
FR 39720.)
A number of commenters disagreed
with these requirements and argued that
facilities should be allowed to establish
a GWPS before corrective measures are
required to be implemented. These
commenters contended that the
proposed trigger for corrective action
(and closure for impoundments that
have left waste in place) would be too
sensitive and that temporary
fluctuations in the levels of hazardous
constituents would trigger unnecessary
corrective action (or closure). One
commenter requested clarification of the
manner in which a background level
would be established.
After consideration of the
commenters' recommendations, the
Agency has decided to retain the
corrective action trigger as originally
proposed. (Because the Agency is not
finalizing proposed Alternative 3, the
corrective action trigger no longer acts
as a closure trigger for surface
-impoundments that have not removed
hazardous wastes as a condition of
delaying closure.) However, because the.
corrective action requirements have
been modified somewhat (see section
IV.B.2.CJ), these requirements have
been renumbered and promulgated in
S 284.113(e)(4).
The Agency believes that the trigger
for corrective action is • necessary
element of today's regulations. The
delayed closure regulations will allow
non-retrofitted surface impoundments to
remain open after November 8.1988 (a* .
well as those surface impoundments
which become subject to section
3005(j)(l) after the date of enactment of
HSWA due to the promulgation of
additional listings or characteristics for
the identification of hazardous waste
under section 3001), and the
requirements must therefore provide
sufficient continued protection of health
«id the environment The Agency has .
provided for this protection through
strict eligibility and operating criteria.
and more stringent corrective measures
provisions, including requirements for.
the submission of a contingent
corrective measures plan and
implementation of corrective action if a
release over background levels is
detected at units without a GWPS.
The Agency does not believe that
allowing units without a GWPS to
obtain one before requiring corrective
action will provide adequate protection
since a delay in remediation of a release
that might occur if corrective measures
were not implemented until after a
GWPS was obtained could pose an
additional threat Modeling data
comparing the relative performance of
clay liners and synthetic liners
satisfying the liner and leachate
collection system requirements suggest
that a non-retrofitted surface
impoundment may have releases that
are faster and larger than from a surface
impoundment meeting the liner and
leachate collection system requirements.
Therefore, it is critical that releases from
units not meeting liner and leachate
collection system requirements be
addressed as quickly as possible. The
requirements for a contingent corrective
measures plan combined with the more
sensitive trigger will ensure prompt
release containment and remediation.
It should be noted, however, that an
owner or operator who has filed a Part B
permit application may request a GWPS
at any time before or after corrective
measures have been initiated. A facility
may request and obtain a GWPS in
advance of a release during the permit
approval process, or at the time that the
release is detected. The Regional
Administrator, in 1264 Jl(b). has the
authority to include in the facility permit
a combination of subpart F monitoring
and response programs in order to
protect human health and the
environment This provision gives the
Regional Administrator the discretion to
sat a GWPS before a release has
occurred. The GWPS can be established
at background or iimrfmimi contaminant
levels, or at alternate concentration
Units on a case-by-case basis. Alternate
concentration limits set at acceptable
health exposure levels using Agency
vanes should not be difficult to
establish prior to a release being
detected.
If no GWPS has been established, the
Agency will continue to require that
initial corrective measures be
implemented in accordance with the ..
contingent corrective measures plan
after a release over background levels is
detected. Background levels are to be
determined as described in If 28447
and 26541. The Agency recognizes that
in some circumstances a release over
background levels may not require
extensive corrective measures. If a
—CWPS is established in accordance with
the procedures in § 264.94 during or after
interim measures have been
implemented, an owner or operator will
be allowed to demonstrate that no
further corrective action measures are
necessary. Finally, it is noted that these
requirements are anticipated to be
consistent with forthcoming changes to
40 CFR subpart F. The delayed closure
provisions may be amended at a later
date to account for these new subpart F
provisions.
(2) Other Media. The proposed rule
required that EPA base the initial
determination of whether expedited
corrective action is required at surface
impoundments subject to the
requirements of i 264,113(e) on ground-
water monitoring data. The unit
however, would remain subject to all
corrective action requirements for all
media. The Agency requested comments
on this approach and whether other
options may be appropriate.
One commenter agreed with the
proposal and noted that it is consistent
with the Agency's approach to all
regulated land disposal units.
Furthermore, the use of ground-water
monitoring date should be adequate to
detect most releases to other media.
Another commenter, however, asserted
that reliance on ground-water
monitoring alone is inadequate because
results may be affected by poorly placed
wells and local hydrologic conditions
that control plume migration. This
commenter also felt that contamination
to media other than ground water may
not be expeditiously detected.
The Agency continues to believe that
ground-water monitoring is an adequate
tool for determining whether the
accelerated corrective action
requirements of today's rule are
necessary for releases to ground water.
The provision of 1264.113(e)(5) and (6)
has been finalized as proposed. Ground-
water monitoring has been traditionally
end successfully used to monitor
contaminant detection and plume
migration. Forthcoming corrective action
regulations will address releases to all
other media. The provisions in today's
rule supplement f«t«n»^g md any future
regulation addressing corrective action
requirements for all media.
(3) Additional Corrective Meatunt
Requirement*. The Agency's proposal
included additional corrective measures
requirements that would apply to
surface igt|pffun<^Tt*^its not meeting liner
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33390 Federal Register / VoL 54, No. 155 / Monday. August 14. 1968 / Rule* and Regulations
and leachate collection system
requirement SIM! winch have removed
(or will femove) hazardous waste fat
order to delay closure. The proposed
requirements differed, depending on
whether a release had been detected
before or after the final receipt of
hazardous wastes. Under the proposal.
units found to be i**t""g at or prior to
the final receipt of hazardous wastes
would be required to cease the receipt of
all wastes until corrective measures
have been implemented (§ 2M413fa)(5)
and (8)). Units found to be leaking after
the final receipt of hazardous waste
could continue to receive non-hazardous
waste only if corrective measures were
implemented within one year of the
detection of a release, and if continued
receipt of the non-hazardous waste
would not pose a threat to human health
or the environment (J 284.113(e](7)). The
Agency requested comments on whether
the requirements should differ
depending on the timing of the release,
and on the one-year deadline for
implementing the corrective measures.
Some argued that the Agency
provided no justification for imposing
stricter requirements on owners or
operators who detected a-release at or
prior to the final receipt of hazardous
waste. Others contended .that ceasing
receipt of waste until collective
measures are implemented would be
unduly disruptive to facility operations. -
Nearly all comments on tins issue
action requirements apply m cases of
releases detected before and after the
final receipt of hazardous waste. Two
commenters recommended that all
surface <««]wmm31Sfe)(5)
allows the owner or operator to •
continue to receive wastes after
detection of e release, regardless of •
when the release is detected, only in
those cases where a contingent
corrective measures pkuxfor full
corrective action plan) has been
approved. In addition to a description of
the corrective measures to be
implemented. If receipt of wastes is to
continue, the plan most fully account for
the impact of receipt of non-hazardoue
wastes on corrective measures by
demonstrating that continued receipt of
wastes will not adversely affect the
implementation of corrective measures
and the achievement of substantial
progress In achieving the facility's
GWPS. The Agency believes that these
effects must be considered before
receipt of non-hazardous wastes is
allowed. Once EPA has approved the
contingent corrective measures plan that
demonstrates that continued receipt of
non-hazardous waste will not adversely
affect the progress of the corrective
action, receipt of non-hazardous wastes
may resume.
As stated in the preamble to the
proposed rule, the Agency continues to
believe that temporarily ceasing receipt
of wastes until corrective measures have
been implemented should not be overly
disruptive to facility owners or
operators. Many units will have already
triggered compliance monitoring and/or
be engaged in corrective action under
Subpart F. Therefore, in those cases
when waste receipt must be halted.
than should not be an extensive delay
in implementing corrective action and
allowing the unit to resume receipt of
wastes. The Agency also anticipates
that >""^ these unite have detected
releases, they will receive priority, in
obtaining approval for corrective action
plans.
The Agency is finalizing the one-year
deadline for implementing corrective
measures under 12M.113(e}(4) «•
proposed. The Agency believes one year
from the time of release detection or
plan approval whichever is htter. is
a^m^M^twae) aanjsBjaasMll^Baa aVsa *4isU4*eiaiaWv! fat fttfeae
preamble to the proposed rale (59 PR
20752). the Agency intend* that actual
be implemented within one year. The
actions reouired to be accomplished
within this one year will be negotiated
daring the corrective measures approval
process. In addition, the Regions
Administrator has the option to require
implementation of corrective measures
earlier than one year after a release is
detected if necessary for the protection
of human health and the environment
Established procedures for adjusting
such permit schedules of compliance •
will be available. Therefore, specific
authority to allow the Regional
Administrator to grant extension* is
unnecessary and could lead to
unacceptable delays in closing a unit
should the owner or operator fail to take
timely action to initiate the
implementation of remedial action.
d. Evaluating tin Progress of
Corrective Action (§§ 264.113(e) (S). IS)..
and (7)). The proposed rule required
owners or operators to demonstrate
"substantial progress" in implementing
corrective action and achieving the
facilities' CWPS or background level if
the facility has not yet established a
GVYPS. If the Regional Administrator
determined that an owner or operator
had failed to make substantial progress
in implementing the required corrective
measures, the owner or operator would
be required to initiate closure of the
leaking unit (S 264.113(e)(10}). The
proposed rule did not define
"substantial progress" because the
Agency believed that the determination
should be made on a case-by-case basis.
In the preamble to the proposal.
however, the Agency did provide
examples of situations that illustrated a
failure to make substantial progress.
Examples included failure to comply
with the requirements of section (e)(5)
for implementing corrective measures
within one year or subsequent failure to
comply with significant deadlines in the
approved corrective measures plan.
schedule of compliance, the permit, or
other enforcement orders establishing
timeframes for achieving the facility's
GWPS. The Agency also specified that
semi-annual corrective action progress
reports required under 8 2M.113(e)(9)
would be considered In making the
determination, but that compliance with
only these procedural or reporting
requirements would not alone constitute '
substantial pi ogress.
The proposed rule also established an
accelerated set of procedures for
initiating closure under } 2M.113(e)(ll).
The procedures included notification of
the owner or operator, public notice of
the decision, and a 20-day comment
period. These proposed procedures did
not allow administrative appeals of final
decisions regarding closure.
Several commenters expressed
concept that the term "substantial
progress" was too vague and subjective.
One commenter felt that hearings should
be allowed to determine whether
substantial progress has- been made.
Another commenter recommended thai
the Agency allow administrative
appeals of decisions to require closure.
The Agency has considered the
commenters* recommendations, but
continues to believe that a specific
definition of "substantial progress" is
. both unnecessary and undesirable.
Establishing a rigid standard of
substantial progress would prevent a
Regional Administrator from -
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Federal Register / VoL 54. No. 155 / Mon^iy. August 14. 1989 / Rules and Regulations 83391
considering site-specific factors in the
determination of whether progress hi
corrective action is being made. Because
corrective action measures are tailored
to specific sites, this lack of flexibility
could result in a standard that in some
cases is inadequately protective of
human health and the environment and
in other cases is unnecessarily
burdensome to owners and operators.
The Agency believes that its description
of actions considered to constitute
substantial progress provides adequate
guidance to both owners and operators
and Regional Administrators. EPA notes
that while commenters were
dissatisfied that a definition of
substantial progress was not included in
the rule, they did not suggest alternative
definitions. Therefore, the Agency is
finalizing the rule as proposed (with the
reporting requirement and substantial
progress requirement renumbered as
§ 264.113(e) (5) and (6)) .
Finally, the Agency has retained the
expedited procedural requirements in
§5 264.113(e)(ll) and28S.113(e)(ll) for
determining whether substantial
progress has been achieved
(renumbered as S§ 264.113(e)(7) and
265.113(e)(7) for the final rule). The
Agency continues to believe that these
procedures afford owners and operators
adequate protection of any due process
rights and that hearing and
administrative appeals are neither
appropriate nor required. The objective
of the procedures is to reduce delays in
initiating closure, while still providing
owners and operators and the public
with notice and comment opportunities.
As discussed elsewhere in today's
preamble, the requirement to implement
effective corrective measures in the
event a release is detected is an
essential component of the controls
imposed on surface impoundments not
meeting the liner and leachate collection
system requirements. EPA believes that
the harm potentially caused to human
health and the environment by
impoundments unable to promptly
remediate releases outweighs any
potential burdens imposed on owners
and operators. Furthermore, it must be
remembered that owners and operators
are not authorized generally under this
rule to delay closure: rather the
authorization to delay closure is an
exception to the general Subpart G
requirements and is expressly
conditioned upon meeting the
substantial progress demonstration
when and if applicable. Although this
provision is itself self-implementing and
need not be accompanied by further
notice and comment opportunities, the
Agency has afforded such an
opportunity through die procedures in
SS 264.113(e)(7) and 265.113(e)(7). The
further delay that might result from a
hearing provision or administrative
appeals cannot be justified in light of the
importance of timely response actions. __
Nor would such additional procedures
be likely to present any information for
decisionmaking that could not be
provided by notice and the opportunity
to provide written comment
In addition, with respect to permitted'
faculties, receipt of approval for this
action and establishment of specific
milestones defining "substantial
progress" are determined through a
permit issuance or modification process.
This administrative process includes all
procedural protections necessary to
meet statutory and Constitutional
requirements. Thus, a conditional
authorization to delay closure as a
permit provision and the automatic
expiration for failure to comply with the
permit requirement to make substantial
progress in remediating releases will
have already been subject to notice and
opportunities for comment and
administrative appeals. Accordingly,
further process is unnecessary.
To provide analogous procedural
protections for facilities which may still
be in interim status at the time of the
Regional Administrator's determination,
parallel procedures appear in
§ 265.113(e)(7). As with permitted
faculties, the conditional authorization
to delay closure is also accompanied by
an opportunity for notice and comment
This occurs through the procedures for
closure plan approval or modification in
1265.112(d). Accordingly, further
procedures such as hearings and ~
administrative appeals are not
necessary and have not been added to
the final rule.
3. Notification of Closure
(§204.112(d)(2)). The proposed rule
nded 12M.112(d)(2) to specify that
for units delaying closure, the "expected
data of closure- is no later than 30 days
after the final receipt of non-hazardous
wastes. No comments were received on
this proposed change, and therefore the
final rule is promulgated as proposed.
C. Part 270 Permit Modification
Xfgiunmentg (§270.42). The proposed
rule designated the request to modify
the permit to delay closure to receive
non-hazardous wastes after the final
receipt of hazardous waste as a Class 2
modification, in accordance with the
recently finalized rule establishing three
classes of permit modifications •
(September 28,1988.53 PR 37012). -
Two commenters recommended that'
permit modifications to delay closure be
considered Class 3 modifications rather'
than Class 2 modifications. One
commenter felt that the time allowed for
submitting the request to modify the
permit under § 264.113(d), or for
submitting^ part B or revised part B
application under 1285.113(d). is
unrealistically short considering the
amount of information to be included in
the requests. Another commenter
suggested that specific criteria be
identified as necessary to support a
Regional Administrator's denial of a
request to delay closure. Another
commenter recommended that time be
allowed for a facility to construct an
alternative waste management unit for
closure if the Regional Administrator
denies the request to delay closure.
Finally, one commenter suggested that
an owner or operator be allowed to
receive non-hazardous waste during the
time the permit modification is being
reviewed.
The Agency has taken these
comments into consideration but has
decided to promulgate the final rule as
proposed. Class 2 modifications are
defined as modifications in the types
and quantities of waste managed under
the facility permit including
authorizations to treat or store new
wastes that do not require different unit
design or management practices (53 FR
37915). Delaying closure to receive only
non-hazardous waste does not change
the basic purpose and use of the unit but
only alters the type of waste being
managed (wastes will continue to be
regulated under the subtitle C permitting
requirements). Furthermore, the Class 2
modification allows the Agency to
require that the major permit
modification procedures be followed if
the proposed change raises significant
interest or concern (40 CFR 270.42(b)).
Therefore, the Agency believes that
classification of the permit modification
as Class 2 is adequate. It should be
noted that in those States which have
not adopted the new permit
modification classification rule, a permit
modification to delay closure will be
considered a major modification.
The Agency also believes that the
amount of time allowed in the proposed
rule ({ 2M.U3(d)(3)) for submitting
permit modification information is
adequate. These timeframes are
consistent with the current timeframes
for submitting permitting and closure
plan information (40 CFR 270.42(b)). In
addition, moat changes that must be
made to the permit or permit application
an not substantial and therefore should
not require additional time to complete.
The Agency does not believe that
specific criteria need to be established
to support the Regional Administrator's
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33392 Federal Register / VoL 54 No. 155 / Monday. August 14. 19» / Rotes end Regulation*
decision to deny a request to delay
damn. Therefore, no changes to the
final rule have bean HH»A»- AS discussed
in .Motion IVJLZxl of today's preamble.
the requirement to close In accordance
with an approved closure plan is subject
to judicial review. Additionally.
facilities must submit an amended part
B application or a request for a permit
modification. Hie denial of either is
subject to the administrative
requirements provided for in 40 CFR
Part 124. Finally, for interim status
facilities, the extension of the closure
period is generally processed together
with closure plan approval. The closure
plan approval process includes an
opportunity for comment by the owner
or operator (see 9 264.112(a)]. Such
existing procedures provide the owner
or operator with ample opportunity to
review the basis for the denial decision.
Furthermore, the Agency does not
believe that additional time should be
allowed to construct alternative units to
handle wastes if the request to delay
closure is denied. [The delay of closure
option is an exception to general closure
' requirements and extends closure
timeframes only temporarily.) Owners
and operators of facilities will have had
adequate notice that their units will
have to close, and therefore will have
had time to plan alternatives in the
event that the permit modification is
denied.
Finally, the Agency wishes to clarify
that non-hazardous waste may be
received during the time when a
permitted facility's permit modification
to delay closure is under review. As
discussed in the preamble to the
proposed rule, interim status units
would be allowed to receive non-
hazardoas waste while the Agency
reviewed the part B application (with
certain exceptions for surface
impoundments aa discussed in section
IV AZc). Similarly, it was intended that
permitted facilities that are awaiting; th*
Agency's decision on their permit
modification to delay closure be •H«»i»ti
to receive non-hazardous waste during
this period of Agency review. In either
case, faculties must continue to comply
with all applicable subtitle C
requirements to encore continued
protection of *"""•« health •**«* the
environment
D. Conforming Chongft
The Agency proposed conforming
changes to the interim status standards
in part 285 that parallel the technical
requirements in part 264 for delaying
closure to receive only non-hazardous
waste. The interim status requirements
are substantially the same as those for
permitted units. These requirements
have been pn»u««l incorporating
nhannoa naralLJ Ifl thdSA fijlfllllfff
above for permitted units. This section
addresses only those comments or
regulatory changes unique to the part
285 requirements.
1. Conforming Changes to Part 285
Interim Status Requirements
The sections below describe
comments received on the proposed
conforming changes to part 285 interim
status requirements, including eligibility
of interim status facilities to delay
dosure, ground-water monitoring and
corrective action implementation, and
eligibility to delay closure of units •
receiving interim status as a result of
new regulations.
a. Eligibility. The proposed rule would
allow owners or operators of interim
status facilities to remain open to
receive nonhazardons waste if they
meet the requirements of 1285.113 (d)
and (e), if applicable, induding '
submission of a part B application or a
revised part B application. Part B
applications are required because the
Agency does not believe that a facility
should be allowed to remain open to
receive non-hazardous waste while
remaining indefinitely in interim status.
Daring the period prior to receipt of the
permit the owner or operator mast
comply with applicable requirements in
i 265.113 (d) and (e). if applicable, and
continue to conduct operations in
accordance with all other applicable
pert 285 requirements. The Agency
believes that the criteria in 1265.113(4).
combined with the technical and any
other requirements of part 285 for
delaying dosure. an sufficient to
preclude any increased threat to human
health and the environment daring the
permit review period* If the permit is
denied, the pert 265 dosure
requirements become effective
immediately.
One commenter requested
darification of whether interim status
surface impoundments that had chosen
to close (in lieu of obtaining a permit)
would be allowed to delay dosure. The
Agency would allow such units to delay
dosure if they meet the criteria of
II 26S.113(dJ and 26S.113(e). if
applicable, induding submission of a
part B permit application. If the unit is in
the process of dosing, Agency approval
to delay dosun would depend on how
far along the unit is in the closure
process. Since many of the closure
activities (e.g- the removal of waste) an
compatible with the requirements for
delaying closure, requests to delay
closure could, in some cases be
considered. If the surface
has certified clean closure, and its
interim status is subsequently .
terminated, it could receive non-
bazardods waste as a Subtitle O facility
following dosure and would not need to
avail itself of today's rule. However, if it
is to be dosed with hazardous waste in
place and the unit has already been
capped, the cap may only be disturbed
under the conditions specified in
9 9 264.117(0) and 285.117(c). This
provision requires that the Regional
Administrator find that the disturbance:
(1) Is necessary to the proposed use of
the property and will not increase the
potential hazard to human health or the
environment; or (2) is necessary to
reduce a threat to human health and the
environment
b. Ground-Water Monitoring and
Corrective Action. The Agency
proposed that the corrective action
requirements in f 265.113(e) applicable
to non-retrofitted surface impoundments
be triggered by a statistically significant
increase in hazardous constituents over
background levels (or decrease in pH
levels) for interim status facilities that
have not yet established a GWPS. Units
not in compliance with tiner and
leachate collection system requirements
are subject to accelerated corrective
action requirements consistent with
1264*113(e)(6) requirements.
Several commenters objected to the
provisions allowing interim status units
to delay closure. These commenters
argued that interim status ground-water
monitoring requirements do not
suffidently protect human health and
the environment because they do not
accurately detect hazardous waste
releases. These commenters also argued
that corrective action provisions for
interim status facilities under delayed
dosure are inadequately protective of
human health and the environment
because there is no regulatory authority
to trigger corrective action.
The Agency believes that the
requirements of 1265.113 (d) and (e) in
combination with the other applicable
part 285 requirements an adequately
protective. These provisions require that
units in interim status must apply for a
permit as a condition of delaying
dosure. and that upon permit issuance
these units wfll be subject to the stricter
part 264 requirements for ground-water
monitoring. Additionally, owners or
operators of surface impoundments that
do not meet MTR liner and leachate
collection system requirements who
wish to delay dosure must comply with
corrective action requirements specified
in 126U13(e) even in the absence of a
RCRA13008(h) order. Further.
contingent corrective measures plans
-------
Federal Register / Vol. 54. No. 155 / Monday. August 14. 1989 / Rules and Regulations 33393
can be incorporated into subsequent
section 3008(h) orders if necessary.
c. Applicability to New Interim Status
Units. The Agency proposed that the .
option to delay closure be made
available to owners or operators of units
that receive interim status as a result of
new regulations. The Agency indicated
in the preamble to the proposed rule that
proposed deadlines for submitting
revised part B applications would be
adequate because these owners or
operators would be given sufficient
notice that they will become subject to
Subtitle C requirements.
One commenter recommended that
the delay of closure option be available
to owners or operators of units that have
become classified as hazardous waste
management units as a result of
regulatory interpretation by the EPA. As
discussed above, this is allowed if the
unit meets the requirements of 5 265.113
(d) and (e). The rule has therefore been
finalized as proposed.
V. State Authorization
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under RCRA
sections 3008, 7003. and 3013, although
authorized States have primary
enforcement responsibility.
Prior to HSWA. a State with final
authorization administered its
hazardous waste program entirely in
lieu of EPA administering the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities in a State
where the State was authorized to
permit. When new, more stringent
Federal requirements were promulgated
or enacted, the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State adopted
the requirements as State law.
In contrast, under section 3008(g) of
RCRA, 42 U.S.C. 692B(g). new
requirements and prohibitions Imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in non-authorized States. EPA is'
directed to carry out those requirements
and prohibitions in authorized States.
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements and prohibitions apply in
authorized States in the interim.
B. Effect of Rule on State Authorizations
Today's rule promulgates'standards
that are not effective in authorized
States since the requirements are not
imposed pursuant to HSWA. Thus, the
requirements will be applicable only in
those States that do not have interim or
final authorization. In authorized States,
the requirements will not be applicable
until the State revises its program to
adopt equivalent requirements under
State law.
In general, 40 CFR 271.21 (e) (2)
requires States that have final
authorization to modify their programs
to reflect Federal program changes and
to subsequently submit the
modifications to EPA for approval. It
should be noted, however, that
authorized States are only required to
modify their programs when EPA
promulgates Federal standards that are
more stringent or broader in scope than
the existing Federal standards. Section
3009 of RCRA allows States to impose
standards more stringent than those in
the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal
program, States are not required to
modify their programs (See 40 CFR
271.1(1)). The standards promulgated
today are less stringent than or reduce
the scope of the existing Federal
requirements. Therefore, authorized
States are not required to modify their
programs to adopt requirements
equivalent or substantially equivalent to
the provisions promulgated above. If the
State does modify its program. EPA
must approve the modification for the
State requirements to become subtitle C
RCRA requirements. States should
follow the deadlines of 40 CFR
271.21(e){2) if they desire to adopt this
less stringent requirement
VI. Executive Order 12291
This regulation was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291. The regulatory amendments being
promulgated today are designed to
reduce the burden of the RCRA
regulations and are not likely to result in
a significant increase in costs. Thus, this
final rule is not a major rule; no
Regulatory Impact Analysis has been
prepared.
VIL Paperwork Reduction Act
Under the Paperwork Reduction Act
of I960.44 U.S.C. 3501 et seq.. EPA must
estimate the paperwork burden created
by any information collection request
contained in the proposed or final rule.
The information collection
requirements in this final rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and
have been assigned OMB control
Number 2050-0008. Reporting and
recordkeeping burden on the public for
this collection is estimated at 320 hours
for the 4 respondents, with an average
of 80 hours per response. These burden
estimates include all aspects of the
collection effort and may include time
for reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, completing
and reviewing the collection of
information, etc.
If you wish to submit comments
regarding any aspect of this collection of
information, including suggestions for
reducing the burden, or if you would like
a copy of the information collection
request (please reference ICR #0007),
contact Rick Westlund, Information
Policy Brunch, PM-223, U.S.
Environmental Protection Agency, 401M
Street, SW., Washington, DC. 20460
(202-382-2745); and Marcus Peacock,
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Washington DC. 20503.
VIII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 801 et seq.), Federal
agencies must, in developing
regulations, analyze their impact on
small entities (small businesses, small
government jurisdictions, and small
organizations). The amendments
promulgated today are more flexible
than the existing regulations and thus
result in no additional costs. The
viability of small entities, thereby,
should not be adversely affected.
Accordingly, I certify that this
regulation will not have a significant
impact on a substantial number of small
entities.
Dated: August 2.1989.
William K. ReiUy,
Administrator.
For the reasons set out in the
preamble, it is proposed that 40 CFR,
chapter I be amended as follows:
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264
continues to read as follows:
Autboiity: 42 U.S.C. 6905. Oul2(u). C924. and
6SJ25.
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33394 Fadand Register / VoL 84. No. 155 / Monday. August 14. 1969 / Rules and Regulations
2. In 1284.13 is amended by revising
paragraphs (a)(H (a)(3)(i). and (b)(D to
read as follows:
1264.13 Qt
WStl
•lyste
(a)(l) Before an owner or operator
treats, stores, or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 264.113(4).
he must obtain a detailed chemical and
physical analysis of a representative
sample of the wastes.
• • • • *
(3) The analysis must be repeated as
necessary to ensure that it is accurate
and up to date. At a minimum, the
analysts must be repeated:
(i) When the owner or operator is
notified, or has reason to believe, that
the process or operation generating the
hazardous wastes, or non-hazardous
wastes if applicable under { 264.113(d),
has changed; and
*****
(b) • • •
(1) The parameters for which each
hazardous waste, or non-hazardous
waste if applicable under i 2S4.113(d).
will be analyzed and the rationale for
the selection of these parameters (i.e.,
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
*****
3. In { 264.112, is amended by revising
paragraph (d)(2) to read as follows:
S 264.112 Closure plan; amendment of
plan.
*****
(d) * * *
(2} The date when he "expects to
begin closure" must be either.
(i) No later than 30 days after the date
on which any hazardous waste
management unit receives the known
final volume of hazardous wastes, or if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, no
later than one year after the date on
which the unit received die meat recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate to the
Regional Administrator that the
hazardous waste management unit or
facility has the capacity to receive
additional hazardous wastes and he has
taken all steps to prevent threats to
human health and the environment.
including compliance with all applicable
permit requirements, the Regional
Administrator may approve an
extension to this one-year limit or
(ii) For units meeting the requirements
of I284.113(d). no later than 30 days
after the date on which the hazardous
waste management unit receives the
known final volume of non-hazardous
wastes, or if there is a reasonable
possibility that the hazardous waste
management unit will receive additional
non-hazardous wastes, no later than one
year after the date on which the unit
received the most recent volume of non-
hazardous wastes. If the owner or
operator can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous wastes and he has taken, and
will continue to take, all steps to prevent
threats to human health and the
environment including compliance with
all applicable permit requirements, the
Regional Administrator may approve an
extension to' this one-year limit
*****
4. Section 264.113 is amended by
revising paragraphs (a) introductory
text (a)(l)(ii)(A), (b) introductory text
(b)(l)(ii)(A), and (c) and adding
paragraphs (d) and (e) to read as
follows:
1264.113 Closure; time aflowed for
closure.
(a) Within 90 days after receiving die
final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all
applicable requirements in paragraphs
(d) and (e) of this section, at a
hazardous waste management unit or
facility, the owner or operator must
treat remove from the unit or facility, or
dispose of on-site. all hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator complies with all applicable
requirements for requesting a
modification to the permit •*»«i
demonstrates that
(!)
(ii)
i)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the owner or
operator complies with paragraphs (d)
and (e) of this section; and
• • • * *
(b) The owner or operator must
complete partial and final closure
activities in accordance with the
approved closure plan and within 180
days after receiving the final volume of
hazardous wastes, or the final volume of
non-hazardous wastes if the owner or
operator complies with all applicable
requirements in paragraphs (d) and (e)
of this section, at the hazardous waste
management unit or facility. The
Regional Administrator may approve an
extension to the closure period if the
owner or operator complies with all
applicable requirements for requesting a
modification to the permit and
demonstrates that
. m • • *
' (ii)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity 'to receive
non-hazardous wastes if the owner or
operator complies with paragraphs (d)
and (e) of this section; and
• * * * *
(c) The demonstrations referred to in
paragraphs (a)(l) and (b](l) of this
section must be made as follows:
(1) The demonstrations in paragraph
(a)(l) of this section must be made at
least 30 days prior to the expiration of
the 90-day period in paragraph (a) of
this section; and
(2) The demonstration in paragraph
(b)(l) of this section must be made at
least 30 days prior to the expiration of
the 180-day period in paragraph (b) of
this section, unless the owner or
operator is otherwise subject to the
deadlines in paragraph (d) of this
section.
(d) The Regional Administrator may
allow an owner or operator to receive
only non-hazardous wastes in a landfill.
land treatment or surface impoundment
unit after the final receipt of hazardous
wastes at that unit if:
(1) The owner or operator requests a
permit modification in compliance with
all applicable requirements in parts 270
and 124 of this title and in the permit
modification request demonstrates that:
(i) The unit has the existing design
capacity as indicated on the part A
application to receive non-hazardous
wastes: and '
(ii) Then is a reasonable likelihood
that the owner or operator or another
person will receive non-hazardous
wastes in the unit within one year after
the final receipt of hazardous wastes:
and
(iii) The non-hazardous wastes will
not be incompatible with any remaining
wastes in the unit or with the facility
design and operating requirements of
the unit or faculty under this part; and
(iv) Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and
(v) The owner or operator is operating
and will continue to operate in
compliance with all applicable permit
requirements; and
(2) The request to modify the permit
includes an amended waste analysis
plan, ground-water monitoring and
response program, human exposure
assessment required under RCRA
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Federal Register / VoL 54, No. 155 / Monday, August 14. 1880 / Rules and Regulations 33395
section 3019. and closure and post-
ctosnre plans, and updated cost
•stimates and demonstrations of
•nantial assurance for closure and post-
.losure care as necessary and
appropriate, to reflect any changes due
to die presence of hazardous
constituents in die non-hazardous
wastes, and changes in closure
activities, including die expected year of
closure if applicable under
§ 264J12(bj(7). as a result of die receipt
of non-hazardous wastes following die
final receipt of hazardous wastes: and
(3) The request to modify die permit •
includes revisions, as necessary and
appropriate, to affected conditions of die
permit to account for die receipt of non-
hazardous wastes following receipt of
the final volume of hazardous wastes;
and
(4) The request to modify die permit
and die demonstrations referred to in
paragraphs (d)(l) and (d)(2) of diis
section are submitted to die Regional
Administrator no later than 120 days
prior to die date on which die owner or
operator of die facility receives die
known final volume of hazardous
wastes at die unit, or no later than 90
days after die effective date of diis rule
in the state in which die unit is located.
whichever is later.
(e) In addition to me requirements hi
?ragraph (d) of this section, an owner
operator of a hazardous waste
jrface impoundment mat is not in
compliance widi die liner and leachate
collection system requirements hi 42
U.S.C. 3004(o)(l) and 3005(j)(l) or 42
U.S.C. 3004(0) (2) or (3) or 30050) (2). (3).
(4) or (13) must:
(1) Submit widi me request to modify
the permit
(i) A contingent corrective measures
plan, unless a corrective action plan has
already been submitted under i 2644Kk
and
(ii) A plan for removing hazardous
wastes in compliance widi paragraph
(e)(2) of diis section: and
(2) Remove all hazardous wastes from
the unit by removing aD hazardous
liquids, and removing all hazardous
sludges to die extent practicable widtout
impairing die integrity of the hnerfs). if
any. . -
(3) Removal of hiiardous wastes moat
be completed no later dian 90 days after -
the final receipt of hazardous wastes.
The Regional Administrator may
approve an extension to diis deadline if
the owner or operator demonstrates diat
the removal of hazardous wastes will of
necessity, take longer man the allotted
oeriod to complete and diat an
tension will not DOM a direst to
nan baaldi and die environment
(4) If a release that to a statistically
significant increase (or decrease in the
case of pH) over background values for
detection monitoring parameters or
constituents specified m the permit or
that exceeds die-facility's ground-water
protection, standard at the point of .
compliance, if applicable, is detected in
accordance with the requirements hi
subpart F of this part, the owner or
operator of the unit;
(i) Must implement corrective
measures in accordance with the
approved contingent corrective
measures plan required by paragraph
(e)(l) of this section no later than one
year after detection of the release, or
approval of the contingent corrective
measures plan, whichever is later.
(II) May continue to receive wastes at
the unit following detection of the
release only if the approved corrective
measures plan includes a demonstration
that continued receipt of wastes wilt not
impede corrective action: and
(ifi) May be required by the Regional
Administrator to implement corrective
measures in less than one year or to
cease the receipt of wastes until
corrective measures have been
implemented if necessary to protect
human health *""* the environment.
(5) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data, and evaluate the effect
of die continued receipt of non-
hazardous wastes on die effectiveness
of die corrective action.
(d) The Regional Administrator may
require die owner or operator to
commence closure of die unit if die
owner or operator fails to implement
corrective action measures in
accordance with die approved
contingent corrective measures plan
widiin one year as required in
one year i
iphfe)(4)
paragraph (e)(4) of tius section, or fails
to make substantial progress hi
atiHnfl corrective action and
die facility's ground-water
prelection standard or background
levels if die facility has not yet
established a ground-water protection
standard.
ff the owner or operator fails to •
ement
rrective measures as
this section and provide a detailed
statement of reasons for this
determination, and
(ii) Provide the owner or operator and
die public, through a newspaper notice,
-fire opportunity to submit written
comments on die decision no later than
20 days after die date of die notice.
(iii) If die Regional Administrator
receives no written comments, die
decision will become final five days
after die dose of die comment period.
The Regional Administrator will notify
die owner or operator that die decision
is final, and that a revised closure plan.
if necessary, must be submitted widiin
15 days of die final notice and that
closure must begin in accordance with
die deadlines in paragraphs (a) and (b)
of this section.
(iv) If die Regional Administrator
receives written comments on the
decision, he shall make a final decision
widiin 30 days after me end of die
comment period, and provide dw owner
or operator in writing and die public
through a newspaper notice, a detailed
statement of reasons for die final
decision. If the Regional Administrator
determines tittt substantial progress has
not been made, closure mast be initiated
in accordance widi die deadlines tat
paragraphs (a) and (b) of diis section.
(v) The final determinations made by
die Regional Administrator under
paragraphs (e)p) (ni) and (hr) of diis
section are not subject to administrative
appeal.
4a- A parenmetical is added at die
end of die last section in Subpart G of
Part 264 to read as follows:
(The information onBscUon nqutewnents ia
Sabpart C era approved by the Office of
required in paragraph (e](4) of diis
section, or if die Regional Administrator
determines diat substantial progress has
not bean-made pursuant to paragraph
(e)(8) of this section he shall:
(i) Notify die owner or operator ia ' •
writing that tin owner or operator must
begin closure in accordance wim the *
deadlines to paragraphs (a) and (b) of •
ontrol
ft. Section 264.142 is amended by
revising paragraphs UM3) and (a)(4) to
read as follows:
Coat
for closure.
12*4.142
(a) • * •
(3) The closure cost estimate may not
incorporate any salvage value diat may
be realized widi die sale of hazardous
wastes, or non-hazardous wastes if
applicable under 1264.113(d). facility
structures or equipment land, or odier
assets associated widi the facility at dw
time of partial or final closure.
(4) The owner or operator may not
incorporate e zero cost for hazardous
wastes, or non-hazardous wastes if
applicable under I 264-113(4), that might
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33396 Federal Register / VoL 54. No. 155 / Monday. August 14. 1989 / Ralea and Regulations
PART MS—INTERIM STATUS
STANDARDS FOR OWNERS AND -
OPERATORS OP HAZARDOUS WASTE
TREATMENT. STORAGE, AND
DISPOSAL FACILITIES
8. The authority citation for part 285
continues to read as follow*:
Authority: 42 US.C 8805. W12(«), 0024.
0825. and 8935.
7. Section 285.13 is amended by
revising paragraphs (a)(l), (a)(3)(i), and
(b)(l) to read as follows:
S 288.13 General waste analysis.
(a)(l) Before an owner or operator
treats, stores or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 285.113(d).
he must obtain a detailed chemical and
physical analysis of a representative
sample of the wastes.
* • • • •
(3) The analysis must be repeated as
necessary to ensure that it is accurate
and up to date. At a minimum, the
analysis must be repeated:
(i) When the owner or operator is
notified, or has reason to believe, that
the process or operation generating the
hazardous wastes or non-hazardous
wastes, if applicable, under S285.113(d)
has changed: and
• • • * *
(b)
(1) The parameters for which each
hazardous waste, or non-hazardous
waste if applicable under 8285.113(d),
will be analyzed and the rationale for
the selection of these parameters (i.e*
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
• * • * * •
8. Section 285.112 is amended by -
revising paragraph (d)(2) to read as
follows:
§288.112 Closure pfcn;i
ntof
hazardous waste management unit or
facility has the capacity to receive
additional hazardous wastes and he has
taken, and will continue to take, all
steps to-prevent threats to human health
and the environment including
compliance with all applicable interim ..
status requirements, the Regional
Administrator may approve an
extension to this one-year limit; or
(ii) For units meeting the requirements
of S 265.113(d), no later than 30 days
after the date on which the hazardous
waste management unit receives the
known final volume of non-hazardous
wastes, or if there is a reasonable
possibility that the hazardous waste
management unit will receive additional
non-hazardous wastes, no later than one
year after the date on which the unit
received the most recent volume of non-
hazardous wastes. If the owner or
operator can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous wastes and he has taken, and
will continue to take, all steps to prevent
threats to human health and the
environment including compliance with
all applicable interim status
requirements, the Regional
Administrator may approve an
extension to this one-year limit
• • * * •
9. Section 285.113 is amended by
revising paragraphs (a) introductory
text (a)fl)(ii)(A). (b) introductory text
(b)(l)(ii)(A). and (c) and adding
paragraphs (d) and (e) to read as
follows:
(d) ' * •
(2) The date when he "expects to
begin closure" must be either
(i) Within 30 days after die date on
which any hazardous waste
management unit receives the known • •
final volume of hazardous wastes or. if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, no
later than one year after the date on
which the unit received the most recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate to the
Regional Administrator that the
§288.113 Closure; time slowed for
closure.
(a) Within 90 days after receiving the
- final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all
applicable requirements in paragraphs
(d) and (e) of this section, at a
hazardous waste management unit or
facility, or within 90 days after approval
of the closure plan, whichever is later.
the owner or operator mutt treat
remove from the unit or facility, or
dispose of on-site. all hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator demonstrates that
(I)"*
(ii)(A) The hazardous waste . ..
management unit or facility has the ..
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the facility
owner or operator complies with . .
paragraphs (d) and (e) of this section;
and
• •*.••
(b) The owner or operator must
complete partial and final closure
activities in accordance with the •
approved closure plan and within 180
days after receiving the final volume of
hazardous wastes, or the final volume of
non-hazardous wastes if the owner or
operator complies with all applicable
requirements in paragraphs (d) and (e)
of this section, at the hazardous waste
management unit or facility, or 180 days
after approval of the closure plan, if that
is later. The Regional Administrator may
approve an extension to the closure
period if the owner or operator
demonstrates that:
W *
(ii)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the facility
owner or operator complies with
paragraphs (d) and (e) of this section;
and
« * « * •
(c) The demonstrations referred to in
paragraphs (a)(l) and (b)(l) of this
section must be made as follows:
(1) The demonstrations in paragraph
(a)(l) of this section must be made at
least 30 days prior to the expiration of
the 90-day period in paragraph (a) of
this section; and
(2) The demonstration in paragraph
(b)(l) of this section must be made at
least 30 days prior to the expiration of
the 180-day period in paragraph (b) of
this section, unless the owner or
operator is otherwise subject to the
deadlines in paragraph (d) of this
section.
(d) The Regional Administrator may
allow an owner or operator to receive
non-hazardous wastes in a landfill, land
treatment or surface impoundment unit
after the final receipt of hazardous
wastes at that unit if:
(1) The owner or operator submits an
amended part B application, or a part B
application, if not previously required.
and demonstrates that:
(i) The unit has the existing design
capacity as indicated on the part A
application to receive non-hazardous
. wastes; and
(ii) There i* • reasonable likelihood
that the owner or operator or another
person will receive non-hazardous
wastes in the unit within one year after
the final receipt of hazardous wastes:
'and
(Hi) The non-hazardous wastes will
not be incompatible with any remaining
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Federal Register / Vol. 54. No. 155 / Monday, August 14. 1989 / Rules and Regulations 33397
wastes in the unit or with the facility
design and operating requirements of
the unit or facility under this part; and
(iv) Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and
(v) The owner or operator is operating
and will continue to operate in
compliance with all applicable interim
status requirements; and
(2) The part B application includes an
amended waste analysis plan, ground-
water monitoring and response program,
human exposure assessment required
under RCRA section 3019, and closure
and post-closure plans, and updated
cost estimates and demonstrations of
financial assurance for closure and post-
closure care as necessary and
appropriate to reflect any changes due
to the presence of hazardous
constituents in the non-hazardous
wastes, and changes in closure
activities, including the expected year of
closure if applicable under
5 265.112(bj(7), as a result of the receipt
of non-hazardous wastes following the
final receipt of hazardous wastes; and
(3) The part B application is amended,
as necessary and appropriate, to
account for the receipt of non-hazardous
wastes following receipt of the final
volume of hazardous wastes; and
(4) The part B application and the
demonstrations referred to in
paragraphs (d)(l) and (d)(2) of this
section are submitted to the Regional
Administrator no later than 180 days
prior to the date on which the owner or
operator of the facility receives the
known final volume of hazardous
wastes, or no later than 90 days after the
effective date of this rule in the state in
which the unit is located, whichever is
later.
(e) In addition to the requirements in
paragraph (d) of this section, an owner
or operator of a hazardous waste
surface impoundment that is not in
compliance with the liner and leachate
collection system requirements in 42
U.S.C. 3004(o)(l) and 3005()){1) or 42
U.S.C. 3004(o){2) or (3) or 3005(j) (2), (3),
(4) or (13) must:
(1) Submit with the part B application:
(i) A contingent corrective measures
plan; and
(ii) A plan for removing hazardous
wastes in compliance with paragraph
(e)(2) of this section: and
(2) Remove all hazardous wastes from
the unit by removing all hazardous
liquids and removing all hazardous
sludges to the extent practicable without
impairing the integrity of the linerfs), if
any.
(3) Removal of hazardous wastes must
be completed no later than 90 days after
the final receipt of hazardous wastes.
The Regional Administrator may
approve an extension to this deadline if
the owner or operator demonstrates that
the removal of hazardous wastes will, of
necessity, take longer than the allotted —
period to complete and that an
extension will not pose a threat to
human health and the environment.
' (4) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
over background levels is detected in
accordance with the requirements in
subpart F of this part, the owner or
operator of the unit:
(i) Must implement corrective
measures in accordance with the
approved contingent corrective
measures plan required by paragraph
(e)(l) of this section no later than one
year after detection of the release, or
approval of the contingent corrective
measures plan, whichever is later;
(ii) May receive wastes at the unit
following detection of the release only if
the approved corrective measures plan
includes a demonstration that continued
receipt of wastes will not impede
corrective action; and
(iii) May be required by the Regional
Administrator to implement corrective
measures in less than one year or to
cease receipt of wastes until corrective
measures have been implemented if
necessary to protect human health and
the environment.
(5) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data, and evaluate the effect
of the continued receipt of non-
hazardous wastes on the effectiveness
of the corrective action.
(6) The Regional Administrator may
require the owner or operator to
commence closure of the unit if the
owner or operator fails to implement
corrective action measures in
accordance with the approved
contingent corrective measures plan
within one year as required in
paragraph (e)(4) of this section, or fails
to make substantial progress in
implementing corrective action and
achieving the facility's background
levels.
(7) If the owner or operator fails to
implement corrective measures as
required in paragraph (e)(4) of this
section, or if the Regional Administrator
determines that substantial progress has
not been made pursuant to paragraph
(e)(6) of this section he shall:
(i) Notify the owner or operator in
writing that the owner or operator must
begin closure hi accordance with the
deadline in paragraphs (a) and (b) of
this section and provide a detailed
statement of reasons for this
determination, and
- (ii) Provide the owner or operator and
the public, through a newspaper notice,
the opportunity to submit written
comments on the decision no later than
20 days after the date of the notice.
(iii) If the Regional Administrator/
receives no written comments, the
decision will become final five days
after the close of the comment period.
The Regional Administrator will notify
the owner or operator that the decision
is final, and that a revised closure plan,
if necessary, must be submitted within
15 days of the final notice and that
closure must begin in accordance with
the deadlines in paragraphs (a) and (b)
of this section.
(iv) If the Regional Administrator
receives written comments on the
decision, he shall make a final decision
within 30 days after the end of the
comment period, and provide the owner
or operator in writing and the public
through a newspaper notice, a detailed
statement of reasons for the final
decision. If the Regional Administrator
determines that substantial progress has
not been made, closure must be initiated
in accordance with the deadlines in
paragraphs (a) and (b) of this section.
(v) The final determinations made by
the Regional Administrator under
paragraphs (e)(7) (iii) and (iv) of this
section are not subject to administrative
appeal.
9a. A parenthetical is added at the
end of the last section in subpart G of
Part 265 to read as follows:
(The information collection requirements in
Subpart C are approved by the Office of
Management and Budget under control
number 2050-0008)
10. In { 265.142 is amended by revising
paragraph (a)(3) and (a)(4) to read as
follows:
{265.142 Cost Mtlmat* lor closure.
(a) • * *
(3) The closure cost estimate may not
incorporate any salvage value that may
be realized with the sale of hazardous
wastes, or non-hazardous wastes if
applicable under § 265.113(d). facility
structures or equipment, land, or other
assets associated with the facility at the
time of partial or final closure.
(4) The owner or operator may not
incorporate a zero cost for hazardous
wastes, or non-hazardous wastes if
applicable under S 265.113(d), that might
have economic value.
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33398 Federal Register / Vol 54. No. 155 / Monday. August 14. 1999 / Rules and Regulations
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
11. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C. 0905,0912.0824.0023.
0827.0038. and 0074.
12. In 5 270.42. the list of permit
modifications in Appendix I is amended
by adding D.1.L to read as follows:
§27042 Permit modification at the
request of the permittee.
Appendix I to i 27O42—CtesaJfkatJon
of Permit Modifications
o. •
i. •
I . ExtoMton of *w ekwura ptriod to •Dow
• land*. Mfm Impoundment or lend
li«rtn«ni unH to r»c«*x» nuttmuntout
under 1 2*4.1 13 |d) and (•).
[FR Doc. 80-18498 Filed 8-11-68; 8:45 «m)
SUJNO COOt MW-40-M
-------
RCRA REVISION CHECKLIST 65
Mining Waste Exclusion I
54 FR 36592-36642 ,
September 1, 1989
(Non-HSWA Cluster VI)
This present checklist is titled "Mining Waste Exclusion I" Indicating that it is the first of two
amendments to this exclusion. The second amendment occurred at 55 FR 2322 on January 23,
1990 and is addressed by Revision Checklist 71 - Mining Waste Exclusion II. This latter checklist
will be made available through SPA 9.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF
HAZARDOUS WASTES
SUBPART A - GENERAL
add exception for
mixture of a
261.4(b)(7) waste and
a solid waste
exhibiting a Subpart C
characteristic unless
resultant mixture
meets certain charac-
teristic conditions;
mixture is hazardous
relative to the EP
toxlcitv characteristic
add "of this part" after
"Subpart D"; add
language excepting
mixtures of hazardous
waste and solid waste
excluded under
261.4(b)(7) and the
mixture no longer
exhibits hazardous
characteristics for
which the hazardous
waste was listed in
Subpart D
define beneficiatlon;
replace the last three
words of the para-
graph, "does not
include", with
"includes only"
261.3(a)(2)(l)
261.3(a)(2)fiin
261.4(b)(7)
September 1, 1989 - Page 1 of 2
-------
RCRA REVISION CHECKLIST 65: Mining Waste
Exclusion I (cont'd)
FEDERAL REQUIREMENT
solid wastes, from
ore and mineral
processing, that are re-
tained within exclusion
solid wastes from ore
and mineral process-
ing that are condi-
tionally retained within
the exclusion
FEDERAL RCRA CITATION
2B1.4
-------
54 FR 36592-36642
Revision Checklist 65
-------
Friday
September 1, 1989
Part III
Environmental
Protection Agency
40 CFR Part 261
Mining Waste Exclusion; Rnal Rule
-------
36592 Federal Register / Vol 54, No. 160 / Friday, September 1, 1989 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
t
40 CFR Part 261
[SWH-FRL-362S-*; EPA/OSW-FR-M-017]
RIN2050AC41
Mining Waste Exclusion
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: Section 300l(b)(3)(A)(ii) of
the Resource Conservation and
Recovery Act (RCRA) excludes "solid
waste from the extraction, beneficiation.
and processing of ores and minerals"
from regulation as hazardous waste
under subtitle C of RCRA, pending
completion of certain studies by EPA. In
1980, EPA interpreted this exclusion (on
a temporary basis) to encompass "solid
waste from the exploration, mining,
milling, smelting, and refining of ores
and minerals" (45 FR 76619, November
19.1980).
Today's final rule responds to a
federal Appeals Court directive to
narrow this exclusion as it applies to
mineral processing wastes. EPA
published a proposed rule articulating
the criteria by which mineral processing
wastes would be evaluated for
continued exclusion on October 20* 1988
(53 FR 41288) and a revised proposal on
April 17.1989 (54 FR 15318). In today's
final rule. EPA provide* final criteria
that have been modified in response to
public comment and finalizes the BeviO
status of nine mineral processing waste
streams that were proposed far either
retention within or removal from the
exclusion in the April notice. In
addition, the Agency has modified the
list of mineral processing wastes
proposed for conditional retention in
April based upon the revised criteria
and information submitted In public
comment. Ail other mineral processing
wastes that have not been listed for
conditional retention will be
permanently removed from the Bevill
exclusion as of the effective date of this
rule.
The Agency will apply the criteria
described in this rule to the
conditionally retained wastes and on
that basis propose either to remove
them from or retain them in the Bevill
exclusion by September 15.1989. Final
Agency action on the scope of the Bevill
exclusion for mineral processing wastes
will occur by January 15,1990.
DATES: Effective Date: March 1,1990.
Not later than November 30,1969. all
persons who generate, transport, treat,
store, or dispose of wastes removed
from temporary exclusion by thi* rule
and which are characteristically
hazardous under 40 CFR part 201.
subpart C, will be required to notify
either EPA or an authorized State of
these activities pursuant to section 3010
of RCRA.
See sections VI and Vn of the
preamble below for additional dates and
details.
POM FURTHER INFORMATION CONTACT:
RCRA/Superfund Hotline at (800) 424-
9346 or (202) 382-3000 or for technical
information contact Dan Derides. US.
Environmental Protection Agency. 401M
Street. SW., Washington. DC 20460,
(202)382-3608.
SUPPLEMENTARY INFORMATION:
Table of Content*
L Introduction
A. History
B. Overview of Today's Rule
C Future Activities
0. Analysis of and Response to Public
Comments on the 10/20/88 and 4/17/gS
Proposed Rules
A. EPA's General Approach
I. EPA's Response to Statutory aad Judicial
Directives
2, Status of Furore Waste Stream*
3. Retroactive Application of Subtitle C
Requirements
4. Scope of Today's Rule
B. The Low Hazard Criterion
I. Appropriateness of Establishing a
Hazard Criterion
2. Overall Approach
XpHTest
4» Ignitability and Reactivity Tests
5. Mobility and Toxidty Test
ft. Constituents for Testing
7. Addmoaal Standards
& Application of Tests
ft Types of Information
C. The High Volume Criterion
1. General Comments
2. Separate Volume Criteria for Liquid aad
Non-Liquid Waste Streams
3. Degree of Aggregation of Waste Slnans
4. Alternative Components/Application of
the High Volume Criterion
8. Type of Waste* Used as the Baeieoi
Comparison
a. Actual Threshold Value
7. Application of the Cut-off Value, to
Waste Streams
D. The Definition of Mineral Processing
1. Excluded Bevill Wastes Must be Solid
Wastes as Defined by EPA
2. Excluded Solid Wastes Must be>
Uniquely Associated with Mineral
Industry Operations
3. frrclmtod Solid Wastes Must Originate
from Mineral Processing Operations a*
Defined by Five Specific Criteria
4. Residuals from Treatment of Excluded
Mineral Processing Waste* are Eligible
for Exclusion Provided that they Meet
the High Volume and Low Haznd
Criteria
5. The Processing Definition Could be
Narrowed by Adding a Co-Location
Requirement
E. Related RCRA Issue*
1. Applicability of the Mixture Rule
'2. Applicability of the Derived-Front Rule
3. Effect* of the Land Disposal Restrictions
4. RCRA Section 3004(x)
F. Administrative Issues
1. Subtitle C end Wastes Withdrawn from
the Bevill Exdusion
2. Opportunities for Public Comment
X Executive Order 12291 Analysis
4. Regulatory Flexibility Analysis
G. Comments Addressing the Nine Wastes
for which Final Bevill Status is
Established by Today's Rule
1. Slag from Primary Copper Processing
2. Slag from Primary Lead Processing
X Red and Brown Muds from Primary
Bauxite Processing
4. Phoiphogypsum from Phosphoric Add
Production
X Slag from Elemental Phosphorus
Production
B. Furnace Scrubber Slowdown from
Elemental Phosphorus Production
7. Add Plant and Scrubber Slowdown from
Primary Copper Processing
8. Add Plant Slowdown from Primary Lead
Processing
9. Air Pollution Control Scrubber
Slowdown from Primary Tin Processing
ID. Final Criteria for Defining BeviU Mineral
Processing Wastes
A. Definition of Mineral Processing Waste*
& The High Volume Criterion
C The Low Hazard Criterion
1. The Toxidty and Mobility Test
2. The pH Test
IV. Final Bevill Status of Selected Mineral
PrecmiiM WsUtQa)
V. Schedule for Final Resolution of Bevill
Status for All Remaining Candidate
Bevill Mineral Processing Wastes
VL Regulatory Implementation and Effective
Date* of the Final Rule
A. Section 3010 Notification
B. Compliance Date*
1. Interim Status in Unauthorized State*
2. Interim Status in Authorized States
VIL Effect on State Authorizations
VOL Economic Impact Screening Analysis
Pursuant to Executive Order 12291
A. General Approach to Compliance Cost
Estimation
1. Processing Sector Identification
2. Waste Characterization
X Compliance Coat Estimation Methods
BL Aggregate and Sector Compliance Cost*
G» Economic Impact*
1. Impact* on Commodity Sectors
2. Effect* on Consumer Prices
X Foreign Trade Impact*
DC. Regulatory Flexibility Analysis
A. Definition of Affected Small Entities
B. Approach aad Data Sources
C Remits
List of Subjects in 40 CFR Part 281
L Introduction
A History
Section 3001(b)(3)(A)(U) of the
Resource Conservation and Recovery
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Federal Register / VoL 54, No. 189 / Friday. September 1, 1989 / Rules and Regulatioua 38S93
Act (RCRA) excludes "solid waste from
the extraction, benefidation and
processing of ores and minerals1' from
regulation as hazardous waste under
subtitle C of RCRA. pending completion
of certain studies by EPA. In 196% the .
Agency interpreted this exclusion (on a
temporary basis) to encompass all
"solid waste from the exploration.
mining, milling, smelting, and refining of
ores and minerals" (45 FR 76619,
November 19, 1980). In July, 1988. a
federal Court of Appeals
(Environmental Defense Fund v. EPA.
852 F.2d 1316 (D.C Or. 1988). cert
denied. 109 S. Ct 1120 (1989) ("EDF IT]]
found that this exclusion is based upon
the "special waste" concept first
proposed by EPA in 1978 (43 FR 58946)
and that
Congress intended the term "processing" in
the Bevill Amendment to include only those
wastes from processing ores or minerals that
meet the "special waste" concept, that Is
"high volume, low hazard" wastes. 852 FJZd
at 1328-2&
In compliance with this Court
decision, on October 20, 1988 EPA
published a proposal to further define
the scope of section 3001(b)(3)(A)(ii) of
RCRA. (See 53 FR 41288) In the October
20. 1988 proposal EPA presented a
criterion for defining mineral processing
wastes and a two-part criterion for
identifying which mineral processing
wastes are high volume; however, the
Agency proposed to defer judgment on
the hazard posed by high volume
mineral processing wastes until
preparation of a required Report to
Congress. The Agency also applied the
processing and volume criteria to its
available data on mineral processing
wastes, and identified 15 wastes which
it believed met the criteria, and which
the Agency therefore proposed to retain
within tiie exclusion and study for the
report to Congress!
1. Slag from primary coupei smelting
2. Process waatewatar from primary
copper smelting/refining
3. Slowdown from add plants at
primary copper
& Slag from prunary lead smiting
6, Slowdown front add plen^t at
7. Process wastewater from primary zinc
tt&0t
8. Red
refining
4. Bleed electrolyte fr
v. raospnogypsti
production
10. Slag from ele
production
im irom pooapnonc moa
unMitfll BhiMnhorua
11. Iron blast furnace slag
12. Air pollution control dust/sludge
from iron blast furnaces
13. Waste adds from titanium dioxide
production
14. Air pollution control dust from Kme
kilns
15. Slag from roasting/leachmg-af /
• chromite ore
Based on comments received on the
October 20.1988 NPRM and further
analysis, EPA dedded that significant
changes in the proposal were necessary
before a final rule establishing the
boundaries of the Bevill exclusion for
mineral processing wastes could be
promulgated. Accordingly, on April 17,
1989, the Agency published a revised
proposed role that contained a modified
high volume criterion, clarifications to
the definition of mineral processing, and
for the first time, an explidt low hazard
criterion. As stated in the April notice,
EPA believes that such a criterion is
required in order to identify those
mineral processing wastes that are
clearly not low hazard and. therefore,
not "special wastes" even if they are
high volume.
In the April NPRM. the Agency also
proposed to remove from the Bevill
exclusion all but 39 mineral processing
wastes, many of which were
"nominated" in public comment on the
October NPRM. Of these 39, six wastes
were believed at that time to satisfy aQ
of the "special waste" criteria described
in the proposal:
1. Slag from primary copper smelting
2. Slag from primary lead smelting
3. Red and brown muds from bauxite
refining
4. Phosphogypsum from phosphoric add
production
5. Slag from elemental phosphorus
production
6. Furnace scrubber blowdown from
elemental phosphorus production
The other 33 wastes were proposed to
be conditionally retained within the
exdusion. because they are mineral
processing wastes that the Agency
believed satisfied the volume criterion
articulated in the proposal but for which
the Agency did not have adequate data
to evaluate compliance with the •
proposal's new hazard criterion. Thus.
the following 33 wastes were fudged,
based in many cases upon information
submitted to public comment to have
generation rates that might exceed
504)00 metric tons per year per facility.
and therefore, be potentially eligible for
continued exdnslon tinder Bevilc
1. Barren filtrate from primary beryOinm
processing
2. Raffinate from primary beryBium
processing
3. Bertrandite thickener sludge from
primary beryllium processing
4. Process wastewater from primary
cerium processing -•
5. Ammonium nitrate process solution
• from primary lanthanide processing
8. Roast/leach ore residue from primary
chrome ore processing
7. Gasifier ash from coal gasification
8. Cooling tower blowdown from coal
gasification
9. Process wastewater from coal
gasification
10. Bleed electrolyte from primary
copper refining
11. Process wastewater from primary
copper smelting/refining
12. Slag tailings from primary copper
smelting
13. Calcium sulfate wastewater
treatment plant sludge from primary
copper smelting/refining
14. Furnace off-gas solids from
elemental phosphorus production
IS. Process wastewater from elemental
phosphorus production
18. Fluorogypsum from hydrofluoric add
production
17. Ah* pollution control dust/sludge
from iron blast furnaces
18. Iron blast furnace *l"g
19. Process wastewater from primary
lead smelting/refining
20. Ah* pollution control scrubber
wastewater from light weight
aggregate production
21. Wastewater treatment sludge/solid
from light weight aggregate production
22. Process wastewater from primary
magnesium processing by the
anhydrous process
23. Process wastewater from primary
selenium processing
24. Process wastewater from phosphoric
add production
25. Wastes from trona ore processing
2& Basic oxygen furnace slag from
w»fc™
wlproduc
tion
27. t^»«* liquor from primary titanium
processing
28. Sulfate processing waste adds from
titanium dioxide production
29. Sulfate processing waste solids from
titanium dioxide production
30. Chloride processing waste adds
from titanium and titanium dioxide
production
31. Chloride processing waste solids
from titanium and titanium dioxide
32. Blowdown from add plants at
primary line smelters
S3. Process wastewater from primary
from mineral
AD other waste st
piorsiilng were proposed to be
removed from the exclusion. Most of the
T*mm<«infl streams would be low _
volume; three *>
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36594 Federal Register / Vol. 54. No. 160 / Friday, September 1, 1989 / Rules and Regulations
hazard: Acid plant/scrubber blowdown
from the primary copper, lead, and tin '
sector*.
Finally, the April notice responded to
a number of ancillary issues raised in
public comment on the October 20,1988
NPRM. The preamble to the notice
presented a summary of these comments
and preliminary Agency responses to
the questions and issues raised therein.
Responses to additional comments
received on issues addressed in the
April NPRM may be found in section D
below or in the Supplemental Response
to Comments, which may be found in
the docket supporting today's rule.
A complete chronology of the special
wastes concept the Bevill Amendment,
end EPA's activities to implement the
Bevill Amendment is also presented in
the "background" section of the
preamble to the April NPRM [53 FR
15318-22).
B. Overview of Today's Rule
Today's rule establishes the final
criteria that will be used to define
Bevill-excluded mineral processing
wastes. This final rule completes the
first stage of rulemaking regarding the
Bevill status of mineral processing
wastes. In evaluating the components of
this rule, the Agency has considered
information presented in public
comment on the October 1988 and April
1989 proposals, and accordingly, has
modified the criteria, where appropriate.
These criteria consist of a revised and
clarified definition of mineral
processing, a modified volume criterion
that consists of separate volume cut-offs
for solid/sludge and liquid waste
streams, and a refined low hazard
criterion. Each will be discussed briefly
in turn. More detailed descriptions an
presented in section in of this preamble.
The definition of mineral processing
has been modified so as to include
fewer types of unit operations. In most
instances, operations that are no longer
considered "processing" have been
redesignated "benefidation" operations.
The primary reason for making this
change is to achieve consistency with
previously articulated EPA definitions of
"benefidation". Today's definition
provides resolution of potential conflicts
regarding the regulatory status of mining
wastes that have already been studied
and subjected to a Regulatory
Determination: the definitions provided
in the proposed rules might have
suggested another study and
determination for materials that have
already been addressed by the Agency.
EPA did not intend such a result and
believes that the definition of
"benefidation" in its 1985 Report to
Congress is the most consistent with the
standard use of the term.
The high volume criterion has been
bifurcated in response to public
comment on the April notice. EPA has
determined empirically that amenability
to subtitle C management controls (the
basis for the high volume criterion)
varies markedly between liquid and
non-liquid waste streams. Examination
of data obtained from a recent EPA
nationwide census of subtitle C
treatment storage, disposal and
recycling facilities reveals that many
industrial facilities successfully manage
substantially more than 50,000 metric
tons per year of a single hazardous
wastewater stream. Non-liquid waste
streams, in contrast are managed in
quantities greater than 50,000 metric
tons per year in only a few instances.
Accordingly, the Agency has in today's
rule established final volumetric cut-offs
of 45.000 metric tons per year per facility
for non-liquid wastes and 1.000,000
metric tons per year per facility for
liquid wastes. The rationale for these
new values is presented in section m.
below.
The low hazard criterion described in
the April NPRM has been modified to
account for resolution of a number of
issues raised in public comment While
the Agency has retained its basic
approach, it has modified the
application of the low hazard criterion
to specific waste streams in order to
account for additional waste constituent
data that have been submitted by
facility operators or collected from other
sources. The final low hazard criterion
is applied by evaluating the data
collected by EPA and analyzed using
Method 1312 (Synthetic Pradpitation
Leaching Procedure). If samples of a
waste stream from two or more faculties
fail the test then the waste is
withdrawn from the Bevill exclusion.
unless a preponderance of evidence
indicates that the test results are
anomalous. The conditions under which
EPA will assemble and consider this
evidence are discussed in section ni of
this preamble.
As stated in both the October 1988
and April 1989 proposals, individual
waste streams must meet all Bevill
spedal mineral processing waste
criteria to be eligible for continued
regulatory exclusion and study in the
Report to Congress. In many cases.
individual mineral processing wastes
will not meet these criteria and hence.
will be permanently removed from the
Bevill exdusion as of the effective date
of this rule.
In a limited number of cases. EPA
does not currently have sufficient
information to evaluate whether specific
waste streams conform to the low
hazard criterion. As discussed below.
the status of these materials will be
addressed in a subsequent rulemaking.
At/that time, the Agency will also
reevaluate whether these wastes
conform to the final volume criterion
using data collected during EPA's recent
National Survey of Solid Wastes from
Mineral Processing Facilities.
C. Future Activities
This rule establishes the final criteria
that will be employed to make
individual Bevill mineral processing
waste exclusion decisions. Preliminary
decisions on the status of conditionally
excluded high volume wastes will be
articulated in a proposed rule to be
signed on or before September 15.1989.
These decisions will be based upon
information collected by or submitted to
the Agency during recent months.
Final action on proposed wastes will
be taken by January 15.1990. At this
time, the final boundaries of the Mining
Waste Exdusion for mineral processing
wastes will be established
All mineral processing wastes
retained within the final Bevill mineral
processing waste exdusion will be
subjected to detailed study by EPA. The
findings of these studies will be
contained in a Report to Congress that
will be submitted by July 31.1990.
Six months after submission of this
report, the Agency will publish a
Regulatory Determination stating that
the studied materials will either be
regulated under subtitle C of RCRA as
hazardous wastes, or that such
regulation is unwarranted
IL Analysis of and Response to Public
Comments on 10/20/88 and 4/17/88
A. EPA'» General Approach
1. EPA's Response to Statutory and
Judicial Directives
In promulgating today's final rule.
EPA is responding to a Federal Court of
Appeals order to narrow the scope of
the Bevill exdusion for mineral
processing wastes to a group of "spedal
wastes," La* those mineral processing
wastes with the unique characteristics
of high volume and low hazard To carry
out mesa directives. EPA is today
finalising the criterion for defining
mineral processing wastes and the
criteria for determining whether these
wastes fall under the exdusion for
"special wastes." Furthermore. EPA is
today applying these criteria to many of
the mineral processing wastes and
therefore, is removing most of them from
the Bevill exdusion. Today's rule also
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Federal Register / VoL 54. No. 169 / Friday. September a. 1989 / Rules and Regulations 38595
constitutes final Agency action ,
•elect group of high volume mineral
processing wastes. The Bevill status of
additional high volume mineral
processing wastes (Le.. those that are
"conditionally" exempt) will be
proposed in September of this year.
Some of these conditionally exempt
wastes wiD remain within the exclusion
for the purposes of further study, others
will be removed because further
information shows that they do not meet
all of the "special wastes" criteria.
Under statutory directive, the final
regulatory determination for wastes that
remain temporarily excluded will be
made six months after completion of a
Report to Congress. This is the same
basic approach EPA used in its October,
1988 (S3 FR 41288) and April. 1989 (54 FR
15316) proposals for narrowing the
scope of the Bevill exclusion.
EPA received numerous comments
questioning the approach of the October
and April proposals in narrowing the
Bevill exclusion. Several commenters
continued to dispute the validity of
using the "special waste" concept in
interpreting the intent of the Bevill
Amendment In addition, some
commenters asserted that EPA had
proposed to interpret the Bevill
Amendment too narrowly, and that in
general terms wastes from the
extraction, benefidation, and processing
of ores and minerals should be excluded
from subtitle C regulation until
comprehensive studies of these wastes
can be completed. In contrast, some
other commenters stated that the
proposed interpretation of the Bevill
exclusion was too broad, and that the
exclusion should be limited to even
fewer "special wastes."
' EPA has carefully considered these
comments as they apply to the final rule.
The Agency maintains its position that
the special waste concept is central to
understanding Congressional intent
underlying the Bevill Amendment, end
that EPA must limit the scope of the
Bevill exclusion to favJndt only those
wastes that meet the "special waste"
criteria presented m the rule EPA
encountered no Mifnp*fl*ng arguments in
public comments on the two proposals
which would cause it to alter this
interpretation of the legislative history;
this history is described in detail in the
April NPRM.
EPA's position on this matter is
supported and in fact mandated by the
1988 Federal Court of Appeals decision
that required a narrowing of the scope
of the Bevill exclusion for mineral
processing wastes. The Court
determined that the Bevill Amendment
was intended to apply only to mineral
processing wastes that meet the "special
waste" criteria, Le, high volume, low
hazard wastes. The Court ordered EPA
to propose and finalize regulations that /
narrow the Bevill exclusion to
encompass only "special wastes;"
today's final rule is the latest in a
multistep process to meet the
requirements of the Court order.
Despite commenter assertions to the
contrary, EPA is not required to
complete a comprehensive study of all
mineral processing waste streams prior
to articulating the specific wastes
remaining excluded under the Bevill
Amendment The Court of Appeals
ruling stipulates that the required study
(Report to Congress) is only applicable
to mineral processing wastes that fall
within the statutory exclusion; the study
is intended to result in a final regulatory
determination for those wastes (he*
whether any of the Bevill wastes should
be regulated under subtitle C).
EPA notes that there is a lack of
detailed statutory, legislative,
regulatory, and judicial history and
guidance available to assist EPA in
defining, ten years after it was originally
proposed, the specific contours of the
"special waste" concept particularly as
it applies to mineral processing wastes.
EPA's 1978 proposal and the 1979 draft
background document do not attempt to
define the term "processing of ores and
minerals" nor attempt to quantify the
concepts of "high volume" and "low
hazard." The legislative history of the
Bevill amendment in 1960 fails to give
content to these concepts as welL And
while the US. Court of Appeals in EOF
IL declares that six hazardous smelter
wastes are not "special wastes," it
specifically leaves to EPA the
responsibility of defining which other
mineral processing wastes are special
wastes.
As a result EPA has the discretion
and responsibility to develop and apply
criteria that define the scope of the
Bevill exclusion within the broad limits
of this ten years of history. EPA today
adopts die approach proposed in
October and April that is. to quantify
the terms "high volume" and "low
hazard" and apply them to wastes from
operations that meet a definition of
"mineral processing" developed by EPA
to reflect past regulatory history and
EPA's professional judgment regarding
the mineral processing industry.
EPA believes that using specific
quantitative criteria for the volume and
hazard tests best allows EPA to fairly
characterize which wastes from mineral
processing should remain within the
Bevill exclusion. EPA agrees that it
could have adopted a functional
approach to denning "special wastes" ^
from mineral processing, or could have
set slightly different quantitative cutoffs
based on slightly different assumptions
regarding both the volume and hazard
issues. However, the volume and hazard
criteria adopted today are only used as
a preliminary screen to define which
wastes deserve closer study. And those
wastes which do not pass today's
criteria are not automatically subjected
to subtitle C regulation; they must also
exhibit one or more of the hazardous
characteristics adopted by EPA in 1980
after extensive consideration and public
participation.
EPA does not believe that the specific
criteria chosen today are unreasonable.
particularly in light of the very limited
time given EPA to complete this final
rule. Indeed, as EPA shows below, slight
changes in the volume and hazard
criteria adopted today would not
appreciably affect the list of excluded
wastes. EPA believes that it has
resolved specific issues related to the
criteria in a reasonable manner
consistent with the general approach for
defining "special wastes" outlined
above.
2. Status of Future Waste Streams
In both the October 20,1988 and April
17,1980 proposals, EPA stated that the *
current series of rulemakings would
conclude the Agency's response to
statutory and judicial directives to
define the scope of the Bevill exclusion
for mineral processing wastes. In other
words, EPA proposed to make a one-
time determination of Bevill status.
Wastes not yet in existence and wastes
not meeting the high volume/low hazard
criteria during any of the past five years
would therefore not be eligible for Bevill
exclusion status in the future.
Some commenters addressing this
provision reiterated their disagreement
with the one-time reinterpretation
approach. They maintained that the
Bevill Amendment does not place time
limits on the exclusion of wastes, thus
the one-time reinterpretation violates
Congressional intent They also
maintained that a one-time
reinterpretation would decrease
environmental protection in the long run
by creating a disincentive for industry to
employ new manufacturing or waste
treatment operations that may unfairly
fall under costly subtitle C regulation.
Moreover, given the changing nature
of the «»fa«fa»g industry, some
commenters contended that EPA must
consider that new processing waste
streams will arise, and that lesser
volume streams that vary in quantity
may satisfy the criterion in the future.
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36596
Federal Register / Vol. 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
Commenters pointed to roast leach acid
plant residue from primary copper
processing, oil shale and tar sand
processing wastes, and wastes from the
processing of nodules collected from the
ocean as examples of wastes that may
qualify for the Bevill exclusion in the
near future under the proposed criteria.
These commenters also asserted that
EPA should study and issue regulatory
determinations for wastes that may
meet the special waste criteria in the
future. They also argued that it is more
appropriate to define the scope of the
Bevill exclusion for mineral processing
wastes directly using the criteria and
not create a list of wastes that EPA has
determined meet the criteria. Applying
the criteria to additional waste streams
in the future would allow for the effects
of changing market conditions and new
mineral processing technologies. Some
commenters thus recommended that
EPA amend the proposed rule to include
a provision whereby if a waste qualifies
as a high volume/low hazard waste in
the future, it would become subject to
the provisions of the Bevill Amendment
The Agency has considered these
comments and decided to maintain its
proposed approach of a one-time
reinterpretation of the Bevill exclusion
for mineral processing wastes. As
discussed in the April proposal EPA
interprets the legislative history as
clearly establishing a temporary
exclusion through the Bevill Amendment
over a fixed time period. In fact the
statutory language includes explicit time
limits on the Bevill exclusion which
apply to the submission of the required
Report to Congress and subsequent
regulatory determination. Moreover, the
Court of Appeals decision stipulates an
updated timetable for completion of the
study and the final regulatory
determination.
In today's final rule, wastes not
presently being generated or currently
meeting the high volume/low hazard
standard will not be considered for
special waste status in the future. Thus.
EPA is making a one-time
reinterpretation of the Bevill exclusion
for mineral processing wastes by
providing a specific list of such wastes
that tentatively fall under the "special
waste" criteria. EPA further maintains
that the one-time reinterpretation is not
contrary to the interests of industry or
the environment New wastes generated
hi the future will be regulated under
either the subtitle C or subtitle D
regulatory programs, thus industry will
know in advance the regulatory
standards that will be applied to new
mineral processing wastes. EPA does
not believe that failure to apply the
Bevill Amendment to future waste
streams will discourage treatment of
these wastes; the application of Subtitle
C or D will in many cases, create
exactly the opposite incentive. Thus,
this position is consistent with recent
EPA policy initiatives that encourage the
development of process changes and
new waste treatment technologies that
minimize hazardous waste/treatment
residual generation.
Certain commenters took issue with
EPA's assertion that the Report to
Congress on Bevill wastes identified in
today's rule would be the last under
section 8002(p). They argued that EPA is
under a continuing statutory duty to
study and Report to Congress under
sections 8002(f) and 8002(p) of RCRA
regarding wastes from the extraction
and benefidation of ores and minerals
in sectors not discussed in detail in
EPA's 1985 report entitled "Wastes from
the Extraction and Benefidation of
Metallic Ores, Phosphate Rock,
Asbestos, Overburden from Uranium
Mining, and Oil Shale" (Dec. 31.1985).
These commenters dted pages from a
draft EPA report (which was never
completed or released to the public) on
wastes from certain mineral processing
operations. In that draft report the
commenters allege. EPA committed to
further study of wastes from the
extraction and benefidation of certain
nonmetallic ores and minerals.
EPA disagrees that it is necessary for
the Agency to commit to further studies
of extraction and benefidation wastes
under section 8002(p). EPA believes that
the 1985 Report and the subsequent
regulatory determination, discharged its
statutory duty with respect to all
extraction and benefidation wastes. As
explained hi the Executive Summary to
the 1985 Report the Report specifically
addressed "wastes from the extraction
and beneficiation of metallic ores (with
special emphasis on copper, gold, iron.
lead, silver and zinc), uranium
overburden, and the nonmetals asbestos
and phosphate rock." Oil shale wastes
were also addressed in an Appendix.
EPA explained that it "selected these
mining industry segments because they
generate large quantities of wastes that
an potentially hazardous and because
the Agency is solely responsible for
regulating the waste from extraction and
beneficiation of these ores and
minerals." Report to Congress, page ES-
2. However, the Report is not limited
solely to wastes from these identified
sectors. Rather, the Report considers
waste generation, waste management
health and environmental risks, and
regulatory impacts on the entire nonfuel
mining and benefidation industry. Sea.
Report pages ES-3, ES-I (overview
of the nonfuel mining industry), ES-10
(potential dangers posed by the nonfuel
mining industry), and ES-14 (potential
coots of regulating mining wastes as
hazardous).
EPA's 1986 Regulatory Determination
also dearly states that it covers all
mineral extraction and benefidation
wastes. As EPA said at the time, "this
notice constitutes the Agency's
regulatory determination for the wastes
covered by the Report to Congress, i.e..
wastes from the extraction and
beneficiation of ores and minerals." 51
FR 24497 (July 3,1986). The Regulatory
Determination went on to explain that
by contrast Bevill mineral processing
wastes (based on EPA's 1985 proposal)
"were not studied in the mining waste
Report to Congress and therefore, are
not covered by this regulatory
determination." Ibid.
EPA believes that the Report to
Congress and Regulatory Determination
make dear the Agency's intent that
wastes from the extraction and
benefidation of ores and minerals are to
be regulated under subtitle D. .
Accordingly, EPA has no present plans
to conduct any further studies under
8002(p) or make any further regulatory
determinations. EPA's draft Report to
Congress dted by the commenters was
an internal pre-dedsional document and
does not represent the final Agency
policy on this issue. (EPA also has no
plans to complete or submit that Report
in any form: its relevance was rendered
moot by the dedsion in EOF D.)
3. Retroactive Application of Subtitle C
Requirements
In the April NPRM. EPA stated
explidtly that subtitle C regulation
arising from the withdrawal of Bevill
status from most mineral processing
wastes would not be Imposed
retroactively. That is. Subtitle C
requirements would apply only to newly
generated or actively managed mineral
processing wastes that are removed
from the Bevill exdusion and that
exhibit one or more characteristics of
hazardous waste, not to existing
accumulations of these materials unless
they an actively managed after the
effective date of the rule or an subject
to regulation as waste mixtures, as
discussed in further detail below. This is
consistent with standard Agency policy
regarding the imposition of new
regulatory requirements.
Commenters disagreed on the
appropriateness of this approach. One
commenter supported the approach.
while another stated that the lack of
regulation of previously disposed
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Federal Register / VoL 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations 3S597
mineral processing wastes would not be
protective of human health and the
environment Most comments on the
retroactivity provision, however.
centered around the definition of "active
management" Several commenters
requested clarification of this term.
In keeping with the April proposed
rule, today's final rule does not impose
Subtitle C requirements (such as those
for closure and post-closure care) on
mineral processing wastes that were
disposed prior to the effective date of
today's rule, unless they are actively
managed after the effective date. This-
provision ensures that those mineral
processing wastes that were originally
excluded from subtitle C under the
Bevill exclusion, and are now
considered hazardous under the
reinterpretation of the Bevill exclusion,
are not subject to subtitle C
requirements if the wastes wen
disposed prior to the effective date of
the final rule. EPA is maintaining its
proposed approach largely because of
its long-standing policy of not regulating
wastes under RCRA that were disposed
prior to the effective date of a rule
governing those wastes. See, e.g., 45 FR
33066.
For purposes of this rule, EPA views
active management as physically
disturbing the accumulated wastes
within or disposing additional non-BeviU
hazardous wastes into existing waste
management units after the effective
date of this rule. EPA does not intend to
bring under subtitle C regulation
existing waste management units
containing wastes now identified as
non-Bevill to which only Bevill wastes
or other non-hazardous solid wastes an
subsequently added (Le., this practice
will not constitute active management of
the non-Bevill waste(s)). For example, a
waste management unit receiving • high
volume slag excluded from Subtitle C
regulation under today's role may
continue to receive additional slag (or
other non-hazardous or Bevill waste
stream) even if it has also received
(prior to the effective date of the rule)
hazardous waste now identified as non-
BevilL provided that no additional non-
BeviU wastes that .exhibit characteristics
of hazard or are listed as hazardous are
managed in these units. Continued use
of an existing unit after the effective
date of this rule for treatment, storage,
or disposal of additional quantities of a
newly listed or characteristic hazardous
waste will be considered active
management and will subject the entire
unit and its contents to Subtitle C
regulation.
4. Scope of Today's Rule
In the April notice, EPA stated clearly
that its interpretations and definitions
, regarding the regulatory status 6T~
mineral processing wastes under the
Bevill Amendment applied only to the
wastes addressed in this series of
rulemakings (Le., mineral processing
wastes).
.Nonetheless, commenters contended
that the Agency's position as articulated
in the 4/17/89 NPRM with respect to the
actual or potential status of coal
combustion wastes was unclear. They
stated that some of the interpretations
and definitions proposed for mineral
processing wastes would not be
appropriate for application to coal
combustion wastes (another Bevill
special waste category), particularly the
high volume and low hazard criteria
presented in the April NPRM. and
requested that EPA clarify its position
on this issue.
EPA emphasizes that the applicability
of the definitions and criteria
interpretations contained within this
rulemaking, as presented below, is
confined only to mineral processing
wastes. The Agency believes that the
special wastes concept remains a
flexible one, and that the criteria for
defining special wastes in the mineral
processing industry may not be directly
transferable to the other special waste
categories, particularly coal combustion
wastes. (EPA noted differences in its
discussion of coal combustion waste
volumes in the October. 1988 NPRM.)
The Agency will consider this issue
further in the context of its Regulatory
Determination for coal combustion
wastes.
B. The Law Hazard Criterion
As discussed in the preamble to the
April 17.1969 NPRM. EPA has proposed
a hazard criterion for use in determining
the proper scope of the Bevill exclusion
as it applies to mineral processing
wastes. The purpose of the hazard
criterion is to identify candidate Bevill
mineral processing wastes that clearly
do not present a low hazard to human
health and/or the environment Any
wastes failing such a criterion should be
immediately removed from the Bevill
exclusion: these wastes would then be
evaluated (Just like any other solid
waste) to determine whether they are
hazardous—that is, whether they are
listed or exhibit any of the hazardous
waste characteristics.
The proposed hazard criterion was
based on two types of tests: (1) A pH
test and (2) a mobility and toxidty test
The pH test requires that a mineral
processing waste have a pH between 1
and 13.5 to be considered an exempt —
. special waste, which represents a one
order of magnitude increase of the pH
levels used to identify corrosive
hazardous wastes (Le., 2 and 12.5). The
mobility and toxidty test requires that
mineral processing waste constituents
be extracted from the waste using a
procedure (Method 1312—Synthetic
Precipitation Leaching Procedure) that
EPA believes is generally less
aggressive in leaching out constituents
from solid wastes than the EP Toxicity
Test (Method 1310). which is used to
determine whether non-Bevill solid
wastes exhibit the toxidty
characteristic. The waste extract is
evaluated in the same manner and at the
same regulatory levels as in the EP
Toxidty test As EPA explained in the
April NPRM. the low hazard criterion is
solely a preliminary screening device to
determine which mineral processing
wastes are special wastes, and will not
be used in determining which wastes
will subsequently be regulated under
Subtitle C, either as t result of today's
rule or in the upcomuig regulatory
determination.
Comments on the low hazard criterion
are organized hi this preamble into
general comments on the
appropriateness of the criterion,
followed by general comments on the
overall approach, and specific
comments on potential components of
the approach (Le., pH test ignitability
and reactivity tests, mobility and
toxidty test constituents for testing.
additional standards, application of
tests, and types of information).
1. Appropriateness of Establishing a
Hazard Criterion
Many comments were received on
whether EPA should indude a hazard
criterion for identifying which wastes
should not be subject to continued
temporary exdusion from RCRA subtitle
C requirements under the Bevill
Amendment
a. Law Hazard Criterion it
Appropriate. Several commenters
•supported EPA's proposal to use a low
hazard criterion. One commenter -
maintained that a low hazard criterion
is appropriate provided that the test
used to evaluate whether the low hazard
criterion is met is reasonable and
appropriate for use with mineral
processing wastes. Another commenter
stated that Bevill exdusion status
should be awarded only to those wastes
that meet both the volume and hazard
criteria, and yet another commenter
stated that EPA should immediately
remove from consideration those wastes
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36598 Federal Register / Vol. 54, No. 169 / Friday. September 1. 1989 / Rules and Regulations
that an dearly hazardous, without
further study.
Many commenters believed EPA's
proposed low hazard criterion is
objective, currently feasible, and
essential to ensure that wastes that are
not low hazard are appropriately
regulated. Furthermore, one commenter
maintained, the Agency's proposal is a
positive step toward environmental
protection: high volume wastes, because
of their quantities, must be carefully
evaluated for their potential risk to
human health and the environment.
b. Low Hazard Criterion is
Inappropriate. Many commenters
believed that the low hazard criterion
should be abandoned because, they
generally contended. EPA's proposal to
use a pH teat and a mobility and toxicity
test for mineral processing wastes
directly contradicts Congressional intent
and the decision in EDFI
(En vironmental Defense Fund v. EPA,
852 F.2d 1309 (B.C. Cir. 1983)). that
hazard or hazard alone should not
determine whether a waste falls within
the scope of the Bevill Amendment
These commenters generally believed
that the hazard/toxicity issue is better
addressed within the special studies, not
as a screening procedure, and/or that
Congress intended for some
characteristic wastes to be exempted
from subtitle C regulation. Basically.
these commenters argued that failure to
pass the low hazard test should not
deny a waste access to the detailed and
comprehensive study and balancing of •
economic and environmental factors
mandated by the Bevill Amendment.
EPA has re-examined the special
waste concept, the regulatory and
legislative history, and the Court
decision prompting this rulemaking. and
concludes that the hazard criterion
described hi the April NPRM. with some
modifications, is appropriate for use in
reinterpreting the scope of the Bevill
Amendment The Agency recognizes
that a full and detailed assessment of
hazard can and will be appropriately
considered hi a Report to Co
Nevertheless, a test designed to identify
any wastes that an dearly not low
hazard wastes is a necessary and
appropriate component of the criteria for
identifying mineral processing wastes
that should remain temporarily excluded
from Subtitle C regulation by the Bevill
Amendment The utilization of a
criterion to screen out wastes which are
not low hazard is clearly required by the
order of the Court of Appeals. See 852
F.2dl331.
Some commenters supporting
abandonment or substantial revision of
the hazard criterion believed that EPA
lacks the necessary data for adopting a
low hazard criterion. EPA believes,
however, that sufficient data are
available to develop a workable and
appropriate low hazard criterion for
screening purposes and to apply that
criterion to some mineral processing
wastes. For wastes with insufficient
information, EPA currently is conducting
an extensive data-gathering effort The
new data will be applied to
conditionally retained Bevill wastes.
and their regulatory status will be
addressed in a proposed rule by
September 15,1089.
2. Overall Approach
a. Low Hazard Rather than High
Hazard Wastes Should Be Identified.
Several commenters stated that EPA
should identify wastes that are clearly
low hazard and keep them within the
Bevill exclusion, rather thnn identifying
wastes that are clearly not low hazard
and removing them from the Bevill
exclusion.
EPA disagrees with this approach
primarily because it would be
impractical given the time and other
constraints that the Agency faces in
promulgating this rule. The special study
waste concept within the context of this
rulemaking necessitates identifying.
using a screening procedure, wastes that
are clearly not low hazard. To identify
wastes that are clearly low hazard
would involve the type of study of
damage case and other risk-related
information that is planned for the
Report to Congress, because before
concluding that specific wastes pose low
hazard, the Agency would require site-
specific data on physical and chemical
characteristics of the waste, the waste
management practices employed, the
proximity of die facility and its waste
management units to sensitive
environments (e.g, wetlands.
endangered species habitat) and
potential receptors, and other factors
that affect waste-related risk.
b. Low Hazard Criterion Should Be
Adopted Based on a Multi-factor.
Qualitative, and/or Site-specific Test
Some commenters indicated that a less
quantitative approach for identifying
wastes to remove from the Bevill
exclusion should be utilized using an
analysis of present management
methods, environmental settings, and
available damage cases, as well as of
toxic and teachable constituents. For
example, some commenters
recommended that the Agency
specifically consider information
regarding past and current mineral
processing waste management practices,
which, the commenters stated, will
clearly show that the wastes pose
unacceptable risks to human health and
the environment Other commenters
stated that mineral processing facilities
generally pose less risk (than other
potentially hazardous wastes] because
they'are sited in dry climates, far from
ground water and drinking water, and in
unpopulated areas.
The Agency believes that a multi-
factor, qualitative, and/or site-specific
approach as suggested by these
commenters is infeasible. Given the
Agency's time constraints, the
information described could not be
systematically collected and considered
to implement such a low hazard
criterion uniformly for all of the various
mineral commodity sectors and facilities
addressed by this rule. Furthermore,
development of such a criterion would
be very subjective and difficult to apply
consistently in such a short time frame.
Rather, the scope of the Bevill exclusion
will be defined using the hazard
criterion (and die volume criterion) in
lieu of obtaining site-specific data.
Wastes that fail this screening test are
clearly not low hazard and. therefore,
will be subject to potential Subtitle C
. regulation. For wastes mmafainfl in the
' Bevill exclusion. EPA will collect and
analyze various kinds of additional data
(e.g., damage cases, site-specific
environmental and waste management
factors) for the Report to Congress. This
additional analysis will involve
consideration of the factors identified by
commenters, and will ultimately support
a regulatory determination for the
mineral processing wastes temporarily
excluded under the Bevill Amendment
, using the criteria established by today's
final nil*,
c. Specified Tests Generally Are
Appropriate. Several commenters felt
that EPA's proposal to use « synthetic
precipitation leaching procedure for
mobility testing is appropriate. One
commenter maintained that any hazard
test should be less stringent than the
subtitle C characteristics tests and
should demonstrate whether a waste
poses a clear and unambiguous hazard
to health or the environment This
testing standard, the commenter further
stated, is necessary because the hazard
criterion will be used as a screening
to determine which wastes
warrant further study; wastes failing the
low hazard criterion will be evaluated
like any other solid waste to determine
whether it should be subject to subtitle
C regulation.
d. Specified Teats Generally Are
Inappropriate. Many commenters
believed that the proposed hazard tests
are inappropriate, generally
recommending one of three alternatives:
(1) EPA should not modify the current
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Federal Register / Vol 54. No. 109 / Friday, September 1, 1989 / Rules and Regulations 38599
•'•HBrit, (2) EPA should modify the
current standards, and (3) EPA should
not use a leaching test to assess
mobility.
Many commentera arguing against
modification of the standards stated that
EPA's decision to modify the
characteristics test is an extreme
measure to ensure that no low hazard
waste would be regulated under Subtitle
C prior to detailed study, at the risk of
allowing many high hazard wastes to
escape such regulation altogether. One
commenter argued that a less stringent
measure of inherent toxicity should not
be used when evaluating a high volume
waste, because high volume wastes
have a greater potential to release
significant quantities of hazardous
materials. The result of the proposed
hazard criterion, according to the
commenter, would be stringent
regulation of small quantities of waste
while at the same time almost
unregulated disposal of wastes that
have caused documented environmental
damage.
Some commenters contended that the
Agency should Implement less stringent
modifications to the hazard tests. For
example, one of these commenters
stated thai the allowable constituent
concentre .ions in the extract should be
300 times tee primary drinking water
standard, instead of 100 times the
standard (as proposed). According to
another commenter. the application of
100 times the MCLs for all chemicals
uniformly is of questionable validity.
Others believed EPA should use the EP
Toxicity Test for screening, but increase
the values for comparison by a factor of
100 (le* 10.000 times the primary
drinking water standard). These
ccmmenters noted that (1) the EP
Toxicity Test is well established and
widely used and considerable data
exists for mineral processing wastes and
(2) a relaxation of two orders of
magnitude of the comparison values la
similar to the proposed relaxation of the
pH standard, and has been adopted by
EPA's Land Disposal Restrictions
program for "California LW wastes.
Some commentars argued against the
useof any type of leaching test because
of the apparent failure of ttus test to
consider either the actual waste
management practices being used or any
other site-specific factors. Another
commenter stated that because of the
shortcomings of leaching procedures, the
classification of wastes as hazardous or
non-hazardous should not be based
solely on an add extraction test
Another commenter contended that
Method 1312 yields extraction
information only, and that testing for the
mobility of a particular component can
only be done by site-specific evaluation.
One commenter argued further that the
Method 1312 test only assesses
mobilization of contaminants to ground
water under accidental conditions; no
other environmental media or exposure
route is measured. Consequently, the
commenter contended, the test does not
provide a complete measure of a waste's
potential hazard.
EPA has considered these comments
and continues to believe that the low
hazard criterion as proposed (i.e., the
larger pH range and the more
appropriate leaching procedure) is both
necessary and appropriate for use as a
screening tool The Agency disagrees
that this approach will leave highly
hazardous wastes unregulated and free
to contaminate the environment; in fact
just the opposite will happen—that is,
wastes that fail the screening test will
no longer be retained within the Bevill
exclusion and will be evaluated like all
other solid wastes as to their potential
hazard. Wastes that pass the screening
criterion test and are retained within the
exclusion will be extensively studied,
and a regulatory determination will be
made as to their Subtitle C or D status
within two years. Using the same
toxicity factor as used in the EP Toxicity
Test (Le., 100 times the MCL) is
appropriate because the attenuation and
dilution expected for mineral processing
wastes after release into the
environment is expected to be similar to
wastes managed at other industrial
facilities; that is, the transport and fata
of the toxic constituents should not be
any different whether the waste is a
mineral processing waste or some other
type of solid waste. Moreover, although
the standards set by statute under the
land disposal restrictions program for
"California List" wastes are 10.000 times
MCLs, as the commenter noted. EPA has
already proposed to amend these
standards by using a multiplier of 100.
The Agency believes that a leaching
test is the best way to assess waste
""^•minnnt mobility given the time ai"*
data constraints that EPA faces.
Although EPA acknowledges that a
leaching test generally only provides an
indication of mobility in ground or
surface water rather than in other media
(e.g* air), this pathway is generally
believed to be, for the purposes of this
screening, the most indicative of tae
potential hazard posed by mineral
processing wastes, and the most readily
and consistently applicable to all
mineral processing wastes, given the
constraints of the Agency during this
rulemaking. Other media will be
assessed for the Report to Congress.
3.pHTest
<*«
. a. General. Many commenters
indicated that EPA's proposal to include
/ a pH test was appropriate. Other
commenters, however, felt that major
modifications were needed for the
corrosivity characteristic. For example.
one commenter stated that the Agency
should change its definition of the pH
test for corrosivity so that it applies only
to liquid wastes. Another commenter
maintained that the approach should be
revised because it is inconsistent with
the Court's decision in EOF I that mining
wastes exhibiting the characteristic of
corrosivity, as defined in the RCRA
Subtitle C regulations, may not pose a
threat to human health and the
environment The application of a
corrosivity hazard test to phosphate
processing wastes, one commenter
argued, would produce illogical and
inappropriate results; it is only because
aqueous phosphate waste streams are
recycled that they ever consistently
exhibit a characteristic of hazardous
waste. This same commenter stated that
for certain facilities, the pH may drop
below 1.0 due solely to meteorological
conditions.
EPA believes that a pH test is an
appropriate indicator of hazard tram
liquid mineral processing wastes,
regardless of whether the wastes were
reused prior to their disposal The
comparison of the waste's pH to the
proposed standard identifies wastes
that an so corrosive that it would not be
credible to consider them "low hazard"
regardless of the industrial process used
to generate the waste or the location of
the facility.
The Agency does agree that the pH
test should not be applied to non-liquid
wastes. However, as discussed more
fully below in section ffl. EPA has
established a working definition of
liquid and non-liquid wastes that
considers the physical and chemical
nature of mineral processing wastes on
both an as-generated and as-managed
basis. The distinction between liquid
and non-liquid wastes is really
significant however, only when
evaluating individual waste streams
with respect to the Bevill volume
criterion. Otherwise, as when analyzing
waste samples in the laboratory.
standard EPA definitions and protocols
apply.
b. Modification of the pH Standard.
Many commenters stated that the
proposed increase of the pH range by
one order of magnitude (to a pH range of
1.0 to 13 J) is correct and should not be -
changed. Other commenters. however.
felt that the range should be increased
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36600 Federal Register / VoL 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
even further, while some commenten
felt that the range should not be
increased beyond the characteristic test
range (i.e.. 2 to 123}.
One commenter arguing for a further
increase of the pH range stated that
EPA's proposed lowering of the
allowable pH level by only one pH unit
(1) does not reflect the intent of the
Berill Amendment (2) unfairly penalizes
operations that have improved their
treatment methods, and (3) contradicts
EPA's own statement that the hazardous
characteristics tests need not be
determinative of Bevill status. Rather.
EPA should adopt a lower pH standard
of 0.5, which, this commenter believed.
would have no appreciable effect on
human health or the environment
because of the limited migratory
tendencies of mineral acids.
Two commenters supporting a further
increase of the pH range argued that
because mineral acids used in ore
processing are not appreciably buffered.
the relative acidic strength of the
resulting wastes is overstated by the pH
measurement, adding buffering agents
simply to increase the pH above 1.0 is
inappropriate because such an addition
would interfere with resource recovery
operations. One of these commenten
illustrated the point by contending that
iron chloride wastes, though exhibiting a
very low pH value, would otherwise
satisfy the low hazard screening criteria.
As discussed above. EPA believes
that the comparison of the waste's pH to
the proposed pH range satisfies the need
to identify which wastes clearly are so
corrosive that they do not merit
continued regulatory exclusion and
further study. The Agency does not find
the above argument* advocating a
further increase of the pH range
convincing: any further increase in the
pH range may result in wastes that an
clearly not low hazard remaining in the
Bevill exclusion, which may in turn
compromise the protection of human
health and the environment For
instance, the fact mat mineral adds are
not appreciably buffered does not alter
the fact that wastes of such low pH may
pose a hazard. In any case, today's rule
will not create undue incentives to
buffer mineral processing adds above
the 1.0 level, since sampling of all high-
volume wastes is now complete.
A commenter arguing for no increase
of the pH range beyond subtitle C
characteristic levels believed that (1) the
proposed rule is arbitrary. (2) it will
allow too many wastes to remain within
the Bevill exclusion, and (3) EPA's
primary goal of protecting human health
and the environment will be
compromised,
The Agency continues to believe that
a one order of magnitude increase in the
pH range is entirely appropriate as a
screening criterion to determine which
mineral processing wastes are clearly
too corrosive to remain exempt pending
detailed study. EPA also disagrees that
environmental protection would
somehow be compromised by failure to
use the subtitle C pH range for purposes
of identifying special wastes. EPA
stresses that wastes remaining under the
Bevill exclusion still will be evaluated
further for specific hazard (including
corrosivity) during development of the
Report to Congress.
4. Ignitability and Reactivity Tests
Many commenters supported the
Agency's tentative position to not screen
mineral processing wastes for
ignitability or reactivity. Some noted
that the RCRA hazardous characteristics
tests for ignitability and reactivity are
not readily adaptable for a screening
function and, particularly in the case of
reactivity, are far too subjective to be
employed In the manner proposed for
the low hazard determination. One
commenter argued that the RCRA tests
for ignitability and reactivity should not
be used to judge low hazard because
they fail to identify unambiguously high
hazard mineral processing wastes.
Another commenter noted that
ignitability is irrelevant to moat mineral
processing wastes because most of
these wastes tend to be earthen or
aqueous.
For three main reasons, EPA agrees
that the RCRA tests for ignitability and
reactivity are not appropriate and
should not be used in the low hazard
criterion: (1) The Agency currently has
little or no actual data on the potential
reactivity or ignitability of most mineral
processing wastes. (2) the tests for
ignitability and reactivity, because of
their nature, cannot be readily modified
for use as part of a screening criterion to
identify wastes that an dearly not low
hazard, and (3) despite the paudty of
actual test results, the Agency does not
believe, based upon best engineering
and professional judgment that mineral
processing wastes an particularly
ignitable or reactive.
5. Mobility and Toxidty Test
The majority of comments on the
hazard criterion addressed the proposed
mobility and toxidty test For purposes
of this notice, these comments an
organized into appropriateness of (1) the
EP Toxidty and TCLP Tests. (2) the
proposed Method 1312, and (3) other
types of tests.
a. EP (Method 1310) or TCLP (Method
1311) Testt. Many commenters
supported EPA's contention that more
appropriate tests than Methods 1310 or
1311 may exist for evaluating mobility
and tbxicky. Both of these tests are
based on an assumption that under a
plausible worst-case mismanagement
scenario, wastes might be co-disposed
with municipal solid wastes, and several
commenters argued that this disposal
scenario is implausible for mineral
processing wastes. The EP Toxicity Test
one commenter stated, does not
correctly represent other conditions
experienced by the mineral processing
industry, such as low precipitation and
high waste volume. Some commenten
noted that this same argument should
apply to mineral processing wastes
removed from the Bevill exclusion,
which, they stated, would be in contrast
to EPA's statement in the April NPRM
that mineral processing wastes removed
from the Bevill exemption will be
subject to Subtitle C if they exhibit EP
toxidty, and that the EP test may be
used to determine whether Subtitle C
requirements qualify as "applicable or
relevant and appropriate requirements"
at CERCLA sites.
Other commenten disagreed,
however, with EPA's proposal not to use
the EP Toxidty Test These commenten
noted the test's well-established
reputation, and the large amount of data
already collected by the Agency. EPA
proposed Method 1312, they argued,
without demonstrating the inadequacy
of the EP or TCLP tests (e.g., EPA has
not demonstrated that the EP or TCLP
tests significantly and consistently
overestimate leaching of metals from
mineral processing wastes). These
commenten went on to note that the
argument that monofill disposal implies
that the EP test is inappropriate for
mineral processing wastes dearly was
rejected by EPA in promulgating the EP
test in I960. Furthermore, the
commenters stated, not using the EP test
because of the nature of the extraction
medium falsely assumes that each
processing waste is disposed of in a
manner that predudes it from coming
into contact with other processing or
mining wastes when, in fact there is
strong reason to presume an addic
disposal environment These
commenters contended mat (1) many
mining and metallic on processing
wastes have tig^'flc*"* add generating
potential (which may result in very
acidic gondittft"*! even in a monofill),
(2) many wastes an stored or disposed
in unlined units, (3) many sites are
located In conjunction with mining and
other similar activities, (4) many
exempted wastes an themselves addic.
and (5) EPA's use of a 100-fold dilution/
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Federal Register / VoL 54. No. 160 / Friday. September 1.1989 / Rule* and Regulation* 36601
attenuation tutor I* diffidently
modified to account for variability in
leaching condition*. EPA. they believed,
should consider that exposure of non-
acidic waste* to acidic conditions
through commingling with other wastes.
leachate. or contaminated nmoff is •
highly plausible scenario and certainly a
reasonable worst-case scenario.
The Agency acknowledges the welt*
established reputation of the EP Toxicity
Test and the large amount of EP extract
data for mineral processing wastes, but
nevertheless believes that the EP and
TCLP tests and data generally are
inappropriate for identifying mineral
processing wastes which are "clearly
not low hazard" under today's screening
process and thus should be removed
from the Bevill exclusion. The purpose
of the EP and TCLP testa an to
determine which solid wastes are
"hazardous wastes'* under sections
1004(5) and 3001(a) of RCRA: by
contrast, today's hazard criterion
determines only whether a waste should
be temporarily excluded from regulation
under section 3001(b)(3).
EPA agrees that mineral processing
wastes may be disposed in acidic
environments; however, the acids to
which they will usually be exposed an
mineral acids, rather man organic acids
such as that used in the EP and TCLP
tests. This fact is central to EPA's use of
Method 1312 for evaluating the hazard
of mineral processing waste*. In
contrast to the disposal of municipal
refuse, mineral processing wastes are
unlikely to be managed in environment*
that contain or are capable of generating
organic acids, such as the acetic add
formed by decaying garbage; mineral
processing wastes, with very few
exceptions, do not contain appreciable
quantities of organic natter. Thin. EPA
believes that use of the EP or TCLP
would identify certain mineral
processing wastes as not low hazard
which EPA believes an appropriate for
further study under section
because- they dp not meet one or man of
the Bevill criteria are not special wastes.
and will be evaluated for possible
regulation under subtitle C in the same
manner as any other industrial solfit"
waste. EPA believes that use of the EP
(or, in the near future, the TCLP) is
appropriate for noa-Bevill mineral
processing wastes removed from the
exclusion today because EPA does not
have reason to believe that the wont-
case mismanagement scenario would be
implausible for such low-volume wastes.
Thus, these tests an appropriate for
determining the hazardous
characteristics of particular waste
streams that an potentially subject to
regulation under RCRA section 3001
without further study.
Commenters arguing for use of the EP
Toxicity Test also noted several sources
of information that indicate that the use
of organic adds may affect the leaching
of lead differently than of other metals.
In addition, they stated, the
nprodudbility of these test procedures
could be adversely affected with respect
to lead. They noted one study that
suggested that in cases in which lead
was the only constituent that leached
above regulatory thresholds, an
additional test (e.g.. using suttoric add)
should be used to eliminate the effect of
organic complexation while stffl
retaining the acidic conditions. One
group of coomenten postulated the
inappropriateness of Method 1312 (and
argued for a more aggressive leaching
method) by citing a certain study*
evaluation of the waste extraction test
(WET) and possible alternatives. This
study, they said, demonstrated mat test*
other than WET—similar to Method
1312 according to one commenter—
jfFer from very low or no ionic strength
and buffering capacity. The stud;
authors, they contended, nf
dair
that organic add* employed by WET.
EP. or TCLP are overly
water generally exerts minimal
extraction from slags and doe* not
reflect conditions to which slag is
exposed in the natural environment
Other commenters, however, argued
that deionized water extraction is well
tested and is "MA enough to screen out
only the highly hazardous wastes which,
they contended, an the only wastes that
EPA should be trying to eliminate from
the exdusion at this time. A neutral
water method, one commenter went on
to state, is an appropriate basis for
evaluating which wastes removed from
the Bevill exdusion meet the criteria for
hazardous waste regulation.
As indicated in the April proposal, the
date from deionized water extraction
tests were used as surrogates since
there was very little date on mineral
processing wastes available at the time
using Method 1312. However. Method
1312 uses simulated acid rain as a
leaching fluid to attempt to reflect
conditions in the •'iu*lwf'">***- For >t»«
reason. EPA believe* thet it i* a more
accurate screening \v. » than would be
the deionized water r*trf ettan method.
While Method 1312 ••- expected to be
slightly more aggressive man the
deionized water extraction test tt is still
expected to be less aggressive than the
EP toxidty test and hence, more
appropriate as a screening tool
Since the proposal EPA has collected
samples of all potentially high volume
mineral processing wastes for analysis
using Method 1312. EPA has been able
to complete laboratory analyses of
samples from seven of the nine high
volume wastes for which EPA used
deionized water or EP toxidty data to
propose hazard determinations in ApriL
Now that the Method 1312 data are
available, the Agency need not rely
solely on neutral water or other test
data. EPA notes here that the new
mnA analytical data obtained
TCLP extract data, and a* stated ta the
April NPRM and dJacnseed in Section m
of thi* preamble. EPA wffl use existing
EP extract data to tab evaluate whether
a waste stream which fafla the baste
toxidty teat (using Method 1312) should
nonetheless remain within the Bevill
exdusion under certain condition*. EPA
believe* that use of EP/TCLP extract
data in**»*« fashion la appropriate to
account for possible anomalies in the
Method 1312 result*, since EPA
concedes that Method 1312 hes not been
used in a significant number of past
EPA recognizes the potential
differential treatment of the EP test with
respect to lead-containing wastes
(because of the organic add used m the
test). Bat because Method 1312 docs not
use an organic add. this difference i*
not expected to be a problem, ra fact,
recent resnlta of comparisons between
Method* 1310 and 131Z which EPA
A* already stated, waste streams that
an removed from the Bevul exclusion
indicate that the difference in
aggressiveness between the two
methods with respect to lead is gteater
than the difference with respect to other
contaminants. (See bebw tor additional
discttMtan.00 thia point)
One commenter argued that the mseol
a deionized water extraction test to
measure inherent toxidty of smelter slag
is inappropriate because deionized
using Method 1312 confirm the Agency*
earlier findings with respect to which of
the nine wastes an and are not low
hazard.
b. Method 1312— Simulated Acidic
Precipitation Procedure. Several
commenten supported EPA'* proposed
use of Method 1312 for testing the
hazardous teachability of mineral
processing wastes. Some endorsed the
move toward Method 1312 because they
felt it waa more appropriate than the EP
Toxidty Test (although they believed
that Improvement* could be made).
Many other* contended that for a
variety of reason*. Method 1312 wa*
inappropriate for determining low
hazard. The reasons noted related to „
general issues, a* well as the method*
supposed lack of representativeness a*
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36602 Federal Register / Vol 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations
the environmental condition! to which
mineral processing wastes generally are
exposed, the lack of available data to
evaluate its accuracy, the contention
that the method is not less aggressive
than current methods, the questionable
applicability of the method to local and/
or mineral processing conditions, and
finally a variety of specific technical
issues. These comments are addressed
in detail below.
i. General. Several commenters stated
that Method 1312 was not finalized and
could not be replicated. According to
one commenter. EPA must abandon
Method 1312 and instead rely on the
RCRA section 8002(p) factors to study
all mineral processing wastes.
EPA believes that although Method
1312 was not finalized via a final rule at
the time of the proposed rule, sufficient
data were available in the docket to
conduct an appropriate evaluation of the
method's suitability as a mineral
processing waste screening test.
Furthermore, in response to these
comments. EPA has examined
additional data which have become
available since the proposal (these data
may be found in the docket for this
rulemaldng). In response to the
suggestion that a RCRA section 8002(p)
study should be conducted to evaluate
hazard, and as discussed previously.
EPA believes that a quantitative
screening test is the most appropriate
method for identifying wastes which are
not low hazard, as required by the EOF
IL The Report to Congress will be
conducted only for the wastes remaining
in the Bevill exclusion.
Many commenters stated that EPA
should make the toxidty standards for
liquid wastes less stringent because, as
proposed, the Agency would be
measuring low hazard at the same
constituent concentration values used to
determine whether a liquid waste
exhibits a characteristic of hazardous
waste: specifically, the method would
impose the same criterion for liquid
mineral processing wastes as would the
EP Toxicity Teat (Method 1310). This
judgment is counter, they argued, to
EPA's intention of developing a teat to
determine which wastes are clearly not
low hazard, and la contrary to die ruling
of EOF I which maintained that the
Bevill Amendment was designed to
temporarily suspend regulation of
special wastes under subtitle C
irrespective of whether they fail
hazardous characteristic tests. As an
alternative, some commenters
recommended, EPA should adopt the
approach used by Congress in
identifying liquid hazardous wastes
subject to land disposal restrictions.
Finally, several commenters suggested
increasing by one order of magnitude
the contaminant concentrations used to
determine'the hazardousness of the
liquid.
EPA believes that an adjustment of
the screening tool for determining which
wastes containing less than 0.5 percent
solids are not low hazard is
inappropriate, because the purpose of
the 100-fold increase of the MCL is to
account for dilution/attenuation of the
dissolved contaminants in the
environment As already indicated, the
Agency believes that once contaminants
are in dissolved form and available for
dispersion in the environment the same
standard should be applied to evaluate
their toxicity, regardless of whether the
solution tested is a waste sample or a
test extract
ii. Evaluating the Accuracy of Method
1312. Some commenters stated that the
limited tests that have been performed
on Method 1312 focus on only two of the
eight metallic constituents of concern
(lead and cadmium) and. therefore, are
not adequate to support application of
Method 1312 to a wide variety of
processing wastes. Furthermore, a
commenter stated, the Agency should
question the accuracy of the
interlaboratory testing which compared
Methods 1310,1311. and 1312 only for
the parameter of lead and gave no
information regarding the effectiveness
of these methods on the teachability of
other elements. One commenter
believed that Method 1312 is inadequate
as a screening test because (1) the
degree to which 1312 is less aggressive
than 1310 is unknown and (2) many data
that are available for waste streams
using 1310 and 1311 will become
unusable if Method 1312 becomes the
test This commenter. however.
supported EPA's proposal that data from
Methods 1310 and 1311 should be used
to a limited extent if Method 1312
remains as the mobility and toxidty
teat
As discussed above. EPA believes
that both the previous and the current
teat date for Method 1312 adequately
prove the usefulness of this method for
the purposes stated. In addition, the
effectiveness of Method 1312 (e*.
compared to Method 1310) on elements
besides lead has been confirmed
(supporting date may be found in the
docket for this rulemaidng). By
definition, a screening test is designed to
be accurate only to the extent that it
separates out only those segments of a
population (in this case mineral
processing wastes) that clearly do not
meet a certain set of criteria (in this case
low hazard). EPA reiterates that Method
1312 is only being applied as a screening
test .to identify wastes that clearly are
not low "hazard and therefore do not
qualify for a Bevill exclusion. Those
wastes that do qualify will still be
further evaluated to determine what
controls are needed.
iii. Applicability of Method 1312 to
Mineral Processing Wastes and Soils.
According to several commenters.
Method 1312 is inappropriate to
determine the mobility of contaminants
in mineral processing wastes and
wastewaters because the method
originally was designed for testing
contaminant migration in soils.
EPA disagrees that Method 1312 is
inappropriate for this or any other
reason. The original purpose of Method
1312 is irrelevant to its purpose in this
rulemaldng. just as its purpose here is
irrelevant to other rules that do not
involve identification of wastes subject
to the Bevill exclusion. For the reasons
presented throughout this preamble and
in the background document to this
rulemaldng. Method 1312 is believed to
be appropriate for use on mineral
processing wastes within the context of
the Bevill exclusion hazard criterion.
iv. Appropriateness of Method 1312 OB
a Modification of the Standard As
stated previously, several commenters
acknowledged Method 1312s
appropriateness as a modification of the
mobility and toxicity standard.
According to some commenters,
however, the use of Method 1312 would
not represent a less aggressive standard
and. therefore, would be contrary to
Congressional intent They contended
that contrary to EPA'a claim. Method
1312 is not consistently less stringent
than the «<«Hnfl hazardous waste
characteristics tests; for example, in one
EPA test Method 1312 leached more
lead than the EP Toxicity Test in 12 of
18 analyses conducted on two soil
samples. Before Method 1312 is
incorporated into a formal rulemaldng.
they stated, date should be gathered to
unequivocally demonstrate that the
leachate concentrations wiD not be
greater than those obtained by Method
1310.
The Agency believes that in general
Method 1312 will be less aggressive than
the EP test and the TCLP test The
following excerpt is from the EPA test
irred to by the commenters as
f«vO(T FBI
an explanation of the results for the two
samples described by the commenters:
met • distilled
*y lulls lead
Method 1312. which is in «
rater adracnoa aolubilized <
except for the two North Carotin samples, S
and a, which contained very Ugh levels of
lead la the bulk soiL Results by Method 1310
for these same two soils wm i
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Federal Register / VoL 54, Na 169 / Friday. September 1, 1989 / Rules and Regulations 36603
agreement wtth the 1312 imdu becnee no
acetic add was added daring the 1310
extraction of UMM two eoils. That is. for both
methods the extracting fluids were needy .
identical far these two samples.
In other words, these two unusual soil
samples from a Superfund site were
both highly acidic and very highly
contaminated. In this situation, the EP
test and Method 1312 provided
essentially the same results. It is also of
note that the TCLP. which will replace
the EP, was significantly more
aggressive than either the EP or Method
1312 for these two samples. The results
from these two samples and the
conditions of the sites where they were
collected are in contrast to the
conditions typically found at and
sampling results derived from mineral
processing facilities, as indicated by
EPA's recent sampling program and
laboratory analyses using Method 1312.
v. Applicability of Method 1312 to
Local and/or Mineral Processing
Conditions. Some commenten stated
that Method 1312 is not applicable to
mineral processing operations located in
certain areas became the pH of the
testing medium is not representative of
rainfall in those areas and would
potentially yield erroneous results;
furthermore, because many mineral
operations are in arid areas, the Method
1312 procedure of saturating the waste
sample in an acid solution for 18 hours
is non-representative of these sites.
Other commenten believed that Method
1312 will produce misleading results
because it (1) unreaUstically targets
certain elements in Bevill wastes, (2)
produces leaching results that bear no
relationship to actual management
practices, and (3) fails to account for
site-specific conditions. One commenter
suggested mat EPA allow the extraction
for mineral processing wastes to
enters. One?
fluic
depend on the region of the country
where the waste is managed (e.§, a pH
of 4.4 could be used for east of me
Mississippi and a pH of &2 could be
used for west of the Mississippi).
Although Method 1312 includes two
different extraction fluids for soils to
attempt to account forgeognpmc
variations in imtafslt this variation is
appropriate only tor evaluating ill-place
soils sine* their geographic location to
known. For evaluating waste* for a
national regulation, the Agency cannot
assume that all of a particular waste
will be generated and managed hi any
particular location or region. Therefore.
to be conservatives protecting human
health and the environment tha Agency
will apply the pH4i extraction fluid to
all mineral processing wastes.
vL Specific Technical Ismes. A
variety of specific technical issues were
commenter argued that EPA should
abandon the use of the Zero Headspace
Extractor (ZHE) in Method 1312 because
its erratic results with the extraction of /
volatile* is a troubling source of
unexplained variation. Another
commenter arguing against the
applicability of Method 1312 stated that
the proposed batch test approach does
not account for the time dependent and
flow dependent kinetics of the
mobilization of spedes from wastes and
will overestimate the resultant
concentrations when compared to a
natural system.
In response to the first point the
Agency believes that it is unlikely that
most samples will contain volatile
organic* at levels of concern, nor does
the Agency plan on assessing volatile
organic* in metal processing wastes;
thus, then is no reason not to use the
ZHE with the test Concerning the
second point EPA agrees that
overestimate* may result but has
already accounted for potential
ovenstimation by the use of a multiplier
of 100 for the drinking water standards
that are used for comparison.
Many commenten addressed specific
aspects of the leaching liquid that
should be used for Method 1312. For
example, will the extraction fluid be
brought into equilibrium with the carbon
dioxide in the air? If so, they stated, tha
buffering capadty of the fluid will
change over time if the fluid is mixed
and then stored. For consistency.
therefore, the description of Method
1812 should state that the fluid is to be
- mixed immediately before use. or
brought into equilibrium with
atmospheric carbon dioxide. .
Another commenter on the extraction
fluid used for the Method 1312 test
stated that a carbonic add/sulfuric
add/nitric add cocktail which has been
specifically prepared to simulate
precipitation, should be used. Another
commenter added that if EPA wen to
use Method 1312. the extraction fluid
volume should be increased from 20rt to
SOrt. or the MCLs should be increased
for wastes which have prTs below those
of die recommended extraction fluids.
One commenter contended that then
an technical difficulties tat using the*
deionized water required by Method
1312. For example, the commenter
stated, deionized water can have
variable pH level* which could lead to
inconsistent results. Some commenten
stated mat rather than Method 1312,
EPA should us* ASTM D 3987 (a
distilled water leach test) a* a more
appropriate screening test
The Agency believe* that Method
1312, as described in the background
appropriate as a screening test for —
mineral processing special study waste
The cmient extraction fluid formulation "
has been adequately tested and does not
need modification, and the rationale for
reducing the stringency of the
comparison toxidty levels for wastes
with low pH levels is unclear. The
statement that deionized water can have
variable pH levels is sound, but this
should not pose a problem because the
pH is subsequently adjusted to reflect
add precipitation. Finally, given mat
Bevill mineral processing wastes are by
definition generated in large volumes.
then is no justification for increasing
the extraction ratio (e.g* from 20rt to
SOrt) to simulate actual environmental
conditions when evaluating candidate
wastes using Method 1312.
If EPA chooses to promulgate Method
1312, some commenten stated, it should
address whether a particle size
reduction step is appropriate or if the
step creates additional surface area that
artificially elevates teachability.
Another commenter contended that EPA
should replace the particle size
reduction requirement hi Method 1312
with the Structural Integrity Procedure
because a number of mineral processing
wastes exist as hurt monolithic wastes
that an unlikely to be physically _
degraded in a landfill. This commenter ""
stated that congressional floor debate
indicated recognition of this fact One
commenter believed that the selected
particle size in the proposed Method
1312 is not a good analog of the partide
size distribution in spent on materials
from heap leaching, and another
commenter stated that the concept of
partide size reduction should be
eliminated altogether from Method 1312
and wastes should be tested hi their
.natural state.
The Agency believes that with
respect to partide size reduction, there
is a wide variety of partide sizes among
the candidate Bevill wastes. In order to
achieve analytical results that are
broadly applicable across sites and ovei
time, the partide size reduction step is
necessary in order to ensure that the
smaller parades in the waste as
generated or after disposal are
adequately represented and that the
Agency has data with which to make
regulatory decisions for an entire sectoi
based upon sampling results from a
small number of facilities.
c. Othtr Typtt of Tests. On*
Bter objected to the separate tes
proposed for wastes suspected of
taining cyanides. The commenter
tended that EPA must choose eit)
con
the extraction solution proposed for
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36604 Federal Register / Vol 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
cyanide, or that proposed for metals: to
propose a separate extraction solution
to assess cyanide and metals singularly
Is illogical and technically incorrect'
Some commenters stated that EPA
should utilize a method developed by
the California State Water Resources
Board that estimates acid-forming
potential of mining wastes, because EPA
should not classify mineral processing
wastes with significant acid-forming
potential as low hazard. Acid Mine
Drainage (AMD), the commenters
contended is one of the most serious
environmental concerns at mining sites
and is pertinent to the mineral
processing waste issue given the
potential for processing waste storage at
mining sites and the potential for
processing waste disposal sites to
become acidified.
One commenter stated that an
appropriate test for inherent toxicity
should account for complexing as a
release mechanism for metals; for
instance, the ASARCO smelter located
near Tacoma. Washington disposed slag
in low lying areas rich in organic matter.
which has resulted hi high metals
loadings being released into local
waterways.
EPA disagrees with the suggestion
that the separate test for cyanides be
eliminated. Separate tests are
appropriate, because metallic elements
in solid samples must be acid-digested
for analysis, while cyanides can be
extracted using less aggressive methods.
Acid digestion of cyanide-bearing
materials is also dangerous, because it
can generate deadly HCN gas. In order
to both collect accurate analytical data
and protect laboratory personnel. EPA
will continue to use separate testing
methods. The Agency agrees that add
mine drainage is one of the most serious
environmental concerns at mining sites.
At this point however, the Agency is
only applying a screening test (Method
1312) to identify those wastes which
clearly da not qualify for the special
waste exclusion. Those wastes that do
qualify will be further studied to
determine the need for additional
controls, and the acid-forming potential
of those wastes is one of the factors that
will be evaluated. Finally, die Agency
believes that it is technically infeasible
to consider factors requiring site-specific
data, such as organic complexation of
metallic contaminants, in a screening
test This and other risk-related
variables will instead be considered for
the Report to Congress on wastes
retained within the Bevill exclusion.
6. Constituents for Testing
a. Constituents Proposed in Mobility
and Toxicity Test Some commenters
stated that a major problem with the
proposed constituents to be used in the
mobility and toxicity test is that no
distinction is made between the
hexavalent and bivalent forms of
chromium, which is important given that
EPA has described hexavalent
chromium as the more toxic form. One
commenter noted that EPA has (1)
decided to consider only hexavalent
chromium concentrations when listing
solid wastes as hazardous wastes and
(2) excluded from Subtitle C regulation
wastes that fail the EP Toxicity Test due
primarily to the presence of bivalent
chromium. The commenter claimed that
the Bevill status of wastes associated
with the processing of titanium ore
which contains only bivalent chromium
would be affected by the proposed
approach.
EPA believes that total chromium
concentration is a more valid and
environmentally protective indicator of
hazardous potential than is a measure of
hexavalent chromium, principally
because chromium-bearing wastes may
be exposed to oxidizing conditions in
the environment (which would
transform bivalent chromium to
hexavalent chromium). Therefore.
measuring only hexavalent chromium in
mineral processing wastes on an as-
generated basis might yield an
inaccurate indication of (i.e., understate)
actual degree of hazard. Thus. EPA will
continue to compare total chromium
leachate concentrations to the health-
based level for hexavalent chromium.
This same concern is reflected in EPA'a
proposed Toxicity Characteristic rule
(51FR 21648), and was the primary basis
upon which six low volume mineral
processing wastes were listed (53 FR
35412) in response to the same federal
Appeals Court ruling that precipitated
rtila rulonnk
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Federal Register / VoL 54. No. 189 / Friday, September 1. 1989 / Rules and Regulations 36605
must not be used. Phosphogypsum.
according to this commenter. may
exhibit radioactivity because of
naturally occurring radionudides. but
both Congress and EPA have already . -
given the radiological aspects of
phosphate processing extensive
consideration, making it unnecessary for
the Agency to establish a "bright-line"
test for radioactivity.
Another commenter stated that
screening mineral processing waste
streams out of the Bevill exclusion
based solely upon radioactive
characteristics without developing
standards relevant to the hannfulness of
these wastes would not be appropriate
because the waste would subsequently
fall under Subtitle C regulation, which
may not be applicable to radioactive
waste: a facility that had a waste
removed from the Bevill exclusion might
be required to incur substantial expense
without public health benefit
EPA believes that radioactivity and
other constituents suggested by
commenters should not be included as
components of the hazard criterion
because they are not addressed in the
hazardous waste characteristic tests.
which are the cornerstone of and
reference point for the low hazard
criterion. EPA believes that it would be
logically inconsistent to remove a waste
from the Bevill exclusion during this
screening on the basis of a hazard
characteristic that would not by itself.
cause the wasta to be regulated under
subtitle C These constituents will
however, be considered in the detailed
studies that will underlie the Report to
Congress on Bevill mineral processing
wastes. Accordingly, the potential risk
posed by the radioactive or other nature
of any of these wastes will be addressed
in detail within the next year. EPA plans
to utilize data developed for the
radionuclide NESHAP as part of this
evaluation.
7. Additional Standards
Many commenters stated that
although the Agency's use oIMCLs to
measure hazard to •*"«•" health is
supportable, a major deficiency in the
approach is the use of the MCL for
arsenic (• frequent constituent of
processing wastes) in evaluating human
health risk: arsenic's cardnogenicity
mandates a more stringent standard for
human health. Specifically, a NT* risk
level for arsenic was suggested. These
commenters also contended that EPA
should not rely solely upon the MCL. but
instead utilize the lowest standard from
among the chronic ambient water
quality criteria. MCL. cancer risk level
or oral reference dose for given
substances, and then apply the 100-fold
dilution factor to establish an
appropriate low hazard standard. In
addition, these commenters stated, the
proximity of many processing sites to '
drinking water supplies, underlying
graundwater, and human populations, as
well as numerous damage cases
demonstrating risks to public health, ~
argues for a measure of hazard that
directly addresses human health.
Commenters also stated that many
substances present in processing wastes
are more toxic to aquatic organisms
than to humans. Moreover, MCLs do not
exist for some toxic substances whereas
ambient water quality criteria have been
developed for many additional
substances. Furthermore. EPA has
stated in the uncompleted 1988 draft
Report to Congress on selected mineral .
processing wastes that all of the
potentially hazardous wastes studied
had constituent leachate concentrations
that exceeded ambient water quality
criteria.
In addition, these commenters added.
a number of the mineral processing
wastes exceeded hazardous waste
standards even when extracted with
water. All the copper, zinc, and lead
processing wastes, they stated, contain
arsenic at levels that exceed a 10~*
lifetime cancer risk level; even the
minimum concentrations of copper
process wastewater, copper acid plant
blowdown. copper bleed electrolyte, and
zinc process wastewater sampled
exceeded this cancer risk level
In contrast several commenters
stated that for a variety of reasons EPA
should not use additional standards.
One commenter stated that an aquatic
organism or radiological standard
should not be used because aquatic
organisms and radiological concerns are
amply addressed by statutes other than
RCRA. Another commenter stated that
the aquatic organisms standards are
inappropriate for the following reasons:
RCRA is almost exclusively a human
health-based program: the protection of
aquatic organisms is not an integral part
of RCRA other statutes protect aquatic
organisms; and mineral processing
waste streams are often closed-loop and
entirely contained within the facility.
Although die Agency strenuously
^ffHjf"t with the contention that the
scope of RCRA is generally restricted to
protection of human health rather than
more broad additional protection of the
environment it has decided not to
augment the standards that were
presented hi the April notice. Part of the
reasoning behind this decision is not
that these standards an irrelevant, but
that applying them requires site-specific
data Out are not currently available for
most candidate mineral processing -
wastes. For example, applying Ambiem
Water Quality Criteria in any realistic
way requires site-specific information
on the flow of potential receiving
waters, which vary over many orders of
magnitude between sites. A more
important argument, however, for
retaining the standards proposed in
April is related to the argument
presented in the previous section on
other constituents: EPA believes that
other standards and criteria suggested
by commenters should not be included
as components of the hazard criterion
because they are not addressed in the
hazardous waste characteristic tests.
which are the basis for the low hazard
criterion. During the Report to Congress.
however, many of the additional
standards and criteria referred to by
commenters will be addressed.
& Application of Tests
Some commenters disagreed with
EPA's proposal that wastes fail (i.e., are
removed from the Bevill exclusion)
when two or more facilities fail the
hazard criterion. Many believed that the
proposed "two-facility" decision rule is
not stringent enough and the proposed
plan to sample waste streams and apply
Method 1312 ignores existing data, while
others argued that the proposed
application of the tests would be
arbitrary and capricious. One
commenter questioning the statistical
accuracy of the "two-facility" test
suggested that EPA sample a significant
majority of the waste streams. Another
commenter added that even if one could
accept the statistical validity of making
a recommendation based upon only two
samples, the samples used in the test
may have demonstrated entirely
different characteristics: for example.
one of the samples could have
represented Missouri ores and the other
Western ores.
The Agency stresses that it must make
decisions, using limited data and within
certain time constraints, about the
degree of hazard posed by mineral
processing wastes. Therefore, the
screening approach described in the
April NPRM and refined hi today's
preamble was developed to identify
wastes that clearly are not low hazard
and therefore should not remain within
the Bevill exclusion. In response to
comments, EPA has refined the hazard
criterion to allow for the use of
additional relevant data when a waste
is generated at five or more facilities
(see section m for details). Moreover.
EPA has collected additional data on
the "'"• high volume wastes for which"*1
the Agency proposed unconditional
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36606 Federal Register / VoL 54. No. 169 / Friday. September 1. 1989 / Roles and Regulations
Bevill exclusion decisions in April Date
on other candidate Bevill mineral
processing wastes will not be available
until the September proposal
The "two-facility" rule, the Agency
believes, is appropriate when either (1)
substantial additional relevant data are
not available or (2) less than five
facilities generate the waste. In the
latter case, the rule translates into the
question of whether half or more of the
facilities generate a mineral processing
waste that fails the comparison of the
Method 1312 extracts to the toxicity
levels. The Agency believes that the
"two-facility" rule is a reasonable
balance between too much and too little
stringency. As for whether failure for
different constituents at different
facilities proves the inadequacy of the
two-facility test EPA believes that this
type of situation is precisely why the
low hazard criterion (and the
characteristics tests upon which it is
based) contains multiple factors. It
matters little why a particular waste is
not low hazard at one site or at multiple
sites. What is important is that EPA has
a method of identifying the mineral
processing wastes that are not low
hazard, for whatever reason.
EPA. one commenter noted, should
require that the pH values for
comparison be the average of a
statistically valid number of samples
that are representative of the waste
stream: otherwise non-representative
samples could incorrectly label an entire
waste stream as hazardous. The Agency
believes, however, that using the median
rather than the average of the pH values
when more than two samples are
available for a facility is more
appropriate because pH is measured on
a logarithmic scale; the average of the
anti-logs of multiple values will always
be dominated by the lowest value.
Some commenters recommended that
EPA determine that a processing waste
passes the low hazard criterion if it
passes the criterion for any single
facility generating that waste. The
Agency believes, however, that this
approach would be insufficiently
protective and exempt wastes which an
clearly not low hazard at a «
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Federal Register / Vol. 54, No. 169 / Friday, September 1. 1989 / Rules and Regulations 36607
Agency has proven that this is a viable
approach by utilizing it with mining and
benefidation wastes.
Several commenters argued that EPA
should consider the quantity of waste in
evaluating its potential hazard. They
suggested that the Agency should.
through the use of a variable dilution-
attenuation factor applied to high-
volume wastes, incorporate a measure
of waste quantity into its proposed
criterion.
These commenters also suggested that
EPA consider all environmental data to
determine actual risk arising from
mineral processing wastes. They
provided data on locational
characteristics of mineral processing
sites in order to lend support to their
argument that there is a need to
consider environmental risk at least as
carefully as risk to human health in
evaluating processing wastes.
The Agency reiterates its position on
the use of risk or other site-specific
information in the application of the low
hazard criterion; this type of approach is
inappropriate due to time constraints
and EPA's belief that the hazard
criterion is a screening tool for mineral
processing wastes and is not intended
as a replacement for the detailed study
required by statute. That study will
incorporate information such as waste
management practices, waste
characteristics, and site characteristics.
C. The High Volume Criterion
The April 17.1988 NPRM specified a
high volume criterion to be used to
identify high volume mineral processing
wastes. This criterion superceded and
modified the original high volume
criterion contained in the 10/20/88
proposal In the April notice, the Agency
stated that a waste stream would be
classified as a high volume waste if it is
generated at an average rate of more
than 50.000 metric tons per facility per
year. To account for fluctuations in
minjn-^ commodity tnafV''tti th^ test
was to be applied to the highest avenge
generation rate during any one year
between 1983 and 1988. The actual
cutoff selected by EPA for die high
volume criterion was based on urge
volume waste streams currently being
managed under Subtitle C regulations.
1. General Comments
Several commenters objected to any
use of a "high volume" criterion to
determine Bevill status. In particular.
one commenter argued that the criterion
discriminates against those sectors
which, by nature of their operations, an
small or are operating at reduced levels
in a depressed market Another claimed
that the use of only a high volume
criterion will lead to inconsistent results
by removing from exclusion mineral
processing wastes that Congress
intended to include within Bevill and
which would be likely to remain exempt
following submission of the Report to
Congress, while retaining in the
exclusion some high volume wastes that
may be subject to stricter regulation
after study for the Report to Congress.
Another commenter argued that
establishing a stringent high volume
criterion as a screen for permanent
exclusion from Bevill is inappropriate .
because it severely limits the regulatory
options available to address particular
waste streams. They maintained that the
criterion should be construed liberally
because retaining a waste under Bevill
merely makes it eligible for study and a
subsequent determination by EPA on
whether the waste should be subject to
Subtitle C regulation.
Several commenters recommended
that EPA not rely solely on a volume
criterion to determine Bevill status. They
asserted that many factors were to be
studied before mineral processing
wastes were regulated and. in addition,
that Congress intended low volume
wastes which posed significant
manageability problems to still be
eligible for the Bevill exclusion. They
argued that the Agency should consider
those "high volume" issues unique to
each industry that generates such
wastes, including those characteristics
nmiMjal or unique to the mineral
processing industry.
As discussed at length in the April
notice, the Agency rejects these
arguments as inconsistent with the
Court's reading of legislative intent and
as contrary to the special waste concept
Only waste streams that are truly
"special wastes" an eligible for
examination in the Report to Congress.
The high volume criterion has always
been central to the special waste
concept and is a necessary and
appropriate first screen in the final
determination of a mineral processing
waste's Bevill status. Other industry-
specific factors relevant to mineral
processing waste management will be
considered in EPA's Report to Congress
addressing those wastes that an high
volume and low hazard.
2. Separate Volume Criteria for Liquid
and Non-Liquid Waste Streams
In the April 17 NPRM. the Agency
solicited comment on the use of separate
high volume cut-offs for liquid and solid
mineral processing wastes. Specifically.
EPA suggested 1.5 million metric tons
per year as a volume cut-off for liquid
wastes. The consideration of a higher
cut-off for liquid wastes was predicated
on the fact that industry routinely
manages hazardous wastewater -•
volumes in the millions of gallons per
day per facility (i.e* well over one
/million metric tons per year), which is in
marked contrast to non-liquid waste
materials which an typically generated
and managed in much smaller
quantities.
Comments on a separate volume
criterion for liquid wastes wen varied.
While some commenters stated that not
only is a separate wastewater cutoff
wholly appropriate, it should be much
larger than 1.5 million metric tons.
others contended that a separate
criterion should not be employed at all.
Several commenters supporting a
separate criterion for liquid wastes
stated that EPA should employ a
separate volume criterion for liquid
wastes higher than the proposed 1.5
million metric tons per year. They
asserted that the proposed 50,000 metric
tons per year threshold cannot be
justified for liquid wastes even at
average hazardous waste treatment
storage, and disposal facilities (TSDs):
then must be a separate liquid volume
criterion, and it should be substantially
larger than 1.500,000 metric tons per
year. Specifically. EPA should establish
the volume criterion by determining the
volume representing the 99th percentile
of volume handled at regulated
hazardous waste TSDs.
These commenters claimed that such
an approach is supported by three
considerations: (1) It makes date
comparisons with those segments of the
Subtitle C regulated community most
relevant to the current rulemaking.
therefore the results will not be
arbitrary: (2) it reflect* the technical
feasibility of complying with subtitle C
regulations, and thenfon is consistent
with EPA's original concept of the
special waste exemption: and (3) by
limiting the overlap between the
regulated and exempt communities to
one percent, it allows for unusual
outliers while still narrowing the bounds
of the exemption as Congress and the
Court in EOF n intended.
These commenters went on to state
that a volume criterion for liquids
substantially greater than the proposed
50.000 metric tons per year is supported
by date from the 1985 Biennial Report
and other EPA date. They stated that
the average non-commercial surface
impoundment TSD owner/operator
managed at least 922.000 metric tons of
hazardous waste in surface
impoundments during 1986. while the
average non-commercial underground
injection well facility managed at least
403.199 metric tons of hazardous waste
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36608 Federal Register / Vol. 54. No. 169 / Friday. September 1. 1988 / Rules and Regulations
during 1986. Data on Alabama,
Kentucky, I-nytfiana, South Carolina,
and West Virginia indicate that waste
was generated in quantities over several
hundred thousand metric tons, generally
on-site at the average State TSD.
EPA agrees with the commenters that
currently available data on waste
management at subtitle C facilities
support a higher high volume criterion
for liquids than for solids. However, the
data from the Biennial Report were not
adequate for the type of analysis EPA
believed appropriate. To address these
comments and to develop a specific cut-
off value, the Agency used data from
EPA's National Survey of Hazardous
Waste Treatment Storage, Disposal.
and Recycling Facilities (TSDR), which
contains detailed information about
volumes and specific types of wastes
generated and managed at Subtitle C
regulated facilities during calendar year
1986. These data allowed EPA to
conduct a waste stream-level analysis of
current management practices and
hazardous waste volumes managed at
facilities regulated under subtitle C of
RCRA. Copies of the data used in the
analysis are available in the docket
As discussed more fully below, the
Agency examined individual waste-code
data for waste streams entering Subtitle
C landfills to develop a revised criterion
for solid/sludge materials, and for waste
streams entering wastewater treatment
processes, surface impoundments, and
injection wells to develop a cut-off value
for liquid waste streams. The final
criterion values reflect the largest single
waste code managed at the 95th
percentile of the Subtitle C facilities
employing these hazardous waste
management techniques.
On the other side of the issue, several
commenters stated that EPA's
suggestion to use a separate high volume
criterion for aqueous liquid wastes is
inappropriate and that the Agency
should apply the same high volume
criterion to liquid and solid waste
streams from mineral processing
operations. They based this comment on
the assertion that then is no
justification for a separate aqueous
waste criterion within RCRA. the Bevill
Amendment, the Simpson Amendment
the legislative history, or die Agency's
descriptions of the special waste
concept The commenters also
contended that the disposal of aqueous
wastes is already controlled for the most
part under other programs such as the
National Pollution Discharge
Elimination System (NPDES) of the
Clean Water Act and therefore, a
separate volume cut-off is not
warranted. These commenters also
remarked that a higher liquid waste cut-
off would cause many facilities to lose
exclusionary status and be regulated
under Subtitle C for solids as well as for
wastewater.-
The legislative history clearly
identifies amenability to management
under subtitle C as a primary criterion
for defining special wastes. The Agency
believes that because liquid and solid
wastes have very different
characteristics and are managed with
very different processes, defining a
separate high volume cut-off for liquids
and solids is appropriate and necessary
to fully capture the differences in
manageability of different types of
waste streams. The fact that some waste
streams may lose their excluded status
is not a determining factor in
establishing either the basis for or the
specific values of a high volume
criterion.
A commenter claimed that EPA
should not include liquid waste streams
in the basis of comparison for
developing the high volume threshold
value for solid wastes. This commenter
also asserted that to determine the
threshold value, EPA must compare the
volumes and treatability of mineral
processing wastes with the volumes and
treatability of those wastes which are
actually regulated pursuant to subtitle C.
EPA agrees. In today's rulemaking,
EPA has proposed separate high volume
criterion values for solid and liquid
wastes that were derived through
separate examination of newly
available TSDR survey data on solid
and liquid wastes currently managed
under subtitle C.
A commenter suggested that
application of different criteria to solid
and liquid waste streams is
unwarranted, because wastewater is
commingled with both suspended and
dissolved solids: these are not
differentiated in the h«n«ning process.
The Agency disagrees, because the
dissolved
and
suspended solids an not
considered separate Bevill solid wastes
unless and until they have been
precipitated or otherwise separated
from the wastewater and an managed
as a distinct waste stream. Candidate
Bevill wastes that an in liquid form at
the time of generation will be compared
to the threshold for liquid wastes and
those that an in solid form will be
compared to the threshold for solid
wastes. A solid/sludge residual from a
high volume liquid waste will ntain
Bevill status if it is high volume. Lev
pastes the high volume test for solid
discharged from mining operations to
waters under NPDES permits is
incorrect in many cases. They
maintained that the wastewater. which
is commingled with solids, is
evaporated. In addition, then is often no
surface water in the vicinity of the
mineral processing plants.
EPA has never made or articulated
any assumptions about the final
destination of wastewaters from mining
and mineral processing operations and.
in fact asserts that the destination of
treated wastewaten is irrelevant to the
issue of determining Bevill status. A
waste stream's Bevill status pertains
only to how the waste is generated prior
to disposal, not the manner in which it is
finally disposed. The Agency is fully
aware that wastewaters from mining
and mineral processing operations are
commonly evaporated or recycled after
treatment
One commenter asserted that EPA
failed to understand that costs to
manage wastewater escalate with
impoundment size, thus regulation under
subtitle C would burden facilities that
manage wastewater in surface
impoundments. For this reason, they
maintained, EPA should use a less
rigorous criterion than the 50,000 metric
ton cutoff for liquid wastes.
While it may be true that the cost of
waste management in surface
impoundments increases in a non-linear
fashion with the size of the
iitipminHmant, fj«*« from the TSDR
survey indicate that facilities currently
manage up to 44 million metric tons of a
single hazardous waste stream in RCRA
permitted surface impoundments, and
that scons of facilities manage more
than 50.000 metric tons of hazardous
wastewater in surface Impoundments
annually. Then an 55 facilities from the
TSDR date set that managed over
1,0004)00 metric tons of liquid hazardous
waste in 1986. (A list of these facilities is
contained in the docket to today's rule.)
Many of these facilities use surface
impoundments for one or more of their
treatment processes. Across all faculties
ijflh volume hazardous waste*
Another commenter asserted that
EPA's assumption that wastewater is
surface impoundments have been
employed for virtually all treatment
processes. These data demonstrate that
m^M8^Tftffirt ID 8QXTflLG9 iIHPOmiOTPff^t0
under subtitle C regulations is feasible
for volumes far greater *^Mn 50,000
metric tons.
Several comments specifically
addressed EPA's suggestion of 1.5
million metric tons as • liquid waste cut-
off. One commenter assarted that a 1£
million metric tan threshold is arbitrary
mnA buftMitmtfty high mnit (uggested
250,000 metric tons aa an alternative
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Federal Register / Vol. 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations 36609
value. Another commenter contended
that EPA based its 1.5 million metric
tons per year aqueous waste threshold
on volumes of wastewater treated by
other industries and that it is not certain
that the mineral processing industry
would produce the same volumes.
Similarly, a commenter claimed that the
1.5 million metric ton threshold was
based on unreasonable comparisons to
wastewater streams that require little or
no management The proposed 1.5
million metric ton standard cannot be
technically supported, they stated.
because it was developed with reference
to materials management practices that
do not reflect the technical feasibility of
applying Subtitle C controls to mineral
processing wastes. Finally, one
commenter contended that the total
quantity of liquid waste streams
routinely managed by industry is
substantially lower than the proposed
1.5 million metric tons, therefore
implementing this criterion would
improperly exclude numerous aqueous
waste streams from Bevill and the
required study.
The Agency disagrees with the
commenters on the importance of
comparing mineral processing wastes
only to identical wastes. The facilities in
the TSDR data set represent a wide
variety of industrial sectors and
production processes, and generate a
wide variety of waste streams. Waste
streams examined in the analysis can hi
no way be construed to require "little or
no management" Collectively, these
facilities employ virtually all available
waste management technologies, and
commonly employ wastewater
management techniques such as
equalization, neutralization, metals
precipitation, and coagulation/
fiocculation that an used to manage
many, if not most wastewater streams
generated in the mineral processing
industry. The docket document for
today's rule referenced above also lists
• wastes generated and wast*
management technologies employed for
55 facilities managing "
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36610 Federal Register / VoL 54. No. 169 / Friday, September 1, 1989 / Rules and Regulation*
With respect to the commenter who
asserted that EPA should aggregate
mineral processing waste data because
the data used to establish the volume
criterion were aggregated, the subtitle C
data used in support of today's
rulemaking is sufficiently detailed to
allow EPA to conduct a waste stream-
level analysis of subtitle C waste
management Thus, there is no
inconsistency in level of aggregation
between the data used to develop the
revised high volume criterion and the
waste streams to which it has been and
will be applied.
The Agency also received comments
from representatives of individual
mineral processing sectors about
specific waste streams.
One commanter claimed that EPA's
proposal to segregate waste streams into
individual segments within a process is
artificial and impractical. They
maintained that this segregation would
result in costly changes without
significant environmental benefit
Because NPDES regulations require
extensive recycling efforts and large
holding ponds, it would be impractical
to segregate waste streams. They
asserted that the regulatory controls
required by the proposed rule and by
NPDES regulations would result in
substantial conflict
Another commenter stated that
recirculated process water must be
aggregated with phosphogypsum in
making high volume determinations.
Because water management at
phosphate fertilizer plants uses an
integrated system, they claimed, it is
illogical and impractical not to aggregate
phosphate process water for purposes of
regulation. In addition, the waters
recirculated throughout the phosphate
rock processing facility are chemically
similar at virtually every point
The Agency finds these arguments
unperauasive. As discussed above and
in the April 17 NPRM. it is most
appropriate to consider wastes on an
individual basis for the purpose of
determining Bevill status. The fact that
wastes are currently commingled at
some point hi the production irrelevant
to this determination, as are site-specific
permit requirements. Sector-specific
waste management practices applied to
Deviil mineral processing wastes will be
evaluated for the Report to Congress.
A third commenter asserted that
Congress considered phosphate
processing wastes in the aggregate when
it identified them as subject to the Bevill
Amendment in the 1978 and 1979
documents, thus the Bevill Amendment
requires aggregation of phosphate
processing wastes. They maintained
lha» management of aggregate waste
streams is essential to comply with
environmental requirements and has not
been undertaken to take advantage of
the Bevill Amendment They further
claimed that in its past studies, EPA
also has recognized that phosphate
process water must be evaluated on an
aggregate basis. They concluded that
considering phosphate processing
streams on an individual basis will
provide no meaningful protection of
human health and the environment
The Agency rejects the argument that
one sector should receive special
treatment for historical reasons. EPA
believes that all commodity sectors and
facilities should receive equal treatment
in the determination of Bevill status.
Moreover, as discussed at length in the
October and April proposals, EPA
believes that in a general sense,
aggregation is inappropriate for
considering both the volume of and
hazard posed by mineral processing
wastes. The Agency discerns nothing
unique about phosphate rock processing
that would justify differential treatment
Other commenters asserted that the
legislative history of the Bevill
Amendment directs EPA to study all
wastes from the mineral processing
industry, including all metallurgical
processing wastes whose fundamental
purposes are the same. For this reason.
they maintained, primary zinc iron
residues should be aggregated and
treated similarly to metallurgical
residues from other nonforrous metal
industry sectors. They appealed to EPA
to consider mat wastes from the various
zinc processing operations may be
identified by different names depending
on whether the facility uses
pyrometaUurgical or hydrometallurgical
techniques, and if hydrometallurgical.
by the specific leaching process
employed. They maintained that zinc
processing residues which are
essentially identical, including zinc lean
slag, goethite, jarosite, hematite, and
simply "iron residue," should be
aggregated.
While the Agency understands the
argument made by the commenter that
the wastes mentioned are all impurities
from the production of zinc, EPA has
determined that the wastes arise from
fundamentally different production
processes (e.g^ pyrometaUurgical versus
hydrometallurgical). It has. therefore,
concluded that the wastes are not
sufficiently similar to warrant
aggregation. In addition, as discussed
above, the Agency disagrees that the
Bevill Amendment requires EPA to
study all mineral processing wastes for
the Report to Congress regardless of
volume or hazard.
A commenter stated that sludge from
beryllium ore teaching should remain .
within the Bevill exclusion. Prior to
adding the sludge leaching step to
enhance recovery of beryllium,
materials now discarded as part of the
low volume sludge leaching stream were
discarded with the high volume barren
filtrate stream. For this reason, they
concluded, separating these waste
streams for the purpose of determining
high volume is inappropriate.
EPA disagrees with this argument. If
the waste streams are separable, they
are evaluated individually with respect
to volume and hazard. The question of
which other stream(s) might be
comanaged with a given stream at any
point in time is entirely irrelevant to
these determinations.
4. Alternative Components/Application
of the High Volume Criterion
In the April 17 NPRM, EPA proposed
to apply the high volume criterion as the
average annual facility generation rate
across all facilities generating the waste
streams in question.
Several commenters stated that the
high volume criterion should allow
exemptions for specific facilities
generating over SOOOO metric tons of
waste per year even if the industry
average is less than the 50,000 metric ton
threshold. One commenter contended
that the Agency should recognize that
meeting the 50400 metric ton threshold
would qualify a waste for study, not
necessarily grant exclusion from subtitle
C regulation. They also believed that
using an avenge generation rate across
a sector inaccurately represents the
feasibility of real world management
practices. The use of sector-wide
averaging, they claimed, only serves to
reduce EPA's burden and does not
address the waste management
problems faced by industry.
Another commenter asserted that
EPA's rationale for changing the high
volume criterion is illogical They
claimed that EPA's view that it is
discriminatory to allow a facility which
generates large volumes of waste to
qualify for an exclusion is counter to the
entire basis for the Bevill Amendment
The commenters Tilff^ argued that EPA
should not subject a faculty to
inappropriate requirements simply
because some similar but smaller
operations could not meet the Bevill
criterion and could comply with subtitle
C. They maintained that it would be
much more discriminatory to impose the
full panoply of subtitle C controls on a
facility which cumot economically or
technically comply with them. They
further maintained that even the
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Federal Register / Vol. 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations 36611
'
flexibility allowed for Urge volume
generators under RCRA 30M(x) would
be lo»t under EPA'i proposal
The Agency finds this argument
unpersuasive and. therefore, maintains
that a sector-wide average facility
generation rate is the most equitable
way to define high volume mineral
processing wastes. As stated in the
April 17 NPRM. allowing any individual
facility to qualify for the exclusion while
requiring other, smaller facilities in the
same sector to comply with subtitle C
regulations would be unfair to the
smaller facilities. Alternatively,
excluding a waste stream on a sector-
wide basis because of the large waste
volumes generated by one facility might
result in the retention within the
exclusion of wastes that clearly are
amenable to subtitle C controls at most
facilities. As stated in the April NPRM.
the Agency believes that the sector-wide
average per facility generation rate
represents the best alternative between
these two extremes.
In the October 20.1988 NPRM. the
Agency solicited comment on the use of
a second test for the high volume
criterion; this test was based on industry
sector-wide waste stream generation.
This test was dropped for the April 17
NPRM.
Several commenters contended that
EPA should retain the industry-wide
criterion because it is a useful
alternative for volume determinations.
One commenter maintained that the
Court of Appeals ordered EPA to draft
criteria for Bevill wastes consistent with
the Agency's historic definition of
"special waste" and that the industry-
wide criterion is an integral aspect of
the Bevill mandate.
The Agency maintains that average
waste generation per facility is a better
indicator of the amenability of a waste
to management under subtitle C rt»»"
industry-wide waste generation. As
noted in the April 17 NPRM. this belief
is based largely on the fact that moat
large volume mineral processing wastes
are managed on-site. EPA notes that the
U.S. Bureau of Mints supports EPA'*
position on this issue. EPA also note*
that the decision to •Uminata1 *Wf
criterion affected only one waste stream
of ail those proposed in October or April
or otherwise nominated (lime kiln dust).
Lime kiln dust is generated by a
p»inning operation and. as rilnnissffi
further below, is a benefication waste.
Therefore, elimination of the criterion
has no practical effect
EPA also received comments on the
idea of using a ratio of waste volume
generated to quantity of final product as
an additional or alternative volume
criterion. This was an idea on which
EPA had solicited comments in the
October 20 NPRM but which it decided
not to employ hi support of the revised
high volume criterion published in4he
April 17 NPRM. Many commenters
advocated using such a ratio instead of
the average waste generation rate which
EPA has used as the sole high volume
criterion since the April 17 NPRM.
The Agency wishes to make clear the
fact that it has never considered using a
waste to product ratio as either a sole or
alternative high volume criterion. At one
time, EPA considered using a ratio in
combination with the average
generation rate as a high volume
criterion. Following further analysis,
EPA concluded that no added analytic
power was provided by the ratio.
because it haa no relevance to the
feasibility of managing a waste stream
under subtitle C. For a full explanation
of EPA's reasoning, refer to the April 17
NPRM (54 FR15329). EPA has
encountered no compelling arguments in
any of the numerous comments on the
October or April proposals that would
support a change in the Agency's
position with respect to the ratio
concept
Other comments addressed units of
measurement One commenter
maintained that EPA should adjust its
high volume criterion to take into
account a waate's density. "High
volume," they asserted, refers to the
space a waste occupies, not its weight;
the space a weight occupies is more
relevant than its weight in determining
its amenability to Subtitle C
management
EPA disagrees with this assertion and
continues to believe that mass is the
most relevant and workable indicator of
the manageability of a waste stream.
Because the physical space consumed
by a material can vary over time based
on the way in which it is handled (e.g..
even "solid" materials can be
compacted or undergo particle size
reduction). EPA believes that mass is a
more stable, and thus, more appropriate
basis on which to develop and apply the
high volume criterion. Additionally,
mass is the most practical measure for
evaluating waste quantities; virtually all
other data on hazardous waste collected
by EPA is measured in metric tons.
5. Type of Waste Used as the Basis of
Comparison ^
In the April 17 NPRM. EPA based the
high volume cut-off of 50400 metric tons
on volumes of waste generated and
managed at Subtitle C regulated
facilities. Congress intended the Bevill
exclusion to cover only those waste
streams that are generated in such
quantities as to be potentially
unmanageable under subtitle C
regulations. For this reason, the Agency
feels strongly that comparison of
/mineral processing waste volumes with
those of wastes managed under Subtitle
C controls for the purpose of
determining Bevill status is wholly
appropriate and. in fact the only
appropriate analytical basis for
developing the high volume criterion.
One commenter representing mineral
processing industry interests maintained
that the high volume criterion should be
set at a level that reflects the proven
technical feasibility of onsite disposal of
similar wastes subject to Subtitle C
regulation and that the threshold value
should be based solely upon
disaggregated waste streams.
The analysis undertaken by EPA in
support of today's rulemaking reflects
both of these concerns.
Several commenters objected to EPA's
refusal to use the lowest of extraction
and beneficiation waste generation
rates to establish the high volume
threshold, especially in light of the
Agency's recognition that some
extraction and beneficiation wastes are
. generated in volumes less than 50.000
metric tons per year. Another
commenter maintained that refusal to
use the lowest generation rate of the
candidate Bevill wastes seemed in
direct contrast with EPA's statement in
the April NPRM that the generation
rates of the six recently listed smelting
wastes should serve as a lower bound
for the high volume criterion because
the six wastes are generally accepted as
low volume wastes. An additional
commenter asserted that EPA's selection
of 50,000 metric tons per year as the high
volume criterion based on comparison
to generation rates of the extraction and
beneficiation industry is arbitrary.
without any factual basis, and
improperly removes most mineral
processing wastes from the study
required in RCRA 18002.
These comments represent a
distortion of EPA's reasoning in the
April 17 NPRM. At that time, the Agency
asserted that wastes from extraction
and beneficiation were typically
generated in volumes orders of
magnitude greater than most mineral
processing wastes and therefore would
be inappropriate to use as a lower
bound for the volume cutoff.
Subsequently, the Agency did not base
the volume cutoff solely on generation
rates of extraction and beneficiation
wastes but used this information as a
"reality check" for the volume threshold
selected. The fact that only a small
number of extraction and beneficiation
wastes are below the cut-off does not
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nS612 Federal Register / Vol. 54. No. 160 / Friday. September 1. 1989 / Rules and Regulations
invalidate the concept and in fact
suggests that EPA's volume cut-off value
is an appropriate measure of special
waste status under real-world
conditions.
One Commenter asserted that the fact
that EPA received date on management
of hazardous wastes biennially refutes
the Agency's contention that it had to
compare mineral processing wastes with
aggregated subtitle C wastes because of
insufficient information. They claimed
that the 1985 survey (National Report of
Hazardous Waste Generators and
Transportation, Storage, and Disposal
Facilities Regulated under RCRA)
showed an average generation rate per
waste of 12,487 tons per facility and
suggested that this figure would be more
appropriate as a basis for comparison.
The Agency agrees that a waste-by-
waste evaluation is the best method for
developing the high volume criterion,
and has been able to use even more
recent waste code-level date than that
suggested by the commenter to develop
the final criteria established by today's
role. The Agency disagrees, however,
that the average generation rate is the
appropriate value to use as the volume
cutoff. As noted in the April 17 NPRM,
the high volume criterion should exclude
from subtitle C regulation only
potentially unmanageable waste
volumes, not average waste volumes.
EPA received several comments on
the use of commercial subtitle C
facih'ties as the basis of comparison.
While several commenters stated that
this is an inappropriate basis of
comparison, other commenters
supported the inclusion of commercial
facilities in any date base addressing
subtitle C waste management to be used
as a basis of comparison.
Commenters favoring the use of
commercial facilities objected to EPA's
rationale that inclusion of date from
commercial facilities is inappropriate
because the incentives and costs/
benefits from waste management differ
for commercial facilities. They asserted
that EPA's hazardous waste regulations
apply to both commercial and non-
commercial facilities; thus, the same
incentives for compliance with
regulations to avoid fines and/or
imprisonment exist for all hazardous
waste handlers. They also asserted that
EPA has not demonstrated a
fundamental difference in incentives for
managing large volumes between
commercial and non-commercial
facilities. They maintained that because
commercial facilities must compete for
clients, they do not have unlimited funds
to comply with regulations. Finally, the
commenters asserted that any difference
i--. incentives does not address the
fundamental concern of the volume
criterion which is the technical and
institutional feasibility of complying
with subtitle C requirements.
^feasibility, they added, should not be
based upon a cost/benefit analysis
which has no foundation in the statute
or in the special wastes concept
These commenters also asserted that
data indicate that in States containing a
large number of TSOs, most TSDs are
not commercial facilities. They added
that TSDs that only manage waste on-
site, manage the largest quantity of
hazardous waste, indicating that the
average quantity of hazardous waste
managed per TSD is greater for non-
commercial faciUties than for
commercial facilities. They concluded
that these data disprove the theory that
commercial facilities should be better
able to manage substantial quantities of
hazardous waste than on-site TSDs.
While EPA finds many of these
arguments unpersuasive, particularly
those addressing the economic
incentives to operate commercial versus
non-commercial subtitle C waste
management facilities, the Agency does
agree that technical feasibility is the
fundamental issue addressed by the
volume criterion, and has, accordingly,
included commercial subtitle C facilities
in the data base used to develop the
revised high volume criterion described
below.
6. Actual Threshold Value
In the April 17 NPRM, the Agency
proposed 50,000 metric tons as the high
volume cutoff. This value was to be
applied to the average generation rate of
each candidate waste stream.
Comments on the actual value of the
high volume cutoff were mixed, with
some commenters arguing that the value
was too low and others that it was too
liters arguing that the
proposed value was too low presented
evidence from several sources
demonstrating that some regulated TSDs
manage hazardous waste in volumes
greater than 50,000 metric tons. They
presented data from the 1985 National
Biennial Report stating that in two of the
ten EPA Regions, the average quantity
of hazardous waste managed at each
TSD substantially exceeded 50.000
metric tons per year. The commenters'
analysis of these data also indicated
that the top 50 and 100 generators of
hazardous waste handle waste in
quantities 78 times greater and 42 times
greater, respectively, than the threshold
quantity proposed by EPA.
The commenters also noted that of the
nine listed hazardous waste streams
EPA used for comparison to mineral
processing streams in the October
proposal, four are generated in
quantities larger than 50,000 metric tons
per
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Federal Register / Vol. 54, No. 169 / Friday, September 1. 1989 / Rules and Regulations 36613
there should be at least a ten percent
overlap between the Bevill exempt
wastes and the subtitle C regulated
community, and 50,000 metric tons is
beyond the level of technical feasibility
for wastes in solid form.
Several conunenters stated that the
Agency arbitrarily selected 50,000 metric
tons per facility per year as a volume
threshold and provided no justification
for the selection of that value. A
commenter also maintained that EPA
should not use this very crude threshold
value as a screen to perform a technical
feasibility analysis for which it does not
have sufficient information and support
The volume criterion proposed in the
April 17 NPRM was based on the best
data EPA had available at the time and
was therefore not arbitrary. However,
since that time, better data have become
available and have been used by the
Agency in support of the volume
criterion established by today's final
rule, in part to respond to these
criticisms.
A commenter stated that there should
be at least a ten percent overlap
between the universe of Bevill
processing wastes and subtitle C wastes
and that the 50.000 metric ton threshold
does not provide the necessary 10
percent overlap. EPA stated that the
number of facilities that manage more
than 50,000 mt/yr is "well under ten
percent of the total." but the Agency
failed to place into the administrative
record data to support this claim. The
commenter contended that the Agency,
in failing to respond to comments raised
on this issue in the October NPRM. has
effectively denied the commenter an
opportunity to comment fully on the
proposed threshold.
The Agency does not accept the claim
that data concerning subtitle C waste
management and the development of the
high volume criteria are not publicly
available. The basis for development of
the threshold is described in documents
that may be found in the docket for the
10/20/88 NPRM. The issue la moot
however, because the Agency is today
modifying the volume criterion based
upon updated subtitle C waste
management data, as described below.
Regarding the appropriateness of a
ten percent overlap between the subtitle
C wastes and the Bevill wastes, in the
April 17 NPRM. EPA allowed a 10
percent overlap between subtitle C
wastes and Bevill wastes to account for
problems with the data used in the
analysis. The Agency never intended to
make the 10 percent overlap a rule for
determining the high volume cutoff. The
data used in the analysis in support of
today's rulemaking are much stronger
than those used before and thus the
Agency believes a five percent overlap
is more appropriate and is supported by
these more recent data.
One commenter maintained that
while the threshold value might-fae used '
for aqueous mineral processing wastes,
technical feasibility requires a much
lower threshold for solid mineral
processing waste.
The Agency disagrees with this
position. The TSDR data indicate that at
least five facilities managing hazardous
waste in solid form routinely manage
45,000 metric tons per year or more of a
single waste stream: this represents
roughly five percent of the facilities
managing hazardous wastes in on-site
subtitle C landfills.
Several commenters arguing that the
proposed value is too high suggested
lower values ranging from 10,000 metric
tons per year to 30,000 metric tons per
year. One commenter maintained that
EPA should establish a facility average
of no greater than 30,000 metric tons per
year as this would only be slightly lower
than three "acknowledged" Bevill
wastes—zinc extraction wastes, utility
FGD sludge, and utility bottom ash.
Several other commenters stated that
the rate should be lowered to a 10,000
metric tons per year faculty average as
this threshold indicates "high volume"
compared to facilities producing wastes
that are not classified as special wastes.
As EPA stated above and hi the April
17 NPRM. the existence of a few Bevill
waste streams with generation rates
below the high volume cut-off does not
invalidate the adopted threshold. The
Agency is not obligated to select a high
volume cut-off besed on the three
"acknowledged" Bevill wastes. As
pointed out by a commenter, on the April
notice, volumes of utility wastes (and by
extension, other Bevill wastes) may not
mineral processing. With respect to the
suggestion of a 10.000 metric ton cutoff,
EPA has not found support for such a
low threshold hi any relevant data
available to the Agency when technical
feasibility is considered as the basis for
the determination.
Two conunenters stated that EPA
should develop a low volume, low
hazard category. One commenter noted
that many small processing, operations
are effectively managing wastes and
may be significantly affected
economically if subjected to subtitle C
regulations. Another commenter
asserted that then is no need to regulate
aggregate or individual low volume/low
hazard wastes under subtitle C:
regulation under subtitle D would be
more appropriate.
EPA disagrees. Congress clearly
intended to exempt only high volume.
low hazard wastes under the Bevill
Amendment Those wastes which are -.
not high volume may feasibly be
managed under Subtitle C Or Subtitle D
as appropriate. Accordingly, EPA will
not establish a separate regulatory
category for low volume, low hazard
mineral processing wastes.
One commenter claimed that EPA's
statements regarding the high volume
threshold are contradictory. They noted
that EPA made the following statement
in the November 1979 Draft Background
Document: "due to the obvious
interdependence of u.tse criteria and
the number of factors involved hi
assessing any particular criterion,
quantification of the items is
impossible" (Emphasis in comments
only.) It follows, the commenter
asserted, that the Agency's current
approach in which a given waste stream
generated at much less than 50,000 mt/
yr, and which still poses manageability
problems could be withdrawn from the
Bevill exclusion based only on a
quantified volume criterion, is absurd.
In 1979. EPA had little experience
with the RCRA program, a limited
understanding of the characteristics of
the regulated community, and
incomplete data on hazardous wastes
and waste management Since that time.
EPA has dramatically improved each of
these initial shortcomings and, thus, its
ability to quantify and articulate the
special waste criteria.
Finally, one commenter suggested that
lowering the volume threshold would
not pose any threat to the environment
because no matter what the outcome of
the section 8002(p) studies, the waste
must be regulated either under subtitle
C, the provisions of section 3004(x), or
subtitle D.
While EPA believes that there is some
merit to this argument as discussed
more fully below, the legislative history
and direction from the Court dictate that
only special wastes are eligible for
exemption under Bevill and examination
in the 8002 studies.
7. Application of the Cutoff Value to
Waste Streams
Several commenters objected to the
process of formulating national average
volume determinations based only upon
data submitted for one facility, arguing
that it is arbitrary and capricious. These
commenters also stated that EPA should
verify all self-reported data submitted
by the mineral processing companies
because of the incentive for firms to
inflate their waste generation rates and
thus remain exempt They asserted that
EPA routinely discovers inaccurate sr
reported data hi other instances, even
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36614
Federal Register / VoL 54. No. 168 / Friday, September 1. 1989 / Rules and Regulations
when those data wen submitted under
oath.
EPA did not have the time or
resource* to measure candidate waste
streams at affected facilities. In
addition. EPA had a very limited amount
of time in which to collect the additional
data needed to fully determine the Bevill
status of each candidate waste stream.
In order to propose the regulatory status
of several waste streams and provide
appropriate opportunity for notice and
public comment in accordance with
EPA's Court-imposed schedule, the
Agency had to rely on self-reported
volume data. The self-reported data will
be verified by examination of new data
from the National Survey of Solid
Wastes from Mineral Processing
Facilities. Waste streams that the survey
data indicate do not meet the high
volume criterion will be proposed for
removal in the September 15,1989
proposed rule addressing the status of.
wastes that have been conditionally
retained within the exclusion. Facility
operators completing the mineral
processing survey are subject to section
3007 penalties for submission of false
data.
Several commenters objected to EPA's
proposed use of the highest average
generation rate over a five year period
(1983-1988) as the value for comparison
with the volume criterion. Several
commenters expressed concern that this
would ignore the possibility that waste
generation across the years has been
reduced due to improved waste
management processes. They felt that
EPA should not ignore substantial waste
reduction trends, when the existence of
those trends could remove the eligibility
of the waste from the Bevill exclusion.
These commenters suggested, instead,
that EPA base volume determinations
upon the lower of either the average
generation quantity from 1982-47 or the
average generation quantity for calendar
year 1987. This method, they asserted.
would allow EPA to take into account
both waste reduction trends and
variations in market conditions.
Congress intended to exclude only
those wastes that are generated in
volumes that are potentially
unmanageable under Subtitle C The
Agency believes that the highest
average generation rate for any year
between 1983 and 1988 is a better
indicator of potential difficulty in
managing a waste under Subtitle C than
the method proposed by the commenter
because it allows for changes in waste
generation rates caused by fluctuations
in commodity markets. The method
suggested by the commenter is arbitrary
and would punish sectors that might .
have had low waste generation rates in
any single year during the most recent
five year time period due to poor
economic conditions rather than waste
minimization efforts as implied by the
commenter.
Between the October 20.1988 NPRM
and the April 17.1989 NPRM. EPA
shifted the five year period for which
EPA will consider waste generation
rates from 1982-1987 to 1983-1988 so
that it could base its decision on the
most recently available data. Several
commenters expressed concern that the
shift in the "window" will allow new
waste streams to become eligible for
inclusion into the Bevill exclusion. They
maintained that the Agency should not
allow further opportunities for waste
generators to provide new data.
The Agency maintains that, in the
interest of treating all affected firms
equally, any mineral processing wastes
that meet the definition of a special
waste should be included in the Report
to Congress, even if the key information
about that waste stream came from
1988.
The Agency rejects the argument of
one commenter that EPA should use
production data from all facilities
producing chrome processing wastes in
any year during the period 1983 through
1988. irrespective of whether any such
facility is still operating. Because the
Agency does not impose requirements
retroactively, it would be inappropriate
to use past data from facilities that are
no longer hi operation to develop
regulations. Therefore, exclusion from
Subtitle C regulation under the Bevill
Amendment will be based only on
waste volumes generated at active
facilities. For additional detail on the
EPA's policy not to impose regulatory
requirements retroactively, see section n
nt ihim
D. The Definition of Mineral Processing
In the preamble to the October 20.
1988 proposed rule and again in revised
form in the April 17.1989 NPRM. EPA
provided criteria for defining and
identifying wastes from on and mineral
processing operations. These criteria
requin that all wastes qualifying for
exclusion under the Bevill Amendment
originate from a mineral processing
operation as defined by the following
elements:
(1) Excluded Bevill wastes must be
solid wastes as defined by EPA.
(2) Excluded solid wastes must be
uniquely associated with mineral
industry operations.
(3) Excluded solid wastes must
originate from mineral processing
operations that possess all of the
following attributes:
a. Follow beneficiation of an ore or
mineral (if applicable);
b. Serve to remove the desired
product from an ore or mineral, or from
a benefidated ore or mineral, or
enhance the characteristics of ores or
minerals, or benefidated ores or
minerals;
c. Use mineral-value feedstocks that
are comprised of less than 50 percent
scrap materials;
d. Produce either a final mineral
product or an intermediate to the final
product and
e. Do not combine the product with
another material that is not an ore or
mineral, or benefidated ore or mineral
(e.g., alloying), do not involve
fabrication or other manufacturing
activities, and do not involve further
processing of a marketable product of
mineral processing.
(4) Residuals from treatment of
excluded mineral processing wastes
must be historically or presently
generated and must meet the high
volume and low hazard criteria in order
to retain excluded status.
1. Excluded Bevill Wastes Must be Solid
Wastes as Defined by EPA
EPA proposed hi the October NPRM
and confirmed in the April NPRM that it
will use the definition of solid waste
codified at 40 CFR 261.2 to identify
materials that are eligible for
consideration as special wastes, stating
that nothing in the regulatory history of
the Bevill Amendment indicates that the
Agency is expected to or should apply a
definition of solid waste that is different
than that applied throughout the RCRA
program.
EPA received a number of comments
relating to the issue of when and if the
materials under consideration in this
rulemaking can be RCRA "solid wastes"
when they are destined for recycling.
These comments were of three types.
Most dealt broadly with the overall
question of the Agency's authority to
classify materials destined for recycling
as solid wastes. A few comments were
more specific, mentioning types of
materials involved. Finally, another
group of comments dealt in detail with
types of materials (principally iron and
steel slag) that an recycled.
Before responding to these comments,
the Agency first notes that this issue is
without direct effect on persons
managing materials that EPA has
determined remain Bevill wastes
because they satisfy the high volume/
low hazard criteria, EPA will consider
such materials further as part of the •
section 8002 study, but there are no
regulatory consequences on persons
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Federal Register / VoL 54, No. 189 / Friday, September 1. 1989 / Rules and Regulations 36615
managing such materials. (EPA notes
further that it is directed to study the
"utilization)" of mining wastes.
indicating some expectation that
examination of recycling practices
would be part of the Bevill study. RCRA
section 8002(p)J
There may be regulatory
consequences for materials that the
Agency determines were improperly
classified under previous interpretations
of the Bevill amendment Such materials
are analogous to other wastes newly
brought into the subtitle C framework.
and thus become subject to all of the
subtitle C regulations. If such materials
are "solid wastes", then they also can
be hazardous wastes subject to
applicable subtitle C standards.
Comments on this point failed to
identify specific types of materials
affected, however, and so failed to
provide any indication of whether there
are any elements of discard associated
with the recycling activities (such as
land based storage, prolonged retention
times, management in unrelated
faculties, presence of high
concentrations of unrecyclable toxic
constituents not found in virgin
materials that would be processed in
place of the secondary materials, and
other similar elements). It is EPA's
belief, based on prior rulemakings
dealing with recycling, that most of the
materials newly classified as non-Bevill
materials would not be solid wastes
when recycled in metal recovery
operations because they would be
unlisted sludges and byproducts being
reclaimed. Such materials are not
classified as solid wastes (§ 261.2 (c)(3)).
unless they are being speculatively
accumulated. Thus, today's rule would
not have any practical impact on such
materials.
EPA's responses to the commenters'
specific points are set out below.
a. With respect to the Agency's
authority to regulate types of recycling
as hazardous waste management EPA
has indicated many times its views on
the extent of its authority. See
particularly 50 FR 638 flan. 4,1985) and
53 FR 519 (Jan- 8. 1988). EPA does not
subscribe to the view that only thing*
that are thrown away are solid wastes.
Such a reading nullifies explicit
statutory authorities (see RCRA sections
3004(1). 3004(qJ. and 3014). and fails to
take into account that many recycling
practices an characterized by elements
of discarding which afford jurisdiction
under RCRA Subtitle C. The Agency
also does not believe that anything in
American Mining Congress v. EPA. 824
F. 2d 1177 (D.C. Or. 1987) is to the
contrary. Certainly, nothing in the
opinion indicates that the Court
intended to make legal such practices as
the road oiling at Times Beach, Missouri.
or unrestricted burning of hazardous
secondary materials in boilers an3"
industrial furnaces. Yet thisis the direct
consequence of the commenters'
position. However, as noted above, this
issue appears to be only an academic
one in this rulemaking, given the lack of
practical consequences.
EPA also notes that contrary to the
view of several of the commenters, it is
not finalizing the January 8.1988
definition of solid waste in this
proceeding. EPA is indicating that a .
material need not be thrown away to be
a solid waste, and that recycling
activities can be characterized by
elements of discarding. This has been
EPA's articulated position since the first
major RCRA subtitle rules were issued
on May 19,1980.45 FR 33090-94. Had
commenters provided more detailed
information, EPA could provide more
guidance as to the status of particular
materials. Given the absence of such
comment (with a few exceptions
discussed below), EPA can only
articulate broader principles here.
b. Some commenters were slightly
more specific about the types of
materials being recycled that should not
be considered to be RCRA solid wastes.
One stated that "intermediates and
inprocess materials" such as copper
matte, blister copper, lead bullion, lead
drosses, and various "secondary
materials" such as flue dust and
wastewater treatment sludges, should
not be considered to be solid wastes
when they are processed to recover
metal values. The specific type of
recycling referred to in this comment is
reclamation. Existing regulations (see 40
CFR 261.2(c)(3)) state that sludges and
by-products such as those discussed in
the comment are solid wastes only if
they meet one of the hazardous waste
listing descriptions found at 40 CFR
261.1 or 261.32. When wastes from
specific or non-specific sources are
listed as hazardous. i.e.. are included in
40 CFR 261.31 or 281.32. existing waste
management practices, including
recycling, an considered hi establishing
the precise wording of the listing.
Today's rulemaking would not however.
add new listings to either 40 CFR 261.31
or 261.32, and would therefore not affect
whether materials discussed in the
comment assuming that they an being
legitimately recycled, would meet the
definition of a solid waste. EPA has
previously indicated that surface
impoundments used for wastewater
treatment an not part of recycling
operations. See. e.g.. S3 FR 35414-5 (lead
impoundment solids). Such units are
generally Intended for purposes of *vaste
treatment and are thus normally subject
to regulation as waste management
units.
a A number of commenters stated
that iron blast furnace slag and basic
oxygen furnace slag.should not be
considered to be solid wastes when they
are utilized as aggregate substitutes.
EPA notes first that it views these
materials as remaining within the scope
of the Bevill exemption, so there is no
immediate regulatory consequence of
calling these materials solid wastes.
However, EPA is not making a final
determination on the issue of whether
these materials are solid wastes. EPA
will study this issue further as part of
the section 8002 study. Commenters
indicated that even though these slags
are recycled in ways that involve
application to the land (whether directly
or in the form of slag-derived products
like cement and concrete), the slags
have been used for decades
interchangeably with high-grade natural
aggregates, they meet all relevant
commercial specifications for agqregate,
there is a known and profitable market
for all of the slag generated by industry
(indeed, some blast furnace slag is
imported to meet domestic demand).
and the slag appears impervious to
leaching toxic metals under the EP
toxicity test EPA has requested further
information comparing these blast
furnace slags to virgin aggregates to
ascertain whether unrecyclable toxics
might possibly be being disposed by the
recycling practice. The Agency is
impressed by the public comments,
however, and may ultimately determine
that these slags are not solid wastes.
Certainly, based on the public
comments, these slags appear now to be
a long-standing part of the commercial
aggregate market and are commonly
accepted as meeting all relevant
commercial specifications.
A second commenter indicated that
redrculating process water is not a
waste. Although the commenter did not
describe precise details of operation, the
Agency agrees that normally continued
use of process water in an industrial
process does not involve wastewater
but rather continued use of process
water. This answer assumes, however,
that wastewater is not removed from th«
system to be reclaimed before it can be
reutilized. In the event that this process
water is managed outside of a closed-
loop recycling system, such as in a
surface impoundment for cooling or
settling, then the impoundment woul<
likely be considered a waste
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36616 Federal Register / Vol. 54. No. 189 / Friday. September 1. 1989 / Rules and Regulations
management unit and subject to EPA's
jurisdiction, as discussed above
2. Excluded Solid Wastes Must Be
Uniquely Associated With Mineral
Industry Operations
To be excluded under the Bevill
Amendment, solid wastes must be
uniquely associated with the mineral
processing industry. EPA received no
significant comments either in support of
or in opposition to this criterion, and
will continue to require that wastes
meet this criterion.
3. Excluded Solid Wastes Must
Originate From Mineral Processing
Operations as Defined by Five Specific
Criteria
In general, commenters believed that
the attributes used in the proposed rule
to define mineral processing were
acceptable. As discussed in the Appeals
Court decision that precipitated the
current rulemaking. EPA is obliged to
consider whether candidate wastes are
high volume and low hazard in making
Bevill mineral processing waste
exclusion decisions. While these factors
are, and have always been, the key
elements in identifying special wastes,
the distinction between mineral
processing and nonmineral processing
wastes is important because Congress
intended to put within the regulatory
exclusion only wastes generated as a
consequence of exploiting a natural
resource, not wastes from other
industrial activities, even if both occur
at the same facility.
a. Operation must follow
beneficiation of an ore or mineral (if
applicable). Processes that use heat to
change the chemical composition of
ores and minerals, or benefidated ons
or minerals, are considered mineral
processing operations. Heap, dump, and
in-situ leaching, as well at tank and vat
. leaching, an specifically defined at
beneficiation operations. Commenters
addressing the October. 1988 NPRM*s
beneficiation definition argued mat it
did not adequately delineate the
boundary between beneficiation and
processing. The U.S. Bureau of Mines
(BOM) commented extensively. «»i«fa"«««fl
that the October ^^nttion did not
adequately express EPA's intent that
leaching be considered a beneficiation
operation. Therefore, in the April. 1989
NPRM. EPA modified the proposed rule
(1) to define heap, dump, in-situ. tank,
and vat leaching as beneflciation, unless1
they follow one or more processing
operations in the production sequence,
in which case they are considered
processing operations; and (2) to clarify
that processing operations use chemical
reactions, electrolytic techniques, or
pyrometallurgical/ thermal processes
(e.&. roasting, smelting, calcining) to
concentrate or enhance the
characteristics of valuable constituents
and, thus, differ from beneficiation
operations (some beneficiation
operations employ heat but only to
remove water).
Industry commenters addressing the
April NPRM criticized EPA for, in effect
narrowing the definition of
beneficiation, claiming that the Agency
focused top strongly on chemical and
physical distinctions when it clarified
the beneficiation definition. By
classifying steps such as roasting as
mineral processing and steps involving
drying as beneficiation, the Agency's
definition, they claimed, would result in
some previously excluded beneficiation
wastes now being considered
"processing" wastes potentially subject
to Subtitle C regulation. They
complained that EPA has offered no
explanation for why it has apparently
decided to eschew previous definitions
of beneficiation. They contended that
the shift could cause precious metals
industries in the United States to suffer
drastic and unwarranted economic
impacts. Commenters insisted that the
Agency address the problems caused by
its "clarification" of beneficiation and
processing and suggested the
alternatives below.
L Use the Report to Congress
Definition of Beneficiation. Many
commenters recommended that the
Agency abandon the restrictive list of
beneficiation operations in the NPRM
and adopt the definition of beneficiation
found in the 1985 Report to Congress.
These commenters maintained that this
definition historically has been accepted
by the mining industry, adopted by EPA,
subjected to Congressional scrutiny, has
withstood litigation in EOF L and can be
traced back to an even earlier definition
found in the EPA effluent limitations
guidelines development document on
ore »"
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Federal Register / Vol. 54, No. 169 / Friday. September 1. 1988 / Rules aiid Regulations 36617
autoclaved. or chlorinated are no less
earthen than is raw on. and their
volume remains relatively unchanged.
They noted that if finalized, the April
1989 NPRM could subject tailings or
spent ore from many leaching operations
to subtitle C regulation, even though the
Regulatory Determination of July 3. 1986
stated that these wastes did not require
such regulation. Commenters claimed
that because the near surface precious
metals deposits are being depleted, the
future of the industry lies in the deeper
sulfide zones that produce ores requiring
some pretreatment (I.e., roasting,
autoclaving. and chlorinating) to
effectively yield their metal values. The
Agency must consider, they argued, the
extremely onerous operational
consequences (e.g., requiring parallel
waste units for identical waste streams)
and economic consequences (e.g.,
putting small or marginal mines out of
business) that would result from
maintaining the processing definition in
the most recent proposal; this definition
would, concurrently, yield no significant
environmental benefits. Therefore, the
commenters requested that EPA clarify
that wastes from leaching operations
that pretreat will remain benefidation
wastes excluded from Subtitle C.
Alternatively, they noted, if EPA retains
the definition given in the April notice,
the Agency wUl be required to restudy
gold leaching wastes (gold roaster/leach
wastes would not differ significantly
from the leached ores studied previously
by EPA in the 1985 Report to Congress)
since they would meet the high volume
criterion.
Calcining, the heating of ores to high
temperature without fusion of the
mineral values (generally to drive off
volatile components such as water and
carbon dioxide), also received extensive
comment from commenters who wen
concerned that EPA considered
calcining to be processing. These
commenters suggested that EPA should
limit its clarification of benefidation to
exclude only those heating operations
when die c*Mnt"g gases effect •
chemical change that will facilitate
smelting. Representatives of die western
phosphate processors, in particular.
attacked die inclusion of
phosphate processors. The phosphorus
industry stated mat calcining is
analogous to die calcining employed by
diatomaceous earth producers which is
regulated under subtitle 0 and argued
that a supportable distinction can be
made between metallurgical calcining
and those heating operations found in
the diatomaceous earth and phosphorus
industries.
iii. Make Other Modifications to the
Beneficiation Definition. As an
alternative to using die RTC definition.
industry commenters recommended
several modifications to the definition of
benefidation.
• EPA should view benefidation
collectively and functionally, define
benefidation as activities, both physical
or chemical, by which ores and minerals
an prepared for further refinement. An
operation which precedes benefidation
and/or conditions or prepares an ore or
mineral so as to make it more amenable
to benefidation. should also be
considered to be part of the
benefidation operation, regardless of
whether die operation employs physical
or chemical techniques. Removing
impurities and improving quality is a
purpose of benefidation and coincides
with die generally accepted technical
usage of benefidation.
• EPA should clarify diet wastes from
benefidation operations that follow a
processing step should be considered
benefidation wastes. Therefore, die
Agency should state that any steps
performed after benefidation ends are
processing operations and dial
processing would begin with die last
benefidation activity, not witii die first
processing activity. This delineation
would draw a clear boundary between
benefidation and processing dtat would
reflect "real world" operations better
dian die definition provided in die April
17.1980 NPRM.
• If die Agency seeks to control
specific benefidation waste streams, it
should use die Subtide C -listing"
mechanism as opposed to redefining
benefidation.
iv. Specify Certain Activities at
Benefidation. In addition to roasting.
autoclaving. galeming, and leeching,
processing, claiming that die "^nz<
drying, agglomeration, and
concentration functions of calcining—-
which do not chemically alter die •
phosphate nor remove valuable
constituents— meet EPA's definition of
benefidation end dial die classification
of phosphate rock Mlrining or drying
and nodulizing/heating operations as
benefidation has long been die subject
of agreement between EPA and die
many commenters addressed specific
Eions, recommending diet EPA
diet certain activities en
nation operations. Collectively.
these commenters suggested diet EPA
adopt e definition of benefidation diet
induces physical/chemical separation
processes each es crushing, grinding.
gravity concentration, magnetic and
electrostatic separation, flotation.
pndpitation. amalgamation, ion
exchange, solvent extraction.
electrowinning. dissolution.
chlorination. and agglomeration.
The following recommendations were
/made by commenters regarding specific
operations.
• Electrowinning should be
considered benefidation and be
retained under die Bevill exdusion. The
April 1989 NPRM states that electrolytic
and other chemical techniques are
processing, not beneficiation. directly
and inappropriately contradicting prior
EPA pronouncements and regulatory
action on die scope of die beneficiation
exemption.
• The carbon regeneration process in
which activated carbon granules adsorb
gold from solution should be considered
benefidation. as these activities
conclude die leaching process, and
therefore constitute benefidation.
• The Agency should specifically
include dissolution in die list of
benefidation operations. For example,
trona wastes produced from die
"SesquT process an benefidation
wastes, because die dissolving and
caldni"g operations associated witii die
"Sesqui" process only remove insoluble
tailings wastes and drive off excess
water and carbon dioxide.
• EPA should clarify its definition of
beneficiation by specifically identifying
"filtration" and "physical separation" as
sorting to be included as part of
benefidation.
• The Agency should continue to
indude agglomeration as benefidation
and not limit tiiis term to sintering
because it indudes other processes
besides sintering, such as palletizing and
• EPA should define die chlorination
procedure, used on some carbonaceous
ores prior to leaching, as a benefidation
operation, not es processing. The
chlorination procedure uses an oxidizing
agent to change die chftmic**
composition of die on and to enhance
the leaching operation.
• EPA should state tiiat die "chloride-
ilmenite" process used for titanium
dioxide processing is e simultaneous ore
beneficiation end chlorination process
in which benefidation and chlorination
of raw ilmenite on an inseparably
combined in die seme process step. EPA
should confirm its previous positions
tiiat tiiese wastes an generated froiu a
beneficiation process.
After review of dw public comments
and further analysis, die Agency has
conduded diet bodi functionally and
legally, die most appropriate definition
of benefidation for use in distinguishing
between beneficiation and processing i»
the definition used in die December.
1985 Report to Congress (RTC) on
-------
3661.8 Federal Register / Vol. 54, No. 169 / Friday. September 1, 1989 / Rules and Regulations
wastes from extraction and
beneficiation of ores and minerals. This
definition was, in him, based upon a
definition provided in the Effluent
Guidelines Development Document
EPA believes that this definition is
consistent with standard industry
practice and use of the term. The RTC
defines beneficiation as "the treatment
of ore to concentrate its valuable
constituents." * While the RTC did not
attempt to articulate a comprehensive
list of beneficiation operations,
procedures or techniques, it did expound
on the definition by describing
beneficiation processes as including
Physical/chemical separation techniques
such a» gravity concentration, magnetic
separation, electrostatic separation, flotation,
ion exchange, solvent extraction,
electrowinning, precipitation, and
amalgamation." *
In addition, the RTC explicitly includes
leaching operations as an integral part
of the extraction and beneficiation
domain and labels the leachate as a
"beneficiation solution." *
While this definition serves well as a
foundation for making a distinction
between beneficiation and mineral
processing, the list in the RTC is not an
all-inclusive list of beneficiation
processes and several points of
clarification are necessary regarding
application of this RTC definition to
real-life operations. For example, the
RTC list does not include milling
techniques such as crushing, grinding,
washing, filtration, sorting, and sizing, or
agglomeration techniques such as
sintering, pelletizing, and briquetting
that both industry and EPA consider to
be beneficiation operations. In order to
avoid further confusion, the Agency
wishes at this time to identify other
activities that it considers to be within
the realm of beneficiation. and in
particular to discuss the status of
activities using heat and acid.
EPA notes here that the definitions
that It has developed for today's rule
represent an attempt to resolve the
issues raised in public comment on the
proposed rules in a reasonable and
even-handed manner. The Agency
recognizes that its course is not the only
one available, but does believe that it
provides the most equitable and
workable approach to a very
complicated set of issues. Furthermore,
while EPA has attempted to develop
consistent and reasonable definitions
•Ibid-D-l.
' Report to Congrete on wnttet from Extraction
•nd Beneficiation of Metallic Orel. Phosphate Rode,
AibeitM, Overburden from Uranium Mining, end
OU Shale, pg 2-15.
«Ibid, :M8, D-i.
for and distinctions between
beneficiation and processing, the
Agency believes that application of
these definitions must comport with
common sense. In cases where a rigid
application of a definition would result
in an unreasonable outcome, the Agency
has used best professional judgment to
produce an acceptable result.
Heating steps recognized by EPA as
beneficiation operations are calcining.
and roasting and autoclaving of ores
and minerals in preparation for leaching.
All three are procedures that use heat to
drive off volatiles (e.g., water, carbon
dioxide, sulfur dioxide) without heating
the material above the mineral's melting
point and/or causing fusion (i.e.
liquefying or rendering plastic by
heat *). Operations that raise the
temperature of the ores or minerals, or
beneficiated ores or minerals, above
their fusion or melting point, I.e., destroy
the physical structure of the ore or
mineral, are considered processing
operations.
Calcining is often used to drive off
carbon dioxide in the preparation of a
final beneficiated product (e.g., talc,
gypsum, lime), and for purposes of this
rule is defined as the heating of an ore
or mineral, or beneficiated ore or
mineral to a temperature below the
melting or fusion point, for purposes of
driving off water (including waters of
hydration) and/or carbon dioxide.
In the minerals industry, roasting
serves primarily to change a sulfide ore
to the oxide form, so that beneficiation
by leaching or other subsequent steps
may be more effectively performed.
Functionally similar to roasting,
autoclaving uses steam to perform
heating activities (e.g.. pretreating
sulfide ore for leaching). For purposes of
this rule, roasting and autoclaving are
considered beneficiation operations if
they are used to remove sulfur and/or
other impurities in preparing an ore or
mineral, or beneficiated ore or mineral,
for leaching. Otherwise, roasting and
autoclaving are defined as processing
operations. Accordingly, activities such
as roasting sulfide ores in preparation
for precious metals heap leaching are
considered beneficiation, while roasting
ores or concentrates in preparation for
copper, lead, or zinc smelting is
specifically defined as processing.
Chlorination is sometimes used prior
to gold leaching operations in a
procedure functionally identical to
roasting and autoclaving (i.e. to change
a sulfide ore to a chemical form more
amenable to leaching). EPA recognizes
• U.S. Butctu of Mine*. "A Dictionary of Mining.
Mineral, and Related Tenni". Waihington. DC
1972, p. 473.
that this type of pretreatment operation
may be an integral part of leaching
operations, and accordingly, considers
non-destructive chiorination of ores,
minerals, or beneficiated ores or
minerals when used as a pretreatment
step for leaching, to be a beneficiation
operation.
hi contrast, heating operations such as
smelting (i.e., any metallurgical
operation in which metal is separated
by fusion from impurities ') and fire-
refining (e.g., retorting) are clearly and
have always been considered within the
realm of mineral processing. Here, the
physical structure of the ore or mineral
is destroyed, and neither the product
stream nor the waste stream(s) arising
from the operation bear any close
physical/chemical resemblance to the
ore or mineral entering the operation.
A specific exception to the above
categorization system applies when the
roasting/leaching sequence produces a
final or intermediate product that does
not undergo further beneficiation or
processing steps (e.g., the leach liquor
serves as an input to inorganic chemical
manufacturing). In this type of situation,
the Agency believes that the operation
is most appropriately considered a
processing, rather than a beneficiation,
operation. In the context of this
rulemaking, one candidate Bevill waste
(roast/leach ore residue from primary
chrome ore processing) is affected by
this distinction; EPA believes that this
material is clearly a waste from
processing, rather than beneficiation, of
an ore or mineral.
Several additional operations employ
heat in combination with various acids.
In EPA's view, some of these operations
constitute beneficiation while others are
processing. The distinction hinges upon
the difference between dissolving,
washing, or otherwise purifying values
contained within a mineral using a
dilute acid solution (beneficiation) and
attacking or digesting (i.e., destroying
the structure of) the ore or mineral, or
beneficiated ore or mineral, using a
strong acid (processing). Acid
dissolution, often accompanied by heat.
is used as precursor for many
beneficiation operations (e.g.,
precipitation, fractional crystallization,
ion exchange, solvent extraction). EPA
recognizes this as an activity integral to
many beneficiation operations,
regardless of the application of heat or
use of add. For example, EPA
recognizes acid washing and acid
dissolution as beneficiation activities;
concentrated sulfuric acid attack of
titanium- or phosphate-bearing ores is
• Ibid, pg 1033.
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Federal Register / Vol 54. No. 180 / Friday. September 1. 1989 / Rules and Regulations 38619
considered a processing operation by
the Agency.
In considering the functional
distinctions between benefidation and
processing using both heat and acid,
EPA has examined both the range of
actual practices employed, and the types
of waste streams that an generated by
these operations in various mineral
commodity sectors. In a general sense,
the lines that the Agency has drawn
between benefidation and processing
parallel the common sense differences
that can be observed between
benefidation and processing wastes
generated using other types of mineral
exploitation techniques. Most
beneficiation processes, at least those
immediately upstream from the initial
processing operation in a production
sequence, generate high volume solid
waste streams that are essentially
earthen in character. Despite the fact
that valuable constituents have been
removed, the remaining material is often
physically and chemically similar to the
material (ore or mineral) that entered
the operation, except that particle size
reduction has often occurred. Processing
operations, in contrast generate waste
streams that generally bear little or no
resemblance to the materials that
entered the operation (with the arguable
exception of smelting slags). These
operations most often destroy the
physical structure of the mineral.
producing product and waste streams
that are not earthen in character.
This common sense distinction is
reflected in EPA's definitions of
benefidation and processing operations
using heat and add. The benefidation
operations (e.g., calcining, dissolution,
roasting in preparation for leaching)
produce wastes, where applicable, that
are essentially earthen and of relatively
high volume. The processing operations
(e.g^ smelting, add or alkaline
digestion), on the other hand, produce •
wastes that an not earthen, bear little
resemblance to the materials that
entered the operation, and an of
relatively lower volume.
One final benaficiation/processing
issue is the need for an absolute cut-off
between processing and beneficiation, a
need that was questioned by
commenters. EPA continues to hold mat
benefidation. especially as a functional
activity which serves to concentrate the
mineral value, is completed at some
distinct point after which all operations
are considered processing. As discussed
hi the April NPRM. the Agency
considers any operations following the
initial processing operation to be
processing operations, regardless of
whether the activity was included on the
list of RTC benefidation activities or
has traditionally been considered
benefidation. For example, electrolytic
refining, an operation often used after
smelting and/or fire refining, uses
procedures similar to activities listed hi
the RTC definition (e.g.. electrowinning)
or considered historically to be
benefidation (e.g., dissolution). Because,
however, the operations follow previous
processing operations, these activities
will be considered processing and any
assodated wastes will be considered
mineral processing wastes.
EPA acknowledges that the decision
to use this benefidation definition is a
significant departure from the position
taken in the October and April NPRMs.
particularly with respect to the use of
heat and add. After analysis of public
comments, further review of technical
information regarding mineral
beneficiation and processing techniques.
and reexamination of the 1985 Report to
Congress and 1986 Regulatory
Determination, the Agency has
concluded that this definition will
render the most accurate, practical, and
reasonable delineation between
benefidation and processing.
Furthermore, the Agency expects that
little environmental benefit would be
gained by induding these additional
operation types within "mineral
processing" because the Agency
believes that the wastes from these
operations are relatively few in number,
have hi a number of instances already
been studied, and will hi any case be
addressed by the Subtitle D regulations
for extraction and benefidation wastes
presently under development by the
Agency.
b. Operation mutt serve to remove the
desired product from, or enhance the
characteristics of, an on or mineral, or
a beneficiated on or mineral
Commenters addressing this attribute in
the October 20.1088 NPRM indicated
that the language (La., to remove the
desired product from aa on or mineral
or beneficiated ore or mineral) obscured
the regulatory status of certain
processing operations (e.g* lightweight
aggregate production) whose purpose is
to change die characteristics of valuable
constituents in ores or minerals without
removing or concentrating them. They
suggested, and EPA agreed, that the
processing definition be modified to
include operations that serve to enhance
the desirable properties of, as well as
those that remove the desired product
from, an ore or mineral EPA modified
the second attribute of mineral
processing to include production steps
that use heat to alter the chemical
composition of ores or minerals, or
beneficiated ores or minerals. Many
commenters addressing the April NPRM
argued vehemently that EPA should not
include all operations which use heat fo.
operations other than drying in the
definition of mineral processing.
indicating, as discussed in the previous
section, mat these operations are often a
part of benefidation activities. Several
commenters stated that this attribute
should be written to specifically include
operations that enhance the desirable
properties of materials, leaving the
concern of whether to include heating
operations to the first attribute, which
defines the delineation between
beneficiation and processing.
After review of the comments and
analysis of additional information. EPA
has acknowledged the need to change
this second attribute of mineral
processing by modifying the "heat"
criterion that considered production
steps using heat to alter the chemical
composition of ores or minerals (or
beneficiated ores or minerals) to be
mineral processing operations. The
Agency agrees that the use of heat
should not be the determining factor,
primarily because many benefidation
operations use heat as a pretreatment to
enhance the properties of the ore for
subsequent beneficiation steps and
because EPA does not wish to include
operations already established to be
beneficiation operations (e.g., leaching.
phosphate rock benefidation) within the
domain of mineral processing.
particularly if the sole reason for
classifying them, in this way is the use of
heat Therefore, in today's final rule, the
Agency has removed its stipulation that
operations using heat an automatically
processing operations, but has allowed
that operations that enhance the
characteristics of the ore or mineral, or
beneficiated on or mineral, an mineral
processing if die operations meet the
other attributes.
c. Operation uses feedstock that is
comprised of leu than SO percent scrap
materials. The SO percent rule applies to
all materials entering a process
operation that contain the mineral value
rather than all materials entering the
operation irrespective of function. The
October 20.1988 NPRM required that at
least SO percent of the feedstock to an
operation be on or mineral, or
beneficiated on or mineral, for the
operation to be considered a primary
mineral processing operation. Many
commenten responding to that NPRM
sought clarification concerning what
materials an to be included as part of
the "primary" feedstock, recommending
that "in-process" materials derived frotr
mineral processing should be consider*
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30620 Federal Register / Vol. 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
"primary" feedstocks along with ores or
minerals or beneficiated ores or
minerals for the application of this fifty
percent rule. In the preamble to the
April NPRM, EPA asserted that the
attribute, as presented in the October
NPRM, affords (1) considerable
flexibility to mineral processing
operations, in that they are able to
accept scrap and intermediate materials
in their feedstocks and still be eligible
for Bevill status, while (2) still
maintaining the essential upper bound
on the amount of non-ore present in a
feedstock in order to ensure that wastes
from operations that primarily process
materials other than ores and minerals
are not provided with an exclusion that
Congress did not intend.
EPA also clarified in the April NPRM
that the 50 percent rule applies to all
mineral-value containing materials
entering a process operation (e.g.,
crushed copper ore, beneficiated copper
ore, in-process materials, and scrap
copper for the copper smelters), rather
than to the total of all materials (i.e.,
mineral values plus non-mineral
materials such as fuel, reducing agents,
or fluxing agents) entering the operation.
EPA also clarified that the accounting
period over which to analyze feedstock
percentages should be one year, which
allows for seasonal fluctuations, and
that the rule must be applied to
individual processing operations (e.g.,
the smelter separate from the refinery)
rather than to an entire plant's
operations.
The predominant comment addressing
the April, 1989 NPRM again concerned
the accounting for in-process materials.
Several commenters reasserted that "in-
process" materials derived from mineral
processing and returned to the process
should be considered mineral feedstock
since they are used as a matter of course
by the industry as feedstock because of
their significant mineral value. One
industry commenter disagreed with
using this attribute at all; calling for EPA
to abandon the fifty percent rule
because it is an unrealistic and
unnecessary restriction and an
unwarranted intrusion into the
production process.
As stated in the preamble to the April
NPRM and further described above.
EPA believes that the rule as written
provides an extremely flexible tool for
screening out secondary processors
from the universe of primary mineral
processors (the only group eligible for
the Bevill exclusion], while allowing (1)
large percentages of scrap to be used in
primary processing operations and (2)
seasonal and other variation hi the
proportions of feedstock materials
without affecting the potential Bevill
status of associated wastes. After
reviewing the comments and also noting
that this criterion does not, to EPA's
knowledge, affect any wastes generated
by primary mineral processors, the
Agency has decided that it will make no
changes in this attribute as first
presented in the October NPRM and
clarified in April.
d. Operation produces either a final
or an intermediate to the final, mineral
product. The definition of processing in
both the October and April NPRMs
requires that, to be eligible for
consideration for the Bevill exclusion,
the operation must produce either a final
mineral product or an intermediate to
the final mineral product. EPA believes
that products not directly related to
mineral processing operations do not
fall within the scope of the definition
intended by Congress. Several
commenters argued that EPA should
follow Congress* intended broad view of
the term "processing" and include all
parts of integrated operations; no
commenters, however, directly
challenged EPA's position by
nominating wastes arising from non-
mineral-related processes that may be
co-located with mineral process
operations for exclusion under Bevill.
In this final rule, the Agency
maintains the position articulated in the
two proposals; that Congress did not
intend the Bevill exclusion to extend to
processing operations outside the
production of an intermediate or final
mineral product, i.e., a material of value
derived primarily from an ore or
mineral. This attribute ensures that
other operations (e.g., chemical
processing), even if physically located
with a mineral processing operation,
that produce a non-mineral product that
may or may not be used as a feedstock
to a mineral processing operation will
not be included within the realm of
mineral processing. The Agency also
wishes to clarify that the distinction
between intermediate and final products
refers to whether the mineral value must
undergo further mineral processing.
Materials that are saleable, either as
raw materials to other types of
industrial processes (e.g., chemical
manufacturing) or as finished products
are considered final products. Materials
that must undergo further mineral
processing to be rendered saleable, or
that have no significant value except as
a feedstock to a mineral processing
operation, are considered intermediate
products. Examples of this latter
category include ilmenite ore slags used
in titanium production and
electrowinning slimes that are
processed for metals recovery.
e. Operation does not combine the
mineral product with another material
that is not an ore or mineral, or
beneficiated ore or mineral (e.g.,
alloying); and do not involve fabrication
or other manufacturing activities. The
preceding attribute establishes that a
mineral processing operation must
produce a mineral product, whether
final or intermediate. This attribute
establishes that once that final product
has been produced, no other operations
performed on or with that product are
considered to be within the realm of
mineral processing, i.e., mineral
processing has ended. In general, the
end of mineral processing is the point at
which the processed ore or mineral (1) is
combined with another material that is
not an ore or mineral, or beneficiated
ore or mineral (i.e., combining processed
ores or minerals such as steel with
purified non-ferrous metals to produce
an alloy is not mineral processing), (2)
undergoes fabrication (e.g.,
manufacturing of copper wire), (3) is
subjected to other manufacturing
operations (e.g., chemical processing), or
(4) is marketable and can be sold, even
if the product must undergo further non-
mineral processing prior to being
amenable to an ultimate end use (e.g.,
titanium tetrachloride, an intermediate
product used for the production of
titanium metal and titanium dioxide, is
saleable and is often sold to other
producers frv manufacturing inorganic
chemicals; any operations following the
production of this intermediate,
irrespective of whether they occur on-
site, are not considered to be within the
realm of mineral processing).
The Agency believes that Congress, in
adopting the Bevill Amendment,
intended to include only those processes
that remove, concentrate, and/or
enhance values contained in ores and
minerals, or beneficiated ores and
minerals, and that manufacturing,
chemical processing, and alloying
operations clearly do not fit into this
category. EPA continues to believe that
the casting of anodes or cathodes is not
a fabrication operation, but is instead an
operation necessary for the production
of an intermediate or final (i.e., saleable)
product and is therefore within the
realm of mineral processing.
One general view expressed by many
commenters addressing both NPRMs
was that EPA should follow Congress'
intended broad view of the term
"processing" and include all stages from
beneflclatlon through production of final
products, including integrated
operations. Some commenters offered
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Federal Regiater / Vol 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations 36621
specific examples in support of their
position.
For example, one commenter objected
to EPA's preliminary conclusion that the
production of ammoniated phosphates
does not constitute mineral processing
because it involves further processing of
an intermediate mineral processing
product arguing that (1) production of
ammoniated phosphates is enhancement
of an intermediate to a final mineral
product since phosphoric acid must be
further processed in order to be usable
as fertilizer and (2) EPA regards
ammoniated phosphate production as a
part of phosphate processing under the
Clean Water Act and no rational basis
exists for reaching a different conclusion
under the Bevill Amendment Other
commenters similarly argued that
wastes from alloying processes should
be included, but nominated no large
volume "post-processing" wastes.
In contrast several other commenters
argued that EPA should narrow the
definition of processing via this
attribute, and not finalize a definition of
mineral processing that leaves virtually
unchanged the extremely broad 1980
definition of mineral processing. In
particular, these commenters stressed
that the processing definition should not
exempt operations that occur after the
identity of the ore or mineral is
destroyed. They stated, for example.
that in production of titanium dioxide
using the sulfate process a "slag" is
produced from smelting beneficiated
ilmenite ore in an electric are furnace.
This "slag", they argued, is a final
mineral product which is then
chemically processed (he* "washed with
sulfuric acid" and "calcined"), and thus
operations subsequent to the smelting
should not be exempted. Similarly, the
commenters argued that in the case of
titanium dioxide production n«mg the
chloride process, no wastes generated
subsequent to chlorination should be
eligible for the Bevill exemption,
because titanium tetrachloride is the
final mineral product •"^ any
subsequent operations are not to be
considered processing.
Following review of these comments
and additional analysis. EPA ***t
concluded that none of the public
comments received on the two
proposals or any additional information
received by the Agency support any
substantial revisions to this attribute,
though some clarifications are discussed
here. The Agency maintains that
Congress did not intend the Bevill
exclusion to extend to processing
operations that are performed after the
production of a saleable mineral
product Phosphoric acid, for example, is
a saleable mineral product mat is
purchased by diverse industries and has
many uses in manufacturing and as a
feedstock for further chemical
processing. Thus, the manufacture of
ammoniated phosphate fertilizer by
adding ammonia to phosphoric acid, is
not a mineral processing operation; this
is chemical processing that uses a
saleable mineral product as a feedstock.
Likewise, EPA considers titanium
tetrachloride, produced during the
titanium chloride process, to be a
saleable product; any processing
subsequent to its production is
considered to be chemical processing. In
contrast titanium-bearing slag
generated in blast furnaces is
considered eligible for continued Bevill
exclusion, because although it is a
saleable intermediate product it has no
significant end use except for additional
mineral processing. Accordingly, the
processing of this slag using sulfuric
acid digestion is a mineral processing
operation rather than a chemical
processing operation, and all qualifying
wastes from this process are Bevill
wastes.
4. Residuals From Treatment of
Excluded Mineral Processing Wastes
Are Eligible for Exclusion Provided That
They Meet the High Volume and Low
Hazard Criteria
The October and April NPRMs both
articulated EPA's intention to include as
processing wastes the residuals from the
treatment of excluded mineral
processing wastes, but only if those
residuals independently meet the
criteria for special waste status. Several
commenters specifically suggested that
for clarity EPA should fist for study, in
the regulation itself, the category
"residues from the treatment of all
mineral-processing wastes on the
preceding list which are generated at a
rate greater than the high volume
criterion established by EPA." Other
commenters argued that the special
waste criteria should not be applied to
treatment residuals, recommending that
EPA include in the regulation itself on
the list for study "residues from the
treatment of all mineral processing
wastes on the preceding list regardless
of the rate of generation." One
commenter noted mat treatment •mi
discharge of process water in its
industry is limited by the Clean Water
Act and. as a result treatment residuals
are limited in volume and thus do not
meet the high volume criterion because
of other regulatory demands. Another
claimed that EPA must evaluate actual
waste management practices and
impacts to human health and the
environment before deciding that
nraiduals an subject to subtitle C
Finally, one commenter stated that EPA
should be consistent in applying its
^definition of process wastewater and .
include aqueous pollution control
residuals with process wastewaters,
claiming that EPA provided no rationale
for the statement that process
wastewater does not include aqueous
waste streams from pollution control
devices.
After review of the comments, EPA
continues to believe that the most
appropriate interpretation of the term
"solid waste from the processing of ores
and minerals" should include pollution
control residuals that an presently
generated as long as such residuals meet
the high volume and low hazard criteria
required for all exduded wastes. By
including qualifying pollution control
residuals on the list of wastes excluded
under the Bevill Amendment the intent
of Congress will be achieved by
allowing further study of these high-
volume, low-hazard wastes. EPA does
not believe it appropriate to treat low
volume pollution control residuals as
exempt wastes regardless of the nason
why these wastes an not generated in
Idgh volumes.
5. The Processing Definition Could Be
Narrowed by Adding a Co-Location
Requirement
In the April NPRM the Agency
solidted comment concerning whether
the definition of "mineral processing"
should be further narrowed by confining
"mineral processing" to only those
mineral processing operations that are
co-located with extraction and
benefidation operations. Some
commenters encouraged EPA to narrow
the definition of processing and indude
only those processors that an co-
located with benefidation operations.
stating that (1) The co-locational
requirement la an inherent aspect of the
Bevill exemption, (2) the legislative
history never indicated that wastes
generated at locations divorced from
extraction and benefidation sites should
be exempted. (3) that Congress never
intended non-mining industries (e.g.. the
chemical industry) to have Bevill-
exempt wastes, and (4) EPA itself, in the
1980 interpretation, indicated only
wastes that an co-located should be
exempted.
Many other commenters insisted that
EPA do nothing to further narrow the
definition of processing, especially by
limiting the exemption to processors
that an co-located with benefidation
operations. They contended that: (1)
This narrowing would be inconsistent
with the language of the Bevill
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36622 Federal Register / VoL 54. No. 169 / Friday. September 1. 1969 / Rules and Regulations
Amendment, the intent of Congress, and
the interpretation of the Court, (2)
wastes will exhibit the same intrinsic
high volume, low hazard, and other
characteristic* regardless of their
location relative to extraction and
beneficiation operations, (3) if the
Agency ignores site characteristics
which directly affect risk (Le, hazard)
potential, then site characteristics which
have no effect on risk—such as co-
location, must also be disregarded. (4) if
EPA relies on the special waste concept
to define processing, then the Agency
must recognize that the 1978 proposal as
well as EPA's Draft Background
Document do not give any indication
that only processing operations at
integrated facilities should be eligible
for the Bevill exclusion, (5) many if not
most sectors ship from mines to
beneficiation and/or processing
facilities, (6) co-location could threaten
the environment if processing facilities
are moved to the sensitive areas in
which mines are often located, and (7)
no significant domestic extraction or
beneficiation occurs in some sectors,
making it impossible to perform the
processing (e.g., chromite ore roasting/
leaching, manufacture of hydrofluoric
acid) in close proximity to beneficiation
anywhere in the U.S.
After further review, EPA has decided
that a further narrowing of the
processing definition using a co-location
criterion or any other limitation is not
appropriate or required by
Congressional intent as reflected by the
legislative history. Furthermore, the co-
location requirement could conceivably
create major inequities between
facUities within sectors because some
faculties in a sector may be co-located
while others are not. and between
sectors because some sectors rely
entirely on foreign ore supplies and
others do not; the volume or hazard of
wastes in these sectors are largely
unaffected by the location of the
extraction and beneficiation operations
providing their feedstocks. Therefore,
EPA will continue to use the definition
delineated above (La* solid waste
uniquely associated with mineral
processing and meeting aD of the five
attributes of mineral processing) and
has not employed any additional criteria
that would narrow the definition of
"mineral processing."
£ Related RCRA Issues
1. Applicability of the Mixture Rule
The April 17.1980 NPRM stated that
EPA would apply the mixture rule to
Bevill and non-Bevill mixed waste
streams under almost all circumstances.
Under this policy, mixtures of one or
more listed hgyrTr1f'iu wastes ""^ •
large volume. low hazard mineral
processing waste would be considered a
hazardous waste unless and until the
mixture is delisted. EPA proposed.
-however, that in the case of mixtures of
non-excluded "characteristic" wastes
and Bevill wastes, the mixture would be
considered a hazardous waste if it
exhibits one or more of the same
hazardous characteristics that are
exhibited by the non-excluded waste. If,
on the other hand, the mixture exhibits
one or more hazardous characteristics
exhibited by the Bevill waste but not by
the non-excluded characteristic waste,
then the mixture would not be a
hazardous waste. Furthermore, mixing a
characteristic hazardous waste with a
Bevill waste would constitute treatment
of a hazardous waste, and would be
subject to the appropriate regulation for
the treatment storage, or disposal of
hazardous wastes, including obtaining a
permit
Several commenters asserted that the
Agency's preliminary position on the
mixture rale is inappropriately lax and
should be modified to regulate co-
managed waste mixtures more
stringently. These commenters argued
that mixtures of Bevill and non-Bevill
wastes do not meet the low hazard
criterion for Bevill exclusion.
Commenters also stated that co-
management typically occurs
subsequent to initial processing, and
thus does not fall within the scope of the
Bevill exclusion.
Other commenters argued that the
proposed application of the mixture rule
is overly strict These commenters
stated mat applying the mixture rule as
proposed would discourage
environmentally protective co-
management Commenters specifically
recommended that mixtures of non-
Bevill characteristic or listed wastes and
Bevill wastes be regulated as hazardous
only when the resulting mixture (1)
demonstrates a hazardous characteristic
not exhibited by the Bevill waste, or (2)
is more hazardous than the Bevill waste
alone. These commenters stated that the
Agency should exempt mixtures of
characteristic or listed mineral
processing wastes with Bevill wastes
when the disposal of the Bevill waste is
subject to the requirements of a State or
Federal program to control groundwater
contamination, provided that the waste
is completely characterized such that
the effects of **'**
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Federal Register / Vol 54. No. 169 / Friday. September 1. 1980 / Rules and Regulations 86623
regulation of these waste streams was
unnecessary.
Some commenters argued that the
proposed modifications to the mixture "
rule conflict with Congressional and
Court ordered requirements to perform
studies of particular waste streams.
These commenters stated that all
processing wastes are temporarily
exempt from all provisions of subtitle
C—including the mixture rule—until the
special study is completed and a
Regulatory Determination is completed.
Other commenters contended that the
Court interpretation of the legislative
intent of the Bevill Amendment supports
the argument that the beneficial effects
of waste mixing should be incorporated
into the low hazard criterion, and if
insufficient data are available to do so, •
then the Agency should further study the
effects of mixing practices.
Finally, commenters argued that
particular waste streams and classes of
wastes should not be subject to the
modified mixture rule and that they
should remain eligible for the Bevill
exclusion. Waste streams include
bauxite red mud mixed with red scale.
Lurgi wet scrubber effluent mixed with
alkaline tailings at primary copper
facilities, minor waste streams from the
electrowinning and refining of gold
mixed with tailings, and small amounts
of waste mixed with sulfuric acid
storage tank clean-out and rerirculation
water from phosphate processing.
The Agency has reviewed and
considered these comments, and has
concluded that it is consistent with the
intent of Congress and the Court and
most protective of human health and the
environment to continue to apply the
mixture rule to Bevill and non-Bevill
mixed waste streams as described in the
April 17,1989 NPRM. Only in this way
can the Agency ensure that an
unintended regulatory exclusion is not
afforded (e.g^ through intentional
dilution with high volume Bevill wastes)
to small volume hazardous mineral
processing wastes mat should rightly be
subject to Subtitle C requirements. By so
doing, mixtures of «»«•" volume mineral
processing wastes and Bevill wastes are
potentially subject to subtitle C
requirements, and the act of mixing
them will require • subtitle C treatment
permit For the same reasons. EPA also
does not see any reason to carve out-
particular exceptions for the waste
stream mixtures cited by commenters.
Because many facilities may lack
historical knowledge of the relevant
concentrations of constituents and
volumes of the characteristically
hazardous non-excluded pre-mixed solid
wastes, and pre-mixed Bevill wastes
comprising the characteristically
hazardous Bevill waste mixtures. EPA
does not believe that a baseline risk
approach is feasible. This also is why
EPA's approach to these characteristic. /
mixtures differs from the approach
retained today regarding listed mixtures.
(See also the discussion regarding utility
wastes above). Further, concerns over
enforceability of alternative approaches
have convinced EPA that the approach
adopted here is necessary to assure that
nonexcluded characteristically
hazardous wastes are properly managed
and are not improperly mixed with
Bevill wastes so as to avoid regulation.
The argument that EPA's position is in
conflict with the 1986 Regulatory
Determination for extraction and
beneficiation wastes or Congressional
and Court directives regarding these
Bevill wastes is specious; the issue at
hand is regulation of low volume
hazardous mineral processing wastes.
not regulation of Bevill wastes. Non-
Bevill mineral processing wastes that
are hazardous are subject to all aspects
of the subtitle C regulations, including
the mixture rule. Mixtures of Bevill and
non-Bevill processing wastes will be
treated in the same manner,
notwithstanding the fact that EPA has
not yet studied Bevill processing wastes.
Further, even were EPA to agree that the
mixture rule were inapplicable to the
Bevill waste mixed with hazardous
waste, mixtures of listed hazardous
wastes with Bevill wastes would
continue to be subject to regulation
because the "mixture" would "contain"
listed hazardous waste, subject to
regulation unless delisted. See Chemical
Watte MgmL, lac. v. EPA. 869 F.2d 1526
(D.C. Or. 1989).
Moreover, the Agency finds no
compelling reason to provide
exemptions for particular •™»fl volume
wastes that may be associated with
mineral processing operations, such as
cleaning wastes. Many other industrial
operations also generate such wastes.
and EPA does not believe that the fact
that current management involving co-
management justifies continued
regulatory exclusion for wastes that are
not uniquely associated with mineral
processing (and therefore are not
defined as mineral processing wastes)
and would not in any event meet the
high volume criterion.
Finally, providing regulatory
exclusions for mixtures of Bevill and
non-Bevill mineral processing wastes
would provide disincentives for
developing ways to «"»"«""«• hazardous
waste generation. This would be in
direct conflict with one of the Agency's
major policy goals, that of pollution
prevention.
2. Applicability of the Derived-From ^
Rule
* The April 17,1989 NPRM stated that
the Agency will clarify the application
of the derived-front rule in a
supplemental notice (expected in mid-
1989) to the May 6.1987 proposed rules
for boilers and industrial furnaces
burning hazardous waste. In the interim.
the proposal stated that the Agency
would adhere to its prior statements on
this issue, Le.. that wastes from
comanaging hazardous wastes and
Bevill materials remain within the scope
of the Bevill exclusion so long as the
character of the residues is not
significantly affected by the hazardous
waste management activity. To the
extent that co-combustion residues are
significantly affected, they could no
longer be considered to truly arise from
processing an ore or mineral (or from
other activities addressed by the Bevill
Amendment). See 50 FR 49190
(November 29,1985); 52 FR 17012-13
(May 6.1987) for farther information.
Many commenters responded to the
proposed rule by requesting that the
Agency immediately clarify its position
on the derived-from rule and provide a
supplemental notice to the final rule for
boilers and industrial furnaces. Other
commenters argued that Congress -
dearly did not intend for the Bevill
Amendment to exempt the burning of
hazardous wastes in smelter furnaces.
These commenters further argued that
the Agency's position on the derived-
from rule rewards dilution as a means of
disposal and is unlawful and overly
broad. Commenters suggested that if the
Agency determines that combustion
residuals from burning hazardous waste
with Bevill exempt materials are in fact
exempt from Subtitle C then the Agency
should include an assessment of the
potential health and environmental
impacts of burning in the Report to
Congress.
Other commenters stated that wastes
from industrial furnaces burning
hazardous waste fuel should remain
under the Bevill exclusion as long as the
character of the residue is not
significantly affected by the
management activity. These
commenters argued that the air pollution
control residues from hazardous waste-
find kilns an Bevill wastes just as are
residues from coal-fired kilns.
The Agency has reviewed and
evaluated these comments regarding the
derived-from rule. As indicated in the
April NPRM. EPA will clarify the
application of the derived-from rule ir~*
supplemental notice to the May C, 196. ^
proposed rules for boilers and industrial
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36824 Federal Register / VoL 54. No. 169 / Friday. September 1. 1980 / Rules and Regulations
furnace* burning hazardous waste. We
expect this notice to be published during
the next several months. Until then,
wastes from co-managing hazardous
wastes and Bevill materials remain
within the scope of the Bevill exclusion
so long as the character of the residues
is not significantly affected by the waste
management activity.
Effects of the Land Disposal Restrictions
Commenters argued that the Agency
has misinterpreted the land disposal
restrictions (LDR) as they relate to
mineral processing. According to
.commenters, the LDR will not be
automatic for non Bevill mineral
processing wastes that exhibit
hazardous characteristics as of May
1990. Also, these commenters stated that
EPA's statutory mandate to conduct a
detailed and comprehensive review of
mineral processing wastes requires the
Agency to take into account the
potential effect of the LDR rulemaking. If
the Agency considers •liminating the
Bevill exclusion as applied to a .
particular materials stream, it should,
according to these commenters, only do
so in the context of a land ban BDAT
determination.
The statutory mandate to conduct a
detailed and comprehensive review
applies only to Bevill wastes, not to the
other mineral processing wastes
removed from Bevill by today's final
rule. Therefore, EPA is under no
obligation to consider the effects of
potential land disposal restrictions on
mineral processors prior to removing
non-Bevill mineral processing wastes
from the exclusion.
A further question exists as to the
status of the wastes withdrawn from the
exclusion under the land disposal
restriction provisions that establish •
schedule for prohibiting untreated
hazardous wastes from land disposal
Once withdrawn from the Bevill
exclusion, these wastes wiD be
identified as hazardous if they exhibit •'
hazardous waste characteristic none
will be listed (at least at this time). The
statute provide* with respect to waste*
identified because they exhibit •
hazardous waste characteristic that EPA
must promulgate prohibitions and
establish treatment standards for "all
hazardous waste* identified under 3001"
by May 8.1980. RCRA section 3004
(g)(4)(C). (EPA interprets this language
as referring to the wastes identified aa
hazardous as of November 8, 1984, the
date of enactment of the HSWA
amendments because they exhibit on*
or more hazardous characteristics.)
Wastes newly identified after November
8.1964 must be prohibited from land
disposal, and EPA must develop a
treatment standard for them, within six
months after they are newly identified.
RCRA section 3004 (g)(4).
EPA believes that the wastes
withdrawn from the exclusion are
"newly identified" for purposes of these
provisions. Although technically the
wastes are not being identified by a new
characteristic, they an being brought
into the subtitle C system after the date
of the 1984 RCRA amendments. The
Agency plans to address wastes brought
in under subtitle C by this rule further in.
the proposed land disposal restrictions
for the Third scheduled wastes.
However, because any hazardous
waste, including newly identified
wastes, is subject to the requirements of
the California List and Solvents and
Dioxins final rules, the most important
question is how the State programs are
affected. Today's final rule removing
certain mineral processing wastes from
the Bevill exclusion is not being imposed
pursuant to the HSWA and therefore
today's rule is not effective in
authorized states. Thus, as discussed
more fully below, today's regulation is
applicable only in those states that do
not have interim or final authorization.
Authorized states that do not have a
Bevill exclusion or analog. Le* all
mineral processing wastes are already
eligible for regulation as hazardous
wastes by the state, are already subject
to the land disposal restrictions for
California List and Solvents and Dioxins
wastes.
4. RCRA Section 3004(x)
As part of the 1984 HSWA
Amendments, Congress incorporated •
provision allowing the EPA
Administrator to relax certain of the
Subtitle C standards contained in the
new amendments as they relate to that
management of mhifaig wastes, utility
wastes, and cement kiln dust wastes.
This provision, found at section 3004(x).
is commonly called the "Simpson
Amendment.'' The Simpson Am«n«
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Federal Register / VoL 54. No. 160 / Friday. September 1. I960 / Rules and Regulation* 3C825
the special study wastes are determined to be
^iTir^'flpT it ouy not be necessary or
appropriate, because of their special
characteristics and other factors, to nibfect
•uch wastes to the tame requirements that
are applicable to other hazardous waste*.
and that protection of human health and the
environment does not necessarily imply the
uniform application of requirements.
developed for disposal of other hazardous
wastes."
Conf. Rpt at 93 (emphasis added). The
adoption of section 3004(x) is fully
consistent with Congress* concern in
1930 that the special wastes may not
necessarily be amenable to full Subtitle
C controls due to the large volumes and
potentially lower hazards. Such
concerns would not hold for wastes
which an not high volume, low hazard.
and the Conference Report suggests that
Congress was not concerned with
applying section 3004(x) to such wastes.
The Conference Report goes on to
explain that the authority of section
3004(x) "is intended to extend to all of
the wastes required to be studied by
EPA pursuant to section 8002 (f), (n), (o).
and (p), and does not in any way alter
the existing scope of section
3001(b)(3)(A)." Id. at 94 (emphasis
added). Several commenters cited this
language to indicate that the 3004(x)
was designed to apply to all wastes
which EPA defined within the scope of
the Bevill amendment as of 1964. Le* all
mineral processing wastes regardless of
volume or hazard. EPA does not agree
the language can be so read. The Court
of Appeals clearly ruled in EDF 0 that
Congress never intended the Bevill
Amendment to apply to wastes which
are not high volume, low hazard special
wastes. Thus, even in 1984. the "existing
scope" of section 3001 was not as broad
as EPA was interpreting it Congress
intended section 3004(x) to apply to
those wastes within the scope of the
Bevill amendment as Congress, not EPA.
interpreted it (Le.. special wastes). EPA
notes that the 1983 Senate Report
referred to in the April NPRM supports
thi« com-htfiflu, but is not ***• sole basis
for it
In light of the decision of the Court of
Appeals construing Congrats' intent in
adopting the Bevill amendment in 1980
(prior to die Simpson amendment), the
proper reading of section 3004(x) is that
it applies only to •pedal wattes as
defined by today's final rule. However.
EPA does recognize that for certain
wastes which an high volume, but also
high hazard, there may be valid
concerns regarding the amenability of
certain subtitle C controls. EPA would
appreciate receiving any information
regarding these effects in industries
affected by today's rule.
F. Administrative Issues
1. Subtitle C and Wastes Withdrawn
From the Bevill Exclusion
Commenters recommended that the
Agency clarify that surface
imp6undments managing processing
wastes removed from the Bevill
exclusion and exhibiting a hazardous
characteristic will have four years, as
provided for in section 3005(j)(6). to
comply with the Minimum Technology
Requirements (MTRs). These
commenters were concerned that
mineral processors newly subject to
subtitle C would have to meet the MTRs
under the LDR Program.
Other commenters recommended that
the Agency impose subtitle C
regulations on facilities that fail to
properly close and secure units in
accordance with all currently applicable
requirements within the six month
compliance period proposed in the
NPRM. As an alternative, these
commenters recommended that the
Agency require affected facilities to
implement a RCRA ground-water
monitoring program to assure detection
of threats to human health and the
environment Without assurance that no
contamination was present according to
these commenters. Subtitle C closure
and post-closure requirements must be
met so as to characterize and remediate
any potential human or environmental
threats.
Section 30050)(6) provides that
surface impoundments that become
eligible for interim status after
November 8,1964 as a result of receiving
wastes that an hazardous as a result of
"additional listings or characteristics for
the identification of hazardous waste
under section 3001" must comply with
MTRs within four yean of promulgation
of the new listing or characteristic. The
wastes that an no longer subject to the
Bevill exclusion an not being brought
into the subtitle C system as a result of
newly promulgated listings or
characteristics, but EPA believes that
the intended purpose of section
3005UH6) is to allow surface
impoundments that an newly eligible
for interim status after November 8.1984
to have the same four years to close or
retrofit afforded interim status
impoundments in existence on
November 8,1984. Consequently. EPA
believes that section 3005(j)(6) does
apply to the impoundments receiving
wastes newly brought into the subtitle C
system as a result of today's action. EPA
notes that it is adopting a similar
construction of section 3004(g)(4) and
thus it also viewing these wastes as
newly identified for purposes of the land
disposal restrictions program. In the
event that there an inconsistencies
between requirements under 3005(j)(6)
and the land disposal restrictions ,.
program, they will be addressed by EPA
vhe"n the Agency promulgates land ban
."quinmenta for these wastes.
2. Opportunities for Public Comment
In the April 17.1989 NPRM. the
Agency provided the public with a 45
day public comment period, during
which time the Agency accepted written
comments submitted to the Docket
Information Center and held a public
hearing in Washington. DC. Commenters
asserted that by scheduling only one
hearing location and date the public was
denied full access to the public comment
process. Other commenters argued that
the public comment period was too short
to allow the public adequate opportunity
to review and comment on the NPRM.
These commenters stated that an
additional 30 days should have been
allowed for public comment
The Agency disagrees with these
commenters. While the opportunities for
public review and comment on the April
17.1989 NPRM wen more limited than
the Agency customarily provides, the
Agency believes that these opportunities
were nonetheless adequate.
Furthermore, the public review and
comment schedule was driven by the
Court-ordered schedule, which
prevented the Agency from providing a
longer public comment period or
additional public hearings. In addition.
for many issues, there have been
multiple comment periods.
3. Executive Order 12291 Analysis
In the April 17.1989 NPRM. the
Agency explained that section 8 of
Executive Order 12291 exempts an
agency from the requirements of the
Order when compliance would conflict
with deadlines imposed by statute or
Judicial order. Accumulating the
information and conducting the analyses
required to fully comply with the
requirements of sections 2 and 3 of
Executive Order 12291 takes many
months. Therefore, compliance with
these requirements in preparation for
the October and April proposed rules
was not possible within the schedule
specified by the Court for this
rulemaking. In the NPRM. the Agency
explained that although EPA could not
conduct a complete economic impact
analysis within the period of time
allowed by the Court the Agency's
economic impact analyses conducted in
support of previous Agency rulemaking
and Report to Congress activities did
suggest that the proposal might well not
meet the criteria for a "major" rule.
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30628 Federal Register / VoL 54. No. 169 / Friday, September 1, 1989 / Rules and Regulations
Commenten argued that the Agency
to hi fact compelled to prepare an
economic analysis for this rulemaking.
These commenters asserted, without
providing alternative analyses or
information in support of the assertion.
that the rule would qualify as a major
rule under each of the three tests used to
determine impact under Executive Order
12291. Some commenters argued that the
Court clearly indicated that the Agency
is required to consider costs and
benefits in making Bevill dedsions (see
e.g.. EDFI at 1315). Commenten
recommended that if the Agency _
requires additional time to prepare an
economic impact analysis, it should
request an extension from the Court
As discussed above and in the
October and April proposals, the
Agency does not have adequate time to
prepare a complete RIA that to fully
responsive to E.O.12291 in connection
with this rulemaking. Moreover, the
Agency has not received convincing
arguments or information that suggest
that the rule, in either proposed form or
in the form finalized today, would
constitute a "major rule." et least not in
terms of aggregate financial impacts in
excess of $100 million annually. As far
as any obligation to consider economic
impact in making Bevill exclusion
dedsions is concerned, EPA's reading of
the court dedsion in EDF I to that
economic effects and all of the other
RCRA 8002(p) study factors must be
evaluated in the Report to Congress and
considered hi making the regulatory
determination for Bevill mineral
processing wastes, but not in identifying
the mineral processing wastes that
satisfy the Bevill criteria in the first
instance. Finally, because EPA to
capable of discharging its duties within
the time period allotted by the Court, the
Agency does not believe that a schedule
extension for purposes of conducting an
impact study that to not required to
appropriate.
Commenten stated that the Agency
does not have a basis tat claiming that
the rulemaking will not constitute a
major rule, and therefore that the rule
does require a Regulatory Impact
Analysis. Sufficient information.
according to commenten, waa provided
to the docket after the October 20,1988
proposed rulemaking. These
commenten stated that the Department
of Interior (DOI) has indicated that it.
possesses the necessary date for .
conducting a Regulatory Impact
Analysis.
EPA disagrees that the information
that has been submitted to the docket
demonstrates that this action constitutes
a major rule. In fact although the
Agency had requested specific
information in the October and April
proposals regarding low volume
processing wastes that would or might
be affected by today's rule, virtually no
specific data on such wastes was
received in public comment on these
proposals. Through past cooperative
work with the U.S. Bureau of Mines
(BOM], EPA to well aware of the types
of information available from DOI
concerning mineral processing wastes.
While very comprehensive information
on numbers and identities of facilities
and production and sales volume data
are available from BOM, the Bureau has
very little information on other variables
that are critical to a complete evaluation
of regulatory and economic impact such
as waste types, volumes, and
characteristics, and waste management
practices.
The Agency has made a good faith
effort to comply with the requirements
of Executive Order 12291 by conducting
a comprehensive economic impact
screening analysis, as presented below
in Section VHL
4. Regulatory Flexibility Analysis
In the April 17,1989 NPRM. the
Agency explained that Section 808 of the
Regulatory Flexibility Act (RFA) allows
the Administrator to waive or delay
completion of the RFA screening
analysis in response to an emergency
that makes compliance with the
requirements of section 603 or die Act
on a timely basis impracticable. In this
instance, the court-imposed deadlines
for publication of the October and April
proposed rules have prevented EPA
from conducting a complete screening
analysis of potential smell business
impacts in time to support the
rulemaking process, especially given
that mon than 100 mineral commodity
sectors would have required screening
for potentially hazardous waste and the
presence of significantly affected small
business entities. In both the October
and April NPRMs the Agency solicited
comment and specific information
relating to specific small businesses or
indivic ml commodity secton that
produce on or mineral processing
wastes that could, by virtue of the
potential hazardous characteristics of
such wastes, be subject to advene
appreciably between mineral-industry
sectors, and therefore, the extension of
information from the nonferrous and
ferroalloy producing sectors to the
nonmetallic ore" and mineral processing
sectors to inappropriate. These
commenters asserted that the Bureau of
Mines could provide information
necessary to support a screening study.
In section DC of this preamble, the
Agency presents a comprehensive
analysis of the impacts of this
rulemaking on small businesses.
G. Comments Addressing Nine Wastes
for which Final Bevill Status is
Established by Today's Rule
This section summarizes public
comments received by EPA addressing
nine potentially high volume wastes on
which the Agency proposed to take final
action in the April NPRM. EPA's
decisions regarding the Bevill status of
these materials are presented in section
IV. below, though responses to a limited
number of specific questions and issues
raised by commenten an addressed in
this section.
1. Slag From Primary Copper Processing
Several commenten supported EPA s
proposal to retain primary copper
smelting slag within the Bevill
Amendment exclusion as a high volume,
low hazard mineral processing waste.
They noted that slag from primary
copper smelting constitutes a low
hazard waste according to a study
supported by EPA. They further agreed
mat all types of copper processing slag
(La- reverberator furnace, converter.
md refining slag] should be aggregated
to meet the volume criterion. One
commenter stated that its anode and
converter slag to not discarded but
recycled to smelters and claimed this to
be a standard practice at UJS. smelters.
That same commenter noted that its
reactor slag to an intermediate product
mat to processed in a slag concentrator
using benefidation activities (Le,
iponded by stating
other facilities either discard or clean
the slag. They claimed that water
extract tests in which only one of 15
samples exceeded EP toxidty levels
have demonstrated that the waste to low
disagreed with
Other
that the Agency has inadequately
evaluated the rule's impact on small .
businesses, but no commenten provided
any specific information ralated to small
business firms or potentially affected
sectors. Nonetheless, these commenten
stated that the Agency should recognize
that enterprise ownership patterns vary
EPA's proposal to ntain copper slag.
They indicated that the waste sampling
affort conducted for the draft mineral
processing waste Report to Congress
revealed that one of the eleven samples
of copper slag exhibited the EP toxidty
characteristic. In addition, the waste
contained elevated teachable levels of
arsenic, cadmium, and lead. Water
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I
Federal Register / Vol 54. No. 199 / Friday. September 1. 1989 / Rule* and Regulation* 36827
extraction i
tlto WAStft C
npling also revealed that
eachable arsenic
and cadmium at concentrations
exceeding the EP trigger level They
noted that data from the draft Report to
Congress demonstrate exceedances of
the AWQC for copper smelting slag:
cadmium exceeds the AWQC by up to
9.000 times, copper by up to 9,000 times.
and lead by up to 15,000 times.
One commenter who in the past used
copper slag for construction purposes in
the state of Washington objected to the
inclusion of slag from primary copper
smelting, specifically objecting to the
classification of copper smelting slag as
nonhazardous. This commenter
contended that contamination caused by
copper smelting slag in the Tacoma.
Washington area has been documented
in numerous reports. In 1983, they
claimed, the Tacoma Pierce County
Health Department issued a notice
advising against consumption of bottom
fish from the Hylebos waterway and
against regular consumption of fish from
other waterways in the area because of
the presence of arsenic and lead in fish
caused in part by smelting slag.
EPA today finalizes the decision to
leave copper slag within the exclusion
for study. Data recently collected by
EPA (using Method 1312) confirms that
this waste passes the hazard screening
criterion. Furthermore, 1310 data
developed from the same sample fails to
confirm the results cited by the
commenter.
2. Slag From Primary Lead Processing
A commenter supported EPA's
proposed retention of lead processing
slag, but indicated a concern that only
smelting and not refining slag may have
been included. They requested that if
this is EPA's position, that the Agency
modify its definition to include refining
th
ntc
dl
EPA's proposal to i
arguing that slag from prii
dwith
processing cannot be considered low
hazard under any reasonable definition.
effort conducted fof toft dzsft mjneiu
processing waste* Report to Congress
revealed that all five of UM plants
generating this waste and thirteen of
seventeen sample* of slag from lead
processing exhibited the EP toxidty
characteristic. Two of the five facilities
failed for cadmium: three of the five
facilities and eight of the 17 total
samples exceeded the drinking water
standard for lead by more than 1000-
fold; and one of the plants exceeded 100
times the drinking water standard for
cadmium even when leached with
water. All samples of granulated or hot
dumped slag exhibited the EP toxicity
characteristic; only the dezinced slag
passed the characteristic teat They
noted that data from the draft Report to
Congress demonstrate exceedances of
the AWQC for copper smelting slag:
cadmium exceeds the AWQC by up to
6.000 times, zinc by up to 2.100 times.
and lead by up to 68,000 times.
EPA today finalizes the decision to
leave lead slag within the exclusion for
study. Data recently collected by EPA
(using Method 1312) confirms that this
waste passes the hazard screening
criterion at three facilities. The data
cited by the commenters is not
determinative of whether the waste will
remain within the exclusion under
today's screening criterion.
3. Red and Brown Muds from Primary
Bauxite Processing
Commenters supported the Agency's
proposed retention of red and brown
muds from bauxite refining within the
mining waste exclusion. They agreed
that red and brown muds satisfy the
definition of mineral processing and
meet the low hazard and high volume
criteria. The commenters further
claimed that should red and brown
muds incorrectly be classified as
hazardous waste, a large share of the
hazardous waste storage capacity in the
U.S. would be consumed with no
increased benefit or protection to the
environment One commenter further
argued that this waste is from a mineral
benefidation. not mineral processing
waste.
Red and brown muds are created by
an alkaline digestion operation; they
therefore constitute mineral processing
wastes.
4. Phosphogypsum From Phosphoric
Add Production
A number of i
iten
imp
EPA's proposal to retain
phosphogypsum within the Bevill
exclusion. They agreed that
phosphogypsum meets the high volume
and low hazard criteria and should be
retained in the Bevill exclusion.
Additionally, they contended that
compliance with subtitle C
requirements, including land disposal
restrictions, in the management of
phosphate rock is not possible. Where
teconoiosiGalur fisasiDAe, cotnplianfie
would require expenditures that cannot
be sustained by the fertilizer industry.
Several industry connsenten claimed
that the exclusion for phosphogypsum
will be meaningless if the rainwater
falling on these stacks also is not
exempted, noting that the collection of
mis rainwater runoff is an integral part
of the processing of phosphate rock as
this processing could not legally occur if
the runoff was not collected and
managed in accordance with the NPDES
program. '
Commenters argued further that
phosphogypsum should not be
considered separately from the
recirculating process water with which
it is linked. Process water is used to
convey phosphogypsum to management
areas and serves a critical function in
maintaining water balance. Water used
to transport phosphogypsum is
generated at a different point in the
production process only where it is
redrcuLated. The commenters asserted
that separate consideration of
phosphogypsum and process
wastewater does not comport with the
Agency's historical approach to the
Bevill Amendment.
Other commenters, hi contrast,
criticized EPA's proposal to retain
phosphogypsum from phosphoric add
production within the Bevill exclusion.
They claimed that phosphogypsum.
under any reasonable definition, is not
low hazard. Of the 10 plants sampled in
a study contracted by EPA. 14 of 19
samples exceeded 100 times the MGLs
for alpha particle radioactivity, radium-
228. or both. Furthermore, adequate data
exist to document the health risks
associated with radioactive uranium
and phosphate wastes. They asserted
that: (1) EPA date indicate that the
health risks from phosphogypsum stacks
and ponds exceed the Agency's
acceptable levels by a factor of eight (2)
phosphogypsum piles are located in
anas of heavy rainfall where leaching
of wastes ocean, end (3) the piles are
located in heavily populated areas and
in dose proximity to ground water.
Therefore, they contended.
phosphogypsum should be regulated as
a hazardous waste. EPA's failure to
consider radionudides as hazard is
arbitrary, especially since EPA has
previously recognized that waste with
20pCl/g constitutes more than a low
level hazard and the EPA Draft
Background Information Document
entitled "Radionuclide Emissions from
Phosphogypsum Stacks-Risk
Assessment" shows phosphogypsum to
hare aa avenge radium 228
concentration of 31 pCi/g. plus
significant levels of other radionudides.
The commenters also expressed concern
over the disposal of phosphogypsum
filter pan residue on these piles as the
residue has concentrations of
radionudide 2 to 3 orders of magnitude
higher than normal phosphogypsum.
EPA has reviewed these comments
and has elected to retain
phosphogypsum within the Bevill
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36628 Federal Register / VoL 54, No. 169 / Friday. September 1, 1989 / Rules and Regulations
exclusion because it passes all of the
final Bevill mineral processing wastes
criteria. Hie type(s) and magnitude of
risk posed by this material, including its
radioactive constituents, will be
addressed in the forthcoming Report to
Congress.
The Agency also wishes to reiterate
its position regarding the definition of
phosphogypsum, as articulated in the
April NPRM. Phonphogypsum and the
process water that is used to remove it
to disposal represent two separate
waste streams that could, if the industry
desired, be managed separately. The
Agency understands that when the
phosphogypsum waste stream leaves
the mineral processing circuit it is not
entrained in the process water, but is a
semi-solid residue from a filtering
operation. The solid waste is then
entrained in the process water in order
to transport the waste to gypsum stacks
for disposal. While alternative transport
systems may be impractical, the fact
remains that there exist two waste
streams capable of being managed
separately which must be considered
separately for this rulemaking.
Therefore, only phosphogypsum will be
unconditionally retained within the
Bevill exclusion for today's ruling.
EPA will address the status of process
wastewater from phosphoric acid
production, including its components
(i.e., the gypsum stack run-off issue) in
the September, 1989 proposal
5. Slag From Elemental Phosphorus
Production
Commenters supported EPA's
proposal to retain slag from elemental
phosphorus production within the Bevill
Amendment They claimed that
phosphorus industry materials streams
are generated by "mineral processing"
operations as defined by the EPA. are
high volume wastes, and are not high
hazard wastes.
6. Furnace Scrubber Slowdown From
Elemental Phosphorus Production
Some commenters supported EPA's
proposal to retain furnace scrubber
blowdown from elemental phosphorus.
production within the Bevill
Amendment. They claimed that
phosphorus industry materials'streams
are generated by "mineral processing"
operations as defined by the EPA. are
high volume wastes, and are not high
hazard wastes.
Other commenters objected to
including furnace scrubber blowdown
within the Bevill exclusion. They
contended that furnace scrubber
blowdown from phosphorus production
cannot be considered low hazard under
any reasonable definition. Of the two
plants sampled in a study contracted by
EPA. both plants yielded samples that
exceeded 100 times the MCLs for alpha
particle radioactivity, radium-226, or
both. One plant exceeded the EP
standard for cadmium, while the other
exceeded the MCL for arsenic by more
than 10-fold, and exceeded the 10-5
cancer risk level by almost 850 fold.
7. Acid Plant and Scrubber Blowdown
from Primary Copper Processing
Several commenters argued that acid
plant blowdown and Lurgi scrubber
effluent should be retained in the Bevill
exclusion because they meet both the
high volume and, at least at some
facilities, the low hazard criteria. One
commenter asserted that acid plant and
scrubber blowdown from primary
copper processing should not be
eliminated from the Bevill Amendment
based on its failure of EPA's low hazard
test They stated that the Agency should
consider the burden of compliance for
sectors eliminated from the Bevill
exclusion. The commenter that claimed
to have a low hazard waste stated that:
(1) Their alkaline tailings are mixed with
the waste which neutralizes the
blowdown/Lurgi mixture, and (2) metals
in the waste, by operation of internal
chemical processes, become tightly
bound in the matrices of various
complex hydroxides contained in the
tailings in which they are mixed, thus
producing a ™<"ip"i risk of leaching.
Therefore, the representative samples of
the Lurgi/blowdown/tailings mixture •
are not EP toxic. Additionally, they
contended that the mixture poses no
threat of release into the environment
because the waste is deposited in a
t«iUng« pond on a deep tailings base
which serves as an effective seal from
migration into soil or groundwater, the
waste is deposited a great distance from
HrinUng water, ""^ the commenter's
facilities an located in an arid.
unpopulated region.
Other commenters agreed with EPA's
proposal to remove add plant and
scrubber blowdown from primary
copper processing from the Bevill
exclusion, arguing that blowdown from
primary copper processing cannot be
considered low hazard under any
reasonable definition. They noted that
the waste sampling effort conducted for
the draft Report to Congress revealed
that all samples of copper add plant
blowdown exhibited the EP toxidty
characteristic. In addition, they
indicated that the waste contained
elevated leachable levels of arsenic.
cadmium, and mercury, and that the
add plant blowdown samples exceeded
EP characteristic trigger levels: the
mercury concentrations exceeded by up
to 98.5 times, and the cadmium
concentrations exceeded by a factor as
high as.24.5. They also noted that water
extraction sampling also revealed that
the7 waste contains leachable arsenic
and cadmium at concentrations
exceeding the EP trigger level They
contended that data from the Draft
Report to Congress demonstrate
exceedances of the AWQC for copper
smelting slag; cadmium exceeds the
AWQC by up to 25.000 times, arsenic by
up to 1.930 times, and mercury by up to
30.000 times.
8. Add Plant Blowdown from Primary
Lead Processing
One commenter contended that acid
plant blowdown from primary lead
processing should not be eliminated
from the Bevill Amendment based on its
failure of EPA's low hazard test. The
commenter maintained that lead
processing add plant blowdown and
scrubber blowdown fall within the
definition of process wastewaters and
meet the high volume criterion;
therefore, the waste should be studied.
9. Air Pollution Control Scrubber
Blowdown from Primary Tin Processing
The single tin processor in the U.S.
submitted in response to the October
NPRM that it generated on average
68,000 metric tons of blowdown, which
they claimed is a relatively dilute stream
in the neutral pH range, and is similar to
smelters in the lead and copper
smelters. No comments were received in
response to the April NPRM.
EPA need not address hi detail the
comments on the hazard status of
phosphorous furnace scrubber
blowdown and add plant blowdown
from copper, lead, and tin. These liquid
wastes all fail the volume criterion.
m. Final Criteria for Defining Bevill
Mineral Processing Wastes
A. Definition of Mineral Protesting
Wattes
For purposes of this rale, mineral
processing wastes are generated by
operations downstream of beneficiation
(as codified by today's rule) and
originate from a mineral processing
operation as defined by the following
its:
(1) Exduded Bevill wastes must be
solid wastes as defined by EPA.
(2) Exduded solid wastes must be
uniquely associated with mineral
industry operations.
(3) Exduded solid wastes must
originate from mineral processing
operations that possess all of the
following attributes:
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Federal Register / VoL 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations ' 38629
a. Follow beneficiation of an on or
mineral (if applicable);
b. Serve to remove the desired
product from an ore or mineral, or from
a benefidated ore or mineral or
enhance the characteristics of ores or
minerals, or benefidated ores or
minerals;
c. Use mineral-value feedstocks that
are comprised of less than 50 percent
scrap materials:
d. Produce either a final mineral
product or an intermediate to the final
product and
e. Do not combine the product with
another material that is not an ore or
mineral, or beneficiated ore or mineral
(e.g., alloying), do not involve
fabrication or other manufacturing
activities, and do not involve further
processing of a marketable product of .
mineral processing.
(4) Residuals from treatment of
excluded mineral processing wastes
must be historically or presently
generated and must meet the high
volume and low hazard criteria in order
to retain excluded status. .
Benefication operations include
crushing, grinding, washing, dissolution.
crystallization, filtration, sorting, sizing,
drying, sintering, pallatizing, briquetting,
Itining, roasting in preparation for
leaching (to produce a final or
intermediate product that does not
undergo further beneficiation or
processing), gravity concentration,
magnetic separation, electrostatic
separation, flotation, ion exchange,
solvent extraction, electrowinning,
precipitation, amalgamation, and heap,
dump, vat. tank, and in situ leaching.
Processing operations generally
follow beneficiation and inrU"i*
techniques that often destroy the ore or
mineral such as smelting, electrolytic
refining, and add attack or digestion. .
EPA also wishes to emphasize that
operations following the initial
"processing" step in the production
sequence are also considered processing
operations, irrespective of whether they
involve only the technique* defined
above as fan*Kld9tttm Therefore, solid
wastes arising from soch opemtii
considered mineral processing waates.
rather than benefidation wots*.
S. ThtHigh Vahaat Crituton
High volume mineral processing
wastes an defined as (1) non-liquid
are
mineral processing wastes that were
generated at an average annual rate of
greater than 45.000 metric tons per year
per facility, and (Z) liquid mineral • " •
processing wastes that were generated
at an average annual rate of more than /
1.OOQ.OOO metric tons per year per
facility during any year between 1983
end 1988.
For the purposes of this rulemaking.
the volume criterion for non-liquids has
been and will be used to determine if
both solid (e.g., slag, phosphbgypsum)
and semi-solid (e.g* weste treatment
sludge) materials are high volume. The
volume criterion for liquids has been
used to determine whether wastewaters
and ether aqueous wastes are high
volume. Professional judgment will be
employed in deciding which criterion to
apply to a particular waste stream. The
Agency considered the possibility of
using a quantitative measure, such as
percent solids, to distinguish between
liquid and non-liquid materials, but
concluded that such an approach would
lead to results that are inconsistent with
the purpose of employing separate
criteria for defining large volume liquid
and large volume non-liquid wastes.
Specifically, the solids content of some
liquid wastes generated by mineral
processing operations may be higher
than the solids content of some sludges
resulting from the treatment of other
mineral processing wastes, in spite of
the fact that a major volume reduction
operation (such as settling) has yet to be
performed on the untreated liquid waste.
Therefore, use of quantitative criteria
might result in inappropriately
considering a waste that has a solids
content above the cut-off bat for which
additional volume reduction is likely
(such as may occur as a result of
treatment and discharge of wastewater).
to be large volume, or vice vena.
The final volumetric cut-offs
presented hen reflect some of the
largest quantities of individual and
identifiable waste streams managed at
facilities that an* currently in the
Subtitle C regulatory system. EPA
developed the information supporting
these cut-offs in direct response to
comments reflecting both sides of this
issue criticizing the Agency's less
complete justification of the volume
criterion cut-off values contained in the
October and April proposals. For each
facility responding to EPA's TSDR
Survey (discussed above), the Agency
first determined whether they operated ^
an on-site hazardous waste landfill or~
on-site hazardous wastewater . .
management units (wastewater
treatment systems, treatment tanks,
surface impoundments, or underground
injection wells). Data pertaining to
landfill disposal were used to develop
the criterion for non-liquids and data
regarding wastewater management units
were used to derive the criterion for
liquids. Because mineral processing
wastes are typically inorganic, any
solid/sludge materials that are solid
wastes and are not recycled and might
be regulated under subtitle C would
have to be disposed in a subtitle C
landfill Therefore, establishing a
volume criterion for these materials
requires analysis of hazardous waste
disposal In subtitle C landfills. Similarly,
because liquid mineral processing
wastes are generally aqueous and thus
may be managed using one or more of
several different techniques. EPA
analyzed all of the significant
technologies employed to manage
hazardous wastewater under subtitle C.
In both cases, the Agency identified the
largest individual waste stream
managed by an appropriate technique at
each facility (i.en one hazardous waste
stream per facility), then computed
univariate statistics on the resulting
distribution. (This is the same basic
approach used by certain conunenters
who proposed volume cut-offs utilizing
data from EPA's 1985 Biennial Survey.)
The final volumetric criteria represent
approximately the largest individual
waste stream managed by the facility at
the 95th percentile of the relevant
distribution. Relevant data are
presented in Table 1. The Agency
believes that the 95th percentile of the
largest individual waste stream
managed at each facility both provides a
meaningful measure of the amenability
of subtitle C controls to different waste
types, and represents a reasonable
overlap between Subtitle C wastes and
Bevill wastes. EPA also notes that this
value is a compromise between
commenters that favored using the 99th
percentile and those that favored the
90th percentile.
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36630 Federal Register / Vol 54. No. 169 / Friday, September 1. 1989 / Rules and Regulations
TA8LE1.1—UNIVARIATE STATISTICS ON SOLID AND LIQUID HAZARDOUS WASTES
CAI quanWM * mrtric ton* mmotd In 19(61
Pcfccfittet
ton
o*
an
•»«
Nu«h« ,rf taatt_
Safe*
lOt-Mf
»».*r» «r 194,919 » .,.
41,S40«r J4,1B9 ,.,.,
ai.iiflit 4* 31,744
lOfrnifr inji«
•»
/ wuM^Mtn
44JO7857
4 .589 .261 or 4 999 573
1 098 412 or 1 112,600
346,230 or 356,224
49 039 Or 49 105
964
1 For a (MUMd teuwon of «h» derivation of VMM data »M ttw docket for tN« rufcmaking.
• Th» two attomm nurMMr* r*ftact rwutts using MO drtfowm and i
unorainty win rmpact to owl portion ol Ow ttwAutwa
tor computing unwariM SMMcs. Largo dNtaraneM Meat* ngnMcant
I
The Agency believes that by
developing the final volume criterion in
this manner, it has resolved all of the
significant issues raised in public
comment on the high volume criterion
presented in the two proposed rules.
First the basis of comparison (recent
Subtitle C waste management) is the
most relevant to addressing the question
at hand (amenability to Subtitle C
controls). Second, the way in which the
comparison was developed is more
internally consistent than in the
previous analysis; EPA developed a
criterion from data on hazardous waste
management of individual waste
streams and will apply this criterion to
individual mineral processing waste
streams. Third, the two separate criteria
that an presented here reflect the highly
significant differences in treatment
processes and treatment residuals
management options that exist between
nonliquid and liquid wastes. As stated
in the April NPRM. it is more technically
feasible to manage large volumes of
wastewater than it is to manage large
volumes of solids, because wastewater
treatment effluent (by far the largest
treatment residue in most cases) can
typically be discharged or recycled
while solids must often be land*
disposed. Finally, in developing this
approach. EPA has reconsidered its
earlier position and included
commercial hazardous waste
management facilities in the database
used to develop the cut-offs for the final
high volume criterion, because the issue
at hand is technical feasibility of
Subtitle C waste m"Mffttnieat'
considerations of differential economic
incentives facing operators of
commercial and private hazardous
waste management facilities are not
relevant in resolving this issue.
Therefore, the Agency selected a volume
criterion of 45.000 metric tons per year
per facility for non-liquid mineral
processing wastes and 1.000.000 metric
tons per year per facility for liquid
mineral processing wastes to
correspond to approximately the 95th
percentile (and rounded off so that the
criterion could be easily expressed; the
rounding had no effect on any waste
stream's status).
C The Low Hazard Criterion
1. The Toxicity and Mobility Test
A high volume mineral processing
waste is not low hazard and, therefore,
is not eligible for the temporary
exclusion from Subtitle C requirements
provided by the Bevill Amendment it
• Available data indicate that waste
extracts obtained using EPA Method
1312 and analyzed using established
SYV-840 methods contain concentrations
of arsenic, barium. t^Hminm, chromium.
lead, mercury, selenium or silver that
exceed 100 times the MCL for the
constituent at two or more faculties that
generate the waste, unless:
L The waste is generated at five or
more facilities; and
ii. Substantial additional relevant data
are available and the preponderance of
these additional data indicate that the
waste should be considered low hazard.
when:
a. Relevant data an denned as data
that result from analysis of waste
extracts obtained by EPA Methods 1310,
1311. and 1312. ASTM Test Method
D39B7-B1. or comparable procedures
that the Agency has nason to believe
produce nliable and representative
data; and
b. To be considend substantial, the
additional data must characterize the
waste at 3 plants (other than those two
plants when Method 1312 results
exceed 100 times the MCLs) or at least
half of the facilities that generate the
waste (other than those two plants
when Method 1312 results exceed 100
times the MCLs). whichever number of
plants is larger.
• Constituent concentrations
measured in waste sample extracts
obtained using Method 1312 an used to
determine facility-level values as
follows:
L If data for only one sample of the
waste an available, then these data
determine the facility-level constituent
concentrations; and
ii. If data on two or mon samples an
available, then the lower bound of the
60 percent confidence interval of the
mean of the data 7 serves as the facility-
level constituent concentrations, when
the confidence interval is calculated for
each waste for each constituent using all
results (from all plants generating the
waste) available from testing of 1
waste using Method 1312.
This criterion is mon complicated
than the low hazard criterion proposed
in April in two respects: (1) It requires
that the 80 percent confidence interval
for the mean be calculated for each
constituent and each waste type; and (2)
It requires consideration of data other
than Method 1312 results, including data
based on Method 1310 and 1311 that
wen provided in public comments or in
response to the mineral processing
waste survey or the "3007 letter" request
for waste characteristics information.
Nonetheless. EPA believes that these
modifications era appropriate because
they allow EPA to make use of data that
the Agency specifically requested that
industry provide, while avoiding biases
inherent in other alternatives for
data. Moreover, the
revised low hazard criterion is directly
responsive to commenten who
indicated that it was inappropriate. La-
inconsistent with the spirit of the Bevill
exclusion, for a screening criterion to
remove the exclusion from a waste that
"fails" the low hazard criterion at two
facilities while "passing" the criterion at
many mon other faculties.
•ThcSOi
alto
I (fridanca) In chapter 9 OB
IB SW-SW M the confidence totem! to bo uMd tat
evabadni whiter W*MM DM* or hit rtfulatoiy
toehold*. BMMM the low baud criterion to
beta* •MdMncmninstnt to nmarawutn
that an doattjr oot loir ouud from IB* BeviU
SO pa
ral with the leievent
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Federal Register / VoL S4. No. 16& / Friday. September 1. 1989 / Rules and Regulations 38631
2. The pH Test
A high volume mineral processing
waste is not low hazard and. therefore,
is not eligible for the temporary
exclusion from Subtitle C requirements
provided by the Bevill Amendment i£
• Fewer than five facilities generate
the waste and thepH (determinedas
required by 40 CFR 261.22) is less than
one (1) or greater than 13.5 at two or
more facilities that generate the waste,
or if five or more facilities generate the
waste and the pH is less than one (1) or
greater than 13.5 at 50 percent or more
of the facilities that generate the waste.
• pH values measured for waste
samples are used to determine facility-
level values for individual candidate
low hazard wastes as follows:
i. If a datum for only one sample from
a facility is available, this datum
determines the facility-level pH; and
11. If data on two samples from a
facility are available, the lower value
determines the facility-level pH; and
iii. If data on more than two samples
from a facility are available, the median
value defines the facility-level pH.
The changes to the pH test from the
April NPRM (i.e., the protocol for
considering additional data) were made
for the same reasons as discussed above
wijh respect to the toxicity and mobility
test
IV. Final Bevill Status of Selected
Mineral Processing Wastes
The present status of all candidate
Bevill mineral processing wastes that
were proposed either for retention
within or removal from the exclusion in
either the October or April proposals is
presented in Table 2.
TABLE 2.—CURRENT STATUS OF PREVIOUSLY PROPOSED CANDIDATE BEVIU MINERAL PROCESSING WASTES
Ptiirrttt
RaiyttiVm
canum
Chromite
CoalOas
Plomanul Phnoplmua
km
•XJ*««h-k_^-«l
•.—•••VJua^MMMa*
Phosphoric Add
Sod* Atfi
»**
•n.
Z«e
•
Waste strewn
n*J and Brawn Muds
BamnPa*!*
Ptoeetsmg Rafflnate ____________
Process Water
ROMl/LMCh Of* Residue
Cooang Tower Slowdown
n^W-rA*.
Add Ptam Scrubber Slowdown
BlMd Electrolyte
r>«<*-« ft*itt S^rtjt trem WWT _
StaoTBjKntr
Stag
Ruoiogypeum
Rta-t CutMR. Stag
Ammonium MHrM- nmr-.ii St^flHf,
Stag
Seler»an PI EMuentiromPrc caning APB
Phasphogypaum ~
c*_i pas -A OHP> APT n-./a-.ta-
9_Ml (HOT •"* 0»«1 "fa „
Status
ftaafrwi
Remover*
Removed
Removed
Removed
Conttton-ty Retained
Removed
Removed
CondttonaSy ReMnod
"••"""<
ReWnad
Removed
"— ^
CondMonely Retaned
ltamM-4
OendMoneSy nemned
Removed
" ''
rontfrttorsfly nsiamsrt
Removed
Reason tor BevBl Status
LowVdurae.
LowVokme.
Passes Mgn Volume.
LmVokjme.
LowVokme.
LowVosjme.
LowVokme.
Passes al CrUerta.
Paaees Hglt Vokme.
LowVokme.
LowVokme.
Passes si Criteria.
Passes Hgh Volume.
Low Volume.
LowVokme.
Passes High Vokme.
Paiiii el Criteria.
LowVokme.
Paaeas Hgh Vokme.
LowVokme.
Peases as Criteria.
LowVokme.
LowVohm.
PSMW KiQh VolunM.
Low Vokme.
tow Vokme.
For today's final rule. EPA has applied
the criteria described above to all waste
streams for which it has sufficient
information to make regulatory
decisions. The data supporting these
decisions were provided in the October
and April proposals. Based upon these
data and new sampling and analysis
results (Method 1312) which may be
found in the docket for today's rule, the
following five wastes an retained
within the Bevill exclusion:
1. Slag from primary copper smelting;
2. Slag from primary lead smelting:
3. Red and brown muds from primary
bauxite refining:
4. Phosphogypsum from phosphoric
add production: and
S. Slag from elemental phosphorus
production.
EPA has determined that each of
these materials meets the definition of a
waste from mineral processing -
operations, is generated at an annual
-------
36632 Federal Register / VoL 54. No. 169 / Friday. September 1. 1988 / Roles and Regulations
; rate exceeding the relevant final volume
criterion (45400 metric toni per year per
facility for nonliquid wattes) and pastes
the final low hazard criterion (Le.. does
not fail the toxidty and mobility or pH
tests at two or more facilities).
Twenty wastes are conditionally
retained within Bevill because they
appear, based upon currently available
data, to meet the final high volume
criterion: the data needed to implement
the low hazard criterion for these
wastes, however, la currently
unavailable. Moat of these wastes were
proposed for conditional exclusion in
the April proposal. Two wastes (process
wastewater from hydrofluoric acid
production, and APC dust/slurry from
carbon steel (open hearth and basic
oxygen furnace) production) have been
edded because of information received
in public comment on the April notice,
as interpreted by best professional
judgment
Eighteen specific wastes proposed
either for conditional retention or for
removal on the basis of hazard, in
addition to the list of small volume
wastes provided in the April NPRM (see
54 FR 15343-4) (or any other small
volume or speculative wastes, whether
or not nominated for conditional
exclusion), are hereby removed from the
Bevill exclusion. All are liquid wastes
that are generated in quantities well
under the final one million metric ton
per year per facility cut-off, based upon
available EPA data and data submitted
to the Agency in public comment
Finally, a small number of wastes that
EPA either proposed for retention in
April or were nominated in public
comment on the October or April
proposals have been redasaified as
benefidation wastes, and hence will be
addressed by the RCRA subtitle D
extraction and
currently d
are not limi
dation wastes that EPA is
developing. Th
T. oat
.
ted to. wastes from trona on
slurry from primary berylliam
production (both propoeed in April), and
sulfate leach ore residue from primary
copper production (nominated by a
commenter on the April NPRM).
V. Schedule f or Ftaal Resolution of
B^vfflSUnu for All Remaining
Candidate Bevill Mineral Processmg
Wastes
As discussed above, the Bevill status
of all potential high volume, low hazard
mineral processing wastes win be
proposed by EPA by September 15. 1980.
Following receipt and analysis of public
comments on these proposed exclusion
decisions, the Agency will articulate
final action on each candidate BevUl
waste in a final rule by January 13. 1900.
At mis time, the universe of Bevill-
. excluded mineral processing wastes will
be established, and no additional
wastes will be added.
Today's final rule includes a revised
lilt of conditionally retained wastes (see
Table 2, above). Modifications to this
list which was originally published in
the April NPRM. have been made to
reflect new information received in
public comment on the April notice, azd
professional Judgment in applying the
final Bevill mineral processing wastes
criteria to EPA's data on the specific
mineral production operations that
generate candidate Bevill wastes and on
waste generation rates. Some of the
wastes designated today as being
conditionally retained wastes may be
proposed for removal from the Bevill
exclusion in September if the survey
and/or waste sampling and analysis
data that the Agency is currently
collecting indicate that they do not pass
both the high volume and low hazard
criteria. In no event however, will
additional mineral processing wastes be
considered for retention within the
Bevill exclusion.
VL Regulatory Tff
Effective Dates of the Final Rule
As of the effective date of this final
rule, mineral processing wastes that
have been temporarily excluded' from
regulation under subtitle C of RCRA
since 1980, except the 25 "special
wastes" described above, may now be
subiect to subtitle C requirements
beginning in February 1990 (Le, six
months after this notice appears hi the
Federal Register) in those states that do
not have authorization to administer
their own hazardous wastes program in
bn of EPA. Generators, transporters.
and TSD facilities m authorized states
wffi bo subject to RCRA requirements
taBposedese result of this rule only
after the state revises its program to
adopt equivalent requirements and EPA
authorizes the revision. The
requirements imposed as a result of
ether the solid
waste(s) exhibit hazardous
characteristics (40 CFR 262.11):
obtaining an EPA Identification number
far managing hazardous wastes (40 CFR
26234); complying with recordkeeping
and reporting requirements (40 CFR
262.40—282.43): f nd obtaining >"*f<™
status and seeking a permit (or
modifying interim status, including
permit applications or modifying a
permit as appropriate) (40 CFR part
270). .
A. Section 3O10 Notification
Not later than November 30.1989. all
persons who generate, transport treat
store, or dispose of wastes removed
from temporary exclusion by thtf rule
and which are characteristically
hazardous under 40 CFR part 261.
subpart C, will be required to notify
either EPA or an authorized State of
these activities pursuant to section 3010
of RCRA. Notification instructions are
set forth in 45 FR 12746. February 28,
I960. Persons who previously have
notified EPA or an authorized State of
their activities pursuant to section 3010
of RCRA, Len persons who previously
have notified EPA or an authorized state
that they generate, transport, treat store
or dispose of hazardous waste and have
received an identification number (see
40 CFR 282.12.263.11 and265J) need not
re-notify.* Persons without EPA
identification numbers are prohibited
from generating, transporting, treating,
storing, or ^ftypoting of *»»*«»d
-------
Federal Register / VoL 54. No, 168 / Friday. September 1. 1088 / Roles mad Regulation* 36633
1991. If the facility fails to do so. interim
status will terminate on that date.
Completion of final permit application
will require individual facilities to
develop and compile information on
feeir on-site waste management
operations including, but not limited to
the following activities: ground-water
monitoring (if waste management on
land is involved); manifest systems, •
recordkeeping. and reporting: closure.
and possibly, post-closure requirements;
and financial responsibility
requirements. The permit applications
may also require development of
engineering plans to upgrade existing
facilities. In addition, many of these
facilities will in the future, be subject to
land disposal restrictions (LDR)
standards. EPA plans to promulgate
LDR standards for all characteristic
hazardous wastes by May 8.1990. Under
EPA regulations, these standards must
require treatment of the affected wastes
to a level or by a method that reflects
the use of Best Demonstrated Available
Technology (BOAT) before the wastes
can be disposed on the land. Thus, one
future implication of today's final rule
will be the ban on land disposal of these
wastes unless they are appropriately
treated prior to such disposal (See
discussions of the LDR as related to
these wastes for further details).
Ail existing hazardous waste
management facilities (as defined in 40
CFR 270.2) that treat store, or dispose of
hazardous wastes covered by today's
rule, and that are currently operating
pursuant to interim status under section
3005(e) of RCRA. must file with EPA an
amended part A permit application by
March 1.1990. in accordance with
i 270.72(a).
Under current regulations, a
hazardous waste management facility
that has received a permit pursuant to
section 3005 may not treat store, or
dispose of the wastes removed from
temporary exclusion by today's rule and
which an characteristically hazardous
under 40 CFR part 261. •ubpartC when
the rule become* effective OB Msirh 1.
1990. until a permit modification
allowing such activity h
d in
need not seek interim status. Any
facility treating, storing, or ifitpin-lng of
these wastes on or before the effective
date of authorization of the State to
regulate these wastes under RCRA may
qualify for interim status under
applicable State law. Note that in order
to be no less stringent than the Federal
program, the State "hi existence" date
for determining interim status eligibility
may not be after the effective date of
EPA's authorization of the State to
regulate these wastes. These facilities
must also provide the required 3010
notification as described above and
must also provide the State's equivalent
of a part A permit application as
required by authorized State law.
Finally. RCRA section 3005(e)(3) or
any authorized State analog will apply
to land disposal facilities qualifying for
State interim status.
VH. Effect on State Authorizations
This final rule is not effective in
authorized States, because its
requirements are not being imposed
pursuant to the Hazardous and Solid
Waste Amendments of 1984. Thus, this
removal from temporary BKcluf'wi is
applicable on March J, 1990. only in
those few States that do not have final
authorization to operate their own
hazardous waste programs in lieu of the
Federal program. In authorized States,
the reinterpretation of the regulation of
non-excluded processing wastes will not
be applicable until the Stele revises its
program to adopt equivalent
requirements under State law and
receives authorization for these new
requirements. (Of course, the
requirements wfll be applicable a* a
State law if me State law is effective
prior to authorization).
State* mat have final authorization
are required (40 CFR 271^1(«D to revise
their programs to adopt equivalent
i regulating non-Bevill mineral
g wastes mat exhibit
i characteristics as hazardous
by July 1.M01. if only regulatory
changes are necessary, or by lulyl.
1992. if statutory changes are necessary.
administer and enforce them as a matter
of law.
States mat submit an official
application for final authorization less
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36634 Fadswal Register / VoL S4. No. 160 / Friday. September 1. 1989 / Rules and Regulations
I
. not low hazard (baaed on currently
available data) at on and mineral
processing facilities. Therefore, the
impacts of today's rule fall within any
metal or non-metal commodity sectors
generating such waste streams from
mineral processing operations, but only
to the extent that these wastes exhibit
the characteristic tests for hazardous
wastes under subtitle C of RCRA.
EPA's impact assessment indicates
that today's rule is not a major rule (at
least according to criterion 1. above), in
that preliminary screening-level
estimates place the total annual costs of
compliance at about $53 million per
year. Because this is a screening level
analysis, however, the level and
distribution of impacts is uncertain. It
does appear that a few individual
mineral commodity sectors or
processing technologies could incur
annual costs in the range of one to seven
percent of their annual value of
shipments (sales). These sectors or
technologies, though few in number and
small in total value of shipments relative
to the 101 commodity sectors reviewed
in the study, could be said to incur
moderate to substantial impacts.
Overall, however, with respect to the
mineral industry as a whole or the
portion of the industry that performs
"mineral processing" in particular, the
Agency believes, on the basis of its
screening analysis, that today's rule
does not constitute a major rule within
the context of E.0. 12291.
A. General Approach to Compliance
Coat Estimation
The purpose of this analysis was to
assess the general level of costs and
resultant economic impacts arising from
the imposition of current subtitle C
requirements on smaller volume mineral
processing wastes and high volume
wastes that an not low hazard that
wen previously exempt under the BeviO
Amendment As noted above, a
complete and detailed examination of
the costs and potential impacts of
today's rule was not possible giv
Court-ordered schedule
level review of all
affected directly by today's rale.
ZPA's economic screening
methodology consisted of a number of
straightforward steps designed to (1)
identify and describe all mineral
processing sectors. (2) characterize and
determine the approximate quantities of
nlevant waste streams, and (3) estimate
the subtitle C compliance costs for all
sectors generating potentially hazardous
wastes. This section briefly describes
the approaches and information sources
used to develop these preliminary cost
estimates. The following two sections
describe the cost estimates and discuss
impacts on affected sectors. Additional
information concerning the techniques.
assumptions, and data sources used in
this analysis may be found in a
technical background document in the
docket for today's rule.*
1. Processing Sector Identification
The starting point for the analysis was
to identify mineral industry commodity
sectors that conduct mineral processing
operations within the definition of
today's rule. Obviously, facilities in
sectors that do not employ such
operations will not experience any
economic impacts. Working with the
U.S. Bureau of Mines, the Agency
identified a total of 101 differentiable
mineral commodity sectors for initial
review. Those specific sectors that
employ mineral processing operations
wen identified by intensive contact
with commodity and technical
specialists at the U.S. Bureau of Mines,
and by consulting outside mineral
industry experts particularly
knowledgeable of specific industry
production techniques and waste
management practices. Of the 101 initial
sectors, 43 wen identified as domestic
mineral commodity processing sectors
subject to further analysis and review of
waste stnam characteristics. Of the 58
'remaining sectors, 51 commodity sectors
wen screened out as not conducting
processing (Len their finished product
resulted directly from benefication
activities). The commodities produced
domestically using extraction and
benefidation operations exclusively an
listed in appendix A. An additional 7
mineral commodities an not currently
processed in the United States. These
include arsenic trioxide, cobalt gallium.
gnphite. Jntlhim, n<«Jryl ami thalHimi
It it highly noteworthy that the vast
majority of mineral commodities listed
in appendix A an non-metallic •*"* that
only nine of the 43 domestic sectors
mineral processing
operations produce non-metallic
commodities. Thus, the first conclusion
that EPA may draw from this screening
analysis is that the results from previous
cost and impact studies focusing on
iM»«in« on processing sectors an not
likely to dramatically undenstimata
total regulatory compliance costs
associated with this rale, as some
» have persistently claimed.
USEPA. "T«dmte»l Bictsiiiunii
2. Waste Characterization
The next step was to identify,
quantify, and characterize the specific
waste streams generated by the 43
identified processing sectors in order to
ascertain the extent to which these
facilities might be brought into the
subtitle C hazardous waste management
system. For a few of these sectors, the
Agency had past field surveys or
sampling data to draw upon.
supplemented to some degree by data
submitted by commenters in response to
previous NPRM's. For the majority of
commodity sectors, however, we relied
upon technical expertise provided by
process engineers experienced in
designing and constructing mineral
processing facilities and associated
waste management systems.
TABLE 3.—MINERAL PROCESSING SEC-
TORS NOT GENERATING POTENTIALLY
HAZARDOUS MINERAL PROCESSING
WASTES
tayHunt
CMlUflt
CMum/Rubktum
QvoflMn
GoelGM
GoU/S
Hydraauoric Add
tan
UghMtfgN Aggrag
IMNun (torn era)
MsgnMiun (horn era)
Ptwhertc Add (w« proo«»g)
Ztaorium/HeMm
of ttw B«*iU
WMtH-.AufMtlS.lSSS.
AiMaf boa Uw RrintarpnUUoa
far MOM! Precmnaf
For each sector, a brief but systematic
review was conducted for the principal
or typical processing operation(s).
including, for each waste, a waste
description, waste generation-to-product
ratio estimates, and an assessment of
the likelihood of the particular waste
exhibiting one or more hazardous waste
characteristics. Based upon available
information and best professional
judgment. 25 of the 43 mineral
processing commodity sectors evaluated
wen found not to generate any solid
wastes that an likely to fail
characteristic tests for hazard. Because
mete sectors, which an listed in Table
3. will not suffer economic impacts
because of today's final rule, they were
not considered further. A total of 18
-------
Federal Register / Vol. Si. Na 169 / Friday. September 1. 1989 / Rules and Regulations 3B635
commodity sectors with 118 facilities
were determined likely to generate
wastes that may fail hazardous waste
characteristic tests. EPA has made every
attempt to develop analytical elements
(e.g., number of facilities in a given
sector) that an directly comparable.
Nonetheless, because production data
(processes employed, product types.
shipment volumes) for soma
commodities are not avaiidble on a
plant-specific basis, the number of
facilities identified as generating
potentially hazardous wastes does not
in all cases correspond to the number of
facilities producing a given commodity.
because very different production
processes may be employed within the
same commodity sector. Therefore, the
number of facilities contributing to a
vector's aggregate value of shipments
and other sector-wide data may differ
from the number of facilities predicted
to experience compliance costs. In these
cases/EPA may have understated the
magnitude of economic impacts.
Potentially affected sectors, together
with the types and quantities of wastes
that might be regulated under subtitle C,
are presented in table 4.
TABLE 4.—HAZARDOUS WASTE GENERATION BY MINERAL PROCESSING SECTORS
Mineral aador
Hmidous waste type
Feciktie*
na2drdous
waste
Total
hazardous
•ute(UT/
year)
Aluminum.
Reduction
Anfin
Bismuth
Calcium MetaL
Deduction «
Electrolytic Refining.
RotiduKls
Lead dross refining...
Retorting ___..
Casthouse«jst_
Sludge..
Oyoile recovery residue.
Refining
Copper (ElectrawinninoJ.
Elemental Phosphorus __
Strippod anotyla solution solids.
Lead dust toactiata resUui
Motai chloride residues
Ouckime
Acd pUntUowdown
Sodum
plant sludge.
Bleed electrolyte—
Broom MiteMter
Electiic furnace..
Separaton «..«.
Smelting
SofwBicn
Furnace fcPw blowdown..
Dust..
Slags and resctum..
Magnesium —
Mercury
Uwtuy.
Sm»lting..
Smelting..
Etodroiybc Refining _
McOermittfadhty.
Byproduct of gold..
Roasting
Spent furnace dick ...
Smut
Roating..
PaitkXkila oorttol effkient..^
Sd scrubber effluent
Dust --,
Furnace residue
Gas cleaning effluent solids.
Phoephoric Add-
Rhenium raffinaU.
Du
Tantalum/Columfaium _
Digestion.
Tin
Titanium Metal-
On
PtKMphata contaminted was'awater.
Uigcstor sludge—
Smelting.
Ratfinats
Sponge.
APCscrubtx
Smelt*
Smamng/Reflnlna.
Add plcnt totowdOMriiw
Synthetic oypeum_
Wa
nt plant sludgs
18
13
1
1
1
a
10
6
S
8
4
I
2
1
1
1
9
9
2
2
2
17
•
I
3
2
3
1
6
2
13.301
80,000
1JO
333
2.S37
43
4.399.710
444£QO
S30£00
181,400
8
530
10.400
21,708
1,699
2,782
79
64
2.33S
88.440
7.394
6.470
8.707
7.413
68,000
36.484
1.451,000
305300
16,600
13.600
6*80,200
3. Compliance Cost Estimation Methods
For this analysis, EPA developed
likely waste management scenarios for
typical facilities in each sector.
addressing both current (baseline)
processing waste management practices
and waste management options under
current subtitle C requirements, lypical
practices (at appropriate scales of
application) for both baseline and
subtitle C compliance scenarios include
techniques such as wastewatar
treatment fan tanks, management/
disposal in waste piles or landfills, and
shipment for disposal at commercial off-
site landfills or treatment faculties.
Tliese management scenarios were then
implemented through the use of cost
engineering functions to compute the
incremental compliance costs of today's
rule.
The baseline management scenario
was developed using knowledge of
current practices. The subtitle C
compliance scenario was developed
based upon existing statutory and
regulatory requirements, and
assumptions regarding the types of
engineering practices that would be
employed to manage individual, newly
hazardous wastes under subtitle C.
Rather than applying uniform subtitle C
assumptions relating to on-site or off-
site disposal or assuming that one
particular waste disposal practice would
be adopted exclusively for all sectors,
the Agency designed a tailor-made
subtitle C compliance scenario for each
waste stream and sector. That is, «ach
waste in each sector was assigned to a
sequence of individual waste
management techniques appropriate to
the physical and chemical
characteristics of the material in'
-------
36636 Federal Register / VoL 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations
question, in such t way as to simulate a
miniitimq coct management practice
sequence for that waste type and
quantity. In cases where two or more
technical options existed for managing a
type. EPA selected the
least-cost option for managing a given
particular waste type. EPA sele
waste quantity.
For each newly hazardous waste
stream, an affected facility would be
faced with the choice of constructing
subtitle C management units or sending
the material off-site for disposal This
decision is influenced by economies of
scale; for most types of waste
management practices. EPA determined
that generators of small quantities
would pay for off-site disposal, but
generators of larger quantities would
construct on-site management units. The
waste quantity break points and the
data that underlie them are presented in
the technical background document for
this analysis.
For all potentially hazardous mineral
processing wastes in a given-sector. EPA
calculated baseline and projected
subtitle C management costs, at the
plant or facility level for a "model
plant" of average commodity processing
and waste generating capacity. Results
were then extrapolated to develop
commodity sector totals, and then
further aggregated to 4-digit Standard
Industrial Classification (SIC) industry*
wide totals and ILS. nationwide totals.
Annual compliance costs represent the
sum of annualized charges for capital
investments, operating and maintenance
expenses, and costs for on-site closure
and postclosure responsibilities, where
appropriate.
Because this is a screening-level
analysis of a very large number of
industrial sectors that was conducted
during a short period of time, the results
of the analysis must be considered
somewhat uncertain. While EPA has
attempted to obtain complete coverage
of ail domestic mineral processing
activity, the depth of information that
the Agency has been able to develop is
variable. EPA is confident that it has
identified the major processing
operations and the major solid wastes
associated with them for each
commodity sector. The possibility exists,
however, that additional waste streams
generated by. these processing
operations may exist and may require
management under subtitle C of RCRA.
To the extent that this is true, EPA has
underestimated the compliance costs of
today's rule.
It. is important to note, however, that
in many respects, EPA used
conservative assumptions in conducting
this analysis. For example, for many
sectors, the Agency used general
engineering or geologic information
about the nature and composition of
various' waste streams to infer whether
they would be hazardous, and, if in
doubt, adopted the conservative
assumption that they would be
hazardous. Furthermore, wastes
assumed to be or that tested hazardous
at one facility were assumed to be
hazardous at every facility in that sector
using the same or similar processes.
EPA also assumed that all affected
facilities would be encountering subtitle
C requirements for the first time and
would therefore not be able to take
advantage of scale economies through
comanagement of hazardous wastes
from other operations (e.g., in addition
to mineral processing they may conduct
regulated activities that are not covered
by Bevili such as chemical
manufacturing).
B, Aggregate and Sector Compliance
Coits
EPA's estimate of the total annual
cost impact of today's rule is $524
million annually. Predicted sector-wide
costs span three orders of magnitude
across the various affected commodity
sectors. Aggregate and sector-specific
cost estimates are presented in table 5.
TABLE 5. SUMMARY OF COSTS IN AFFECTED SECTORS WITH HAZARDOUS PROCESSINQ WASTES
SICMXi MOOT
Minmr
TWaT— iMft it>>Ttmft"0 ¥T>"nftt>
IW) — Tstc
3334 — AOT*r-"
TT19 Mtrnry fun tirf^y gottf ti| piuifuffgnt
3399— T1"
«nB_TMf«fe«^««0.M^l
3339-QwiMrtum
T8m ,ii ftcirt -"mf mwt —„,„,,, —
DMribubon by tour-OgK SCK
MClWCOMi
9.111 000
907,000
4?44 MM
28.170000
906.000
9JHSOOO
7.820.000
3,107.000
11.000
2.000
IMAM
1.000
lAftODB
810,000
729400
728400
18400
0
££843.000
3,111.000
887.000
4,711 000
28.47a.000
2.843.000
7420.000
3,107.000
3478400
Nwnbvof
5
17
g
11
10
1
"
'109
s
17
$
'18
4
8
. 18
32
COM [NT
SNKM
tac*y(S)
m,F°
68,647
888,875
2478481
30400
736,750
1424.000
184.188
11400
2400
118400
159.000
111
743400
84,125
725400
242487
18400
0
S134SS
W22W
58447
888475
1454475
736.750
1424.000
184.188
121.188
Cost/fflMrtc
ion of
MMnllS/
rnXMOor-
writ)
948
148
4442
2744
2.47
748
. 2843
041
0.81
344
2.15
230.85
1.14
70.04
4*421
204.42
38.81
an
741
8.86
148
4442
2704
748
2843
041
2248
CoM/vakM
_ e« ___
•MpfwntB
(%) (MClor-
«*»)
047
0.17
4.87
142
0.12
1.08
2.70
0.05
0.02
004
0.06
2.61
0.01
0.88
048
2.46
0.42
0.00
0.48
047
0.17
4.67
142
1.09
2.70
0.05
048
'**»•'
-------
Federal Register / VoL 54. No. 169 / Friday. September 1. 1989 / Rules and Regulations 38637
These data indicate that nearly half of
the total compliance costs will be borne
by the primary copper sector, and that
affected facilities (16 in total) in the
copper and zinc sectors will experience
annual compliance costs in excess of $1
million per facility. In total 36 of the 103
potentially affected facilities (35
percent) are predicted to experience
annual compliance costs of more than
$500,000 per facility.
On the other hand, six commodity
sectors will face compliance costs of
less than $50.000 per affected facility.
and almost one-half (50 of 103) of the
faculties generating potentially
hazardous wastes removed from the
Bevill exclusion by today's rule will
experience, on average, incremental
subtitle C costs of less than $100.000.
C. Economic Impacts
EPA's screening-level analysis of
economic impact compares the
magnitude of average compliance costs
for each sector to the estimated value of
shipments in those sectors. This ratio
provides a first approximation of the
extent to which the profitability of firms.
or, alternatively, commodity prices, may
be adversely affected by the imposition
of regulatory compliance costs. In this
screening analysts, the Agency grouped
commodity sectors into three groups
according to the value of compliance
costs to value of shipments: Those with
ratios below one percent those between
one and five percent, and those with
ratios greater than five percent Results
are displayed in Table 6.
TABLE 6. CATEGORIZATION OF MINERAL SECTORS. BY LEVEL OF COMPLIANCE COSTS
COM cmgwy nrnral
1. 8«tow 1.0 p«fc«it:
ti~n*rm*n
LtarrKY (hy-pnylvct o< 90M) -
C«lckjm mfffe)
Aluminum , ,, ,
"•Ftru"
Tanaium/Cnlumhiuiii -
TttMim •ponga mt>||
Tat* In engmy
LMd, nduriing hMium
Cnpp«r •icludmg tucuumiiaig
Uareuiy (muring gnM hy^mr.^™,)
i«e
F^mehmmum
10. 5.0 PMMM or above
TOW i" emgofy
SIC
3339
3330
3339
3339
3334
3339
3331
2874
3339
3339
2919
3339
3332
3331
3339
3339
3333
3313
3339
CtNtt/vakM
ot
SnlpfTWfiv
(%) (MOOT-
Mda)
0.00
0.01
002
O04
0.06
oos
0.12
air
O29
042
OS7
OSS
1.09
132
2.45
261
2.70
4.67
7.05
Number ol
•flvcttd
latiktM
3
9
1
1
16
2
10
17
6
3
5
2
77
4
11
1
1
5
8
1
1
1. Impacts on Commodity Sectors
Twelve mineral sectors comprising 78
percent of the potentially affected
facilities will incur compliance costs of
less *han one percent of thiMr
value of shipments. These- an the
antimony,
magnesium, copper from alectrowinning,
tantalum/Colombian, furnace process
phosphoric add. titanium sponge,
elemental phosphorus, and molybdic
oxide/rhenium sectors. Of these, only
the molybdic oxide/rhenium commodity
sector, with two potentially affected
facilities, approaches EPA's one percent
cut-off value for identifying moderate
economic impacts.
Seven mineral commodity sectors.
with a combined total of 31 facilities,
will have compliance costs between one
and seven percent of their value of
shipments. These include lead/bismuth,
copper from processes other than
electro winning, tin, primary mercury,
zinc, ferrochromium. and arsenic add.
Only the ferrochromium sector, with
eight facilities, and the arsenic add
sector, with one facility, have predicted
impacts in excess of three percent of
their respective value of shipments.
Sectors with ratios above one percent
were considered vulnerable to moderate
to significant Hf»«^»«^i«i impacts and were
evaluated in more detail in terms of
market and industry factors that might
affect the ultimate incidence and impact
of the costs.
To place the results into perspective,
EPA examined a number of factors such
as absolute price levels, major end users
of the mineral commodity, competition
from imports and substitutes, secondary
production, and flexibility hi other
production cost factors.
' L*ad/Bitmuth. (Average cost/sales
of i. i percent) Major uses of lead are in
-------
38638 Federal Register / VoL 54. No. 169 / Friday. September li 1969 / Rules and Regulations
automotive batteries, construction
materials, and a wide range of other
products. Secondary recovery of lead
from used automotive batteries provides
e substantial portion of supplies. While
marginal substitution is possible hi tfr**
of the markets, a price increase of L4
percent would not substantially alter the
basic use patterns of lead. Bismuth is
used hi a range of Pharmaceuticals and
chemicals, ss well as in manufacturing
machine parts. These applications offer
a somewhat stable market for bismuth.
However, most domestic consumption
comes from imports, limiting the
potential for domestic suppliers to raise
prices.
• Copper. (Average cost/sales of 13
percent) Copper is widely used in
building construction, electrical and
electronic products, industrial
machinery and equipment
transportation, and consumer products.
The ability of affected firms to raise
prices is limited by significant
competition from foreign suppliers
(some of which an government-
supported) and by the wide variety of
product substitutes that an available for
many copper end uses (e.g., optical fiber
hi telecommunications cable, plastics in
water pipe and plumbing fixtures).
• Tin. (Cost/sales of 2.4 percent) This
metal is widely used hi coatings,
particularly for cans, and alloys hi
electrical and construction applications.
In the coatings business, aluminum,
glass, paper, and plastic provide strong
competition. Other metals compete hi
alloy applications. Secondary recovery
of tin from scrap is another factor
adding to competition. A price increase
of 2.4 percent could have a marginal
impact on domestic primary tin sales.
but may have a significant impact on the
one romaipinj domestic primary tin
producer.
• Mercury. (Coat/sales of 24
percent) Mercury is used in a number of
electrical and chemical applications.
Competition la found hi the form of
different technologies for bettariee,
process alternatives for electrolytic
production of chlorine and caustic sods
WDCtaUtlsll CBDDllaW Ot leBDOfvBd
mercury, and competition froa domestie
producars extracting BiacGvjrooaa
precious metals sida-straanu
(electrowinning slimes). It is unclear
that ****• facility, which accounts for
about 14 percent of domestic production.
could recover its compliance costs by
increasing prices by 24 percent
• Zinc. (Avenge cost/sales of Z7
GsVuIUU SOD
osi v0 costings. In outings, zinc
I
magnesium. In coatings,
and other alloys offer su
cs, paints.
tutes. A
major competitive factor is die large
share of supply (greater than half)
coming bom imported slab nfrr- These
factors would limit the ability of
domestic sources of zinc to raise prices.
• Ferrochromium. (Avenge cost/
sales of 4.7 percent) Ferrochromium is
used in specialty and high-performance
alloys and steels. Its performance
characterise* render it valuable to
existing users and would mitigate the
effects of a price increase of 4.7 percent
Nonetheless, imported supplies of
ferrochromium may limit the ability of
domestic sources to raise prices.
• Arsenic Acid. (Cost/sales of 7JO
percent) The plant producing arsenic
add from residual lead dust is unlikely
to be able to recover compliance costs
by raising prices. Arsenic-based wood
pnservatives and pesticides an
valuable to end-users. However, arsenic
add produced from imported anenious
trioxide and imported anenic add
account for 99 percent of domestic
demand. Therefore, the market price for
tins product an unlikely to change as a
result of production cost increases at
this single, small facility.
2. Effects on Consumer Prices
Because most If not all. of the
immediate markets for the effected
mineral commodities an as inputs to
other manufacturing or industrial
activities, and because, as discussed in.
the previous section, the ability of firms
tat most affected secton to pass through
compliance costs appears to be limited.
EPA believes mat in general, this rale
will not cnate any appredable changes
in consumer prices.
3. Foteiffn Trade Imnacta
Trade is substantial in many of the
mineral commodities addr
id in this
•tody. Basic import and export data for
the secton that generate potentially
hazardous wastes an presented in
Tables 7 and 8, respectively. Export
markets an generally small for the •
commodities that EPA HM hfontifltd aa
having modente to significant
cOSt tmpme** (J^. cOSt/Vahw
HTrrtt of POT p****-*"* or sum).
and these markets may be adversely
affected by the predicted economic
lofc
TAME 7. fcmjms OP MINERALS PRO-
DUCED M SECTORS GENERATING HAZ-
ARDOUS WASTES. 1987
Quana»
OWTT
1.24U10
•.701
1340
13S2.1S2
18,171
TAME 7. IMPORTS OF MINERALS PRO-
DUCED M SECTORS GENERATING HAZ-
ARDOUS WASTES. 1987—Continued
Cakmbii
end
Mercury—nwttl
MotytxMr
igM).
•crap.
hdudtog
PhMphc
pgiorgranuMwl.
Ttonum urmrougrH
•pongtmtu
Zhe-btoeta. pip. and
(MT)
1.MO
352
2.078
468.181
302,948
IS
10.827
10.884
898
3,0*4
3
NA
4X100
41.1SO
708*5
VHuy
(SOW)
8,788
1.818
6,612
734,725
155.189
7.887
7.238
NA
3.960
13.407
2,072
. NA
6,608
5,186
298.088
•321
581.221
_
comepond to t» mnml Mem Mt tovoiv* proc-
SOWCM: UA BWMU ol MbM. Mbmto YMrtoook
18S7 and Mm** CommodNM Suv«y 1969.
TABU 8.—EXPORTS OF MINERALS PRO-
DUCED M SECTORS GENERATING HAZ-
ARDOUS WASTES. 1987
Mnki
2S1.103
Tea
167
38
114.721
4435
10.116
44,151
1.2B
n
1.3W
VlfeM
(SOOO)
415.003
2317
NA
•41
427343
5.730
11340
130372
11.146
P)
•6312
30J9S
34.7*4
746
2,114
-------
Federal Register / VoL 54. No. 189 / Friday. September 1. 1989 / Rules and Regulations 36639
tor otto on
to SM Mfeml
not
ttM kwofc* preo-
: OS. Burwu of MkiMi Mbwrad YMKtaoft
1967 «id Mkwtf ConvrnxStM Surwy 1«M-
Because imports of many of the
mineral commodities in question an
significant the ability of domestic
producers to raise prices to recover
compliance costs, is, as discussed
above, quite limited. A direct
comparison of processed domestic
minerals with imports is difficult
because of the presence of imports in
the form of both base metals and other
assorted compounds and manufactured
products. Nonetheless, using the import
figures in table 8 as one measure of the
scale of imports, the international trade
situation facing the firms in the
commodity sectors that will experience
cost impacts above the one percent level
can be summarized as follows:
• Imports account for a relatively low
percentage of domestic demand for lead
and for moderate shares of copper and
mercury:
• Imports exceed processed domestic
production in the tin. zinc, and
ferrochromium sectors: and
• Trade data for arsenic add are
difficult to quantify: imports of
arsenious trioxide (an intermediate in
the production of arsenic add) are
substantial
In view of the above, it is unlikely that
the overall trade balance in the
domestic minerals Industry will be
significantly affected by today's rule,
though in some sectors regulatory cost
impacts may increase already positive
net imports.
DC. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L. 99-354). which amends
the Administrative Procedures Act
requires Federal regulat
consider "small entities" throughout the
regulatory process. Tin RFA requires, in
section 603. an initial scrsenmsj analysis
to be perforated to determine whetker a
substantial number of small entities will
be significantly affected by a regulation.
If so. regulatory altamativw that
0UIBIDAC0 OP OUuflBwB IDA IDDBttCtt I
beconaidand.
Section 808 of the Act allows an
Agency head to waive or delay
completion of the screening analysis in
response to an emergency that makes
with the requirements of
small business impacts, but that based
on previous analyses for metallic metals
processing and general knowledge of
waste characteristics in non-metals .
processing, it was probe). '• that there '
would not be significant small business
impacts Gram *h*a rulematdng (54 FR
15347).
The Agency has now completed a
comprehensive screening analysis to
determine the potential for significant
small business impacts, as described
below. Based upon this subsequent
analysis, the Agency has concluded that
today's final rule wul not have a
significant adverse impact on a
substantial number of small
processing companies. With very few
exceptions, as indicated below, the
commodity sectors with moderate to
substantial predicted cost/economic
impacts contain either few or no small
business enterprises.
A. Definition of Affected Small Entities
Today's rule has its primary direct
effects on on and mineral processing
facilities that generate wastes that could
fail any of the Agency's tests for
hazardous waste characteristics. To the
best of the Agency's ability within the
time constraints of this Court-ordered
final rule, the mineral commodity
sectors most likely to face subtitle C
compliance costs have been identified hi
section vm of this preamble, based on
EPA's screening study of cost and
economic impacts. Eighteen commodity
sectors falling within eight 4-digit SIC
codes represent the population of
affected business firms (see table 6,
above).
For purposes of defining "small
business" firms. EPA has relied on the
standard definitions of tho Small
Business Administration (SBA) aa
published at 13 CFRch.1. part 121. For
the industries in question, SBA employs
• basic TffiplpynnHit-^Mi**"^ definition,
with the small business cut-oft value for
(OtcU ^OeDDUIY 8^QplOyXDAO* VsUUBOS
between 900 and 1.000 employees.
depending upon the specific industry in
question.
B. Approach and Data Source*
Based upon the results of the
economic impact screening analysis
described above in section VOL EPA
mttscteci •
RFA
business ownership screening analysis
section 803 on a timely basis
impracticable. In previous NPRMs to •
this rule, the Agency indicated that there
was insuffident time within the Court-
ordered deadline to complete a
comprehensive impact screening for
affected small businesses were ^
identified individually. Comparative
date were then available to evaluate (a)
how many small businesses operate in
the minerfi sectors predicted by the
economic impact screening analysis to
be significantly affected and (b) what
fraction of the overall small business
population in the minerals processing-
related Industry categories (SIC*) might
be affected by subtitle C requirements
pursuant to this rule.
Working largely with U.S. Bureau of
Mines mineral commodity specialists
and file data, each of the facilities
engaged in affected mineral sectors was
identified by name and location. If the
facility was owned by a separate parent
company, that company was identified
using either the Directory of Corporate
Affiliations " or the Trinet Date Base.11
Thus, for each sector EPA determined
the total number of businesses owning
facilities. The Agency men determined
the number of employees in each
business using one of four sources?
Standard and Poor's Corporate
Records,1* Ward's Business Directory.1'
the Trinet Date Base, or phone contacts.
Employment figures for public
companies were determined using
Standard and Poor's Corporate Records.
Ward's Business Directory provided
employee figures for many of the larger '
private businesses and the Trinet Date
Base identified employee numbers for
many of the smaller private businesses.
For the small number of businesses that
did not appear in any of these sources.
the Agency contacted the business by
phone to obtain employee information.
For all but three of the facilities in the 18
affected mineral commodity sectors, the
Agency was able to determine the size
of the owner company.
EPA obtained the appropriate SIC
classification for each affected sector
from the Department of Commerce. The
Agency then compared the employee
estimates to die Small Business
Administration's (SBA's) definition of a
small business tor the sector's SIC code
•t«i determined the number of small and
large businesses in that sector. SBA
defines small businesses as less than
1400 employees or less than 750
•• NMtaMl Itastotar PobtteUn* Company.
-Dietary of Cwponto AnUtottoM' (WUm«tl«. IL:
for those mineral commodity sectors
estimated to incur moderate to
significant economic impacts associated
with today's rule. While it was not
possible in the cost analysis to develop
compliance cost estimates specific to
different sizes of facilities within each
affected mineral sector, all potentially
•• SUmUnl tad Paw's CanxmUoa -Sundwd
ndfpVtCarpontknlUcord*-(New York. N«w
,-W«nf«
mr.v.
LUSPrhnM
CoMputiM. LarfMt Pitau Ph» Sttecuri Public
'
-------
36640 . Federal Register / VoL 54. No. 168 / Friday. September "L I960 / Rulea and Regulations
employees for most of the SIC codes.14
Results of this analysis an displayed in
appendix B to today's preamble.
The Agency also classified the
number of affected small businesses by
SIC code, then compared this to the total
number of small businesses in that SIC
code, based on SBA estimates of the
total number of small businesses in each
SIC code. EPA also computed the
percentage of the total number of firms
within a given 4-digit SIC code
accounted for by affected small
businesses and affected small and
undefined businesses. Appendix C to
today's preamble displays the results of
this analysis.
C. Results
From the cost analysis, facilities and
companies in 18 mineral commodity
sectors within eight 4ndigit SIC
industries would be subjected to
regulatory compliance costs by today's
rule. The sectors were previously
grouped by level of impact in Table 6. Of
the IB sectors evaluated for economic
impact seven sectors-lead/bismuth.
copper from operations other than
electrowinning, tin, primary mercury,
zinc, ferrochromium. and arsenic acid-
have potential average gnrnpHam^ coats
unknown size), therefore represent
affected sectors of concern with respect
to small business impacts, with a
combined total of four or five small
business companies. Supporting data for
these finding* u>e presented in appendix
C to this preamble.
Taken together, the number of small
businesses in these two or three sectors
represents a very small fraction of the
total number of small businesses in the
relevant mineral processing industries.
Based upon this screening analysis.
the Agency concludes that there will not
be a significant advene impact on a
substantial number of small mineral
processing companies as a result of this
List of Subjects in 40 CFK Part 281
Hazardous waste. Waste treatment
and disposal Recycling, Reporting and
recordkeeping requirements.
Data* August 18. 196*.
F.HanryHabkat.
Acting Administrator.
Appendix A— Mineral Commodltiea
Produced by Benefidation Operations
greater than one percent of value of
shipments (sales) and could therefore be
considered to face moderate to
substantial impacts for affected firms.
Lead/bismuth, tin. mercury (in terms of
the one affected facility), and arsenic
acid have no small business operations.
Only zinc (with one small company).
ferrochromium (with three small firms).
and possibly copper (with one firm of
Off.
KtamMn
(A)
(A)
(A)
(A.B)
(A)
4A.B)
-------
Federal Register / VoL 54. No. 169 / Friday. September 1, 1080 / Rules and Regulation* 38641
APPENDIX B—COMPANIES m MINERAL PROCESSING SECTORS AFFECTED BY TODAY'S RULE BY SBA SIZE CATEGORY—Confrwed "*
SBAdrtMfon
of****!
(nNpomum
Numb* of
Nunfcvof
•mil or
3338—Tin
3330—Ttarium i
750
790
10
41
24
•7
18
APPENDIX O—AFFECTED SMALL BUSINESS MINERAL PROCESSORS AS A PERCENT OF SMALL BUSINESSES m EACH INDUSTRY
CATEGORY
SIC codo md Industry cy dMcripfion
(maamum
nwiQ
TOM
•n
inStC
2819
2874—Phi
nicafc. N.E.C-
3313 Dactti
iducti
3331—Piliimy eoppar—.
3332-Prtmwy iMd
llll nilm.i) *~.
333t Pilnmy aluminum
3338^"Prtnwfy nonfanoua mata)!. NEC«
ToM-Abow SIC oMMOrtN
1.000
900
rso
1.000
1.000
790
1.000
780
01
34
2
17
13
43
184
0
1
3
0
0
1
1
10
oo
1.1
84
04
04
7.7
24
O.C
1.'
8.(
50,
0..
7..
2.:
1.289
18
14
' TT* Smai DuatoaM AannaliaHun (SBA) prevuad «w aMmatat of VM total numoar el amal Due
bamam buatianai that amptoy mora ihan 500 and laai than 1.000 panona. la, «l§ net ponfcli to 01
••^•M QQA jteiM te M^ 4M^A j^ d^ j^rt^«MM^^ te ^4^4* Yttl ^«I^^.«^M^M b M«A ^.a.^fl feta^^B^AA .M^_jrfi .^^
UBvV «on yw& W1 w GMBV OT 3lw LMI^UUnVB VI uracn 19U VnfHOWMH • W VnlB DUWaV GW^If W
1400 amptoyaaa. T?>a actual numbaf of amaN buananaa for thoaa SfC catagortaa may Iharalofv ba taia.
« BRA MMd 9w
i SIC ealiBory. SBA doaa not dMlnguitf
• r lata tian 750 paooir
For the raajona set out in the
preamble, part 261 of title 40 of the Code
of Federal Regulations is amended as
follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES
1. The authority
continues to read as follows:
Authority: (42 UAC. B90B. 8BU(a).
•ad 8022).
2. Section 28U is amended by
revising parafraphs (aK2) (I) and OH) to
read as follows:
W*
(2) * * •
(I) It exhibits anr of me
characteristics of hazardous waste
identified in subpartC except that any
mixture of a waste from the extraction,
benefidatton, and processing of ores
•ml minerals excluded ""^"*
128l.4(b)(7] and any other solid waste
exhibiting a characteristic of hazardous
waste under subpart C of mis part only
if it exhibits a characteristic that would
not have been exhibited by the excluded
waste alone if such mixture had not
occurred or if it continues to exhibit any
of the characteristics exhibited by the
non-excluded wastes prior to mixture.
Further, for the purposes of applying the
Extraction Procedure Toxidty
characteristic to such mixtures, the
mixture is also a hazardous waste if it
exceeds too ^Qexunu^B couceuutation KDT
tt lifted in table I to
i 2BL24 mat would not have been
exceeded by the excluded waste alone if
the mixture had not occurred or if it
continues to exceed the maximum
exceeded by the nonexempt waste prior
to mixture.
• • • • •
(ill) It la a mixture of a solid waste
and a hazardous waste that is listed in
subpart D of mis part solely because it
exhibits one or more of the
characteristics of hazardous waste
Identified in subpart C> unless the
resultant mixture no longer exhibits any
characteristic of hazardous waste
identified in subpart C of ***** pan or
unless the solid waste is excluded from
regulation under 1 26l4b){7) and the
resultant mixture no longer exhibits any
characteristic of hazardous waste
identified in snbpart C of this part for
which the hazardous waste listed in
subpart D of this part wes listed.
• • • • •
2. Section 2BL4 is amended by
revising paragraph (b)(7) to read as
follows:
(b) * * *
(7) Solid waste from the extraction.
benefidation. and processing of ores
mnA ntnmrm\» (including coal), including
phosphate rock and overburden from thi
mining of uranium ore. For purposes of
tins paragraph, benefidation of ores am
minerals is restricted to the following
activities! crushing, grinding, washing.
tftlAa«%k«M4%M —•».•!_ ill•• || .»•. filtvAtlm*
sorting. ******iji drying, sintering.
neiletizittflj Driouettinaj catcuung to
remove water and/or carbon dioxide.
roasting in preparation for leeching
(except where the roasting/leaching
sequence produces a final or
intermediate product that does not
undergo further benefidation or
processing}, gravity concentration.
magnetic separation, electrostatic
separation, floatation, ion exchange
solvent extraction, electrowinning.
-------
36642 Federal Register / VoL 54. Na 169 / Friday. September 1. 1989 / Rules and Regulations
precipitation, amalgamation, and heap.
dump, vai. tank, and in titu leaching. For
the purposes of this paragraph, solid
waste from the processing of oras and
minerals includes only:
(i) Hie following solid wastes from the
processing of ores and minerals that are
retained within this exclusion:
(A) Slag from primary copper
smelting;
(B) Slag from primary lead smelting;
(C) Red and brown muds from bauxite
refining;
(D) Phosphogypsum from phosphoric
acid production;
(E) Slag from elemental phosphorus
production; and
(ii) The following solid wastes from
the processing of ores and minerals that
are conditionally retained within this
exclusion, pending collection and
evaluation of additional data:
(A) Roast/leech ore residue from
primary chromite production;
(B) Gasifier ash from coal gasification;
(C) Process wastewater from coal
gasification:
(D) Slag tailings from primary copper
smelting;
(E) Calcium sulfate wastewater
treatment plant sludge from primary
copper smelting/refining;
IF) Furnace off-gas solids from
elemental phosphorus production:
(G)Fluoronypaum from hydrofluoric
acid production;
(H) Process wastewater from
hydrofluoric acid production:
(I) Air pollution control dust/sludge
from iron blast furnaces;
(J) Iron blast furnace slag;
(K) Process wastewater from primary
lead production;
(L) Air pollution control dust/sludge
from lightweight aggregate production;
(M) Process wastewater from primary.
magnesium processing by the anhydrous*
process;
(N) Process wastewater from
phosphoric ad4 production;
(O) Basic oxygen furnace and open
hearth furnace slag from carbon steel -
production;
(P) Basic oxygen furnace and open
hearth furnace air pollution control
dust/sludge from carbon steel
production;
(QJ Sulfate processing waste acids
from titanium dioxide production;
(R) Sulfate processing waste solids
from titanium dioxide production:
(S) Chloride processing waste solids
from titanium tetrachloride production;
and
(T) Slag from primary zinc smelting.
• ••••*
[FR Doc. 80-20111 FUtd 8-30-49; 8:45 am]
-------
RCRA REVISION CHECKLIST 66
Land Disposal Restrictions; Correction to
the First Third Scheduled Wastes
54 FR 36967 /
September 6, 1989
as amended on June 13, 1990, at 55 FR 23935
(HSWA Cluster II)
Note: This is a correction and clarification of 53 FR 31138 (August 17, 1988) and 54 FR 18836
(May 2, 1989) addressed by Revision Checklists 50 and 62 which cover the First Third Scheduled
Wastes. As such, States which are not yet authorized for these checklists are encouraged to
apply for Revision Checklist 66 at the same time the provisions in Revision Checklists 50 and 62
are applied for. States already authorized for Revision Checklists 50 and 62 requirements are
encouraged to adopt the corrections addressed by Checklist 66 as quickly as possible.
An error in the September 6, 1989 rule (54 FR 36967) makes it appear that the revisions to
268.8(a) include the removal of 268.8(a)(4). This was not the Agency's intent and 268.8(a)(4)
remains in the Federal code as introduced by Revision Checklist 50.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS
WASTE MANAGEMENT FACILITIES
SUBPART C - RECYCLABLE MATERIALS USED IN A MANNER
CONSTITUTING DISPOSAL
APPLICABILITY
delete the word
"constituent" from the
parenthetical phrase
following "recyclable
material"; add sentence
exempting from
regulation commercial
fertilizers produced
for the general
public's use that
contain recyclable
materials
266.20(b)
September 6, 1989 - Page 1 of 6
-------
RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
the Rrst Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION /
alAlb ANALOG is:
"EQOI7-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 268 - LAND DISPOSAL RESTRICTIONS
SUBPART A - GENERAL
PURPOSE. SCOPE AND APPLICABILITY
substitute "restricted"
for "prohibited"
remove paraaraph
remove paraaraph
wastes which are not
subject to any
provisions of
Part 268
wastes generated by
generators of less than
100 kg of hazardous
waste and less than
1 kg of acute
hazardous waste
waste pesticides
pursuant to 262.70
wastes identified or
listed as hazardous
after November 8,
1984 for which EPA
has not promulgated
land disposal
prohibitions or
treatment standards
268. 1(c)
268.1(cU3)
268.1(0(4)
268.1 (e)
268.1 (e)(1)
268.1(eH2)
268.1(e) (3)
WASTE ANALYSIS
add language to
indicate that
exemption from
prohibition is not
limited to extensions
under 268.5,
exemptions under
268.6 or a nationwide
capacity variance
under Suboart C
268.7
-------
RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
the First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
after "268.33(0" add
parenthetical state-
ment Including wastes
disposed of in units
other than landfills
or surface
impoundments
after "266.20(b)"
insert "regarding
treatment standards
and prohibition levels,";
Insert "i.e.," preceding
"the recvcter"
disposal of recyclable
material subject to
266.20(b)
FEDERAL RCRA CITATION
268.7(aM4)
268.7(b)(8)
268.7(c)(4)
ANALOGOUS
STATE CITATION '
SI A ft ANALOG is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
LANDFILL AND SURFACE IMPOUNDMENT DISPOSAL RESTRICTIONS
specific requirements
for generator if no
practically available
treatment for waste:
prior to initial ship-
ment, demonstration/
certification to
Regional Administrator
demonstration and
certification with
initial shipment;
certification with
subsequent shipments;
recordkeeping and
record retention
requirements for
generator if there
are practically
available treatments
for waste:
prior to initial
shipment, demonstra-
tion/certification to
Regional Administrator
268.8(a)(2)
268.8(a)(2)(i)
268.8(a)(2)fll)
268.8(aU3)
268.8(a)(3HD
September 6, 1989 - Page 3 of 6
-------
RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
the First Third Scheduled Wastes (corrt'd)
FEDERAL REQUIREMENT
demonstration and
certification with
initial shipment;
certification with
subsequent shipments;
recordkeeping and
retention
add language requiring
submission of new
demonstration and
certification to the
receiving facility
insert ", for each initial
shipment of waste,"
between "must" and
"send"; add "(i) or
268.8(a)(3)(i)" after
"268.8(a)(2)"; add
sentence to end
requiring submission
of certification with
subsequent shipments
change "263.33(f)" to
"268.33(0"
FEDERAL RCRA CITATION
268.8(a)(3)(ii)
268.8(b)(1)
268.8(c)(2)
268.8(d)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
SUBPART C - PROHIBITIONS ON LAND DISPOSAL
WASTE SPECIFIC PROHIBITIONS-CALIFORNIA LIST WASTES
replace "such
disposal" with "such
unit"
268.32m
September 6, 1989 - Page 4 of 6
-------
RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
the First Third Scheduled Wastes (corrt'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION /
STAVt AHALoQ is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
WASTE SPECIFIC PROHIBITIONS-FIRST THIRD WASTES
change "K004
(nonwastewater)" to
"K004 wastes specified
In 268.43(a)"; change
"K008 (nonwaste-
waters)" to "K008
wastes specified in
268.43(a)"; remove
"K015 wastewaters";
change "K021
(nonwastewater)" to
"K021 wastes specified
in 268.43(a)"; add
"nonwastewaters
specified in 268.43(a)"
following "K025";
remove "K083
(nonwastewaters)"; add
"nonwastewaters
specified in 268.43(a)"
following "K100"; add
"(wastewater), K101
(nonwastewater, low
arsenic subcategory -
less than 1% total
arsenic)." following
"K10T; add
"(wastewater), K102
(nonwastewater, low
arsenic subcategory -
less than 1% total
arsenic)." following
-K102"
replace "are not
applicable" with
"have not been
promulgated";
replace "unless the
wastes are the subject
of a valid demonstra-
tion and certification
pursuant" with "unless
a demonstration and
certification have been
submitted"
268.33(a)
268.33m
September 6, 1989 - Page 5 of 6
-------
RCRA REVISION CHECKLIST 66: Land Disposal Restrictions; Correction to
the First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
replace "extract or the
waste" with "extract
or the waste, or the
generator may use
knowledge of the
waste"
FEDERAL RCRA CITATION
268.33(a)
ANALOGOUS
STATE CITATION /
STATE ANALOG IS:
EQUIV-
ALENT
MORE
/STRINGENT
BROADER
IN SCOPE
SUBPART E - PROHIBITIONS ON STORAGE
PROHIBITIONS ON STORAGE OF RESTRICTED WASTES
reword paragraph
regarding exemptions
from land disposal
prohibitions
268.50(d)
1
See technical correction at 55 FR 23935, June 13, 1990.
September 6, 1989 - Page 6 of 6
-------
RCRA REVISION CHECKLIST 67
Testing and Monitoring Activities
54 FR 40260-40269 /
September 29, 1989
(Non-HSWA Cluster VI)
Technical corrections were made to this rule at 55 FR 8948 (March 9, 1990). These corrections
are addressed by Revision Checklist 73 which will be made available through SPA 9. States are
encouraged to adopt the technical corrections at the same time that the Revision Checklist 67
provisions are adopted.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
81
ALENT 1 SI
TCT
mi
ORE
NGENT
BROADER
IN SCOPE
PART 260 - HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
SUBPART B - DEFINITIONS
change last clause
of sentence regarding
the Second Edition into
a sentence combining
it with the price
information
260.11(a)
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
APPENDIX III - CHEMICAL ANALYSIS TEST METHODS
revise Table 2 as
shown, replacing First
Edition information
with Third Edition
information
Aooendlx III
TABLE 2—ANALYSIS METHODS FOR INORGANIC CHEMICALS AND MISCELLANEOUS GROUPS OF ANALYTES CONTAINED IN SW-8461
Compound
Third Edition MMnod(s)
Second Edition
Mctnoais)
AluvRinuvn «
Antimony.
6010.
6010..
AIMON
BwyHuifn.
Boron
I. 7090. 7091.
Chronnum
Chromium. Hexav«l«nt_
6010_
6010...
6010.7210. 7211.
6010. 7380. 7381.
7040. 7041
7060.7061
7080. 7061
7130.7131
7190. 7191
7195. 7196. 7197
7420. 7421
6010
September 29, 1989 - Page 1 of 5
-------
RCRA REVISION CHECKLIST 67: Testing and
Monitoring Activities (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
/i>TA'it ANALOG IS:
EQUIV- 1, MORE
ALENT 1 STRINGENT
BROADER
IN SCOPE
TABLE 2—ANALYSIS METHODS FOR INORGANIC CHEMICALS AND MISCELLANEOUS GROUPS OF ANALYTES CONTAINED IN SW-846*
Conipound
UATMIfy
KJw-b*l
S«l«n^ifn
Rilif^n
GZumr „
SfHftim --
Thfillivm,, -,.„..,. ,„- -,„„„,-
ui»"»rtwim ,.. .,.,„.,„,„.,. .
7i~- ,.„....,,„....
Cyanides „... .. « ....
Tptfl Organic Hl^M , Jt ,,..... ,„„„ , , „ _.
SiilR/to*
fiuHf Iff .._ ,.,. „. ,.,....,, .,„,„,
Total Organic Carbon .......... _
PhenoliCS . ,
Qil and G'VBM ...i..
Tntal Crfllnnn
Nilml. „,.„..,„.„,- ,
CnkKid** .».„.„. , .... ........ , ,,,„,
Gross Alpha and Gross Beta ..... _ .._ .......
Ridium-228 _ _
Third Edition M«thod(s)
flOlQ 74, 70it , , ,
6010, 7950, 7951 .._
902?
9035 9036, 9039 ^ „,.
to^;».>n |jff«t . '. ,.„.„.—,-„„-„„-,„„•„ . . . ..i ,....
Quality Control DocuinaniaDon , .r-
R^fcfrfnC^ lnll , , T.,.T1 j , ,, , — _,
Implflin^fiftng the Gmdanca -. ..."
Metallic Analym ... , . ..• n
Add Diocsmn of Watan for Total Recoverable or Dissolved Metals tor AnaiysM by Flame
AASorlCP.
TrwdE
Section No.
1 0
.1
2
.3
.4
5
.6
20
2 1
22
2.3
2.4
25
26
3.0
3 1
32
3.2
.rtihon
Method No.
3009
Second
Section No.
100
10.1
Edfton
•MMhod Mo
.
September 29, 1989 • Page 2 of 5
-------
RCRA REVISION CHECKLIST 67: Testing and
Monitoring Activities (cont'd)
STATE ANALOanST
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV- I ' MORE BROADER
ALENT I- STRINGENT I IN SCOPE
TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED IN SW-846 •—Continued
T*«
Add Digestion of Aqmou* Samples and Extracts tor Total Metals tor Analysis by Flam*
AAS Of ICP.
Acid Digestion of Aqueous Samples and Extracts for Total Metals lor Analysis by Furnace
AAS.
D"»soiu«on P-'oemtufT fw Oita Grsn-ws Of Waxes
Acid Digestion ot Sediments. Sludges and Soils... _
Methods (or the Determination ol Metals
Inductively Coupled Plasma Atomic Emissions Spectrosc
Atomic Absorption Methods. ... _
Aluminum, Fl«m« AAS ,,...,,,. ,, _...
Antimony, Flfim. AAS,,,,,.. „„„„...„.,,, ,„
Antimony, Furnace AAS _
Arsenic, Furnaea AAS —,_„.,„ ,„ ,„,„„ ,„ ,„.,„.,..„, „, ,
Arsonc, Gaanous Hydride AAS. _ ._
Banum, Flams AAS..... .,.„..,,.
Banum, Furnace AAS ._ ._
Beryllium, Flam. AAS , ,„ , „ , ^
Beryllium, Fumm AAS.... , ul.
Cadmium, Flam* AAS ..„„.,..„„ L
Cadmium, Fum^c* AAS _ , „„ L ^L.,
Calcium, Flam* AAS MIIIIII _
Chrncnum, Rnma AAS _ , ji
Chromium, Fumaca AAS ,„.. _
Chromium. Hexavalent, Coprtcipilation-. . .
Chromium, Haiavalant, Colonmatnc ,..,.,„ ,
Chromium, Hexavalent Chedtion/Exlraction
Chromium. Hexavatont. Diflerentud Pulse Polarography _
Cobalt, Flama AAS
Cobalt, Fuma-ii AAS, _ _
Copper, Flarim AAS
Coppar, Ftimaea AAS
Iron Rama AAS ,. ., , ......
•oov . „
Iron, Fumae* AAS... , ,,,
Lend. FlariM AAS ._
Lead. Furnace AAS
Magrnitum, Plant* AAS ,.„,„, ,.
Mang-iima, Pl«na AAS , ,.,„„.,„., , ,
Manganese, Furnace AAS .......
Mercury HI Liquid Waste, Manual Cold Vapor Technique
Mercury m SoM or Semnoiid Waste. Manual Cold Vapo
Molybdanum, Plarn* AAS „
Molybdwium, Pum«c* AAS
Niekal, Pl.m. AA?
Osmium, Plain* A>S _
Pola-wium, Fl»ni» AAS ,„ ,
Salaniucn, Funuea AAS
ScOnum, Gnumtn MyrifM. AAS „ , „ ,
S»w«r Fl.m. AAR nmi, ,. ,
SilMir, Pi>rur. AAS
JV>rtiiim, Fl»m» AAS _ ,
Thallium, Flam* AA$ _
Thallium, Pumm AAS
Tin, Plfma AAS _
Vanadium, Film* AAS
Vanadwm Furnw AAS
Zlne, FORM AAS _„,..„ „
Tine, Furnace AAS „.„.„,,
Organic AnalytM
Sampling Cnn« „ ,, , ^
Sample Preparation Methcds
Extractions and Preparations _._.
Organic Extiac^cn and Sample Preparation. _..
Separatory Funnel Uq-rU-bautf Ex-jaction
Continuous Uou!<1-Liciuid £>tr3cton _.
Soxhtet Exlracsinn.. ™
r Tmrttn^fff
Third Edition
Section No.
3.2
3.2
3.2
3.2
3.3
3.3
3.3
33
3.3
3.3
3.3
3.3
3.3
3.3
33
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
33
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
3.3
33
3.3
3.3
4.0
4.1
4.2
4.2.1
4.2.1
4.2.1
4.2.1
4.2.1
Method No.
3010
3020
3040
3050
•6010
7000
7020
7040
7041
7060
7061
7080
7081
•7090
•7091
7130
7131
7140
7190
7191
7195
7198
7197
•7198
7200
7201
•7210
•7211
•7380
•7381
7420
7421
7450
•7450
•7461
7470
7471
7480
7481
7520
•7550
7610
7740
7741
7780
7761
•7770
•7840
•7841
7870
•7910
•7911
•7950
•7351
3500
3510
3520
3540
•Second Edition
Section No.
4.1
4.1
4.1
4.1
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
70
5.0
7.0
7.0
7.0
7.0
7.0
7.0
7.0
8.0
4.2
4.2
42
M«*od No.
3010
3020
3010
3050
70.10
7041
7060
. 7061
7C80
7B61
7130
7131
7190
7191
7195
7196
7197
7470
7421
7470
7471
7520
7740
7741
7760
7761
3S10
3520
3540
September 29, 1989 - Page 3 of 5
-------
RCRA REVISION CHECKLIST 67: Testing and
Monitoring Activities (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
ALE-NT
STATE ANALOG IS:
MORE I BHO;
STRINGENT IN SCOPE
TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED IN SW-846 '—Continued
T'Ka
UNr9£0«c FVHICfO"
Wa*w r>U|tiofi
Purg«-«nri.T:;.p ..., T , ..,.....,_,.. , .,, .,..,--,— .,-.,--—. .„,,- ,-„
Protocol lor A:i»;yri< of $orhe>ii CaitiirtqBi from t/QST , ,, ,,„„„-, ....
Cleanup ... ... .. , .......
Alumina Cohjrtin Clpainip .. ...... _
Alumina Column Qsanup aivl Scpj'atw of P»'«5,'»um W*$toi , ,
Pori*1 Co'u"1" Cleanup , .,
GvLPenrtefllirKi Ci'a""p
Acid-Pase ParWof Cleanup
Sulfur ClBinup , , -
Ga» CrfOfMitowanNr; Vsthods , , ,
M9lng,«utt*4 Volfl(it«i OfgdfHW...... , .
EDS and DHCP .
Nonh4k?g8nat«4 VnljW OjaTS , , „„„..,... „..,,, -, ,
Aromatic Vcb|til« r>g;;nic« ,,
Volatile Organ* Compound-} In Water by PurjD-and-Tiap Capillary Column GC witii PID
and Electrolytic Conductivity Detector m Seoes.
Aerotein, Acryinmlrito, AcMnntnta .. ._ , LL
NHrnsanurw^
OfoanocMonrm P»iod5 „ .. -----
Mmntdecarre Exticchcti and Scfcerinq of Puroaabta Organfei
Total and Annnabla Cy«nia>(Colnnmalnc, Manvt')
Total and AmenaDto Cyaiide (Cotoriinetnd Automatad)
Total Croanie H>IMM (TRX)
PinjMbte Drj-trar H^Kf*f (POX),,
Tot^l 0^9404 H9dff49 (TO^^ by Neutron Activation Analysis
Anrt-Snhihto anrt A«d.lnfQ!M«l* SqlK^f , ,
EitnetaMn SiiHvU* , ,
S"«»t», (Co'Q'|metf4c, Automated C>i>c'anil«tc)
Sutfato, (Ooicnmeinc, Automated. UttftyW>yict BHrt. AA M) ..._._
$uHj)ie, (Tu'b'd'f"*""!). ........_..
Total Orgartc Carfio" , ,,
Phenofici (Spy 'TOt^ftutort'etrtc Marual 4~AAP)
Pl^nQiiO (Spectfopffotometnc MBTH)
Total CofrforTn* Muftiple Tube Ffirmontaf'on
Total Colilorm: Mafnbrarw filter.. H ,,.L ,,
• Chhytde (Cofcrimevic, A*rto/i
-------
RCRA REVISION CHECKLIST 67: Testing and
Monitoring Activities (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS '
STATE CITATION
EQUiV-
ALENT
"STATE ANALOG IS:
MORc 1 BROADcR
STRINQENT I IN SCOPE
TABLE 3—SAMPLINQ AND ANALYSIS METHODS CONTAINED IN SW-646 '—Continued
Title
Properties
Multiple Extraction Procedure —
Extraction Procedure tor Oily Wastes
pH Electrometne Measurement ._..
pH Paoer Method . _ . ._ ... ....
Soil pH
Specific Conductance _
Cation-Exchange Capacity of Soils (Ammonium Acetate) . . .
Cation-Exchange Capacity ol Soils (Sodium Acetate)
Compatibility Test for Wastes and Membrane Uners.._
Paint Filter Liquids Test
—
-
Saturated Hydraulic Conductivity, Saturated Leachate Conductivity, and Intnnnc Permeability
Gross Alpha and Gross Beta
Alpha-Emitting Radium Isotopes
Radium-228 _
Introduction and Regulatory Definitions
Ignitabitity
Cofrosryity __*. . ..._.
Reactivity
Test Method to Determine Hydrogen Cyanide Released from Wastes _
Test Method to Determine Hydrogen Sulfide Released from Wastes —
Methods for Determining Characteristics _.. ..
IgrHtaWity ._.._._......__ _.
Pensky-Martetis Closed-Cup Method _. _
Setaflash Closed-Cup Method
Corrosrvity '
Corrosrvrty Toward Steel
Reactivity _. .
Tonqity
-
—
Extraction Procedure (EP) Toxicity Test Method and Structural Integnty Test
Sampling Plan_ ._ .._..__ . _....
Design and Development. „„.___......„_.__._..„......._.__ _.._.. ___. _...
Sampling Methods ... . __ ___ _
Modified Method S Sampling Tram. Appendix A and B
Source Assessment Sampling System (SASS)
Volatile Organic Sampling Tram . _._._ . „ ._. _ .
Ground Water Monitoring
Relationship to the Regulations and to Other Documents
Aeeaptahla D**grw and Practice „
Unacceptable Designs a~J "TTT't
Land Treatment Mnmtnrtng
TraaUMM ?nfi*
Ragul«<«fy O*hnrti
-------
54 FR 40260-40269
Revision Checklist 67
-------
Friday
September 29, 1989
Part IV
Environmental Protection Agency
40 CFR Parts 260 and 261
Hazardous Waste Management System;
Testing and Monitoring Activities; Final
Rule
-------
40260 Federal Register / VoL 54, No. 188 / Friday. September 20, 1089 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY.
40 CFR Parts 260 and 261
[FRL-3S49-5]
RIN2050-AC80
Hazardous 'Waste Management
System; Testing and Monitoring
Activities
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule adopts 47 testing
methods as approved methods for use in
meeting the regulatory requirements
under subtitle C of the Resource
Conservation and Recovery Act
(RCRA). These new methods are found
in the Third Edition of "Test Methods
for Evaluating Solid Waste. Physical/
Chemical Methods". Office of Solid
Waste Publication SW-848. and in
Update I of that Third Edition. As
specified in revised Tables 2 and 3.
these methods may be used to meet
regulatory requirements in conjunction
with, or in addition to the methods
found In the Second Edition of SW-846
as amended by Updates I and IL
EFFECTIVE DATE Effective on October
30.1980.
ADDRESSES: The official record for this
rulemaking (Docket No. 840-84-1) is
located in Room M-2427. U.S.
Environmental Protection Agency. 401M
Street SW.. Washington. DC 20480. and
is available for viewing from 9:00 a.m. to
4:00 p.m* Monday through Friday,
excluding legal holidays. Call (202) 475-
9327 for appointments. The public may
copy a maximum of 100 pages of
material from any one regulatory docket
at no cost; additional copies cost $0.15
per page.
Copies of the Tliird Edition of SW-848
and of Update I to the Third Edition are
available from the Government Printing
Office, Superintendent of Documents,
Washington. DC 20402. (202) 783-3238.
The document number is 955-001-00000-
1 and the cost Is $110.00 for the four-
volume set plus updates. Update
packages will be automatically mailed
to all subscribers.
Copies of the Second Edition of SW-
846 an available from the National
Technical Information Service (NTIS),
5265 Port Royal Road. Springfield. VA
22161, (703) 487-4600. The document
number is PB87-120-291 and the cost is
S48J5 for paper copies and $13 JO for
microfiche.
MM FURTWR INFORMATION CONTACT:
For general information contact the
RCRA Hotline at (800) 424-0346 (toll
free) or (202) 382-3000. For technical
information contact Charles Sellers,
Office of Solid Waste, OS-331, VS.
Environmental Protection Agency. 401M
Street SW.. Washington. DC 20480. (202)
382-3282.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. Regulatory Framework
B. Nature of the SW-646 Manual
C Mandatory U*e of the Manual
D. Origin of Today's Final Rule
I1L Issues Discussed in and Arising from the
October 1984 Proposed Rule
A. Overview of Proposed Rule
B. Other New Methods in SW-646 that are
not Part of Today's Rule
C. 47 Methods Adopted in Today's Rule
D. Comments Regarding the 47 Methods
Adopted In this Final Rule
E. Information Related to Tables* and i.
Appendix 111. Part 261
IV. Stale Authority
A. Applicability of Rules In Authorised
States
B. Effect on State Authorization*
V. Regulatory Analyse*
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
VLLUt of Subject* in 40 CFR Parts 260 and
• 261
L Authority
These regulations are being
promulgated under the authority of
sections 3001,3004.3005. and 3008 of the
Solid Waste Disposal Act. as amended
(commonly known as the Resource
Conservation and Recovery Act or
RCRA). 42 U.S.C. 6921.6924,6925, and
6926.
IL Background
A. Regulatory Framework
Subtitle C of the Resource
Conservation and Recovery Act of 1976
(RCRA) creates a comprehensive
national program for the safe
management of hazardous waste.
Among the elements of this program.
section 3001 requires the Agency to
develop and promulgate characteristics
for identifying hazardous waste, and lor
specifically listing hazardous wastes.
Furthermore, sections 3004 and 3005
. require the Agency to promulgate the
standards necessary to protect human
health and the environment for the
treatment storage and disposal of
hazarous waste, and to implement those
standards through a permit program.
The Agency has promulgated a
detailed set of criteria, standards.
definitions, and other requirements to
meet its charge under sections 300L •
3001 and 3005. Associated with
characterizing wastes, determining their
proper management and monitoring the
performance of waste management
units, is a panoply of testing methods
that address the sampling and analytical
procedures to be used. These methods
ensure accuracy, precision, and
comparability of test results.
EPA Publication SW-846. Test
Methods for Evaluating Solid Waste.
.Physical/Chemical Methods" contains
those sampling and analysis methods
that EPA has, in principle, approved. In
situations where the regulations require
the use of appropriate SW-848 methods,
the regulations specify the Second
Edition of EPA's SW-846 manual (1982)
as amended by Updates I (April 1984)
and D (April 1985). As described in more
detail below, since 1985 EPA has issued
many new SW-846 methods as
guidance, and has issued a Third Edition
of SW-840. These later methods have
not yet been approved. In January. 1989.
EPA proposed to amend the regulations,
' to approve the use of all of .the new
methods, in addition to the older one*. -
Some of the new methods (including
the 47 covered by this rule) were
proposed for approval in 1964. To
expedite the use of these particular 47
methods, this final rulemaking provides
that these methods are approved for use
where the regulations require
compliance with appropriate SW-848
methods. The existing Second Edition
methods continue to be approved. EPA
also intends to proceed with the January
1989 proposal (excluding the 47 methods
approved today), so that all new
methods contained in the Third Edition
of SW-846 (and Update I) will be
approved.
B. Nature of the SW-846 Manual
Approved and standardized testing
and quality control (QC) procedures are
needed to assist both the regulated
community in complying with RCRA
testing requirements and EPA officials
in enforcing them. Thus, the Agency
publishes and maintains a guidance
manual Test Methods for Evaluating
Solid Waste, Physical/Chemical
Methods". OSW publication SW-846.
This manual provides a unified, up-to-
date source of information on sampling.
analytical and QC procedures related to
compliance with the RCRA regulations.
It brings together in one reference
document all of men procedures that
have been approved by the Agency for
use in the RCRA regulatory program and
m determining compliance with the
RCRA requirements. However, except
when regulations specifically require
the use of certain SW-848 test methods
or QC procedures, use of the methods
contained hi SW-846 an not mandatory.
-------
Federal Regbtor / Vol 54. No. 188 / Friday, September 28. 1988 / Rules and Regulation* 40281
OSW flnt published SW-646 in May
1980, when the Agency promulgated
HUM I of the hazardous waste
regulation* (45 FR 33085-33588).
Advances in analytical instrumentation
and techniques an continually reviewed
by OSW and periodically incorporated
into SW-846 to maintain consistency
with changes in the regulatory program
and to improve method performance
(e.g.. accuracy, precision, ruggedness,
and sensitivity) and completeness.
Therefore, in 1982 the Agency issued the
Second Edition of SW-646. and in
March of 1987, the Third Edition of SW-
846 became available. The Agency has
since proposed that the Third Edition of
SW-846. together with Update I replace
the Second Edition as the compendium
of approved testing and QC procedures
(54 FR 3212-3229, January 23,1989). The
Third Edition of SW-646 broadens the
scope of the manual with new methods.
more guidance, and up-dated QC
procedures.
EPA emphasizes that this guidance
manual is a "living" document and will
change over time as new information
and data are developed. EPA solicits
any available data and information that
may affect the usefulness of this manual.
Furthermore, regarding those regulations
that mandate the use of appropriate
SW-846 methods for specific areas of
RCRA compliance, the Agency will, of
course, separately propose to change
those specific regulations to incorporate
the revisions to SW-846. An appropriate
comment period will be made available
for those methods made mandatory in
the eventuality of that rulemaking. This
does nut mean that the updating of the
guidance document needs to have a
prior proposal, or that it need await the
completion of the rulemaking. Such a
proposed rulemaking would affect only
the use of SW-646 as a mandatory
requirement for certain elements of the
RCRA program (see next section).
C Mandatory Use of the Manual
Several of the hazardous waste
regulations under subtitle C of RCRA
require that specific testing method*
described in the Second Edition of SW-
848 be employed for certain
applications.1 For convenience of the
pta. pondi nd bsooM. WhHt Appndta I to Ml
family adopted or mptrad by EPA. aw Aamqr
•MOfttttl
Appendix I M Mxcpubli for iWtonatai* s
-npmrautto Mopb" (i«« j m»(cn. runny.
I SSUl flaoaiporalM by
reader, the Agency is listing below the
sections of 40 CFR Parts 260-270 that
require the use of appropriate SW-846
methods. As noted earlier, any reliable
anlytical methods, including any version
of SW-846. mey be used to meet other
requirements in parts 260-270. Use of /
the Second Edition is currently
mandatory for the regulations listed
below:
(1) Section 260.22(d)(1)(i)—Submission
of data in support of petitions to exclude
a waste produced at a particular facility
(i.e., delisting petitions);
(2) Section 201.22(8)—Evaluation of
waste against the corrosiytty
characteristic;
(3) Section 261.24(a}—Evaluation of
waste against the Extraction Procedure
toxicity characteristic;
(4) Section 264.314(c) and
1265.314(d)—Evaluation of waste to
determine if free liquid is e component
of the waste; end
(5) Section 270.62(b)(2)(i)(C)—
Analysis of waste prior to conducting a
trial burn in support of an application
for a hazardous waste incineration
permit
D. Origin of Today'* Final Rule
On October 1.1964 (49 FR 33788-
33812). EPA proposed several changes to
the subtitle C hazardous waste
regulations. These proposed changes
included the following elements:
(1) Addition of 61 new methods to
SW-846;
(2) Mandatory adherence to the
procedures and methods in SW-846 for
all RCRA testing:
(3) Elimination of requirements to test
for certain compounds when conducting
ground water monitoring;
(4) Use of screening tests when
monitoring ground water for hazardous
constituents; and
(5) Use of the Hierarchical Analysis
Protocol for ground water screening.
Many comments were received on the
proposal The Agency evaluated these
comments and. as a result decided not
to promulgate the October 1,1984
proposal. Instead, the Agency revised
SW-446, as a guidance manual to
incorporate many of the suggestions
made in the comments and undertook
other action* to address changes to the
ground water monitoring regulations. On
March 16.1887. EPA announced the
availability of the Third Edition of 3W-
848 in the Federal Register (52 FR 8072).
The Agency has since proposed in a
separata rulemaking that the Third
Edition of SW-846, together with Update
put JBfc ASTM Bunted TMI
Method* far PUdi PMM of Uqohb by Bate Fto*
GtaMd Twtar Md AS1M MMOwe Twl kWhodi
kr IlMh POM by PMMkrMwMM OoMd Twtar.
L be substituted in 1280.11 as the
approved, incorporated reference for
parts 260-270 in lieu of the Second
Edition of SW-846, the currently
incorporated reference in | 260.11 (54 FR
32*12-3229). The effect of this proposal
would be:tl) To require use of the Third
Edition as amended by Update I, for all
testing for which the SW-846 methods
an specifically mandated in current
subtitle C regulations (see list in H.C.);
and (2) to update all informational
references to SW-846 wherever they
occur in 40 CFR parts 280-270.
Furthermore, the proposed rule would
require persons performing RCRA-
related testing, whether or not they an
using SW-446. to follow Quality Control
procedures detailed hi Chapter One of
the Third Edition. Update I of SW-846.
This final rule constitutes a separate
approval and adoption of 47 methods
now contained in the Third Edition of
SW-846 as amended by Update L These
47 methods wen among 61 methods
originally proposed hi the October 1.
1984. Federal Register notice. In light of
the comments received on these 47
methods, some of the methods have
been revised. The Third Edition and
Update I of the Third Edition of SW-646
already contain the revised versions of
the 47 methods proposed hi October
1984.
Through today's final rule, use of
these 47 newly-approved methods
becomes an acceptable means of
compliance when the regulations
specifically mandate use of appropriate
SW-846 methods (see list hi H.C.) and
when the appropriate procedure
includes one or mon of these 47
methods. Hence, persons required by
regulation to use SW-846 methods will
be responsible for adhering, as
appropriate, to either SW-846. Second
Edition as amended by Updates I and Q.
or to these 47 newly-approved methods
that now appear in the Third Edition
and its Update L All other portions of
the Third Edition and its Update I are
not approved or mandatory for anyone
at this time, but may be in the future
(see Proposed Rule, 54 FR 3212-3229).
m. Iseuee Dtecnsssd m and Arising
From the October 18M Proposed Rule
A. Overview of Proposed Rule
The October 1,1984 Notice of
Proposed Rulemaking (NPRM) proposed
five major revisions to the RCRA
hazardous waste regulations, each
nlated to testing and monitoring
activities (see HO. above). A key reason
behind the October 1984 proposal was
that ground water monitoring required
analysis for "all" or "each" constituent
-------
40262 Federal Register / VoL 54. No. 188 / Friday. September 29. 1989 / Rules and Regulation*
listed on Appendix VTJI of part 281 as
required under 40 CPR Part 204.
The Appendix Vm list has presented
a number of problems when used for
purposes of pound water monitoring.
These include practical analytical
problems such as listings which are
large categories of chemicals, the
dissociation or actual decomposition of
many Appendix VID constituents when
placed in water, and the lack of
analytical standards or analytical
screening methods for many
constituents.
EPA acknowledged in 1982 that it lack
analytical methods for nine of the
Appendix Vffl constituents (see 47 FR
32206, July 28,1982). Also, in 1984. EPA
proposed to eliminate 23 Appendix Vffl
constituents from the ground water
analysis requirements (see 49 FR 38786,
October 1.1984).
EPA amended its regulations of July 9.
1987, to establish a new list of
constituents for ground water
monitoring (52 FR 25942-25953).
Appendix IX of part 264 replaces
Appendix VIII of part 281 as the ground
water monitoring list Appendix IX to
part 264 is made up of those compounds
on Appendix Vm for which it is feasible
to ana!
yze in ground water samples,
plus 17 chemicals routinely monitored in
the Superfund program. This change has
altered the basis for much of the
October 1984 proposal. For this reason.
only the addition of 47 SW-846 methods
is finalized In this rule.
B. Other New Methods in SW-840 That
Are Not Part of Today'» Rule
The Third Edition contains 72
methods that are new to SW-846. Of
these, 47 are covered by this rulemaking.
As noted earlier, these 47 methods were
among 81 methods first proposed in the
1984 NPRM. Four of these methods
appear in Update I to the Third Edition
of SW-846. not in the Third Edition
itself.
The Agency's January 1989 proposal
to change the incorporation by reference
in 1260.11 from the Second Edition of
SW-846 to the Third Edition and Its
Update I (54 FR 3212-3229). covers not
only these 72 new methods in the
current Third Edition, but also 14
methods that are new to SW-846 as of
Update I to the Third Edition. If that
proposal Is finalized unchanged, all
methods contained in the Third Edition
and Update I of SW-846 (including the
47 methods adopted today) would be'
applicable where regulations
specifically mandate use of appropriate
SW-846 me'thods.
C. Method* Adopted in Today't Rule
The 47 methods being addressed In
this rule are listed in Table 1. One other
method proposed in 1984 and contained
in the Third Edition and Update I is •
Method 9090. Compatibility Test for
Wastes and Membrane Liners (as
revised). Method 9090 is not included in
today's final rule. Rather, the Agency
has sought further comment on the
revised version (54 FR 3212-3229). The
remaining thirteen of the 61 methods
proposed in 1984 are not included
because problems were encountered
during reevaluation following the •
comment period. Data generated by the
public and by EPA has demonstrated
that the methods could not be used in
their published form for the purpose .
stated. These methods are listed in
Table 2. The Agency does not plan to
finalize these methods now. or in the
near future.
TABU 1—SW-846 METHODS ADOPTED m THIS FINAL Rui£
Tito
0010
0020
0030
1320
1330
3611
Modttod Mefliod 9 SftinpInQ TnlnH
Souro* »MMim«i< Sarepang SMS
Sta
ngnwttiodtoM
ganfc SampSng Train.
MvMpto ExVactton Procedure.
Stack avnplng method tor I
Stack Mmphx method tar»
Extacton Procedure tor Oty WMlo
____ ^
Eii *c sun procedure used tof otsteno
chemfcaly feed.
EMclon procedure* MM! tor drtrtn
AlumfeM Column Qt*nup and tapmtton of Potato
neater.
eoio
7000
70B1
7188
7210
•7211
73SO
•7361
7480
•7461
TWO
7770
7640
7641
7610
7611
7680
•7661
Protocol tor Ana** of Softem drWdow horn
Saing Ti«ln(VOST). ^^
Votaflto Organic
™
MM a cleanup tooMoju* tor oft/ msMoM. PrepoMd m Metnd 3670.
B«ryeum (AA, Oract <
MMhod3720.
Qenml mMhod tor nwMpto
(D
OoDper (AA. Orect AapMton)
ogr«pri»).
AAmrtwl ^^ __...
HsffiBOt AA IMvlOdL PfOVIOM lOW
igraphy msXod.
Copper (AA. FumsM T«oMqM).
Iron (AA. Dkwi AsptMtort -~—
msalputoipe
tan (AA, Funwoe Te
lAA
i Ml and anafcscel tadbaty.
MAapln
(AA, Fumeo* Technique).
lAAmMhod.
(AA.Dta
(AA.DkeelAs
AA NMVIOflL
^^ HiiiaiMMl
AAmetwd
AA
tendsnaVtosHiiaja^.
I and antlyeee) I
(AA.FH
2tae (AA. Dtael Aaokatgn).
Zhie(AA.IHmaeeTe
Tote) Onjsnte Hsadss (TOX) ey I
QfopnMa) wnvos AA
RamsAAmstiod.
awfM aVW WpyvOII I
•WOryVCOl tOOaWVOJUaX
ToMOmsntoOsmi
Pheneles
Tolel
OlendO
OlandOreaM.
CMorvCxriwig* Ceaaotf of Soai
torahtdg*!
M8TH*
ToM ol and
TcW eland
SOI few «M
-------
Federal Register / Vol. 54. No. 188 / Friday. September 29, 1989 / Rules and Regulations 40263
TABLE 1—SW-846 METHODS ADOPTED m THIS FINAL RULE—Continued
Mettwd
•Ml
3100
•131
•132
•200
•2SO
•2S1
•29*
•310
•31S
•320
TBe
<*ifr~Bn**mt Capartty 1* *«••
Satoatad Hydraute ConducSvRy. Saturated Uecheta ConductMty.
and toattac Parmeebety.
NNrala _ — _
*»*-*•*-
CMoitoa- ___
rac»on-
TNa fiMtod *M propoaad « tr> UtarrvM to Method 1110 ki an aqutootency
peWon.Afler evaluation by NEK, Method 1120 «M tound to ba not comparable
In DficWon or occurocy.
Lack ol auMdanl data on eolumn |»»aalmanl and oondOortng.
7561
Oamhm (AA. Fume* TacMqua)..
MdabyHPLO.
quanca*. aMon vdumM, and •» aNact of •» toadbig of organic compound* en
•ta eokmn to pam* nwtnd to ba adaquatty daftwd.
EPA atuoynoTcataa «eeuraey prottOTa.
of otomup pvooodiw ond HPLC to ooKnnlno
•330
•410
Mil
MOO
W10
•620
TWO
Boflto wtd Acoc Modhi
No Mapportng dttB on oflocttvonoM of ciMrap prootdw ond HPLC lo
VM VMlylM. OuortoMbl*) praoWon ond ooounKy.
Too ouooopttilo to MortoranoM for
cMcoJ Analyoto Prolo
law I eMM^b^^^A C*^h«**^ikAAM«M«
oy mvowowi apocvoooopf-*
ToM NBregafvPhoaprnroM Qaa Ch
Mated nan aamMv* anouati tor da Mandad pun^oaa.
Malhod not •amMw anough tor ta Mandad pupoaa.
•011
•037
IMnvMDaMion PIOOMM for Appondh VNI Oofflpoundt«
PhntodagiaJaMaOianMaa
QiavtnMfc
Mattiod not amaWva anough tor to Mandad i
Malhod not aanaHha anoupti tor la) Inajndad purpoaa.
UnoortoJn now tvot ond fOK*Hv fOMto to Vio 4
PraoWon and aanaNMly not i
A Comment* Regarding the 47 Method*
Adopted in Thit Final Rule
EPA received comments addressing 25
of the 47 methods adopted in mis final
rule. Eleven commenten made 98
specific comments or queries. Five of
these methods received 66 percent of the
total comment: these methods are 1330,
1320, WOO, 9131. and 0030, which an
discussed Individually below. For other
comments and the Agency's response
thereto* we "Public Comment
Summaries and Responses far 40 CFR
parts 280 and 261. Forty-Seven New
Analytical Methods Approved for
subtitle C RGRA Hazardous Waste
Testing, Propowrf Rule-October 1,
or questions
thods were framed
1964," ta this docket
Many of the
regarding these 471
against the proposed requirement of
mandatory use of SW-846 methods for
all testing and monitoring activities
required under subtitle C That will not
be the case under this rulemaking!
except when regulations specifically
require the use of certain SW-646 test
methods or QC procedures (see ILC),
the SW-846 manual is a guidance
document and is not mandatory.
In this context, several commenten
asked for clarification on the regulatory
status of Methods 1320 (Multiple
Extraction Procedure) and 1330
(Extraction Procedure for Oily Wastes)
in relation to Method 1310: Extraction
Procedure (EP) Toxldty Test Method
and Structural Integrity Test Through
today's rule, all three an approved
methods. However, Method 1310 is
required to be used to determine
whether a waste exhibits the
characteristic of EPToxidty under 40
CFR 26L24 and Appendix U of 40 CFR
part 261, (i*, whether a waste to
hazardous under subtitle C of RCRA).
On the other hand. Methods 1320 and .
1330 an not mandatory. They wen
created for specific applications to
wastes that an already defined as
hazardous as part of the permitting and
debating process, and are not used ta
defining whether a solid waste exhibits
the toxidty characteristic
Consequently, they an employed on a
caae-by-case basis when requested by a
permit writer. (Note that if these
methods an used to support • petition
to deUst a listed waste at a particular
facility under 40 CFR 28O22(dHl)(i), use
could become mandatory.)
Several commenten questioned the
rationale for providing more than one
method for certain analytes or
parameters. These commenten argued
oat the different methods may produce
data that vary ta precision and
accuracy, ta addition, they Indicated
that some methods an considered
outmoded by current technology. The
i the presence and/or
concentration of a given analyte or
parameter with varying capabilities of
precision and accuracy, and that some
methods an seldom used due to new
technology. However, the Agency
believes that each method approved
provides data acceptable within the
•cope of the method as defined ta
section LO. "Scope and Application" of
each method. The philosophy of the
Agency is that the manual should
remain a compendium of approved
-------
40264 Federal Register / Vol 54, No. 188 / Friday, September 29.1969 / Rule* -and Regulation
method* available tot on ml the
dUcntion of the various program* and
permit writers operating under RCRA,
When a specific method if not required
and when multiple methods are
available for the analysis of the same
analyte or parameter, then the permittee
or the regulated facility or laboratory
performing the analysis may choose
among the appropriate methods.
The vast majority of the comments
submitted requested specific
clarification on method procedures or
offered recommendations for improving
these methods. These comments did not
suggest that the currently applicable
methods were not protective of human
health or the environment nor did they
provide any reason to believe that the
currently applicable methods were
infeasible as a technical matter. Some of
these detailed recommendations for
•technical improvement in SVV-848 have
been adopted, some have been rejected.
and others will undergo further ERA
consideration. At this time, however, the
Agency is not prepared to adopt all the
'technical suggestions, even though some
or all of them may ultimately prove to be
meritorious. The Agency believes the
•beat use of its resouces and the needs of
the regulated community are such that
these technical improvements can await
a future update effort The Agency's
response is detailed in (he Public
Comment Summaries and Response Jn
this docket
2. Method 133ft Extraction Procedure for
Oily Wastes
Method 1330 received 22 specific
comments from seven commenten,
many of which asked for clarification on
technical procedures. The Public
Comment Summaries and Responses
document in the docket contains the
Agency's discussion of the technically*
oriented comments. One commenter
contends that Method 1330 jirovides for
a wontiaw scenario with regard to the
Imchmg'drheavy metals which were
either contained m the oil or were
formerly shielded from the teaching
media'bylhe oIL The ODmmeattr
jdowh/ind that them melahn
become:* v^flaMe to tlw'anvlnnnientvt
such a slowTata-thatthoy wffl new he
detected m otherwise natnraBy-
occuRing leachetae.
While we agree that Method 1330 is
intended to be a worst case toenario. It
Is not 4m unreasonable •oanario. Method
1330 was designed to measure the
leaching potential «f metals fan an-oily
waste in a.reasonably quick and
efficient t"*n*">f batrxl oil the
assumption ihat the ail,phaseis'mobile .
and wjlljnigrste away from Jhesdlid, .
Snch mobility has been seen in a
number of situations. However, enough
data from a variety of oil samplings to
determine method accuracy has not
.been collected; hence pass/fail criteria
have not been established. Thus, the use
.and interpretation of this method are
currently left to evaluation by
appropriate regulatory officials on a
case-by-caie basis.
3. Method 1320: Multiple Extraction
Procedure
Method 1320 received 12 specific
comments from four commenten. many
of which also asked for clarification on
technical procedures. See Public
Comment Summaries and Responses.
One commenter recommended against
the inclusion of Method 1320 in Table 1
of Appendix HI of 40 CFR part 261
before regulations have been
promulgated that designate the
implicated wastes as hazardous, or
govern their treatment storage, and
disposal. The commenter states that it is
more appropriate to evaluate data from
the extraction method on the
•appropriate wastes as the regulated
characteristics of these wastes develop,
rather than to make this method
mandatory now.
The Agency agrees The Agency -la, therefore,
method Jn itsrumntlorm.
£ 7nformatlon-RalatedtoTablu3and
A Appendix m. fort an
Along with this final rule, the Agency
la repubUshing Tables* and 3 of
Appendix m, part 261. HWe 2 Identifies
the approved measunmentmethods
able lor inorgank spedes and other
mnceUaneoua groups trfonalytae
oontaJned m 8W-0HL Table 3
summarizes the contents flf SW*44Bmd
supplies the specific aection'and method
•umber'for sampHr*g end-analysis
methods. Rapublieation of these'two
tables to their entiraty to intended to
five goidaaoo-on when appropriate-EPA
approved methods •n'found m either
the 8eoood«r Third Edltton*.
m IhatTaapeotiBota that parts nf these
tablaa an nrinhsnged froiathe earrant
-------
Federal Register / Vol 54. No. 188 / Friday, September 29. 1969 / Rule* and Regulation! 40285
tables appearing in the Code of Federal
Regulations. Those unchanged portions
of the tables are included hi today's
revision strictly for the convenience of
the reader. These portions were not and
are not involved in this rulemaklng.
Other portions of Tables 2 and 3 are
being updated to reflect the approval of
the 47 methods which are the subject of
this rulemaking, and to provide easy
reference to the source documents.
IV. State Authority
A. Applicability of Ruin in Authorized
State*
Under section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
following authorization, EPA retains
enforcement authority under sections
3006.7003 and 3013 of RCRA, although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendments of 1084 (HSWA), a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
that State. The Federal requirements no
longer applied hi the authorized State,
and EPA could not issue permits for any
facilities In the State where the State
was authorized to permit When new,
more stringent Federal requirements
were promulgated or enacted, the State
was obliged to enact equivalent
authority within specified tune frames.
New Federal requirements did not take
effect in an authorized State until the
State adopted the requirements as State
law.
In contrast, under section 300B(g) of
RCRA, 42 UAC. 6828(g), new
requirements and prohibitions imposed
- by the HSWA take effect in authorized
States at the same time that they take
effect in nonauthorized States. EPA is
directed to carry out those requirements
and prohibitions m authorized State*.
including the issuance of permits, until
the State is granted authorization to do
so. While States mutt still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
applies in authorized State* fat the
interim.
A Effect on State Authorization!
Today'* rule is imposed pursuant to
pre-HSWA authority. Therefore, It is not
immediately effective in authorized
State*. The requirements will be
applicable only hi those States that do
not have interim or final authorization.
In authorized States, the requirements
will not be applicable until the State
revises its program to adopt equivalent
requirements under State law.
40 CFR 271.21(e)(2) requires thai
States Jhat have final authorization must
modify their programs to reflect Federal
program changes and must subsequently
submit the modifications to EPA for
approval. The deadline by which the
State must modify its program to adopt
today's rule is July 1.1991. These
deadlines can be extended in certain
cases (40 CFR 271.21(e)(3)). Once EPA
approves the modification, the State
requirements become Subtitle C RCRA
requirements.
States with authorized RCRA
programs may already have
requirements similar to those in today's
rule. These State regulations have not
been assessed against the Federal
regulations being promulgated today to
determine whether they meet the testa
for authorization. Thus, a State is not
authorized to carry out these
requirements in lieu of EPA until the
State regulations are submitted to EPA
for authorization approval. Of course,
States with existing regulations may
continue to administer and enforce their
standards as a matter of State law.
States that submit their official
application for final authorization less
than 12 month* after the effective date
of these standards are not required to
include standards equivalent to these
standards in their application. However
the State must modify its program by the
deadlines set forth in 1271.21(e). States
that submit official applications for final
authorization 12 month* after the
effective date of these standards must
include standards equivalent to these
standard* in their application. 40 CFR
271J sets forth the requirements a State
must meet when submitting its final
authorization application.
V. Effective Date
This rule will be effective 30 days
after final promulgation. Section 3010(b)
of RCRA provides that regulation*
promulgated pursuant to subtitle C of
RCRA shall take effect six months after
the date of promulgation. However.
section 3010(b)(l) provides for • snorter
period if the Agency find* that the
regulated community doe* not need six
month* to comply with the new
regulation.
Since today'* rule I* designed to
incorporate te*t method* already known
to and used by the regulated community
and since use of the Second Edition of
SW-8461* allowed, the Agency believe*
that the regulated community will not
need six months to come into
compliance. Therefore, these
amendments are effective 30 days after
promulgation, as provided under the
Administrative Procedure Act
VL Regulatory Analyses
A. Regulatory Impact Analysit
Under Executive Order 12291, EPA
must determine whether a regulation is
"Major" and. therefore, subject to the
requirement of a Regulatory Impact
Analysis. This rule will approve, but not
require, the use of these 47 methods
found in the Third Edition of SW-846
and Update L The 47 methods to be
finalized hi this rule offer the regulated
community, hi some cases, refinements
of existing methods and, in other cases.
new technology that provide alternative
methods to those now available for the
analysis of certain analytes or
parameters. This final rule entails no
additional testing or record keeping
burden and, therefore, no additional cost
burden to the regulated community.
Therefore, the Agency does not
believe these added methods wul result
hi an annual effect on the economy of
SlOO million or more; or a major Increase
In crate or prices for consumers,
individual Industrie*. Federal. State, or
local government agencies, or
geographic region*; or significant
advene effects on competition.
employment, investment productivity.
innovation, or hi domestic or export
markets. The Agency believes that
today'* rule I* not a major rule under
Executive Order 12291 and. therefore.
ha* not prepared a Regulatory Impact
Analysis (RIA). This regulation waa
submitted to the Office of Management
and Budget for review as required by
Executive Order 12281.
A Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. section 601-612, Pub. L 96-
354. September 19, I960), whenever an
agency I* required to publish a general
notice of rulemaking for any roposed or
ny proposed
end make
final rate. It must prepare
available for public comment a
regulatory flexibility analysis (RFA) that
describes the impact of the rule on small
entities (La* small businesses, small
organizations, and small governmental
Jurisdictions). No regulatory flexibility
analysis I* required, however, if the
head of the agency certifies that the rule
will not have a significant impact on a
substantial number of email entities.
This rale will not require the purchase
of new Instruments or equipment The
regulation require* no new report*
beyond those now required. The
analytical techniques approved here can
either be handled by small facilities, or
-------
40266 Federal Register / VoL 54. No. 188 / Friday, September 29,1989 / Rules end Regulation*
an widely available by contract at e
reasonable price. Furthermore, small
entities may not need to use any of
these 47 methods. EPA to certifying that
this rule will not have a significant
economic impact on e substantial
number of small entities (es defined by
the RFA). Therefore, in accordance with
5 U.S.C. eotyb). I hereby certify that this
rule will hot have a significant adverse
economic impact on a substantial
number of small entities.
VIL List of Subjects In 40 CFR Parts 280
and 281
Hazardous waste, Reporting and
racordkeeping requirements.
Dated September 15,1960.
Wutta«K.Reffly.
Administrator.
For the reason* set out in the
preamble, title .40 of the Code of Federal
Regulations is amended as follows:
PART 2*0—HAZARDOUS WASTE
MANAGEMENT SYSTEM: OENERAL
1. The authority citation for part
mtinues to read es follows:
260
continues to
Authority: 42 U.S.C. BOOS. 0012(i). 6921
through 002*. 0030,6834. 0035. 9837.003*.
0839, and 0974.
Subpert B—Deflnltione
2. Section 260.11 is amended by
revising the fourth reference in
paragraph (a) to read as follows:
8265 Port Royal Road. Springfield. VA
22161. (703) 487-4800. The document
number is PB87-120-291 and the cost to)
$4&S5 for paper copies and $13.50 for
microfiche.
12*0.11
(a)* * "Test Methods for
Evaluating Solid Waste, Physical/
Chemical Methods", EPA Publication
SW-848 (Second Edition. 1982 es
amended by Update I (April 1984), and
Update 0 (April 1985). The Second
Edition of SW-848 and Updates I andU
are available from the National
Technical Information Service (NTIS),
TART 281—IDENTIFICATION AND
USTINQ OF HAZARDOUS WASTE
3. The authority citation for Part 261
continues to read as follows:
Authority: 42 UAC 0006. 0012(«), 0921. and
0022.
4. Tables 2 end 3 of Appendix in are
revised to .reed es follows:
Appendix ID—Chemical Analysis Test
Methods
TABLE 2—ANALYSIS METHODS FOR INORGANIC CHEMICALS AND MISCELLANEOUS GROUPS OF ANALYTES CONTAINED m SW-848*
Abn*Mm__
*"*T
IU*..
BiMeMt
r^rfnk.
OlEkM>
rviMi
Copper ..
fern
l_<
ltaH»y
IMyhifaiM.
I^B^kattl
Onfen
SeMun__
Mm
SBMT
•n»e«
Tta.
T**^rfcir"* """i
a.4u_r
SutSMS
ToM Organic CMtoon
PhOTota
ToMOaOtaM
•••-*•
CMMUM
Qreet Alpha and Grew Beta :
AktllBK^EeBMihMl Ca^aM^eM laMvaW^OM
•nin
•"'"
eflio
W10
•nin
•nin
•nin
71M
•mn
eoiO TftO 7M1
«mn ,
0010. 7400. T4*1
•MA ,,„
•nin
7550
•MB
mio
fnin
0010.
•mo TSJO, IUM
W10. 79W. 7K1 _.__ _
fftt
•"•
Q1«1 M99
•»•
0280, 0291. east
•9M
•MWMM B^MbM.
MMhodW
•7040,7041
7000 7001
'7000, 7001
7100,7191
7100, 7101
7116.7196,7197
7420, 74*1
7470,7471
7520,73(1
7740,7741
7700.7701
•010
0090
0000
TtaTnMEdNonandai
^6lB
jat
Of
tw Second •EaUon end » Upd*M I and I when I fc
(MMIem
UMt*TtMEdatonto
taatnatiuta.
-------
Federal Register / VoL 64, No. 188 / Friday, September 29, 1989 / Rules and Regulations 40287
Mcttwd «wee to uMd I mu*
•dMt 9* «Muxc aett«rMar«ad wnpia to
i ma c»«cay to aw
b« nr»o»d»d by *• manual JMlrton tpneHM to proo«to» 7.1 ol fcMhodOOW. .totprtor
D pH 4 *•) 1 +8 NeOH. AIMr lw manual dMWton to compMad. 8w auMntfyar manBaid
Ito JUBaHqn to M««iad 9085.
to almpiaad by conracttno "*
TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED m SW-846'
TM
•
Qualrr
Method Detortton limit — .
Data Rawwtfnn
nefxtrmn
Add &Qjesoon of Weisrs tor Tow necovi
AASorlCP.
Add Dipffsfcon of Aqueous Samples and
AASorlCP.
ACK! OgrslKm of Aqueous SamDtes and 1
AAS.
Disaototton Procedure tor Pis. Preense. or
Add pQertton of SeoTmenex Sludges and
Aluminum. Fie*** Mff
AiftVfvy, Remt AAS, ..._._ ,
Areenfc. rVneoe AA*
BeryfJum. Flvf^t *•*£
Beryejum, Fumeov A*?
Certn*im. Ftamt AAff
PailiLalii. FtafTlai^VAfi
«fc^__ 1 • • • k JfclM U— « •». J «•
MBhlai rw nuiaM^MMftrl lalAtalfJ BTaT AnBtWa* HV FlMlBl
Extrecto tor Tot* Metals tor Analysis by feme
Exttads tor Total Metals tor Analysis by Furnace
Wtntf
5ofls
Manganaaa.FwnaeaAA8
ManwykiUvtfWaaia. Manual CeUVap
• a^Aat^^BMBMB I^HHai^ AAfl
•MBtMaT* BlMBBA AalA
TnM£dMton
Swdon'No.
.0
.1
2
.3
1.4
1.5
1.8
2.0
2.1
22
2.3
2.4
2.5
2.8
3.0
3.1
34
34
34
3.2
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
44
34
34
34
34
34
34
34
34
34
44
44
MMtodNo.
3006
3010
3020
3040
3050
•8010
7000
7020
7040
7041
7080
7081
7080
7081
•7080
•7081
7130
7131
7140
7180
7181
7185
7188
7187
•7188
7200
7201
•7810
•7*11
-7380
•7381
7420
7421
7450
•7480
•7481
7470
7471
7480
7481
7920
•7850
7810
7740
7741
7780
TTtl
•7770
•7840
•784
TITO
•7810
•781
Second EtMon
SadtonNo.
0.0
0.1
*
4.1
4.1
4.1
4.1
74
7.9
74
74
7.0
7.0
7.0
74
7.0
7.0
7.0
7.0
74
74
84
74
74
74
74
7.0
74
74
MMhodNo.
.
3010
3020
3040
3050
7040
7041
7080
7081
7080
7881
_
7130
7131
7190
7191
7195
7198
7197
.
7470
7421
7470
7471
7520
7740
7741
7780
7781
-------
40268 Federal Register / Vol. 54. No. 188 / Friday, September 29, 1989 / Rules and Regulations
TABLE 3—SAMPLING AND ANALYSIS METHODS CONTAINED m SW-846 «—Continued
TiSS
Hint, nvnt AAS... „,
Zinc, Fumaoa AAS
Organic Analyles
Sampang OonsldoniBons.-.
Sample Preparation Methods .
Extacaons and Preparations
Qfgmlc Extraction tod Sample Pfflfurmion
CoxMnuovt iJ«f*M.iquW Extraction , „ ,
.
Untisortc CxUi'*""
VWM. plkiMnn ,. .__ t
Protocol tar Analysis ol Sorbet* Cartktg** from VOST
Cttanup
Alumina Column Ofanup .„...,..,.. , ...
Alumina Column Cleanup and Scparsfen of Petroleum W«
SMca GtX ChOnurj
0*1 P*rm>ai"j'i Ctesntx> ,_
Arid Pass Partition Desnup
Vft% ,,. . L .,„„- ,„<
DstsiriimUuii of Orqt«<* AnaMet
Gaa QwomstograpHc Mathods
miogenatad Votatto rwQt*"/^
NonrntooanalrJ VotaWe Organics
VotaWe Organic Compound} hi Water by Pwge-ind-Trap Capisary Column GC «Nh PW
and EJectrotytte Conductrvtty Dutaclor ki Series.
AeraMn, Aoy4>x>1r%, AcwtoniMe
Pnsnoh)
OrgonocMonne Pesticides and PCBs as Aioctors___
Nhraemmrtlea «nd Cycle ******
Petfifitlaft Animate Hy«t/y^n>yn
HtkMthers
^Us"upnospnoius Pesaoxies. CapiBary "i^iat|ii
Gas ChromatograpMc/Maas Spsoosoeplc Methods
GC/MS Votalllet ...
GC/MS OemhflDaltit. Packed Oohmp
QC/MS tar VataNM C^patary Rnk»«
Total and Airienebla CyenMe (CotorfeneMc, Manua*
Tat* «nri Am^^to f^pnM. fft*,*.,^,. ftinomatfal
PunJMfcto Aynle Iliirln (BCBQ,.,.,,...
AekMaUita anrf AdAkMfeM. UariM
Sutele. (Cctalma|rtc. »momas»d. Oaoraryala)
Rianolcs. (CotaritnaMc. Automalad 4-AAP)
PlMnnteL r^eknpMMMMe URTM)
Total Bec«¥wabteOi and G^MetQra»lrne*te.Sepafalory Fun
MMM
Chtonde (Coterlmetric. Automalad Fen>cyai*la AAS)
^
net Extraction)
1
TnaTO EoKlOfl
SocMon No.
3.3
34
4A
4.1
42
42.1
42.1
42.1
42.1
42.1
422
422
422
422
422 .
422
422
44.1
44.1
44.1
44.1
44.1
44.1
44.1
44.1
44.1
4.3.1
44.1
42.1
44.1
44.1
44.1
441
44.1
44.1
442
4.32
442
442
422
422
4.4
4.4
4A
SA
SA
SA
SA
SA
SA
SA
9A
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
SA
MMhodNo.
/ *7060
•7861
3500
3610
3620
3540
3660
3660
6030
•6040
3600
3610
•3611
3820
3630
3640
3660
3680
WJUO
8010
8011
8016
8020
8021
8030
6040
8080
8070
8080
8080
8100
6110
6120
8140
8141
8160
8240
8290
8280
8270
8280
8310
3810
3820
8010
8012
8020
8021
•8022
8030
8091
• •8038
•8038
•8038
•8080
•8085
•tsoss
•8087
•8070
•8071
•8131
•8132
'•200
•8290
•8291
•8292
Second EdWon
SecfenNo.
SA
42
42
42
SA
42
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
8.1
82
82
82
82
82
82
SA
SA
SA
SA
Method No.
3510
3520
3540
3660
• 6030
3630
8010
8019
8020
8030
8040
8060
8000
6080
8100
6120
8140
6i60
8240
8250
8270
8310
6020
8010
8020
8030
-------
Federal Register / Vol. 54. No. 188 / Friday. September 29. I960 / Rules and Regulationi 40289
TABLE 3— SAMPLING AND ANALYSIS METHODS CONTAINED IN SW-646 •— Continued
Proparan - „
Extractor! Procadura tor Oiy WartM .'.
pH ElaOoniatrte Maaauramar*
nH Panar Matiod .-,.,
SpteHte Cottfuetonot
CattoivExchanga Capacity of Set* (Ammonium Acatata) _. — — .. —
. CalkNvExchanga Capacity of Sotf* (Sodium Acalata). . „
PaM Ftlwr UquMi TaM
Grow Alpha and 9M Sacond EdHon and ft* Updatat I and I onan * fc
UrMtwTNrd
pro«Wad«or
m. DC 20
6^M^arf IBK Bc5*m^23e,
I and ».
Bd906S.
to •MfflpMvd by ooflHwOHnQ ww
IPR Doc. 80-42290 FUad t-a-aO; MB am]
-------
RCRA REVISION CHECKLIST 68
Reportable Quantity Adjustment Methyl Bromide Production Wastes
, 54 FR 41402-41408 '
October 6, 1989
(HSWA Cluster II)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART D - LISTS OF HAZARDOUS WASTES
HAZARDOUS WASTES FROM SPECIFIC SOURCES
add K131 and K132
to the subgroup
"Pesticides"
261.32
§261.32 Hazardous wastes from specific
resources.
Industry
•nd EPA
hazard- Hazardous waste
OU9
waste
No.
Haz-
ard
cod*
K131 Wastewater Irom the reactor (C. T)
and spent sulluric acid Irom
the acid dryer from the pro-
duction ol mothyl bromide.
K132 .Spent absoroent and (T)
wasiewater separator solids
Irom tne production ol metfiyl
bromide.
APPENDIX III - CHEMICAL ANALYSIS TEST METHODS
add, in alphabetic
order, to Table 1,
two compounds and
methods for their
analysis
Appendix III
Compound
Method numbers
Dimethyl turf at*..
Melriyl brernd*..
8250. 6270
8010. 8240. 8260
October 6, 1989 - Page 1 of 2
-------
RCRA REVISION CHECKLIST 68: Reportabte Quantity
Methyl Bromide Production Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS /
STATE CITATION
si A re ANALOG is:
ECHJIV-
ALENT
/ MORE
x STRINGENT
BROADER
IN SCOPE
APPENDIX VII - BASIS FOR LISTING HAZARDOUS WASTE
add, in numeric order,
entries for K131 and
K132
Aooendix VII
Industry and
EPA Hazardous constituents lor wtiich
hazardous listed
waste No.
K131.
K132..
Dimethyl sulfate. Methyl bromtda.
Methyl bromide-
October 6, 1989 - Page 2 of 2
-------
54 FR 41402-41408
Revision Checklist 68
-------
Friday
October 6, 1989
Part III
Environmental
Protection Agency
40 CFR Parts 261, 271, and 302
Hazardous Waste Management System:
Identification and Listing of Hazardous
Waste and CERCLA Hazardous
Substance Designation; Reportable
Quantity Adjustment Methyl Bromide
Production Wastes; Final Ruie
-------
41402 Federal Register / Vol. 54. No. 193 / Friday. October 6. 1989 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261,271, and 302
rSWM-FRt-MM-ft EPA/08W-FR-SS-01S]
RIN20SO-AC60
Hazardous Wasta Management
System: Identification and Listing of
Hazardous Waste and CERCLA
Hazardous Substance Designation;
ReportaMe Quantity Adjustment
Methyl Bromide Production Wastes
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) today is amending the
regulations for hazardous waste
management under the Resource
Conservation and Recovery Act (RCRA)
by listing as hazardous two wastes
generated during the production of
methyl bromide. The effect of this
regulation is that these wastes will be
subject to regulation under 40 CFR parts
262 through 266, and parts 270.271, and
124.
In addition, the Agency also is making
final amendments to regulations
promulgated under the Comprehensive
Environmental Response and Liability
Act (CERCLA) in 40 CFR part 302 that
are related to today's hazardous waste
listings. In particular. EPA is making
final the designation as hazardous
substances under sections 101(14) and
102 of CERCLA all of the wastes made
final in today's rule, and designating
under section 102(a) the final reportable
quantities that would be applicable to '
those wastes.
•rracnvt DATE This regulation
becomes effective on April 6, 1990.
AOORISSRS: The official record for this
rulemaking is identified as Docket
Number F-89-LMBF-FFFFF and is
located in the EPA RCRA docket room
2427.401M Street SW.. Washington. DC
20460. The docket is open from MM to
4:00. Monday through Friday, excluding
Federal holidays. The public must make
an appointment to review docket
materials by calling (202) 478-0327.
Copies of the non-CBl version of the
listing background document the Health
and Environmental Effects Profiles, and
not readily available references are
available for viewing and copying only
In the OSW docket Copies of materials
relevant to the CERCLA portions of this
rulemaking are contained In room 2427.
US. EPA. 401M Street SW,
Washington. DC 20480. Both dockets are
available for inspection from WO a.m. to
4:00 p-m, Monday through Friday. The
public may copy 100 pages from the
docket at no charge; additional copies
are available at $0.15 per page.
ran niRTHtR INFORMATION CONTACT:
The RCRA/Superfund Hotline at (800)
424-9346 or at4202) 382-3000. For
technical information, contact Dr. Gate
Jenkins, Office of Solid Waste (OS-332).
U.S. Environmental Protection Agency,
401 M Street, SW.. Washington. DC
20460, (202) 382-4786. For technical
information on the CERCLA final rule,
contact: Ms. Ivette Vega. Response
Standards and Criteria Branch,
Emergency Response Division (OS-210),
U.S. EPA, 401M St. SW.. Washington.
DC 20460, (202) 362-2403.
SUPPLEMENTARY INFORMATION: The
contents of today's preamble are listed
in the following outline:
L Background
IL Retpome to Comments
A. Comment! on the Description of Manu-
facturing Processes
B. Comments on Individual Waste Streams
1. Wastewater from the reactor
•. Generation source of wastewaier
b. Effective treatment of waste water
e. Reuse of wastewater after treatment
In another process
2. Spent sulfuric add
a. Exemption of reclaimed sulfuric
acid
b. Concentrations of dimethyl sulfate
and methyl hydrogen sulfate
3. Spent alumina adsorbent
C Mismanagement
III Relation to Other Regulations
IV. Test Methods for New Appendix VH
Compounds
V. CERCLA Designation and Adjustment
VL Stale Authority
A. Applicability of Rules In Authorized
States
& Effect on State Authorizations
VII. Compliance Dates :
A. Notification
a Interim Status
VTO. Regulatory Impact Analysis
DC. Regulatory Flexibility Act
X Paperwork Reduction Act
L Background ' • •
On April 25,1985. EPA proposed to
amend the regulations for hazardous
waste management under RCRA by
listing as hazardous two wastes
generated during the production of
methyl bromide.1 (See 50 FR18432-
16436.) These wastes were proposed as:
(I) Wastewater from the reactor and
add dryer from the production of methyl
bromide (EPA Hazardous Waste No.
K131). and (2) spent adsorbent and
wastewater separator solids from the
• It sbMU be BMed that mt llaxantow and SoUd
Waste AmeadoMMs of 1884 ftqrirs ms Agtncjr to
makt a dvtarminattoa as to whether wastes from
ortMobremlat •MnafKtwtnc should be Ustod M
bourdon*. This ntvUlloa Is proaiula«l»d hi
•ccoraajwe with Inat M^MBWIMVI.
production of methyl bromide (EPA
Hazardous Waste No. K132).
The hazardous constituents of
concern in these wastes are methyl
bromide and dimethly sulfate. Methyl
bromide cadses numerous acute and
chronic'effects. Acute effects include
convulsions and seizures in humans,
central nervous system depression,
human fatalities due to pulmonary
edema, and psychic, motor, and
gastrointestinal disturbances. Chronic
effects include hyperplasia of the fore-
stomach of rats, direct damage to the
brain cortex and peripheral axons of
humans, and pathological changes in
animal kidneys, parathyroid glands, and
thyroid glands. Dimethyl sulfate is toxic
and has been demonstrated to be
carcinogenic in a variety of test animals.
Methyl bromide Is found at levels up
to 5% in waste K131 and at levels up to
1.5% in waste K132. Dimethyl sulfate is
found at levels up to 0.5% in waste K131.
Because of their moderate solubilities in
water and high solubilities In organic . -
solvents, these constituents are
expected to migrate from the wastes and
to be mobile in the environment In
addition, data are available which
indicate that methyl bromide and
dimethyl sulfate may persist in the
environment and reach environmental
receptors in harmful concentrations.
thereby posing a significant hazard if
these wastes are mismanaged.
Furthermore, waste K131 is corrosive.
(See the preamble to the proposed rule
at 50 FR 16432-36 for a more detailed
explanation of our basis for listing these
wastes.)
After evaluating these wastes against
the criteria for listing hazardous wastes
(40 CFR 261.11(a)(3)). and for the
reasons stated hi the preamble to the
proposed rule. EPA has determined that
these wastes are hazardous because
they an capable of posing a substantial
present or potential hazard to human
health or the environment when
improperly treated, stored, transported,
disposed of, or otherwise managed.
The Agency received several
comments on these proposed waste
listings. We have evaluated these
comments carefully, and conclude that
they do not refute our (ratification for
listing these wastes as hazardous. This
notice makes final the regulation
proposed on April 25,1965. and provides
EPA's response to the comments
received on that proposal
IL Response to Comments
This section presents the comments
received oa the proposed rule, as well as
the Agency's response. Comments were
-------
Federal Register / Vol. 54. No. 193 / Friday. October 6. 1989 / Rules and Regulations 41403
received from a manufacturer of methyl
bromide.
A. Comments on the Description of the
Manufacturing Process
The conunenter atated that the
process described in the listing
background document does not address
the process they employ to produce
methyl bromide. In particular, they
argue that methyl bromide is produced
at their plant as a co-product in the
tetrabromobisphenol-A (TBBPA)
process. In the commenter's process.
hydrobromic acid (HBr) is produced as a
co-product in TBBPA production and
subsequently methylated to produce
methyl bromide. They state that the
hydrobromic acid is not produced in situ
by reacting with either sulfur or sulfur
dioxide as described in the listing
background document
The Agency disagrees with the
commenter that their process is not
described in the listing background
document The listing background
document describes two typical
production processes for methyl
bromide. The first process described
involves the reaction of methanol with
hydrobromic acid. This is. in fact the
process used at the production facility of
the conunenter. where hydrobromic acid
is produced as a by-product from the
manufacture of another chemical and
then methylated to produce methyl
bromide.
The Agency never intended to exclude
from the listing wastes that are
generated from methyl bromide
production where it is produced along
with another product namely TBBPA. In
fact the listing background document
clearly states, "Hydrobromic add Is
often produced as a by-product of a
different process at a plant so it can be
added directly as feedstock to the
reactor." We believe Oat the production
of co-products along with methyl
bromide does not alter the fact oat the
wastes generated by the proceM win
•till contain the toxic constituent! at
levels of concern. Analytical data
submitted by tUa commenter and others
who produce me thy! bromide along with
a oo-produet also supports oar
contention that these wastes contain
significant concentrations of methyl
bromide.
The background document has bean
revised to more clearly describe the
different manufacturing processes for „
methyl bromide that are subject to the
hazardous waste listing.
B. Comments on Individual Waste
Streams
1. Wastewater From the Reactor
The conunenter provided several
rationales to support their claim that the
wastewaters generated from their
methyl bromide-TBBPA co-production
process would not be covered by the
K131 listing description. "Wastewater
from the reactor • • • from the
production of methyl bromide." The
Agency's response to these comments is
provided below.
a. Generation source of wastewater.
The conunenter claimed that their
process wastewater is not discharged
directly from the methyl bromide
process reactor. Instead, their reactor
wastewater is carried along through a
precipitation and filtration step before it
is removed from the process and sent to
the distillation column for treatment
The commenter argued that the source
of this wastewater. therefore, was not
the methyl bromide reactor.
The Agency disagrees with the
interpretation that die wastewater
generated by the commenter's facility
does not meet the listing description for
"reactor wastewater." In the
commenter's process, wastewater is
generated in the methyl bromide
production reactor. This wastewater.
therefore, is properly designated as
wastewater from the methyl bromide
reactor. The additional product recovery
steps described by the commenter
through which this wastewater Is
carried does not alter the fact that the
original source of the wastewater is the
methyl bromide reactor. Furthermore,
the commenter supplied information that
this wastewater is removed from the
process line prior to the production of
any other product such as the
commenter's subsequent manufacture of
TBBPA. As a result the source of this
wastewater cannot be claimed to be
from a production process other than the
methyl bromide process. The
wastewater leaving the conunenter •
precipitation and treatment steps dearly
meets the Usting description, and full .
notice of nils' fact was provided.
b. Effective treatment of wastewater.
The commenter further stated that they
have a patented treatment process to
remove hazardous constituents from
their waatwatat stream discussed •
above. In support of their position, the
conunenter provided a copy of an Inter*
office memorandum which stated that.
the wastewater stream after this
treatment proceM contained 8 ppm or
leM methyl bromide, the detection Umlt
of the analytical method used. As a
result the conunenter contends that the
wastewater no longer contained
significant concentrations of toxic
constituents, and suggests that their
wastewater should be excluded from
regulation as a hazardous waste.
The Agency does not consider the
/Information submitted by the commenter
to be adequate as a basis for excluding
this waste, after such treatment from
the Usting description. First the actual
concentration of methyl bromide
remaining in the wastewater after
treatment could have been as high as
the detection limit. 5 ppm. Without more
definitive analytical characterization of
this waste, the Agency cannot make a
determination as to whether or not it
would present a potential hazard to
human health and the environment. In
addition, the Agency has inadequate
Information on the commenter's test
methods, how the samples were
collected, or the QA/QC used. If the
conunenter wishes to provide further
evidence to demonstrate that their
treated wastewater should be exduded
from regulation, they should submit a
delisting petition pursuant to 40 CFR
260.20 and 26O22. (Sea "Petitions to
Delist Hazardous Wastes: A Guidance
Manual." NT1S PB-«5-lM4M, available
from: NTIS. 8285 Port Royal Road.
Springfield. VA 22161 (request by
telephone at (703) 487-4650) for a
detailed discussion on the type of
information and date that should be
included in the petition.)
C. Reuse of wastewater after
treatment in another process. The
conunenter further argued that their
methyl bromide process wastewater
would be exempt from the K131 Usting
description since, after wastewater
treatment the wastewater is "recycled
to process." In fact the wastewater is
injected Into the ground to extract brine.
The Agency does not consider the
reuse of the wastewater described by
the conunenter to be a reclamation or
reuse activity subject to the exemption
from regulation as a soUd waste. The
1 notes that this form of
"recycling" la use constituting disposal,
and therefore not subject to the
exemption from the definition of a soUd
waste. (See 40 CFR 2ol^cKl)(A),)
2. Spent Sulfuric Add
a. Exemption of reclaimed sulfuric
odd. The commenter stated that their
process does not produce a waste
sulfuric addatraam as described to the
listing background document Instead.
the add ia first stripped to remove
methyl bromide, and man returned to
the supplier to be used to produce virgin
sulfuric add. They argue, therefore, that
this stream is not a solid waste by virtue
of 40 CFR 261.4{aX7). which exdudes
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41J04 Federal Register / VoL 64. No. 193 / Friday. October 6, 1989 / Rules and Regulations
•pent sulfuric edd used to produce
virgin sulfnric add, unless It Is
accumulated speculatively.
Although the Agency agrees that the
spent edd. after stripping, meets the
description of 40 CFR 281.4(a)(7), the
Agency notes that the commenter's
•pent •ulfuric acid, which meets the
K131 listing description a* generated, is
not used to produce virgin sulfuric acid
until after treatment to remove methyl
bromide. The Agency believes that such
redamation is treatment of a hazardous
waste (/.«., the spent sulfuric add as
generated).
The specific exemption for spent
sulfuric add was meant to apply only to
spent sulfuric acid that is used as a
feedstock ingredient in the production of
virgin sulfuric add. by introduction into
the original sulfuric add production
process. (A discussion of the types of
sulfuric acid redamation processes
intended for the exemption may be
found in paragraph 8, column 1. of SO FR
642.) In this case, the spent sulfuric add
Is not exempt as generated since it is not
suitable for feedstock In sulfuric acid
production, i.e.. it must be stripped of
methyl bromide prior to being suitable
for introduction into the sulfuric acid
production process. Thus, any time the
spent sulfuric add stream is generated.
it is a hazardous waste until stripped to
produce feedstock for virgin sulfuric
add production.
Also, the Agency clarifies that waste
K131, as defined in the proposal
includes both the reactor wastewater
stream and the add dryer stream, either
as separate westes or combined. In
order to darify this point (/.e, that
waste K131 Includes the sulfuric add
stream), however, we have modified
EPA Hazardous Waste No. K131 to read.
"Wastewater from the reactor and spent
sulfuric add from the add dryer from
the production of methyl bromide."
b. Concentrations of dimethyl sulfate
and methyl hydrogen sulfate. In
addition, the commenter states that mis
waste stream does not contain
significant amounts of dimethyl sulfate,
the hazardous constituent of mis waste:
it does, however, contain methyl
hydrogen sulfate. which me commenter
states is non-toxic, and to destroyed m
the reclamation furnace.
The Agency does not believe that the
commenter has supplied any evidence to
sustantiate the contention that the
sulfuric add stream prior to stripping
contains dimethyl sulfate at
concentrations that would not be
significant In terms of potential hazards
to human health and the environment. If
the commenter wishes to provide further
evidence to demonstrate that their
waste should be exduded from
regulation, they should submit a
delisting petition pursuant to 40 CFR
280.20 and 260.22.
.Regarding the commenter's point
about methyl hydrogen sulfate, the
Agency agrees that there Is Insufficient
evidence at this time to indicate that It ii
toxic. Therefore. It was not included as
a constituent of concern for this waste.
A* we stated in the proposed rule.
however, the waste does contain
considerable amounts of methyl
hydrogen sulfate (up to 25%). Since
methyl hydrogen sulfate is an acid
similar to sulfuric acid, this waste is
expected to exhibit the corrosivity
characteristic specified in 40 CFR 281.22.
3. Spent Alumina Adsorbent
The commenter stated that their spent
alumina is steam-stripped to remove
methyl bromide before the adsorbent Is
removed from the purification column.
The spent alumina was analyzed after
stripping and before landfilllng, and no
methyl bromide was detected (at a
detection limit of 5 ppm). The •
commenter dted as evidence the same
Inter-office memorandum as was dted
in their comment on wastewater from
the reactor.
The Agency has reviewed the
evidence submitted by the comments
and has concluded that the spent
alumina contains significant amounts of
methyl bromide before steam-stripping.
Insuffident data was provided to
determine whether this procedure
suffidently cleans the alumina so that
the waste leaving the column would
contain insignificant concentrations of
hazardous constituents so as to allow an
exclusion of the stripped (derived from)
waste from the regulation, to particular.
the Agency has inadequate Information
on the commenter's test methods, how
the samples were collected, or the QA/
QC used. If the commenter wishes to
provide further evidence to demonstrate
that their waste should be exduded
from regulation, they should submit a
delisting petition pursuant to 40 CFR
28O20 and 280.22. (See "Petitions to
Delist Hazardous Wastes: A Guidance
Manual- NTO *PB-«5-194488,
available from: NTTS. S28S Port Royal
Road. Springfield, VA 22161 (request by
telephone at (703) 487-4850) for a
detailed discussion of me type of
information and data mat should be
included to the petition.) Because the
stripped absorbents are landfilled, there
Is no question that the absorbents
before such treatment (stripping) are
solid wastes.
C Mismanagement
The commenter believes that the
listing background document is
misleading, and that It implies that they
mismanaged their methyl bromide
wastes, resulting in air pollution
inddents around Its plant In Magnolia.
Arkansas/The commenter stated that it
did n«H begin producing methyl bromide
at the Magnolia. Arkansas plant until
December. 1983.
EPA had no intention of implying that
mismanagement of methyl bromide
wastes by the commenter resulted in air
pollution incidents. It was stated that
methyl bromide was found in trace
quantities around several plants, one of
which was the commenter's plant in
Magnolia. Arkansas. In fact, the listing
background document specifically states
that the data cannot be directly
correlated with Industrial practices.
Moreover, the Agency has concluded
that the source of the methyl bromide
could not be determined. To further
clarify this point however, we have
moved this discussion from the
mismanagement section to the
environmental fate and transport
section of the listing background
document to show the persistence of
methyl bromide.
m. Relation to Other Regulations
A. Proposed Toxicity Characteristic
As one of the mandates of HSWA. the
Agency proposed to expand the toxidty
characteristic (TC) by including
additional chemicals. Once
promulgated, the TC might capture
wastes generated by the methyl bromide
industry that are not covered by wastes
K131 and K132. Such wastes could
indude wastewaters and wasterwater
treatment sludges.
B. land Disposal Restrictions
HSWA mandated the land disposal
restrictions for waste listed prior to the
enactment of HSWA under a specific
schedule (see 3004(gX4)(c)). If the
Agency failed to prohibit the wastes
within the period specified, the wastes
were restricted from land disposal
HSWA also requires the Agency to
make a land disposal prohibition
determination for any hazardous waste
that is newly Identified or listed in 40
CFR part 281 after November 8,1984
within six months of the data of
identification or listing (RCRC section
3004{g)(4). 42 U.S.C. 8924(g)(4)).
However, the statue does not provide
for an automatics prohibition of the land
disposal of such wastes if EPA fails to
meet this deadline. The Agency is
evaluating treatment standards for
newly listed wastes K131 and K132 and
will propose such standard in the future.
-------
Federal Register / Vol. 54. No. 193 / Friday. October 6. 1989 / Rules and Regulations 41403
IV. Tnt Methods for New Appendix VU
Ca
Appendix d of 40 CFR part 281 is a
list of test method! that are approved
for use in demonstrating that the
constituent* of concern in listed wastes
are not present at concentrations of
concern. The approved methods for
methy bromide are 8010.8240, and 8260.
The purposed listing (50 PR 16432}
suggested use of Method 8250 for the
analysis of dimethyl sulfate in
Hazardous Waste No. K131. Because
most commercial laboratories now
prefer to use capillary column
chromatography to improve the
chromatographic resolution, we are also
adding Method 8270 to the list of those
suitable for analyzing dimethyl sulfate.
The difference between these two
methods is the use of a capillary column
gas chromatography technique instead
of a packed column technique.
Persons wishing to submit delisting
petitions must use these methods to
demonstrate the concentration of methyl
bromide and/or dimethyl sulfate in their
wastes. * (See 40 CFR 280.22(d)(l).) As
part of their petitions, petitioners shall
submit quality control data
demonstrating that the methods they
have used yield acceptable recoveries
(/.A. >80X recovery at concentrations
above 1 ug/g) on spiked aliquots of their
waste.
The above methods are in "Test
Methods for Evaluating Solid Waste:
Physical/Chemical Methods." SW-646,
3rd Ed* available from: Superintendent
of Documents. Government Printing
Office. Washington. DC 20402. (202) 783-
3238. Document Number 055-002-81001-
2.
V. CERCLA Designation and
Adjustment
All hazardous wastes regulated under
• RCRA hazardous waste number an
hazardous substances under section
101(14)(C) of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980.
as amended (CERCLA). Under section
103(a) of CERCLA. notification must be
nude to the Federal fovernment of a
release of any CERCLA hazardous
substance In an amount equal to or
greater than the reportaMe quantity
(RQ) assigned to that substance.*
• PMttoum m*i «• OUMT IM! •wlkedt to
•Mljm far OMttqrl brooidt cr dlMttqrl wild* II
•aWMf OUMT thlflfiV ttwy OMMmtHtt DM
•quhmhwy of nwM MttMdi by MbnMUnf dwir
•MMy control md Mnmae* taTonuttoB »\oi*
wHh iMr Mtlyrii d«U. (Swt 40 CPU Han.)
•Set 40 CF« pwOOX far OM MM of CEftCLA
kMaidoM MitMlMCM wd thtJr RQi. M aim
AnfOtt 14. USB. M PR S341S Md M t* 3J428.
Pursuant to section 102(b) of CERCLA.
all hazardous wastes newly listed under
RCRA will have a statutorily imposed
RQ of one pound unless and until
adjusted by regulation.
If. the person in charge of a vessel or
facility from which a RCRA hazardous
waste containing CERCLA hazardous
substances is released knows the
percentage composition of the waste.
then the "mixture rule" (40 CFR 302.6(b))
may be applied. Under the mixture rule,
releases of mixtures and solutions are
subject to CERCLA reporting
requirements only where a component
hazardous substance of the mixture or
solution is released in a quantity equal
to or greater than its RQ (40 CFR
302.6(b)). If the concentrations of all of
the hazardous constituents present in
the mixture are not known, reporting is
required if the total quantity released
equals or exceeds the lowest RQ of any
of the hazardous constituents.
Adjustments from the statutory RQs
established under section 102 are based
upon an adjustment methodology
described in the final rule adjusting the
RQs of 340 hazardous substances. (See
54 FR 33428 (August 14.1989).) The
adjusted RQs for newly listed waates
are based upon the RQs of die
"hazardous constituents" identified
under RCRA with respect to the new
hazardous waste. Thus, if a newly listed
hazardous waste has only one
constituent of concern, the waste will
have the same RQ as that of the
constituent If the waste has more than
one constituent of concern, the lowest
RQ assigned to any one of the
constituents present in the waste stream
is the RQ assigned to the waste.
Under section 102 of CERCLA, all
hazardous wastes newly designated
under RCRA will have a statutorfly-
Imposed RQ of one pound unless and
until adjusted by regulation under
CERCLA. In order to coordinate the
RCRA and CERCLA rulemaking with
respect to new waste listings, the
Agency proposed regulatory
amendments under CERCLA authority
in connection with listing to: (1)
Designate wastes K131 and K132 as
hazardous substances under section 102
of CERCLA: and (2) adjust the RQs of
waste K131 to one pound (1 Ib.) and
waste K132 to one thousand pounds
(1,000 Ibs.). based on the application of
the RQ adjustment methodology under
section 102(a).
• the RQs for each waste and for each
of the hazardous constituents are
identified in the table below. One of the
constituents of concern, dimethyl
sulfate. has an RQ that has now
undergone adjustment since (he April
25,1985 proposed listing of methyl
bromide production wastes, and was
finalized in the August 14.1989 final
rulemaking (54 FR 33426). The final RQ
/of waste K131 has thus been changed
based on the outcome of this rulemaking
from one pound to 100 pounds.
The adjustment of the RQs of wastes
K131 and K132 from the statutory one-
pound level is based on the current RQs
of the constituents in these listings.
Because the constituent in waste K131
with the lowest RQ is dimethyl sulfate,
with an RQ of 100 pounds, the RQ of
waste K131 is 100 pounds. Because the
constituent in waste K132 with the
lowest RQ is methyl bromide, with an
RQ of 1.000 pounds, the RQ of waste
K132 is 1,000 pounds. These RQs will
become effective on the effective date of
today's action, when the wastes
simultaneously become hazardous
substances under CERCLA.
Wa*M No. K131.
100t)«.
100 ibs.
1.000 KM.
1.000 tw.
\jooot*.
Finally, although each listed
hazardous waste automatically becomes
a hazardous substance under CERCLA
section 101(14). the Agency also has
authority to independently designate
hazardous substances under section 102.
In order to eliminate confusion over
whether a released substance In a
particular form is subject to CERCLA
authority, the Agency designates under
section 102 all hazardous substances
designated under the other statutes
listed in section 101(14). Accordingly.
die Agency in today e rule also Is
designating waates K131 and K132 as
"hazardous substances" under CERCLA
section 102.
VL State Authority
A. Applicability of Rule* in Authorized
State*
Under section 3008 of RCRA. EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization. EPA retains
inspection and enforcement authority
under sections 3007.3008,3013. and 7003
of RCRA. although authorized States
IWVQ prinMty •tiforcwocnt
mpoiuibllity.
-------
41406
Federal Register / Vol. 84. No. 193 / Friday. October 6. 19BO / Rule* and Regulations
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA). a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program in
that State. The Federal requirements no
longer applied in the authorized State.
and EPA could not Issue permits for any
facilities in the State that the State was
authorized to permit When new. more
stringent Federal requirements were
promulgated or enacted, the State was
obliged to enact equivalent authority
within specified time frames. New
Federal requirements did not take effect
in an authorized State until the State
adopted the requirements as State law.
In contrast under section 3006(g) of
RCRA. 42 U.S.C. 6926(g). new
requirements and prohibitions imposed
by the HSWA take effect in authorized
States at the same time that they take
effect in nonauthorized States. EPA is
directed to implement .those
requirements and prohibitions in
authorized States, including the issuance
of permits, until the State is granted
authorization to do so. While States
must still adopt HSWA-related
provisions as State law to retain final
authorization, the HSWA applies In
authorized States in the interim.
Today's rule is promulgated pursuant
to section 3001(e)(2) of RCRA. a
provision added by the HSWA.
rherefore. it has been added to Table 1
in 40 CFR 271.1(j). which identifies the
Federal program requirements that are
promulgated pursuant to the HSWA.
and that take effect In all States.
regardless of their authorization status.
States may apply for either Interim or
final authorization for the HSWA
provisions Identified In Table 1. as
discussed In the following section of mis
preamble. Because EPA promulgated
rules regarding the timing for HSWA
listings after this rule was proposed, the
existing regulatory time frames
anpercede the discussions in the
preamble to the proposed rule,
B. Effect on State Authorization*
As noted above, EPA wiB Implement
today's rule In authorized States until
they modify their programs to adopt
these rules, and the modification to
approved by EPA. Because the rule Is
promulgated pursuant to the HSWA. a
State submitting a program modification
may apply to receive either Interim or
final authorization under section
3008(g)(2) or 3008(b). respectively, on the
basis of regulations that are
substantially equivalent or equivalent to
EPA's. The procedures and schedule for
State program modifications under
section 3008(b) are described In 40 CFR
271.21. The same procedures should be
followed for section 3006(g)(2).
Section 271-21(e)(2) requires that
States that have final authorization must
modify their programs to reflect Federal
program changes and must subsequently
submit the modification to EPA for
approval. State program modifications
to conform to today's rule must be made
by July 1.1991. if only regulatory
changes are necessary, or by July 1.
1992. if statutory changes are necessary.
See 40 CFR 271.21(e)(2)(iv) and
271.21(e)(2)(v). These deadlines can be
extended in exceptional cases. See 40
CFR271.21(e){3).
States with authorized RCRA
programs already may have regulations
similar to those in today's rule. These
State regulations have not been
assessed against the Federal regulations
being promulgated today to determine
whether they meet the tests for
authorization. Thus, a State is not
authorized to implement these
regulations in lieu of EPA until the State
program modification Is approved. Of
course. States with existing regulations
may continue to administer and enforce
their regulations as a matter of State
law. In implementing the Federal
program. EPA will work with States
under cooperative agreements to
minimize duplication of efforts. In many
cases. EPA will be able to defer to the
States in their efforts to Implement their
programs, rather than take separate
actions under Federal authority.
States that submit official applications
for final authorization less than 12
months after the effective date of these
regulations are not required to include
standards equivalent to these standards
in their applications. However, the State
must modify its program by the
deadlines set forth in 40 CFR 271.21(e).
States that submit official applications
for final authorization 12 months after
the effective data of these standards
must Include standards in their
application. Section 271.3 sets forth the
requirements a State must meet when
submitting its final authorization
application.
V1L Compliance Dates
A. Notification
Under the Solid Waste Disposal
Amendments of 1980. (Pub. L 88-452)
EPA was given the option of waiving the
notification requirement under section
3010 of RCRA following revision of the
section 3001 regulations, at the
discretion of the Administrator.
The Agency has decided not to
require parsons who generate, transport.
treat store, or dispose of these
hazardous wastes to notify the Agency
within 90 days of promulgation that they
are managing these wastes. The Agency
views the notification requirement to be
unnecessary in this case since we
believe that-most, if not all persons who
manage'these wastes have already
notified EPA and received ah EPA
Identification number. In the event that
any person who generates, transports,
treats, stores, or disposes of these
wastes has not previously notified and
received an identification number, that
person must get an Identification
number pursuant to 40 CFR 262.12
before he can generate, transport treat
store, or dispose of these wastes.
B. Interim Statui
Because HSWA requirements are
applicable In authorized States at the
same time as hi unauthorized States.
EPA will regulate K131 and K132 until
States an authorized to regulate these
wastes. Tims, once this regulation
becomes effective, EPA wiO apply
Federal regulations to these wastes and
to their management In both authorized
and unauthorized States. Facilities that
treat store, or dispose of K131 and K132
but that have not received a permit
pursuant to section 3005 of RCRA and
are not operating pursuant to interim
status, might be eligible for interim
status under HSWA (see section
3005(e)(l)(A)(il) of RCRA. as amended).
In order to operate pursuant to interim
status, the eligible facilities are required
to possess an EPA ID number pursuant
to 40 CFR 270.70(a), and will be required
to submit a part A permit application by
April 6.1990.
Under section 300S(e)(3). by April 8.
1991. land disposal facilities qualifying
for interim status under section
300S(e)(l)(AHti) also are required to
submit a part B permit application and
certify that the facility is in compliance
with all applicable ground water
monitoring and financial responsibility
requirements. If the facility fails to do
so. interim status will terminate on that
date.
All existing hazardous waste
management facilities (as defined in 40
CFR 270J) that treat store, or dispose of
K131 and K132 and mat are currently
operating pursuant to interim status
under section 3005(e) of RCRA. will be
required to file with EPA an amended
part A permit application by April 8,
1990.
Under currant regulations, a
hazardous waste management facility
that has received a permit pursuant to
section 3005 is not able to treat store, or
dispose of K131 or K132 until • permit
modification allowing such activity Is
approved la accordance with 1270.42.
-------
Federal Register / Vol. 54. No. 193 / Friday. October 6. 1989 / Rules and Regulations 41407
Note that EPA has recently amended the
permit modification requirements for
newly listed or identified wastes. See 53
FR 37912 et seq. (September 28.1988V)
VUL Regulatory Impact Analysis
Under Executive Order 12201. EPA
must determine whether a regulation is
"major" and. therefore, subject to the
requirements of a Regulatory Impact
Analysis. In the proposed listing. EPA
addressed this issue by citing the results
of an economic analysis; the total
additional incurred cost for managing
those wastes as hazardous by the
industry was estimated to be
approximately $23.000. The Agency
received no comments on this figure.
Since that time, the Agency has re-
evaluated the total additional costs that
would be incurred for managing these
wastes as hazardous by the industry aa
approximately $43,500.
Since EPA does not expect that the
amendments promulgated here will have
an annual effect on the economy of $100
million or more, will result in a
measurable increase in costs or prices,
or have an advene impact on the ability
of U.S.-based enterprises to compete in
either domestic or foreign markets, these
amendments are not considered to
constitute a major action. As such, a
Regulatory Impact Analysis is not
required.
IX. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act. 5 U.S.C. 601-612. whenever an
agency is required to publish a general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (/.»., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis ia required, however, if the
head of the agency certifies that the rule
will not have a significant impact on • •
substantial number of small entities.
The hazardous wastes listed hen an
not generated by small entities (aa
defined by the Regulatory Flexibility
Act), and the Agency received no
comments that small entities will
dispose of them In significant quantities.
Accordingly. I hereby certify that thia
regulation will not have • significant
economic impact on a substantial
number of small entities. Thia
regulation, therefore, does not require a
regulatory flexibility analysis.
X. Paperwork Reduction Act
Thia rule does not contain any
information collection requirements
subject to OMB review under the
Paperwork Reduction Act of I960.44
U.S.C.3501e/*«7.
List of Subjects
40 CFR Part 261
Hazardous waste, Recycling.
4O CFR Port 271
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation. Hazardous waste, Indian
Innds. Intergovernmental relations,
Penalties, Reporting and recordkeeping .
requirements, Water pollution control.
Water supply.
40 CFR Part 302
Air pollution control. Chemicals,
Hazardous materials. Hazardous
materials transportation. Hazardous
substances. Intergovernmental relations,
Natural resources, Nuclear materials.
Pesticides and pests. Radioactive
materials, Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal Water pollution
control
Dated: September 29.1989.
William K. ReUly.
AJministrator.
For the reasons set out in the
preamble, title 40 of the Code of Federal
Regulations is amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 8905.8912(e). 6921.
8022, and 8838.
r In 1281.32. add the following waste
streams to the subgroup "Pesticides'':
IM1J2
waatea from apecHle
Muwy
and EPA
No.
K191-
IC.T)
duCTon oi flMviyt DfOfMOoi
KI32 ;8oem abeoibert and (I)
•on wio production of inoviyl
Appendix VH to Part 261 (Amended]
3. Add the following entries in
numerical order to Appendix VII of part
201: .
Muttyend
EPA
„
Huardou*
tHucnU for wNch
No.
K131
K132
OMMhyl wHaM, MttM bronM*.
Mrthyl brand*.
Appendix m to Part 281 (Amended]
4. Add the following compounds and
analysis methods in alphabetical order
to Table 1 of Appendix III of part 261:
Compound
Method number*
kMr
•290.8270
•010, MHO. aaeo
PART 271-REOUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
5. The authority citation for part 271
continue* to read as follows:
Authority: 42 U.S.C. 8906.8B12(«). 8928. and
8937.
1271.1 [Amended]
6. Section 271.1(j) Is amended by
adding the following entry to Table 1 in
chronological order by date of
publication:
(IT * *
TABLE 1.—REGULATIONS IMPLEMENTING
THE HAZARDOUS AND SOLID WASTE
AMENDMENTS OF 1984
Promul-
TNeef
n»Qtmr EHtctti
niter. deM
EHectt*
October IMtag Wastes
8, tarn tie
ISM. Produeaonof
Aprie.
F«dee- 1000.
at
benl.
PART 302-OES4GNATKW,
REPORT ABLE QUANTITIES, AND
NOTIFICATION
7. The authority citation for part 302
continues to read as follows:
Authority: Section 102 of the
Comprehensive Environmental Retpoiue.
-------
41408
Federal Register / Vol. 54, No. 193 / Friday. October 6, 1989 / Rules and Regulations
Compensation, and Liability Act of 1980,42
U.S.C. 9602; Sections 311 and 501(a) of the
Federal Water Pollution Control Act. 33
U.S.C 1321 and 1361.
9302.4 [Amended]
8. Table 302.4 of 40 CFR 302.4 is
amended by adding the following entries
in numerical order
Hazardous substance
Kiai
Wastewater from the reactor and spent sulfunc acid from the add dryer in the
production of methyl bromide.
Kia?,, __ ______
Spent absorbent and wastewater solids from the production o) methyl bro-
mide.
CASRN
Regulatory
synonyms
Statutory
RQ
100
1000
Code
4
4
Waste
number
K131
K132
Final RQ
Cate-
9«y
X
X
Pounds (kg)
100 (45.4)
1000 (454)
[FR Doc. 89-23584 Filed 10-5-89; 8:45 am]
BILUNO COOC *MO-«(M«
-------
RCRA REVISION CHECKLIST 69
Reportable Quantity Adjustment
54 FR 50968-50979 . '
. December 11, 1989
(HSWA Cluster II)
Note: On January 8, 1991, an amendment to the preamble of the December 11, 1989 rule was
published in the Federal Register (56 FR 643). This amendment elaborates upon thei Agency's
current position regarding the weight-of-evidence classification of tetrachloroethylene
(perchloroethylene). It does not affect the listing of Waste No. F025 nor the identification of
tetrachloroethylene (perchloroethylene) as a hazardous constituent of F025, both of which are
addressed by this checklist.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
KOTV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART D - LISTS OF HAZARDOUS WASTES
HAZARDOUS WASTES FROM NONSPECIFIC SOURCES
revise listing
for F024
261.31
Industry and EPA
ha/ardous waste No Hazardous waste Haja'd code
Process wastes, including but not limited to. distillation residues, heavy ends. tars, and reactor dean-out wastes, from
me production of certain chlonr-ated aliphatic hydrocarbons by Ire* radical catalyzed processes These chlonnated
aliphatic hydrocarbons are those having carbon chain lengths ranging from one to and including five, with varying
amounts and positions of chlonne substitution (This listing does not include wastewaters. wastewater treatment
siudgos. spent catalysts, and wastes listed in } 261 31 or } 261 32)
(T)
add F025 listing
261.31
EPA hiuvdouc wutt
No.
i oontttuem* for wheh taled
R525 ClUoronwihan*: Ochkxomethane; ThcNoromethane; Carbon tetrachloride; Chtoroethylene; 1.1-Ochtoroetfiane; 1.2-Dicf.toroothane; trans-
1.2-OicNoroethylene; 1.1-OieMorMthytww: 1.1.1-TrtcMorMttwM: l.ti-TnchJofoethane; TichJoroetnytenr. 1.1.1.2-Tetjachkxotma/w.
1.1.£2-Tenacriloroetnanr. TttracNoroetnyWne. PenUcMoroktriane; HeucMoroetnwi*: AVyl daonde O-CNoroprotcne): Dtc.KtxowQ-
P4no; Dlcntoroprapen*; 2-CNof>1.3-butadione; H«x*chloro-1>but*dMne, HmocMoroeyclopenUdMn*: B«nzene. CrJofo6e.-u»n«. Ocr-
taratanxcnt: 1,2,4-Thd*xcb»nitnc: ToVacMorobwutnt. PvnUdilorolMnzMw: H««acf>torotjefuene. TokMO*; NapMrUlcnc.
December 11, 1989 - Page 1 of 2
-------
RCRA REVISION CHECKLIST 69: Identification and Listing of Hazardous
Waste CERCLA Hazardous Substance Designation;
Reportable Quantity Adjustment (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS X
STATE CITATION
jSTAre ANALOQ is:
EQUIV-
ALENT
MORE
'STRINGENT
BROADER
IN SCOPE
APPENDIX VII - BASIS FOR LISTING HAZARDOUS WASTE
add F025 entry
Appendix VII
ha?ffiw!aPNo. HaM«toua«a«a Hratcod.
F02S
Condanaad IgM and*, apart Mtars and Mar aids, and apart daatecanl WMIM Irom ffw producMn of oortam cNomiled (T)
•kphakc hydrocarbon*, by fca« radKal cauhnad proo«*M«. ThoM eMonnaMd akphatic ritrdrocaitona arc Vtoaa having
carbon chain tongth* tangmg tarn ona W and nductng frv«, mnn varyng amounn and powtioni ol etoonn*
APPENDIX VIII - HAZARDOUS CONSTITUENTS
add compound
Cofnfnon nwfw
AMyt chlonde..
Aooendix VIII
Chanvcal abstracu nama
1-ftopana S-chloro . « ^
CHamtcai abstractf No.
107-1S-4
Haiardixj* wuia No
December 11, 1989 - Page 2 of 2
-------
54 FR 50968-50979
Revision Checklist 69
-------
Monday
December 11, 1989
Part VI
Environmental
Protection Agency
40 CFR Parts 261, 271, and 302
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste CERCLA Hazardous Substance
Designation; Reportable Quantity
Adjustment; Final Rule
-------
50908 Federal Register / Vol. 54. No. 236 / Monday. December 11. 1969 / Rulet and Regulation!
ENVIRONMENTAL PROTECTION
AGENCY
•0 CFR Parts Ml. 271, and 302
iWH-FRL-4830-t; EPA/OSW-FR-M-01t|
Hazardous Watt* Management
System: Identification and Listing el
Hazardous Wast* CERCLA Hazardous
Substance Designation; Reportabto
Quantity Adjustment
AQSNCY: Environmental Protection
Agency.
Acnoft Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) today Is amending Its
regulations under the Resource
Conservation and Recovery Act (RCRA)
by listing as hazardous one generic
category of waste generated during the
manufacture of chlorinated aliphatic
hydrocarbons by free radical catalyzed
processes having carbon chain lengths
ranging from one to five (EPA
Hazardous Waste No. P025). EPA Is also
responding to comments on another
generic category of waste (that was
promulgated as an interim final rule on
February 10,1984) generated by the
same process (EPA Hazardous Waste
No. F024); the Agency Is also finalizing
this listing without substantive change.
-Uhough the listing description has been
irified. In addition, the Agency is
ilizing the addition of two toxicants
Appendix VIII of part 281. The effect
of this regulation is that these wastes
will be or will continue to be subject to
regulation, respectively, as hazardous
under 40 CFR parts 281-288.288.270,
271. and 124. This action, however, does
not apply to wastes generated during the
production of chlorinated aliphatic
hydrocarbons that were previously
listed as hazardous on May 18.1980.
In addition, the Agency Is also making
final amendments to CERCLA
regulations in 40 CFR part 302 that are
related to today's final hazardous waste
listing. In particular, EPA is making final
the designation as hazardous substances
onder CERCLA all of the wastes made
final in today's rule and the final
importable quantities that would be
applicable to those wastes.
DATCK Effective Date: The listing of
EPA Hazardous Waste No. FD2S
becomes effective on June 11.1990; the
amended listing for EPA Hazardous
Waste No. F024 becomes effective June
11.1990.
AODMMCK The RCRA docket Is
located at the following address, and is
-<;n from • to 4, Monday through
lay. excluding Federal holidays: EPA
RCRA Docket (Room 2427) (OS-305). 401
M Street. SW, Washington. DC 20400.
The public must make an appointment
by calling (202) 475-0327 to review
docket materiel*. Refer to "Docket
number F-89-CCAF-FFFFF" when
making appointment* to review any
background documentation for this
rulemaklng. The public may copy a
maximum of 100 pages of material from
any one regulatory docket at no cost:
additional copies cost $0.15 per page.
Copies of the non-CBI version of the
listing background document. Health
and Environmental Effects Profiles
(IIEEPs), and not readily available
references are available for viewing and
copying only In the OSW docket. Copies
of materials relevant to the CERCLA
portions of this rulemaking are
contained in Room 2427. U.S. EPA. 401
M St.. SWM Washington. DC 20460. The
docket is available for inspection from
9:00 a.m. to 4:00 p.m. Monday through
Friday. As provided In 40 CFR part 2, a
reasonable fee may be charged for
copying services.
row ruflTHtu INFOHMATION CONTACT:
The RCRA/Superfund Hotline, at (BOO)
424-9348 or at (202) 382-3000. For
technical information, contact Mr. John
Austin. Listing Section. Office of Solid
Waste (OS-333), at (202) 382-4789. For
technical Information on the CERCLA
final rule, contact Ms. Ivette Vega.
Response Standards and Criteria
Branch. Emergency Response Division
(OS-210). Both are available at U.S.
Environmental Protection Agency. 401M
St.. SW., Washington. DC 20480.
SUmjUCMTARY NtFOftMATIOM:
OuttUM
I. Legal Authority
IL Background
HI Summary Of Tha Final Regulation
IV. Response to Comments
A. Clarification of the Scope of the Listing
E Applicability of Rules to Wastes That
Are Recycled
C Praposal to Ust CondeiMable Light End*
O. Evaluation of me Hazardous Properties
of the Wastes
V. Rdattoa to Other Regulations
A. PtopoMd Toxldty Characteristic
a Land Disposal Restriction*
VL Test Methods for Compounds Added to
AppendlcM VU and VIII
VIL Compound* Added to Appendix VIII
VUL CKRCLA Designation and ReportaMe
QMntUtaa
DC. Slate Authority
A. Applicability of Rules ta Authorized
Slates
a Effect on State Authorisation*
X. Compliance Date*
A. Notification
a Permitting
XL Regulatory Impact Analyst*
XII. Regulatory Flexibility Ad
XI1L Paperwork Reduction Act
1. Legal Authority
These regulations are being
promulgated under the authority of
sections 2002(a) and 3001 (b) and (e)(2)
of the Solid Waste Disposal Act. as
•mended 42 U.S.C. 8B12(a) and M21(b|
and |e)(2) |common)y/referred to as
RCRAI. and section 102(a) of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980.42 U.S.C. 9802(a).
IL Background
Pursuant to section 3001 of subtitle C
of the Resource Conserve lion and
Recovery Act (RCRA). this notice
finalizes the listing of two generic
categories of wastes generated during
the manufacture of chlorinated aliphatic
hydrocarbons as hazardous wastes. The
following discussion provides a brief
overview of regulatory actions affecting
the waste* being finalized today.
On August 22.1979 (44 FR 49402). the
Agency proposed, among other things, to
list as hazardous, by generic description.
a number of wastes generated from the
production of chlorinated aliphatic
hydrocarbons. On May 19.1980, EPA
promulgated an interim final rule which
listed as hazardous a number of wastes
from the production of specific
chemicals within the general class of
chlorinated aliphatic hydrocarbons:
however, the generic listing was not
promulgated at that time (see 45 FR
33084).
Then, on February 10.19M (see 49 FR
5308-5315). the Agency, in two separate
actions, proposed the listing of one
generic category of waste and made an
Interim final listing of a second generic
category of waste generated during the
manufacture of chlorinated aliphatic
hydrocarbons ' by free radical
catalyzed processes, which have carbon
chain lengths ranging from one to and
Including five ("Cl-CS").* The category
• TMoriiMtad •llptiattc hydrocarbon*" |«l*a
k»ow« •* -eMortioMd MftutUe»~] nltn to • cU«*
F of HM
eompwHto f«MRNMlM) e
•tarn hydrasm md corboB. -AttptwHc" otttsnilM
(nil ttw dmnted bond bitwM« atwa *IOHM to
•Inch. ***»>. «f
eo»*tart
ban*. (Crete cUphoUc hyd
I ^CBIOfWaalWO^
tetMtdM*.)*
MjaBM ^ SBMMM tfUfffaBPBBSftl BM*atl
Ooaei fJT PBOTv OlllWfWsn EK*VI
• Tk* Asmer a**
MMMDftiM
to tfw •lUptxHc hydrocarbon"
illy PvpteMM with cUoftaW i
MIafi M CI-CS
chtofeMMd *Uph*nc hydrocarbon far Me remom.
nnt OS-CIS cMorfautod (UplMHe hydrocarbom
«• MI prodoeod la risntneMM fMMHy la tho US.
•n
lm*OTtMltjr. tfct UgtMT BMbraUr
ditortMltd smlDii
lypta.tr •• not
-------
Federal Register / Vol. 54. No. 236 / Monday. December 11. 1989 / Rules and Regulations 50969
of waste* that became, effective as
interim final regulations, and thus has
been in effect as EPA I lazardou* Waste
No. F024 since August 10.1984. included
distillation residues, heavy ends. tars.
and nnclor clean-out wastes (49 FR
5308-5312). Today's notice provides the
Agency's response to a number of
comments that were received on the
Interim final rule. Only minor changes to
the F024 listing are being made in
response to these comments.
The proposed listing included light
ends, spent filter and filler aids, and
draiccant wastes (49 FR 5313-5315).
With the exception of light ends, today's
notice finalizes the proposed listing of
these residuals as EPA Hazardous
Waste No. F025. The category of light
ends has been narrowed in scope in this
final rule to include only those light ends
that have been condensed. These
listings also do not include wastes from
those processes that generate
chlorinated aliphatic waste that EPA
listed specifically in 1900—namely EPA
Hazardous Waste Nos. K016, K018,
K019. K020, K028. K029. K030. K095. and
K096.
The basis for both of these actions
was a determination by the Agency that
the proposed and interim final
wastestreams contained a wide range of
potentially carcinogenic, mutagenic.
teratogenic, or otherwise chronically or
acutely toxic chlorinated and non-
chlorinated organic compounds, which
are listed below:
Table t—Toxicantt of Concern
Chloromethane
Dlchloromethane
Trichlorontethane
Carbon tetrachloride
Chloroethylenn
1.1-Dichloroe thane
1.2-Dichloroethane
trana-1.2-Dichloroi!lliyIene
l.1-Dich)oroethylcne
1.1.1-Trichloroethane
1.1.2-Trichloroe thane
Trichioroethylene
1.1.1.2-Tetrachloroethane
1.1A2-Tetrachloroe thane
Tetrachloroelhylone
Pentachloroc thane
Hexachloroelhane
3-Chloiopropene
Epichlorohydrin
CHchloropropane
Dichloropropene
2-Chlore-lJ-butadiene
Hexachloro-1.3-butadiene
Hexachlorocyclopentadiene
Benzene
Chlorobenzene
Dichlorobenzenes
1.2,4-Trinhlorobftnsene
Tetrachlorobnnzene
Pentaehloronnnzene
Hexachlorobenzene
Toluene
Naphthalene
One or more of these toxicants are
typically present In each waul* at
significant concentrations, although
each waste dons not contain all of the
individual toxic constituents of concern.
The Agency originally inferred the
presnnce of these toxicants from
knowledge of free radical reaction
chemistry and from manufacturing
process conditions. In conjunction with
this theoretical predictive methodology,
the Agency obtained representative
samples and confirmed the presence of
Ihcsf contaminants through chemical
analysis. These hazardous constituents
are mobile and persistent, and can reach
environmental receptors in harmful
concentrations If these wastes are
mismanaged. (See the preambles to the
Interim final and proposed rules at 49 FR
5308 and 5313 for a more detailed
explanation of onr basis for listing these
wastes as hazardous.)
On November 8, IBM, the Hazardous
and Solid Waste Amendments of 1984
(USWA) wen enacted These
amendments had far-reaching
ramifications for EPA'a hazardous waste
regulatory program. Section 3001(e)(2).
which was one of the mnny provisions
added by HSWA. directed EPA to make
a decision on whether or not to list
under subsection (b)(l) several wastes,
including chlorinated aliphstics. aa
hazardous. By finalizing these two
chlorinated aliphalics waste listings, the
Agency Is fulfilling Its mandate under
section 3001(e)(2) of RCRA.»
HSWA prohibits the land disposal of
hazardous wastra. It also requires the
Agency to set levels or methods of
treatment that substantially diminish the
toxlcity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the wast*
so that threats to human health and tha
environment are minimized. Wastes that
meet the treatment standards an not
prohibited and may be land disposed. A
tnatment standard is based on the
performance of the best demonstrated
available technologies (BOAT) to tnat
the wasta. For a waste identified or
bated after H3WA was enacted, tha
Agency has fix months to determine
specific tnatment standards which tha
waste must achieve prior to land
disposal. BOAT standards for wasta
" Thftmgnont the fwmlnorf of Ihlj not lev. wl
ffVfaWII'OaM IO IIM flfUl nS1IO|| Of IntMa) I^VV
chtoriiMtod •llph.ltc. »nl«i mrm MM MM| IMfa*
•I •••(• fOM. wbldl WM prwmilMMd •• M bttcrtal
IhMl nrit. iad dM HIM! ttttliif of UM propoMd w*M
FOC9.
F024 were promulgated on June 23.1989.
In the Land Disposal Restrictions for the
Third Third of Scheduled Wastes
Proposed Rule, the Agency is proposing
BOAT standards for waste F023.
III. Summary, of the Final Regulation
This regulation finalizes the listing as
hazardous the following wastes
generated from the production of
chlorinated aliphatic hydrocarbons by
frre radical catalyzed processes, having
a carbon content ranging from one to
and including five, with varying
amounts and positions of chlorine
substitution:
• F024—Process wastes, including but
not limited to. distillation residues,
heavy ends, tan, and nactor clean-out
wastes, from tha production of certain
chlorinated aliphatic hydrocarbons by
free radical catalyzed processes. These
chlorinated aliphatic hydrocarbons an
those having carbon chain lengths
nnging from ona to and Including five,
with varying amounts of positions of
chlorine substitution. (This listing does
not include wastewaten, wastewater
tnatment sludges, spent catalysts, and
wastes listed In | 281.31 or 1261.32.)
• F025—Condensed light ends, spent
fillers and filter aids, and spent
deslccant wastes from tha production of
certain chlorinated aliphatic
hydrocarbons, by free ndlcal catalyzed
processes. These chlorinated aliphatic
hydrocarbons an those having carbon
chain lengths nnging from one to and
Including five, with varying amounts
and positions of chlorine substitution.
Tha major commercial products
produced by tha free radical catalyzed
chemical manufacturing processes of
C1-C5 chlorinated aliphatic
hydrocarbons (from which the listed
residual wastes an generated) include
but an not limited to the following
products?
Table Z—Major Commercial Product*
Carbon tetrachloride
1-Chlorobutane (n-Butyl chloride)
Chloroethane (Ethyl chloride)
Chloroform (Trichloromethane)
2-Chloro-l^-butadiem (Qiloroprene)
Chloromethane (Methyl chloride)
2-Chlnro-2-raethylpropane ((-Butyl
chloride)
3-Chloro-2-methylpropene (Methallyt
chloride)
3-Chloropropene (Ally! chloride)
Dichlorobutadlene
Dichlorobutenea
1,4-Dichlorobutyne
1.2-Dichloroethane (Ethylene dichloride)
Dtchloromethane (Methylena dichloride)
l.t-Dlchloroprapana
1,3-Dlchloropropeno
-------
',0970 Federal Register / Vol. 54. No. 23« / Monday. December H. 1969 / Rules and Regulations
I lexachlorocyclopenladiene
Tetrachloroclhylem (Perehloroethylene)
1.1-Trichloroelhane
.2-Trichloroelhane
chloroethylene (1.1.2- •
. richloroethene)
l.2.3-Trichloropropane
1.2.3-Trichloropropene
Vinyl chloride (Chloroethene)
Vinylidene chloride (1.1-Oiclilorocthene)
EPA bus evaluated the wastes
generated from the production of these
product! against the criteria for listing
hazardous wastes (40CFR 26l.l1(a)(3)).
and has determined that they typically
contain high concentrations of the
constituents of concern listed in Table 1.
that the toxicants are mobile and
persistent in the environment that these
wastes have been mismanaged in the
past, and that many of the toxicants in
the wastes are regulated by other EPA
regulations, as well as by regulations of
other government agencies. The Agency.
therefore, believes thai these wastes are
capable of posing a substantial present
or potential threat to human health or
the environment when improperly
treated, stored, transported, disposed of,
or otherwise managed, and thus are
hazardous wastes.
Additional Information on the hazards
or these wastes and the toxicant
constituents of these wastes may be
•nd In the listing background
.ument and the Health and
ironmental Effects Profiles, available
Jescribed in the "ADDRESSES"
section.
With respect to the proposed listing of
light ends, the Agency also Included a
discussion of Its authority under RCRA
to regulate uncondensed and
unccntainerized gases, which are liquids
at standard temperature and pressure.
The notice did not propose that the light
ends must be condensed: however,
under the proposal the light ends would
have been subject to the applicable
regulations, even when they remain in
the gaseous atate. Based on further
analysis, the Agency now believes that
our authority under RCRA Is limited to
the regulation of only containerized or
condensed gases.
The Agency also added two
componunds, 2-chloro-l ,3-butadlene
(chloroprene) and 3-chloropropene (allyl
chloride), to Appendix VIII of Part 261,
the list of hazardous constituents
identified by the Agency as exhibiting
toxic, carcinogenic, mulagenic. or
teratngenic effects on humnns or other
life forms. (See 49 FR 5311. February 10,
1904.)
rv. Response to Comments
iPA received comments on all aspects
he interim final and proposed
regulations. The comments were
submitted by generators of these wastes.
an association which represents such
generators, and public Interest groups.
The Agency has evaluated these
comments carefully, and has modified
the regulation, as well as the supporting
documentation, as appropriate. This
notice finalizes both the Interim final
and proposed regulations of February
10.1984. This section presents some of
the major comments as well as EPA's
response to many of the comments
received on both of these actions. In
addition to material In this preamble.
the Agency's response to these
comments is also set forth In the revised
listing background document available
in the public docket for this rulemaking
at EPA Headquarters—see
"ADDRESSES" section.
A. Clarification of Scope of the Listing
A number of commenters objected to
the Agency listing these wastes as a
generic class. In particular, the following
comments were made:
1. Before challenging the Agency's
substantive decisions, several
commenters argued that the Agency
lacks the legal authority to list wastes
genetically, citing the House Committee
Report which states "* * * the
Administrator shall promulgate
regulations identifying and specifically
listing those hazardous wastes subject
to this title." (See H.R. Rep. No. 94-1491.
94th Cong.. 2nd Sess. at 56.) One
commenler. however, supported such an
approach, arguing that a waste-by-waste
listing would be very Inefficient and
probably incomplete.
EPA has no doubt as to the legality of
its authority to list wastes generically,
and has already responded to such
challenges (see preamble to part 261.45
FR 33114. May 19. I960).
2. A number of commenters expressed
concern that a generic listing would
create an inequitable situation for those
persons who generate a waste that
would be Included in the generic class.
but which may not be hazardous.
hi reviewing the available data, the
Agency found in all Instances that
wastes that would be Included in the
listing description contained significant
levels of one or more of the hazardous
constituents of concern that would
cause the Agency to consider the waste
hazardous. In fact, the Agency carefully
reviewed the various generic production
processes to ensure that no waste was
mistakenly included In the listing. As
discussed in the listing background
document, the concentrations of the
toxicants of concern were many orders
of magnitude above the levels
associated with human health concerns.
In addition, the solubilities of the
hazardous constituents of concern were
also many orders of magnitude above
the aame levels. Thus, only a small
fraction of the hazardous constituents
present in the wastes need migrate and
reach environmental receptors to pose a
substantial hazard to human health and
the environment.
The Agency used these data in
combination with a methodology based
on free radical chemical mechanisms to
predict that significant concentrations of
toxicants would be present In all of the
wastes from these generic processes. In
no instance did the Agency receive any
comment refuting, or even questioning.
the validity of this predictive
methodology: nor was any analytical
data provided by the commenlers that
would refute the listing. We. therefore.
disagree with the commenters. It should
be noted, however, that If a person does
generate or manage a waste that
contains Insignificant levels of the
various hazardous constituents (i.e.. that
person believes that the waste is
nonhazardous), then the person may
petition the Agency to delist this waste
on a case-by-case basis. See 40 CFR
260.20 and 260.22.
3. Several commenters argued that an
efficient dellsting procedure was not
available for the exclusion of wastes In
the generic class which do not have the
hazardous properties for which they
were listed. They commented further
that even If an efficient procedure were
available, no guidance waa available as
to the criteria, such as concentration
levels of hazardous constituents, used to
determine If a waste was no longer
hazardous.
As discussed above, the Agency does
not believe that the wastes listed In
today's rule would, without treatment
qualify as nonhazardous.
Notwithstanding, the Agency
acknowledges that there were some
historical problems with the delistlng
program. Since 1984, these problems
have mostly been resolved as the staff
has gained experience with the program
and guidance has been developed (see
Petitions to Delist Hazardous Wastes: A
Guidance Manual, April 1985. EPA/530-
SW-85-003) to assist the regulated
community in preparing deUsting
petitions.
4. Several commenters objected to
including m the listing description for
EPA Hazardous Waste No. F024 the
phrase "including but not limited to."
The commenters argued that the phrase
is ambiguous, overly broad, and in
conflict with the language from H.R.
Rep. No. 94-1491. which states that the
Agency should promulgate regulations
-------
•
Federal Register / Vol. 84. No. 236 / Monday. December 11. 1989 / Rules and Regulations 50971
Identifying and specifically lifting
wastes. In addition, the commenters
claimed that no hatard criteria can be
used In evaluating the waste If the
waste is not even Identified.
The Agency disagrees with the
commenters. The listing is sufficiently
specific. The listing description clearly
states that all wastes from the subject
process (except those that are
specifically excluded) are covered by
the listing: the process Is identified
unambiguously in both the Federal
Register notice and in the listing
background document (/'.».. the support
documentation provides • detailed
description that explains the sources In
the process from which the wastes are
generated). Likewise, we have carefully
explained our basis for defining these
wastes as hazardous—namely, that
these wastes are hazardous after
considering the concentration of the
toxicants in the waste, their propensity
to migrate and persist, as well as other
relevant criteria In f 26l.1l(a)(3). As
discussed In the February 10.1964 rule.
many of these toxicants also are
bioBccumulatlve. increasing the risk of
exposure to higher levels of toxicants.
The Agency has evaluated a large
number of waste streams that contacted
the raw materials, intermediates, or
product streams. These wastes contain
significant amounts of the hazardous
constituents of concern. No commenters
provided any data refuting this
information. Also, at it discussed more
fully in the background document, any
wastes generated from new or modified
processes not discussed specifically In
the background document are expected
to generate wastes similar to F024. If
wastes generated by new or modified
procesHcs are significantly different.
then a generator may always submit a
dellsting petition to the delisting
program. The Agency, therefore.
perceives no general difficulties with
Including the phrnse "including but not
limited to" in the listing description.
5. One commenter believed that listing
all spent filters, filter aids, and
desiccants unduly penalized
manufacturers by requiring RCRA
permits when they decontaminate these
materials and return them to the
process. Another commenter argued that
wastes (/.«. spent desiccants, filters, or
filter aids) which do not come into
contact with or derive from the product
line (but which am derived from the
production process) should not be
Included In the generic listings.
With regard to the first point, although
the Agency believes It important to
encourage the recycling, of hazardous
waste, the Agency la guided by the
principle in RCRA that the paramount
and overriding statutory objective of
RCRA is protection of human health and
the environment. The statutory policy of
encouraging recycling is secondary and
must give way if It Is in conflict with the
principal objective. See SO FR 610.
January 4.1985. In addition, where
Congress wished to further the recycling
objective It said so explicitly. See RCRA
section 3014 (recycled oil). Indeed, there
have been a number of Instances of
environmental damage (i.e.,
groundwaler contamination) caused by
improper storage of hazardous wastes
awaiting reclamation. See Appendix A
at 50 FR 650 for a summary of damage
incidents renulting from the recycling of
hazardous wastes. It should be noted.
however, that once the filters.
desiccants. etc.. are reclaimed and
returned to the process as usable
products, these filters, desiccants. etc..
are no longer considered wastes, and so
are not subject to the RCRA subtitle C
regulations. See 40 CFR 261.3(c)(2): see
also 50 FR 634. January 4.1965. Permits
are required for storage prior to
reclamation. See 40 CFR 281.6(c).
As-to the other commenter's point, the
Agency agrees that If a waste generated
from the generic process does not come
into contact with or derive from the
product line (or any raw materials or
wastes), the waste should not be
included in the listing description for
waste FD25. However, the Agency is not
aware nor was any information
provided by the commenter of how a
waste, which is derived from the
production procens, would not come Into
contact with the raw materials,
Intermediates, or wastes.
6. A number of commenters agreed
with the Agency that wnstewaters
derived from these processes should not
be Included in the listing. (One
commenter, however, argued that both
wastewaters and the wastewater
treatment sludges should be listed: see
next comment for details.) The
commenters believe that the wastewater
exclusion would not function as such.
however, since any de minimit losses
that leak or spill from the process would
be washed Into the wastewater
treatment system and would cause the
wastewaters to be hazardous via the
mixture rule. They, therefore,
recommend that the listing be modified
to specifically exclude those de minima
losses that become mixed with the
waslewaters.
The Agency agrees with the
commenters that wastewaters and
wastewater treatment sludges should
not be listed (see 49 FR 8306, February
10.1964, for our basis on this
determination); however. If waste FD24
and F02S is leaked or spilled and then
washed into the wastewaler treatment
system, the Agency believes that the
wastewater should be hazardous by the
mixture rule. The/Agency explained in a
previous rulemaklng its reasons for
excluding and including within the
hazardous waste system mixtures of
certain listed wastes and solid wastes
such as wastewaters (see 46 FR 565R2.
November 17.1981). In particular, in that
rule, the Agency exempted from the
mixture rule certain wastewater
mixtures where the listed hazardous
wastes will be present In such low
concentrations that they do not pose •
substantial hazard to human health or
the environment and often will be
treated In the plant's chemical.
biological, or physical wastewater
treatment system.
The Agency believes that only the
spent solvents (wastes F001-FD05) listed
In | 281.31. the commercial chemiea}.
products listed in 1281.33, and
wastewaters resulting from laboratory
operations (where the wastewater
coming from the laboratory Is a small
percentage of flow Into the wastewater
treatment system) should be covered by
the wastewater mixture axemptloa
because they an seldom principal
wastestreams and often an discharged
In small quantities Into wastewaters as
a practical way of managing them. On
the other hand, the Agency believes that
the other hazardous wastes listed In
I 281.31 (including the F024 and F025
wastes being listed in this rulemnking)
and those listed in 1261.32 typically an
generated in large volumes relative to
the non-hazardous wastewaters
generated at the same plant and. if
mixed with the wastewater. often
constitute a significant portion of the
wastewater mixture, thereby causing the
mixture to pose • substantial hazard to
human health or the environment4
Moreover, as the Agency noted in
exempting mixtures of small quantities
of spent solvents and wastewatar from
the mixture rule. It Is not always
possible to collect and segregate spent
solvents. For example, small spills or
incidental losses from various
degreasing or maintenance operations
around the plant an often difficult to
prevent or control even when careful
••mrmlaflhtlM
FOMmdFD»M*ilK>I
Iknmw. ptocMt »«rtn
(•MfeMFoMmdneS)
•* mrUnti OT
MStHtoiHi )• UN lonMbHon gfeonmtfctal
(.hmilcil pimlum m MM c»»ti«d by Ike F001-HBS
•(Wai MlvMt H*lb«i {•*• SB m S331S. Diewnhwr si.
1SSSI. Thmfon. O» alMtag WMtowatar •!*«<»•
•MmptiMi vow not flppiy lo
Hitod MMIM.
-------
50972 Federal Register / Vol. 54. No. 238 / Monday. December 11. 19OT / Pulea and Regulations
operating procedures are followed. Such
•mall quantities of spent solvents
sometimes drain or are washed into
westewater sewer systems: in certain
circumstances. It Is also reasonable to
discharge these small quantities into the
nearest sewer connected to the
wastewater treatment system. 40 FR at
565&1. In contrast. EPA believes that In a
well-designed and managed
manufacturing plant for chlorinated
aliphatic hydrocarbons, it Is not
unreasonably difficult to prevent small
amounts of wastes from leaking or
spilling into the wastewater system.
Unlike the widespread prevalence of
spent solvents throughout the plant.
F024 and F025 wastes are principal
waste streams and will be removed from
discrete process units and confined and
mnnoged as hazardous wastes when
this rule is finalized. For all these
reasons. EPA believes that It would be
unwise and unnecessary to create an
adJItlonal exemption to the mixture rule
for mixtures of F024 and F025 wastes
and wastewater.
The regulated community miy
petition for an exclusion of any
hazardous waste mixture on a
generator- or waste-specific facials
(which would require representative
r'ata from the industry). At this time, the
Agency does not have sufficient
information to make such a generic
exclusion with the confidence that
>ublic health and the environment
would still be protected; therefore, we
are not modifying the rules. Another
xpproach that the Agency Is considering
to uddress this situation is to establish
da minimit regulatory levels for
hazardous constituents in listed
hazardous waste. Including hazardous
waste mixtures and residues.
7. One commenter stated that the
Agency had sufficient data to list
wastewater and wastewater treatment
sludges at the time of the proposed and
interim final rules. Such evidence was
said to include ten damage cases from
wastewater treatment Ingoons described
in the listing background document
Although many incidents of
contamination of ground water by
chlorinated organica have been
documented as a result of storing or
treating wastewaters In nnlined surface
impoundments, the Agency baa been
able to document only two incidents
which could be tied definitively to the
manufacture of C1-C5 chlorinated
aliphatic hydrocarbons. The incidents
cited by the commenter provide
evidence of the migratory potential of
the hazardous constituents of concern In
nqueous waste. However, tha Agency
'ocs not have sufficient data at this time
lo characterize was'ewaier streams.
which may be highly variable in regard
to constituent concentrations. If the
Agency obtains more data, it will be
able lo fully evalupte waslewatcrs and
wastewaler treatment sludges from
these processes to determine If lh«y
should be listed. Notwithstanding the
possibility of any sur-h future
determination. EPA believes that
today's action satisfies the requirement
In RCRA section 3001|e)|2) lo make a
determination of whether or not lo list
chlorinated aliphatic*. Any future
listings would be pursuant lo EPA's
general authority to list hazardous
wastes under section 3001(b).
8. One commenter believed that the
listing of light ends would be redundant.
since most of the constituents of these
wastes are currently regulated under
i 2fl1.33(f).
The commenler is apparently
confused. 1 lie listing of commercial
chemical products under 1261.33(0 does
not apply to process waste streams.
Rather, these listings cover unused
commercial chemical products, which
become wastes when disposed or are
Intended for disposal. Commercial
chemical products consist of the pure
gride of the chemical, any technical
grades of the chemical, and all
formulations in which the chemical is
the sole active ingredient in a
formulated product. Listing under
I 261.31 covers wastes that are
generated during certain generic
production processes, such as the
manufacture of chlorinated aliphatic
hydrocarbons. Thus, the listing of light
ends In waste F02S would not be
redundant with already listed wastes.
B. Applicability of Rules to Wastes That
an llecycled
Ssveral commenters pointed wit that
several of the wastes may be sold as
raw materials and. therefore, an not
wastes. By listing them, they believed
that there would be an unwarranted
burden imposed on the sale of these
residuals, even If necessary permitting
and delisting procedures were complied
with, thus encouraging customers to buy
other feedstocks. Several other
commenters requested that the Agency
refrain from listing these wastes until It
makes final its recycle/reuse rules.
Tha Agency agrees with the
commenters that In many cases light
ends from the manufacture of C1-C5
chlorinated aliphatic hydrocarbons are
products and an sold as such. However.
this Is not always the case. If. in fact.
light ends are sold as products, then tha
January 4,1985 definition of solid wast*
regulations deal with the question of
which materials being recycled (or held
for recycling) are solid and hazardous
wastes. Sea SO PR 814. Among other
things, the rule states that materials
used or reused as an ingredient in an
industrial process to make new products
(provided the materials are not being
reclaimed), or used or reused as
effective substitutes for commercial
products (again without being
reclaimed), are not solid wastes. (See 40
CFR 2m.2(«J. SO FR 894. and also
preamble discussion at 50 FR 837.) If
these residues (regardless of whether
they are listed) are recycled in Ihia
manner, they are not considered solid
wastes and therefore by definition are
not hazardous wastes. See 40 CFR 2814.
However, these materials may still be
solid and hazardous wastes if: (1) They
are used/reused In a manner
constituting disposal or used to produce
products that are applied to the land: (2)
they are burned for energy recovery or
used to produce a fuel: (3) they are
reclaimed; or (4) they are accumulated
speculatively. Sea 40 CFR 281.2(e).
(Since the recycle/reuse rules have
already been promulgated, the second
comment is moot.)
C Proposal to Lit! Condensable Light
End*
Several commenters objected strongly
to the Agency's proposal to list light
ends which are In the gaseous state but
condensable by currently feasible
technology to liquids at ambient
temperature and pressure. The following
arguments were offered.
Seven) commenters stated that the
Agency does not have authority under
RCRA to regulate gaseous process
emissions, since these are not solid
wastes (/.A, they an not "contained
gaseous material") as stated in the
definition of solid waste. See RCRA
section 1004(27). One commenter.
however, supported the Agency by
saying the proposal to regulate
condensable light ends does not reflect
In any way upon previous Agency policy
applicable to contained gaseous
materials, since thesa condensable light
ends an not gaseous materials in tha
first place. Some commenters expressed
tha opinion that circumvention of
regulation under RCRA by heating
wastes to tha gaseous state could be
prevented by currant permitting
procedures.
Other commenters claimed that the
fact that the Agency had previously
listed light ends which wan generated
in the gaseous state did not empower
the Agency to take similar action at a
later date. One commenter also stated
that the reason tha phthallc anhydride
listing of wastes K023 and KOB3 wan not
-------
Federal Register / Vol. 54. No. 236 / Monday. December 11. 1MB / Rules and Regulations 50973
questioned In 1980 was became. •! Ihel
lime, It we* evtumed thel the lifting
only applied to the light ends In the
condensed state. One commenter further
argued that the phlhalic anhydride light
ends listing was not analogous, since the
phthallc anhydride light ends contained
malelc anhydride and phlhalic
anhydride, which was emitted from the
process as partlculates.
In addition, commenters objected to
regulation under RCRA of gaseous
emissions for other reasons. Including
that permitting would have a significant
economic impact: that there currently
are no standards for floret (and
subsequently, permitting would be
difficult): that regulation of fugitive
emissions of gaseous liquids from valves
and pipes might follow regulation of
gaseous light ends under RCRA: that
condensation of light ends to ambient
temperature could cause equipment
corrosion: and that the Agency had not
adequately characterized these gaseous
emissions.
In its proposal, the Agency explained
that It believed that the exclusion from
RCRA of gaseous materials that are not
contained applied only to "true gases"—
namely, those which are not capable of
being condensed and which remain
gaseous at standard temperature and
pressure. Our concern was that a plant
could evade regulation by designing •
process to keep the process emissions In
o gaseous state. See 40 FR 5314,
February 10,1964. Such a result could
create human health and environmental
concerns. For example, in the Bhopal
Incident • volatile liquid (methyl
isocyanate) escaped confinement from •
storage tank in a situation analogous to
the storage of condensed light ends.
Upon reconsideration of this issue
(with the benefit of the comments
received on the proposed rulemaldng).
EPA now believes our authority to
identify or list a waate as hazardous
under RCRA Is limited to containerized
or condensed gases (/.«* section 1004(27)
of RCRA excludes all other gases Iron
the definition of solid wastes and thus
cttnnot DC considwvd pf****wfitf
wastes).*
HClMfMtlOH M£MMDOfWf TOHMHW M HWCL BOB ^f
M sir pollution control owtaM pwwMit to
nsoUMoM MdOT th* dm Air Act Hwjr art
B VfJIICWOOJl) nWB VslfVOMe)
.ePAcoadwMttuLfa
S«MraL ROM tUndimli do Ml «pp»y to fan
SM| to «o< • MlM
•MfaflhtalSn.2.
M Vw MtaNtan
EPA. therefore, has decided not to
regulate these uncondensed light ends.
In the case of chlorinated aliphatic
hydrocarbon manufacture, the Agency
knows that manufacturer! typically
employ condensation devices In
conjunction with distillation equipment.
since the condensable fraction of these
emissions is either a valuable product or
recyclable feedstock material. If the
light ends are condensed and reused to
make new products or effective
substitutes for commercial products.
they will not be considered solid or
hazardous wastes, as long as they have
not been reclaimed and they do not
meet the criteria specified in | 261.2(e).
See 50 FR 637. If every disposed (prior to
any such reuse), however, these
condensed light ends would be
considered • solid waste and subject to
today's listing. Consequently, our
decision should not present an
environmental concern.
Although we agree with the
commenter that heating wastes to the
gaseous state Is subject to regulation
under RCRA as treatment of hazardous
waste, the Agency believes that It
cannot use Its current permitting
procedures to mandate the production
process design of a manufacturing
facility so that It generates a waste as a
liquid instead of (for example) Installing
some Internal heating mechanism that
generates the same liquid waste in the
gaseous state. RCRA Jurisdiction does
not provide this kind of control over
manufacturing processes. Of course.
thermal threatment after a material
becomes a hazardous waste is fully
regulated under RCRA.
The Agency also agrees with the
commenters mat citing the phthalic
anhydride light ends listing raises
substantial questions with respect to
establishing precedents. We have.
accordingly, deleted references to It In
the listing description and preamble.
D. Evaluation of the Hazardous
Properties of the Waste*
Other comments expressed specific
concerns with the Agency's evaluation
of the hazardous properties of the
wastes, either through Its lexicological
evaluations of individual hazardous
constituents. Its projection of
concentration levels of constituents in
the wastes, or its analysis of the ability
of the constituents to migrate from the
wastes.
1. Two commenters stated that some
of the conclusions reached by the
Agency do not accurately reflect the
present state of knowledge of the
oncogenlc properties of the constituents
in these wastes. They commented that
the Agency did not attempt to clarify the
level of risk (of carcinogen*) or to
provide substantiation of its conclusions
that the Carcinogen Assessment Croup
(CAC) assessment documents on which
the Agency relied/are consistent with
"current levels of knowledge and
existing data": they also stated that the
Agency should have used weight of
evidence characterizations in Its
assessment of the potential hazards of
these compounds. In particular, the
commenters asserted that the Agency
should not have judged constituents to
be "potential human carcinogens" when
the evidence for carclnogenlcily for
several of these chemicals would fall
into "Croup 3: chemicals * * * which
* * * cannot be classified as to their
carcinogenlcity to humans."
The agency's judgment on the
potential carcinogenic and toxic effects
resulting from continued low-level
exposure to the constituents of concern
are outlined In the Health and
Environmental Effects Profiles for each
constituent of concern. The major health
concerns are summarized in the listing
background document The commenter
gave no specific criticism that EPA's
facts do not "reflect the present state of
knowledge." (other than that noted
above) and did not provide any
additional data or other Information to
challenge the basis for EPA's decision to
list We are, therefore, unable to
respond to this criticism. (It should be
noted that the Agency has reviewed
more recent studies addressing these
constituents, and finds that this
Information corroborates the Agency's
original decision to list This Information
has been summarized and placed in the
docket.)
With respect to the "weight-of-
evidence" argument the Agency
promulgated guidelines for carcinogenic
risk (see 51 FR 32656. September 24.
1966) which Incorporates an assessment
of the quality of experimental data for
the overall hazard assessment for
carcinogens. These guidelines specify
the following five classifications:
ofra(*uflid*nt
evidence from epMemtologic stadias)
tarap 8-frobabta human carcmoesa
Croup ft—Uallad evidence of
Group Bb—A combination of raffldent
evidence to animals and Inadequate or
ao evidence to humans
Group C—Possible human cardnofen
(limited evidence of csrdnogenidty In
me absence of human data)
Croup D—Not classifiable as to human
cardiweenldtv (Inadequate human and
animal evidence of cardnofmidly or no
dsta available)
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50971 Federal Register / Vol. 54. No. 238 / Monday. December 11. 1969 / Rules and Regulations
Croup E — Evidence of non-cnrdnoymlcily for
humans (no evidence of carchiogcnicily
in at lent two adequate animNl leali in
dlfferenl specie* or In both adequate
epidemlolpgic and aninml atudira).
The Agency regard* agenfa classified
in Group A or B as suitable for
quantitative risk assessment. The
nuitability of Croup C agents for
quantitative risk assessment requires a
case-by-case review because some
Croup C agents do not have a data base
of sufficient quality or quantity to
perform a quantitative carcinogcnir.ity
risk assessment. The weighl-of-evidence
basis was used to eliminate Croup D
and E constituents from further
consideration as carcinogen*.
Application of these guidelines shows
that benzene and vinyl chloride are
considered "carcinogenic to humans".
the weight of evidence for
carcinogenicity falling into class A. For
the following hazardous constituents of
concern, the weight of evidence for
carcinognnicity is considered to fall into
class B2. Thus, these compounds are
considered to be probably carcinogenic
I o humans:
Cmbon tetrnr.hloriHe
1.2 Dichiofoethane (Ethylene dichloride)
IHchloromethana (Melhylene chloride)
Fpichlorohydrin (l-Chloro-2. 3-epoxypropane)
I lexachlorobensene
itlpha-Hexachlorocyclohexane
;amma-Hexachluracycloliexane
IXrachloroethene (Perchloroethylene)
rrichloroethene (Trichloroethylene)
rrichloromethana (Chloroform)
The following constituents of concern
are considered to be possible human
carcinogens (class C):
l.1-Uichloroethftne (Vinylideiie chloride)
Imla- Hexachlorocycloh'ixnne
dclta-liexachlorocyclohexanc
I lexachloroelhane
1.1.2.2-Tetrachloroethane
1.1.2-Trichloroethana
The listing background document has
lieen modified to indicate the carcinogen
class for each constituent of concern.
2. Several commenters argued that the
discussion in the listing background
document was not sufficiently specific
to determine the routes of exposure by
which the hazardous constituents exert
their toxic effects. They further argued
that one cannot conclude that health
effects from ingestion and inhalation are
the same.
The Agency agrees that the
assessment of the risk to human health
resulting from improper disposal of
wastes ideally should take into account
the various routes of exposure. Since
most of the toxicants of concern in these
vastes have relatively high vapor
treasures, they are likely to be emitted
to the air from most waste manngement
practices. In addition, the solubilities
and environmental persistence of these
compounds are sufficiently high to cause
contamination of ground and tut face
water (see the-damage Incidents
described in, the listing background
document).
Finally, since rinks based on exposure
from ingestion fully support the listing of
these wastes as hazardous, it would be
redundant and therefore not necessary
to consider the hazard posed by other
routes of exposure, such as inhalation.
3. Two commenters did not agree with
the Agency's comparing concentrations
of hazardous constituents in wastes as
"orders of magnitude greater than" the
AWQC. One commenter gave the
example of a tar waste that is rock hard
when cool, and suggested-that-the -
Agency use the aqueous solubility of
hazardous constituents as a criteria for
listing, and not simply a comparison of
the total concentration of a constituent
to a comparison of the AWQC
The Agency recognizes the
importance of matrix effects on the
extent to which hazardous constituents
ran be expected to lunch from a waste.
Accordingly, the Agency has developed
a leaching test (the Toxicity
Characteristics Leaching Procedure, or
TCLP), which can be used as an
indicator of the leachabitity of certain
constituents from wastos. As part of the
proposed Toxicify Characteristics (see
June 13.19M. 51 FR 21640). the leaching
test would be used to identify wastes
that clearly pose hazards due to their .
potential to leach specific hazardous
constituents at levels that could harm
human health through contamination of
ground water. While several of the
hazardous constituents for which wasta
F024 and F025 are being listed are
among those that are proposed to be
included in the Toxicity Characteristics.
many are not. Therefore, a mote
qualitative assessment of hazard was
used for this listing.*
In this assessment, we first assume
that the potential for hazardous
constituents to migrate from an organic
waste Is generally correlated to the total
concentration of the constituents in that
wastes (/.«.. the higher concentration of
the constituents in the waste, the higher
• It ihiwM be noted that the hiuntaw watte
cheracleriallca contained In euhpart C of pert Ml
(••it.. the Toxidly Charectertatica) mn "feneric" hi
(hut they apply to all aolld waatra and do not raflad
consideration of nnlqm anpeett of certain
waitoalnanw. Thua. Ida eonelderaltan el Iheaa
•nlque aanacla (volume of wnale fenerated. ilamafa
tnrtitmli. etc) mny lead In the cnndunion thai a
wait* to kaiardona and thould be Hated hi aubpart
D of pert SSI. even If H dooa not exhibit any of the
haxardova waale characterldlca.
the concentration of the constituents is
likely to be in the leachate from the
waste). Second, we also consider the
solubility of the contaminants in the
waste. As Indicated in the proposal and
in the Interim final rule, the solubilities
of the constituents pf concern are many
orders of magnitude greater than the
AWQC (a suggestion made by the
commenter). Finally, we evaluate
empirical evidence demonstrsling that
significant environmental exposures
have resulted from leaching of
hazardous constituents from similar
wastes. This has been seen in numerous
damage incidents from wastes
containing the chlorinated toxicants of
concern. In addition, a physically similar
coal tar used for lining and sealing tanks
for drinking water (a cohesive tarry
substance) was found to leach
substantial concentrations of relatively
water insoluble polynuclear aromatic
hydrocarbons (PAHs). such as
benzo(a|pyrene, into water.
These facts demonstrate that the
hazardous constituents at issue here are
capable of migrating even from a fairly
stable wasta matrix. We believe.
therefore, that our assessment Is
accurate with respect to the potential for
hazardous constituents to leach from all
of the wastes described by this listing.
4. Several commenters questioned our
conclusions regarding the toxlcities of
specific hazardous constituents. The
Agency has carefully reviewed the
comments but still believes those
toxicants are of concern. See the listing
background document for specific
responses to these comments.
Since the public comments on the
proposed and interim final regulation*
have not refuted or seriously called into
question the Agency'* initial basis for
listing wastes generated during the
manufacture of chlorinated aliphatic
hydrocarbons by free radical catalyzed
processes having carbon chain length*
varying from one to and Including five.
we are today finalizing the listing of
F02S as well as FO24 In 40 CFR 261.31
(only minor changes are being made to
the listing of F024).
V. Relation to Other Regulations
A. Pwpoted Toxicity Characterittic
As one of the mandate* of HSWA, the
Agency proposed to expand the Toxidty
Characteristic (TC) by including
additional toxic organic chemicals.
Under the June 13,1986 proposal, the
hazardous wasta listings In subpart D of
40 CFR part 261 would not be affected.
All the listings would remain In effect
Including those listing* that ware based
on the presence of TC constituents. It Is
-------
Federal Register / Vol. 54. No. 236 / Monday. December 11. 1989 / Rules and Regulations 50975
EPA's intention that the hazardous
waste listings would continue to
complement the TC. Once promulgated.
the TC might capture wastes generated
by the chlorinated aliphatic! industry
that are not covered by wastes F024 or
F02S. Such wastes could Include
wastewatera and wastewaler treatment
sludges.
B. Land Disposal Restrictions
IISWA mandated land disposal
restrictions for wastes listed prior to the
enactment of IISWA under a specific
schedule (see SI FR 19300, May 28,
1988). If the Agency failed to prohibit the
wastes within the period specified, the
wastes were restricted from land
disposal. Waste F021 which was Interim
final effective August 10.1984. was
included in the second third to be
evaluated for land disposal restrictions.
The final rule promulgnting treatment
standards for the second thirds wastes
included treatment standards for waste
F024 (see 94 FR 28594. June 23.1989).
Although the Agency listed
Hazardous Waste No. F024 under an
interim final rule prior to the enactment
of HSWA. the Agency nonetheless took
comment on that action. Today's action
responds to comments received on that
interim final rulemaklng and finalizes
our determination under IISWA 3001 (e)
to list Hazardous Waste No. F024.
Today's action on F024. which does not
alter the listing or its substances, but
only clarifies its description, does not
alter the Agency's June 23,1989
determination in regard to the land
disposal restriction.
Furthermore. IISWA also requites the
Agency to make a land disposal
prohibition determination for any
hazardous waste that Is newly identified
or listed in 40 CFR part 261 after
November 8,1984 within six months of
the date of identification or listing
(RCRA section 3004(g|(4), 42 U.S.C.
6924(g)(4)). In the Land Disposal
Restrictions for the Third Third of
Scheduled Wastes Proposed Rule, the
Agency is proposing a treatment
standard for Hazardous Waste No. FD2S.
VI. Teat Methods for Compounds Added
to Appendices VII and VfD
Most of the substances designated in
this final rule as hazardous constituents
are currently listed In table 1 of
appendix III of 40 CFR pnrt 281. which
designates the test methods that can be
used when characterizing wastes for the
purpose of delisting.
On October 1.1984 (49 FR 38786). the
Agency proposed several changes to the
RCRA hazardous wastes regulations.
Including the addition of new methods
to SW-046. After evaluating the
comments, the Agency decided not to
promulgate the October 1,1984 proposal.
Instead, the Agency revised SW-846 to
incorporate many of the suggestions
made in the comments, which were
made available In the Third Edition of
SW-4M6 (40 FR 8072. March 18.1987). On
January 23.1989 (54 FR 3212). the
Agency proposed, among other things.
new and revised methods in the Third
Edition of SW-«4«. the first update
package to the Third Edition, and
expansion of table 1 of Appendix III of
40 CFR part 281. Once finalized, these
methods may be used to determine
whether a sample contains a given
Appendix VII or VIII toxic constituent.
However, until the Third Edition of SW-
846 Is made final, the Second Edition as
amended by Updates I and H. and the 47
methods that were finalized September
29.1989 (54 FR 40200), remain as the
approved methods for meeting
regulatory requirements under substitle
C of RCRA.
These methods are in "Test Methods
for Evaluating Solid Waste: Physical/
Chemical Methods." SW-846,3rd ed-
September. 1988, as amended: available
from Superintendent of Documents,
Government Printing Office.
Washington. DC 20402. (202)783-3238.
Document No.: 955-001-00000-1.
VII. Compounds Added to Appendix
VIII
On February 10,1984 (49 FR 5311), the
Agency made interim final the addition
of two compounds. 2-chloro-1.3-
butadiene (chloroprene) and 3-
chloropropene (allyl chloride), to
Appendix VIII of part 201. the list of
hazardous constituents identified by the
Agency as exhibiting toxic.
carcinogenic, mutagenic. or teratogenic
effects on humans or other life forms.
These are two of the hazardous
constituents for which wastes F024 and
F025 are listed. No comments were
received on this rule. Therefore, these
two compounds will remain listed on
Appendix VIIL However, In a notice of
technical corrections to I 261.33 and
Appendix VIII (S3 FR 13382. April 22.
1988). the Agency inadvertently deleted
allyl chloride from Appendix VIIL In
today's action. EPA is making a
technical correction to once again
Include allyl chloride In Appendix VIM.
VIIL CERCLA Designation and
Reportable Quantities
All listed hazardous wastes, as well
as any solid waste that meets one or
more of the characteristics of a
hazardous waste (MS defined In 40 CFR
261.21 through 261.24). are hazardous
substances as defined at section 101(14)
of CERCLA. CERCLA hazardous
substances are listed in Table 302.4 at 40
CFR 302.4. along wllh their reportable
quantities (RQs). CERCLA section 103(n)
requires that persons In charge of
vessels of facilities from which a
hazardous subMance has been released
in a quantity that is equal to or greater
than its RQ immediately notify the
National Response Center of the release
(at (800) 424-8802 or In the Washington.
DC metropolitan area it (202) 426-2675).
In addition, section 304 of'the Superfund
Amendments and Reaulhorization Act
of 1988 (SARA) requires the owner or
operator of a facility to report the
release of • hazardous substance to the
appropriate Slate emergency response
commission (SERC) and to the local
emergency planning committee (LEPC)
when the amount released equals or
exceeds the RQ for the substance.
According to the "mixture rule"
developed in connection with the Clean*
Water Act section 311 regulations and
also used for notification under
CERCLA and SARA (50 FR 13463. April
4.1985), the release of mixtures must be
reported when the amount released
equals or exceeds the RQ for the waste.
unless the concentrations of the
constituents of the waste are known.
When the concentrations of the
individual constituents of a hazardous
waste are known, the release of the
hazardous waste would need to be
reported to the NRC and to the
appropriate LEPC and SERC when the
RQ of any of the hazardous constituents
is equaled or exceeded. RQs of different
hazardous substances are not additive
under the mixture rule (except for
radionuclides. see 54 FR 22536, May 24.
1989), so that spilling a mixture
containing half an RQ of one hazardous
substance and half an RQ of another
hazardous substance does not require a
report.
On August 10.1964. the effective date
of the interim final rule, waste stream
F024 became a CERCLA hazardous
substance with a statutorily imposed
one pound RQ. A one pound final
adjusted RQ for waste stream F024 was
promulgated on August 14.1989 (54 FR
33428). As concerns F02S, when today's
rulemaking becomes effective, waste
stream F025 will automatically become
a CERCLA hazardous substance by
virtue of its listing under RCRA. Under
section 102(b) of CERCLA. a hazardous
substance has a statutorily imposed RQ
of one pound unless or until adjusted by
regulation. In order to coordinate the
RCRA and CERCLA rulemakings with
respect to new waste listings, the
Agency today Is adding waste F025 to 40
CFR 302.4. the codified list of CERCLA
-------
50978 Federal Register / Vol. M. No. 236 / Monday. December 11. 1989 / Rules and Regulation
hazardous substances, and listing ill
Blatulory RQ of one pound.
\. Slate Authority
I. Applicability of Rules in Autlxvieed
otatct
Under tection 30ne of RCR A. EPA
may authorize qualified Slates lo
administer and enforce the RCR A
program within Ihe Slate. (See 40 CFR
part 271 for Ihe standards and
requirements for authorization.)
Following authorization. EPA retains
enforcement authority under sections
3006,3013. and 7003 of RCRA. although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendments of 1904 (MSWAJ, a
State with final RCRA authorization
administered Its authorised hazardous
waste program in lieu of EPA. The
Federal requirements no longer applied
in the authorized Slate, and EPA oould
not Issue permits for any facilities in the
State that the Stale was authorized lo
permit When new. more stringent
Federal requirements were promulgated
or enacted, the State was obliged to
enact equivalent authority within
specified lime frame*. New Federal
requirements did not lake effect in an
authorized State until the Stale adopted
the requirements as State law.
In contrast, under section 300B(g) of
-------
Federal Regiiler / Vol. 54. No. 236 / Monday. December 11. 1969 / Rulei and Regulation! 80977
Ih* facility hits lo do so. interim status
will terminate cm Ihnl date.
All exlillng hazardous waste
management facilities (as defined In 40
CFR 270.2) that treat, flora, or dispose of
F024 and F02S and thul arc currently
operating pursuant lo Interim Haltii
under tecllon 9005(c) of RCRA. mm! file
with EPA an amended part A permit
application by |une 11.1090. in
accordance with I 270.72(a).
Under current regulation!, a
hnrardoui waste manngemenl facility
thai ha* received a permit pursuant lo
section 3005 It not able to treat, •tore, or
dispose of P024 or F025 when the rule
become* effective on June 11.1990. until
a permit modification allowing such
activity hat occurred in accordance with
12T0.42(g). Note Ihnt ETA hat recently
amended the permit modification
procedures for newly listed or identified
wantei. For more detail! on the permit
modification procedure!, pee 53 FR
37912 ft MO. (September 28.1986).
XI. Regulatory Impact Analyala
Under Executive Order 12291. EPA
muit determine whether a regulation U
"major" and. therefore, subject to the
requirement of a Regulatory Impact
Analyili. The tola! additional Incurred
coat for dlipotal of the wallet added by
thin rule. It lest than f W.OOO. well wider
the $100 million constituting a major
regulation. Thlt Insignificant coil it
partly dm to the fact that watte F024
hat been regulated at hazardoui tinea
1004 and therefore there thould be no
additional coit to comply with Ihit rule.
The coil for waate F025 result! from
minimal compliance requirement! at
these wattet are being handled at If
they were hazardmta (primarily due to
theJr containing tlmilar toxic
constituents at F024) by moil of the
generator*, who have Interim ttatut or
part B permit!. These generator* will
Incur minimal increased costs for permit
modifications, chemical analysis, and
reoordkeepinf. Thlt cott I* much lew
than the estimated cost of SIS million
elated In the proposed rule. This coil
wat bated on conservative atiumpllont
Including lhat these wallet would be
managed for the first lime ai hazardous.
Since EPA does not expect lhal the
amendment! promulgated here will have
an annual effect on the economy of 8100
million or more, result In a measurable
Increase In cost or prices, or have an
adverse Impact on the ability of U.S.-
baaed enterprises lo compete In either
domestic or foreign markets, them
amendments are not considered lo
constitute a major action. At such, a
Regulatory Impact Analyilt It not
required.
XII. Regulatory Flexibility Act
Puriuanl lo the Regulatory Flexibility
Act. 5 U.S.C. tecliont 001-412. whenever
an agency It required to publish a
general notice of rulemaklng for any
proposed or final rule. It must prepare
and make available for public comment
a regulatory flexibility analytli lhal
detcrlbei the Impact of the rule on small
entitles (i.e.. tmall businesses, imall
organizations, and amall governmental
Jurisdictions). No regulatory flexibility
analysis Is required, however. If the
head of the agency certifies that Ihe rule
will not have • ilgnlflcant economic
Impact on • lubslantlal number of tmall
entltiet.
The hazardous wastes listed here are
not generated by small entitle! (ai
defined by Ihe Regulatory Flexibility
Act), end the Agency received no
commend that smell entltiet will
dispose of them In ilgnlflcant quantities.
Accordingly. I hereby certify the! thli
regulation will not have a ilgnlflcant
economic Impact on a luuilantlal
number of email entitle!. Thlt
regulation, therefore, does not require •
regulatory flexibility analytls.
XIIL Paperwork Reduction Ad
Thto rule doe* not contain any
Information collection requirement!
aubject lo OMB review under the
Paperwork Reduction Act of I860. 44
U.S.C.aS01rfa0a.
4OCfH Port 281
/ ,
Hazardous materials. Waste
treatment and diipotaL Recycling.
40 CFR Port 271
Administrative practice and
procedure. Confidential business
Information, Hazardous materials
transportation. Hazardous waste. Indian
lands. Intergovernmental relation*.
Penallle*. Reporting end recordkeeplng
requirement*. Water pollution control
Water aupply.
40 CFR Part 303
Air pollution control. Chemicals.
Hazardous materials. Hazardous
material! transportation. Hazardous
substances. Intergovernmental relation*.
Natural resources. Nuclear material*.
Pesticides end petit. Radioactive * '
materials. Reporting and recordkeeplng
requirement*. Superfund. Watte
treatment and disposal Water pollution
control.
Dated: November 29. 1MB.
WllBasft K. Rally.
AdmiitMntor.
For the renioni if I out In the
preamble, title 40 of Ihe Code of Federal
Regulation* It amended as follows:
PART »1— IDENTIFICATION AND
LISTING Of HAZARDOUS WASTE
1. The authority citation for part 281
continue* to read •• follow*:
Authority: 42 U AC 8906, 8B12(a). 6021.
|MU1
2. In 1281.31. revlie the lilting
description for EPA hazardou* waate
No. F024 to read •• follow*:
haavaew
FOM
iVMOUML ••wWflf M^ M**t W
(tMs H»*j son nsl
fei|MfJt«i|NtJ>4.
3. In 1261 Jl. add the following watte
stream:
-------
SO879 Federal Reglater / Vol. 54. No. 238 / Monday. December 11. 1989 / Rules and Regulations
XJ2S OomtKiMd tgN «ndi. apinl »»r» «nd m* at*. «nd «*n Omron *•**» tnm aw yrodurton rt c«rt»n eKB»ti»t»l (T)
" " " " "
on> to flntf andudataj ffwaX pWi wynQ
Appendix VJHAm«neca«on» ProduMd «r FFN RMfcai C*Mr*M «* FH _ JIM 11. 1SOO
PART 302—DESIGNATION. Aalaorlljr:Se«.10l(1K!«)«ndia2(b)of the 1*02.4 (Amended]
REPORTABLE OUANTmES, AND CompnheMive Environmental Rctponsn, . o^~{\m 302.4 u amendcd by addini
NOTIF1CATIOM '" *• WMtt «™m ™*!° Tibte Xi4'
S. The authority citation for part 302
continues to read as follows:
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Federal Register / Vol. 54. No. 236 / Monday. December 11. 1969 / Rules and Regulations 50979
TABLE 302.4.— LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITCS
F0»
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|FR Doc. W-28483 Filed 12-S-89:8:45 »m]
-------
RCRA REVISION CHECKLIST 70
Changes to Part 124 Not Accounted for by Present Checklists
48 FR 14146-14295, April 1, 1983 /
48 FR 30113-30115, June 30, 1983
53 FR 28118-28157, July 26, 1988
53 FR 37396-37414, September 26, 1988
54 FR 246-258, January 4, 1989
(Non-HSWA Cluster VI)
Note: Part 124 was affected by the deconsolidation of EPA's Consolidated Permit Regulations (48
FR 14146, April 1, 1983). In reprinting the Part 124 in the FR. a number of typographical errors
and inadvertent omissions of paragraphs were made. On June 30, 1983 (48 FR 30113) and on
January 4, 1989 (54 FR 246), these errors were corrected so that most of Part 124 again reads
as it was originally printed in the July 1, 1982 CFR. Of the changes made by the April 1, 1983
article, only those which were not negated by the June 30, 1983 or January 4, 1989 articles are
included in this checklist. Similarly, only those changes made by the June 30, 1983 or January 4,
1989 notices which are not merely corrections of errors in the April 1, 1983 article have been
included in this checklist.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
oTAifc ANALOG is:
'BOO iv-
ALENT
MORE
STRINGENT
' BROADER
IN SCOPE
PART 124 - PROCEDURES FOR DECISION MAKING
SUBPART A - GENERAL PROGRAM REQUIREMENTS
APPLICATION FOR A PERMIT
1 change cross-
references regarding
RCRA Dermrts
124.3(a)
124.3(a)(1)
124.3(a)(2)
124.3(a)(3)
MODIFICATION, REVOCATION AND REISSUANCE. OR TERMINATION OF PERMITS
1,2 change cross-
references regarding
RCRA
124.5(a)
124.5(0(1) & (3)
124.5(d)
DRAFT PERMITS
1 change cross-
references regarding
RCRA Dermrts
124.6(d)(1H3)
Various Dates - Page 1 of 2
-------
RCRA REVISION CHECKLIST 70: Changes to Part 124
Not Accounted for by Present Checklists (cont'd)
1
FEDERAL REQUIREMENT
change "§ 122.28" to
"Section 270.30"
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
6T ATE ANALOG IS:
EOUIV- / MORE I
ALENT STRINGENT I
BROADER
IN SCOPE
124.6(d)(4)m
PUBLIC NOTICE OF P
delete "and other
appropriate govern-
ment agencies"; add
"(Indian Tribes)" after
"States"; add paren-
thetical statement
regarding Indian Tribes
treated as States
redeslgnate old
124.10(c)(1)(viii)(A)-(C)
as 124.10(c)(1)(ix)
(AMC)
redeslgnate old
124.10(c)(1)(ix)
(A) and (B) as
124.10(c)(1)(x)(A) and
(B); delete "For RCRA
permits only"
ERMIT ACTIONS AND PUBLIC COMMENT PERIOD
1 24.1 0(c)(1 MR)
124.10(c)(1)(lx)
124.10(cU1)(x)
•
4,5
PUBLIC HEARINGS
6 insert "," after
"whenever"
124.12(aH2)
1
48 FR 14146-14295, April 1, 1983.
2 Checklist 54 made additional changes to 124.5(c)(1) and (3) at 53 FR 37410 (September 28,
1988). State which have adopted the provisions addressed by that checklist should have
already made those changes. States which have not adopted the provisions addressed by that
checklist should refer to that checklist when revising this section of code.
3 53 FR 37396-37414, September 26, 1988.
4 53 FR 28118-28157, July 26, 1988.
5 48 FR 30113-30115, June 30, 1983.
6 54 FR 246-258, January 4, 1989.
Various Dates - Page 2 of 2
-------
54 FR 14146, 14264-14295
54 FR 30113-115
54 FR 39611-39623
54 FR 37396-37414
54 FR 28118-28157
54 FR 246-258
Revision Checklist 70
-------
14146
Federal Register / Vol. 48, No. 64 / Friday, April 1.1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122, 123,124,125,144,
145,146, 233, 260,261, 262, 263, 264.
265,270, and 271
[FRL 2293-5)
Environmental Permit Regulations:
RCRA Hazardous Waste; 5DV/A
Underground Injection Control; CWA
National Pollutant Discharge
Elimination System; CWA Section 404
Dredge or Fill Programs; and CAA
Prevention of Significant Deterioration
AGENCY: Environmental Protection
Agency.
ACTION: Final Rule.
SUMMARY: This rule reorganizes the
presentation of permit program
requirements governing the Hazardous
Waste Management program under the
Resource Conservation and Recovery
Act (RCRA), the Underground Injection
Control (UIC) program under the Safe
Drinking Water Act (SDWA). the
National Pollutant Discharge
Elimination System (NPDES) and the
Dredge or Fill (§ 404) programs under
the Clean Water Act (CWA). and the
Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
This rule makes no substantive changes
to any of the affected sections. The
Agency is simply physically
deconsolidating its Consolidated Permit
Regulations in response to the
President's Task Force on Regulatory
Relief which asked that the
Environmental Protection Agency
review the Consolidated Permit
Regulations. Our intent is to make the
regulations easier to understand and to
use.
• Part 122 of the Consolidated Permit
Regulations is split into portions
applicable specifically to RCRA (new
Part 270). UIC (new Part 144). 404 (new
Part 233), and NPDES (mostly remaining
in Part 122).
• Part 123 of the Consolidated Permit
Regulations is split into portions
applicable specifically to RCRA (new
Part 271). UIC (new Part 145), 404 (new
Part 233), and NPDES (remaining in Part
123).
• Part 124 of the Consolidated Permit
Regulations remains applicable to all
permit programs (RCRA. State 404
programs, UIC, NPDES. PSD) and is
modified only as necessary to revise the
cross-references to former Parts 122 and
123.
DATES: Effective date: April 1,1983,
except for those portions of § § 122.2,
122.21, and 122.29 that are suspended.
. Comment date: To assist EPA in
correcting typographical errors,
incorrect cross-references and similar
technical errors, submit comments of a
technical and nonsubstantive nature on
the final regulations on or before May
31,1983.
ADDRESS: Address comments of a
technical and nonsubstantive nature to:
John Chamberlin, PM-220, U.S.
Environmental Protection Agency,
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT:
The following individuals at the U.S.
Environmental Protection Agency,
Washington. D.C. 20460:
• On RCRA issues—Deborah Wolpe,
Office of Solid Waste (WH-563): (202)
382-4754;
• On UIC issues—Thomas E. Belk;
Office of Drinking Water (WH-550);
(202) 426-3934;
• On NPDES issues—George Young,
Permits Division (EN-336); (202) 4CG-
4793;
• On 404 issues—Michael Privitera.
Office of Federal Activities (A-104);
(202)382-5053; •
• On issues relating to coordination
among all the revisions to the
Consolidated Permit Regulations for the
President's Task Force on Regulatory
Relief—John Chamberlin, Office of
Policy Analysis (PM-220); (202)382-2762.
SUPPLEMENTARY INFORMATION:
I. Background
On May 19,1980, EPA promulgated
the Consolidated Permit Regulations
(CPR) governing five separate permit
programs (40 CFR Parts 122-124, 45 FR
33290-33588). The five permit programs
covered by the CPR are: the Hazardous
Waste Management (HWM) program
under Subtitle C of the Resource
Conservation and Recovery Act
(RCRA); the Underground Injection
Control (UIC) program under Part C of
the Safe Drinking Water Act; the
National Pollutant Discharge
Elimination System (NPDES) program
under Section 402 of the Clean Water
Act; the state "dredge or fill" program
under Section 404 of the Clean Water
Act: and the Prevention of Significant
Deterioration (PSD) program under
regulations implementing Section 165 of
the Clean Air Act.
Part 122 established definitions and
basic permit requirements for EPA-
administered RCRA, UIC, and NPDES
programs. It also provided certain
requirements applicable to state
programs, including state 404 programs,
but only to the extent Part 123 explicitly
referred to Part 122 requirements. Part
122 spelled out in detail who must apply
for a permit; contents of the
applications; what conditions must be
incorporated into permits; when permits
may be revised, reissued, or terminated;
and other •requirements.
Pact 123 established the requirements
'for state programs operated in lieu of
EPA, after a program has received the
approval of the Administrator. In
addition to the RCRA hazardous waste,
UIC, and NPDES programs. Part 123
governed state Section 404 programs for
discharges of dredged or fill material
into certain waters of the United States.
After receiving the approval of the
Administrator, a state may issue Section
404 permits, in lieu of the United States
Army Corps of Engineers, basically in so
called "Phase II and III" waters
(sometimes referred to as traditionally
non-navigable waters). In addition. Part
123 contained the procedures for EPA
approval, revision, and withdrawal of a
state program.
Part 124 established the common
procedures to be followed in making
permit decisions under the RCRA
hazardous waste. UIC. PSD. and NPDES
programs. It included procedures for
public participation, for consolidated
review and issuance of two or more
permits to the same facility or activity,
and for appealing permit decisions. Most
requirements in Part 124 are only
applicable where EPA is the permit-
issuing authority. However, Part 123
requires states to comply with some of
the Part 124 provisions, such as the
basic public participation requirements
of permit issuance.
Technical regulations containing
requirements and criteria which apply to
decisionmaking under the RCRA, UIC,
NPDES, 404. and PSD programs were
developed separately and do not appear
in Parts 122-124. These other regulations
set the substantive standards for the
contents of permits issued pursuant to
Parts 122-124 and provide some of the
technical bases for determining the
adequacy of state programs and
individual permit decisions.
In the CPR, the Agency intended to
encourage consolidated permitting in
three ways:
(1) It adopted procedures to allow
coordinated processing of multiple
permits for a single facility. A single
short application form was developed to
provide basic information needed by all
permit programs. Procedures were
established to allow joint public notice,
hearings, and issuance for multiple
permits.
(2) It established uniform procedures
and permit requirements across EPA
permit programs to provide more
consistency and predictability to the
regulated community. We hope that an
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Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations 14147
applicant who had obtained one EPA
permit would find it easier to obtain
other EPA permits by following similar
procedures and meeting similar
requirements.
(3) The regulations adopted a
consolidated format They interspersed
requirements for one permit program
among requirements for other permit
programs. The regulations were
organized both by topic (e.g. who
applies for a permit, or standard permit
conditions) and by permit program. For
the most part an effort was made to
describe fully the requirements on a
topic to the extent that the requirements
were common across permit programs,
and then subsequently to describe
program-specific variations on the topic.
Subsequent to promulgation of the
CPR. industry, states, and other
interested parties have extensively
criticized them. Petitioners representing
major industrial trade associations,
several of their member companies, the
Natural Resources Defense Council,
several states, and others filed petitions
for judicial review of the regulations.
Ultimately all petitions were
consolidated in the U.S. Court of
Appeals for the District of Columbia
(NRDC v. EPA, No. 80-1607 and
consolidated cases, filed June 2,1980).
Amendments resulting from this
litigation are discussed in Section II of
this preamble.
In addition, many individuals,
including some of EPA's own regional
officials charged with implementing the
CRP, complained that the regulations
were excessively complex and difficult
to understand and to implement
Consequently, the President's Task
Force on Regulatory Relief designated
the CPR as one of seven EPA regulations
for Agency Review. Since late 1981 the
Agency has ben re-assessing these
regulations with the following objectives
in mind:
• Reduce the burden the regulations
.impose in terms of monitoring,
recordkeeping, testing, reporting, and
general paperwork.
• Increase the flexibility with which
EPA can transfer permitting
responsibilities to the states.
• Provide the Agency and states with
more efficient ways of managing.
permitting workloads.
• Settle the litigation outstanding
against the regulations.
• Make the regulations easier to use
and less complex.
In general, the Agency has not found
the benefits of permit consolidation, in
any of the three senses listed above, to
be as extensive as expected.
Consolidated processing of multiple
permits has been very rare. The fact that
the various permit programs regulate
inherently different activities and thus
must impose generally different sorts of
requirements has limited commonalities
across permit programs. Finally, the
consolidated format of the regulations
has made them unnecessarily difficult to
use.
For example, the consolidated format
for Part 122 tended to make an applicant
interested in meeting the requirements
for a single permit do two undesirable
things:
• Read unrelated material pertaining
to other permits not of interest to him;
and
• Flip back and forth between two
subparts of the regulations.
Ahbougth Subpart A cor.lained-.-7-.ostly
material common to all permit programs,
it also contained material applicable to
individual programs. That maier.al
proved to be distracting. In addition, the
frequent necessity to proceed back and
forth between Subpart A and Subpart B,
C, or D caused confusion. Part 123 (state
program requirements) of the CPR was
organized similarly—it too tended to
make an individual or state interested in
a single permit program read irrelevant
material and flip back and forth
between subparts.
Today's deconsolidation is intended
to correct the problems created by the
consolidated format. It will also make it
easier to implement other, more
substantive changes under
consideration to meet our objective of
providing regulatory relief.
n. Relationship of This Promulgation to
Other Changes in the CPR
Today's promulgation of
"deconsolidated" regulations is only one
of several steps we have taken or will
take, to meet our regulatory relief
objectives. The Agency has already
completed two rule-makings to meet
these objectives:
(1) Amendments dealing with issues
addressed in the settlement agreement
on the UIC-re!ated issues of the CPR
were promulgated in the Federal
Register on August 27 1981 [46 FR 43136)
and on February 3,1982 (47 FR 4992).
(2) Technical amendments dealing
with some of the issues addressed in the
settlement agreement on the RCRA-
related issues of the CPR were
promulgated on April 8,1982 [47 FR
15304).
These changes are reflected in today's
deconsolidated regulations.
In addition, the Agency has proposed
other regulatory changes:
(1) Amendments dealing with nearly
all of the issues addressed in the
settlement agreement on the NPDES-
relatcd issues of the CPR were proposed
on November 18, 1982 (47 FR 52072).
(2) An amendment dealing with one of
the issues addressed in the settlement
agreemeift on the RCRA-related issues
in the CPR was proposed on July 23,
1982 (47 FR 32038).
(3) Amendments dealing with issues
addressed in the settlement agreement
that were common to more than one
permit program (the "common issues
. settlement") and 3 issues specific to the
NPDES program were proposed on June
14,1982 (47 FR 25546).
The Agency plans to propose more
changes to ihe deconsolidated CPR over
the next few months:
(I) Additional changes addressing the
remaining issues dealt with in the
settlement agreement on the RCRA-
related issues in the CPR.
(2J Substantive changes to reform the
NPDES program beyond those changes
resulting from litigation, including final
action on several provisions of the
NPDES regulations which are currently
suspended.
(3) Substantive changes to encourage
assumption of the 404 permit program by
states.
(4) EPA may also propose a set of
changes to streamline the permitting
procedures common to all programs
found in Part 124.
These proposed changes will be
reflected in the appropriate program
regulations when rulemaking is
complete.
The Agency believes that these
changes will respond to nearly all of the
criticisms that have been directed
against the CPR. The regulations that
result should be substantially less
onerous for all concerned—permitters.
permittees, states, citizens, and EPA—
and will only very minimally, if at all,
reduce the environmental protection
that the regulations are intended to
achieve.
HI. Description of Today's Amendments
In today's amendments, we are simply
revising the consolidated format of the
regulations. We are deconsolidating Part
122 (permit requirements) and Part 123
(state program requirements) of the CPR.
We aer leaving Pan 124 (common
permitting procedures) in its current
consolidated format Each part of the
new regulations (122.123.144.145. 233.
270.271) will pertain solely to one
permit program. The reader interested in
only one permit program will not have
to read irrelevant material pertaining to
another program. Furthermore, EPA has
attempted to order the subparts within
each part in a logical sequence so that
reading can be done sequentially.
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14148
Federal Register / Vol. 48, No. 64 / Friday. April 1, 1933 / Rules and Regulations
Today's amendments simply reiterate
the existing content of the regulations in
a, new format, with two narrow
exceptions. First, several provisions
have been deleted because they
duplicate other provisions in the
regulations or explain the consolidated
format of the regulations and thus are no
longer necessary. Deleted provisions are
identified in the tables in the Appendix.
Second, a few technical amendments
have been made. They are described
below.
In addition to the organizational
changes resulting from deconsolidating,
the Agency has made minor wording
changes to U1C permitting requirements
in selected sections of Part 144 (old Part
122). These changes essentially involve
amending language to clarify the scope
and enforceability of the procedural
requirements which were previously
outlined in 40 CFR Part 122, but they in
no way extend the scope of the
regulations. For example, in several
sections the language has been changed
from an indirect description of what
standard a program must require an
owner/operator meet, to language that
simply states that an owner/operator "is
required" to meet the standard. These
minor wording changes, in addition to
making the existing requirements more
specific, will also enable EPA, where
appropriate, to incorporate these
regulations by reference directly into
each federally implemented program the
Agency promulgates, since the
requirements will be couched in
language that makes them directly
enforceable against owner/operators.
The language changes do not alter the
fact, however, that the requirements of
Parts 144 and 145 are simply minimum
requirements for all U1C programs. The
old regulations in § 122.1(b)(l)(i) and
§ 122.31 (a) have always made clear that
the regulations were to serve as
minimum requirements for EPA
administered programs as well as
approved state programs. These
regulations do not impose requirements
directly on owner/operators. The
requirements set forth in these
regulations will become binding on
owner/operators only when they are
included in a specific state program.
Each state program will be approved (in
the case of a state administered
program) or promulgated (in the case of
an EPA administered program) pursuant
to appropriate procedural requirements.
The Agency has also made a minor
technical change in the § 404 permitting
requirements at § 233.18, Confidentiality
of Information. In the existing
regulations, the denial of request for
confidentiality of the application form
and the permit appears only in the
NPDES section: it should have also
appeared in the 404-specific section in .
accordance with Section 404(o) of the
Clean Water Act. This technical change
in today's regulations corrects that
omission'.
The Agency has also incorporated
into today's regulations previously
issued suspensions of several provisions
of the NPDES permitting requirements.
The text of these suspensions, and the
date of their original issuance, are
indicated at the end of those sections of
the regulations where the suspended
portions are located.
The first two suspensions affect
definitions found in § 122.2. On July 21.
1980, the last sentence of the definition
of "waters of the United States," which
affects the exclusion of certain waste
treatment systems from the definition of
waters of the U.S., was suspended. On
October 15,1S30, the definition of "new
discharger" was suspended only as it
applies to offshore mobile drilling rigs
operating in areas other than those
classified as environmentally sensitive.
Several suspensions have been made
which limit the mandatory testing
requirements of the NPDES apolication
form 2C for primary industry categories.
These suspensions are explained in
detail in the notes following § 122.21. as
well as the revised Table I of Appendix
A to Part 122. In addition, portions of the
footnotes to the table in §122.21(d)(2),
which explain the requirements for
submission of applications and
accompanying effluent data, have been
suspended. This suspension is explained
in note 5 following §122.21.
Also,'paragraphs (b)(l) and (b)(2) of
§ 122.29 have been suspended. These
sections explain the difference between
a new source and a modification of an
existing source.
Final Agency action on each of these
suspensions will be taken in subsequent
Agency rulemakings. For example, on
June 14.1982. at FR 25526. et seg. EPA
proposed amendments to the "new
discharger" definition as it affects
mobile drilling rigs. The suspension of
the definition made on October 15,1980
will be withdrawn once final regulations
on this proposal are published.
Finally, the Agency has also made
several minor corrections to RCRA Parts
270 and 271.
Reorganization and renumbering of
old Parts 122 and 123 necessitates
revising the cross-references to former
Parts 122 and 123 found elsewhere in the
Code of Federal Regulations. Cross-
references have thus been revised in 40
CFR Parts 124,125,146, 260, 261. 262.
263, 264. and 265.
As an appendix to this preamble, EPA
has prepared a table illustrating how the
Agency has reorganized the CPR. Note
that since the Agency is only
reorganizing the CPR, we are making no
changes to any of the permit application
forms that were published with the
regulations. These forms remain in effect
and we are not reprinting them here.
Also note that since the Agency is not
now modifying Part 124 of the
regulations, the procedures of that Part
allowing consolidated processing of
applications for multiple permits remain
in effect. As indicated previously, EPA
is considering separate rulemaking to
revise Part 124.
IV. Effective Date and Final
Promulgation
This promulgation does not change
the substance of the regulations at all; it
merely changes their location in the
Code of Federal Regulations.
Accordingly, we are proceeding directly
to promulgation without previously
having proposed the reguation. EPA
further believes that this is not the type
of regulation that Congress had in mind
when it provided a delay between the
promulgation and the effective date of
revisions to regulations. Making the
changed format effective immediately
will benefit those who use the
regulation. Consequently, EPA believes
it has good cause to make these rules
effective immediately.
V. Executive Order 12291
This regulation is not major because it
will not result in an annual effect on the
economy of $100 million or more, nor
will it result in an increase in costs or
prices to industry. There will be no
adverse impact on the ability of the
U.S.-based enterprises to compete with
foreign-based enterprises in domestic or
export markets. The regulation merely
changes the location of the permit and
state authorization requirements in the
Code of Federal Regulations.
EPA submitted this rule to the Office
of Management and Budget for review
as required by Executive Order 12291.
Any comments from OMB to EPA and
any EPA response to those comments
are available through: John Chamberlin,
PM-220, U.S. Environmental Protection
Agency, Washington, D.C.
•VI. Regulatory Flexibility Act
Today's promulgation does not change
any substantive requirements of the
permitting regulations.
Accordingly, I hereby certify that this
regulation will not have a significant
economic impact on a substantial
number of small entities.
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
14149
List of Subjects
40 CFR Part 122
Administrative practice and
procedure, Reporting and recordkeeping
requirements, Water pollution control,
Confidential business information.
40 CFR Part 123
Indians—lands. Reporting and
recordkeeping requirements, Water
pollution control. Intergovernmental'
relations, Penalties, Confidential
business information..
40 CFR Part 124
Administrative practice and
procedure, Air-pollution control.
Hazardous materials, Waste treatment
and disposal. Water pollution control,
Water supply, Indians—lands.
40 CFR Part 125
Water pollution control. Waste
treatment and disposal.
40 CFR Part 144
Administrative practice and
procedure. Reporting and recordkeeping
requirements, Confidential business
information. Water supply.
4O CFR Part 145
Indians—larlds. Reporting and
recordkeeping requirements.
Intergovernmental relations. Penalties,
Confidential business information.
Water supply.
40 CFR Part 146
Hazardous materials. Reporting and
recordkeeping requirements. Waste
treatment and disposal. Water supply.
40 CFR Part 233
Administrative practice and •
procedure. Reporting and recordkeeping
requirements. Confidential business
information. Water supply, Indians—
lands, Intergovernmental relations.
Penalties, Confidential business
information.
40 CFR Part 260
Administrative practice and
procedure. Confidential business
information, Hazardous materials.
Waste treatment and disposal.
40 CFR Part 261
Hazardous materials, Waste
treatment and disposal. Recycling.
40 CFR Part 262
Hazardous materials, Imports,
Labeling, Packaging and containers.
Reporting and recordkeeping
requirements. Waste treatment and
disposal.
40 CFR Part 263
Hazardous materials transportation.
Waste treatment and disposal.
40 CFR Part 264
Hazardous materials. Packaging and
containers. Reporting and recordkeeping
requirements, Security measures, Surety
bonds, Waste treatment and disposal.
40 CFR Part 265
Hazardous materials. Packaging and
containers, Reporting and recordkeeping
requirements. Security measures. Surety
bonds. Waste treatment and disposal.
Water supply.
40 CFR Part 270
Administrative .practice and..
procedure. Reporting and reccrdkeeping
requirements. Hazardous materials.
Waste treatments and disposal, Water
pollution control, Water supply,
Confidential business information.
40 CFR Part 271
Hazardous materials. Reporting and
recordkeeping requirements. Waste
treatment and disposal. Water pollution
control Water supply.
Intergovernmental relations, Penalties,
Confidential business information.
Dated: March 16.1983.
John YY. Hernandez,
Acting Administrator.
• Authority: Clean Water Act, Safe Drinking
Water Act. Clean Air Act. Resource
Conservation and Recovery Act: 42 U.S.C.
6905. 6912. 6925. 6927, 6974.
Appendix
This appendix describes the
reorganization of former Parts 122 and
123. Four tables follow—one for each
program: NPDES, RCRA. UIC, 404. Each
table lists all provisions of former Parts
122 and 123 applicable to the particular
program and the new location at which
the provisions are now presented.
NPDES Program
Below is a list of the NPDES-related
sections in former Parts 122 and 123 and
their corresponding sections in new
Parts 122 and 123.
NeUmeWlOW
ragueaioonc?
\ ^77 1
igi
p>/
(r).
M- 1 -. .
11
Purnose and scope of Part 122
la)
New
122.1(a)
122.1IO.
122.1UD
122.1(g)'
12i1le).
122.1(0
Removed.
Name in) OKI
Defirationi
f 152-3
Ap&catton lor • permit'
(c).
Cononuaoon of e«j*nrfl pemwu
Signatories to permit t
Conations applicable to a* permits
'
BfWOpt
I conoJtxxij
Duration ol parrraU
(a)..._
(b)..._
lc)
Removed.
122J.
122_2I<«)
122.21 (b|.
122.21 (e).
122.21(1)
122.21(0)
122.8.
12Z22.
122.41.
(All sectavu are
same
paragraphs)
122.43.
.j 122.46(a(
Scnedutes ol-compkance
! 122.10
Requ»ements tor reconkng and reporting
ol monitoring remits
{12Z11
Considerations under Federal law
} 122.12—
Effect ol a permit
i 122.13. -.
T r&nstw o( pwrnrts
f 122.14..
Modification or revocation and
raeauanoaot permits
$122.15 _
(aMS) fiKn)-
(aMS)
Twnwvatbon of pmiiMis
$122.18.
la).
Noncompnanee and program reporting by
theOnctor
} 12Z1B____
(c).
Purpose and scope et Sutapen D
la)—
(b)—
-
(15).
Removed.
122.63
»e).
123.45.
Removed.
123.45(5).
Removed.
IZ3.4S
-------
14150 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
Name and DM
1 12254 -,
tac*Ms
|'f«
Aquacufture prefects
Separate storm sewors
| 199 «
savwurmral •enviiws
I1WW
General permits
11!? W
Additional conditions aopteaMt to HI
NPOcS permits
1 199 AO
(a) .. -.
e»....... - ~
(c)
(d) .... , ....
(«)-,„,„„-,„„„-
(1} . ,,
(g>~
<•>) -
Additional conditions aoabcabie to
specified categories ol NPDES permits
§1»B1 .... .....
Establishing NPOES permit conditions
5199R3
_ kinnr-r
§ 122 S3 .._...
Duration ol certain NPOES permits
|195IU
(a)
(Bi-
le)
Disposal of pollutants mo wells, no
publicly owned treatment works or by
land application
I199«
New sources and new Dischargers
5 199 UK
Purpose and scope
(»)-, ,..,.
(C)
.. . _
(i) -
0
(k) -...,
Definitions
11939
Deiiwnu of a progiarn submission
1 123 •»
}i«ii
Attorney General's statement
J1935 ,., . .. .
Memorandum ol agreement with regional
•dmrNstrsMr
§ ir"5
la) 1
(g)
Requrements for ijeiiiiilliiiy
(p)p)
(?)
P)
(4)
t")
(K) ,,,
(7)
("I
CD
(10) _ _ ..
(ii)
(19)
113)
New
122-23.
122.24.
12525
122^6.
122.27.
122-28.
122.41.
122.4i(a).
122.41(c)
122 41(1)14), (5)
12241(k).
122 41(0(3).
122.41(1)16).
122.41(m).
12241(n).
122.42.
12244
122 45.
122.46(3).
122.46(«).
122.46(0.
122.50.
122.29.
123.1M). (c).
Removed.
Removed.
Removed.
123 lie).
123 Kc).
123 ltd)
123.1(f).
Removed.
123.i(h|.
123.1(0.
123.2
123.21.
123.2Z
.123-23.
123.24(d).
123-24(«).
1Z3.25.
(aH4).
(S).
(12).
(14).
(17).
(181.
(18).
(2).
(21).
(22).
123).
5 123.45.
123.25(aX3).
Name and ok)
(15) ,
(16)
(17)...^. _
1101
"
EPA review of and obtaeliens la Stale
pfllllllK
i'MTH
PfONbMiOftt
S1S3.76 ...
Approval process
S193T7
New
(24)
125)
(26).
(27).
(26).
129).
(30).
(31).
Removed.
Removed.
(a)(i)
«).
(8).
(7).
(8).
(3).
(10).
(11)
(12).
(Ml
(15).
(16).
(17).
(20).
(32).
(33).
(34).
(36).
(37)
IM
123-26
123.27.
(aH3)(i).
UK3)(>).
WOKS).
123.41.
1233.
12361
123.62le).
123.63.
123.64.
123.1(8).
123.1(0).
123.1(g).
123.1W).
123-28.
123.42.
123.43
12344.
123.29
123.61.
UIC Program
Below is a list of the UIC related
sections in Parts 122 and 123 and their
corresponding sections in Parts 144 and
145: Part 122=144.
Nitnw sod old
What are tne oonsobdated regulations
{ 199 1
Purpose and scope of pan 122
§19/3 '
Definitions
1 122?
Application for a permit
§ 1974
I12?4lal
«1994(«K)
< 19J-10I»)(4)
Reouirements for recording and
reporting of monitoring results
§13911
Considerations under Federal law
§19313
Eflects ol a permit
§i»«
Transfer of permits
§ 12? 14
Modification ol revocation and
reissuance of perms
«199(H
Termination of pfliimis
51971*
Mmor modrfication o^ p^viUts
§ 122.17(0(1) _
S19917(l)(9)) , , ._
§ 122.17(f){3» .. _..
by the OVector
§ If? H|
| 199 !«(/-)
§ 1??.18(C)(4(..
il22.i8).
§ 1*4.8(b)O
} 144«C).
§ 144.5.
§144.1.
§144.6
§1*4.11.
§1*4^
§144.7
§ 144.13.
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Federal Register / Vol. 48. No. 64 / Friday. April 1; 1983 / Rules and Regulations
14151
Name end OU
JI2217(»>(1)
J ITI.U,,!)
9 122.37M J
§ 122.3'(cl
519J37(««)
Appacaton tor >penrtt auownzaton
bypemw
* ifyyH^)
{177 TfM**)
g12Z38(C»
Am'psVnMs
5 ts^jn .IM ....
UC permits
9"? 4i , ,
ii*94i(*)
912941(b)
;i99«l(r) „.._._.,.
} 1C? «1(d>.. _
3122.41(4)
S12J1S , „.. . ,
5 1 22 42(c)
§1294»l)
i 123.1(8
f 123.1W
DeAntons
snwn
; 191 a
51»-*(S)
Attorney General's statement
i'3?!1
Memorandum ol agreement wiBi me
J'Mfl
Ftee}utfefflefite lof pofinitlinQ
{ 1»fl7
J 123 TiaHlMZl)
N»>
! iM^t.
§1*4^2.
§144.23.
§ 144J4.
§144^5
|144J6.
J 144.15.
§ 144.31(1).
| 144J1|.
§ 14S.1|C).
§ 145 1(0)
§ 145.31(01-
i I45-?1(«I.
i 145. im.
Oal«Md.
{ 14&21IQ.
i 145.1(9).
§14S2
1 145^1.
§145^2.
§145.22(1)
§ 14SJ3. '
JI4U4
{145.11.
J14S.11(aM1K
BD
Nam and ow
J 'ra^eK'H1*1
P^jyamt
j«»i«
Raoufttinants lor •nfoicanwnt authority
5173$
j 1^-1 9j.tp^.ff»l , , , ,
( 123.9(«)(3)OiXB>
ShwtQ o( ntoniwbon
Ji?31D , .„• ...-. -----
Cuunfrnahoo witti olhar pcoQiaina
j«mi
Approval proeat*
3"?'?
Prooaour* lor ravoon ol Stau
programs
§123.13 _
9 1ft 13|l)
CnMna tor withdrawal ol Sale
programs
ProcedurM (a) -
Purpose and scope ol su&pan C
§1Wi1«l)
§123.5 He)
Reouramem lo obtain a permt
Approval process
9 19T ^«
JIMIU(rt)
Prooadures lor n(ne.iwal ol SUM f 1C
programs
§ 123.55
}123^5|a) — _ —
9123.55(0) .
New
1 145.1 1(a»22>-
(33).
§145.12.
§ 145 13.
§145.13(a)(3H<).
{ 14S.13|a)(3)(u).
§146.14
Removed.
5145.31.
§ 145.32.
§ 145.32(0
§ 145.33
§ 145.34
§i45.34(a)
§ 145 1.
Deleted
§ 14S.21(a>.
§ 14S^1(c).
§ 145.21(0).
§ 145J1(e).
S145.11(a)(27)
§ 14S.21(b).
§ 145.31.'
§ I45.31UMC)
S uSJUe).
§ 145.34
§145.34(b)(1)
§ 145.34(6X2).
404 Program
Below is a list of the 404 related
sections in Parts 122 and 123 and their
corresponding sections in Part 233.
Ok) name
Wtitt are Qte consofedaied permit fegu*
kwonsT (Purpose and scope ol Pan
233).
1K>1
17> 1(«)
172in»(1)(iK) .
Oefnkora
179 j . ,,, j
Appkcaaon tor a permrt^
1S24(a| _
122 4(B)
122 *(t]
1»24(rt)
122.41*)
Contnuahon ol expnng pemws
m*. (»H"!I , ,-
12iSld).._
Signatories lo permM appkcauoo and
reports
122.6 |aM»« --, - ,„ '
122.1S(a|(1H2)
199 iy.^1^)
177 151aM4)
122.15(a)(5)
«»"Wffil
199 1^(r)
Termnation ol permtt
19? 1f^
122.1C(tK*}
122.l«aX?)
122.16(aK3) _ ,
1""M-)(4) .,„
122.16(b)
19917
19i* 1?(?)_40 „,,._
199 17(4)^g)
19917IM ... ,
New
Removed.
233.3
2334.
2334(0)
233.4IC)
233 4|d).
233.4(e)
233^(1).
233.5.
Removed.
233.5.
233.8. «•
233 6 (8H.
233.14taU3)(iH«)
Removed
233.14(aK4).
Removed.
233.14(a|(S)
233.14(6). -
Removed.
233 15
233.15(1).
233.15(b).
233.15IC).
. 233.1 Sid).
1 Removed
233.16.
233 16(aHdi.
233.16(e).
-------
14152
Federal Register / Vol. 48, No. 64 / Friday. April 1, 1983 / Rules and Regulations
OH name
by the d-rector
Confetarflttfty of niomwton
1?7 19
12? 19(1) —
122.19W>M1I - - -
12£19fl))(?H3)..-— — '•• ~
1 22. 1 Wb)(4) — .„
!2Z1» •---
123 1(e) ...,._ —
123 1(0 :
1 23. 1 Mt| .
123.9. '
233.18.
EJ3.16<»)<1).
R«nov*d.
233.1MtM3.l-
Removed.
233^0.
233.20(t).
233 20(0).
233.rOtC).
23£ 201CI
233.20W
233^0(0.
233.20(q)
233.20W.
233.20(1)
233 20(J)
Removed
233.21
233^1(aM3)
233-22
233.i2l.He).
Removed.
233 22|fHm»-
233.23
'233 23lal-ftj).
ZS3J3IC)
233.24
233 2«la)
23324(D)(1H2).
233.24IDK3.)
233^4(0)(4 )
233J4IC).
Rarnowaa
R«mov«a.
233^4lflX
233-24<«).
233 ?B
233J60).
233^60>l
233^7.
23327llHd).
Removed
233 2»
4 233.28WH4I.
I Removed.*
233.2BHc).
(c)(2)(vHvfl
270.10
(•hOT.
270.70-270 73
270.70.
270 71(a)
-------
Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations 14153
Name and oU
Change* during interim stabs
Grounds tor termination
ft) , - - -
Content* of Part A ol the RCRA permit
appfccatton
(6)
(CH9) —
Contents d Pan B of the BCflA pemw
application •
SI2' 25 ...__ .., ~
(a)
(»„,, ,
DHV} , ,,.„ „.„.,-.,
(b)|4)
(*MS>
(*?K6( n * !
(|)-IWM)
' (iHoc) ,ZI........ ~~'.. ~ ~,,,..
If) , .,, .,„ ..,
Perms by rule
51*731! .
Short term pemwts
Emergency peimts
Hazardous waste nonerator permits
Permits for land treatment
demonstrations
(c)
Additional conditions applicable to an
RCRA permits
(W
(C)
(e)f1M3)
Establishing RCRA permit commons
K 1^7 7*^ i
If ilef mi pernvts lor U1C watts
New
270,72,
270.7l(b).
270.73.
270.13.
(e).
UK)
270.14-270 X
27014.
270.15
land)
27016
(aHf).
270.17
(aHi)
270.18
(BMil
27019
laHd)
270.20
270.21
laHD
270.14(O
270.60
270.61-270.63.
270.61
27062
270.63
270.30
(1)12)
(D(2)
CK6).
270.32UMbl.
270.64
Part 123=Part 271
Name and old
Sucoan A— General Program
Rewed: Reauranenat tor final autnonza-
aon.
Purpoee ana acopc
(r.HX)
Definitions
Bantams ol a t>uuja.'ii submaaion
Program oescnolion
m
New
5271 1.
nemeved.
Removed.
(bHO.
Removeo.
527I.S
Removed.
Name and OM
Anomey Oenerafa atqtement
J123.S
(c) and (d) '.
Memorandum of agreement
(WOI
(hH4)
(bMG)
(d)
(d>{4)
RequTfemems tor permitting
3 '23 7
(a)(i) ,......-..i «. ..........—
(a)( 1 1 } , ..-_.. . ., .,-.--
(a)(i3)
(aid 4H21 »
(b) .._.
(Wd)
(b)(3V
{HiS
ft»M7) ....—.——_——— „.„...
fhM9t
Peourfements tor comobance evaluation
program
« 123.6 -
(•>) , ,.,...,,r-1, ,—-..„-
R«qu*ren*ent3 lor enforcement State pro-
5271^3.
roval ol State pro-
Stale Hazardous
d m Sutraan A. as
5271JJ.
Removed
(aHd)
Name and ok)
Conaalency
Requrements lor IdenMcation and^sting
ol hazardous westet
Reguremenis for generators of
hazardous wastes
RcQuifenwnls lor liaomioflflrft of
x hazardous wastes
Reouvemenls tor hazardous waste
.management lacilibes
512336
ReQuvements with respec: to permits
ana permit applications
512337 . .
EPA review ol Slate perms
^••>->1B
Approval process
§ 121 39
Subpan F— Beeuuemenis lor mtenm auir
hazaroous waste program
Rctnted SuDpari B — Recuirements for m
Purpose and scope
5123121 _ _ _
Schedule
5123 132
Elements ol a program submssion
Program description
Anomey General's statement
Memorandum ol agreement
§ 123 126
Autnonzauon plan
$ 123 127
Program reomrements lor mtenm
autnonzatnn tor phase 1
Additional pioyiam rerjiurernents for
tnienm autnonzation lor prase II
Interstate movement ol hazardous waste
5191 tan
Shanng of elimination
Cum Uuia lion with other ptoyenis
EPA review of State permits
Appioval process •
5173115 .
Withdrawal of State programs
5171111;
Reversion of Stale programs
New
5271.4
5271.9
(271.10.
5271.11
5271.12
5271.13
S27t 19
5271.20
nnzahon of State
e
tenm authorization
5271.121
5271 122
5271.123
5271.124
5271.125
5271 126
5271 127
5271 128
5271.129
5271.130
5271 131
5271.132
5271.133
5271.134
5271.135
5271.136
5271 137
Part 122 is revised to read as follows:
PART 122— NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
Subpart A— Definitions and General
Program Requirements
Sec.
122.1 Purpose and Scop--.
122.2 Definitions.
i 122.3 Exclusions.
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Federal Register / VoL 48. No. 64 / Friday. April 1.
1983 / Rules ana Regulations
122.4 Prohibitions (applicable to State
NPDES Programs, see § 123.25).
122.5 Effect of a permit.
122.6 Continuation of expiring permits.
122.7 Confidentiality of information.
Subpart B—Permit Application and Special
NPDES Program Requirements
122.21 Application for a permit (applicable
to State programs, see 5 123.25).
122.22 Signatories to permit applications
and reports (applicable to State
programs, see J 123.25).
122.23 Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
122.24 Concentrated aquatic animal
production facilities (applicable to State
NPDES programs, see § 123.25).
122.25 Aquaculture projects (applicable to
State NPDES programs, see § 123.25).
122.26 Separate storm sewers (applicable to
State NPDES programs, see 1123.25).
122^7 SilvicuituraJ activities (applicable to
State NPDES programs, see § 123.25).
12Z£8 General permits (applicable to Stale
NPDES programs, see § 123.25).
122.29 New sources and new discharges.
Subpart C—Permit Conditions
122.41 Conditions applicable to all permits
(applicable to State programs, see
§123.25).
122.42 Additional conditions applicable to
specified categories of NPDES permits
(applicable to Slate NPDES programs.
see $ 123-25).
122.43 Establishing permit conditions
(applicable to State programs, see
§ 123.25).
122.44 Establishing limitations, standards
and other permit conditions (applicable
to State NPDES programs. see'§ 123.25).
122.45 Calculating NPDES permit conditions
(applicable to State NPDES programs.
see § 123.25).
122.46 Duration of permits (applicable to
State programs, see § 123-25).
122.47 Schedules of compliance.
122.48 Requirements for recording and
reporting of monitoring results
(applicable to State programs, see
§ 123.23).
122.49 Considerations under Federal law.
122.50 Disposal of pollutants into wells, into
publicly owned treatment works or by
land application (applicable to Slate
programs, see $ 123.25).
Subpart D—Transfer, modification,
revocation and rsissuance, and termination
of permits
122.61 Transfer of permits (applicable to
State programs, see § 123,25).
122.62 Modification or revocation and
reissuance of permits (applicable to State
programs, see § 123.25).
122.63 Minor modifications of permits.
122.64. Termination of permits (applicable
to State programs, see § 123.25).
Authority: The Clean Water Act 33 U.S.C.
§ 1251 et seq.
Appendix A—NPDES Primary Industry
Categories.
Appendix B—Criteria for Determining a
Concentrated Animal Feeding Operation
(1122.23).
Appendix C—Criteria for Determining a
Concentrated Aquatic Animal Production
Facility (122.24).
Appendix D—NPDES Permit Application
Testing Requirements (122 21).
Subpart A—Definitions and General
Program Requirements
§ 122.1 Purpose and scope.
(a) Coverage. (1) These regulations
contain provisions for the National
Pollutant Discharge Elimination System
(NPDES) Program under sections 318,
402, and 405(a) of the Clean Water Act
(CWA) (Pub. L 92-500, as amended by
Pub. L. 95-217, Pub. L. 95-576, Pub. L 96-
483, and Pub. L 97-117; 33 U.S.C. 1251 et
seq.}.
(2) These regulations cover basic EPA
permitting requirements (Part 122), what
a State must do to obtain approval to
operate its program in lieu of a Federal
program and minimum requirements for
administering the approved State
program (Part 123), and procedures for
EPA processing of permit applications
and appeals (Part 124). Part 124 is also
applicable to other EPA permitting
programs, as detailed in that Part
(b) Scope of the NPDES permit
requirement (1) The NPDES program
requires permits for the discharge of
"pollutants" from any "point source"
into "waters of the United States." The
terms "pollutant", "point source" and
"waters of the United States" are
defined in § 122.2. •
(2) The following are point sources
requiring NPDES permits for discharges:
(i) Concentrated animal feeding
operations as defined in § 122.23;
(ii) Concentrated aquatic animal
production facilities as defined in
i 122.24;
(iii) Discharges into aquaculrure
projects as set forth in § 122.25;
(iv) Discharges from separate storm
sewers as set forth in § 122.26; and
(vj Silvicultural point sources as
defined in § 122.27.
(c) State Programs. Certain
requirements set forth in Parts 122 and
124 are made applicable to approved
State programs by reference in Part 123.
These references are set forth in
§ 123.25. If a section or paragraph of
Parts 122 or 124 is applicable to States,
through reference in § 123.25. that fact is
signaled by the following words at the
end of the section or paragraph heading:
(applicable to State programs, see
§ 123.25). If these words are absent, the
section (or paragraph) applies only to
EPA administered permits.
(d) Relation to other requirements. (1)
Permit application forms. Applicants for
EPA issued permits must submit their
applications on EPA's permit application
forms when available. Most of the
information requested on these
application forms is required by these
regulations. The basic information
required in the general form (Form 1)
and the additional information required
for NPDES applications (Forms 2a-d)
are listed in § 122.21. Applicants for
State issued permits must use State
forms which must require at,a minimum
the information listed in these sections.
(2) Technical regulations. The NPDES
permit program has separate additional
regulations that contain technical
requirements. These separate
regulations are used by permit issuing
authorities to determine what
requirements must be placed in permits
if they are issued. These separate
regulations are located at 40 CFR Parts
125,129,133.136 and 40 CFR subchapter
N (Parts 400-460).
(e) Public participation. This rule
establishes the requirements for public. -
participation in EPA and State permit
issuance and enforcement and related
variance proceedings, and in the
approval of State NPDES programs.
These requirements carry out the
purposes of the public participation
requirements of 40 CFR Part 25 (Public
Participation), and supersede the
requirements of that Part as they apply
to actions covered under Parts 122,123,
and 124.
(f) State authorities. Nothing in Parts
122,123. or 124 precludes more stringent
State regulation of any activity covered
by these regulations, whether or not
under an approved State program.
(g) Authority. (1) Section 301(a) of
CWA provides that "Except as in
compliance with this section and
sections 302. 306, 307. 318, 402, and 404
of this Act, the discharge of any
pollutant by any person shall be
unlawful."
(2) Section 402(a)(l) of CWA provides
in part that "The Administrator may,
after opportunity for public hearing,
issue a permit for the discharge of any
pollutant, or combination of
pollutants, * * "upon condition that
such discharge will meet either all
applicable requirements under sections
301. 302. 306, 307, 308, and 403 of this
Act. or prior to the taking of necessary
implementing actions relating to all such
requirements, such conditions as the
Administrator determines are necessary
to carry out the provisions of this Act."
(3) Section 318(a) of CWA provides
that 'The Administrator is authorized.
after public hearings, to permit the
discharge of a specific pollutant or
pollutants under controlled conditions
associated with an approved
aquaculture project under Federal or
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14153
State supervision pursuant to section
402 of this Act."
(4) Section 405 of CWA provides, in
part, that "Where the disposal of
sewage sludge resulting from the
operation of a treatment works as
defined in section 212 of this Act
(including the removal of in-place
sewage sludge from one location and its
deposit at another location) would result
in any pollutant from such sewage
sludge entering the navigable waters,
such disposal is prohibited except in
accordance with a permit issued by the
Administrator under section 402 of this
Act."
(5) Sections 402(b). 318 (b) and (c), and
405{c) of CWA authorise EPA approval
of State permit programs for discharges
from point sources, discharges to
aquaculture projects, and disposal of
sewage sludge.
(6) Section 304(i) of CVVA provides
that the Administrator shall promulgate
guidelines establishing uniform
application forms and other minimum
requirements for the acquisition of
information from dischargers in
approved States and establishing
minimum procedural and-other elements
of approved State NPDES programs.
(7) Section 501(a) of CWA provides
that "The Administrator is authorized to
prescribe such regulations as are
necessary to 'carry out his functions
under this Act"
(8) Section 101(e) of CWA provides
that "Public participation in the
development, revision, and enforcement
of any regulation,.fitandard, effluent
limitation, plan, or program established
by the Administrator or any State under
this Act shall be provided for.
encouraged, and assisted by the
Administrator and the States. The
Administrator, in cooperation with the
States, shall develop and publish
regulations specifying minimum
guidelines for public participation in
such processes."
§ 122J2 Definitions.
The following definitions apply to
Parts 122.123, and 124. Terms not
defined in this section have the meaning
given by, CWA. When a defined term
appears in a definition, the denned term
is sometimes placed in quotation marks
as an aid to readers.
AdminisXator means the
Administrator of the United States
Environmental Protection Agency, or an
authorized representative.
Applicable standards and limitations
means all State, interstate, and Federal
standards and limitations to which a
"discharge" or a related activity is
subject under the CWA. including
"effluent limitations," water quality
standards, standards of performance,
toxic effluent standards or prohibitions,
"best management practices," and
pretreatment standards under sections
301. 302, 303, 304. 306, 307. 308, 403. and
405 of CWA.
Application means the EPA standard
national forms for applying for a permit.
including any additions, revisions or
modifications to the forms: or forms
approved by EPA for use in "approved
States." including any approved
modifications or revisions.
Approved program or approved State
means a State or interstate program
which has been approved or authorized
by EPA under Part 123.
Average monthly discharge limitation
means the highest allowable average of
"daily discharges" over a calendar
month, calculated as the sum of ail
"daily discharges" measured during a
calendar month divided by the number
of "daily discharges" measured during
that month. _ .
A verage weekly discharge limitation
means the highest allowable average of
"daily discharges" over a calendar
week, calculated as the sum of all "daily
discharges" measured during a calendar
week divided by the number of "daily
discharges" measured during that week.
Best management practices ("BMPs")
means schedules of activities,
prohibitions of practices, maintenance
procedures, and other management
practices to prevent or reduce ;he
pollution of "waters of the United
States." BMPs also include treatment
requirements, operating procedures, and
practices to control plant site runoff,
spillage or leaks, sludge or waste
disposal, or drainage from raw material
storage.
BMPs means "best management
practices."
Contiguous zone means the entire
• zone established by the United States
under Article 24 of the Convention on
the Territorial Sea and the Contiguous
Zone.
Continuous discharge means a
"discharge" which occurs without
interruption throughout the operating
hours of the facility, except for
infrequent shutdowns for maintenance.
process changes, or other similar
activities.
CWA means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act or Federal
Water Pollution Control Act
Amendments of 1972) Pub. L 92-500, as
amended by Pub. L 95-217, Pub. L 95-
576. Pub. L 96-J83 and Pub. L. 97-117, 33
U.S.C. 1251 et seq.
CWA and regulations means the
Clean Water Act (CWA) and applicable
regulations promulgated thereunder. In
the case of an approved State program,
it includes State program requirements.
Daily discharge means the "discharge
of a pollutant" measured during a
calendar day or any 24-hour period that
reasonably represents the calendar day
for purposes of sampling. For pollutants
with limitations expressed in units of
mass, the "daily discharge" is calculated
as the total mass of the pollutant
discharged over the day. For pollutants
with limitations expressed in other units
of measurement, the "daily discharge" is
calculated as the average measurement
of the pollutant over the day.
Direct discharge means the
"discharge of a pollutant."
Director means the Regional
Administrator or the State Director, as
the context requires, or an authorized
representative. When there is no
"approved State program," and there is
an EPA administered program,
"Director" means the Regional
Administrator. When there is an
approved State program. "Director"
normally means the State Director. In
some circumstances, however, EPA
retains the authority to take certain
actions even when there is an approved
State program. (For example, when EPA
has issued an NPDES permit prior to the
approval of a State program, EPA may
retain jurisdiction over that permit after
program approval, see § 123.1.) In such
cases, the term "Director" means the
Regional Administrator and not the
State Director.
Discharge when used without
qualification means the "discharge of a
pollutant"
Discharge of a pollutant means:
(a) Any addition of any "pollutant" or
combination of pollutants to "waters of
the United States" from any "point
source." or
(b) Any addition of any pollutant or
combination of poQutants to the waters
. of the "contiguous zone" or the ocean
from any point source other than a
vessel or other floating craft which is
being used as a means of transportation.
This definition includes additions of
pollutants into waters of the United
States from: surface runoff which is
collected or channelled by man;
discharges through pipes, sewers, or
other conveyances owned by a State,
municipality, or other person which do
not lead to a treatment works; and
discharges through pipes, sewers, or
other conveyances, leading into
privately owned treatment works. This
term does not include an addition of
pollutants by any "indirect discharger."
Discharge Monitoring Report
("DMR") means the EPA uniform
national form, including any subsequent
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additions, revisions, or modifications for
the reporting of self-monitoring results
by permittees. DMRs must be used by
"approved States" as well as by EPA.
EPA will supply DMRs to any approved
State upon request. The EPA national
forms may be modified to substitute the
State Agency name, address, logo, and
other similar information, as
appropriate, in place of EPA's.
DMR means "Discharge Monitoring
Report."
Draft permit means a document
prepared under § 124.6 indicating the
Director's tentative decision to issue or
deny, modify, revoke and reissue,
terminate, or reissue a "permit." A
notice of intent to terminate a permit.
and a notice of intent to deny a permit,
as discussed in § 124.5, are types of
"draft permits." A denial of a request for
modification, revocation and reissuance,
or termination, as discussed in § 124.5, is
not a "draft permit." A "proposed
permit" is not a "draft permit."
Effluent limitation means any
restriction imposed by the Director on
quantities, discharge rates, and
concentrations of "pollutants" which are
"discharged" from "point sources" into
"waters of the United States," the
waters of the "contiguous zone," or the
ocean.
Effluent limitations guidelines means
a regulation published by the
Administrator under section 304(b) of
CWA to adopt or revise "effluent
limitations."
Environmental Protection Agency
("EPA") means the United States
Environmental Protection Agency.
EPA means the United States
"Environmental Protection Agency."
Facility or activity means any NPDES
"point source" or any other facility or
activity (including land or
appurtenances thereto) that is subject to
regulation under the NPDES program.
General permit means an NPDES
"permit" issued under § 122.28
authorizing a category of discharges
under the CWA within a geographical
area.
Hazardous substance means any
substance designated under 40 CFR Part
116 pursuant to section 311 of CWA.
Indirect discharger means a
nondomestic discharger introducing
"pollutants" to a "publicly owned
treatment works."
Interstate agency means an agency of
two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as determined
and approved by the Administrator
under the CWA and regulations.
Major facility means any NPDES
"facility or activity" classified as such
by the Regional Administrator, or, in the
case of "approved State programs," the
Regional Administrator in conjunction
with the Sta'te Director.
Maximum daily discharge limitation
means the highest allowable "daily
discharge."
Municipality means a city, town,
borough, county, parish, district,
association, or other public body
created by or under State law and
having jurisdiction over disposal of
sewage, industrial wastes, or other
wastes, or an Indian tribe or an
authorized Indian tribal organization, or
a designated and approved managment
agency under section 208 of CWA.
National Pollutant Discharge
Elimination System (NPDES) means the
national program for issuing, modifying,
revoking and reissuing, terminating,
monitoring and enforcing permits, and
imposing and enforcing pretreatment
requirements, under sections 307, 402,
318, and 405 of CWA. The term includes
an "approved program."
New discharger means any building,
structure, facility, or installation:
(a) From which there is or may be a
new or additional "discharge of
pollutants" at a "site" at which on
October 18.1972 it had never discharged
pollutants: and
(b) Which has never received a finally
effective NPDES "permit" for discharges
at that site; and
(c) Which is not a "new source."
This definition includes an "indirect
discharger" which commences
discharging into "waters of the United
States." It also includes any existing
mobile point source, such as an offshore
oil drilling rig, seafood processing rig,
seafood processing vessel, or aggregate
plant, that begins discharging at a
location for which it does not have an
existing permit. [See Note 2 of this
section.]
New source means any building,
structure, facility, or installation from
which there is or may be a "discharge of
pollutants," the construction of which
commenced:
(a) After promulgation of standards of
performance under section 306 of CWA
which are applicable to such source, or
(b) After proposal of standards of
performance in accordance with section
306 of CWA which are applicable to
such source, but only if the standards
are promulgated in accordance with
section 306 within 120 days of their
proposal.
NPDES means "National Pollutant
Discharge Elimination System."
Owner or operator means the owner
or operator of any "facility or activity"
subject to regulation under the NPDES
program.
Permit means-an authorization,
license, or equivalent control document
issued by EPA or an "approved State" to
implement the requirements of this Part
and Parts 123 and 124. "Permit" includes
an NPDES "general permit" (§ 122.28).
Permit does not include any permit
which has not yet been the subject of
final agency action, such as a "draft
permit" or a "proposed permit."
Person means an individual,
association, partnership, corporation,
municipality. State or Federal agency, or
an agent or employee thereof.
Point source means any discernible,
confined, and discrete conveyance,
including but not limited to any pipe.
ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock.
concentrated animal feeding operation.
vessel, or other floating craft from which
pollutants are or may be discharged. ..
This term does not include return flows
from irrigated agriculture.
Pollutant means dredged spoil, solid
waste, incinerator residue, filter
backwash, sewage, garbage, sewage
sludge, munitions, chemical wastes,
biological materials, radioactive
materials (except those regulated under
the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2011 ei seq.}}, heat,
wrecked or discarded equipment, rock.
sand, cellar dirt and industrial,
municipal, and agricultural waste
discharged into water. It does not mean:
(a) Sewage from vessels: or
(b) Water, gas, or other material
which is injected into a well to facilitate
production of oil or gas, or water
derived in association with oil and gas
. production and disposed of in a well, if
the well used either to facilitate
production or for disposal purposes is
approved by authority of the State in
which the well is located, and if the
Slate determines that the injection or
disposal will not result in the
degradation of ground or surface water
resources.
[Note.—Radioactive materials covered by
the Atomic Energy Act are those
encompassed in its definition of source.
byproduct, or special nuclear materials.
Examples of materials not covered include
radium and accelerator-produced isotopes.
See Train v. Colorado Public Interest
Research Group, Inc.. 426 U.S. 1 (1976).]
POTW means "publicly owned
treatment works."
Primary industry category means any
industry category listed in the NRDC
settlement agreement (Natural
Resources Defense Council et al. v.
Train. 8 E.R.C. 2120 (D.D.C. 1976).
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modified 12 E.R.C. 1833 (D.D.C. 1979]):
also listed in Appendix A of Part 122.
Privately owned treatment works
means any device or system which is (a)
used to treat wastes from any facility
whose operator is not the operator of the
treatment works and (b) not a "POTW."
Process wastewater means any water
which, during manufacturing or
processing, comes into direct contact
with or results from the production or
use of any raw material, intermediate
product finished product byproduct or
waste product •
Proposed permit means a State
NPDES "permit" prepared after the
close of the public comment period (and.
when applicable, any public hearing and
administrative appeals) which is sent to
EPA for review before final issuance by
the State. A "proposed permit" is not a
"draft permit"
Publicly owned treatment works
("POTW*') means any device or system
used in the treatment (including
recycling and reclamation) of municipal
sewage or industrial wastes of a liquid
nature which is owned by a "State" or
"municipality." This definition includes
sewers, pipes, or other conveyances
only if they convey wastewater to a
POTW providing treatment
Recommencing discharger means a —
source which recommences discharge •
after terminating operations.
Regional Administrator means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
authorized representative of the
Regional Administrator.
Schedule of compliance means a
schedule of remedial measures included
in a "permit", including an enforceable •
sequence of interim requirements (for
example, actions, operations, or
milestone events) leading to compliance
with the CWA and regulations.
Secondary industry category means
any industry category which is not a
"primary industry category."
Secretary means the Secretary of the
Army, acting through the Chief of
Engineers.
Sewage from vessels means human
body wastes and the wastes from toilets
and other receptacles intended to
receive or retain body wastes that are
discharged from vessels and regulated
under section 312 of CWA. except that
with respect to commercial vessels on
the Great Lakes this term includes
graywater. For the purposes of this
definition, "graywater" means galley.
bath, and shower water.
Sewage sludge means the solids,
residues, and precipitate separated from
or created in sewage by the unit
processes of a "publicly owned
treatment works," "Sewage" as used in
this definition means any wastes,
including wastes from humans.
households, commercial establishments.
industries, and storm water runoff, that
are discharged to or otherwise enter a
publicly owned treatment works.
Site means the land or water area
where any "facility or activity" is
physically located or conducted,
including adjacent land used in
connection with the facility or activity.
State means any of the 50 States, the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands. American Samoa, and
the Trust Territory of the Pacific Islands.
State Director means the chief
administrative officer of any State or
interstate agency operating an
"approved program." or the delegated
representative of the State Director. If
responsibility is divided among two or
more State or interstate agencies. "State
Director" means the chief administrative
officer of the State or interstate agency
authorized to perform the particular
procedure or function to which reference
is made.
State/EPA Agreement means an
agreement between the Regional
Administrator and the State which
coordinates EPA and State activities.
responsibilities and programs including
those under the CWA programs.
Total dissolved solids means the total
dissolved (filterable) solids as
determined by use of the method
specified in 40 CFR Part 138.
Toxic pollutant means any pollutant
listed as toxic under section 307(a)(l) of
CWA.
Variance means any mechanism or
provision under sections 301 or 316 of
CWA or under 40 CFR Part 125. or in the
applicable "effluent limitations
guidelines" which allows modification
to or waiverof the generally applicable
effluent limitation requirements or time
deadlines of CWA. This includes
provisions which allow the
establishment of alternative limitations
based on fundamentally different
factors or on sections 301(c). 301(g).
301(h), 301(i), or 316(a) of CWA.
Waters of the United States or waters
of the U£. means:
(a) All waters which are currently
used, were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters which
are subject to the ebb and Dow of the
tide:
(b) All interstate waters, including
interstate "wetlands:"
(c) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats.
sandflats. "wetlands," sloughs, prairie
potholes, wet meadows, playa lakes, or
natural ponds the use, degradation, or
destruction of which would affect or
could affect-interstate or foreign
commerce including any such waters:
(1) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes;
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce; or
(3) Which are used or could be used '
for industrial purposes by industries in
interstate commerce;
(d) All impoundments of waters
otherwise defined as waters of the
United States under this definition;
(e) Tributaries of waters identified in
paragraphs (a)-(d) of this definition;
(f) The territorial sea: and
(g) "Wetlands" adjacent to waters
(other than waters that are themselves
wetlands) identified in paragraphs (a)-
(f) of this definition.
Waste treatment systems, including
treatment ponds or lagoons designed to
meet the requirements of CWA (other
than cooling ponds as defined in 40 CFR
§ 423.11(m) which also meet the criteria
of this definition) are not waters of the
United States. This exclusion appb'es
only to manmade bodies of water which
neither were originally created in waters
of the United States (such as disposal
area in wetlands) nor resulted from the
impoundment of waters of the United
States. [See Note 1 of this section.]
Wetlands means those areas that are
inundated or saturated by surface or
groundwater at a frequency and
duration sufficient to support, and'that
under normal circumstances do support.
a prevalence of vegetation typically
* adapted for life in saturated soil
conditions. Wetlands generally include
swamps, marshes, bogs, and similar
areas.
[Note 1.—At 45 FR 48620. July 21.1980. the
Environmental Protection Agency suspended
until further notice in { 122.2. in the definition
of "Waters of the United States." This
revision continues that suspension.)
(Note 2.—At 45 FR 68391. Oct. 15.1980.
effective Oct 15.1980. the Environmental
Protection Agency suspended until further
notice the NPDES "new discharger"
definition as it applies to offshore mobile
drilling ngs operating in offshore areas
adjacent to the Gulf Coast. Atlantic Coast.
California and Alaska, except for the Flower
Garden area in the Gulf of Mexico and other
areas identified as environmentally sensitive
by the Bureau of Land Management This
revision continues that suspension.]
§ 122.3 Exclusions.
The following discharges do not
require NPDES permits:
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14158 Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations
(a) Any discharge of sewage from
vessels, effluent from properly
functioning marine engines, laundry,
shower, and galley sink wastes, or any
other discharge incidental to the normal
operation of a vessel. This exclusion
does not apply to rubbish, trash.
garbage, or other such materials
discharged overboard; nor to other
discharges when the vessel is operating
in a capacity other than as a means of
transportation such as when used as an
energy or mining facility, a storage
facility or a seafood processing facility,
or when secured to a storage facility or
a seafood processing facility, or when
secured to the bed of the ocean.
contiguous zone or waters of the
United States for the purpose of mineral
or oil exploration or development.
(b) Discharges of dredged or fill
material into waters of the United States
which are regulated under section 404 of
CWA.
(c) The introduction of sewage,
industrial wastes or other pollutants into
publicly owned treatment works by
indirect dischargers. Plans or
agreements to switch to this method of
disposal in the future do not relieve
dischargers of the obligation to have and
comply with permits until all discharges
of pollutants to waters of the United
States are eliminated. (See also
§ 122.47(b)). This exclusion does not
apply to the introduction of pollutants to
privately owned treatment works or to
other discharges through pipes, sewers,
or other conveyances owned by a State,
municipality, or other party not leading
to treatment works.
(d) Any discharge in compliance with
the instructions of an On-Scene
Coordinator pursuant to 40 CFR Part
1510 (The National Oil and Hazardous .
Substances Pollution Plan) or 33 CFR
153.10(e) (Pollution by Oil and
Hazardous Substances).
(e) Any introduction of pollutants
from non point-source agricultural and
silviculture! activities, including runoff
from orchards, cultivated crops.
pastures, range lands, and forest lands.
but not discharges from concentrated
animal feeding operations as defined in
§ 122.23, discharges from concentrated
aquatic animal production facilities as
defined in § 122.24, discharges to
aquaculture projects as defined in
§ 122.25, and discharges from
silvicultural point sources as defined in
§ 122.27.
(f) Return flows from irrigated
agriculture.
(g) Discharges into a privately owned
treatment works, except as the Director
may otherwise require under
§ 122.44(m).
§ 122.4 Prohibitions (applicable to State
NPDES programs, see f 123J25).
. No permit may be issued:
(aj When the conditions of the permit
do not provide for compliance with the
applicable requirements of CWA, or
regulations promulgated under CWA;
(b) When the applicant is required to
obtain a State or other appropriate
certification under section 401 of CWA
and § 124.53 and that certification has
not been obtained or waived;
(c) By the State Director where the
Regional Administrator has objected to
issuance of the permit under § 123.44;
(d) When the imposition of conditions
cannot ensure compliance with the
applicable water quality requirements of
all affected States;
(e) When, in the judgment of the
Secretary, anchorage and navigation in
or on any of the waters of the United
States would be substantially impaired
by the discharge;
(f) For the discharge of any
radiological, chemical, or biological
warfare agent or high-level radioactive
waste;
(g) For any discharge inconsistent
with a plan or plan amendment
approved under section 208(b) of CWA;
(h) For any discharge to the territorial
sea, the waters of the contiguous zone,
or the oceans in the following
circumstances:
(1) Before the promulgation of
guidelines under section 403(c) of CWA
(for determining degradation of the
waters of the territorial seas, the
contiguous zone, and the oceans) unless
the Director determines permit issuance
to be in the public interest: or
(2) After promulgation of guidelines
under section (403(c) of CWA. when
insufficient information exists to make a
reasonable judgment whether the
discharge complies with them.
(i) To a new source or a new
discharger, if the discharge from its
construction or operation will cause of
contribute to the violation of water
quality standards. The owner or
operator of a new source or new
discharger proposing to discharge into a
water segment which does not meet
applicable water quality standards or is
not expected to meet those standards
even after the application of the effluent
limitations required by section
301(b)(l)(A) and 301(b)(l)(B) of CWA,
and for which the State or interstate
agency has performed a pollutants load
allocation for the pollutant to be
discharged, must demonstrate, before
the close of the puublic comment period.
that:
(1) There are sufficient remaining
pollutant load allocations to allow for
the descharge: and
(2) The existing dischargers into that
segment are subject to compliance
schedules designed to bring the segment
into compliance with applicable water
quality standards.'
§122.5 Effect of a permit
(a) Applicable to State programs, see
§ 123.25. Except for any toxic effluent
standards and prohibitions imposed
under section 307 of the CWA,
compliance with a permit during its term
constitutes compliance, for purposes of
enforcement, with section 301, 302, 306,
307, 318, 403, and 405 of CWA. However,
a permit may be modified, revoked and
reissued, or terminated during its term
for cause as set forth in § § 122.62 and
122.64.
(b) Applicable to State programs. See
§ 123.25.. The issuance of a permit does
not convey any property rights of any
sort, or any exclusive privilege.
(c) The issuance of a permit does not
authorize any injury to persons or
property or invasion of other private
rights, or any infringement of State or
local law or regulations.
§ 122.6. Continuation of expiring permits.
(a) EPA permits. When EPA is the
permit-issuing authority, the conditions
of an expired permit continue in force
under 5 U.S.C. 558(c) until the effective
date of a new permit (see § 124.15) if:
(1) The permittee has submitted a
timely application under § 122.21 which
is a complete (under § 122.21(e])
application for a new permit; and
(2) The Regional Administrator,
through no fault of the permittee does
not issue a new permit with an effective
date under § 124.15 on or before the
expiration date of the previous permit'
(for example, when issuance is
impracticable due to time or resource
constraints).
(b) Effect Permits continued under
this section remain fully effectively and
enforceable.
(c) Enforcement. When the permittee
is no: in compliance with the conditions
of the expiring or expired permit the
Regional Administrator may choose to
do any or all of the following:
(1) Initiate enforcement action based
upon the permit which has been
continued;
(2) Issue a notice of intent to deny the
new permit under § 124.6. If the permit is
denied, the owner or oprator would then
be required to cease the activities
authorized by the continued permit or be
subject to enforcement action for
operating without a permit;
' (3) Issue a new permit under Part 124
with appropriate conditions; or
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14159
(4) Take other actions authorized by
these regulations.
(d) State continuation. (1) An EPA-
issued permit does not continue in force
beyond its expiration date under
Federal law if at that time a State is the
permitting authority. States authorized
to administer the NPDES program may
continue either EPA or State-issued
permits until the effective date of the
new permits, if State law allows.
Otherwise, the facility or activity is
operating without a permit from the time
of expiration of the old permit to the
effective date of the State-issued new
permit.
§ 122.7 Confidentiality of information.
(a) In accordance with 40 CFR Part 2.
any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the submitter.
Any such claim must be asserted at the
time of submission in the manner
prescribed on the application form or
instructions or. in the case of other
submissions,-by stamping the words
"confidential business information" on
each page containing such information.
If no claim is made at the time 'of
submission, EPA may make the
information available to the public
without further notice. If a claim is
asserted, the information will be treated
in accordance with the procedures in 40
CFR Part 2 (Public Information).
(b) Applicable to State programs, see
§ 123.25. Claims of confidentiality for the
following information will be denied:
(1) The name and address of any
permit applicant or permittee:
(2) Permit applications, permits, and
effluent data.
(c) Applicable to State programs, see
§12335. Information required by NPDES
application forms provided by the
Director under § 122.21 may not be
claimed confidential This includes
information submitted on the forms
themselves and any attachments used to
supply information required by the
forms.
Subpart B—Permit Application and
Special NPDES Program Requirements
§ 12131 Application for a permit .
(applicable to State programs, see
§ 123J5).
(a) Duty to apply. Any person who
discharges or proposes to discharge
pollutants and who does not have an
effective permit except persons covered
by general permits under § 122.28,
excluded under § 122.3. or a user of a
privately owned treatment works unless
the Director requires otherwise under
§ 122.44(m). shall submit a complete
application (which shall include a BMP
program if necessary under 40 CFR
125.102) to the Director in accordance
with this section and Part 124.
(b) Who applies?'When a facility or
activity is owned by one person but is
operated by another person, it is the
operator's duty to obtain a permit.
(c) Time to apply. Any person
proposing a new discharge shall submit
an application at least 180 days before
the date on which the discharge is to
commence, unless permission for a later
date has been granted by the Director.
Persons proposing a new discharge are
encouraged to submit their applications
well in advance of the 180 day
requirement to avoid delay. See also
paragraph (k) of this section.
(d) Duty.to reapply. (1) Any POTW
with a currently effective permit shall
submit a new application at least 180
days before the expiration date of the
existing permit, unless permission for a
later date has been granted by the
Director. (The Director shall not grant
permission for applications to be
submitted later than the expiration date
of the existing permit.) .
(2) All other permittees with currently
effective permits shall submit a new
application in accordance with the table
below:
Permit expires
On or Mfex* Nov. 30. 1980
Dec. 1. 1960-May 31. 1961
On or (tier June 1. 1991
Application reouiremeni
(1) M apptaani has submitted new application before Apr.
« 30. 1980. new application ' a not requved.
(2) /( applicant has not suorranea new application before
Apr. 30. 1980. applicant mm! suomt new application. '.
N«w 9ppJieahQn > ., ._
Deadline tor submission
Noi applicable
Date on wncn permit expires '
90 oays before permit expires.'*
180 days Setore ' permit expires.
•The new aspiration recjrements are sol lonn in paragraphs If). (9). and fh) iho section. Applicants lor EPA-nsuw permits'
must use Forms I and eimer 26 or 2e ol EPA's consouiaied permit application forms 10 apply under those sections
"-Aixwcsmj may reoues: additional tune lor the submission ot mormanon reoured oy paragraphs
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14160 Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations
hazardous waste treatment, storage, or
disposal facilities; each well where
fluids from the facility are injected
underground; and those wells, springs,
other surface water bodies, and drinking
water wells listed in public records or
otherwise known to the applicant in the
map area.
(8) A brief description of the nature of
the business.
(g) Application requirements for
existing manufacturing, commercial,
mining, and silvicultural dischargers.
Existing manufacturing, commercial.
mining, and silvicultural dischargers
applying for NPDES permits shail
provide the following information to the
Director, using application forms
provided by the Director
(1) Outfall location. The latitude and
longitude to the nearest 15 seconds and
the name of the receiving water.
(2) Line Drawing. A line drawing of
the water flow through the facility with
a water balance, showing operations
contributing wastewater to the effluent
and treatment units. Similar processes,
operations, or production areas may be
indicated as a single unit, labeled to
correspond to the more detailed
identification under paragraph (g)(3) of
this section. The water balance must
show approximate average flows at
intake and discharge points and
between units, including treatment units.
If a water balance cannot be determined
(for example, for certain mining
activities), the applicant may provide
instead a pictorial description of the
nature and amount of any sources of
water and any collection and treatment
measures.
(3) A verage flows and treatment. A
narrative identification of each type of
process, operation, or production area
which contributes wastewater to the •
effluent for each outfall, including
process wastewater, cooling water, and
stormwater runoff; the average flow
which each process contributes; and a
description of the treatment the
wastewater receives, including the
ultimate disposal of any solid or fluid
wastes other than by discharge.
Processes, operations or production
areas may be described in general terms
(for example, "dye-making reactor",
"distillation tower".) For a privately
owned treatment works, this
information shall include the identity of
each user of the treatment works.
(4) Intermittent flows. If any of the
discharges described in paragraph (g)(3)
of this section are intermittent or
seasonal, a description of the frequency,
duration and flow rate of each discharge
occurrence (except for stormwater
runoff, spillage or leaks).
(5) Maximum production. If an
effluent guideline promulgated under
section 304 of CWA applies to the
applicant and is expressed in terms of
production'(or other measure of
operation), a reasonable measure of the
applicant's actual production reported in
the units used in the applicable effluent
guideline. The reported measure must
reflect the actual production of the
facility as required by § 122.45(b)(2).
(6) Improvements. If the applicant is
subject to any present requirements or
compliance schedules for construction,
upgrading or operation of waste
treatment equipment, an identification
of the abatement requirement, a
description of the abatement project.
and a listing of the required and
projected final compliance dates.
(7) Effluent characteristics.
Information on the discharge of
pollutants specified in this paragraph.
When "quantitative data" for a pollutant
is required, the applicant must collect a
sample of effluent and analyze it for the
pollutant in accordance with analytical
methods approved under 40 CFR Part
136. When no analytical method is
approved the applicant may use any
suitable method but must provide a
description of the method. When an
applicant has two or more outfalls with
substantially identical effluents, the
Director may allow the applicant to test
only one outfall and report that the
quantitative data also applies to the
substantially identical outfalls. The
requirements in paragraphs (g}(7) (iii)
and (iv) of this section that an applicant
must provide quantitative data for
certain pollutants known or believed to
be present does not apply to pollutants
present in a discharge solely as the
result of their presence in intake water
however, an applicant must report such
pollutants as present Grab samples
must be used for pH, temperature.
cyanide, total phenols, residual chlorine.
oil and grease, and fecal coliform. For
all other pollutants, 24-hour composite
samples must be used.
An applicant is expected to "know or
have reason to believe" that a pollutant
is present in an effluent based on an
evaluation of the expected use,
production; or storage of the pollutant,
or on any previous analyses for the
pollutant (For example, any pesticide
manufactured by a facility may be
expected to be present in contaminated
storm water runoff from the facility.)
(i)(A) Every applicant must report
quantitative data for every outfall for
the following pollutants:
Biochemial Oxygen Demand (BOD,)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer)
pH
(B) At the applicant's request the
Director may wdive the reporting
requirements for one or more of the
pollutants listed in paragraph (g)(7)(i)(A)
of this section.
(ii) Each applicant with processes in
one or more primary industry category
(see Appendix A to Part 122)
contributing to a discharge must report
•quantitative data for the following
pollutants in each outfall containing
process wastewater:
(A) The organic toxic pollutants in the
fractions designated in Table I of
Appendix D of this Part for the
applicant's industrial category or
categories unless the applicant qualifies
as a small business under paragraph
(d)(8) of this section. Table II of
Appendix D of this Part lists the organic
toxic pollutants in each fraction. The
fractions result from the sample
preparation required by the analytical
procedure which uses gas
chrcmotography/mass spectrometry. A
determination that an applicant falls
within a particular industrial category
for the purposes of selecting fractions
for testing is not conclusive as to the
applicant's inclusion in that category for
any other purposes. [See Notes 2, 3. and
4 of this section.]
(B) The pollutants listed in Table III of
Appendix D of this Part (the toxic
metals, cyanide, and total phenols).
(iii) Each applicant must report for
each outfall quantitative data for the
following pollutants, if the applicant
knows or has reason to believe that the
pollutant is discharged from the outfall:
(A) All pollutants listed in Table n or
Table III of Appendix D of this Part (the
toxic pollutants) for which quantitative
data is not otherwise required under
paragraph (g)(7)[ii) of this section except
that an applicant qualifying as a small
business under paragraph (g)(8) of this
section is not required to analyze for the
pollutants, listed in Table II cf Appendix
D of this Part (the organic toxic
pollutants).
(B) All pollutants in Table IV of
Appendix D of this Part (certain
conventional and nonconventional
pollutants).
(iv) Each applicant must indicate
whether it knows or has reason to
believe that any of the pollutants in
Table V of Appendix D of this Part
(certain hazardous substances and
asbestos) is discharged from each
outfall. For every pollutant expected to
be discharged, the applicant must briefly
describe the reasons the pollutant is
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14161
expected to be discharged, and report
any quantitative data it has for any
pollutant
(v) Each applicant must report
qualitative data, generated using a
screening procedure not calibrated with
analytical standards, for 2.3,7.8-
tetrachlorodibenzo-p-dioxin (TCDD) if
it:
(A) Uses or manufactures 2.4.5-
trichlorophenoxy acetic acid (2,4,5,-T); 2-
(2,4.5-trichlorophenoxy) propanoic acid
(Silvex, 2.4.5.-TP); 2-(2.4,5-
trichlorophenoxy) ethyl, 2.2-
dichloropropionate (Erbon): O.O-
d:mediylO-(2.4.5-trichlorophenyl)
phosphorothioate (Ronnel): 2,4.5-
tnchlorophenol (TCP); or
hexachlorophene (HCP): or
(B) Knows or has reason to believe
that TCDD is or may be present in an
effluent.
(8) Small business exemption. An
applicant which qualifies as a small
business under one of the following
criteria is exempt from the requirements
in paragraphs (g)(7)(ii)(A) or {g)(7)(iii)(A)
of this section to submit quantitative
data for the pollutants listed in Table II
of Appendix D of this Part (the organic
toxic pollutants):
(i) For coal mines, a probable total
annual production of less than 100.000
tons per year.
(ii) For all other applicants, gross total
annual sales averaging less than
SlOO.OOO per year (in second quarter
i960 dollars).
(9) Used or manufactured toxics. A
listing of any toxic pollutant which the
applicant does or expects that it will .
during the next 5 years use or
manufacture as an intermediate or final
product or byproduct.
(10) Potential discharges. A
description of the expected levels of and
the reasons for any discharges of
pollutants which the applicant knows or
has reason to believe will exceed .two
times the values reported in paragraph
(g)(7) of this section over the next 5
years.
(11) Biological toxicity tests. An
identification of any biological toxicity
tests which the applicant knows or has
reason to believe have been made
within the last 3 years on any of the
applicant's discharges or on a receiving
water in relation to a discharge.
(12) Contract analyses. If a contract
laboratory or consulting firm performed
any of the analyses required by
paragraph (g)(7) of this section, the
identity of each laboratory or firm and
the analyses performed.
(13) Additional information. In
addition to the information reported on
the application form, applicants shall
provide to the Director, at his or her
request, such other information as the
Director may reasonably require to
assess the discharges of the facility and
to determine whether to issue an NPDES
permit The additional information may
include additional quantitative data and
bioassays to assess the relative toxicity
of discharges to aquatic life and
requirements to determine the cause of
the toxicity.
(h) Application requirements for new
and existing concentrated animal
feeding operations and aquatic animal
production facilities. New and existing
concentrated animal feeding operations
(defined in § 122.23) and concentrated
aquazie animal production facilities
(defined in § 122.24) shall provide the
following information-to'the Director:
using the application form provided by
the Director
(1) For concentrated animal feeding
operations;
(i) The type and number of-animals in
open confinement and housed under
roof.
(ii) The number of acres used for
confinement feeding.
(iii) The design basis for the runoff
diversion and control system, if one
exists.-including the number of acres of
contributing drainage, the storage
capacity, and the design safety factor.
(2) For concentrated aquatic animal
production facilities:
(i) The maximum daily and average
monthly flow from each outfall.
(ii) The number of ponds, raceways.
and similar structures.
(iii) The name of the receiving water
and the source of intake water.
(tv) For each species of aquatic
animals, the total yearly and maximum
harvestable weight
(v) The calendar month of maximum
feeding and the total mass of food fed
during that month.
(i) Application requirements for new
and existing POTWs. [Reserved.]
(j) Application requirements far new
sources and new dischargers.
[Reserved.]
(k) Special provisions for applications
front new sources. (1) The owner or
operator of any facility which may be a
new source(as defined in § 122.2) and
which is located in a State without an
approved NPDES program must comply
with the provisions of this paragaraph.
(2)(i) Before beginning any on-site
construction as defined in § 12&29. the
owner or operator of any facility which
may be a new source must submit
information to the Regional
Administrator so that he or she can
determine if the facility is a new source.
The Regional Administrator may request
any additional information needed to
determine whether the facility is a new
source.
(ii) The Regional Administrator shall
make an initial determination whether
the facility is a new source within 30
days of receiving all necessary
information under paragraph (k)(2)(i) of
this section.
(3) The Regional Administrator shall
issue a public notice in accordance with
§ 124.10 of the new source determination
under paragraph (k)(2) of this section. If
the Regional Administrator has
determined that the facility is a new
source, the notice shall state that the
applicant must comply with the
environmental review requirements of
40 CFR 6.600 et seq.
(4) Any interested person may
challenge the Regional Administrator's
initial new source determination by
requesting an evidentiary hearing under"
Subpart E of Part 124 within 30 days of
issuance of the public notice of the
initial determination. The Regional
Administrator may defer the evidentiary
hearing on the determination until after
a final permit decision is made, and
consolidate the hearing on the
determination with any hearing on the
permit.
(1) Variance requests by non-POTlVs.
A discharger which is not a publicly
owned treatment works (POTW) may
request a variance from otherwise
applicable effluent limitations under any
of the following statutory or regulatory
provisions within the times specified in
this paragraph:
(1) Fundamentally different factors. A
request for a variance based on the
presence of "fundamentally different
factors" from those on which the
.effluent limitations guideline was based.
shall "be made by the close of the public
comment period under § 124.10. The
request shall explain how the
requirements of § 124.13 and 40 CFR Part
125. Subpart D have been met.
(2) Non-conventional pollutants. A
• request for a' variance from the BAT
requirements for CWA section
301(b)(2)(F) pollutants (commonly called
"non-conventional" pollutants) pursuant
to section 301(c) of CWA because of the
economic capability of the owner or
operator, or pursuant to section 301 (g) of
CWA because of certain environmental
considerations, when those
requirements were based on effluent
limitation guidelines, must be made by:
(i) Submitting an initial request to the
Regional Administrator, as well as to
the State Director if applicable, stating
the name of the discharger, the permit
number, the outfall number(s). the
applicable effluent guideline, and
whether the discharger is requesting a
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
section 301(c) or section 301 (g)
modification or both. This request must
have been filed not later than:
(A) September 25.1978, for a pollutant
which is controlled by a BAT effluent
limitation guideline promulgated before
December 27,1977; or
(B) 270 days after promulgation of an
applicable effluent limitation guideline
for guidelines promulgated after
December 27,1977; and
(ii) Submitting a completed request no
later than the close of the public
comment period under § 124.10
demonstrating that the requirements of
§ 124.13 and the applicable requirements
of Part 125 have been met.
(iii) Requests for variance from
effluent limitations not based on effluent
limitation guidelines need only comply
with paragraph (l)(2)(ii) of this section
and need not be preceded by an initial
request under paragraph (l)(2)(i) of this
section.
(3) Delay in construction ofPOTW.
An extension under CWA section
301[i)[2] of the statutory deadlines in
sections 301(b)(l)(A) or (b)(l)(C) of
CWA based on delay in completion of a
POTW into which the source is to
discharge must have been requested on
or before June 26,1978, or 180 days after
the relevant POTW requested an
extension under paragraph (m)(2) of this
section, whichever is later, but in no
event may this date have been later than
December 25,1978, The request shall
explain how the requirements of 40 CFR
Part 125, Subpart ] have been met.
(4) Innovative technology. An
extension under CWA section 301 (k)
from the statutory deadline of section
301(b](2)(A) for best available
technology based on the use of
innovative technology may be requested
no later than the close of the public
comment period under § 124.10 for the
discharger's initial permit requiring
compliance with section 301(b](2](A).
The request shall demonstrate that the
requirements of § 124.13 and Part 125,
•Subpart C have been met
(5) Water quality related effluent
limitations. A modification under
section 302(b)(2) of requirements under
section 302(a) for achieving water
quality related effluent limitations may
be requested no later than the close of
the public comment period under
§ 124.10 on the permit from which the
modification is sought
(6] Thermal discharges. A variance
under CWA section 316(a} for the
thermal component of any discharge
must be filed with a timely application
for a permit under this section, except
that if thermal effluent limitations are
established under CWA Section
402(a)(l) or are based on water quality
standards the request for a variance
may be filed by the close of the public
comment period under 5 124.10. A copy
of the request as required under 40 CFR
Part 125, Subpart H. shall be sent
simultaneously to the appropriate State
or interstate certifying agency as
required under 40 CFR Part 125. (See
§ 124.65 for special procedures for
section 316(a) thermal variances.)
(m] Variance requests byPOTWs. A
discharger which is a publicly owned
treatment works (POTW] may request a
variance from otherwise applicable
effluent limitations under any of the
following statutory provisions as
specified in this paragraph:
(1) Discharges into marine waters. A
request for a modification under CWA
section 301(h) of requirements of CWA
section 301(b)(l)(B) for discharges into
marine waters must be filed in
accordance with the requirements of 40
CFR Part 125. Subpart G.
(2) Delay in construction. An
extension under CWA section 301(i)(l]
of the statutory deadlines in CWA
section 301(b](l)(B] or (b)(l)(C) based on
delay in the construction of the POTW
must have been requested on or before
June 26,1978.
(3) Water quality based effluent
limitation. A modification under CWA
section 302[b)(2) of the requirements
under section 302(a) for achieving water
quality based effluent limitations shall
be requested no later than the dose of
the public comment period under
§ 124.10 on the permit from which the
modification is sought.
(n) Expedited variance procedures
and time extensions. (1)
Notwithstanding the time requirements
in paragraphs (1) and (m) of this section,
the Director may notify a permit
applicant before a draft permit is issued
under § 124.6 that the draft permit will
likely contain limitations which are
eligible for variances. In the notice the
Director may require the applicant as a
condition of consideration of any
potential variance request to submit a
request explaining how the requirements
of 40 CFR Part 125 applicable to the
variance have been met and may
require its submission within a specified
reasonable time after receipt of the
notice. The notice may be sent before
the permit application has been
submitted. The draft or final permit may
contain the alternative limitations which
may become effective upon final grant
of the variance.
(2) A discharger who cannot file a
complete request required under
paragraph (lj(2)(ii) or (l)(2)(iii] of this
section may request an extension. The
extension may be granted or denied at
the discretion of the Director.
Extensions shall be no more than 6
months in duration.
(o) Recordkeeping. Applicants shall
keep records of all data used to
complete permit applications and any
'supplemental information submitted
under this section for a period of at least
3 years from the date the application is
signed.
[Note 1.—At 46 FR 2046. Jan. 8.1981, the
Environmental Protection Agency suspended
until further notice ! 122.21(g)(7)(ii)(A) and
the corresponding portions of Item V-C of the
•NPDES application Form 2c as they apply to
coal mines. This revision continues that
suspension.]
[Note 2.—At 46 FR 22585. Apr. 20,1981. the
Environmental Protection Agency suspended
until further notice § 12i21(g)(7)(ii](A) and
the corresponding portions of Item V-C of the
NPDES application Form 2c as they apply to:
1. Testing and reporting for all four organic
fractions in the Greige Mills Subcategory of
the Textile Mills industry (Subpart C—Low
water use processing of 40 CFR Part 410), -and
testing and reporting for the pesticide fraction
in all other subcategories of this industrial
category.
2. Testing and reporting for the volatile,
base /neutral and pesticide fractions in the
Base and Precious Metals Subcategory of the
Ore Mining and Dressing industry (Subpart B
of 40 CFR Part 440), and testing and reporting
for all four fractions in all other subcategones
of this industrial category.
3. Testing and reporting for all four GC/MS
fractions in the Porcelain Enameling industry.
This revision continues that suspension.]
[Note 3.—At 46 FR 35090. July 1.1981. the
Environmental Protection Agency suspended
until further notice. § 122Jl(g)(7)(ii)(A) and
the corresponding portions of Item V-C of the
NPDES application Form 2c as they apply to:
1. Testing and reporting for the pesticide
fraction in the Tall Oil Rosin Subcategory
(Subpart D) and Rosin-Based Derivatives
Subcategory (Subpart F] of the Cum and
Wood Chemicals industry (40 CFR Part 454),
and testing and reporting for the pesticide
and base-neutral fractions in all other
subcategories of mis industrial category.
2. Testing and reporting for the pesticide
fraction in the Leather Tanning and Finishing.
Paint and Ink Formulation, and Photographic
Supplies-industrial categories.
3. Testing and reporting for the acid, base/
neutral and pesticide fractions in the
Petroleum Refining industrial category.
4. Testing and reporting for the pesticide
fraction in the Papergrade Sulflte
subcategories (Subparts J and U) of the Palp
and Paper industry (40 CFR Part 430); testing
and reporting for the base/neutral and
pesticide fractions in the following
subcategories: Deink (Subpart OJ, Dissolving
Kraft (Subpart F), and Paperboard from
Waste Paper (Subpart E); testing and
reporting for the volatile, base/neutral and
pesticide fractions in the following
subcategories: BCT Bleached Kraft (Subpart
H), Semi-Chemical (Subparts B and C). and
Nonintegrated-Fine Papers (Subpart R); and
testing and reporting for the acid, base/
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Federal Register / Vol 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations 14153
neutral and pesticide fractions in the
following subcategories: Fine Bleached Kraft
(Subpart I), Dissolving Sulfite Pulp (Subpert
K). Groundwood-Fine Papers (Subpart O).
Market Bleached Kraft [Subpart G), Tissue
from Wastepaper (Subpart T). and
Nonintegrated-TJssue Papers (Subpart S).
5. Testing and reporting for the base/
neutral fraction in the Once-Through Cooling
Water. Fly Ash and Bottom Ash Transport
Water process wastestreams of the Steam
Electric Power Plant industrial category.
This revision continues that suspension.]
[Note 4.—At 48 FR 36703. July 15.1981. the
Environmental Protection Agency suspended
until further notice portions of {I22.2l(d)[2),
as set forth below:
1. Footnote (2) to the table in § 122.21(dl(2).
2. In footnote (3) to the table in 40 CTR
§ 122.21(di(2;, the portion which restricts the
Director's authority to extend the application
deadline no later than the permit expiration
date as that restriction applies to the
submission of data required by §122.21(d) (7).
(9). and (10). Thus, during the suspension.
footnote (3) effectively reads as follows:
3. The Director may grant permission to
submit an application later than this date but
(except for information required by
paragraph (d) (7), (9), and (10) of this section)
no later than the expiration date of the
permit.
This revision continues that suspension.]
§ 122.22 Signatories to permit applications
and reports (applicable to State programs,
see § 123.25).
(a) Applications. All permit
applications shall be signed as follows:
(1] For a corporation: by a principal
executive officer of at least the level of
vice-president
(2) For a partnership or sole
proprietorship: by a general partner or
the proprietor, respectively; or
[3) For a municipality. State, Federal,
or other public agency: by either a
principal executive officer or ranking
elected official. .
(b) Reports. All reports required by
permits and other information requested
by the Director shall be.signed by a
person described in paragraph (a) of this
section, or by a duly authorized
representative of that person. A person
is a duly authorized representative only
if:
(1) The authorization is made in
writing by a person described in
paragraph (a) of this section;
(2) The authorization specifies either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of plant manager.
operator of a well or a well field.
superintendent, or position of equivalent
responsibility. (A duly authorized
representative may thus be either a
named individual or any individual
occupying a named position.] and
(3] The written authorization is
submitted to the Director.
(c) Changes to authorization. If an
authorization under paragraph (b] of this
section is no longe'r accurate because a
different individual or position has
responsibility for the overall operation
of the facility, a new authorization
satisfying the requirements of paragraph
(b) of this section must be submitted to
the Director prior to or together with any
reports, information, or applications to
be signed by an authorized
representative.
(d] Certification. Any person signing a
document under paragraph (a) or (b] of
this section shall make the following
certification:
"I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document
and all attachments and that based on my
inquiry of those individuals immediately
responsible for obtaining the information. I
believe that the information is true, accurate.
and complete. I am aware that there are
significant penalties for submitting false
imormaticn, including the possibility of fine
and imprisonment."
§ 122.23 Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
[a] Permit requirement Concentrated
animal feeding operations are point
sources subject to the NPDES permit
program.
(b) Definitions. (1) "Animal feeding
operation" means a lot or facility (other
than an aquatic animal production
facility] where the following conditions
are met:
(i] Animals (other than aquatic
animals] have been, are. or will be
stabled or confined and fed or
maintained for a total of 45 days or more
in any 12-month period, and
(ii] Crops, vegetation forage growth, or
post-harvest residues are not sustained
in the normal growing season over any
portion of the lot or facility.
(2] Two or more animal feeding
operations under common ownership
are considered, for the purposes of these
regulations, to be a single animal
feeding operation if they adjoin .each
other or if they use a common area or
system for the disposal of wastes.
(3) "Concentrated animal feeding
operation" means an "animal feeding
operation" which meets the criteria in
Appendix B of this Part, or which the
Director designates under paragraph (c]
of this section.
(c) Case-by-case designation of
concentrated animal feeding operations.
(1) The Director may designate any
animal feeding operation as a
concentrated animal feeding operation
upon determining that it is a significant
contributor of pollution to the waters of
the United States. In making this
designation the Director shall consider
the following factors:
(i] The size of the animal feeding
operation and the amount of wastes
reaching waters of the United Stales;
(ii] The location of the animal feeding
operation relative to waters of the
United Slates;
(iii) The means of conveyance of
animal wastes and process waste
waters into waters of the United States:
(iv) The slope, vegetation, rainfall, and
other factors affecting the likelihood or .
frequency of discharge of animal wastes
and process waste waters into waters of
the United States; and
(v) Other relevant factors.
(2] No animal feeding operation with
less than the numbers of animals set
forth in Appendix B of this Part shall be
designated as a concentrated animal
feeding operation unless:
(i) Pollutants are discharged into
waters of the United States through a
manmade ditch, flushing system, or
other similar manmade device: or
(ii] Pollutants are discharged directly
into waters of the United States which
originate outside of the facility and pass
over, across, or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
(3] A permit application shall not be
required from a concentrated animal
feeding operation designated under this
paragraph until the Director has
conducted an on-site inspection of the
operation and determined that the
operation should and could be regulated
under the permit program.
§122.24 Concentrated aquatic animal
• production-facilities (aopliceble to State
NPDES programs, see § 123.25).
(a] Permit requirement. Concentrated
aquatic animal production facilities, as
defined in this section, are point sources
subject to the NPDES permit program.
(b) Defintion. "Concentrated aquatic
animal production facility" means a
hatchery, fish farm, or other facility
which meets the criteria in Appendix C
of this Pan. or which the Director
designates under paragraph (c) of this
section.
(c) Case-by-case designation of
concentrated aquatic animal production
facilities. (1) The Director may
designate any warm or cold water
aquatic animal production facility as a
concentrated aquatic animal production
facility upon determining that it is a
significant contributor of pollution to
waters of the United States. In making
this designation the Director shall
consider the following factors:
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14164 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(i) The location and quality of the
receiving waters of the United States:
(ii) The holding, feeding, and
production capacities of the facility;
(iii) The quantity and nature of the
pollutants reaching waters of the United
States; and
(iv) Other relevant factors.
(2) A permit application shall not be
required from a concentrated aquatic
animal production facility designated
under this paragraph until the Director
has conducted on-site inspection of the
facility and has determined that the
facility should and could be regulated
under the permit program.
§ 12225 Aquaculture projects (applicable
to State NPOES programs, see § 123.25).
(a) Permit requirement. Discharges
into aquaculture projects, as defined in
this section, are subject to the NPDES
permit program through section 318 of
C\VA. and in accordance with 40 CFR
Part 125, Subpart B.
(b) Definitions. (1) "Aquaculture
project" means a defined managed
water area which uses discharges of
pollutants into that designated area for
the maintenance or production of
harvestable freshwater, estuarine. or
marine plants or animals.
(2) "Designated project area" means '
the portions of the waters of the United
States within which the permittee or
permit applicant plans to confine the
cultivated species, using a method or
pian or operation (including, but not
limited to. physical confinement) which.
on the basis of reliable scientific
evidence, is expected to ensure that
specific individual organisms comprising
an aquaculture crop will enjoy increased
growth attributable to the discharge of
pollutants, and be harvested within a
defined geographic area.
§ 122^6 Separate storm sewers .
(applicable to State NPDES programs, see
§ 123^5).
(a) Permit requirement. Separate
storm sewers, as defined in this section
are point sources subject to the NPDES
permit program. Separate storm sewers.
may be permitted either individually or
under a general permit (See § 122.28}.
An NPDES permit for discharges into
waters of the United States from a
separate storm sewer covers all
convenyances which are a part of that
separate storm sewer system, even
though there may be several owners or
operators of these conveyances.
However, discharges into separate
storm sewers from point sources which
are not part of the separate storm sewer
systems may also require a permit.
(b) Definition. (1) "Separate storm
sewer" means a conveyance or system
of conveyances (including pipes.
conduits, ditches, and channels)
primarily used for collecting and
conveying storm water runoff and which
is either.
(i) Located in an urbanized area as
designated by the Bureau of the Census
according to the criteria in 39 FR 152C2
{May 1.1974); or
(ii) Not located in an urbanized area
but designated under paragraph (c) of
this section.
(2) Except as provided in paragraph
(bj(3) of this section, a conveyance or
system of conveyances operated
primarily for the purpose of collecting
and conveying storm water runoff which
is not located in an urbanized area and
has not been designated by the Director
under paragraph (c) of this section is not
considered a point source and is not
subject to the provisions of this section.
(3) Conveyances which discharge
process wastewater or storm water
runoff contaminated by contact with
wastes, raw materials, or pollutant-
contaminated soil, from lands or
facilities used for industrial or
commercial activities, into waters of the
United States or into separate storm
sewers are. point sources that must
obtain NPDES permits but are not
separate storm sewers. •
(4) Whether a system of conveyances
is or is not a separate storm sewer for
purposes of this section shall have no
bearing on whether the system is
eligible for funding under Title II of
CWA: see 40 CFR 35.925-21.
(c) Ccse-by-case designation of
separate storm sewers. The Director
may designate a storm sewer not
located in an urbanized area as a
separate storm sewer. This designation
may be made to the extent allowed or
required by EPA promulgated effluent
guidelines for point sources in the
separate storm sewer category; or when:
(1) A Water Quality Management plan
under section 208 of CWA which
contains requirements applicable to
such point sources is approved: or
(2) The Director determines that a
storm sewer is a significant contributor
of pollution to the waters of the United
States. In making this determination the
Director shall consider the following
factors:
(i) The location of the discharge with
respect to waters of the United States:
(ii) The size of the discharge;
(iii) The quantity and nature of the
pollutants reaching waters of the United
States: and
(iv) Other relevant factors.
§ 12227 Silviculture! activities (applicable
to State NPDES programs, see § 123.25).
(a) Permit requirement. Silvicultural
point sources, as defined in this section, .
as poinj> sources subject to the NPDES
permit program. /
(b) Definitions. (I) "Silvicultural point
source" means any discernible, confined
and discrete conveyance related to rock
crushing, gravel washing, log sorting, or
log storage facilities which are operated
in connection with Silvicultural
activities and from which pollutants are
discharged into waters of the United
States. The term does not include non-
point source Silvicultural activities such
as nursery operations, site preparation.
reforestation and subsequent cultural
treatment/thinning, prescribed burning.
pest and fire control, harvesting
operations, surface drainage, or road
construction and maintenance from
which there is natural runoff. However.
some of these activities (such as stream
crossing for roads] may involve point
source discharges of dredged or fill
material which may require a CWA
section 404 permit (See 33 CFR 209.120
and Part 233).
(2) "Rock crushing and gravel washing
facilities" means facilities which
process crushed and broken stone.
gravel, and riprap (See 40 CFR Part 436,
Subpart B, including the effluent
limitations guidelines).
(3) "Log sorting and log storage
facilities" means facilities whose
discharges result from the holding of
unprocessed wood, for example, logs or
roundwood with bark or after removal
of bark held in self-contained bodies of
water (mill ponds or log ponds) or stored
on land where water is applied
intentionally on the logs (wet decking).
(See 40 CFR Part 429, Subpart I.
including the effluent limitations
guidelines).
§ 12228 General permits (applicable to
State NPDES programs, see § 12325).
(a) Coverage. The Director may issue
a general permit in accordance with the
following:
(1) Area. The general permit shall be
written to cover a category of discharges
described in the permit under paragraph
(a)(2) of this section, except those
covered by individual permits, within a
geographic area. The area shall
. correspond to existing geographic or
political boundaries, such as: '
(i) Designated planning areas under
sections 208 and 303 of CWA;
(ii) Sewer districts or sewer
authorities:
(iii) City, county, or State political
boundaries;
(iv) State highway systems;
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14165
(v) Standard metropolitan statistical
areas as denned by the Office of
Management and Budget
(vi) Urbanized areas as designated by
the Bureau of the Census according to
criteria in 30 FR15202 (May 1,1974); or
(vii) Any other appropriate division or
combination of boundaries.
(2) Sources. The general permit shall
be written to regulate, within the area
described in paragraph (a)(l) of this
section, either
(i) Separate storm sewers; or
(ii) A category of minor point sources
other than separate storm sewers if the
sources ail:
(A) Involve the same or substantially
similar types of operations;
(B) Discharge the same types of
wastes;
(C) Require the same effluent
limitations or operating conditions:
(D) Require the same or similar
monitoring; and
(E) In the opinion of the Director, are
more appropriately controlled under a
general permit than under individual
permits.
(b) Administration. (I) In general.
General permits may be issued.
modified, revoked and reissued, or
terminated in accordance with
applicable requirements of Part 124 or
corresponding State regulations. Special
procedures for issuance are found at
§ 123.44 for States and § 124.58 for EPA.
(2) Requiring an individual permit, (i)
The Director may require any person
authorized by a general permit to apply
for and obtain an individual NPDES
permit. Any interested person may
petition the Director to take action
under this paragraph. Cases where an
individual NPDES permit may be
required include the following:
(A) The discharge(s) is a significant
contributor of pollution as determined
by the factors set forth at § 122.26(c)[2);
(B) The discharger is not in
compliance with the conditions of the
general NPDES permit
(C) A change has occurred in the
availability of demonstrated technology
or practices for the control or abatement
of pollutants applicable to the paint
source;
(D) Effluent limitation guidelines are
promulgated for point sources covered
by the general NPDES permit
(E) A Water Quality Management
plan containing requirements applicable
to such point sources is approved; or
(F) The requirements of paragraph (a)
of this section are not met
(ii) For EPA issued general permits
only, the Regional Administrator may
require any owner Qf operator
authorized by a general permit to apply
for an individual NPDES permit as
provided in paragraph (b)(2)(i) of this
section, only if the owner or operator
has been notified in writing thai a
permit application is required. This
notice shall include a brief statement of
the reasons for this decision, an
application form, a statement setting a
time for the owner or operator to file the
application, and a statement that on the
effective date of the individual NPDES
permit the general permit as it applies to
the individual permittee shall
automatically terminate. The Director
may grant additional time upon request
of the applicant
(iii) Any owner or operator authorized
by a general permit may request to be
excluded from the coverage of the
general permit by applying for an
individual permit The owner or
operator shall submit an application
under § 122.21, with reasons supporting
the request to the Director no later than
90 days after the publication by EPA of
the general permit in the Federal
Register or the publication by a State in
accordance with applicable State law.
The request shall be processed under
Part 124 or applicable State procedures.
The request shall be granted by issuing
of any individual permit if the reasons
cited by the owner or operator are
adequate to support the request.
(iv) When an individual NPDES
permit is issued to an owner or operator
otherwise subject to a general NPDES
permit, the applicability of the general
permit to the individual NPDES
permittee is automatically terminated on
the effective date of the individual
permit.
(v) A source excluded from a general
permit solely because it already has an
individual permit may request that the
individual permit be revoked, and that it
be covered by the general permit Upon
revocation of the individual permit the
general permit shall apply to the source.
§ 12Z29 New sources and new
dischargers.
(a) Definitions. '
(1) "New source" and "new
discharger" are denned in § 122.2. [See
Note 2.]
(2) "Source" means any building,
structure, facility, or installation from .
which there is or may be a discharge of
pollutants.
(3) "Existing source" means any
source which is not a new source or a
new discharger.
(4) "Site" is defined in § 122A
(5) "Facilities or equipment" means
buildings, structures, process or
production equipment or machinery
which form a permanent part of the new
source and which will be used in its
operation, if these facilities or
equipment are of such value as to
represent a substantial commitment to
construct It excludes facilities or
equipment used in connection with I
feasibility.^ngineering.and design •
studies regarding the source or water
pollution treatment for the source.
(b) Criteria for new source
determination. (1) The following
construction activities result hi a, new
source:
(i) Construction of a source on a site
at which no other source is located, or
(ii) Construction on a site at which
another source is located of a building,
structure, facility, or installation from
which there is or may be a discharge of
pollutants if:
. (A) the process or production
equipment that causes the discharge of
pollutants from the existing source is
totally replaced by this construction, or
(B) the construction results in a
change in the nature or quantity of
pollutants discharged.
(2) Construction on a site at which an
existing source is located results in a
modification subject to § 122.15 rather
than a new source if the construction
does not create a new building,
structure, facility, or installation from
which there is or may be a discharge of
pollutants but otherwise alters, replaces,
or adds to existing process or
production equipment.
(3} Construction of a new source as
defined as § 17.2.3 has commenced if the
owner or operator has: (i) Begun, or
caused to begin as part a continuous on-
site construction program:
(A) Any placement assembly, or
installation of facilities or equipment or
(B) Significant site preparation work
including clearing, excavation, or
removal of existing buildings, structures,
of facilities which is necessary for the
placement assembly, or installation of
new source facilities or equipment or
(ii) Entered a binding contractual
obligation for the purchase of faculties
or equipment which are intended to be
used on its operation within a
reasonable time. Options to purchase or
contracts which can be terminated or
modified without substantial loss, and
contracts for feasibility, engineering,
and design studies do not constitute a
contractual obligation under the
paragraph. (See Note 1 of this section.]
(c) Requirement for an Environmental
Impact Statement. (1) The issuance of an
NPDES permit to new source:
(i) By EPA may be a major Federal
action significantly affecting the quality
of the human environment within the
meaning of the National Environmental
Policy Act of 1969 (NEPA), 33 U.S.C.
4321 et seq. and is subject to the
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14166 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
environmental review provisions of
NEPA as set out in 40 CFR Part 6,
Subpart F. EPA will determine whether
an Environmental Impact Statement
(EIS) is required under 5 122.21(k)
(special provisions for applications from
new sources) and 40 CFR Part 6, Subpart
F;
(ii) By an NPDES approved State is
not a Federal action and therefore does
not require EPA to conduct an
environmental review.
(2) An EIS prepared under this
paragraph shall include a
recommendation either to issue or deny
the permit.
(i) If the recommendation is to deny
the permit, the final EIS shall contain
the reasons for the recommendation and
list those measures, if any, which the
applicant could take to cause the
recommendation to be changed;
(ii) If the recommendation is to issue
the permit, the final EIS shall
recommend the actions, if any, which
the permittee should take to prevent or
minimize any adverse environmental
impacts;
(3) The Regional Administrator shall
issue, condition, or deny the new source
NPDES permit following a complete
evaluation of any significant beneficial
and adverse environmental impacts and
a review of the recommendations
contained in the EIS or finding of no
significant impact.
(4)(i) No on-site construction of a new
source for which an EIS is required shall
commence before final Agency action in
issuing a final permit incorporating
appropriate ElS-related requirements, or
before execution by the applicant of a
legally binding written agreement which
requires compliance with all such
requirements, unless such construction
is determined by the Regional
Administrator not to cause significant or
irreversible adverse environmental
impact. The provisions of any agreement
entered into under this paragraph shall
be incorporated as coditions of the
NPDES permit when it is issued.
(ii) No on-site construction of a new
source for which an EIS is not required
shall commence until 30 days after
issuance of a finding of no significant
impact unless the construction is
determined by the Regional
Administrator not to cause significant or
irreversible adverse environmental
impacts.
(5) The permit applicant must notify
the Regional Administrator of any on-
site construction which begins before
the times specified in paragrah (c)(4) of
this section. If on-site construction
begins in violation of this paragraph, the
Regional Administrator shall advise the
owner or operator that it is proceeding
with construction at its own risk, and
that such construction activities
constitute grounds for denial of a permit.
The Regional Administrator may seek a
court order to enjoin construction in
violation of this paragraph.
(d) Effect of compliance with new
source performance standards. (The
provisions of this paragraph do not
apply to existing sources which modify
their pollution control facilities or
construct new pollution control facilities
and achieve performance standards, but
which are neither new sources or new
dischargers or otherwise do not meet the
requirements of this paragraph.)
(1) Except as provided in paragraph
(d)(2) of this section, any new
discharger, the construction of which
commenced after October 18.1972." or
new source which meets the applicable
promulgated new source performance
standards before the commencement of
discharge, may not be subject to any
more stringent new source performance
standards or to any more stringent
technology-based standards under
section 301(b)(2) of CWA for the soonest
ending of the following periods:
(i) Ten years from the date that
construction is completed;
(ii) Ten years from the date the source
begins to discharge process or other
nonconstruction related wastewaten or'
(iii) The period of depreciation or
amortization of the facility for the
purposes of section 167 or 169 (or both)
of the Internal Revenue Code of 1954.
.(2) The protection from more stringent
standards of performance afforded by
paragraph (d)(l) of this section does not
apply to:
(i) Additional or more Stringent permit
conditions which are not technology
based; for example, conditions based on
water quality standards, or toxic
effluent standards or prohibitions under
section 307(a) of CWA; or
(ii) Additional permit conditions in
accordance with § 125.3 controlling
• toxic pollutants or hazardous
substances which are not controlled by
new source performance standards. This
includes permit conditions controlling
pollutants other than those identified as
toxic pollutants or hazardous
substances when control of these
pollutants has been specifically
identified as the method to control the
toxic pollutants or hazardous
substances.
(3) When an NPDES permit issued to a
source with a "protection period" under
paragraph (d)(l) of this section will
expire on or after the expiration of the
protection period, that permit shall
require the owner or operator of the
source to comply with the requirements
of section 301 and any other then
applicable requirements of CWA
immediately upon the expiration of the
protection period. No additional period
for achieving compliance with these
requirements may be allowed except
when necessary iff achieve compliance
with requirements promulgated less
than 3 years before the expiration of the
protection period.
(4) The owner or operator of a new
source, a new discharger which
commenced discharge after August 13,
1979, or a recommencing discharger
shall install and have in operating
condition, and shall "start-up" all
pollution control equipment required to
meet the conditions of its permits before
beginning to discharge. Within the
shortest feasible time (not to exceed 90
days), the owner or operator must meet
all permit conditions.
(5) After the effective date of new
source performance standards, it shall
be unlawful for any owner or operator - -
of any new source to operate the source
in violation of those standards
applicable to the source.
[Note 1—§ 122.29. paragraphs (b)(l) and
(2) were suspended until further notice at 45
FR 59318. Sept. 9.1980.)
(Note 2.—At 45 FR 68391. Oct. 15.1980.
effective Oct. 15.1980. the Environmental
Protection Agency suspended until further
notice the NPDES "new discharger"
definition as it applies to offshore mobile
drilling rigs operating in offshore areas
adjacent to the Gulf Coast. Atlantic Coast.
California and Alaska, except for the Flower
Garden area in the Gulf of Mexico and other
areas identified as environmentally sensitive
by the Bureau of Land Management.]
Subpart C—Permit Conditions
§ 122.41 Conditions applicable to all
permits (applicable to State programs, see
§ 123.25).
The following conditions apply to all
NPDES permits. Additional conditions
applicable to NPDES permits are in
§ 122,42. All conditions applicable to
NPDES permits shall be incorporated
into the permits either expressly or by
reference. If incorporated by reference,
a specific citation to these regulations
(or the corresponding approved State
regulations) must be given in the permit.
(a) Duty to comply. The permittee
must comply with all conditions of this
permit Any permit noncompliance
constitutes a violation of the Clean
Water Act and is grounds for
enforcement action; for permit
termination, revocation and reissuance,
or modification; or denial of a permit
renewal application.
(1) The permittee shall comply with
effluent standards or prohibitions
established under section 307(a) of the
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Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations 14167
Clean Water Act for toxic pollutants
within the time provided in the
regulations that establish these
standards or prohibitions, even if the
permit has not yet been modified 1o
incorporate the'requirement.
(2) The Clean Water Act provides that
any person who violates a permit
condition implementing sections 301.
302. 306, 307, 308, 318 or 405 of the Clean
Water Act is subject to a civil penalty
not to exceed $100.000 per day of such
violation. Any person who willfully or
negligently violates permit conditions
implementing sections 301,302,306, 307
or 308 of the Act is subject to a fine of
not less than 52,500 nor more than
$25,000 per day of violation, or by
imprisonment for not more than 1 year.
or both.
(b) Duty to reapply. If the permittee
wishes to continue an activity regulated
by this permit after the expiration date
of this permit, the permittee must apply
for and obtain a new permit.
(c) Duty to halt or reduce activity. It
shall not be a defense for a permittee in
an enforcement action that it would
have been necessary to halt or reduce
the permitted activity in order to
maintain compliance with the conditions
of this permit. Upon reduction,-loss, or
failure of the treatment facility, the
permittee shall, to the extent necessary
to maintain compliance with its permit,
control production or all discharges or
both until the facility is restored or an
alternative method of treatment is
provided. This requirement applies, for
example, when the primary source of
power of the treatment facility fails or is
reduced or lost.
(d) Duty to mitigate. The permittee
shall take all reasonable steps to
minimize or correct any adverse impact
on the environment resulting from
noncompliance with this permit
(e) Proper operation and maintenance.
The permittee shall at all times properly
operate and maintain all facilities and
systems of treatment and control (and
related appurtenances] which are
installed or used by the permittee to
achieve compliance with the conditions
of this permit. Proper operation and
maintenance includes effective
performance, adequate funding.
adequate operator staffing and training,
and adequate laboratory and process
controls, including appropriate quality
assurance procedures. This provision
requires the operation of back-up or
auxiliary facilities or similar systems
only when necesssary to achieve
compliance with the conditions of the
permit.
(f) Permit actions. This permit may be
modified, revoked and reissued, or
terminated for cause. The filing of a
request by the permittee for a permit
modification, revocation and reissuance,
or termination, or a notification of
planned changes or anticipated
noncompliancrdoes not stay any permit
condition.
(g) Property rights. This permit does
not convey any property rights of any
sort, or any exclusive privilege.
(h) Duty to provide information. The
permittee shall furnish to the Director,
within a reasonable time, any
information which the Director may
request to determine whether cause
exists for modifying, revoking and
reissuing, or terminating this permit or
to determine compliance with this
permit. The permittee shall also furnish
to the Director upon request, copies of
records required to be kept by this
permit.
(i) Inspection and entry. The permittee
shall allow the Director, or an
authorized representative, upon the
presentation of credentials and other
documents as may be required by law,
to:
(1) Enter upon the permittee's
premises where a regulated facility or
activity is located or conducted, or
where records must be kept under the
conditions of this permit;
(2) Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit:
(3) Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment),
practices, or operations regulated or
required under this permit; and
(4) Sample or monitor at reasonable
times, for the purposes of assuring
permit compliance or as otherwise
authorized by the Clean Water Act, any
substances or parameters at any
location.
(j) Monitoring and records. (1)
Samples and measurements taken for
the purpose of monitoring shall be
representative of the monitored activity.
(2) The permittee shall retain records
of all monitoring information, including
all calibration and maintenance records
and all original strip chart recordings for
continuous monitoring instrumentation,
copies of all reports required by this
permit and records of all data used to
complete the application for this permit
for a period of at least 3 years from the
date of the sample, measurement, report
or application. This period may be
extended by request of the Director at
any time.
(3) Records of monitoring information
shall include:
(i) The date, exact place, and time of
sampling or measurements;
(ii) The individual(s) who performed
the sampling or measurements;
(iii) The date(s) analyses were
performed;
(iv) The in'dividual(s) who performed
the analyses; '
(v) The analytical'techniques or
methods used; and
(vi) The results of such analyses.
(4) Monitoring must be conducted
according to test procedures Approved
under 40 CFR Part 136, unless other test
procedures have been specified in this
permit.
(5) The Clean Water Act provides that
any person who falsifies, tampers with,
or knowingly renders inaccurate any
monitoring device or method required to
be maintained under this permit shall,
upon conviction, be punished by a fine
of not more than 810,000 per violation, or
by imprisonment for not more than 6
months per violation, or by both.
(k) Signatory requirement. (1) All
applications, reports, or information _-
submitted to the Director shall be signed
and certified. (See § 122.22)
(2) The CWA provides that any
person who knowingly makes any false
statement, representation, or
certification in any record or other
document submitted or required to be
maintained under this permit, including
monitoring reports or reports of
compliance or non-compliance shall,
upon conviction, be punished by a fine
of not more than 510,000 per violation, or
by imprisonment for not more than 6
months per violation, or by both.
(1) Reporting requirements. (1)
Planned changes. The permittee shall
give notice to the Director as soon as
possible of any planned physical
alterations or additions to the permitted
facility.
(2) Anticipatednoncompliance. The
permittee shall give advance notice to
the Director of any planned changes in
the permitted facility or activity which
may result in noncompliance with
permit requirements.
(3) Transfers. This permit is not
transferable to any person except after
notice to the Director. The Director may
require modification or revocation and
reissuance of the permit to change the
name of the permittee and incorporate
such other requirements as may be
necessary under the Clean Water Act.
(See § 122.61; in some cases.
modification or revocation and
reissuance is mandatory.)
(4) Monitoring reports. Monitoring
results shall be reported at the intervals
specified elsewhere in this permit
(i) Monitoring results must be reported
on a Discharge Monitoring Report
(DMR).
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14168 Federal Register / Vol. 48. No. 64 / Friday, April 1, 1983 / Rules and Regulations
(ii) If the permittee monitors any
pollutant more frequently than required
by the permit, using test procedures
approved under 40 CFR 136 or as
specified in the permit, the results of this
monitoring shall be included in the
calculation and reporting of the data
submitted in the DMR.
(iii) Calculations for all limitations
which require averaging of
measurements shall utilize an arithmetic
mean unless otherwise specified by the
Director in the permit.
(5) Compliance schedules. Reports of
compliance or noncompliance with, or
any progress reports on. interim and
final requirements contained in any
compliance schedule of this permit shall
be submitted no later than 14 days
following each schedule date.
(6) Twenty-four hour reporting, (i) The
permittee shall report any
noncompliance which may endanger
health or the environment. Any
information shall be provided orally
within 24 hours from the time the
permittee becames aware of the
circumstances. A written submission
shall also be provided within 5 days of
the time the permittee becomes aware of
the circumstances. The written
submission shall contain a description
of the noncompliance and its cause: the
period of noncompliance, including
exact dates and times, and if the
noncompliance has not been corrected.
the anticipated time it is expected to
continue: and steps taken or planned to
reduce.-eliminate, and prevent
reoccurrence of-the noncompliance.
(ii) The following shall be included as
information which must be reported
within 24 hours under this paragraph.
(A) Any unanticipated bypass which
exceeds any effluent limitation in the
permit. (See § 122.41(g).
(B) Any upset which exceeds any
effluent limitation in the permit.
(C) Violation of a maximum daily
discharge limitation for any of the-
pollutants listed by the Director in the
permit to be reported within 24 hours.
(See § 122.44(g).)
(iii) The Director may waive the
written report on a case-by-case basis
for reports under paragraph (l)(6)(ii) of
this section if the oral report has been
received within 24 hours.
(7) Other noncompliance. The
permittee shall report all instances of
noncompliance not reported under
paragraphs (1) (4), (5). and (6) of this
section, at the time monitoring reports
are sumbitted. The reports shall contain
the information listed in paragraph (1)(6)
of this section.
(m) Bypass. (1) Definitions, (i)
"Bypass" means the intentional
diversion of waste streams from any
portion of a treatment facility.
(ii) "Severe property damage" means
substantial physical damage to property,
damage to the treatment facilities which
causes them to become inoperable, or
substantial and permanent loss of
natural resources which can reasonably
be expected to occur in the absence of a
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
(2) Bypass not exceeding limitations.
The permittee may allow any bypass to
occur which does not cause effluent
limitations to be exceeded, but only if it
also is for essential maintenance to
assure efficient operation. These
bypasses are not subject to the
provisions of paragraphs (m)(3) and
(m)(4) of this section.
(3) Notice, (i) Anticipated bypass. If
the permittee knows in advance of the
need for a bypass, it shall submit prior
notice, if possible at least ten days
before the date of the bypass.
(ii) Unanticipated bypass. The
permittee shall submit notice of an
unanticipated bypass as required in
paragraph (1)(6) of this section (24-hour
notice).
(4) Prohibition of bypass, (i) Bypass is
prohibited, and the Director may take
enforcement action against a permittee
for bypass, unless:
(A) Bypass was unavoidable to
prevent loss of life, personal injury, or
severe property damage;
(B) There were no feasible
alternatives to the bypass, such as the
use of auxiliary treatment facilities,
retention of untreated wastes, or
maintenance during normal periods of
equipment downtime. This condition is
not satisfied if the permittee could have
installed adequate backup equipment to
prevent a bypass which occurred during
normal periods of equipment downtime
or preventive maintenance: and
(C) The permittee submitted notices
as required under paragraph (m)(3) of
this section.
(ii) The Director may approve an
anticipated bypass, after considering its
adverse effects, if the Director
determines that it will meet the three
conditions listed above in paragraph
(m)(4](i) of this section.
(n) Upset. (1) Definition. "Upset"
means an exceptional incident in which
there is unintentional and temporary
noncompliance with technology based
permit effluent limitations because of
factors beyond the reasonable control of
the permittee. An upset does not include
noncompliance to the extent caused by
operational error, improperly designed
treatment facilities, inadequate
treatment facilities, lack of preventive
maintenance, or careless or improper
operation,
(2) Effect of an upset. An upset
constitutes an affirmative defense to an
actipn. brought for noncompliance with
such technology /based permit effluent
limitations if the requirements of
paragraph (n)(3) of this section are met.
No determination made during
administrative review of claims that
noncompliance was caused by upset,
and before an action for noncompliance,
is final administrative action subject to
judicial review.
(3) Conditions necessary for a
demonstration of upset. A permittee
who wishes to establish the affirmative
defense of upset shall demonstrate,
through properly signed.
contemporaneous operating logs, or
other relevant evidence that:
(i) An upset occurred and that the
permittee can identify the specific
cause(s) of the upset;
(ii) The permitted facility was at the
time being properly operated; and
(iii) The permittee submitted notice of
the upset as required in paragraph
(l)(6)(ii)(B) of this section (24 hour
notice).
(iv) The permittee complied with any
remedial measures required under
paragraph (d) of this section.
(4) Burden of proof. In any
enforcement proceeding the permittee
seeking to establish the occurrence of an
upset has the burden of proof.
§ 122.42 Additional conditions applicable
to specified categories of NPDES permits
(applicable to State NPDES programs, see
§ 123.25).
The following conditions, in addition
to' those set forth in § 122.41, apply to all
• NPDES permits within the categories
specified below:
(a) Existing manufacturing.
commercial, mining, and silvicultural
dischargers. In addition to the reporting
requirements under § 122.41(1), all
existing manufacturing, commercial,
mining, and silvicultural dischargers
must notify the Director as soon as they
know or have reason to believe:
(1) That any activity has occurred or
will occur which would result in the
discharge of any toxic pollutant which is
not limited in the permit, if that
discharge will exceed the highest of the
following "notification levels":
(i) One hundred micrograms per liter
(100 ng/l);
(ii) Two hundred micrograms per liter
(200 fig/1) for acrolein and acrylonitrile;
five hundred micrograms per liter (500
Hg/1) for 2,4-dinitrophenol and for 2-
methyl-4,6-dinitrophenol; and one
milligram per liter (1 mg/1) for antimony;
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Federal Register /Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14169
(iii) Five (5) times the maximum
concentration value reported for that
pollutant in the permit application in
accordance with § 12Z21 (g)(7) or (g)
(10); or
(iv) The level established by the
Director in accordance with § 122.44(f).
(2) That they have begun or expect to
begin to use or manufacture as an
intermediate or final product or
byproduct any toxic pollutant which
was not reported in the permit
application under § 122.21(g)(9).
(b) Publicly owned treatment works.
All POTWs must provide adequate
notice to the Director of the following:
(1) Any new introduction of pollutants
into the POTW from an indirect
discharger which would be subject to
sections 301 or 306 of CWA if it were
directly discharging those pollutants:
and
(2) Any substantial change in the
volume or character of pollutants being
introduced into that POTW by a source
introducing pollutants into the POTW at
the time of issuance of the permit.
(3) For purposes of this paragraph.
adequate notice shall include
information on (i) the quality and
quantity of effluent introduced into the
POTW, and (i) any anticipated impact of
the change on the quantity or quality of
effluent to be discharged from the
POTW.
§ 122.43 Establishing permit conditions
(applicable to State programs, see
§ 123.25).
(a) In addition to conditions required
in all permits (§§ 122.41 and 122.42), the
Director shall establish conditions, as
required on a case-by-case basis, to
provide for and assure compliance with
all applicable requirements of CWA and
regulations. These shall include
conditions under §§ 122.46 (duration of
permits), 122.47{a) (schedules of
compliance), 122.48 (monitoring), and for
EPA permits only 122.47(b) (alternates
schedule of compliance) and 122.49
(considerations under Federal law).
(b)(l) For a State issued permit an
applicable requirement is a State
statutory or regulatory requirement
which takes effect prior to final
administrative disposition of a permit
For a permit issued by EPA, an
applicable requirement is a statutory or
regulatory requirement (including any
interim final regulation) which takes
effect prior to the issuance of the permit
(except as provided in § 124.86(c) for
NPDES permits being processed under
Subparts E or F of Part 124). Section
124.14 (reopening of comment period)
provides a means for reopening EPA
permit proceedings at the discretion of
the Director where new requirements
become effective during the permitting
process and are of sufficient magnitude
to make additonal proceedings
desirable: For State and EPA
administered programs, an applicable
requirement is also any requirement
which takes effect prior to the
modification or revocation and
reissuance of a permit, to the extent
allowed in § 122.62.
(2) New or reissued permits, and to
the extent allowed under § 122.62
modified or revoked and reissued
permits, shall incorporate each of the
applicable requirements referenced in
§§ 122.44 and 122.45.
(c) Incorporation. All permit
conditions shall be incorporated either
expressly or by reference. If
incorporated by reference, a specific
citation to the applicable regulations or
requirements must be given in the
permit.
§ 122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPOES programs, see
§ 123.25).
In addition to the conditions
established under § 122.43(a), each
NPDES permit shall include conditions
meeting the following requirements
when applicable.
(a) Technology-based effluent
. limitations and standards based on
effluent limitations and standards
promulgated under section 301 of CWA
or new source performance standards
promulgated under section 306 of CWA.
on case-by-case effluent limitations
determined under section 402(a)(l) of
CWA, or on a combination of the two, in
accordance with § 125.3. For new
sources or new dischargers, these
technology based limitations and
standards are subject to the provisions
of § 122>29(d) (protection period).
. (b) Other effluent limitations and
standards under sections 301,302,303,
307,318, and 405 of CWA. If any
applicable toxic effluent standard or
prohibition (including any schedule of
compliance specified in such effluent
standard or prohibition) is promulgated
under section 307(a) of CWA for a toxic
pollutant and that standard or
prohibition is more stringent than any
limitation on the pollutant in the permit
the Director shall institute proceedings
under these regulations to modify or
revoke and reissue the permit to
conform to the toxic effluent standard or
prohibition. See also § 122.41(a).
(c) Reopener clause: for any
discharger within a primary industry
category (see Appendix A),
requirements under section 307(a)(2) of
CWA as follows:
(1) On or before June 30,1983: (i) If
applicable standards or limitations have
not yet been promulgated, the permit
shall include a'condition stating that, if
an applicable standard'or limitation is
promulgated under sections 301(b)(2) (C)
and (D), 304(b)(2), and 307(a)(2) and that
effluent standard or limitation is more
stringent than any effluent limitation in
the permit or controls a pollutant not
limited in the permit, the permit shall be
promptly modified or revoked and
reissued to conform to that effluent
standard or limitation.
(ii) If applicable standards or
limitations have been promulgated or
approved, the permit shall include those
standards or limitations. (If EPA
approves existing effluent limitations or
proves existing effluent limitations or
decides not to develop new effluent
. limitations, it will publish a notice in the
Federal Register that the limitations are
"approved" for the purpose of this
regulation.)
(2) After June 30.1981, any permit
issued shall include effluent limitations
and a compliance schedule to meet the
requirements of sections 301(b](2) (A),
(C). (D), (E) and (F) of CWA. whether or
not applicable effluent limitations
guidelines have been promulgated or
approved. These permits need not
incorporate the clause required by
paragraph (c)(l) of this section.
(3) The Director shall promptly modify
or revoke and reissue any permit
containing the clause required under
paragraph (c)(l) of this section to
incorporate an applicable effluent
standard or limitation under sections
301(b)(2) (C) and (D), 304(b)(2), and
307(a)(2) which is promulgated or
approved after the permit is issued if
that effluent standard or limitation is
more stringent than any effluent
limitation in the permit or controls a
pollutant not limited in the permit
(d) Water quality standards and State
requirements: any requirements in
addition to or more stringent than
promulgated effluent limitations
guidelines or standards under sections
301, 304,306.307,318, and 405 of CWA
necessary to:
(1) Achieve water quality standards
established under section 303 of CWA:
(2) Attain or maintain a specified
water quality through water quality
related effluent limits established under
section 302 of CWA;
(3) Conform to the conditions of a
State certification under section 401 of
CWA which meet the requirements of
§ 124.53 when EPA is the permit issuing
authority, however, if a State
certification is stayed by a court of
competent jurisdiction or appropriate
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
State board or agency. EPA shall include
conditions in the permit which may be
necessary to meet EPA's obligation
.under section 3Ql(b)(l)(C) of CWA;
(4) Conform to applicable water
quality requirements under section
40l(a)(2) of CWA when the discharge
affects a State other than the certifying
State;
(5) Incorporate any more stringent
limitations, treatment standards, or
schedule of compliance requirements
established under Federal or State law
or regulations in accordance with
section 301(b)(l)(C) of CWA:
(6) Ensure consistency with the
requirements of a Water Quality
Management plan approved by EPA
under section 208(b) of CWA:
(7) incorporate section 403(c) criteria
under Part 125, Subpart M. for ocean
discharges;
(8) Incorporate alternative effluent
limitations or standards where
warranted by "fundamentally different
factors," under 40 CFR Part 125. Subpart
D;
[9) Incorporate any other
requirements, conditions, or limitations
into a new source permit under the
National Environmental Policy Act 42
U.S.C. 4321 et seq. and section 511 of
CWA, when EPA is the permit issuing
authority (see § 12239).
(e) Toxic pollutants: limitations
established under paragraphs (a), fo], or
(d) of this section, to control pollutants
meeting the criteria listed in paragraph
(e)(l) of this section. Limitations will be
established in accordance with
paragraph (e)(2) of this section. An
explanation of the development of these
limitations shall be included in the fact
shee-t under § 124.56(e)(2).
(1) Limitations must control all toxic
pollutants which:
(i) The Director determines (based on
information reported in.a permit
application under § 122Un(g)(7) or (10)
or in a notification under § 122.42(a)(l)
or on other information) are or may be
discharged at a level greater than the
level which can be achieved by the
technology-based treatment
requirements appropriate to-the
permittee under § 125.3(c); or
(ii) The discharger does or may use or
manufacture as an intermediate cr final
product or byproduct
(2) The requirement that the
limitations control the pollutants
meeting the criteria of paragraph (e)(l)
of this section will be satisfied by.
(i] Limitations on those pollutants; or
(ii) Limitations on other pollutants
which, in the judgment of the Director.
will provide treatment of the pollutants
under paragraph (e)(l) of this section to
the levels required by § 125.3(c).
(f) Notification level: a "notification
level" which exceeds the notification
level of § 122.42(a)(l)(i). (ii). or (iii), upon
a petition from the permittee oc on the
Director's initiative. This new
notification level may not exceed the
level which can be achieved by the
technology-based treatment
requirements appropriate to the
permittee under § 125.3(c)
(g) Twenty-four hour reporting:
Pollutants for which the permittee must
report violations of maximum daily
discharge limitations under
§ 122.41(l)(6)(i!)(C)(24-hour reporting)
shall be listed in the permit This list
shall include any toxic pollutant or
hazardous substance, or any pollutant
specifically identified as the method to
control a toxic pollutant or hazardous
substance.
(h) Durations for permits, as set forth
in § 122.46.
(i) Monitoring requirements: In
addition to § 122.46," the following
monitoring requirements:
(1) To assure compliance with permit
limitations, requirements to monitor:
(i) The mass (or other measurement
specificed in the permit) for each
pollutant limited in the permit
(ii) The volume of effluent discharged
from each outfall:
(iii) Other measurements as
appropriate; including pollutants in
internal waste streams under § 122.45(i).
pollutants in intake water for net
limitations under § 122.45(f): frequency,
rate of discharge, etc* for noncontinuous
discharges under § 12Z45(e); and
pollutants subject to notification
requirements under § 122.42(a).
(iv) According to test procedures
approved under 40 CFR Part 136 for the
analyses of pollutants having approved
methods under that Part and according
to a test procedure specified in the
permit for pollutants with no approved
methods. •
(2) Requirements to report monitoring
results with a frequency dependent on
the nature and effect of the discharge.
but in no case less than once a year.
(j) Pretreatment program for POTWs:
requirements for POTWs to:
(1) Identify, in terms of character and
volume of pollutants, any significant
indirect dischargers into the POTW
subject to pretreatznent standards under'
section 307(b) of CWA and 40 CFR Part
403.
(2) Submit a local program when
required by and in accordance with 40
CFR Part 403 to assure compliance with
pretreatment standards to the extent
applicable under section 307(b). The
local program shall be incorporated into
the permit as described in 40 CFR Part
403. The program shall require all
indirect dischargers to the POTW to
comply with the reporting requirements
of 40 CFR Part 403.
(k) Best management practices to "
control-or abate the discharge of
pollutants when?
(1) Authorized under section 304(e) of
CWA for the control of toxic pollutants
and hazardous substances from
ancillary industrial activities;
(2) Numeric effluent limitations are
infeasible, or
(3) The practices are reasonably
necessary to achieve effluent limitations
and standards or to carry out the
purposes and intent of CWA.
(1) Reissued permits. (1) Except as
provided in paragraph (1)(2) of this
section when a permit is renewed or
reissued, interim limitations, standards
or conditions which are at least as
stringent as the final limitations,
standards, or conditions in the previous
permit (unless the circumstances on
which the previous permit was based -
have materially and substantially
changed since the time the permit was
• issued and would constitute cause for
permit modification or revocation and
reissuar.ce under § 122.62).
(2) When effluent limitations were
imposed under section 402(a)(l) of CWA
in a previously issued permit and these
limitations are more stringent than the
subsequently promulgated effluent
guidelines, this paragraph shall apply
unless:
(i) The discharger has installed the
treatment facilities required to meet the
effluent limitations in the previous
permit and has properly operated and
maintained the facilities but has
nevertheless been unable to achieve the
previous effluent limitations. In this case
the limitations in the renewed or
reissued permit may reflect the level of
pollutant control actually achieved (but
shall not be less stringent than required
by the subsequently promulgated
effluent limitation guidelines);
(ii) In the case of an approved State.
State law prohibits permit conditions
more stringent than an.applicable
effluent limitation guideline;
(iii) The subsequently promulgated
effluent guidelines are based on best
conventional pollutant control
technology (section 301(b)(2)(E) of
CWA);
(iv) The circumstances on which the
previous permit was based have
materially and substantially changed
since the time the permit was issued and
would constitute cause for permit
modification or revocation and
reissuance under § 122.62; or
(v) There is increased production at
the facility which results in significant
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Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations 14171
reduction in treatment efficiency, in
which case the permit limitations will be
adjusted to reflect any decreased
efficiency resulting from increased
production and raw waste loads, but in
no event shall permit limitations be less
stringent than those required by
subsequently promulgated standards
and limitations.
(m) Privately owned treatment works:
For a privately-owned treatment works,
any conditions expressly applicable to
any user, as a limited co-permittee, that
may be necessary in the permit issued to
the treatment works to ensure
compliance with applicable
requireisants under this Part.
Alternatively, the Director may issue
separate permits to the treatment works
and to its users, or may require a
separate permit application from any
user. The Director's decision to issue a
permit with no conditions applicable to
any user, to impose conditions on one or
more users, to issue separate permits, or
to require separate applications, and the
basis for that decision, shall be stated in
the fact sheet for the draft permit for the
treatment works.
(n) Grants: Any conditions imposed in
grants made by the Administrator to
POWs under sections 201 and 204 of -
CWA which are reasonably necessary .
for the achievement of effluent
limitations under section 301 of CVVA.
(o) Sewage sludge: Requirements
under section 405 of CWA governing the
disposal of sewage sludge from publicly
owned treatment works, in accordance
with any applicable regulations.
(p) Coast Guard: when a permit is
issued to a facility that may operate at
certain times as a means of
transportation over water, a condition
that the discharge shall comply with any
applicable regulations promulgated by"
the Secretary of the department in
which the Coast Guard is operating, that
establish specifications for safe
transportation, handling, carriage, and
storage of pollutants.
(q) Navigation: any conditions that
the Secretary of the Army considers
necessary to ensure that navigation and
anchorage will not be substantially
impaired, in accordance with § 124.58.
§ 122.45 CalcuJttifKj NPDES permit
conditions (applicable to State NPDES
programs, see § 123-25).
(&) Outfalls and discharge points. All
permit effluent limitations, standards
and prohibitions shall be established for
each outfall or discharge point of the
permitted facility, except-as otherwise
provided under § 122.44(j)(2) (BMPs
where limitations are infeasible) and
paragraph (i) of this section (limitations
on internal waste streams).
(b) Production-based limitations. [1]
In the case of POTWs, permit
limitations, standards, or prohibitions
shall be calculated based on design
flow.
(2) Except in the case of POTWs,
calculation of any permit limitations,
standards, or prohibitions which are
based on production (or other measure
of operation) shall be based not upon
the designed production capacity but
rather upon a reasonable measure of
actual production of the facility, such as
the production during the high month of
the previous year, or the monthly
average for the highest of the previous 5
years. For new sources or new
dischargers, actual production shall be
estimated using projected- production;
The time period of the measure of
production shall correspond to the time
period of the calculated permit
limitations; for example, monthly
production shall be used to calculate
average monthly discharge limitations.
(c) Metals. All permit effluent
limitations, standards, or prohibitions
for a metal shall be expressed hi terms
of the total metal (that is. the sum of the
dissolved and suspended fractions of
the metal] unless:
(1] An applicable effluent standard or
limitation has been promulgated under
CWA and specifies the limitation for the
metal in the dissolved or valent form: or
(2) In establishing permit limitations '
on a case-by-case basis under § 125.3, it
is necessary to express the limitation on
the metal in the dissolved or valent form
in order to carry out the provisions of *
CWA.
(d) Continuous discharges. For
continuous discharges all permit effluent
limitations, standards, and prohibitions,
including those necessary to achieve
water quality standards, shall unless
impracticable be stated as:
(1) Maximum daily and average
monthly discharge limitations for all*
dischargers other than publicly owned
treatment works; and
(2) Average weekly and average
monthly discharge limitations for
POTWs.
(e) Non-continuous discharges.
Discharges which are not continuous, as
denned in § 122.2. shall be particularly
described and limited, considering the
following factors, as appropriate:
(1) Frequency (for example, a batch
discharge shall not occur more than
once every 3 weeks):
(2) Total mass (for example, not to
exceed ICO kilograms of zinc and 200
kilograms of chromium per batch
discharge);
(3) Maximum rate of discharge of
pollutants during the discharge (for
example, not to exceed 2 kilograms of
zinc per minute); and
(4) Prohibition or limitation of
specified pollutants by mass,
concentration, or other appropriate
measure (for example, shall not contain
at any time more than 0.1 mg/1 zinc or
more than 250 grams (X kilogram) of
zinc in any discharge).
(f) Mass limitations. (1) All pollutants
limited in permits shall have limitations,
standards or prohibitions expressed in
terms of mass except:
(i) For pH, temperature, radiation, or
other pollutants which cannot
appropriately be expressed by ir.a;,s;
(ii) When applicable standards and
limitations are expressed in terms of
other units of measurement; or
(iii) if in establishing permit
limitations on a case-by-case basis
under § 125.3, limitations expressed in
terms of mass are infeasible because the
mass of the pollutant discharged cannot
be related to a measure of operation (for
example, discharges of TSS from certain
mining operations), and permit
conditions ensure that dilution will not
be used as a substitute for treatment.
(2) Pollutants limited in terms of mass
additionally may be limited in terms of
other units of measurement, and the
permit shall require the permittee to
comply with both limitations.
(g) Pollutants in intake water. Except
as provided in paragraph (h) of this
section, effluent limitations imposed in
permits may not be adjusted for
pollutants in the intake water.
(h) Net limitations.
(1) Upon request of the discharger.
effluent limitations or standards
imposed in a permit shall be calculated
on a "net" basis: that is. adjusted to
reflect credit for pollutants in the
discharger's intake water, if the
discharger demonstrates that its intake
water is drawn from the same body of
water into which the discharge is made
and if:
(i)(A) The applicable effluent
limitations and standards contained in
40 CFR Subchapter N specifically
provide that they shall be applied on a
net basis; or
(B) The discharger demonstrates that
pollutants present in the intake water
will not be entirely removed by the
treatment systems operated by the
discharger, and
(ii) The permit contains conditions
requiring:
(A) The permittee to conduct
additional monitoring (for example, for
flow and concentration of pollutants) as
necessary to determine continued
eligibility for and compliance with any
such adjustments; and
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14172 Federal Register / Vol. 48. No. 84 / Friday,.April 1. 1983 / Rules and Regulations
(B) The permittee to notify the
Director if eligibility for an.adjustment
under this section has been altered or no
longer exists. In that case, the permit
may be modified accordingly under
§ 122.62.
(2] Permit effluent limitations or
standards adjusted under this paragraph
shall be calculated on the basis of the
amount of pollutants present after any
treatment steps have been performed on
the intake water by or for the
discharger. Adjustments under this
paragraph shaft be given only to the
extent that pollutants in the intake
water which are limited in the permit
are not removed by the treatment
technology employed by the discharger.
In addition, effluent limitations or
standards may not be adjusted to the
extent that the pollutants in the intake
water vary physically, chemically, or
biologically from the pollutants limited
in the permit. Nor may effluent
limitations or standards be adjusted to
the extent that the discharger
significantly increases concentrations of
pollutants in the intake water, even
though the total amount of pollutants
might remain the same.
(i) Internal waste streams. [1] When
permit effluent limitations or standards
imposed at the point of discharge are
impractical or infeasible, effluent
limitations or standards for discharges
of pollutants may be imposed on
internal waste streams before mixing
with other waste streams or cooling
water streams. La those instances, the
monitoring required by § 122.44(i) shall
also be applied to the internal waste
streams.
(2) Limits on internal waste streams
will be imposed only when the fact
sheet under § 124.56 sets forth the
exceptional circumstances which make
such limitations necessary, such as
when the final discharge point is
inaccessible (for example, under 10
meters of water), the wastes at the point
of discharge are so diluted as to make
monitoring impracticable, or the
interferences among pollutants at the
point of discharge would make detection
or analysis impracticable.
(j) Disposal of pollutants into ivells,
into POTWs or by land application.
Permit limitations and standards shall
be calculated as provided in § 122.50.
§ 122.46 Duration of permits (applicable to
State programs, s*« § 123J5).
(a) NPDES permits shall be effective
for a fixed term not to exceed 5 years.
(b) Except as provided in § 122.5, the
term of a permit shall not be extended
by modification beyond the maximum
duration specified in this section.
(c) The Director may issue any permit
for a duration that is less than the full
allowable term under this section.
(d) On or before June 30,1981, any
permit issued to a discharger in a
primary industry category (see
Appendix A of this Part):
(1) Shall meet one of the following
conditions:
(i) Expire on June 30,1981;
(ii) Incorporate effluent standards and
limitations applicable to the discharger
which have been promulgated or
approved under sections 301(b)(2) (C)
and (D). 304(b)(2), and 307(a)(2) of CWA:
or
(iii) Incorporate the "reopener clause"
required by § 122.44(c)(l), and effluent
limitations to meet the requirements of
sections 301(b)(2) (A)..(C), (D), (E), and
(F) of CWA.
(2) Shall not be written to expire after
June 30.1961 unless the discharger has
submitted to the Director the
information required by § 122.21(g)(7)(ii).
(e) After June 30,1981. a permit may
be issued for the full term if the permit
includes effluent limitations and a
compliance schedule to meet the
requirements of sections' 301(b)(2) (A).
(C). (D). (E). and (F) of CWA. whether or
not applicable effluent limitations
guidelines have been promulgated or
approved.
(f) A determination that a particular
discharger falls within a given industrial
category for purposes of setting a permit
expiration date under paragraph (e) of
this section is not conclusive as to the
discharger's inclusion in that industrial
category for any other purposes, and
does not prejudice any rights to
challenge or change that inclusion at the
time that a permit based on that
determination is formulated.
§ 12Z47 Schedules of compliance.
(aj General (applicable to State
programs, see § 123.25). The permit may,
when appropriate, specify a schedule of
compliance leading to compliance with
CWA and regulations.
(1) Time for compliance. Any
schedules of compliance under this
section shall require compliance as soon
as possible, but not later than the
applicable statutory deadline under the
CWA.
(2) The first NPDES permit issued to a
new source, a new discharger which
commenced discharge after August 13,
1979, or a recommencing discharger may
not contain a schedule of compliance
under this section. See also
§ 122.29(d)(4).
(3) Interim dates. Except as provided
in paragraph (b)(l)(ii), if a permit
establishes a schedule of compliance
which exceeds 1 year from the date of
permit issuance, the schedule shall set
forth interim requirements and the dates
for their achievement.
(i) The time between interim dates
shall not exceed'1 year..
(ii) If the time' necessary for
completion of any interim requirement
(such as the construction of a control
facility) is more than 1 year and is not
readily divisible into stages for
completion, the permit shall specify
interim dates for the submission of
reports of progress toward completion of
the interim requirements and indicate a
projected completion date.
[Note.—Examples of interim requirements
include: (a) submit a complete Step 1
construction grant (for POTA's): (b) let a
contract for construction of required
facilities: (c) commence construction of
required facilities: (d) complete construction
of required facilities.]
(4) Reporting. The permit shall be
written to require that no later than 14-
days following each interim date and
the final date of compliance, the
permittee shall notify the Director in
writing of its compliance or
noncompliance with the interim or final
requirements, or submit progress reports
if paragraph (a)(l)(ii) is applicable.
(b) Alternative schedules of
compliance. An NPDES permit applicant
or permittee may cease conducting
regulated activities (by terminating of
direct discharge for NPDES sources)
rather than continuing to operate and
meet permit requirements as follows:
^ (1) If the permittee decides to cease
conducting regulated activities at a
given time within the term of a permit
which has already been issued:
(i) The permit may be modified to
contain a new or additional schedule.
leading to timely cessation of activities;
or
• (ii) The permittee shall cease
conducting permitted activities before
non-compliance with any interim or
final compliance schedule requirement
already specified in the permit.
(2) If the decision to cease conducting
regulated activities is made before
issuance of a permit whose term will
include the termination date, the permit
shall contain a schedule leading to
termination which will ensure timely
compliance with applicable
requirements no later than the statutory
deadline.
(3) If the permittee is undecided
whether to cease conducting regulated
activities, the Director may issue or
modify a permit to contain two
schedules as follows:
(i) Both schedules shall contain an
identical interim deadline requiring a
final decision on whether to cease
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Federal Register / Vol 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14173
conducting regulated activities no later
than a date which ensures sufficient
time to comply with applicable
requirements in a timely manner if the
decision is to continue conducting
regulated activities:
(ii) One schedule shall lead to timely
compliance with applicable •
requirements, no later than the statutory
deadline;
(iii) The second schedule shall lead to
cessation of regulated activities by a
date which will ensure timely
compliance with applicable
requirements no later than the statutory
deadline.
(iv) Each permit containing two
schedules shall include a requirement
that after the permittee has made a final
decision under paragraph (b)(3)(i) of this
section it shall follow the schedule
leading to compliance if the decision'is
to continue conducting regulated
activities, and follow the schedule
leading to termination if the decision is
to cease conducting regulated activities.
(4) The applicant's or permittee's
decision to cease conducting regulated
activities shall be evidenced by a firm
public commitment satisfactory to the
Director, such as a resolution of the
board of directors of a corporation.
§ 122.48 Requirements tor recording and
reporting of monitoring results (applicable
to State programs, see § 123.25).
All permits shall specify.
(a) Requirements concerning the
proper use, maintenance, and
installation, when appropriate, of
monitoring equipment or methods
(including biological monitoring
methods when appropriate);
(b) Required monitoring including
type, intervals, and frequency sufficient
to yield data which are representative of
the monitored activity including, when
appropriate, continuous monitoring;
(c) Applicable reporting requirements
based upon the impact of the regulated
activity and as specified in § 122.44.
Reporting shall be no less frequent than
specified in the above regulations.
§ 122.49 Considerations under Federal
law.
Permits shall be issued in a manner
and shall contain conditions consistent
with requirements of applicable Federal
laws. These laws may include:
(a) The Wild and Scenic Rivers Act,
16 U.S.C. 1273 et seq. Section 7 of the
Aot prohibits the Regional
Administrator from assisting by license
or otherwise the construction of any
water resources project that would have
a direct, adverse effect on the values for
which a national wild and scenic river
was established.
(b) The National Historic
Preservation Act of 1966.16 U.S.C. 470
et seq. Section 106 of the Act and
implementing regulations (36 CFR Part
800) require the Regional Administrator,
before issuing a' license, to adopt
measures when feasible to mitigate
potential adverse effects of the licensed
activity and properties listed or eligible
for listing in the National Register of
Historic Places. The Act's requirements
are to be implemented in cooperation
with State Historic Preservation Officers
and upon notice to, and when
appropriate, in consultation with the
Advisory Council on Historic
Preservation.
(c) The Endangered Species Act, 16
U.S.C. 1531 et seq. Section 7 of the Act
and implementing regulations (50 CFR
Part 402} require the Regional
Administrator to ensure, in consultation
with the Secretary of the Interior or
Commerce, that any action authorized
by EPA is not likely to jeopardize the
continued existence of any endangered
or threatened species or adversely affect
its critical habitat.
(d) The Coastal Zone Management
Act. 16 U.S.C. 1451 et seq. Section 307(c)
of the Act and implementing regulations
(15 CFR Part 930) prohibit EPA from
issuing a permit for an activity affecting
land or water use in the coastal zone
until the applicant certifies that the
proposed activity complies with the
State Coastal Zone Management
program, and the State or its designated
agency concurs with the certification (or
the Secretary of Commerce overrides
the State's nonconcurrence).
(e) The Fish and Wildlife
Coordination Act, 16 U.S.C 661 et seq.,
requires that the Regional
Administrator, before issuing a permit .
proposing or authorizing the
impoundment (with certain exemptions),
diversion, or other control or
modification of any body of water.
consult with the appropriate State
agency exercising jurisdiction over
wildlife resources to conserve those
resources.
(f) Executive orders. [Reserved.]
(g) The National Environmental
Policy Act, 33 U.S.C. 4321 et seq., may
require preparation of an Environmental
Impact Statement and the inclusion of
ElS-related permit conditions, as
provided in § 122JJ9(c).
§ 12230 Disposal of pollutants into wells,
Into publicly owned treatment works or by
land application (applicable to State NPOES
programs, see § 123.25).
(a) When part of a discharger's
process wastewater is not being
discharged into waters of the United
States or contiguous zone because it is
disposed into a well, into a POTW, or by
land application thereby reducing the
flow or level of pollutants being
discharged into waters of the United
States, applicable effluent standards
and limitations for the/discharge in an
NPOES permit shall be adjusted to
reflect the reduced raw waste resulting
from such disposal Effluent limitations
and standards in the permit shall be
calculated by one of the following
methods:
(1) If none of the waste from a
particular process is discharged into
waters of the United States, and effluent
limitations guidelines provide separate
allocation for wastes from that process,
all allocations for the process shall be
eliminated from calculation of permit
effluent limitations or standards.
(2) In all cases other than those
described in paragraph (a)(l) of this
section, effluent limitations shall be
adjusted by multiplying the effluent
limitation derived by applying effluent
limitation guidelines to the total waste
stream by the amount of wastewater
flow to be treated and discharged into
waters of the United States, and
dividing the result by the total
wastewater flow. Effluent limitations
and standards so calculated may be '•
further adjusted under Part 125, Subpart
D to make them more stringent if
discharges to wells, publicly owned
treatment works, or by land application
change the character or treatability of
the pollutants being discharged to
receiving waters.
This method may be algebraically
expressed as:
where P is the permit effluent limitation, E is
the limitation derived by applying effluent
guidelines to the total waste stream. N is the
wastewater flow to be treated and
discharged to waters cf the United States.
and T is the total wastewater flow.
(b) Paragraph (a) of this section does
not apply to the extent that promulgated
effluent limitations guidelines:
(1) Control concentrations of
pollutants discharged but not mass; or
(2) Specify a different specific
technique for adjusting effluent
limitations to account for well injection,
land application, or disposal into
POTWs.
(c) Paragraph (a) of this section does
not alter a discharger's obligation to
meet any more stringent requirements
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14174 Federal Register / Vol. 4B. No. 64 / Friday. April 1, 1983 / Rules and Regulations
established under §§ 122.41.122.42.
122.43. and 122.44.
Subpart D—Transfer, Modification,
Revocation and Reissuance, and
Termination of Permits
§ 122.61 Transfer of permits (applicable to
State programs, see § 123.25).
(a) Transfers by modification. Except
as provided in paragraph (b) of this
section, a permit may be transferred by
"the permittee to a new owner or
operator only if the permit has been
modified or revoked and reissued (under
§ 122.62(b)(2)), or a minor modification
made (under 5122.63(d)). to identify the
new permittee and incorporate such
other requirements as may be necessary
under CWA.
(b) Automatic transfers. As an
alternative to transfers under paragraph
(a) of this section, any NPDES permit
may be automatically transferred to a
new permittee if:
(1) The current permittee notifies the
Director at least 30 days in advance of
the proposed transfer date in paragraph
(b)(2) of this section:
(2) The notice includes a written
agreement between the existing and
new permittees containing a specific
date for transfer of permit responsibility,
coverage, and liability between them;
and
(3) The Director does not notify the
existing permittee and the proposed new
permittee of his or her intent to modify
or revoke and reissue the permit. A
modification under ths subparagraph
may also be a minor modification under.
§ 122.63. If this notice is not received.
the transfer is effective on the date
specified in the agreement mentioned in
paragraph (b)(2) of this section.
§ 122.62 Modification or revocation and
reissuance of permits (applicable to State
programs, see § 12&25).
When the Director receives any
information (for example, inspects the
facility, receives information submitted
by the permittee as required in the
permit (see § 122.41), receives a request
for modification or revocation and
reissuance under § 124.5, or conducts a
review of the permit file) he or she may
determine whether or not one or more of
the causes listed in paragraphs (a) and
(b) of this section for modification or
revocation and reissuance or both exist
If cause exists, the Director may modify
or revoke and reissue the permit
accordingly, subject to the limitations of
paragraph (c) of this section, and may
request an updated application if
necessary. When a permit is modified,
only the conditions subject to
modification are reopened. If a permit is
revoked and reissued, the entire permit
is reopened and subject to revision and
the permit is reissued for a new term.
See § 124.5(c)(2). If cause does not exist
under this section or § 122.63, the
Director shall not modify or revoke and
reissue the permit. If a permit
modification satisfies the criteria in
§ 122.63 for "minor modifications" the
permit may be modified without a draft
permit or public review. Otherwise, a
draft permit must be prepared and other
procedures in Part 124 (or procedures of
an approved State program) followed.
(a) Causes for modification. The
following are causes for modification
but not revocation and reissuance of
permits except when the permittee
requests or agrees.
(1) Alterations.- There are material and
substantial alterations or additions to
the permitted facility or activity which
occurred dfter permit issuance which
justify the application of permit
conditions that are different or absent in
the existing permit
[Note.—Certain reconstruction activities
may cause the new source provisions of
i \?2?S to be applicable.]
(2) Information. The Director has
received new information. Permits may
be modified during their terms for this
cause only if the information was not
available at the time of permit issuance
(other than revised regulations,
guidance, or test methods) and would
have justified the application of
different permit conditions at the time of
issuance. For NPDES general permits
(§ 122.28) this cause includes any
information indicating that cumulative
effects on the environment are
unacceptable.
(3) New regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of amended standards or
regulations or by judicial decision after
the permit was issued. Permits may be
modified during their terms for this
cause only as follows:
(i) For promulgation of amended
standards or regulations, when:
(A) The permit condition requested to
be modified was based on a
promulgated effluent limitation guideline
or EPA approved or promulgated water
quality standard; and
(B) EPA has revised, withdrawn, or
modified that portion of the regulation
or effluent limitation guideline on which
the permit condition was based, or has
approved a State action with regard to a
water quality standard on which the
permit condition was based; and
(C) A permittee requests modification
in accordance with § 124.5 within ninety
(90) days after Federal Register notice of
the action on which the request is based.
(ii) For judicial decisions, a court of
competent jurisdiction has remanded
and/stayed EPA promulgated
regulations or effluent limitation
guidelines, if the remand and stay
concern that portion of the regulations
or guidelines on which the permit
condition was based and a request is
filed by the permittee in accordance
with § 124.5 within ninety (90) days of
judicial remand.
(iii) For changes based upon modified
State certifications of NPDES permits.
see § 124.55(b).
(4) Compliance schedules. The
Director determines good cause exists
for modification of a compliance
schedule, such as an act of God, strike,'
flood..or materials shortage or other
events over which the permittee has
little or no control and for which there is
no reasonably available remedy.
However, in no case may an NPDES
compliance schedule be modified to
extend beyond an applicable CWA
statutory deadline. See also § 122.63(c)
(minor modifications) and paragraph
(a)(14) of this section (NPDES innovative
technology).
(5) Variances. When the permittee has
filed a request for a variance under
CWA section 301(c), 301(g), 301(h),
301(i), 301(k), or 316(a) or for
"fundamentally different factors" within
the time specified in § 122.21, and the
Director processes the request under the
applicable provisions of § § 124.61
124.62. and 124.64. -
(6) 30~(a) toxics. When required to
incorporate an applicable 307(a) toxic
effluent standard or prohibition (see
§ 122.44(b)).
(7) Reopener. When required by the
"reopener" conditions in a permit, which
are established in the permit under
§ 122.44(b) (for CWA toxic effluent
limitations) or 40 CFR 403.10(e)
(pretreatment program).
(8)(i) Net limits. Upon request of a
permittee who qualifies for effluent
limitations on a net basis under
§ 122.45(h).
(ii) When a discharger is no longer
eligible for net limitations, as provided
in § 122.45(h)(l)(ii)(B).
(9) Pretreatment. As necessary under
40 CFR 403.8(e) (compliance schedule
for development of pretreatment
program).
(10) Failure to notify. Upon failure of
an approved State to notify, as required
by section 402(b)(3), another State
whose waters may be affected by a
discharge from the approved State.
(11) Non-Limited pollutants. When the
level of discharge of any pollutant which
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14175
is not limited in the permit exceeds the
level which can be achieved by the
technology-based treatment
requirements appropriate to the
permittee under § 125.3(c).
(12) Use or manufacture of toxics.
When the permittee begins or expects to
begin to use or manufacture as an
intermediate or final product or
byproduct any toxic pollutant which
was not reported in the permit
application under S 122.21(g)(9).
(13) Notification levels. To establish a
"notification level" as provided in
§ 122.44(f).
(14) Compliance schedules. To modify
a schedule of compliance to reflect the
time lost during construction of an
innovative or alternative facility, in the
case of a POTW which has received a
grant under section 202(a)(3) of CWA for
100% of the costs to modify or replace
facilities constructed with a grant for
innovative and alternative wastewater
technology under section 202(a)(2). In no
case shall the compliance schedule be
modified to extend beyond an
applicable CWA statutory deadline for
compliance.
(b) Causes for modification or
revocation and reissuance. The
following are causes to modify or,
alternatively, revoke and reissue a
permit:
(1) Cause exists for termination under
§ 122.64, and the Director determines
that modification or revocation and
reissuance is appropriate.
(2) The Director has received
notification (as required in the permit
see § 122.41(1)(3)} of a proposed transfer
of the permit. A permit also may be
modified to reflect a transfer after the
effective date of an automatic transfer
(§ 122.61(b)) but will not be revoked and
reissued after the effective date of the
transfer except upon the request of the
new permittee.
§ 122.63 Minor modifications of permits.
Upon the consent of the permittee, the
Director may modify a permit to make
the corrections or allowances for
changes in the permitted activity listed
in this section, without following the
procedures of Part 124. Any permit
modification not processed as a minor
modification under this section must be
made for cause and with Part 124 draft
.permit and public notice as required in
§ 122.62. Minor modifications may only:
(a) Correct typographical errors;
• (b) Require more frequent monitoring
or reporting by the permittee;
(c) Change an interim compliance date
in a schedule of compliance, provided
the new date is not more than 120 days
after the date specified in the existing
permit and does not interfere with
attainment of the final compliance date
requirement; or
(d) Allow fey a change in ownership
or operational control of a facility where
the Director determines that no other
change in the permit is necessary,
provided that a written agreement
containing a specific date for transfer of
permit responsibility, coverage, and
liability between the current and new .
permittees has been submitted to the
Director.
(e)(l) Change the construction
schedule for a discharger which is a new
source. No such change shall affect a
discharger's obligation to have all
pollution control equipment installed
and in operation prior, to discharge
under § 122.29.
(2) Delete a point source outfall when
the discharge from that outfall is
terminated and does not result in
discharge of pollutants from other
outfalls except in accordance with
permit limits.
§ 122.64 Termination of permits
(applicable to State programs, see
5 123.25).
(a) The following are causes for
terminating a permit during its term, or
for denying a permit renewal
application:
(1) Noncompliance by the permittee
with any condition of the permit;
(2) The permittee's failure in the
application or during the permit
issuance process to disclose fully all
relevant facts, or the permittee's
misrepresentation of any relevant facts
at any time; or
(3) A determination that the permitted
activity endangers human health or the
environment and can only be regulated
to acceptable levels by permit
modification or termination. '
(4) A change in any condition that
requires either a temporary or a
permanent reduction or elimination of
any discharge controlled by the permit
(for example, plant closure or
termination of discharge by connection
to a POTW).
(b) The Director shall follow the
applicable procedures in Part 124 or
State procedures in terminating any
NPDES permit under this section.
Appendix A—NPDES Primary Industry
Categories
Any permit issued after June 30.1981 to
dischargers in the following categories shall
include effluent limitations and a compliance
schedule to meet the requirements of section
301(b)(2)(A). (C). (D). (E) and (F) of CWA.
whether or not applicable effluent limitations
guidelines have been promulgated. See
§5122.44 and 122.46.
Industry Category
Adbesives and Sealants
Aluminum Forming
Auto and Other Laundries
Battery/Manufacturing
Coal Mining ,
Coil Coating
Copper Forming
Electrical and Electronic Components
Electroplating
Explosives Manufacturing
Foundries
Gum and Wood Chemicals
Inorganic Chemicals Manufacturing
Iron and Steel Manufacturing
Leather Tanning and Finishing
Mechanical Products Manufacturing
Nonferrous Metals Manufacturing
Ore Mining
Organic Chemicals Manufacturing
Paint and Ink Formulation
Pesticides
Petroleum Refining
Pharmaceutical Preparations
Photographic Equipment and Supplies
Plastics Processing
Plastic and Synthetic Materials
Manufacturing
Porcelain Enameling
Printing and Publishing
Pulp and Paper Mills
Rubber Processing
Soap and Detergent Manufacturing
Steam Electric Power Plants
Textile Mills
Timber Products Processing
Appendix B—Criteria for Determining a
Concentrated Animal Feeding Operation
(§ 12X23)
An animal feeding operation is a
concentrated animal feeding operation for
purposes of § 122^3 if either of the following
criteria are met
(a) More than the numbers of animals
specified in any of the following categories
are confined:
(1) 1.000 slaughter and feeder cattle.
(2) 700 mature dairy cattle (whether milked
or dry cows),
(3) 2.500 swine each weighing over 25
kilograms (approximately 55 pounds),
(4) 500 horses.
(5) 10.000 sheep or lambs,
(6) 53.000 turkeys.
(7) 100.000 laying hens or broilers (if the
facility has continuous overflow watering).
(8) 30,000 laying hens or broilers (if the
facility has a liquid manure system),
(9) 5,000 ducks, or
(10) 1.000 animal units; or
(b) More than the following number and
types of animals are confined:
(1) 300 slaughter or feeder cattle.
(2) 200 mature dairy cattle (whether milked
or dry cows).
(3) 750 swine each weighing over 25
kilograms (approximately 55 pounds).
(4) 150 horses,
(5) 3.000 sheep or lambs,
(6) 16,500 turkeys.
(7) 30.000 laying hens or broilers (if the
facility has continuous overflow watering),
(8) 9.000 laying hens or broilers (if the
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14176 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
facility has a liquid manure handling system).
(9) 1.500 ducks, or
(10) 300 animal units;
and either one of the following conditions are
met: pollutants are discharged into navigable
waters through a manmade ditch, flushing
system or other similar man-made device; or
pollutants are discharged directly into waters
of the United States which originate outside
of and pass over, across, or through the
facility or otherwise come into direct contact
with the animals confined in the operation.
Provided, however, that no animal feeding
operation is a concentrated animal feeding
operation as defined above if such animal
feeding operation discharges only in the
event of a 25 year, 24-hour storm event.
The term "animal unit" means a unit of
measurement for any animal feeding
operation calculated by adding the following
numbers: the number of slaughter and feeder
cattle multiplied by 1.0. plus the number of
mature dairy cattle multiplied by 1.4. plus the
number of swine weighing over 25 kilograms
(approximately 55 pounds) multiplied by 0.4.
plus the number of sheep multiplied by 0.1,
plus the number of horses multiplied by 2.0.
The term "manmade" means constructed
by man and used for the purpose of
transporting wastes.
Appendix C-Criteria for Determining a
Concentrated Aquatic Animal Production
Facility (§ 122.24).
A hatchery, fish farm, or other facility is a
concentrated aquatic animal production
facility for purposes of § 122.24 if it contains.
grows, or holds aquatic animals in either of
the following categories:
(a) Cold water fish species or other cold
water aquatic animals in ponds, raceways, or
other similar structures which discharge at
least 30 days per year but does not include:
(1) Facilities which produce less than 9,090
harvest weight kilograms (approximately
20,000 pounds) of aquatic animals per year
and
(2) Facilities which feed less than Z272
kilograms (approximately 5,000 pounds) of
food during the calendar month of maximum
feeding.
(b) Warm water fish species or other warm
water aquatic animals in ponds, raceways, or
other similar structures which discharge at
least 30 days per year, but does not include:
(1) Closed ponds which discharge only
during periods of excess runoff; or
(2) Facilities which produce less than
45,454 harvest weight kilograms
(approximately 100.000 pounds] of aquatic
animals per year.
"Cold water aquatic animals" include, but
are not limited to. the Salmonidae family of
fish; e.g., trout and salmon.
"Warm water aquatic animals" include, but
are not limited to, the Ameiuride,
Centrarchidae and Cyprinidae families of
fish; e.g.. respectively, catfish, sunfish and
Appendix D—NPDES Permit Application
Testing Requirements (5 122J21).
TABLE I.—TESTING REQUIREMENTS FOB OR-
GANIC Toxic POLLUTANTS BY INDUSTRIAL
CATEGORY FOR EXISTING DISCHARGERS
Industrial category
Adhesive* and
Aluminum Forming
Auto and Other
Laundries
Battery Manufacturing..
Coal Mono
Coil Coating
Copper Forming
Electnc and
Electrons
Components .
Electroplating
Explosives
Manufacturing
Gum and Wood
Chemicals «
Inorganic Chemicals
Manutactunng
Iron and Steel
Leatner Tanning and
Fmismng
Mechanical Products
Nonterrous Metals
Manufacturing
Organic Chermcals
Paint and Ink
Pesticides
Petroleum Retiring
Pharmaceutical
Photographic
Equipment «nd
Supplies
Plastic and Synthetic
Materials
Manufacturing
Plastic Processing
Printing and
PubHhtftg , .,
Pulp and Paper Mils-
Soap and Detergent
Steam Eleetnc Potmr
PUnre
TexUeMiUi
TWflbBf Products
GC/MS Frmcton >
Vot>IU«
•
•
•
*
•
Acid
•
Base/
neutral
'
•
•
Pesn-
cxle
*
•
•
4 .
'The toioc pollutants n each traction are haled m TaMe II.
•Testing raqund.
Table H.—Organic Toxic Pollutants in Each
of Four Fractions in Analysis by Gas
Chromatography/Mass Spectroscopy (GS/
MS)
Volatile*
IV acrolein
2V acrylonitrile
3V benzene
SV bromoform
6V carbon tetrachloride
7V chlorobenzene
8V chlorodibromomethane
9V cnloroethane
10V 2-chioroelhylvinyl ether
11V chloroform
12V dichlorobromomethane
14V 1.1-dichloroethane
15V 1.2-dichloroethane
16V 1.1-dichloroethylene
17V 1.2-dichloropropane
18V 1,2-dichloropropylene
19V ethylbenzene ^
20V methyl bromide
21V methyl chloride
22V melhylene chloride
23V 1.1.2.2-tetrachloroethane
24V tetrachloroethylene
25V toluene
26V 1.2-trans-dichloroethylene
27V 1.1.1-fnchloroethane
28V 1,1,2-trichloroethane
29V trichloroethylene
31V vinyl chloride
Acid Compounds
1A 2-chlorophenol
2A 2.4-dichlorophenol
3A 2,4-dimethylphenol
4A 4.6-dinitro-o-creso!
5A 2.4-dinitrophenol
6A 2-nitrophenol
7A 4-nitrophenol
8A p-chloro-m-cresol
9A pentachlorophenol
10A phenol
11A 2.4.6-trichloropheno!
Base/Neutral
IB acenaphthene
2B acenaphlhylene
3B anthracene
4B benzidine
SB benzo(a)anthracene
6B benzo(a)pyrene
7B 3,4-benzofluoranthene
8B benzo(ghi)perylene
9B benzo(k)fluoranthene
10B bis(2-chloroethoxy)methane
11B bis(2-chloroethyl)ether
12B bis(2-chloroisopropyl)ether
13B bis (2-ethylhexyl)phthalate
14B 4-bromophenyl phenyl ether
15B butylbenzy! phthalate
16B 2-chloronaphthalene
17B 4-chlorophenyi phenyi ether
18B chrysene
'19B dibenzo(aJi)anthracene
20B 1.2-dichlorobenzene
21B 1.3-dichlorobenzene
22B 1.4-dichlorobenzene
23B 3.3'-dichiorobenzidine
24B diethyl phthalate
25B dimethyl phthalate
26B di-n-butyl phthalate
27B 2.4-dinitrotoluene
28B 2.6-dinitrotoluene
29B di-n-octyl phthaiate
30B 1.2-diphenylhydrazine (as azobenzene)
31B fluroranthene
32B fluorene
33B hexachlorobenzene
34B hexachlorobutadiene
35B hexachlorocyclopentadiene
36B bexachloroethane
37B indeno(1.2,3-cd)pyrene
38B isophorone
39B napthalene
40B nitrobenzene
4lB N-nitrosodimethylamine
42B N-rutrosodi-n-propylamine
43B N-nitrosodiphenylamine
44B phenanthrene
45B pyrene
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Federal Register / Vol. 48, No. 64 / Friday. April 1, 1983 / Rules and Regulations
14177
4GB 1.2,4-trichlorobenzene
Pesticides
IP aldrin
2P alpha-BHC -
3P beta-BHC
4P gamma-BHC
5P delta-BBC
6P chiordane
7P 4.4'-DDT
8P 4.4'-DDE
9P 4,4'-DDD
10P dieldrin
IIP alpha-endosulfan
12P beta-endosulfan
13P endosulfan sulfate
14P endrin
ISP endrin aldehyde
16P heptachlor
17P heptachlor epoxide
18P PCB-1242
19P PCB-1254
20P PCB-I221
21P PCB-1232
22P PCB-1248
23P PCB-1260
24P PCB-1016
25P toxaphene
Table III.—Other Toxic Pollutants: Metals.
Cyanide, and Total Phenols
Antimony. Total
Arsenic. Total
Beryllium. Total
Cadmium. Total
Chromium. Total ,
Copper, Total
Lead. Total
Mercury. Total
Nickel/Total"
Selenium, Total
Silver. Total
Thallium. Total
Zinc. Total
Cyanide. Total
Phenols. Total
Table IV.—Conventional and
Nonconventional Pollutants Required To Be
Tested by Existing Dischargers if Expected to
be Present
Bromide
Chlorine. Total Residual
Color
Fecal Coliform
Fluoride
Nitrate-Nitrite
Nitrogen, Total Organic
Oil and Grease
Phosphorus, Total
Radioactivity
Sulfate
Sulfide
Sulfite
Surfactants
Aluminum. Total
Barium. Total
Boron. Total
Cobalt. Total
Iron, Total
Magnesium. Total
Molybdenum. Total
Manganese. Total
Tin. Total
Titanium. Total
Table V.—Toxic Pollutants and Hazardous
Substances Required To Be Identified by
Existing Dischargers if Expected To Be
Present
To\ic Pollutants
Asbestos
Hazardous Substances
Acetaldehyde
Allyl alcohol
Allyl chloride
Amyl acetate
Aniline
Benzonitrile
Benzyl chloride
Butyl acetate
Butylamine
Captan
Carbarvl
Carbofuran
Carbon disulflde
Chlorpyrifos
Coumaphos
Cresol
Crotonaldehyde
Cyclohexane
2.4-D (2.4-Dichlorophenoxy acetic acid)
Diazmon
Dicamba
Dichlobenil
Dichlone
Zi-Dichloropropionic acid
Dichlorvos
Diethyl amine
Dimethyl amine
Dintrobenzene
Diquat
Disulfoton
Diuron
Epichiorohydrin
Ethanolamine
Ethion
Ethylene diamine
Ethylene dibromide
. Formaldehyde
Furfural
Guthion
Isoprene :
Isopropanolamine
Kelthane
Kepone
Malathion
Mercaptodimethur
Methoxychlor
Methyl mercaptan
Methyl methacrylate
Methyl parathion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl amine
Naled
Napthenic acid
Nitrotoluene
Parathion
Phenolsulfanate
Phosgene
Propargite
Propylene oxide
Pyrethrins
Quinoline
Resorcinol
Strontium
Strychnine
Styrene
2.4,5-T (2.4,5-Trichlorophenoxy acetic acid)
TDE (Tetrachlorodiphenylethane)
2.4.5-TP l2-(2.4.5-Trichlorophenoxy)
propanoic acid)
Trichlorofan
Triethylamine '
Trimethylamine '
Uranium
Vanadium
Vinyl acetate
Xylene
Xylcnol
Zirconium
[Note.—The Environmental Protection
Agency has suspended the requirements of
5122.21 (g)(7)(ii)(A) and Table 1 of Appendix D
as they apply to certain industrial categories.
The suspensions are as follows:
At 46 FR 2046. Jan. 8.1981. the
Environmental Protection Agency suspended
until further notice § 122.21(g)(7)(ii)(A) as it
applies to coal mines.
At 46 FR 22585. Apr. 20.1981. the
Environmental Protection Agency suspended
until further notice § 122-21(g)(7)(ii)(A) and
the corresponding portions of Item V-C of the
NPDES application Form 2c as they apply Ux-
1. Testing and reporting for all four organic
fractions in the Greige Mills Subcategory of
the Textile Mills industry (Subpart C—Low
water use processing of 40 CFR Part 410). and
testing and reporting for the pesticide fraction
in all other subcategories of this industrial
category. •
2. Testing and reporting for the volatile.
base/neutral and pesticide fractions in the
Base and Precious Metals Subcategory of the
Ore Mining and Dressing industry (Subpart B
of 40 CFR Part 440), and testing and reporting
for all four fractions in all other subcategories
of this industrial category.
3. Testing and reporting for all four GC/MS
fractions in the Porcelain Enameling industry.
At 46 FR 35090. July 1.1981. the
Environmental Protection Agency suspended
until further notice 5 l22£l(g)(7)(ii)(A) and
the corresponding portions of Item V-C of the
NPDES application Form 2c as they apply to:
1. Testing and reporting for the pesticide
fraction in the Tall Oil Rosin Subcategory
(Subpart D) and Rosin-Based Derivatives
Subcategory (Subpart F) of the Gum and
Wood Chemicals industry (40 CFR Part 454),
and testing and reporting for the pesticide
and base/netural fractions in all other
subcategories of this industrial category.
2. Testing and reporting for the pesticide
fraction in the Leather Tanning and Finishing,
Paint and Ink Formulation, and Photographic
Supplies industrial categories.
3. Testing and reporting for the add, base/
neutral and pesticide fractions in the
Petroleum Refining industrial category.
4. Testing and reporting for the pesticide
fraction in the Papergrade Sulfite
subcategories (Subparts) and U) of the Pulp
and Paper industry (40 CFR Part 430): testing
and reporting for the base/neutral and
pesticide fractions in the following
subcategories: Deink (Subpart Q). Dissolving
Kraft (Subpart F), and Paperboard from
Waste Paper (Subpart E); testing and
reporting for the volatile, base/neutral and
pesticide fractions in the following
subcategories: BCT Bleached Kraft (Subpart
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14178
Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations
H). Semi-Chemical (Subparts B and C). and
Nonintegrated-Fine Papers (Subpart R); and
testing and reporting for the acid, base/
neutral, and pesticide fractions in the
following subcategories: Fine Bleached Kraft
(Subpart I). Dissolving Sulfite Pulp (Subpart
K), Croundwood-Fine Papers (Subpart Ol
Market Bleached Kraft (Subpart G), Tissue
from Wastepaper (Subpart T). and
Nonintegrated-Tissue Papers (Subpart S).
5. Testing and reporting for the base/
neutral fraction in the Once-Through Cooling
Water, Fly Ash and Bottom Ash Transport
Water process wastestreams of the Steam
' Electric Power Plant industrial category.
This revision continues these suspensions.)
For the duration of the suspensions.
therefore, Table I effectively reads:
TABLE I.—TESTING REQUIREMENTS FOR OB-
- GANIC Toxic POLLUTANTS BY INDUSTRY CAT-
EGORY
Industry catapjoo/
Adneawes and aeaiana-
Alunwwm tomwig
Auto and omar
Battery manulaaunng.
Coalmmg
Col ooaang.
Coppwta
09
EJactnc and alac Irene
compounds—~««.^v«—w
C'-~*T***~11
Foundnat-
Qum and vood (al **>-
earn enacx 0 and F) _
SUxwn O—ai'oi roan
Subpart
In
Iron and «e»» manutaW-
Leather ovnng and hnan-
ing
rfacuwig-
Nonferreu* i
lactunng.
Ota mm) (appiaa «o na
baaa and
melala/Kjbpart B)
Organic ehamcai* wanv-
Pant and •* tomutaaon—
Piaaac protaaing
Pmtaig and puttunna
Pulp and
Soap and oatargan man*-
alactnc povar
TniM* m*s (wbpvt C—
Gmg* Mils an
GC/MS Iraeinn'
r •*-
n
n
n
n
n
n
n
o
n
o
n
n
n
n
n
o
n
n
n
o
n
n
n
N
o
o
n
o
o
o
o
o
o
o
o
n
o
o
o
iraciiona
Bau/
neu-
tral
_ ^
_
__
^
_
^
_^
C)
_m
_
_
_
__
n
P«0-
od«
n
Im
— .
(")
_
•.
—
__
—
_^
^.
—
*•—
_
o
n
n
•Testing raound.
•The poUulam n eacft «rac*on
•Pulp and Papartnare •»*
ara ktnd n Nam V-C.
•MUSI IC3L
— Do noi last unless "reason to Miuxw' it a dis
f Subpans ara da/mad in 40 CFR Pan 430.
Part 123 is revised to read as follows:
PART 123—STATE PROGRAM
REQUIREMENTS
Subpart A—General
Sec. '
123.1 Purpose and scope.
123.2 Definitions.
123.3 Coordination with other programs.
Subpart B—State Program Submissions
123.21 Elements of a program submission.
123.22 Program description.
123.23 Attorney General's Statement.
123.24 Memorandum of Agreement with the
Regional Administrator.
123.25 Requirements for permitting.
123.26 Requirements for compliance
evaluation programs.
123.27 Requirements for enforcement
authority.
123.28 Control of disposal of pollutants into
wells.
123.29 Prohibition.
Subpart C—Transfer of Information and
Permit Review
123.41 Sharing of information.
123.42 Receipt and use of Federal
information.
123.43 Transmission of information to EPA.
123.44 EPA review of and objections to
State permits.
123.45 Noncompliance and program
reporting by the Director.
Subpart 0—Program Approval, Revision
and Withdrawal
123.61 Approval process.
1Z3.62 Procedures for revision of State
programs.
123.63 Criteria for withdrawal of State
programs.
123.64 Procedures for withdrawal of State
programs.
Authority: Clean Water Act. 33 U.S.C. 1251
et seq.
Subpart A—General
§ 123.1 Purpose and scope. *
(a] This part specifies the procedures
EPA wifl follow in approving, revising,
and withdrawing State programs and
the requirements State programs must
meet to be approved by the
Administrator under Sections 31S, 402,
and 405 (National Pollutant Discharge
Elimination System—NPDES) of CWA.
(b) These regulations are promulgated
under the authority of sections 304(i)
and 101(e) of CWA, and implement the
requirements of those sections.
(c) The Administrator shall approve
State programs which conform to the
applicable requirements of this Part. A
State NPDES program will not he
approved by the Administrator under
section 402 of CWA unless it has
authority to control the discharges
specified in sections 316 and 4Q5(a) of
CWA. Permit programs under sections
318 and 405 will not be approved
independent of a section 402 permit
program.
(d) Upon approval of a State program,
the Administrator shall suspend the
issuance of Federal permits for those
activities subject to the approved State
program. After program approval EPA
shall retain jurisdiction over any permits
(including general permits) which it has
issued unless arrangements have been
made with the State in the
Memorandum of Agreement for the
State to assume responsibility for these
permits. Retention of jurisdiction shall
include the processing of any permit
appeals, modification requests, or
variance requests; the conduct of
inspections, and the receipt and review
of self-monitoring reports. If any permit
appeal, modification request or variance
request is not finally resolved when the
Federally issued permit expires, EPA
may, with the consent of the State,
retain jurisdiction until the matter is
resolved.
(e) Upon submission of a complete
program. EPA will conduct a public
hearing, if interest is shown, and
determine whether to approve or
disapprove the program taking into
consideration the requirements of this
part the CWA and any comments
received.
(f) Any State program approved by
the Administrator shall at all times be
conducted in accordance with the
requirements of this Part
(g) No partial NPDES programs will be
approved by EPA. The State program
must prohibit (except as provided in
§ 122.3) all point source discharges of
pollutants, all discharges into
aquaculture projects, and all disposal of
-------
Federal Register / Vol. 48. No. 64" / Friday, April L 1983 / Rules and Regulations
14179
sewage sludge which results in any
pollutant from such sludge entering into
any waters of the United States within
the State's Jurisdiction, except as
authorized by a permit in effect under
the State program or under section 402
of CWA. NPDES authority may be
shared by two or more State agencies
but each agency must have Statewide
jurisdiction over a class of activities or
discharges. When more than one agency
is responsible for issuing permits, each
agency must make a submission meeting
the requirements of § 123.21 before EPA
will begin formal review.
(h) A State's lack of authority to
regulate activities on Indian lands does
not impair a State's ability to obtain full
program approval in accordance with.
this Part. i.e.. inability of a State to
regulate activities on Indian lands does
not constitute a partial program. EPA
will administer the program on Indian
lands if the State does not seek this
authority.
[Note.—States are advised to contact the-
United States Department of the Interior.
Bureau of Indian Affairs, concerning
authority over Indian lands.]
(i) Nothing in this Part precludes a
State from:
(1) Adopting or enforcing
requirements which are more stringent
or more extensive than those required •
under this Part
(2) Operating a program with a greater
scope of coverage than that required
under this Part. If an approved State
program has greater scope of coverage
than required by Federal law the
additional coverage is not part of the
Federally approved program.
[Note.—For example, if a State requires
permits for discharges into publicly owned
treatment works, these permits are not
NPDES permits.]
§12&2 Definitions.
The definitions in Part 122 apply to all
subparts of this Part
§ 123.3 Coordination with other programs.
Issuance of State permits under this
Part may be coordinated with issuance
of RCRA. UIC. NPDES, and 404 permits
whether they are controlled by the
State. EPA, or the Corps of Engineers.
See § 124.4.
Subpart B—State Program
Submissions
§ 123.21 Elements of • program
submission.
(a) Any State that seeks to administer
a program under this Part shall submit
to the Administrator at least three
copies of a program submission. The
submission shall contain at least three
copies of the following:
(1) A letter from the Governor of the
State requesting program approval:
(2) A complete program description.
as required by § 123.22. describing how
the State intends to carry out its
responsibilities under this Part;
(3) An Attorney General's statement
as required by § 123.23:
(4) A Memorandum of Agreement
with the Regional Administrator as-
required by 5123.24;
(5) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures:
(b) Within 30 days of receipt by EPA
of a State program submission. EPA will
notify the State whether Us submission
is complete. If EPA finds that a State's
submission is complete, the statutory
review period (i.e.. the period of time
allotted for formal EPA review of a
proposed State program under CWA)
shall be deemed to have begun on the
date of receipt of the State's submission.
If EPA finds that a State's submission is
incomplete, the statutory review period
shall not begin until all the necessary
information is received by EPA.
(c) If the State's submission is
materially changed during the statutory
review period, the statutory review
period shall begin again upon receipt of
the revised submission.
(d) The State and EPA may extend the
statutory review period~by agreement.
§ 123.22 Program description.
- Any State that seeks to administer a
program under this Part shall submit a
description of the program it proposes to
administer in lieu of the Federal
program under State law or under an
interstate compact. The program
description shall include:
(a) A description in narrative form of
the scope, structure, coverage and
processes of the State program.
(b) A description (including
organization charts] of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the program, including
the information listed below. If more
than one agency is responsible for
administration of a program, each
agency must have statewide jurisdiction
over a class of activities. The
responsibilities of each agency must be
delineated, their procedures for
coordination set forth, and an agency
may be designated as a "lead agency" to
facilitate communications between EPA
and the State agencies having program
responsibility. If the State proposes to
administer a program of greater scope of
coverage than is required by Federal
law, the information provided under this
paragraph shall indicate the resources
dedicated to administering the Federally
required portion of the program.
(1) A description of the State agency
staff who will carry out the State
program, including the number,
occupations, and general duties of the
employees. The State need hot submit
complete job descriptions for every
employee carrying out the State
program.
(2) An itemization of the estimated
costs of establishing and administering
the program for the first two years after
approval, including cost of the personnel
listed in paragraph (b)(l) of this section.
cost of administrative support, and cost
of technical support.
(3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money,
available to the State Director for the
first two years after approval to meet
the costs listed in paragraph (b)(2) of
this section, identifying any restrictions
or limitations upon this funding.
(c) A description of applicable State
procedures, including permitting
procedures and any State administrative
or judicial review procedures:
(d] Copies of the permit form(s),
application form(s). and reporting
form(s) the State intends to employ in its
program. Forms used by States need not
be identical to the forms used by EPA
but should require the same basic
information, except that State NPDES
programs are required to use standard
Discharge Monitoring Reports (DMR).
The State need not provide copies of
uniform national forms it intends to use
but should note its intention to use such
forms.
[Note.—States are encouraged to use
uniform national forms established by the
Administrator. If uniform national forms are
used, they may be modified to include the
State Agency's name, address, logo, and
other similar information, as appropriate, in
place of EPA's.]
(e) A complete description of the
Stale's compliance tracking and
enforcement programs.
§ 12123 Attorney General's statement.
(a) Any State that seeks to administer
a program under this Part shall submit a
statement from the State Attorney
General (or the attorney for those State
or interstate agencies which have
independent legal counsel] that the laws
of the State, or an interstate compact,
provide adequate authority to carry out
the program described under § 123.22
and to meet the requirements of this
Part. This statement shall include
citations to the specific statutes,
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14180 Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 /Rules and Regulations
administrative regulations, and, where
appropriate, judicial decisions which
demonstrate adequate authority. State
statutes and regulations cited by the
State Attorney General or independent
legal counsel shall be in the form of
lawfully adopted State statutes and
regulations at the time the statement is
signed and shall be fully effective by the
time the program is approved. To qualify
as "independent legal counsel" the
attorney signing the statement required
by this section must have full authority
to independently represent the State
agency in court on all matters pertaining
to the State program.
[Note.—EPA will supply States with an
Attorney General's statement format on
request.]
(b) If a State seeks authority over
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State's authority.
(c) The Attorney General's statement
shall certify that the State has adequate
legal authority to issue and enforce
general permits if the State seeks to
implement the general permit program
under § 122.28.
§ 123.24 Memorandum of Agreement with
trie Regional Administrator.
(a) Any State that seeks to administer
a program under this Part shall submit a
Memorandum of Agreement The
Memorandum of Agreement shall be
executed by the State Director and the
Regional Administrator and shall
become effective when approved by the
Administrator. In addition to meeting
the requirements of paragraph (b) of this
section, the Memorandum of Agreement
may include other terms, conditions, or
agreements consistent with this Part and
relevant to the administration and
enforcement of the State's regulatory
program. The Administrator shall not
approve any Memorandum of
Agreement which contains provisions
which restrict EPA's statutory oversight
responsibility.
(b) The Memorandum of Agreement
shall include the following:
(1) Provisions for the prompt transfer
from EPA to the State of pending permit
applications and any other information
relevant to program operation not
already in the possession of the State
Director (e.g., support files for permit
issuance, compliance reports, etc.). If
existing permits are transferred from
EPA to the State for administration, the
Memorandum of Agreement shall
contain provisions specifying a
procedure for transferring the
administration of these permits. If a
State lacks the authority to directly
administer permits issued by the Federal
government, a procedure may be
established to transfer responsibility for
these permits.
[Note.—For example, EPA and the State
and the permittee could agree that the State
would issue a permit(s) identical to the
outstanding Federal permit which would
simultaneously be terminated.]
(2) Provisions specifying classes and
categories of permit applications, draft
permits, and proposed permits that the
State will send to the Regional
Administrator for review, comment and,
where applicable, objection.
(3) Provisions specifying the frequency
and content of reports, documents and
other information which the Slate is
required to submit to EPA. The State
shall allow EPA to routinely review
State records, reports, and files relevant
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
where appropriate. These procedures
shall implement the requirements of
§123.43.
(4) Provisions on the State's
compliance monitoring and enforcement
program, including:
(i) Provisions for coordination of
compliance monitoring activities by the
State and by EPA. These may specify
the basis on which the Regional
Administrator will select facilities or
activities within the State for EPA
inspection. The Regional Administrator
will normally notify the State at least 7
days before any such inspection; and
(ii) Procedures to assure coordination
'of enforcement activities.
(5) When appropriate, provisions for
joint processing of permits by the State
and EPA for facilities or activities which
require permits from both EPA and the
State under different programs. (See
§124.4.)
[Note.—To promote efficiency and to avoid
duplication and inconsistency. States are
encouraged to enter into joint processing
agreements with EPA for permit issuance.
Likewise, States are encouraged (but not
required) to consider steps to coordinate or
consolidate their own permit programs and
activities.]
(6) Provisions for modification of the
Memorandum of Agreement in
accordance with this Part
(c] The Memorandum of Agreement
the annual program grant and the State/
EPA Agreement should be consistent. If
the State/EPA Agreement indicates that
a change is needed in the Memorandum
of Agreement, the Memorandum of
Agreement may be amended through the
procedures set forth in this part. The
State/EPA Agreement may not override
the Memorandum of Agreement.
[Note.—Detailed program priorities and
specific arrangements for EPA support of the
State program will change and are therefore
more .appropriately negotiated in the context
of annual'agreement; rather than in the
MOA. However, it may still be appropriate to
specify in the MOA the basis for such
detailed agreements, e.g., a provision in the
MOA specifying that EPA will select facilities
in the State for inspection annually as part of
the State/EPA agreement.]
(d) The Memorandum of Agreement
shall also specify the extent to which
EPA will waive ita right to review.
pbjecfto, or comment upon State-issued
permits under sections 402(d)(3), (e) or
(f) of CWA. While the Regional
Administrator and the State may agree
to waive EPA review of certain "classes
or categories" of permits, no waiver of
review may be granted for the following
discharges:
(1) Discharges into the territorial sea;
(2) Discharges which may affect the
waters of a State other than the one in -
which the discharge originates;
(3) Discharges proposed to be
regulated by general permits (see
§122.28);
(4) Discharges from publicly owned
treatment works with a daily average
discharge exceeding 1 million gallson
per day;
[5] Discharges of uncontaminated
cooling water with a daily average
discharge exceeding SCO million gallons
per day;
(G) Discharges from any major
discharger or from any discharger within
any of the 21 industrial categories listed
in Appendix A to Part 122;
(7) Discharges from other sources with
a daily average discharge exceeding 0.5
(one-half) million gallons per day,
except that EPA review of permits for
discharges of non-process wastewater
may be waived regardless of flow.
(e) Whenever a waiver is granted
under paragraph (d) of this section, the
Memorandum of Agreement shall
contain:
(l) A statement that the Regional
Administrator retains the right to
terminate the waiver as to future permit
actions, in whole or in part, at any time
by sending the State Director written
notice of termination; and
(2) A statement that the State shall
supply EPA with copies of final permits.
§ 123.25 Requirements for permitting.
(a) All State programs under this Part
must have legal authority to implement
each of the following provisions and
must be administered in confonnance
with each; except that States are not
precluded from omitting or modifying
any provisions to impose more stringent
requirements:
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(1) § 122.4—(Prohibitons):
(2) § 122.5{a) and (b)—(Effect of
permit);
(3) § 122.7(bHd)—{Confidential
information);
(4) § 122.21(aHb). (eHJ). and
(Application for a permit);
(5) § 122.22—(Signatories);
(6) § 122.23—(Concentrated animal
feeding operations);
(7) § 122.24—(Concentrated aquatic
animal production facilities);
(8) § 122.25—(Aquaculture projects);
(9) § 122.26—(Separate storm sewers);
(10) § 122.27—{Silviculture);
(11) § 122.28—(General permits),
provided that States which do not seek
to implement .the general permit program
under § 122.28 need not do so.
(12) § 122.41—{Applicable permit
conditions):
(13) § 122.42—(Conditions applicable
to specified categories of permits);
(14) § 122.43—(Establishing permit
conditions);
(15) § 122.44—{Establishing NPDES
permit conditions);
(16) § 12-2.45—(Calculating permit
conditions);
(17) § 122.46—(Duration);
(18) § 122.47(a)—{Schedules of
compliance);
(19) § 122.48—{Monitoring
requirements);
(20) § 122.50—(Disposal into wells);
(21) § 122.61—(Permit transfer):
(22) § 122.62—(Permit modification);
(23) § 122.64—(Permit termination);
(24) § 124.3(a>—(Application for a
permit):
(25) § 124.5 (a), (c). (d). and (f>-
(Modification of permits);
(26) § 124.6 (a), (c), (d). and (ej—{Draft
permit);
(27) § 124.8—(Fact sheets);
(28) § 124.10 (a)(l)(ii), (a)(l)(iii).
(a)(l)(v), (b).-(c), (d). and (e}-{Public
notice);
(29) § 124.11—(Public comments and
requests for hearings);
(30) § 124.12(a)—(Public hearings);
and
(31) § 124.17 (a) and (c)—(Response to
comments):
(32) § 124.56—(Fact sheets);
(33) § 124.57(a)—{Public notice):
(34) § 124.59—{Comments from
government agencies);
(35) § 124.62—(Decision on variances);
(36) Subparts A. B.C. D. H. L J. K and L
.of Part 125: and
(37) 40 CFR Parts 129.133, and
Subchapter N.
[Note.—States need not implement
provisions identical to the above listed
provisions. Implemented provisions must,
however, establish requirements at least as
stringent as the corresponding listed
provisions. While States may impose more
stringent requirements, they may not make
one requirement more lenient as a tradeoff
for making another requirement more
stringent; for example, by requiring that
public hearings be held prior to issuing any
permit while reducing the amount of advance
notice of such a hearing.
State programs may.' if they have adequate
legal authority, implement any of the
provisions of Parts 122 and 124. See. for
example, 5 122.5(d) (continuation of permits)
and § 124.4 (consolidation of permit
processing).
For example, a State may impose more
stringent requirements in an NPDES program
by omitting the upset provision of § 122.41 or
by requiring more prompt notice of an upset.)
(b) State NPDES programs shall have
an approved continuing planning
process under 40 CFR 35.1500 and shall
assure that the approved planning
process is at all times consistent with
CWA.
(c) State NPDES programs shall
ensure that any board or body which
approves all or portions of permits shall
not include as a member any person
who receives, or has during the previous
2 years received, a significant portion of
income directly or indirectly from permit
holders or applicants for a permit.
(1) For the purposes of this paragraph:
(i) "Board or body" includes any
individual, including the Director, who
has or shares authority to approve all or
portions of permits either in the first
instance, as modified or reissued, or on
appeal.
(ii) "Significant portion of income"
means 10 percent or more of gross
personal income for a calendar year.
except that it means 50 percent or more
of gross personal income for a calendar
year if the recipient is over 60 years of
age and is receiving that portion under '
retirement, pension, or similar
arrangement.
(iii) "Permit holders or applicants for a
permit" does not include any
department or agency of a State
government such as a Department of
Parks or a Department of Fish and
Wildlife.
(iv) "Income" includes retirement
benefits, consultant fees, and stock
dividends.
(2) For the purposes of paragraph (c)
of this section, income is not received
"directly or indirectly from permit
holders or applicants for a permit" when
it is derived from mutual fund payments,
or from other diversified investments for
which the recipient does not know the
identity of the primary sources of
income.
§ 123.26 Requirements for compliance
evaluation programs.
(a) State programs shall have
procedures for receipt, evaluation.
retention and investigation for possible
enforcement of all notices and reports
required of permittees and other
regulated persons (and for investigation
for possible enforcement of failure to
submit these notices and reports).
(b) State programs shall have
inspection and surveillance procedures
to determine, independent of
information supplied by regulated
persons, compliance or noncompliance
with applicable program requirements.
The State shall maintain:
(1} A program which is capable of
making comprehensive surveys of all
facilities and activities subject to the
State Director's authority to identify
persons subject to regulation who have
failed to comply with permit application
or other program requirements. Any
compilation, index or inventory of such
facilities and activities shall be made
available to the Regional Administrator
upon request;
(2) A program for periodic inspections'
of the facilities and activities subject to
regulation. These inspections shall be
conducted in a manner designed to:
(i) Determine compliance or
noncompliance with issued permit
conditions and other program
requirements:
(ii) Verify the accuracy of information
submitted by permittees and other
regulated persons in reporting forms and
other forms supplying monitoring data:
and
(iii) Verify the adequacy of sampling.
monitoring, and other methods used by
permittees and other regulated persons
to develop that information:
(3) A program for investigating
information obtained regarding.
violations of applicable program and
permit requirements; and
(4) Procedures for receiving and
ensuring proper consideration of
information submitted by the Public
about violations. Public effort in
reporting violations shall be encouraged.
and the State Director shall make
available information on reporting
procedures.
(c) The State Director and State
officers engaged in compliance
evaluation shall have authority to enter
any site or premises subject to
regulation or in which records relevant
to program operation are kept in order
to copy any records, inspect, monitor or
otherwise investigate compliance with
the State program including compliance
with permit conditions and other
program requirements. States whose law
requires a search warrant before entry .
conform with this requirement.
(d) Investigatory inspections shall be
conducted, samples shall be taken and
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other information shall be gathered in a
manner (e.g., using proper "chain of
custody" procedures) that will produce
• evidence admissible in an enforcement
proceeding or in court.
(e) State NPDES compliance
evaluation programs shall have
procedures and ability for:
(1) Maintaining a comprehensive
inventory of all sources covered by
NPDES permits and a schedule of
reports required to be submitted by
permittees to the State agency;
(2) Initial screening (i.e., pre-
enforcement evaluation) of all permit or
grant-related compliance information to
identify violations and to establish
priorities for further substantive
technical evaluation;
(3) When warranted, conducting a
substantive technical evaluation
following the initial screening of all
permit or grant-related compliance
information to determine the
appropriate agency response;
(4) Maintaining a management
information system which supports the
compliance evaluation activities of this
Part; and
(5) Inspecting the facilities of ail major
dischargers at least annually.
§ 123.27 Requirements lor enforcement
authority.
(a) Any State agency administering a
program shall have available the
following remedies for violations of
State program requirements;
(1) To restrain immediately and
effectively any person by order or by
suit in State court from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or the environment;
[Note.—Paragraph (a)(l) requires that
States have a mechanism (e.g., an
administrative cease and desist order or the
ability to seek a temporary restraining order)
to stop any unauthorized activity
endangering public health or the
environment.]
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement, including permit
conditions, without the necessity of a
prior revocation of the permit;
(3) To assess or sue to recover in court
civil penalties and to seek criminal
remedies, including fines, as follows:
(i) Civil penalties shall be recoverable
for the violation of any NPDES permit
condition; any NPDES filing
requirement; any duty to allow or carry
out inspection, entry or monitoring
activities; or. any regulation or orders
issued by the State Director. These
t penalties shall be assessable in at least
the amount of $5.000 a day for each
violation.
(ii) Criminal fines shall be recoverable
against any person who willfully or
'negligently violates any applicable
standards or limitations; any NPDES
permit condition; or any NPDES filing
requirement. These fines shall be
assessable in at least the amount of
$10,000 a day for each violation.
[Note.—States which provide the criminal
remedies based on "criminal negligence,"
"gross negligence" or strict liability satisfy
the requirement of paragraph (a)(3)(iii)(B) of
this section.]
(iii) Criminal fines shall be
recoverable against any person who
knowingly makes any false statement.
representation or certification in any
NPDES form, in any notice or report
required by an NPDES permit, or who
knowingly renders inaccurate any
monitoring device or method required to
be maintained by the Director. These
Fines shall be recoverable in at least the
amount of 55,000 for each instance of
violation.
[Note.—In many States the State Director
will be represented in State courts by the
State Attorney General or other appropriate
legal officer. Although the State Director need
not appear in court actions he or she should
have power to request that any of the above
actions be brought]
(b)(l) The maximum civil penalty or
criminal fine (as provided in paragraph
(a)(3) of this section) shall be assessable
for each instance of violation and. if the
violation is continuous, shall be
assessable up to the maximum amount
for each day of violation.
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section,
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the appropriate Act;
(Mole—-For example, this requirement is
pot met if State law includes mental state as
an element of proof for civil violations.]
(c) Any civil penalty assessed, sought
or agreed upon by the State Director
under paragraph (a)(3) of this section
shall be appropriate to the violation. A
civil penalty agreed upon by the State
Director in settlement of administrative
or judicial litigation may be adjusted by
a percentage which represents the
likelihood of success in establishing the
underlying viola tion(s) in the litigation.
If this civil penalty, together with the
costs of expeditious compliance, would
be so severely disproportionate to the
resources of the violator as to jeopardize
continuance in business, the payment of
the penalty may be deferred or the
penalty may be forgiven in whole or
part, as circumstances warrant. In the
case of a penalty for a failure to meet a
statutory or final permit compliance
deadline, "appropriate to the violation"
as used in this paragraph, means a
penalty which is equal to:
(1) An amount appropriate to redress
the harm or risk to public health or the
environment; plus
(2) An amount appropriate to remove
the economic benefit gained or to be
gained from delayed compliance; plus
(3) An amount appropriate as a
penalty for the violator's degree of
recalcitrance, defiance, or indifference
to requirements of the law; plus
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costs thrust upon the public; minus
(5) An amount, if any, appropriate to
reflect any part of the noncompliance
attributable to the government itself:
and minus
(6) An amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violator's control (e.g., floods, fires).
[Note.—In addition to the requirements of
this paragraph, the State may have other
enforcement remedies. The following
enforcement options, while not mandatory.
are highly recommended:
Procedures which enable the State to
assess or to sue any persons responsible for
unauthorized activities for any expenses
incurred by the State in removing, correcting.
or terminating any adverse effects upon
human health and the environment resulting
from the unauthorized activity, whether or
not accidental:
Procedures which enable the State to sue
for compensation for any loss or destruction
of wildlife, fish or aquatic life, or their
habitat, and for any other damages caused by
unauthorized activity, either to the State or to
any residents of the State who are directly
aggrieved by the unauthorized activity, or
both: and
Procedures for the administrative
assessment of penalties by the Director.)
(d) Any State administering a program
shall provide for public participation in
the State enforcement process by
providing either
(1) Authority which allows
intervention as of right in any civi! or
administrative action to obtain remedies
specified in paragraphs (a)(l), (2) or (3)
of this section by any citizen having an
interest which is or may be adversely
affected; or
(2) Assurance that the State agency or
enforcement authority will:
(i) Investigate and provide written
responses to all citizen complaints
submitted pursuant to the procedures
specified in § 123.26(b)(4);
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14133
(ii) Not oppose intervention by any
citizen when permissive intervention
may be authorized by statute, rule, or
regulation; and
(iii) Publish notice of and provide at
least 30 days for public comment on any
proposed settlement of a State
enforcement action.
§ 123J8 Control of disposal of pollutants
Into wells.
State law must provide authority to
issue permits to control the disposal of
pollutants into wells. Such authority
shall enable the State to protect the
public health and welfare and to prevent
the pollution of ground and surface
waters by prohibiting well discharges or
by issuing permits for such discharges
with appropriate permit terms and
conditions. A program approved under
section 1422 of SOW A satisfies the
requirements of this section.
[Note.—States which are authorized to
administer the NPDES permit program under
section 402 of CWA are encouraged to rely
on existing statutory authority, to the extent
possible, in developing a State UIC program
under section 1422 of SOW A. Section
402(b)(l)(D) of CWA requires that NPDES
States have the authority "to issue permits
which * * * control the disposal of
pollutants into wells." In many instances,
therefore. NPDES States will have existing
statutory authority to regulate well disposal
which satisfies the requirements of the UIC
program. Note, however, that CWA excludes
certain types of well injections from the
definition of "pollutant." If the State's
statutory authority contains a similar
exclusion it may need to be modified to
qualify for UIC program approval.)
§12339 Prohibition.
State permit programs shall provide
that no permit shall be issued when the
Regional Administrator has objected in
writing under § 123.44.
Subpart C—Transfer of Information
and Permit Review
§ 123.41 Sharing of information.
(a) Any information obtained or used
in the administration of a State program
shall be available to EPA upon request
without restriction. If the information
has been submitted to the State under a
claim of confidentiality, the State must
submit that claim to EPA when
providing information under this section.
Any information obtained from a State
and subject to a claim of confidentiality
will be treated in accordance with the -
regulations in 40 CFR Part 2. If EPA
obtains from a State information that is
not claimed to be confidential. EPA may
make that information available to the
public without further notice.
(b) EPA shall furnish to States with
approved programs the information in
its files not submitted under a claim of
confidentiality which the State needs to
implement its approved program. EPA
shall furnish to,States with approved
programs information submitted to EPA
under a claim of confidentiality, which
the State needs to implement its
approved program, subject to the
conditions in 40 CFR Part 2.
§ 123.42 Receipt and use of Federal
Information.
Upon approving a State permit
•program. EPA shall send to the State
agency administering the permit
program any relevant information which
was collected by EPA. The
Memorandum of Agreement under
§ 123.24 shall provide for the following.
in such manner as the State Director and
the Regional Administrator shall agree:
(a] Prompt transmisf n to the State
Director from the Regie. al
Administrator of copies of any pending
permit applications or any other
relevant information collected before
the approval of the State permit program
and not already in the possession of the
State Director. When existing permits
are transferred to the State Director
(e.g.. for purposes of compliance
monitoring, enforcement or reissuance),
relevant information includes support
files for permit issuance, compliance
reports and records of enforcement
actions.
(b] Procedures to ensure that the State
Director will not issue a permit on the
basis of any application received from
the Regional Administrator which the
Regional Administrator identifies as
incomplete or otherwise deficient until
the State Director receives information
sufficient to correct the deficiency.
§ 123.43 Transmission of information to
EPA.
(a) Each State agency administering a
permit program shall transmit to the
Regional Administrator copies of permit
program forms and any other relevant
information to the extent and in the
manner agreed to by the State Director
and Regional Administrator in the
Memorandum of Agreement and not
inconsistent with this Part Proposed
permits shall be prepared by State
agencies unless agreement to the
contrary has been reached under
§ 123.44(j). The Memorandum of
Agreement shall provide for the
following:
(1) Prompt transmission to the
Regional Administrator of a copy of all
complete permit applications received
by the State Director, except those for
which permit review has been waived
under § 123.24(d). The State shall supply
EPA with copies of permit applications
for which permit review has been
waived whenever requested by EPA;
(2) Prompt transmission to the
Regional Administrator of notice of
every action taken by'the State agency
related to the consideration of any
permit application or general permit.
including a copy of each proposed or
draft permit and any conditions,
requirements, or documents which are
related to the proposed or draft permit
or which affect the authorization of the
proposed permit, except those for which
permit review has been waived under
§ 123.24(d). The State shall supply EPA
with copies of notices for which permit
review has been waived whenever
requested by EPA: and
(3) Transmission to the Regional
Administrator of a copy of every issued
permit following issuance, along with
any and all conditions, requirements, or
documents which are related to or affect
the authorization of the permit.
(b) The State shall transmit a copy of
each draft general permit or proposed
general permit, except those for separate
storm sewers, to the EPA Director,
Office of Water Enforcement and
Permits at the same time the draft
general permit or proposed general
permit is transmitted to the Regional
Administrator under paragraph (a)(2) of
this section.
(c) The State program shall provide
for transmission by the State Director to
EPA of:
(1) Notices from publicly owned
treatment works under § 122.42(b] and
40 CFR Part 403. upon request of the
Regional Administrator;
(2) A copy of any significant
comments presented in writing pursuant
to the public notice of a draft permit and
a summary of any significant comments
presented at any hearing on any draft
permit, except those comments
regarding permits for which permit
review has been waived under
§ 123.24(d) and for which EPA has not
otherwise requested receipt if:
(i) The Regional Administrator .
requests this information; or
(ii) The proposed permit contains
requirements significantly different from
those contained in the tentative
determination and draft permit; or
(iii) Significant comments objecting to
the tentative determination and draft
permit have been presented at the
hearing or in writing pursuant to the
public notice.
(d) Any State permit program shall
keep such records and submit to the
Administrator such information as the
Administrator may reasonably require
to ascertain whether the State program
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complies with the requirements'of CWA
or of this Part.
§ 123.44 EPA Review of and objections to
State permits.
(a)(l) The Memorandum of Agreement
shall provide a period of time (up to 90
days from receipt of proposed permits)
to which the Regional Administrator
may make general comments upon,
objections to, or recommendations with
respect to proposed permits. EPA
reserves the right to take 90 days to
supply specific grounds for objection.
notwithstanding any shorter period
specified in the Memorandum of
Agreement, when a general objection is
filed within the review period specified
in the Memorandum of Agreement. The
Regional Administrator shall send a
copy of any comment, objection or
recommendation to the permit applicant.
(2) In the case of general permits, EPA
shall have 90 days from the date of
receipt of the proposed general permit to
comment upon, object to or make
recommendations with respect to the
proposed general permit, and is not
bound by any shorter time limits set by
the Memorandum of Agreement for
general comments, objections or
recommendations. The EPA Director.
Office of Water Enforcement and
Permits may comment upon, object to, or
make recommendations with respect to
proposed general permits, except those
for separate storm sewers, on EPA's
behalf.
(b)(l) Within the period of time
provided under the Memorandum of
Agreement for making general
comments upon, objections to or
recommendations with respect to-,
proposed permits, the Regional
Administrator shall notify the State
Director of any objection to issuance of
a proposed permit (except as provided
in paragraph (a)(2) of this section for
proposed general permits). This
notification shall set forth in writing the
general nature of the objection.
(2) Within 90 days following receipt of
i proposed permit to which he or she
has objected under (b)(l) of this section.
or in the case of general permits within
JO days after receipt of the proposed
general permit, the Regional
Administrator, or in the case of general
aermits other than for separate storm
jewers. the Regional Administrator or
•Jie EPA Director, Office of Water
Inforcement and Permits, shall set forth
n writing and transmit to the State
Director
(i) A statement of the reasons for the
objection (including the section of CWA
or regulations that support the
objection), and
(ii) The actions that must be taken by
the State Director to eliminate the
objection (including the effluent
limitations and conditions which the
permit would include if it were issued
by the Regional Administrator.)
[Note.—Paragraphs (a) and (b) of this
section, in effect, modify any existing
agreement between EPA and the State which
provides less than 90 days for EPA to supply
the specific grounds for an abjection.
However, when an agreement provides for an
EPA review period of less than 90 days, EPA
must file a general objection, in accordance
with paragraph (b)(l) of this section within
the time specified in the agreement. This
general objection must be followed by a
specific objection within the 90-day period.
This modification to MOA's allows EPA to
provide detailed information concerning
acceptable permit conditions, as required by
section 462(d) of CWA'. To avoid possible
confusion. MOA's should be changed to
reflect this arrangement. |
(c) The Regional Administrator's
objection to the issuance of a proposed
permit must be based upon one or more
of the following grounds:
(1) The permit fails to apply, or to
ensure compliance with, any applicable
requirement of this Part;
[Note.—For example, the Regional
Administrator may object to a permit not
requiring the achievement of required effluent
limitations by applicable statutory
deadlines.]
(2) In the case of a proposed permit
for which notification to the
Administrator is required under section
402(b](5) of CWA, the written
recommendations of an affected State
have not been accepted by the
permitting State and the Regional
Administrator finds the reasons for
rejecting the recommendations are
inadequate:
(3) The procedures followed in
connection with formulation of the
proposed permit failed in a material
respect to comply with procedures
required by CWA or by regulations
thereunder or by the Memorandum of
Agreement;
(4) Any finding made by the State
Director in connection with the
proposed permit misinterprets CWA or
any guidelines or regulations under
CWA, or misapplies them to the facts;
(5) Any provisions of the proposed
permit relating to the maintenance of
records, reporting, monitoring, sampling,
or the provision of any other information
by the permittee are inadequate, in the
judgment of the Regional Administrator,
to assure compliance with permit
conditions, including effluent standards
and limitations required by CWA. by
the guidelines and regulations issued
under CWA, or by the proposed permit;
(6) In the case of any proposed permit
with respect to which applicable
effluent standards and limitations under
sections 301, 302, 306, 307. 318, 403 and
405 of CWA have not yet been
promulgated by the Agency, the
proposed permit, in the judgment of the
Regional Administrator, fails to carry
out the provisions of CWA or of any
regulations issued under CWA: the
provisions of this subparagraph apply to
determinations made pursuant to
§ 125.3(c)(2) in the absence of applicable
guidelines and to best management
practices under section 304(e) of CWA,
which must be incorporated into permits
as requirements under sections 301, 306.
307. 318, 403 or 405. as the case may be:
(7) Issuance of the proposed permit
would in any other respect be outside
the requirements of CWA, or regulations
issued under CWA.
(d) Prior to notifying the State Director
of an objection based upon any of the.
grounds set forth in paragraph (b) of this
section, the Regional Administrator
(1) Shall consider all data transmitted
pursuant to § 123.43;
(2) May, if the information provided is
inadequate to determine whether the
proposed permit meets the guidelines
and requirements of CWA. request the
State Director to transmit to the
Regional Administrator the complete
record of the permit proceedings before
the State, or any portions of the record
that the Regional Administrator
determines are necessary for review. If
this request is made within 30 days of
receipt of the State submittal under
§ 123.43, it shall constitute an interim
objection to the issuance of the permit.
and the full period of time specified in
the Memorandum of Agreement for the
Regional Administrator's review shall
recommence when the Regional
Administrator has received such record
or portions of the record; and
(3) May, in his or her discretion, and
to the extent feasible within the period
of time available under the
Memorandum of Agreement, afford to
interested persons an opportunity to
comment on the basis for the objection:
(e) Within 90 days of receipt by the
State Director of an objection by the
Regional Administrator, the State or
interstate agency or any interested
person may request that a public
hearing be held by the Regional
Administrator on the objection. A public
hearing in accordance with the
procedures of § § 124.12 (c) and (d) shall
be held, and public notice provided in
accordance with § 124.10, whenever
requested by the State or the interstate
agency which proposed the permit or if
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14185
warranted by significant public interest
based on requests received.
(f) A public hearing held under
paragraph (e) of this section shall be
conducted by the Regional
Administrator, and. at the Regional
Administrator's .discretion, with the
assistance of an EPA panel designated
by the Regional Administrator, in an
orderly and expeditious manner.
(g) Following the public hearing, the
Regional Administrator shall reaffirm
the original objection, modify the terms
of the objection, or withdraw the
objection, and shall notify the State of
this decision.
(h)(l) If no public hearing is held
under paragraph (e) of this section and
the State does not resubmit a permit
revised to meet the Regional
Administrator's objection within 90 days
of receipt of the objection, the Regional
Administrator may issue the permit in
accordance with Parts 121.122. and 124
of this chapter and any other guidelines
and requirements of CWA.
(2) If a public hearing is held under
paragraph (e) of this section, the
Regional Administrator does not
withdraw the objection, and the State
does not resubmit a permit revised to
meet the Regional Administrator's
objection or modified objection within
30 days of the date of the Regional
Administrator's notification under
paragraph (g) of this section, the
Regional Administrator may issue the
permit in accordance with Parts 121.122.
and 124 of this chapter and any other
guidelines and requirements of CWA.
(3) Exclusive authority to issue the
permit passes to EPA when the times set
out in this paragraph expire.
(i) In the case of proposed general
permits for discharges other than from
separate storm sewers insert "or the
EPA Director. Office of Water
Enforcement and Permits" after
"Regional Administrator" whenever it
appears in paragraphs (c)-(h) of this
section.
(j) The Regional Administrator may
agree, in the Memorandum of
Agreement under § 123.24. to review
draft permits rather than proposed
permits. In such a case, a proposed
permit need not be prepared by'the
State and transmitted to the Regional
Administrator for review in accordance
with this section unless the State
proposes to issue a permit which differs
from the draft permit reviewed by the
Regional Administrator, the Regional
Administrator has objected to the draft
permit, or there is significant public
comment
§ 123.45 Noncompliance and program
reporting by the Director.
The.Director shall prepare quarterly
and annual reports as detailed below.
When the State is the permit-issuing
authority, the State Director shall submit
any reports required under this section
to the Regional Administrator. When
EPA is the permit-issuing authority, the
Regional Administrator shall submit any
report required under this section to
EPA Headquarters.
(a) Quarterly reports. The Director
shall submit quarterly narrative reports
for major facilities as follows:
(1) Format. The report shall use the
following format:
(i) Provide a separate list on NPDES
permittees which shall be
subcategorised as'norr-POTWs. POTWs.
and Federal permittees;
(ii) For facilities or activities with -
permits under more than one program.
provide an additional listing combining
information on noncompliance for each
such facility:
fiii) Alphabetize each list by permittee
name. When two or more permittees
have the same name, the lowest permit
number shall be entered first.
(iv) For each entry on a list, include
the following information in the
following order
(A) Name, location, and permit
number of the noncomplying permittee.
(B) A brief description and date of
each instance of noncompliance for that
permittee. Instances of noncompliance
may include one or more of the kinds set
forth in paragraph (a)(2) of this section.
When a permittee has noncompliance of
more than one kind under a single
program, combine the information into a
single entry for each such permittee.
(C) The dale(s) and a brief description
of the action(s) taken by the Director to
ensure compliance.
(D) Status of the instance(s) of
noncompliance with the date of the
review of the status or the date of
resolution.
(E) Any details which tend to explain
or mitigate the instance(s) of
noncompliance.
(2) Instances of noncompliance to be
reported. Any instances of
noncompliance within the following
categories shall be reported in
successive reports until the
noncompliance is reported as resolved.
Once noncompliance is reported as
resolved it need not appear in
subsequent reports.
(i) Failure to complete construction
elements: When the permittee has failed
to complete, by the date specified in the
permit, an element of a compliance
schedule involving either planning for
construction (for example, award of a
contract, preliminary plans], or a
construction step (for example, begin
construction, attain operation level); and
the permittee has not returned to
compliance by accomplishing the
required element of the schedule within
30 days from the date a compliance
schedule report is due under the permit.
(ii) Modifications to schedules of
compliance: When a schedule of
compliance in the permit has been
modified under §§ 122.62 or 122.64
because of the permittee's
noncompliance.
(iii) Failure to complete or provide
compliance schedule or monitoring
reports: When the permittee has failed
to complete or provide a report required
in a-permit compliance schedule (for
example, progress reports or notice of
noncompliance or compliance) or a
monitoring report: and the permittee has
not submitted the complete report
within 30 days from the date it is due
under the permit for compliance
schedules, or from the date specified in
the permit for monitoring reports.
(iv) Deficient reports: When the
required reports provided by the
permittee are so deficient as to cause
misunderstanding by the Director and
thus impede the review of the status of
compliance.
(v) Noncompliance with other permit
requirements: Noncompliance shall be
reported in the following circumstances:
(A) Whenever the permittee has
violated a permit requirement (other
than paragraph (a)(2) (i) or (ii) of this
section), and has not returned to
compliance within 45 days from the date
reporting of noncompliance was due
under the permit, or
(B) When the Director determines that
a pattern of noncompliance exists for a
-major facility permittee over the most
'- recent four consecutive reporting
periods. This pattern of noncompliance
is based on violations of monthly
averages and excludes parameters for
which there is continuous monitoring.
This pattern includes any violation of
the same requirement in two
consecutive reporting periods, and any
violation of one or more requirements in
each of four consecutive reporting
periods: or
(C) When the Director determines
significant permit noncompliance or
other significant event has occurred.
such as a discharge of a toxic or
hazardous substance by an NPDES
facility.
(vi) All other. Statistical information
shall be reported quarterly on all other
instances of noncompliance by major
facilities with permit requirements not
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otherwise reported under paragraph (a]
of this section.
(b) Annual reports for ffPDES.
(1) Annual noncompliance report.
Statistical reports shall be submitted by
the Director on nonmajor NPDES
permittees indicating the total number
reviewed, the number of noncomplying
nonmajor permittees, the number of
enforcement actions, and number of
permit modifications extending
compliance deadlines. The statistical
information shall be organized to follow
the types of noncompliance listed in
paragraph (a) of this section.
(2) A separate list of nonmajor
discharges which are one or more years
behind in construction phases of 'he
compliance schedule shall also be
submitted in alphabetical order by name
and permit number.
(c) Schedule.
(1) For all quarterly reports. On the
last working day of May, August,
November, and February, the State
Director shall submit to the Regional
Administrator information concerning
noncompliance with NPDES permit
requirements by major dischargers in
the State in acordance with the
following schedule. The Regional
Administrator shall prepare and submit
information for EPA-issued permits to
EPA Headquarters in accordance with
the same schedule:
QUARTERS COVERED BY REPORTS ON
NONCOMPUANCE BY MAJOR DISCHARGERS
(Dale tor eompmon ol reports)
January. Faoruary. and 'May 31
Mercn.
Aprt. May. and June •Auquct?1
July. August, ana SectemDer.. 'November X
Octa&er. Novemoer, and Da- 'FeDruary 28
'Reports must be mad* evadetse to ttM puttie tor note-
ton ana copying an thrs data.
(2) For all annual reports. The period
for annual reports shall be for the
calendar year ending December 31, with
reports completed and available to the
public no more than 60 days later.
Subpart D—Program Approval,
Rsvision, and Withdrawal
5 123.61 Approval process.
(a) After determining that a State
program submission is complete, EPA
shall publish notice of the State's
application in the Federal Register, and
in enough of the largest newspapers in
the State to attract statewide attention,
and shall mail notice to persons known
to be interested in such matters,
including all persons on appropriate
State and EPA mailing lists and all
permit holders and applicants within the
State. The notice shall:
(1) Provide a comment period of not
less than 45 days during which
interested members of the public may
express their views on the State
program: ,
(2) Provide for a public hearing within
the State to be held no less than 30 days
after notice is published in the Federal
Register,
(3) Indicate the cost of obtaining a
copy of the State's submission;
(4) Indicate where and when the
State's submission may be reviewed by
the public;
(5) Indicate when an interested
member of the public should contact
with any questions; and
(6} Briefly outline the fundamental
aspects of the State's proposed program.
and the process for EPA' review and
decision.
(b) Within 90 days of the receipt of a
complete program submission under
§ 123.21 the Administrator shall approve
or disapprove the program based on the
requirements of this Part and of CWA
and taking into consideration all
comments received. A responsiveness
summary shall be prepared by the
Regional Office which identifies the
public participation activities
conducted, describes the matters
presented to the public, summarizes
significant comments received and
explains the Agency's response to these
comments.
(c) If the Administrator approves the
State's program he or she shall notify
the State and publish notice in the
Federal Register. The Regional
Administrator shall suspend the
issuance of permits by EPA as of the
date of program approval.
(d) If the Administrator disapproves
the State program he or she shall notify
the State of the reasons for disapproval
'and of any revisions or modifications to
the State program which are necessary
to obtain approval.
§ 123.62 Procedure for revision of State
programs.
(a) Either EPA or the approved State
may initiate program revision. Program
revision may be necessary when the
controlling Federal or State statutory or
regulatory authority is modified or
supplemented. The State shall keep EPA
fully informed of any proposed
modifications to its basic statutory or
regulatory authority, its forms.
procedures, or priorities.
(b) Revision of a State program shall
be accomplished as follows: •
(1) The State shall submit a modified
program description. Attorney General's
statement. Memorandum of Agreement,
or such other documents as EPA
determines to be necessary under the
circumstances.
(2) Whenever EPA determines that the
propdsed.program modification is
substantial, EPA shall issue public
notice and provide an opportunity to
comment for a period of at least 30 days.
The public notice shall be mailed to
interested persons and shall be
published in the Federal Register and in
enough of the largest newspapers in the
State to provide Statewide coverage.
The public notice shall summarize the
proposed revisions and provide for the
opportunity to request a public hearing.
Such a hearing will be held if there is
significant public interest based on
requests received.
(3) The Administrator shall approve or
disapprove program revisions based on
the requirements of this Part and of the
CWA.
(4) A program revision shall become
effective upon the approval of the
Administrator. Notice of approval of any
substantial revision shall be published
in the Federal Register. Notice of
approval of non-substantial program
revisions may be given by a letter from-
the Administrator to the State Governor
or his designee.
(c} States with approved programs
shall notify EPA whenever they propose
to transfer all or part of any program
-from the approved State agency to any
other State agency, and shall identify
any new division of responsibilities
among the agencies involved. The new
agency is not authorized to administer
the program until approved by the
Administrator under paragraph (b) of
this section. Organizational charts
required under 5 123.22(b] shall be
revised and resubmitted.
(d) Whenever the Administrator has
reason to believe that circumstances
have changed with respect to a State
program, he may request, and the State
shall provide, a supplemental Attorney
General's statement program
description, or such other documents or
information as are necessary.
(e) All new programs must comply
with these regulations immediately upon
approval. Any approved State section
402 permit program which requires
revision to conform to this Part shall be
so revised within one year of the date of
promulgation of these regulations,
unless a State must amend or enact a
statute in order to make the required
revision of State programs in which case
the revision shall take place within two
years, except that revision of State
programs to implement the requirements
of 40 CFR Part 403 (pretreabr.ent) shall
be accomplished as provided in 40 CFR
403.10. In addition, approved States
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Federal Register / Vol. 48. No. 64 / Friday. April .1. 1983 / Rules and Regulations 14137
shall submit, within 6 months, copies of
their permit forms for EPA review and
approval. Approved States shall also
assure that permit applicants, other than
POTWs. either (1) whose permits expire
after November 30. 1980. or (2} whose
permits expire before November 30, I960
and who have not reapplied for a permit
prior to April 30, 1980. submit, as part of
their application, the information
required under § 122.21 (d) and (h). as
appropriate.
§ 123.63 Criteria for withdrawal of State
(a) The Administrator may withdraw
program approval when a State progwm
no longer complies with the
requirements of this Part, and the State
fails to take corrective action. Such
circumstances include the following:
(1) Where the State's legal authority
no longer meets the requirements of this
Part, including:
(i) Failure of the State to promulgate
or enact new authorities- when
necessary; or
(ii) Action by a State legislature or
court striking down or limiting State
authorities.
• (2) Where the operation of the State
program fails to comply with the
requirements of this Part including:
(i] Failure to exercise control over
activities required to be regulated under
this Part, including failure to issue
permits;
(ii) Issuance of permits which do not
conform to the requirements of this Part;
or
(Hi) Failure to comply with the public
participation requirements of this Part.
(3) Where the State's enforcement
program fails to comply with the
requirements of this Part, including:
(i) Failure to act on violations of
permits or other program requirements;
(ii) Failure to seek adequate
enforcement penalties or to collect
administrative fines when imposed; or
(iii) Failure to inspect and monitor
activities subject to regulation.
(4) Where the State program fails to
comply with the terms of the
Memorandum of Agreement required
under $ 123.24,
§ 123*4 Procedures for withdrawal of
State programs.
(a) A state with a program approved
under this Part may voluntarily transfer
program responsibilities required by
Federal law to EPA by taking the
following actions, or in such other
manner as may be agreed upon with the
Administrator.
(1) The State shall give the
Administrator 180 days notice of the
proposed transfer and shall submit a
plan for the orderly transfer of all
relevant program information not in the
possession of EPA (such as permits.
permit files,' compliance files, reports.
permit applications) which are
necessary fpr EPA to administer the
program.
(2) Within 60 days of receiving the
notice and transfer plan, the
Administrator shall evaluate the State's
transfer plan and shall identify any
additional information needed by the
Federal government for program
administration and/or identify any other
deficiencies in the plan.
(3) At least 30 days before the transfer
is to occur the Administrator shall
publish notice of the transfer in the
Federal Register and in enough of the
largest newspapers.in.the.Slate to
provide Statewide coverage, and shall
mail notice to all permit holders, permit
applicants, other regulated persons and
other interested persons on appropriate
EPA and State mailing lists.
(b) The following procedures apply
when the Administrator orders the
commencement of proceedings to
determine whether to withdraw
approval of a State program.
(1) Order. The Administrator may
order the commencement of withdrawal
proceedings on his or her own initiative
or in response to a petition from an
interested person alleging failure of the
State to comply with the requirements of
this Part as set forth in § 122.63. The
Administrator shall respond in writing
to any petition to commence withdrawal
proceedings. He may conduct an
informal investigation of the allegations
in the petition to determine whether
cause exists to commence proceedings
under this paragraph. The
Administrator's order commencing
proceedings under this paragraph shall
fix a time and place for the
commencement of the hearing and shall
specify the allegations against the State
which are to be considered at the
hearing. Within 30 days the State shall
admit or deny these allegations in a
written answer. The party seeking
withdrawal of the State's program shall
have the burden of coming forward with
the evidence in a hearing under this
paragraph.
(2) Definitions. For purposes of this
paragraph the definitions of "Act"
"Administrative Law Judse." "Hearing
Clerk." and "Presiding Officer" in 40
CFR 22.03 apply in addition to the
following:
(i) "Party" means the petitioner, the
State, the Agency, and any other person
whose request to participate as a party
is granted.
(ii) "Person" means the Agency, the
State and any individual or organization
having an interest in the subject matter
of the proceeding.
(iii) "Petitioner" means any person
whose petition for commencement of
withdrawal proceedings has been
granted by the Administrator.
(3) Procedures, (i) The following
provisions of 40 CFR Part 22
(Consolidated Rules of Practice) are
applicable to proceedings under this
paragraph:
(A) § 22.02—(use of number/gender);
(B) § 22.04(c}—(authorities of
Presiding Officer);
1C) § 22.06—{filing/service of rulings
and orders);
(D) § 22.09—(examination of filed
documents):
(E) § 22.19(a). (b) and (c)—(prehearing
conference);
(F) § 22.22—(evidence);
(G) 522.23—(objections/offers of
proof):
(H) § 22.25—(filing the transcript); and
(I) § 22.26—(findings/conclusions). -"
(ii) The following provisions are also
applicable:
(A) Computation and extension of
time.
[1] Computation. In computing any
period of time prescribed or allowed in
these rules of practice, except as
otherwise provided, the day oT the event
from which the designated period begins
to run shall not be included. Saturdays.
Sundays, and Federal legal holidays
shall be-induded. When a stated time
expires on a Saturday, Sunday, or" legal
holiday, the stated time period shall be
extended to include the next business
day.
(2) Extensions of time. The
Administrator. Regional Administrator.
or Presiding Officer, as appropriate, may
grant an extension of time for the filing
of any pleading, document or motion (/)
upon timely motion of a party to the
proceeding, for good cause shown, and
after consideration of prejudice to other
parties, or (ii] upon his own motion.
Such a motion by a party may only be
made after notice to all other parties.
unless the movant can show good cause
why serving notice is impracticable. The
motion shall be filed in advance of the
date on which the pleading, document or
motion is due to be filed, unless the
failure of a party to make timely motion
for extension of time was the result of
excusable neglect
(3) The time for commencement of the
hearing shall not be extended beyond
the date set in the Administrator's order
without approval of the Administrator.
(B) Ex parte discussion of proceeding.
At no time after the issuance of the
order commencing proceedings shall the
Administrator, Regional Administrator,
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Judicial Officer, Regional Judicial
Officer, Presiding Officer, or any other
person who is likely to advise these
officials in the decision on the case.
discuss ex parte the merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member who performs a
prosecutorial or investigative function in
such proceeding or a factually related
proceeding, or with any representative
of such person. Any ex parte
memorandum or other communication
addressed to the Administrator,
Regional Administrator, Judicial Officer,
Regional Judicial Officer, or the
Presiding Officer during the pendency of
the proceeding and relating to the merits
thereof, by or on behalf of any party
shall be regarded as argument made in
the proceeding and shall be served upon
all other parties. The other parties shall
be given an opportunity to reply to such
memorandum or communication.
(C) Intervention.
(1) Motion. A motion for leave to
intervene in any proceeding conducted
under these rules of practice must set
forth the grounds for the proposed
intervention, the position and interest of
the movant and the likely impact that
intervention will have on the
expeditious progress of the proceeding.
Any person already a party to the
proceeding may file an answer to a
motion to intervene, making specific
reference to the factors set forth in the
foregoing sentence and paragraph
(b)(3)(ii)(C)(5) of this section, within ten
(10) days after service of the motion for
leave to intervene.
(2) However, motions to intervene
must be filed within 15 days from the
date the notice of the Administrator's
order is first published.
[3] Disposition. Leave to intervene
may be granted only if the movant
demonstrates that (/) his presence in the
proceeding would not unduly prolong or
otherwise prejudice that adjudication of
the rights of the original parties; (ii) the
movant will be adversely affected by a
final order, and [Hi] the interests of the
movant are not being adequately
represented by the original parties. The
intervenor shall become a full party to
the proceeding upon the granting of
leave to intervene.
(4) Amicus curiae. Persons not parties
to the proceeding who wish to file briefs
may so move. The motion shall identify
the interest of the applicant and shall
state the reasons why the proposed
amicus brief is desirable. If the motion is
granted, the Presiding Officer or
Administrator shall issue an order
setting the time for filing such brief. An
amicus curiae is eligible to participate in
any briefing after his motion is granted.
and shall be served with all briefs, reply
briefs, motions, and orders relating to
issues to be briefed.
(D) Motions.
(1) General. All motions, except those
made orally on the record during a
hearing; shall (i) be in writing; [if] state
the grounds therefor with particularity;
(Hi) set forth the relief or order sought;
and (iv) be accompanied by any
affidavit, certificate, other evidence, or
legal memorandum relied upon. Such
motions shall be served as provided by
(b)(4) of this section.
(2) Response to motions. A party's
response to any written motion must be
filed within ten (10) days after service of
such motion, unless additional time is
allowed for such response. The response
shall be accompanied by any affidavit,
certificate, other evidence, or legal
memorandum relied upon. If no
response is filed within the designated
period, the parties may be deemed to
have waived any objection to the
granting of the motion. The Presiding
Officer, Regional Administrator, or
Administrator, as appropriate, may set a
shorter time for response, or make such
other orders concerning the disposition
of motions as they deem appropriate.
(3) Decision. The Administrator shall
rule on all motions filed or made after
service of the recommended decision
upon the parties. The Presiding Officer
shall rule on all other motions. Oral
argument on motions will be permitted
where the Presiding Officer, Regional
Administrator, or the Administrator
considers it necessary or desirable.
(4) Record of proceedings, (i) The
hearing shall be either stenographically
reported verbatim or tape recorded, and
thereupon transcribed by an official
reporter designated by the Presiding
Officer;
(ii) All orders issued by the Presiding
Officer, transcripts of testimony, written
statements of position, stipulations,
exhibits, motions, briefs, and other
written material of any kind submitted
in the hearing shall be a part of the
record and shall be available for
inspection or copying in the Office of the
Hearing Clerk, upon payment of costs.
Inquiries may be made at the Office of
the Administrative Law Judges, Hearing
Clerk. 401 M Street, S.W., Washington.
D.C. 20460;
(iii) Upon notice to all parties the
Presiding Officer may authorize
corrections to the transcript which
involves matters of substance;
(iv) An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerk;
(v) A copy of each submission shall be
served by the person making the
submission upon the Presiding Officer
and each party of record. Service under
this paragraph shall take place by mail
or personal delivery;
(vi) Every submission shall be
accompanied by an acknowledgement
of service by the person served or proof
of service in the form of a statement of
the date, time, and manner of service
and the names of the persons served,
certified by the person who made
service, and;
(vii) The Hearing Clerk shall maintain
and furnish to any person upon request.
a list containing the name, service
address, and telephone number of all
parties and their attorneys or duly
authorized representatives.
(5) Participation by a person not a
party. A person who is not a party may.
in the discretion of the Presiding Officer,
be permitted to make a limited
appearance by making oral or written
statement of his/her position on the
issues within such limits and on such
conditions as may be fixed by the . -
Presiding Officer, but he/she may not
otherwise participate in the proceeding.
(6) Rights of parties, (i) All parties to
the proceeding may: .
(A) Appear by counsel or other
representative in all hearing and pre-
hearing proceedings;
(B) Agree to stipulations of facts
which shall be made a part of the
record.
(7) Recommended decision, (i) Within
30 days after the filing of proposed
findings and conclusions, and reply
briefs, the Presiding Officer shall
evaluate the record before him/her, the
proposed findings and conclusions and
any briefs filed by the parties and shall
prepare a recommended decision, and
shall certify the entire record, including
the recommended decision, to the
Administrator.
(ii) Copies of the recommended
decision shall be served upon all parties.
(iii) Within 20 days after the
certification and filing of the record and
recommended decision, all parties may
file with the Administrator exceptions to
the recommended decision and a
supporting brief.
(B) Decision by Administrator, (i)
Within 60 days after the certification of
the record and filing of the Presiding
Officer's recommeded decision, the
Administrator shall review the record
before him and issue his own decision.
(ii) If the Administrator concludes that
the State has administered the program
in conformity with the appropriate Act
and regulations his decision shall
constitute "final agency action" within
the meaning of 5 U.S.C. 704.
(iii) If the Administrator concludes
that the State has not administered the
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14189
program in conformity with the
appropriate Act and regulations he shall
list the deficiencies in the program and
provide the State a reasonable time, not
to exceed 90 days, to take such
appropriate corrective action as the
Administrator determines necessary.
(iv) Within the time prescribed by the
Administrator the State shall take such
appropriate corrective action as
• >quired by the Administrator and shall
file with the Administrator and all
parties a statement certified by the State
Director that such appropriate corrective
action has been taken.
(v) The Administrator may require a
further showing in addition to the
certified statement that corrective action
has been taken.
(vi) If the State fails to take such
appropriate corrective action and file a
certified statement thereof within the
time prescribed by the Administrator.
the Administrator shall issue a
supplementary order withdrawing
approval of the State program. If the
State takes such appropriate corrective
action, the Administrator shall issue a
supplementary order stating that
approval of authority is not withdrawn.
(vii) The Administrator's
supplementary order shall constitute
final Agency action within the meaning
of 5 U.S.C 704.
(viii) Withdrawal of authorization
under this section and the appropriate
Act does not relieve any person from
complying with the requirements of
State law, nor does it affect the validity
of actions by the State prior to
withdrawal
Part 144 is added to read as follows:
PART 144—UNDERGROUND
INJECTION CONTROL PROGRAM
Subpart A—General Provision* •
Sec.
144.1 Purpose and scope of Part 144.
144.2 Promulgation of Class II Programs for
Indian lands.
" 144.3 Definitions.
144.4 Considerations under Federal law.
144.5 Confidentiality of information.
144.6 Classification of wells.
144.7 Identification of underground sources
of drinking water and exempted aquifers.
144.8 Noncompliance and program reporting
by the Director.
Subpart B—General Program Requirements
144.11 Prohibition of unauthorized injection.
144.12 Prohibition of movement of fluid into
underground sources of drinking water.
144.13 Elimination of certain class IV wells.
144.14 Requirements for wells injecting
hazardous waste.
144.15 Assessment of Class V wells.
144.16 Waiver of requirement by Director.
Subpart C—Authorization of Underground
Injection by Rule
Sec.
144.21 Existing Class I. II (except enhanced
recovery and hydrocarbon storage) and
III wells.
144.22 Existing Class II enhanced recovery
and hydrocarbon storage wells.
144.23 Class IV wells.
144.24 Class V wells.
144.25 Requinng a permit.
144.26 Inventory requirements.
Subpart D—Authorization by Permit
144.31 Authorization for a permit
authorization by permit.
144.32 Signatories to permit application and
reports.
144.33 Area permits.
144.34 Emergency permits.
144.35 Effect of a permit.
144.36 Duration of permits..
144.37 Continuation of expiring permits.
144.38 Transfer of permits. .
144.39 Modification or revocation and
reissuancc of permits.
144.40 Termination of permits.
144.41 Minor modifications of permits.
Subpart E—Permit Conditions
144.51 Conditions applicable to all permits.
144.52 Establishing permit conditions.
144.53 Schedule of Compliance.
144.54 Requirements for recording and
reporting of monitoring results.
144.55 Corrective action.
. Authority: Pub. L 93-523. as amended by
Pub. L 95-190, Pub. L. 96-63 and Pub. L. 96-
502. 42 USC 300f else?.
Subpart A—General Provisions
§ 144.1 Purpose and scope of Part 144.
(a) Contents of Part 144. The
regulations in this Part set forth
requirements for the Underground
Injection Control (UIC) Program
promulgated under Part C of the Safe
Drinking Water Act (SOWA) (Pub. L. 95-
523. as amended by Pub. L 95-190. 42
U.S.C. 300f et seq.) and. to the extent
that they deal with hazardous waste, the
Resource Conservation and Recovery
Act (RCRA) (Pub. L. 94-580 as amended
by Pub. L. 95-609, Pub. L. 96-510. 42
U.S.C. 6901 et seq.). They apply to EPA.
and to approved States to the extent set
forth in Part 145.
(b) Authority.
(!) Section 1421 of SDWA requires the
Administrator to promulgate regulations
establishing minimum requirements for
effective UIC programs.
(2) Section 1422 of SOW A requires the
Administrator to list in the Federal •
Register "each State for which in his
judgment a State underground injection
control program may be necessary to
assure that underground injection will
not endanger drinking water sources"
and to establish by regulation a program
for EPA administration of UIC programs
in the absence of an approved State
program in a listed State.
(3) Section 1423 of SDWA provides
procedures for EPA enforcement of UIC
requirements.
(4) Section 1431 authorizes the
Administrator to take action to protect
'the health of persons when a
contaminant which is present in or may
enter a public water system may present
an imminent and substantial
endangerment to the health of persons.
(5) Section 1445 of SDWA authorizes
the promulgation of regulations for such
recordkeeping. reporting, and monitoring
requirements "as the Administrator may
reasonably require * * * to assist him in
establishing regulations under this title."
and a "right of entry and inspection to
determine compliance with this title,
including for this purpose, inspection, at
reasonable time, or records, files.
papers, processes, controls, and
facilities * * *."
(6) Section 1450 of SDWA authorizes
the Administrator "to prescribe such
regulations as are necessary or
appropriate to carry out his functions"
under SDWA.
(c) Overview of the UIC program. An
UIC program is necessary in any State
listed by EPA under section 1422 of the
SDWA. Because all States have been
listed, the SDWA requires all States to
submit an UIC program within 270 days
after July 24,1980, the effective date o'f
40 CFR Part 146. which was the final -
element of the UIC minimum
requirements to be originally
promulgated, unless the Administrator
grants an extension, which can be for a
period not to exceed an additional 270
days. If a State fails to submit an
approvable program, EPA will establish
a program for that State. Once a
program is established. SDWA provides
that all underground injections in listed
States are unlawful and subject to ,
penalties unless authorized by a permit
or a rule. This Part sets forth the
requirements governing all UIC
programs, authorizations by permit or-
rule and prohibits certain types of
injection. The technical regulations
governing these authorizations appear in
40 CFR Part 146.
(d) Structure of the UIC Program.
[I] Part 144. This part sets forth the
permitting and other program
requirements that must be met by UIC
Programs, whether run by a State or by
EPA. It is divided into the following
subparts:
(i) Subpart A describes general
elements of the program, including
definitions and classifications.
(ii) Subpart B sets forth the general
program requirements, including the
performance standards applicable to all
injection activities, basic elements that
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14190 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
all UIC programs must contain, and
provisions for waiving permit of rule
requirements under certain
circumstances.
(iii) Subpart C sets forth requirements
for wells authorized by rule.
(iv) Subpart D sets forth permitting
procedures.
(v) Subpart E sets forth specific
conditions, or types of conditions, that
must at a minimum be included in all
permits.
(2) Part 145. While Part 144 sets forth
minimum requirements for all UIC
Programs, these requirements are
specifically indentified as elements of a
State application for primacy to
administer an U{C Program in Part 145.
Part 145 also sets forth the necessary
elements of a State submission and the
procedural requirements for approval of
State programs.
(3) Part 124. The public participation
requirements that must be met by UIC
Programs, whether administered by the
- State or by EPA, are set forth in Part
124. EPA must comply with all Part 124
requirements; State administered
programs must comply with Part 124 as
required by Part 145. These
requirements carry out the purposes of
the public participation requirement of
40 CFR Part 25 (Public Participation),
and supersede the requirements of that
Part as they apply to the UIC Program.
(4) Part 146. This part set forth the
technical criteria and standards that
must be met in permits and
authorizations by rule as required by
Part 144.
(e) Scope of the Permit or Rule
Requirement.
The UIC Permit Program regulates
underground injections by five classes
of wells (see definition of "well
injection," § 144.3). The five classes of
wells are set forth in § 144.6. All owners
or operators of these injection wells
must be authorized either by permit or
rule by the Director. In carrying out the
mandate of the SDWA, this subpart
provides that no injection shall be
authorized by permit or rule if it results
in the movement of fluid containing any
contaminant into Underground Sources
of Drinking Water (USDWs—see § 144.3
for definition), if the presence of that
contaminant may cause a violation of
any primary drinking water regulation
under 40 CFR Part 142 or may adversely
affect the health of persons (§ 144.12).
Existing Class IV wells which inject
hazardous waste directly into an
underground source of drinking water
are to be eliminated over a period of six
months and new such Class IV wells are
to be prohibited (§ 144.13). Class V wells
will be inventoried and assessed and
regulatory action will be established at
a later date.
In the meantime, if remedial action
appears necessary, an individual permit
may be required (§ 144.25) or the
Director must require remedial action-or
closure by order (§ 144.12(c)). During
UIC program development, the Director
may identify aquifers and portions of
aquifers which are actual or potential
sources of drinking water. This will
provide an aid to the Director in
carrying out his or her duty to protect all
USDWs. An aquifer is a USDW if it fits
the definition, even if it has not been
"identified." The Director may also
designate "exempted aquifers" using
criteria in § 146.04. Such aquifers are
those which would otherwise qualify as
"underground sources of drinking
water" to be protected;but which have
no real potential to be used as drinking
water sources. Therefore, they are not
USDWs. No aquifer is an "exempted
aquifer" until it has been affirmatively
designated under the procedures in
§ 144.7. Aquifers which do not fit the
definition of "underground sources of
drinking water" are not "exempted
aquifers." They are simply not subject to
the special protection afforded USDWs.
(1) Specific inclusions. The following
wells are included among those types by
injection activities which are covered by
the UIC regulations. (This list is not
intended to be exclusive but is for
clarification only.)
(i) Any injection well located on a
drilling platform inside the State's
territorial waters.
(ii) Any dug hole or well that is deeper
than its largest surface dimension,
where the principal function of the hole
is emplacement of fluids.
(iii) Any septic tank or cesspool used
by generators of hazardous waste, or by
owners or operators of hazardous waste
management facilities, to dispose of
fluids containing hazardous waste.
(iv) Any septic tank, cesspool, or other
well used by a multiple dwelling,
community, or Regional system for the
injection of wastes.
(2) Specific exclusions. The following
are not covered by these regulations:
(i) Injection wells located on a drilling
platform or other site that is beyond the
State's territorial waters.
(ii) Individual or single family
residential waste disposal systems such
as domestic cesspools or septic systems.
(iii) Non-residential cesspools, septic
systems or similar waste disposal
systems if such systems (A) are used
solely for the disposal of sanitary waste,
and (B) have the capacity to serve fewer
than 20 persons a day.
(iv) Injection wells used for injection
of hydrocarbons which are of pipeline
quality and are gases at standard
temperature and pressure for the
purpose of storage.
(v) Any dug hole which is not used for
emplacement of fluids underground.
' (3) The prohibition applicable to Class
IV wells under i 144.13 does not apply
to injections of hazardous wastes into
aquifers or portions thereof which have
been exempted pursuant to § 146.04.
§ 144.2 Promulgation of Class II Programs
for Indian Lands.
Notwithstanding the requirements of
this Part or Parts 124 and 146 of this
chapter, the Administrator may
promulgate an alternate UIC Program
for Class II wells on any Indian
reservation or Indian lands. In
promulgating such a program the
Administrator shall consider the
following factors:
(a) The interest and preferences of the
tribal government having responsibility
for the given reservation or Indian.-lands:
(b) The consistency between the
alternate program and any program in
effect in an adjoining jurisdiction; and
(c) Such other factors as are necessary
and appropriate to carry out the Safe
Drinking Water Act
§144.3 Definitions.
Terms not defined in this section have
the meaning given by the appropriate
Act. When a defined term appears in a
definition, the defined term is sometimes
placed within quotation marks as an aid
to readers.
Administrator means the
Administrator of the United States
Environmental Protection Agency, or an
authorized representative.
Application means the EPA standard
national forms for applying for a permit.
including any additions, revisions or
modifications to the forms; or forms
approved by EPA for use in approved
States, including any approved
modifications or revisions.
Appropriate Act and regulations
means the Solid Waste Disposal Act, as
amended by the Resource Conservation
and Recovery Act (RCRA); or Safe
Drinking Water Act (SDWA), whichever
is applicable; and applicable regulations
promulgated under those statutes.
Approved State Program means a
State UIC program administered by the
State that has been approved by EPA
according to SDWA § 1422.
Aquifer means a geological
"formation," group of formations, or part
of a formation that is capable of yielding
a significant amount of water to a well
or spring.
Area of Review means the area
surrounding an injection well described
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14191
according to the criteria set forth-w
§ 146.06 or in the case of an area permit,
the project area plus a circumscribing
area the width of which is either X of a
mile or a number calculated according
to the criteria set forth in § 146.06.
Contaminant means any physical.
chemical, biological, or radiological
substance or matter in water.
Director means the Regional
Administrator, the Administrator of
EPA. or the State Director, as the
context requires, or an authorized
representative. When there is no
approved State program, and there is an
ZPA administered program, "Director"
means the Regional Administrator.
When there is an approved Slate
program, "Director" normally means the
State Director.
in some circumstances, however, EPA
retains the authority to take certain
actions even when there is an approved
State program. In such cases, the term
"Director" means the Regional
Administrator and not the State
Director.
Draft permit means a document
prepared under § 124.6 indicating the
Director's tentative decision to issue or
deny, modify, revoke and reissue.
terminate, or reissue a "permit" A
notice of intent to terminate a permit.
and a notice of intent to deny a permit
as discussed in § 124.5 are types of
"draft permits." A denial of a request for
modification, revocation and reissuance.
or termination, as discussed in § 124.5 is
not a "draft permit"
Drilling mud means a heavy
suspension used in drilling an "injection
well" introduced down the drill pipe
and through the drill bit
Emergency permit means a UIC
"permit" issued in accordance with
§144.34.
Environmental Protection Agency
("EPA") means the United States
Environmental Protection Agency.
EPA means the United States
"Environmental Protection Agency."
Exempted aquifer means an "aquifer"
or its portion that meets the criteria in
the definition of "underground source of
drinking water",but which has been
exempted according to the procedures in
§ 144.7.
Existing injection well means an
"injection well" other than a "new
injection well."
Facility or activity means any UIC
"injection well." or an other facility or
activity that is subject to regulation
under the UIC program.
Fluid means any material or
substance which flows or moves
whether in a semisolid. liquid, sludge,
gas, or any other form or state.
Formation means a body of
consolidated or unconsolidated rock
characterized by a degree of lithologic
homogeneity 'which is prevailingly, but
not necessarily,'tabular and is mappable
on the earth's, surface or traceable in the
subsurface.
Formation fluid means "fluid" present
in a "formation" under natural
conditions as opposed to introduced
fluids, such as "drilling mud."
Generator means any person, by site
location, whose act or process produces
hazardous waste identified or listed in
40 CFR Part 261.
Ground water means water below the
land surface hi a zone of saturation.
Hazardous waste means a hazardous
waste as defined in 40 CFR 261.3.
Hazardous-Waste Management
facility ("HWM facility") means all
contiguous land, and structures, other
appurtenances, and improvements on
the land used for treating, storing, or
disposing of hazardous waste. A facility
may consist of several treatment.
storage, or disposal operational units
(for example, one or more landfills,
surface impoundments, or combination
of them).
HWM facility means "Hazardous
Waste Management facility"
Injection well means a "well" into
which "fluids" are being injected.
Injection zone means a geological
"formation" group of formations, or part
of a formation receiving fluids through a
"well."
Interstate agency means an agency of
two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as determined
and approved by the administrator
under the "appropriate Act and
regulations."
Major facility means any UIC "facility
or activity" classified as such by the
Regional Administrator, or, in the case
of approved State programs, the
Regional Administrator in conjunction
with the State Director.
Manifest means the shipping
document originated and signed by the
"generator" which contains the
information required by Subpart B of 40
CFR Part 262.
New injection wells means an
"injection well" which began injection
after a UIC program for the State
applicable to the well is approved or
prescribed.
Owner or operator means the owner
or operator of any "facility or activity"
subject to regulation under the UIC
program.
Permit means an authorization,
license, or equivalent control document
issued by EPA or an approved State to
implement the requirements of this Part.
Parts 145, 146 and 124. »*Pennit" includes
an area permit (§ 144.33) and an
emergency permit (§ 144.34). Permit does
not include UIC authorization by rule
(§ 144.21). or any permit which has not
yet been the subject of final agency
action, such as a "draft permit."
Person means an individual,
association, partnership, corporation,
municipality, State or Federal agency, or
an agent or employee thereof.
Plugging means the act or process of
stopping the flow of water, oil jar gas
into or out of a formation through a
borehole or well penetrating that
formation.
Project means a group of wells in a
single operation.
Radioactive Waste means any waste
which contains radioactive material in
concentrations which exceed those
listed in 10 CFR Part 20. Appendix B.
Table n. Column 2.
RCRA means the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976 (Pub. L 94-530, as amended
by Pub. L 95-609, Pub. L. 96-510, 42
U.S.C 6901 et seq.).
Regional Administrator means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
authorized representative of the
Regional Administrator.
Schedule of compliance means a
schedule of remedial measures included
in a "permit" including an enforceable
sequence of interim requirements (for
example, actions, operations, or
milestone events) leading to compliance
with the "appropriate Act and
regulations."
SDWA means the Safe Drinking
Water Act (Pub. L. 93-523, as amended
by Pub. L. 96-502; 42 U.S.C. 300f et seq.).
Site means the land or water area
where any "facility or activity" is
physically located or conducted.
including adjacent land used in
connection with the facility or activity.
State means any of the 50 States, the
District of Columbia. Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands. American Samoa, the
Trust Territory of the Pacific Islands and
the Commonwealth Northern Mariana
Islands.
State Director means the chief
administrative officer of any State or
interstate agency operating an approved
program, or delegated representative of
the State Director. If responsibility is
divided among two or more State or
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Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations
interstate agencies. "State Director"
means the chief administrative officer of
the State or interstate agency authorized
to perform the particular procedure or
function to which reference is made.
State/EPA Agreement means an
agreement between the Regional
Administrator and the State which
coordinates EPA and State activities,
responsibilities and programs.
Stratum (plural strata) means a single
sedimentary bed or layer, regardless of
thickness, that consists of generally the
same kind of rock material
Total dissolved solids means the total
dissolved (filterable) solids as
determined by use of the method
specified in 40 CFR Part 136.
WC means the Underground Injection
Control program under Part C of the
Safe Drinking Water Act. including an
"approved State program."
Underground injection means a "well
injection."
Underground source of drinking water
(USDW) means an aquifer or its portion:
(a)(l) Which supplies any public
water system; or
(2) Which contains a sufficient
quantity of ground water to supply a
public water system; and
(i) Currently supplies drinking water
for human consumption; or
(ii) Contains fewer than 10,000 mg/1
total dissolved solids; and
(b) Which is not an exempted aquifer.
USDW means "underground source of
drinking water."
Well means a bored, drilled or driven
shaft, or a dug hole, whose depth is
greater than the largest surface
dimension.
Well injection means the subsurface
emplacement of "fluids" through a
bored, drilled, or driven "well;" or
through a dug Well, where the depth of
the dug well is greater than the largest
surface dimension.
§ 144.4 Considerations under Federal law.
Permits shall be issued in a manner
and shall contain conditions consistent
with requirements of applicable Federal
laws. These laws may include:
(a) The Wild and Scenic Rivers Act,
16 U.S.C 1273 et seq. Section 7 of the
Act prohibits the Regional
Administrator from assisting by license
or otherwise the construction of any
water resources project that would have
a direct adverse effect on the values for
which a national wild and scenic river
was established.
(b) The National Historic
Preservation Act of 1966,16 U.S.C 470
et seq. Section 106 of the Act and
implementing regulations (36 CFR Part
600) require the Regional Administrator,
before issuing a license, to adopt
measures when feasible to mitigate
potential adverse effects of the licensed
activity and properties listed or eligible
•for listing in the National Register of
Historic Places. The Act's requirements
are to be implemented in cooperation .
with State Historic Preservation Officers
and upon notice to, and when
appropriate, in consultation with the
Advisory Council on Historic
Preservation.
(c) The Endangered Species Act, 16
ILS.C. 1531 et sea. Section 7 of the Act
and implementing regulations (50 CFR
Part 402) require the Regional
Administrator to ensure, in consultation
with the Secretary of the Interior or
Commerce, that any action authorized
by EPA is not likely to jeopardize the
continued existence of any endangered
or threatened species or adversely affect
its critical habitat.
(d) The Coastal Zone Management
Act, 16 U.S.C. 1451 et seq. Section 307(c)
of the Act and implementing regulations
(15 CFR Part 930) prohibit EPA from
issuing a permit for an activity affecting
land or water use in the coastal zone
until the applicant certifies that the
proposed activity complies with the
State Coastal Zone Management
program, and the State or its designated
agency concurs with the certification (or
the Secretary of Commerce overrides
the Slates nonconcurrence).
(e) The Fish and Wildlife
Coordination Act, 16 U.S.C. 661 et seq..
requires the Regional Administrator,
before issuing a permit proposing or
authorizing the impoundment (with
certain exemptions), diversion, or other
control or modification of any body of
water, consult with the appropriate
State agency exercising jurisdiction over
wildlife resources to conserve these
resources.
(f) Executive orders [Reserved.]
§ 144.5 Confidentiality of information.
(a) In accordance with 40 CFR Part 2.
any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the submitter.
Any such claim must be asserted at the
time of submission in the manner
prescribed on the application form or
instructions or. in the case of other
submissions, by stamping the words
"confidential business information" on
each page containing such information.
If no claim is made at the time of
submission. EPA may make the
information available to the public
without further notice. If a claim is
asserted, the information will be treated
in accordance with the procedures in 40 .
CFR Part 2 (Public Information).
(b] Claims of confidentiality for the
following information will be denied:
(1) The name and address of any
permit applicant or permittee;
(2) Information which deals with the
existence, absence, or level of
contaminants in drinking water.
$ 144.6 Classification of wells.
Injection wells are classified as
follows:
(a) Class 1
(1) Wells used by generators of
hazardous waste or owners or operators
of hazardous waste management
facilities to inject hazardous waste
beneath the lowermost formation
containing, within one-quarter mile of
the weil bore, an underground source of
drinking water.
(2) Other industrial and municipal
disposal wells which inject fluids
beneath the lowermost formation
containing, within one quarter mile of
the well bore, an underground source of
drinking water.
(b) Class II. Wells which inject fluids:
(1) Which are brought to the surface in
connection with conventional oil or
natural gas production and may be
commingled with waste waters from gas
plants which are an integal part of
production operations, unless those
waters are classified as a hazardous
waste at the time of injection.
(2) For enhanced recovery of oil or
natural gas: and
(3) For storage of hydrocarbons which
are liquid at standard temperature and
pressure.
(c) Class III. Wells which inject for
extraction of minerals including:
(1) Mining of sulfur by the Frasch
process;
(2) In situ production of uranium or
other metals; this category includes only
in-situ production from ore bodies which
have not been conventionally mined.
Solution mining of conventional mines
such as stopes leaching is included n
Class V.
(3) Solution mining of salts or potash.
(d) Class IV
(1) Wells used by generators of
hazardous waste or of radioactive
waste, by owners or operators of
hazardous waste management facilities,
or by owners or operators of radioactive
waste disposal sites to dispose of
hazardous waste or radioactive waste
into a formation which within one-
quarter (X) mile of the well contains an
underground source of drinking water.
(2) Wells used by generators of
hazardous waste or of radioactive
waste, by owners or operators of
hazardous waste management facilities,
or by owners or operators of radioactive
waste disposal sites to dispose of
hazardous waste or radioactive waste
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Federal Register /Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14193
above a formation which within one-
quarter (X) mile of the well contains an
underground source of drinking water.
(3) Wells used by generators of
hazardous waste or owners or operators
of hazardous waste management
facilities to dispose of hazardous waste.
which cannot be classified under
paragraphs (a)(l) or (d) (1) and (2) of this
section (e.g., wells used to dispose of
hazardous waste into or above a
formation which contains an aquifer
which has been exempted pursuant to
§ 146.04).
(e) Class V. Injection wells not
included in Classes !. E, III, or IV.
§ 144.7 Identification of underground
sources of drinking water and exempted
aquifers,
(a) The Director may identify (by
narrative description, illustrations.
maps, or other means) and shall protect
except where exempted under
paragraph (b) of this section, as an
underground source of drinking water.
all aquifers or parts of aquifers which
meet the definition of an "underground
source of drinking water" in § 144.3.
Even if an aquifer has not been
specifically identified by the Director, it
is an underground source of drinking
water if it meets the definition in § 144.3.
fb)(l) the Director may identify (by
narrative description, illustrations.
maps, or other means) and describe in
geographic and/or geometric terms
(such as vertical and lateral limits and
gradientfwhich are clear and definite.
all aquifers or parts thereof which the
Director proposes to designate as
exempted aquifers using the criteria in
40 CFR 146.04.
(2) No designation of an exempted
aquifer submitted as part of a UIC
Program shall be final until approved by
the Administrator as part of a UIC
program.
(3) Subsequent to program approval or
promulgation, the Director may, after
notice and opportunity for a public
hearing, identify additional exempted
aquifers. For approved State programs
exemption of aquifers idennied (i) under
§ 14&04(b) shall be treated as a program
revision under § 145.32; (ii) under
§ 14&M(c) shall become final if the State
Director submits the exemption in
writing to the Administrator and the
Administrator has not disapproved the
designation within 45 days. Any
disapproval by the Administrator shall
state the reasons and shall constitute
final Agency action for purposes of
judicial review.
(c)(l) For Class HI wells, the Director
shall require an applicant for a permit
which necessitates an aquifer exemption
under § 146.04(b)(l) to furnish the data
necessary to demonstrate that the
aquifer is expected to be mineral or
hydrocarbon producing. Information
contained in the mining plan for the
proposed project' such as a map and
general description of the mining zone.
general information on the mineralogy
and geochemistry of the mining zone,
analysis of the amenability of the mining
zone to the proposed mining method.
and a time-table of planned
development of the mining zone shall be
considered by the Director in addition to
the information required by § 144.31(g).
(2) For Class n wells, a demonstration
of commercial producibility shall be
made as follows:
(i) For a Class n well to be used for
enhanced oil recovery processes in a
field or project containing aquifers from
which hydrocarbons were previously
produced, commercial producibility
shall be presumed by the Director upon
a demonstration by the applicant of
historical production having occurred in
the project area or field.
(ii) For Class II wells not located in a
field or project containing aquifers from
which hydrocarbons were previously
produced, information such as logs, core
data, formation description, formation
depth, formation thickness andi
formation parameters such as
permeability and porosity shall be
considered by the Director, to the extent
such information is available.
§ 144.3 Noncompliance and program
reporting by the Director.
The Director shall prepare quarterly
and annual reports as detailed below.
When the State is the permit-issuing
authority, the State Director shall submit
any reports required under this section
to the Regional Administrator. When
EPA is the permit-issuing authority, the
Regional Administrator shall submit any
report required under this section to
EPA Headquarters.
(a) Quarterly reports. The Director
shall submit quarterly narrative reports
for major facilities as follows:
(1) Format. The report shall use the
following format
(i} Provide an alphabetized list of
permittees. When two or more
permittees have the same name, the
lowest permit number shall be entered
first
(ii) For each entry on the list include
the following information in the
following order.
(A) Name, location, and permit
number of the noncomplying permittees.
(B) A brief description and date of
each instance of noncompliance for that
permittee. Instances of noncompliance
may include one or more the kinds set
forth in paragraph (a)(2) of this section.
When a permittee has noncompliance of
more than one kind, combine the
information into a single entry for each
such permittee.
• (C) The/datefs) and a -brief description
of the action(s) taken by the Director to
ensure compliance.
(D) Status of the instance(s) of
noncompliance with the date of the
review of the status or the date .of
resolution.
(E) Any details which tend to explain
or mitigate the instance(s) of
noncompliance.
(2) Instances of noncompliance to be
reported. Any instances of
noncompliance within'the following
categories shall be reported in
successive reports until the
noncompliance is reported as resolved.
Once noncompliance is reported as
resolved it need not appear in
subsequent reports.
(i) Failure to complete construction
elements. When the permittee has failed •
to complete, by the date specified in the
permit an element of a compliance
schedule involving either planning for
construction or a construction step (for
example, begin construction, attain
operation level); and the permittee has
not returned to compliance by
accomplishing the required elements of
the schedule within 30 days from the
date a compliance schedule report is
due under the permit
(ii) Modifications to schedules of
compliance. When a schedule of
compliance in the permit has been
modified under § § 144.39 or 144.41
because of the permittee's
noncompliance.
(iii) Failure to complete or provide
compliance schedule or monitoring
reports. When the permittee has failed
to complete or provide a report required
in a permit compliance schedule (for
example, progress report or notice of
noncompliance or compliance] or a
monitoring report and the permittee has
not submitted the complete report
within 30 days from the date it is due
under the permit for compliance
schedules, or from the date specified in
the permit for monitoring reports.
(iv) Deficient reports. When the
required reports provided by the
permittee are so deficient as to cause
misunderstanding by the Director and
thus impede the review of the status of
compliance.
(v) Noncompliance with other permit
requirements. Noncompliance shall be
reported in the following circumstances:
(A) Whenever the permittee has
violated a permit requirement (other
than reported under paragraph (a)(2) (i)
or [ii) of this section), and has not
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14194 . Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations
returned to compliance within 45 days
from the date reporting of
noncompliance was due under the •>
permit; or
(B) When the Director determines that
a pattern of noncompliance exists for a
major facility permittee over the most
recent four consecutive reporting
periods: This pattern includes any
violation of the same requirement in two
consecutive reporing periods, and any
violation of one or more requirements in
each of four consecutive reporting
periods; or
(C) When the Director determines
significant permit noncompliance or
other significant event has occurred.
such as a migration of fluids into a
USDW.
(vi) All other. Statistical information
shall be reported quarterly on all other
instances of noncompliance by major
facilities with permit requirements not
otherwise reported under paragraph (a)
of this section.
fb) Annual reports. (1) Annual
noncompliance report. Statistical
reports shall be submitted by the
Director on nonmajor UIC permittees
indicating the total number reviewed.
the number of noncoraplying nonmajor
permittees, the number of enforcement
actions, and number of permit
modifications extending compliance
deadlines. The statistical information •
shall be organized to follow the types of
noncompliance listed in paragraph (a) of
this section.
(2) For State-administered UIC
Programs only. In addition to the annual
noncompliance report, the State Director
shall:
(i) Submit each year a program report
to the Administrator (in a manner and
form prescribed by the Administrator]
consisting o£
(A) A detailed description of the
State's implementation of its program;
(B) Suggested changes, if any to the
program description (see § 145-22(f))
which are necessary to reflect more
accurately the State's progress in issuing
permits;
(C) An updated inventory of active
underground injection operations in the
State.
(ii) In addition to complying with the
requirements of paragraph (b)(2)(i) of
this section, the Director shall provide
the Administrator, on February 28th and
August 31st of each of the first two
years of program operation, the
information required in 40 CFR 146.15.
146.25. and 146.35.
(c) Schedule. (1) For ail quarterly
reports. On the last working day of May,'
August, November, and February, the
State Director shall submit to the
Regional Administrator information
concerning noncompliance with permit
requirements by major facilities in the
State in accordance with the following
schedule. The Regional Administrator
shall prepare and submit information for
EPA-issued permits to EPA
Headquarters in accordance with the
same schedule.
QUARTERS COVERED BY REPORTS ON
NONCOMPUANCE BY MAJOR FACILITIES
[Date tot conation at rapons]
January. February, and March _ 'Mty 31
ApnT. May. ana Jura 'Aug. 31
Jury. August, and September — 'Nov. 30
October. November, and 0*- 'Fab. 28
'Reports must be mad* available to the public tor KICMC-
bon 2nd copying on thn sale.
[2] For all annual reports. The period
for annual reports shall be for the
calendar year ending December 31, with
reports completed and available to the
public no more than 60 days later.
Subpart B—General Program
Requirements
§ 144.11 Prohibition of unauthorized
injection.
Any underground injection, except as
authorized by permit or rule issued
under the UIC program, is prohibited.
The construction of any well required to
have a permit is prohibited until the
permit has been issued.
§ 144.12 Prohibition of movement of fluid
into underground sources of drinking
water.
(a) No owner or operator shall
construct operate, maintain, convert,
plug, abandon, or conduct any other
injection activity in a manner that
allows the movement of fluid containing
any contaminant into underground
sources of drinking water, if the
presence of that contaminant may cause
a violation of any primary drinking
water regulation under 40 CFR Part 142
or may otherwise adversely affect the
health of persons. The applicant for a
permit shall have the burden of showing
that the requirements of this paragraph
are met
(b) For Class I. H. and ID wells, if any
water quality monitoring of an
underground source of drinking water
indicates the movement of any
contaminant into the underground
source of drinking water, except as
authorized under Part 146, the Director
shall prescribe such additional
requirements for construction, corrective
action, operation, monitoring, or
reporting (including closure of the
injection well) as are necessary to
prevent such movement In the case of
wells authorized by permit these
additional requirements shall be
imposed by modifying the permit in
accordance with 5 144.39, or the permit
may be terminated under § 144.40 if
cause exists, or appropriate enforcement
action.may be taken if the permit has
. been violated. In the case of wells
authorized by rule, see"|| 144.21-.24.
(c) For Class V wells, if at any time
the Director learns that a Class V well
may cause a violation of primary
drinking water regulations under 40 CFR
Part 142. he or she shall:
(1) Require the injector to obtain an
individual permit;
(2) Order the injector to take such
actions (including where required
closure of the injection well) as may be
necessary to prevent the violation; or
(3) Take enforcement action.
(d) Whenever the Director learns that
a Class V well may be otherwise
adversely affecting the health of
persons, he or she may prescribe such
actions as may be necessary to prevent
the adverse effect including any action
authorized under paragraph (c) of this
section.
(e) Notwithstanding any other
provision of this section, the Director
may take emergency action upon receipt
of information that a contaminant which
is present in or is likely to enter a public
water system may present an imminent
and substantial endangerment to the
health of persons.
§ 144.13 Elimination of certain Class IV
wells.
(a) In addition to the requirement of
§ 144.14. the following are prohibited:
(1) The construction of any Class IV
well for the injection of hazardous
waste directly into an underground
source of drinking water
(2) The injection of hazardous waste
directly into an underground source of
drinking water through a Class IV well
that was not in operation prior to July
IB, 1980.
(3) Any increase in the amount of
hazardous waste or change in the type
of hazardous waste injected into a well
injecting hazardous waste directly into a
USDW.
(4) The operation of any Class IV well
injecting hazardous waste directly into a
USDW after 6 months following the
approval or promulgation of a UIC
program for the State.
(b) The prohibition applicable to Class
IV wells does not apply to injections of
hazardous wastes into aquifers or
portions thereof which have been
exempted pursuant to § 146.04.
§ 144.14 Requirement! for welts injecting
hazardous waste.
(a) Applicability. The regulations in
this section apply to all generators of
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Federal Register / VoL 48, No. 64 / Friday, April 1. 1983 / Rules and Regulations 14195
hazardous waste, and to the owners or
operators of all hazardous waste
management facilities, using any class
of well to inject hazardous wastes
accompanied by a manifest (See also
§ 144.13.)
(b) Authorization. The owner or
operator of any well that is used to
inject hazardous waste required to be
accompanied by a manifest or delivery
document shall apply for authorization
to inject as specified in § 144.31 within 6
months after the approval or
promulgation of the State UIC program.
(c) Requirements. In addition to
complying with the applicable
requirements of this Part and 40 CFR
Part 146. the owner or operator of each
facility meeting the requirements of
paragraph (b) of this section, shall
comply with the following:
(1) Notification. The owner or
operator shall comply with the
notification requirements of Section 3010
of Pub. L. 94-580.
[2] Identification number. The owner
or operator shall comply with the
requirements of 40 CFR 264.11.
(3) Manifest system. The owner or
operator shall comply with the
applicable recordkeeping and reporting
requirements for manifested wastes in
40 CFR 264.71.
- (4) Manifest discrepancies. The owner
or operator shall comply with 40 CFR
§ 264.72.
(5) Operating record. The ownar or
operator shall comply with 40 CFR
264.73[a). (b)(l). and (b)(2).
(6) Annual report. The owner or
operator shall comply with 40 CFR
§ 284.75.
(7) Unmojiifested waste report. The
owner or operator shall comply with 40
CFR § 264.75.
(8) Personnel training. The owner or
operator shall comply with the
applicable personnel training
requirements of 40 CFR § 264.16.
(9) Certification of closure. When
abandonment is completed, the owner
or operator must submit to the Director
certification by the owner or operator
and certification by an independent
registered professional engineer that the
facility has been closed in accordance
with the specifications in § 144.52(a}(6).
(d) Additional requirements for Class
IV wells. [Reserved].
§ 144.15 Assessment of Class V welts.
Assessment of Class V Wells. The
Director shall, within three years of the
approval of the program in a State
submit a report and recommendations to
EPA in compliance with § 146.52(b).
§ 144.16 Waiver of requirement by
Director.
(a) When injection does not occur
into, through or above an underground
source of drinking water, the Director
may authorize a well or project with less
stringent requirements for area of
review, construction, mechanical
integrity, operation, monitoring, and
reporting than requird in 40 CFR Part 146
or § 144.52 to the extent that the
reduction in requirements will not result
in an increased risk of movement of
fluids into an underground source of
drinking water.
(b) When injection occurs through or
above an underground source of
drinking water, but the radius of
endangering influence when computed
under § 146.06(a) is smaller or equal to
the radius of the weil. the Director may
authorize a well or project with less
stringent requirements for operation,
monitoring, and reporting than required
in 40 CFR Part 146 or 1144.52 to the
extent that the reduction in
requirements will not result in an
increased risk of movement of fluids
into an underground source of drinking
water.
(c) When reducing requirements under
paragraph (a) or (b) of this section, the
Director shall prepare a fact sheet under
§ 124.8 explaining the reasons for the
action.
Subpart C—Authorization of
Underground Injection by Rule
§ 144.21 Existing Class I, II (except
enhanced recovery and hydrocarbon
storage) and III wells.
Injection into existing Class I, II
(except existing enhanced recovery and -
hydrocarbon storage), and HI wells is
authorized.
(a) Duration. The authorization under
this section expires:
(1) Upon the effective date of the
permit or permit denial, if a permit
application has been filed in a timely
manner as specified in § 144.31 (c)(l);
(2) If a permit application has not
been filed in a timely manner as
specified in § 144.31(c)(l); or
(3] Five years after approval or
promulgation of the UIC program unless
a complete permit application is
pending. •
(b) Class II and in wells in existing
fields or projects. Notwithstanding the
prohibition in § 144.11, this section
authorizes Class II and Class m wells or
projects in existing fields or projects to
continue normal operations until
permitted, including construction,
operation, and plugging and
abandonment of weils as part .of the
operation, provided the owner or
operator maintains compliance with all
applicable requirements.
(c) Requirements. Owners or
operators of wells authorized under this
section shall comply with the following
requirements no later than one year
after authorization, except that where
the referenced requirements apply to
permittees, the terms "permit" and
"permittee" shall be read to include
rules and those authorized by rule:
(1) Section 144.51(a)—(exemption
from rule where authorized by
temporary permits);
(2) Section 144.51fj)(2J—(retention of
records);
(3) 144.51(1)(6)—(reporting within 24
hours);
(4) Section 144.51(n)—(notice of
abandonment);
(5) The owner or operator must
prepare, maintain, and comply with a
plan for plugging and abandonment that
meets the requirements of § 146.10 and
is acceptable to the Director (for
, purposes of this paragraph, temporary
intermittent cessation of injection
operations is not abandonment);
(6) The minimum operating,
monitoring, and reporting requirements
(except mechanical integrity) required to
be specified by § 146.13 (Class I).
§ 146.23 (Class II) and § 146.33 (Class
HI);
. (7) Section 144.52(a)(7)—(financial
responsibility); and
(8) Section 144.14(c)—(requirements
for wells injecting hazardous waste)
applicable to Class I wells injecting
hazardous waste only).
§ 144.22 Existing Class II enhanced
recovery and hydrocarbon storage wells.
Injection into existing Class D
enhanced recovery and hydrocarbon
storage wells is authorized for the life of
the well or project.
(a) Owners or operators of wells
authorized under this section shall
comply with the following requirements.
except that where the referenced
requirements apply to permittees the
terms "permit" and "permittee" shall be
read to include rule and those
authorized by rule:
(1) Section 144.51(a)—(exemption
from rule where authorized by
temporary permit);
(2) Section 144.51(j)(2}—(retention or
records):
(3) Section 144.51(l)(6j—{reporting
within 24 hours);
(4) Section 144.52(n)—(notice of
abandonment);
(5) The owner or operator must
prepare, maintain, and comply with a
plan for plugging and abandonment that
meets the requirements of § 146.10 and
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14196 Federal Register / Vol. 48. No. 64 / Friday. April i. 1983 / Rules and Regulations
is acceptable to the Director (for
purposes of this paragraph, temporary
intermittent cessation of injection
operations is not abandonment);
(6) Section 144.52(a)(7)—(financial
responsibility);
(7) Section 146.08—(mechanical
integrity);
(8) Section 146.22—(casing and
cementing requirements where
appropriate); and
(9) The minimum operating,
monitoring and reporting requirements
required to be specified by § 146.23.
(b) Owners or operators of wells
authorized under this section shall
comply with the construction
requirements no later than three years,
and other requirements no later than
one year after authorization.
§ 144.23 Class IV wells.
(a) Injection into existing'Class IV
wells as defined in § 144.6(d)(l) is
authorized for up to six months after
approval or promulgation of the U1C
Program. Such wells are subject to the
requirements of § 144.13 and § 144.l4(c).
(b) Injection into existing Class IV
wells as defined in § 144.6(d) (2) and (3)
are authorized until six months after
approval or promulgation of an UIC
Program incorporating criteria and
standards under Part 146. Subpart £
applicable to Class IV injection wells.
Such wells are subject to the _ .
requirements of § 144.14(c).
§ 144.24 Class V wells.
Injection into Class V wells is
authorized until further requirements
under future regulations become
applicable.
§ 144.25 Requiring a permit
(a) The Director may require any
Class I; II. m. or V injection well
authorized by a rule to apply for and
obtain an individual or area UIC permit.
Cases where individual or area UIC
permits may be required include:
(1) The injection well is not in
compliance with any requirement of the
rule;
Note.—Any underground injection which
violates any authorization by rule is subject
to appropriate enforcement action.
(2) The injection well is not or no
longer is within the category of wells
and types of well operations authorized
in the rule;
(3) The protection of USDWs requires
that the injection operation be regulated
by requirements, such as for corrective
action, monitoring and reporting, or
operation, which are not contained in
the rule.
(b) For EPA administered programs,
the Director may require the owner or
operator authorized by a rule to apply
for an individual or area UIC permit
under this paragraph only if the owner
or operator has been notified in writing
that a permit application is required.
The notice'shall include a brief
statement of the reasons for this
decision, an application form, a -
statement setting a time for the owner or
operator to file the application, and a
statement that upon the effective date of
the UIC permit the rule no longer applies
to the activities regulated under the UIC
Program.
(c) Any owner or operator authorized
by a rule may request to be excluded
from the coverage of the rules by
applying for an individual or area UIC
permit. The owner or operator shall
submit an application under § 144.31
with reasons supporting the request, to
the Director. The Director may grant any
such requests.
§ 144.26 Inventory requirements.
Owners or operators of all injection
wells authorized by rule shall submit
inventory information to the Director.
Any authorization under this subpart
automatically terminates for any owner
or operator who fails to comply within
the time specified in paragraph (c) of
this section.
(a) Contents. As part of the inventory.
the Director shall require and the
owner/operator shall provide at least
the following information:
(1) Facility name and location;
(2) Name and address of legal contact;
• (3) Ownership of facility;
(4) Nature and type of injection wells;
and
(5) Operating status of injection wells.
' Note.—This information is requested on
national form "Inventory of Injection Wells,"
OMB No. 156-R0170.
(b) Notice. Upon approval of the UIC
Program in a State, the Director shall
notify owners or operators of injection .
wells of their duty to submit inventory
information. The method of notification
selected by the Director must assure
that the owners or operators will be
made aware of the inventory
requirement.
(c) Deadlines. Owners or operators of
injection wells must submit inventory
information no later than one year after
the authorization by rule. The Director
need not require inventory information
from any facility with interim status
under RCRA.
Subpart D—Authorization by Permit
. § 144.31 Application fora permit;
authorization by permit
(a) Permit application. Except for
owners or operators authorized by rule.
all underground injections wells are
prohibited unless authorized by permit.
Persons currently authorized by rule
must still apply for a permit under this
section unless authorization was for the
life'of the well or project. Rules
authorizing well injections for which
permit applications have been submitted
shall lapse for a particular well injection
or project upon the effective date of the
permit or permit denial for that well
injection or project. Procedures for
applications, issuance and
administration of emergency permits are
•found exclusively in § 144.34.
(b) Who applies? When a facility or
activity is owned by one person but is
operated by another person, it is the
operator's duty to obtain a permit.
(c) Time to apply. Any person who
performs or proposes an underground
injection for which a permit is or will be
required shall submit an application to
the Director in accordance with the UIC
program as follows:
(1) For existing wells, as expeditiously
as practicable but no later than 4 years
from the approval or promulgation of the
UIC program, or as required under
§ 144.14fb) for wells injecting hazardous
waste.
(2) For new injection wells, except
new wells in projects authorized under
§ 144.21(b) or covered by an existing
area permit under § 144.33(c), a
reasonable time before construction is
expected to begin.
(d) Completeness. The Director shall
not issue a permit before receiving a
complete application for a permit except
for 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 or her
satisfaction. The completeness of any
application for a permit shall be judged
independently of the status of any other
permit application or permit for the
same facility or activity. For EPA-
administered programs, an application
which is reviewed under i 124.3 is
complete when the Director receives
either a complete application or the
information listed in a notice of
deficiency.
(e) Information requirements. All
applicants for permits shall provide the
following information to the Director,
using the application form provided by
the Director.
(l) The activities conducted by the
applicant which require it to obtain
permits under RCRA. UIC. the National
Pollution Discharge Elimination system
(NPDES) program under the Clean
Water Act, or the Prevention of
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Federal Register / Vol. 48, No. 64 / Friday, April 1. 1983 / Rules and Regulations
14J37
Significant Deterioration (PSD] program
under the Clean Air Act.
(2) Name, mailing address, and
location of the facility for which the
application is submitted.
(3) Up to four SIC codes which best
reflect the principal products or services
provided by the facility.
(4] The operator's name, address,
telephone number, ownership status,
and status as Federal, State, private,
public, or other entity.
(5) Whether the facility is located on
Indian lands.
(6) A listing of all permits or
construction approvals received or
applied for under any of the following
programs:
(i) Hazardous Waste Management
program under RCRA.
(ii) UIC program under SDWA.
(iii) NPDES program under CWA.
(iv) Prevention of Significant
Deterioration (PSD) program under the
Clean Air Act.
(v) Nonattainment program under the
Clean Air Act.
(vi) National Emission Standards for
Hazardous Pollutants (NESHAPS)
preconstruction approval under the
Clean Air Act
(vii) Ocean dumping permits under the
Marine Protection Research and
Sanctuaries Act
(viii) Dredge and fill permits under
section 404 of CWA.
(ix) Other relevant environmental
permits, including State permits.
(7) A topographic map (or other map if
a topographic map is unavailable)
extending one mile beyond the property
boundaries of the source depicting the
facility and each of its intake and
discharge structures: each of its
hazardous waste treatment storage, or
disposal facilities; each well where
fluids from the facility are injected
underground: and those wells, springs,
and other surface water bodies, and
drinking water wells listed in'public
records or otherwise known to the
applicant within a quarter mile of the
facility property boundary.
(8) A brief description of the nature of
the business.
(f) Recordkeeping. Applicants shall
keep records of all data used to
complete permit applications and any
supplemental information submitted
under § 144.31 for a period of at least 3
years from the date the application is
signed.
(g) Contents of UIC appucation.
[Reserved.]
§ 144.32 Signatories to permit applications
and reports.
(a) Applications. All permit
applications, except those submitted for
Class C wells (see paragraph (b) of this
section), shall be signed as follows:
(1) For a corporation; by a principal
executive officer of at least the level of
vice-president;
(2) For a partnership or sole
proprietorship: by a genera: partner or
the proprietor, respectively; or
(3) For a municipality. State. Federal,
or oilier public agency: by either a
principal executive or ranking elected
official.
(b) Reports. All reports required by
permits, other information requested by
the Director, and all permit applications
submitted for Class II wells under
§ 144.31 shall be signed by a person
described in paragraph (a) of this
section, or by a duly authorized
representative of that person. A person
is a duly authorized representative only
if:
(1) The authorization is made in
writing by a person described in
paragraph (a) of this section;
(2) The authorization specifies either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of plant manager,
operator of a well or a well field.
superintendent or position of equivalent
responsibility. (A duly authorized
representative may thus be either a
named individual or any individual
occupying a named 'position); and
(3) The written authorization is
submitted to the Director.
(c) Changes to authorization. If an
authorization under paragraph (b) of this
section is no longer accurate because a
different individual or position has
responsibility for the overall operation
of the facility, a new authorization
satisfying the requirements of paragraph
(b) of this section must be submitted to
the Director prior to or together with any
reports, information, or applications to
be signed by an authorized
representative.
(d) Certification. Any person signing a
document under paragraph (a) cr (b) of
this section shall make the folicwirg
certification:
I certify under the penalty of law that I
have personally examined and am familiar
with the information submitted in this
document and all attachments and that
based on my inquiry of those individuals-
immediately responsible for obtaining the
information, I believe that the information is
true, accurate, and complete. I am aware that
there are significant penalties for submitting
false information, including the possibility of
fine and imprisonment
§ 144.33 Area permits.
(a) The Director may issue a permit on
an area basis, rather than for each well
individually, provided that the permit is
for injection wells:
(1) Described and identified by •
location in permit applies tion(s) if they
are existing wells, except that the
Director may accept a single description
of wells with substantially the'same
characteristics;
(2) Within the same well field, facility
site, reservoir, project, or similar unit in ~
the same State;
(3) Operated by a single owner or
operator and
(4) Used to inject other than
hazardous waste.
(b) Area permits shall specify:
(1) The area within which
underground injections are authorized,
and
(2) The requirements for construction,
monitoring, reporting, operation, and
abandonment for all wells authorized
by the permit
(c) The area permit may authorize the
permittee to construct and operate,
convert, or plug and abandon wells
within the permit area provided:
(1) The permittee notifies the Director
at such time as the permit requires;
(2) The additional well satisfies the
criteria in paragraph (a) of this section
and meets the requirements specified in
the permit under paragraph (b) of this
section; and
(3) The cumulative effects of drilling
and operation of additional injection
wells are considered by the Director
during evaluation of the area permit
application and are acceptable to the
Director.
(d) If the Director determines that any
well constructed pursuant to paragraph
(c) of this section does not satisfy any of
the requirements of paragraphs (c)(l)
and (cj(2) of this section the Director
may modify the permit under § 144.39,
terminate under § 144.40, or take
enforcement action. If the Director
determines that cumulative effects are
unacceptable, the permit may be
modified under § 144.39.
§ 144.34 Emergency permits.
(a) Coverage. Notwithstanding any
other provision of this Part or Part 124,
the Director may temporarily permit a
specific underground injection which
has not otherwise been authorized by
rule cr permit if:
(1) An imminent and substantial
endangerment to the health of persons
wv result unless a temporary
emergency permit is granted; or
(2) A substantial and irretrievable loss
of oil or gas resources will occur unless
a temporary emergency permit is
granted to a Class II well: and
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(i) Timely application for a permit
could not practicably have been made;
and
(it) The injection will not result in the
movement of fluids into underground
sources of drinking water or
(3) A substantial delay in production
of oil or gas resources will occur unless
a temporary emergency permit is
granted to a new Class II well and the
temporary authorization will not result
in the movement of fluids into an
underground source of drinking water.
(b) Requirements for issuance.
(1) Any temporary permit under
paragraph (a)(l) of this section shall be
for no longer term than required to
prevent the hazard.
(2) Any temporary permit under
paragraph (a)(2) of this section shall be
for no longer than 90 days, except that if'
a permit application has been submitted
prior to the expiration of the 90-day
period, the Director may extend the
temporary permit until final action on
the application.
(3) Any temporary permit under
paragraph (a)(3) of this section shall be
issued only after a complete permit
application has been submitted and
shall be effective until final action on
the application.
(4) Notice of any temporary permit
under this paragraph shall be published
in accordance with § 124.11 within 10
days of the issuance of the permit.
(5) The temporary permit under this
section may be either oral or written. If
oral, it must be followed within 5
calendar days by a written temporary
emergency permit.
(6) The Director shall condition the
temporary permit in any manner he or
she determines is necessary to ensure
that the injection will not result in the
movement of fluids into an underground
source of drinking water.
§1405 Effect of a permit.
(a) Except for Class II and HI wells.
compliance with a permit during its term
constitutes compliance, for purposes of
enforcement with Part C of the SDWA.
However, a permit may be modified.
revoked and reissued, or terminated
during its term for cause as set forth in
§§144.39 and 144.40.
(b) The issuance of a permit does not
convey any property rights of any sort,
or any exclusive privilege.
(c) The issuance of a permit does not
authorize any injury to persons or
property or invasion of other private
rights, or any infringement of State or
local law or regulations.
§ 144.36 Duration of permits.
(a) Permits for Class I and Class V
wells shall be effective for a fixed term
not to exceed 10 years. UIC permits for
Class II and III wells shall be issued for
a period up to the operating life of the
facility. The Director shall review each
issued Class II or HI well UIC permit at
least once every 5 years to determine
whether it should be modified, revoked
and reissued, terminated, or a minor
modification made as provided in
§§144.39,144.40, and 144.41.
(b) Except as provided in § 144.37, the
term of a permit shall not be extended
by modification beyond the maximum
duration specified in this section.
(c) The Director may issue any permit
for a deration that is less than the full
allowable term under this section.
§ 144.37 Continuation of expiring permits.
(a) EPA permits. When EPA is the
permit-issuing authority, the conditions
of an expired permit continue in force
under 5 U.S.C. 558(c) until the effective
date of a new permit if:
(1) The permittee has submitted a
timely application which is a complete
application for a new permit; and
(2) The Regional Administrator,
through no fault of the permittee does
not issue a new permit with an effective
date on or before the expiration date of
the previous permit (for example, when
issuance is impracticable due to time or
resource constraints).
(b) Effect. Permits continued under
this section remain fully effective and
enforceable.
(c) Enforcement. When the permittee
is not in compliance with the conditions
of the expiring or expired permit the
Regional Administrator may choose to
do any or all of the following:
(1) Initiate enforcement action based
upon the permit which has been
continued;
(2) Issue a notice of intent to deny the
new permit. If the permit is denied, the
owner or operator would then be
required to cease the activities
authorized by the continued permit or be
subject to enforcement action for
operating without a permit;
(3) Issue a new permit under Part 124
with appropriate conditions; or
(4) Take other actions authorized by
these regulations.
(d) State continuation. An EPA issued
permit does not continue in force
beyond its time expiration date under
Federal law if at that time a State is the
permitting authority. A State authorized
to administer the UIC program may
continue either EPA or State-issued
permits until the effective date of the
new permits, if State law allows.
Otherwise, the facility or activity is
operating without a permit from the time
of expiration of the old permit to the
effective date of the State-issued new
permit.
§ 144.38 Transfer of permits.
(a) Transfers by modification. Except
as provided in paragraph (b) of this
section, a permit may be transferred by
the permittee to a new owner or
operator only if the permit has been
modified or revoked and reissued (under
§ 144.39(b)[2)), or a minor modification
made (under § 144.41(dJ). to identify the
new permittee and incorporate such
other requirements as may be necessary
under the Safe Drinking Water Act.
(b) Automatic transfers. As an
alternative to transfers under paragraph
(a) of this section, any UIC permit for a
well not injecting hazardous waste may
be automatically transferred to a new
permittee if:
(1) The current permittee notifies the
Director at least 30 days in advance of
the proposed transfer date referred to in
paragraph (b)(2) of this section;
(2) The notice includes a written
agreement between the existing and
new permittees containing a specific
date for transfer or permit responsibility,
coverage, and liability between them,
and the notice demonstrates that the
financial responsibility requirements of
§ I44.52(a)(7) will be met by the new
permittee; and
(3) The Director does not notify the
existing permittee and the proposed new
permittee of his or her intent to modify
or revoke and reissue the permit A
modification under this paragraph may
also be a minor modification under
§ 144.41. If this notice is not received.
the transfer is effective on the date
specified in the agreement mentioned in
paragraph (b)(2) of this section.
§ 144.39 Modification or revocation and
reisssuance of permits.
When the Director receives any
information (for example, inspects the
facility, receives information submitted
by the permittee as required in the
permit (see § 144.51 of this chapter).
receives a request for modification or
revocation and reissuance under § 124.5.
or conducts a review of the permit file)
he or she may determine whether or not
one or more of the causes listed in
paragraphs (a) and (b) of this section for
modification or revocation and
reissuance or both exist If cause exists,
the Director may modify or revoke and
reissue the permit accordingly, subject
to the limitations of paragraph (c) of this
section, and may request an updated
application if necessary. When a permit
is modified, only the conditions subject
to modification are reopened. If a permit
is revoked and reissued, the entire
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14199
permit is reopened and subject to
revision and the permit is reissued for a
new term. See S 124.5(c)(2) of this
chapter. If cause does not exist under
this section or S 144.41 of this chapter.
the Director shall not modify or revoke
and reissue the permit If a permit
modification satisfies the criteria in
§144.41 for "minor modifications" the
permit may be modified without a draft -
permit or public review. Otherwise, a
draft permit must be prepared and other •
procedures in Part 124 must be followed.
(a) Causes for modification. The
following are causes for modification.
For Class n or m wells the following
may be causes for revocation and
reissuance as well as modification; and
for all other wells the following may be
cause for revocation or reissuance as •
well as modification when the permittee
requests or agrees.
(1) Alterations. There are material and
substantial alterations or additions to
the permitted facility or activity which
occurred after permit issuance which
justify the application of permit
conditions that are different or absent in
the existing permit.
(2) Information. The Director has
received information. Permits other than
for Class n and m wells may be
modified during their terms for this
cause only if the information was not
available at the time of permit issuance
(other than revised regulations,
guidance, or test methods] and would
have justified the application of
different permit conditions at the time of
issuance. For UIC area permits
(§ 144.33), this cause shall include any
information indicating that cumulative
effects on the environment are
unacceptable.
(3) New regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of amended standards or
regulations or by judicial decision after
the permit was issued. Permits other
than for Class n or m wells may be
modified during their terms for this
cause only as follows:
(i) For promulgation of amended
standards or regulations, when:
(A) The permit condition requested to
be modified was based on a
promulgated Part 146 regulation; and
(B) EPA has revised withdrawn, or
modified that portion of the regulation
on which the permit condition was
based, and
(C) A permittee requests modification
in accordance with ! 124.5 within ninety
(90] days after Federal Register notice of
the action on which the request is based.
(ii) For judicial decisions, a court of
competent jurisdiction has remanded
and stayed EPA promulgated
regulations if the remand and stay
concern that portion of the regulations
on which the permit condition was
based and a request is filed by the
permittee in accordance with S 124.5
within ninety (90] days of judicial
remand.
(4) Compliance schedules. The
Director determines good cause exists
for modification of a compliance
schedule, such as an act of Cod. strike,
flood, or materials shortage or other
events over which the permittee has
little or no control and for which there is
no reasonably available remedy. See
also § 144.41(c] (minor modifications].
(b] Causes for modification or
revocation and reissuance. The
following are .causes to modify or,
alternatively, revoke and reissue a
permit
(1) Cause exists for termination under
§ 144.40, and the Director determines
that modification or revocation and
reissuance is appropriate.
(2) The Director has received
notification (as required in the permit,
see § 144.41(d]] of a proposed transfer of
the permit A permit also may be
modified to reflect a transfer after the
effective date of an automatic transfer
(§ 144.38(b]] but will not be revoked and
reissued after the effective date of the
transfer except upon the request of the
new permittee.
(c] Facility siting. Suitability of the
facility location will not be considered
at the time of permit modification or
revocation and reissuance unless new
information or standards indicate that a
threat to human health or the
environment exists which was unknown
at the time of permit issuance.
§ 144.40 Termination of permits.
(a] The Director may terminate a
permit during its term, or deny a permit
renewal application for the following
causes:
(1) Noncompliance by the permittee
with any condition of the permit;
(2] The permittee's failure in the
application or during the permit
issuance process to disclose fully all
relevant facts, or the permittee's
misrepresentation of any relevant facts
at any time; or
(3] A determination that the permitted
activity endangers human health or the
environment and can only be regulated
to acceptable levels by permit
modification or termination;
(b] The Director shall follow the
applicable procedures in Part 124 in
terminating any permit under this
section.
§ 144.41 Minor modifications of permits.
Upon the consent of the permittee, the
Director may modify a permit to make
the corrections or allowances for
changes^ the permitted activity listed
in this section, without following the
procedures of Part 124. Any permit
modification not processed as a minor
modification under this section must be
made for cause and with Part 124 draft
permit and public notice as required in
i 144.39. Minor modifications may only:.
(a) Correct typographical errors;
(b] Require more frequent monitoring
or reporting by the permittee;
(c] Change an interim compliance date
in a schedule of compliance, provided
the new date is not more than 120 days
after the date specified in the existing
permit and does not interfere with
attainment of the final compliance date
requirement; or
(d) Allow for a change in ownership
or operational control of a facility where
the Director determines that no other --
change in the permit is necessary,
provided that a written agreement
containing a specific date for transfer of
permit responsibility, coverage, and
liability between the current and new
permittees has been submitted to the
Director.
(e) Change quantities or types of
fluids injected which are within the
capacity of the facility as permitted and,
in the judgment of the Director, would
not interfere with the operation of the
facility or its ability to meet conditions
described in the permit and would not
change its classification.
(f) Change construction requirements
approved by the Director pursuant to
§ 144.52(a)(l) (establishing UIC permit
conditions], provided that any such
alteration shall comply with the
requirements of this Part and Part 146.
(g] Amend a plugging and
abandonment plan which has been
updated under § 144.52(a](6).
Subpart E—Permit Conditions
§ 144.51 Conditions applicable to all
permits.
The following conditions apply to all
UIC permits. All conditions applicable
to all permits shall be incorporated into
the permits either expressly or by
reference. If incorporated by reference,
a specific citation to these regulations
(or the corresponding approved State
regulations] must be given in the permit
(a) Duty to comply. The permittee
must comply with all conditions of this
permit. Any permit noncompliance
constitutes a violation of the Safe
Drinking Water Act and is grounds for
enforcement action; for permit
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termination, revocation and reissuance,
or modification: or for denial of a permit
renewal application; except that the
permittee need not comply with the
provisions of this permit to the extent
and for the duration such
noncompiiance is authorized in an
emergency permit under § 144.34.
(b) Duty to reapply. If the permittee
wishes to continue an activity regulated
by this permit after the expiration date
of this permit the permittee must apply
for and obtain a new permit.
(c) Need to halt or reduce activity not
a defense. It shall not be a defense for a
permittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity ;n order to
maintain compliance with the conditions
of this permit.
(d) Duty to mitigate. The permittee
shall take all reasonable steps to
minimize or correct any adverse impact
on the environment resulting from
noncompiiance with this permit.
[e) Proper operation and maintenance.
The permittee shall at all times properly
operate and maintain ail facilities and
systems of treatment and control (and
related appurtenances) which are
installed or used by the permittee to
achieve compliance with the conditions
of this permit Proper operation and
maintenance includes effective
performance, adequate funding.
adequate operator staffing and training.
and adequate laboratory and process
controls, including appropriate quality
assurance procedures. This provision
requires the operation of back-up or
auxiliary facilities or similar systems
only when necessary to achieve
compliance with the conditions of the
permit.
(f) Permit actions. This permit may be
modified, revoked and reissued, or
terminated for cause. The filing of a
request by the permittee for a permit
modification, revocation and reissuance.
or termination, or a notification of
planned changes or anticipated
noncompiiance, does not stay any
permit condition.
(g) Property rights. This permit does
not convey any property rights of any
sort or any exclusive privilege.
(h) Duty to provide information. The
permittee shall furnish to the Director.
within a time specified, any information
which the Director may request to
determine whether cause exists for
modifying, revoking and reissuing, or
terminating this permit or to determine
compliance with this permit. The
permittee shall also furnish to the
Director, upon request copies of records
required to be kept by this permit.
(i) Inspection and entry. The permittee
shall allow the Director, or an
authorized representative, upon the
presentation of credentials and other
documents as may be required by law,
to:
(1) Enter upon the permittee's
premises where a regulated facility or
activity is located or conducted, or
where records must be kept under the
conditions of this permit:
(2) Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit:
(3) Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment),
practices, or operations regulated or
required'under this permit: and
(4) Sample or monitor at reasonable
times, for the purposes of assuring.
permit compliance or as otherwise
authorized by the SDWA, any
substances or parameters at any
location.
(j) Monitoring and records.
(1) Samples and measurements taken
for the purpose of monitoring shall be
representative of the monitored activity.
(2) The permittee shall retain records
of all monitoring information, including
the following:
(i) Calibration and maintenance
records and all original strip chart
recordings for continuous monitoring
instrumentation, copies of all reports
required by this permit, and records of
all data used to complete the application
for this permit, for a period of at least 3
years from the date of the sample.
measurement report or application.
This period may be extended by request
of the Director at any time: and
(ii) The nature and composition of all
injected fluids until three years after the
completion of any plugging and
abandonment procedures specified
under § 144 j2(a)(6). The Director may
require the owner or operator to deliver
the records to the Director at the
conclusions of the retention period.
(3) Records of monitoring information
shall include:
(i) The date, exact place, and time of
sampling or measurements;
(ii) The individual(s) who performed
the sampling or measurements;
(iii) The date(s) analyses were
performed;
(iv) The individual(s) who performed
the analyses;
(v) The analytical techniques or
methods used; and
(vi) The results of such analyses.
(k) Signatory requirement. All
applications, reports, or information
submitted to the Administrator shall be
signed and certified. (See § 144.32.)
(1) Reporting requirements.
(1) Planned changes. The permittee
shall give notice to the Director as soon
as possible of any planned physical
alterations.or additions to the permitted
facility.
(2) Anticipated noncompiiance. The
permittee shall give advance notice to
the Director of any planned changes in
the permitted facility or activity which
may result in noncompiiance with
permit requirements.
(3) Transfers. This permit is not
transferable to any person except after
notice to the Director. The Director may
require modification or revocation and
reissuance of the permit to change the
name of ;he permittee and incorporate
such other requirements as may be
necessary under the Safe Drinking
Water Act (See § 144.38; in some cases,
modification or revocation and
reissuance is mandatory.)
(4) Monitoring reports. Monitoring
results shall be reported at the intervals
specified elsewhere in this permit.
(5) Compliance schedules. Reports of
compliance or noncompiiance wuh. or
any progress reports on, interim and
final requirements contained in any
compliance schedule of this permit shall
be submitted no later than 30 days
following each schedule date.
(6) Twenty-four hour reporting. The
permittee shall report any
noncompiiance which may endanger
health or the environment including:
(i) Any monitoring or other
information which indicates that any
contaminant may cause an
endangerment to a USDW; or
(ii) Any noncompiiance with a permit
condition or malfunction of the injection
system which may cause fluid migration
into or between USDWs.
Any information shall be provided
orally within 24 hours from the time the
permittee becomes aware of the
circumstances. A written submission
shall also be provided within 5 days of
the time the permittee becomes aware of
the circumstances. The written
submission shall contain a description
of the noncompiiance and its cause, the
period of noncompiiance, including
exact dates and times, and if the
noncompiiance has not been corrected,
the anticipated time it is expected to
continue; and steps taken or planned to
reduce, eliminate, and prevent
reoccurrence of the noncompiiance.
(7) Other noncompiiance. The
permittee shall report ail instances of
noncompiiance not reported under
paragraphs (1) (4). (5). and (6) of this
section, at the time monitoring reports
are submitted. The reports shall contain
the information listed in paragraph (1)(6)
of this section.
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(8) Other information. Where the
permittee becomes aware that it failed
to submit any relevant facts in a permit
application, or submitted incorrect
information in a permit application or in
any report to the Director, it shall
promptly submit such facts or
information.
(mj Requirements prior to
commencing injection. Except for all
new wells authorized by an area permit
under § 144.33(c), a new injection well
may not commence injection until
construction is complete, and
(1) The permittee has submitted notice
of completion of construction to the
Director and
(2)(i) The Director has inspected or
otherwise reviewed the new injection
well and finds it is in compliance with
the conditions of the permit; or
(ii) The permittee has not received
notice form the Director of his or her
intent to inspect or otherwise review the
new injection well within 13 days of the
date of the notice in paragraph (m](l) of
this section, in which case prior
inspection or review is waived and the
permittee may commence injection. The
Director shall include in his notice a
reasonable time period in which he shall
inspect the well.
(n) The permittee shall notify the
Director at such times as the permit
requires before conversion or
abandonment of the well or in the case
of area permits before closure of the
project.
§ 144.52 Establishing permit conditions.
(a] In addition to conditions required
in § 144.51, the Director shall establish
conditions, as required on a case-by-
case basis under § 144.36, (duration of
permits). 5 144.53(a) (schedules of
compliance), § 144.54 (monitoring), and
for EPA permits only § 144.53(b)
(alternate schedules of compliance) and
§ 144.4 (considerations under Federal
law). In addition, each permit shall
include conditions meeting the following
requirements, when applicable.
(1) Construction requirements as set
forth in Part 146. Existing wells shall
achieve compliance with such
requirements according to a compliance
schedule established as a permit
condition. The owner or operator of a
proposed new injection well shall
submit plans for testing, drilling, and
. construction as part of the permit
application. Except as authorized by an
area permit, no constuction-may
commence until a permit has been
issued containing construction
requirements (see §144.11). New wells
shall be in compliance with these
requirements prior to commencing
injection operations. Changes in
construction plans during construction
may be approved by the Administrator
as minor modifications (§ 144.41). No
such changes may be physically
incorporated into construction of the
well prior to-approval of the
modification by the Director. •
(2) Corrective action as set forth in
§ 144.55 and § 146.7
(3) Operation requirements as set
forth in 40 CFR Part 146; the permit shall
establish any maximum injection
volumes and/or pressures necessary to
assure that fractures are not initiated in
the confining zone, that injected fluids
do not migrate into any underground
source of drinking water, that formation
fluids are not displaced into any
underground source of drinking water,
and to assure compliance with the Part
146 operating requirements.
(4) Requirements for wells managing
hazardous waste, as set forth in
§ 144.14.
(5) Monitoring and reporting
requirements as set forth in 40 CFR Part
146. The permittee shall be required to
identify types of tests and methods used
to generate the monitoring data.
(6) Plugging and abandonment. Any
Class I, II or III permit shall include, and
any Class V permit may include,
conditions to ensure that plugging and
abandonment of the well will not allow
the movement of fluids either into an
underground source of drinking water or
from one underground source of
drinking water to another. Applicants
for a UIC permit shall submit a plan for
plugging and abandonment Where the
plan meets the requirements of this
paragraph, the Director shall incorporate
it into the permit as a condition. Where
the Director's review of an application
indicates that the permittee's plan is
inadequate, the Director shall require
the applicant to revise the plan,
prescribe conditions meeting the
requirements of this paragraph, or deny
the application. For purposes of this
paragraph, temporary intermittent
cessation of injection operations is not
abandonment
(7) Financial responsibility. The
permittee is required to maintain
financial responsibility and resources to
close, plug, and abandon the
underground injection operation in a
manner prescribed by the Director. The
permittee must show evidence of
financial responsibility to the Director
by the submission of surety bond or
other adequate assurance, such as
financial statements or other materials
acceptable to the Director.
(8) Mechanical integrity. A permit for
any Class I, H or ID well or injection
project which lacks mechanical integrity
shall include, and for any Class V well
may include, a condition prohibiting
injection operations until the permittee
shows to the satisfaction of the Director
under § 146.08 that the well has
mechanical integrity.,
(9) Additional conditions. The
Director shall impose on a case-by-case
basis such additional conditions as are
necessary to prevent the migration of
fluids into underground sources of
drinking water.
(b)(l) In addition to conditions
required in all permits the Director shall
establish conditions in permits as
required on a case-by-case basis, to
provide for and assure compliance with
all applicable requirements of the
SDWA and Parts 144,145,146 and 124.
(2) For a State issued permit, an
applicable requirement is a State
statutory or regulatory requirement
which takes effect prior to final
administrative disposition of the permit
For a permit issued by EPA, an
applicable requirement is a statutory or
regulatory requirement (including any
interim final regulation) which takes
effect prior to the issuance of the permit
(except as provided in § I24.86(c) for
UIC permits being processed under
Subparts E or F of Part 124). Section
124.14 (reopening of comment period)
provides a means for reopening EPA
permit proceedings at the discretion of
the Director where new requirements
become effective during the permitting
process and are of sufficient magnitude
to make additional proceedings
desirable. For State and EPA
administered programs, an applicable
requirement is also any requirement
which takes effect prior to the
modification or revocation and
reissuance of a permit, to the extent
allowed in § 144.39.
(3) New or reissued permits, and to
the extent allowed under § 144.39
modified or revoked and reissued
permits, shall incorporate each of the
applicable requirements referenced in
§ 144.52.
(c) Incorporation. All permit
conditions shall be incorporated either
expressly or by reference. If
incorporated by reference, a specific
citation to the applicable regulations or
requirements must be given in the
permit
§ 144.53 Schedule of compliance.
(a) General. The permit may, when
appropriate, specify a schedule of
compliance leading to compliance with
the SDWA and Parts 144,145,146, and
124.
(1) Time for compliance. Any
schedules of compliance shall require
compliance as soon as possible, and in
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14202 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
no case later than 3 years after the
effective date of the permit
. (2) Interim dates. Except as provided
in paragraph (b)(l)(ii) of this section, if a
permit establishes a schedule of
compliance which exceeds 1 year from
the date of permit issuance, the schedule
shall set forth interim requirements and
the dates for their achievement.
(i) The time between interim dates
shall not exceed 1 year.
(ii) If the time necessary for
completion of any interim requirement is
more than 1 year and is not readily
divisible into stages for completion, the
permit shall specify interim dates for the
submission of reports of progress
toward completion of the interim
requirements and indicate a projected
completion date.
(3] Reporting. The permit shall be
written to require that if paragraph (a)(l)
of this section is applicable, progress
reports be submitted no later dian 30
days following each interim date and
the final date of compliance.
(b) Alternative schedules of
compliance. A permit applicant or
permitiBp may cease conducting •
regulated activities (by plugging and
abandonment) rather than continue to
operate and meet permit requirements
as follows:
(1] If the permittee decides to cease
conducting regulated activities at a
given time within the term of a permit
which has already been issued:
(i} The permit may be modified to
contain a new or additional schedule
leading to timely cessation of activities;
or
(ii) The permittee shall cease
conducting permitted activities before
noncompliance with any interim or final
compliance schedule requirement
already specified in the permit
(2) If the decision to cease conducting
regulated activities is made before
issuance of a permit whose term will
include the termination date, the permit
shall contain a schedule leading to
termination which will ensure tisieiy
compliance with applicable
requirements.
(3) If the permittee is undecided
whether to cease conducting rag-dated
activities, the Director may issue or
modify a permit to contain two
schedules as follows:
(i) Both schedules shall contain an
identical interim deadline requiring a
final decision on whether to cease
conducting regulated acnv.nes no later
than a date which ensures sufficient
time to comply with applicable
requirements in a timely manner if the
decision is to continue conducting
regulated activities;
{ii) One schedule shall lead to timely
compliance with applicable
requirements:
(iii) The second schedule shall lead to
cessation of regulated activities by a
date which'will ensure timely
compliance with applicable
requirements:
(iv) Each permit containing two
schedules shall include a requirement
that after the permittee has made a final
decision under paragraph (b)(3)(i) of this
section it shall follow the schedule
leading to compliance if the decision is
to continue conducting regulated
activities, and follow the schedule
leading to termination if the decision is
to cease conducting regulated activities.
(4) The applicant's or permittee's
decision to cease conducting regulated
activities shall be evidenced by a firm
public commitment satisfactory to the
Director, such as a resolution of the
board of directors of a corporation.
§ 144.54 Requirements for recording and
reporting of monitoring results.
All permits shall specify:
(a) Requirements concerning the
proper use, maintenance, and
installation, when appropriate, of
monitoring equipment or methods
(including biological monitoring
methods when appropriate];
(b) Required monitoring including
type, intervals, and frequency sufficient
to yield data which are representative of
the monitored activity including when
appropriate, continuous monitoring:
(c) Applicable reporting requirements
based upon the impact of the regulated
activity and as specified in Part 146.
Reporting shall be no less frequent than
specified in the above regulations.
§144^5 Corrective action.
(a) Coverage. Applicants for Class I,
II, (other than existing), or III injection
well permits shall identify the location
of all known wells within the injection
well's area of review which penetrate
the injection zone, or in the case of
Class II wells operating over the fracture
pressure of the injection formation, all
known wells within the area of review
penetrating formations affected by the
increase in pressure. For such wells
which are improperly sealed, completed,
or abandoned, the applicant shall also
submit a plan consisting of such steps or
modifications as are necessary to
prevent movement of fluid into
underground sources of drinking water
("corrective action"). Where the plan is
adequate, the Director shall incorporate
it into the permit as a condition. Where
the Director's review of an application
indicates that the permittee's plan is
inadequate (based on the factors in
§ 146.07), the Director shall require the
applicant to revise the plan, prescribe a
plan for corrective action as a condition
of the permit under paragraph (b) of this
section, or deny the application. The
Director may disregard the provisions of
§ 146.06 (Area of Review) and § 146.07
(Corrective Action) when reviewing an
application to permit an existing Class II
well.
(b) Requirements—
(1) Existing injection wells. Any
permit issued for an existing injection
well (other than Class II) requiring
corrective action shall include a
compliance schedule requiring any
corrective action accepted or prescribed
under paragraph (a) of this section to be
completed as soon as possible.
(2) New injection wells. No owner or
operator of a new injection well may
begin injection until all required
corrective action has been taken.
(3) Injection pressure limitation. Trfe.
Director may require as a permit
condition that injection pressure be so
limited that pressure in the injection
zone does not exceed hydrostatic
pressure at the site of any improperly
completed or abandoned well within the
area of review. This pressure limitation
shall satisfy the corrective action
requirement Alternatively, such
injection pressure limitation can be part
of a compliance schedule and last until
all other required corrective action has
been taken.
(4) Class III Wells Only. When setting
corrective action requirements the
Director shall consider the overall effect
of the project on the hydraulic gradient
in potentially affected USDWs. and the
corresponding changes in potentiometric
surfacets) and flow direction(s) rather
than the discrete effect of each well. If a
decision is made that corrective action
is not necessary based on the
determinations above, the monitoring
program required in § 146.33(b) shall be
designed to verify the validity of such
determinations.
Part 145 is added to read as follows:
PART 145—STATE UIC PROGRAM
REQUIREMENTS
Subpart A—General Program Requirements
Sec.
145.1 Puroose and scope.
145.2 Definitions.
Subpart B—Requirements for State
Programs
145.11 Requirements for permitting.
145.12 Requirements for compliance
evaluation programs.
145.13 Requirements for enforcement
authority.
145.14 Sharing of information.
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Federal Register / Vol. 48. No. 64 / Friday, April 1, 1983 / Rules and Regulations
14203
—State Program Submissions
145.21 General requirements for program
approvals.
145.22 Elements of a program submission.
145.23 Program description.
145.24 Attorney General's statement
145.25 Memorandum of Agreement with the
Regional Administrator.
Subpart D—Program Approval, Revision
and Withdrawal
145.31 Approval process.
145.32 Procedures for revision of State
programs.
145.33 Criteria for withdrawal of State
programs.
145.34 Procedures for withdrawal of State
programs.
Authority: Pub. L. 93-523. as amended by
Pub. L. 95-190. Pub. L 96-63 and Pub. L. 96-
502.42 U.S.C. 300f el seq.
Subpart A—General Program
Requirements
! 145.1 Purpose and scope.
(a) This part specifies the procedures
EPA will follow in approving, revising.
and withdrawing State programs under
Section 1422 (underground injection
control—UIC] of SOW A, and includes
the elements which must be part of
submissions to EPA for program
approval and the substantive provisions
which must be present in State programs
for them to be approved.
(b) State submissions for program
approval must be made in accordance
with the procedures set out in Subpart
C. This includes developing and
submitting to EPA a program description
(§ 145.23), an Attorney General's
Statement (§ 145.24), and a
Memorandum of Agreement with the
Regional Administrator (§ 14S.25).
(c) The substantive provisions which
must be included in State programs to
obtain approval include requirements
for permuting, compliance evaluation,
enforcement, public participation, and
sharing of information. The
requirements are found in Subpart B.
Many of the requirements for State
programs are made applicable to States
by cross-referencing other EPA
regulations. In particular, many of. the
provisions of Parts 144 and 124 are made
applicable to States by the references
contained in § 145.11.
(d) Upon submission of a complete
program, EPA will conduct a public
hearing, if interest is shown, and
determine whether to approve or
disapprove the program taking into
consideration the requirements of this
Part, the Safe Drinking Water Act and
any comments received.
(e) Upon approval of a State program,
the Administrator shall suspend the
issuance of Federal permits for those
activities subject to the approved State
program.
(f) Any State program approved by
the Administrator shall at all times be
conducted in accordance with the
requirements of this Part
(g) Nothing in this Part precludes a
State from:
(1) Adopting or enforcing
requirements which are more stringent
or more extensive than those required
under this Part;
(2) Operating a program with a greater
scope of coverage than that required
under this Part Where an approved
State program has a greater scope of
coverage than required by Federal law
the additional coverage is not part of the
Federally, approved program.
§ 145.2 Definitions.
The definitions of Part 144 apply to all
subparts of this Part.
Subpart B—Requirements for State
Programs
§ 145.11 Requirements for wtnltting.
(a) All State programs under this Part
must have legal authority to implement
each of the following provisions and
must be administered in conformance
with each; except that States are not
precluded from omitting or modifying
any provisions to impose more stringent
requirements.
(1) § 144.5(b)—(Confidential
information);
(2) § 144.6—(Classification of injection
wells);
(3) § 144.7—(Identification of
underground sources of drinking water
and exempted aquifers);
(4) § 144.8—(Noncompliance
reporting);
(5) § 144.11—(Prohibition of
unauthorized injection);
(6) § 144.12—{Prohibition of
movement of fluids into underground
sources of drinking water);
(7) § 144.13—(Elimination of Class IV
wells);
(8) § 144.14—(Requirements for wells
managing hazardous waste):
(9) § 144.21-§ 144.26—(Authorization
by rule);
(10) § 144.31—(Application for a
permit);
(11) § 144.32—(Signatories);
(12) § 144.33—(Area Permits);
(13) § 144.34—(Emergency permits);
(14) § 144.35—{Effect of permit);
(15) § 144.3&—(Duration);
(16) § 144.38—(Permit transfer);
(17) § 144.39—(Permit modification);
(18) § 144.40—(Permit termination):
(19) § 144.51—(Applicable permit
conditions);
(20) 1144.52—(Establishing permit
conditions);
(21) § I44.53(a}—(Schedule of
compliance); .
(22) § 144.54—(Monitoring
requirements);
(23) § 144.55—(Corrective Action);
(24) § I24.3(a)—(Application for a
permit);
(25) § 124.5 (a), (c), (d), and (f)—
(Modification of permits);
(26) § 124.6 (a), (c). (d). and (e)—(Draft
Permit);
(27) i 124.8—(Fact sheets);
(28) § 124.10 (a)(l)(ii). (a)(l)(iii).
(a)(l){v), (b). (c), (d), and (e)—(Public
notice):
(29) § 124.11—(Public comments and
requests for hearings);
(30) § I24.l2(a)—(Public hearings):
and
(31) § 124.17 (a) and (c)—(Response to
comments).
(b)(l) States need not implement
provisions identical to the provisions
listed in paragraphs (a) (1}-(31) of this
section. Implemented provisions must,
however, estab'ish reiuiremsnts ?»lo-j^t
as stringent as the corresponding listed
provisions. While States may impose
more stringent requirements, they may
not make one requirement more lenient
as a tradeoff for making another
requirement more stringent; for example.
by requiring that public hearings be held
prior to issuing any permit while
reducing the amount of advance notice
of such a hearing.
(2) State programs may, if they have
adequate legal authority, implement any
of the provisions of Parts 144 and 124.
See. for example § 144.37(d)
(continuation of permits) and § 124.4
(consolidation of permit processing).
§ 145.12 Requirements for compliance
evaluation programs.
(a) State programs shall have
procedures for receipt, evaluation,
retention and investigation for possible
enforcement of all notices and reports
required of permittees and other
re<;uialed persons (and for investigation
for possible enforcement of failure to
submit these notices and reports).
(b) State programs shall have
inspection and surveillance procedures
to determine, independent of
information supplied by regulated
persons, compliance or noncompliance
with applicable program requirements.
The State shall maintain:
(1) A program which is capable of
making comprehensive surveys of all
facilities and activities subject to the
State Director's authority to identify
persons subject to regulation who have
failed to comply with permit application
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14204 Federal Register / Vol. 46. No. 64 / Friday. April i. 1983 / Rules and Regulations
or other program requirements. Any
compilation, index, or inventory of such
facilities and activities shall be made
available to the Regional Administrator
upon request;
(2) A program for periodic inspections
of the facilities and activities subject to
regulation. These inspections shall be
conducted in a manner designed to:
(i) Determine compliance or
noncompliance with issued permit
conditions and other program
requirements;
(ii) Verify the accuracy of information
submitted by permittees and other
regulated persons in reporting forms and
other forms supplying monitoring data;
and
(iii) Verify the adequacy of sampling.
monitoring, and other methods used by
permittees and other regulated persons
to develop that information:
(3) A program for investigating
information obtained regarding
violations of applicable program and
permit requirements; and
(4) Procedures for receiving and
ensuring proper consideration of
information submitted by the public
about violations. Public effort in
reporting violations shall be encouraged
and the State Director shall make
available information on reporting
procedures.
(c) The State Director and State
officers engaged in compliance
evaluation shall have authority to enter
any site or premises subject to
regulation or in which records relevant
to program operation are kept in order
to copy any records, inspect, monitor or
otherwise investigate compliance with
permit conditions and other program
requirements. States whose law requires
a search warrant before entry conform
with this requirement
(d) Investigatory inspections shall be
conducted, samples shall be taken and
other information shall be gathered in a
manner [e.g., using proper "chain of
custody" procedures] that will produce
evidence admissible in an enforcement
proceeding or in court
§ 145.13 Requirements for enforcement
authority.
(a] Any State agency administering a
program shall have available the
following remedies for violations of
State program requirements:
[1) To restrain immediately and
effectively any person by order or by
suit in State court from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or environment;
(Note.—This paragraph requires that States
have a mechanism (e.g., an administrative
cease and desist order or the ability to seek a
temporary restraining order) to stop any
unauthorized activity endangering public
health or the environment.]
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement including permit
conditions, without the necessity of a
prior revocation of the permit;
(3) To assess or sue to recover in court
civil penalties and to seek criminal
remedies, including fines, as follows:
(i] For all wells except Class II wells,
civil penalties shall be recoverable for
any program violation in at least the
amount of $2,500 per day. For Class II
wells, civil penalties shall be
recoverable for any program violation in
at least the amount of $1,000 per day.
(ii) Criminal fines shall be recoverable
in at least the amount of $5,000 per day
against any person who willfully
violates any program requirement, or for
Class II wells, pipeline (production]
severance shall be imposable against
any person who willfully violates any
program requirement.
[Note.—In many States the State Director
will be represented in State courts by the
• State Attorney General or other appropriate
legal officer. Although the State Director need
not appear in court actions he or she should
have power to request that any of the above
actions be brought.]
(b](l] The maximum civil penalty or
criminal fine (as provided in paragraph
(a)(3) of this section) shall be assessable
for each instance of violation and, if the
violation is continuous, shall be
assessable up to the maximum amount
for each day of violation.
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section,
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the Safe Drinking Water
Act.
[Note.—For example, this requirement is
not met if State law includes mental state as
an element of proof for civil violations.)
(c) Any civil penalty assessed, sought.
or agreed upon by the State Director
under paragraph (a)(3) of this section
shall be appropriate to the violation. A
civil penalty agreed upon by the State
Director in settlement of administrative
or judicial litigation may be adjusted by
a percentage which represents the
likelihood of success in establishing the
underlying violation(s) in such litigation.
If civil penalty, together with the costs
of expeditious compliance, would be so
severely disproportionate to the
resources of the violator as to jeopardize
continuance in business, the payment of
the penalty may be deferred or the
penalty may be forgiven in whole or
part, as circumstances warrant. In the
case of a penalty for a failure to meet a
statutory or final permit compliance
deadline, "appropriate to the violation."
as used in this paragraph, means a
penalty which is equal to:
(1) An amount appropriate to redress
the harm or risk to public health or the
environment; plus
(2) An amount appropriate to remove
the economic benefit gained or to be
gained from delayed compliance; plus
(3) An amount appropriate as a
penalty for the violator's degree of
recalcitrance, defiance, or indifference
to requirements of the law; plus
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costs thrust upon the public; minus
(5] An amount, if any, appropriate to
reflect any part of the noncompliance
attributable to the government itself;
and minus
(6) An amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violator's control (e.g., floods, fires).
[Note.—In addition to the requirements of
this paragraph, the State may have other
enforcement remedies. The following
enforcement options, while not mandatory,
are highly recommended:
Procedures for assessment by the Slate of
the costs of investigations, inspections, or
monitoring surveys which lead to the
establishment of violations;
Procedures which enable the State to
assess or to sue any persons responsible for
unauthorized activities for any expenses
incurred by the State in removing, correcting.
or terminating any adverse effects upon
human health and the environment resulting
from the unauthorized activity, or both: and
Procedures for the administrative
assessment of penalties by the Director.]
(d) Any State administering a program
shall provide for public participation in
the State enforcement process by
providing either
(1) Authority which allows
intervention as of right in any civil or
administrative action to obtain remedies
specified in paragraph (a) (1), (2) or (3)
of this section by any citizen having an
interest which is or may be adversely
affected; or
(2) Assurance that the State agency or
enforcement authority will:
(i) Investigate and provide written
responses to all citizen complaints
submitted pursuant to the procedures
specified in § 145.12(b)(4);
(ii) Not oppose intervention by any
citizen when permissive intervention
may be authorized by statute, rule, or
regulation; and
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14255
(iii) Publish notice of and provide at
least' 30 days for public comment on any
proposed settlement of a State
enforcement action.
• g 145.14 Sharing of Information.
(a) Any information obtained or used-
in the administration of a State program
shall be available to EPA upon request
without restriction. If the information
has been submitted to the State under a
claim of confidentiality, the State must
submit that claim to EPA when
providing information under this section.
Any information obtained from a State
and subject to a claim of confidentiality
will be treated in accordance with the
regulations in 40 CFR Part 2. If EPA
obtains from a State information that is
not claimed to be confidential. EPA may
make that information available to the
public without further notice.
(b) EPA shall furnish to States with
approved programs the information in
ics files not submitted under a claim of
confidentiality which the State needs to
implement its approved program. EPA
shall furnish to States with approved
programs information submitted to EPA
under a claim of confidentiality, which
the State needs to implement its
approved program, subject to the
conditions in 40 CFR Part 2.
Subpart C—State Program
Submissions
§ 145.21 General requirements for
program approvals.
(a] States shall submit to the
Administrator a proposed State UIC
program complying with § 145.22 of this
Part within 270 days of the date of
promulgation of the UIC regulations on
June 24.1980. The administrator may, for
good cause, extend the date for
submission of a proposed State UIC
program for up to 'an additional 270
days.
(b) States shall submit to the
Administrator 6 months after the date of
promuJganon of the UIC regulations a
report describing the State's progress in
developing a UIG program. If the
Administrator extends the time for
submission of a UIC program an
additional 270 days, pursuant to
§ 145J21(a). the State shall submit a
second report six months after the first
report is due. The Administrator may
prescribe the manner and form of the
report
(c) EPA will establish a UIC program
in any State which does not comply with
paragraph (a) of this section. EPA will
continue to operate a UIC program in
such a State until the State receives
approval of a UIC program in
accordance with the the requirements of
this Part.
[Note.—States which are authorized to
administer the NPDES permit program under
Section 402 of CWA are encouraged to rely
on existing statutory authority, to the extent
possible, in developing a State UIC program.
Section 402lb)(l)P) of CWA requires that
NPDES States have the authority "to issue
permits which control the disposal of
pollutants into wells." In many instances.
therefore. NPDES States will have existing
statutory authority to regulate well disposal
which satisfies the requirements of the UIC
program. Note, however, that CWA excludes
certain types of well injections from the
definition of "pollutant." If the State's
statutory authority contains a similar
exclusion it may need to be modified to
qualify for UIC program approval.]
(d) If a State can demonstrate to
EPA's satisfaction that there are no
underground injections within the State
for one or more classes of injection
wells (other than Class IV wells) subject
to SDWA and that such injections
cannot legally occur in the State until
the State has developed an approved
program for those classes of injections.
the State need not submit a program to
regulate those injections and a partial
program may be approved. The
demonstration of legal prohibition shall
be made by either explicitly banning
new injections of the class not covered
by the State program or providing a
certification from the State Attorney
General that such new injections cannot
legally occur until the State has
developed an approved program for that
class. The State shall submit a program
to regulate both those classes of
injections for which a demonstration is
not made and class IV wells.
(e) When a State UIC program is fully
approved by EPA to regulate all classes
of injections, the State assumes primary
enforcement authority under Section
1422(b)(3) of SDWA. EPA retains
primary enforcement responsibility
whenever the State program is
disapproved in whole or in part States
which have partially approved pro- - .ns
have authority to enforce any viola uon
of the approved portion of their
program. EPA retains authority to
enforce violations of State underground
injection control programs, except that
when a State has a fully approved
program, EPA will not take enforcement
actions without providing prior notice to
the State and otherwise complying with
Section 1423 of SDWA.
• (0 A State can assume primary
enforcement responsibility for the UIC
program, notwithstanding § 145.21(3),
when the State program is unable to
regulate activities on Indian lands
within the State. EPA will administer
the program on Indian lands if the State
does nut seek this authority.
§ 145.22 Elements of a program
sucmission.*
(a) Any State that seeks to administer
a program under this Part shall submit
to the Administrator at least three
copies of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the
State requesting program approval:
(2) A complete program description,
as required by § 145.23, describing how
the State intends to carry out its
responsibilities under this Part;
(3J An Attorney General's statement
as required by § 145.24;
(4) A Memorandum of Agreement
with the Regional Administrator as
required by § 145.25;
(5) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures;
(6) The showing required by
§ 145.31(b) of the State's public
participation activities prior to program
submission.
(b) Within 30 days of receipt by EPA
of a State program submission. EPA will
notify the State whether its submission
is complete. If EPA finds that a State's
submission is complete, the statutory
review period (i.e., the period of time
allotted for formal EPA review of a
proposed State program under the Safe
Drinking Water Act) shall be deemed to
have begun on the date of receipt of the
State's submission. If EPA finds that a
State's submission is incomplete, the
statutory review period shall not begin
until ail the necessary information is -
received by EPA.
(c) If the State's submission is
materially changed during the statutory
review period, the statutory review
period shall begin again upon receipt of
the revised submission.
(d) The State and EPA may extend the
statutory review period by agreement.
§ 145.23 Program description.
Any State that seeks to administer a
program under this part shall submit a
description of the program it proposes to
administer in lieu of the Federal
program under State law or under an
interstate compact. The program
description shall include:
(a) A description in narrative form of
the scope, structure, coverage and
processes of the State program.
(b) A description (including
organization charts) of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the program, including
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14206 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
the information listed below. If more
than one agency is responsible for
administration of a program, each
.agency must have statewide jurisdiction
over a class of activities. The
responsibilities of each agency must be
delineated, their procedures for
coordination set forth, and an agency
may be designated as a "lead agency" to
facilitate communications between EPA
and the State agencies having program
responsibility. When the State proposes
to administer a program of greater scope
of coverage than is required by Federal
law, the information provided under this
paragraph shall indicate the resources
dedicated to administering the Federally
required portion of the program.
(1) A description of the State agency
staff who will carry out the State
program, including the number.
occupations, and general duties of the
employees. The State need not submit
complete job descriptions for every
employee carrying out the State
program.
(2) An itemization of the estimated
costs .of establishing and administering
the program for the first two years after
approval, including cost of the personnel
listed in paragraph (b)(l) of this section.
cost of administrative support, and cost
of technical support
(3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money.
available to the State Director for the
first two years after approval to meet
the costs listed in paragraph (b)(2) of
this section, identifying any restrictions
or limitations upon this funding.
(c) A description of applicable State
procedures, including permitting
procedures and any State administrative
or judicial review procedures.
(d) Copies of the permit form(s),
application fonn(s). reporting form(s).
and manifest format the State intends to
employ in its program. Forms used by
States need not be identical to the forms
used by EPA but should require the
same basic information. The State need
not provide copies of uniform national
forms it intends to use but should note
its intention to use such forms.
[Note.—States are encouraged to use
uniform national forms established by the
Administrator. If uniform national forms are
used, they may be modified to include the
State Agency's name, address, logo, and
other similar information, as appropriate, in
place of EPA's.]
(e) A complete description of the
State's compliance tracking and
enforcement program. -
(f) A State UIC program description
shall also include:
(I) A schedule for issuing permits
within five years after program approval
to all injection wells within the State
which are required to have permits
under this Part and Part 144;
(2) The priorities (according to criteria
set forth in 40 CFR 146.09) for issuing
permits, including the number of permits
in each class of injection well which will
be issued each year during the first five
years of program operation;
(3) A description of how the Director
will implement the mechanical integrity
testing requirements of 40 CFR 146.08.
including the frequency of testing that
will be required and the number of tests
that will be reviewed by the Director
each yean
(4) A description of the procedure
whereby the Director will notify owners
and operators of injection wells of the
requirement that they apply for and
obtain a permiU-Xhe notification"-'
required by this paragraph shall require
applications to be filed as soon as
possible, but not later than four years
after program approval for all injection
wells requiring a permit;
(5) A description of any rule under
which the Director proposes to authorize
injections, including the text of the rule;
(6) For any existing enhanced
recovery and hydrocarbon storage wells
which the Director proposes to authorize
by rule, a description of the procedure
for reviewing the wells for compliance
with appb'cable monitoring, reporting,
construction, and financial
responsibility requirements of § § 144.51
and 144.52, and 40 CFR Part 146;
(7) A description of and schedule for
the State's program to establish and
maintain a current inventory of.injection
wells which must be permitted under
State law;
(6} Where the Director had designated
underground sources of drinking water
in accordance with § 144.7(a), a
description and identification of all such
designated sources in the State;
. (9) A description of aquifers, or parts
thereof, which the Director has
identified under § 144.7(b) as exempted
aquifers, and a summary of supporting
.-data;
(10) A description of and schedule for
the State's program to ban Class IV
wells prohibited under § 144.13; and
(11) A description of and schedule for
the State's program to establish an
inventory of Class V wells and to assess
the need for a program to regulate Class
V wells.
§ 145.24 Attorney General's statement
(a) Any State that seeks to administer
a program under this Part shall submit a
statement from the State Attorney
General (or the attorney for those State
or interstate agencies which have
independent legal counsel) that the laws
of the State, or an interstate compact,
provide adequate authority to carry out
the program described under § 145.23
and to meet the requirements of this
Part. This statement shall include
citations to the specific statutes,
administrative regulations, and, where
appropriate, judicial decisions which
demonstrate adequate authority. State
statutes and regulations cited by the
State Attorney General or independent
legal counsel shall be in the form of
lawfully adopted State statutes and
regulations at the time the statement is
signed and shall be fully effective by the
time the program is approved. To qualify
as "independent legal counsel" the
attorney signing the statement required
by this section must have full authority
to independently represent the State
agency in court on all matters pertaining
to the State program.
[Note.—EPA will supply States with an
Attorney General's statement format on..
request.]
(b) When a State seeks authority over
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State's authority.
§ 145.25 Memorandum of Agreement with
the Regional Administrator.
(a) Any State that seeks to administer
a program under this Part shall submit a
Memorandum of Agreement. The
Memorandum of Agreement shall be
executed by the State Director and the
Regional Administrator and shall
become effective when approved by the
Administrator. In addition to meeting
the requirements of paragraph (b) of this
section, the Memorandum of Agreement
may include other terms, conditions, or
agreements consistent with this Part and
relevant to the administration and
enforcement of the State's regulatory
program. The Administrator shall not
approve any Memorandum of
Agreement which contains provisions
which restrict EPA's statutory oversight
responsibility.
—(byrhe -Memorandum'Of Agreement
shall include the following:
(1) Provisions for the prompt transfer
from EPA to the State of pending permit
applications and any other information
relevant to program operation not
already in the possession of the State
Director (e.g., support files for permit
issuance, compliance reports, etc.).
When existing permits are transferred
from EPA to State for administration,
the Memorandum of Agreement shall
contain provisions specifying a
procedure for transferring the
administration of these permits. If a
State lacks the authority to directly
administer permits issued by the Federal
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Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations t 14207
government, a procedure may be
established to transfer responsibility for
these permits.
[Note.—For example. EPA and the State
and the permittee could agree that the State
would issue a permit(s) identical to the
outstanding Federal permit which would
simultaneously be terminated.]
(2) Provisions specifying classes and
categories of permit applications, draft
permits, and proposed permits that the
State will send to the Regional
Administrator for review, comment and,
where applicable, objection.
(3) Provisions specifying the frequency
and content of reports, documents and
other information which the State is
required to submit to EPA. The State
shall allow EPA to routinely review
State records,- reports-,~and.files relevant.
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
where appropriate.
(4) Provisions on the State's
compliance monitoring and enforcement
program, including:
(i) Provisions for coordination of
compliance monitoring activities by the
State and by EPA. These may specify
the basis on which the Regional
Administrator will select facilities or
activities within the State for EPA
inspection. The Regional Administrator
will normally notify the State at least 7
days before any such inspection: and
(ii) Procedures to assure coordination
of enforcement activities.
(5J When appropriate, provisions for
joint processing of permits by the State
and EPA. for facilities or activities
which require permits from both EPA
and the State under different programs.
See § 124.4.
(6) Provisions for modification of the
Memorandum of Agreement in
accordance with this Part
(c) The Memorandum of Agreement
the annual program and grant and the
State/EPA Agreement should be
consistent If the State/EPA Agreement
indicates that a change is needed'inJhe
Memorandum of Agreement the
Memorandum of Agreement may be
amended through the procedures set
forth in this part The State/EPA
Agreement may not override the
Memorandum of Agreement
[Note.—Detailed program priorities and
specific arrangements for EPA support of the
State program will change and are therefore
more appropriately negotiated in the context
of annual agreements rather than in the
MOA. However, it may still be appropriate to
specify in the MOA the basis for such
detailed agreements, e.g.,« provision in the
MOA specifying that EPA will select facilities
in the State for inspection annually as part of
the State/EPA agreement.]
Subpart 0—Program Approval,
Revision and Withdrawal
§ 145.31 Approval process.
(a) Prior to submitting an application
to the Administrator for approval of a
State UIC program, the State shall issue
public notice of its intent to adopt a UIC
program and to seek program approval
from EPA. This public notice shall:
(1) Be circulated in a manner
calculated to attract the attention of
interested persons. Circulation of the
public notice shall include publication in
enough of the largest newspapers in the
State to attract Statewide attention and
mailing to persons on appropriate State
mailing lists and to any other persons
whom the agency has reason to believe
are interested;
" (2)" Indicate -when-and-whereUhe .«• •
State's proposed program submission
may be reviewed by the public;
(3) Indicate the cost of obtaining a
copy of the submission;
(4) Provide for a comment period of
-not less than 30 days during which
interested persons may comment on the
proposed UIC program;
(5) Schedule a public hearing on the
State program for no less than 30 days
after notice of the hearing is published;
(6) Briefly outline the fundamental
aspects of the State UIC program; and
(7) Identify a person that an interested
member of the public may contact for
further information.
(b) After complying with the
requirements of paragraph (a) of this
section any State may submit a
proposed UIC program under section
1422 of SDWA and § 145.22 of this Part
to EPA for approval. Such a submission
shall include a showing of compliance
with paragraph (a) of this section; copies
of all written comments received by the
State; a transcript recording or
summary of any public hearing which
was held by the State; and a
responsiveness summary which
identifies the public participation
activities conducted, describes the
""•matters pmenterhkrthe-public,
summarizes significant comments
received, and responds to these
comments. A copy of the responsiveness
summary shall be sent to those who
testified at the hearing, and others upon
request
(c) After determining that a State's
submission for UIC program approval is
complete the Administrator shall issue
public notice of the submission in the
Federal Register and in accordance with
paragraph (a)(l] of this section. Such
notice shall:
(1) Indicate that a public hearing will
be held by EPA no earlier than 30 days
after notice of the hearing. The notice
may require persons wishing to present
testimony to file a request with the
Regional Administrator, who may
cancel the public hearing if sufficient
public interest in a hearing is not
expressed;
(2) Afford the public 30 days after the
notice to comment on the State's
submission; and
(3) Note the availability of the State
submission for inspection and copying
by the public.
(d) The Administrator shall approve
State programs which conform to the
applicable requirements of this Part
(e) Within 90 days of the receipt of a
complete submission (as provided in
§ 145.22) or material amendment thereto,
the Administrator shall by rule either
fully approve, disapprove, or approve in
part the State's UlC'program taking into
account any comments submitted. The
Administrator shall give notice of this
rule in the Federal Register and in
accordance with paragraph (a)(l) of this
section. If the Administrator determines
not to approve the State program or to
approve it only in part, the notice shall
include a concise statement of the
reasons for this determination. A
responsiveness summary shall be
prepared by the Regional Office which
identifies the public participation
• activities conducted, describes the
matters presented to the public,
summarizes significant comments
received, and explains the Agency's
. response to these comments. The
responsiveness summary shall be sent
to those who testified at the public
hearing, and to others upon request.
§ 145.32 Procedures for revision of State
programs.
(a) Either EPA or the approved State
may initiate program revision. Program
revision may be necessary when the
controlling Federal or State statutory or
regulatory authority is modified or
supplemented. The state shall keep EPA
fully informed of any proposed
. modifications to its basic statutory or
regulatory authority, its" forms,
procedures, or priorities.
(b) Revision of a State program shall
be accomplished as follows:
(1) The State shall submit a modified
program description. Attorney General's
statement Memorandum of Agreement.
or such other documents as EPA
determines to be necessary under the
circumstances.
(2) Whenever EPA determines that the
proposed program revision is
substantial. EPA shall issue public
notice and provide an opportunity to
comment for a period of at least 30 days.
The public notice shall be mailed to
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14206 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
interested persons and shall be
published in the Federal Register and in
enough of the largest newspapers in the
State to provide Statewide coverage.
The public notice shall summarize the
proposed revisions and provide for the
opportunity to request a public hearing.
Such a hearing will be held is there if
significant public interest based on
requests received.
(3) The Administrator shall approve or
disapprove program revisions based on
the requirements of this Part and of the
Safe Drinking Water Act.
(4] A program revision shall become
effective upon the approval of the
Administrator. Notice of approval of any
substantial revision shall be published
in the Federal Register. Notice of
approval of non-substantial program
revisions may be given by a letter from.* -
the Administrator to the State Governor
or his designee.
(c) States with approved programs
shall notify EPA whenever they propose
to transfer all or part of any program
from the approved State agency to any
other State agency, and shall identify
any new division of responsibilities
among the agencies involved. The new
agency is not authorized to administer
the program until approval by the
Administrator under paragraph (b) of
this section. Organizational charts
required under § 145.23(b) shall be
revised and resubmitted.
(d) Whenever the Administrator has
reason to believe that circumstances
_ have changed with respect to a State
program, he may request, and the State
shall provide, a supplemental Attorney
General's statement, .program
description, or such other documents or
information as are necessary.
(e) The State shall submit the
information required under paragraph
(b)(l) of this section within 270 days of
any amendment to this Part or 40 CFR
Parts 144,146, or 124 which revises or
adds any requirement respecting an
approved UIC program.
§ 145J3 Criteria for withdrawal of State
' programs.
(a) The Administrator may withdraw
program approval when a State program
no longer complies with the
requirements of this Part and the State
fails to take corrective action. Such
circumstances include the following:
(1) When the State's legal authority no
longer meets their requirements of this
Part, including:
(ij Failure of the State to promulgate
or enact new authorities when
necessary; or
(ii) Action by a State legislature or
court striking down or limiting State
authorities.
(2} When the operation of the State
program fails to comply with the
requirements of this Part, including:
(i) Failure to exercise control over
activities required to be regulated under
this Part including failure to issue
permits;
(ii) Repeated issuance of permits
which do not conform to the
requirements of this Part or
(iii) Failure to comply with the public
participation requirements of this Part.
(3) When the State's enforcement
program fails to comply with the
requirements of this Part including:
(i) Failure to act on violations of
permits or other program requirements;
(ii) Failure to seek adequate f
enforcement penalties or to collect
administrative fines when imposed; or
. (iii)'F-aikre -to iaspect-anti-monitoT •
activities subject to regulation.
(4) When the State program fails to
comply with the terms of ihe
Memorandum of Agreement required
under § 145.24.
•§ 145,34 Procedures for withdrawal of
State programs.
[a) A State with a program approved
under this Part may voluntarily transfer
program responsibilities required by
Federal law to EPA by taking the
following actions, or in such other
manner as may be agreed upon with the
Administrator.
(1) The State shall give the
Administrator 180 days notice of the
proposed transfer and shall submit a
plan for the orderly transfer of all
relevant program information not in the
possession of EPA (such as permits.
permit files, compliance files, reports,
permit applications) which are
necessary for EPA to administer the
program.
(2) Within 60 days of receiving the
notice and transfer plan, the
Administrator shall evaluate the State's
transfer plan and shall identify any
additional information needed by the
Federal government for program
. ,adminisJialioa,and/oudentifyiany other
deficiencies in the plan.
(3} At least 20 days before the transfer
is to occur the Administrator shall
publish notice of the transfer in the
Federal Register and in enough of the
largest newspapers in the State to
provide Statewide coverage, and shall
mail notice to all permit holders, permit
applicants, other regulated persons and
other interested persons on appropriate
EPA and State mailing lists.
(b) Approval of a State UIC program
may be withdrawn and a Federal
program established in its place when
the Administrator determines, after
holding a public hearing, that the State
program is not in compliance with the
requirements of SDWA and this Part
(1) Notice to State of Public Hearing.
If the Administrator has cause to believe
that a State is hot administering or
enforcing its authorized program in
compliance with the requirements of
SDWA and this Part he or she shall
inform the State by registered mail of
the specific areas of alleged
noncompliance. If the State
demonstrates to the Administrator
within 30 days of such notification that
the State program is in compliance, the
Administrator shall take no further
action toward withdrawal and shall so
notify the State by registered mail.
(2j Public Hec.-ing. If the State has not
demonstrated its compliance to the
satisfaction nf the Administrator within
30 days after notification, the
Administrator shall inform the State
Director and schedule a public hearing
to discuss withdrawal cf the State .
program. Notice of such public hearing
shall be published in the Federal
Register and in enough of the largest
newspapers in the State to attract
statewide attention, and mailed to
persons on appropriate State and EPA
mailing lists. This hearing shall be
convened not less than 60 days nor more
than 75 days following the publication of
the notice of the hearing. Notice of the
hearing shall identify the
Administrator's concerns. All interested
persons shall be given opportunity to
make written or oral presentation on the
State's program at the public hearing.
(3) Notice to State of Findings. When
the Administrator finds after the public
hearing that the State is not in
compliance, he or she shall notify the
State by registered mail of the specific
deficiencies in the State program and of
necessary remedial actions. Within 90
days of receipt of the above letter, the
Stale shall either carry out the required
remedial action or the Administrator
shall withdraw program approval If the
State carries out the remedial action or.
'•*as*a'result"Oi>the4)earing is found to be""
in compliance, the Administrator shall
so notify the State by registered mail
and conclude the withdrawal
proceedings.
Part 233 is added as follows:
PART 233—404 STATE PROGRAM
TRANSFER REGULATIONS
Subpart A—General
Purpose and scope of Part 233.
See.
Z33.1
Subpart B—Definitions and General
Program Requirements
233.2 Purpose and scope of Subpart B.
233.3 Definitions.
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Sec.
233.4 Application for a permit.
233-5 Continuation of expiring permits.
233.6 Signatories to permit applications and
reports.
233.7 Conditions applicable to all permits.
233.8 Establishing permit conditions.
233.9 Duration of permits.
233.10 Schedules of compliance.
233.11 Requirements for recording and
reporting of monitoring results.
233.12 Effect of a permit.
233.13 Transfer of permits.
233.14 Modification or revocation and .
reissuance of permits.
233.15 ' Termination of permits.
233.16 Minor modifications of permits.
233.17 Noncompliance and program
reporting by the Director.
233.1B Confidentiality of information.
Subpart C—State Program Requirements
233.20 Purpose and scope.
233.21 Elements of a program submission.
233.22 Program description.
233.23 Attorney General's statement.
233.24 Memorandum of Agreement with the
Regional Administrator.
233.25 .Memorandum of Agreement with the
Secretary.
233.26 Requirements for permitting.
233.27 Requirements for compliance
evaluation programs.
233.28 Requirements for enforcement
authority.
233.29 Sharing of information.
233.30 Coordination with other programs.
233.31 Approval process.
233.32 Procedures for revision of State
programs.
233.33 Criteria for withdrawal of State
programs.
233.34 Procedures for withdrawal of State
programs.
233.35 Activities not requiring permits.
233.36 Prohibitions.
233.37 General permits.
233.38 Emergency permits.
233.39 Transmission of information to EPA
and other Federal agencies.
233.40 EPA review of and objections to
State permits. -
233.41 Coordination requirements.
Authority: Clean Water Act 33 U.S.C. 1251
etseq.
Sut>pa.rt A—General
§ 233.1 Purpose and scope of Part 233.
(a) Coverage. Part 233 includes
provisions for the Dredge or Fill (404)
Program under section 404 of the Clean
Water Act. This Part includes the
requirements which must be met for a
State to administer its own program in
lieu of the U.S. Army Corps of Engineers
in "State regulated waters." and
provisions for EPA oversight of State
issued 404 permits.
(b) Structure. These permit regulations
are organized as follows:
(1) Subpart A. This Subpart, contains
general information relating to these
regulations.
(2) Subpart B. This Subpart contains
definitions for the 404 program, and
some basic permitting requirements
applicable to state programs.
(3) Subpart C. This Subpart
establishes minimum program
• requirements for an approvable state
program and for administering the
permit program subsequent to approval.
including EPA oversight.
(4) Part 124. Part 233 incorporates by
reference certain procedures for
issuance of State 404 permits which are
established in Part 124 of this chapter.
(c) Relation to other requirements. (1)
Applicants for State issued permits must
use State-prescribed forms which must
require at a minimum the information
listed in these sections. All minimum
information requirements for State 404
permit applications appear in § 233.4.
permit program covered hi these
regulations has separate additional
regulations, located at 40 CFR Part 230,
that contain technical requirements.
These separate regulations are used by
permit-issuing authorities to determine
what requirements must be placed in
permits if they are issued.
(d) Public participation. This rule
establishes the requirements for public
participation in State permit issuance
and enforcement proceedings, and in the
approval of State 404 programs. These
requirements carry out the purposes of
the public participation requirements of
40 CFR Part 25 (Public Participation).
and supersede the requirements of that
Part as they apply to actions covered
under this Part.
(e) State authorities. Nothing in Part
233 precludes more stringent State
regulation of any activity covered by
these regulations, whether or nor under
an approved State program.
(f) Federal 404 Program. Permit
program requirements for the Federal
404 program administered by the Corps
of Engineers appear in 33 CT'R Parts 320-
330, rather than in this Part
Subpart B—Definitions and General
Prograrri'Requiremerits" ' • • •" ""
§ 233.2 Purpose and scope of Subpart B.
Subpart B contains definitions'for
State 404 programs (§ 233.3) and basic
permit requirements for state programs
(§§ 233.4 through 233.18).
§233.3 Definitions..
The following definitions apply to Part
233. Terms not defined in this section
have the meaning given by the CWA.
When a defined term appears in a
definition, the defined term is sometimes
placed within quotation marks'as an aid
to readers.
Administrator means the
Administrator of the United States
Environmental Protection Agency, or an
authorized representative.
Application means the forms
approved by EPA for use in "approved
States." including any approved
modifications or revisions.
Approved program or approved State
means a State or interstate program
which has been approved or authorized
by EPA under Subpart C.
Best management practices ("BMPs")
means schedules of activities,
prohibitions of practices, maintenance
procedures, and other management
practices to prevent or reduce the
pollution of "waters of the United
States." including methods, measures.
practices, or design and performance
standards, which facilitate compliance
with section 4C4(b)(l) environmental
guidelines (40 CFR Part 230), effluent
limitations or prohibitions under section
307(a), and applicable water quality
standards.
BMPs means "best management
practices."
CWA means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act or Federal
Water Pollution Control Act
Amendments of 1972) Pub. L 92-500, as
amended by Pub. L 95-217 and Pub. L.
95-576, 33 U.S.C. 1251 et seq.
Director means the chief
administrative officer of any state or
interstate agency operating an
"approved program," or the delegated
representative of the State Director. If
responsibility is divided among two or
more State or interstate agencies, "State
Director" means the chief administrative
officer of the State or interstate agency
authorized to perform the particular
procedure or function to which reference
is made.
Discharge of dredged material means
any addition from any "point source" of
"dredged material" into "waters of the
United States." The term includes the
addition of dredged material into waters
_of-the.United Stateaand the runoff or
overflow from a contained land or water
dredge material disposal area.
Discharges of pollutants into waters of
the United States resulting from the
subsequent onshore processing of
dredged material are not included
within this term and are subject to the
NPDES program even though the
extraction and deposit of such material
may also require a permit from the
Corps of Engineers or the State section
404 program.
Discharge of fill material means the
addition from any "point source" of "fill
material" into "waters of the United
States." The term includes the following
activities in waters of the United States:.
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14210 Federal Register'/ Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations
placement of fill that is necessary for the
construction of any structure; the
building of any structure or
impoundment requiring rock sand, dirt.
or other materials for its construction;
site-development fill for recreational,
industrial, commercial, residential, and
other uses; causeways or road fills;
dams and dikes; artificial islands;
property protection and/or reclamation
devices such as riprap, groins, seawalls,
breakwaters, and revetments; beach
nourishment levees; fill for structures
such as sewage treatment facilities,
intake and outfall pipes associated with
power plants and subaqueous utility
lines; and artificial reefs.
Disposal site means that portion of
the "waters of the United States"
enclosed within fixed boundaries
consisting of-a bottom surface-area and"* •
any overlaying volume of water. In the
case of "wetlands" on which water is
not present, the disposal site consists of
the wetland surface area. Fixed
boundaries may consist of fixed
geographic point(s) and associated
dimensions, or of a discharge point and
specific associated dimensions.
Draft permit means a document
prepared under § 124.6 of this Chapter
indicating the Director's tentative
decision to issue or deny, modify,
revoke and reissue, terminate, or reissue
a "permit" A notice of intent to
terminate a permit, and a notice of
intent to deny a permit, as discussed in
§ 124.5 of this chapter, are types of
"draft permits." A denial cf a request for
modification, revocation and reissuance,
or termination, as discussed in § 124.5, is
not a "draft permit" A "proposed
permit" is not a "draft permit."
Dredged material means material that
is excavated or dredged from "waters of
the United States."
Effluents means "dredged material" or
"fill material," including return Sow
from confined sites.
Emergency permit means a State 404
"permit" issued in accordance with
§233.38.
• Environmental Protection-Agency --•=
("EPA") means the United Sts-.es
Environmental Protection Agency.
EPA means the United Slates "
"Environmental Protection Agency."
Facility or activity means any State .
404 dredge or fill activity, or any other
facility or activity (including land or
appurtenances thereto) that is subject to
regulation under the 404 program.
Fill material means any "pcllutant"
which replaces portions of the "waters
of the United States" with dry land or
which changes the bottom elevation of a
water body for any purpose. >
General permit means 404 "permit"
issued under § 233.37 authorizing a
category of discharges under the CWA
within a geographical area.
Interstate agency means an agency of
two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as determined
and approved by the Administrator
under the CWA.-
Major facility means any 404 "facility
or activity" classified as such by the
Regional Administrator in conjunction
with the State Director.
Owner or operator means the owner
or operator of any "facility or activity"
subject to regulation under the 404
program.
Permit means an authorization,. -.
license, or equivalent control document
issued by an "approved State" to
implement the requirements of this Part
and Part 124. "Permit" includes 404
"general permit" (§ 233.37), and 404
"emergency permit" (§ 233-38).
Person means an individual,
association, partnership, corporation,
municipality, State or Federal agency, or
an agent or employee thereof.
Point source means any discernible,
confined, and discrete conveyance,
including but not limited to any pipe, '
ditch, channel, tunnel, conduit,-well.
discrete fissure, container, rolling stock,
concentrated animal feeding operation,
vessel, or other floating craft from which
pollutants are or may be discharged.
This term does not include return flows
from irrigated agriculture.
Pollatcr.t means dredged spoil, solid
waste, incinerator residue, filter
backwash, sewage, garbage, sewage
sludge, munitions, chemical wastes,
biological materials, radioactive
material (except those regulated under
the Atomic Energy Act of 1954, as
amended (42 U.SC § 2011 ef set?.}).
heat wrecked or discarded equipment,
rock sand, cellar dirt and industrial,
municipal and agricultural waste
jdischargedJatOxwaterjtlfcdoes not-meani--
(a) Sewage from vessels; or
(b) Water, gas, or other material
which is injected into a well to facilitate
production of oil or gas. or water
derived in association with oil and gas
production and disposed of in a well, if
the well used either to facilitate
production or for disposal purposes is
approved by authority cf the State in
which the well is located, and if the
State determines that injection or
disposal will not result in the
degradation of ground or surface water
resource.
[Note.—Radioactive materials covered by
the Atomic Energy Act ore those
encompassed in ita definition of source,
byproduct, or special nuclear produced
isotope*. See Tram v. Colorado Public
Interest Research Croup Inc. 426 U.S. 1
(1976JJ
Regional Administrator means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
authorized representative of the
Regional Administrator.
Schedule of compliance means a
schedule of remedial measures included
in a "permit", including an enforceable
sequence of interim requirements (for
example, actions, operations, or
milestone events) leading to compliance
with the CWA and its regulations.
Secretary means the Secretary of the
Army, acting through the Chief of
Engineers.
Section 404 program or State 404
program or 404 means an "approved
State program" to regulate the
"discharge of dredged material" and the
"discharge of fill material" under section
404 of the Clean Water Act in "State
regulated waters."
Site means the land or water area
where any "facility or activity" is
physically located or conducted.
including adjacent land used in
connection with the facility or activity.
State means any of the 50 States, the
District of Columbia. Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, and
the Trust Territory of the Pacific islands.
State/EPA Agreement means an
agreement between the Regional
Administrator and the State which
coordinates EPA and State activities,
responsibilities and programs including
those under the CWA.
State regulated waters means those
"waters of the United States" in which
the Corps of Engineers suspends the
issuance of section 404 permits upon
approval of a State's section 404 permit
i program byUhe Administrator -under •
section 404(h). These waters shall be
identified In the program description as
required by $ 233.22{h)(l). The Secretary
shall retain jurisdiction_over the
following waters (see CWA section
404(g}(l)):
(a) Waters which are subject to the
ebb and flew of the tide;
(b) Waters which are presently used.
or are susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce shoreward to their
ordinary high water mark; and
(c) "Wetlands" adjacent to waters in
paragraphs (a) and (b) of this definition.
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations 14211
Toxic pollutant means any pollutant
listed as toxic under section 307(a)(l) of
CWA.
Waters of the United States or waters
of the U.S. means:
(a) All waters which are currently
used, were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters which
are subject to the ebb and Cow of the
tide:
(b) All interstate waters, including
interstate "wetlands;"
(c) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats.
sanriflats, "wetlands." sloughs, prairie
potholes, wet meadows, playa lakes, or
natural ponds the use. degradation, or
destruction of which would affect or
could affect interstate or foreign
commerce including any such waters:
(1) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes:
(C) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce: or
(3) Which are used or could be used
for industrial purposes by industries in
interstate commerce:
Wetlands means those areas that are
inundated or saturated by surface or
ground water at a frequency and
duration sufficient to support and that
under normal circumstances do support
a prevalence of vegetation typically
adapted for life in saturated soil
conditions. Wetlands generally include
swamps, marshes, bogs and similar
areas.
§ 233.4 Application for a permit.
(a) Publicity and preapplication
consultation. The State director shall
maintain a program to inform, to the
extent possible, potential applicants for
permits of the requirements of the State
program and of the steps required to
obtain permits for activities in State
regulated waters. The State Director is
.encouraged.to include preapplication .
consultation as part of this program to
assist applicants in understanding the
requirements of the environmental
guidelines issued under section 4C4(b](l)
of CWA (40 CFR Part 230) and ia
fulfilling permit application
requirements.
(b) Application for permit. Except
when an activity is authorized by a
general permit under § 223.37 cr is
exempt from the requirement to obtain a
permit under § 233.35, any person who
' proposes to discharge dredged or fill
material into State regulated waters
shall complete, sign and submit an
application to the State Director. State
application forms are subject to EPA
review and approval. Procedures for
applications, issuance and
administration of emergency permits are
found exclusively in I 233.38.
(c) Who applies? When a facility or
activity is owned by one person but is
operated by another person, it is the
operator's duty to obtain a permit.
(d) Completeness. The Director shall
not issue a 404 permit before receiving a
complete application for a permit except
for 404 general permits or emergency
permits. An application for a permit
under a program is complete when the
Director receives an application form
and any supplemental information
which are completed to his or her
satisfaction. The completeness of any
application for a permit shall be judged
independently of the status of any other
permit application or permit for the
same facility or activity.
(e) Content of Application. A complete
application shall include the following
information:
(1) A complete description of the
proposed activity including:
(i) Name, address, and phone number
of the applicant and the names,
addresses, and phone numbers of
owners of properties adjacent to the
site; and if appropriate, the location and
dimensions of adjacent structures;
(ii) A description of the. source.of the
dredged or fill material and method of
dredging used, if any; a description of
the type, composition and quantity of
the material: the proposed method of
transportation and disposal of the
material including the type of
equipment to be used: and the extent (in
acres) of the area of waters of the
United States to be filled or used for
disposal;
(iii) The purpose and intended use of
the proposed activity (including whether -
it is water-dependent); a description of
the use of any structures to be erected
on the fill: and a schedule for the
proposed activity,
(iv) A list of the approvals required by
...other-Federal, interstate. S tate.and bcal,
agencies for the activity, including all
approvals or denials received; and
(v) A vicinity map identifying the
proposed disposal site and the local
jurisdiction closest to the disposal site.
(2) Information about the disposal site
needed to evaluate compliance with 40
CFR Part 230. including the following:
(i) A description of known
alternatives to the proposed discharge,
including alternative disposal sites,
construction methods, methods of
discharge, and reasons for rejecting the
alternatives;
(ii) A description of special aquatic
sites, public use areas, wildlife refuges.
and public water supply intakes in the
affected or adjacent areas that may
require special protection or
preservation;
'iii) Plants, fish, shellfish and wildlife
in the disposal site which may be
dependent on water quality and
quantity;
(iv) Uses of the disposal site which
might affect human health and welfare;
and
(v) A description of technologies or
management practices by which the
applicant proposes to minimize adverse
environmental effects of the discharge.
Guidelines for minimising the adverse
effects of discharges of dredged or fill
material are found in 40 CFR Part 230.
[Note.—The State shall-provide permit
applicants with guidance, either through the
application form or on an individual basis,
regarding the level of detail of information
and documentation required under this
paragraph. The level of detail shall be
reasonably commensurate with the type and
size of discharge, proximity to critical areas*.
likelihood of presence of long-lived toxic
chemical substances, and degree of
environmental degradation,]
(3) One original set of drawings and
maps, or one set of drawings and maps
of reproducible quality, including:
(i) A map showing the following in
plan view:
(A) Location of the activity site
including latitude, longitude, and river
mile, if known;
(B) Name of waterway;
(C) All applicable political (e.g.,
county, borough, town. city, etc.)
boundary lines:
(D) Names of all major roads in the
vicinity of the site including the road
providing the closest practicable access
to the sites:
(E) North arrow,
(F) Arrows showing Cow and
circulation patterns;
(G} Existing shorelines or ordinary
high watermark;
(H) Location of known wetlands:
'•-ftyWaterdepths-and-bottom *
configuration around the project:
(]) Delineation of disposal site:
(K) Size-relationship between the
proposed disposal site and affected
waters (e.g.. a % acre fill in a 15-acre
wetland);
(L) Location of previously used
dredged material disposal sites with
remaining capacity in the vicinity of the
projects. The map must indicate
retention levees, weirs, and any other
devices for retaining dredged or Ell
material; and
(M) Location of structures, if any, in
waters of the United States immediately
adjacent to the proposed activity,
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14212 Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations
including permit numbers, if known.
Identify purposes of all structures.
(ii) A cross-sectional view of the
proposed project showing the following:
(A) Water elevations;
(B) Water depths at waterward face of
proposed work, or if dredging is
proposed, showing dredging grade;
(C) Cross-section of fill;
(D) Elevation of spoil areas;
(E) Location of wetlands; and
(F) Delineation of disposal site.
(iii) Notes on all maps or drawings
submitted, including:
(A) A list of names cf adjacent
property owners whose property also
adjoins the water and who are not
shown in the plan view;
(B) A title block for each sheet
submitted identifying the proposed
activity and containing the name of-the-1--
body of water; river mile, if applicable;
name of county, State and nsarsst
incorporated municipality; name of
applicant; number of the sheet and the
total number of sheets in set; and date
the drawing was prepared.
(C) Graphic or numerical scale.
(f) Recordkeeping. Applicants shall
keep records of all data used to
complete permit applications and any
supplemental information submitted
under § 233.28 for a period of at least 3
years from the date the application is
signed.
§ 233.5 Continuation of expiring permits.
A Corps of Engineers issued permit
does not continue in force beyond its
expiration date under Federal law if at
that time a State is the "permitting
authority. States authorized to
administer the 404 program may
continue either Corps of Engineers or
State issued permits until the effective
date of the new permits, if State law
allows. Otherwise, the facility or
activity is operating without a permit
from the time of expiration of the old
permit to the effective date of the State-
issued new permit.
. § 233.6t SlgnatprtesJo permit applications
and reports.
(a) Applications. All permit
applications shall be signed as follows:
(1) For a corporation: by a principal
executive officer of at least the level of.
vice-president
(2) For a partnership or sole
proprietorship: by a general partner or
the proprietor, respectively; or
(3) For a municipality. State, Federal,
or other public agency: by either a
principal executive officer or ranking
elected official.
{b) Reports. All reports required by
permits and other information requested
by the Director shall be signed by a
person described hi paragraph (a) of this
section, or by a duly authorized
representative of that person. A person
is a duly authorized representative only
if:
(1) The authorization is made in
writing by a person described in
paragraph (a) of this section;
(2) The authorization specifies either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of plant manager,
operator of a well or a well field,
superintendent, or position of equivalent
responsibility. (A duly authorized
representative may thus be either a
named individual or any individual
occupying a named position.); and
(3) The written authorization is
• submitted to Ihe'Dtrebtbt.'-
(c) Changes to authorization. If an
authorization under paragraph (b) of this
section is no longer accurate because a
different individual or position has
responsibility for the overall operation
of the facility, a new authorization
satisfying the requirements of paragraph
(b) cf this section must be submitted to
the Director prior to or together with any
reports, information, or applications to
be signed by an authorized
representative.
(d) Certification. Any person signing a
document under paragraphs fa) or (b) of
this section shall make the following
certification:
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document
and all attachments and that, baaed on my
inquiry of those individuals immediately
responsible for obtaining the information, I
beiieve that the information is true, accurate,
and complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment
§ 233.7 Conditions applicable to all
permits.
The following conditions apply to all
404 permits. All such conditions shall be
I'wincoiporated-into-the'penmts-eimer * • **
expressly or by reference. If
incorporated by reference, a specific
citation to these regulations (or the
corresponding approved State
regulations) must be given in the permit
(a) Duty to comply. The permittee
must comply with all conditions of this
permit Any permit noncompliance
constitutes a violation of the CWA and
is grounds for enforcement action; for
permit termination, revocation and
reissuance, or modification; or for denial
of a permit renewal application.
(b) Duty to reapply. If the permittee
wishes to continue an activity regulated
by this permit after the expiration date
of this permit, the permittee must apply
for and obtain a new permit.
(c) Duty to halt or reduce activity. It
shall not be a defense for a permittee in
an enforcement action that it would
have been necessary to halt or reduce
the permitted activity in order to
maintain compliance with the conditions
of this permit
(d) Duty to mitigate. The permittee
shall take all reasonable steps to
minimize or correct any adverse impact
on the environment resulting from
noncompliance with this permit.
(e) Proper operation and maintenance.
The permittee shall at all times properly
operate and maintain all facilities and
systems cf treatment and control (and
related appurtenances) which are
installed or used by the permittee to .
achieve compliance with the conditions
of this permit. Proper operation and
maintenance includes effective
performance, adequate funding,
adequate operator staffing and training,
and adequate laboratory and process
controls, including appropriate quality
assurance procedures. This provision
requires the operation of back-up or
auxiliary facilities or similar systems
only when necessary to achieve
compliance with the conditions of the
permit.
ff) Permit actions. This permit may be
modified, revoked and reissued, or
terminated for cause: The filing of a
request by the permittee for a permit
modification, revocation and reissuance,
or termination, or a notification of
planned changes or anticipated
noncompliance does not stay any permit
conditions.
(g) Property rights. This permit does
not convey any property rights of any
sort, or any exclusive privilege. •
(h) Duty to provide information. The
permittee shall furnish to the Director
within a reasonable time, any
information which the Director may
request to determine whether cause
exists for modifying, revoking and
•reissuing, of terminating this permit or
to determine compliance with this
permit. The permittee shall also furnish
to the Director, upon request copies of
records required to be kept by this
permit
(i) Inspection and entry. The permittee
shall allow the Director, or an
authorized representative, upon the
presentation of credentials and other
documents as may be required by law,
to:
(1) Enter upon the permittee's
premises where a regulated facility or
activity is located or conducted, or
where records must be kept under the
conditions of ibis permit;
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14213
(2) Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit:
(3) Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment), .
practices, or operations regulated or
required under this permit and
(4} Sample or monitor at reasonable
times, for the purposes of assuring
permit compliance "or as otherwise
authorized by the CWA any substances
or parameters at any location.
(j) Monitoring and records. (1]
Samples and measurements taken for
the purpose of monitoring shall be
representative of the monitored activity.
(2) The permittee shall retain records
of all monitoring information, including
all calibration and maintenance records
and all original strip chart recordings for
continuous monitoring instrumentation.
copies of all reports required by this
permit, and records of all data used to
complete the application for this permit.
for a period of at least 3 years from the
date'of the sample, measurement report
or application. This period may be
extended by request of the Director at
any time.
(3) Records of monitoring information
shall include:
(i) The date, exact place, and time of
sampling or measurements;
(ii) The individual(s) who performed
the sampling or measurements;
(iii) The date(s) analyses were
performed:
(iv) The individual(s) who performed
the analyses;
(v) The analytical techniques or
methods used; and
(vi) The results of such analyses.
(k) Signatory requirement. All
applications, reports, or information
submitted to the Director shall be signed
and certified. (See § 233.4.)
(I) Reporting requirements.
(1) Planned changes. The permittee
shall give notice to the Director as soon. 4
as possible of any planned physical
alterations or additions to the permitted
facility.
(2) Anticipated noncarapliance. The
permittee shall give advance notice to
the Director of any planned changes in
the permitted facility or activity which
may result in noncompliance with
permit requirements.
(3) Transfers. This permit is not
transferable to any person except after
notice to the Director. The Director may
require modification or revocation and
reissuance of the permit tb change the
name of the permittee and incorporate
such other requirements as may'be •
necessary under the Act (See § 233.13;
in some cases, modification or
revocation and reissuance is
mandatory.)
(4) Monitoring reports. Monitoring
results shall be reported at the intervals
specified elsewhere in this permit
(5) Compliance schedules. Reports of
compliance or noncompliance with, or
any progress reports on. interim and
final requirements contained any
compliance schedule of this permit shall
be submitted no later than 14 days
following each schedule date.
(6) Twenty-four hour reporting. The
permittee shall report any
noncompliance which may endanger
health or the environment. Any
information shall be provided orally
within 24 hours from the time the
permittee beeomes.awaie.of.ihe......
circumstances. A written submission
shall also be provided within 5 days of *
the time the permittee becomes aware of
the circumstances. The written
submission shall contain a description
of the noncompliance and its cause: the
period of noncompiiance, including
exact dates and times, and if the
noncompliance has not been corrected.
the anticipated time it is expected to
continue; and steps taken or planned to
reduce, eliminate, and prevent
reoccurrence of the noncompliance.
(7) Other noncompliance. The
permittee shall report all instances of
noncompliance not reported under
paragraphs (1) (1). (4). (5), and (6) of this
section, at the time monitoring reports
are submitted. The reports shall contain
the information listed in paragraph (1)(6)
of this section.
(8) Other information. Where the
permittee becomes aware that it failed
to submit any relevant facts in a permit
application, or submitted incorrect
information in a permit application or in
any report to the Director, it shall
promptly submit such facts or
information.
(m) The permittee need not comply
with the conditions of this permit.to the
" extent-aad&Mke duration ihat.such
noncompliance is authorized in an
emergency permit (See § 233.38.)
(n) Activities are -not conducted under
the authority of this permit if they are
not specifically identified and
authorized in this permit
(o) The permittee shall maintain the
authorized work areas in good condition
and in accordance with the
requirements contained in this permit
(p) If any applicable water quality
standards are revised or modified, or if
a toxic effluent standard or prohibition
under CWA section 307(a) is established
for a pollutant present in the permittee's •
discharge and is more stringent than any
limitation in the permit the permit shall
be promptly modified, to conform to the
standard, limitation or prohibition.
§ 233.8 Establishing permit conditions.
(a) In addition to conditions required
in all permits (§ 233.7), the Director shall
establish conditions in permits, as
required on a case-by-case basis, under'
§ 233.9 (duration of permits), 233.10{a)
(schedules of compliance), and 233.11
(monitoring).
(b)(l) In addition the Director shall
establish conditions in permits, as
required on a case-by-case basis, to
provide for and assure compliance with
all applicable requirements of the CWA
and appropriate regulations.
(2) An applicable requirement is a
State statutory or regulatory
requirement which takes effect prior to
final administrative disposition of a
permit, or prior to the modification or
revocation and reissuance of a permit,
to the extent allowed in § 233.14.
(3) New or reissued permits, and to
the extent allowed under § 233.14
modified or revoked and reissued
permits, shall incorporate each of the
applicable requirements referenced in
§ 233.8.
(c) Each permit shall include
conditions meeting the following
requirements, when applicable;
(1) Identification. A specific
identification and description of the
authorized activity, including:
(i) The name and address of the
permittee and the permit application
identification number
(ii) The use or purpose of the
discharge;
(iii) The type and quantity of the
materials to be discharged;
(iv) Any structures proposed to be .
erected on fill material; and
• (v) The location and boundaries of the
discharge site(s), including a detailed
sketch and the name and description of
affected State regulated waters.
(2) Environmental guidelines.
Provisions ensuring that the discharge
will be conducted in compliance with
the environmental guidelines issued
under section 404(b)(l) of CWA (40 CFR
Part 220). including conditions to ensure
that the discharge will be conducted in a
manner which minimizes adverse
impacts upon the physical, chemical.
and biological integrity of the waters of
the United States, such as requirements
for restoration or mitigation.
(3) Water quality standards. Any
requirements necessary to comply with
water quality standards established
under applicable Federal or State law. If
an applicable water quality standard is
promulgated after the permit is issued.' it
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14214 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
shall be modified as provided in
§ 233.7(p).
(4) Toxic effluent guidelines or
prohibitions. Requirements necessary
to comply with any applicable toxic
effluent standard or prohibition under
section 307(a) of CWA or applicable
State or local law. If an applicable toxic
effluent standard or prohibition is
promulgated after the permit is issued, it
shall be modified as provided in
§ 233.7(p).
(5) Best Management Practices.
Applicable BMPs approved by a
Statewide CWA section 208(b)(4)
agency as provided in the agreement
described in § 233.41(a)(l).
(6) General permits. Any conditions
necessary for general permits as
required under § 233.37.
\?)Commencement'ofworkl'K
specific date on which the permit shall
automatically expire, unless previously
revoked and reissued or modified or
continued, if the authorized work has
not been commenced.
(d) Incorporation. All permit
conditions shall be incorporated either
expressly or by reference. If
incorporated by reference, a specific
citation to the applicable regulations or
requirements must be given in the
permit
§ 233.9 Duration of permits.
[a] Section 404 permits shall be
effective for a fixed term not to exceed 5
years.
(b) Except as provided in § 233.5, the
term of a permit shall not be extended
by modification beyond the maximum
duration specified in this section.
(c) The Director may issue any permit
for a duration that is less than the full
allowable term under this section.
§ 233.10 Schedules of compliance.
(a] General. The permit may, when
appropriate, specify a schedule of
compliance leading to compliance with
the CWA and appropriate regulations.
(1) Time for compliance. Any
schedules'of compliance under this
section shall require compliance as soon
as possible.
(2) Interim dates. Except as provided
in paragraph (b)(l)(ii) of this section, if a
permit establishes a schedule of
compliance which exceeds 1 year from
the-date of permit issuance, the schedule
shall set forth interim requirements and
the dates for their achievement
(i) The time between interim dates
shall not exceed 1 year.
(ii) If the time necessary for
completion of any interim requirement
(such as the construction of a control
facility) is more than 1 year and is not
readily divisible into stages for
completion, the permit shall specify
interim dates for the submission of
reports of progress toward completion of
the interim requirements and indicate a
projected completion date.
(3) Reporting. The permit shall be
written to require that no later than 14
days following each interim date and
the final date of compliance, the
permittee shall notify the Director in
writing of its compliance or
noncompliance with the interim or final
requirements, or submit progress reports
if paragraph (a)(l)(ii) of this section is
applicable.
§ 233.11 Requirements for recording and
reporting of monitoring results.
All permits shall specify:
(a) Requirements concerning the'
proper use. maintenance,'and '
installation, when appropriate, of
monitoring equipment or methods
(including biological monitoring
methods when appropriate);
(b) Required monitoring including
type, intervals, and frequency sufficient
to yield data which are representative of
the monitored activity including, when
appropriate, continuous monitoring;
(c) Applicable reporting requirements
based upon the impact of the regulated
activity.
§233.12 Effect of a permit
(a) Compliance with a permit during
its term constitutes compliance, for
purpose of enforcement, with sections
301, 307. and 403 of CVVA. However, a
permit may be modified, revoked and
reissued, or terminated during its term
for cause as set forth in § § 233.14 and
233.15.
(b) The issuance of a permit does not
convey any property rights of any sort
or any exclusive privilege.
§233.13 Transfer of permits.
Transfer by modification. A permit
may be transferred by the permittee to a
• new owner or operator only if the permit
has been modified or revoked and
reissued, .(undfijj 23344feK2).oi ajninor.
modification made (under § 233.16(d)) to
identify the new permittee and
incorporate such other requirements as
may be necessary under the Act
J 233.14 Modification or revocation and
reissuane* of permits.
When the Director receives any
information (for example, inspects the
facility, receives information submitted
by the permittee as required in the
permit (see 5 233.7), receives a request
for modification or revocation and
reissuance under § 124.5 of this chapter,
or conducts a review of the permit file)
he or she may determine whether or not
one or more of the causes listed in
paragraphs (a) and (b) of this section for
modification or revocation and
reissuance or both exist If cause exists,
the Director may modify or revoke and
reissue the permit accordingly, subject
to the limitations of paragraph (c) of this
section, and may request an updated
application if necessary. When a permit
is modified, only the conditions subject
to modification are reopened. If a permit
is revoked and reisued, the entire permit
is reopened and subject to revision and
the permit is reissued for a new term.
See § 124.5(c)(2). If cause does not exist
under this section or § 233.16, the
Director shall not modify or revoke and
reissue the permit If a permit
modification satisfies the criteria in
§ 233.16 for "minor modifications" the
permit may be modified without a draft
permit or public review. Otherwise, a
draft permit must be prepared (if
required under § 233.39(b)(l)), and
procedures of an approved State. -
program followed.
(a) Causes for modification. The
following are causes for modification
but not revocation and reissuance of
permits. The following may be causes
for revocation and reissuance as well as
modification when the permittee
requests or agrees.
(1) Alterations. There are material and
substantial alterations or additions to
the permitted facility or activity which
occurred after permit issuance which
justify (he application of permit
conditions that are different or absent in
the existing permit
(2) Information. The Director has
received information. Permits may be
modified during their terms for this
cause only if the information was not
available at the time of permit issuance
(other than revised regulations,
guidance, or test methods) and would
have justified the application of
different permit conditions at the time of
issuance. For 404 general permits
(§ 233.37) this cause shall include any
"information indicating that cumulative
effects on the environment are
unacceptable.
(3) New regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of amended standards or
regulations or by judicial decision after
the permit was issued. Permits may be
modified during their terms for this
cause only as follows: (i) For
promulgation of amended standards or
~ regulations, when:
(A) The permit condition requested to
be modified was based on an EPA
approved or promulgated water quality
standard; and
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Federal Register / Vol. 48, No. 64 / Friday. April 1, 1983 / Rules and Regulations
14215
(B) EPA has revised, withdrawn, or
modified that portion of the regulation
on which the permit condition was
based, or has approved a State action
with regard to a water quality standard
on which the permit condition was
based: and
(C) A permittee requests modification
in accordance with § 124.5 within ninety
(90] days after Federal Register notice of
the action on which the request is based.
(ii) For judicial decisions, a court of
competent jurisdiction has remanded
and stayed EPA promulgated standards
if the remand and stay concern that
portion of the standards on which the
permit condition was based and a
request is filed by the permittee in
accordance with § 124.5 within ninety
(90) days of judicial remand.
(4) Compliance schedules. The
Director determines good cause exists
for modification of a compliance
schedule, such as an act of God. strike,
flood, or material shortage or other
events over which the permittee has
little or no control and for which there is
no reasonably available remedy.
(5) The Director shall modify a permit
to reflect toxic effluent standards or
prohibitions or water quality standards.
under the "reopener" condition of
§ 233.7(d).
(b) Causes for modification or
revocation and reissuance. The^
following are causes to modify or.
alternatively, revoke and reissue a
permit:
(1] Cause exists for termination under
§ 233.15. and the Director determines
that modification or revocation and
reissuance is appropriate.
(2) The Director has received
notification (as required in the permit.
see 5 233.7(1}(3)) of a proposed transfer
of the permit
§ 233.15 Termination of permits.
The following are causes for
terminating a permit during its term, or
for denying a permit renewal
application: ' '
(a) Noncompliance by the permittee
with any condition of the permit:
(b} The permittee's failure in the
application or during the permit
issuance process to disclose fully all
relevant facts, or the permittee's
misrepresentation of any relevant facts
at any time: or
(c) A determination that the permitted
activity endangers human health or the
environment and can only be regulated
to acceptable levels by permit
modification or termination.
(d) Permits may be modified or>
terminated when there is a change in
any condition that requires either a
temporary or a permanent reduction or
elimination of any discharge controlled
by the permit (for example, plant
closure).
§ 233.16 Minor modifications of permits.
Upon the consent of the permittee, the
Director may modify a permit to make
the corrections or allowances for
changes in the permitted activity listed
in this section, without following the
procedures of Part 124 of this Chapter.
Any permit modification not processed
as a minor modification under this
section must be made for cause and
with Part 124 draft permit and public
notice as required in § 233.14(a). Minor
. modifications may only:
(a) Correct typographical errors:
(b) Require more frequent monitoring
or reporting by the-permittee: • --•
(c) Change an interim compliance date
in a schedule of compliance, provided
the new date is not more than 120 days
after the date specified in the existing
permit and does not interfere with
attainment of the final compliance date
requirement or
(d) Allow for a change in ownership
or operational control of a facility where
the Director determines that no other
change in the permit is necessary.
provided that a written agreement
containing a date for transfer of permit
responsibility, coverage, and liability
between the current and new permittees
has been submitted to the Director.
(e) Extend the term of a State section
404 permit, so long as the modification
does not extend the term of the permit
beyond 5 years from its original
effective date.
§ 233.17 Noncompliance and program
reporting by trie Director.
The Director shall prepare quarterly
and annual reports as detailed below
and shall submit them to the Regional
Administrator.
(a) Quarterly reports for State 404
programs. The Director shall submit
noncompliance reports for section 404
--dischargesspecified under • • *
§ 233.24(f)(l)(i)(AHE) containing the
following information:
(1) Name, location, and permit number
of each noncomplying permittee:
• (2) A brief description and date of
each instance of noncompliance. which
should include the following:
(i) Any unauthorized discharges of
dredged or fill material subject to the
State's jurisdiction or any
noncompliance with permit conditions:
and
(ii) A description of investigations
conducted and of any enforcement
actions taken or contemplated.
(b) Annual report for State 404
programs. The State Director shall
submit to the Regional Administrator an
annual report assessing the cumulative
impacts of the State's permit program on
the integrity of State regulated waters.
This report shall include:
(1) The number and nature of
individual permits issued by the State
during the year. This should include the
locations and types of water bodies
where permitted activities are sited (for
example, wetlands, rivers, lakes, and
other categories which the Director and
Regional Administrator may establish);
[2) The number of acres of each of the
categories of waters in paragraph (b)(l)
of this section which were filled or
which received any discharge of dredge
material during the year (either by
authorized or .unauthorized activities);
(3) The number and nature of permit
applications denied: and permits
modified, revoked and reissued, or
terminated during the year;
(4) The number and nature of permits
issued under emergency conditions, as
provided in § 233.38:
(5) The approximate number of
persons in the State discharging dredged
or fill material under general permits
and an estimate of the cumulative
impacts of these activities.
(c) Schedule. (1) For all quarterly
reports. On the last working day of May.
August, November, and February, the
State Director shall submit to the
Regional Administrator information
concerning noncompliance with State
404 permit requirements by major
dischargers or other dischargers with
the following schedule.
QUARTERS COVERED BY REPORTS ON
NONCOMPLIANCE ev MAJOR DISCHARGERS
[O«i* tor completion ol reports]
January. Fabniary. and March.
Aprt. May. and Jura.
July. August, and Samambar
Octooar. NoMrnbar. and OacamDaf-
May 31.'
August 31.'
FabruaryZa.'
. 'Aapons mustba mar* avateOM to tha public lor nspec-
ton and copying on OKI data.
(2) For all annual reports. The period
for annual reports shall be for the
calendar year ending December 31, with
reports completed and available to the '
public no more than 60 days later.
§ 233.18 Confidentiality of information.
Claims of confidentiality for the
following information will be denied:
(a) The name and address of any
permit applicant or permittee;
(b) Permit applications and permits;
and
(c) Effluent data.
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14218 Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations
Subpart C—State Program
Requirements
§ 233.20 Purpose and scope.
(a) This subpart specifies the
procedures EPA will follow in
approving, revising, and withdrawing
State programs under Section 404 of the
CWA, and the requirements State
programs must meet to be approved by
the Administrator under Section 404.
(b) State submissions for program
approval must be made in accordance
with the procedures set out in this
Subpart. This includes developing and
submitting to EPA a program description
(§ 233.22), an Attorney General's
statement (§ 233.23), a Memorandum of
Agreement with the Regional
Administrator (§ 233.24), and with the
Secretary (§ 233.25).
{c) The substanrive provisions which
must be included in State programs for
them to be approved, including
requirements for permitting, compliance
evaluation, enforcement, public
participation, and sharing of
information, are found in this Part and in
§ 233.26.
(d) Upon submission of a complete
program. EPA wiD conduct a public
hearing, if interest is shown, and
determine whether to approve or
disapprove the program, taking into
consideration the requirements of this
Part, the CWA and any comments 4
received.
(e) The Administrator shall approve
State programs which conform to the
applicable requirements of this Part.
(f) Upon approval of a State program,
the Secretary shall suspend the issuance
of Federal permits for those activities
subject to the approved State program.
(g) Any State program approved by
the Administrator shall at all times be
conducted in accordance with the
requirements of this Part
(h) States are encouraged to
consolidate their permitting activities.
These regulations do not require
consolidation.
(i) Partial State programs are not
allowed under 404. Except as provided
in § 233.35, the State program must
regulate all discharges of dredged or fill
material into State regulated waters.
State section 404 programs are limited
under section 404{g)(l) of CWA to
coverage of such State regulated waters.
See the definition of "State regulated
waters" hi § 233.3. However, in many
cases States will lack authority to
regulate activities on Indian lands. This
lack of authority does not impair a
State's ability to obtain full program
approval in accordance with this Part
i.e., inability of a State to regulate
activities on Indian lands does not
constitute a partial program. The
Secretary will administer the program
on Indian lands if the State does not
seek this authority.
(Note.—States are advised to contact the
United States Department of the Interior,
Bureau of Indian Affairs, concerning
authority over Indian lands.]
(j) Nothing in this Part precludes a
State from:
(1) Adopting or enforcing
requirements which are more stringent
or more extensive than those required
under this Part
(2) Operating a program with a greater
scope of coverage than that required
under this Part. Where an approved
State program has greater scope of
coverage than required by federal law
the additional coverage is not part of the
Federally approved program.
[Note.—State assumption of the Section 404
program is limited to certain waters, as
provided in paragraph (j) of this section. The
federal program operated by the Corps of
Engineers continues to apply to the remaining
waters in the State even after program
approval. However, this does not restrict
States from regulating discharges of dredged
or fill materials into those waters over which
the Secretary retains section 404 jurisdiction.]
§ 233.21 Elements of a program
submission.
(a) Any State that seeks to administer
a program under this Part shall submit
to the Administrator at least three
copies of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the
State requesting program approval;
(2) A complete program description,
as required by § 233.22, describing how
the State intends to carry out its
responsibilities under this Part
(3) An Attorney General's statement
as required by § 233.23;
(4] A Memorandum of Agreement
with the Regional Administrator as
required by § 233.24, and a
Memorandum of Agreement with the
Secretary as.je5juired.by,S 233.25;
(E) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures;
(b) Within 30 days of receipt by EPA
of a State program submission, EPA will
notify the Slate .whether its submission
is. complete. If EPA finds that a State's
submission is complete, the statutory
review period (i.e., die period of time
allotted for formal EPA review of a
proposed State program under the
CWA) shall be deemed to have begun
on the date of receipt of the State's
submission. If EPA finds that a State's
submission is incomplete,'the statutory
review period shall not begin until all
the necessary information is received by
EPA.
(c) If the State's submission is
materially changed during the statutory
review period, the statutory review
period shall begin again upon receipt of
the revised submission.
(d) The State and EPA may extend the
statutory review period by agreement
§ 233.22 Program description.
Any State that seeks to administer a
404 program shall submit a description
of the program it proposes to administer
in lieu of the Federal program under
State law or under an interstate
compact The program description shall
include:
(a) A description in narrative form of
the scope, structure, coverage and
processes of the State program.
(b) A description (including
organization charts) of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the program, including
the information listed below. If more
than one agency is responsible for
administration of a program, each
agency must have statewide jurisdiction
over a class of activities. The
responsibilities of each agency most be
delineated, their procedures for
coordination set forth, and an agency
may be designated as a "lead agency" to
facilitate communications between EPA
and the State agencies Raving program
responsibility. Where the State proposes
to administer a program of greater scope
of coverage than is required by Federal
law, the information provided under this
paragraph shall indicate the resources
dedicated to administering the Federally
required portion of the program. •
(1) A description of the State agency
staff who will carry oat the State
program, including the number.
occupations, and general duties of the
employees. The State need not submit
complete jop descriptions for every
employee carrying out the State
program.
(2) An iteniization of the estimated
costs of establishing and administering
the program for the first two years after
approval, including cost of the
persorumel listed in paragraph (b)(l) of
this section, cost of administrative
support and cost of technical support
(3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money,
available to the State Director for the
first two years after approval to meet
the costs listed in paragraph (b)[2) of
this section, identifying any restrictions
or limitations upon this funding.
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations 14217
(c) A description of applicable State
procedures, including permitting
procedures and any State administrative
or judicial review procedures.
(d) Copies of the permit form(s),
application form(s), and reporting
form(s] the State intends to employ in its
program. State section 404 application
forms must include the information
required by § 233.4 and State section 404
permit forms must include the
information conditions required by
§ 233.7.
(e) A complete description of the
State's compliance tracking and
enforcement program.
(f) A description of State regulated
waters.
[Note.—States should obtain from the
Secretary an identification of those waters of -
the U.S. within the State over which the
Corps of Engineers retains authority under
section 404(g) of CWA.J
(g) A categorization, by type and
quantity, of discharges within the State,
and an estimate of the number of
discharges within each category for
which the discharger must file for a
permit.
(h) An estimate of the number and
percent of activities within each
category for which the State has already
issued a State permit regulating the
discharge.
(i) In accordance with § 233.35(a)(6). a
description of the specific best
management practices requirements
proposed to be used to satisfy the
exemption provisions of section
404{f)(l)(E) of CWA for construction or
maintenance of farm roads, forest roads.
or temporary roads for moving mining
equipment. '
(j) A description of how the State
section 404 agency(ies) will interact with
other State and local agencies.
(k) A description of how the State will
coordinate its enforcement strategy with
that of the Corps of Engineers and EPA.
(1) Where more than one agency
- within a State has responsibility for
administering the State program:
(1) A memorandum of understanding
among all the responsible State agencies
which establishes:
(i) Procedures for obtaining and .
exchanging information necessary for
each agency to determine and assess the
cumulative impacts of all activities
authorized under the State program:
(ii) Common reporting requirements;
and
(iii) Any other appropriate procedures
not inconsistent with section 401 of the
CWA or these regulations:
(2) A description of procedures for
coordinating compliance monitoring and
enforcement distributing among the
responsible agencies information
received from applicants and permittees.
and issuing reports required by section
404 of CWA or these regulations.
(m) Where several State 404 permits
are required for a single project, a
description of procedures for
(1) Ensuring that all the necessary
State 404 permits are issued before any
of the permits go into effect; and
(2) Concurrent processing and. where
appropriate, joint processing of all of the
necessary State 404 permits.
§ 233.23 Attorney General's statement
(a) Any State that seeks to administer
a 404 program shall submit a statement
from the State Attorney General (or the
attorney, for. those.Statejor.inteistale
agencies which have independent legal
counsel) that the laws of the State, or an
interstate compact, provide adequate
authority to carry out the program
described under § 233.22 and to meet the
requirements of this Part. This statement
shall include citations to the specific
statutes, administrative regulations, and.
where appropriate, judicial decisions
which demonstrate adequate authority.
State statutes and regulations cited by
the State Attorney General or
independent legal counsel shall be in the
form of lawfully adopted State statutes
and regulations at the time the
statement is signed and shall be fully
effective by *'-.» time the program is
approved. T. ^alify as "independent
legal counse; .ne attorney signing the
statement required by this section must
have full authority to independently
represent the State agency in court on
all matters pertaining to the State
program.
(b) When a State seeks authority on
Indian lands, the statement shall contain
an appropriate analysis of the State's
autocracy.
(c)(l) The State Attorney General's
statement shall contain an analysis of
§ 233.24 Memorandum of Agreement with
the Regional Administrator.
(a) Any State that seeks to administer
a 404 program shall submit a
Memorandum of Agreement. The
Memorandum of Agreement shall be
executed by the State Director and the
Regional Administrator and shall
become effective when approved by the
Administrator. In addition to meeting
the requirements of paragraph (b) of this
section, the Memorandum of Agreement
may include other terms, conditions, or
agreements consistent'with this Part and
relevant to the administration and
enforcement of the State's regulatory
program. The Administrator shall not
approve any Memorandum of
Agreement which contains provisions
which/restrict EPA's statutory oversight
responsibility.
(b) The Memorandum of Agreement
shall include the following:
(1) Provisions specifying the frequency
and content of reports, documents and
other information which the State is
required to submit to EPA. The State
shall allow EPA to routinely review
State records, reports, and files relevant
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
where appropriate. These procedures
shall implement the requirements of
§ 233.39.
(2) Provisions on the State's
compliance monitoring and enforcement
program, including:
(i) Provisions for coordination of
compliance monitoring activities by the
Stat and by EPA. These may specify the
basis on which the Regional
Administrator will select facilities or
activities within the State for EPA
inspection. The-Regional Administrator
will normally notify the State at least 7
days before any such inspection; and
(ii) Procedures to assure coordination
of enforcement activities.
(3) Provisions for modification of the
State law regarding the prohibition on _,,—£
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14218 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
specify in the MOA the basis for such
detailed agreements, e.g.. a provision in the
MOA specifying that EPA will select facilities
in the State for inspection annually as part of
the State/EPA agreement.]
(d)(l) The Memorandum of Agreement
with the Regional Administrator shall
also specify:
(i) The categories (including any class,
type, or size within such categories] of
discharges for which EPA will waive
review of State-issued permit
applications, draft permits, and
proposed general permits. While the
Regional Administrator and the State.
after consultation with the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service, may agree to waive
Federal review of certain "classes or
categories" of permits, no waiver may
be granted for the following activities:
(A) Discharges which may affect the
waters of a State other than the one in
which the discharge originates;
(B) Major discharges;
(C) Discharges into critical areas
established under State or Federal law
including fish and wildlife sanctuaries
or refuges. National and historical
monuments,, wilderness areas and
preserves. National and State parks.
components of the National Wild and
Scenic Rivers system, the designated
critical habitat of threatened or
endangered species, and sites identified
or proposed under the National Historic
Preservation Act
(D) General permits;
(E) Discharges known or suspected to
contain toxic pollutants in toxic
amounts under section 307(a)(l) of CWA
or hazardous substances in reportable
quantities under section 311 of CWA.
(ii) A definition of major discharges.
(2) Where more than one agency
within a State has responsibility for
administering the program, all of the
responsible agencies shall be parties to
• the Memorandum ,of Agreement. -• -
(e) Whenever a waiver is granted
under paragraph (d)(l) of this section,
the Memorandum of Agreement shall
contain:
(1) A statement that the Regional •
Administrator retains the right to
terminate the waiver as to future permit
actions, in whole or in part at any time
by sending the State Director written
notice of termination; and
(2) A statement that the State shall
supply EPA, the Corps of Engineers, the
U.S. Fish and Wildlife .Service, and the
National Marine Fisheries Service
(unless receipt is waived in writing)
with copies of final permits.
§ 233.25 Memorandum of Agreement with
the Secretary.
Before a State program is approved
under this Part, the State shall enter into
a Memorandum of Agreement with the
Secretary. Where more than one agency
within a State has responsibility for
administering the State program, all of
the responsible agencies shall be parties
to the Memorandum of Agreement. The
Memorandum of Agreement shall
include:
(a) A description of State regulated
waters, as identified by the Secretary.
(b) Where an agreement is reached,
procedures for joint processing of
permits for activities which require both
a section 404 permit from the State and
a section 9 or 10 permit from the
Secretary under the River and Harbor
Act of 1899, provided such procedures
satisfy the requirements of this Part.
(c) An identification of those general
permits, if any, issued by the Secretary,
the terms and conditions of which the
State intends to administer and enforce
upon receiving approval of its program
and a plan for transferring responsibility
for these permits to the State, including
procedures for the prompt transmission
from the Secretary to the State Director
of relevant information not already in
the possession of the State Director
including support files for permit
issuance, compliance reports and
records of enforcement actions. In many
instances States, will lack the authority
to directly administer permits by the
Federal government However.
procedures authorized under State law
may be established to transfer
responsibility for these permits.
(d) Procedures whereby the Secretary
will, upon program approval transfer to
the State pending section 404 permit
applications and other relevant
information, not already in the
possession of the State Director.
(e) Procedures to ensure that the State
Director will not issue a permit on the
•basis-of-anyapplication received from " "
the Secretary which the Secretary has
identified as incomplete or otherwise
deficient until the State Director
receives information sufficient to correct
the deficiency.
(f} A provision that the State shall not •
issue any section 404 permit for a
discharge which, in the judgment of the
Secretary after consultation with the .
Secretary of the Department in which
the Coast Guard is operating, would
substantially impair anchorage or
navigation.
(g) Those classes or categories, if any,
of proposed State permits for which the
Secretary waives the right to review.
(h) Other matters not inconsistent
with this Part that the Secretary and the
State deem appropriate.
[Note.—For example, where a State permit
program includes coverage of those
traditionally navigable waters in which oniy
the Secretary may issue section 404 permits
(by virtue of section 404{g)(1) of CWA), the
State is strongly encouraged to establish in
this MOA procedures for joint processing of
Federal and State permits, including joint
public notices and public hearings.]
§ 233.26 Requirements for permitting.
(a) All State 404 programs must have
legal authority to implement each of the
following provisions and must be
administered in conformance with each;
except that States are not precluded
from omitting or modifying any
provisions to impose more stringent
requirements:
(1) § 233.4—(Application for a permit).
(2) § 233.6—(Signatories);
(3) § 233.7—{Applicable permit "
conditions);
(4) § 233.8—(Establishing permit
conditions);
(5) § 233.9—(Duration);
(6) § 233.10—(Schedules of
compliance);
(7) § 233.11—(Monitoring
requirements);
(8) § 233.12—(Effect of permit);
(9) § 233.13—(Permit transfer);
(10) § 233.14—(Permit modification);
(11) § 233.15—{Permit termination);
(12) § 233.17—{Noncompliance
reporting);
(13) § 233.18—{Confidential
information);
(14) § I24.3(a)—{Application for a
permit);
(15) § 124.5(a), (c). (d). and (f)—
(Modification of permits) except as
provided in § 233.39(b)(2);
(16) § 124.6(a), (c). (d), and (e)—{Draft
permit) except as provided in
§ 233.39(bH2);
(17) § 124.8—(Fact sheets) except as
provided in § 233.39(b)(2);
"""•(18) 5 124.10(aJ(l)(iir, (a)(l)(iii),
(a)(l)(v). (b). (c), (d). and (e)—(Public
notice);
(19) § 124.11—(Public comments and
requests for hearings);
(20) § 124.12(a>—(Public hearings);
and
(21) § 124.17(a) and (c)—(Response to
comments).
[Note.—States need not implement
provisions identical to the above listed
provisions. Implemented provisions must
however, establish requirements at least as
stringent as the corresponding listed
provisions. While States may impose more
stringent requirements, they may not make
one requirement more lenient as a tradeoff
for making another requirement more
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14219
stringent for example, by requiring that
public bearings be held prior to issuing any
permit while reducing the amount of advance
notice of such a hearing. State programs may.
if they have adequate legal authority,
implement any of the provisions of EPA's
other permit regulations.]
(b}(l) State 404 permit programs shall
have an approved continuing planning
process under 40 CFR 35.1500 and shall
assure that the approved planning
process is at all times consistent with
CWA.
(2) State 404 programs shall ensure
that any board or body which approves
all or portions of permits shall not
include as a member any person who
receives, or has during the previous 3
years received, a significant portion of
income directly or indirectly from permit <•
holders or applicants for a permit
(i; For the purposes of this
subparagraph:
(A) "Board or body" includes any
individual, including the Director, who
has or shares authority to approve all or
portions of permits either in the first
instance, as modified or reissued, or on
appeal.
(B) "Significant-portion of income"
means 10 percent or more of grass
personal income for a calendar year.
except that it means 50 percent or more
of gross personal income for a calendar
year if the recipient is over 60 years of
age and is receiving that portion under
retirement pension, or similar
arrangement.
(C) "Permit holders or applicants for a
permit" does not include any
department or agency of a State
government such, as a Department of
Parks or a Department of Fish and
Wildlife.
(D) "Income" includes retirement
benefits, consultant fees, and stock
dividends.
(ii) For the purposes of this..
subparagraph, income is not received
"directly or indirectly from permit
holders, or .applicants for a permit" when
it is derived from mutual fundpayments.
or from other diversified investments for
which the recipient does not know the
identity of the primary sources of
income.
§ I33J7 Requirements (or compliance
•valuation programs.
(a) State programs shall have
procedures for receipt evaluation.
retention and investigation for possible
enforcement of ell notices and reports
required of permittees and other
regulated persons (and for investigation
for possible enforcement of failure to
submit these notices and reports).
(b) State programs shall have
inspection and surveillance procedures
to determine, independent of
information supplied by regulated
persons, compliance or noncompliance
with applicable program requirements.
The State shall maintain:
(1) A program which is capable of
making comprehensive surveys of all
facilities and activities subject to the
State Director's authority to identify
persons subject to regulation who have
failed to comply with permit application
or other program requirements. Any
compilation, index or inventory of such
facilities and activities shall be made
available to the Regional Administrator
upon request;
(2) A program for periodic inspections
of the facilities and activities subject to
regulation.'These inspections'shall be-
conducted in a manner designed to:
(i) Determine compliance or
noncompliance with issued permit
conditions and other program
requirements:
(ii] Verify the accuracy of information
submitted by permittees and other
regulated persons in reporting forms and
other forms supplying monitoring data;
and
(iii) Verify the adequacy of sampling,
monitoring, and other methods used by
permittees and other regulated persons
to develop that information;
(3) A program for investigating
infon. ation obtained regarding
violations of applicable program and
permit requirements; and
(4) Procedures for receiving and
ensuring proper consideration of
information submitted by the public
about violations. Public effort in
reporting violations shall be encouraged,
and the State Director shall make
available information on reporting
procedures.
(c) The State Director and State
officers engaged in compliance
evaluation shall have authority to enter
any site or premises subject "to
regulation or in which records relevant
to program operation are kept in order
to copy any records, inspect, monitor or
otherwise investigate compliance with
' the State program including compliance
with permit conditions and other
program requirements. States whose law
requires a search warrant before entry
must conform with this requirement.
(d) Investigatory inspections shall be
conduced, samples snail be taken and
other information snail be gathered in a
manner (e.g., using proper "chahvof
custody" procedures) that will produce
evidence admissible in an enforcement
proceeding or in court
§ 233.28 Requirements, (or enforcement
authority.
(a) Any State agency administering a
program shall have available the
following remedies for violations of
State program requirements:
(1) To restrain immediately and
effectively any person by order or by
suit in State court from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or the environment:
[Note. —This subparagraph requires that
States have a mechanism (e.g.. an
administrative cease and desist order or the
ability to seek a temporary restraining order]
to stop any unauthorized activity
endangenng public health or the
environment.)
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement, including permit
conditions, without the necessity of a '
prior revocation of the permit;
(3) To immediately and effectively
halt or remove any unauthorized
discharges of dredged or fill material.
including the authority to issue a cease
and desist order, interim protection
order, or restoration order to any person
responsible for. or involved in, an
unauthorized discharge.
(4) To assess or sue to recover in court
civil penalties and to seek criminal
remedies, including fines, as follows:
(i) (A) Civil penalties shall be
recoverable for the violation of any
section 404 permit condition; any section
404 filing requirement: any duty to allow
or carry out inspection, entry or
monitoring activities; or. any regulation
or orders issued by the State Director.
Such penalties shall be assessable in at
least the amount of $5,000 per day for
each violation.
(B) Criminal fines shall be recoverable
against any person who willfully or
negligently violates any applicable
.. siandacds.oj.limitatians; anyjection 404
permit condition; or any section 404
filing requirement Sach fines shall be
assessable in a: least the amount of
$10.000 per day for each violation.
[Note.—States which provide the criminal
remedies based on "criminal negligence."
"gross negligence" or strict liability satisfy
the requirement of paragraph (aj(3}(i}(3) of
this section.]
*
(C) Criminal fines shall be recoverable
against any person who knowingly
makes any false statement
representation or certification in any
section 404 form, in any notice or report
required by a section 404 permit, or who
knowingly renders inaccurate any
monitoring device or method required to
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14220 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
be maintained by the Director. Such
fines shall be recoverable in at least the
amount of 55,000 for each instance of
violation.
[Note.—In many States the State Director
will be represented in State courts by the
State Attorney General or other appropriate
legal officer. Although the State Director need
not appear in court actions, he or she should
have power to request that any of the above
actions be brought.]
(b)(l) The maximum civil penalty or
criminal fine (as provided in paragraph
(a)(4) of this section] shall be assessable
for each instance of violation and, if the
violation is continuous, shall be
assessable up to the maximum amount
for each day of violation.
(2] The burdsn of proof and degrees of
knowledge or intent required under -
State law for establishing violations
under paragraph (a)(4) of this section,
shall be no greater than the burdsn of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the CWA;
[Note.—For example, this requirement is
not met if State law includes mental state as
an element of proof for civil violations.]
(c] Any civil penalty assessed, sought
or agreed upon by the State Director
under paragraph (a)(4) of this section
shall be appropriate to the violation. A
civil penalty agreed upon by the State
Director in settlement of administrative
or judicial litigation may be adjusted by
a percentage which represents the
likelihood of success in establishing the
underlying violations] in such litigation.
If such civil penalty, together with the
costs of expeditious compliance, would
be so severely disproportionate to the
resources of the violator as to jeopardize
continuance in business, the payment of
the penalty may be deferred or the
penalty may be forgiven in whole, or
part, as circumstances warrant. In the
• case of a penalty for a failure to meet a
statutory or final permit compliance
deadline, "appropriate to the violation"
as used in this paragraph, means a
penalty which is equal to:
(1) An amount appropriate to redress
the harm or risk to public health or the
environment; plus
(2] An amount appropriate to remove
the economic benefit gained or to be
gained from delayed compliance; plus
(3) An amount appropriate as a
penalty for the violator's degree of
recalcitrance, defiance, or indifference
to requirements of the law; plus
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costs thrust upon the public; minus
(5) An amount, if any, appropriate to
reflect any part of the noncompliance
attributable to the government itself;
and minus
(6] An amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violator's control (e.g., floods, fires).
[Note.—In addition to the requirements of
this paragraph, the State may have other
enforcement remedies. The following
enforcement options, while not mandatory,
are highly recommended:
Procedures for assessment by the State of
the costs of investigations, inspections, or
monitoring surveys which lead to the
establishment of violations;
Procedures which enable the State to
assess or to sue any persons responsible for
unauthorized activities for any expenses
incurred by the State in removing, correcting
or terminating any adverse effects upon
human health and the environment resulting
from the nnauthcriztJd'aictivlty. whether or
not accidental:
Procedures which enable the State to sue
for compensation for any loss or destruction
of wildlife, fish or aquatic life, or their
habitat, and for any other damages caused by
unauthorized activity, either to the Sla.e or to
any residents of the Slate who are directly
aggrieved by the unauthorized activity, or
both; and
Procedures for the administrative
assessment of penalties by the Director.]
(d) Any State administering a program
shall provide for public participation in
the State enforcementprocess by
providing either
(1) Authority which allows
intervention as of right in any civil or
administrative action to obtain remedies
specified in paragraphs (a)(l), (2), (3), or
(4] of this section by any citizen having
an interest which is or may be adversely
affected; or
(2) Assurance that the State agency or
enforcement authority will:
(i) Investigate and provide written
responses to all citizen complaints
submitted pursuant to the procedures
specified in § 233.27(b](4);
(ii) Not oppose intervention by any
citizen when permissive intervention
may be authorized by statute, rule, or
regulation; and ' ,.
—(ilij Publish notice of and provide at
least 30 days for public comment on any
proposed settlement of a State
enforcement action.
regulations in 40 CFR Part 2. If EPA
obtains from a State information that is
not claimed to be confidential, EPA may
make that information available to the
public without further notice.
(b) EPA shall furnish to States with
approved programs the information in
its files not submitted under a claim of
confidentiality which the State needs to
implement its approved program. EPA
shall furnish to States with approved
programs information submitted to EPA
under a claim of confidentiality, which
the State needs to implement its
approved program subject to the
conditions in 40 CFR Part 2.
§ 233.30 Coordination with other
programs.
fa} Issuance of State 404 permits may
be coordinated with issuance of RCRA,
UIC, and NPDES permits whether they
are controlled by the State or EPA. See
§ 124.4.
(b) The State Director of any
approved 404 program which may affect
the planning for and development of
hazardous waste management facilities
and practices shall consult and
coordinate with agencies designated
under section 4006(b) of RCRA [40 CFR
Part 255] as responsible for the
development and implementation of
State solid waste management plans
under section 4G02(b) of RCRA (40 CFR
Part 256).
§ 233.29 Sharing of information.
(a) Any information obtained or used
in the administration of a State program
shall be available to EPA upon request
without restriction. If the information
has been submitted to the State under a
claim of confidentiality, the State must
submit the claim to EPA when providing
information under this section. Any
information obtained from a State and
subject to a claim of confidentiality will
be treated in accordance with the
§ 233.31' Approval process.
[a] Within 10 days of receipt of a
complete State section 404 program
submission under § 233.21 of this Part.
the Administrator shall provide copies
of the State's submission to the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service.
(b) After determining that a State
program submission is complete, EPA
shall publish notice of the State's
application in the Federal Register, and
—-in enough'of the largest newspapers in
the State to attract Statewide attention,
and shall mail notice to persons known
to be interested in such matters.
including all persons on appropriate
State. EPA Corps of Engineers, U.S. Fish
and Wildlife Service, and National
Marine Fisheries Service mailing lists
and all permit holders and applicants
within the Stats. This notice shall:
(1) Provide a comment period of not
less than 45 days during which
interested members of the public may
express their views on the State
program;
(2] Provide for a public hearing within
the State to be held no less than 30 days
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Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations 14221
after notice of the hearing is published
in the Federal Register;
(3) Indicate the cost of obtaining a
copy of the State's submission;
(4) Indicate where and when, the
State's submission may be reviewed by
the public;
(5) Indicate whom an interested
member of the public should contact
with any questions; and
(6) Briefly outline the fundamental
aspects of the State's proposed program.
and the process for EPA review and
decision.
(c] Within 90 days of receipt of a
complete program submission under
§ 233.21, the Corps of Engineers, the U.S.
Fish and Wildlife Service, and the
National Marine Fisheries Service shall
submit any comments on tee State
program.
(d) Within 120 days of the receipt of a
complete program submission under
§ 233.21, the Administrator shaii
approve or disapprove the program
based on the requirements of tr.is Part
and of CWA and taking into
consideration all comments received. A
responsiveness summary shall be
prepared by the Regional Office which
identifies the public participation
activities conducted, describes the
matters presented to the public.
summarizes significant comments
received, and explains the Agency's
response to these comments. The
Administrator snail respond individually
to comments received from the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service.
(e) If the Administrator approves the
State's section 404 program he or she
shall notify the State and the Secretary
and publish public notice in the Federal
Register. The Secretary shall suspend
the issuance of section 404 permits by
the Corps of Engineers within the State.
except for those waters specified in
section 404(g)(l) of CWA and not
identified in the program description
under 233.22(h)(l) as State regulated. ......
waters.
(f) If the Administrator disapproves
the State program he or she shall notify
the State of the reasons for the
disapproval and of any revisions or
modifications to the State program
which are necessary to obtain approval.
§23032 Procedures tor revision of State
programs.
(a) Either EPA or the approved State
may initiate program revision. Program
revision may be necessary when the
controlling Federal or State statutory or
regulatory authority is modified or
supplemented. The State shall keep EPA
fully informed of any proposed
modifications to its basic statutory or
regulatory authority, its forms.
procedures, or priorities.
(b) Revision of a State program shall
be accomplished as follows:
(1) The State shall submit a modified
program description. Attorney General's
statement. Memorandum of Agreement,
or such other documents as EPA
determines to be necessary under the
circumstances.
(2) Whenever EPA determines that the
proposed program revision is
substantial, EPA shall issue public
notice and provide an opportunity to
comment for a period of at least 30 days.
The public notice shall be mailed to
interested persons and shall be
published in the Federal Register and in
enough.of the largesbnewspapers-'tn the—
State to provide Statewide coverage.
The public nonce shall summarize the
proposed revisions and provide for the
opportunity to reouest a public hearing.
Such a hearing will be held if there is
significant public interest based on
requests received.
(3) The Administrator shall approve or
disapprove revisions based on the
requirements of this Part and of the
CWA.
(4) A program revision shall become
effective upon the approval of the
Administrator. Notice of approval of any
substantial program revision shall be
published in the Federal Register. Notice
of approval of non-substantial program
revisions may be given by a letter from
the Administrator to the State Governor
or his designee.
(c) States with approved programs
shall notify EPA whenever they
proposed to transfer all or part of any
program from the approved State agency
to any other State agency, and shall
identify any new division of
responsibilities among the agencies'
involved. The new agency is not
authorized to administer the program
until approved by the Administrator
under paragraph (b) of this section.
•-• Organizational rharts required under
§ 233.22fb) shall be revised and
resubmi:!sc.
(a) Whenever the Administrator has
reason to believe the circumstances
have changed with respect to a State
program, he may request, and the State
shall provide, a supplemental Attorney
General's statement, program
description, or such ether documents or
information as are necessary.
(e) The Regional Administrator shall
consult with the Corps of Engineers, the
U.S. Fish and Wildlife Service, and the
National Marine Fisheries Service
regarding any substantial program
revision, and shall consider their
recommendations prior to approval of
any such revision.
§ 233.33 Criteria for withdrawal of State
programs.
(a) The Administrator may withdraw
program approval when a State program
no longer complies with the
requirements of this Part, and the State
fails to take corrective action. Such
circumstances include the following:
(1) When the State's legal authority no
longer meets the requirements of this
Part, including:
(i) Failure of die State to promulgate
or enact new authorities when
necessary; or
(ii) Acnon by a Stare legislature or
court striking down or limiting State
authorities.-
(2) When the operation of the State
program fails to comply with the
requirements of this Part including:
(i) Failure to exercise control over
activities required to be regulated under
this Part, including failure to issue
permits:
(ii) Issuance of permits do not conform
to the requirements of this Part; or
{iii} Failure to comply with the public
participation requirements of this Part.
(3) When the State's enforcement
program fails to comply with the
requirements of this Part, including:
(i) Failure to act on violations of
permits or other program requirements:
(ii) Failure to seek adequate
enforcement penalties or to collect
administrative fines when imposed: or
(iii) Failure to inspect and monitor
activities subject to regulation.
(4) When the State program fails to
comply with the terms of the
Memorandum of Agreement required
under § 233.24. '
§ 233.34 Procedures for withdrawal of
State programs.
(a) A State with a program approved
under this Part may voluntarily transfer
program responsibilities required by
"Tederal law to the Secretary by taking
the following actions, or in such r;'hsr
manner as may be agreed upon with the
Administrator.
(1) The State shall give the
Administrator and the Secretary 180
days notice of the proposed transfer and
shall submit a plan for the orderly
transfer of all relevant program
information not in the possession of the
Secretary (such as permits, permit files.
reports, permit applications] which are
necessary for the Secretary to
administer the program.
(2) Within 60 days of receiving the
notice and transfer plan, the
Administrator and the Secretary shall
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
evaluate the State's transfer plan and
shall identify any additional information
needed by the Federal government for
program administration and/or identify
any other deficiencies in the plan.
(3) At least 30 days before the transfer
is to occur the Administrator shall
publish notice of transfer in the Federal
Register and in enough of the largest
newspapers in the State to provide
Statewide coverage, and shall mail
notice to all permit holders, permit
applicants, other regulated persons and
other interested persons on appropriate
EPA and State mailing lists.
(b) The following procedures apply
when the Administrator orders the
commencement of proceedings to
determine whether to withdraw
approval of a State program. .
(1) Order. The Administrator may
order the commencement of withdrawal
proceedings on his or her own initiative
or in response to a petition from an
interested person alleging failure of the
State to comply with the requirements of
this Part as set forth in § 233.33. The
Administrator shall respond in writing
to any petition to commence withdrawal
proceedings. He may conduct an
informal investigation of the allegations
in the petition to determine whether
cause exists to commence proceedings
under this paragraph. The
Administrator's order commencing
proceedings under this paragraph shall
fix a time and place for the
commencement of the hearing and shall
specify the allegations against the State
which are to be considered at the
hearing. Within 30 days the State shall
admit or deny these allegations in a
written answer. The party seeking
withdrawal of the State's program shall
have the burden of coming forward with
the evidence in a hearing under this
paragraph.
(2) Definitions. For purposes of this
paragraph the definitions of "Act,"
"Administrative Law Judge," "Hearing,"
"Hearing Clerk." and "Presiding Officer"
in 40 CFR 22.03 apply in addition ttfOie '
following:
(i) "Party" means the petitioner, the
State, the Agency, and any other person
whose request to participate as a party
is granted.
(ii) "Person" means the Agency, the
State and any individual or organization
having an interest in the subject matter
of the processing.
(Hi) "Petitioner" means any person
whose petition for commencement of
withdrawal proceedings has been
granted by the Administrator.
(3) Procedures.
(i) The following provisions of 40 CFR
Part 22 (Consolidated Rules of Practice)
are applicable to proceedings under this
paragraph:
(A) § 22.02—(use of number/gender);
(B) § 22.04(c)—(authorities of
Presiding Officer);
(C) § 22.06—(filing/service of rulings
and orders);
(D) § 22.09—(examination of filed
documents);
(E) § 22.19 (a), (b) and (c)—
(prehearing conference);
(F) § 22.22—(evidence);
(G) §'22.23—(objections/offers of
proof);
(H) § 22.25—(filing the transcript); and
(I) § 22.26—(findings/conclusions).
(ii) The following provisions are also
applicable:
(A) Computation and extension of
time.
[1] Computation. In computing any
period of time prescribed or allowed in
these rules of practice, except as
otherwise provided, the day of the event
from which the designated period begins
to run shall not be included. Saturdays,
Sundays, and Federal legal holidays
shall be included. When a stated time
expires on a Saturday, Sunday or legal
holiday, the stated time period shall be
extended to include the next business
day. —
(2] Extensions of time. The
Administrator. Regional Administrator,
or Presiding Officer, as appropriate, may
grant an extension of time for the filing
of any pleading, document, or motion (i)
upon timely motion of a party to the
proceeding, for good cause shown, and
after consideration of prejudice to other
parties, or (if) upon his own motion.
Such a motion by a party may only be
made after notice to all other parties.
unless the movant can show good cause
why serving notice is impracticable. The
motion shall be filed in advance of the
date on which the pleading, document or
motion is due to be filed, unless the
failure of a party to make timely motion
for extension of time was the result of
excusable neglect
"••"tSHHwtime for commencement of th6
hearing shall not be extended beyond
the date set in the Administrator's order
without approval of the Administrator.
(B) Ex parte discussion of proceeding.
At no time after the issuance of the
order commencing proceedings shall the
Administrator, Regional Administrator,
Judicial Officer, Regional Judicial
Officer, Presiding Officer, or any other
person who is likely to advise these
officials in the decisions on the case,
discuss ex parte the merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member who performs a
prosecutorial or investigative function in
such proceeding or a factually related
proceeding, or with any representative
of such person. Any ex parte
memorandum or other communication
addressed to the Administrator,
Regional Administrator, Judicial Officer,
Regional Judicial Officer, or the
Presiding Officer during the pendency of
the proceeding and relating to the merits
thereof, by or on behalf of any party
shall be regarded as argument made in
the proceeding and shall be served upon
all other parties. The other parties shall
be given an opportunity to reply to such
memorandum or communication.
(C) Intervention.
[1] Motion. A motion for leave to
intervene in any proceeding conducted
under these rules of practice must set
forth the grounds for the proposed
intervention, the position and interest-of
the movant and the likely impact that
intervention will have on the
expeditious progress of the proceeding.
Any person already a party to the.
proceeding may file an answer to a
motion to intervene, making specific
reference to the factors set forth in the
foregoing sentence and paragraph
(b)(3)(ii)(C)(J) of this section, within ten
(10) days after service of the motion for
leave to intervene.
(2) However, motions to intervene
must be filed within 15 days from the
date the notice of the administrator's
order is first published.
(3) Disposition. Leave to intervene
may be granted only if the movant
demonstrates that (/) his presence in the
proceeding would not unduly prolong or
otherwise prejudice the adjudication of
the rights of the original parties; (if) the
movant will be adversely affected by a
final order; and (Hi) the interests of the
movant are not being adequately
represented by the original parties. The
intervenor shall become a full party to
the proceeding upon the granting of
leave to intervene.
[4) Amicus curiae. Persons not parties
to the proceeding who wish to file briefs
may so mqy«* Thamotion shal^ identify
the interest of the applicant and shall
state the reasons why the proposed
. amicus brief is desirable. If the motion is
granted, the Presiding Officer or
Administrator shall issue an order
setting the time for filing such brief. An
amicus curiae is eligible to participate in
any briefing after his motion is granted,
and shall be served with all briefs, reply
briefs, motions, and orders relating to
issues to be briefed.
(D). Motions.
[1] General. All motions, except those
made orally on the record during a
hearing, shall (/) be in writing; («") state
the grounds therefor with particularity;
(Hi) set forth the relief or order sought;
and (iv) be accompanied by any
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14223
affidavit, certificate, other evidence, or
legal memorandum relied upon. Such
motions shall be served as provided by
(b)(4) of this'section.
[2] Response to motions. A party's
response to any written motion must be
filed within ten (10) days after service of
such motion, unless additional time is
allowed for such response. The response
shall be accompanied by any affidavit,
certificate, other evidence, or legal
memorandum relied upon. If no
response is filed within the designated
period, the parties may be deemed to
have waived any objection to the
granting of the motion. The Presiding
Officer. Regional Administrator, or
Administrator, as appropriate, may set a
shorter time for response, or make such
other orders concerning the disposition
of motions as they deem appropriate.
(3) Decision. The Administrator shall
rule on all motions filed or made after
service of the recommended decision
upon the parties. The Presiding Officer
shall rule on-all other motions. Oral
argument on motions will be permitted
where the Presiding Officer. Regional
Administrator, or the Administrator
considers it necessary or desirable.
(4) Record of proceedings, (i) The
hearing shall be either stenographically
reported verbatim or tape recorded, and
thereupon transcribed by an official
reporter designated by the Presiding
Officer
(ii) All orders issued by the Presiding
Officer, transcripts of testimony, written
statements of position, stipulations,
exhibits, motions, briefs, and other
written material of any kind submitted
in the hearing shall be a part of the
record and shall be available for
inspection or copying in the Office of the
Hearing Clerk, upon payment of costs.
Inquiries may be made at the Office of -
the Administrative Law Judges, Hearing
Clerk. 401 M Street S.W.. Washington.
D.C. 20460;
(Hi) Upon notice to all parties the
Presiding Officer may authorize
corrections to the transcript which
involve matters of substance:
(iv) An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerk;
(v) A copy of each such submission
shall be served by the person making
the submission upon the Presiding
Officer and each party of record. Service
under this paragraph shall take place by
mail or personal delivery;
(vi) Every submission shall be
accompanied by an acknowledgement
of service by the person served or-proof
of service in the form of a statement of
the date, time, and manner of service
and the names of the persons served.
certified by the person who made
service; and
(vii) The Hearing Clerk shall maintain
and furnish to any person upon request.
a list containing the name, service
address, and telephone number of all
parties and their attorneys or duly
authorized representatives.
(5) Participation by a person not a
party. A person who is not a party may,
in the discretion of the Presiding Officer,
be permitted to make a limited
appearance by making an oral or
written statement of his/her position on
the issues within such limits and on
such conditions as may be fixed by the
Presiding Officer, but he/she may not
otherwise participate in the proceeding.
(6) Rights of parties, (i) All parties to
the-proceeding-may:-- •-
(A) Appear by counsel or other
representative in all hearing and pre-
heanng proceedings:
(B) Agree to stipulations of facts
which shall be made a part of the
record.
(7) Recommended decision, (i) Within
30 days after the filing of proposed
findings and conclusions, and reply
briefs, the Presiding Officer shall
evaluate the record before him/her, the
proposed findings and conclusions and
any briefs filed by the parties and shall
prepare a recommended decision, and
shall certify the entire record, including
the recommended decision, to the
Administrator.
(ii) Copies of the recommended
decision shall be served upon all parties.
(iii) Within 20 days after the
certification and filing of the record and
recommended decision, all parties may
file with the Administrator exceptions to
the recommended decision and a
supporting brief.
(8) Decision by Administrator, (i)
Within 60 days after certification of the
record and filing of the Presiding
Officer's recommended decision, the
Administrator shall review the record
before him and issue his own decision.
the State has administered the program
in conformity with the CWA and this
Part his decision shall constitute "final
agency action" within the meaning of 5
U.S.C.S704.
(iii) If the Administrator concludes
that the State has not administered the
program in conformity with the CWA
and regulations, he shall list the
deficiencies in the program and provide
the State a reasonable time, not to
exceed 90 days, to take such appropriate
corrective action as the Administrator
determines necessary.
(iv) Within the time prescribed by the
Administrator the State shall take such
appropriate corrective action as
required by the Administrator and shall
file with the Administrator and all
parties a statement certified by the State
Director that appropriate corrective
action has been taken.
(v) The Administrator may require a
further showing in addition to the
certified statement that corrective action
has been taken.
(vi) If the State fails to take
appropriate corrective action and file a
certified statement thereof within the
time prescribed by the Administrator,
the Administrator shall issue a
supplementary order withdrawing
approval of the State program. If the
State takes appropriate corrective
action, the Administrator shall issue a
supplementary .order, stating that
approval of authority is not withdrawn.
(vii) The Administrator's
supplementary order shall constitute
final Agency action within the meanings
of 5 U.S.C. 704.
(c) Withdrawal of authorization under
this section and the CWA does not
relieve any person from complying with
the requirements of State law, nor does
it affect the validity of actions taken by
the State prior to withdrawal.
§ 233.35 Activities not requiring permits.
• (a) Except as specified in paragraphs
(b) and (c) of this section, any discharge
of dredged or fill material that may
result from any of the following
activities is not/prohibited by or
otherwise subject to regulation under
this subpart:
(l)(i) Normal farming, silviculture and
ranching activities such as plowing.
seeding, cultivating, minor drainage, and
harvesting for the production of food,
fiber, and forest products, or upland soil
and water conservation practices, as
defined in paragraph (a)(l)(iii) of this
section.
(ii) To fall under this exemption, the
activities specified in paragraph (a)(l)(i)
of this section must be part of an
-testatoHshed'tr.w.'on-gbmgl farming.
silviculture, or ranching operation.
Activities on areas lying fallow as part
of a conventional rotational cycle are
part of an established operation.
Activities which bring an area into
fanning, silviculture, or ranching use are
not part of an established operation. An
operation ceases to be established when
the area on which it was conducted has
been converted to another use or has
lain idle so long that modifications to
the hydrological regime are necessary to
resume operations. If an activity takes
place outside the waters of the United
States, or if it does not involve a
discharge, it does not need a section 404
permit, whether or not it is part of an
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14224 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
established fanning, silviculture, or
ranching operation.
(iii)(A) Cultivating means physical
methods of soil treatment employed
within established farming, ranching
and silviculture lands upon planted
farm, ranch, or forest crops to aid and
improve their growth, quality or yield.
(B) Harvesting means physical
measures employed directly upon farm,
forest, or ranch crops widiin established
agricultural and silvicultural lands to
bring about their removal from farm,
forest, or ranch land, but does not
include the construction of farm, forest,
or ranch roads.
(C)( 1) Miner Drainage means:
(/) The discharge of dredged or fill
material incidental to connecting upland
drainage facilities to waters .of the. ..
United States, adequate to effect the
removal of excess soil moisture from
upland croplands. (Construction and
maintenance of upland (dryland]
facilities, such as ditching and tiling,
incidental to the planting, cutivating,
protecting, or harvesting of crops,
involve no discharge of dredged or fill
material into waters of die United
States, and as such never require a
section 404 permit);
(ii] The discharge of dredged or fill
material for the purpose of installing
ditching or other such water control
facilities incidental to planting.
cultivating, protecting, or harvesting of
rice, cranberries or other wedand crop
species, where these activities and the
discharge occur in waters of the United
States which are in established use for
such agricultural and silvicultural
wetland crop production;
[tii] The discharge of dredged or fill
material for the purpose of manipulating
the water levels of, or regulating the
flow or distribution of water within,
existing impoundments which have been
constructed in accordance with
applicable requirements of CWA. and
which are in established use for the
production of rice, cranberries," or other
• wedand crop species: •'• • •••*«
[Note.—The provisions of paragraphs
(aj(l)(ii)(c)(l) (ii) and (iii) oi this section apply
to areas that are in established use
exclusively for wetland crop production as
well as areas in established use for
conventional wetland/non-wetiand crop
rotation (eg* the rotation of rice and
soybeans) where such rotation results in the
cyclical or intermittent temporary dewatering
of such areas.]
(iv) The discharge of dredged or fill
material incidental to the emergency
removal of sandbars, gravel bars, or
other similar blockages which are
formed during flood flows or other
events, where such blockages close or
constrict previously existing
drainageways and, if not promptly
removed, would result in damage to or
loss of existing crops on land in
established use for crop production.
Such removal does not include enlarging
or extending the dimensions of, or
changing the bottom elevations of, die
affected dramageway as it existed prior
to the formation of the blockage.
Removal must be accomplished within
one year of formation of such blockages
in order to be eligible for exemption.
(2} Minor drainage in waters of the
U.S. is limited to drainage within areas
that are part of an established farming
or silvioiltural operation. It does not
include drainage associated with the
immediate or gradual conversion of a
wetland to a non-wetland (e.g.. wetlands
species to upland species-not-typically-
adapted to life in saturated soil
conditions), or conversion from one
wetland use to another (for example,
silviculture to farming). In addition,
minor drainage does not include the
construction of any canal, ditch, dike or
other waterway or structure which
drains or otherwise significantly
modifies a stream, lake, swamp, bog or
any other wetland or aquatic area
constituting waters of the United States.
Any discharge of dredged or fill material
into the waters of the United States
incidental to the •construction of any
such structure or waterway requires a
permit.
(D) Plowing means all forms of
primary tillage, including moldboard,
chisel or wide-blade, plowing, discing,
harrowing, and similar physical means
utilized on farm, forest or ranch land for
the breaking up, cutting, turning over, or
stirring of soil to prepare it for the
planting of crops. The term does not
include the redistribution of spoiLrock,
sand, or other surficial materials in a
manner which changes any area of the
waters of the United States to dry land.
For example, the redistribution of
surface materials by blading, grading, or
other means to fill in wetland areas is
which result in the loss of natural
drainage characteristics, the reduction
of water storage and recharge
capabilities, or the overburden of
natural water filtration capacities do not
constitute plowing. Plowing will never
involve a discharge of dredged or fill
material.
(E) Seeding means the sowing of seed
and placement of seedlings to produce
farm, ranch, or forest crops and includes
the placement of soil beds for seeds or
seedlings on established farm and forest
lands.
(2) Maintenance, including emergency
reconstruction of recently damaged
parts, of currently serviceable structures
such as dikes, dams, levees, groins,
riprap, breakwaters, causeways, bridge
abutments or approaches.-and
transportation structures. Maintenance
does not include any modification that
changes the character, scope, or size of
the original fill design. Emergency
reconstruction must occur within a
reasonable period of time after damage
occurs in order to qualify for this
exemption.
(3) Construction or maintenance of
farm or stock ponds or irrigation ditches,
or the maintenance (but not
construction) of drainage ditches. A
simple connection of an irrigation return
or supply ditch to waters of the U.S. and
related bank stabilization measures are
included w;;hin this exemption. Where a
trap, weir, groin, wall, jetty or other
structure within waters of the U.S..
which will result in significant
discernable alterations to flow or
circulation, is constructed as part of the
connection, such construction requires a
404 permit.
(4) Construction of temporary
sedimentation basins on a construction
site which does not include placement of
fill material into waters of the U.S. The
term "construction site" refers to any
site involving the erection of building,
roads, and other discrete structures and
the installation of such structures. The
term also includes any other land areas
which involve land-disturbing
excavation activities, including
quarrying or other mining activities.
where an increase in the runoff of
sediment is controlled through the use of
temporary sedimentation basins.
(5) Any activity with respect to which
a State has an approved program under
section 208(b}(4) of CWA which meets
the requirements of sections 208(b)[4)(B)
and (Q.
(6) Construction or maintenance of
farm roads, forest roads, or temporary
roads for moving mining equipment,
where such roads are constructed and
,„ «. _jnaintained.in accordance with best .
management practices (BMPs) to assure
that flow and circulation patterns and
chemical and biological characteristics
of waters of the United States are not
impaired, that the reach of the waters of
the United States is not reduced, and
that any adverse effect on the aquatic
environment will be otherwise
minimized. The BMPs which must be
applied to satisfy this provision shall
include those detailed BMPs described
in the Slate's approved program
description pursuant to the requirements
of § 233.22(h)(4). and shall also include
the following baseline provisions:
(i) Permanent roads (for farming or
forestry activities), temporary access
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14225
roads (for mining, forestry, or farm
purposes) and skid trails (for logging) in
waters of the U.S. shall be held to the
minimum feasible number, width, and
total length consistent with the purpose
of specific farming, silvicultural or
mining operations, and local topographic
and climatic conditions;
(ii) All roads, temporary or
permanent, shall be located sufficiently
far from streams or other water bodies
(except for portions of such roads which
must cross water bodies) to minimize
discharges of dredged or fill material
into waters of the U.S.
(iii) The road fill shall be bridged.
culverted, or otherwise designed to
prevent the restriction of expected
floods flows:
(iv) The fill shall be properly >-> - •
stabilized and maintained during and
following construction to prevent
erosion:
(v) Discharges fo dredged or fill
material into waters of the United States
to construct a road fill shall be made in
a manner that minimizes the
encroachment of trucks, tractors,
bulldozers, or other heavy equipment
within waters of the United States
(including adjacent wetlands) that lie
outside the lateral boundaries of the fill
itself:
(vi) In designing, constructing, and
maintaining roads, vegetative
disturbance in the waters of the U.S.
shall be kept to a minimum;
(vii) The design, construction and
maintenance of the road crossing shall
not disrupt the migration or other
movement of those species of aquatic
life inhabiting the water body:
(viii) Borrow material shall be taken
from upland sources whenever feasible;
(ix) The discharge shall not take, or
jeopardize the continued existence of, a
threatened or endangered species as
defined under the Endangered Species
Act, or adversely modify or destroy the
critical habitat of such species;
(x) Discharges into breeding and
nesting breas for migratory*waterfowl, • -
spawning areas, and wetlands shall be
avoided if practical alternatives exist;
(xi) The discharge shall not be located
in the proximity of a public water supply
intake;
(xii) The discharge shall not occur in
areas of concentrated shellfish
production;
(xiii) The discharge shall not occur in
a component of the National Wild and
Scenic River System;
(xiv) The discharge of material shall
consist of suitable material free from
toxic pollutants in toxic amounts; and
(xv) all temporary fills shall be
removed in their entirety and the area
restored to its original elevation.
(b) If any discharge of dredged or fill
material resulting from the activities
listed in paragraphs (a)(l)-(6) of this
section contains any toxic pollutant
listed under section 307 of CWA such
discharge shall be subject to any
applicable toxic effluent standard or
prohibition, and shall require a permit
under the State program.
(c) Any discharge of dredged or fill
material into waters of the United States
incidental to any of the activities
identified in paragraphs (a)(l}-(6) of this
section must have a permit if it is part of
an activity whose purpose is to convert
an area of the waters of the United
States into a use to which it was not
previously subject, where the flow or
circulation of waters of the United
States may be impaired or the reach of" *
such waters reduced. Where the
proposed discharge will result in
significant discernible alterations to
flow or circulation, the presumption is
that flow or circulation may be impaired
by such alteration.
[Note.—For example, a permit will be
required for the conversion of a cypress
swamp to some other use or the conversion of
a wetland from silvicultural to agricultural
use when there is a discharge of dredged or
fill materials into waters of the United States
in conjunction with construction of dikes.
drainage ditches or other works or structures
used to effect such conversion. A discharge
which elevates the bottom of waters of the
United States without converting it to dry
land does not thereby reduce the reach of.
but may alter the flow or circulation of.
waters of the United States.)
(d) Federal projects which qualify
under the criteria contained in section
404(r) of CWA (Federal projects
authorized by Congress where an EIS
has been submitted to Congress prior to
authorization or an appropriation) are
exempt from State section 404 permit
requirements, but may be subject to
other State or Federal requirements.
§233.36 Prohibitions.
...No 4>en&itshalUra«isMied.bytiha.-Siate -.
Director in the following circumstances:
(a) When the conditions of the permit
do not comply with the requirements of
CWA. or regulations and guidelines
. implementing CWA. including the
section 404(b)(l) environmental
guidelines (40 CFR Part 230).
(b) When the Regional Administrator
has objected to issuance of the permit
under section 404(j) of CWA and the
objection has not been resolved.
(c) When, in the judgment of the
Secretary of the Army acting through the
Chief of Engineers, anchorage and
navigation in or on any of the waters of
the United States would be substantially
impaired by the discharge.
(d) When the proposed discharge
would be into a defined area for which
specification as a disposal site has been
prohibited, restricted, denied, or
withdrawn by the Administrator under
section 404(c) of CWA. and the
discharge would fail to comply with the
Administrator's actions under that
authority.
§ 233.37 General permits.
(a) Coverage. The State Director may
issue a general permit for similar
activities as specified in paragraph
(b)(l) of this section within a defined
geographic area as specified in
paragraph (b)(2) of this section, if he or
she determines that the regulated
activities will cause only minimal
adverse environmental effects when
performed separately and will have only
minimal cumulative adverse effects on
the environment.
(b) Conditions. In addition to § 233.7, .
and the applicable requirements of
§ 233.8. each general permit shall
contain conditions as follows:
(1) Activities: A specific description of
the typefs) of activities which are
authorized, including limitations for any
single operation, to ensure that the
requirements of paragraph (a) of this
section are satisfied. At a minimum,
these limitations shall include:
(i) The maximum quantity of material
that may be discharged;
(ii) The type(s) of material that may
be discharged:'
(iii) The depth of fill permitted:
(iv) The maximum extent to which an
area may be modified; and
(v) The size and type of structure that
may be constructed.
(2) Area: A precise description of the
geographic area to which the general
permit applies, including, when
appropriate, limitations on the types(s)
of waterfs) or wetlands where
operations may be conducted, to ensure
that the requirements of paragraph (a) of
-satisfifid. . .......
(3) Notice; The permit shall contain a
requirement that no activity is
authorized under the general permit
unless the Director receives notice at
least 30 days in advance of the date
when the proposed activity is to
commence. The Director may require
any information in the notice necessary
to determine whether the conditions of
the general permit will be satisfied. If
within 15 days of the date of submission
of the notice the owner or operator has
not been informed by the State Director
of his or her intent to require an
individual permit application, the owner
or operator may commence operations
under the general permit.
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14226 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(c) Requiring an individual permit. (1)
Upon receiving notice under paragraph
(b)(3) of this section, the State Director
may require, at his discretion, that the
owner cr operator apply for an
individual permit Cases where an
individual permit may be required
include:
(1) The activity has more than a
minimal adverse environmental effect;
(ii) The cumulative effects on the
environment of the authorized activities
are more than minimal; or
(iii) The discharger is not in •
compliance with the conditions of the
general permit.
(2) When the State Director notifies
the owner or operator within 15 days of
receipt of notice under paragraph (bj(3)
of this section that an individual permit. -
application is required for that activity.
the activity shall not be authorized by
the general permit.
(3) The Director may require any
person authorized under a general
permit to apply for an individual permit.
(d) Under section 404(h)(5) of CWA.
States are entitled, after program
approval, to administer and enforce
general permits issued by the Secretary.
If the State chooses not to administer
and enforce these permits, the Secretary
retains jurisdiction until they expire. If
the Secretary has retained jurisdiction
and if a permit appeal or modification
request is not finally resolved when the
Federally issued permit expires, the
Secretary, upon agreement with the
State, may continue to retain jurisdiction
until the matter is resolved.
§ 233.38 Emergency permits.
(a) Coverage. Notwithstanding any
other provision of this Part or Part 124 of
this Chapter, the State Director may
temporarily permit a specific dredge or
fill activity if:
(1) An unacceptable hazard to life or
severe loss of property will occur if an
emergency permit is not granted: and
(2} The anticipated threat or loss may
occur before a.permit can.bea£sued.or ,
modified under the procedures
otherwise required by this Part and Part
124.
(b) Requirements for issuance. (1) The
emergency permit shall incorporate, to
• the extent possible and not inconsistent
with the emergency situation, all
applicable requirements of §§233.7 and
233.8.
(2) Any emergency permit shall be
limited in duration to the time required
lo complete the authorized emergency
action, not to exceed 90 days.
(3) The emergency permit must have a
condition requiring restoration of the
disposal site (for example, removal of
Fill, steps to prevent erosion). If more
than 90 days from issuance is necessary
to complete restoration, the permit may
be extended for this purpose only.
(4) The emergency permit may be oral
or written. If oral, it must be followed
within five days by a written emergency
permit.
(5) Notice of the emergency permit
shall be published and public comments
received in accordance with applicable
requirements of § § 124.10 and 124.11 as
soon as possible but no later than 10
days after the issuance date.
(6) The emergency permit may be
terminated at any time without process
if the State Director determines that
termination is appropriate to protect
human health or the environment
_ § 233.39 Transmission of Information to—
' EPA and other Federal agencies.
(a) The Memorandum of Agreement
under § 233.24 shall provide for the
following:
(1) Prompt transmission to the
Regional Administrator (by certified
mail) and to the Corps of Engineers, the
U.S. Fish and Wildlife Service, and the
National Marine Fisheries Service of a
copy of any complete permit application
received by the State Director, except
those for which permit review has been
waived under § 233.24(d)(l)(i). The State
shall supply EPA. the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service with copies of permit
applications for which permit review
has been waived whenever requested
by such agencies. Where State law
requires preparation of an
environmental impact statement (EIS) or
similar document and such EIS or other
document is available, the EIS or other
document shall accompany the permit
application when transmitted to the
Regional Administrator.
(2) Prompt transmission to the
Regional Administrator (by certified
mail) and to the Corps of Engineers, the
U.S. Fish and Wildlife Service, and the
§ 233.24(d)(l)(i)(A)-(E), unless EPA has
waived review under § 233.24(d)(l)(i).
(3) Prompt transmission to the
Regional Administrator, the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service of a copy of each draft
general permit A draft general permit
shall be prepared by the State whenever
the State intends to issue a general'
permit
(4) Transmission to the Regional
Administrator, the Corps of Engineers.
the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service of
a copy of every issued permit following
issuance, alor.g with any and all
conditions and requirements.
(b)(l) State section 404 programs shall
comply with the draft permit
requirements of §§ 124.6 (a), (c). (d), and
(e) and 124.8 for those discharges which
require a draft permit under paragraph
(a)(2) of this section and for those
discharges to be regulated by general
permits. For discharges which require a
draft permit under paragraph (a)(2) of
this section, public review and EPA
review, under § 233.40, shall be based
on the permit application and the draft
permit. For discharges to be regulated
by general permits, public review and
EPA review shall be based on the draft
general permit.
(2) For all other discharges, public
review and EPA review, if not waived
under § 233.24(d)(l)(i). shall be based on
the permit application. For these .
discharges. States need not comply with
§§ 124.6 (a), (c). (d), and (e) or 124.8.
§ 233.40 EPA review of and objections to
State permits,
(a) The Memorandum of Agreement
shall provide that the Regional
Administrator may comment upon.
object to, or make recommendations
with respect to permit applications, draft
permits (if prepared under § 233.39), or
...NatianaUdarine.Fisherie*'Service xjf- ——•.draft general permits within 90 days of
notice of every action taken by the State
agency related to the consideration of
any permit application, including a copy
of each draft permit prepared, and any
conditions, requirements, or documents
which are related to the draft permit or
which affect the authorization of the
draft permit A draft permit shall be
prepared by the State and transmitted to
EPA:
(i) At the time of transmission of the
complete permit application, for
discharges listed in § 233.24(d)(l)(i)(A)-
(E);
(ii) Upon request of EPA hi
accordance with § 233.40(e)(3), for
discharges not listed in
receipt. If the Regional Administrator
intends to comment upon, object to, or
make recommendations with respect to
a permit application, draft permit or
draft general permit he or she shall
notify the State Director of his or her
intent within 30 days of receipt The
Regional Administrator may notify the
State within 30 days of receipt that there
is no comment but reserve the right to
object within 90 days of receipt, based
on any new information brought out by
the public during the comment period or
at a hearing. The Regional
Administrator shall send a copy of any
comment objection, or recommendation
to the permit applicant
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14227
(b) Within 90 days following receipt of
a permit application, draft permit or
draft general permit for which the
Regional Administrator has provided
notification under paragraph (a) of this
section, the Regional Administrator may
object to permit issuance. In order to
object, the Regional Administrator shall
set forth in writing and transmit to the
State Director:
(1) A statement of the reason(s] for
the objection (including the section of
CWA or regulations Jthat support the •
objection); and
(2) The actions that must be taken by
the State Director in order to eliminate
the objection (including the conditions
which the permit would include if it
were issued by the Regional
Administrator).
(c) When the State Director has
received an objection to a permit
application, draft permit, or draft
general permit under this section and
has taken the steps required by the
H egional Administrator to eliminate the
objection, a revised permit shall be
prepared and transmitted to the
Regional Administrator for review. If no
further objection is received from the
Regional Administrator within 15 days
of the receipt of the revised permit the
Director may issue the permit.
(d) Any objection under this section
must be based upon one or more of the
following grounds:
(1) The permit application, draft
permit, or draft general permit fails to
apply, or to ensure compliance with, any
applicable requirements of this Part;
(2) In the case of any permit
application for which notification to the
Administrator is required under section
434fhj(l)(E) of CWA, the written
recommendations of an affected State
have not been accepted by the
permitting State and the Regional
Administrator finds the reasons for
rejecting the recommendations are.
inadequate (see § 233.41(c));
(3) The procedures followed hi
connection with processing the permit
foiled in a material respect to"comply '
•vilh procedures required by CWA, by
this Part, by other regulations and
guidelines thereunder, or by the
Memorandum of Agreement:
(4) Any finding made by the Stats
Director in connection with the draft
permit or draft general permit,'
misinterprets CWA or any guidelines or
regulations thereunder, or misapplies
them to the facts;
(5) Any provisions of the permit
application, draft permit, or draft
general permit relating to the, ,
maintenance of records, reporting,
monitoring, sampling, or the provision of
any other information by the permitee
are inadequate, in the judgment of the
Regional Administrator, to assure
compliance with permit conditions.
including water quality standards,
required by CWA. by 40 CFR Part 230,
or by the draft permit or draft general
permit;
(6) The information contained in the
permit application is insufficient to
judge compliance with 40 CFR Part 230;
or
(7) Issuance of a permit would in any
other respect to outside the
requirements of section 404 of CWA. or
regulations implementing section 404 of
CWA.
(e) Prior to notifying the State Director
of an objection based upon any of the
grounds set forth in paragraph (d) of this
sectioivthe-Regional Administratoc^. '
(1) Shall consider all data transmitted
pursuant to §§ 233.39 and 233.40.
(2) Shall, if the information provided
is inadequate to determine whether the
permit application, draft permit, or draft
general permit meets the guidelines and
requirements of CWA, request the State
Director to transmit to the Regional
Administrator the complete record of
the permit proceedings before the State,
or any portions of the record, or other
information, including a supplemented
application, that the Regional
Administrator determines are' necessary
for review. This request shall be made
within 30 days of receipt of the State
submittal-under § 233.39. It shall
constitute an interim.objection la the
issuance of the permit, and the period of
time specified in the Memorandum of
Agreement for the Regional
Administrator's review shall be
suspended from the date of the request
and shall resume when the Regional
Administrator has received such record
or portions requested.
(3) May, in the case of discharges for
which a draft permit is not
automatically required under
§ 233.39(a)(l). request within 30 days of
receipt of the permit application, that
under § 233.39(a)(2)(ii). The draft permit
shall be submitted to EPA and other
Federal agencies, as required under
§ 233.39(a)(2). When a draft penrJt is
prepared under this subparagraph.
Federal and public review shall
recommence under § 233J39(b)(l). The.
Regional Administrator's period for
review shall begin upon receipt of the
draft permit
[Note.—It is anticipated that draft permits
• will be requested only in exceptional and/or
complex cases.)
(4) May, at his or her discretion, and
to the extent feasible within the period
of time available under the
Memorandum of Agreement, afford to
interested persons an opportunity to
comment on the basis for the abjection.
(f) Within 90 days of/eceipt by the
State Director of an objection by the
Regional Administrator, the State or any
interested person may request that a
public hearing be held by the Regional
Administrator on the objection. A public
hearing in accordance with the
procedures of §§ 124.12 (c) and (d) shall
be held, and public notice provided in
accordance with § 124.10. whenever
requested by the State issuing the
permit, or if warranted by significant
public interest based on requests
received.
(g) A public hearing held under
paragraph (f) of this section shall be
conducted by the Regional
Administrator, and, at the Regional
Administrator's discretion, with the
assistance of an EPA panel designated
by the Regional Administrator, in an
orderly expeditious manner.
(h) Following the public hearing the
Regional Administrator shall reaffirm
the original objection, modify the terms
of the objections, or withdraw the
obfection. and shall notify the State of
this decision.
(i)(l) If no public hearing is held under
paragraph (f) of this section and the
State does not resubmit a permit revised
to meet the Regional Administrator's
objection or notify EPA of its intent to
deny the permit/within 90 days of
receipt of the objection, the Secretary
may issue the permit in accordance with
the guidelines ar.d regulations of CWA.
(2) If a public hearing is held under
paragraph (f) of this section, the
Regional Administrator does not
withdraw the objection, and the State.
does not resubmit a permit revised to
meet the Regional Administrator's
objection or modified objection or notify
EPA of Us intent to deny the permit
within 30 days of the date cf the
Regional Adminstralor's notification
fy-bfttis secton. the
Secretary may issue the permit hi
accordance with the guidelines and
regulations, of CWA.
§ 233.41 Coordination requirements.
(a) General coordination. (1) If the
State has a Statewide CVVA section
208(b](4) regulatory program, the State
Director shall develop an agreement
with the agency designated, to
administer such program. The agreement
shall include:
(i) A definition of the activities to be
regulated by each program;
pi) Arrangements providing the
agencies an opportunity to comment on
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14228
Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations
prospective permits, BMPs, and other
relevant actions: and
(iii) Arrangements incorporating BMPs
developed by the section 208(b)(4)
program into section 404 permits, where
appropriate.
(2) Where a CWA section 208(b)(4)
program has been approved under
section 208{b)(4)(C). no permit shall be
required for activities for which the
Administrator has approved BMP's
under such approved program except as
provided in §§ 233.35 (b) and (c). Until
such section 208(b)(4) program has been
approved by the Administrator, a person
proposing to discharge must obtain an
individual permit or comply with a
general permit.
(3) The State Director shall consult
with any State agency(ies) with
jurisdiction over fish"and wildlife -1-— -
resources.
[b) Coordination with other Federal
and Federal-State review processes.
State section 404 programs shall assure
coordination of State section 404 permits
with Federal and Federal-State water
related planning and review processes.
(1) The State Director shall assure that
the impact of proposed discharges will
be consistent with the Wild and Scenic
Rivers Act when the proposed discharge
could affect portions of rivers
designated wild, recreational, scenic, or
under consideration for such
designation.
(2) Agencies with jurisdiction over
Federal and Federal-State water related
planning and review processes.
including the U.S. Army Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service, shall notify the
Regional Administrator that they wish
_ to comment on a permit application.
draft permit, or draft general permit
within 20 days of receipt by the Regional
Administrator of the permit application,
draft permit, or draft general permit.
Such agencies should submit their
evaluation and comments to the
Regional Administrator within 50 days
of receipt by the Regional-Administrator •
of the permit application, draft permit.
or draft general permit. The Regional
Administrator may allow any such
agency up to an additional 30 days to
submit comments, upon request of such
agency.
(3) All comments from the U.S. Army
Corps of Engineers, the U.S. Fish and
Wildlife Service, and the National
Marine Fisheries Service on permit
applications, draft permits, and draft
general permits shall be considered by
the Regional Administrator. If the
Regional Administrator does not adopt a
recommendation of any such agency, he
shall consult with that agency. The final
decision to object or to require permit
conditions shall be made by the
Regional Administrator.
(c) Coordination with other States. If
the proposed discharge may affect the
quality of the waters of any State(s)
other than the State in which the
discharge occurs the State Director shall
provide an opportunity for such State(s)
to submit written comments within the
public comment period on the effect of
the proposed discharge on such State(s)
waters and to suggest additional permit
conditions. If these recommendations
are not accepted by the State Director,
he shall notify the affected State and the
Regional Administrator in writing of his
failure to accept these
recommendations, together with his
. reasons for so doings
[Note.—States are encouraged to receive
and use information developed by the U.S.
Fish and Wildlife Service as part of the
National Wetlands Inventory as it becomes
available.]
Part 270 is added as follows:
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
Subpart A—General Information
Sec.
270.1 Purpose and scope of these
regulations.
270.2 Definitions.
270.3 Considerations under Federal law.
270.4 Effect of a permit.
270.5 Noncompliance and program reporting
by Director.
270.6 References.
270.7-270.9 [Reserved).
Subpart B—Permit Application
270.10 General application requirements.
270.11 Signatories to permit applications
and reports.
270.12 Confidentiality of information.
270.13 Contents of Part A of the permit
application.
270.14 Contents of Part B: General
requirements.
«-aro:15*-SpeCTflo Part B information "" •'
requirements for containers.
270.16 Specific Part B information
requirements for tanks.
270.17 Specific Part B information
requirements for surface impoundments.
270.16 Specific Part B information
requirements for waste piles.
270.19 Specific Part B information
requirements for incinerators.
270.20 Specific Part B information
requirements for landfills.
270.21 Specific Part B information
requirements for land treatment
faculties.
270.22-270.29 [Reserved].
Subpart C—Permit Conditions
270.30 Conditions applicable to all permits.
Sec.
270.31 Requirements for recording and
reporting of monitoring results.
270.32 Establishing permit conditions.
270.33 Schedules of compliance.
270.34-270.39 [Reserved].
Subpart 0—Changes to Permits
270.40 Transfers of permits.
270.41 Major modification or revocation and
reissuance of permits.
270.42 Minor modifications of permits.
270.43 Termination of permits.
270.44-270-49 [Reserved].
Subpart E—Expiration and Continuation of
Permits
270.50 Duration of permits.
270.51 Continuation of expiring permits.
270.52-270.59 [Reserved].
Subpart F—Special Forms of Permits
270.60' Permits by rule.
270.61 Emergency permits.
270.62 Hazardous waste incinerator permits.
270.63 Permits for land treatment
demonstrations using field test or
laboratory analysis.
270.64 Interim permits for UIC wells.
270.65-270.69 [Reserved].
Subpart G—Interim Status
270.70 Qualifying for interim status.
270.71 Operation during interim status.
270.72 Changes during interim status.
270.73 Termination of interim status.
270.74-270.79 [Reserved].
Authority: Pub. L. 94-580, as amended by
Pub. L 94-«09. 42 U.S.C. 6901 et seq.
Subpart A—General Information
§270.1 Purpose and scope of these
regulations.
(a) Coverage. (I) These permit
regulations establish provisions for the
Hazardous Waste Permit Program under
Subtitle C of the Solid Waste Disposal
Act. as amended by the Resource
Conservation and Recovery Act of 1976.
as amended. (RCRA). (Pub. L 94-580. as
amended by Pub. L 95-609 and by Pub.
L 96-482; 42 U.S.C. 6901 et seq.).
(2) The regulations in this Part cover
basic EPA permitting requirements, such
as application requirements, standard
•permit conditionsrand monitoring and
reporting requirements. These
regulations are part of a regulatory
scheme implementing RCRA set forth in
different Parts of the Code of Federal
Regulations. The following chart
indicates where the regulations
implementing RCRA appear in the Code
of Federal Regulations.
SKtnn
of RCRA
Conrag*
Final ragUabon
SuMttoC.. OiMfvww and d*firMm_ 40 CFR Put 260
3001 mdwiMcation and Mng 40 CFR Pan 261
d hazardous watta.
3002 Gmruor* o) huaidout 40 CFR Pan 262
3003.
Tfaniportan of
hazaidoua wu
40 CFR Part 263
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14229
Sacnon
of RCRA
Coverage
F«ial regulation
3004._
Standard* for HWM
3006.,
3010.
40CFRPait&264.
Z6K 266. «nd 267
4OCFHPWW.270
and 124
40" CFft Part 27T
. PreMBinarv notifiauioaot (puttie none*) 4&«u
HWW activity. 1Z748 Pnx 26.
T960
HWMfacHiM*.
Gudawwa tor Slaw
(3) Technical resalations. The. RCRA
permit program has separate additional
Regulations that contain technical
requirements. These separate
regulations are used by permit issuing
authorities to determine what
requirements mast be placed in permits
if they are issued. These separate
regulations are located in 40 CFE Parts
264. 266, and 267.
(b) Overview of the RCRA Permit
Program. Not later than 90 days after the
promulgation or revision of regulations
in 40 CFR Part 261 (Identifying and
listing hazardous wastes) generators
and transporters of hazardous waste,
and owners or operators of hazardous
waste treatment, storage, or disposal
facilities may be required to file a
notification of that activity under
section 3010. Sbc months after the initial
promulgation of the Part 261 regulations,
treatment storage, or disposal of
hazardous waste by any person who has
not applied for or received, a RCRA
permit is prohibited. A RCRA permit
application, consists of two parts. Part A
(see §. 270.13) and PartB [see 5 270.14
and applicable sections in 270.15-
270.29). For "existing HWM facilities,"
the requirement to submit an application
is satisfied by submitting only Part A of
the permit application until the date the
Director sets- for submitting Part B of the
application. (Part A consists of Forms 1
and 3 of the Consolidated Permit
Application Forms.} Timely submission
of bom notification under section 3010
and Part A qualifies owners and
operators of existing HWM facilities
(who are requited to have, a permit) for
interim status under section 3005(e).of
RCRA. Facility owners and operators
with interim status are treated as having
been issued a permit until EPA or a
State with interim authorization for
Phase n or final authorization under
Part 271 makes a final determination on
the permit application. Facility owners
and operators with interim status must
comply with interim status standards set
forth at 40 CFR Part 265 or with the
analagous provisions of a State program
which has received interim or final
authorization under Part 271. Facility
owners and operators with interim
status are not relieved from complying
with other State requirements. For
existing HWM facilities, the Director
shall set a date, giving at least six
months notice, for submission of Part B
of the application. There is no- form for
Part 3 of the applies tionr rather. Part B
must be submitted in narrative form and
contain the information set forth in the
applicable sections of § § 270.14-270.29.
Owners or operators of new HWM"
facilities must submit Part A and Part B
of the permit application at least 180
days before physical construction is
expected ta commence.
(c) Scope of the RCRAPenait
Requirement. RCRA requires a permit
for the "treatment," "storage," or
"disposal" of any "hazardous waste" as
identified or listed in 40 CFR Part 261.
The terms, "treatment" "storage."
"disposal." and "hazardous waste" are
defined in, § 270.2.. Owners and
operators of hazardous waste
management units must have permits
during the active life [including the
closure period), of. the unit- and, for any
unit which closes after January 26.1983,
during any post-closure care period
required under §. 264.117 and during any
compliance period specified under
§ 264J36, including, any extension of, the
compliance period under 1264£6(c).
(1) Specific inclusions. Owners and
operators of certain facilities require-
RCRA permits as well as permits under
other programs for certain aspects of the
facility operation, RCRA permits are
required foe
(i) Injection wells that dispose of
hazardous waste, and associated
surface facilities that treat store or
dispose of hazardous waste, (See-
§ 270.64). However, the owner and
operator with a UIC permit in a State
with an approved or promulgated UIC
program, will be deemed to have a
RCRA permit for the injection well itself
if they comply with the requirements of
§ 270.60(b) (permit-by-rale for injection
wells).
.. ,.(u),Txeatment.starage,.oE,disposaI.of
hazardous waste at facilities requiring
an NPDES permit However, the owner
and operator of a publicly owned -
treatment works receiving hazardous
waste wilt be deemed to have a RCRA
permit for that waste if they comply
with the requirements of § 270XO(c)
(permit-by-rule for POTWs).
(iii) Barges or vessels that dispose of
hazardous waste by ocean disposal and
onshore hazardous waste treatment or
storage facilities associated with, an
ocean disposal operation. However, the
owner and,operator will be deemed to
have a RCRA permit for ocean disposal
from the barge or vessel itself it they
comply with the requirements of
§ 270.60(a) (permit-by-rule for ocean
disposal barges and vessels).
(2) Specific exclusions. The. following.
persons are among .those who are not
required to obtain a RCRA permit:
(i) Generators who accumulate
hazardous waste on site for less than 90
days as provided in 40 CFR 262.34.
(ii) Farmers who dispose of hazardous
waste pesticides from, their own use as
provided in. 40 CFR 262.51.
(iii)- Persons who own or operate .
facilities solely for the treatment
storage or disposal cf hazardous waste
excluded from regulations under this
Part by 40 CFR 261.4 or 261.5 (small
generator exemption),
(iv) Owners or operators of totally
enclosed treatment facilities as denned
in 40 CFR 260.10.
(v) Owners and operators of
elementary neutralization units or
wastewater treatment units as defined
in 40 CFR £ 260.10.
fvij Transporters storing manifested
shipments of hazardous waste in
containers meeting the requirements of
40 CFR § 262.3Oat a transfer facility for
a period of ten days or less.
(vif) Persons adding absorbent
material to waste in a container (as
defined in i 260*10 of this chapter) and
persons adding waste to. absorbent
material in a container, provided, that
.these actions occur at the> time waste is
first placed in the container and
§ § 264.17(b). 264.171. and 264.172 of this
chapter are complied with.
(3). Further exclusions, (i) A person is
not required to obtain, an. RCRA permit
for treatment or containment activities
taken during immediate; response to any
of the following situations:
(A) A discharge of a hazardous; waste;
(B) An imminent and substantial
threat of a discharge of hazardous
waste:
(C] A discharge of a material which,
when discharged, becomes a .hazardous
waste.'
(ii) Any person who continues or
initiates hazardous waste treatment or
containment activities after the
immediate response is over is subject to
all applicable requirements of this Part
for those activities.
(4) Permits foe less than an entire
facility. EPA may issue or deny a permit
for one or more units, at a facility
without simultaneously issuing or
denying a permit to all of the units at the
facility. The interim status of any unit
for which a permit has not been issued
or denied is not affected by the issuance
or denial of a permit to any. other unit at
the facility.
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14230 Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations
§270.2 Definition*.
The following definitions apply to
Parts 270. 271 and 124. Terms not
defined in this section have the meaning
given by RCRA.
Administrator means the
Administrator of the United States
Environmental Protection Agency, or an
authorized representative.
Application means the EPA standard
national forms for applying for a permit.
including any additions, revisions or
modifications to the forms: or forms
approved by EPA for use in approved
States, including any approved
modifications or revisions. Application
also includes the information required
by the Director under §§270.14-270.29
(contents of Part B of the RCRA
application).
Approved program of approved State
means a State which has been approved
or authorized by EPA under Part 271. .
Aquifer means a geological formation,
group of formations, or part of a
formation that is capable of yielding a
significant amount of water to a well or
spring.
Closure means the act of securing a
Hazardous Waste Management facility
pursuant to the requirements of 40 CFR
Part 264.
CWA means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act or Federal
Water Pollution Control Act
amendments of 1972) Pub. L. 92-500, as
amended by Pub. L 92-217 and Pub. L.
95-576: 33 U.S.C. 1251 et seq.
Director means the Regional
Administrator or the State Director, as
the context requires, or an authorized
representative. When there is no
approved State program, and there is an
EPA administered program, Director
means the Regional Administrator.
When there is an approved State
program. Director normally means the
State Director. In some circumstances,
however, EPA retains the authority to
take certain actions even when there is
.an approved State program..In.such .. .._
cases, the term Director means the
Regional Administrator and not the
State Director.
Disposal means the discharge.
deposit injection, dumping, spilling,
leaking, or placing of any hazardous
waste into or on any land or water so
that such hazardous waste or any
constituent thereof may enter the
environment or be emitted into the air or
discharged into any waters, including
ground water.
•Disposal facility means a facility or
part of a facility at which hazardous
waste is intentionally placed into or on
the land or water, and at which
hazardous waste will remain after
closure.
Draft permit means a document
prepared under § 124.6 indicating the
Director's tentative decision to issue or
deny, modify, revoke and reissue,
terminate, or reissue a permit. A notice
of intent to terminate a permit, and a
notice of intent to deny a permit, as
discussed in §124.5. are types of draft
permits. A denial of a request for
modification, revocation and reissuance.
or termination, as discussed in § 124.5 is
not a "draft permit." A proposed permit
is not a draft permit.
Elementary neutralization unit means
a device which:
(a) Is used for neutralizing wastes
which are hazardous wastes only
because they exhibit the corrosivity
characteristic deffned"in § 261.22 of this
chapter, or are listed in Subpart D of
Part 261 of this chapter only for this
reason: and
(b) Meets the definition of tank.
container, transport vehicle, or vessel in
i 260.10 of this chapter.
Emergency permit means a RCRA
permit issued in accordance with
§ 270.61.
Environmental Protection Agency
(EPA) means the United States
Environmental Protection Agency.
EPA means the United States
Environmental Protection Agency.
Existing hazardous waste
management (HWM) facility or existing
facility means a facility which was in
operation or for which construction
commenced on or before November 19.
1980. A facility has commenced
construction if:
(a) The owner or operator has
obtained the Federal. State and local
approvals or permits necessary to begin
physical construction; and either
(b)(l) A continuous on-site. physical
construction program has begun; or
(2) The owner or operator has entered
into contractual obligations which
cannot be cancelled or modified without
,£uhsian,tial Ios6-»foriphysical .. -. >—
construction of the facility to be
completed within a reasonable time.
Facility or activity means any HWM •
facility or any other facility or activity
(including land or appurtenances
thereto) that is subject to regulation
under the RCRA program.
Federal, State and local approvals or
permits necessary to begin physical
construction means permits and
approvals required under Federal. State
or local hazardous waste control
statutes, regulations or ordinances.
Final authorization means approval
by EPA of a State program which has
met the requirements of section 3006(b]
of RCRA and the applicable
requirements of Part 271, Subpart A.
Generator means any person, by site
location, whose act. or process produces
"hazardous waste" identified or listed in
40 CFR Part 261.
Ground water means water below the
land surface in a zone of saturation.
Hazardous waste means a hazardous
waste as defined in 40 CFR 261.3.
Hazardous Waste Management
facility (HWM facility) means all
contiguous land, and structures, other
appurtenances, and improvements on
the land, used for treating, storing, or
disposing of hazardous waste. A facility
may consist of several treatment,
storage, or disposal operational units
(for example, one or more landfills,
surface-impoundments, or combinations
of them).
HWM facility means Hazardous
Waste Management facility.
Injection well means a well into
which fluids are being injected.
In operation means a facility which is
treating, storing, or disposing of
hazardous waste.
Interim authorization means approval
by EPA of a State hazardous waste
program which has met the
requirements of section 3006(c) of RCRA
and applicable requirements of Part 271,
•Subpart B.
Major facility means any facility or
activity classified as such by the
Regional Administrator, or, in the case
of approved State programs, the
Regional Administrator in conjunction
with the State Director.
Manifest means the shipping
document originated and signed by the
generator which contains the
information required by Subpart B of 40
CFR Part 262.
National Pollutant Discharge
Elimination System means the national
program for issuing, modifying, revoking
and reissuing, terminating, monitoring
and enforcing permits, and imposing and
enforcing pretreatment requirements.
•under sections-307, 402, 318.' and 405 of
the CWA. The term includes an
approved program.
NPDES means National Pollutant
Discharge Elimination System.
New HWM facility means a
Hazardous Waste Management facility
which began operation or for which
construction commenced after
November 19.1980.
Off-site means any site which is not
on-site.
On-site means on the same or
geographically continguous property
which may be divided by public or
private right(s)-of-way, provided the
entrance and exit between the
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Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations 14231
properties is at a cross-roads
intersection, and access is by crossing
as opposed to going along, the right(s)-
of-way. Non-contiguous properties
owned by the same person but
connected by a right-of-way which the
person controls and to which the public
does not have access, is also considered
on-site property.
Owner or operator means the owner
or operator of any facility or activity
subject to regulation under RCRA.
Permit means an authorization,
license, or equivalent control document
issued by EPA or an approved State to
implement the requirements of this Part
and Parts 271 and 124. Permit includes
permit by rule (§ 270.60), and emergency
permit (§ 270.61). Permit does not
include RCRA interim status'(SubpaFt-G
of this part), or any permit which has
not yet been the subject of final agency
action, such as a draft permit or a
proposed permit.
Permit-by-ruJe means a provision of
these regulations stating that a facility
or activity is deemed to have a RCRA
permit if it meets the requirements of the
provision.
Person means an individual,
association, partnership, corporation,
municipality. State or Federal agency, or
an agent or employee thereof.
Phase I means that phase of the
Federal hazardous waste management
program commencing on the effective
date of the last of the following to be
initially promulgated: 40 CFR Parts 260,
261, 262, 263, 265, 270 and 271.
Promulgation of Phase I refers to
promulgation of the regulations
necessary for Phase I to begin.
Phase II means that phase of Federal
hazardous waste management program
commencing on the effective date of the
first Subpart of 40 CFR Part 264,
Subparts F through R to be initially
promulgated. Promulgation of Phase n
refers to promulgation of the regulations
necessary for Phase D to begin.
Physical construction means
'excavation/moVement-bf earthftereettoa
of forms or structures, or similar activity
to prepare an HWM facility to accept
hazardous waste.
POTW means publicly owned
treatment works.
Publicly owned treatment works
(POTW) means any device or system
unsed in the treatment (including
recycling and reclamation) of municipal
sewage or industrial wastes of a liquid
nature which is owned by a State or
municipality. This definition includes
sewers, pipes, or other conveyances
only if they convey wastewater to a
POTW providing treatment.
RCRA means the Solid Waste •
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976 (Pub. L. 94-580. as amended
by Pub. L 95-609 and Pub. L. 96-482. 42
U.S.C. 6901 et seq.}
Regional Administrator means the
Regi *.al Administrator of the
apr. riate Regional Office of the
En omental Protection Agency or the
auti.-.nzed representative of the
Regional Administrator.
Schedule of compliance means a
schedule of remedial measures included
in a permit, including an enforceable
sequence of interim requirements (for
example, actions, operations, or
milestone events) leading to compliance
with the Act and regulations.
SDWA means the Safe Drinking
Water Act (Pub. L 95-523, as amended
• by Pub: L 95-i9ooy 42-u:s:C'30Dr(&r
se<7-).
Site means the land or water area
where any facility or activity is
physically located or conducted,
including adjacent land used in
•connection with the facility or activity.
Spill means the accidental spilling,
leaking, pumping, emitting, emptying, or
dumping of hazardous wastes or
materials which, when spilled, become
hazardous wastes into or on any land or
water.
State means any of the 50-States. the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, and
the Commonwealth of the Northern
Mariana Islands.
State Director means the chief
administrative officer of any State
agency operating an approved program,
or the delegated representative of the
State Director. If responsibility is
divided among two or more State
agencies, State Director means the chief .
administrative officer of the State
• agency authorized to perform the
particular procedure or function to
which reference is made.
State/EPA Agreement means an
Administrator and the State which
coordinates EPA and State activities,
responsibilities and programs.
Storage means the holding of
hazardous waste for a temporary period,
at the end of which the hazardous waste
is treated, disposed, -or stored
elsewhere.
Transfer facility means any
transportation-related facility Including
loading docks, parking areas, storage
areas and other similar areas where
shipments of hazardous waste are held
during the normal course of ' •
transportation.
Transporter means a person engaged
in the off-site transportation of
hazardous waste by air, rail, highway or
water.
Treatment means any method,
technique, or process, including
neutralization, designed to change the
physical, chemical, or biological
character or composition of any
hazardous waste so as to neutralize
such wastes, or so as to recover energy
or material resources from the waste, or
so as to render such waste non-
hazardous, or less hazardous; safer to
transport, store, or dispose of; or
amenable for recovery, amenable for
storage, or reduced in volume.
VIC means the Underground Injection
Control Program under Part C of the
Safe Drinking Water Act, including an
- approved program.
- Underground injection means a well
injection.
Underground source of drinking water
(USDW) means an aquifer or its portion:
(a)(l) Which supplies any public - -
water system: or
(2) Which contains a sufficient
quantity of ground water to supply a
public water system; and
(i) Currently supplies drinking water
for human consumption; or
(ii) Contains fewer than 10,000 mg/1
total dissolved s'olids; and
• (b) Which is not an exempted aquifer.
USDW means underground source of
drinking water.
Wastewater treatment unit means a
device which:
(a) Is part of a wastewater treatment
facility which is subject to regulation
under either Section 402 or Section
_307(b) of the Clean Water Act; and
(b) Receives and treats or stores an
influent wastewater which is a
hazardous waste as defined in § 261.3 of
this chapter, or generates and
accumulates a wastewater treatment
sludge which is a hazardous waste as
defined in § 261.3 of this chapter, or
treats or stores a wastewater treatment
sludge which is a hazardous waste as
"•definedrin §-261:3 oHhis-chapterrand —
(c) Meets the definition of tank in
§ 260.10 of this chapter.
§ 270.3 Considerations under Federal law.
Permits shall be issued in a manner
and shall contain conditions consistent
with requirements of applicable Federal
laws. These laws may include:
(a) The Wild and Scenic Rivers Act.
16 U.S.C. 1273 et seq. Section 7 of the
Act prohibits the Regional
Administrator from assisting by license
or otherwise the construction of any
water resources project that would have
a direct, adverse effect on the values for
which a national wild and scenic river
was established.
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14232 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
(b) The National Historic
Preservation Act of 1966.16 U.S.C. 470
et seq. Section 106 of the Act and
implementing regulations (36 CFR Part
800] require the Regional Administrator.
before issuing a license, to adept
measures when feasible to mitigate
potential adverse effects of the licensed
activity and properties listed or eligible
for listing in the National Register of
Historic Places. The Act's requirements
are to be implemented in cooperation
with State Historic Preservation Officers
and upon notice to. and when
appropriate, in consultation with the
Advisory Council on Historic
Preservation.
(c) The Endangered Species Act. 16
U.S.C. 1531 et seq. Section 7 of the Act
and implementing regulations (50 CFR
Part 402) require the Regional • '
Administrator to ensure, in consultation
with the Secretary of the Interior or
Commerce, that any action authorized
by EPA is not likely to jeopardize the
continued existence of any endangered
or threatened species or adversely affect
its critical habitat.
(d) The Coastal Zone Management
Act 16 U.S.C. 1451 et seq. Section 307(c)
of the Act and implementing regulations
(15 CFR Part 930) prohibit EPA from
issuing a permit for an activity affecting
land or water use in the coastal zone
until the applicant certifies that the
proposed activity complies with the
State Coastal Zone Management
program, and the State or its designated
agency concurs with the certification (or
the Secretary of Commerce overrides
the State's nonconcurrence).
(e) The Fish and Wildlife
Coordination Act. 16 U.S.C. 661 et seq.
requires that the Regional
Administrator, before issuing a permit
proposing or authorizing the
impoundment (with certain exemptions),
diversion, or other control or
modification of any body of water.
consult with the appropriate State
agency exercising jurisdiction over
wildlife resources to conserve those
resources.
(f) Executive orders. [Reserved]
§ 270.4 Effect of a permit
(a) Compliance with a RCRA permit
during its term constitutes compliance,
for purposes of enforcement with
Subtitle C of RCRA. However, a permit
may be modified, revoked and reissued.
or terminated during its term for cause
as set forth in §§270.41 and 270.43.
(b] The issuance of a permit does not
convey any property rights of any sort
or any exclusive privilege.
(c) The issuance of a permit does not
authorize any injury to persons or
property or invasion of other private
rights, or any infringement of State or
local law or regulations.
§ 270.5 Noncompliance and program
• reporting by the Director.
The Director shall prepare quarterly
and annual reports as detailed below.
When the State is the permit-issuing
authority, the State Doctor shall submit
any reports required under this section
to the Regional Administrator. When
EPA is the permit-issuing authority, the
Regional Administrator shall submit any
report required under this section to
EPA Headquarters. For purposes of this
section only. RCRA permittees shall
include RCRA interim status facilities.
when appropriate.
(a) Quarterly reports. The Director
shall submit quarterly narrative reports
for major facilities as follows:
(1) Format. The report shall use the
following format:
(i) Information on noncompliance for
each facility;
(ii) Alphabetize by permittee name.
When two or more permittees have the
same name, the lowest permit number
shall be entered first;
(iii) For each entry on the list, include
the following information in the
following order
(A) Name, location, and permit
number of the noncomplying permittee.
(B) A brief description and date of
each instance of noncompiiance for that
permittee. Instances of noncompliance
may include one or more of the kinds set
forth in paragraph (a)(2) of this section.
When a permittee has noncompliance of
more than one kind, combine the
information into a single entry for each
such permittee.
(C) The date(s) and a brief description
of the action(s).
(D) Status of the instance(s) of .
noncompliance with the date of the
review of the status or the date of
resolution.
(E) Any details which tend to explain
or mitigate the instance(s) of
noncompliance.
fttfnstances-dfTioncom'ph'axce 'to'be"
reported. Any instances of
noncompliance within the following
categories shall be reported in
successive reports until the
noncompliance is reported as resolved.
Once noncompliance is reported as
resolved it need not appear in
subsequent reports;
(i) Failure to complete construction
elements. When the permittee has failed
to complete, by the date specified in the
permit an element of a compliance
schedule involving either planning for
construction (for example, award of a
contract preliminary plans), or a
construction step (for example, begin
construction, attain operation level); and
the permittee has not returned to
compliance by accomplishing the
required element of the schedule within
30 days from the'date a compliance
schedule report is due under the permit.
(ii) Modifications to schedules of
compliance. When a schedule of
compliance in the permit has been
modified under § 270.41 or 270.42
because of the permittee's
noncompliance.
(iii) Failure to complete or provide
compliance schedule or monitoring
reports. When the permittee has failed
to complete or provide a report required
in a permit compliance schedule (for
example, progress report or notice of
noncompliance or compliance) or a
monitoring report and the permittee has
not submitted the complete report
within 30 days from the date it is due
under the permit for compliance
schedules,-or from the date specified in
the permit for monitoring reports.
(iv) Deficient reports. When the
required reports provided by the
permittee are so deficient as to cause
misunderstanding by the Director and
thus impede the review of the status of
compliance. • •
(v) Noncompliance with other permit
requirements. Noncompliance shall be
reported in the following circumstances:
(A) Whenever the permittee has
violated a permit requirement (other
than reported under paragraph (a)(2)(i)
or (ii) of this section), and has not
returned to compliance within 45 days
from the date reporting of
noncompliance was due under the
permit; or
(B) When the Director determines that
a pattern of noncompliance exists for a
major facility permittee over the most
recent four consecutive reporting
periods. This pattern includes any '
violation of the same requirement in two
consecutive reporting periods, and any •
violation of one or more requirements in
each of four consecutive reporting .
-peribdsror •••••••
(C) When the Director determines
significant permit noncompliance or
other significant event has occurred.
such as a fire or explosion.
(vi) All other. Statistical information
shall be reported quarterly on all other
instances of noncompliance by major .
facilities with permit requirements not
otherwise reported under paragraph (a)
of this section.
(3) In addition to the annual non-
compliance report the Director shall
prepare a "program report" which
contains information (in a manner and
form prescribed by the Administrator)
on generators and transporters and the
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14233
permit status of regulated facilities. The
Director shall also include, on a biennial
basis, summary information on the
quantities and types of hazardous
wastes generated, transported, treated,
stored, and disposed during the
preceding odd numbered year. This
summary information shall be reported
according to EPA characteristics and
lists of hazardous wastes at 40 CFR Part
261.
(b) Annual reports.
(i) Annual noncompliance report.
Statistical reports shall be submitted by
the Director on nonmajor RCRA
permittees indicating the total number
reviewed, the number of noncomplying
nonmajor permittees, the number of
enforcement actions, and number of
permit modifications extending ».<••
compliance deadlines. The statistical
information shall be organized to follow
the types of noncompliance listed in
paragraph (a) of this section.
(2) In addition to the annual
noncompliance report, the Director shall
prepare a "program report" which
contains information (in a manner and
form prescribed by the Administrator)
on generators and transporters; the
permit status of regulated facilities; and
summary information on the quantities
and types of hazardous wastes
generated, transported, stored, treated,
and disposed during the preceding year.
This summary information shall be
reported according to EPA
characteristics and lists of hazardous
wastes at 40 CFR Part 261.
(c) Schedule.
(1) For all quarterly reports. On the
last working day of May, August
November, and February, the State
Director shall submit to the Regional
Administrator information concerning
noncompliance with RCRA permit
requirements by major facilities in the
State in accordance with the following
schedule.. The Regional Administrator
shall prepare and submit information for
EPA-issued permits to EPA
Headquarters in accordance with; the • •
same schedule.
QUARTERS COVERED BY REPORTS ON
NONCOMPUANCE BY MAJOR DISCHARGERS
(Dau tor compMon ol noons)
January. February, and March _ 'May 31
Apr*. May. and "••"» 'August 31
July. August, and SaptaniiMr— 'NowmbarSO
October. Novamear. and Da- •February 28
.'Test Methods for the Evaluation of
Solid Waste, Physical/Chemical
Methods" (1980), EPA publication
number SW-646. available from the U.S.
Environmental Protection Agency, 26 W.
St. Clair St., Cincinnati, Ohio 45268.
(b) The references listed in paragraph
(a) of this section are also available for
inspection at the Office of the Federal
Register. 1100 L Street, N.W.,
Washington. D.C. 20408. These
incorporations by reference were
approved by the Director of the Federal
Register. These materials are
incorporated as they exist on the date of
approval and a notice of any change in
these materials will be published in the
Federal Register.
§§ 270.7-270.9* [Reserved}. •-
Subpart B— Permit application
§ 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. Persons currently
authorized with interim status shall
apply for permits when required by the
Director. Persons covered by RCRA
permits by rule (§ 270.80), need not
apply. Procedures for applications,
issuance and administration of
emergency permits are found
exclusively in § 270.61.
(b) Who applies? When a facility or
activity is owned by one person but is
operated by another person, it is the
operator's duty to obtain a permit,
except that the owner must also sign the
permit application.
(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
•Reports must Da mada avaBaMa to lha public for Inspac-
ton and copying on this oata.
§270.6 References.
(a) When used in Part 270 of this
Chapter, the following publications are
incorporated by reference:
application form and any supplemental
information which are completed to his
or her satisfaction. The completeness of
any application for a permit shall be
judged independently of the status of
any other permit application or permit
for the same facility. For EPA-
Administered programs, an application
which is reviewed under § 124.3 is
complete when the Director receives
information listed in a notice of
deficiency.
(d) Information requirements. All
applicants for RCRA permits shall
provide information set forth in § 270.13
and applicable sections in § § 270.14-
270.29 to the Director, using the
application form provided by the
Director.
(e) Existing HWM facilities. (1)
Owners and operators of existing
hazardous waste management facilities
must submit Part A of their permit
application to the Regional
Administrator 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 265 or 266. or (ii) thirty
days after the date they first become
subject to the standards set forth in 40
CFR Parts 265 or 266, whichever first
occurs.
[Note.—For facilities which must comply
with Part 265 because they handle a waste
listed in EPA's May 19.1980. Part 261
regulations (45 FR 33006 et seq.). the deadline
for submitting an application is November 19,
1980. Where other existing facilities must
begin in complying with Parts 265 or 266 at a
later date because of revisions to Parts 260. ,
261. 265. or 266. the Administrator will
specify in the preamble to those revisions
when those facilities must submit a permit
application.!
(2) The Administrator may by
publication in the Federal Register
extend the date by which owners and
operators of specified classes of existing
hazardous waste management facilities
must submit Part A of their permit
application if he finds that (i) there has
besn substantial confusion as to
whether the owners and operators of
such facilities were required to file a
. permit application and (ii) such
confusion is attributed to ambiguities in
EPA's Parts 260, 261, 265, or 266
regulations. '
(3) The Administration may by
compliance order issued under Section
3008 of RCRA extend the date by which
the owner and operator of an existing
hazardous waste management facility
must submit Part A of their permit
application.
(4) At any time after promulgation of
. ~Bhase-ll lhe-o*vner
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14234
Federal Register / Vol. 48, No. 64 / Friday. April 1, 1983 / Rules and Regulations
(5) Failure to furnish a requested part
B application on time, or to furnish in
.full the information required by the Part
B application, is grounds for termination
of interim status under Part 124.
(f) New HWM facilities. (1) Except as
provided in paragraph (0(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 RCRA
permit.
(2) An application for a permit for a
new HWM facility (including both Part
A and Part B) may be filed any time
after promulgation of those standards in
Part 264. Sufapart I et seq. applicable to
such facility. The application shall be
filed with the Regional Administrator if
at the time of application the-State~1n~ "
which the new HWM facility is
proposed to be located has not received
Phase n interim authorization for
permitting such facility or final
authorization; otherwise it shall be filed
with the State Director. Except as
provided in paragraph (f)(3) of this
section, all applications must be
submitted at least 180 days before
physical construction is expected to
commence.
(3) After November 19.1980, but prior .
to the effective date of those standards
in Part 264. Subpart I et seq^ which are
applicable to his facility, a person may
begin physical construction of a new
HWM facility, except for landfills,
injection wells, land treatment facilities
or surface impoundments [as defined in
40 CFR 260.10). without having received
a finally effective RCRA permit. If prior
to beginning physical construction, such
person has:
(i) Obtained the Federal, State and
local approvals or permits necessary to
begin physical construction:
(ii) Submitted Part A of the permit
application; and
(hi) Made a commitment to complete
physical construction of the facility
within a reasonable time. Such persons,
may continue pbysical'construction of -•
the HWM facility after the effective date
of the permitting standards in Part 264,
Subpart I et seq^ applicable to his
facility if he submits Part B of the permit
application on or before the effective.
date of such standards (or on some later
date specified by the Administrator).
Such person must not operate the HWM
facility without having received a finally
effective RCRA permit
(g) Updating permit applications. (1) If
any owner or operator of a HWM
facility has filed Part A of a permit
application and has not yet filed Part B,
the owner or operator shall file an
amended Part A application:
(i) With the Regional Administrator, if
the facility is located in a State which
has not obtained interim authorization
for phase II or final authorization, within
six months after the promulgation of
revised regulations under Part 261 listing
or identifying additional hazardous
wastes, if the facility is treating, storing.
or disposing of any of those newly listed
or identified wastes.
(ii) With the State Director, if the
facility is located in a State which has
obtained Phase II interim authorization
or final authorization, no later than the
effective date of regulatory provisions
listing or designating wastes as
hazardous in that State in addition to
those listed or designated under the
previously approved State program, if
the facility is treating,.storing,-or-.
disposing of any of those newly listed or
designated wastes; or
(iii) As necessary to comply with
provisions of | 270.72 for changes during
interim status or with the analogous
provisions of a State program approved
for filial authorization or interim
authorization for Phase n. Revised Part
A applications necessary to comply with
the provisions of § 270.72 shall be filed
with the Regional Administrator if the
State in which the facility in question is
located does not have Phase II interim
authorization or final authorization:
otherwise it shall be filed with the State
Director (if the State has an analogous
provision).
(2) The owner or operator of a facility
who fails to comply with the updating
requirements of paragraph (g)(l) of this
section does not receive interim status
as to the wastes not covered by duly
filed Part A applications.
(h) Reapplications. Any HWM facility
with an effective permit shall submit a -.
new application at least 180 days before
the expiration date of the effective
permit unless permission for a later
date has been granted by the Director.
(The Director shall not grant permission
for applications to be submitted later
-•than 1he-expira lion tiate'bT (he' existing
permit)
(i) Recortikep.ping, Applicants shall
keep records of ail data used to
complete permit applications and any
supplemental information submitted
under §§ 270.10(d), 270.13, 270.14-270.21
for a period of at least 3 years from the
date the application is signed.
§ 270.11 Signatories to permit applications
and reports.
(a) Applications. All permit
applications shall be signed as follows:
(1) For a corporation; by a'principal
executive officer of at least the level of
vice-president:
(2) For a partnership or sole
proprietorship; by a general partner or
the proprietor, respectively; or
(3) For a municipality. State, Federal,
or other public agency; by either a
principal executive officer or ranking
elected official.
(b) Reports. All reports required by
permits and other information requested
by the Director shall be signed by a
person described in paragraph (a) of this
section, or by a duly authorized
representative of that person. A person
is a duly authorized representative only
if:
(1) The authorization is made in
writing by a person described in
paragraph (a) of this section;
(2) The authorization specifies either
an individual or a position having
responsibility for overall operation of
the regulated facility or activity such as
the position of plant manager, operator
of a well or a well field, superintendent.
or position of equivalent responsibility. .
(A duly authorized representative may
thus be either a named individual or any
individual occupying a named position};
and
(3) The written authorization is
submitted to the Director.
(c) Changes to authorization. If an
authorization under paragraph (b) of this
section is no longer accurate because a
different individual or position has
responsibility for the overall operation
of the facility, a new authorization
satisfying the requirements of paragraph
(b) of this section must be submitted to
the Director prior to or together with any
reports, information, or applications to
be signed by an authorized
representative.
(d) Certification. Any person signing a
document under paragraph (a) or (b) of
this section shall make the following
certification:
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document
and all attachments and that, based on my
- Inquiry bf those individuals immediately
responsible for obtaining the information. I
believe that the information is true, accurate.
and complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment
§ 270.12 Confidentiality of information.
(a) In accordance with 40 CFR Part 2,
any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the submitter.
Any such claim must be asserted at the
time of submission in the manner
prescribed on the application form-or
instructions or. in the case of other
submissions, by stamping the words
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Federal Register / Vol. 48. No. 64 / Friday. April l. 1983 / Rules and Regulations
14235
"confidential business information" on
each page containing such information.
If no. claim is made at the time of
submission. EPA may make the
information available to the public
without further notice. If a claim is
asserted, the information will be treated
in accordance with the procedures in 40
CFR Part 2 [Public Information).
(b) Claims of confidentiality for the
name and address of any permit
applicant or permittee will be denied.
§ 270.13 Contents of Part A of the permit
application.
Part A of the RCRA application shall
include the following information:
(a) The activities conducted by the
applicant which require it to obtain a
permit under RCRA.
(b) Name, mailing address, and
location, including latitude and
longitude of the facility for which the
application is submitted.
(c) Up to four SIC codes which best
reflect the principal products or services
provided by the facility.
(d) The operator's name, address,
telephone number, ownership status,
and status as Federal, State, private, •
public, or other entity.
(e) The name, address, and phone
^ number"of the owner of the facility.
(f) Whether the facility is located on
Indian lands.
(g) An indication of whether the
facility is new or existing and whether it
is a first or revised application.
(h) For existing facilities, [1] a scale
drawing of the facility showing the
location of all past, present and future
treatment, storage, and disposal areas;
and (2] photographs of the facility
clearly delineating all existing
structures: existing treatment storage,
and disposal areas; and sites of future
treatment storage, and disposal areas.
(i) A description of the processes to be
used for treating, storing, and disposing
of hazardous waste, and the design
snpacity of these items.
(j) A specification of the hazardous
wastes listed or designated under 40
CFR Part 201 to be treated, stored, or
disposed of at the facility, an estimate of
ihe quantity of such wastes to be
treated, stored, or disposed annually,
and a general description of the
processes to be used for such wastes.
(k) A listing of all permits or
construction approvals received or
applied for under any of the following
programs:
(1) Hazardous Waste Management
program under RCRA. * '
(2) UIC program under the SWDA.
(3) NPDES program under the CWA.
(4) Prevention of Significant
Deterioration (PSD) program under the
Clean Air Act.
(5) Nonattainment program under the
Clean Air Act.
(6) National Emission Standards for
Hazardous Pollutants (NESHAPS)
preconstruction approval under the
Clean Air Act
(7) Ocean dumping permits under the
Marine Protection Research and
Sancturaies Act.
(B) Dredge or fill permits under section
404 of the CWA.
(9) Other relevant environmental
permits, including State permits.
(1) A topographic map {or other map if
a topographic map is unavailable)
extending one mile beyond the property
boundaries of the source, depicting the
facility and each of its intake and'
discharge structures; each of its
hazardous waste treatment, storage, or
disposal facilities; each well where
fluids from the facility are injected
underground: and those wells, springs.
other surface water bodies, and drinking
water wells listed in public records or
otherwise known to the applicant within
JJ mile of the facility property boundary.
(m) A brief description of the nature
of the business.
§ 270.14 Contents of Part B: General
Requirements.
(a) Part B of the permit application
consists of the general information
requirements of this section, and the
specific information requirements in
§§ 270.14-270.29 applicable to the
facility-. The Part B information
requirements presented in §§ 270.14-
270.29 reflect the standards promulgated
in 40 CFR Part 264. These information
requirements are necessary in order for
EPA to determine compliance with the
Part 264 standards. If owners and
operators of HWM facilities can
demonstrate that the information
prescribed in Part B can not be provided
to the extent required, the Director may
make allowance for submission of such
information on a case-by-case basis.
Information required in Part B shall be
submitted to the Director and signed in
accordance with requirements in
§ Z70.ll. Certain technical data, such as
design drawings and specifications, and
engineering studies shall be certified by
a registered professional engineer.
(b) General information requirements.
The following information is required for
all HWM facilities, except as § 284.1
provides otherwise:
(1) A general description of the
facility.
(2) Chemical and physical analyses of
the hazardous waste to be handled at
the facility. At a minimnrn, these
analyses shall contain all the
information which must be known to
treat, store, or dispose of the wastes
properly in accordance with Part 264.
(3) A copy of the waste analysis plan
required by § 264.13(b) and. if applicable
§ 264.13(c).
(4) A description of the security
procedures and equipment required by
§ 264.14, or a justification demonstrating
the reasons for requesting a waiver of
this requirement.
(5) A copy of the general inspection
schedule required by § 264.15(b); Include
where applicable, as part of the
inspection schedule, specific
requirements in §§ 284.174. 264.194.
264.226, 264 254, 264.273, and 264.303.
(6) A justification of any request for a
waivers) ofthe preparedness and
prevention requirements of Part 264,
Subpart C.
(7) A copy of the contingency plan
required by Part 264, Subpart D. Note:..
Include, where applicable, as part of the
contingency plan, specific requirements
in § § 264.227 and 264.255.
(8) A description of procedures,
structures, or equipment used at the
facility to:
(i) Prevent hazards in unloading
operations (for example, ramps, special
forklifts); .
(ii) Prevent runoff from hazardous
waste handling areas to other areas of
the facility or environment, or to prevent
flooding (for example, berms. dikes,
trenches);
(iii) Prevent contamination of water
supplies;
(iv) Mitigate effects of equipment
failure and power outages; and
(v) Prevent undue exposure of
personnel to hazardous waste (for
example, protective clothing).
(9) A description of precautions to
prevent accidental ignition or reaction of
ignitable, reactive, or incompatible
wastes as required tc demonstrate
compliance with § 264.17 including
* documentation nemcttistrating
compliance with § 264.17(c).
(10) Traffic pattern, estimated volume
(number, types of vehicles) and control
(for example, show turns across traffic •
lanes, and stacking lanes (if
appropriate); describe access road
surfacing aQd load bearing capacity;
show traffic control signals).
(11) Facility location information;
(i) In order to determine the
applicability of the seismic standard
[§ 264.18(a)] the owner or operator of a
new facility must identify the political
jurisdiction (e.g., county, township, or
election district) in which the facility is
proposed to be located.
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14236 Federal Register / Vol. 48. No. 64 / Friday, April 1, 1983 / Rules and Regulations
[Comment: If the county or election district
is not listed in Appendix VI of Part 264. no
further information is required to
demonstrate compliance with § 264.18(a).|
(ii) If the facility is proposed to be
located in an area listed in Appendix VI
of Part 264. the owner or operator shall
demonstrate compliance with the
seismic standard. This demonstration
may be made using either published
geologic data or data obtained from field
investigations carried out by the
applicant The information provided
must be of such quality to be acceptable
to geologists experienced in identifying
and evaluating seismic activity. The
information submitted must show that
either
(A) No faults which have had
displacement in Holocene time are. . -.
present or no lineations which suggest
the presence of a fault (which have
displacement in Holocene time) within
3.000 feet of a facility are present, based
on data from:
(1) Published geologic studies.
(2) Aerial reconnaissance of the area
within a five-mile radius from the
facility.
(3) An analysis of aerial photographs
covering a 3.000 foot radius of the
facility, and
(4) If needed to clarify the above data.
a reconnaissance based on walking
portions of the area within 3.000 feet of
the facility, or
(B) If faults (to include lineations)
which have had displacement in
Holocene time are present within 3.000
feet of a facility, no faults pass with 200
feet of the portions of the facility where
treatment storage, or disposal of
hazardous waste will be conducted,
based on data from a comprehensive
geologic analysis of the site. Unless a
site analysis is otherwise conclusive
concerning the absence of faults within
200 feet of such portions of the facility
data shall be obtained from a
subsurface exploration (trenching) of the
area within a distance no less than 200
feet from portions of- the factlity-where
treatment storage, or disposal of
hazardous waste will be conducted.
Such trenching shall be performed in a
direction that is perpendicular to known
faults (which have had displacement- in
Holocene time) passing within 3.000 feet
of the portions of the facility where
treatment storage, or disposal of
hazardous waste will be conducted.
Such investigation shall document with
supporting maps and other analyses, the
location of faults found.
[Comment The Guidance Manual for the
Location Standards provides greater detail on
the content of «acn type of seismic
investigation tuid the appropriate conditions
under which each approach or a combination
of approaches would be used.]
(iiij Owners and operators of all
facilities shall provide an identification
•of whether the facility is located within
a 100-year floodplain. This identification
must indicate the source of data for such
determination and include a copy of the
relevant Federal Insurance
Administration (FIA) flood map, if used,
or the calculations and maps used
where an FIA map is not available.
Information shall also be provided
identifying the 100-year flood level and
any other special flooding factors (e.g.,
wave action) which must be considered
in designing, constructing, operating, or
maintaining the facility to withstand
washout from a 100-year flood.
[Comment: Where maps for the National
Flood Insurance Program produced by the
Federal Insurance Administration (FIA) of
the Federal Emergency Management Agency
are available, they will normally be
determinative of whether a facility is located
within or outside of the 100-year floodplain.
However, the FIA map excludes an area
(usually areas of the floodplain less than 200
feet in width), these areas must be
considered and a determination made as to
whether they are in the 100-year floodplain.
Where FIA maps are not available for a
proposed facility location, the owner or
operator must use equivalent mapping
techniques to determine whether the facility
is within the 100-year floodplain. and if so
located, what the 100-year flood elevation
would be.]
(iv) Owners and operators of facilities
located in the 100-year floodplain must
provide the following information:
(A) Engineering analysis to indicate
the various hydrodynamic and
hydrostatic forces expected to result at
the site as consequence of a 100-year
flood.
(B) Structural or other engineering
studies showing the design of
operational units (e.g., tanks,
incinerators) and flood protection
devices (e.g., floodwalls. dikes) at the
facility and how these will prevent
—washout : '
(C) If applicable, and in lieu of
paragraphs (b)(ll)(iv) (A) and (B) above.
a detaild description of procedures to be
followed to remove hazardous waste to
safety before the facility is flooded,
including:
(1) Timing of such movement relative
to flood levels, including estimated time
to move the waste, to show that such
movement can be completed before
floodwaters reach the facility.
(2) A description of the location(s) to
which the waste will be moved and
demonstration that those facilities will
be eligible to receive hazardous waste in
accordance with the regulations under
Parts 270. 271.124, and 264 through 266
of this Chapter.
(3) The planned procedures,
equipment and personnel to be used
and the means'to ensure that such
resources will be available in time for
use.
{4} The potential for accidental
discharges of the waste during
movement.
(v) Existing facilities NOT in
compliance with § 264.18(b) shall
provide a plan showing how the facility
will be brought into compliance and a
schedule for compliance.
(12) An outline of both the
introductory and continuing training
programs by owners or operators to
prepare persons to operate or maintain
the HWM facility in a safe manner as
required to demonstrate compliance
with § 264.16. A brief description of how
training will be designed to meet actual
job tasks in accordance with
requirements in § 264.16(a)(3).
(13) A copy of the closure plan and.
where applicable, the post-closure plan
required by §§264.112 and 264.118.
Include, where applicable, as part of the
plans, specific requirements in
§§264.178. 264.197, 264.228. 264.258.
264.280, 264.310. and 264.351.
(14) For existing facilities.
documentation that a notice has been
placed in the deed or appropriate
alternate instrument as required by
§ 264.120.
(15) The most recent closure cost
estimate for the facility prepared in
accordance with § 264.142 plus a copy of
the financial assurance mechanism
adopted in compliance with § 264.143.
(16) Where applicable, the most recent
post-closure cost estimate for the facility
prepared in accordance with § 264.144
plus a copy of the financial assurance
mechanism adopted in compliance with
§ 264.145.
(17) Where applicable, a copy of the
insurance policy or other documentation
' which comprises' compliance with the
requirements of § 264.147. For a new
facility, documentation showing the
amount of insurance meeting the
specification of § 264.147(a) and. if
applicable, § 264.147(b). that the owner
or operator plans to have in effect
before initial receipt of hazardous waste
for treatment, storage, or disposal. A
request for a variance in the amount of
required coverage, for a new or existing
facility, may be submitted as specified
in § 264.147(d).
(18) Where appropriate, proof of
coverage by a State financial
mechanism in compliance with
§§264.149 or 264.150.
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14237
(19) A topographic map showing a
distance of 1CCO feet around the facility
at a scale of 2.5 centimeters (1 inch)
equal to not more than 61.0 meters (200
feet). Contours must be shown on the
map. The contour interval must be
sufficient to clearly show the pattern of
surface water flow in the vicinity of and
from each operational unit of the
facility. For example, contours with an
interval of 1.5 meters (5 feet), if relief is
greater than 6.1 meters (20 feet), or an
interval of 0.6 meters (2 feet), if relief is
less than 6.1 meters (20 feet). Owners
and operators of HWM facilities located
in mountainous areas should use large
contour intervals to adequately show
topographic profiles of facilities. The
map shall clearly show the following:
(i) Map scale and date.
(ii) 100-year floodplairi area.
(iii) Surface waters including
intermittant streams.
(iv) Surrounding land uses
(residential, commercial, agricultural,
recreational).
• (v) A wind rose (i.e.,- prevailing wind-
speed and direction).'
(vi) Orientation of the map (north
arrow).
(vii) Legal boundaries of the HWM
facility site.
(viii) Access control (fences, gates).
(ix) Injection and withdrawal wells
both on-site and off-site. -
(x) Buildings; treatment, storage, or
disposal operations; or other structure
(recreation areas, runoff control
systems, access and internal roads,
storm, sanitary, and process sewerage
systems, loading and unloading areas.
fire control facilities, etc.)
(xi) Barriers for drainage or flood
control.
(xii) Location of operational units
within the HWM facility site, where
hazardous waste is (or will be) treated,
stored, or disposed (include equipment
cleanup areas).
[Note.—For large HWM facilities the
Agency will allow the use of other scales on
—a case-by-case basis.)
(20) Applicants may be required to
submit such information as may be
necessary to enable the Regional
Administrator to carry out his duties
under other Federal laws as required in
§ 270.3 of this part
(c) Additional information
requirements. The following additional
information regarding protection of
ground water is required from owners or
operators of hazardous waste surface
impoundments, piles, land treatment
units, and landfills except as otherwise
provided in § 264.90(bJ:
(1) A summary of the ground-water
monitoring data obtained during the
interim status period under § § 265.90-
265.94, where applicable.
(2) Identification of the uppermost
aquifer and aquifers hydraulically
interconnected beneath the facility
property, including ground-water flow
direction and rate, and the basis for
such identification (i.e., the information
obtained from hydrogeologic
investigations of the facility area).
(3) On the topographic map required
under paragraph (b)(19) of this section, a
delineation of the waste management
area, the property boundary, the
proposed "point of compliance" as
defined under § 264.95. the proposed
location of ground-water monitoring
wells as required under § 264.97. and, to
the extent possible, the information
required in paragraph (c)(2) of this
' section: -
(4) A description of any plume of
contamination that has entered the
ground water from a regulated unit at
the time that the application was
submitted that
(i) Delineates the extent of the plume
on the topographic map required under
paragraph (b)(19) of this section;
(ii) Identifies the concentration of
each Appendix VTII constituent
throughout the plume or identifies the
maximum concentrations of each
Appendix VIII constituent in the plume.
(5) Detailed plans and an engineering
report describing the proposed ground
water monitoring program to be
implemented to meet the requirements
of § 264.97.
(6) If the presence of hazardous
constituents has not been detected in
the ground water at the time of permit
application, the owner or operator must
submit sufficient information, supporting
data, and analyses to establish a
detection monitoring program which
meets the requirements of § 264.98. This
submission must address the following
items specified under § 264.98:
(i) A proposed list of indicator
parameters, waste constituents, or
reaction products that can provide a
-relistokrindication-tiP the presence'df *' "
hazardous constituents in the ground
water
(ii) A proposed ground-water
monitoring system;
(iii) BacKground values for each
proposed monitoring parameter or
constituent, or procedures to calculate
such'values; and •
(iv) A description of proposed
sampling, analysis and statistical
comparison procedures io be utilized in
evaluating ground-water monitoring
data.
(7) If the presence of hazardous
constituents has been detected in the
ground water at the point of compliance
at the time of permit application, the
owner or operator must submit sufficient
information, supporting data, and
analyses to establish a compliance
monitoring program which meets the
requirements of § 264.99. The owner or
operator must also submit an
engineering feasibility plan for a ,
corrective action program necessary to
meet the requirements of § 284.100,
except as provided in § 264.98(h)(5). To
demonstrate compliance with § 264.99.
the owner or operator must address the
following items:
(i) A description of the wastes
previously handled at the facility;
(ii) A characterization of the
contaminated ground water, including
concentrations of hazardous
constituents;...
(iii) A list of hazardous constituents
for which compliance monitoring will be
undertaken in accordance with § 264.97
and 264.99:
(iv) Proposed concentration limits'for
each hazardous constituent based on
the criteria set forth in § 264.94(a),
including a justification for establishing
any alternate concentration limits;
(v) Detailed plans and an engineering
report describing the proposed ground-
water monitoring system, in accordance
with the requirements of § 264-97; and
(vi) A description of proposed
sampling, analysis and statistical
comparison procedures to be utilized in
evaluating ground-water monitoring
data. ,
(8) If hazardous constituents have
been measured in the ground water
which exceed the concentration limits
established under § 264.94 Table 1. or if
ground water monitoring conducted at
the time of permit application under
I § 265.90-265.94 at the waste boundary -
indicates the presence of hazardous
constituents from the facility in ground
water over background concentrations.
the owner or operator must submit
sufficient information, supporting data.
and analyses to establish a corrective
'^actioirprogram'which meets* the
requirements of § 264.100. However, an
owner or operator is not required to
submit information to establish a
corrective action program if he
demonstrates to the Regional
Administrator that alternate
concentration limits will protect human
health and the environment after
considering the criteria listed in § 264.94.
An owner or operator who is not
required to establish a corrective action
program for this reason must instead.
submit sufficient information to
establish a compliance monitoring
program which meets the requirements
of § 264.99 and paragraph (c)(6) of this
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
section. To demonstrate compliance
with § 264.100, the owner or operator
must address, at a minimum, the
following items:
(i) A characterization of the
contaminated ground water, including
concentrations of hazardous
constituents;
(ii) The concentration limit for each
hazardous constituent found in the
ground water as set forth in § 264.94:
(iii) Detailed plans and an engineering
report describing the corrective action to
be taken; and
(iv) A description of how the ground-
water monitoring program will
demonstrate the adequacy of the
corrective action.
§ 270.15 Specific Part B information
requirements tor containers.
Except as otherwise provided in
§ 264.1, owners or operators of facilities
that store containers of hazardous waste
must provide the following additional
information:
(a) A description of the containment
system to demonstrate compliance with
§ 264.175. Show at least the following:
(1} Basic design parameters.
dimensions, and materials of
construction.
(2] How the design promotes drainage
or how containers are kept from contact
with standing liquids in the containment
system.
(3) Capacity of the containment
system relative to the number and
volume of containers to be stored.
(4) Provisions for preventing or
managing run-on.
(5) How accumulated liquids can be
analyzed and removed to prevent
overflow.
(b) For storage areas that store
containers holding wastes that do not
contain free liquids, a demonstration of
compliance with § 264.175(c), including:
(1) Test procedures and results or
other documentation or information to
show that the wastes do not contain free
liquids; and
(2\A description of.how the storage ,.„,
area is designed or operated to drain
and remove liquids or how containers
are kept from contact with standing
liquids.
(c) Sketches, drawings, or data
demonstrating compliance with
§ 264.176 (location of buffer zone and
containers holding ignitable or reactive
wastes) and § 264.177(c) (location of
incompatible wastes), where applicable.
(d) Where incompatible wastes are
stored or otherwise managed in
containers, a description of the
procedures used to ensure compliance
with §§ 264.177 (a) and {b), and 264.17
(b) and (c).
§270.16 Specific Part B information
requirements for tanks.
Except as otherwise provided in
§ 264.1, owners and operators of
facilities that use tanks to store or treat
hazardous waste must provide a
description of design and operation
procedures which demonstrate
complaince with the requirements of
§§ 264.191, 264.192, 264.198 and 264.199
including: (a) References to design
standards or other available information
used (or to be used) in design and
construction of the tank.
(b) A description of design
specifications including identification of
construction materials and lining
materials (include pertinent
characteristics such as corrosion or
erosion resistance).
{c) Ta'nk'dfmensions, capacity, and
shell thickness.
(d) A diagram of piping,
instrumentation, and process flow.
(e) Description of feed systems, safety
cutoff, bypass systems, and pressure
controls (e.g., vents).
(f) Description of procedures for
handling incompatible ignitable, or
reactive wastes, including the use of
buffer zones.
§ 270.17 Specific Part B information
requirements for surface impoundments.
Except as otherwise provided in
§ 264.1, owners and operators of
facilities that store, treat or dispose of
hazardous waste in surface
impoundments must provide the
following additional information:
(a) A list of the hazardous wastes
placed or to be placed in each surface
impoundment;
(b) Detailed plans and an engineering
report describing how the surface
impoundment is or will be designed,
constructed, operated and maintained to
meet'the requirements of § 264.221. This
submission must address the following
items as specified in § 264.221:
(1) The liner system (except for an
existing portion of a surface
.•jjQpQundment^I&anvxeraption-from the
requirement for a liner is sought as
provided by § 264.221{b). submit
detailed plans and engineering and
hydrogeologic reports, as appropriate,
describing alternate design and
operating practices that will, in
conjunction with location aspects,
prevent the migration of any hazardous
constituents into the ground water or
surface water at any future time;
(2) Prevention of overtopping; and
(3) Structural integrity of dikes;
(c) If any exemption from Subpart F of
Part 264 is sought, as provided'by
§ 264.222(a), detailed plans and an
engineering report explaining the
location of the saturated zone in relation
to the surface impoundment, and the
design of a double-liner system that
incorporates a leak detection system
between the liners;
(d) A description of how each surface
impoundment, including the liner and
cover systems and appurtenances for
control of overtopping, will be inspected
in order to meet the requirements of
§ 264.226(a) and (b). This information
should be included in the inspection
plan submitted under § 270.14(b)(5);
(e) A certification by a qualified
engineer which attests to the structural
integrity of each dike, as required under
§ 264.226(c). For new units, the owner or
operator must submit a statement by a
qualified engineer that he will provide
such a certification upon completion of
construction in accordance with the
plans and specifications;
(f) A description of the procedure to
be used for removing a surface
impoundment from service, as required
under § 264.227(b) and (c). This
information should be included in the
contingency plan submitted under
§ 270.14(b)(7);
(g) A description of how hazardous
waste residues and contaminated
materials will be removed from the unit
at closure, as required under
i 264.228(a)(l). For any wastes not to be
removed from the unit upon closure, the
owner or operator must submit detailed-
plans and an engineering report
describing how § 264.228(a)(2) and (b)
will be complied with. This information
should be included in the closure plan
and. where applicable, the post-closure
plan submitted under § 270.l4(b)(13);
(h) If ignitable or reactive wastes are
to be placed in a surface impoundment,
an explanation of how § 264.229 will be
complied with;
(i) If incompatible wastes, or
incompatible wastes and materials will
be placed in a surface impoundment, an
explanation of how § 264.230 will be
complied with.
§ 270.18 Specific Part B information
requirements for waste piles.
Except as otherwise provided in
§ 264.1, owners and operators of
facilities that store or treat hazardous
waste in waste piles must provide the
following additional information:
(a) A list of hazardous wastes placed
or to be placed in each waste pile;
(b) If an exemption is sought to
§ 264.251, and Subpart F of Part 264 as
provided by § 264.250(c), an explanation
of how the standards of § 264.250(c) will
be complied with;
(c) Detailed plans and an engineering
report describing how the pile is or will
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14239
be designed, constructed, operated and
maintained to meet the requirements of
§ 264.251. This submission must address
the following items as specified in
§ 264.251:
(1) The liner system (except for an
existing portion of a pile). If an
exemption from the requirement for a
liner is sought, as provided by
§ 264.252(b), the owner or operator must
submit detailed plans and engineering
and hydrogeologic reports, as
applicable, describing alternate design
and operating practices that will, in
conjunction with location aspects,
prevent the migration of any hazardous
constituents into the ground water or
surface water at any future time:
(2) Control of run-on:
(3) Control of run-off;
(4) Management of collection and
holding units associated with run-on and
run-off control systems; and
(5) Control of wind dispersal of
particulate matter, where applicable;
(d) If an exemption from Subpart F of
Part 264 is sought as provided by
§§264.252 or 264.253. submit detailed
plans and an engineering report
describing how the requirements of
§ § 264.252(a) or 264.253(a) will be •
complied with;
(e) A description of how each waste
pile, including the liner and
appurtenances for control of run-on and
run-off, will be inspected in order to
meet the requirements of § 264.254 (a)
and (b). This information should be
included in the inspection plan
submitted under § 270.l4(b)(5). If an
exemption is sought to Subpart F of Part
264 pursuant to § 264.253, describe in the
inspection plan how the inspection
requirements of § 264.253(a)(3) will be
complied with;
(f) If treatment is carried out on or in
the pile, details of the process and
equipment used, and the nature and
quality of the residuals;
(g) If ignitable or reactive wastes are
. .to be placed in a waste pile, an
explanation of how the requirements "bf
§ 284.256 will be complied with;
(h) If incompatible wastes, or
incompatible wastes and materials will
be place in a waste pile, an explanation
of how §284.257 will be complied with;
(i) A description of how hazardous
waste residues and contaminated
materials will be removed from the
waste pile at closure, as required under
§ 284.258(a). For any waste not to be
removed from the waste pile upon
closure, the owner or operator must
submit detailed plans and an
engineering report describing how
§ 264.310 (a) and (b) will be complied
with. This information should be '
included in the closure plan and, where
applicable, the post-closure plan
submitted under § 270.14(b)(13).
§ 270.19 Specific Part B Information
requirements tor incinerators.
Except as § 264.340 of this chapter
provides otherwise, owners and
operators of facilities that incinerate
hazardous waste must fulfill the
requirements of (a}, (b), or (c) of this
section.
(a] When seeking an exemption under
§ 264.340 (b) or (c) of this chapter
(Ignitable, corrosive, or reactive wastes
only):
(1) Documentation that the waste is
listed as a hazardous waste in Part 261,
Subpart D of this chapter, solely
because it is ignitable (Hazard Code I)
or corrosive (Hazard Code C) or both; or
(2) Documentation that the waste is
listed as a hazardous waste in Part 261,
Subpart D of this chapter, solely
because it is reactive (Hazard Code R)
for characteristics other than those
listed in § 261.23(a) (4) and (5) of this
chapter, and will not be burned when
other hazardous wastes are present in
the combustion zone; or
(3] Documentation that the waste is a
hazardous waste solely because it
possesses the characteristic of
ignitability, corrosivity, or both, as
determined by the tests for
characteristics of hazardous waste
under Part 261, Subpart C of this
Chapter or
(4) Documentation that the waste is a
hazardous waste solely because it
possesses the reactivity characteristics
listed in § 261.23(a) (1), (2). (3), (6). (7), or
(8) of this Chapter, and that it will not be
burned when other hazardous wastes
are present in the combustion zone; or
(b) Submit a trial bum plan or the .
results of a trial burn, including all
required determinations, in accordance
with S 270.82; or
(c) In lieu of a trial burn, the applicant
may submit the following information:
(1) An analysis of each waste or
-mixture of wsretertcrbe'-bumed '•-"
including:
(i) Heat value of the waste in the form
and composition in which it will be
burned.
(ii) Viscosity (if applicable), or
description of physical form of the
waste.
(iii) An identification of any
hazardous organic constituents listed in
Part 261, Appendix Vm, of this Chapter,
which are present in the waste to be
burned, except that the applicant need
not analyze for constituents listed in
Part 261, Appendix Vm, of this'Chapter
which would reasonably not be
expected to be found in the waste. The
constituents excluded from analysis
must be identified and the basis for their
exclusion stated. The waste analysis
must rely on analytical techniques
specified in 'Test methods for the
evaluation of Solid Waste, Physical/
Chemical Methods" (incorporated by
reference, see § 270.6 and referenced in
40 CFR Part 261, Appendix HI), or their
equivalent.
(iv) An approximate quantification of
the hazardous constituents identified hi
the waste, within the precision produced
by the analytical methods specified in
'Test Methods for the Evaluation of
Solid Waste, Physical/Chemical
Methods" (incorporated by reference,
see § 270.6).
(v) A quantification of those
. .hazardous constituents in the waste
which may be designated as POHC's
based on data submitted from other trial
or operational burns which demonstrate
compliance with the performance
standards in 264.343 of this chapter. - -
(2) A detailed engineering description
of the incinerator, including:
(i) Manufacturer's name and model
number of incinerator.
(ii) Type of incinerator.
(iii) Linear dimension of incinerator
unit including cross sectional area of
combustion chamber.
(iv) Decription of auxiliary fuel system
(type/feed).
(v) Capacity of prime mover.
(vi) Description of automatic waste
feed cutoff system(s).
(vii) Stack gas monitoring and
pollution control monitoring system.
(viii) Nozzle and burner design.
(ix) Construction materials.
(x) Location and description of
temperature, pressure, and flow
indicating devices and control devices.
(3) A description and analysis of the
waste to be burned compared with the
waste for which data from operational
or trial burns are provided to support
the contention that a trial burn is not
neededt-The data-should include those
items listed in paragraph (c)(l) of this
section. This analysis should specify the
POHCs which the applicant has
identified in the waste for which a
permit is sought, and any differeneces
from the POHCs in the waste for which
burn data are provided.
(4) The design and operating
conditions of the incinerator unit to be
used, compared with that for which
comparative bum data are available.
(5) A description of the results
submitted from any previously
conducted trial burn(s) including:
(i) Sampling and analysis techniques
used to calculate performance standards
in § 264.343 of this chapter,
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14240 Federal Register / VoL 48. No. 64 / Friday, April 1, 1983 / Rules and Regulations
(ii) Methods and results of monitoring
temperatures, waste feed rates, carbon
monoxide, and an appropriate indicator
of combustion gas velocity (including a
statement concerning the precision and
accuracy of this measurement).
(6) The expected incinerator operation
information to demonstrate compliance
with §§ 264.343 and 264.345 of this
chapter including:
(i) Expected carbon monoxide (CO)
level in the stack exhaust gas.
(ii) Waste feed rate.
(in) Combustion zone temperature.
(iv) Indication of combustion gas
velocity.
(v) Expected stack gas volume, flow
rate, and temperature.
(vi) Computed residence time for
waste in the combustion zone." *• • •
(vii) Expected hydrochloric acid
removal efficiency.
(viii) Expected fugitive emissions and
their control procedures.
(ix) Proposed waste feed cut-off limits
based on the identified significant
operating parameters.
(7) Such supplemental information as
the Director finds necessary to achieve
the purposes of this paragraph.
(8) Waste analysis data, including that
submitted in paragraph (c)(l) of this
section, sufficient to allow the Director
to specify as permit Principal Organic
Hazardous Constituents (permit
POHC's) those constituents for which
destruction and removal efficiencies will
be required.
(d) The Director shall approve a
permit application without a trial burn if
he finds that
(1) The wastes are sufficiently similar;
and
(2) The incinerator units are
sufficiently similar, and the data from
other trial burns are adequate to specify
(under § 264.345 of this chapter)
operating conditions that will ensure
that the performance standards in
§ 264.343 of this Chapter will be met by
the incinerator.
'(3) [Reserved]. ' :"- '
§27020 Specific Part B information
requirements for landfills.
Except as otherwise provided in
§ 264.1, owners and operators of
facilities that use land treatment to
dispose of hazardous waste must
provide the following additional
information:
(a) A description of plans to conduct a
treatment demonstration as required
under § 264.272. The description must
include the following information;
(1) The wastes for which the
demonstration will be made and the
potential hazardous constituents in. the
waste;
(2) The data sources to be used to
make the demonstration [e.g., literature,
laboratory data. Geld data, or operating
data): _
(3) Any specific laboratory or field
test that will be conducted, including:
(i) The type of test (e.g., column
leaching, degradation);
(ii) Materials and methods, including
analytical procedures;
(iii) Expected time for completion;
(iv) Characteristics of the unit that
will be simulated in the demonstration,
including treatment zone characteristics,
climatic conditions, and operating
practices.
(b) A description of a land treatment
program, as required under § 264.271.
This information must be submitted with
the plans for the"treatment"~ "
demonstration, and updated following
the treatment demonstration. The land
treatment program must address the
following items:
(1) The wastes to be land treated:
(2) Design measures and operating
practices necessary to maximize
treatment in accordance with
§ 264.273(a) including:
(i) Waste application method and rate;
(ii) Measures to control soil pH;
(iii) Enhancement of microbial or
chemical reactions;
(iv) Control of moisture content
(3) Provisions for unsaturated zone
monitoring, including:
(i) Sampling equipment, procedures,
and frequency;
(ii) Procedures for selecting sampling
locations;
(iii) Analytical procedures:
(iv) Chain of custody control:
(v) Procedures for establishing
background values:
(vi) Statistical methods for
interpreting results;
(vii) The justification for any
hazardous constituents recommended
for selection as principal hazardous
constituents, in accordance with the
criteria for such selection in § 264.278(a);
--»(4}-A-hst-oHiazardous-constit3ents •
reasonably expected to be in, or derived
from, the wastes to be land treated
based on waste analysis performed
pursuant to § 264.13;
(5) The proposed dimensions of the
treatment zone;
(c) A description of how the unit is or
will be designed, constructed, operated,
and maintained in order to meet the
requirements of § 264.273. This
submission must address the following
items:
(1) Control of run-on:
(2) Collection and control of run-off;
(3) Minimization of run-off of
hazardous constituents from the
treatment zone;
(4) Management of collection and
holding facilities associated with run-on
and run-off control systems;
(5) Periodic inspection of the unit. This
information should be included in the
inspection plan submitted under
§ 270.14(b)(5);
(6) Control of wind dispersal of
particulate matter, if applicable;
(d) If food-chain crops are to be grown
in or on the treatment zone of the land
treatment unit, a description of how the
demonstration required under
§ 264.276(a) will be conducted including:
(1) Characteristics of the food-chain
crop for which the demonstration will be
made.
(2) Characteristics of the waste,
treatment zone, and waste application
method and rate to be used in the
demonstration;
(3) Procedures for crop growth, sample
collection, sample analysis, and data
evaluation;
(4) Characteristics of the comparison
crop including the location and
conditions under which it was or will be
grown;
(5) If food-chain crops are to be
grown, and cadmium is present in the
land-treated waste, a description of how
the requirements of § 264.276(b) will be
-complied with;
(6) A description of the vegetative
cover to be applied to closed portions of
the facility, and a plan for maintaining
such cover during the post-closure care
period, as required under § 264.280(a)(8)
and § 264.280(c}(2). This information
should be included in the closure plan
and, where applicable, the post-closure
care plan submitted under
§ 270.14(b)(13);
(7) If ignitable or reactive wastes will
be placed in or on the treatment zone,
an explanation of how the requirements
of § 264.281 will be complied with;
(8) If incompatible wastes, or
incompatible wastes and materials, will
be placed in or on the same treatment
zone, an explanation'of hoW § 264.282
will be complied with,
§ 270.21 Specific Part B information
requirements for land treatment facilities. -
Except as otherwise provided in
§ 264.1, owners and operators of
facilities that dispose of hazardous
waste in landfills must provide the
following additional information: '
(a) A list of the hazardous wastes
placed or to be placed in each landfill or
landfill cell;
(b) Detailed plans and an engineering
report describing how the landfill is or
will be designed, constructed, operated
and maintained to comply with the
requirements of § 264.301. This
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14241
submission must address the following
items as specified in § 264.301:
(1) The liner system and leachate
collection and removal system (except
for an existing portion of a landfill). If an
exemption from the requirements for a
liner and a leachate collection and
removal system is sought as provided by
| 264.301(b), submit detailed plans and
engineering and hydrogeologic reports,
as appropriate, describing alternate
design and operating practices that will,
in conjunction with location aspects,
prevent the migration of any hazardous
constituent into the ground water or
surface water at any future time;
(2) Control of run-on;
(3) Control of run-off;
(4) Management of collection and -.~
holding facilities associated with run-on
and run-off control systems; and
(5) Control of wind dispersal of
participate matter, where applicable;
(c) If an exemption from Subpart F of
Part 264 is sought as provided by
§ 264.302(a), the owner or operator must
submit detailed plans and an
engineering report explaining the
location of the saturated zone in relation
to the landfill, the design of a double-
liner system that incorporates a leak
detection system between the liners,
and a leachate collection and removal
system above the liners;
(d) A description of how each landfill.
including the liner and cover systems,
will be inspected in order to meet the
requirements of § 264.303 (a) and [b).
This information should be included in
the inspection plan submitted under
§ 270.14(b){5).
(e) Detailed plans and an engineering
report describing the final cover which
will be applied to each landfill or
landfill cell at closure in accordance
with § 264.310(a), and a description of
how each landfill will be maintained
and monitored after closure in
accordance with § 264.310(b). This
information should be included in the
closure and post-closure plans
submitted under § 270.14(b)(13).
(f) If ignitable or reactive wastes will
be landfilled. an explanation of how the
standards of § 264.312 will be complied
with;
(g) If incompatible wastes, or
incompatible wastes and materials will
be landfilled, an explanation of how
§ 264.313 will be complied with;
(h) If bulk or non-containerized liquid
waste or wastes containing free liquids
is to be landfilled, an explanation of
how the requirements of J 264.314 will
be complied with;
(i) If containers of hazardous, waste
are to be landfilled. an explanation of
how the requirements of § 264.315 or
§ 264.316. as applicable, will be
complied with.
§§ 270.22-270.29 [Reserved]
Subpart C—Permit Conditions .
§ 270.30 Conditions applicable to all
permits.
The following conditions apply to all
RCRA permits, and shall be
incorporated into the permits either
expressly or by reference. If
incorporated by reference, a specific
citation to these regulations (or the
corresponding approved State
regulations] must be given in the permit.
(a) Duty to comply. The permittee
must comply with all conditions of this
permit, except that the permittee need
not comply with the conditions of this
permit to the extent and for the duration
such noncompliance is authorized in an
emergency permit. (See § 270.61). Any
permit noncompliance, except under the
terms of an emergency permit,
constitutes a violation of the appropriate
Act and is grounds for enforcement
action; for permit termination,
revocation and reissuance, or
modification; or for denial of a permit
renewal application.
(b) Duty to reappfy. If the permittee
wishes to continue an activity-regulated
by this permit after the expiration date
of this permit, the permittee must apply
for and obtain a new permit.
(c) Need to halt or reduce activity not
a defense. It shall not be a defense for a
permittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity in order to
maintain compliance with the conditions
of this permit
(d) Duty to mitigate. The permittee
shall take all reasonable steps to
minimize or correct any adverse impact
on the environment resulting from
noncompliance with this permit
(e) Proper operation and maintenance.
The permittee shall at all times properly
operate and maintain all facilities and _
systems of treatment and contror(and
related appurtenances] which are
installed or used by the permittee to
achieve compliance with the conditions
of this permit Proper operation and
maintenance includes effective
performance, adequate funding,
adequate operator staffing and training,
and adequate laboratory and process
controls, including appropriate quality
assurance procedures. This provision
requires the opration of back-up or
auxiliary facilities or similar systems
only when necessary to achieve
compliance with the conditions of the
permit
(f) Permit actions. This permit may be
modified, revoked and reissued, or
terminated for cause. The filing of a
request by the permittee for a permit
modification, revocation and reissuance,
or termination, or a notification of
planned changes or anticipated
noncompliance, does not stay any
permit condition.
(g) Property rights. The permit does
not convey any property rights of any
sort or any exclusive privilege.
(h) Duty to provide information. The
permittee shall furnish to the Director,
within a reasonable time, any relevant
information which the Director may
request to determine whether cause
exists for modifying, revoking and
reissuing, or terminating this permit, or
to determine compliance with this
permit The permittee shall also furnish
to the Director, upon request, copies of
records required to be kept by this
permit.
(i) Inspection and entry. The permittee
shall allow the Director, or an
authorized representative, upon the
presentation of credentials and other
documents as may be required by law
to:
(I) Enter at reasonable times upon the
permittee's premises where a regulated
facility or activity is located or
conducted, or where records must be
kept under the conditions of this permit;
(2) Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit;
(3) Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment],
practices, or operations regulated or
required under this permit; and
(4) Sample or monitor at reasonable
times, for the purposes of assuring
permit compliance or as otherwise
authorized by RCRA. any substances or
parameters at any location.
(j) Monitoring and records. (1)
Samples and measurements taken for
the purpose of monitoring shall be
~ Tepresentative' of the monitored activity.
(2) The permittee shall retain records
of ail monitoring information, including
all calibration and maintenance records
and all original strip chart recordings for
continuous monitoring instrumentation.
copies of all reports required by this
permit and records of all data used to
complete the application for this permit
for a period of at least 3 years from the
date of the sample, measurement report
or application. This period may be
extended by request of the Director at
any time. The permittee shall maintain
records of all ground-water quality and
ground-water surface elevations, for the
active life of the facility, and for the
post-closure care period as welL
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14242 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(3) Records for monitoring information
shall include:
(i) The date, exact place, and time of
sampling or measurements:
(ii) The individuals] who performed
the sampling or measurements:
(iii) The date(s) analyses were
performed;
(iv) The individual(s) who performed
the analyses;
(v) The analytical techniques or
methods used; and
(vi) The results of such analyses.
(k) Signatory requirements. All
applications, reports, or information
submitted to the Director shall be signed
and certified (See § 270.11.)
(1) Reporting requirements. (1)
, Planned changes. The permittee shall
give notice to the Director as soon as
possible, of any planned-physical-* - - •
alterations or additions to the permitted
facility.
(2) Anticipated noncompliance. The
permittee shall give advance notice to
the Director of any planned changes in
the permitted facility or activity which
may result in noncompliance with
permit requirements. For a new facility,
the permittee may not treat, store, or
dispose of hazardous waste; and for a
facility being modified, the permittee '
may not treat, store, or dispose of
hazardous waste in the modified portion
of the facility, until:
(i) The permittee has submitted to the
Director by certified mail or hand
delivery a letter signed by the permittee
and a registered professional engineer
stating that the facility has been
constructed or modified in compliance
with the permit and
(ii)(A) The Director has inspected the
modified or newly constructed facility
and finds it is in compliance with the
conditions of the permit or
(B) Within 15 days of the date of
submission of the letter in paragraph
(c)(l) of this section, the permittee has
not received notice from the Director of
his or her intent to inspect prior
inspection is waived ana the permittee
-may commence treatment, storage, or
disposal of hazardous waste.
(3} Transfers. This permit is not
transferable to any person except after
notice to the Director. The Director may
require modification or revocation and
reissuance of the permit to change the
name of the permittee and incorporate
such other requirements as may be
necessary under RCRA. (See § 270.40)
(4) Monitoring reports. Monitoring
results shall be reported at the intervals
specified elsewhere in this permit
(5} Compliance schedules. Reports of
compliance or noncompliance with, or
any progress reports on, interim and
final requirements contained 'in any
compliance schedule of this permit shall
be submitted no later than 14 days
following each schedule date.
(6) Twenty-four hour reporting, (i) The
permittee shall report any
noncompliance which may endanger
health or the environment orally within
24 hours from the time the permittee
becomes aware of the circumstances,
including:
(A) Information concerning release of
any hazardous waste that may cause* an
endangennent to public drinking water
supplies.
(B) Any information of a release or
discharge of hazardous waste or of a fire
or explosion from ihe HWM facility,
which could threaten the environment or
human health outside the facility.
(ii) The description of the occurrence
and'its cause shall Include:
(A) Name, address, and telephone
number of the owner or operator
(B) Name, address, and telephone
number of the facility;
(C) Date, time, and type of incident;
(D) Name and quantity of material(s)
involved;
(E) The extent of injuries, if any;
(F) An assessment of actual or
potential hazards to the environment
and human health outside the facility,
where this is applicable; and
(G) Estimated quantity and
disposition of recovered material that
resulted from the incident
(iii) A written submission shall also
be provided within 5 days of the time
the permittee becomes aware of the
circumstances. The written submission
shall contain a description of the
noncompliance and its cause; the period
of noncompliance including exact dates
and times, and if the noncompliance has
not been corrected, the anticipated time
it is expected to continue; and steps
taken or planned to reduce, eliminate,
and prevent reoccurrence of the
noncompliance. The Director may waive
the five day written notice requirement
in favor of a written report within fifteen
days. .. . -
' ""fTTJftdfufesrdiscrepancy report: If a
significant discrepancy in a manifest is
discovered, the permittee must .attempt
to reconcile the discrepancy. If not
resolved within fifteen days, the
permittee must submit a letter report
including a copy of the manifest to the
Director. (See 40 CFR 264.72.)
(B) Unmanifested waste report: This
report must be submitted to the Director
within 15 days of receipt of
unmanifested waste. (See 40 CFR
§ 264.76)
__ (9) Biennial report A biennial report
must be submitted covering facility
activities during odd numbered calendar
years. (See 40 CFR 264.75.)
(10) Other noncompliance. The
permittee shall report all instances of
noncompliance not reported under
paragraphs (L)(4), (5), and (6) of this
section, at the'time monitoring reports
are submitted. The reports shall contain
the information listed in paragraph (1](6)
of this section.
(11) Other information. Where the
permittee becomes aware that it failed
to submit any relevant facts in a permit
application, or submitted incorrect
information in a permit application or in
any report to the Director, it shall
promptly submit such facts or
information. •
§ 270.31 Requirements for recording and
reporting of monitoring results.
All permits shall specify:
(a) Requirements concerning the
proper use, maintenance, and
installation, when appropriate, of
monitoring equipment or methods .
(including biological monitoring
methods when appropriate);
(b) Required monitoring including
type, intervals, and frequency sufficient
to yield data which are representative of
the monitored activity including, when
appropriate, continuous monitoring;
(c) Applicable reporting requirements
based upon the impact of the regulated
activity and as specified in Parts 264.
266 and 267. Reporting shall be no less
frequent than specified in the above
regulations.
§ 270.32 Establishing permit conditions.
(a) In addition to conditions required
in all permits (§ 270.30), the Director
shall establish conditions, as required
on a case-by-case basis, in permits
under § § 270.50 (duration of permits),
270.33(a) (schedules of compliance),
270.31 (monitoring), and for EPA issued
permits only, 270.33(b] (alternate
schedules of compliance) and 270.3
(considerations under Federal law).
(b) Each RCRA permit shall include
, peiinit.Conditions, necessary to achieve
compliance with the Act and
regulations, including each of the
applicable requirements specified in 40
CFR Parts 264.266, and 267. In satisfying
this provision, the Director may
incorporate applicable requirements of
40 CFR Parts 264. 266. and 267 directly
into the permit or establish other permit
conditions that are based on these parts.
(c) For a State issued permit an
applicable requirement is a-State
statutory or regulatory requirement
which takes effect prior to final
administrative disposition of a permit.
For a permit issued by EPA. an
applicable requirement is a statutory or
regulatory requirement (including any
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
14243
interim final regulation) which takes
effect prior to the issuance of the permit
(except as provided in J 124.B6(c) for
RCRA permits being processed under
Subparts E or F of Part 124). Section
124.14 (reopening of comment period)
provides a means for reopening EPA
permit proceedings at the discretion of
the Director where new requirements
become effective during the permitting
process and are of sufficient magnitude
to make additional proceedings
desirable. For State and EPA
administered programs, an applicable
requirement is also any requirement
which takes effect prior to the
modification or revocation and
reissuance of a permit to the extent
allowed in §270.41. •
(d) New or reissued permits, and to
the extent allowed under § 270.41,
modified or revoked and reissued
permits, shall incorporate each of the
applicable requirements referenced in
this section and in 40 CFR 270.31.
(e) Incorporation. All permit
conditions shall be incorporated either
expressly or by reference. If
incorporated by reference, a specific
citation to the applicable regulations or
requirements must be given in the
permit
§ 270.33 Schedules of compliance.
(a) The permit may. when appropriate.
specify a schedule of compliance
leading to compliance with the Act and
regulations.
(1) Time for compliance. Any
schedules of compliance under this
section shall require compliance as soon
as possible.
(2) Interim dates. Except as provided
in paragraph (b)(l)(ii) of this section, if a
permit establishes a schedule of
compliance which exceeds 1 year from
the date of permit issuance, the schedule
shall set forth interim requirements and
the dates for their achievement.
~(i)The time between interim dates
shall not exceed 1 year.
(ii) If the time necessary for
completion of any interim requirement is
more than 1 year and is not readily
divisible into stages for completion, the .
permit shall specify interim dates for the
submission of reports of progress
toward completion of the interim
requirements and indicate a projected
completion date.
(3) Reporting. The permit shall be
written to require that no later than 14
days following each interim date and
the final date of compliance, tbs
permittee shall notify the director in
writing, of its compliance or •
noncompliance with the interim or final
requirements, or submit progress reports
if paragraph (a)(2)(ii) of this section is
applicable.
(b) Alternative schedules of
compliance. A RCRA permit applicant
or permittee may cease conducting
regulated activities (by receiving a
terminal volume of hazardous waste)
and for treatment and storage HWM
facilities, closing pursuant to applicable
requirements; and for disposal HWM
facilities, closing and conducting post-
closure care pursuant to applicable
requirements, rather than continue to
operate and meet permit requirements
as follows:
(1) If the permittee decides to cease
conducting regulated activities at a
given time within the term of a permit
which has alreadybeeniisstied;^ •
(i) The permit may be modified to
contain a new or additional schedule
leading to timely cessation of activities:
or
(ii) The permittee shall cease
conducting permitted activities before
noncompiiance with any interim or final
compliance schedule requirement
already specified in the permit.
(2) If the decision to cease conducting
regulated activities is made before
issuance of a permit whose term will
include the termination date, the permit
shall contain a schedule leading to
termination which will ensure timely
compliance with applicable
requirements.
(3) If the permittee is undecided
whether to cease conducting regulated
activities, the Director may issue or
modify a permit to contain two
schedules as follows:
(i) Both schedules shall contain an
identical interim deadline requiring a
final decision on whether to cease .
conducting regulated activities no later
than a date which ensures sufficient
time to comply with applicable
requirements in a timely manner if the
decision is to continue conducting
regulated activities;
(ii)'One'schedule"shall lead toliinely "
compliance with applicable
requirements;
(iii) The second schedule shall lead to
cessation of regulated activities by a
date which will ensure timely
compliance with applicable
requirements;
"(iv) Each permit containing two
schedules shall include a requirement
that after the permittee has made a final
decision under paragraph (b)(3)(i) of this
section it shall follow the schedule
leading to compliance if the decision is
to continue conducting regulated
activities, and follow the schedule
leading to termination if the decision is
to cease conducting regulated activities.
(4) The applicant's or permittee's
decision to cease conducting regulated
activities shall be evidenced by a firm
public commitment'satisfactory to the
Director, such as resolution of the board
of directors of a corporation.
§§270.34-270.39 [Reserved]
Subpart D—Changes to permit
§ 270.40 Transfer of permits.
Transfers by modification. A permit
may be transferred by the permittee to a
new owner or operator only if the permit
has been modified or revoked and
reissued (under § 270.41(b)(2)). or a
minor modification made (under
§ 270.42(d)), to identify the new
permittee-and incorporate such other
requirements as may be necessary
under the appropriate Act.
§270.41 Major modification or revocation
and reissuance of permits.
When the Director receives any
information (for example, inspects the
facility, receives information submitted
by the permittee as required in the
permit (see § 270.30)), receives a request
for modification or revocation and
reissuance under § 124.5. or conducts a
review of the permit file) he or she may
determine whether or not one or more of
the causes listed in paragraphs (a) and
(b) of this section for modification, or
revocation and reissuance or both exist.
If cause exists, the Director may modify
or revoke and reissue the permit
accordingly, subject to the limitations of
paragraphs (c) of this section, and may
request an updated application if
necessary. When a permit is modified,
only the conditions subject to
modification are reopened. If a permit is
revoked and reissued, the entire permit
is reopened and subject to revision and
the permit is reissued for a new term.
See 40 CFR 124JS(c)(2). If cause does not
exist under this section or 40 CFR 270.42,
the Director shall not modify or revoke
•-«iouTe!ssttBtheT)eftnltIf-a-permit
modification satisfies the criteria in 40
CFR 270.42 for a minor modification, the
permit may be modified without a draft
permit or public review. Otherwise, a
draft permit must be prepared and other
procedures in Part 124 (or procedures of
an approved State program) followed.
(a) Causes for modification. The
following are causes for modification.
but not revocation and reissuance. of
permits: the following may be causes for
revocation and reissuance. as well ss
modification, when the permittee
requests or agrees.
(1) Alterations. There are material and
substantial alterations or additions to
the permitted facility or activity which
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14244 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
occurred after permit issuance which
justify the application of permit
conditions that are different or absent in
the existing permit.
(2) Information. The Director has
received information. Permits may be
modified during their terms for this
cause only if the information was not
available at the time of permit issuance
(other than revised regulations,
guidance, or test methods) and would
have justified the application of
different permit conditions at the time of
issuance.
(3) New regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of amended standards or
regulations or by judicial decision after
the permit was issued.-Permits may be-~ •
modified during their terms for this
cause only as follows:
(i) For promulgation of amended
standards or regulations, when:
(A) The permit condition requested to
be modified was based on a
promulgated Parts 260-266 regulation;
and
(B) EPA has revised, withdrawn, or
modified that portion of the regulation
on which the permit condition was
based; and
(C) A permittee requests modification
in accordance with § 124.5 within ninety
(90) days after Federal Register notice of
the action on which the request is based.
(ii) For judicial decisions, a court of
competent jurisdiction has remanded
and stayed EPA promulgated
regulations if the remand and stay
concern that portion of the regulations
on which the permit condition was
based and a request is filed by the
permittee in accordance with § 124.5
within ninety (90) days of judicial
remand.
(4) Compliance schedules. The
Director determines good cause exists
for modification of a compliance
schedule, such as an act of God, strike,
ilood. or materials shortage or other, ,
events over which the permittee has*
little or no control and for which there is
no reasonably available remedy.
(5) The Director may also modify a
permit
(i) When modification of a closure
plan is required under §§264.112(b) or
264.118(b).
(ii) After the Director receives the
notification of expected closure under
§ 264.113, when the Director determines
that extension of the 90 to 180 day
periods under § 264.113, modification of
the 30-year post-closure period under
§ 264.1l7(a), continuation of security
requirements under § 264.117(b), or
permission to disturb the integrity of the
containment system under § 264.117(c)
are unwarranted.
(iii) When the permittee has filed a
request under § 264.147(d) for a variance
to the level of financial responsibility or
when the Director demonstrates under
§ 264.147(c) that an upward adjustment
of the level of financial responsibility is
required.
(iv) When the corrective action
program specified in the permit under
§ 264.100 has not brought the regulated
unit into compliance with the ground-
water protection standard within a
reasonable period of time.
(v) To include a detection monitoring
program meeting the requirements of
§ 264.98, when the owner or operator
has been conducting a compliance
monitoring progranvunder-§-264-.99or-8'—
corrective action program under
§ 264.100 and compliance period ends
before the end of the post-closure care
period for the unit. .
(vi) When a permit requires a
compliance monitoring program under
§ 264.99, but monitoring data collected
prior to permit issuance indicate that the
facility is exceeding the ground-water
protection standard.
(vii) To include conditions applicable
to units at a facility that were not
previously included in the facility's
permit.
(viii) When a land treatment unit is
not achieving complete treatment of
hazardous constituents under its current
permit conditions.
(b) Causes for modification or
revocation and reissuance. The
following are causes to modify or,
alternatively, revoke and reissue a
permit:
(1) Cause exists for termination under
§ 270.43, and the Director determines
that modification or revocation and
reissuance is appropriate.
(2) The Director has received
notification (as required in the permit,
see § 270.30(L)(3)} of a proposed transfer
of the permit.
'
facility location will not be considered
at the time of permit modification or
revocation and reissuance unless new
information or standards indicate that a
threat to human health or the
environmental exists which was
unknown at the time of permit issuance.
§ 270.42 Minor modifications of permits.
Upon the consent of the permittee, the .
Director may modify a permit to make
the corrections or allowances for
changes in the permitted activity listed
in this section, without following the
procedures of Part 124. Any permit
modification not processed as a minor
modification under this section must be
made for cause and with Part 124 draft
permit and public notice as required in
§ 270.41. Minor modifications may only:
(a) Correct typographical errors;
(b) Require more frequent monitoring
or reporting by the permittee;
(c) Change an interim compliance date
in a schedule of compliance, provided
the new date is not more than 120 days
after the date specified in the existing
permit and does not interfere with
attainment of the final compliance date
requirement;
(d) Allow for a change in ownership
or operational control of a facility where
the Director determines that no other-
change in the permit is necessary,
provided that a written agreement
containing a specific date for transfer of
permit responsibility, coverage, and
liability between the current and new
permittees has been submitted to the
Director;
(e) Change the lists of facility
emergency coordinators or equipment in
the permit's contingency plan;
(f) Change estimates of maximum
inventory under § 264.112(a)(2);
(g) Change estimates of expected year
of closure or schedules for final closure
under § 264.112(a)(4);
(h) Approve periods longer than 90
days or 180 days under § 264.113 (a) and
(b):
(i) Change the ranges' of the operating
requirements set in the permit to reflect
the results of the trial burn, provided
that the change is minor
(j) Change the operating requirements
set in the permit for conducting a trial
bum. provided that the change is minor;
(k) Grant one extension of the time
period for determining operational
readiness following completion of
construction, for up to 720 hours
operating time for treatment of
hazardous waste:
(1) Change the treatment program
requirements for land treatment units
under § 264.271 to improve treatment of
.hazardous constituents, provided that
the change is minor,
(m) Change any conditions specified
in the permit for land treatment units to
reflect the results of field tests or
laboratory analyses used in making a
treatment demonstration in accordance
with § 270.63, provided that the change
is minon and
(n) Allow a second treatment
demonstration for land treatment to be
conducted when the results of the first
demonstration have not shown the
conditions under which the waste or
wastes can be treated completely as
required by § 264.272(a), provided that
the conditions for the second
demonstration are substantially the
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14245
same as the conditions for the first
demonstration.
§ 270.43 Termination of permits.
(a) The following are causes for
terminating a permit during its term, or
for denying a permit renewal
application:
(1) Noncompliance by the permittee
with any condition of the permit;
(2) The permittee's failure in the
application or during the permit
issuance process to disclose fully all
relevant facts, or the permittee's
misrepresentation of any relevant facts
at any time: or .
(3) A determination that the permitted
activity endangers human heaith or the
environment and can only be regulated
to acceptable levels by perait
modification or .termination.
(b) The Director shall follow the
applicable procedures in Part 124 or
State procedures in terminating any
permit under this section.
§§ 270.44-270.49 [Reserved.]
Subpart E—Expiration and
continuation of permits
§ 270.50 Duration of permits.
(a) RCRA permits shall be effective
for a fixed term not to exceed 10 years.
(b) Except as provided in § 270.51, the
term of a permit shall not be extended
by modification beyond the maximum
duration specified in this section.
(c) The Director may issue any permit
for a duration that is less than the full
allowable term under this section.
§ 270.51 Continuation of expiring permits.
(a) EPA permits. When EPA is the
permit-issuing authority, the conditions
of an expired permit continue in force
under 5 U.S.C. 558(c) until the effective
date of a new permit (see § 124.15) if:
(1) The permittee has submitted a
timely application under § 270.14 and
the applicable sections in §§ 270.15-
270.29 which is a complete (under
§ 270.10(c)) application fora new nennife
and
(2) The Regional Administrator
through no fault of the permittee, does
not issue a new permit with an effective
date under § 124.15 on or/before the
expiration date of the previous permit
(for example, when issuance is
impracticable due to time or resource
constraints).
(b) Effect. Permits continued under
this section remain fully effective and
enforceable.
(c) Enforcement. When the permittee
is not in compliance with the cqnditions
of the expiring or expired permit, the
Regional Administrator may choose to
do any or all of the following:
(1) Initiate enforcement action based
upon the permit which has been
continued:
(2) Issue a notice of intent to deny the
new permit under § 124.6. If the permit is
denied, the owner or operator would
then be required to cease the activities
authorized by the continued permit or be
subject to enforcement action for
operating without a permit;
(3) Issue a new permit under Part 124
with appropriate conditions: or
(4) Take other actions authorized by
these regulations.
(d) State continuation. An EPA issued
permit does not continue in force
beyond its expiration date under
Federal law if at that time a State is the
permitting authority. States authorized
to administer -the-RCRA- program oiajfc=~ .
continue either EPA or State-issued
permits until the effective date of the
new permits, if State law allows.
Otherwise, the facility is operating
without a permit from the time of
expiration of the old permit to the
effective date of the State-issued new
permit
§§ 270.52-270.59 [Reserved].
Subpart F— Special forms of permits
§ 270.60 Permits by rule.
Notwithstanding any other provision
of this Part or Part 124' the following
shall be deemed to have a RCRA permit
if the conditions listed are met
. (a) Ocean disposal barges or vessels.
The owner or operator of a barge or
other vessel which accepts hazardous
waste for ocean disposal, if the owner or
operator
(1) Has a permit for ocean dumping
issued under 40 CFR Part 220 (Ocean
Dumping, authorized by the Marine
Protection, Research, and Sanctuaries
Act, as amended, 33 U.S.C. 1420 etseq.};
(2) Complies with the conditions of
that permit; and
(3) Complies with the following
hazardous waste regulations:
number
(ii) 40 CFR 264.71. Use of manifest
system; _
(iii) 40 CFR 264.72. Manifest
discrepancies;
(iv) 40 CFR 264.73(a) and (b)(l).
Operating record;
(v) 40 CFR 264.75, Biennial report: and
(vi) 40 CFR 264.76. Unmanifested
waste report.
. (b) Injection wells. The owner or
operator of an injection well disposing
of hazardous waste, if the owner or
operator
(1) Has a permit for underground
injection issued under Part 144 or 145;
and
(Z) Complies with the conditions of
that permit and the requirements of
§ 144.14 (requirements for wells
managing hazardous waste).
(c) Publicly owned treatment works.
The owner or operator of a POTW
which accepts for treatment hazardous
waste, if the owner or operator
(1) Has an NPDES permit;
(2) Complies with the conditions of
that permit; and
(3) Complies with the following
regulations:
(i) 40 CFR 264.11. Identification
number
(ii) 40 CFR 264.71, Use of manifest
system:
(iii) 40 CFR 264.72. Manifest
discrepancies;..
(iv) 40 CFR 264.73(a) and (b)(l).
Operating record:
(v) 40 CFR 264.75, Biennial report;
(vi) 40 CFR 264.76. Unmanifested
waste report: and
(4) If the waste meets all Federal,
State, and local pretreatment
requirements which would be applicable
to the waste if it were being discharged
into the POTW through a sewer, pipe, or
similar conveyance.
§ 270.61 Emergency permits.
(a) Notwithstanding any other
provision of this part or Part 124, in the
event the Director finds an imminent
and substantial endangerment to human
health or the/environment the Director
may issue a temporary emergency
permit for a facility to allow treatment,
storage, or disposal of hazardous waste
for a con-permitted facility or not
covered by the permit for a facility with
an effective permit.
(b)'Thia emergency permit: -
(1) May be oral or written. If oral, it
shall be followed in five days by a
written emergency permit;
(2) Shall not exceed 90. days in
duration;
(3) Shall dearly specify the hazardous
wastes to be received, and the manner
and location of their treatment storage,
or disposal:
(4) May be terminated by the Director
at any time without process if he or she
determines that termination is
appropriate to protect human health and
the environment;
(5) Shall be accompanied by a public
notice published under § 124.11 (b)
including:
(i) Name and address of the office
granting the emergency authorization;
(ii) Name and location of the
permitted HWM facility.
(iii) A brief description of the wastes
involved:
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14246 Federal Register / Vol. 48. No. 64 / Friday, April 1, 1983 / Rules and Regulations
(iv) A brief description of the action
authorized and reasons for authorizing
it; and
(v) Duration of the emergency permit;
and
(6) Shall incorporate, to the extent
possible and not inconsistent with the
emergency situation, all applicable
requirements of this part and 40 CFR
Parts 264 and 266.
§ 270.62 Hazardous waste incinerator
permits.
(a) For the purposes of determining
operational readiness following
completion of physical construction, the
Director must establish permit
conditions, including but not limited to
allowable waste feeds and operating
conditions, in the permit to a new
hazardous waste incinerator. These-- •> •
permit conditions will be effective for
the minimum time required to bring the
incinerator to a point of operational
readiness to conduct a trial burn, not to
exceed 720 hours operating time for
treatment of hazardous waste. The
Director may extend the duration of this
operational period once, for up to 720
additional hours, at the request of the
applicant when good cause is shown.
The permit may be modified to reflect
the extension according to § 270.42
(Minor modifications of permits) of this
Chapter.
(1) Appb'cants must submit a
statement, with part B of the permit
application, which suggests the
conditions necessary to operate in
compliance with the performance
standards of § 264.343 of this Chapter
during this period. This statement
should include, at a minimum,
restrictions on waste constituents, waste
feed rates and the operating parameters
identified in | 264.345 of this Chapter.
(2) The Director will review this
statement and any other relevant
information submitted with Part B of the
permit application and specify
requirements for this period sufficient to
meet the performance standards of
§ 264.343 of this Chapter based on"his
engineering judgment.
(b) For the purposes of determining
feasibility of compliance with the
performance standards of § 264.343 of
this Chapter and of determining
adequate operating conditions under
§ 284.345 of this Chapter, the Director
must establish conditions in the permit
for a new hazardous waste incinerator
to be effective during the trial bum.
(1) Applicants must propose a trial
burn plan, prepared under paragraph
(b)(2) of this section with a Part B of the
permit application. * •
(2) The trial bum plan must include
the following information:
(i) An analysis of each waste or
mixture of wastes to be burned which
includes:
(A) Heat value of the waste in the
form and composition in which it will be
burned.
(B) Viscosity (if applicable), or
description of the physical form of the
waste.
(C) An identification of any hazardous
organic constituents listed in Part 261,
Appendix VIII of this Chapter, which
are present in the waste to be burned,
except that the applicant-need not
analyze for constituents listed in Part
261, Appendix VIII, of this Chapter
which would reasonably not be
expected to be found in the waste. The
constituents excluded from analysis
must be identified, and the basis for the
exclusion stated.' The waste analysis
must rely on analytical techniques
specified in 'Test Methods for the
Evaluation of Solid Waste, Physical/
Chemical Methods" (incorporated by
reference, see § 270.6), or other
equivalent.
(D) An approximate quantification of
the hazardous constituents identified in
the waste, within the precision produced
by the analytical methods specified in
"Test Methods for the Evaluation of
Solid Waste, Physical/Chemical
Methods," (incorporated by reference,
see § 270.6), or their equivalent
(ii) A detailed engineering description
of the incinerator for which the permit is
sought including:
(A) Manufacturer's name and model
number of incinerator (if available).
(B) Type of incinerator.
(C) Linear dimensions of the
incinerator unit including the cross
sectional area of combustion chamber.
(D) Description of the auxiliary fuel
system (type/feed).
(E) Capacity of prime mover.
(F) Description of automatic waste
feed cut-off system(s).
(G) Stack gas monitoring and pollution
control equipment
(H) Nozzle and burner design.
"•*(IJ"Construetion ma'terials.
(J) Location and description of
temperature, pressure, and flow
indicating and control devices.
(iii) A detailed description of sampling
and monitoring procedures, including
sampling and monitoring locations in the
system, the equipment to be used,
sampling and monitoring frequency, and
planned analytical procedures for
sample analysis.
(iv) A detailed test schedule for each
waste for which the trial bum is planned
including date(s), duration, quantity of
waste to be burned, and other factors
relevant to the Director's decision under
paragraph (b)(5) of this section.
(v) A detailed test protocol, including,
for each waste identified, the ranges of
temperature, waste feed rate,
combustion gas velocity, use of auxiliary
fuel, and any other relevant parameters
that will be varied to affect the
destruction and removal efficiency of
the incinerator.
(vi) A description of, and planned
operating conditions for, any emission
control equipment which will be used.
(vii) Procedures for rapidly stopping
waste feed, shutting down the
incinerator, and controlling emissions in
the event of an equipment malfunction.
(viii) Such other information as the
Director reasonably finds necessary to
determine whether to approve the trial
burn plan in light of the purposes of this
paragraph and the criteria in paragraph
(b}(5) of this section.
(3) The Director, in reviewing the trial
burn plan, shall evaluate the sufficiency
of the information provided and may
require the applicant to supplement this
information, if necessary, to achieve the •
purposes of this paragraph.
(4) Based on the waste analysis data
in the trial burn plan, the Director will
specify as trial Principal Organic
Hazardous Constituents (POHCs), those
constituents for which destruction and
removal efficiencies must be calculated
during the trial bum. These trial POHCs
will be specified by the Director based
on his estimate of the difficulty of
incineration of the constituents
identified in the waste analysis, their
concentration or mass in the waste feed,
and, for wastes listed in Part 261,
Subpart D. of this Chapter, the
hazardous waste organic constituent or
constituents identified in Appendix VII
of that Part as the basis for listing.
(5) The Director shall approve-a trial
burn plan if he finds that:
(i) The trial burn is likely to determine
whether the incinerator performance
standard required by § 264.343 of this
Chapter can be met;
(ii) The trial bum itself will not
" present an imminent hazard to human
health or the environment;
(iii) The trial bum will help the
Director to determine operating
requirements to be specified under
§ 264.345 of this Chapter, and
(iv) The information sought in
paragraphs (b)(5) (i) and (ii) of this
Section cannot reasonably be developed
through other means.
(6) During each approved trial burn (or
as soon after the bum as is practicable),
the applicant must make the following
determinations:
(i) A quantitative analysis of the trial
POHCs in the waste feed to the
incinerator.
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14247
(ii) A quantitative analysis of the
exhaust gas for the concentration and
mass emissions of the trial POHCs.
oxygen (Oj) and hydrogen chloride
(HC1J.
(Hi) A quantitative analysis of the
scrubber water (if any), ash residues.
and other residues, for the purpose of
estimating the fate of the trial POHCs.
(iv) A computation of destruction and
removal efficie^ • (DRE). in accordance
with the DRE • 'la specified in
§ 264.343(a) < Chapter.
(v) If the ? :ssion rate exceeds
1.8 kilogran iCl per hour (4 pounds
per hour), a - imputation of HC1 removal
efficiency in accordance with 264.343(b)
of this Chapter.
(vi) A computation of particulate
emissions, in accordance with- . ..
§ 254.343(c) of this Chapter.
(vii) An identification of sources of
fugitive emissions and their means of
control.
(viii) A measurement of average.
maximum, and minimum temperatures
and combustion gas velocity.
(ix) A continuous measurement of
carbon monoxide (CO) in the exhaust
gas.
(x) Such other information as the
Director may specify as necessary to
ensure that the trial burn will determine
compliance with the performance
standards in § 264.343 of this Chapter
and to establish the operating conditions
required by § 264.345 of this Chapter as
necessary to meet that performance
standard.
(7) The applicant must submit to the
Director a certification that the trial
burn has been carried out in accordance
with the approved trial burn plan, and
must submit the results of all the
determinations required in paragraph '
(b)(6). This submission shall be made
within 90 days of completion of the trial
burn, or later if approved by the
Director.
(8) All data collected during any trial
burn must be submitted to the Director
-following the completion~of the. trial , *_,.
bum.
(9) All submissions required by this
paragraph must be certified on behalf of
the applicant by the signature of a
person authorized to sign a permit
application or a report under § 270.11.
(10) Based on the results of the trial
burn, the Director shall set the operating
requirements in the final permit
according to § 264.345 of this Chapter.
The permit modification shall proceed
as a minor modification according to
§ 270.42.
(c) For the purposes of allpwing
operation of a new hazardous waste
incinerator following completion of the
trial burn and prior to final modification
of the permit conditions to reflect the
trial burn results, the Director may
establish permit conditions, including
but not limited to allowable waste feeds
and operating conditions sufficient to
meet the requirements of § 264.345 of
this Chapter, in the permit to a new
hazardous waste incinerator. These
permit conditions will be effective for
the minimum time required to complete
sample analysis, data computation and
submission of the trial-bum results by
the applicant, and modification of the
facility permit by the Director.
(1) Applicants must submit a
statement, with Part B of the permit
application, which identifies the
conditions necessary to operate in
compliance with the performance
standards.of' § 264.34a of-this- .Chapter, - •
during this period. This statement
should include, at a minimum.
restrictions on waste constituents, waste
feed rates, and the operating parameters
in § 264.345 of this Chapter.
(2) The Director will review this
statement and any other relevant
information submitted with Part B of the
permit application and specify those
requirements for this period most likely
to meet the performance standards of
§ 264.343 of this Chapter based on his
engineering judgment.
(d) For the purposes t>f determining
feasibility of compliant"0 with the
performance standar f § 264.343 of
this Chapter and of c mining
adequate operating c —itions under
§ 264.345 of this Chapter, the applicant
for a permit to an existing hazardous
waste incinerator may prepare and
submit a trial burn plan and perform a
trial burn in accordance with
paragraphs (b)(2) through (b)(9) of this
Section. Applicants who submit trial
burn plans and receive approval before
submission of a permit application must
complete the trial burn and submit the
results, specified in paragraph (b)(6),
with Part B of the permit application. If
completion of this process conflicts with
"•Uwdate-set for^nbmission'ofthe'Part B
application, the applicant must contact
the Director to establish a later date for
submission of the Part B application or
the trial burn results. If the applicant
submits a trial burn plan with Part B of
the permit application, the trial burn
must be conducted and the results
submitted within a time period to be
specified by the Director.
§ 270.63 Permits for land treatment
demonstrations using field test or
laboratory analyses.
(a) For the purpose of allowing an
owner or operator to meet the treatment
. demonstration requirements of § 264.272
of this Chapter, the Director may issue a
treatment demonstration permit. The
permit must contain only those
requirements necessary to meet the
standards in § 264.272(c). The permit
may be issued either as a treatment or
disposal permit covering only the field
test or laboratory analyses, or as a two-
phase facility permit covering the field
tests, or laboratory analyses, and
design, construction operation and
maintenance of the land treatment unit.
(1) The Director may issue a two-
phase facility permit if he finds that,
based on information submitted in Part
B of the application, substantial,
although incomplete or inconclusive,
information already exists upon which
to base the issuance of a facility permit.
(2) If the Director finds that not
enough information exists upon which
he can establish permit conditions to
attempt to provide for compliance with
all of the requirements of Subpart M. he
must issue a treatment demonstration
permit covering only the field test or
laboratory analyses.
(b) If the Director finds that a phased
permit may be issued, he will establish.
as requirements in the first phase of the
facility permit, conditions for conducting
the field tests or laboratory analyses.
These permit conditions will include
design and operating parameters
(including the duration of the tests or
analyses and, in the case of field tests.
the horizontal and vertical dimensions
of the treatment zone), monitoring
procedures, post-demonstration clean-
up activities, and any other conditions
which the Director finds may be
necessary under § 264.272(c). The
Director will include conditions in the
second phase of the facility permit to
attempt to meet all Subpart M
requirements pertaining to unit design,
construction, operation, and
maintenance. The Director will establish
these conditions in the second phase of
the permit based upon the substantial
but incomplete or inconclusive
. information contained in the Part B
application.
(1) The first phase of the permit will
be effective as provided in § 124.15(b) of
this Chapter.
(2) The second phase of the permit
will be effective as provided in
paragraph (d) of this Section.
(c) When the owner or operator who
has been issued a two-phase permit has
completed the treatment demonstration,
he must submit to the Director a
certification, signed by a person
authorized to sign a permit application
or report under § 270.11, that the field
tests or laboratory analyses have been
carried out in accordance with the
conditions specified in phase one of the
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14243 Federal Register / Vol. 48, No. 64 / Friday, April l, 1983 / Rules and Regulations
permit for conducting such tests or
analyses. The owner or operator must
also submit all data collected during the
field tests or laboratory analyses within
90 days of completion of those tests or
analyses unless the Director approves a
later date.
(d) If the Director determines that the
results of the field tests or laboratory
analyses meet the requirements of
§ 264.272 of this Chapter, he will modify
the second phase of the permit to
incorporate any requirements necessary
for operation of the facility in
compliance with Part 264, Subpart M. of
this Chapter, based upon the results of
the field tests or laboratory analyses.
(1) This permit modification may
proceed as a minor modification under
§ 270.42, provided any such change is
minor, or otherwise will proceed as a
modification under § 270.41(a)(2).
(2) If no modifications of the second
phase of the permit are necessary, or if
only minor modifications are necessary
and have been made, the Director will
give notice of his final decision to the
permit applicant and to each person
who submitted written comments on the
phased permit or who requested notice
of the final decision on the second phase
of the permit The second phase of the
permit then will become effective as
specified in § 124.15(b).
(3) If modifications under
§ 270.41(a)(2) are necessary, the second
phase of the permit will become
effective only after those modifications
have been made.
§ 270.64 Interim permits for UIC wells.
The Director may issue a permit under
this part to any Class I UIC well (see
§ 144.7) injecting hazardous wastes
within a State in which no UIC program
has been approved or promulgated. Any
such permit shall apply and insure
compliance with all applicable
requirements of 40 CFR Part 264,
Subpart R (RCRA standards for wells],
and shall be for a term not to exceed
two years. No such permit shall be
issued after approval or promulgation of -
a UIC program in the State. Any permit
under this section shall contain a
condition providing that it will terminate
upon final action by the Director under a
UIC program to issue or deny a UIC •
permit for the facility.
§§270.65-270.69 [Reserved]
Subpart G—Interim Status
§ 270.70 Qualifying for interim status.
(a) Any person who owns or operates
an "existing HWM facility" shall have
interim status and shall be'treated'as
having been issued a permit to the
extent he or she has:
(1) Complied with the requirements of
Section 3010(a) of RCRA pertaining to
notification of hazardous waste activity.
[Comment: Some existing facilities may not
be required to file a notification under
Section 3010(a) of RCRA. These facilities may
qualify for interim status by meeting
paragraph (a)(Zj of this section.]
(2) Complied with the requirements of
§ 270.10 governing submission of Part A
applications:
(b) When EPA determines on
examination or reexamination of a Part
A application that it fails to meet the
standards of these-regularions, it may
notify the owner or operator that the
application is deficient and that the
owner or operator is therefore not
entitled to interim status. The owner or
operator will then be subject to EPA
enforcement for operating without a
permit
§ 270.71 Operation during interim status.
(a) During the interim status period
the facility shall not
(1) Treat store, or dispose of
hazardous waste not specified in Part A
of the permit application;
(2] Employ processes not specified in
Part A of the permit application; or
(3) Exceed the design capacities
specified in Part A of the permit
application.
(b) Interim status standards. During
interim status, owners or operators shall
comply with the interim status
standards at 40 CFR Part 265.
§ 270.72 Changes during interim status.
(a} New hazardous wastes not
• previously identified in Part A of the
permit application may be treated,
stored or disposed of at a facility if the
ownec or operator submits a revised
Part A permit application prior to such a
change:
(b) Increases in the design capacity of
processes used at a facility may be
made if the owner or operator submits a
revised Part A permit application prior
- to such a changer [along with a
justification explaining the need for the
change] and the Director approves the
change because of a lack of available
treatment storage, or disposal capacity
at other hazardous waste management
facilities;
(c) Changes in the processes for the
treatment, storage, or disposal of
hazardous waste may be made at a
facility or additional processes may be
added if the owner or operator submits
a revised Part A permit application prior
to such a change (along with a
justification explaining the need for the
change) and the Director approves the
change because:
(1) It is necessary to prevent a threat
to human health or the environment
because of an emergency situation, or
(2] It is necessary to comply with
Federal regulations (including the
interim status standards at 40 CFR Part
265) or State or local laws.
(d) Changes in the ownership or
operational control of a facility may be
made if the new owner or operator
submits a revised Part A permit
application no later than 90 days prior'to
the scheduled change. When a transfer
of ownership or operational control of a
facility occurs, the old owner or
operator shall comply with the
requirements of 40 CFR Part 265,
Subpart H (financial requirements), until
the new owner or operator has
demonstrated to the Director that it is
complying with that Subpart All other
interim status duties are transferred
effective immediately upon the date of
the change of ownership or operational
control of the facility. Upon
demonstration to the Director by the
new owner or operator of compliance
with that Subpart the Director shall
notify the old owner or operator in
writing that it no longer needs to comply
with that part as of the date of
demonstration.
(e) In no event shall changes be made
to an HWM facility during interim status
which amount to reconstruction of the
facility. Reconstruction occurs when the
capital investment in the changes to the
facility exceeds fifty percent of the
capital cost of a comparable entirely
new HWM facility.
§ 270.73 Termination of interim status.
Interim status terminates when:
(a) Final administrative disposition of
a permit application is made; or
(b) Interim status is terminated as
provided in § 270.10(e)(5).
Part 271 is added to read as follows:
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
Subpart A—Requirements for Final
Authorization
Sec.
271.1 Purpose and scope.
271.2 Definitions.
271.3 Availability of final authorization.
271.4 Consistency.
.271.5 Elements of a program submission.
271.6 Program description.
271.7 Attorney General's statement
271.8 Memorandum of Agreement with
Regional Administrator.
271.9 Requirements for identification and
listing of hazardous wastes.
271.10 Requirements of generators of
hazardous wastes.
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Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations 14249
Sec. '
271.11 Requirements for transporters of
hazardous wastes.
271.12 Requirements for hazardous waste
management facilities.
271.13 Requirements with respect to permits
and permit application.
271.14 Requirements for permitting.
271.15 Requirements for compliance
evaluation programs.
271.16 Requirements for enforcement
authority.
271.17 Sharing of information.
271.18 Coordination with other programs.
271.19 EPA review of State permits.
271.20 Approval process.
271.21 Procedures for revision of State
programs.
271.22 Criteria for withdrawing approval of
State programs.
271.23 Procedures for withdrawing approval
of State programs- .
Subpart B—Requirements for Interim
Authorization.
271.121 Purpose and scope.
271.122 Schedule.
271.123 Elements of a program submission.
271.124 Program description.
271.125 Attorney General's statement.
271.126 Memorandum of Agreement with
the Regional Administrator.
271.127 Authorization plan.
' 271.128 Program requirements for interim
authorization for Phase I.
271.129 Additional program requirements
for interim authorization for Phase II.
271.130 Interstate movement of hazardous
waste.
271.131 Progress reports.
271.132 Sharing of information.
271.133 Coordination with other programs.
271.134 EPA review of State permits.
271.135 Approval process.
271.136 Withdrawal of State programs.
271.137 Reversion of State program.
Authority: Pub. L. 94-580, as amended by
Pub. L. 94-609, 42 U.S.C. 6901 et seq.
Subpart A—Requirements for Final
Authorization
§ 271.1 Purpose and scope.
(a) This subpart specifies the
procedures EPA will follow in
approving, revising, and withdrawing
approval of State programs and the
requirements State programs-nttistTrmet'
to be approved by the Administrator
under Section 3006(b) (hazardous
waste—final authorization) of RCRA.
(b) State submissions for program
approval must be made in accordance
with the procedures set out in this
subpart
(c) The substantive provisions which
must be included in State programs for
them to be approved include
requirements for permitting, compliance
evaluation, enforcement, public
participation, and sharing of
information. Many of the requirements
for State programs are made applicable
to States by cross-referencing other EPA
regulations. In particular, many of the
provisions of Parts 270 and 124 are made
applicable to States by the references
contained in § 271.14.
(d) Upon receipt of a complete
submission. EPA will conduct a public
hearing, if interest is shown, and
determine whether to approve or
disapprove the program taking into
consideration the requirements of this
subpart the Act and any comments
received.
(e) The Administrator shall approve
State programs which conform to the
applicable requirements of this subpart.
(f) 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.
(g) Any State'progranr approved by
the Administrator shall at all times be
conducted in accordance with the
requirements of this subpart.
(h) Partial State programs are not
allowed for programs operating under
RCRA final authorization. However, in
many cases States will lack authority to
regulate activities on Indian lands. This
lack of authority does not impair a
State's ability to obtain full program
approval in accordance with this
subpart. i.e.. inability of a State to
regulate activities on Indian lands does
not constitute a partial program. EPA
will administer the program on Indian
lands if the State does not seek this
authority.
Note.—States are advised to contact the
United States Department of the Intenor.
Bureau of Indian Affairs, concerning
authority over Indian lands.
(i) Except as provided in § 271.4,
nothing in this subpart precludes a State
from:
(1) Adopting or enforcing
requirements which are more stringent
or more extensive than those required
under this subpart
(2) Operating a program with a greater
scope of coverage than that required
,jinder.this,siibpfr* wt"»rp an approved.
State program has a greater scope of
coverage than required by Federal law,
the additional coverage is not part of the
Federally approved program.
§271.2 Definitions.
The definitions in Part 270 apply to all
subparts of this part
§ 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.
(b)(l) States may apply for final
authorization at any time after the
promulgation of the last component of
Phase IL
(2) State programs under final
authorization shall not take effect until
the effective date of the last component
of Phase II.
(c) State operating under interim
authorization may apply for and receive
final authorization as specified in
paragraph (b) of this section.
Notwithstanding approval under
Subpart B such States must meet all the
requirements of this Subpart in order to
qualify for final authorization.
(d) States need not have been
approved under Subpart B in order to
qualify for final authorization.
§ 271.4 Consistency.
To obtain approval, a State program
must.be consistent with the Federal
program and State programs applicable
in other States and in particular must
comply with the provision below. For
purposes of this section the phrase
"State programs applicable in other
States" refers only to those State
hazardous waste programs which have
received final authorization under this
part.
(a) Any aspect of the State program
which unreasonably restricts, impedes,
or operates as a ban on the free
movement across the State border of
hazardous wastes from, other States for
treatment, storage, or disposal at
facilities authorized to operate-under the
Federal or an approved State program
shall be deemed inconsistent.
(b) Any aspect of State law or of the
State program which has no basis in
human health or environmental
protection and which acts as a
prohibition on the treatment, storage or
disposal of hazardous waste in the State
may be deemed inconsistent.
(c) If the State manifest system does
not meet the requirements of this Part,
the State program shall be deemed
inconsistent.
Elements of a program
(a) Any State that seeks to administer
a program under this part shall submit to
the Administrator at least three copies
of a program submission. The
submission shall contain the following:
(1) A letter from the Governor of the
State requesting program approval;
(2) A complete program description,
as required by § 271.6 describing how
the State intends to carry out its
responsibilities under this subpart;
(3) An Attorney General's statement
as required by § 271.7;
(4) A Memorandum of Agreement
with the Regional Administrator as
required by § 271.8;
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(5) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures; and
(6) The showing required by
§ 271.20(c) of the State's public
participation activities prior to program
submission.
(b) Within 30 days of receipt by EPA
of a State program submission. EPA will
notify the State whether its submission
is complete. If EPA finds that a State's
submission is complete, the statutory
review period (i.e.. the period of time
allotted for formal EPA review of a
proposed State program under section
3006(b) of the Act) shall be deemed to
have begun on the date of receipt of the
State's submission. If EPA finds that a
State's submission is incomplete,, the « •
review period shall not begin until all
necessary information is received by
EPA.
(c) If the State's submission is
materially changed during the review
period, the review period shall begin
again upon receipt of the revised
submission.
(d) The State and EPA may extend the
review period by agreement.
§ 271.6 Program description.
Any State that seeks to administer a
program under this subpart shall submit
a description of the program it proposes
to administer in lieu of the Federal
program under State law or under an
interstate compact The program
description shall include:
(a) A description in narrative form of
the scope, structure, coverage and
processes of the State program.
(b) A description (including
organization charts) of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the program, including
the information listed below. If more
than one agency is responsible for
administration of a program, each
agency must have statewide jurisdiction
- over a class of activities. The ...
responsibilities of each agency must be
delineated, their procedures for
coordination set forth, and an agency
must be designated as a "lead agency"
to facilitate communications between
EPA and the State agencies having
program responsibilities. When the
State proposes to administer a program
of greater scope of coverage than is >
required by Federal law, the information
provided under this paragraph shall
indicate the resources dedicated to
administering the Federally required
portion of the program. -
(1) A description of the State agency
staff who will carry out the State
program, including the number.
occupations, and general duties of the
employees. The State need not submit
complete job descriptions for every
employee carrying out the State
program.
(2) An itemization of the estimated
costs of establishing and administering
the program, including cost of the
personnel listed in paragraph (b)(l) of _
this section, cost of administrative
support, and cost of technical support.
This estimate must cover the first two
years after program approval.
(3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money,
available to the State Director to meet
the costs listed in paragraph (b)(2) of
this section, identifying any restrictions
• or limitauoTisrupairthis funding. This
estimate must cover the first two years
after program approval. -
(c) A description of applicable State
procedures, including permitting
procedures and any State administrative
or judicial review procedures.
(d) Copies of the permit form(s).
application form(s), reporting form(s),
and manifest format the State intends to
employ in its program. Forms used by
States need not be identical to the forms
used by EPA but should require the
same basic information. The State need
not provide copies of uniform national
forms it intends to use but should note
its intention to use such forms.
Note:—States are encouraged to use
uniform national forms established by the
Administrator. If uniform national forms are
used, they may be modified to include the
State Agency's name, address, logo, and
other similar information, as appropriate, in
place of EPA's.
(e) A complete description of the
State's compliance tracking and ~
enforcement program.
(f) A description of the State manifest
tracking system, and of the procedures
. the Stale will use to coordinate
information with other approved State
, , prncrarqg and the.Federal program, ,-
regarding interstate and international
shipments.
(g) An estimate of the number of the
following:
(1) Generators?
(2) Transporters; and
(3) On- and off-site storage, treatment
and disposal facilities, and a brief
description of the types of facilities and
an indication of the permit status of
these facilities.
(h) If available, an estimate of the
annual quantities of hazardous wastes
generated within the State; transported
into and out of the State; and stored,
treated, or disposed of within the State:
On-site; and Off-site.
§ 271.7 Attorney General's statement
(a) Any State that seeks to administer
a program under this subpart shall
submit a statement from the State
Attorney General (or the attorney for
those State agencies which have
independent legal counsel) that the laws
of the State provide adequate authority
to carry out the program described
under § 271.6 and to meet the
requirements of this subpart. This
statement shall include citations to the
specific statutes, administrative
regulations and. where appropriate.
judicial decisions which demonstrate
adequate authority. State statutes and
regulations cited by the State Attorney
General or independent legal counsel
shall be in the.form of lawfully adopted
State statues and regulations at the time
the statement is signed and shall be
fully effective by the time the program is
approved. To qualify as "independent
legal counsel" the attorney signing the
statement required by this section must
have full authority to independently
represent the State agency in court on
all matters pertaining to the State
program.
Note:—EPA will supply States with an
Attorney General's statement format on
request.
(b) When a State seeks authority over
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State's authority.
§ 271.8 Memorandum of Agreement with
the Regional Administrator.
(a) Any State that seeks to administer
a program under this subpart shall
submit a Memorandum of Agreement
(MOA). The Memorandum of Agreement
shall be executed by the State Director
and the Regional Administrator and
shall become effective when approved
by the Administrator. In addition to
meeting the requirements of paragraph
(b) of this section, the Memorandum of
, A^reemen^may, include other .terms, ,
'conditions, or agreements consistent
with this subpart and relevant to the
. administration and enforcement of the
State's regulatory program. The
Administrator shall not approve any
Memorandum of Agreement which
contains provisions which restrict EPA's
statutory oversight responsibility.
(b) All Memoranda of Agreement
shall include the following:
(1) Provisions for the Regional
Administrator to promptly forward to
the State Director information obtained
prior to program approval in
notifications provided under section
3010(a) of RCRA. The Regional
Administrator and the State Director
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14251
shall agree on procedures for the
assignment of EPA identification
numbers for new generators,
transporters, treatment storage, and
disposal facilities.
(2) Provisions specifying the frequency
and content of reports, documents and
other information which the State is
required to submit to EPA The State
shall allow EPA to routinely review
State records, reports, and files relevant
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
where appropriate.
(3) Provisions on the State's
compliance monitoring and enforcement
program, including:
(i) Provisions for coordination of
compliance monitoring activities by the
State and by EPA. These may specify
the basis on which the Regional
Administrator will select facilities or
activities within the State for EPA
inspection. The Regional Administrator
will normally notify the State at least 7
days before any such inspection; and
(ii) Procedures to assure coordination
of enforcement activities.
(4) Provisions allowing EPA to
conduct compliance inspections of all
generators, transporters, and HWM
facilities in each year for which the
State is operating under final
authorization. The Regional
Administrator and the State Director
may agree to limitations on compliance
inspections of generators, transporters.
and non-major HWM facilities.
(5) No limitations on EPA compliance
inspections of generators, transporters,
or non-major HWM facilities under
paragraph (b)(4) of this section shall
restrict EPA's right to inspect any
generator, transporter, or HWM facility
which it has cause to believe is not in
compliance with RCRA; however, before
conducting such an inspection, EPA will
normally allow the State a reasonable
opportunity to conduct a compliance
evaluation inspection.
•*' (6) Provisions- for .the'.prompt.transfer •*
from EPA to the State of pending permit
applications and any other information
relevant to program operation not
already in the possession of the State
Director (e.g., support files for permit
issuance, compliance reports, etc.).
When existing permits are transferred
from EPA to the State for
administration, the Memorandum of
Agreement »h"H contain provisions
specifying a procedure for transferring
the administration of these permits. If a
State lacks the authority to directly
administer permits issued by, the Federal
government a procedure may be
established to transfer responsibility for
these permits.
Note.—For example. EPA and the State
and the permittee could agree that the State
would issue a permit(s) identical to the
outstanding Federal permit which would
simultaneously be terminated.
(7) Provisions specifying classes and
categories of permit applications, draft
permits, and proposed permits that the
State will send to the Regional
Administrator for review, comment and.
where applicable, objection.
(8) When appropriate, provisions for
joint processing of permits by the State
and EPA for facilities or activities
which require permits from both EPA
and the State under different programs.
See § 124.4
Note.—To promote efficiency and to avoid
duplication and inconsistency. States are
encouraged to enter into joint processing
agreements with EPA for permit issuance.
(9) Provisions for the State Director to
promptly forward to EPA copies of draft
permits and permit applications for all
major HWM facilities for review and
comment. The Regional Administrator
and the State Director may agree to
limitations regarding review of and
comment on draft permits and/or permit
applications for non-major HWM
facilities. The State Director shall supply
EPA copies of final permits for all major
HWM facilities.
(10) Provisions for the State Director
to review all permits issued under State
law prior to the date of program
approval and modify or revoke and
reissue them to require compliance with
the requirements of this subpart. The
Regional Administrator and the State
Director shall establish a time within
' which this review must take place.
(11) Provisions for modification of the
Memorandum of Agreement in
accordance with this subpart
(c) The Memorandum of Agreement
the annual program grant and the State/
EPA Agreement should be consistent If
a change is needed in the Memorandum
of Agreement the Memorandum cf
Agreement may be amended through the
procedures set forth in this subpart The
State/EPA Agreement may not override
the Memorandum of Agreement
Note.—Detailed program priorities and
specific arrangements for EPA support of the
State program will change and are therefore
more appropriately negotiated in the context
of annual agreements rather than in the
MOA. However, it may still be appropriate to
specify in the MOA the basis for such
detailed agreements, e-g, a-provision in the
MOA specifying that EPA will select facilities
in the State for inspection annually as part of
the State/EPA agreement
§ 271.9 Requirements for Identification
and listing of hazardous wastes.
The State program must control all the
hazardous wastes-controlled under 40
CFR Part 261 and must adopt a list of
hazardous wastes and set of
characteristics for identifying hazardous
wastes equivalent to those under 40 CFR
Part 261.
§ 271.10 Requirements for generators of
hazardous waste.
(a) The State program must cover all
generators covered by 40 CFR Part 262.
States must require new generators to
contact the State and obtain an EPA
identicfiation number before they
perform any activity subject to
regulation under the approved State
hazardous waste program.
(b) The State shall have authority to
require and shall require all generators
to comply with reporting and
recordkeeping requirements equivalent
to those under 40 CFR 282.40 and 262.41.
States must require that generators keep
these records at least 3 years.
(c) The State program must require
that generators who accumulate
hazardous wastes for short periods of
time comply with requirements that are
equivalent to the requirements for
accumulating hazardous wastes for
short periods of time under 40 CFR
262.34.
(d) The State program must require
that generators comply with
requirements that are equivalent to the
requirements for the packaging, labeling.
marking, and placarding of hazardous
waste under 40 CFR 262.30 to 262.33. and
are consistent with relevant DOT
regulations under 49 CFR Parts 172,173,
178 and 179.
(e) The State program shall provide
requirements respecting international
shipments which are equivalent to those
at 40 CFR 262.50. except that advance
notification of international shipments,
as required by 40 CFR 262.50(b)(l). shall
,-.be.filedjirith the-Administrator. The
State may require that a copy of such
advance notice be filed with the State
Director, or may require equivalent
reporting procedures. Note: Such notices
shall be mailed to Hazardous Waste
Export Division for Oceans and
Regulatory Affairs (A-107). U.S.
Environmental Protection Agency,
Washington. D.C. 20460.
(f) The State must require that all
generators of hazardous waste who
transport (or offer for transport) such
hazardous waste off-site:
(1) Use a manifest system that ensures
that interstate and intrastate shipments
of hazardous waste are designated for
delivery, and, in the case of intrastate
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34252 Federal Register / Vol. 48. No. 64 / Friday, April 1, 1983 / Rules and Regulations
shipments, are delivered to facilities
that are authorized to operate under an
approved State program or the Federal
program;
(2) Initiate the manifest and designate
on the manifest the storage, treatment,
or disposal facility to which the waste is
to be shipped;
(3) Ensure that all wastes offered for
transportation are accompanied by the
manifest, except in the case of
shipments by rail or water specified in
40 CFR 262.23 (c) and (d) and § 262.20 (e)
and (f). The State program shall provide
requirements for shipments by rail or
water equivalent to those under 40 CFR
§ 262.23 (c) and (d) and § 263.20 (e) and
ffl.
(4) Investigate instances where
manifests have not-been returned by the
owner or operator of the designated "••"
facility and report such instances to the
State in which the shipment originated.
(g) In the case of interstate shipments
for which the manifest has not been
returned, the State program must
provide for notification to the State in
which the facility designated on the
manifest is located and to the State in
which the shipment may have been
delivered (or to EPA in the case of
unauthorized States).
(h) The State must follow the Federal
manifest format (40 CFR 262.21] and
may supplement the format to a limited
extent subject to the consistency
requirements of the Hazardous
Materials Transportation Act (49 U.S.C.
1801 et seq.].
§ 271.11 Requirements for transporters of
hazardous wastes.
(a) The State program must cover all
transporters covered by 40 CFR Part 263.
New transporters must be required to
contact the State and obtain an EPA
identification number from the State
before they accept hazardous waste for
transport
(b) The State shall have the authority
to require and shall require all
transporters to comply with
recprdkeeping requirements equivalent •
to those found at 40 CFR 263.22. States
must require that records be kept at
least 3 years.
(c) The State must require the
transporter to carry the manifest during
transport, except in the case of
shipments by rail or water specified in
40 CFR 263.20 (e] and (f) and to deliver
waste only to the facility designated on
the manifest The State program shall
provide requirement for shipments by
rail or water equivalent to those under
40 CFR 263.20 (e) and (f).
(d) For hazardous wastes that are
discharged in transit the State program
must require that transporters notify
appropriate State, local, and Federal
agencies of such discharges, and clean
up such wastes, or take action so that
such wastes do not present a hazard to
human health or the environment These
requirements shall be equivalent to
those found at 40 CFR 263.30 and 263.31.
§271.12 Requirements for hazardous
waste management facilities.
The State shall have standards for
hazardous waste management facilities
which are equivalent to 40 CFR Parts
264 and 266. These standards shall
include:
(a) Technical standards for tanks,
containers, waste piles, incineration,
chemical, physical and biological
treatment facilities, surface
impoundments, landfills, and land—
treatment faciliDes;
(b) Financial responsibility during
facility operation;
(c) Preparedness for and prevention of
discharges or releases of hazardous
waste; contingency plans and
emergency procedures to be followed in
the event of a discharge or release of
hazardous waste;
(d) Closure and post-closure
requirements including financial
requirements to ensure that money will
be available for closure and post-closure
monitoring and maintenance;
(e) Ground water monitoring;
(f) Security to prevent unauthorized
access to the facility;
(g) Facility personnel training;
|h) Inspections, monitoring,
recordkeeping, and reporting;
(i) Compliance with the manifest
system, including the requirements that
facility owners or operators return a
signed copy of the manifest to the
generator to certify delivery of the
hazardous waste shipment;
(j) Other requirements to the extent
that they are included in 40 CFR Parts
264 and 266.
§ 271.13 Requirements with respect to
permits and permit applications.
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Federal Register / Vol. 48, No. 64 / Friday, April 1. 1983 / Rules and Regulations 14253
(u) Section 124.5 (a), (c). (d). and (f)—
(Modification of permits);
(v) Section 124.6 (a), (c), (d), and (e)—
(Draft permit);
(w) Section 124.8—(Fact sheets);
(x) Section 124.10 (a)(l){ii). {a)(l)(iii).
(a)(l)(v). (b). (c). (d), and (e)—{Public
notice);
(y) Section 124.11—(Public comments
and requests for hearings);
(z) Section 124.12(a)—{Public
hearings); and
(aa) Section 124.17 (a) and (c)—
(Response to comments).
[Note.—States need not implement
provisions identical to the above listed
provisions. Implemented provisions must.
however, establish requirements at least as
stringent as the corresponding listed..
provisions. While States may impose more
stringent requirements, they may not make
one requirement more lenient as a tradeoff
for making another requirement more
stringent for example, by requiring that
public hearings be held prior to issuing any
permit while reducing the amount of advance
notice of such a hearing.]
§271.15 Requirements for compliance
evaluation programs.
(a) State programs shall have
procedures for receipt evaluation.
retention and investigation for possible
enforcement of all notices and reports
required of permittees and other
regulated persons (and for investigation
for possible enforcement of failure to
submit these notices and reports).
(b) State programs shall have
inspection and surveillance procedures
to determine, independent of
information supplied by regulated
persons, compliance or noncompliance
with applicable program requirements.
The State shall maintain:
(1) A program which is capable of
making comprehensive surveys of all
faculties and activities subject to the
State Director's authority to identify
persons subject to regulation who have
failed to comply with permit application
or other program requirements. Any
compilation, index, or inventory of such
facilities and activities shall be made
available to the Regional Administrator
upon request;
(2) A program for periodic inspections
of the facilities and activities subject to
regulation. These inspections shall be
conducted hi a manner designed to:
(i) Determine compliance or
noncompliance with issued permit
conditions and other program
requirements;
(ii) Verify the accuracy of information
submitted by permittees and other
regulated persons in reporting forms and
other forms supplying monitoring data; '
and
(iii) Verify the adequacy of sampling.
monitoring, and other methods used by
permittees and other regulated persons
to develop that information;
(3) A program for investigating
information obtained regarding
violations of applicable program and
permit requirements; and
(4) Procedures for receiving and
ensuring proper consideration of
information submitted by the public
about violations. Public effort in
reporting violations shall be encouraged,
and the State Director shall make
available information on reporting
procedures.
(c) The State Director and State
officers engaged in compliance
evaluation shall have authority to enter
any site or premises-subject to
regulation or in which records relevant
to program operation are kept in order
to copy any records, inspect, monitor or
otherwise investigate compliance with
the State program including compliance
with permit conditions and other
program requirements. States whose law
requires a search warrant before entry
conform with this requirement
(d) Investigatory inspections shall be
conducted, samples shall be taken and
other information shall be gathered hi a
manner (e.g.. using proper "chain of
custody" procedures) that will produce
evidence admissible in an enforcement
proceeding or in court
§ 271.16 Requirements for enforcement
authority.
(a) Any State agency administering a
program shall have available the
following remedies for violations of
State program requirements:
(1) To restrain immediately and
effectively any person by order or by
suit in State court from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or the environment
[Notev—This paragraph requires that States
have a mechanism (e.g, an administrative
—cease mnrf-deiist order or the-«falUty to seek' a~
temporary restraining order) to (top any
unauthorized activity endangering public
health or the environment)
(2) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program-
requirement including permit
conditions, without the necessity of a
prior revocation of the permit;
(3) To access or sue to recover in
court civil penalties and to seek criminal
remedies, including fines, as follows:
(i) Civil penalties shall be recoverable
for any program violation in at least the
amount of $10,000 per day.
(ii) Criminal remedies shall be
obtainable against any person who
knowingly transports any hazardous
waste to an unpermitted facility; who
treats, stores, or disposes of hazardous
waste without a permit; or who makes
any false statement or representation in
any application, label, manifest, record.
report, permit or other document filed.
maintained, or used for purposes of
program compliance. Criminal fines
shall be recoverable in at least the
amount of SlO.OOO per day for each
violation, and imprisonment for at least
six months shall be available.
(b)(l) The maximum civil penalty or
criminal fines (as provided in paragraph
(a)(3) of this section) shall be assessable
for each instance of violation and, if the
violation is continuous, shall be
assessable.up.to.'the maximum amount
for each day of violation.
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraph (a)(3) of this section.'"
shall be no greater than the burden of
proof or degree of knowledge or intent
EPA must provide when it brings an
action under the Act.
[Note.—For example, this requirement is
not met if State law includes mental state as
an element of proof for civil violations.]
(c) Any civil penalty assessed, sought
or agreed upon by the State Director
under paragraph (a) (3) of this section
shall be appropriate to the violation. A
civil penalty agreed upon by the State
Director in settlement of administrative
or judicial litigation may be adjusted by
a percentage which represents the
likelihood of success in establishing the
underlying violation(s) in such litigation.
If such civil penalty, together with the
costs of expeditious compliance, would
be so severely disproportionate to the
resources of the violator as to jeopardize
continuance in business, the payment of
the penalty may be deferred or the
penalty may be forgiven in whole or
part as circumstances warrant In the
,-casefOf jgpenalty fora failure tameet a
statutory or final permit compliance
deadline, "appropriate to the violation."
as used in this paragraph, means a
penalty which is equal to:
(1) An amount appropriate to address
the harm or risk to public health or the
environment; plus
(2) An amount appropriate to remove
the economic benefit gained or to be
gained from delayed compliance; plus
(3) An amount appropriate as a
penalty for the violator's degree of
recalcitrance, defiance, or indifference
to requirements of the law; plus
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costs thrust upon the public; minus
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14254 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(5) An amount, if any, appropriate to
reflect any part of the noncompliance
attributable to the government itself;
and minus
(6) An amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violator's control (e.g., floods, fires).
[Note.—In addition to the requirements of
this paragraph, the State may have other
enforcement remedies. The following
enforcement options, while not mandatory,
are highly recommended:
Procedures for assessment by the State of
the costs of investigations, inspections, or
monitoring surveys which lead to the
establishment of violations:
Procedures which enable the State to
assess or to sue any persons responsible for
unauthorized activities for any expenses
incurred by the State in removing, correcting*- •
or terminating any adverse effects upon
human health and the environment resulting
ham the unauthorized activity, whether or
not accidental;
Procedures which enable the State to sue
for compensation for any loss or destruction
of wildlife, fish or aquatic life, or their
habitat, and for any other damages caused by
unauthorized activity, either to the State or to
any residents of the State who are directly
aggrieved by the unauthorized activity, or
both; and
, Procedures for the administrative
assessment of penalties by the Director.]
(d) Any State administering a program
shall provide for public participation in
the State enforcement process by
providing either:
(1) Authority which allows
intervention as of right in any civil
action to obtain remedies specified in
paragraphs (a) (1), [2] or (3] of this
section by any citizen having an interest
which is or may be adversely affected:
or
(2) Assurance that the State agency or
enforcement authority will:
(i) Investigate and provide written
responses to all citizen complaints
submitted pursuant to the procedures
specified in S 271.15(b)(4);
(ii) Not oppose intervention by any
•• citizen when permissive intervention . •»j
may be authorized by statute, rule, or
regulation; and
(iii) Publish notice of and provide at
least 30 days for public comment on any
proposed settlement of a State
enforcement action.
§271.17 Sharing of Information.
(a) Any information obtained or used
in the administration of a State program
shall be available to EPA upon request
without restriction. If the information
has been submitted to the State under a
claim of confidentiality, the State must
submit that claim to EPA when
providing information under this
subpart Any information obtained from
a State and subject to a claim of
confidentiality will be treated in
accordance with the regulations in 40
CFR Part 2. If EPA obtains from a State
information that is not claimed to be
confidential, EPA may make that
information available to the public
without further notice.
(b) EPA shall furnish to States with
approved programs the information in
its files not submitted under a claim of
confidentiality which the State needs to
implement its approved program. EPA
shall furnish to States with approved
programs information submitted to EPA
under a claim of confidentiality, which
the State needs to implement its
approved program, subject to the
conditions in 40 CFR Part 2. .
§ 271.18 Coordination with other
' programs.
[a] Issuance of State permits under
this subpart may be coordinated, as
provided in Part 124, with issuance of
UIC. NPDES, and 404 permits whether
they are controlled by the State, EPA, or
the Corps of Engineers. See § 124.4.
(b) The State Director of any
approved program which may affect the
planning for and development of
hazardous waste management facilities
and practices shall consult and
coordinate with agencies designated
under section 4006(b) of RCRA (40 CFR
Part 255) as responsible for the
development and implementation of
State solid waste management plans
under section 4002(b) of RCRA (40 CFR
Part 256).
§ 271.19 EPA review of State permits.
(a) The Regional Administrator may
comment on permit applications and
draft permits as provided hi the
Memorandum of Agreement under
§ 271.8.
(b) Where EPA indicates, in a
comment that issuance of the permit
would be inconsistent with the approved
State program. EPA shall include in the
"
(1) A statement of the reasons for the
comment (including the section of RCRA
or regulations promulgated thereunder
that support the comment): and
(2) The actions that should be taken
by the State Director in order to address
the comments (including the conditions
which the permit would include if it
were issued by the Regional
Administrator).
(c) A copy of any comment shall be
sent to the permit applicant by the
Regional Administrator.
(d) The Regional Administrator shall
withdraw such a comment when
satisfied that the State has met or
refuted his or her concerns.
(e) Under Section 3008(a)(3) of RCRA.
EPA may terminate a State-issued
permit in accordance with the
procedures of Part 124, Subpart E, or
bring an enforcement action in
accordance with the procedures of 40
CFR Part 22 in the case of a violation of
a State program requirement. In
exercising these authorities, EPA will
observe the following conditions:
(1) The Regional Administrator may
take action under section 3008(a)(3) of
RCRA against a holder of a State-issued
permit at any time on the ground that
the permittee is not complying with a
condition of that permit.
(2) The Regional Administrator may
take action under Section 3008(a)(3) of
RCRA against a holder of a State-issued
permit at any time on the ground that
the permittee is not complying with a
condition that the Regional
Administrator in commenting on the
permit application or draft permit-slated
was necessary to implement approved
State program requirements, whether or
not that condition was included in the
final permit
(3) The Regional Administrator may
not take action under section 3008(a)(3)
of RCRA against a holder of a State- .
issued permit on the ground that the
permittee is not complying with a
condition necessary to implement
approved State program requirements
unless the Regional Administrator
stated in, commenting on the permit
application or draft permit that the
condition was necessary.
(4) The Regional Administrator may
take action under Section 7003 of RCRA
against a permit holder at any time
whether or not the permit holder is
complying with permit conditions.
S 271.20 Approval process.
(a) Prior to submitting an application
to EPA for approval of a State program,
the State shall issue public notice of its
intent to seek program approval from
„ EPA. This public notice shall:
(1) Be circulated in a manner
calculated to attract the attention of
interested persons including:
(i) Publication in enough of the largest
newspapers in the State to attract
statewide attention; and
(ii) Mailing to persons on the State
agency mailing list and to any other
persons whom the agency has reason to
believe are interested:
(2) Indicate when and where the
State's proposed submission may be
reviewed by the public;
• (3) Indicate the cost of obtaining a
copy of the submission;
(4) Provide for a comment period of
not less than 30 days during which time
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
14255
interested members of the public may
express their views on the proposed
program;
(5) Provide that a public hearing will
be held by the State or EPA if sufficient
public interest is shown or.
alternatively, schedule such a public
hearing. Any public hearing to be held
by the State on its application for
authorization shall be scheduled no
earlier than 30 days after the notice of
hearing is published:
(6) Briefly outline the fundamental
aspects of the State program: and
(7) Identify a person that an interested
member of the public may contact with
any questions.
(b) If the proposed State program is
substantially modified after the public
comment period provided in paragraph
(a)(4) of this section. the.State.shall -
prior to submitting its program to the
Administrator, provide an opportunity
for further public comment in
accordance with the procedures of
paragraph (a) of this section. Provided.
that the opportunity for further public
comment may be limited to those
portions of the State's application which
have been changed since the prior
public notice.
(c) After complying with the
requirements of paragraphs (a) and (b)
of this section, the State may submit, in
accordance with ! 271.3. a proposed
program to EPA for approval. Such
formal submission may only be made
after the date of promulgation of the last
component of Phase 0. The program
submission shall include copies of all
written comments received by the State.
a transcript recording, or summary of
any public hearing which was held by
the State, and a responsiveness
summary which identifies the public
participation activities conducted.
describes the matters presented to the
public, summarizes significant
comments received and responds to
these comments.
(d) Within 90 days from the date of
receipt of a complete program
-submission for final authorization.'the
Administrator shall make a tentative
determination as to whether or not he
expects to grant authorization to the
State program. If the Administrator
indicates that he may not approve the
State program he shall include a general
statement of his areas of concern. The
Administrator shall give notice of this
tentative determination in the Federal
Register and in accordance with
paragraph (a)(l) of this section. Notice
of the tentative determination of
authorization shall also:
(1) Indicate that a public hearing will
be held by EPA no earlier than 30 days
after notice of the tentative
determination of authorization. The
notice may require persons wishing to
present testimony to file a request with
the Regional Administrator, who may
cancel the public hearing if sufficient
public interest in a hearing is not
expressed.
(2} Afford the public 30 days after the
notice to comment on the State's
submission and the tentative
determination; and
(3) Note the availability of the State
submission for inspection and copying
by the public.
(e) Within 90 days of the notice given
pursuant to paragraph (d) of this section,
the Administrator shall make a final
determination whether or not to approve
the State's program, taking into account
any comments submitted. The
Administrator wilTgrant final *
authorization only after the effective
date of the last component of Phase II.
The Administrator shall give notice of
this final determination in the Federal
Register and in accordance with
paragraph (a)(l) of this section. The
notification shall include a concise
statement of the reasons for this
determination, and a response to
significant comments received.
§ 271.21 Procedures for revision of State
programs.
(a) Either EPA or the approved State
may initiate program revision. Program
revision may be necessary when the
controlling Federal or State statutory or
regulatory authority is modified or
supplemented. The State shall keep EPA
fully informed of any proposed
modifications to its basic statutory or
regulatory authority, its forms,
procedures, or priorities.
(b] Revision of a State program shall
be accomplished as follows:
(1) The State shall submit a modified
program description. Attorney General's
statement Memorandum of Agreement,
or such other documents as EPA
determines to be necessary under the
. ., .
(2} Whenever EPA determines that the
proposed program revision is
substantial EPA shall issue public
notice and provide an opportunity to
comment for a period of at least 30 days.
The public notice shall be mailed to
interested persons and shall be
published in the Federal Register and in
enough of the largest newspapers in the
State to provide Statewide coverage.
The public notice shall summarize the
proposed revisions and provide for the
opportunity to request a public hearing.
Such a healing will be held-if there is
significant public interest based on
requests received.
(3) The Administrator shall approve or
disapprove program revisions based on
the requirements of this subpart and of
the Act.
(4) A program revision shall become
effective upon the approval of the
Administrator. Notice of approval of any
substantial revision shall be published
in the Federal Register. Notice of
approval of non-substantial program
revisions may be given by a letter from
the Administrator to the State Governor
or his designee.
(c) States with approved programs
shall notify EPA whenever they propose
to transfer all or part of any program
from the approved State agency to any
other State agency, and shall identify
any new division of responsibilities
among the agencies involved. The new
agency is not authorized to administer
the program until approved by the
Administrator under paragraph (b) of
this section. Organizational charts
required under § 271.6(b) shall be
revised and resubmitted.
(d) Whenever the Administrator has
reason to believe that circumstances
have changed with respect to a State
program, he may request, and the State
shall provide, a supplemental Attorney
General's statement program
.description, or such other documents or
information as are necessary.
(e) All new programs must comply
with these regulations immediately upon
approval. Any approved program which
requires revision because of a
modification to this subpart or to 40 CFR
Parts 270.124. 260. 261. 262. 263. 264. 265.
or 266 shall be so revised within one
year of the date of promulgation of such
regulation, unless a State must amend or
enact a statute in order to make the
required revision in which case such
revision shall take place within two
years.
§ 271.22 Criteria for withdrawing approval
of State programs.
•****(«}The Administrator-may withdraw
program approval when a State program
no longer complies with the
. requirements of this subpart and the
State fails to take corrective action.
Such circumstances include the
following:
(1) When the State's legal authority no
longer meets the requirements of this
part including:
(i) Failure of the State to promulgate
or enact new authorities when
necessary; or
(ii) Action by a State legislature or
court striking down or limiting State
authorities. -
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14256 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(2) When the operation of the State
program fails to comply with the •
requirements of this part, including:
(i) Failure to exercise control over
activities required to be regulated under
this part, including failure to issue
permits:
(h) Repeated issuance of permits
which do not conform to the
requirements of this part; or
(iii) Failure to comply with the public
participation requirements of this part
(3) When the State's enforcement
program fails to comply with the
requirements of this part, including:
(i) Failure to act on violations of
permits or other program requirements:
(ii) Failure to seek adequate
enforcement penalties or to collect
administrative fines when imposed; or
(iii) Failure to inspect and monitor*"
activities subject to regulation.
(4) When the State program fails to
comply with the terms of the
Memorandum of Agreement required
under § 271.8.
§ 271.23 Procedures for withdrawing
approval of State programs.
(a] A State with a program approved
under this part may voluntarily transfer
program responsibilities required by
Federal law to EPA by taking the
following actions, or in such other
manner as may be agreed upon with the
Administrator.
(1) The State shall give the
Administrator 180 days notice of the
proposed transfer and shall submit a
plan for the orderly transfer of all
relever.t program information not in the
possession of EPA (such as permits,
permit files, compliance files, reports,
permit applications) which are
necessary for EPA to administer the
program.
(2) Within 60 days of receiving the
notice and transfer plan, the
Administrator shall evaluate the State's
transfer plan and shall identify any
additional information needed by the
Federal government for program
•administration and/or identify any-other
deficiencies in the plan.
(3) At least 30 days before the transfer
is to occur the Administrator shall
publish notice of the transfer in the
Federal Register and in enough of the
largest newspapers in the State to
provide Statewide coverage, and shall
mail notice to all permit holders, permit
applicants, other regulated persons and
other interested persons on appropriate
EPA and State mailing lists.
(b) The following procedures apply
when the Administrator orders the
commencement of proceedings to
determine whether to withdraw
approval of a State program. " .
(1) Order. The Administrator may
order the commencement of withdrawal
proceedings on his or her own initiative
or in response to a petition from an
interested person alleging failure of the
State to comply with the requirements of
this part as set forth in § 271.22. The
Administrator shall respond in writing
to any petition to commence withdrawal
proceedings. He may conduct an
informal investigation of the allegations
in the petition to determine whether
cause exists to commence proceedings
under this paragraph. The
Administrator's order commencing
proceedings under this paragraph shall
fix a time and place for the
commencement of the hearing and shall
specify the allegations against the State
which are to be considered at the-
hearing. Within 30 days the State shall
admit or deny these allegations in a
written answer. The party seeking with
drawal of the State's program shall have
the burden of coming forward with the
evidence in a hearing under this
paragraph.
(2) Definitions. For purposes of this
paragraph the definitions of "Act".
"Administrative Law Judge", "Hearing",
"Hearing Clerk", and "Presiding Officer"
in 40 CFR 22.03 apply in addition to the
following:
(i) "Party" means the petitioner, the
State, the Agency and any other person
whose request to participate as a party
is granted.
(ii) "Person" means the Agency, the
State and any individual or organization
having an interest in the subject matter
of the proceeding.
(iii) "Petitioner" means any person
whose petition for commencement of
withdrawal proceedings has been
granted by the Administrator.
(3) Procedures. The following
provisions of'40 CFR Part 22
(Consolidated Rules of Practice) are
applicable to proceedings under this
paragraph:
(i) § 22.02—(use of number/gender);
(ii) § 22.04(c)—(authorities of
^Presldir/lTOTficer);
(iii) § 22.06—(filing/service of rulings
and orders);
(iv) § 22.07 (a) and (b)—except that.
the time for commencement of the
hearing shall not be extended beyond
the date set in the Administrator's order
without approval of the Administrator
(computation/extension of time);
(v) § 22.08—-however, substitute
"order commencing proceedings" for
"complaint"—(Ex Parte contacts);
(vi) § 22.09—(examination of filed
documents);
(vii) § 22.11 (a), (c) and (d). however,
motions to intervene must be filed 15
days from the date the notice of the
Administrator's order is first
published—(intervention);
(viii) § 22.16 except that, service shall
be in accordance with paragraph (b](4)
of this section, the first sentence in
§ 22.16(c) shall be deleted, and, the word
"recommended" shall be substituted for
the word "initial" in § 22.16(c)—
(motions);
(ix) § 22.19 (a), (b) and (c)—
(prehearing conference);
(x) § 22.22—(evidence);
(xi) § 22.23—(objections/offers of
proof);
(xii) § 22.25—(filing the transcript);
and
(xiii) § 22.26—(findings/conclusions).
(4) Record of proceedings, (i) The
hearing shall be either stenographicaily
reported verbatim or tape recorded, and
thereupon transcribed by an official
reporter designated by the Presiding
Officer
(ii) All orders issued by the Presiding
Officer, transcripts of testimony, written
statements of position, stipulations,
exhibits, motions, briefs, and other
written material of any kind submitted
in the hearing shall be a part of the
record and shall be available for
inspection or copying in the Office of the
Hearing Clerk. 401 M Street, S.W.,
Washington, D.C. 20460;
(iii) Upon notice to all parties the
Presiding Officer may authorize
corrections to the transcript which
involve matters of sufastancer
(iv) An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerk;
(v) A copy of each such submission
shall be served by the person making
the submission upon the Presiding
Officer and each party of record. Service
under this paragraph shall take place by
mail or personal delivery;
' (vi) Every submission shall be
accompanied by an acknowledgement
of service by the person served or proof
of service in the form of a statement of
the date, time, and manner of service
arid the names of the persons served.
certified by the person who made
service; and
(vii) The Hearing Clerk shall maintain
and furnish to any person upon request
a list containing the name, service
address, and telephone number of all
parties and their attorneys or duly
authorized representatives.
(5) Participation by a person not a
party. A person who is not a party may,
at the discretion of the Presiding Officer.
be permitted to make a limited
appearance by makng an oral or written
statement of his/her position on the
issues within such limits and on such
conditions as may be fixed by the
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
14257
Presiding Officer, but he/she may not
otherwise participate in the proceeding.
.(6) Rights of parties. All parties to the
proceeding may;
(i) Appear by counsel or other
representative in all hearing and pre-
hearing proceedings;
(ii) Agree to stipulations of facts
which shall be made a part of the
record.
(7) Recommended decision, (i) Within
30 days after the filing of proposed
findings and conclusions, and reply
briefs, the Presiding Officer shall
evaluate the record before him/her, the
proposed findings and conclusions and
any briefs filed by the parties and shall
prepare a recommended decision, and
shall certify the entire record, including
the recommended decision, to the
Administrator.
(ii) Copies of the recommended
decision shall be served upon all parties.
(iii) Within 20 days after the
certification and filing of the record and
recommended decision, all parties may
file.with the Administrator exceptions to
the recommended decision and a
supporting brief.
(8) Decision by Administrator, (i)
Within 60 days after the certification of
the record and filing of the Presiding
Officer's recommended decision, the
Administrator shall review the record
before him and issue his own decision.
(ii) If the Administrator concludes that
the State has administered the program
in conformity with the Act and
regulations his decision shall constitute
"final agency action" within the
meaning of 5 U.S.C. 704.
(iii) If the Administrator concludes
that the State has not administered the
program in conformity with the Act and
regulations he shall list the deficiencies
in the program and provide the State a
reasonable time, not to exceed 90 days,
to take such appropriate corrective
action as the Administrator determines
necessary.
(iv) Within the time prescribed by the
Administrator the State shall take such
appropriate corrective action as
required by the Administrator and shall
file with the Administrator and all
parties a statement certified by the State
Director that appropriate corrective
action has been taken.
(v) The Administrator may require a
further showing in addition to the
certified statement that corrective action
has been taken.
(vi) If the State fails to take
appropriate corrective action and file a
certified statement thereof within the
time prescribed by the Administrator,
the Administrator shall issue' a
supplementary order withdrawing
approval of the State program. If the
State takes appropriate corrective
action, the Administrator shall issue a
supplementary order stating that
approval of authority is not withdrawn.
(vii) The Administrator's
supplementary order shall constitute
final Agency action within the meaning
of 5 U.S.C. 704.
(c) Withdrawal of authorization under
this section and the Act does not relieve
any person from complying with the
requirements of State law, nor does it
affect the validity of actions by the State
prior to withdrawal.
Subpart B—Requirements for Interim
Authorization
§ 271.121 Purpose and scope.
(a) This subpart specifies
requirements a State-program-must meet--
in order to obtain interim authorization
under Section 3006(c) of RCRA. A State
must meet all the requirements of this
Subpart in order to qualify for interim
authorization. The requirements a State
program must meet in order to obtain
final authorization under Section 3006(b)
of RCRA are specified in Subpart A.
(b) Interim Authorization of State
programs under this Subpart may occur
in two phases. The phase (Phase I)
allows States to administer a hazardous
waste program in lieu of and
corresponding to that portion of the
Federal program which covers
identification and listing of hazardous
waste (40 CFR Part 26), generators (40
CFR Part 262) and transporters (40 CFR
Part 263) of hazardous wastes, and
establishes preliminary (interim status)
standards for hazardous waste
treatment, storage and disposal facilities
(40 CFR Part 265). The second phase
(Phase II) allows States to administer a
permit program for hazardous waste
treatment storage and disposal facilities
in lieu of and corresponding to the
Federal hazardous waste permit
program (40 CFR Parts 270.124 and 264),
as explained in paragraph (c) of this
section.
(c] Because some'df the Subparts of
the Federal regulations containing
standards for hazardous waste
treatment storage and disposal facilities
(40 CFR Part 284) will be promulgated at
different times, Phase II of interim
authorization will be implemented in
several components.
(1) Each component of Phase II of
interim authorization will correspond to
specified Parts and Subparts of the
Federal regulations.
(2) EPA will announce each
component of Phase n of interim
authorization in a Federal Register
notice. The notice will announce that
States may apply for interim
authorization for one or more
components. The notice will also
provide the effective date of the
component(s) and specifically identify
the Parts and Subparts of the Federal
regulations comprising the
component(s).
(3) States meeting the requirements of
this Subpart will be allowed to
administer a permit program in lieu of
the corresponding Federal hazardous
waste permit program for each
component for which they have received
interim authorization.
(d) States may apply for interim
authorization either sequentially or all
at once, as long as they adhere to the
schedule in § 271.122. For example,
States may:
" (1) Apply for interim authorization for
Phase I and amend that application each
time a component of Phase II is
announced; or
(2) Apply for interim authorization-for
Phase I. wait until the last component of
Phase II had been announced, and
amend the Phase I application at that
time to include all components of Phase
II; or
(3) Apply at the same time for interim
authorization for Phase I and for already
announced components of Phase II, and
-amend the application each time an
additional component of Phase II is
announced; or
(4) Wait until the last component of
Phase II has been announced, and apply
at the same time for interim
authorization for Phase I and for all
components of Phase II.
(e) The Administrator shall approve a
State program which meets the
applicable requirements of this Subpart.
(f) Upon approval of a State program
for a component of Phase n, the
Administrator shall suspend the
issuance of Federal permits for those
activities subject to the approved State
program.
.. .«(g) My State prpgram approved by.
the Administrator under this Subpart
shall at all times be conducted in
accordance with this Subpart
(h) Lack of authority to regulate
activities on Indian lands does not
impair a State's ability to obtain interim
authorization under this Subpart EPA
will administer the program on Indian
lands if the State does not seek this
authority.
Note.—States are advised to contact the
United States Department of Interior. Bureau
of Indian Affairs, concerning authority over
Indian lands.
(1) Nothing in this Subpart precludes a
State from:
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Federal Register / Vol. 48, No. 64 / Friday, April 1. 1983 / Rules and Regulations
(1) Adopting or enforcing
requirements which are more stringent
or more extensive than those required
under this Subpart.
(2) Operating a program with a greater
scope of coverage than that required
under this Subpart. Where an approved
program has a greater scope of coverage
than required by Federal law the
additional coverage is not part of the
Federally approved program.
§271.122 Schedule.
(a) Interim authorization for Phase I
shall not take effect until Phase I
commences. Interim authorization for
each component of Phase II shall not
take effect until the effective date of that
(b}(l) Interim authorization may
extend for a 24-month period from the
effective' date of the 'last' component of
Phase II.
Note. — EPA wiil publish a notice in the
Federal Register announcing the beginning of
this 24-month period.
(2) At the end of this period all interim
authorizations automatically expire and
EPA shall administer the Federal
program in any State which has not
received final authorization.
(c)(l) A State may apply for interim
authorization at any time prior to
expiration of the 6th month of the 24-
month period beginning with the
effective date of the last component of
Phase n. The Regional Administrator
may extend the application period for
good cause.
(2) A State applying for interim
authorization prior to the announcement
of the first component of Phase II shall
apply only for interim authorization for
Phase I.
(3) A State may apply for interim
authorization for a component of Phase
n upon the announcement of that
component, provided that the State
meets the requirement of paragraph (d)
of this section.
(4) A State which has received interim
authorization for Phase I (or interim
authorization for Phase I and for some
but not all of the components of Phase
II) shall amend its original submission to
include all of the components of Phase n
not later than 6 months after the
effective date of the last component of •
Phase H. The Regional Administrator
may extend this deadline for good
cause.
(d)(l) No State may apply for interim
authorization for a component of Phase
Q unless it: (i) has received interim
authorization for Phase I: or (ii) is
simultaneously applying for interim
authorization for that component of
• Phase II and for Phase I.
(2) When a State applies for interim
authorization for a particular component
of Phase II. it shall demonstrate that its
interim authorization program for Phase
I (and. if applicable, its program for any
other component of Phase II) is
substantially eqivalent to the Federal
program, including modifications to the
Federal program, as follows:
(i) Any State already authorized for
parts of the Federal program shall
amend its original submission to include
any additional requirements for Phase 1
(and any additional requirements for
other Phase II components for which the
State is authorized) which were
promulgated on or before the
announcement date of the particular
Phase II component being applied for.
(ii) Any State not yet authorized for
any. of the Federal programs shall* *•'
include in its submission those Phase I
requirements which were promulgated
on or before the announcement date of
the particular Phase II component being
applied for. Any new State program
which is applying for more than one
component of Phase II shall include in
its submission the additional
requirements for such other components
which were promulgated on or before
the announcement date of the particular
Phase II component being applied for.
§ 271.123 Elements of a program
submission.
(a) Any State that seeks to administer
a program under this subpart shall
submit to the Administrator at least
three copies of a program submission.
The submission shall contain the
following:
(1) A letter from the Governor of the
State requesting program approval:
(2) A complete program description,
as required by § 271.124 describing how
the State intends to carry out its
responsibilities under this part;
(3) An Attorney General's statement
as required by § 271.123;
(4) Memorandum of Agreement with
the Regional Administrator as required
,bjj.§ 271.12$; .. , — •
(5) An authorization plan as required
by § 2TL.127; and
(6) Copies of ail applicable State
statutes and regulations, including those
governing State administrative
procedures.
(b) Within 30 days of receipt by EPA
of a State program submission, EPA will
notify the State whether its submission
is complete. If EPA finds that a State's
submission is complete, the formal
review period shall be deemed to have
begun on the date of receipt of the
State's submission. If EPA finds that a
State's submission is incomplete, the
review period shall not begin until all
necessary information is received by
EPA.
(c) If the State's submission is
materially changed during the review
period, the review period shall begin
again upon receipt of the revised
submission.
(d) A State simultaneously applying
for interim authorization for both Phase
I and a component of Phase II shall
prepare a single submission.
(e) A State applying for interim
authorization for a component of Phase
II after receiving interim authorization
for Phase I (or for Phase I and previous
components of Phase II) shall amend its
previous submission for interim
authorization as specified in §§ 271.124
to 271.127.
§ 27T.124 Program description.
Any State that seeks to administer a
program under this subpart shall submit
a description of the program it proposes
to administer in lieu of the Federal""
program under State law or under an
interstate compact. A State applying
only for interim authorization for a
component of Phase II shall amend its
program description for interim
authorization for Phase I (or for Phase I
and previous components of Phase II) as
necessary to reflect the program it
proposes to administer to meet the
requirements for interim authorization
corresponding to the component of
Phase II for which the State is applying.
The program description shall include:
(a) A description in narrative form of
the scope, structure, coverage and
processes of the State program.
(b) A description (including
organization charts) of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the program, including
the information listed below. If more
than one agency is responsible for
administration of a program, each
agency must have statewide jurisdiction
over a class of activities. The -
•« responsibilities 'of each agency must be'
delineated, their procedures for
coordination set forth, and an agency
must be designated as a "lead agency"
to facilitate communications between
EPA and the State agencies having
program responsibilities. When the
State proposes to administer a program
of greater scope of coverage than is
required by Federal law, the information
provided under this paragraph shall
indicate the resources dedicated to
administering the Federally required
portion of the program.
(1) A description of the State agency
staff who will cany out the State
program, including the number.
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Federal Register / Vol. 48, No. 64 / Friday. April 1, 1983 / Rules and Regulations
14259
occupations, and general duties of the
employees. The State need not submit
complete job description for every
employee carrying out the State
program.
(2) An itemization of the estimated
costs of establishing and administering
the program, including cost of the
personnel listed in paragraph (b)(l) of
this section, cost of administrative
support and cost of technical support.
(3) An itemization of the sources and
amounts of funding, including an
estimate of Federal grant money,
available to the State Director to meet
the costs listed in paragraph (b](2) of
this section, identifying any restrictions
or limitation upon this funding.
(c) A description of applicable State
procedures, including permitting- *~ '
procedures and any State administrative
or judicial review procedures.
Note.—States applying only for interim
authorization for Phase I need describe .
permitting procedures only to the extent they
will be utilized to assure compliance with
standards substantially equivalent to CFR
Part 265.
(d) Copies of the permit form(s),
application form(s), reporting form(s),
and manifest format the State intends to
employ in its program. Forms used by
States need not be identical to the forms
used by EPA but should require the
same basic information. The State need
not provide copies of uniform national
forms it intends to use but should note
its intention to use such forms.
(e) A complete description of the
State's compliance tracking and
enforcement program.
(f) A description of the State manifest
tracking system, if the State has such a
system and of the procedures the State
will use to coordinate information with
other approved State programs and the
Federal program regarding interstate
and international shipments.
(g) An estimate of the number of the
following:
. (1) Generators;
(2) Transporters; and
(3) On- and off-site storage, treatment
and disposal facilities, and a brief
description of the types of facilities and
an indication of the permit status of
these facilities.
§ 271.125 Attorney General's statement
(a] Any State that seeks to administer
a program under this subpart shall
submit a statement from the Attorney
General (or the attorney for those State
agencies which have independent legal
counsel) that the laws of the State
provide adequate authority to carry out
the program described under § 271.124
and to meet the requirements of this
subpart. This statement shall include
citations to the specific statutes.
administrative regulations, and, where
appropriate, judicial decisions which
demonstrate adequate authority. Except
as provided in § 271.128(d). the State
Attorney General or independent legal
counsel must certify that the enabling
legislation for the State's program was
in existence within 90 days of the
announcement of the last component of
Phase II. State statutes and regulations
cited by the State Attorney General or
independent legal counsel shall be in the
form of lawfully adopted State statutes
and regulations at the time the
statement is signed and shall be fully
effective by the time the program is
approved. To qualify as "independent
legal counsel" the attorney signing the
statement required by this section must
have full authority to independently
represent the State agency in court on
all matters pertaining to the State
program. In the case of a State applying
only for interim authorization for a
component of Phase IL the Attorney
General's statement submitted for
interim authorization for Phase I (or for
Phase I and previous components of
Phase II) shall be amended and
recertified to demonstrate adequate
authority to carry out all requirements of
that component
(b)(l) In the case of a State applying
for interim authorization for Phase I, the
Attorney General's statement shall
certify that the authorization plan under
§ 271.127(a). if carried out. would
provide the State with enabling
authority and regulations adequate to
meet the requirements for final
authorization contained in Phase I.
(2) In the case of a State applying for
interim authorization for a component of
Phase II. the Attorney General's
statement shall certify that the
authorization plan under § 271.127(b), if
carried out would provide the State
with enabling authority and regulations
adequate to meet all the requirements
.u. for final g\'thT"fFTgf'0" ^nntainod in that..
component of Phase n.
[Note.—EPA will supply States with an
Attorney General's statement format on
request.]
(c) When a State seeks authority over
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State's authority.
§ 271.126 Memorandum of Agreement
with the Regional Administrator.
(a) Any State that seeks to administer
a program under this subpart shall
submit a Memorandum of Agreement
(MOA). The Memorandum of Agreement
shall be executed by the State Director
and the Regional Administrator and
shall become effective when approved
by the Administrator. In addition to
meeting the requirements of paragraph
(b) of this section and. if applicable.
paragraph (c) of this section, the
Memorandum of Agreement may
include other terms, conditions, or
agreements consistent with this Part and
relevant to the administration and
enforcement of the State's regulatory
program. The Administrators shall not
approve any Memorandum of
Agreement which contains provisions
which restrict EPA's statutory oversight
responsibility. In the case of a State
applying for interim authorization for a
component of Phase II, the
Memorandum of Agreement shall be
amended and reexecuted to include the
requirements of paragraph (c) of this
section and any necessary revisions to
the requirements of paragraph (b) of this
section.
{b) The Memorandum of Agreemen.t-
shall include the following:
(1) Provisions for the Regional
Administrator to promptly forward to
the State Director information obtained
prior to program approval in .
notifications provided under section
3010 (a) of RCRA. The Regional
Administrator and the State Director
shall agree on procedures for the
assignment of EPA identification
numbers for new generators,
transporters, treatment storage, and
disposal facilities.
(2) Provisions specifying the frequency
and content of reports, documents and
other information which the State is
required to submit to EPA. The State
shall allow EPA to routinely review
State records, reports, and files relevant
to the administration and enforcement
of the approved program. State reports
may be combined with grant reports
where appropriate.
(3) Provisions on the State's
compliance monitoring and enforcement
program, including:
. »{i). Provisions.!or coordination of
compliance monitoring activities by the
State and by EPA. These may specify
the basis on which the Regional
Administrator will select facilities or
activities within the State for EPA
inspection. The Regional Administrator
will normally notify the State at least 7
days -before any such inspection; and
(ii) Procedures to assure coordination
of enforcement activities.
(4) Provisions allowing EPA to
conduct compliance inspections of all
generators, transporters, and HWM
facilities during interim authorization.
The Regional Administrator and the
State Director may agree to limitations
on compliance inspections of generators.
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14260 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
transporters, and non-major HWM
facilities.
(5) No limitations on EPA compliance
inspections of generators, transporters,
or non-major HWM facilities under
paragraph (b)(4) of this section shall
restrict EPA's right to inspect any
generator, transporter, or HWM facility
which it has cause to believe is not
compliance with RCRA; however, before
conducting such an inspection. EPA will
normally allow the State a reasonable
opportunity to conduct a compliance
evaluation inspection.
(6) Provisions delineating respective
State and EPA responsibilities during
the interim authorization period.
(7) Provisions for modification of the
Memorandum of Agreement in
accordance with this Part.
(c) In addition. Memoranda of
Agreement for Phase II shall also
include the following, as applicable to
the component of Phase II for which the
State is applying:
(1) Provisions for the prompt transfer
from EPA to the State of pending permit
applications and any other information
relevant to program operation not
already in the possession of the State
Director (e.g., support files for permit
issuance, compliance reports, etc.].
When existing permits are transferred
from EPA to the State for
administration, the Memorandum of
Agreement shall contain provisions
specifying a procedure for transferring
the administration of these permits. If a
State lacks the authority to directly
administer permits issued by the Federal
government, a procedure may be
established to transfer responsibility for
these permits.
(2} Provisions specifying classes and
categories of permit applications and
draft permits that the State Director will
send to the Regional Administrator for
review and comment.
(3) When appropriate, provisions for
-• joint processing of permits.byithe-6tate
and EPA. for facilities or activities
which require permits from both EPA
and the State under different'programs.
See § 124.4.
(4) Provisions for the State Director to
promptly forward to EPA copies of draft
permits and permit applications for all
major HWM facilities for review and
comment. The Regional Administrator
and the State Director may agree to
limitations regarding review of and
comment on draft permits and/or permit
applications for non-major HWM
facilities. The State Director shall supply
EPA copies of final permits for all major
HWM facilities.
§ 271.127 Authorization plan.
The State must submit an
"authorization plan" which shall
describe the additions and modifications
necessary for the State program to
qualify for final authorization as soon as
practicable, but no later then the end of
the interim authorization period. This
plan shall include the nature of and
schedules for any changes in State
legislation and regulations: resources
levels: actions the State must take to
control the complete universe of
hazardous waste listed or designated
under section 3001 of RCRA as soon as
possible: the manifest and permit
systems; and the surveillance and
enforcement program which will be
necessary in order for the State to
become_eligible for-finaLauthopizatiom--
(a)(l) In the case of a State applying
only for interim authorization for Phase
I. the authorization plan shall describe
the additions and modifications
necessary for the State program to meet
the requirements for final authorization
contained in Phase I.
(2) In the case of a State applying only
for interim authorization for a
component of Phase II, the authorization
plan for Phase I (or for Phase I and
previous components of Phase II) shall
be amended to meet the requirements of
paragraph (b) of this section.
(b)(l) In the case of a State applying
for interim authorization for a
component of Phase II, the authorization
plan shall describe the additions and
modifications necessary for the State
program to meet the requirements for
final authorization corresponding to that
component of Phase II and the
requirements for final authorization
corresponding to Phase I and previous
components of Phase II.
(2) In the case of a State applying for
interim authorization for the last
component of Phase II, the authorization
plan shall describe the additions and
modifications necessary for the State
program to meet all the requirements for
..~fi nal.au thorizalion. . •
§ 271.128 Program requirements for
interim authorization for Phase I.
The following requirements are
applicable to States applying for interim
authorization for Phase L If a State does
not have legislative authority or
regulatory control over certain activities
that do not occur in the State, the State
may be granted interim authorization for
Phase I provided the State authorization
plan under § 271.127 provides for the
development of a complete program as
soon as practicable after receiving
interim authorization.
(a) Requirements for identification
and lis'ting of hazardous waste. The
State program must control a universe of
hazardous wastes generated.
transported, treated, stored, and
disposed of in Jhe State which is nearly
identical to that which would be
controlled by the Federal program under
40 CFR Part 261.
(b) Requirements for generators of
hazardous waste.
(1] This paragraph applies unless the
State comes within the exceptions
described under paragraph (d) of this
section.
(2) The State program must cover all
generators of hazardous waste
controlled by the State.
(3) The State shall have the authority
to require and shall require all
generators covered by the State program
to comply with reporting and •
recordkeeping requirements
substantially equivalent to those found
at 40 CFR 262.40 and 262.41.
(4) The State program must require
that generators who accumulate
hazardous wastes for short periods of
time do so in a manner that does not
present a hazard to human health or the
environment.
(5) The State program shall provide
requirements respecting international
shipments which are substantially
equivalent to those at 40 CFR 262.50,
except that advance notification of
international shipment, as required by
40 CFR 262.50(b)(l), shall be filed with
the Administrator. The State may
require that a copy of such advance
notice be filed with the State Director, or
may require equivalent reporting
procedures.
[Note.—Such notices shall be mailed to
Hazardous Waste Export. Division for
Oceans and Regulatory Affairs (A-107). U.S.
Environmental Protection Agency, '
Washington. D.C 20460.]
(6) The State program must require
that such generators of hazardous waste
who transport (or offer for transport)
such hazardous waste off-site use a
manjfest.syste.nj that ensures that inter-
and intrastate shipments of hazardous
waste are designated for delivery, and.
_ in the case of intrastate shipments, are _
delivered only to facilities that are
authorized to operate under an
approved State program or the Federal
program.
(7) The State manifest system must
require that:
(i) The manifest itself identify the
generator, transporter, designated
facility to which the hazardous waste
will be transported, and the hazardous
waste being transported;
(ii) The manifest accompany all
wastes offered for transport except in
the case of shipments by rail or water
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14281
specified in 5 262.23 [c) and (d) and
283.20 (e) and (f); and
(iii) Shipments of hazardous waste
that are not delivered to a designated
facility are either identified and reported
by the generator to the State in which
the shipment originated or are
independently identified by the State in
which the shipment originated.
(8) In the case of interstate shipments
for which the manifest has not been
returned, the State program must
provide for notification to the State in
which the facility designated on the
manifest is located and to the State in
which the shipment may have been
delivered (or to EPA in the case of
unauthorized States).
(c) Requirements for transporters of
hazardous wastes.
(1) This paragraph applies unless the
State comes within the exceptions
described under paragraph (d) of this
section.
(2) The State program must cover all
transporters of hazardous waste
controlled by the State.
(3] The States shall have the authority
to require and shall require all
transporters covered by the State
program to comply with recordkeeping
requirements substantially equivalent to
those found at 40 CFR 263.22.
(4) The State program must require
such transporters of hazardous waste to
use a manifest system that ensures that
inter- and intrastate shipments of
hazardous waste are delivered only to
facilities that are authorized under an
approved State program or the Federal
program.
(5) The State program must require
that transportation carry the manifest
with all shipments, except in the case of
shipments by rail or water specified in
40 CFR 263.20 (e) and (f).
(6) For hazardous wastes that are
discharged in transit, the State program
must require that transporters notify
appropriate State, local and Federal
agencies of the discharges, and clean up
. the wastes or take action so that the
wastes do not present a hazard'to
human health or the environment. These
requirements shall be substantially
equivalent to those found at 40 CFR
263.20 and 263 Jl.
• (d) Limited exceptions from generator.
transporter, and related manifest
requirements. A State applying for
interim authorization for Phase I which
meets all the requirements for such
interim authorization except that it does
not have statutory or regulatory
authority for the manifest system or
other generator or transporter
requirements discussed in paragraphs
(b) and (c) of this section may be
granted in interim authorization, if the
State authorization plan under § 271.127
delineates the necessary steps for
obtaining this authority no later than the
end cf the interim authorization period
under § 27L122(b). A State may apply
for interim authorization to implement
the manifest system and other generator
and transporter requirements if the
enabling legislation for that part of the
program was in existence within 90 days
of the announcement of the last
component of Phase II. States which
. received interim authorization for Phase
I under the terms of this paragraph may
. apply for interim authorization to
implement the manifest system and
other generator and transporter
requirements as a part of the State's
submission for Phase II or as mutually
. agreed .upon between.EEA^and.thav .
State. Until the State manifest system
and other generator and transporter
requirements are approved by EPA. all
Federal requirements for generators and
transporters (including use of the
Federal manifest system) shall apply in
such States and enforcement
responsibility for that part of the
program shall remain with the Federal
government The universe of wastes for
which these Federal requirements apply
shall be the universe of wastes
controlled by the State under paragraph
(a) of this section.
(e) Requirements for hazardous waste
treatment, storage and disposal
facilities. States must have standards
applicable to HWM facilities which are
substantially equivalent to 40 CFR Part
265. State law shall prohibit the
operation of facilities not in compliance
with such standards. These standards
shall include:
(1) Preparedness for and prevention of
releases of hazardous waste controlled
by the State under paragraph (a) of this
section and contingency plans and
emergency procedures to be followed in
the event of a release of such hazardous
waste:
(2) Closure and post-closure.
(3] Ground-water monitoring;
(4) Security to prevent unknowing and
unauthorized access to the facility;
(5) Facility personnel training;
(6) Inspection, monitoring.
recordkeeping, and reporting;
(7) Compliance with the manifest
system including the requirement that
the facility owner or operator or the
State in which the facility is located
must return a copy of the manifest to the
generator or to the State in which the
generator is located indicating delivery
of the waste shipment; and .
(8) Other facility standards to the
extent that they are included in 40 CFR
Part 265, except that Subpart R
(standards for injection wells) may be
included in the State standards, at the
State's option.
(f) Requirements for enforcement
authority. (1) Any State agency
administering a program under this
Subpart shall have the following
authority to remedy violations of State
program requirements;
(i) Authority to restrain immediately
by order or by suit in State court any
person from engaging in any
unauthorized activity which is
endangering or causing damage to
public health or the environment;
(ii) To sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any program
requirement, including, where
appropriate, permit conditions, without
the necessity of a prior revocation of the
permit; and
(iii) for any program violation, to
assess or sue to recover in court civil
penalties in at least the amount of SlOOO
per day or to seek criminal fines in at
least the amount of SlOOO per day.
12) Any State administering a program
under this Subpart shall provide for
public participation in the State
enforcement process by providing either:
(i) Authority which allows
intervention as of right in any civil
action to obtain the remedies specified
in paragraphs (fj(l) (ii) and (iii) of this
section by any citizen having an interest
which is qr n;ay be adversely affected:
or
(ii)(A) Assurance by the appropriate
State agency that it will investigate and
provide written responses to all citizen
complaints submitted pursuant to the
procedures specified in paragraph
(g)(2)(iv) of this section;
(H) Assurance by the appropriate
State enforcement authority that it will
not oppose intervention by any citizen
when permissive intervention is
authorized by statute, rule, or regulation;
and /
"" "TCJ" Assurance by the appropriate
State enforcement authority that it will
publish notice of and provide at least 30
days for public comment on all proposed
settlements of civil enforcement actions,
except in cases where a settlement
requires some immediate action (e.g.,
cleanup) which if otherwise delayed
could result in substantial damage to
either public health or the environment.
(gj Requirements for compliance
evaluation programs.
(1) A State program under this
Subpart shall have procedures for
receipt evaluation, recordkeeping, and
investigation for possible enforcement of
all required notices and reports.
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14262 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
(2) The State program shall (i) include
independent State inspection and
surveillance authority to determine
compliance or non-compliance with
applicable program requirements: or (ii)
the State program shall indicate that the
State will rely on and act under the
inspection authority provided in Section
3007(a) of RCRA.
(3) If the State is relying on
independent State inspection and.
surveillance authority, the authority
shall include authority to enter any
conveyance, vehicle, facility, or
premises subject to regulation or in
which records relevant to program
operation are kept in order to inspect,
obtain samples, monitor or otherwise
investigate compliance with the State
program. States whose law-requires a ... -••
search warrant prior to entry comply
with this requirement.
(4) If the State is relying on the
authority in section 3007(a), the State
program must contain assurances that
there are no provisions of State law
which prevent the Slate from using that
authority.
(5] The State program must include:
(i) The capability to make
comprehensive surveys of any activities
subject to the State Director's authority
in order to identify persons subject to
regulation who have failed to comply
with program requirements:
(ii) A program "for periodic inspection
of the activities subject to regulation;
(iii) The capability to investigate
evidence of violations of applicable
program and permit requirements;
(iv) Procedures to determine
compliance or non-compliance-with
applicable program requirements
including procedures for receiving and
ensuring proper consideration of
information submitted by the public
about violations. Public effort in
reporting violations shall be encouraged
and the State Director shall make
available information on reporting
procedures.
'• (6) Investigatory inspections shall be •-
conducted, samples shall be taken, and
other information shall be gathered in a
manner (e.g., using proper "chain of
custody" procedures) that will produce
evidence admissible in an enforcement
proceeding or in court.
§271.129 Additional program
requirements for Interim authorization lor
Phase II.
In addition to the requirements of
§ 271.128, the following requirements are
applicable to States applying for a
component of Phase IL
(aj(l) State programs must have
standards applicable to hazardous
waste management facilities that
provide substantially the same degree of
human health and environmental
protection as the standards promulgated
in the Subparts of 40 CFR Part 264
comprising that component
(2) The Administrator may authorize a
State program for Phase II Components
A or B, or both, even though the State
program does not include liability
coverage requirements, if (i) the State
submitted a draft application for the
component or components of Phase n
interim authorization prior to April 16,
1982, and (ii) the State commits in its
Memorandum of Agreement to adopt
State liability coverage requirements as
quickly as practicable, but in no case
later than the State's application for an
additional component of Phase II interim
authorization.--. ..
(3) Any State which receives interim
authorization for Components A or B or
both without liability coverage
requirements, pursuant to paragraph
(a)(2) of this section, may not receive an
additional component of Phase II interim
authorization unless it has liability
coverage requirements in effect
(4) The Administrator may authorize a
State program for Phase II Component
A, even though the State program does
not have standards corresponding to 40
CFR Subpart K (Surface Impoundments),
if the State commits in its Memorandum
of Agreement to adopt State standards
substantially equivalent to 40 CFR Part
264 Subpart K no later than the State's
application for the Phase II component
corresponding to the Federal land
disposal standards.
(5) Any State which receives interim
authorization for Component A without
surface impoundment standards,
pursuant to paragraph (a)(4) of this
section, may not receive interim
authorization for the Phase II component
corresponding to the Federal land
disposal standards unless it has
standards substantially equivalent to 40
CFR Part 264 Subpart Kin effect
(b)(l) State programs shall require a
L.permitfor,ownersjuid,Dperatoraaf = ..
those hazardous waste treatment,
storage an.d disposal facilities:
(i) corresponding to-that-component;
(ii) which handle any waste controlled
by the State under § 271.128(a); and
(iii) for which a permit is required
under 40 CFR Part 270.
(2) The State program shall prohibit
the operation of such facilities without a
permit, provided States may authorize
owners and operators of facilities which
would qualify for interim status under
the Federal program (if State law so
authorizes) to remain in opetation
pending permit action. Where State law
authorizes such continued operation it
shall require compliance by owners and
operators of such facilities with
standards substantially equivalent to
EPA's interim status standards under 40
CFR Part 265.
(c) All permits issued by the State
under this section shall require
compliance with the standards adopted
by the State in accordance with
paragraph (a) of this section.
(d) State programs shall have
requirements for permitting which are
substantially equivalent to the
provisions listed in § 271.14, except that
States must have requirements
equivalent to § 124.10(b)(l), (c)(l)(ix),
(c)(2)(ii) and § 124.12(a).
(e) A State with interim authorization
for a component of Phase II may not
issue .permits pursuant to that
component with a term greater than ten
years.
(f) State programs shall require that a
facility which, under the Federal
hazardous waste management program
would be deemed to have a Federal
permit if the conditions established in
§ 270.60 of this chapter are met, comply
with standards at least substantially
equivalent to the applicable standards
in § 270.60 of this chapter. Such
standards need not be imposed through
issuance of a permit, but must be fully
enforceable.
§ 271.130 Interstate movement of
hazardous waste.
(a) If a waste is transported from a
State where it is listed or designated as
hazardous under the program applicable
in that State, whether that is the Federal
program or an approved State program,
into a State with interim authorization
where it is not listed or designated, the
waste must be manifested in accordance
with the laws of the State where the
waste was generated and must be
treated, stored, or disposed of as
required by the laws of the State into
which it has been transported.
(b) If a waste is transported from a,
''State with interim authorization where it
is not listed or designated as hazardous
.into a State where it is listed or
designated as hazardous under the
program applicable in that State,
whether that is the Federal program or
an approved State program, the waste
must be treated, stored, or disposed of in
accordance with the law applicable in
the State into which it has been
transported.
(c) In all cases of interstate movement
of hazardous waste, as defined by 40
CFR Part 261. generators and
transporters must meet DOT
requirements in 49 CFR Parts 172,173,
178, and 179 (e.g., for shipping paper.
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Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations
142S3
packaging, labeling, marking, and
placarding).
§ 271.131 Progress reports.
The State Director shall submit a
semi-annual progress report to the EPA
Regional Administrator within 4 weeks
of the date 6 months after Phase I
commences, and at 6-month intervals
thereafter until the expiration of interim
authorization. The reports shall briefly
summarize, in a manner and form
prescribed by the Regional
Administrator, the State's compliance in
meeting the requirements of the
authorization plan, the reasons and
proposed remedies for any delay in
meeting milestones, and the anticipated
problems and solutions for the next
reporting period.
§ 271.132 Sharing of information.
(a) Any information obtained or used
in the administration of a State program
shall be available to EPA upon request
without restriction. If the information
has been submitted to the State under a
claim of confidentiality, the State must
submit that claim to EPA when
providing information under this
subpart Any information obtained from
a State and subject to a claim of
confidentiality will be treated in
accordance with the regulations in 40
CFR Part 2. If EPA obtains from a State
information that is not claimed to be
confidential, EPA may make that
information available to the public
without further notice.
(b) EPA shall furnish to States with
approved programs the information in
its files not submitted under a claim of
confidentiality which the State needs to
implement its approved program. EPA
shall furnish to States with approved
programs information submitted to EPA
under a claim of confidentiality, which
the States needs to implement its
approved program, subject to the
conditions in 40 CFR Part 2.
§271.133 Coordination with other
(a) Issuance of State permits under
this part may be coordinated, as
provided in Part 124, with issuance of
UIC, NPDES, and 404 permits whether
they are controlled by the State, EPA or
the Corps of Engineers. See § 124.4.
(b) The State Director of any
approved program which may effect the
planning for the development of
hazardous waste management facilities
and practices shall consult and
coordinate with agencies designated
under section 4006(b) of RCRA (40 Part
255) as responsible for the development
and implementation of State and solid
waste management plans under section
4002(b) of RCRA (40 CFR Part 256).
§ 271.134 EPA review of State permits.
(a) The Regional Administrator may
comment on permit applications and
draft permits as provided in the
Memorandum of Agreement under
§ 271.126.
(b) Where EPA indicates, in a
comment, that issuance of the permit
would be inconsistent with the approved
State program, EPA shall include in the
comment:
(1) A statement of the reasons for the
comment (including the section of RCRA
or regulations promulgated thereunder
that support the comment}; and
(2) The actions that should be taken
by the State-Director in order-to address-
the comments (including the conditions
which the permit would include if it
were issued by the Regional
Administrator).
(c) A copy of any comment shall be
sent to the permit applicant by Regional
Administrator.
(d) The Regional Administrator shall
withdraw such a comment when
satisfied that the State has met or
refuted his or her concerns.
(e) Under Section 3C08(a)(3) of RCRA,
EPA may terminate a State-issued
permit in accordance with the
procedures of Part 124, Subpart E, or
bring an enforcement action in
accordance with the procedures of 40
CFR Part 22 in the case of a violation of
a State program requirement. In
exercising these authorities, EPA will
observe the following conditions:
(1) The Regional Administrator may
take action under section 30CO(a)(3) of
RCRA against a holder of a State-issued
permit at any time on the ground that
permittee is not complying with a
condition of that permit
(2) The Regional Administrator may
take action under Section 3008(a)(3) of
RCRA against a holder of a State-issued
. permit at any .time on the ground that
the permittee is not complying with a
condition that the Regional
Administrator in .commenting on the
permit application or draft permit stated
was necessary to implement approved
State program requirements, whether or
not that condition was included in the
final permit
(3) The Regional Administrator may
not take action under section 3008(a)(3)
of RCRA against a holder of a State-
issued permit on the ground that the
permittee is not complying with a
condition necessary to implement
approved State program requirements
unless the Regional Administrator
stated in commenting on the permit
application or draft permit that the
condition was necessary.
(4) The Regional Administrator may
take action under Section 7003 of RCRA
against a permit holder at any time
whether or not the permit holder is
complying with permit conditions.
§ 271.135 Approval process.
(a) Within 30 days of receipt of a
complete program submission for Phase
I or for a component of Phase n of
interim authorization, the Regional
Administrator shall:
(1) Issue notice in the Federal Register
and in accordance with 5 271.20(a)(l) of
a public hearing cr. the State's
application for interim authorization.
Such public hearing will be held by EPA
no earlierthan-30 days after notice of
the hearing, provided that if significant
public interest in a hearing is not
expressed, the hearing may be cancelled
if a statement to this effect is included in
the public notice. The State shall
participate in any public hearing held by
EPA.
(2) Afford the public 30 days after the •
notice to comment on the State's
submission; and
(3) Note the availability of the Stale's
submission for inspection and copying
by the public. The State submission
shall, at a minimum, be available in the
main office of the lead State agency and
in the EPA Regional Office.
. (b) Within 90 days of the notice in the
Federal Register required by paragraph
(a)(l) of this section, the Administrator
shall make a final determination
whether or not to approve the State's '
program, taking into account any
comments submitted. The Administrator
will give notice of this final
determination in the Federal Register
and in accordance with § 271.20(a)(l).
The notification shall include a concise
statement of the reasons for this
determination, and a response to
significant comments received.
_{c) .Where .a State has received interim
authorization for Phase I or for Phase I
and for some, but not all, components of
Phase IL the same procedures required
in paragraphs (a) and (b) of this section
shall be used in determining whether the
amended program submission meets the
requirements of the Federal Program.
§271.136 Withdrawal of State programs.
(a) The criteria and procedures for
withdrawal set forth in §§ 271.22 and
271.23 apply to this section.
fo) In addition to the criteria in
§ 271.22, State program approval may be
withdrawn if a State which has obtained
interim authorization fails to meet the
schedule for or accomplish the additions
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14264
Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
or revisions of its program set forth in its
authorization plan.
§ 271.137 Reversion of State programs.
(a) A State program approved for
interim authorization for Phase I or for
Phase I and some but not all
components of Phase II shall terminate
on the last day of the 6th month after the
effective date of the last component of
Phase II, and EPA shall administer and
enforce the Federal program in the State
commencing on that date if the State has
failed to submit by that date an
amended submission pursuant to
§ 271.122(c](4). The Regional
Administrator may extend this deadline
for good cause.
(b) A State program approved for
interim authorization for Phase Tor for
Phase I and for seme but not all
components of Phase II shall terminate
and EPA shall administer and enforce
the Federal program in the State if the
Regional Administrator determines
pursuant to § 271.135(c) that a program
submission amended pursuant to
§ 271.122(c)(4) does not meet the
requirements of the Federal program.
-Part 124 is revised to read as follows:
PART 124—PROCEDURES FOR
DECISIONMAKING
Subpart A—General Program Requirements
Sec.
124.1 Purpose and scope.
124.2 Definitions.
124.3 Application for a permit.
124.4 Consolidation of permit processing.
124.5 Modification, revocation and
reissuance, or termination of permits.
124.6 Draft permit
124.7 Statement of basis.
124.8 Fact sheet.
124.9 Administrative record for draft
permits when EPA is the permitting
authority.
124.10 Public notice of permit actions and
public comment period.
,124.11 Public comments and requests for
public hearings.
124.12 Public bearings.
124.13 Obligation to raise issues and
provide information during the public
comment period.
124.14 Reopening of the public comment"
period.
124.15 Issuance and effective date of permit
124.16 Stays of contested permit conditions.
124.17 Response to comments.
124.18 Administrative record for final
permit when EPA is the permitting
authority.
124.19 Appeal of RCRA. UIC and PSD
permits.
124.20 Computation of time. • ' .
124.21 Effective date of Part 124.
Subpart B—Specific Procedures
Applicable to RCRA Permits
[Reserved]
Subpart C—Specific Procedures Applicable
to PSD Permits
Sec.
124.41 Definitions applicable to PSD
permits.
124.42 Additional procedures for PSD
permits affecting Class I areas.
Subpart D—Specific Procedures Applicable
to NPDES Permits
124.51 Purpose and scope.
124.52 Permits required on a case-by-cr.se
basis.
124.53 State certification.
124.54 Special provisions for Slate
certification-and-concurrence on** ' ~
applications for section 301[h) variances.
124.55 Effect of State certification.
124.56 Fact sheets.
124.57 Public notice.
124.58 Special procedures for EPA-issued
general permits for pcir.t sources other
than separate storm sewers.
124.59 Conditions requested by the Corps of
Engineers and other government
agencies.
124.60 Issuance and effective date and stays
of NPDES permits.
124.61 Final environmental impact
statement.
124.62 Decision on variances.
124.63 Procedures for variances when EPA
is the permitting authority.
124.64 Appeal of variances.
124.65 Special procedures for discharge into
marine waters under section 301(h).
124.66 Special procedures for decisions on
thermal variances under section 316(a).
Subpart E—Evidentiary Hearing for EPA-
Issued NPDES Permits and EPA-Terminated
RCRA Permits
124.71 Applicability.
124.72 Definitions.
124.73 Filing and submission of documents.
124.74 Requests for evidentiary hearing.
124.75 Decision on request for a hearing.
124.76 Obligation to submit evidence and
,xij*raise>issueS'before>B«final permit is '• •"
issued.
124.77 Notice of hearing.
124.78 Ex parte communications.
124.79 Additional parties and issues.
124.80 Filing and service.
124.81 Assignment of Administrative Law
Judge.
124.82 Consolidation and severance.
124.83 Preheating conferences.
124.84 Summary determination.
124.85 Hearing procedure.
124.86 Motions.
124.87 Record of hearings.
124.88 Proposed findings of fact and
conclusions; brief.
124.89 Decisions.
124.90 Interlocutory appeal
124.91 Appeal to the Administrator.'
Subpart F—Non-Adversary Panel
Procedures
Sec.
124.111 Applicability.
124.112 Relation to other Subparts.
124.113 Public notice of draft permits and
public comment period.
124.114 Request for hearing.
124.115 Effect of denial of or absence of
request for hearing.
124.116 Notice of hearing.
124.117 Request to participate in hearing.
124.113 Submission of written comments on
draft permit.
124.119 Presiding Officer.
124.120 Panel hearing.
124.121 Opportunity for cross-examination.
124.122 Record fsr final permit.
124.1Z3 Filing of brief, proposed findings of
fact and conclusions of law and
proposed modified permit.
124.124 Recommended decision.
124.125 Appeal from or review of
recommended decision.
124.126 F;nal decision.
124.1C7 Final decision if there is no review.
124.128 Delegation of authority: time
limitations.
Appendix A to Part 124—Guide to
Decisionmaking under Part 124.
Authority: Resource Conservation and
Recovery Act. 42 U.S.C. 6901 et seq.: Safe
Drinking Water Act, 42 U.S.C. 300(f) et set}.:
Clean Water Act 33 U.S.C. 1251 et seo,- and
Clean Air Act. 42 U.S.C. 1857 et seq.
Subpart A—General Program
Requirements *
§ 124.1 Purpose and scope.
(a) Tliis Part contains EPA procedures
for issuing, modifying, revoking and
reissuing, or terminating all RCRA, UIC,
PSD and NPDES "permits" other than
RCRA and UIC "emergency permits"
(see §§ 270.61 and 144.34) and RCRA
"permits by rule" (§ 270.60). The latter
kinds of permits are governed by Part
270. RCRA interim status and UIC
authorization by rule are not "permits"
and are covered by specific provisions
in Parts 144, Subpart C, and 270. This
Part also does not apply to permits
..^issued, modified, revokediand reissued
or terminated by the Corps of Engineers.
Those procedures are specified in 33
- -CFR Parts 320-3C7.
(b) Part 124 is organized into six
subparts. Subpart A contains general
procedural requirements applicable to .
all permit programs covered by these
regulations. Subparts B through F
supplement these general provisions
' with requirements that apply to only one
or more of the programs. Subpart A
describes the steps EPA will follow in
receiving permit applications, preparing
draft permits, issuing public notice,
inviting public comment and holding
public hearings on draft permits.
Subpart A also covers assembling an
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 142S5
administrative record, responding to
comments, issuing a final permit
decision, and allowing for
administrative appeal of the final permit
decision. Subpart B is reserved for
specific procedural requirements for
RCRA permits. There are none of these
at present but they may be added in the
future. Subpart C contains definitions
and specific procedural requirements for
PSD permits. Subpart D applies to
NPDES permits until an evidentiary
hearing begins, when Subpart E
procedures take over for EPA-issued
NPDES permits and EPA-terminated
RCRA permits. Subpart F, which is
based on the "initial licensing"
provisions of the Administrative
HEARINGS AVAILABLE UNDER THIS PART
Procedure Act (APA). can be used
instead of Subparts A through E in
appropriate cases.
(c) Part 124 offers an opportunity for
three kinds of hearings: a public hearing
under Subpart A. an evidentiary hearing
under Subpart E, and a panel hearing
under Subpart F. This chart describes
when these hearings are available for
each of the five permit programs.
Programs
Subpart
(A)
Public hewing
(E)
(F)
Panel hewing
RCRA...
UIC..
PSD..
NPOES (other than general permit)
NPDES (general pennl}._
404
On draft permit, at Director's discretion or on
request (§ 124.12).
On draft permit, at Director's discretion or on
request (5 124.12).
On draft permit, at Director's discretion or on
request (§ 124.12).
Cn draft permit at Director's discretion or on
request (5 124.12).
On draft permit, at Director's discretion or on
request (§ 124.12).
Cn draft parrot or on application when no
draft permit, at Director's ducreuon or on
request (5 124 12).
(1) Permit termination IRCBA section 3008)
(2) With NPOES - evidentiary heanng
With NPDES • evidentiary heanng
a 124.74(b)(2».
Not available tf t24.7i(c»
(1) On reouest to cnallenee any permit condi-
tion or variance (§ 124.74).
(2) At RA's discretion for any 301(h) request
(5 124.64(b».
Not available fj 124.71 (a))_
Not available (} 124.71)
(1) At RA's discretion m Iwu of public heanng
(H 124 12 ana 124 111(al(3)).
(2) When eonsomiaud with NPOES draft permri proc-
essed uraer Subpart F(J 124. m («)(') Wl.
(1) At RA's Oscreaon in IMU of public hetrmg
(99 124.12 and 124.iii(at|1l).
(2) When consolidated wim NPDES draft permit proc-
essed under Subpart f ({ 124 ii1(a)(1)(i)).
When consetdaied with NPDES draft permri processed
uncer Subpart f :l RA determines that CAA one. year
deadline wdf not be violated.
(1) At RA's discretion wnen first decouon on permit or
variance request (5 124.111).
(2) At RA's discretion wnen reouest for evidentiary
heanng • granted under 1 124.75UX2)
H9 124.74IOI8) and 124.111UK2!).
(31 At RA's discretion for any 301(h) request
(5 124 64(b».
At RA4s discretion in 6eu of putAc hearing.
Not available (5 124.1 11).
(d) This Part is designed to allow
permits for a given facility under two or
more of the listed programs to be
processed separately or together at the
choice of the Regional Administrator.
This allows EPA to combine the
processing of permits only when
appropriate, and not necessarily in all
cases. The Regional Administrator may
consolidate permit processing when the
permit applications are submitted, when
draft permits are prepared, or when final
permit decisions are issued. This Part
also allows consolidated permits to be
subject to a single public hearing under
§ 124.12, a single evidentiary hearing
under § 124.75. or a single non-
adversary panel hearing under § 124.120.
Permit applicants may recommend
whether or not their applications should
be consolidated in any given case.
(e) Certain procedural requirements
set forth in Part 124 must be adopted by
States in order to gain EPA approval to
operate RCRA, UIC, NPOES. and 404
permit programs.These requirements are
listed in §§ 123.25 (NPDES], 145.11
(UIC). 233,26 (404), and 271.14 (RCRA)
and signaled by the following words at
the end of the appropriate Part 124
section or paragraph heading:
(applicable to State programs see.
§§ 12325 (NPDES). 145.11 (UIC), 233.26
(404), and 271.14 (RCRA)). Part 124 does
not apply to PSD permits issued by an
approved State.
(f) To coordinate decisionmaking
when different permits will be issued by
EPA and approved State programs, this
Part allows applications to be jointly
processed, joint comment periods and
hearings to be held, and final permits to
be issued on a cooperative basis
whenever EPA and a State agree to take
such steps in general or in individual
cases.-These joint processing
agreements may be provided in the
Memorandum of Agreement developed
under §§ 123.24 f NPDES). 14S.2"4'fUIC).
233.24 (404), and 271.8 (RCRA).
§124.12 Definitions.
(a) In addition to the definitions given
in §§ 122.2 and 123.2 (NPDES). 144 J and
145.2 (UIC); 233.3 (404), and 270.2 and
271.2 (RCRA), the definitions listed
below apply to this Part except for PSD
permits which are governed by the
definitions in §124.41. Terms not defined
in this section have the meaning given
by the appropriate Act
Administrator means the •
Administrator of the U.S. Environmental
Protection Agency, or an authorized
representative.
Applicable standards and limitations
(NPDES) means all State, interstate, and
Federal standards and limitations to
which a "discharge" or a related activity
in subject under the CWA, including
"effluent limitations," water quality
standards, standards of performance,
toxic effluent standards or prohibitions.
"best management practices," and
pretreatment standards under Sections
301. 302. 303. 304, 306. 307, 308, 403, and
405 of CWA.
Application means the EPA standard
national forms for applying for a permit,
including any additions, revisions or
modifications to the forms; or forms
approved by EPA for use in "approved
States," including any approved
modifications or revisions. For RCRA.
application also includes the
information required by the Director
under §270.14-270.29 [contents of Part B
of the RCRA application].
Appropriate Act and regulations
means the Clean Water Act (CWA): the
Solid Waste Disposal Act as amended
by the Resource Conservation Recovery
Act (RCRA); or Safe Drinking Water Act
(SDWA), whichever is applicable; and
applicable regulations promulgated
under those statutes. In the case of an
"approved State program" appropriate
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Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations
Act and regulations includes program
requirements.
CWA means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Art of Federal
Pollution Control Act Amendments of
1972) Pub. L 92-500. as amended by Pub.
L. S5-217 and Pub. L. 95-576; 33 U.S.C.
1251 et seq.
Director means the Regional
Administrator or the State Director, as
the context requires, or an authorized
representative. When there is no
"approved State program," and there is
an EPA administered program.
"Director"means the Regional
Administrator. When there is an
approved State program, "Director"
normally means the State Director. In
some circumstances, however. EPA
retains the authority to take certain
actions even when there is an approved
State program. {For example, when EPA
has issued an NPDES permits prior to
the approval of a State program. EPA
may retain jurisdiction over that permit
after program approval; see § 123.1) In
such cases, the term "Director means
the Regional Administrator and not the
State Director.
Draft permit means a document
prepared under §124.6 indicating the
Director's tentative decision to issue or
deny, modify, revoke and reissue.
terminate, or reissue a "permit." A
notice of intent to terminate a permit
and a notice of intent to deny a permit
as discussed in § 124.5, are types of
"draft permits." A denial of a request for
modification, revocation and reissuance
or termination, as discussed in §124.5. is
not a "draft permit" A "proposal
permit" is not a "draft permit"
EPA ("EPA") means the United States
"Environmental Protection Agency."
Facility or activity means any "HWM
facility." UTC "injection well," NPDES
"point source," or State 404 dredge or fill
activity, or any other facility or activity
(including land or appurtenances
thereto) that is subject to regulation
under the RCRA. UIC, NPDES. or 404
programs.
General Permit (NPDES and 404)
means an NPDES or 404 "permit"
authorizing a category of discharges
under the CWA within a geographical
area. For NPDES. a general permit
means a permit issued under § 12Z2&.
For 404, a general permit means a permit
issued under § 233.37.
Interstate Agency means an agency of
two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as determined
and approved by the Administrator
under the "appropriate Act and
regulations."
Major Facility means any RCRA. UIC,
NPDES, or 404 "facility or activity"
classified as such by the Regional
Administrator, or, in the case of
"approved State programs." the
Regional Administrator in conjunction
with the State Director.
NPDES means National Pollutant
Discharge Elimination System.
Owner or Operator means owner or
operator of any "facility or activity"
subject to regulation under the
RCRA.UIC. NPDES. or 404 programs.
Permit means an authorization,
license, or equivalent control document
issued by EPA or an "approved State" to
implement the requirements of this Part
and Parts 122^123^144,.145)'233,«70.'and—
271. "Permit" includes RCRA "permit by
rule" (Section 270.60), UIC area permit
(Section 144.33). NPDES or 404 "general
permit" (Sections 270.61.144.34. and
233.38). Permit does not include RCRA
interim status (Section 270.70). UIC
authorization by rule (Section 144.21), or
any permit which has not yet been the
subject of final agency action, such as a
"draft permit" or a "proposed permit"
Person means an individual,
association, partnership, corporation,
municipality, State or Federal agency, or
an agency or employee-thereof.
RCRA means the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976 (Pub. L 94-580. as amended
by Pub. L 95-609, 42 U.S.C. Section 6901
et seq).
Regional Administrator means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
authorized representative of the
Regional Administrator.
Schedule of compliance means a
schedule of remedial measures included
in a "permit." including an enforceable
sequence of interim requirements (for
example, actions, operations, or
milestone-exenla].leading to compliance—
with the "appropriate Act and
regulations."
SDWA means the Safe Drinking
Water Act (Pub. L 95-523. as amended
by Pub. L 95-1900; 42 U.S.C 300f et seq).
Section 404 program or State 404
program or 404 means an "approved
State program" to regulate the
"discharge of dredged material" and the
"discharge of fill material" under
Section 404 of the Clean Water Act in
"State regulated waters."
Site means the land or water area
where any "facility or activity" is
physically located or conducted,
including adjacent land used in
connection with the facility or activity.
State means any of the 50 states, the
District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands-, American Samoa, the
Trust Territory of the Pacific Islands
(except in the case of RCRA). and the
Commonwealth Northern Mariana
Islands (except in the case of CWA).
State Director means the chief
administrative officer of any State or
interstate agency operating an
"approved program." or the delegated
representative of the state Director. If
responsibility is divided among two or
more State or interstate agencies. "State
Director" means the chief administrative
officer of the State or interstate agency
authorized to perform the particular
procedure or function to which reference
is made.
UIC means the Underground Injection
Control program under Part C of the
Safe Drinking Water Act. including an
"approved program."
Variance (NPDES) means any
mechanism or provision under section
301 or 316 of CWA or under 40 CFR Part
125, or in the applicable "effluent
limitations guidelines" which allows
modification to or waiver of the
generally applicable effluent limitation
requirements or time deadlines of CWA.
This includes provisions which allow
the establishment of alternative
limitations based on fundamentally
different factors or on sections 301(c),
301(g), 3Ql(h). 30l(i). or 316(a) of CWA.
(b) For the purposes of Part 124, the
term "Director" means the State
Director or Regional Administrator and
is used when the accompanying
provision is required of EPA-
administered programs and of State
programs under §§ 123.25 (NPDES).
145.11 (UIC). 233.26 (404). and 271.14
(RCRA). The term "Regional
Administrator" is Used when the
accompanying provision applies
exclusively to EPA-issued permits and is
not applicable to State programs under
•these sections/While States are not'
required to implement these latter
provisions, they are not precluded from
doing so, notwithstanding use of the
term "Regional Administrator."
(c) The term "formal bearing" means
'any evidentiary hearing under Subpart E
or any panel hearing under Subpart F
but does not mean a public hearing
conducted under 9 124.12.
§124.3 Application for a permit
(a) Applicable to State programs, see
§§ 12335 (NPDES), 145.11 (UIC). 23338
(404). and 271.14 (RCRA). (1) Any person
who requires a permit under the RCRA.
UIC NPDES, or PSD programs shall
complete, sign, and submit to the
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14267
Director an application for each permit
required under §§ 270.1 (RCRA), 144.1
(UIC). 40 CFR 52.21 (PSD), and 122.1
(NPDES). Applications are not required
for RCRA permits by rule (§ 270.60).
underground injections authorized by
rule (§ 144.21-26), NPDES general
permits (§ 122.28) and 404 general
permits {§ 233.37).
(2) The Director shall not begin the
processing of a permit until the
applicant has fully complied with the '
application requirements for that permit.
See §§ 270.10, 270.13 (RCRA), 144.31
(UIC), 40 CFR 52.21 (PSD), and 122.21
(NPDES).
(3) Permit applications (except for
PSD permits) must comply with the
signature and certification requirements
of §§ 122.22 (NPDES). 144.32 (UIC). 233.6..
(404). and 270.11 (RCRA).
(b) [Reserved.]
(c) The Regional Administrator shall
review for completeness every
application for an EPA-issued permit.
Each application for an EPA-issued
permit submitted by a new HWM
facility, a new UIC injection well, a
major PSD stationary source or major
PSD modification, or an NPDES new
source or NPDES new discharger should
be reviewed for completeness by the
Regional Administrator within 30 days
of its receipt Each application for an
EPA-issued permit submitted by an
existing HWM facility (both Parts A and
B of the application), existing injection
well or existing NPDES source should be
reviewed for completeness within 60
days of receipt Upon completing the
review, the Regional Administrator shall
notify the applicant in writing whether
the application is complete. If the
application is incomplete, the Regional
Administrator shall list the information
necessary to make the application
complete. When the application is for an
existing HWM facility, an existing UIC
injection well or an existing NPDES
source, the Regional Administrator shall
specify in the notice of deficiency a date
•-for submitting the necessary
information. The Regional Administrator
shall notify the applicant that the
application is complete upon receiving
this information. After the application is
completed, the Regional Administrator
may request additional information from
an applicant but only when necessary to
clarify, modify, or supplement
previously submitted material. Requests
for such additional information will not
render an application incomplete.
(d) If an applicant fails or refuses to
correct deficiencies in the application,
the permit may be denied and
appropriate enforcement actions may be
taken under the applicable statutory
provision including RCRA section 3008.
SDWA sections 1423 and 1424, CAA
section 167, and CWA sections 308. 309.
402(h). and 402(k).
(e) If the Regional Administrator
decides that a site visit is necessary for
any reason in conjunction with the
processing of an application, he or she
shall notify the applicant and a date
shall be scheduled.
(f) The effective date of an application
is the date on which the Regional
Administrator notifies the applicant that
the application is complete as provided
in paragraph (c) of this section.
(g) For each application from a major
new HWM facility, major new UIC
injection well, major NPDES new
source, or major NPDES new discharger,
the Regional Administrator shall, no
later .than.the..effective- date of the .•»
application, prepare and mail to the
applicant a project decision schedule.
(This paragraph does not apply to PSD
permits.) The schedule shall specify
target dates by which the Regional
Administrator intends to:
(1) Prepare a draft permit;
(2) Give public notice:
(3) Complete the public comment
period, including any public hearing;
(4) Issue a final permit; and
(5) In the case of an NPDES permit.
complete any formal proceedings under
Subparts E or F.
§ 124.4 Consolidation of permit
processing.
(a)(l) Whenever a facility or activity
requires a permit under more than one
statute covered by these regulations.
processing of two or more applications
for those permits may be consolidated.
The first step in consolidation is to
prepare each draft permit at the same
time.
(2) Whenever draft permits are • •
prepared at the same time, the
statements of basis (required under
§ 124.7 for EPA-issued permits only) or
fact sheets (§ 124.8), administrative
records (required under § 124.9 for EPA-
_iss.ued,oennits only], public-comment
periods (§ 124.10), and any public
hearings (§ 124.12) on those permits
should also be consolidated. The final
permits may be issued together. They
need not be issued together if in the
judgment of the Regional Administrator
or State Directors), joint processing
would result in unreasonable delay hi
the issuance of one or more permits.
(b) Whenever an existing facility or
activity requires additional permits
under one or more of the statutes
covered by these regulations, the
permitting authority may coordinate the
expiration date(s) of the new permit(s)
with the expiration date(s) of the
existing permit(s) so that all permits
expire simultaneously. Processing of the
subsequent applications for renewal
permits may then be consolidated.
(c) Processing of_permit applications
under paragraph (a) or (b) of this section
may be consolidated as follows:
(1) The Director may consolidate
permit processing at his or her
discretion whenever a facility or activity
requires all permits either from EPA or
from an approved State.
(2) The Regional Administrator and
the State Director(s) may agree to
consolidate draft permits whenever a
facility or activity requires permits from
both EPA and an approved State.
(3) Permit applicants may recommend
whether or not the processing of their
applications should be consolidated.
(d) Whenever permit 'processing is
consolidated and the Regional
Administrator invokes the "initial
licensing" provisions of Subpart F for an
NPDES. RCRA. or UIC permit, any - -
permit(s) with which that NPDES, RCRA
jor UIC permit was consolidated shall
likewise be processed under Subpart F.
(e) Except with the written consent of
the permit applicant the Regional
Administrator shall not consolidate
processing a PSD permit with any other
permit under paragraphs (a) or (b) of
-this section or process a PSD permit
under Subpart F as provided in
paragraph (d) of this section when to do
so would delay issuance of the PSD
permit more than one year from the
effective date of the application under —
§ 124.3(f).
§ 124.5 Modification, revocation and
reissuance. or termination of permits.
(a) (Applicable to State programs, see
§§ 123.25 (NPDES). 145.11 (UIC). 233.26
(404). and 271.14 (RCRA)). Permits (other
than PSD permits) may be modified..
revoked and reissued, or terminated
either at the request of any interested
person (including the permittee) or upon
the Director's initiative. However,
c permits may only be modified, revoked ,
and reissued, or terminated for the
reasons specified in §§ 122.62 or 122.64
(NPDES), 144.39 or 144.40 (UIC). 233.14
or 233.15 (404), and 270.41 or 270.43
(RCRA). All requests shall be in writing
and shall contain facts or reasons
supporting the request
(b) If the Director decides the request
is not justified, he or she shall send the
requester a brief written response giving
a reason for the decision. Denials of
requests for modification, revocation .
and reissuance, or termination are not
subject to public notice, comment or
hearings. Denials by the Regional
Administrator may be informally
appealed to the Administrator by a
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Federal Register / Vol. 48, No. 54 / Friday, April 1, 1983 / Rules and Regulations
letter briefly setting forth the relevant
facts. The Administrator may direct the
Regional Administrator to begin
modification, revocation and reissuance.
or termination proceedings under
paragraph (c) of this section. The appeal
shall be considered denied if the
Administrator takes no action on the
letter within 60 days after receiving it.
This informal appeal is, under 5 U.S.C.
§ 704. a prerequisite to seeking judicial
review of EPA action in denying a
request for modification, revocation and
reissuance. or termination.
(c) (Applicable to State programs, see
§§ 123.25 (NPDES). 145.11 (UIC), 233.26
(404), and 271.14 (RCRA}). (1) If the
Director tentatively decides to modify or
revoke and reissue a permit under
§§122.62 (NPDES), 144.39 (UIC), 233.14.-
(404). or 270.41 (RCRA), he or she shall
prepare a draft permit under § 124.6
incorporating the proposed changes. The
Director may request additional
information and, in the case of a
modified permit, may require the
submission of an updated application. In
the case of revoked and reissued
permits, the Director shall require the
submission of a new application.
(2) In a permit modification under this
section, only those conditions to be
modified shall be reopened when a new
draft permit is prepared. All other
aspects of the existing permit shall
remain in effect for the duration of the
unmodified permit. When a permit is
revoked and reissued under this section.
the entire permit is reopened just as if
the permit had expired and was being
reissued. During any revocation and
reissuance proceeding the permittee
shall comply with all conditions of the
existing permit until a new final permit
is reissued.
(3) "Minor modifications" as defined
in Sections 122.63 (NPDES), 144.41 (UIC),
233.16 (404), and 270.42 (RCRA) are not
subject to the requirements of this
section.
(d) (Applicable to State programs, see
.^Sections 12335 (NPDES),. 145Jl.fUIC},,...
233.26 (404), and 271.14 (RCRA)). If the
Director tentatively decides to terminate
a permit under Sections 122.64 (NPDES),
144.40 (UIC), 233.15 (404), or 270.43
(RCRA), he or she shall issue a notice of
intent to terminate. A notice of intent to
terminate is a type of draft permit which
follows the same procedures as any
draft permit prepared under Section
124.6. In the case of EPA-issued permits,
a notice of intent to terminate shall not
be issued if the Regional Administrator
and the permittee agree to termination
in the course of transferring permit
responsibility to an approved State
under Sections 123.24(b)(l) (NPDES).
14S.24(b)(l) (UIC). or 271.8(b)(6) (RCRA).
(e) When EPA is the permitting
authority, all draft permits (including
notices of intent to terminate) prepared
under this section shall be based on the
administrative record as defined in
Section 124.9.
(f) (Applicable to State programs, see
Section 233.26 (404)). Any request by the
permittee for modification to an existing
404 permit (other than a request for a
minor modification as defined in Section
233.16 (404)) shall be treated as a permit
application and shall be processed in
accordance with all requirements of
Section 124.3.
(g)(l) (Reserved for PSD Modification
Provisions)
(2) PSD permits may be terminated
only by rescission under § 52.21(w) or
..by automatic expiration-under-§-52:21(r)r
Applications for rescission shall be
processed under § 52.21(w) and are not
subject to this Part.
§ 124.6 Draft permits.
(a) (Applicable to State programs, see
Sections 123.25 (NPDES), 145.11 (UIC).
233.26 (404). and 271.14 (RCRA).) Once
an application is complete, the Director
shall tentatively decide whether to
prepare a draft permit (except in the
case of State section 404 permits for
which no draft permit is required under
Section 233.39) or to deny the
application.
(b) If- the Director tentatively decides
to deny the permit application, he or she
shall issue a notice of intent to deny. A
notice of intent to deny the permit
application is a type of draft permit
which follows the same procedures as
any draft permit prepared under this
section. See Section 124.6(e). If the
Director's final decision (Section 124.15)
is that the tentative decision to deny the
permit application was incorrect, he or
she shall withdraw the notice of intent
to deny and proceed to prepare a draft
permit under paragraph (d) of this
section.
(c) (Applicable to State programs, see
(404).) If the Director tentatively decides
to issue an NPDES or 404 general permit.
he or she shall prepare a draft general
permit under paragraph (d) of this
section.
(d) (Applicable to State programs, see
Sections 12325 (NPDES). 145.11 (UIC),
233,26(404), and.271.14 (RCRA).) If the
Director decides to prepare a draft
permit, he or she shall prepare a draft
permit that contains the following
information:
(1) All conditions under Sections
122.41 and 122.43 (NPDES), 144.51 and
144.42 (UIC. 233.7 and 233.8 (404. or
270.30 and 270.32 (RCRA) (except for
PSD permits)));
(2) All compliance schedules under
Section 122.47 (NPDES), 144.53 (UIC).
233.10 (404). or 270.33 (RCRA) (except
for PSD permUs);
(3) All monitoring requirements under
Section 122.48 (NPDES). 144.54 (UIC).
233.11 (404), or 270.31 (RCRA) (except
for PSD permits); and
(4) For:
(i) RCRA permits, standards for
treatment, storage, and/or disposal and
other permit conditions under Section
270.30;
(ii) UIC permits, permit conditions
under Section 144.52;
(iii) PSD permits, permit conditions
under 40 CFR Section 52.21;
(iv) 404 permits, permit conditions
under. Sections 233.7 and 233.8;
(v) NPDES permits, effluent
limitations, standards, prohibitions and
conditions under Section 122.41 and
122.42. including when applicable any
conditions certified by a State agency
under Section 124.55. and all variances
that are to be included under Section
124.63.
(e) (Applicable to State programs, see
Sections 123.25 (NPDES). 145.11 (UIC).
233.26 (404), and 271.14 (RCRA).) All
draft permits prepared by EPA under
this section shall be accompanied by a
statement of basis (Section 124.7) or fact
sheet (Section 124.8), and shall be based
on the administrative record (Section
124.9), publicly noticed (Section 124.10)
and made available for public comment
(Section 124.11). The Regional
Administrator shall give notice of
opportunity for a public hearing (Section
124.12). issue a final decision (Section
124.15) and respond to comments
(Section 124.17). For RCRA. UIC or PSD
permits, an appeal may be taken under
Section 124.19 and. for NPDES permits.
an appeal may be taken under Section
124.74. Draft permits prepared by a State
shall be accompanied by a fact sheet if
required under § 124.8.
'§124.7 'Statement of basis.
EPA shall prepare a statement of
basis for every draft permit for which a
fact sheet under § 124.8 is not prepared.
The statement of basis shall briefly
describe the derivation of the conditions
of the draft permit and the reasons for
them or, in the case of notices of intent
to deny or terminate, reasons supporting
the tentative decision. The statement of
basis shall be sent to the applicant and.
on request, to any other person.
§ 124.S Fact sheet
(Applicable to State programs, see
§§ 123.25 (NPDES). 145.11 (UIC). 233.26
(404). and 271.14 (RCRA).)
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Federal Register / Vol. 48." No. 64 / Friday. April 1. 1983 / Rules and Regulations 14269
(a) A fact sheet shall be prepared for
every draft permit for a major HWM,
UIC, 404, or NPDES facility or activity.
for every 404 and NPDES general permit
(§§ 233.37 and 122.28). for every NPDES
draft permit that incorporates a variance
or requires an explanation under
§ 124.56(b). and for every draft permit
which the Director finds is the subject of
widespread public interest or raises
major issues. The fact sheet shall briefly
set forth the principal facts and the
significant factual, legal, methodological
and policy questions considered in
preparing the draft permit. The Director
shall send this fact sheet to the
applicant and. on request, to any other
person.
(b) The fact sheet shall include, when
applicable:
(1) A brief description of the type of
facility or activity which is the subject
of the draft permit;
(2) The type and quantity of wastes,
fluids, or pollutants which are proposed
to be or are being treated, stored.
disposed of. injected, emitted, or
discharged.
(3) For a PSD permit, the degree of
increment consumption expected to
result from operation of the facility or
activity.
(4) A brief summary of the basis for
the draft permit conditions including
references to applicable statutory or
regulatory provisions and appropriate
supporting references to the
administrative record required by
§ 124.9 (for EPA-issued permits);
(5) Reasons why any requested
variances or alternatives to required
standards do or do not appear justified:
(6) A description of the procedures for
reaching a final decision on the draft
permit including:
(i) The beginning and ending dates of
the comment period under § 124.10 and
the address where comments will be
received;
(ii) Procedures for requesting a
•hearing and the natur&of.that.hearing; .
and
(iii) Any other procedures by which
the public may participate in the final
decision.
(7) Name and telephone number of a
person to contact for additional
information.
(8) For NPDES permits, provisions
satisfying the requirements of § 124.56.
§ 124.9 Administrative record for draft
permits when EPA is the permitting
authority.
(a) The provisions of a draft permit
prepared by EPA under § 124'.6 shall be
based on the administrative record
defined in this section.
(b) For preparing a draft permit under
§ 124.6. the record shall consist of:
(1) The application, if required, and
any supporting data furnished by the
applicant;
(2) The draft permit or notice of inter.t
to deny the application or to terminate
the permit;
(3) The statement of basis (§ 124.7) or
fact sheet (§ 124.8):
(4) All documents cited in the
statement of basis or fact sheet; and
(5) Other documents contained in the
supporting file for the draft permit.
(6) For NPDES new source draft
permits only, any environmental
assessment, environmental impact
statement (EIS), finding of no significant
impact, or environmental information
document and any supplement to an EIS*
that may have been prepared. NPDES
permits other than permits to new
sources as well as all RCRA, UIC and
PSD permits are not subject to the
environmental impact statement
provisions of section 102(2)(C) of the
National Environmental Policy Act, 42
U.S.C. 4321.
(c) Material readily available at the
issuing Regional Office or published
material that is generally available, and
that is included in the administrative
record under paragraphs (b) and (c) of
this section, need not be physically
included with the rest of the record as
long as it is specifically referred to in the
statement of basis or the fact sheet
(d) This section applies to all draft
permits when public notice was given
after the effective date of these
regulations.
§ 124.10 Public notice of permit actions
and public comment period. •
(a) Scope. (1) The Director shall given
public notice that the following sections
have occurred:
(i) A permit application has.been
tentatively denied under Section
124.6(b);
*~*(ir) {ApplieabtfttrState programs? see
Sections 123.25 (NPDES). 145.11 (UIC),
233.26 (404). and 271.14 (RCRA)). A draft
permit has been prepared under Section
124.6(d);
(iii) (Applicable to State programs, see
Sections 12335 (NPDES). 145.11 (UIC),
233.26 (404) and 271.14 (RCRA)). A
hearing has been scheduled under
Section 124.12, Subpart E. or Subpart F;
(iv) An appeal has been granted under
Section 124.19(c);
(v) (Applicable to State programs, see
Section 233.26-(404)}. A State section 404
application has been received in cases
when no draft permit will be prepared
(see Section 233.39); or
(vi) An NPDES new source
determination has been made under
Section 122.29.
(2) No public notice is required when
a request for permit modification,
revocation and reissuance, or
termination is denied under Section
124.5(b). Written notice of that denial
shall be given to the requester and to the
permittee.
(3) Public notices may describe more
than one permit or permit actions.
(b) Timing (applicable to State
programs, see Sections 123.25 (NPDES).
145.11 (UIC), 233.26(404, and 271.14
(RCRA)). (1) Public notice of the
preparation of a draft permit (including
a notice of intent to deny a permit
application) required under paragraph
(a) of.this section shall allow at least 30
days for public comment. For RCRA
permits only, public notice shall allow at
least 45 days for public comment. For
EPA-issued permits, if the Regional
Administrator determines under 40 CFR
Part 6, Subpart F that an Environmental
Impact Statement (EIS) shall be
prepared for an NPDES new source.
public notice of the draft permit shall
not be given until after a draft EIS is
issued.
(2) Public notice of a public hearing
shall be given at least 30 days before the
hearing. (Public notice of the hearing
may be given at the same time as public
notice of the draft permit and the two
notices may be combined.)
(c) Methods (applicable to State
programs, see §§ 123.25 (NPDES). 145.12
(UIC), 233.26(404), and 271.14 (RCRA)).
Public notice of activities described in
paragraph (a)(l) of this section shall be
given by the following methods:
(1) By mailing a copy of a notice to the
following persons (any person otherwise
entitled to receive notice under this
paragraph may waive his or her rights to
receive notice for any classes and
categories of permits);
(i) The applicant (except for NPDES
and 404 general permits when there is
"no'appticaflt):
(iij Any other agency which the
Director knows has issued or is required
to issue a RCRA, UIC. PSD, NPDES or
• 404 permit for the same facility or
activity (including EPA when the draft
permit is prepared by the State);
(iii) Federal and State agencies with
jurisdiction over fish, shellfish, and
wildlife resources and over coastal zone
management plans, the Advisory
Council on Historic Preservation, State
Historic Preservation Officers, and other
appropriate government authorities,
including any affected States;
(iv) For NPDES and 404 permits only.
any State agency responsible for plan
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14270 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
development under CWA section
208(b)(2), 208(b)(4) or 303(e) and the U.S.
Army Corps of Engineers, the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service;
(v) For NPDES permits only, any user
identified in the permit application of a
privately owned treatment works;
(vi) For 404 permits only, any
reasonably ascertainable owner of
property adjacent to the regulated
facility or activity and the Regional
Director of the Federal Aviation
Administration if the discharge involves
the construction of structures which may
affect aircraft operations or for purposes
associated with seaplane operations;
(vii) For PSD permits only, affected
State and local air pollution control---. -
agencies, the chief executives of the city
and county where the major stationary
source or major modification would be
located, any comprehensive regional
land use planning agency and any State.
Federal Land Manager, or Indian
Governing Body whose land's may be
affected by emissions from the regulated
activity;
(viii) Persons on a mailing list
developed by:
(A] Including those who request in
writing to be on the list:
(B) Soliciting persons for "area lists"
from participants in past permit
proceedings in that area; and
(C) Notifying the public of the
opportunity to be put on the mailing list
through periodic publication in the
public press and in such publications as
Regional and State funded newsletters,
environmental bulletins, or State law
journals. (The Director may update the
mailing list from time to time by
requesting written indication of
continued interest from those listed. The
Director may delete from the list the
name of any person who fails to respond
to such a request)
(2) For major permits and NPDES and
•404 general permits, publication.of a
notice in a daily or weekly newspaper
within the area affected by the facility
or activity; and for EPA-issued NPDES
general permits, in the Federal Register,
[Note.—The Director i* encouraged to
provide as' much notice as possible of the
NPDES or 404 draft general permit to the
facilities or activities to be covered by the
general permit]
(3) When the program is being
administered by an approved State, in a
manner constituting legal notice to the
public under State law, and
(4] Any other method reasonably
calculated to give actual notice of the
action in question to the persons •
potentially affected by it including
press releases or any other forum or
medium to elicit public participation.
(d) Contents (applicable to State
programs, see §§ 123.25 (NPDES). 145.11
(UIC). 233.26 (404). and 271.14 (RCRA)).
(1) All public notices. All public notices
issued under this Part shall contain the
following minimum information:
(i) Name and address of the office
processing the permit action for which
notice is being given;
(ii) Name and address of the permittee
or permit applicant and, if different, of
the facility or activity regulated by the
permit except in the case of NPDES and
404 draft general permits under
§§ 122.28 and 233.37;
(iii) a brief description of the business
conducted at the facility, or.activity -,. .
described in the permit application or
the draft permit for NPDES or 404
general permits when there is no
application.
(iv) Name, address and telephone
number of a person from whom
interested persons may obtain further
information, including copies of the draft
permit or draft general permit, as the
case may be, statement of basis or fact
sheet and the application; and
(v) A brief description of the comment
procedures required by §§ 124.11 and
124.12 and the time and place of any
hearing that will be held, including a
statement of procedures to request a
hearing (unless a hearing has already
been scheduled) and other procedures
by which the public may participate in
the final permit decision.
(vi) For EPA-issued permits, the
location of the administrative record
required by § 124.9. the times at which
the record will be open for public
inspection, and a statement that all data
submitted by the applicant is available
as part of the administrative record.
(vii) For NPDES permits only, a
general description of the location of
each existing or proposed discharge
point and the name of the receiving
-water77dr~draft general pernntsTfnis "
requirement will be satisfied by a map
or description of the permit area. For '
EPA-issued NPDES permits only, if the
discharge is from a new source, a
statement as to whether an • .
environmental impact statement will be
or has been prepared.
(viii) For 404 permits only,
(A) The purpose of the proposed
activity (including, in the case of fill
material, activities intended to be
conducted on the fill), a description of
the type, composition, and quantity of
materials to be discharged arid means of
conveyance; and any proposed
conditions and limitations on the
discharge;
(B) The name and water quality
standards classification, if applicable, of
the receiving waters into which the
discharge is proposed, and a general
discription of the site of each proposed
discharge and the portions of the site
and the discharges which are within
State regulated waters;
(C) A description of the anticipated
environmental effects of activities
conducted under the permit;
(D) References to applicable statutory
or regulatory authority; and
(E) Any other available information
which may assist the public in
evaluating the likely impact of the
proposed activity upon the integrity of
the receiving water.
(ix) Any-additional information
considered necessary or proper.
(2) Public notices for hearings. In
addition to the general public notice
described in paragraph (d)(l) of this
section, the public notice of a hearing
under § 124.12. Subpart E. or Subpart F
shall contain the following information:
(i) Reference to the date of previous
public notices relating to the permit;
(ii) Date, time, and place of the
hearing;
(iii) A brief description of the nature
and purpose of the hearing, including the
applicable rules and procedures; and
(iv) For 404 permits only, a summary •
of major issues raised to date during the
public comment period. .
(e) (Applicable to State programs, see
§§ 123.25 (NPDES). 145.11 (UIC). 233.26
(404). and 271.14 (RCRA)). In addition to
the general public notice described in
paragraph (d)(l) of this section, all
persons identified in paragraphs (c)(l)
(i), (ii), (iii), and (iv) of this section shall
be mailed a copy of the fact sheet or •
statement of basis (for EPA-issued
permits), the permit application (if any)
and the draft permit (if any).
§ 124.11 Public comments and requests
for public hearings.
^"lApplicdble tb'State programs, see '
§§ 123.25 (NPDES). 145.11 (UIC). 233.26
(404).and 271.14 (RCRA).)
During the public comment period
provided under § 124.10, any interested
person may submit written comments on
the draft permit or the permit
application for 404 permits when no
draft permit is required (see § 233.39)
and may request a public hearing, if no
hearing has already been scheduled. A
request for a public hearing shall be in
writing and shall state the nature of the
issues proposed to be raised in the
hearing. All comments shall be
considered in making the final decision
and shall be answered as provided in
§ 124.17.
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14271
§ 124.12 Public hearings.
(a\ (Applicable to State programs, see
§§ 123.25 (NPDES). 145.11 (UIC). 233.28
(404). and 271.14 (RCRA).) (1) The
Director shall hold a public hearing
whenever he or she finds, on the basis
of requests, a significant degree of
public interest in a draft permit(s);
(2J The Director may also hold a
public hearing at his or her discretion.
whenever for instance, such a hearing
might clarify one or more issues
involved in the permit decision;
(3) For RCRA permits only, (i) the
Director shall hold a public hearing
whenever he or she receives written
notice of opposition to a draft permit
and a request for a hearing within 45
days of public notice under
§ I24.10(b)(l): (ii) whenever-possible the -
Director shall schedule a hearing under
this section at a location convenient to
the nearest population center to the
proposed facility;
(4) Public notice of the hearing shall
be given as specified in § 124.10.
(b) Whenever a public hearing will be
held and EPA is the permitting authoriy,
the Regional Administrator shall
designate a Presiding Officer for the
hearing who shall be responsible for its
scheduling and orderly conduct
(c) Any person may submit oral or
written statements and data concerning
the draft permit. Reasonable limits may
be set upon the time allowed for oral •
statements, and the submission of
statements in writing may be required.
The public comment period under
§ 124.10 shall automatically be extended
to the close of any public hearing under
this section. The hearing officer may
also extend the comment period by so
stating at the hearing.
(d) A tape recording or written
transcript of the hearing shall be made
available to the public.
(e) At his or her discretion, the
Regional Administrator may specify that
RCRA and UIC permits be processed
under the .procedures in Subpart F.
5 124.13 Obligation to raise issues and
provide Informstlon durinc; the public
continent period*
All persons, including applicants, who
believe any condition of a draft permit is
inappropriate or that the Director's
tentative decision to deny an
application, terminate a permit, or
prepare a draft permit is inappropriate,
must raise all reasonably ascertainable
issues and submit all reasonably
available arguments and factual grounds
supporting their position, including all
supporting material, by the close of the
public comment period (including any
public hearing) under § 124.10. All .
supporting materials shall be included in
full and may not be incorporated by
reference, unless they are already part
of the administrative record in the same
proceeding, or consist of State or
Federal statutes and regulations, EPA
documents of general applicability, or
other generally available reference
materials. Commenters shall make
supporting material not already included
in the administrative record available to
EPA as directed by the Regional
Administrator. (A comment period
longer than 30 days will often be
necessary in complicated proceedings to
give commenters a reasonable
opportunity to comply with the
requirements of this section.
Commenters may request longer
comment periods and they should be
freely established under §'124.10 TO the '
extent they appear necessary.)
§ 124.14 Reopening of the public
comment period.
(a) If any data information or
arguments submitted during the public
comment period, including information
or arguments required under § 124.13,
appear to raise substantial new
questions concerning a permit, the
Regional Administrator may take one or
more of the following actions:
(1) Prepare a new draft permit
appropriately modified, under § 124.6:
(2) Prepare a revised statement of
basis under § 124.7, a fact sheet or
revised fact sheet under § 124.8 and
reopen the comment period under
§ 124.14: or
(3) Reopen or extend the comment
period under § 124.10 to give interested
persons an opportunity to comment on
the information or arguments submitted.
(b) Comments filed during the
reopened comment period shall be
limited to the substantial new questions
that caused its reopening. The public
notice under § 124.10 shall define the
scope of the reopening. .
(c) For RCRA. UIC, or NPDES permits,
the Regional Administrator may also, in
i- •Miie'iurcumstBnees'deaeribgd'above.' ' •
elect to hold further proceedings under
Subpart F. This decision may be
combined with any of the actions
enumerated in paragraph (a) of this
• section.
(d) Public notice of any of the above
actions shall be issued under § 124.10.
§ 124.15 Issuance and effective date of
permit
(a) After the close of the public
comment period under § 124.10 on a
draft permit the Regional Administrator
shall issue a final-permit decision. The
Regional Administrator shall notify the
applicant and each person who has
submitted written comments or
requested notice of the final permit
decision. This notice shall include
reference to the procedures for
appealing a decision on a RCRA, UIC, or
PSD permit or for contesting a decision
on an NPDES permit or a decision to
terminate a RCRA permit. For the
purposes of this section, a final permit
decision means a final decision to issue.
deny, modify, revoke and reissue, or
terminate a permit.
(b) A final permit decision shall
become effective 30 days after the
service of notice of the decision under
paragraph (a) of this section, unless:
(1) A later effective date is specified
in the decision; or
(2) Review is requested under § 124.19
(RCRA. UIC. and PSD permits) or an
evidentiary hearing is requested under
§ 124.74 (NPDES permit and RCRA
permit terminations); or
(3) No comments requested a change
in the draft permit, in which case the .-
permit shall become effective
immediately upon issuance.
§ 124.16 Stays of contested permits
conditions.
(a) Stays. (1) If a request for review of
a RCRA or UIC permit under § 124.19 or
an NPDES permit under § 124.74 or
.. § 124.114 is granted or if conditions of a
RCRA or UIC permit are consolidated
for reconsideration in an evidentiary
hearing on an NPDES permit under
§§ 124.74.124.82 or 124.114, the effect of
the contested'permit conditions shall be
stayed and shall not be subject to
judicial review pending final agency
action. (No stay of a PSD permit is
available under this section.) If the
permit involves a new facility or new
injection well, new source, new
discharger or a recommencing •• •
discharger, the applicant shall be
without a permit for the proposed new
facility, injection well, source or
discharger pending final agency action.
See also § 124.60.
- J2)JLJnconlesteelt conditions which anr
not serverable from those contested
shall be stayed together with the
contested conditions. Stayed provisions
of permits for existing facilities,
injection wells, and sources shall be
identified by the Regional
Administrator. All other, provisions of
the permit for the existing facility,
injection well, or source shall remain
fully effective and enforceable.
(b) Stays based on cross effects. (1) A
stay may be granted based on the
grounds that an appeal to the
Administrator under § 124.19 of one
permit may result in changes to another
EPA-issued permit only when each of
the permits involved has been appealed
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14272 Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations^
to the Administrator and he or she has
accepted each appeal.
(2) No stay of an EPA-issued RCRA.
UIC. or NPDES permit shall be granted
based on the staying of any State-issued
permit except at the discretion of the
Regional Administrator and only upon
written request !rom the Slate Director.
(c) Any facility or activity holding an
existing permit must:
(1) Comply with the conditions of that
permit during any modification or
revocation and reissuance proceeding
under § 124.5; and
(2) To the extent conditions of any
new permit are stayed under this
section, comply with the conditions of
the existing permit which correspond to
the stayed conditions, unless
compliance with the existing conditions
would be technologically incompatible'"
with compliance with other conditions
of the new permit which have not been
stayed.
§ 124.17 Response to comments.
(a) (Applicable to State programs, see
§§ 123.25 (NPDES), 145.11 (UIC). 233.26
(404), and 271.14 (RCRA).) At the time
that any final permit decision is issued
under § 124.15, the Director shall issue a
response to comments. States are only
required to issue a response to
comments when a final permit is issued.
This response shall:
(1) Specify which provisions, if any, of
the draft permit have been changed in
the final permit decision, and the
reasons for the change; and
(2) Briefly describe and respond to all
significant comments on the draft permit
or the permit application (for section 404
permits only) raised during the public
comment period, or during any hearing.
(b) For EPA-issued permits, any
documents cited in the response to
comments shall be included in the
administrative record for the final
permit decision as defined in § 124.18. If
new points are raised or new material
supplied during the public comment '
period, EPA may document its response
to those matters -by adding new
materials to the administrative record.
(c) (Applicable to State programs, see
SS123-25 (NPDES). 145.11 (UIC). 23336
(404), and 271.14 (RCRA).) The response
to comments shall be available to the
public.
§ 124.18 Administrative record for final
permit when EPA is the permitting
authority.
(a) The Regional Administrator shall
base final permit decisions under
§ 124.15 on the administrative record
defined in this section. ,
(b) The administrative record for any
final permit shall consist of the.
administrative record for the draft
permit and:
(1) All comments received during the
public comment period provided under
§ 124.10 (including any extension or
reopening under § 124.14);
(2) The tape or transcript of any
hearing(s) held under § 124.12;
(3) Any written materials submitted at
such a hearing;
(4) The response to comments
required by § 124.17 and any new
material placed in the record under that
section;
(5) For NPDES new source permits
only, final environmental impact
statement and any supplement to the
final EIS;
(6) Other documents contained in the
supporting file for the permit; and
J7) The final permit.-"
(c) The additional documents required
under paragraph (b) of this section
should be added to the record as soon
as possible after their receipt or
publication by the Agency. The record
shall be complete on the date the final
, permit is issued.
(d) This section applies to all final
RCRA, UIC, PSD, and NPDES permits
when the draft permit was subject to the
administrative record requirements of
§ 124.9 and to all NPDES permits when
the draft permit was included in a public
notice after October 12.1979.
(e) Material readily available at the
issuing Regional Office, or published
materials which are generally available
and which are included in the
administrative record under the
standards of this section or of 5 124.17
("Response to comments"), need not be
physically included in the same file as
the rest of the record as long as it is
specifically referred to in the statement
of basis or fact sheet or in the response
to comments.
§ 124.19 Appeal of RCRA, UIC, and PSD
permits.
(a) Within 30 days after a RCRA. UIC.
or PSD final permit decision has been
.^issuedfUnder-J«l24.-15,-any person who- *•
filed comments on that draft permit or
participated in the public hearing may
petition the Administrator to review any
condition of the permit decision. Any
person who failed to file comments or
failed to participate in the public hearing
on the draft permit may petition for
administrative review only to the extent
of the changes from the draft to the final
permit decision. The 30-day period
within which a person may request
review under this section begins with
the service of notice of the Regional
Administrator's action unless a later
date is specified in that notice. The
petition shall include a statement of the
reasons supporting that review.
including a demonstration that any
issues being raised were raised during
the public comment period (including
any public hearing) to the extent
required by these regulations and when
appropriate, a shewing that the
condition in question is based on:
(1) A finding of fact or conclusion of
law which is clearly erroneous, or
(2) An exercise of discretion or an
important policy consideration which
the Administrator should, in hi3 or her
discretion, review.
(b) The Administrator may also
decide on his or her initiative to review
any condition of a.-.y RCRA. UIC, or PSD
permit issued under this Part. The
Administrator must act ur.der this
paragraph wid-un 30 c^ys jf the service
date of notice of the Rpgicnal
Administrator's action.
(c) Within a reasonable time following
the filing of the petition for review, the
Adrr.Li:strator shall issue an order either
granting or denying the petition for
review. To the extent review is denied.
the conditions of the final permit
decision become final agency action.
Public notice of any grant of review by
the Administrator under paragraph (a)
or (b) of this section shall be given as
provided in § 124.10. Public notice shall
set forth a briefing schedule for the
appeal and shall state that any
interested person may file an amicus
brief. Notice of denial cf review shall be
sent only to the person(s) requesting
review.
(d) The Administrator may defer
consideration of an appeal of a RCRA or
UIC permit under this section until the
completion of formal proceedings under
Subpart E or F relating to an NPDES
permit issued to the same facility or
activity upon concluding that:
(1) The NPDES permit is likely to raise
issues relevant to a decision of the
RCRA or UIC appeals:
(2) The NPDES permit is likely to be
appealed; and
•• * (3)-Either: (i) The interests of both the
facility or activity and the public are not
likely to be materially adversely
affected by the deferral; or
(ii) Any adverse effect is outweighed
by the benefits likely to result from a
consolidated decision on appeal.
(e) A petition to the Administrator
under paragraph (a) of this section is,
under 5 U.S.C. § 704, a prerequisite to
the seeking of judicial review of the final
agency action.
(fj(l) For purposes of judicial review
under the appropriate Act, final agency
action occurs when a final RCRA. UIC
or PSD permit is issued or denied by
EPA and agency review procedures are
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Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations 14273
exhausted. A final permit decision shall
be issued by the Regional
Administrator (i) When the
Administrator issues notice to the
parties that review has been denied; (ii)
when the Administrator issues a
decision on the merits of the appeal and
the decision does not include a remand
of the proceedings; or (iii) upon the
completion of remand proceedings if the
proceedings are remanded, unless the
Administrator's remand order
specifically provides that appeal of the
remand decision will be required to
exhaust administrative remedies.
(Z) Notice of any final agency action
regarding a PSD permit shall promptly
be published in the Federal Register.
§ 124.20 Computation of time.
(a) Any time period scheduled to
begin on the occurrence of an act or
event shall begin on the day after the act
or event.
(b) Any time period scheduled to
begin before the occurrence of an act or
event shall be computed so that the
period ends on the day before the act or
event.
(cj If the final day of any time period
falls on a weekend or legal holiday, the
time period shall be extended to the
next working day.
(d] Whenever a party or interested
person has the right or is required to act
within a prescribed period after the
service of notice or other paper upon
him or her by mail. 3 days shall be
added to the prescribed time.-
§ 124.21 Effective date of Part 124.
(a] Except for paragraph (b) and (c) of
this section. Part 124 will become
effective July 18.1980. Because this
effective date will precede the
processing of any RCRA or UIC permits.
Part 124 will apply in its entirety to all
RCRA and UIC permits.
(b) All provisions of Part 124
pertaining to the RCRA program will
become effective on'Nbvembef 19; 1980. *
(c) All provisions of Part 124
pertaining to the UIC program will
become effective July 18.1980, but shall
not be implemented until the effective
date of 40 CFR Part 148.
(d) This Part does not significantly
change the way in which NPDES permits
are processed. Since October 12,1979,
NPDES permits have been the subject to
almost identical requirements in the .
revised NPDES regulations which were
promulgated on June 7,1979. See 44 FR
32948. To the extent this^Part changes
the revised NPDES permit regulations,
those changes will take effect as to all
permit proceedings in progress on July 3,
1980.
(e) This part also does not
significantly change the way in which
PSD permits are processed. For the most
part, these regulations will also apply to
PSD proceedings in progress on July 18,
1980. However, because it would be
disruptive to require retroactively a
formal administrative record for PSD
permits issued without one, § § 124.9 and
124.18 will apply to PSD permits for
which draft permits were prepared after
the effective date of these regulations.
Subpart B—Specific Procedures
Applicable to RCRA Permits—
[Reserved]
Subpart C—Specific Procedures
Applicable to PSD Permits
§ 124.41 Definitions applicable to PSD
permits.
Whenever PSD permits are processed
under this Part, the following terms shall
have the following meanings:
"Administrator," "EPA," and
"Regional Administrator" shall have the
meanings set forth in § 124.2, except
when EPA has delegated authority to
administer those regulations to another
agency under the applicable subsection
of 40 CFR § 52.21, the term "EPA" shall
mean the delegate agency, and the .term
"Regional Administrator" shall mean
the chief administrative officer of the
delegate agency.
"Application" means an application
for a PSD permit.
"Appropriate Act and Regulations"
means the Clean Air Act and applicable
regulations promulgated under it.
"Approved program" means a State
implementation plan providing for
issuance of PSD permits which has been
approved by EPA under the Clean Air
Act and 40 CFR Part 51. An "approved
State" is one administering an
"approved program." "State Director'
used in § 124.4 means the person(s)
responsible for issuing PSD permits
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EPA, with the concurrence of the
Federal Land Manager and State
responsible, to grant certain variances
from the otherwise applicable emission
limitations to a facility or activity whose
emissions would affect a Class I area.)
(c) Variances authorized by 40 CFR
52.21 (q)(5) through (q)(7) shall be
handled as specified in those
subparagraphs and shall not be subject
to this Part. Upon receiving appropriate
documentation of a variance properly
granted under any of these provisions,
the Regional Administrator shall enter
the variance in the administrative
record. Any decisions later made in
proceedings under this Part concerning
that permit shall be consistent with the
conditions of that variance.
Subpart D—Specific Procedures
Applicable to NFOES Permits
§ 124.51 Purpose and scope. .
(a) This Subpart sets forth additional
requirements and procedures for
decisionmaking for the NPDES program.
(b) Decisions on NPDES variance
requests ordinarily will be made during
the permit issuance process. Variances
and other changes in permit conditions
ordinarily will be decided through the
same notice-and-comment and hearing
procedures as the basic permit.
§ 124.52 Permits required on a case-by-
case basis.
(a) Various sections of Part 122.
Subpart B allow the Director to
determine, on a case-by-case basis, that
certain concentrated animal feeding
operations (§ 122.23), concentrated
aquatic animal production facilities
(§ 122-24), separate storm sewers
(§ 122.26). and certain other facilities
covered by general permits (§ 12?., 28)
that do not generally require an
individual permit may be required to
obtain an individual permit because of
their contributions to water pollution.
(b) Whenever the Regional
.- Administrator decides.that--.an individual.
permit is required under this section, the
Regional Administrator shall notify the
discharger in writing of that decision
and the reasons for it, and shall send an
application form with the notice. The
discharger must apply for a permit under
§ 12Z21 within 60 days of notice. The
question whether the initial designation
was proper will remain open for
consideration during the public
comment period under § 124.11 or
§ 124.118 and in any subsequent hearing.
§124.53 State certification.
(a) Under CWA section 401(a)(l), EPA
may not issue a permit until a
certification is granted or waived in
accordance with that section by the
State in which the discharge originates
or will originate.
(b) Applications received without a
Slate certification shall be forwarded by
the Regional Administrator to the
certifying Slate agency with a request
that certification be granted or denied.
(c) If State certification has not been
received by the time the draft permit is
prepared, the Regional Administrator
shall send the certifying State agency:
(1) A copy of a draft permit;
(2) A statement that EPA cannot issue
or deny the permit until the certifying
State agency has granted or denied
certification under § 124.55. or waived
its right to certify; and
(3J A statement that the State will be
deemed to have waived its right to
certify unless that right is exercised
within a specified reasonable time not
to exceed 60 days from the date the
draft permit is mailed to the certifying
State agency unless the Regional
Administrator finds that unusual
circumstances require a longer time.
(d) State certification shall be granted
or denied within the reasonable time
specified under paragraph (c)(3) of this
section. The State shall send a notice of
its action, including a copy of any
certification, to the applicant and the
Regional Administrator.
(e) State certification shall be in
writing ana! shall include:
(1) Conditions which are necessary to
assure compliance with the applicable
provisions of CWA sections 208(e). 301,
302. 303. 306, and 307 and with
appropriate requirements of State law.
(2) When the State certifies a draft
permit instead of a permit application.
any conditions more stringent than
those in the draft permit which the State
finds necessary to meet the
requirements listed in paragraph (e)(l)
of this section. For eaciunore stringent
condition, the certifying State agency
shall cite the CWA or State law
references upon which that condition is
based. Failure to provide such a citation
waives the right to certify with respect
to that condition: and
(3) A statement of the extent to which
each condition of the draft permit can be
made less stringent without violating the
requirements of State law, including
water quality standards. Failure to
provide this statement for any condition
waives the right to certify or object to
any less stringent condition which may
be established during the EPA permit
issuance process.
§ 124.54 Special provisions for State
certification and concurrence on
applications for section 30l(h) variances.
(a) When an, application for a permit
incorporating a variance request under
CWA section 301(h) is submitted to a
State, the appropriate State official shall
either
(1) Deny the request for the CWA
section 301(h) variance (and so notify
the applicant and EPA) and, if the State
is an approved NPDES State and the
permit is due for reissuance. process the
permit application under normal
procedures; or
(2) Forward a certification meeting the
requirements of § 124.53 to the Regional
Administrator.
. (b) When EPA issues a tentative
decision on the request for a variance
under CWA section 301(h). and no
certification has been received under
paragraph (a) of this section, the
Regional Administrator shall forward
the tentative decision to the State in
accordance with § 124.53(b) specifying a
reasonable time for State certification
and concurrence. If the State fails to
deny or grant certification and
concurrence under paragraph (a) of this
section within such reasonable time,
certification shall be waived and the
State shall be deemed to have concurred
in the issuance of a CWA section 301 (h)
variance.
(cj Any certification provided by a
State under paragraph (a)(2) of this
section shall constitute the State's
concurrence (as required by section
301 (h)) in the issuance of the permit
incorporating a section 301 (h) variance
subject to any conditions specified
therein by the State. CWA section 301 (h)
certification and concurrence under this
section will not be forwarded to the
State by EPA for recertification after the
permit issuance process; States must
specify any conditions required by State
law, including water quality standards.
in the initial certification.
$ 124.55 Effect of State certification.
(a) When certification is required
under CWA section 401(a)(l) no final
permit shall be issued:
(1) If certification is denied, or
(2) Unless the final permit
incorporates the requirements specified
in the certification under § 124.53(d)(l)
and (2).
(b) If there is a change in the State
law or regulation upon which a
certification is based, or if a court of
competent jurisdiction or appropriate
State board or agency stays, vacates, or
remands a certification, a State which
has issued a certification under § 124.5'
may issue a modified certification or
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notice of waiver and forward it to EPA.
If the modified certification is received
before final agency action on the permit.
the permit shall be consistent with the
more stringent conditions which are
based upon State law identified in such
certification. If the certification or notice
of waiver is received after final agency
action on the permit, the Regional
Administrator may modify the permit on
request of the permittee only to the
extent necessary to delete any
conditions based on a condition in a
certification invalidated by a court of
competent jurisdiction or by an
appropriate State board or agency.
(c) A State may not condition or deny
a certification on the grounds that State
law allows a less stringent permit' * ••
condition. The Regional Administrator
shall disregard any such certification
conditions, and shall consider those
conditions or denials as waivers of
certification.
(d) A condition in a draft permit may
be changed during agency review in any
manner consistent with a certification
meeting the requirements of § 124.53(d).
No such changes shall require EPA to
submit the permit to the State for
re certification.
(ej Review and appeals of limitations
and conditions attributable to State
certification shall be made through the
applicable procedures of the State and
may not be made through the
procedures in this Part
(f) Nothing in this section'shail affect
EPA's obligation to comply with
i 122.47. See CWA section 301(b)(l)(C).'
§ 124.56 Fact sheets.
(Applicable to State programs. se«
§ 123.25 f.\'PDES)l.
In addition to meeting the
requirements of § 124.8, NPDES fact
sheets shall contain the following:
(a) Any calculations or other
necessary explanation of the derivation
of specific effluent limitations and
conditions, including a citation to the
applicable effluent limitation guideline
or performance standard provisions as
required under § 122.4 and reasons why
they are applicable or an explanation of
how the alternate effluent limitations
were developed.
(b)(l) When the draft permit contains
any of the following conditions, an
explanation of the reasons why such
conditions are applicable:
(i) Limitations to control toxic
pollutants under § 122.44(e);
(ii) Limitations on internal Waste
streams under § 122.45(1): or .
(iii) Limitations on indicator
pollutants under §l25.3(g}.
(2) For every permit to be issued to a
treatment works owned by a person
other than a State or municipality, an
explanation of the Director's decision on
regulation of users under § 122.44(m).
(c) When appropriate, a sketch or
detailed descnotion of the location of
the discharge described in the
application: and
(d) For EPA-issued NPDES permits.
the requirements of any State
certification under § 124.53.
§ 124.57 Public notice.
(a) Section 316(a) requests (applicable
to State programs, see section 123.25). In
addition to the information required
under section 124.10{d)(l), public notice
to an NPDES draft permit for a
discharge where a CWA section 316(a)
request has been filed under section
122.21(1) shall include:
(1) A statement that the thermal
component of the discharge is subject to
effluent limitations under CWA sections
301 or 306 and a brief description,
including a quantitative statement, of
the thermal effluent limitations proposed
under section 301 or 306: and
(2) A statement that a section 316(a)
request has been filed and that
alternative less stringent effluent
limitations may be imposed.on the
thermal component of the discharge
under section 316(a) and a brief
description, including a quantitative
statement, of the alternative effluent
limitations, if any, included in the
request.
(3) If the applicant has filed an early
screening request under § 125.72 for a
section 316{a) variance, a statement that
the applicant has submitted s'uch a plan.
.(b) Evidentiary hearings under
Subpart E. In addition to the information
required under § 124.10(d)(2), public
notice of a hearing under Subpart E shall
include:
(1) Reference to any public hearing
under § 124.12 on the disputed permit;
.. .. (2JJsJameand.address cf.the pers_pn(pj.
requesting the evidentiary hearing:
(3) A statement of the following
procedures:
(i) Any person seeking to be a party
must file a request to be admitted as a
party to the hearing within 15 days of
the date of publication of the notice;
(ii) Any person seeking to be a party
may, subject to'the requirements of
§ 124.76, propose material issues of fact
or law not already raised by the original
requester or another party;
(iii) The conditions of the permit(s) at
issue may be amended after the
evidentiary hearing and any person
interested in those permit(s) must
request to be a party in order to
preserve any right to appeal or
otherwise contest the final
administative decision.
(c) Non-adversary panel procedures
under Subpart F. (I) In addition to the
information required under
§ 124.10(d)(2). mailed public notice of a
draft permit to be processed under
Subpart F shall include a statement that
any heanng shall be held under Subpart
F (panel hearing).
(2) Mailed public notice of a panel
hearing under Subpart F shall include:
(i) Name and address of the person
requesting the hearing, or a statement
that the hearing is being held by order of
the Regional Administrator, and the
name and address of each known party
to the hearing:
(ii) A statement whether the
recommended decision will be issued by
the Presiding Officer or by the Regional
Administrator
(iii) The due date for filing a written
request to participate in the hearing -~
under § 124.117: and
(iv) The due date for filing comments
under § 124.118.
§ 124.5S Special procedures tor EPA-
issued general permits for point sources
other than separate storm sewers.
(a) The Regional Administrator shall
send a copy of the draft general permit
and the administrative record to the
Deputy Assistant Administrator for
Water Enforcement during the public
comment period.
(b) The Deputy Assistant
Administrator for Water Enforcement
shall have 30 days from receipt of the
draft general permit, or shall have until
the end of the public comment period.
whichever is later, to comment upon.
object to, or make recommendations
with respect to the draft general permit.
(c) If the Deputy Assistant
Administrator for Water Enforcement
objects to a draft general permit within
the period specified in paragraph (b) of
this section, the Regional Administrator
~jhaU.nct issue. tbe.Bnal general-permit
until the Deputy Assistant
Administrator for Water Enforcement
concurs in writing with the conditions of
the general permit.
§ 124.59 Conditions requested by the
Corps of Engineers and other government
agencies.
(Applicable to State programs, see
§ 12335 f NPDES}).
(a) If during the comment period for
an NPDES draft permit, the District
Engineer advises the Director in writing
that anchorage and navigation of any of
the waters of the United States would
be substantially impaired by the
granting of a permit, the permit shall be
denied and the applicant so notified. If
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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations
the District Engineer advised the
.Director that imposing specified
conditions upon the permit is necessary
to avoid any substantial impairment of
anchorage or navigation, then the
Director shall include the specified
conditions in the permit. Review or
appeal of denial of a permit or of
conditions specified by the District
Engineer shall be made through the
applicable procedures of the Corps of
Engineers, and may not be made through
the procedures provided in this Part If
the conditions are stayed by a court of
competent jurisdiction or by applicable
procedures of the Corps of Engineers,
those conditions shall be considered
stayed in the NPDES permit for the
duration of that stay.
(b) If during the comment period th'e"'"
U.S. Fish and Wildlife Service, the
National Marine Fisheries Service, or
any other State or Federal agency with
jurisdiction over fish, wildlife, or public
health advises the Director in writing
that the imposition of specified
conditions upon the permit is necessary
to avoid substantial impairment of fish,
shellfish, or wildlife resources, the
Director may include the specified
conditions in the permit to the extent
they are determined necessary to carry
out the provisions of § 122.47 and of the
CWA.
(c) In appropriate cases the Director
may consult with one or more of the
agencies referred to in this section
before issuing a draft permit and may
reflect their views in the statement of
basis, the fact sheet, or the draft permit
§ 124.60 Issuance and effective date and
stays of NPDES permits.
In addition to the requirements of
§124.15, the following provisions apply
to NPDES permits and to RCRA or U1C
permits to the extent those permits may
have been consolidated with an NPDES
permit in a formal hearing:
(a)(l) If a request for a formal hearing
is granted under § 124.75 or § 124.114
regarding the initial pennit-issueoVfor a
new source, a new discharger, or a
recommencing discharger, or if a
petition for review of the denial of a
request for a formal hearing with respect
to such a permit is timely filed with the
Administrator under | 124.91, the
applicant shall be without a permit
pending final Agency action under
§ 124.91.
(2) Wherever a source subject to this
paragraph has received a final permit
under § 124.15 which is the subject of a
hearing request under § 124.74 or a
formal hearing under 9124.75, the
Presiding Officer, on motion by the
source, may issue an order authorizing it
to begin operation before final agency
action if it complies with all conditions
of that final permit during the period
until final agency action. The Presiding
Officer may grant such a motion in any
case where no party opposes it or, if a
party opposes the motion, where the
source demonstrates that (i) it is likely
to prevail on the merits; (ii) irreparable
harm to the environment will not result
pending final agency action if it is
allowed to commence operations before
final agency action; and (iii) the public
interest requires that the source be
allowed to commence operations. All
the conditions of any permit covered by
that order shall be fully effective and
enforceable.
(b) The Regional Administrator, at
any time prior to the rendering of an
initial decision in a formal hearing on a
permit, may withdraw the permit and
prepare a new draft permit under § 124.6
addressing the portions so withdrawn.
The new draft permit shall proceed
through the same process of public
comment and opportunity for a public
hearing as would apply to any other
draft permit subject to this Part Any
portions of the permit which are not
withdrawn and which are not stayed
under this section shall remain in effect.
(c){l) If a request for a formal hearing
is granted in whole or in part under
§ 124.75 regarding a permit for an
existing source, or if a petition for
review of the denial of a request for a
formal hearing with respect to that
permit is timely filed with the
Administrator under § 124.91, the force
and effect of the contested conditions of
the final permit shall be stayed. The
Regional Administrator shall notify, in
accordance with § 124.75, the discharger
and all parties of the uncontested
conditions of the final permit that are
enforceable obligations of the
discharger.
(2) When effluent limitations are
contested, but the underlying control
technology is not the notice shall
identify the installation of the
technology In accordance with'the
permit compliance schedules (if
uncontested) as an uncontested,
enforceable obligation of the permit.
(3) When a combination of
technologies is contested, but a portion
of the combination is not contested, that
portion shall be identified as
uncontested if compatible with the
combination of technologies proposed
by the requester.
(4) Uncontested conditions, if
inseverable from a contested condition,
shall be considered contested.
(5} Uncontested conditions' shall
become enforceable 30 days after the
date of notice under paragraph (c)(l) of
this section granting the request. If,
however, a request for a formal hearing
on a condition was denied and the
denial is appealed under § 124.91, then
that condition shall become enforceable
upon the date of the notice of the
Administrator's decision on the appeal if
the denial is affirmed, or shall be stayed,
in accordance with this section, if the
Administrator reverses the denial and
grants the evidentiary hearing.
(6) Uncontested conditions shall
include:
(i) Preliminary design and engineering
studies or other requirements necessary
to achieve the final permit conditions
which do not entail substantial
expenditures;
(ii) Permit conditions which will have
to be met regardless of which party
prevails at the evidentiary hearing;
(iii) When the discharger proposed a
less stringent level of treatment than
that contained in the final permit any
permit conditions appropriate to meet
the levels proposed by the discharger, if
the measures required to attain that less
stringent level of treatment are
consistent with the measures required to
attain the limits proposed by any other
party; and
(iv) Construction activities, such as
segregation of waste streams or
installation of equipment, which would
partially meet the final permit
conditions and could also be used to
achieve the discharger's proposed
alternative conditions.
(d) If at any time after a hearing is
granted and after the Regional
A'dministrator's notice under paragraph
(c)(l) of this section it becomes clear
that a permit requirement is no longer
contested, any party may request the
Presiding Officer to issue an order
identifying the requirements as
uncontested. The requirement identified
in such order shall become enforceable
30 days after the issuance of the order.
(e) When a formal hearing is granted
under 5 124.75 on an application for a
renewal of an existing permit, all
provisions of the existing permit as well
as uncontested provisions of the new
permit, shall continue fully enforceable
and effective until final agency action
under § 124.91. (See § 122.6) Upon
written request from the applicant the
Regional Administrator may delete
requirements from the existing permit
which unnecessarily duplicate
uncontested provisions of the new
permit.
(f) When issuing a finally effective
NPDES permit the conditions of which
were the subject of a formal hearing
under Subparts E or F, the Regional
Administrator shall extend the permit
compliance schedule to the extent
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14277
required by a stay under this section
provided that no such extension shall be
granted which would:
(1) Result in the violation of an
applicable statutory deadline; or
(2) Cause the permit to expire more
than 5 years after issuance under
§ 124.15(a).
Note.—Extensions of compliance schec-ules
under § 124.60(0(2) will not automatically be
granted for a period equal to the period the
stay is in effect for an effluent limitation. For
example, if both the Agency and the
discharger agree that a certain treatment
technology is required by the C\VA where
guidelines do not apply, but a hearing is
granted to consider the effluent limitations
which the technology will achieve.
requirements regarding installation of the
underlying technology will not be stayed.
during the hearing. Thus, unless the hearing
extends beyond the final compliance date in
the prrait, it will not ordinarily be necessary
to extend the compliance schedule. However.
when application of an underlying technology
is challenged, the stay for installation
requirements relating to that technology
would extend for the duration of the hearing.
(g) For purposes of judicial review
under CWA section 509(b), final agency
action on a permit does not occur unless
and until a party has exhausted its
administrative remedies under Subparts
E and F and § 124.91. Any party which
neglects or fails to seek review under
§ 124.91 thereby waives its opportunity
' to exhaust available agency remedies.
§ 124.61 Final environmental Impact
statement-
No Final NPDES permit for a new
source shall be issued until at least 30
days after the date of issuance of a final
environmental impact statement if one
is required under 4G CFR § 6.805.
§ 124.62 Decision on variances.
[Applicable to State programs, see
§ 123.25 (NPDES)).
(a) The Director may grant or deny
requests for the following variances
(subject to EPA objection under § 123.44
. for State permits):
(1) Extensions under CWA section
301(i) based on delay in completion of a
publicly owned treatment works;
(2) After consultation with the
Regional Administrator, extensions
under CWA section 301 (k) based on the
use of innovative technology; or
(3) Variances under CWA section
316(a) for thermal pollution.
[b) Tne State Director may deny, or
forward to the Regional Administrator
with a written concurrence, or submit to
EPA without recommendation a
completed request for .
(1) A variance based on'the presence
of "fundamentally different .factors"
from those on which an effluent
limitations guideline was based:
[2] A variance based on the economic
capability of the applicant under CWA
section 301(c);
(3) A variance based upon certain
water quality factors under CWA
section 301 (g); or
(4) A variance based on water quality
related effluent limitations under CWA
section 302(b)(2).
(c) The Regional Administrator may
deny, forward, or submit to the EPA
Deputy Assistant Administrator for
Water Enforcement with a
recommendation for approval, a request
for a variance listsd in paragraph (b) of
this section that is forwarded by the
State Director, or that is submitted to
the Regional Administrator by the
requester where EPA is the permitting.
authority.
(d) The EPA Deputy Assistant
Administrator for Water Enforcement
may approve or deny any variance
request submitted under paragraph (c)
of this section. If the Deputy Assistant
Administrator approves the variance,
the Director may prepare a draft permit
incorporating the variance. Any public
notice of a draft permit for which a
variance or modification has been
approved or denied shall identify the
applicable procedures for appealing that
decision under §124.54,
§ 124.63 Procedures for variances when
EPA is the permitting authority.
(a) In Sfttes where EPA is the permit
issuing authority and a request for a
variance is filed as required by § 122.21.
the request shall be processed as
follows:
(1) If at the time that a request for a
variance is submitted the Regional
Administrator has received an
application under § 124.3 for issuance or
renewal of that permit but has not yet
prepared a draft permit under § 124.6
covering the discharge in question, the
•Regional Administrator, after obtaining
any necessary concurrence of the EPA
Deputy. Assistant Administrator for
"Water Enforcement under 1124.B2Tshair
give notice of a tentative decision on the
request at the time the notice of the draft
permit is prepared as specified in
§ 124.10, unless this would significantly
delay the processing of the permit In
that case the processing of the variance
request may be separated from the
permit in accordance with paragraph
(a)(3) of this section, and the processing
of the permit shall proceed without
delay.
(2) If at the time that a request for a
veriance is filed the Regional
Administrator has given notice under
§ 124.10 of a draft permit covering the
discharge in question, but that permit
has not yet become final, administrative
proceedings concerning that permit may
be stayed and the Regional
Administrator shall prepare a new draft
permit including a tentative decision on
the request, and the fact sheet required
by § 124.8. However, if this will
significantly delay the processing of the
existing draft permit or the Regional
Administrator, for other reasons,
considers combining the variance
request and the existing draft permit
inadvisable, the request may be
separated from the permit in accordance
with paragraph (a)(3) of this section, and
the administrative dispositon of the
existing draft permit shall proceed
without delay.
(3) If the permit has become final and
no application under § 124.3 concerning
it is pending or if the variance request
has been separated from a draft permit
as described in paragraphs (a) (1) and
(2) of this section, the Regional
Administrator may prepare a new draft
permit and give notice of it under
§ 124.10. This draft permit shall be
accompanied by the fact sheet required
by § 124.8 except that the only matters
considered shall relate to the requested
variance.
§ 124.64 Appeals of variances.
(a) When a State issues a permit on
which EPA has made a variance
decision, separate appeals of the State
permit and of the EPA variance decision
are possible. If the owner or operator is
challenging the same issues in both
proceedings, the Regional Administrator
will decide, in consultation with State
officials, which case will be heard first.
(b) Variance decisions made by EPA
may be appealed under either Subparts
E or F, provided the requirements of the
applicable Subpart are met. However,
whenever the basic permit decision is
eligible only for an evidentiary hearing
under Subpart E while the variance
decision is eligible only for a panel
hearing under Subpart F. the issues
'•••rilatittg'to'bothHhe basic permit
decision and the variance decision shall
be considered in the Subpart E
proceeding. No Subpart F hearing may
be held if a Subpart E hearing would be
held in addition. See § 124.111(b).
(c) Stays for section SOl(g) variances.
If a request for an evidentiary hearing is
granted on a variance requested under
CWA section 301(g). or if a petition for
review of the denial of a request for the
hearing is filed under § 124.91. any
otherwise applicable standards and
limitations under CWA section 301 shall
not be stayed unless:
(1) In the judgment of the Regional
Administrator, the stay or the variance
sought will not result in the discharge of
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14278 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
pollutants in quantities which may
.reasonably be anticipated to pose an
unacceptable risk to human health or
the environment because of
bioaccumulation, persistency in the
environment, acute toxicity, chronic
toxicity, or synergistic propensities; and
(2) In the judgment of the Regional
Administrator, there is a. substantial
likelihood that the discharger will
succeed on the merits of its appeal; and
(3) The discharger files a bond or
other appropriate security which is
required by the Regional Administrator
to assure timely compliance with the
requirements from which a variance is
sought in the event that the appeal is
unsuccessful.
(d) Stays for variances other than
section 301(g) are governed by § 124.60.
§ 124.65 Special procedures for discharge
into marine waters section 301(h).
(a) Where it is clear or. the face of a
section 301(h) request that the
discharger is not entitled to a variance,
the request shall be denied.
(b) In the case of all other section
301(h) requests the Administrator, or a
person designated by the Administrator,
may either
(1) Give written authorization to a
requester to submit information required
by part 125, Subpart G or the final
request by a date certain, not to exceed
9 months, if:
(i) The requester proposes to submit
new or additional information and the
request demonstrates that:
(A) The requester made consistent
and diligent efforts to obtain such
information prior to submitting the final
request;
(B) The failure to obtain such
information was due to circumstances
beyond the control of the requester, and
(C) Such information can be submitted
promptly; or
(ii) The requester proposes to submit
minor corrective information and such
information can be submitted promptly;
or
'" (2) Make a written request of-a
requester to submit additional
information by a certain date, not to
exceed 9 months, if such information is
necessary to issue a tentative decision
under § 124.62(a)(l).
All additional information submitted
under this paragraph which is timely
received, shall be considered part of the
original request. •
(c) The otherwise applicable sections
of this Part apply to draft permits
incorporating section 301(h) variance,
except that because SOlJh) permits may
only be issued by EPA, the terms
"Administrator or a person designated
by the Regional Administrator" shall be
substituted for the term "Director" as
appropriate.
(d) No permit subject to a 301(h)
variance shall be issued unless the
appropriate State officials have
concurred or waived concurrence
pursuant to § 124.54. In the case of a
permit issued to a requester in an
approved State, the State Director may:
(1) Revoke any existing permit as of
the effective date of the EPA-issued
permit subject to a 301(h) variance; and
(2) Co-sign the permit subject to the
301{h) variance, if the Director has
indicated an intent to do so in the
written concurrence.
§ 124.66 Special procedures for decisions
on thermal variances under section 316(a).
(a) Except as provided in-|124'.63l the •'
only issues connected with issuance of a
particular permit on which EPA will
make a final Agency decision before the
final permit is issued under § § 124.15
and 124.60 are whether alternative
effluent limitations would be justified
under CWA section 316(a) and whether
cooling water intake structures will use
the best available technology under
section 316(b). Permit applicants who
wish an early decision on these issues
should request it and furnish supporting
reasons at the time their permit
applications are filed under § 122.21.
The Regional Administrator will then
decide whether or not to make*an early
decision. If it is granted, both the early
decision on CWA section 316 (a) or (b)
issues and the grant of the balance of
the permit shall be considered permit
issuance under these regulations, and
shall be subject to the same
requirements of public notice and
comment and the same opportunity for
an evidentiary or panel hearing under
Subparts E or F.
(b) If the Regional Administrator, on
review of the administrative record.
determines that the information
necessary to decide whether or not the
CWA section 316(a) issue is not likely to
"be avallaEle'ihlurie' for a 'decision on
permit issuance, the Regional
Administrator may issue a.permit under
§ 124.15 for a term up to 5 years. This
permit shall require achievement of the
effluent limitations initially proposed for
the thermal component of the discharge
no later than the date otherwise
required by law. However, the permit
shall also afford the permittee an
opportunity to file a demonstration
under CWA section 316(a) after
conducting such studies as are required
under 40 CFR Part 125, Subpart H. A
new discharger may not exceed the
thermal effluent limitation which is
initially proposed unless and until its
CWA section 316(a) variance request is
finally approved.
(c) Any proceeding held under
paragraph (a) otthis section shall be
publicly noticed as required by § 124.10
and shall be conducted at a time
allowing the permittee to take necessary
measures to meet the final compliance
date in the event its request for
modification of thermal limits is denied.
{d] Whenever the Regional
Administrator defers the decision under
CWA section 316(a), any decision under
section 316(b) may be deferred.
Subpart E—Evidentiary Hearings for
EPA-lssued NPDES Permits and EPA-
Terminated RCRA Permits
§ 124.71 ' Applicability.
(a) The regulations in this Subpart
govern all formal hearings conducted by
EPA under CWA section 402, except for
those conducted under Subpart F. TKey
also govern all evidentiary hearings
conducted under RCRA section 3008 in
connection with the termination of a
RCRA permit. This includes termination
of interim status for failure to furnish
information needed to make a final
decision. A formal hearing is available
to challenge any NPDES permit issued
under §124.15 except for a general
permit. Persons affected by a general
permit may not challenge the conditions
of a general permit as of right in further
agency proceedings. They may-instead
either challenge the general permit in
court, or apply for an individual NPDES
permit under § 122.21 as authorized in
§ 122.28 and then request a formal
hearing on the issuance or denial of an
individual permit. (The Regional
Administrator also has the discretion to
use the procedures of Subpart F for
general permits'. See § 124.111).
(b) In certain cases, evidentiary
hearings under this Subpart may also be
held on the conditions of UIC permits, or
of RCRA permits which are being
' issued, modified, or revoked and
reissued, rather than terminated or
suspended. This will occur when the
conditions of the UIC or RCRA permit in
question are closely linked with the
conditions of an NFDES permit as to
which an evidentiary hearing has been
granted. See § 124.74(b)(2). Any
interested person may challenge the
Regional Administrator's initial new
source determination by requesting an
evidentiary hearing under this Part See
§ 122.29.
(c] PSD permits may never be subject
to an evidentiary hearing under this
Subpart Section 124.74(b)(2)(iv)
provides only for consolidation of PSD
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permits with other permits subject to a
panel hearing under Subpart F.
§ 124.72 DeHnitions.
For the purpose of this Subpart, the
following definitions are applicable:
"Hearing Clerk" means The Hearing
Clerk. U.S. Environmental Protection
Agency, 401 M Street. SW., Washington.
D.C. 20480.
"Judicial Officer" means a permanent
or temporary employee of the Agency
appointed as a Judicial Officer by the
Administrator under these regulations
and subject to the following conditions:
(a) A judicial Officer shall be a
licensed attorney. A Judicial Officer
shall not be employed in the Office of
Enforcement or the Office of Water and
Waste Management, and shall not
participate in the consideration or
decision of any case in which he or she
performed investigative or prosecutorial
functions, or which is factually related
to such a case.
(b) The Administrator may delegate
any authority to act in an appeal of a
given case under this Subpart to a
Judicial Officer who, in addition, may
perform other duties for EPA, provided
that the delegation shall not preclude a
Judicial Officer from referring any
motion or case to the Administrator
when the Judicial Officer decides such
action would be appropriate. The
Administrator, in deciding a case, may
consult with and assign the drafting of
preliminary findings of fact and
conclusions and/or a preliminary
decision to any Judicial Officer.
"Party" means the EPA trial staff
under § 124.78 and any person whose
request for a hearing under § 124.74 or
whose request to be admitted as a party
or to intervene under § 124.79 or
§ 124.117 has been granted.
"Presiding Officer" for the purposes of
this Subpart means an Administrative
Law Judge appointed under 5 U.S.C.
3105 and designated to preside at the
hearing. Under Subpart F other persons
- -may also serve as hearing officers..See
§ 124.119.
"Regional Hearing Clerk" means an
employee of the Agency designated by a
Regional Administrator to establish a
repository for all books, records,
documents, and other materials relating
to hearings under this Subpart
§ 124.73 Filing and submission of
documents.
(a) All submissions authorized or
required to be filed with the Agency
under this Subpart shall be filed with
the Regional Hearing Clerk, unless
otherwise provided by regulation.
Submissions shall be considered filed on
the date on which they are mailed or
delivered in person to the Regional
Hearing Clerk.
(b) Ail submissions shall be signed by
the person making the submission, or by
an attorney or other authorized agent or
representative.
(c)(l) All data and information
referred to or in any way relied upon in
any submission shall be included in full
and may not be incorporated by
reference, unless previously submitted
as part of the administrative record in
the same proceeding. This requirement
does not apply to State or Federal
statutes and regulations, judicial
decisions published in a national
reporter system, officially issued EPA
documents of general applicability, and
any other generally available reference
materiaLwhich may- be«incocporated by •
reference. Any party incorporating
materials by reference shall provide
copies upon request by the Regional
Administrator or the Presiding Officer.
(2) If any part of the material
submitted is in a foreign language, it
shall be accompanied by an English
translation verified under oath to be
complete and accurate, together with the
name, address, and a brief statement of
the qualifications of the person making
the translation. Translations of literature
or other material in a foreign language
shall be accompanied by copies of the
original publication.
(3) Where relevant data or
information is contained in a document
also containing irrelevant matter, either
the irrelevant matter shall be deleted or
the relevant portions shall be indicated.
(4) Failure to comply with the
requirements of this section or any other
requirement in this Subpart may result
in the noncomplying portions'of the
submission being excluded from
consideration. If the Regional
Administrator or the Presiding Officer,
on motion by any party or sua sponte,
determines that a submission fails to
meet any requirement of this Subpart.
the Regional Administrator or Presiding
nffir-PT shall diiecUhe-BegionaLHeariag
Clerk to return the submission, together
with a reference to the applicable
regulations. A party whose materials
have been rejected has 14 days to'
correct the errors and resubmit unless
the Regional Administrator or the
Presiding Officer finds good cause to
allow a longer time.
(d) The filing of a submission shall not
mean or imply that it in fact meets all
applicable requirements or that it
contains reasonable grounds for the
action requested or that the action
requested is in accordance with law.
(e) The original of all statements and
documents containing factual material.
data, or other information shall be
signed in ink and shall state the name.
address, and the representative capacity
of the person making the submission.
§ 124.74 Requests tor evidentiary hearing.
(a) Within 30 days following the
service of notice of the Regional
Administrator's final permit decision
under § 124.15, any interested person
may submit a request to the Regional
Administrator under paragraph (b) of
this section for an evidentiary hearing to
reconsider or contest that decision. If
such a request is submitted by a person
other than the permittee, the person
shall simultaneously serve a copy of the
request on the permittee.
(b)(l) In accordance with § 124.76,
such requests shall state each legal or
factual question alleged 10 be at issue.
and their relevance to the permit
decision, together with a designation of
the specific factual areas to be
adjudicated and the hearing time-*
estimated to be necessary for
adjudication. Information supporting the
request or other written documents
relied upon to support the request shall
be submitted as required by § 124.73
unless they are already part of the
administrative record required by
§ 124.18.
Note.—This paragraph allows the
submission of requests for evidentiary
hearings even though both legal and factual
issues may be raised, or only legal issues
may be raised. In the latter case, because no
factual issues were raised, the Regional
Administrator would be required to deny the
request. However, on review of the denial the
Administrator is authorized by § 124.91{a)(l)
to review policy or legal conclusions of the
Regional Administrator. EPA is requiring an
appeal to the Administrator even of purely
legal issues involved in a permit decision to
ensure that the Administrator will have an
opportunity to review any permit before it
will be final and subject to judicial review.
(2) Persons requesting an evidentiary
hearing on an NPOES permit under this
section may also request an evidentiary
- •hearing on-arRCRA' dfUIC permit. PSD
permits may never be made part of an
evidentiary hearing under Subp-irt E.
This request is subject to all the
requirements of paragraph (b)(l) of this
section and in addition will be granted
only if:
(i) Processing of the RCRA. or UIC
permit at issue was consolidated with
the processing of the NPDES permit as
provided hi § 124.4;
(ii) The standards for granting a
hearing on the NPDES permit are met;
(Hi) The resolution of the NPDES
permit issues is likely to make necessary
or appropriate modification of the RCRA
or UIC permit: and
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14280 Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations
(iv) If a PSD permit is involved, a
permittee who is eligible for an
evidentiary hearing under Subpart E on
his or her NPDES permit requests that
the formal hearing be conducted under
the procedures of Subpart F and the
Regional Administrator finds that
consolidation is unlikly to delay final
permit issuance beyond the PSD one-
year statutory deadline.
(c) These requests shall also contain:
(1) The name, mailing address, and
telephone number of the person making
such request:
(2) A clear and concise factual
statement of the nature and scope of the
interest of the requester:
(3} The names and addresses of all
persons whom the requester represents:
and
(4) A statement by the requester that.
upon motion of any party granted by the
Presiding Officer, or upon order of the
Presiding Officer sua sponte without
cost or expense to any other party, the
requester shall make available to appear
and testify, the following:
(i) The requester
(ii) All persons represented by the
requester and
(iii) All officers, directors, employees.
consultants, and agents of the requester
and the persons represented by the
requester.
(5) Specific references to the
contested permit conditions, as well as
suggested revised or alternative permit
conditions (including permit denials)
which, in the judgment of the requester,
would be required to implement the •
purposes and policies of the CWA.
(6] In the case of challenges to the
application of control or treatment
technologies identified in the statement
of basis or fact sheet, identification of
the basis for the objection, and the
alternative technologies or combination
-of technologies which the requester
believes are necessary to meet the
requirements of the CWA.
(7) Identification of the permit
. obligations that are contested or are
inseverable from contested conditions
and should be stayed if the request is
granted by reference to the particular
contested conditions warranting the
stay.
[8] Hearing requests also may ask that
a formal hearing be held under the
procedures set forth in Subpart F. An
applicant may make such a request even
if the proceeding does not constitute
"initial licensing" as defined in
§ 124.111.
(d) If the Regional Administrator
grants an evidentiary bearing request, in
whole or in part, the Regional
Administrator shall identify the permit
conditions which have been contested
by the requester and for which the
evidentiary hearing has been granted.
Permit conditions which are not
contested or for which the Regional
Administrator has denied the hearing
request shall not be affected by, or
considered at. the evidentiary hearing.
The Regional Administrator shall
specify these conditions in writing in
accordance with § 124.60[c).
(e) The Regional Administrator must
grant or deny all requests for an
evidentiary hearing on a particular
permit. All requests that are granted for
a particular permit shall be combined in
a single evidentiary hearing.
(f) The Regional Administrator (upon
notice to all persons who have already
submitted hearing requests) may extend
the .time allowed.for.submitting .hearing *-
requests under this section for good
cause.
§ 124.75 Decision on request for a
hearing.
(a)(l) Within 30 days following the
expiration of the time allowed by
§ 124.74 for submitting an evidentiary
hearing request, the Regional
Administrator shall decide the extent to
which, if at all, the request shall be
granted, provided that the request
conforms to the requirements of
§ 124.74, and sets forth material issues
of fact relevant to the issuance of the
permit.
(2) When an NPDES permit for which
a hearing request has been granted
constitutes "initial licensing" under
§ 124.111. the Regional Administrator
may elect to hold a formal hearing under.
the procedures of Subpart F rather than
under the procedures of this Subpart
even if no person has requested that
Subpart F be applied. If the Regional
Administrator makes such a decision,- he
or she shall issue a notice of hearing
under § 124.116. All subsequent
proceedings shall then be governed by
§§ 124.117 through 124.121. except that
any reference to a draft permit shall
mean the final, permit
(3) Whenever the Regional
Administrator grants a request made
under § 124.74(c)(8] for a formal hearing
under Subpart F on an NPDES permit
that does not constitute an intitial
license under § 124.111, the Regional
Administrator shall issue a notice of
hearing under § 124.116 including a
statement that the permit will be
processed under the procedures of
Subpart F unless a written objection is
received within 30 days. If no valid
objection is received, the application
shall be processed in accordance with
§§ 124.117 through 124.121, except that
any reference to a draft permit shall
mean the final permit. If a valid
objection is received, this Subpart shall
be applied instead.
(b) If a request for a hearing is denied
in whole or in part, the Regional
Administrator shall briefly state the
reasons. That denial is subject to review
by the Administrator under § 124.91.
§ 124.76 Obligation to submit evidence
and raise issues before a final permit is
issued.
No evidence shall be submitted by
any party to a hearing under this
Subpart that was not submitted to the
administrative record required by
§ 124.18 as part of the preparation of and
comment on a draft permit, unless good
cause is shown for the failure to submit
it. No issues shall be raised by any party
that were not submitted to the
administrative record required by
§ 124.18 as part of the preparation of and
comment on a draft permit unless good
cause is shown for the failure to submit
them. Good cause includes the case
where the party seeking to raise the new
issues or introduce new information
shows that it could not reasonably have
ascertained the issues or made the
information available within the time
required by § 124.15; or that it could not
have reasonably anticipated the
relevance or materiality of the
information sought to be introduced.
Good cause exists for the introduction of
data available on operation authorized
under § 124.60(a)(2).
§ 124.77 Notice of hearing.
Public notice of the grant of an
evidentiary hearing regarding a permit
shall be given as provided in §124.57(b)
and by mailing a copy to all persons
who commented on the draft permit, -
testified at the public hearing, or
submitted a request for a hearing. Before
the issuance of the notice, the Regional
Administrator shall designate the
Agency trial staff and the members of
the decisional body (as defined in
§124,78). . , . .
§ 124.78 Ex parte communications.
(a) For purposes of this section, the
following definitions shall apply:
(1) "Agency trial staff' means those
Agency employees, whether temporary
or permanent, who have been
designated by the Agency under § 124.77
or § 124.116 as available to investigate.
litigate, and present the evidence.
arguments, and position of the Agency
in the evidentiary hearing or
nonadversary panel hearing.
Appearance as a witness does not
necessarily require a person to be .
designated as a member of the Agency
trial staff:
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Federal Register / Vol. 48, No. 64 / Friday. April 1. 1983 / Rules and Regulations 14281
. (2) "Decisional body" means any
Agency employee who is or may
reasonably be expected to be involved
in the decisional process of the
proceeding including the Administrator,
Judicial Officer, Presiding Officer, the
Regional Administrator (if he or she
does not designate himself or herself as
a member of the Agency trial staff), and
any of their staff participating in the
decisional process. In the case of a
nonadversary panel hearing, the
decisional body shall also include the
panel members, whether or not
permanently employed by the Agency:
(3) "Ex parie communication" means
any communication, written or oral,
relating to the merits of the proceeding
between the-decisional body and an
interested person outside the Agency or
the Agency trial staff which was not
originally filed or stated in the
administrative record or in the hearing.
Ex parte communications do not
include:
(i) Communications between Agency
employees other than between the
Agency trial staff and the members of
the decisional body;
(ii) Discussions between the
decisional body and either
(A) Interested persons outside the
Agency, or
(B) The Agency trial staff, //all parties
have received prior written notice of the
proposed communications and have
been given the opportunity to be present
and participate therein.
(4) "Interested person outside the
Agency" includes the permit applicant,
any person who filed written comments
in the proceeding, any person who
requested the hearing, any person who
requested to participate or intervene in
the hearing, any participant in the
hearing and any other interested person
not employed by the Agency at the time
of the communications, and any
attorney of record for those persons.
(b)(l) No interested person outside the
,. Agency or member of the Agency trial
staff shall make or knowingly cause to
be made to any members of the
decisional body, an ex parte
communication on the merits of the
proceedings.
(2) No member of the decisional body
shall make or knowingly cause to be
made to any interested person outside
the Agency or member of the Agency
trial staff, an ex parte communication on
the merits of the proceedings.
(3) A member of the decisional body
who receives or who makes or who
knowingly causes to be. made a
communication prohibited by this
subsection shall file with the Regional
Hearing Clerk all written
communications or memoranda stating
the substance of all oral •
communications together with all
written responses and memoranda
stating the substance of all oral
responses.
(c) Whenever any member of the
decisionmaking body receives an ex
parte communication knowingly made
or knowingly caused to be made by a
party or representative of a party in
violation of this section, the person
presiding at the stage of the hearing then
in progress may. to the extent consistent
with justice and the policy of the CWA,
require the party to show cause why its
claim or interest in the proceedings
should not be dismissed, denied,
disregarded, or otherwise adversely .
affected on. account of .such violation..
(d) The prohibitions of this section
begin to apply upon issuance of the
notice of the grant of a hearing under
§ 124.77 or § 124.116. This prohibition
terminates at the date of final agency
action.
§ 124.79 Additional parties and issues.
(a) Any person may submit a request
to be admitted as a party within 15 days
after the date of mailing, publication, or
posting of notice of the grant of an
evidentiary hearing, whichever occurs
last. The Presiding Officer .shall.grant
requests that meet the requirements of
§§124.74 and 124.76.
(b) After the expiration of the time
prescribed in paragraph (a) of this
section any person may file a motion for
leave to intervene as a party. This
motion must meet the requirements of
§§124.74 and 124.76 and set forth the
grounds for the proposed intervention.
No factual or legal issues, besides those
raised by timely hearing requests, may
be proposed except for good cause. A
motion for leave to intervene must also
contain a verified statement showing
good cause for the failure to file a timely
request to be admitted as a party. The
Presiding Officer shall grant the motion
.-only .upon arLexptess.finding-on the ,.,.,
record that:
(1) Extraordinary circumstances
justify granting the motion:
(2) The intervener has consented to be
bound by:
(i) Prior written agreements and
stipulations by and. between the existing
parties; and
(ii) All orders previously entered in
the proceedings; and
(3) Intervention will not cause undue
delay or prejudice the rights of the
existing parties.
§124.80 Filing and service.
(a) An original and one (1) copy of all
written submissions relating to an
evidentiary hearing filed after the notice
is published shall be filed with the
Regional Hearing Clerk.
(b) The party filing any submission
shall also serve a copy of each
submission upon the Presiding Officer
and each party of record. Service shall
be by mail or personal delivery.
(c) Every submission shall be
accompanied by an acknowledgment of
service by the person served or a
certificate of service citing the date,
place, time, and manner of service and
the names of the persons served.
(d) The Regional Hearing Clerk shall
maintain and furnish a list containing
the name, service address, and
telephone number of all parties and their
attorneys or duly authorized
representatives -to any person upon
request.
§ 124.81 Assignment of Administrative
Law Judge.
No later than the date of mailing. -"
publication, or posting of the notice of a
grant of an evidentiary hearing,
whichever occurs last, the Regional
Administrator shall refer the proceeding
to the Chief Administrative Law Judge
who shall assign an Administrative Law
Judge to serve as Presiding Officer for
the hearing. .
§ 124.82 Consolidation and severance.
(a) The Administrator, Regional
Administrator, or Presiding Officer has
the discretion to consolidate, in whole
or in part, two or more proceedings to be
held under this Subpart, whenever it
appears that a joint hearing on any or all
of the matters in issue would expedite or
simplify consideration of the issues and
that no party would be prejudiced
thereby. Consolidation shall not affect
the right of any party to raise issues that
might have been raised had there been
no consolidation.
(b) If the Presiding Officer determines
consolidation is not conducive to an
expeditious, full, and fair hearing, any
^»v*party or issues may be severed and
heard in a separate proceeding.
§ 124.83 Prehearing conferences.
(a) The Presiding Officer, sua sponte.
or at the request of any party, may
direct the parties or their attorneys or
duly authorized representatives to
appear at a specified time and place for
one or more conferences before or
during a hearing, or to submit written
proposals or correspond for the purpose
of considering any of the matters set
forth in paragraph (c) of this section.
(b) The Presiding Officer shall allow a
reasonable period before the hearing
begins for the orderly completion of all
preheating procedures and for the
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14282 Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations
submission and disposition of all
preheating motions. Where the
circumstances warrant, the Presiding
Officer may call a preheating conference
to inquire into the use of available
procedures contemplated by the parties
and the time required for their
completion, to establish a schedule for
their completion, and to set a tentative
date for beginning the hearing.
(c) In conferences held, or in
suggestions submitted, under paragraph
(a) of this section, the following matter
may be considered:
(1) Simplification, clarification,
amplification, or limitation of the issues.
(2) Admission of facts and of the
genuineness of documents, and
stipulations of facts.
(3) Objections to the .introduction into-
evidence at the hearing of any written
testimony, documents, papers, exhibits,
or other submissions proposed by a
party, except that the administrative
record required by § 124.19 shall be
received in evidence subject to the
provisions of § 124.85(d)(2). At any time
before the end of the hearing any party
may make, and the Presiding Officer
shall consider and rule upon, motions to
strike testimony or other evidence other
than the administrative record on the
grounds of relevance, competency, or
materiality.
(4) Matters subject to official notice
may be taken.
(5] Scheduling as many of the
following as are deemed necessary and
proper by the Presiding Officer:
(i) Submission of narrative statements
of position on each factual issue in
controversy;
(ii) Submission of written testimony
and documentary evidence (e.g.,
affidavits, data, studies, reports, and
any other type of written material) in
support of those statements: or
(ui) Requests by any party for the
production of additional documentation,
data, or other information relevant and
material to the facts in issue.
•'• (6) Grouping participants with .•>•••_
substantially similar interests to
eliminate redundant evidence, motions,
and objections.
(7) Such other matters that may
expedite the hearing or aid in the
disposition of the matter.
(d) At a preheating conference or at
some other reasonable time set by the
Presiding Officer, each party shall make
available to all other parties the names
of the expert and other witnesses it
expects to call. At its discretion or at the
request of the Presiding Officer, a party
may include a brief narrative summary
of any witness's anticipated testimony.
Copies of any written testimony,
documents, papers, exhibits, or
materials which a party expects to
introduce into evidence, and the
administrative record required by
§ 124.18 shall be marked for
identification as ordered by the
Presiding Officer. Witnesses, proposed
written testimony, and other evidence
may be added or amended upon order of
the Presiding Officer for good cause
shown. Agency employees and
consultants shall be made available as
witnesses by the Agency to the same
extent that production of such witnesses
is required of other parties under
§ 124.74(c)(4). (See also § 124.85(b)(16).)
(e) The Presiding Officer shall prepare
a written prehearing order reciting the
actions taken at each prehearing
conference and setting forth the
•• schedule for the hearing; unless a
transcript has been taken and
accurately reflects these matters. The
order shall include a written statement
of the areas of factual agreement and
disagreement and of the methods and
. procedures to be used in developing the
evidence and the respective duties of
the parties in connection therewith. This
order shall control the subsequent
course of the hearing unless modified by
the Presiding Officer for good cause
shown.
§ 124.84 Summary determination.
(a) Any party to an evidentiary
hearing may move with or without
supporting affidavits and briefs for a
summary determination in its favor
upon any of the issues being adjudicated
on the basis that there is no genuine
issue of material fact for determination.
This motion shall be filed at least 45
days before the date set for the hearing.
except that upon good cause shown the
motion may be filed at any time before
the close of the hearing.
(D) Any other party may, within 30
days after service of the motion, file and
serve a response to it or a
countermotion for summary
determination. When a motion for
•summary-determination is made and •
supported, a party opposing the motion
may not rest upon mere allegations or
denials but must show, by affidavit or
by other materials subject to
consideration by the Presiding Officer.
that there is a genuine issue of material
fact for determination at the hearing.
(c) Affidavits shall be made on
personal knowledge, shall set forth facts
that would be admissible in evidence,
and shall show affirmatively that the
affiant is competent to testify to the
matters stated therein.
(d) The Presiding Officer may set the
matter for oral argument and call for the
submission of proposed findings,
conclusions, briefs, or memoranda of
law. The Presiding Officer shall rule on
the motion not more than 30 days after
the date responses to the motion are
filed under paragraph (b) of this section.
(e] If all factual issues are decided by
summary determination, no hearing will
be held and the Presiding Officer shall
prepare an initial decision under
§ 124.89. If summary determination is
denied or if partial summary
determination is granted, the Presiding
Officer shall issue a memorandum
opinion and order, interlocutory in
character, and the hearing will proceed
on the remaining issues. Appeals from
interlocutory rulings are governed by
§ 124.90.
(f) Should it appear from the affidavits
of a party opposing a motion for -
summary determination that he or she
cannot for reasons stated present, by
affidavit or otherwise, facts essential to
justify his or her opposition, the
Presiding Officer may deny the motion
or order a continuance to allow
additional affidavits or other
information to be obtained or may make
such other order as is just and proper.
§ 124.85 Hearing procedure.
(a)(l) The permit applicant always
bears the burden of persuading the
Agency that a permit authorizing
pollutants to be discharged should be
issued and not denied. This burden does
not shift.
Note.—In many cases the documents
contained in the administrative record, in
• particular the fact sheet or statement of basis
and the response to comments, should
adequately discharge this burden.
(2) The Agency has the burden of
going forward to present an affirmative
case in support of any challenged
condition of a final permit
(3) Any hearing participant who. by
raising material issues of fact contends:
(i) That particular conditions or
requirements jo the permit are improper
'or invalid, and who desires either:
(A) The inclusion of new or different
conditions or requirements; or
(B) The deletion of those conditions or
requirements; or
(ii) That the denial or issuance of a
permit is otherwise improper or invalid,
shall have the burden of going forward
to present an affirmative case at the
conclusion of the Agency case on the
challenged requirement
(b) The Presiding Officer shall conduct
a fair and impartial hearing, take action
to avoid unnecessary delay in the
disposition of the proceedings, and
maintain order. For these purposes, the
Presiding Officer may:
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14283
' (1) Arrange and issue notice of the
date, time, and place of hearings and
conferences;
(2} Establish the methods and
procedures to be used in the
development of the evidence;
. (3) Prepare, after considering the
views of the participants, written
statements of areas of factual
disagreement among the participants:
(4) Hold conferences to settle,
simplify, determine, or strike any of the
issues in a hearing, or to consider other
matters that may facilitate the
expeditious disposition of the hearing:
(5) Administer oaths and affirmations:
(6) Regulate the course cf the hearing
and govern the conduct of participants;
(7) Examine -witnesses! - • •
(6) Identify and refer issues for
interlocutory decision under § 124.90:
(9) Rule on. admit, exclude, or limit
evidence:
(1C) Establish the time for filing
motions, testimony, and other written
evidence, briefs, findings, and other
submissions:
(11) Rule on motions and other
procedural matters pending before him.
including but not limited to motions for
summary determination in accordance
with § 124.84;
(12) Order that the hearing be
conducted in stages whenever the
number of parties is large or the issues
are numerous and complex:
(13) Take any action not inconsistent
with the provisions of this Subpart for
the maintenance of order at the hearing
and for the expeditious, fair, and
impartial conduct of the proceeding;
(14) Provide for the testimony of
opposing witnesses to be heard
simultaneously or for such witnesses to
meet outside the hearing to resolve or
isolate issues or conflicts;
(15) Order that trade secrets be
treated as confidential business
information in accordance with § § 122.7
(NPDES) and 270.12 (RCRA) and 40 CFR
"Part 2; and ' •
(16) Allow such cross-examination as
may be required for a full and true
disclosure of the facts. No cross-
examination shall be allowed on
questions of policy except to the extent
required to disclose the factual basis for
permit requirements, or on questions of
law, or regarding matters (such as the
validity of effluent limitations
guidelines) that are not subject to
challenge in an evidentiary hearing. No
Agency witnesses shall be required to
testify or be made available for cross-
examination on such matters. In
deciding whether or not to allow cross-
examination, the Presiding Officer shall
consider the likelihood of clarifying or
resolving a disputed issue of material
fact compared to other availabie
methods. The party seeking cross-
examination has the burden of
demonstrating that this standard has
been met
(c) All direct and rebuttal evidence at
an evidentiary hearing shall be
submitted in written form, unless, upon
motion and good cause shown, the
Presiding Officer determines that oral
presentation of the evidence on any
particular fact will materially assist in
the efficient identification and
clarification of the issues. Written
testimony shall be prepared in narrative
form.
(d)(l) The Presiding Officer shall
admit all relevant, competent, and
material evidence, except evidence that
is unduly repetitious. Evidence may be
received at any hearing even though
inadmissible under the rules of evidence
applicable to judicial proceedings. The
weight to be given evidence shall be
determined by its' reliability and
probative value.
(2) The administrative record required
by § 124.18 shall be admitted and
received in evidence. Upon motion by
any party the Presiding Officer may
direct that a witness be provided to
sponsor a portion or portions of -the
administrative record. The Presiding
Officer, upon finding that the standards
in § 124.85(b](3) have been met, shall
direct the appropriate party to produce
the witness for cross-examination. If a
sponsoring witness cannot be provided.
the Presiding Officer may reduce the
weight accorded the appropriate portion
of the record.
[Note.— Receiving the administrative
record into evidence automatically serves
several purposes (1) it documents the prior
course of the proceedings (2) it provides a
record of the views of affected persons for
consideration by the agency deasionmaken
and (3) it provides factual material for use by
the decisionroaker.]
testimony is excluded by the Presiding
Officer as inadmissible, all such
evidence or testimony existing in
written form shall remain a part of the
record as an offer of proof. The party
seeking the admission of oral testimony
may make an offer of proof, by means of
a brief statement on the record
describing the testimony 'excluded.
(4) When two or more parties have
substantially similar interests and
positions, the Presiding Officer may
limit the number of attorneys or other
party representatives who will be
permitted to cross-examine and to make
and argue motions and objections on
behalf of those parties. Attorneys may.
however, engage in cross-examination
relevant to matters not adequately
covered by previous cross-examination.
(5) Rulings of the Presiding Officer on
the admissibility of evidence or
testimony, the propriety of cross-
examination, and other procedural
matters shall appear in the record and
shall control further proceedings, unless
reversed as a result of an interlocutory
appeal taken under § 124.90.
(6) All objections shall be made
promptly or be deemed waived. Parties
shall be presumed to have taken
exception to an adverse ruling. No
objection shall be deemed waived by
further participation in the hearing.
§ 124.86 Motions.
(a) Any party may file a motion
(including a motion to dismiss a
particular claim on a contested issue)
with the Presiding Officer on any matter
relating to the proceeding. All motions
shall be in writing and served as
provided in § 124.80 except those made
on the record during an oral hearing
before the Presiding Officer.
(b) Within 10 days after service of any
written motion, any part to the
proceeding may file a response to the
motion. The time for response may be
shortened to 3 days or extended for an
additional 10 days by the Presiding
Officer for good cause shown.
(c) Notwithstanding § 122.4. any party
may file with the Presiding Officer a
motion seeking to apply to the permit
any regulatory or statutory provision
issued or made available after the
issuance of the permit under § 124.15.
The Presiding Officer shall grant any
motion to apply a new statutory
provision unless he or she finds it
contrary to legislative intent The
Presiding Officer may grant a motion to
apply a new regulatory requirement
when appropriate to carry out the
purpose of CWA. and when no party
would be unduly prejudiced thereby.
§124.87 Record of hearings.
(a) All orders issued by the Presiding
Officer, transcripts of oral hearings or
arguments, written statements of
position, written direct and rebuttal
testimony, and any other data, studies.
reports, documentation, information and
other written material of any kind
submitted in the proceeding shall be a
part of the hearing record and shall be
available to the public except as
provided in IS 122.7 (NPDES) and 270.12
(RCRA), in the Office of the Regional
Hearing Clerk, as soon as it is received
in that office.
(b) Evidentiary hearings shall be
either stenographically reported
verbatim or tape recorded, and
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14284 Federal Register / Vol. 48. No. 64 / Friday, April 1. 1983 / Rules and Regulations
thereupon transcribed. After the
hearing, the reporter shall certify and
file with the Regional Hearing Clerk:
(1) The original of the transcript, and
(2) The exhibits received or offered
into evidence at the hearing.
(c) The Regional Hearing Clerk shall
promptly notify each of the parties of
the filing of the certified transcript of
proceedings. Any party who desires a
copy of the transcript of the hearing may
obtain a copy of the hearing transcript
from the Regional Hearing Clerk upon
payment of costs.
(d) The Presiding Officer shall allow
witnesses, parties, and their counsel an
opportunity to submit such written
proposed corrections of the transcript of
any oral testimony taken at the hearing,
pointing out errors that may haver been
made in transcribing the testimony, as
are required to make the transcript
conform to the testimony. Except in
unusual cases, no more than 30 days
shall be allowed for submitting such
corrections from the day a complete
transcript of the hearing becomes
available.
§ 124.88 Proposed findings of fact and
conclusions; brief.
Within 45 days after the certified
transcript is filed, any party may file
with the Regional Hearing Clerk
proposed findings of fact and
conclusions of law and a brief in support
thereof. Briefs shall contain appropriate
references to the record. A copy of these
findings, conclusions, and brief shall be
served upon all the other parties and the
Presiding Officer. The Presiding Officer,
for good cause shown, may extend the
time for filing the proposed findings and
conclusions and/or the brief. The
Presiding Officer may allow reply briefs.
§124.89 Decisions.
(a) The Presiding Officer shall review
and evaluate the record, including the
proposed findings and conclusions, any
briefs filed by the parties, and any
interlocutory decisions under f 124.90 • •
and shall issue and file his initial
decision with the Regional Hearing
Clerk. The Regional Hearing Clerk shall
immediately serve copies of the initial
decision upon all parties (or their
counsel of record] and the
Administrator.
(b) The initial decision of the
Presiding Officer shall automatically
become the final decision 30 days after
its service unless within that time:
(1) A party files a petition for review
by the Administrator pursuant to
§ 124.91; or
(2) The Administrator sua sponte files
a notice that he or she will review the
decision pursuant to § 124.91.
§ 124.90 Interlocutory appeal.
(a) Except as provided in this section,
appeals to the Administrator may be
taken only under § 124.91. Appeals from
orders or rulings may be taken under
this section only if the Presiding Officer,
upon motion of a party, certifies those
orders or rulings to the Administrator
for appeal on the record. Requests to the
Presiding Officer for certification must
be filed in writing within 10 days of
service of notice of the order, ruling, or
decision and shall state briefly the
grounds relied on.
(b) The Presiding Officer may certify
an order or ruling for appeal to the
Administrator if:
(1) The order or ruling involves an
important question on which there is
substantial ground for difference of
opinion, and
(2) Either
(i) An immediate appeal of the order
or ruling will materially advance the
ultimate completion of the proceeding;
or
(ii] A review after the final order is
issued will be inadequate or ineffective.
(c) If the Administrator decides that
certification was improperly granted, he
or she shall decline to hear the appeal.
The Administrator shall accept or
decline all interlocutory appeals within
30 days of their submission; if the
Administrator takes no action within
that time, the appeal shall be
automatically dismissed. When the
Presiding-Officer declines to certify an
order or ruling to the Administrator for
an interlocutory appeal, it may be
reviewed by the Administrator only
upon appeal from the initial decision of
the Presiding Officer, except when the
Administrator determines, upon motion
of a party and in exceptional
circumstances, that to delay review
would not be hi the public interest. Such
motion shall be made within 5 days
after receipt of notification that the
Presiding Officer has refused to certify
an order or ruling for interlocutory
-appeal1 tfllhr Administrator: Of diriafilyT
the interlocutory appeal will be decided
on the basis of the submissions made to
the Presiding Officer. The Administrator
may, however, allow briefs and oral
argument
(id) In exceptional circumstances, the
Presiding Officer may stay the
proceeding pending a decision by the
Administrator upon an order or ruling
certified by the Presiding Officer for an
interlocutory appeal, or upon the denial
of such certification by the Presiding
Officer.
(e) The failure to request an
interlocutory appeal shall not prevent
taking exception to an order or ruling in
an appeal under § 124.91.
§ 124.91. Appeal to th« Administrator.
(a)(l) Within 30 days after service of
an initial decision, or a denial in whole
or in part of a request for an evidentiary
hearing, any party or requester, as the
case may be, may appeal any matter set
forth in the initial decision or denial, or
any adverse order or ruling to which the
party objected during the hearing, by
filing with the Administrator notice of
appeal and petition for review. The
petition shall include a statement of the
supporting reasons and. when
appropriate, a showing that the initial
decision contains:
(i) A finding of fact or conclusion of
law which is clearly erroneous, or
(ii) An exercise of discretion or policy
which is important and which the
Administrator should review.
(2) Within 15 days after service of a
petition for review under paragraph
(c)(l) of this section, any other party to
the proceeding may file a responsive
petition.
(3) Policy decisions made or legal
conclusions drawn in the course of
denying a request for an evidentiary
hearing may be reviewed and changed
by the Administrator in an appeal under
this section.
(b) Within 30 days of an initial
decision or denial or a request for an
evidentiary hearing the Administrator
may, sua sponte, review such decision.
Within 7 days after the Administrator
has decided under this section to review
an initial decision or the denial of a
request for an evidentiary hearing,
notice of that decision shall be served
by mail upon all affected parties and the
Regional Administrator.
(c)(l) Within a reasonable time
following the filing of the petition for
review, the Administrator shall issue an
order either granting or denying the
petition for review. When the
Administrator grants a petition for
review or determines under paragraph
(b) of this section to review a decision.
"-1heTA.dmmiBtrator may notify the parties
that only certain issues shall be briefed.
(2) Upon granting a petition for
review, the Regional Hearing Clerk shall
promptly forward a copy of the record to
the Judicial Officer and shall retain a
complete duplicate copy of the record in
the Regional Office.
(d) Notwithstanding the grant of a
petition for review or a determination
under paragraph (b) of this section to
review a decision, the Administrator
may summarily affirm without opinion
and initial decision or the denial of a
request for an evidentiary hearing.
(e) A petition to the Administrator
under paragraph (a) of this section for
review of any initial decision or the '
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denial of an evidentiary hearing is,
under 5 U.S.C. § 704, a prerequisite to
the seeking of judicial review of the final
decision of the Agency.
(f) If a party timely files a petition for
review or if the Administrator suo
sponte orders review, then, for purposes
of judicial review, final Agency action
on an issue occurs as follows:
(1) If the Administrator denies review
or summarily affirms without opinion as
provided in § 124.91(d), then the initial
decision or denial becomes the final
Agency action and occurs upon the
service of notice of the Administrator's
action.
(2) If the Administrator issues a
decision without remanding the
proceeding then the final permit,
redrafted as required by the
Administrator's original decision, shall
be reissued and served upon all parties
to the appeal.
(3) If the Administrator issues a
decision remanding the proceeding, then
final Agency action occurs upon
completion of the remanded proceeding.
including any appeals to the
Administrator from the results of the
remanded proceeding.
. (g) The petitioner may file a brief in
support of the petition within 21 days
after the Administrator has granted a
petition for review. Any other party may
file a responsive brief within 21 days of
service of the petitioner's brief. The
petitioner then may Hie a reply brief
within 14 days of service of the
responsive brief. Any person may file an
amicus brief lor the consideration of the
Administrator within the same time
periods that govern reply briefs. If the
Administrator determines, sua sponte. to
review an initial Regional
Administrator's decision or the denial of
a request for an evidentiary hearing, the
Administrator shall notify the parties of
the schedule for filing briefs.
(h) Review by the Administrator of an
initial decision or the denial of an
-evidentiary hearing shall be limited to
the issues specified under paragraph (a)
of this section, except that after notice
to all parties, the Administrator may
raise and decide other matters which he
or she considers material on the basis of
the record.
Subpart F—Non-Adversary Panel
Procedures
§ 124.111 Applicability.
(a) Except as set forth in this Subpart,
this Subpart applies in lieu of, and to
complete exclusion of. Subparts A
through E in the following cases:
(l)(i) In any proceedings for the
issuance of any NPDES permit which
constitutes "initial licensing" under the
Administrative Procedure Act. when the
Regional Administrator elects to apply
this Subpart and explicitly so states in
the public notice of the draft permit
under § 124.10 or in a supplemental
notice under § 124.14. If an NPDES draft
permit is processed under this Subpart,
any other draft permits which have been
consolidated with the NPDES draft
permit under § 124.4 shall likewise be
processed under this Subpart except for
PSD permits when the Regional
Administrator makes a finding under
§ 124.4(e) that consolidation would be
likely to result in missing the one year
statutory deadline for issuing a final
PSD permit ur.der the CAA.
(iil "Initial licensing" inciudes both
the first decision on an NPDES permit.
applied for by a discharger that has not
previously held one and the first
decision on any variance requested by a
discharger.
(iii) To the extent th:s Subpart is used
to process a request for a variance
under (T.VA section 301(h). the term
"Administrator or a person designated
by the Administrator" shall be
substituted for the term "Regional
Administrator".
(2) In any proceeding for which a
hearing under this Subpart was granted
under § 124.75 following a request for a
formal hearing under § 124.74. See
§3 124.74(c)(8) and 124.75(a)(2).
(3) Whenever the Regional
Administrator determines as a matter of
discretion that the more formalized
mechanisms of this Subpart should be
used to process draft NPDES general
permits (for which evidentiary hearings
are unavailable under § 124.71), or draft
RCRA or draft UIC permits.
(b) EPA shall not apply these
procedures to a decision on a variance
where Subpart E proceedings are
simultaneously pending on the other •
conditions of the permit See § 124.G4(b).
§124.112 Relation to other subparts.
The following provisions of Subparts
A through E apply to proceedings^unoW*"
this Subpart:
(a)(l) §§ 124.1 through 124.10.
(2) § 124.14 "Reopening of comment
period."
(3) § 124.16 "Stays of contested permit
conditions."
(4) § 124.20 "Computation of time."
(b)(l) § 124.41 "Definitions applicable
to PSD Permits."
(2) § 124.42 "Additional procedures for
PSD permits affecting Class I Areas."
(c)(l) §§ 124.51 through 124.56.
(2) § 124.57(c) "Public notice."
(3) §5 124.58 through 124.66.
(d)(l) § 124.72 "Definitions." except
for the definition of "Presiding Officer,"
see § 124.119.
(2) § 124.73 "Filing."
(3) 5124.78 "Exparte
communications."
(4) 1124.80 "Filiiig and service."
(5) § 124.35(a) (Burden of proof).
(6) § 124.86 "Motions."
(7) § 124.87 "Record of hearings."
(8) § 124.90 "Interlocutory appeal."
(e) In the case of permits to which this
Subpart is made applicable after a final
permit has been issued under § 124.15,
either by the grant under § 124.75 of a
hearing request under § 124.74, or by
notice of supplemental proceedings
under § 124.14, § § 124.13 and 124.76
shall also apply.
§ 124.113 Public notice of draft permits
and public comment period.
Public notice of a draft permit under
this Subpart shall be given as provided
in §§ 124.10 and 124.57. At the discretion
of the Regional Administrator, the public
comment period specified in this notice
may include an opportunity for a public
hearing under § 124.12.
§ 124.114 Request fcr hearing.
(a) By the close of the comment period
under § 124.113, any person may request
the Regional Administrator to hold a
panel hearing on the draft permit by
submitting a written request containing
the following: • -•
(1) A brief statement of the interest of
the person requesting the hearing:
(2) A statement of any objections to
the draft permit
(3) A statement of the issues which
such person proposes to raise for
consideration at the hearing: and
(4} Statements meeting the
requirements of § 124.74lc)(l)-{5).
(b) Whenever (1) a written request
satisfying the requirements of paragraph
(a) of this section has been received and
presents genuine issues of material fact
or (2) the Regional Administrator
determines sua sponte that a hearing
under this Subpart is necessary or
"•appropriate,'the Regional Administrator
shall notify each person requesting the
hearing and the applicant and shall
provide public notice under § 124.57(c).
If the Regional Administrator
determines that a request does not meet
the requirements of paragraph (a) of this
section or does not present genuine
issues of fact, the Regional
Administrator may deny the request for
the hearing and shall serve written
notice of that determination on all
persons requesting the hearing.
(c) The Regional Administrator may
also decide before a draft permit is
prepared under § 124.6 that a hearing
should be held under this section. In
such cases, the public notice of the draft
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14286 Federal Register / Vol. 48, No. 64 / Friday, April 1. 1983 / Rules and Regulations
permit shall explicitly so state and shall
contain the information required by
§ 124.57(c). This notice may also provide
for a hearing under § 124.12 before a
hearing is conducted under this section.
§ 124.115 Effect of denial of or absence of
request for hearing.
If no request for a hearing is made
under $ 124.114, or if all such requests
are denied under that section, the
Regional Administrator shall then
prepare a recommended decision under
i 124.124. Any person whose hearing
request has been denied may then
appeal that recommended decision to
the Administrator as provided in
§ 124.91.
§124.116 Notice of hearing.
(a] Upon granting a request for a
hearing under § 124.114 the Regional
Administrator shall promptly publish a
notice of the hearing as required under
§ 124.57(c). The mailed notice shall
include a statement which indicates
whether the Presiding Officer or the
Regional Administrator will issue the
Recommended decision. The mailed
notice shall also allow the participants
at least 30 days to submit written
comments as provided under § 124.118.
(b) The Regional Administrator may
also give notice of a hearing under this
section at the same time as notice of a
draft permit under § 124.113. In that case
the comment periods under § § 124.113
and 124.113 shall be merged and held as
a single public comment period.
(c) The Regional Administrator may
also give notice of hearing under this
section in response to a hearing request
under § 124.74 as provided in § 124.75.
§ 124.117 Request to participate in
hearing.
(a) Persons desiring to participate in
any hearing noticed under this section.
shall fila a request to participate with
the Regional Hearing Clerk before the
deadline set forth in the notice of the
- grant of the hearing. Any person .filing .„
such a request becomes a party to the
proceedings within the meaning of the
Administrative Procedure Act The
request shall include:
(1) A brief statement of the interest of
the person in the proceeding;
(2) A brief outline of the points to be
addressed;
(3) An estimate of the time required;
and
(4) The requirements of § 124.74(c)ft}-
(5).
(5) If the request is submitted by an
organization, a nonbindingJist of the
persons to take part in the presentation.
(b) As soon as practicable', but in no
event later than 2 weeks before the
scheduled date of the hearing, the
Presiding Officer shall make a hearing
schedule available to the public and
shall mail it to each person who
requested to participate in the hearing.
§ 124.118 Submission! of written
comments on draft permit
(a) No later than 30 days before the
scheduled start of the hearing (or such
other date as may be set forth in the
notice of hearing), each party shall file
all of its comments on the draft permit,
based on information in the
administrative record and any other
information which is or reasonably
could have been available to that party.
All comments shall include any
affidavits, studies, data, tests, or other
materials-relied upon for making any'"*'
factual statements in the comments.
(b)(l) Written comments filed under
paragraph (a) of this section shall
constitute the bulk of the evidence
submitted at the hearing. Oral
statements at the hearing should be
brief and in the nature of argument
They shall be restricted either to points
that could not have been made in
written comments, or to emphasize
points which are made in the comments,
but which the party believes can more
effectively be argued in the hearing
context.
(2] Notwithstanding the foregoing,
within two weeks prior to the deadline
specified in paragraph (a) of this section
for the filing of comments, any party
may move to submit all or part of its
comments orally at the hearing in lieu of
submitting written comments and the
Presiding Officer shall, within one week,
grant such motion if the Presiding
Officer finds that the party will be
prejudiced if required to submit the
comments in written form.
(c) Parties to any hearing may submit
written material in response to the
comments filed by other parties under
paragraph (a) of this section at the time
they appear at the panel stage of the
-hearing under 5'124;120. -.••..—*
§124.119 Presiding Officer.
(a)(l)(i) Before giving notice of a
hearing under this Subpart in a
proceeding involving an NPDES permit
the Regional Administrator shall request
that the Chief Administrative Law Judge
assign an Administrative Law Judge as
the Presiding Officer. The Chief
Administrative Law Judge shall then
make the assignment
(ii) If all parties to such a hearing
waive in writing their statutory right to
have an Administrative Law Judge
named as the Presiding Officer in a
hearing subject to this subparagraph the
Regional Administrator may name a
Presiding Officer under paragraph
(a)(2)(ii) of this section.
(2) Before giving notice of a hearing
under this Subpart in a proceeding
which does not involve an NPDES
permit or a RCRA permit termination,
the Regional Administrator shsll either:
(i) Request that the Chief
Administrative Law Judge assign an
Administrative Law Judge as the
Presiding Officer. The Chief
Administrative Law Judge may
thereupon make such an assignment if
he concludes that the other duties of his
office allow, or
(ii) Name a lawyer permanently or
temporarily employed by the Agency
and without prior connection with the
proceeding to serve as Presiding Officer,
(iii) If the Chief Administrative Law
Judge declines to name an
Administrative Law Judge as Presiding
Officer upon receiving a request under
paragraph (a)(2](i) of this section, the
Regional Administrator shall name a
Presiding Officer under paragraph
(a)(2)(ii) of this section.
(b) It shall be the duty of the Presiding
Officer to conduct a fair and impartial
hearing. The Presiding Officer shall have
the authority:
(1) Conferred by § 124.85(b){l)-{15),
§ 124.83 (b) and (c), and;
(2) To receive relevant evidence,
provided that all comments under
§§ 124.113 and 124.118. the record of the
panel hearing under 3 124.120, and the
administrative record, as defined in
§ 124.9 or in § 124.18 as the case may be
shall be received in evidence, and
(3) Either upon motion or sua sponte,
to change the date of the hearing under
§ 124.120, or to recess such a hearing
until a future date. In any such case the
notice required by § 124.10 shall be
given.
§124.120 Panel hearing.
(a) A Presiding Officer shall preside at
each hearing held under this Subpart
«-An-EPA«panel shall also take part-in the
hearing. The panel shall consist of three
or more EPA temporary or permanent
employees having special expertise or
responsibility in areas related to the
hearing issue, at least two of whom shall
not have taken part in writing the draft
permit If appropriate for the evaluation
of new or different issues presented at
the hearing, the panel membership, at
the discretion of the Regional
Administrator, may change or may
include persons not employed by EPA.
(b) At the time of the hearing notice
under § 124.116, the Regional
Administrator shall designate the
persons who shall serve as panel
members for the hearing and the
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Regional Administrator shall file with
the Regional Hearing Clerk the name
and address of each person so
designated. The Regional Administrator
may also designate EPA employees who
will provide staff support to the panel
but who may or may not serve as panel
members. The designated persons shall
be subject to the ex parte rules in
§ 124.78. The Regional Administrator
may also designate Agency trial staff as
defined in § 124.78 for the hearing.
(c) At any time before the close of the
hearing the .Presiding Officer, after
consultation with the panel, may request
that any person having knowledge
concerning the issues raised in the
hearing and not then scheduled to
participate therein appear and testify at
the hearing. •
(d) The panel members may question
any person participating in the panel.
hearing. Cross-examination by persons
other than panel members shall not be
permitted at this stage of the proceeding
except when the Presiding Officer
determines, after consultation with the
panel, that the cross-examination would
expedite consideration of the issues.
However, the parti"* may submit
written questions 'he Presiding
Officer for the Pre aing Officer to ask
the participants, and the Presiding
Officer may, after consultation with the
panel, and at his or her sole discretion.
ask these questions.
(e) At any time before the close of the
hearing, any party may submit to the
Presiding Officer written questions
specifically directed to any person
appearing or testifying in the hearing.
The Presiding Officer, after consultation
with the panel may, at his sole
discretion, ask the written question so
submitted.
(fj Within 10 days after the close of
the hearing, any party shall submit such
additional written testimony, affidavits,
information, or material as they consider
relevant or which the panel may
request. These additional submissions
shall be filed with the-Regronal Hearing-
Clerk and shall be a part of the hearing
record,
§ 124.121 Opportunity for cross-
examination.
(a) Any party to a panel hearing may
submit a written request to cross-
examine any issue of material fact The
motion shall be submitted to the
Presiding Officer within 15 days after a
full transcript of the panel hearing is
filed with the Regional Hearing Clerk
and shall specify:
(1) The disputed issuefs) of material
fact This shall include an explanation
of why the questions at issue are factual
rather than of an analytical or policy
nature, the extent to which they are in •
dispute in light of the then-existing
record, and the extent to which they are
material to the decision on the
application; and
(2) The person(s) to be cross-
examined, and an estimate of the time
necessary to conduct the cross-
examination. This shall include a
statement explaining how the cross-
examination will resolve the disputed
issues of material fact.
(b) After receipt of all motions for
cross-examination under paragraph (a)
of this section, the Presiding Officer,
after consultation with the hearing
panel, shall promptly issue an order
either granting or denying each request.
Orders granting requests for cross-
examination shaH'be served-en-aH™- • •
parties and shall specify:
(1) The issues on which cross-
examination is granted;
(2) The persons to be cross-examined
on each issue;
(3) The persons allowed to conduct
cross-examination;
(4) Time limits for the examination of
witnesses by each cross-examiner; and
[5] The date, time, and place of the
supplementary hearing at which cross-
examination shall take place.
(6) In issuing this order, the Presiding
Officer may determine thattwo ormore
parties have the same or similar
interests and that to prevent unduly
repetitious cross-examination, they
should be required to choose a single
representative for purposes of cross-
examination. In that case, the order
shall simply assign time for cross-
examination without further identifying
the representative. If the designated
parties fail to choose a single
representative, the Presiding Officer
may divide the assigned time among the
representatives or issue any other order
which justice may require.
(d) The Presiding Officer and, to the
extent possible, the members of the
hearing panel shall be present at the
,~*AupplementaiyJiearingr During .the . .-.^
course of the hearing, the Presiding
Officer shall have authority to modify
any order issued under paragraph (bj of
this section. A record will be made .
under § 124.87.
(e)(l) No later than the time set for
requesting cross-examination, a party
may request that alternative methods of
clarifying the record (such as the
submission of additional written
information) be used in lieu of or in
addition to cross-examination. The
Presiding Officer shall issue an order
granting or denying this request at the
time he or she issues (or would have
issued) an order granting or denying a
request for cross-examination, under
paragraph (b) of this section. If the
request for an alternative method is •
granted, the order shall specify the
alternative and any,other relevant
information (such as the due date for
submitting written information).
(2) In passing on any request for
cross-examination submitted under
paragraph (a) of this section, the
Presiding Officer may. as a precondition
to ruling on the merits of the request,
require alternative means of clarifying
the record to be used whether or not a
request to do so has been made. The
party requesting cross-examination shall
have one week to comment on the
results of using the alternative method.
After considering these comments the
Presiding Officer shall issue an order
granting or denying the request for
cross-examination.
(f) The provisions of § 124.85(d)(2)
apply to proceedings under this Subpart.
§ 124.122 Record for final permit.
The record on which the final permit
shall be based in any proceeding under
this Subpart consists of:
(a) The administrative record
compiled under § § 124.9 or 124.18 as the
case may be;
(b) Any material submitted under
§ 124.78 relating to ex parte contacts;
(c) All notices issued under § 124.113;
(d) All requests for hearings, and
rulings on those requests, received or
issued under § 124.114;
(e) Any notice of hearing issued under
§ 124.116;
(f) Any request to participate in the
hearing received under § 124.117;
(g) All comments submitted under
§ 124.118, any motions made under that
section and the rulings on them, and any
comments filed under § 124.113;
(h) The full transcript and other
material received into the record of the
panel hearing under § 124.120;.
(i) Any motions for, or rulings on,
• cross-examination filed or issued under
••*•! -124.121;
(j) Any motions for, orders for. and the
results of, any alternatives to cross-
examination under § 124.121; and
(k) The full transcript of any cross-
examination held.
§ 124.123 Filing of brief, proposed
findings of'fact and conclusions of law and
proposed modified permit.
Unless otherwise ordered by the
Presiding Officer, each party may.
within 20 days after all requests for
cross-examination are denied or after a
transcript of the full hearing including
any cross-examination becomes
available, submit proposed findings of
fact; conclusions regarding material
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issues of law. fact, cr discretion; a
proposed modified permit (if such
person is urging that the draft or final
permit be modified); and a brief in
support thereof; together with references
to relevant pages of transcript and to
relevant exhibits. Within 10 days
thereafter each party may file a reply
brief concerning matters contained in
opposing briefs and containing
alternative findings of fact; conclusions
regarding material issues of law, fact, or
discretion; and a proposed modified
permit where appropriate. Oral
argument may be held at the discretion
of the Presiding Officer on motion of any
party or sua sports.
§ 124.124 Recommended decision.
The person named to prepare the
decision shall, AS soon as praeticable-"
after the conclusion of the hearing,
evaluate the record of the hearing and
prepare and file a recommended
decision with the Regional Hearing
Clerk. That person may consult with,
and receive assistance from, any
member of the hearing panel in drafting
the recommended decision, and may
delegate the preparation of the
recommended decision to the panel or to
any member or members of it. This
decision shall contain findings of fact,
conclusions regarding all material issues
of law, and a recommendation as to
whether and in what respect the draft or
final permit should be modified. After
the recommended decision has been
filed, the Regional Hearing Clerk shall
serve a copy of that decision on each
party and upon the Administrator.
§ 124.125 Appeal from or review of
recommended decision.
(a)(l) Within 30 days after service of
the recommended decision, any party
may take exception to any matter set
forth in that decision or to any adverse
order or ruling of the Presiding Officer to
which that party objected, and may
appeal those exceptions to the
Administrator as provided in § 124.91.
• except that references to "initial ' • ••**
decision" will mean recommended
decision under § 124.124.
§ 124.126 Final decision.
As soon as practicable after all appeal
proceedings have been completed, the
Administrator shall issue a final
decision. That final decision shall
include findings of fact; conclusions
regarding material issue of law, fact, or
discretion, as well as reasons therefore;
and a modified permit to the extent
appropriate. It may accept or reject all
or part of the recommended decision.
The Administrator may delegate some
or all of the work of preparing this
decision to a person or persons without
substantial prior connection with the
matter. The Administrator or his or her
designee may consult with the Presiding
Officer, members of the hearing panel,
or any other EPA employee other than
members of the Agency Trial Staff under
§ 124.78 in preparing the final decision.
The Hearing Clerk shall file a copy of
the decision on all parties.
§ 124.127 Final decision if there is no
review.
If no party appeals a recommended
decision to the Administrator, and if the
Administrator does not elect to review
it, the recommended decision becomes
the final decision of the Agency upon
the expiration of the time for filing any
appeals.
§ 124.128 Delegation of authority; time
limitations.
(a) The Administrator may delegate to
a Judicial Officer any or all of his or her
authority under this Subpart.
(b) The failure of the Administrator.
Regional Administrator, or Presiding
Officer to do any act within the time
periods specified under this Part shall
not waive or diminish any right, power,
or authority of the United States
Environmental Protection Agency.
(c) Upon a showing by any party that
it has been prejudiced by a failure of the
Administrator, Regional Administrator,
or Presiding Officer to do any act within
the time periods specified under this
Part the Administrator, Regional
Administrator, or Presiding Officer, as
the case may be. may grant that party
such relief of a procedural nature
(including extension of any time for
compliance or other action) as may be
appropriate.
Appendix A to Part 124—Guide to .
Decisionmaking Under Part 124
This Appendix is designed to assist in
reading the procedural requirements set out
in Part 124. It consists of two flow charts.
Figure 1 diagrams the more conventional
sequence of procedures EPA expects to
* follow in processing permits aiderthiS'PaJ'l." ~"
It outlines how a permit will be applied for.
how a draft permit will be prepared and
publicly noticed for comment, and how a
final permit will be issued under the
procedures in Subpart A.
This permit may then be appealed to the
Administrator, at specified both in Subpart A
(for RCRA. UIC, or'PSO permits), or Subpart
E or F (for NPDES permits). The first flow
chart also briefly outlines which permit
decisions are elgible for which types of
appeal.
Part 124 also contains special "non-
adversary panel hearing" procedures based
on the "initial licensing" provisions of the
Administrative Procedure Act. These
procedures are set forth in Subpart F. In some
cases. EPA may only decide to make those
procedures applicable after it has gone
through the normal Subpart A procedures on
a draft permit. This process is also
diagrammed in Figure 1.
Figure 2 sete forth the general procedure to
be followed where these Subpart F
procedures have been made applicable to a
permit from the beginning.
Both flow charts outline a sequence of
events directed by arrows. The boxes set
forth elements of the permit process; and the
diamonds indicate key decisionmaking points
in the permit process.
The charts are discussed in more detail
below.
Figure J—Conventional EPA Permitting
Procedures
This chart outlines the procedures for
issuing permits whenever EPA does not make
use of the special "panel hearing" procedures
in Subpart F. The major steps depicted on
this chart are as follows:
1. The permit process can begin in any one
of the following ways:
a. Normally, the process will begin when a
person applies for a permit under §S 122.21
(NPDE3). 144.31 (UIC). 233.4 (404), and 270.10
(KCRA) and 124.3.
b. In other cases. EPA may decide to lake
action on its own initiative to change a
permit or to issue a general permit This leads
directly to preparation of a draft permit under
§124.6.
c. In addition, the permittee or any
interested person (other than for PSD
permits) may request modiflciation,
revocation and reissuance or termination of a
permit under §§ 122.62.122.64 (NPDES).
144.39.144.40 (UIC), 233.14, 233.15. (404).
270.41, 270.43 (RCRA), and 124.S.
Those requests can be handled in either of
two ways:
i. EPA may tentatively decide to grant the
request and issue a new draft permit for
public comment, either with or without
requiring a new application.
ii. If the request is denied, an informal
appeal to the Administrator is available.
2. The next major step in the permit
process is the preparation of a draft permit.
As the chart indicates, preparing a draft
permit also requires preparation of either a
statement of basis (5 124.7), a fact sheet
(S 124.5) or. compilation of an "administrative
, record'.', (J.134.91, and public notice (5 124.10).
3. The next stage is the public comment
period (§ 124.11). A public hearing under
§ 124.12 may be requested before the close of
the public comment period.
EPA has the discretion to hold a public
hearing, even if there were no requests during
the public comment period. If EPA decides to
schedule one, the public comment period will
be extended through the close of the hearing.
EPA also has the discretion to conduct the
public hearing under Subpart F panel
procedures. (See Figure 2.)
The regulations provide that all arguments
and factual materials that a person wishes
EPA to consider in connection with a
particular permit must be placed in the record
by the close of the public comment period
(i 124.13).
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4. Section 124.1 i states that EPA. at any
time.before issuing a final permit decision
may decide to either reopen or extend the
comment period, prepare a new draft permit
and begin the process again from that point,
or for RCRA and U1C permits, or for NPDES
permits that constitute "initial licensing", to
begin "panel hearing" proceedings under
Subpart F. These various results are shown
schematically.
5. The public comment period and any
public hearing will be followed by issuance
of a final permit decision (§ 124.15). As the
chart shows, the final permit must be
accompanied by a response to comments
(5 124.17) and be based on the administrative
record (i 124.18).
6. After the final permit is issued, it may be
appealed to higher agency authority. The
exact form of the appeal depends on the type
of permit involved. . . .
a. RCRA. UIC or PSD permits standing
alone will be appealed directly to the
Administrator under § 124.19.
b. NPDES permits which do not involve
"initial licensing" may be appealed in an
evidentiary hearing under Subpart E. The
regulations provide (§ 124.74) that if such a
hearing is granted for an NPDES permit and if
RCRA or UIC permits have been consolidated
with that permit under § 124.4 then closely
related conditions of those RCRA or UIC
permits may be reexamined in an evidentiary
hearing. PSD permits, however, may never be
reexamined in a Subpart E hearing.
c. NPDES permits which do involve "initial
licensing" may be appealed in a panel
hearing under Subpart F. The regulations
provide that if such a hearing is granted for
an NPDES permit, consolidated RCRA. UIC
or PSD permits may also be reexamined in
the same proceeding.
As discussed below, this is only one of
several ways the panel hearing procedures
may be used under these regulations.
7. This chart does not show EPA appeal
procedures in detail. Procedures for appeal to
the Administrator under § 124.19 are self-
explanatory; Subpart F procedures are
diagrammed in Figure 2: and Subpart E
procedures are basically the same that would
apply in any evidentiary hearing.'
. However, the chart at this stage does
reflect the provisions of § 124.60(b), which
allows EPA. even after a formal hearing has
.begun, to "recycle" a permit back to the draft
permit stage at any time before that'hearing
has resulted in an initial decision.
Figure 2—Non-Adversary Panel Procedures
This chart outlines the procedures for
processing permits under the special "panel
hearing" procedures of Subpart F. These
procedures were designed for making
decisions that involve "initial licensing"
NPDES permits. Those permits include the
first decisions on an NPDES permit applied
for by any discharger that has not previously
held one. and the first decision on any
statutory variance. In addition, these
procedures will be used for any RCRA. UIC,
or PSD permit which has been consolidated
with such an NPDES permit, and may be
used, if the Regional Administrator so
chooses, for the issuance of individual RCRA
or UIC permits. The steps depicted on this
chart are as follows:
1. Application for a permit. These
proceedings will generally begin with an
application, since NPDES initial licensing
always will begin with an application.
2. Preparation of a draft permit. This is
identical to the similar step in Figure 1. •
3. Public comment period. This again is
identical to the similar step in Figure 1. The
Regional Administrator has the opportunity
to schedule an informal public hearing under
§"124.12 "during this period!
4. Requests for a panel hearing must be
received by the end of the public comment
period under 5 124.113. See § 124.114.
If a hearing request is denied, or if no
hearing requests are received, a
recommended decision will be issued based
on the comments received. The recommended
decision may then be appealed to the
Administrator. See i 124.115.
5. If a hearing is granted, notice of the
hearing will be published in accordance with
5 124.116 and will be followed by a second
comment period during which requests to
participate and the bulk of the remaining
evidence for the final decision will be
received (§ § 124.117 and 124.118).
The regulations also allow EPA to move
directly to this stage by scheduling a heanng
when the draft permit is prepared. In such
cases the comment period on the draft permit
under § 124.113 and the prehearing comment
period under § 124.118 would occur at the
same time. EPA anticipates that this will be
the more frequent practice when permits are
processed under panel procedures.
This is also a stage at which EPA can
switch from the conventional procedures
diagramed in Figure 1 to the panel hearing
procedures. As the chart indicates. EPA
would do this by scheduling a panel hearing
either through use of the "recycle" provision
in J 124.14 or in response to a request for a
formal hearing under $ 124.74.
"B'Aftef (he-close of the comment period, a
panel hearing will be held under $ 124.120.
followed by any cross-examination granted
under $ 124.121. The recommended decision
will then be prepared (§ 124.124) and an
opportunity for appeal provided under
i 124.125. A final decision will be issued after
appeal proceedings, if any. are concluded.
BILLING CODE 6SW-M-M '
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Rules and Regulations 14293
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
The cross-references in Part 125 to
former Parts 122 and 123 are revised as
follows:
§ 125.3 [Amended]
(1) In § 125.3(a). change the reference
from § 122.60 to § 122.41; the reference
from § 122.61 to J 122.42; and the
reference from § 122.62 to § 122.44.
(2) In § 125.3(a](2). change the
reference from § 122.67(d) to § 122.29(d).
(3) In § 125.3(b), change the reference
from § 122.53 to § 122.21.
(4) In § 125.3(c), change the reference
from §122.53 to §122.21. •
(5) In §125.3(g)(4), change the
reference from §122.61(a)(l) to
§ 122.42(a)(l).
§125.30 [Amended]
(6) In § 125.30(b), change the reference
from §122.53(i)(l} to § 122.21(1)(1).
§ 125.59 [Amended]
(7) In § 125.59(d), change the reference
from §122.5(a)(3) to § 122.6{a)(3).
§ 125.67 [Amended]
(8) In § 125.67, change the reference-
from § 122.14 to § 122.61.
§ 125.92 [Amended]
(9) In § 125.92, change the reference
from § 122.53(j) to § 122.21(m).
§ 125.95 [Amended]
(10] In § 125.95, change the reference
from § 122.53(i) to § 122.21(1).
§ 125.104 [Amended]
(11) In § 125.104(c)(2), change the
reference from § 122.15 to § 122.62.
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
The cross-references in Part 146 to
former Parts 122 and 123 are revised as
follows:
§ 146.01 [Amended]
(1) In § 146.01. change the references
from 40 CFR Parts 122 and 123 to 40 CFR
Parts 144 and 145.
§ 146.02 [Amended]
(2) In § 146.02, change the reference
from 40 CFR Part 122 to 40 CFR Part 144.
§ 146.03 [Amended]
(3) In § 146.03, change the reference
from § 122.35(b) to § 144.8(b); the .
reference from part 122 to Part 144; the
reference from Part 123 to Part 145; and
the reference from § 122.37 to §§ 144.21-
.26 and 144.15.
§ 146.04 [Amended]
(4) In § 146.04, change the reference
from § 122.35 to § 144.8.
§ 146.07 [Amended]
(5) In § 146.07, change the reference
from § 122.44 to § 144.55.
§ 146.09 [Amended]
(6) In § 146.09, change the reference
from § 122.38 to § 144.31 (a), (c), (g);. and
change the reference from § 123.4(gj to
§ 144.22(f).
§ 146.10 [Amended]
(7) In § 146.10(d), change the reference
from § 122.42(fl. to §.144.52UU6);.and- .
change the reference, from § 122.4l(e) to
§ 144.51{n).
§ 146.14 [Amended]
(8) In § 146.14(a)(l), change the
reference from § 122.4 to § 144.31;- and
•change the reference from § 122.38(c) to
§ 144.31(g).
(9) In § 146.14{a)(14), change the
reference from § 122.44 to § 144.55.
(10) In § 146.14(a)(16). change the
reference from § 122.42(a) to
§ 144.52(a)(l).
§ 146.15 [Amended]
(11) In § 146.15, change the reference
from § 122.18(c)(41(C)(ii) to § 144.9(b)(2).
(12) In § 146.15(i), change the
reference from § 122.41(d) to § 144.51
(0(6).
§ 146.23 [Amended]
(13) In § 146.23{b)(4), change the
reference from § 122.42(e) to
§ 144.52(a)(5).
§ 146.24 [Amended]
(14) In § 146.24(a)(l), change the
reference from § 122.4 to § 144.31; and
change the reference from § 122.38(c) to
§ 144.31(g).
(15) In § 146.24(a)(13), change the
reference from § 122.44 to § 144.55.
(16) In § 146.24(a)(14). change the
reference from § 122.42(g) to
§ 144.52(a)(7).
§14&25 [Amended]
(17) In §146.25(a), change the
reference from § 122.18(c)(4)(C)(ii) to
§144.9(b)(2).
(18) In § 146.25(a)(8), change the
reference from § 122.41 (d) to
§144.51(1)(6).
§146.34 [Amended]
(19) In §146.34(a)(l), change the
reference from § 122.4 to § 144.31; and
change the reference from § 122.38(c) to
§144Jl(g).
. (20) In § 146.34(a)(15). change the
reference from § 122.42(9) to
§144.52(a)(7).
(21) In §146.34(a)(-16). change the
reference from § 122.44 to § 144.55.
§146.35 [Amended]
(22) In § 146.35, change the reference
from §122.18(c)(4)(C)(ii) U> §144.9(b)(2).
(23) In § 146.35(h), change the
reference from §122.41(d) to
§144.51(1)(6).
§146.52 [Amended]
(24) In § 146.52(a), change the
reference from §122.37(c)(l) to
§144.26(a).
Title 40 of the Code of Federal
Regulations is further amended us.
follows:
PART 260—(AMENDED]
§260.10 [Amended]
1. Section 260.10 is amended by
removing the words "Parts 122" and
"Part 123" in the definition of.
"Designated facility" and substituting
"Parts 270" and "Part 271", respectively.
Appendix I [Amended]
2. Appendix I to Part 260. entitled
"Overview of Subtitle C Regulations" is
amended by removing the words "Part
122" and substituting "Part 270" in two
places under "Hazardous Waste
Regulations."
3. Appendix I to Part 260, figure 3,
entitled "Special Provisions for Certain
Hazardous Waste", is amended by
removing the words "Part 122" and
substituting Part 270 in the box entitled
"It is subject to the following
requirements * * *"
4. Appendix I to Part 260, figure 4,
entitled "Regulations for Hazardous
Waste Not Covered in Diagram 3," is
amended by removing the words "Part
122" and substituting "Part 270" under
"0/0 who don't qualify for interim
status." _ '
PART 261—[AMENDED]
§261.1 [Amended]
5. Section 261.1 paragraph (a) is
amended by removing the words "Parts
122 through 124" and substituting "Parts
270.271. and 124".
6. Section 261.1 paragraph (a)(l) is
amended by removing the words "Parts
262 through 265 and 122 through 124"
and substituting the words "Parts 262
through 265, 270, 271 and 124".
§261.4 (Amended]
7. Section 261.4 paragraph (c) is
amended by removing the words "Parts
262 through 265 and Parts 122 through
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14294
Federal Register / Vol. 48. No. 64 / Friday. April 1, 1983 / Rules and Regulations
124" and substituting the words "Parts
262 through 265, 270, 271 and 124".
§261.5 [Amended]
8. Section 261.5 paragraphs (b), (e). (f).
(gK3)(i) and (g)(3)(") are amended by
removing the words "Part 122" and
substituting the words "Part 270".
Paragraph (g)(3)[iii) is amended by
removing the words "Part 123" and
substituting the words "Part 271".
§ 261.6 [Amended]
9. Section 261.6. paragraph la) is
amended by removing the words "Parts
122 through 124" and substituting the
words "Parts 270, 271, and 124".
Paragraph (b)(6) is amended by
removing the words "Parts 122" and
substituting the words "Parts 270".
§ 261.7 [Amended]
10. Section 261.7, paragraph (a)(l) is
amended by removing the words "Part
122" and substituting the words "Part
270". Paragraph (a)(2) is amended by
removing the words "Parts 122" and
substituting the words "Parts 270".
§ 261.20 (Amended]
11. Section 261.20 paragraph (b) is
amended by removing the words "Part
122" and substituting the words "Part
270".
§261.30 [Amended]
12. Section 261.30 paragraph (c) is
amended by removing the words "Part
122" and substituting the words "Part
270".
PART 262—[AMENDED]
§262.10 [Amended]
13. Section 262.10 paragraph (d) is
amended by removing the words "Parts
122" and substituting the words "Parts
270". The Note at the end of the section
is amended by removing the words "Part
122" and substituting the words "Part
270".
- § 262.34 [Amended]
14. Section 262.34 paragraph (b) is
amended by removing the words "Part
122" and substituting the words "Part
270".
§262.41 [Amended]
15. Section 262.41 paragraph (b) is
amended by removing the words "Part
122" and substituting the words "Part
270".
§262.50 [Amended]
16. Section 262.50 is amended by
removing the words "Part 123" from the
Note, and substituting the words "Part
271".
§ 262.51 [Amended]
17. Section 262.51 is amended by
removing the words "Part 122" and
substituting the words "Part 270".
PART 263—[AMENDED]
§263.12 [Amended]
18. Section 263.12 is amended by
removing the words "Parts 122," and
substituting the words "Parts 270".
PART 264-[AMENDED]
§264.1 [Amended]
19. Section 264.1 paragraphs (c) and
(e) are amended by removing the words
"Part 122" and substituting the words
"Part 270".
20. Section 264.1 paragraph (d) is
amended by removing the words — —
"§ 122.43" and substituting the
words"§ 144.14".
21. Section 264.1 paragraph (f) is
amended by removing the words
"Subparts A and B of Part 123" and
substituting the words "Subpart A of
Part 271," and by removing the words
"Subpart F of Part 123" and substituting
the words "Subpart B of Part 271".
§264.3 [Amended]
22. Section 264.3 is amended by
removing the words "§ 122.23" and
substituting the words "§ 270.70"- The
comment is amended by removing the
words "Parts 122" and substituting the
words "Parts 270".
§264.12 [Amended]
23. Section 264.12 paragraph (c) is
amended by removing the words "Part
122" and substituting the words "Part
270".
§ 264.13 [Amended]
24. Section 264.13 paragraph (a)[l) is
amended by removing the words "Part
122, Subparts A and B" and substituting
the words "Part 270". The comment is
amended by removing the words "Part
122 Subpart B" and substituting the
words "Part 270".
§264.14 [Amended]
25. Section 264.14 is amended by
removing the words "Part 122, Subpart
8" from the comment after paragraph
(a)(2), and substituting the words "Part
270".
§264.15 [Amended]
28. Section 264.15 is amended by
removing the words "Part 122 Subpart
B" from the comment after paragraph
(b](4). and substituting the words "Part
270".
§264.16 [Amended]
27. Section 264.16 is amended by
removing the words "Part 122, Subpart
B" from the comment after paragraph
(a)(l) and substituting the words "Part
270".
§264.18 [Amended]
28. Section 264.18 is amended by
removing the words "§ 122.25(a)(il)" in
the comment after paragraph (a) and
substituting the words "§ 270.14(b)(ll)".
The comment after paragraph (b)(l) is
amended by removing the words "Part
122", "Part 123", and "Parts 122" and
substituting the words "Part 270", "Part
271", and "Parts 270", respectively.
§264.32 [Amended]
29. Section 264.32 is amended by
removing the words "Part 122, Subpart
B" from the comment after paragraph
(d). and substituting the words "Part
270".
§ 264.35 [Amended]
30.- Section 264.35 is amended by
removing the words "Part 122, Subpart
B" from the comment and substituting
the words "Part 270".
§264.93 [Amended]
31. Section 264.93 paragraph (c) is
amended by removing the words
"§ 122.35" and substituting the words
"§ 144.8".
§264.94 [Amended]
32. Section 264.94 paragraph (c) is
amended by removing the words
"§ 122.35" and substituting the words
"§ 144.8".
§264.112 [Amended]
33. Section 264.112 paragraph (a] is
amended by removing the words
"§ 122.25(a)[13)" and substituting the-
words "§ 270.14(b)(13)".
34. Section 264.112 paragraph (a)(2) is
amended by removing the words
"122.17" and substituting the words
"§ 270.42". The comment after
paragraph (b) is amended by removing
the words "§ 122.17(c)" and substituting
^the.,wards,"§ 270.42(c)".
§264.113 [Amended]
35. Section 264.113 is amended by
removing the words "§ 122.17" and
substituting the words "§ 270.42".
§264.118 [Amended]
36. Section 264.118 paragraph (a) is
amended by removing the words
"§ 122.25(a)(13)" and substituting the •
words "! 270.14(b)(13J", and by
removing the words "§ 172,29" and
substituting the words "§ 270.32".
§ 264.272 [Amended]
37. Section 264.272 paragraph (b) is
amended by removing the words to
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Federal Register / Vol. 48. No. 64 / Friday. April 1. 1983 / Fxules and Regulations 1-1293
"5 122.27(c)" and substituting the words
"§ 270.63".
§ 2S4.340 [Amended]
38. Section 264.340 paragraph (c) is
amended by removing the words to
"§ 122.27(bJ" and substituting the words
"§ 270.62".
§ 264.341 [Amended]
39. Section 264.341 paragraph (a) is
amended by removing the words
"§ 122.27(b)" and substituting the words
"§ 270.62", by removing ths words
"§ 122.27(b)(2) and substituting the
words "§ 270.62[b)", and by removing
the words "§ 122.2C[b)[.r.i" and
substituting the words "§ 270.13".
§364.242 [Amended] .
40. Section 264.342 paragraph !b](2) is
amended by removing the words
"§ 122.27[bj" and substituting the words
"§ 270.32".
§264.343 [Amended]
41. Section 264.343 paragraph (d) is
amended bv removing the words
"S 122.15" and substituting the words
"§ 270.41".
§ 264.344 [Amended]
42. Section 264.344 paragraph (a 1(1) is
amended by removing the words
"§ 122.27(b)" and substituting the words
"§ 270.62".
43. Section 264.344 paragraph (b) is
amended by removing the words
"§ 122.25(b)(5]" and substituting the
words "§ 270.19".
44. Section 264.344 paragraph (c}(4) is
amended by removing the ivords
"§ 122.25(b](5)(iii)" and substituting the
words "§ 270.1S(r.)".
PART 265—[AMENDED]
§ 2S5.t [Amended} -
45. Section 26o.l parasruph [b) is
amended by removing the words
"§ 122.22" and substituting the words
"§ 270.10". The comment after
paragraph (b) is amended by removing
the words "Part 122" and substituting
the words "Part 270". The comment after
paragraph (c)(3) is amended by
removing the words "§ 122.45" and
substituting the words "§ 144.14".
46. Section 265.1 paragraph (c)(4) is
amended by removing the words
"Subparts A and B-or Subpart F of Part
123" and substituting tha words
"Subparts A or B of Part 271".
§2C5.12 [Amended]
47. Section 265.12 paragraph (b) is
amended by removing the words "Part
122" and substituting the words "Part
270", and by removing the words
"§ 122.23(c)" and substituting the words
"§ 270.72".
§255.147 [Amended]
40. Section 205.147 paragraphs (dj and
(cj are amended by removing '.he words
"§ 122.15(a){5)" and substituting the
words "§ 270.41".
§265.276 [Amended]
49. Section 265.276 is amended by
removing the words "§ 122.23[c)(3)"
from the comment after paragraph (a")"
and substituting words "§ 122.72(cj''.
[FR Doc. 03-7926 Filed 3-31-03: «•« aT.j
BILLING CODE S560-50-M
-------
Federal Register / Vol. 48. No. 127 / Thursday. June 30. 1963 / Rules and Regulations
30113
Environmental Protection Agency, 401 M
Street. SW., Washington, D.C. 20450.
(202-382-7999).
Dated: June 24,1963.
Lee M. Thomas,
Acting Assistant Administrator for Solid
Waste and Emergency Response.
JFK Doc a-vrtn Filtd »-2»-63; MS «m]
BILUNO CODE «MO-SO-M
40 CFR Parts 124,261,264,265,270
and 271
[SW-FRL 2391-2]
Hazardous Waste Management.-.,. . ,
System: Permit Program;
Reguirements for Authorization of
State Programs; Procedures for
Decisionmaking; Identification and
Listing of Hazardous Waste; Standards
for Owners and Operators of
Hazardous Waste Storage, Treatment,
and Disposal Facilities; Interim Status
Standards for Owners and Operators
of Hazardous Waste Storage,
Treatment, and Disposal Facilities;
Correction
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule; correction.
SUMMARY: On April 1,1983. the
Environmental Protection Agency
published regulations which, in part,
reorganized the presentation of
permitting and state program
requirements of the Hazardous Waste
Management Program under the
Resource Conservation and Recovery
Act (RCRA). (48 FR14146 et seq.) The
April 1 rulemaking was intended to
make the regulations easier to
understand and use by physically
deconsolidating the Agency's
Consolidated Permit Regulations. In
today's action, EPA amends those
regulations to correct minor
typographical errors, incorrect cross-
references and similar technical errors.
This rule makes no substantive changes
to the CRA permitting or state program
requirements and is effective
immediately.
EFFECTIVE DATE: June 30.1983.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline toll-free at (800) 424-9346
or at (202) 382-3000.
SUPPLEMENTARY INFORMATION: On April
1.1983, EPA promulgated final rules to
deconsolidate the Agency's May 19,1980
Consolidated Permit Regulations which
governed five separate permit programs.
The April 1st regulations deconsolidated
the basic permit requirements for
administration of permit programs (40
CFR Part 122); the requirements for
authorization of State programs (40 CFR
Part 123); and EPA procedures for
issuing, modifying, revoking and
reissuing, or terminating permits (40 CFR
Part 124). The provisions in these
regulations addressing the Hazardous
Waste Management (HWM) permit
program and State authorization under
Subtitle C of the Resource Conservation
and Recovery Act (RCRA) were part of
this deconsolidation effort, and the
RCRA requirements formerly found in 40
CFR Parts 122 and 123 are now
separately addressed in new Parts 270
and 271, respectively.-The.permitting—
procedures for all the programs
(including RCRA) are still addressed
together in 40 CFR Part 124.
The preamble to the deconsolidated
permit regulations requested public
comments to aid EPA in correcting
typographical errors, incorrect cross-
references and similar technical errors
(e.g.. the unintentional deletion or
omission of regulatory provisions).
Today's amendments address those
public comments. The amendments also
re-insert regulation changes which were
promulgated after the publication of the
original Consolidated Permit
Regulations (on May 19. 1980) but were
inadvertently omitted in the April 1,
1983 publication. Conforming
amendments are also made to certain
provisions of Parts 261, 264 and 265
which cross-reference the
deconsolidated permit regulations.
Dated: June 24, 1983.
Lee M. Thomas,
Acting Associate Administrator for Solid
Waste and Emergency Reponse.
Parts 270. 271. 124. 261. 264, and 265 of
Title 40 of the Code of Federal
Regulations are amended as follows:
PART 270— {AMENDED]
1. The authority citation for Part 270
reads as follows:
Authority: Sect. 1006. 2002, 3005. 3007 and
7004. Solid Waste Disposal Act, as amended
by the Resource Conservation Act of 1976. as
amended (RCRA] [42 U.S.C. 6905. 6912. 0925.
6927 and 6974].
2. 40 CFR 270.1 is amended by
correcting paragraph (a)(l) to read as
follows:
f270.1 Purpose and scop* of these
(a) Coverage. (1) These permit
regulations establish provisions for the
Hazardous Waste Permit Program under
Subtitle C of the Solid Waste Disposal
Act as amended by the Resource
Conservation and Recovery Act of 1976,
as amended (RCRA). (Pub. L 94-580, as
amended by Pub. L. 95-609 and by Pub.
L. 96-482; 42 U.S.C. 6091 et seq.)- They
apply to EPA and to approved States to
the extent provided in Part 271.
§270.2 [Corrected]
3. The definition of "spill" in § 270.2 is
removed.
4. Section 270.5 is amended by
correcting paragraphs (a)(l)(iii](C),
(a)(2)(v)(C), and (b){2) and removing
paragraph (a)(3) as follows:
§ 270.5 Noncompllance and program
reporting by the Director.
*****
(a) * * •
(!)*••
(iii) * * *
(C) The date(s) and a brief description
of the action(s) taken by the Director to
ensure compliance.
*****
(2) * ' *
(v) * * *
(C) When the Director determines
significant permit non-compliance or
other significant event has occurred
such as a fire or explosion or migration
of fluids into a USDW.
(vi) * • •
0» * * '
(2) In addition to the annual
noncompliance report, the Director shall
prepare a "program report" which
contains information (in a manner and-
form prescribed by the Administrator)
on generators and transporters and the
permit status of regulated facilities. The
Director shall also include, on a biennial
basis, summary information on the
quantities and types of hazardous
wastes generated, transported, treated,
stored and disposed during the
preceding odd-numbered year. This
summary information shall be reported
in a manner and form prescribed by the
. Administrator and shall be reported
according to EPA characteristics and
lists of hazardous wastes at 40 CFR Part
261.
*****
5. Section 270.6 is amended by
revising paragraph (a) to read as
follows:
S 270.6 Reference*.
(a) When used in Part 270 of this
Chapter, the following publications are
incorporated by reference:
"Test Methods for Evaluating Solid
Waste. Physical/Chemical Methods,"
EPA Publication SW-846 (First Edition,
1980, as updated by Revisions A
(August 1980), B (July, 1981), and C
(February, 1982] or (Second Edition,
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Federal Register / Vol. 48. No. 127 / Thursday, June 30. 1983 / Rules and Regulations
30114
19S2). The first edition of SW-646 is no
longer in print Revisions A and B are
available from EPA. Office of Solid
Waste, (WH-565-B). 401 M Street, SW..
Washington. D.C. 20460. Revision C is
available from NTIS. 5235 Port Royal
Road. Springfield, Virginia 22161. The
second edition of SW-846 includes
material from the first edition and
Revisions A, B, and C in a reorganized
format. It is available from the
Superintendent of Documents. U.S.
Government Printing Office,
Washington. D.C. 20402. (202) 783-3238.
on a subscription basis, and future
updates will automatically be mailed to
the subscriber.
§ 270.10 [Corrected]
8. Section 270.10. General Application
Requirements, is corrected by adding
the phrase "and in §§ 270.70-73" after
the phrase "in this section" in the
seventh line of paragraph (a). The first
line of paragraph (e)(3) is amended by
changing the word "Administration" to
read "Administrator". Paragraph (f)(3)
introductory text is amended by
changing the tenth line of the paragraph
•o read "a finally effective RCRA permit.
urior".
. ""'. 14 [Corrected]
' Section 270.14 is corrected by
a-ailing the word "where" after the word
"However" in the eighth line of the
comment in paragraph (b](ll)(iii).
Section 27C.14(b)(17) is amended by
removing the citation "284.147(3]" in the
fifteenth line and substituting the
citation "284.147(c)M. Paragraph (c)(4p)
is amended by adding the phrase "of
Part 261 of this Chapter" after the word
"Appendix VOT in the second line.
Paragraph (c}(8) is amended by adding a
"(b)" to the end of the citation "264.94"
in the twenty-third line in the paragraph.
§270.15 {Corrected]
8. Section 270.15 introductory text is
corrected by removing the citation
"§ 264.1" in the second line and by
substituting the citation { 264.170".
§270.16 [Corrected]
9. Section 270.16 introductory text is
corrected by removing the citation to
"§ 264.1" in the second line and
substituting the citation "§ 264.190."
§ 270.19 [Corrected]
10. Section 270.19 is amended by
removing paragraph (d)(3).
11. Section 270.20 is amended by
redesignating § 270.20(d) (5). (6). (7). and
(8) to read as § 270.20 (e), (f), (g). and (h)
respectively. The section is further
amended by revising the section heading
to read as follows:
§270.20 Specific PartB Information
requirement* for land treatment facilities.
• • • • «
12. Section 270.21 is corrected by
revising the section heading to read as
follows:
§ 270.21 Specific Part B Information
requirements tor landfill*.
• • • • «
13. Section 270.30 is corrected by
revising the last sentence of paragraph
(j)(2) to read as follows:
§270 JO.. Condition* applicable Jo «U- -----
permit*.
(2) * * * The permittee shall maintain
records from all ground-water
monitoring wells and associated ground-
water surface elevations, for the active
life of the facility, and for disposal
facilities for the post-closure care period
as well
§270JO [Corrected]
14. Section 270.30(l)(2)(ii)(B) is
corrected by removing the citation
"(c)(l)" in the third line and substituting
the citation "(lj(2](i)".
15. Section 270.33 is amended by
revising paragraph (a)(3) and
introductory text of paragraph (b) to
read as follows:
§ 270.33 Schedule* of compliance.
(a)
(3) Reporting. The permit shall be
written to require that no later than 14
days following each interim date and
the final date of compliance, the
permittee shall notify the Director in
writing, of its compliance or
noncompliance with the interim or final
requirements.
(b) Alternative schedules of
compliance. An RCRA permit applicant
or permittee may cease conducting
regulated activities (by receiving a
terminal volume of hazardous waste
and. for treatment and storage HWM
facilities, closing pursuant to applicable
requirements; and, for disposal HWM
facilities, closing and conducting post-
closure care pursuant to applicable
requirements) rather than continue to
operate and meet permit requirements
as follows:
• « • • •
16. Section 270.41 is corrected by
revising paragraph (a)(5)(iii) to read as
follows:
§ 270.41 Major modification or revocation-
and reluuance of permit*.
* e • • *
(a) • * '
(5) * * *
. (iii) When the permittee has filed a
request under § 264.147(c) for a variance
to the level of financial responsibility or
when the Director demonstrates under
§ 264.147(d) that an upward adjustment
of the level of financial responsibility is
required.
• • • • •
17. Section 270.61 is corrected by
revising paragraph (a) to read as
follows:
§ 270.61 Emergency permit*.
(a) Notwithstanding any other
provision of this Part or Part 124, in the
event the Director finds an imminent
and substantial endangerment to human
health or the environment the Director
may issue a temporary emergency
permit: (1) To a non-permitted facility to
allow treatment storage, or disposal of
hazardous waste or (2) to a permitted
facility to allow treatment storage, or
disposal of a hazardous wa**f. not
covered by an effective periau.
§270.64 [Corrected]
18. Section 270.64 is corrected by
removing the words "(see $ 144.7)" and
substituting the words "(see $ 144.6)" in
the third line.
PART 271—{AMENDED]
19. The authority citation for Part 271
reads as follows:
Authority: Section* 1006. 2O02(a) and 3006
of the Solid Watte Disposal Act. as amended
by the Resource Conservation and Recovery
Act of 1976, a* amended (RCRA) (42 U.S.C.
6905.6912(a). and 6926).
§271.4 [Corrected]
20. Section 271.4 introductory text is
corrected by adding an "s" to the word
"provision" in the fifth line. This section
is further amended by adding the words
"or to" after the phrase "hazardous
wastes from" in the fifth line of
paragraph (a).
21. Sections 271.10 is corrected by
revising the "Note" in paragraph (e) to
read as follows:
§ 271.10 Requirement* for generator* of
hazardou* waste.
(e)* * •
Note.—Such notices shall be mailed to
Hazardous Waste Export. Office of
International Activities (A-106). U.S.
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Federal Register / Vol. 48, No. 127 / Thursday, June 30, 1983 / Rules and Regulations 30115
Environmental Protection Agency,
Washington D.C. 20460.
§ 271.14 [Corrected]
22. Section 271.14 is corrected by
removing the words "and (f)" in
§ 271.14(u) and removing the citation
"(c)" in ! 271.14(v).
§271.20 [Corrected]
23. Section 271.20(c) is corrected by
removing the citation "§ 271.3" and
substituting the citation "§ 271.5" in the
fourth line.
§ 271.121 [Corrected]
24. Section 271.121(b) is corrected by
adding the word "First" between the*"
words 'The" and "phase" in the third
line and is further amended by removing
the words "(40 CFR Part 26)" and
substituting the words "(40 CFR Part
261]" in the ninth line.
§ 271.126 [Corrected]
25. Section 271.126(a) is corrected by
removing the "s" from the word
"Administrators" in the seventeenth line
of the paragraph.
PART 124—{AMENDED]
26. The authority citation for Part 124
reads as follows:
Authority: Resource Conservation and
Recovery Act 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act. 42 U.S.C 300(f] et seq.:
Clean Water Act. 33 U.S.C. 1251 et seq.: and
Clean Air Act 42 U.S.C. 1857 et seq.
27. In Part 124, the section number
designation to the section entitled
"Definitions" is corrected.to read as
follows:
$ 124.2 Definitions.
• • * * *
28. Section 124.10 is amended by
removing the words "given" and
"sections" and substituting the words
"give" and "actions" in the first and
second lines of paragraph (a)(l),
respectively. Section 124.10 is further
corrected by adding § 124.10(c)(l)(ix),
re-numbering S 124.lO(c)(2) as
§ 124.10(c)(2)(i), and adding
§ 124.10(c)(2)(ii) as follows:
§ 124.10 Public notice of permit actions
and public comment period.
• • • • *
(c) • ' *
(I)'*'
• • • • *
(ix)(A) To any unit of local
government having jurisdiction over the
area where the facility is proposed to be
located; and (B) To each State agency
having any authority under State law
with respect to the construction or
operation of such facility.
• • * • •
(2)(i) For major permits and NPDES
and 404 general permits, publication of a
notice in a daily or weekly newspaper
within the area affected by the facility
or activity; and for EPA-issued NPDES •
general permits, in the Federal Register;
Note.—The Director is encouraged to
provide as much notice as possible of the
NPDES of 404 draft general permit to the
facilities or activities to be covered by the
general permit
(ii) for all RCRA permits, publication
of a notice in a daily or weekly major
local newspaper of general circulation
and broadcast over local radio stations.'
PART 261—{AMENDED]
29. The authority citation for Part 261
reads as follows:
Authority: Sees. 1006,2002(a), 3001 and
3002 of the Solid Waste Disposal Act as
amended by the Resouce Recovery Act of
1976. as amended (42 U.S.C. 6905. 6912(a),
6921, and 6922).
§261.4 [Corrected]
30. Section 261.4(d) is amended by
removing the words "Parts 262 through
267 or Part 122 or Part 124" and
substituting the words "Parts 262
through 267 or Part 270 or Part 124" in
the ninth line.
PART 264—[AMENDED]
31. The authority citation for Part 264 „
reads as follows:
Authority: Sees. 1006.2002(a), 3004 and
3005 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1976. as amended (42 U.S.C.
6905.6912(a). 6924. and 6925). .
$264.18 [Corrected]
32. The "Comment" following
S 264.1B(b)(2)(iii) is amended by
removing the citation "5 122.12" and
substituting the citation "S 270.3".
J264.53 [Corrected]
33. The "Comment" following
S 264.53(b] is amended by removing the
words "Part 122. Subparts A and B" and
substituting the words "Part 270".
§264.147 [Corrected]
34. Section 264.147(c) is amended by
removing the citation "S 122-25" and
substituting the citation "S 270.14" in the
fifteenth line. Sections 264.147 (c) and
(d) are amended by removing the words
"under §§ 122.15(a)(7)(iuT and
substituting the words "under
§§270.41(a)(5)" in the next to last line of
those paragraphs.
§264.341 [Corrected]
35. Section 264.341(a) is amended by
removing the citations "§ 122.27(b)(2)"
and "§ 122.27(b)(3)" and substituting the
citations "§ 270.62(b)" and "§ 270.62(c)"
in the seventh and eleventh lines,
respectively.
PART 265—[AMENDED]
36. The authority citation for Part 265
reads as follows:
Authority: Sees. 1000. 2002(a), 3004, and
3005 of the Solid Waste Disposal Act. as
amended (42 U.S.C. 6905. 6908, 6912(a), 6924.
and 6925).
§265.147 [Corrected]
37. Sections 265.147 (c] and (d)
amended by removing the citation
"§§ 122.15(A)(7)(iii)" and substituting
the citation "s 270.41(a)(5)" in the thirty-
third and fortieth lines of those
paragraphs, respectively. " "
§265.430 [Corrected]
38. Section 265.430(b] is amended by
removing the citations "§§ 122.32(a)"
and "§ 122.32(d)" and substituting the
citations "§ 144.6(a)" and "5 144.6(d)".
respectively.
P* Doc. B-17MC Tiled S-2S-U: fc4o ami
BILLING CODE SSM-5O-M
40 CFR Part 425
[WH-FRL-2390-8]
Leather Tanning and Finishing
Industry Point Source Category
Effluent Limitations Guidelines,
Prestreatrnent Standards, and New
Source Performance Standards
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Correction of final rule; notice
of availability and technical
amendment
SUMMARY: EPA is correcting errors that
appeared in the limitations and
standards for the leather tanning and
finishing industry point source category
that appeared in the Federal Register on
November 23.1982 (47 FR 52848). EPA
also is announcing the supporting
technical and economic documents
through the National Technical
Information Service (NTIS). Finally, EPA
is announcing a technical amendment of
the applicability date for the sulfide
pretreatment standard.
FOR FURTHER INFORMATION CONTACT:
Donald F. Anderson, Effluent Guidelines
Division (WH-552), Environmental
Protection Agency, 401M Street. SW.,
-------
28118 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 124,144,146, and 148
[FRL-3382-7]
Underground Injection Control
Program: Hazardous Waste Disposal
Injection Restrictions; Amendments to
Technical Requirements for Class I
Hazardous Waste Injection Wells; and
Additional Monitoring Requirements
Applicable to all Class I Wells
AGENCY: Environmental Protection
Agency.
ACTION: Final Rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today promulgating its •
approach to implementing the statutorily
mandated prohibitions en the
underground injection of hazardous
waste. This action is being taken in
response to amendments to the
Resource Conservation And Recovery
Act (RCRA) enacted through the
Hazardous and Solid Waste
Amendments of 1934 (HSWA). In
addition, the Agency is promulgating
amendments to the existing
Underground Injection Control (UIC)
Regulations as they pertain to hazardous
waste injection.
Today's notice codifies at 40 CFR Part
148. for those hazardous wastes that are
disposed in Class I hazardous waste
injection wells, the directly applicable
sections of Part 268. the Agency's
regulatory framework for implementing
the land disposal restrictions (51FR
40572 et seq. November 7,1986).
Part 148 also specifies the effective
date of the restrictions on injection of
specific hazardous wastes. Today's rule
includes effective dates for the
restrictions on injection of solvent
wastes and of dioxin-containing wastes.
A recent proposal has specified effective
dates for "California list" wastes (as
defined by section 3004{d) of RCRA and
at 52 FR 25760. July 8.1987) and for
certain wastes prohibited under section
3004(g) of RCRA (53 FR 14892 et seq..
April 26.1988). Further proposals will
specify effective dates for the remaining
section 3004(g) wastes. Finally. Part 148
defines the two circumstances under
which a waste otherwise prohibited
from injection may be injected: (1) when
the waste has been treated in
accordance with the requirements of
Part 268 pursuant to section 3004(m) of
RCRA: or (2) when an applicant has
demonstrated to the satisfaction of the
Administrator that there will be no
migration of hazardous constituents
from the injection zone for as long as the
wastes remain hazardous. Under this
rule, an applicant may submit a petition
to the Administrator containing the
demonstration. An applicant may make
a demonstration of "no migration"
based on either. (1) an absence of fluid
movement out of the injection zone: or
(2) an active process of waste reduction,
transformation, or immobilization within
the injection zone. Upon a successful '•
demonstration, the applicant will be
granted an exemption from the
prohibition.
Today's promulgation also contains
changes to 40 CFR Parts 124.144 and
14G. the Class I injection well
regulations. These amendments apply to
owners and operators of all Class 1
hazardous vaste well, including: those
injecting wastes not yet subject to a
prohibition; those infecting wastes
which meet the treatment standards
promulgated pursuant to § 3004(n) of
RCRA. and those whose wastes have
been banned and who have received an
exemption under Part 143. The changes
to § 124.10 and § 146.13 pertain to all
owners and operators of Class I wells.
DATES: New Part 148. is effective July 26.
1988. All other amendments are effective
August 25.1988.
ADDRESSES: The official record for this
rulemaking is located in Room 1013C
East Tower. Office of Drinking Water
(WH-550), U.S. Environmental
Protection Agency. 401M Street SVV..
Washington. DC 20460. and is available
for viewing from 9:30 a.m. to 3:30 p.m.,
Monday through Friday, excluding legal
holidays. The public must make an
appointment to review docket materials
by calling Eric Callisto at (202) 382-5508
for appointments.
FOR FURTHER INFORMATION CONTACT: .
John Atcheson. Office of Drinking Water
(WH-550). U.S. Environmental
Protection Agency. 401M Street SW.,
Washington. DC 20460. (202) 382-5508.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Background
A. Statutory Authority
1. Section 3004(i)
2. Section 3004(g)
B. Summary of the Land Disposal Restrictions
Framework
C. Effect on State UIC Primacy
//. Summary of Today's Rulemaking:
Response to Comments: Part 148
A. Proposed Standard for Demonstrating
Protection of Human Health and the
Environment
1. Alternative Procedures for implementing
$i 3004(1) and (g)
2. Generic Petition Demonstrations
3. Scope of the "No Migration" Petition
Demonstrations
4. Statutory and Regulatory Definition of
Injection Zone
5 Hazardous Levels at the Unit Boundary
B. Applicability—§ 148.1
C. Definitions—§ 148.2
D. Dilution Prohibition—§ 148.3
E. Case-lw-Case Extensions—§ 148.4
F. Waste Specific Prohibitions—§§ 148.10 and
148.11
1. F001 through F005 Solvent Wastes
2. Dioxms
3. Olher Proposed Prohibitions
G. Petition Standards—i 148.20
1. Basing Determinations on 10.000 Years
2. Molecular Diffusion
3. Use of Models
4. Ur.eofa Safely Factor
5. Required Compliance with Certain Part
14(5 Standards
ii. Permit Modification
b. Timing of Mer.hann.al Int»>2ri!.y " ;•: is
c. Requiring Compliance witri ot!is:r Pail
140 Standards
H. lnforrr..ilion to be Submitted in Support of
Petiuons—5 14S.21
I. Procedures for Petition Submission.
Review, and Approval or Daniel—
§ 1-48.22
J. Review and Termination of Exemptions—
§1148.23 and 148.24
///. Summary of Today's Rulemnkir.fi:
Response to Comments; Port 1-16. Subpart C
A. General Comments on Part 146
1. Stringency of the Regulations
2. Application of Part K6 to § 3004(b)(l)
B. Applicability—! 146.61
C. Siting Requirements—§ 146.62
1. Need for Additional Siting Requirements
2. Consideration of Seismicity in Local
Geology
3. Geologic Criteria
4. Standards Applicable to the injection
and Confining Zone
5. Additional Safeguards
D. Area of Review—§ 146.63
1. Increase in the Size of the Area of
Review
2. Calculation of the Area of Review
E. Corrective Action for Wells in the Area of
Review—5146.64
1. Application of the Area of Review
2. Abandoned Well Protocol
F. Construction Requirements—§ 140.65
1. General Construction Concerns
2. Well Materials and Compatibility
Requirements
3. Casing and Cementing
4. Mechanical Packers and Fluid Seals
G. Logging. Sampling, and Testing—5146.66
1. Curing
2. Data Collecting Requirements
3. Logging Tool Concerns
4. Witnessing of Logging and Testing
Procedures
H. Operating Requirements—§ 146.67
1. Annulus Pressure Requirements
2. Continuous Recording and Alarm
Requirements
3. Fault and Fracture Propagation
I. Testing and Monitoring Requirements—
§ 146.68
1. Waste Analysis Plan
2. Hydrogeologic Compatibility
3. Compatibility with Well Materials
4. Mechanical Integrity Testing
5. Ambient Monitoring
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Federal Register / Vol. 53. No. 143 / Tuesday. July 25. 1988 / Rules and Regulations 28139
6. Seismic Monitoring
] Reporting Requirements—114S.fifl
1. Injsctivity Index
2. Shutdown Requirements
3. Annular Fluid Loss or Gain
K. Information to be Evaluated by the
Director—§ 146.70
1. Confining Zone Penetrations
2. Regional Seismicity
3. Waste Stream Analysis
L. Closure—5 146.71
1. Pressure Decay Data
2. Cementing and MIT Requirements
3. Authority to Temporarily Cease Injection
4. "Closure"
M. Post-Closure Care and Financial
Responsibility for Post-Closure Care—
11146.72 and 146.73
1. Post-Closure Care
Z. Financial Responsibility
IV. Summary of Today's Rulemuking:
Response to Comments: Section 146.13.
Ambient Monitoring for All Class I Wells
V. Summary of Today's Rulemaking:
Response to Comments; Amendments to
Parts 124 and 144
A, Part 124
B. Part 144
VI. Regulatory Requirements
A. Regulatory Impact Analysis
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
D. Administrative Procedures Act
VII. References
A. Reference List for Part 148
B. Reference List for Part 146
List of Subjects
I. Background
A. Statutory Authority
The Hazardous and Solid Waste
Amendments of 1984 (HSWA). enacted
on November 8,1984. impose substantial
new responsibilities on those who
handle hazardous waste.
The amendments prohibit the
continued land disposal of untreated
hazardous waste beyond specified
dates, unless the Administrator
determines that the prohibition is not
required in order to protect human
health and the environment for as long
as the wastes remain hazardous (RCRA
sections 3004 (d)(l). (eKD. (f)(2). (g)(5)).
Congress established a separate
schedule in section 3G04(f) for making
determinations regarding the disposal of
dioxins and solvents and the list of
wastes specified in section 3004(d)(2).
termed the California list, in injection
wells.
Wastes that meet the treatment
standards set by EPA under section
3004(m) of RCRA are no longer
prohibited and may be land disposed.
The statute requires EPA to set "levels
or methods of treatment if any, which
substantially diminish the toxicity of the
waste or substantially reduce the
likelihood of migration cf hazardous
constituents from the waste so that
short-term and long-term threats to
human health and the environment are
minimized" (RCRA section 3004(rr,)(l)).
Land disposal prohibitions are
effective immediately upon
promulgation unless the Agency sets
another effective date based on the
earliest date that adequate alternative
treatment, recovery, or disposal
capacity which is protective of human
health and the environment will be
available (RCRA sections 3004(h) (1)
and (2)). However, these effective date
variances may not exceed 2 years
beyond the otherwise applicable
effective date. In addition, two 1-year
case-by-caso extensions o/.the'eKetitive
date may be granted under certain
circumstances (RCRA section
3004(h)(3)).
For the purposes of the land disposal
restrictions program, the statute
specifically defines land disposal to
include, but not be limited to, any
placement of hazardous waste in a
landfill, surface impoundment waste
pile, injection well, land treatment
facility, salt dome or salt bed formation,
or underground mine or cave (RCRA
section 3004(k)). The legislation also sets
forth a series of deadlines for Agency
action. For a full explanation of the
statutory framework the reader is
referred to the preamble for the
regulations that EPA has already
proposed or promulgated under the
statute, particularly 51FR1602 et sec-
January 14.1986; 51 FR 19300 et seq..
May 28,1986:51 FR 40572 et seq..
November 7.1986; 51 FR 44714. et seq..
December 11.1986; 52 FR 21010 et seq*
June 4,1987:52 FR 22356 et seq., June 11,
1987; 52 FR 25760 et sea.. July 8.1987; 52
FR 32446 et seq.. August 27.1987: 53 FR
11742 et seq.. April 8.1988:53 FR 14892
et seq.. April 26.1988; and 53 FR 17578 et
seq.. May 17.1988. The following
discussion describes more specifically
the statutory framework for injection
wells.
1. Section 3004(f)
Section 3004(f)( addresses the
disposal by injection of solvents.
dioxins. and California list wastes.
Specifically, this section requires the
Administrator to promulgate rules
prohibiting the disposal of.such wastes
into wells if it may "reasonably be
determined that such disposal may no;
be protective of human health and the
environment for as long as the waste
remain hazardous * * * ". If EPA does
not determine those instances where
disposal would meet this standard, the
injection of these wastes is prohibited
under section 3004(0(3).
2. S""tion 3004(g)
•.on 30C4(g) of RCRA applies the ""
s; >andards and procedures to all
m ,s of land disposal. It requires the
Ai y to set a schedu'e for making
lai Jisposal restriction decisions for all
hazardous wastes listed or identified in
40'CFR Part 261 under RCRA section
3001(c) as of November 8,1984, other
than the wastes referred to in sections
3004 (d) and (e). EPA submitted this
schedule to Congress on May 23,1986
(51 FR 19300 et seq.].
Section 3004(g](5) provides that the
regulation promulgated by the
Administrator must prohibit methods of
land disposal except for methods
"which the Administrator determines
will be protective of human health and
the environment for as long as the waste
remains hazardous * * * ".
Further, the section provides that. .
except for wastes which comply with
the standards promulgated pursuant to
section 3004(m). a method of land
disposal may not be determined to be
protective of human health and the
environment "unless, upon application
by an interested person, it has been
demonstrated to the Administrator, to a
reasonable degree of certainty, that
there will be no migration of hazardous
constituents from the disposal unit or
injection zone for as long as the wastes
remain hazardous."
RCRA section 3004(g)(6) provides that
if EPA fails to take action under section
3004(g)(5) by the statutory deadlines for
any hazardous waste according to the
schedule, such hazardous waste may be
disposed of in landfills or surface
impoundments only if such disposal
units are in compliance with the
minimum technological requirements set
forth in RCRA section 3004(o] for new
facilities. In this situation, placement of
such wastes in other types of land
disposal units (e.g.. deep injection wells)
would not be precluded by section
3004(g)f6). See 130. Cong. Rec. S9192
(daily ed.. July 25.1984). If EPA fails to
set treatment standards, grant a petition
or grant a variance under section 3004(h)
for any of the scheduled listed wastes
by May 8.1990. then the particular
wastes involved will be prohibited from
land disposal.
The land disposal prohibitions apply
to ail hazardous wastes identified or
listed under RCRA section 3001 as of
November U1984. the date of enactment
of HSWA. For any hazardous waste
identified or listed under RCRA section
3001 after November 8.1984. EPA is
required to make land disposal
restriction determinations (i.e.. establish
treatment standards) within 6 months of
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28120 Federal Register / Vol. 53. No. 143 / Tuesday. }uly 26. 1988 / Rules and Regulations
the date of identification or listing
(RCRA section 3004(g)(4)). However, the
statute does not impose an automatic
prohibition on land disposal if EPA
misses a deadline for any newly listed
or identified waste.
B. Summary of the Land Disposal
Restrictions Framework
The Agency has promulgated in 40
CFR Part 268 the regulatory framework
for implementing the land disposal
restrictions. (51FR 40572 etseq., Nov. 7,
1986). Corrections to the November 7,
1986, final rule were included in a June
4.1987. Federal Register notice (52 FR
21010) to clarify the Agency's approach
to regulating restricted wastes. Some
changes to the framework were also
made in the July 8,1987, rulemaking on
the California list wastes (52 FR'25760).
Part 148 codifies the sections of Part 268
that are directly applicable to injection
wells. In addition, today's rule specifies
effective dates for restrictions on certain
injected hazardous wastes. Part 148 also
provides the standard and procedures
by which petitions to dispose of an
otherwise prohibited waste by injection
will be reviewed and exemptions
pursuant to these petitions will be
granted or denied.
Part 148 is similar in approach to Part
268. The Agency believes, however, that
it is useful to the regulated community
and to the State regulators to have
requirements regarding injection wells
located in the same portion of the Code
of Federal Regulations as are other
requirements pertaining to these wells.
Hazardous waste injection wells are
regulated under the authority of both the
Safe Drinking Water Act (SDWA) and
RCRA. These regulations have been
codified along with other regulations
under the SDWA in Parts 124.144,145,
146 and 147 of the Code of Federal
Regulations.
We expect that eventually the Part
148 standards will be implemented by
the same State agencies that currently
have primacy for the U1C program.
The framework which the Agency has
promulgated to implement the land
disposal restrictions for surface disposal
facilities is as follows: For each waste
that the Agency prohibits from land
disposal, the Agency intends to
promulgate treatment standards under
Part 266, Subpart D that meet the
requirements of section 3004(m) of
RCRA. Once the standards are effective,
restricted wastes may be land disposed
of in a RCRA Subtitle C facility (e.g., a
UIC Class I hazardous waste well) if
they meet the treatment standard.
Upon the effective dates of the
prohibitions, wastes that do not comply
with the applicable treatment standards.
or are nol subject to a national capacity
variance, or that do not have a case-by-
case extension under § 268.5 are
prohibited from placement in land
disposal units unless an exemption has
been granted by the Administrator
under § 268.6 pursuant to a petition
demonstrating that such disposal units
will not allow migration of hazardous .,
constituents for as long as the wastes
remain hazardous.
For injection wells, EPA has adopted
the same treatment standards that have
been promulgated in Part 268 Subpart D
for injected wastes, as provided in Part
148 Subpart B. After the effective date of
a prohibition in Part 148 Subpart B,
untreated wastes can only be injected if
an exemption has been granted by the
AdmLnistrator.pursuanUta a.petkion- •
under Part 148 Subpart C, or, on a case-
by-case basis, an extension to the
effective date has been granted
according to the procedures outlined in
§ 268.5. An extension may not exceed
one year, and the Administrator may not
renew it more than once.
C. Effect on Slate UIC Primacy
The requirements being promulgated
today could affect the status of States
with primary enforcement authority for
the UIC program. Specifically, a State
will have to amend its program to
conform with the new regulations at
Parts 124,144. and 146 by April 24.1989
(section 1422(b)(l) of the SDWA). Of
course, a State which now prohibits
Class I wells in general or injection of
hazardous waste would not be required
to make such a demonstration, since
such a program would be more stringent
than either existing or new UIC
requirements.
The Agency notes that the new
requirements will remove the existing
"shield" for hazardous waste well
permits. That is. under the previous
regulations, permits could not be
modified, revoked, or reissued to require
compliance with new regulations unless
the permittee requested or agreed.
Under today's amendment to Part 144.
new regulations would be grounds for
initiating permit modification. These
changes to Parts 124 and 144—unlike the
effect of the land disposal restrictions
which are immediately effective—will
not take effect in primacy states until
EPA approves the modification of the
State program.
The Agency expects that part of a
State's demonstration that its program
conforms with the amended regulations
would be an amendment to the
Memorandum of Agreement where the
state would agree on a schedule to
modify existing permits, if necessary-, to
incorporate the new regulations.
States need not seek authorization to
administer Part 148 to maintain,UIC
primacy. However, the Agency also
expects that State agencies which have
primacy for the UIC program will wish
to implement Part 148, and receive
authorization to grant exemptions from
land disposal restrictions. However.
before such authorization can be
granted the State would have to
demonstrate that it has authorization to
implement §§3004 (f), (g), and (h) of
RCRA. A thorough discussion of the
conditions under which such
authorization can take place can be
found in 50 FR 2C728 et sea.. July 15.
1985. In addition, where jurisdiction for
UIC and RCRA do not reside in the
same State Agency, EPA will require a
Memorandum of Understanding
between the two entities, clearly
outlining responsibility for granting
exemptions.
II. Summary of Today's Rulemaking:_
Response to Comments: Part 148
A. Proposed Standard for Demonstrating
Protection of Human Health and the
Environment
As noted in the proposal, sections
3004 (f) and (g) both require a
demonstration that injection is
protective of human health and the
environment. Under section 3004(g) it is
clear that such a demonstration must
include a showing of "no migration" of
hazardous constituents from the
injection zone for as long as the wastes
remains hazardous. EPA believes that
the "no migration" standard of section
3004(g) helps define what is protective
of human health and the environment
under section 3004(f). Section 3004(g). by
its terms, restricts the injection of
certain hazardous wastes into injection
wells. In the proposal. EPA noted that
the wastes covered under section 3004(f)
are just as hazardous to human health
and the environment as those under
section 3004(g). and concluded that
injection of either set of wastes should
be subject to the same standard. Thus.
the Agency proposed that the
demonstration should be similar for all
injection wells regardless of the type of
injected waste and that the "no
migration" standard should apply to all.
For this reason, the Agency is using a
petition process and standard that is the
same for all prohibited hazardous
wastes that are injected, whether they
fall under subsection (f) or (g). '
Several commenters supported this
interpretation of the law. Other
commenters stated that the "application
and demonstration" clause of sections
3004 (d)(l) and (g)(5) of RCRA would not
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Federal Register /tVol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 28121
necessarily require procedures as
rigorous or time consuming as EPA's
proposed petition process. Moreover,
these latter commenters point out that
section 3004(0 simply does not contain
the application and demonstration
clause and could, therefore, differ in
procedural approach.
1. Alternative Procedures for
Implementing Sections 3004 (f) and (g)
Several commenters suggested an
alternative approach whereby the
Agency could make a determination that
injection of wastes in accordance with
the substantive standards of § 148.20
will be protective of human health and
the environment. The Agency could then
promulgate rules prohibiting injection— • -
which is not in compliance with these
standards. Such action, the commenters
maintained, would satisfy the Agency's
mandate under sections 3004 (f) and (g).
EPA believes that RCRA provides
significant latitude in the procedural
approaches to determinations under
sections 3004(d), (e), (f). and (g) of
RCRA. Under any of these approaches
EPA would need to support
determinations under section 3004(g)[5)
that there is "no migration of hazardous
constituents while the waste remains
hazardous" with sufficient technical
basis, whether part or all of that basis is
generic to the practice of hazardous
waste injection. Under section 3004(f),
EPA would need to support the finding
that hazardous waste injection is
"protective of human health and the
environment". As a matter of policy, and
not statutory mandate. EPA is
approaching the standards for injection
wells under sections 3004 (f) and (g)
identically and is choosing the petition
process in this final rule to make
appropriate findings under both
sections. The suggested alternatives
which rely on more generic findings that
the method of underground injection
meets the standard along with facility
certifications would not be as reliable as
determinations based on site-specific
demonstrations. To the extent that
geology varies areally. the difficulty of
modeling and characterizing the geology
increases: the degree of uncertainty
associated with a demonstration
increases also.
2. Generic Petition Demonstrations
In the proposal, the Agency requested
comment on a number of alternate
approaches for satisfying the
requirements of section 3004(f) of RCRA.
These approaches were proposed in
light of the Agency's ability to process
"no migration" petitions in the period
between promulgation of this regulation
and the "hard hammer" deadline of
August 8,1988, for § 3004(f) wastes. One
proposed approach was the submittal of
generic petitions. Under this scenario.
operators injecting the same waste into
a single formation could submit one
petition seeking an exemption from the
ban. provided that the sites shared
similar regional and basic site-specific
geologies. Similarly, it was proposed
that a single State could petition for a
waiver from the ban for injection
facilities within that State. These
approaches received extensive
comment, both pro and con.
Commenters who disagreed with these
approaches did so on the basis of what
they perceived as petitioners' inability
to submit information on geologies and
-waste streams that-wottH'be-gBneral**
enough to describe more than one
facility, yet specific enough to insure "no
migration" at every site.
The Agency understands this position,
and realizes that successful petitions of
this nature will be difficult to develop.
This option is certainly within the legal
parameters of a RCRA "no migration"
demonstration, however, and as such, it
will be a permissible petitioning
alternative for the regulated community.
The Agency has no intention of lowering
the standards being promulgated today
in allowing the use of generic petitions.
Such petitions will have to adequately
meet all of the regulatory requirements
of Part 148 that insure protection of
human health and the environment.
3. Scope of the "No Migration" Petition
Demonstrations
Several commenters contended that
exemptions granted pursuant to a "no -
migration" demonstration were intended
by Congress to be limited in number.
They inferred from the Agency's
proposal that a sizable portion of the
injection facilities might pass the
demonstration and stated that this
somehow violated the statute.
The Agency would like to note that
until petitions are received and
processed. EPA has no clear idea of the
number of demonstrations which might
be successful. Some very preliminary
worst-case modeling performed by EPA
did indicate that the demonstration was
achievable by some. The Agency
believes that Congress was setting a
very stringent performance standard,
not creating an arbitrary quota.
Moreover, there is evidence that
Congress recognized that some UIC
wells could meet this standard (see S.
Rept. 284 98th Cong. 1st Sess. at 14 and
Cong. Record S. 9153. July 25.1984). The
exact number or percent of petitions
which are deemed successful must be
determined by whether facilities have
the hydrogeologic or geochemical
characteristics capable of meeting the
standard, not on some predetermined
number of sites which ought to-be
allowed to meet the standard.
4. Statutory and Regulatory Definition of
Injection Zone
•. Several commenters sought to limit
the statutory and regulatory term
"injection zone" in a manner which, in
EPA's view, (1) is not mandated by
RCRA or the SDWA. (2) is not
consistent with current regulations, (3) is
irrational for the purposes of RCRA
sections 3004 (f) and (g), and (4) would
provide no benefits to environmental
protection. At the heart of their
argument is the concept that an injection
zone may not contain confining
material. Fluid penetration into such
material, they would argue, is
necessarily migration from an injection
zone. EPA rejects these arguments.
The term injection zone under RCRA -
sections 3004 (f) and (g) and in the UIC
program must have a functional meaning
as the unit which must contain the
waste. Containment can only occur
within the relatively less permeable
confining material. The legislative
history of the 1984 HSWA amendments
states that "[i)n determining appropriate
confinement from which migration shall
not be allowed to occur the terms
disposal unit or injection zone should be
construed... in terms of overall
integrity of the disposal practice.
keeping in mind, in particular the
potential for contamination of
groundwater or surface water
resources" (S. Rept 284 98th Cong. 1st
Sess. at 15). Essentially, the UIC
program permits the use of certain
geologic formations or parts of
formations in the inaccessible
subterranean environment for waste
disposal so long as this disposal is
sufficiently removed from groundwater
or surface water resources. There is no
provision in the legislative history or
RCRA sections 3004 (!) and (g) which
states or implies that confining material
is a resource which must not be used for
disposal or cannot be part of an
injection zone.
The legislative history of the 1984
HSWA amendments further indicates
that the statutory term "injection zone"
should match the regulatory definition in
40 CFR 146.3. That provision defines an
injection zone as "a geologic formation.
group of formations, or part of a
formation receiving fluids through a
well". Clearly under this definition
permit writers must use their expertise
and knowledge of local hydrogeology to
determine the size and characteristics of
injection zones. The current regulations
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28122 Federal Register / Vol. 53. No. 143 / Tuesday, July 26, 1908 / Rules and Regulations
plaqe other limitations on permit
writers' discretion. First, under 40 CFR
144.3 and 146.3, hazardous waste
injection must only take place below the
lowermost formation containing within
one-quarter mile of a well bore an
Underground Source of Drinking Water
(USDW). There must also be a confining
zone which is "capable of limiting fluid
movement above an injection zone" (40
CFR 146.3). The function of a confining
zone is to oppose the upward pressures
of injection and prevent fracturing of the
geologic system. Nothing in this
definition, however, states that an
injection zone may not contain confining
material or even that a confining zone
may not include part of an injection
zone. Only the functional ability to
oppose upward migration is necessary.
Apparently, these commentors believe
that there is always a discrete boundary
where permeable material meets
impermeable material and injection fluid
would seemingly bounce cff this barrier.
with no penetration of the impermeable
material. However, this notion does not
conform with physical reality. First
within a formation or group of
formations, there is often not a line
where a large permeable strata meets
relatively less permeable strata.
Geologic formations, such as the ones
encountered in the Gulf Coast Basin, for
example, are often several hundred feet
thick (Refs. 1. 2, and 3). Over such
thickness, variations in lithology such as
the intcrfingering of sands and shales
often occur. Accompanying the
lithological changes are variations in
permeability, porosity, and hydraulic
conductivities (Refs. 4, 5, and" 6). Second,
confining material might not actually
repel fluids; they oppose upward
movement, and where adequate, stop it.
Thus, some amount of penetration into
confining material within the injection
zone can occur, but should not be
considered migration for the purposes of
RCRA sections 3004 (f) and (g). provided
the penetration occurs within the
injection zone.
Prior to the 1084 HSVVA amendments.
penr.it writers did not fully consider the
extent of fluid penetration of confining
material since that penetration was
always well below the formation
containing a USDW. The Agency's
proposal made clear that the injection
zone itself must be appropriate to
contain hazardous fluids. These
commenters' statement that this
approach is unlawful is not well
founded. Moreover these commenters
offer no credible alternative.
Accordingly. EPA maintains in this final
rule the interpretation outlined in the
proposal.
5. Hazardous Levels at the Unit
Boundary
In the proposal, a petition under
RCRA §§3004 (f) and (g) would satisfy
the statutory standard if it showed that
before injected fluid crossed the top of
an injection zone or a point of discharge, _
the fluid was no longer hazardous. In its
proposal. EPA suggested using health-
based limits which have undergone peer
review by the Agency and are used in
RCRA delisting decisions and for clean
closure demonstrations. In the absence
of such standards. EPA proposed that
the Agency require petitioners to
demonstrate that concentrations had
been reduced to three orders of
magnitude below.detection-levels
Although commenters generally
expressed support for the use of health-
based values to define hazardous levels.
some objected to any use of health-
based levels. These commenters believe
that the statutory phrase in RCRA
sections 3004 (e). (d). and (g) that there
be "no migration of hazardous
constituents while the waste remains
hazardous" means that EPA may not
allow a single molecule of a constituent
listed in 40 CFR Part 261 Appendix VIII
to leave an injection zone. The Agency
specifically interprets the statutory
phrase as requiring consideration of the
fate of Appendix VIII constituents which
are either injected or derived from
injected waste.
EPA, however, believes that Congress.
in the use of the term "hazardous" and
the phrase "while the waste remains
hazardous", was concerned that injected
fluid which leaves the injection zone not
be hazardous and thereby not contain
Appendix VIII constituents at hazardous
levels.
This interpretation is consistent with
the language in the 1984 amendments
which expressly direct the Agency to
"tak[e] into account" the "persistence.
toxicity. mobility, and propensity to
bioaccumulate of. . ." hazardous
wastes and their hazardous constituents
in making determination with respect to
deep well injections. See RCRA sections
3004 (f)(2), (g)(5). and (d)(l)(C). To take
toxicity and propensity to
bioaccumulate into account the Agency
must necessarily Consider concentration
levels. This interpretation is further
consistent with the Senate Report which
states that the "no migration of
hazardous constituents. . ." for as long
as the wastes remain hazardous
standard can be satisfied if the
Administrator finds "that migration of
the wastes will not occur while the
wastes still retain their hazardous
characteristics in such a way that (sic]
would present any threat to human
health and the environment." (S. Rep.
No. 98-204 at 15.)
The emphasis on concentration levels.
as opposed to single molecules, is
deeply established in EPA's regulations.
Ordinarily the term "hazardous
constituents" has no regulatory effect
unless concentrations are also
considered. Thus, the use of the term
"hazardous constituents" under EPA's
interpretation of RCRA sections 3004
(d). (e). and (g) is consistent with EPA's
rules and policies for listing and
delisting hazardous waste as well as
cleanup standards. The listing
procedures, in effect prior to 1984. state
clearly that solid waste containing any
of the constituents listed in 40 CFR Part
261 Appendix VIII might be termed
hazardous considering, among other
factors, the concentrations of the
constituents in the waste (40 CFR
261.11). (See also the delisting rule at 40
CFR 260.22: the clean closure rule (52 FR
8704. March 19.1987); and the
groundwater cleanup rules at 40 CFR
264.94(a) (2) and (3).)
It should be noted that wastes can be
rendered nonhazardous in the sense of
concentration (see proposal at 52 FR
32453). but there is no chemical reaction
that will completely eliminate all
molecules of some Appendix VIII
constituents. Thus a standard based on
single molecules would not reflect the
reality of chemical transformations.
Moreover, wastes may be rendered
nonhazardous by means of chemical
transformation, adsorption of heavy
metals or some organics, as well as by
several other mechanisms.
Immobilization of heavy metals in the
injection zone is obviously a desired
result. Accordingly, the Agency believes
the most logical standard under RCRA
sections 3004 (d), (e), (f). and (g)
consistent with the environmental
concern is whether hazardous fluids
ever leave the disposal units and not
whether hazardous levels of
constituents remain in the unit. Thus.
the phrase "while the waste remains
hazardous" should not reflect wastes
which stay in the unit.
For mobile constituents, the
distinction between migrating fluids and
fluids still in the injection zone would
make little difference under the 10.000
year containment approach in § 148.20
discussed below. After 10.000 years of
containment constituents would either
be immobilized or otherwise be at
nonhazardous levels throughout the
injection zone.
The stringent reading that no
molecules may leave an injection zone
is inconsistent with EPA's regulatory
approach to what is and is not
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Federal Register V Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 28123
hazardous for regulatory concerns.
Commehters have not shown that EPA's
approach violates RCRA and have not
offered any other credible approach.
Accordingly. EPA maintains in this final
rule the approach proposed.
A few commenters objected to the use
of MCLs as health-based limits on the
theory that MCLs factor in elements of
cost, and are therefore not truly health-
based limits.
The Agency, in a recent rulemaking.
determined that MCLs are. in fact,
protective of human health (see 52 FR
25700-25701, July 8.1987). Basically,
MCLs are conditioned by the feasibility
of treatment. As the discussion in the
preamble to the rule cited above
indicates, MCLs have been found .to be._
protective of health, not withstanding
consideration of this factor.
Several commenters objected to the
proposal which would have required the
petitioner to demonstrate that
concentrations had been reduced to
three orders of magnitude below
detection limits in the absence of
established health-based levels. In
objecting, some noted that there was no
relationship between our ability to
detect a constituent and its potential
health effects. Others noted that there is
no fixed level which represents the
detection limit. They contended that the
technology used to detect constituents is
rapidly evolving, and varies from lab to
lab. Finally, some maintained that three
orders of magnitude below detection
levels was excessively stringent and
would establish levels far below any
which might arise from known health-
based levels. Many of these commenters
suggested that the petitioner identify •
levels of concern in the absence of
established limits and demonstrate to
the Agency that the limits selected are
protective.
The Agency, after consideration.
remains convinced that there IT/-- n be a
surrogate for health-based limit ji
cases where no such limits have been or
can be expeditiously established.
Further. EPA believes that detection
limits form an appropriate basis for this
surrogate. However, EPA agrees that
three orders of magnitude may be
excessive. Only in very rare cases does
a waste pose a health threat at such low
levels. The Agency considered the
option of having the petitioner
demonstrate a level which would not
have a potential to threaten health, but
rejected it. While we are not allowing
petitioners to define health-based levels.
we will use data supplied by them to
allow the Agency to specify a level of
concern. Several mechanisms exist
which allow the Agency to formulate
interim levels of concern on a very rapid
basis where data exists, and the Agency
would use these when more formal
levels had not been established. Only in
cases where very little data exists
would EPA rely on a surrogate.
The final approach being specified
today uses detection limits as the
appropriate level when no health-based
limit exists or can be developed
expeditiously by the Agency. This is
generally consistent with the approach
for listing, delisting, and clean closure
described above. Three orders of
magnitude below detection might cause
inconsistent results since sampling of
injected fluid in the injection zone
would not even pick up constituents
below detection levels.
B. Applicability—Section 148.1
As proposed. § 148.1 identifies the
regulated community and broadly
indicates the situations under which a
facility may receive a variance,
exemption, or extension from the RCRA
Land Ban. One commenter believed that
there should be no withdrawal required
for wastes injected prior to final EPA
approval or denial of actual petitions.
The commenter was responding to the
statement in the proposal that "the
Agency has determined that the
restrictions limit the injection of wastes
after the restriction deadlines, but do
not apply to wastes injected prior to the
applicable dates." (52 FR 32449)
The commenter is in part correct. The
prohibitions do not apply retroactively,
and therefore wastes injected prior to
the effective date do not have to be
withdrawn. However, the conunenter's
contention that the effective date of the
restriction is keyed to the time of the
Agency's decision on a petition, is
incorrect The effective dates for a given
waste are those specified by the statute
in section 3004(f) or promulgated.
pursuant to section 3004(g). Thus, waste
withdrawn from the formation after the
effective date of an applicable ban is
subject to the requirements of RCRA
section 3004 except in the case where
withdrawal is soil or debris resulting
from a cleanup activity under CERCLA
or RCRA. in which case the waste is not
subject to the "land ban" provisions
until November of 1988 (see section
3004(e)(3)).
There may be situations (e.g., salt
domes) where an injection technology is
not identical to the technology
addressed in this rulemaking. In such
cases. EPA will accept petitions under
the statutory standards and apply the
technical standards from Part 148 which
are relevant and appropriate, along with
other standards necessary to meet the
statutory requirements of sections 3004
(f) and (g).
C. Definitions—Section 148.2
in the proposal the Agency defined
two new terms at § 148.2: "injection
interval" and "transmissive fault or
fracture". Some commenters believed
that the new definitions were both
warranted and adequately explicit.
Others felt the new terms were
warranted, but indicated that some
needed further clarification or
modification. Still others felt that the
Agency needed to define additional
terms or redefine already established
terms in addition to those proposed on
August 27.
Most of the comments received
pertained to injection interval. Some
organizations fek that this new
definition led to a liberal interpretation
of the injection zone, and presumably a
less protective injection scenario.
Others felt that the well screen itself
could be defined as the injection
interval under this definition, thereby
creating an artificially small receiving
formation. The Agency believes that the
injection interval is a necessary
delineation in light of the § 148.20 "no
migration" demonstration. An essential
part of the § 148.20 modeling
requirements is the modeled distance
the waste travels within the injection
zone. This distance must be measured
from a defmeable point or area that is
distinguished as that place in the
injection zone in which the well is
screened, or in which the waste is
otherwise directly emplaced. That
defmeable point or area is the injection
interval, and EPA today promulgates
that definition as proposed.
The term "transmissive fault or
fracture" received only positive
comments, and is today promulgated as
proposed.
Various commenters suggested the
adoption of new or redefined terms. The
Agency considered these suggestions
and believes that, with the inclusion of
today's two new definitions and those
promulgated in Part 146. all terms
required to define and regulate injection
of hazardous wastes have been
promulgated.
D. Dilution Prohibition—Section 148.3
In the proposal, the Agency adopted
the prohibition on dilution by reference
to § 268.3. This section prohibits dilution
of restricted wastes as a substitute for
treatment to achieve compliance with
either a treatment standard or. in the
case of the California List, to bring the
waste below the applicable restriction
level. The Agency received comments
supporting this approach. Two
commenters. however, requested
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28124 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
clarification on the point at which
dilution would be established, with one
suggesting the inclusion of preamble
language from the July 8,1987 (52 FR
25778) final rule which amended the
Land Ban framework. The basis of the
§ 268.3 regulation was outlined in that
final rule and applies to both injection
wells and surface facilities. We are
adopting the approach in that preamble.
Legitimate aggregation of waste
streams to facilitate centralized ~
treatment is not considered
impermissible dilution. However,
artificial aggregation of wastes to avoid
a land disposal prohibition standard, or
mixing substances that do not either
themselves need to be treated or which
do not aid in treatment, would be
considered impermissible. Thus, § 148.3
is intended to prohibit dilution as a
means of circumventing the
requirements imposed by the land
disposal prohibitions. The Agency does
not intend to prohibit dilution which is
necessary to facilitate treatment.
E. Case-by-Case Extensions—Section
148.4
In the proposal, the Agency
incorporated by reference § 268.5 as
§ 148.4. Section 148.4 will permit the
owner or operator of a hazasrdous
waste injection well to submit an
application to the Administrator
demonstrating that a binding contract
has been enetered into to construct or
otherwise provide alternative capacity
that cannot reasonably be made
available by the applicable effective
date due to circumstances beyond that
applicant's control. Two commenters
felt that such an extension should be
applicable to owners or operators who
have submitted "no migration" petitions
and are waiting approval.
Variances, extensions, and
exemptions from the UIC Land Ban exist
in five forms: (1) an exemption as a
result of a successful "no migration"
petition pursuant to the requirements of
Subpart C of Part 148: (2) a statutory
exemption until November 8.1988. if the
waste has been determined to be
contaminated soil or debris resulting
from a response action taken under
section 104 or 106 of CERCLA or a
corrective action required under RCRA:
(3) a variance if the wastes cannot be
treated to the level (or by the method]
specified by the treatment standard
established in section 268. pursuant to
§ 268.44: (4) a variance granted for lack
of alternative capacity pursuant to
section 3004(h)(2) or RCRA: and (5) a
case-by-case extension pursuant to
section 3004(h)(3). Unlike the variances
and extensions noted above, there is no
statutory authority to allow for a case-
by-case extension of the ban date for
owners or operators who have
submitted "no migration" petitions and
are awaiting approval. In the case of a
treatment facility under construction, an
applicant can assure with some
confidence that at some time treatment
will be available. No such assurance
can be made on the outcome of a
petition; it may be approved or denied.
The Agency believes, moreover, that it
was Congress' intent, when setting the
so-called "hard hammer", to move the
Agency and industry towards a swift
and effective national hazardous waste
management program that is protective
of human health and the environment.
Reviewing and acting on "no migration"
petitions in a timely fashion is part-of- -
this program. As a practical matter, the
promulgated and proposed treatment
capacity variances should in most cases
provide the Agency time to process the
"no migration" petitions before the
regulatory hammer falls: the Agency's
inability to process a petition is not and
cannot be the basis of an extension
granted under section 3004(h)(3).
however.
Another commenter supported the
adoption of the case-by-case provision.
but believed that it should be
interpreted to include extensions for
facilities which have contracted for raw
materials that will render their final
product non-hazardous, but which are
currently unavailable. Although other
factors must be considered (see § 268.5).
the Agency believes that this is an
appropriate interpretation of the statute.
to the extent that the addition of such
raw materials constitutes alternative
treatment or recovery, since section
3004(h)(3) allows the Administrator to .
grant such an extension for the purpose
of constructing or otherwise providing
such alternative capacity.
F. Waste Specific Prohibitions—
Sections 148.10 and 148.11
1. FOOl through F005 Solvent Wastes
Section 148.10 sets effective dates for
the restriction of injected solvent
wastes. In addition, this section outlines
the situations under which such
effective dates do not apply. Comments
were received on various provisions and
standards adopted or proposed at this
section.
Many organizations commented on
the Agency's adoption of § 268.41
treatment standards for injected
solvents. Under the authority of section
3004(m) of RCRA. the Agency identified
in the November 7.1386. rule, treatment
standards applicable to the following
spent solvent wastes (including solvent
mixtures) FOOl. F002. F003. F004. and
F005 based on the levels of treatment
that could be achieved by Best
Demonstrated Available Technologies
(BOAT) for these solvents (51 FR 40573
et seq.):.
Acetone
n-Butyl alcohol
• Carbon disulfide
Carbon tetrachloride
Chlorobenzene
Cresols (and cresylic acid)
Cyclohexanone
1,2-Dichlorobenzene
Ethyl Acetate
Etnylbenzene
Ethyl ether
Isobutanol
Methanol.
Methylene chloride
Methylene chloride (from the
pharmaceutical industry1)
Methyl ethyl ketone
Methyl isobutyl ketone
Nitrobenzene
Pyridine
Tetrachloroethylene
Toluene
1.1,1-Trichloroethane
1,1. 2-Trichloro-l, 1.2-trifluoroethane
Trichloroethylene
Trichlorofluoromethane
Xylene.
The Agency proposed applying those
treatment standards for solvent wastes
that are currently injected. Some
commenters felt that the BOAT
established in § 268.41 is inappropriate
for the large-volume, low-grade wastes
bring injected. Others supported the
adoption. According to the best data
available to the Agency at this time.
solvent wastes that are surface disposed
differ from those that are deep-well
injected only by amount not by type.
Accordingly, the Agency is today
adopting the standards in § 268.41 as
BDAT for injected solvent wastes.
The Agency has recently completed
the National Survey of Hazardous
Waste Treatment. Storage. Disposal.
and Recycling Facilities (the TSDR
Survey) (Ref. 7). This comprehensive
database consists of the best
information available to the Agency at
this time. The TSDR Survey indicates
that approximately 40 million gallons of
low concentration (less than one
percent), surface disposed sovlent
wastes will require some form of
alternative treatment. The TSDR Survey
also shows approximately 317 million
gallons of deep well injected solvent
wastes. The Agency is attempting to
determine the concentration of these
injected solvents, but current
information shows at least 260 million
gallons to be below 1%. The appropriate
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Federal Register / Vol. 53. No. 143 / Tuesday, July 26. 1988 / Rules and Regulations 28125
treatment for these dilute solvents is
wastewater treatment (steam stripping,
carbon adsorption, biological treatment
and wet air oxidation) followed by
solidification/stabilization and
combustion. The TSDR Survey indicates
that only 75 million gallons of such
capacity exists.
in addition, and as noted in the
proposal, the Agency expects that
wastes resulting from both corrective
action activities mandated by section
3004(u) of RCRA, and CERCLA removal
and remedial actions, will place
substantially increased demands on
available treatment capacity.
Preliminary studies indiate that
approximately 2.3 to 5.6 billion gallons
of ground water containing solvents.may...
be extracted from such sites between
1988 and 1990 (Ref. 8). Again, the
concentrations of these wastes have not
been determined: the Agency expects
the additional quantity of wastes
resulting from these actions to occupy
any increased treatment capacity that
might become available as facilities
meet the minimum technology
requirements of section 3004(o) of
RCRA, as well as tank or other on-site
capacity which might be developed over
the next few years. Based on these data.
EPA is promulgating the variance
proposed on August 27, granting a two-
year national variance for injected spent
solvent wastes containing less than one
percent total F001-F005 solvent
constituents at the point of initial
generation (i.e., when the wastes first
meet the listing description) which are
disposed of by injection in Class I wells.
Today's rule does not establish effective
dates for the commercial chemical
products, manufacturing chemical
intermediates, and off-specification
commercial chemical products (P and U
wastes) listed at § 261.33 that
correspond to the F001-F005 spent
solvent wastes. These wastes will be
addressed in a later rule. This rule also
does not cover the four newly listed
solvents in the F001-F005 listing which
were added after the date of enactment
of the 1984 amendments to RCRA:
benzene, 2-ethoxyethanol, 2-
nitropropane. and 1,1,2-trichloroethane
(51FR 6538). The Agency is currently
gathering data to characterize and
evaluate these wastes.
One commenter indicated that wastes
which naturally meet treatment
standards should not require treatment.
nor be banned. This was explicitly
proposed at § 148.10(c)(l) and
§ 148.11(b)(l). and remains a part of
today's promulgation.
One commenter noted that the Agency
had failed to include in the prohibitions
at § 148.10 the provision for wastes
receiving a variance from the treatment
standard obtained under 40 CFR 268.44.
Section 268.44 was promulgated on
November 7,1986. It applies to
situations where a particular waste
stream cannot be treated to the level (or
by the method) specified as the
treatment standard. The Agency
envisions that wastes may be subject to
a treatability variance in cases where
the treatment standard for a particular
stream cannot be met because the waste
differs significantly from the type of
wastes EPA considered when
establishing treatment standards. A
particular waste may be significantly
different from the wastes considered in
establishing treatability groups, for
example, if the waste contains a more
complex matrix which makes it more
difficult to treat. For instance, complex
mixtures may be formed when a
restricted waste is mixed with other
waste streams by spills or other forms of
inadvertent mixing. As a result, the
treatability of the restricted waste may
be altered such that it cannot meet the
applicable treatment standard. In such a
case, generators or owners/operators
may petition the Agency for an
alternative treatment standard. While
the Agency does not presently have-any
information indicating that promulgated
treatment standards are not applicable
to injected hazardous wastes, it is
conceivable that such a situation may
arise. Consequently the Agency is
adding language to § 146.10 that adopts
a procedure to evaluate petitions for a
variance from the treatment standard as
promulgated at 5 268.44.
At this time. EPA has limited
information indicating concentrations
for the remaining solvent-containing
wastes which are injected. Therefore.
the Agency may reexamine whether a
variance for these wastes is warranted
when more data becomes available. At
this time, however, the Agency is setting
an effective date of August 8,1988. for
the restrictions on F001-F005 wastes in
concentrations equal to or greater than
1% at the point of initial generation (i.e..
when the wastes first meet the listing
description).
2. Dioxins
Many of the comments on $ 148.11. the
section setting an effective date for the
restriction of underground injection of ,
dioxins. mirror those received on
i 148.1C. Several commenters did not
believe that § 268.41 treatment
standards were applicable, while others
supported the proposed section. The
Agency identified in the November 7.
1986. rule, treatment standards
applicable to dioxin wastes identified
by the hazardous waste codes F020,
F021, F022. F023, F026, F027. and F028.,
The Agency has granted a two-year
variance to the effective date of the
restrictions for these wastes which are
surface disposed, based on lack of
capacity. Utilizing the same rationale as
explained above for § 148.10. the Agency
is' adopting § 268.41 treatment standards
for injected dioxin-containing wastes.
Current data available to the Agency
show that no dioxin-containing wastes
are presently being injected. Restricting
the injection of these wastes would have
a negligible effect on availability of
treatment capacity. Therefore, -as
proposed, EPA is not granting a national
variance to the effective date of the ban
for injection of these wastes. The
effective date of the restrictions is
August 8,1988. The § 268.44 alternative
treatment variance is being adopted for
dioxin wastes as it was for solvents at
§ 148.10.
3. Other Proposed Prohibitions
Many commenters. in addition to
supporting variances for both solvents
and dioxins, also supported variances
for injected "California list" wastes (as
defined in RCRA section 3004(d) and the
- July 8.1987. rule (52 FR 25760)) as well
as wastes classified under section
3004(g) of RCRA. The April 26.1988,
notice (53 FR 14892 etseq.) contained
effective dates for the California list
wastes and a portion of the section
3004(g) wastes. Further notices will
propose effective dates for the
remaining section 3004(g) wastes.
G. Petition Standards—Section 148.20
This section outlined the specific
standards the Agency proposed to apply
to petition demonstrations. In summary,
EPA proposed that the demonstration
could be made on the basis of either
waste transformation or fluid flow.
Either demonstration would rely on the
use of models as well as Agency-
recommended health-based limits to
define concentrations of waste
constituents which would be considered
hazardous. These levels, which have
undergone peer review by the Agency,
are used in delisting decisions and for
clean closure demonstrations (See 52 FR
8704. March 19.1987).
The Agency proposed that a
demonstration based on fluid flow
would have to show that the waste did
not reach a point of discharge for a
per: of 10.000 years. In addition. EPA
ma. med that molecular diffusion was
not £. significant source of solute
transport and therefore proposed that
diffusion not be considered as part of a
demonstration. A successful showing
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28126 Federal Register / Vol. 53, No. 143 / Tuesday, July 26, 1988 / Rules and Regulations
would also have required the petitioner
to. comply with certain amended
provisions of Part 146. As an additional
safeguard, a petitioner would have to
show that the confining zone was four
times thicker than the vertical distance
which the waste was expected to move
in the injection zone, and that the
injection zone was separated from the
lowermost USOW by ten times that
distance.
The Agency received extensive
comment on this framework. In general,
commenters were supportive-of much of
the proposal and indicated that it was
consistent with statutory standards in
sections 3004(f) end (g). A summary of
the comments, the Agency's responses,
and the final approach for each of these
requirements follows.' •
1. Basing Determinations on 10.000
Years
The proposal specified that when
modeling flow, the petitioner
demonstrate that the waste would not
reach a point of discharge, either
vertically or horizontally, for a period of
10.000 years. As noted in the proposal.
the Agency specified the 10.000 year
time frame not because migration after
that time was of no concern, but
because it believed a site which could
meet a 10.000 year time period would
both provide containment for a
substantially longer time frame, and
allow time for geochemical
transformations which would render the
waste nonhazardous or immobile (Refs.
9.10.11.12,13.14. and 15).
•There was considerable comment on
this provision. Some believed the time
period to be far too long. Their
suggested alternatives ranged from 100
to 1000 years. In support of these shorter
time frames, these commenters pointed
to language in House Report No. 198 (Pt.
1.98th Cong.. 1st Sess. at 33) which talks
in terms of hundreds of years. Several
also suggested that it is difficult to
model accurately over such long time
periods.
Others indicated that a 10.000 year
time frame did not provide the
"reasonable degree of certainty"
required by the statute that hazardous
waste would not migrate out of the
injection zone.
The Agency has reviewed these
comments and after careful
consideration believes the 10,000 year
demonstration stikes an appropriate
balance between the need to
demonstrate "no migration" with a
reasonable degree of certainty and the
limits of the technological means of
making that demonstration. It should be
noted, that EPA's standard does not
imply that leakage will occur at some
time after 10,000 years; rather, it is a
showing that leakage will not occur in
that time frame. As noted in the
proposal, there is a considerable body of
evidence suggesting that waste will
either degrade to nonhazardous
constituents or otherwise be attenuated
well within a 10,000 year time frame.
One commenter cited one of the • .
documents referenced in the proposal
and noted that while organonitriles and
nitrate were converted to CO: and Ni,
sodium thiocyanate showed relatively
less reduction in concentration (Ref. 14).
The commenter concluded that this
somehow invalidated EPA's selection of
10.000 years for the term of a
demonstration. In this study, residence
time cf the waste in the injection zone
was less than 7ffhrours.~"WMe
observation of waste degradation in
such a short time does affirm that waste
will degrade in very long time frames.
lack of total destruction in hours says
nothing about the fate of waste in 10.000-
years. Thus. EPA rejects the notion that
the proposed standard is '" * * refuted
by our own cited references."
Concerning those commenters who
questioned the accuracy of modeling
over a 10.000 year time frame, the EPA
would like to note that many of these
same commenters had correctly pointed
out elsewhere in their comments that
modeling need not locate the exact point
where the waste would be at that time;
determining where it would not be is
sufficient. This level of precision is
achievable.
2. Molecular Diffusion
In the proposal, the Agency suggested
that movement of contaminants by
molecular diffusion would not result in
migration of hazardous constituents
outside the injection zone at hazardous
levels. As a result, EPA proposed that
the petitioner need not consider
diffusion in the demonstration required
in $ 148.20.
The Agency received extensive
comment on this approach; with some
expressing strong support, and others
objecting to it. Some commenters
offered technical information supporting
the Agency's proposed approach. Of
particular interest to all commenters
was a study conducted by EPA (Ref. 16).
Several commenters did not appear to
understand that this study represented
an extreme worst case anaylsis
designed to determine the absolute
upward limits of movement at
hypothetical sites which could occur as
a result of diffusion. Others noted the
coefficients used were more
representative of coarse sediments than
those found in strata capable of
confining fluids. One commenter stated
that modeling movement due to
diffusion was straightforward, and that
sharply defined upward limits could be
easily and accurately identified. As a
result, this commenter contended that
movement due to diffusion should not be
subject to any additional safeguards if it
is considered in a demonstration.
The Agency has-reviewed the
comments submitted, the new data
provided, and refined its own analysis,
and remains convinced that in most
cases diffusion does not represent a
significant source of solute transport
that would result in vertical movement
of hazardous levels of constituents (Ref.
17). However, the Agency does believe
that this might not be true in all cases:
thus, the determination cf whether
diffusion is a significant source of
movement must be made on a case-by-
case basis. Accordingly. EPA. in this
rule, will require that any movement due
to diffusion be accounted for in the
demonstration. The Agency notes tha>
diffusion is accounted for in most
models used to simulate flow in deep.
mineralized systems. Consequently, we
do not believe there is any significant
burden associated with requiring
consideration of diffusion.
3. Use of Models
The proposed framework was based
on predictions of waste location and
fate over the very long term, and as such
relied on modeling flow or waste
degradation or attenuation. Commenters
were generally supportive of this
approach, but several expressed
concern over the accuracy of modeling
over time frames of up to 10.000 years.
The concerns over modeling for very
long time periods have already been
discussed. Moreover, the issue of
defining an appropriate maximum time
frame for modeling has been addressed
by the Science .Advisory Board (SAB)
and they endorsed periods up to 10.000
years (Ref. 18).
Some commenters. however, objected
strenuously to the use of models in
demonstrations and contended that
there was neither a sound technical
basis nor the legal authority to do so.
The Agency disagrees with both of
these propositions. Nothing in sections
3004 (f) or (g) of RCRA or the legislative
•history forbids the use of models to form
the basis for a "no migration" petition.
The final approach relies upon
conservative modeling techniques to
evaluate the potential for migration of
hazardous constituents from the
injection zone. Fluid flow modeling is a
well-developed and mature science and
has been used for many years in the
petroleum industry. More recently, fluid
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Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 2C127
flow models have been' further
developed for the Department of Energy
nuclear waste isolation program.
Specifically, a wide range of models
exists that provide the capability to
analyze pressure build up, lateral waste
migration, vertical fluid permeation into
overlying confining material, and
leakage through defects in overlying
aquitards (Refs. 15.19.20.21.22, and
23). Models make it possible to predict
tendencies or trends of events that have
not yet occurred or that may not be
directly observable. Under the "no
migration" standard, a demonstration
need not show exactly what will occur,
but rather what conditions will not
occur. Conservative modeling can be
used to "bound the problem" and can
legitimately form the basis for the
petition demonstrations.
Specific hydrogeoiogic data and
operational data are necessary to make
a demonstration, and EPA will carefully
analyze modeling assumptions. Where
some uncertainty exists about the data,
the demonstrator may conduct
sensitivity analyses to determine the
range of error this uncertainty could
introduce into a demonstration.
There will be, moreover, an
opportunity for public comment on the
appropriateness of the simulator
selected, the data used, and the
assumptions made in any
demonstration. •
Finally, the commenters who are
contesting, as a general matter, the
validity of modeling have offered no
technical basis for their objections, nor
have they provided specific suggestions
to improve the data or analytic
approaches.
Genera] statements such as these do
not provide useful or credible
alternatives for EPA to implement
sections 3004 (f) or (g). Therefore, since
(1) nothing legally prohibits the use of
models. (2) appropriate modeling has a
sound technical basis, and (3)
commenters have offered no indication
that there are any specific pitfalls to this
approach. EPA does not in this final rule
prohibit the use of modeling to form the
basis of a petition demonstration for
underground injection wells.
4. Use of a Safety Factor
In the proposal, the Agency stated
that demonstrations would be based on
modeling and that direct verification of
the absence of migration would be
problematic due to the difficulty of
effectively monitoring the location of a
fluid front at depths ranging from 1500 to
5000 or more feet. In addition, during the
regulatory negotiations which helped in
the formation of the proposal for this
rule, some representatives wanted to
limit the permit writers' discretion by
requiring that injection zones have
vertical limitations. To deal with these
concerns, EPA proposed that the
confining zone be four times t; r.ker
than the total vertical distance that fluid
was expected to move within the
injection zone and that the injection
zone be separated from the lowermost
USDVV by ten times that calculated
distance (4x/10x).
As noted in the proposal, a further
purpose of this provision was to deal
with the uncertainties which some
members of the regulatory negotiation
committee felt were inherent in
demonstrations based on modeling. In
addition, this provision was seen as
providing some additional protection
against the likelihood that permeable
faults or fractures might transect the
confining zone.
The Agency received extensive
comment on this requirement. Most
stated that they believed the
requirement to be excessive and
unnecessary, and some believed it to be
arbitrary. Several commenters noted
that EPA had intentionally rejected the
use of rigid numerical standards
elsewhere in the proposal, noting that
qualitative considerations were often
important in making decisions regarding
siting (52 FR 32458) and waste
migration. One commenter objected to
the proposal, but suggested it could be
workable if an alternative to the "4x/
10x" requirement was available.
A few expressed limited support for
the concept, but indicated that if the
Agency were to restrict the definition of
injection zone, such a provision would
be unnecessary.
One commenter wanted to reinstate a
"containment zone." which is a concept
introduced during the regulatory
negotiation.
Finally, some requested clarification
of how this distance should be
measured. Commenters suggested that if
the Agency were to adopt this approach,
the appropriate point of measurement
should not be the screened interval, but
some larger area which is defined by the
geology of the site.
After careful consideration, the
Agency has determined that the
requirement is unnecessary and may not
be appropriate for several reasons. One
of the key difficulties in implementing a
"4x/10x" provision is the lack of
proportionality between the initial fluid
penetration into confining material and
the additional safety provided by a
.multiple of that initial penetration. There
is not necessarily a relationship
between the quality of confining
material in the injection zone and
material some distance above. Thus, the
requirement of further distance
proportional to "x" is somewhat -„
arbitrary.
Moreover, as mentioned above on the
riiscussion of injection zones, there may
be no discrete line to begin the
measurement of "x" because of the
interfingering of permeable and
relatively less permeable material.
Trying to determine with any
consistency a point beyond the area of
active emplacement into permeable
material would be extremely difficult.
This approach would also tend to
encourage placement of well
perforations nearer to confining
material, which is net necessarily a
desirable result in most geologic
settings. •
Further, the Agency's own analysis
has shown that the "4x/10x" provision
may not always afford the level of
protection EPA was seeking. For
example, modeling has shown that the
"x" value may be quite small, in some
geologic settings yielding values less
than 10 feet (Ref. 15). Such low figures
would not, under most circumstances.
provide protection against transmissive
faults or fractures.
Second, the Agency believes that any
uncertainties resulting from the quality
or extent of geologic data available are
better addressed by assuring that
conservative values are used, and that
sensitivity analyses are conducted
where appropriate, to enable the
reviewer to assess the amount of
variation in performance which might
result from a given assumption.
Third, with regard to uncertainties
associated with verification, the Agency
would like to note that monitoring of
pressure decay rates when the well is
shut-in, provide effective means of
determining whether the waste is
behaving as a model predicted it would
(Ref. 22).
Fourth, the Agency rejects the
contention that modeling inherently
introduces uncertainty into the
demonstration; modeling has been used
extensively in oil field exploration and
enhancement with very good results
(Ref. 23). Such applications involve the
analysis of multiple points of injection
and withdrawal and often involve two-
phase flow—an application of
considerably greater complexity than
that required for "no migration"
petitions submitted pursuant to § 148.20.
Moreover, within the last few years.
fluid flow models have been further
developed for the Department of Energy
nuclear waste isolation program (Refs.
24 and 25). Beyond this, EPA would like
to note that models need not identify the
precise point to which a plume may
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2S128 Federal Register / Vol. 53, No. 143 / Tuesday, July 26. 1988 / Rules and Regulations
move. Rather, the model can be used to
bound the problem, showing a point to
which the plume cannot move.
Finally, the Agency would like to
point out that requirements currently in
place and others being promulgated
today in § 146.62 in Subpart G apply
substantial safeguards to siting of
injection wells. To the extent that such
requirements apply to areas outside the
injection zone, and address
endangerment of USDWs and not
prevention of migration, EPA believes
that Part 148 is the appropriate
regulation in which to promulgate these
rules. Nevertheless, the requirements
still serve to limit the regulatory
agency's discretion, and provide
additional safeguards addressing the
concerns which the "4x/10x". -.
requirement sought to address.
As a practical matter, the Agency
believes that the petition reviewer will
be sufficiently constrained by
requirements in § 143.21 as it is being
promulgated today. The final rule
specifies more clearly that assumptions
must be reasonably conservative, and
that sensitivity analyses must
accommodate any significant
uncertainty in the geologic
characterization or other aspects of the
demonstration.
5. Requiring Compliance With Certain
Part 146 Requirements
The Agency proposed that as part of
.the petition demonstration, the applicant
certify compliance with the proposed
Area of Review (AOR) and Corrective
Action requirements from Part 146. as
well as submit the results of a pressure
test and a radioactive tracer survey
(RTS) conducted within six months prior
to a petition submission.
Commenters were generally
supportive of the proposed approach,
although some requested clarification on
whether the UIC permit needed to be
revised. Several commenters suggested
that EPA's proposal to require that a
well pass a mechanical integrity test
within 6 months prior to petition
submittal was too restrictive. They
argued that such tests were unnecessary
because they are currently required in
the UIC permits; the' six-month time
period was counter-productive and
could discourage submission of petitions
in a timely manner, or that other tests
could adequately serve to make the
requested demonstration. Finally, some
commenters contended that all or some
expanded set of the amended UIC
requirements should be met as a
prerequisite to petitioning.
a. Permit Modification. The Agency
did not envision requiring UIC permits
to be modified as part of complying with
amended Area of Review, Corrective
Action or mechanical integrity
requirements. It was the Agency's intent
that the operator certify compliance
with AOR and Corrective Action
requirements, and that the operator
submit results of a recent pressure test
and RTS test. This is the approach being
promulgated today in the final rule.
b. Timing of Mechanical Integrity
Tests. EPA agrees that requiring
operators to conduct a pressure and RTS
test within 6 months prior to submitting
a petition is too restrictive. As noted by
some commenters. this requirement
could have the effect of discouraging
submission of petitions in a timely
manner. The Agency's primary concern
was that the well have a recent
demonstration of integrity priorlo- '
approving or denying a petition. Since
EPA can envision circumstances in
which-petition reviews may take
considerably longer than 6 months, the
final rule requires the owner or operator
to submit the results of a pressure test
and a RTS test with a petition. The tests
must be conducted within one year prior
to submittal of a petition. If the petition
has not been approved or denied within
one year after the MIT test was
performed, the Director may require the
owner or operator to perform another
and submit the results.
c. Requiring Compliance with Other
Part 146 Standards. One corr.menter
suggested that at a minimum, the siting
provisions in § 146.62 should be an
integral part of the petition
demonstration. Other commenters
suggested that the Agency require
compliance with all the provisions of
proposed requirements in Subpart G of
Part 146 prior to approving a petition.
First, the Agency would like to note
that the siting requirements of § 146.62
with regards to injected waste are either
subsumed in the standard set'in § 148.20
or are rendered unnecessary by a
successful demonstration. Moreover, the
§ 148.20 requirements are more stringent
than the § 146.62 requirements. By
definition, compliance with 5148.20
would demonstrate "no migration"
whereas compliance with § 146.62 would
demonstrate no endangerment. a
considerably lesser requirement with
regards to hazardous waste. Thus,
imposing the requirements in §146.62 as
part of a petition demonstration would,
at best, be redundant The Agency
believes the Part 146 requirements are
necessary to effectively regulate
hazardous waste injection which has not
been banned and is therefore not subject
to Part 148 requirements, and to assure
that USDWs are not endangered from
formation fluids.
Second, the 1984 HSWA amendments
do not require a general overhaul of
existing technical UIC regulations*for
hazardous waste injection and EPA
does not believe there is an acute need
fur amendments to these regulations.
The normal process of program review
and the regulatory negotiation process
did lead to the development of several
useful proposals for clarifying, updating.
or expanding existing regulatory
requirements. Many of these standards
are currently part of the UIC regulatory
structure but are simply not stated in
descriptive detail. EPA believes that
adherence to current EPA technical
permitting standards along with the new
area of review and mechanical integrity
requirements provides operational
integrityof the delivery system to a •
reasonable degree of certainty. The
Agency's additional findings under the
petition process will fully satisfy the
statutory standards under RCRA
sections 3004 (f) and (g).
The commcnter's proposal that new
Part 146 standards must be in place
before petition approval, is unworkable
and unnecessary. Because sections 3004
(f) and (g) are HSWA requirements, that
approach would essentially require EPA
to run an entirely new UIC permitting
scheme on top of those run by UIC
primacy states. The petition review and
permitting process are not identical
under the statutes. This dual and
redundant permitting and enforcement
scheme would run until UIC primacy
states had obtained HSWA
authorization and would essentially
require federal repermitting of every
UIC facility. EPA does not believe
Congress, in RCRA sections 3004 (f) and
(g), mandated or envisioned such a
sweeping and disruptive approach in
permitting. While the Agency obviously
favors today's revisions to the
permitting program, and may in the
future seek further changes, it does not
believe such changes are intrinsically
linked to decisions under RCRA sections
3004 (f) and (g). Moreover, commenters
have not shown that any particular
aspect of the UIC regulaticr.s a: e so
critically inadequate that adherence to
them in lieu of the new standards would
necessarily fail the statutory mandates
of RCRA.
H. Information To Be Submitted in
Support of Petitions—Section 148.21
Section 148.21 of the proposal
specified criteria which the information
submitted in support of a petition must
meet. In addition. §§148.21 (b) and (c)
listed certain site-specific information
that should be part of a petition. A few
commenters noted that no single
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Federal Register / Vol. S3. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 28129
modeling method or proprietary model
should be required for all submitting
sites. The Agency agrees with this
position, and believes the proposed
language at § 148.21(a)(3) allows
flexibility in the choice of models,
provided that the model has been
validated, verified, and calibrated to
assure that it is suited to the site to
which it is applied.
Some commenters felt that the
requirement for a sensitivity analysis in
§ 148.21(a)(6) was not clearly stated. The
Agency's intent in proposing this section
was to require the petitioner to: (1)
Identify areas where the geologic
characterization (or other phenomena)
contained significant uncertainty; (2)
determine a likely range over which
values might vary; and (3) perform
sensitivity analyses which would
determine the magnitude of the
fluctuations in performance which might
result from these variations. The Agency
agrees with those commenters who
believed the rule was unclear and is
promulgating more specific language in
this section.
One commenter requested the
inclusion of justification in § 148.21(a)(5)
for the use of reasonably conservative
values whenever values taken from the
literature or estimated on the basis of
known information are used instead of
site-specific measurements. The
commenter apparently believed that
data from the literature is not always
inferior to site-specific data. For
example, in areas of extensive drilling
and extensive, homogeneous
sedimentation, data from off-site may
provide a high degree of certainty in the
characterization of local geology. The
Agency agrees that information from the
literature can provide certitude. Section
I48.21(a)[5) should be viewed in the
total context of § 14&21; when the
geology can be accurately described and
the bounds of uncertainty established.
the sensitivity analyses may be more
sharply defined; when there is some
doubt concerning the geologic
description, these analyses must be
more broadly defined. Thus, the
definition of what constitutes
"reasonably conservative values" in
§ 148.21(a)(5) would be defined by the
degree of certainty which results from
the use of information from the literature
or estimated values. The Agency
believes that reasonably conservative
values are those which result in models
and subsequent operations that are
protective of human health and the
environment. It is difficult to codify such
values, however, in light of the varied
wastes, geologies, and operating
circumstances that are covered under
deepwell injection. The Agency believes
that specific, suitably conservative
values can be established by the
reviewer during the course of petition
evaluation. ''
One commenter believed that
§ 148.21(b)(2) should include the "layer
of protection" required in 146.62(d)(l).
As noted in Section (II)[G)(5)(c) of this
preamble, the siting requirements of Part
148 are more stringent than those of Part
146, and would subsume such Part 146
requirements. Any petition that satisfies
§§ 148.20 and 148.21 requirements
automatically meets the requirements of
§ 146.62, with respect to injected wastes.
One commenter noted that, in regards
to the geologic information requirements
of § 148.21tbV'- * * Unless4he.-
proposed well is located in an area of
dense drilling, the geologic data
necessary for mapping [of the injection
site] is likely unavailable." Most
hazardous waste injection wells are
sited in the Gulf Coast and Great Lakes
regions, areas with long histories of
drilling practices, and subsequent
extensive geologic mapping. It is true
that some facilities exist in areas where
little or no previous drilling has
occurred. Again, the amount and density
of specific points needed to characterize
geology is a function of the degree of
isotropy and homogeneity exhibited by
the sedimentary basin. The Agency
believes that in many cases the owners
or operators of sites may need to gather
additional geologic data on their sites
before a successful petition can be
developed. The Agency believes that
detailed geologic mapping is a
reasonable request in the context of this
regulation. A "no migration"
demonstration cannot be established
without it
One commenter believed that existing
and anticipated post-operational •
vertical fluid density gradients as well
as vertical hydraulic gradients should be
considered in evaluating the potential
for vertical movement The Agency
agrees, but would like to note that a "no
migration" demonstration under § 148.20
cannot be made without such factors
being considered.
Several commenters objected to the
requirement that "All waste and
environmental sampling, test and
analysis data shall be accurate and
reproducible and performed in
accordance with quality assurance
standards." They noted that in many
cases, petitions will be based on
information gathered during the drilling
of the well—information which cannot
be reproduced in accordance with
procedures specified long after the
drilling occurred. These commenters
also noted that much of the data relied
upon for characterizing the regional %
geology will be obtained from
operations which are conducted by
entities other than the petitioner. These
commenters believed that the net effect
of this requirement would be to prohibit
the use of vast amounts of data. The
geologic descriptions would therefore be
less accurate, they contended.
The Agency agrees. Excluding
historical data or information which
might have been gathered off-site by
methods not consistent with certain
prescribed procedures may be
counterproductive. The purpose of
§§ 148.21 (a) (5) and (6) should be to
allow the use of such data, but assure
that its limitations are accounted for in a
petition review. Accordingly. EPA will
require that only measurements
pertaining to the waste or that result
from testing performed to gather data for
the petition demonstration comply with
prescribed procedures. The Agency
believes, however, that the concerns
about the accuracy of geologic data are
addressed more appropriately by
requiring that the demonstration identify
and account for limits on data quality
rather than by excluding data from
consideration. Again, § 148.21(b), as
revised, requires precisely such
consideration. Therefore, the
demonstration in § 148.20 as
promulgated, will allow the use of
existing data.
/. Procedures for Petition Submission.
Review, and Approval or Denial—
Section J4&22
Some commenters stated that the
petition review process in the proposal
would not provide an adequate
opportunity for public oversight.
Commenters suggested a 45-day period
for review, and an opportunity for public
hearings due to the complex nature of
the demonstrations. Other commenters
believed that the proposed petition
process is unworkable and would, due
to the amount of time necessary to
process petitions, result in sound
hazardous waste management practices
being outlawed by procedural
difficulties. These commenters suggest a
generic determination for injection wells
and a minor modification approach to
changes required in permits.
The Agency is doing everything it can
to inform and coordinate with the
regulated community on petitions,
including several outreach meetings and
close coordination with States and
Regional offices. The "hammers" in the
1984 HSWA Amendments do create
resource and timing problems, but as
explained above. EPA favors the
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28130 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
petition process as a way of examining
the specific hydrogeologic setting for
determinations under sections 3004 (f)
and (g). We further agree that the
petition information is complex and the
procedures would benefit from a 45-day
comment period and the opportunity for
public hearings. We incorporate such
provisions in the final rule. In addition,
we clarify here that the more extensive
public notice provisions in 40 CFR 124.10
which apply to RCRA permits will apply
to the Part 148 petition process.
In order to minimize the duplication of
administrative procedures, we are
providing that the Director may make
certain related permit modifications to
the UIC permit contemporaneously with
the petition process through the '
procedures in § 148.22. These
modifications include identification of
an injection zone or an injection
interval, ^determination of a well's area
of review under § 148.2C(a)(2)(i).
application of a protocol for location of
abandoned wells under § 148.20(a)(2)(ii),
submission of a corrective action plan
under § 148-20(a)(2)(iii), and
performance of a radioactive tracer
survey under § 148.20(a)(2)(iv). These
items win then be enforceable both as
permit conditions and as conditions of
the petition. This approach will
streamline the process and focus
Federal administrative resources in an
efficient manner.
State primacy programs will, of
course, follow their own permit
modification procedures. We will try
and coordinate as closely as possible
with primacy states. As discussed above
in Section (U)(G)(5) of this preamble.
nothing in this final rule requires permit
modifications to satisfy the conditions of
§ 148.20. However, we believe a
coordinated approach would prevent
needless duplication of procedures.
/. Review and Termination of
Exemptions—Sections 148.23 and 14834
The Agency proposed in § 148.23 that
petition demonstrations be reviewed at
the time of permit renewals. Under the
proposal, the Director could require a
new demonstration if new information
.showed that the basis of the
demonstration were no longer valid.
This section also provided the Director
the authority to require a new
demonstration at any time information
indicated that the basis of the showing
was not valid or was no longer valid.
Section 14&24 listed reasons for which
the Director could terminate
exemptions, including, in § 148.24(b),
mandatory causes for terminating
exemptions. Section 148.24(b) did afford
the Director some discretion regarding
termination of exemptions when the
source of a release was a faulty well in
the area of review, or a mechanical
problem in the injection well itself.
Finally, § 148.24(c) specified procedures
which the Director must follow when
terminating exemptions granted under
§ 148.20.
One commenter, supported by several
others, noted that if EPA were to adopt
alternative procedures for approving
petitions (see comments in Section
(II)(A)(1) of this preamble) any violation
of the demonstration would constitute
violation of the regulations and would,
therefore, be enforceable within the
context of these regulations. The
commenter concluded that this section
was, under the suggested alternative
approach, unnecessary.
The commenter went on to say that
under any approach. § 148.24(b) is
unnecessary and should not be
promulgated. According to this
commenter, releases from the well or
from an abandoned borehole can be
fixed by relatively simple remedial
action, and therefore should not be
grounds for closing a well. Other
commenters contended that any failure
of the system should be grounds for
automatic termination of the exemption
whether or not these failures
represented simple transient events that
did not permanently compromise the
system. Finally, some commenters
objected to the procedural requirements
associated with withdrawing an
exemption, contending that it takes too
long.
The EPA agrees that if the suggested
alternative approach for implementing
sections 3004 (f) and (g) were to be
adopted, the requirements in §§ 148.23
and 148.24 could be addressed through
enforcement. For the reasons outlined in
Section (II)(A)(1) of this preamble,
however, the Agency is not adopting
any of these alternative approaches.
With regards to the grounds for
termination. EPA believes that both
comemnts have merit. Specifically, there
are undoubtably circumstances when a
simple failure of a well plug in an
abandoned weB or a well component in
an injection well should not initiate
closure or a redemonstration under
S 148.20. On the other hand, the Agency
believes that the Director should have
the authority to cancel an exemption
due to well failure or an improperly
abandoned well in the area of review, in
some cases. For example, instances of
repeated well failures, or numerous
problems with wells in the area of
review, could indicate that the
corrective action for wells in the area of
review has been inadequate, or that the
well is not functioning adequately to
assure delivery of the waste to the ,_
injection zone. Under such
circumstances, the Director should have
the authority to revoke exemptions.
Accordingly, the Agency believes the
Director should have the authority to
revoke exemptions for the above
reasons, but should not be required to
do so in all situations. Of course, in
cases where the injection zone itself has
allowed a release, or where the
petitioner has willfully withheld
information, the exemption must be
terminated. The proposed rule provided
this level of flexibility, and EPA is
therefore promulgating the rule as
proposed.
Finally, the Agency rejects the
contention that the procedural
requirements of § 124.5 are too slow
when revocation is considered. The
issues should be fewer than for petition
approval, but will nonetheless benefit
from full opportunity for public review
and comment
III. Summary of Today's Rulemaking:
Response to Comments; Part 146,
Subpart G
As outlined in the proposed rule, the
Agency is establishing a new Supbart G
applicable to owners or operators of
hazardous waste injection wells. This
section applies to all wells injecting
hazardous waste, including those
injecting wastes which are not yet
prohibited, those which meet treatment
standards promulgated under section
3004(m) of RCRA. and those whose
waste has been banned under section
3004 (f) or (g) of RCRA and who have
obtained an exemption pursuant to Part
148.
In the proposal the Agency
established a discrete section. Subpart
G. which contained all Part 146
requirements applicable to injectors of
hazardous waste. As indicated, much of
Subpart G is merely a reorganization of
requirements which were originally
promulgated in June of 1930 (45 FR -42473
et seq.]. It was not EPA's inicnt to solicit
comment on requirements which existsd
by virtue of earlier rulemakmg; rather.
the Agency intended to simply recodify
these existing requirements and solicit
comment on the new requirements being
proposed. The Agency nevertheless
received comments on both the new and
existing regulations. To the extent that
these commenters sought substantive
changes to the existing rules, the-Agency
has evaluated them. but. as explained in
the proposal, does not believe we are
under any obligation to make any
changes. In all cases, the Agency will
retain them and evaluate them in the
context of any changes which it may
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Federal Register /. Vol. 53. No. 143 / Tuesday. luly 26. 1988 / Rules and Regulations 28131
contemplate in the future, but the
Agency-does not believe it is under any
obligation to address comments on
existing regulations concurrent with
decisions on this rule.
A. General Comments on Part 146
1. Stringency of the Regulations
Several commenters expressed
general support for the reorganization of
Part 146 requirements and the
establishment of Subpart G. Many of
these same commenters, however,
believed that the existing Part 146
requirements were generally adequate
to protect USDWs. and were not in need
of substantial changes. These
commenters suggested that added
specificity, clarifications, updates, and
some expansions were all that was
warranted. In support of this, they noted
that contamination of USDWs by
injection wells has been rare, and has
not occurred in a facility which is in
compliance with existing UIC
regulations.
Other commenters were supportive of
the changes to Part 146, but opined that
the changes did not go far enough. One
commenter submitted instances of
alleged contamination from injection .
wells in support of his belief that more
stringent regulation of injection wells
was required (Ref. 1).
The Agency has examined this report,
two other reports conducted by
contractors (Refs. 2 and 3), and analyzed
the Agency's own Report to Congress
performed pursuant to section 701 of the
Hazardous and Solid Waste
Amendments of 1984 (Ref. 4). Based on
this analysis, the Agency cannot point to
a body of instances which suggest that
the existing regulations, and particularly
as amended today, are not sufficiently
stringent to protect USDWs. On the
other hand, the Agency's experience in
implementing the UIC regulations, as
well as experience and knowledge
gained from overseeing State
implemented programs, together with
information gathered during the section
701 survey; has enabled EPA to identify
several important ways to improve the
protectiveness of the original
regulations. Many of these amendments
are being made to address specific
problems identified in one or more of the
studies cited above. With these
amendments. EPA has attempted to
develop a set of regulations which
provides a level of protection
appropriate to wells injecting hazardous
waste, yet one which is not
unnecessarily burdensome.
2. Application of Part 146 to § 3004(b)(l)
In the preamble to Part 148 the
Agency proposed to apply the amended
Part 146 regulations to satisfy the
requirements of section 3004(b)(l). This
section prohibits the disposal of
noncontainerized or bulk liquid
hazardous waste in any salt dome, salt
bed formation, underground mine or
cave until: (1) The Administrator has
determined, after notice of opportunity
for hearings in the record in the affected
areas, that such placement is protective
of human health and the environment
(section 3004(b)(l)(A)); (2) The
Administrator has promulgated
performance and permitting standards
for such facilities {section 3004(b)UMB)):
and (3) a permit has been issued under
section 3005(c).
The Agency proposed that the
amended Part 146 requirements could
constitute performance and permitting
standards for such facilities. The
Agency also stated that a UIC permit,
which qualifies as a RCRA permit-by-
rule under § 270.60, would satisfy the
permit requirement Finally. EPA
suggested that the hearing on the
petition conducted pursuant to an
exemption request under Part 148, could
be held jointly with the hearing required
under section 3004(b)(l)(A).
One commenter expressed strong
support for this approach, but noted that
for certain types of injection the UIC
regulations either may not be
appropriate or may need to be applied in
a flexible manner. Specifically, injection
of non-liquid fluids could require rules
specifically tailored to the problems
inherent to such injection. This
commenter proposed specific changes to
the UIC regulations which would make
them suitable for regulating non-liquid
' fluids injected into salt domes. Another
commenter expressed strong opposition
to such an approach, stating that liquids
dissolve salts, and thus salt formations
are unstable and unsuitable for
containment of wastes.
The Agency has historically regulated
fluid injection into salt domes and salt
beds under the UIC program. Under this
scheme, a UIC permit issued under 40
CFR Part 144. Subpart D. would
constitute part of a RCRA permit-by-rule
under 40 CFR 270.60(b). For injection of
liquid hazardous wastes, the EPA
believes the framework outlined in the
proposal is appropriate, and will largely
follow those procedures when
permitting injection of liquid hazardous
waste into salt domes and salt beds.
A recent final rule, Subpart X of
RCRA (52 FR 49946 et seq.. December
10,1987), addresses regulation of certain
unconventional disposal practices.
including, under some circumstances,
injection of non-liquid hazardous fluttis.
This rule also outlines in detail the
relationship between Subpart X
requirements and the UIC permitting.
Briefly, Subpart X provides the Agency
a flexible permitting scheme that may be
•applied to hazardous waste disposal
when existing standards are
inapplicable. It is premature to discuss
specific features which would make the
application of Part 146 standards
inappropriate. Such determinations will
be made in the context of a facility's
permit application.
On the technical point concerning the
solubility of salt formations, it is
common-knowledge that salt dissolves
in water. However, salt will not further
dissolve once the water is saturated. In
such situations hollowed out salt domes
have an excellent combination of high
plasticity and low permeability to seal
against the migration of hazardous
wastes. Thus, EPA believes such
disposal technology to be promising.
The acceptablity of a facility, of course,
must be evaluated on a site-specific
basis.
The Agency has decided that rather
than amending the UIC requirements to
suit non-conventional underground
emplacement of waste as the one
commenter suggested, it will rely on the
authority in new Subpart X to develop
an appropriate set of requirements in the
permit As noted in the preamble to
Subpart X. the decision on whether to
regulate unconventional injection
operations under the UIC program and/
or Subpart X is a case-by-case
determination (52 FR 49953). A more
complete discussion of the relationship
between the UIC program and the
Subpart X requirements is provided in
that rulemaking.
B. Applicab. ty—Section 146.61
Section 146.61 proposed, in part, new
definitions applicable to Class I
hazardous waste injection. A number of
commenters addressed this section.
One Commenter favored codifying in
Part 146 the term "injection interval",
also codified today at § 148.2. The
Agency believes that this term is most
applicable to facilities petitioning for an
exemption under Part 148. but believes
that the term has utility in the context of
certain Part 146 requirements.
Consequently, EPA is today codifying
the term "injection interval" at §§ 148.2
and 146.61(b).
A number of commenters were
concerned with the new term "cone of
influence". This definition, and its
relationship to the new Area of Review
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28132 Federal Register / Vol. 53. No. 143 / Tuesday. July 26, 1988 / Rules and Regulations
requirements, has been addressed in
Section (IIJ)(D) of this preamble.
Finally, there were many comments
received on the redefinition of the term
"existing well", as it applies to
hazardous waste injection. It -was the
Agency's intention, in redefining this
term, to insure that the owner or
operator of an existing authorized well
not be subject to those requirements at
§ 146.65 which are applicable only to
new wells not yet constructed. Two
commenters •wanted this definition
changed to include wells already
authorized to receive non-hazardous
fluids, .noting that such non-hazardous
fluids could eventually be classified as
hazardous.
Provided that an already authorized,
non-hazardous injection well can safely
inject hazardous waste, the Agency
agrees with the contention that such
wells should not be classified as "new
wells" in the context of this regulation
merely because the definition of the
waste they are injecting changes. EPA
can foresee a situation where a
permitted Class II or IS well -would
become a hazardous waste injection
well by virtue of changes in the
definition of "hazardous". If such a •well
is able to meet all other applicable 146
and 148 requirements, it should be
classified as an "existing -well". Today's
promulgation of the term "existing well"
allows snch a situation.
Another cotnmenter wanted *k« term
to include any Class I well "permitted.
authorized, or constructed" prior to the
effective date of this rule, whereas the
proposed definition included only
"authorized". Per §144.11, any-well
which is permitted is automatically
authorized. Consequently, there is no
reason to include the word "permitted"
in today's redefinition of "existing well".
Section 144.11 states that, 'The
construction of any well required to
have a permit is prohibited until the
permit has been issued." Class I
hazardous waste injection is a permitted
activity, consequently any proposed
hazardous waste injection well must
receive a permit before well
construction begins. The situation
indicated by the commenter above
proposes to include constructed, but
unauthorized, wells in the spectrum of
"existing writ". The Agency's legal
position is that such a well is illegal
under the terms of the U1C regulations,
§ 144.11.
Two other commenters wanted
"existing well" redefined to include
wells not yet completed whose permit
applications have been submitted and
are under review, or existing wells
whose permits are on appeal. Existing
wells whose permits are under review
automatically receive an authorization
by rule, pursuant to §§ 144.21 or 144.22.
Section 124.16 states that, for a new
facility or new injection well. "" * * the
applicant shall be without a permit for
the proposed new facility * * * lor]
* * * injection well. . . pending final
Agency action." In this instance, the
well will not have been constructed yet.
Under these circumstances, EPA
strongly urges the applicant and—in the
case of primacy states where the
amended requirements have not been
adopted—the Director, to construct or
require the well to be constructed
according to the standards applicable to
new wells.
C. SJtsns Requirements—Section 146:6Z~
In the proposal, the Agency stated
more explicitly requirements which had
been stated very broadly in the existing
regulations. In the proposal, criteria
which had previously been framed as
factors which the Director had to
"consider", were expressed as specific
requirements which the owner or
operator had to meet. Several new,
substantive requirements were also
added.
•In the proposal, the regulations al
§ 146.62(a) restated-existing language
which required that all Class I wells be
sited beneath the lowermost USDW;
§ 14&£2(b) restricted siring to areas tnat
are geologically suitable, and defined
criteria describing such areas;
114B.62(c) specified performance
standards for the confining and injection
zones; § 146.62(d) outlined aridilinnal
requirements which would provide an
additional degree of assurance that the
waste would be adequately contained or
that the site would not otherwise
endanger USDWs. .
1. Need for Additional Siting
Requirements
Nearly all commenters supported the
clarification of existing siting
requirements, but several maintained
there was no need to add more explicit
siting requirements or standards. These
commenters believed that absence of
contamination incidences suggested no
changes were necessary.
The Agency disagrees. The EPA
identified several important criteria
which it believes significantly improve
the protectiveness of the siting
requirements. The UIC program as
mandated by the SDWA is preventative
in nature, and to the degree that these
improvements do not impose
unnecessary new burdens on the owner
or operator, EPA believes it appropriate
to promulgate them.
2. Consideration of Seismicity in Local
Geology
Two commenters suggested that
§ 146.62(b)(2), which lists parameters to
be considered when evaluating local
geology, include consideration of the
. seismic history of the site. The proposed
rules, at § 146.62(b)(l), required
consideration of seismicity on a
regional, not local basis. The Agency
intends to retain the requirement as
proposed for several reasons. First, the
United States Geologic Survey (USGS)
at the request of EPA, recently
completed a study on potential
earthquake hazards associated with
injection wells (Ref. 5). That report
recommended regional evaluations of
tectonic stress as a critical part of site
evaluations. The Agency believes that
concerns of a more local nature, if any.
are better addressed try a monitoring
program. A more comprehensive
discussion of the USGS report and the
role of seismicity in siring and operating
injection wells is provided hi Section
(II1}(1}(6) of this preamble.
3. Geologic Criteria
Several commenters objected to the
requirement in § 146-62(.b){3] ™bich
required that the site be capable trf
being modeled accurately. These
commenters noted that precise
predictions of the location of a plume or
a pressure front are not necessary,
rather, the modeling must be capable of
bounding the problem.
EPA agrees. The intent in this section
was to be sure that the geology of the
site was not so complex that modeling
would not provide meaningful resorts.
The Agency was concerned that the -
complexity of the site not -outstrip the
technology available to model it.
Accordingly. th« language is being
revised to address this specific vumxin.
4. Standards Applicable to the Injection
and Confining Zone
Section 146.62{c) of the proposal
contained performance standards which
the confining zone would have to meet.
This section required that the confining
zone be laterally extensive and free of
transmissive transecting faults over an
area sufficient to prevent movement of
fluids into a USDW. In addition, this
section would have required that the
confining zone contain at least one
formation of sufficient thickness and
with lithologic and stress characteristics
capable of preventing vertical
propogation of fractures.
There was extensive comment on this
provision. Most objected to the
requirements as stated, maintaining that
the two provisions were redundant. On
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the other hand, one commenter.
supported by several others, contended
that the presence of any fault should
preclude siting an injection well,
regardless of whether that fault had the
capacity to transmit fluid to overlying
zones. They suggested that such faults
made accurate modeling impossible.
These same commenters suggested that
EPA should specify a minimum
thickness and permeability which the
confining zone must meet and further,
that these parameters be measured only
in the formation directly adjacent to the
injection zone.
The Agency agrees that §§ 14G.62(c)(2)
(i) and (iij address similar concerns, but
does not believe this suggests .that one....
or the other requirement be deleted, as
the commenter maintains. It is a
common practice in engineering to build
safeguards into systems, particularly
where uncertainty may exist, or where
the consequences of error are
significant. Thus, EPA does not believe*
that the logical consequence of finding
that these requirements overlap is to
delete one or the other of them. Rather.
the Agency believes these requirements
to be complementary; together providing
a level of assurance consistent with the
mandate of the SDWA and RCRA.
Pertaining to the commenter who
suggested specific numerical
requirements applicable to the confining
zone. EPA would like to note that
precisely that option was examined
during the course of regulatory
negotiations. As outlined in the
preamble to the proposal [52 FR 32458).
the factors which define an acceptable
site are often qualitative. Specifying a
set of quantitative values outside the
context of the myriad other factors that
must be considered in siting decisions
would not be effective. To be workable
in all cases, these values would have to
be so restrictive mat safe sites would be
prohibited, or the rule would have to
provide the option of allowing the
Director the authority to waive them
when not necessary or appropriate. The
Agency believes that it is better to allow
consideration of qualitative factors such
as the plasticity of the rock, the type and
amount of clay in the confining zone, the
relative difference in permeability
between the injection and confining
zone, the seismicity of the area, the
characteristics of the injected and
formation fluids, the relative pore
pressures, the depth of the injection
zone, and a host of other factors as they
relate to defining adequate siting in the
first instance.
Finally, one commenter apparently
believed the Agency was somehow
trying to restrict the orientation of any
fractures developed during well
stimulation. This commenter pointed oui
that below certain depths fractures form
on a vertical 'axis. In response. EPA
would like to note that § 146.62(c)(2)(ii)
pertains to the confining zone, not the
injection zone. Moreover, this section is
meant to deal with the vertical
propagation of fractures, not their
vertical orientation. The existing rules
allow fracturing of the injection zone
during well stimulation, and EPA
recognizes that these fractures, below
certain depths, will be oriented (but not
propagated) vertically. Nothing in
today's rule alters or attempts to alter
the physical fact of a fracture's
.orientation. oc.the.operator',s-right to-
stimulate the well. The purpose of
§ 146.62(c)(2)(ii) is to be sure that at
least one formation has the right mix of
thickness and plasticity to prevent a
fracture from moving up (that is
vertically propagating) through the
stratigraphic column.
5. Additional Safeguards
Section 146.62(d) outlined four
safeguards, one of which the owner or
operator would have to demonstrate to
the satisfaction of the Director that his
site shared. They included (1) a showing
that a "buffer" aquifer/aquiclude system
was present between the confining zone
and the base of the lowennost USDW or
(2) a showing that within the area of
review the piezometric surface of the
fluid in the injection zone was lower
than the piezometric surface of the
lowennost USDW or (3) a
demonstration that there was no USDW
present or (4) that the geology, nature of
the waste, or other considerations
would not allow an undiscovered
conduit to endanger a USDW.
As stated in the proposal, the goal of
§ 146.62(d) was to deal with the
uncertainties which some members of
the regulatory negotiation committee
believed were inherent in characterizing
geologic conditions in the subsurface.
These requirements were intended to
either eliminate the uncertainty involved
in characterizing subsurface geology, or
the consequences of failing to identify a
breach in the confining zone, be it a
man-made conduit or a natural
transmissive fault or fracture.
Several commenters objected to the
requirement for additional safeguards in
general, and the need for a "buffer"
aquifer/aquiclude system between the
top of the confining zone and the r>ase of
the lowermost USDW in particu:; •.
They noted that the existing siting
requirements, particularly when
considered with those proposed in
§ 146.62(c), in conjunction with the Area
of Review requirements and Corrective
Action requirements in § § 146.63 and
146.64 respectively, adequately
addressed concerns about abandoned
boreholes or improperly completed
wells. One commenter suggested that
since § 148.20 required the presence of
an arresting layer within the injection
'zone, and § 146.62(c)(2) specified
minimum standards for a confining zone.
this provision effectively applied a third
layer of redundant protection to the
siting requirements. The commenter
believed this level of regulation to be
excessive.
The Agency agrees tha' the AOR and
Corrective Action require :;;°nts being
promulgated today address any
conceivable set of concerns which might
arise with respect to abandoned or
improperly completed wells within the
area of review. However, the EPA
would like to note that the requirements
in § 146.62(d) were meant to address
more than just abandoned boreholes;
they were also meant to address
concerns relating to the geology of the
site such as fractures or faults. While
EPA does not believe that uncertainty is
"inherent" in characterizing geology—
given the improvements in remote
sensing, techniques of stratigraphic
correlations, and borehole logging—the
Agency does believe that additional
safeguards are appropriate. These
safeguards address not only problems
. which might arise from an undiscovered
fault, but also problems which could
arise from improper operation. Finally.
EPA would like to reiterate that
overlapping safeguards are a sound and
frequently applied principle of good
engineering. The fact that one set of
requirements addresses a particular
concern does not and should not
preclude application of other rules
which also address the concern.
The commenter who thought that EPA
was applying a "third layer of
protection" beyond those required in
Part 148 and § 146.62(c). apparently did
not understand the relationship between
Part 148 and Part 146. First. Subpart C of
Part 148 does not apply to all hazardous
waste injection wells. Wells which
inject waste which meets, or has been
treated to meet levels specified in 40
CFR Part 268. are not subject to the "no
migration" provisions in § 148.20.
Second, and more important, the two
rules apply complementary, but different
standards. Part 148 applies a "no
migration" standard, while Part 146 is
designed to assure no endangerment of
USDWs. The standards in § 148.20 were
developed to assure that no injected
waste could leave the injection zone.
Part 146 is meant to assure that there
will be no endangerment of USDWs.
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23134 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
either from injected fluid or formation
fluids. With respect to injected fluids,
the standards in 148 are certainly more
stringent since they prohibit migration of
any injected waste at hazardous levels
out of the injection zone. However,
endangerment encompasses a broader
set of concerns and therefore warrants a
broader set of regulatory controls. For
example, the area in which formation
fluid could endanger USDWs is
described by the pressure front induced
by injection; the area in which injected
fluid could move out of the injection
zone, on the other hand, is described by
the size of the waste plume. The
pressure front is always larger—usually
much more so—than the waste plume.
Accordingly. EPA believes it is a
mistake to construe that the
requirements of § 148.20 are equivalent
to those being applied in § 146.62. They
do not address the same universe of
wells, nor do they address the same
concerns. The Agency, therefore, rejects
the notion that the two rules are
redundant and result in an unnecessary
third level of protection.
A number of commenters objected to
the provision in § 146.62(d)(4) which
provides the Director the authority to
approve a site which lacked one of the
specific safeguards outlined in section
(d) (l), (2). or (3), but which otherwise
could show a comparable level of
safety. Most commenters. however.
expressed strong support for the
provision. In criticizing the safeguards
outlined in the previous three
paragraphs, commenters frequently
pointed out scenarios in which the
certainty of characterizing the site
accurately was extremely high, and
therefore the need for redundant
safeguards low or non-existent. These
commenters noted that in some areas,
drilling or other exploration has been
extensive enough to provide extremely
accurate pictures of the geology of the
area and regulatory controls have been
in place and adequately assure that
abandoned boreholes have been located
and plugged. It was such circumstances .
the Agency sought to address when
proposing $ 146.62(d)(4).
Commenters who objected to this
provision seemed to believe that EPA
was subjecting operators to a lesser
standard in § 146.62(d)(4) than in the
other three sections. As one such
commenter expressed it, "EPA has
proposed a broad exception to the siting
criteria These commenters are
apparently confusing the need for a
safeguard, where doubt exists, with the
standard itself. This section is not an
exception to the siting standard. It
provides another means by which the
standard may be met. another way in
which uncertainty may be resolved.
At the heart of this comment appears
to be the contention that any and all
attempts to describe geology are
inherently flawed. The Agency rejects
this contention, and accordingly will
promulgate this section as proposed.
Finally, some commenters were
concerned that this latitude might be
abused by those implementing the UIC
program. The EPA notes that all permit
decisions are subject to rigorous public
participation requirements. If, in an
individual case, a State Director
exercises the discretion afforded him
too broadly, the public will have ample
opportunity to comment, and, if
necessary, challenge his-decision.-If
such an abuse is systematic, EPA will
take appropriate action as part of the
Agency's oversight responsibilities.
D. Area of Review—Section 146.63
One of the key changes proposed for
the Class I regulations was the
expansion of the area of review (AOR).
The AOR pertains to the area within
which the owner or operator must
identify all wells penetrating the
confining zone and the injection zone
and determine whether they have been
properly completed or plugged and
abandoned. In existing UIC regulations
it is defined either by a fixed radius of
Vi-mile from the well bore or by a
calculated "zone of endangering
influence." As a result of the
information gathered during the § 701
survey of hazardous waste injection
wells, concerns raised by the regulatory
negotiation committee, and information
developed from recent research on well
failures. EPA proposed to amend the
area of review requirements for
hazardous waste injection wells by
extending the area to be examined for
abandoned or improperly completed
wells to an area with a radius of 2Vz
miles from the injection well bore or. in
some circumstances, the calculated
"cone of influence" of the well.
The "cone of influence" defines the
area of review as the area described by
the incremental increase in pressure
caused by the injection well. The
Agency believes that the pressure of
concern should be the increment over
background, static pressure conditions
since that is the pressure resulting from
the regulated activity.
1. Increase in the Size of the Area of
Review
The Agency received many comments
on the proposal to increase the size of
the area of review;
Several commenters indicated that the
2%-mile area of review was
unnecessarily large and would require
the well operators to conduct lengthy'
record searches that are time-consuming
and costly, possibly even precluding the
drilling of Class I injection wells in the
very cases where geologic data was
most reliable. In addition, other
commenters stated that the proposed
area of review was totally arbitary with
no technical basis and that using a
calculated cone of influence for the well
was adequate, especially if the
calculated area was substantially less
than the 214-mile minimum requirement.
In reply, the Agency notes that recent
studies on the consequences of well
failures suggest that the single most
significant potential source of
contamination from injection wells
would be an unplugged borehole within
the area of review where there exists a
pressure sufficient to drive fluids up the
borehole [Refs. 6 and 7). EPA also notes
that the State of Texas which specifies a
2V2-mile AOR, and the State of
Louisiana, which specifies a 2-mile
AOR, currently regulate over 60 percent
of the wells injecting hazardous waste.
These States do not give exceptions to
their area of review requirements,
therefore enlarging the area of review
does not significantly increase the
burden for the majority of operators.
Even where there is an increase in
burden, the Agency believes that the
special characteristics of hazardous
waste injection warrant a margin of
safety more stringent than for other
wastes. The Agency believes that a
larger fixed radius is not capricious or
without some technical basis, as our
research in abandoned well studies
indicates (Ref. 6 and 7). Also, during the
course of regulatory negotiation. State
regulators noted that an area of review
between 2 and 2V4 miles represented an
appropriate maximum radius based on
their field observations of hundreds of
injection wells. However, the Agency
believes the intent of the enlarged area
of review can be met adequately with a
2 mile minimum, rather than a 2Vz-mile
area of review. The 2-mile area of
review has the advantage of not
disrupting existing state programs of
substantial size. Under today's rule, the
Director will have the authority to
enlarge the area of review beyond two
miles if he has reason to believe that a
larger area of review is necessary.
2. Calculation of the Area of Review
Many comments were received
concerning the calculation of the area of
review. One commenter believed that
the area of review should be fixed at the
2'A-mile radius value for all wells and
not calculated as there appears to be too
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28135
much confusion on how to calculate an
area of review. In contrast, another
proposed that the area of review should
have a 10-mile fixed minimum radius
from the injection well and expressed a
lack of confidence in a well operator's
ability to either model or calculate the
cone of influence. Accordingly, they
believed the 2Vfc-mile minimum
requirement was not restrictive enough.
The Agency has confidence in the
mathematical calculations for the cone
of influence. Pressure buildup is well
understood, and the effects of injection
can be accurately identified. There may
very well be sites where a calculated
area of review in excess of 2 miles is
indicated. For such sites, today's rule
would provide the Director with the
authority to require an AOR in excess of
2 miles. However, a 10-mile radius
minimum area of review is extremely
large and to prescribe for every injection
well such an AOR would place an
unnecessary burden on both the well
operator and the regulatory agencies
conducting the review, without adding
further protection to the environment.
One commenter suggested that the
area of review should only be tied to
waste plume migration rather than
calculated from reservoir pressure.
EPA would like to note that the
primary concern which § 146.63
addresses is the endangerment of
USDWs. regardless of whether that
endangerment would result from highly
mineralized brines in the injection or
intervening formations, or from the
injected waste stream. In all cases, an
area of review based on the waste
plume would be significantly smaller
than one based on the pressure increase
during the operational life of the well.
and would therefore not prevent
endangerment. Moreover, the long term
concerns associated with plume
movement after the well is plugged, are
addresed in the modeling performed
under § 148.20. Accordingly. EPA will
continue to base AOR on pressure
buildup.
A few conunenters indicated that the
language proposed by the Agency for
the determination of the area of review
was unclear and suggested that the
Agency provide one method of
calculating the area of review to serve
as a guidance for all affected states.
Finally, some commenters were
concerned that one interpretation of the
regulation could require a calculated
area of review which extends
indefinitely in order to satisfy the
reviewing regulatory agency. These
commenters suggested that such a
calculated infinite area of review should
be spatially limited by the Agency to
avoid this potential problem.
The Agency believes that a guidance
may be necessary to clarify the methods
appropriate for establishing area of
review, but does not believe that a
single calculation, or a set of
calculations, describes the universe of
acceptable methods for determining
area of review. Moreover, prescribing by
regulation the appropriate method could
preclude permittees from using more
sophisticated methods which might
become available at some future point.
Therefore, the Agency is not specifying
particular methods of calculating an
area of review in this rule.
The Agency also recognizes that
calculations may result in an asymptote,
or that in some physical settings the
formation pressure will contribute to an
AOR that extends over great distances.
Under current State and Federally-
implemented rules, the problem cf
infinite asymptotes has been addressed
by setting cut-off points when the slope
of the pressure curve flattens. It is not
EPA's intent that operators "chase
asymptotes" when no real potential
endangerment resulting from the well
exists. The physical settings which
might result in calculated AORs in
excess of 2 miles involve highly
overpressurized formations. As noted in
the proposal, overpressurization can be
evidence that the formation is
effectively a closed system. Where
natural or man-made points of discharge
exist, pressure will begin to equilibrate,
and the excess pressure will tend to
"bleed off'. Absent such leaks, the
system will retain excess pressure.
Moreover, such systems are more likely
to be static, resulting in very little or no
flow over time. Accordingly. EPA still
believes the appropriate AOR is
described by the pressure from the well
injection, and further believes that in the
vast majority of cases, that this area is
described by a 2-mile area of review.
Accordingly, the Agency is now
specifying in today's rule, a fixed 2-mile
minimum area of review. But in
recognition that in some circumstances
an area of review may be greater than 2
miles, the Director has the discretion to
require a larger urea of review. One
such reason may be the cone of
influence, which must still be calculated
and provided by the owner or operator
to the Director for his determination of
whether corrective action would be
required for abandoned or improperly
completed wells.
E. Corrective Action for Wells in the
Area of Review—Section 446.64
The Agency proposed additional
corrective action requirements and
proposed reorganization and
consolidation of the current regulations
as §§146.64 and 146.70 in Subpart G. In
general, as proposed, § 146.64 states The
requirements for corrective action and
§ 146.70 outlines the information
required to show compliance with them.
The following response concerns
comments received for corrective action
'requirements in § 146.64.
1. Application of the Area of Review
Under existing regulations, the owner
or operator must submit a plan
concerning the steps taken to address
improperly completed or abandoned
wells within the area of review, but he is
not required to submit a protocol for
identifying all wells within the area of
review. The Agency proposed to require
that an owner or operator submit such a
protocol to the Director outlining how he
intends to identify all wells within the
area of review, and how he intends to
determine whether these wells have
been adequately completed or plugged. - -
The Director would be required to
review the plan, determine whether it is
adequate, and either approve it, modify
it, or deny the application.
An approximately equal number of
commenters supported and opposed this
proposed amendment. Several
commenters specifically indicated that
corrective action should be limited to
only the wells within the cone of
influence, not the proposed 2Vt mile
radius area of review. Some commenters
also cited the problems, both legal and
logistic, associated with wells located
on property not owned by the applicant
as a reason to limit the scope of
corrective action. The Agency will not,
however, require corrective action on
wells within the area of review if it can
be effectively demonstrated that there is
no potential to move fluids through a
conduit. In response to the first concern.
it is EPA's intent to assure that all wells
within the area of review are identified
and evaluated. EPA would like to note
that in some cases, some wells outside
of the cone of influence may have to be
evaluated in a petition demonstration
under part 148: for example, where the
formations are naturally overpressured
and where there is significant flow.
One commenter also contended that
corrective action requirements were not
feasible in many cases because the
operators could not compel other
owners of wells off their property to fix
wells. The existing rules allow the
applicant an alternative to fixing these
off-property wells. If the cone of
influence is very large or if the applicant
cannot access improperly plugged or
abandoned wells outside of his property.
he may seek from the Director
permission to reduce the area within
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28136 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
which wells must be fixed by reducing
pressure and thereby satisfying
corrective action requirements. This
provision is merely a restatement of
existing requirements. As such, the
Agency is neither seeking comment, nor
anticipating making any changes, such
as allowing pressure limitations at the
discretion of the operator, as one
commenter seeks. EPA believes that the
issue of when pressure limits may be
used in order to satisfy corrective action
should be at the Director's discretion.
The Director may choose to limit its use,
for example, in a case where the
operator has violated pressure
limitations in the past. Pressure
limitations, however, are not the
preferred means of meeting corrective
action and EPA will limit its-uses to'"
cases where the Director deems it
appropriate.
2. Abandoned Well Protocol
The greatest number of comments
received concerning corrective action
addressed the information and
substance required in the protocol for
identifying wells in the area of review.
Several commenters were of the opinion
that the Agency should indicate the
necessary steps to establish such a
protocol, the information to be
contained in a protocol, and the specific
requirements concerning the search
methods for abandoned wells. Some
commenters felt that the specific
methods of abandoned well searches
should be indicated while at least one
commenter argued that, except in
unusual cases, it was inappropriate for
an applicant to use any methods other
than a search of public records provided
by local, state, and federal agencies. In
any case, one commenter also felt that
once wells were identified, the
evaluation of wells merely penetrating
into the confining zone was unnecessary
and such evaluation for corrective
action was unwarranted.
In general response to these
comments, the Agency believes that a
technical guidance may be necessary to
further explain protocol requirements.
However, the Agency also believes,
particularly in cases where public well
records are poor or non-existent, that
just a cursory search of well records is
inadequate where hazardous waste
injection is concerned. Furthermore,
EPA also believes that the time to
evaluate well search methodology is
prior to the initiation of the search and
not after. The Agency plans to issue a
UIC guidance on this protocol in the
near future.
Finally. EPA believes that it is
necessary to look at'all wells
penetrating the confining zone in order
to determine if a problem could develop
by the reduction of thickness of the
confining material caused by such
penetration. The evaluation of these
wells does riot compel corrective action
unless the integrity of the confining zone
is compromised. Therefore the review
necessitated by this possibility is
exactly what the Agency is requiring in
the regulations and the regulations will
be promulgated as initially proposed.
F. Construction Requirements—Section
146.65
The amendments for construction
requirements reflect the Agency's
attempt to achieve an appropriate
balance between specific design
standards and more general
performance standards. •Current
regulations describe a very broadly
structured performance standard and
list specific factors that the Director
must consider when evaluating the
construction of a well. As a result of the
Agency's consideration of historical
well construction practices within
states, the section 701 report to
Congress, and the need for a more
clearly defined set of standards, the
Agency is increasing the specificity of
the construction requirements and
adding some new requirements.
The changes in construction
requirements outlined in § 146.65
include: additional criteria in overall
performance standards; more explicit
compatibility requirements: and certain
requirements for owners and operators
injecting through a well equipped with
fluid seals. In addition, § 146.65(c)(l),
which addresses requirements for new
wells, contains a more specific
articulation of the performance
standards outlined in § 146.65(a)(l).
1. General Construction Concerns
There appeared to be general support
for the requirements outlined in
§ 146.65(a). One commenter indicated
support for requiring wells to be
constructed to allow the use of
appropriate testing devices and
workover tools. Another commenter
indicated that in § 146.65(a)(3). injection
"tube" should be changed to injection
tubing. The Agency has made the
correction.
One commenter, supported by several
others, objected to the requirement that
new wells be constructed in a manner
that allowed the use of appropriate
logging and testing devices. This
commenter contended that the best
means of preventing a future leak was to
assure proper construction of the well in
the first place. The commenter went on
to suggest that allowing the design and
construction to be dictated by testing
requirements could be
counterproductive. '.
The Agency rejects this argument. The
commenter apparently assumes there
are instances when the considerations
pertaining to proper construction and
those associated with the ability to
adequately test the well are mutually
'exclusive. The Agency is stating that
both goals, proper construction and the
ability to adequately test the well, are
legitimate and complementary aims that
must be considered during the
construction of a new well.
2. Well Materials and Compatibility
Requirements
For the section concerning well
compatibility-requirements, a number of
commenters indicated that a published
standard for the materials used in well
construction, and their compatibility
with the wastes, may not exist. Also,
they were of the opinion that a well
operator should not be deemed in
violation of a permit based on material
standards since these standards are
usually developed for new materials and
generally do not apply once the material
is placed in service in a well. The
Agency has indicated in this regulation
that in cases where an operator chooses
to use an exotic well material for which
no published or recognized standards
exist, comparable standards acceptable
to the Director would need to be
developed. Therefore, the owner or
operator does have this provision as an
option to a bonafide American
Petroleum Institute (API) or American
Society of Testing Methods (ASTM) or
other published standard. The Agency is
also cognizant that well materials may
deteriorate with use .and time, but notes
that published standards generally
specify limits which are acceptable
during the service life of the material,
not merely upon installation.
3. Casing and Cementing
There were several comments
pertaining to the casing and cementing
of new wells. One commenter suggested
deletion of the requirement that surface
casing must extend below the lowest
formation containing a USDW. EPA
rejects this suggestion. The Agency has
determined that having two strings of
cemented casing, the surface and long
string casing, affords significantly
greater protection to USDWs than a
single string of cemented casing.
Another commenter sought a specific
prescribed depth of penetration by the
surface casing into the confining bed
below the lowest formation containing a
USDW. This is a site-specific issue and
should be established in the context of
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permitting. One commenter also
informed us that in the arctic, the
section of the annulus through the
permafrost must be filled with a non-
freezing fluid to prevent collapse of the
long string casing. Circulation of cement
to the surface upon setting the casing is
therefore precluded in these cases. The
Agency acknowledges this problem and
notes that § 144.16 allows the Director
discretion in approving alternative
cementing programs where no USDW
exists, as is the case with the
commenter's well. Moreover, § 146.65
allows the Director to approve
alternatives even where a USDW is
present.
The Agency also requested, in the
proposed rule, comments pertaining to
the 120% of cakalated-volEme'of cement-
required to be circulated to the surface
when setting casing. In particular. EPA
sought comment on whether more than
120% cf the calculated volume should be
required. Most of the commenters
responding to our request for
information replied that the 120%
cement volume figure was sufficient.
although some believed it to be
inadequate, and others excessive. In
consideration of this response, the
Agency believes that this minimum
amount of recirculation is adequate in
most cases. However. EPA has
incorporated new language in today's
rule which would allow the Director to
require more, not less, than 120% cement
in excess of calculated hole volume if he
determines that geologic and
construction conditions warrant such an
increase.
4. Mechanical Packers and Fluid Seals
The last section of § 146.65 concerns
tubing, packer, and fluid seals. The
greatest number of commenters in this
section sought a change in the proposed
language of the requirement that the
packer be placed above the injection
zone. The Agency agrees that in many
cases it is indeed preferable to set the
packer either at the top of. or within, an
injection zone, and also that some
flexibility in the placemen} of the packer
during the life of the well is needed.
Therefore. EPA has included new
language in this section which will allow
the packer to be located as approved by
the Director.
A few commenters were of the
opinion that the design standard which
proposed that testing and monitoring
requirements for fluid seals be as
stringent as those for wells constructed
with tubing and packer was excessive.
The Agency disagrees and believes that
these requirements are justified in light
of the complexity of the application and
maintenance of fluid seals in general.
The Agency continues to be of the
opinion that the simplicity of the
mechanical packer is preferable in most
cases. However, § 146.65(d)(3) would
allow the owner or operator to install a
fluid seal provided he demonstrates to
the Director that the fluid seal will
provide a level of protection equal to or
exceeding that which a packer-equipped.
well would provide. Many commenters
supported our allowance of fluid seals.
and contended that such seals could
provide protection superior to packers.
C. Logging. Sampling, and Testing—
Section 146.66
The requirements pertaining to
logging, testing, and sampling have been
consolidated into § 146.66 in today's rule
•from-existiraT-§-§146.12[{r) and l«.14(b).
In addition, the Agency is changing the
requirements in several important ways.
As indicated in the August 27.1987.
proposed rule, these requirements apply
only to new hazardous waste wells.
The first change in the regulations
defines the goals of this section. The
establishment of baseline data prior to
injecting against which future logging
and testing can be reassessed is an
important new use of data. The Agency
believes this to be an important concept:
the future utility of many logs is
dependent on having base logs against
which to compare. Therefore, the
operator's ability to demonstrate
compliance at some future time may
depend on what logs he ran when the
well was first constructed. EPA believes
that detailed logging prior to injecting
can be of benefit to both the regulator
and the permittee.
Another change proposed involved
the tests required both before the
casting is set and after it is in place. The
wording in existing § 146.12(d)(2) was
unclear in regard to whether all of the
tests outlined were mandatory or only
one subset was needed. The language in
today's § 146.66 clearly indicates that all
of the listed tests must be conducted.
This regulation also reflects the concern
of some members of the regulatory
negotiation committee that the
technologies used to test wells were
rapidly evolving and that by allowing
the Director to approve an equivalent
alternative, improved tests would not be
eliminated from consideration. Thus the
language in this regulation allows the
Director to approve an alternative or
additional test when he deems it
appropriate. The Agency is also
effectively changing the mechanical
integrity requirements in § 148.68(d).
Now an initial demonstration of
mechanical integrity for new wells must
be made as indicated in current
§ 146.6S(a)(3). A more detailed
discussion outlining the Agency's
rationale for more stringent MIT,
requirements is found in the section of
this preamble which addresses § 146.68.
Testing and Monitoring Requirements.
Although pre-existing regulations in
§ 146.12(a)(15) require the Director to
evaluate an operator's coring program
prior to the granting of a permit, this
provision did not place a burden on the
Director to require coring, or on the
operator to conduct it. Also, EPA
wanted to provide the Director the
authority to require coring of formations
other than the injection and confining
zones. The Apency maintains that the
relatively inexpensive task of coring is
justifiable in view of the information it
provides. Today's rule states the coring
requirement more prescriptively and
affords the Director the authority to
require cores from other formations. The
Agency believes, however, that the
situations in which the Director would
want to require coring of formations " -
other than the injection or confining
zones should be relatively rare.
Another change now requires the
owner or operator to conduct pump or
injectivity tests to identify the
hydrogeologic properties of the injection
zone through an empirical method.
These tests have the advantage of
yielding an aggregate figure which
represents an entire stratum or several
strata. The original regulations required
the Director to "consider" the owner or
operator's formation testing program.
therefore the Agency does not see this
restated requirement as a substantive
change.
In § 146.66(f). the Agency proposed
language which would assure that the
Director has the opportunity to witness
logging or testing procedures by
requiring the permittee to submit a
schedule of testing activities at least 30
days prior to conducting the specified
tests.
1. Coring
The greatest number of comments
pertaining to the § 146.60 requirements
concerned coring. Many commenters
indicated that coring was prohibitively
expensive to the owner or operator.
Some were concerned that sidewall or
continuous cores could not always be
retrieved from certain formations in the
well bore. Other commenters indicated
that the information sought from cores
could be obtained from adjacent well
cores if it could be demonstrated that
the zones of interest were correlative in
each well. The remaining comments on
coring challenged the Director's
authority for requiring coring from
formations other than the injection or
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28138 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
confining zones. As we have already
stated, .the Agency believes that the
information obtained from coring
justifies the expense. Also. EPA is not
requiring coring in existing wells, only in
newly drilled wells. The Agency agrees
that continuous core retrieval is not
always possible, but sidewall cores are
usually recoverable and are acceptable.
As noted in the proposal, if EPA were
to limit its ability to collect relevant
data, the Agency might be placed in the
position of having to turn down an
otherwise approvable site simply
because adequate data wasn't available.
In particular, flexibility in siting
requirements is dependent on the extent
of data available. Today's rule will
contain language which would allow the
Director discretion in accepting core
information from nearby wells in the
few cases where core retrieval was
impossible in a newly drilled well.
With regard to requiring cores and
other logs from formations other than
the injection and confining zone. EPA
disagrees with commenters who
maintain that it is unnecessary. Section
1422 of The Safe Drinking Water Act is
preventative in nature. The UIC
regulations are designed to prevent
endangerment of USDWs regardless of
whether that endangerment results from
highly mineralized formation fluids, or
from injected wastes. Thus, the Agency
can envision circumstances when it will
be necessary to obtain data on strata
lying between the lowermost USDW
and the confining zone to assure that
such endangerment is not occurring.
2. Data Collection Requirements
There were numerous comments to
the proposed rule pertaining to the
requirements for individual logs and
other data collection procedures.
Several commenters believed that
information collection requirements
relating to this section of the regulations
should not be arbitrarily applied to
zones other than the injection and
confining zone. As EPA indicated in the
earlier proposal and mentioned in the
comment response to coring operations,
the Agency believes that it is not being
arbitrary in requiring certain types of
information from other formations
penetrated by the well. EPA believes
that the statute and regulations require
that such information be considered.
The regulations now contain a provision
which would necessitate information
gathering on the formation immediately
below the lowermost USDW. For these
reasons. EPA believes it necessary to
have the authority to require
information on the formations found in
the wellbore. including logging, coring,
testing, and formation fluid sampling.
other than the injection and confining
zones alone. Therefore, we are
promulgating this requirement as
proposed.
3. Logging Tool Concerns
One commenter indicated that the
language in the proposed regulation
concerning deviation checks should be
rephrased to indicate that this type of
procedure was performed during and
not after the drilling of the well. The
Agency agrees and an appropriate
language changes has been made to
eliminate any confusion on this
procedure. Several commenters
questioned the utility of the Fracture
Finder Log and also indicated that the
language in the proposed regulation .
could be interpreted as indicating that
this log was to be run after and not
before setting a casing string. The
Agency believes that a Fracture Finder
Log is very useful in determining the
presence or absence of fractures in close
proximity to the well bore and is an
essential part of ensuring that all
necessary data regarding fractures in
the injection, confining, or other relevant
formations has been collected. This log
also helps establish strike and dip,
which can be invaluable in
characterizing stratigraphy. Therefore,
the Agency will continue to require this
log for all newly constructed wells.
However, the Agency has rephrased
§ l46.66(a)(2)(ii)(B) to clearly .indicate
that this log should be run prior to
setting casing. The language also allows
the Director the discretion to waive this
log requirement where he determines
that other information would suffice, or
where the application of this log. such as
in unconsolidated sediments, has proven
to be ineffective.
Several commenters pointed out that
there could be some confusion by
owners or operators in the terminology
of "density log" as used in
5 146.66(a)(2)(i)[B) and
§ 146.66(a)(2)(ii){C). The Agency is
aware that the required log is not an
open-hole formation evaluation density
log. but rather a variable density log run
in conjunction with a cement bond log
-or other cement evalution log. The
appropriate terminology has been
inserted in today's rule.
One commenter indicated that the
proposed rule in § 146.66(d) requires
only a calculation of the fracture
pressure of the injection and confining
zones. The commenter maintained that
such calculations were subject to
uncertainties of 10% or even more. In
view of this, they suggested that only a
direct measurement should be accepted.
The Agency's study pertaining to
earthquake hazards and seismicity (Ref.
5) indicates that the most reliable
method of making such measurements is
by direct methods, such as hydraulic
fracturing. However, the Agency
believes that in some cases, the Director
should have the discretion to accept
equivalent methods or calculations, or to
.rely on existing data. For example, in
many cases there exists a substantial
body of historical information which
will enable fracture pressures to be
calculated with great precision. In such
instances. EPA believes that the
Director should have the discretion to
accept such calculations, and is
therefore promulgating the rule as
proposed.
4. Witnessing of Logging and Testing
Procedures
Finally, several comments were
received concerning § 146.66(f). which
gives the Director the opportunity to
witness all required logging and testing..,
All of these comments stated that the
30-day notification by an operator to the
Director prior to the first test or log was
too long, and that a 24-hour, or at most a
few-day prior notification period was
adequate. They indicated that often last
minute changes occur which could
render the schedule maeaningless. The
Agency is simply requiring that the
Director be provided with a schedule of
planned logging, coring, or testing
activities 30 days before these
operations take place. Any changes in
the anticipated time of logging, testing.
or other activity can be communicated
to the Director as agreed upon by the
concerned parties. The schedule is
needed in order for the Director to
determine whether these activities need
to be witnessed.
H. Operating Requirements—Section
146.67
Proposed § 146.67 outlined operating
requirements applicable to hazardous
waste well owners/operators. Extensive
comments were received on this section.
1. Annulus Pressure Requirements
Many commenters addressed
§ 146.67(c), which requires, under most
circumstances, the maintainance of an
annulus pressure that exceeds the
. operating pressure. This amendment
was included to insure that a leak in the
tubing would result in annulus fluid
moving into the tubing, not in waste
moving into the annulus. Some
commenters supported this amendment.
The majority of commenters on this
section felt that Director discretion was
necessary in the application of this
requirement when the mechanical
integrity of the well might be adversely
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Federal Register / Vol. S3. No. 143 / Tuesday, July 26, 1988 / Rules and Regulations 28139
affected by the pressure differential.
Others said that in certain situations,
leak detection can be more effectively
carried out when injection pressures
exceed annulus pressures. One
commenter requested that this
requirement be waived if no USDWs are
within the Area of Review. The Agency
believes that the proposed language,
"* * * unless such a requirement might
harm the integrity of the well * * *"
provides Director discretion and
adequate permitting flexibility for
instances when a positive hydrostatic
balance across the injection tubing
could lead to loss of mechanical
integrity. No examples of superior leak
detection in situations where injection
pressures exceed annulus pressures
were provided by any commenter.
Generally, EPA docs not believe that
lack of a USDW within the Area of
Review is an adequate reason to stay
this requirement for wells injecting
hazardous waste. However, the existing
UIC regulations at § 144.16 do allow the
Director the authority to waive certain
construction and other permit
requirements. The Agency intends that
this authority be limited in application
for wells injecting hazardous waste, but
does recognize that specific
circumstances may warrant application
of this exemption. The Agency believes
that § 146.67(c) contains considerable
flexibility and is therefore promulgating
it as proposed.
2. Continous Recording and Alarm
Requirements
The Agency proposed, in § 146.67(f).
to require an operator to continuously
monitor the injected fluid. In addition.
EPA proposed to require the owner or
operator to install either automatic
shutoff systems or, in cases where the
owner would verify that an operator
was on site at all times, automatic
alarms. These systems would sound an
alarm or shut-in the system whenever
pressures or flow rates exceeded a
range or gradient specified in the permit.
The Agency received extensive
comment on this provision, much of it
supporting the requirement, but
objecting to the specific parameters
outlined in the proposal. Most
commenters suggested that the
appropriate value to monitor was the
injection pressure and/or the annulus
pressure. A few commenters were
concerned that requiring such devices
could result in the facility being shut
down by "false alarms". These
commenters noted that operating
parameters frequently vary within an
acceptable range as a result of changes
in temperature, density, or other
physical changes. These changes.
according to the commenters. frequently
fall well within permit standards.
The Agency agrees with these
comments. Effective automatic shutoff
or alarm systems may be designed to
react to a combination of several key
parameters, including those specified in
the proposal. Accordingly, the final rule .,
will afford the Director more discretion
in deciding which parameters to include
in the permit. With regard to the
commenters concerned about "false
alarms", EPA notes that the range of
values which can be acceptable (i.e.
those which would not trigger an alarm
or shutoff system) is defined in the
permit, and can be designed so that the
parameters may vary within specified
limits whichrasy-be both protective and'
sufficiently flexible to avoid
unnecessary shut-ins.
A few commenters questioned the
need to monitor continuously for one or
the other of the temperature, flow rate.
volume or injection pressure. Others
suggested that the list be expanded to
include other parameters such as
density.
The Agency is seeking to identify
information in this section which helps
characterize operational characteristics
of the well. Changes in any of the
parameters outlined could affect the
way the well operates or obscure the
interpretation of reported values (for
example, increases in temperature result
in increased annulus pressures). The
very flexibility which these commenters
sought in the application of this
requirement can be allowed only when
the Director has access to the
parameters outlined.
Requiring additional parameters to be
reported is not necessary- The Agency is
not seeking to define the physical and
chemical properties of the waste in this
requirement. That is being required in
§ I46.68(a)(l).
3. Fault and Fracture Propagation
A few commenters addressed
§ 146.67(a), which concerns the initiation
and propagation of undesired faults and
fractures. One wanted this section
changed to allow for a "bulb" around
the well bore within which horizontal
fracturing of the injection zone would be
permitted. The Agency believes that the
integrity of an injection zone is in part
contingent upon the existence of few or
no vertical fractures within the injection
zone. In the context of well stimulation,
both vertical and horizontal fracturing
are permissible when they will assist in
the creation of additional safe, disposal
area within the injection interval, but
will not allow fracturing of the confining
zone. All other pressure-induced
fracturing within the injection zone is
impermissible.
Another commenter felt that
§ 146.67(a' was unspecific in its
requirements concerning allowable
injection pressure, allowable fracturing
during stimulation, and margins of
safety. The Agency has promulgated
Part 146 as a regulatory framework for
both Primacy and Federally
implemented states. As such. Part 140
specifies broad minimum standards
which define acceptable Slate programs.
The additional precision which the
commeuter requested can be found in
the individual Slate programs in
primacy States, or in Part 147 for
Federally-administered programs. Part
145 was naver intended to detail to the
letter permit requirements. Rather it sets
broad parameters within which permits
are to be issued. The Agency believes
the operating requirements proposed at
Part 146.07(a) are appropriate for
minimum standards, since there is a
great deal of disparity in fracture
gradients from State to State and even
within a single State.
/. Testing and Monitoring
Requirements—Section 146.68
The requirements for testing and
monitoring are addressed in § 146.6B.
The Agency indicated in the August 27,
1987, proposed regulation that this
section restates existing requirements
more explicitly, changes some
substantively, and adds new
requirements. This section also adds a
requirement for a waste analysis plan.
establishes more precise standards for
hydrogeologic compatibility
determinations, specifies the
requirements for the compatibility of
well materials and monitoring, revises •
and strengthens mechanical integrity
testing, and establishes more specific
ambient monitoring requirements.
1. Waste Analysis Plan
The written waste analysis plan
requires a description of how the waste
will be analyzed and sampled and how
the analysis will assure that the samples
will be representative. The approach
adopted by the Agency follows
§ 264.13(b) of the RCRA regulations and
the Agency believes this to be a sensible
approach. Most hazardous waste
injection well operators will have
surface units subject to RCRA and will
have a plan already developed. One
comment received for the waste
analysis plan suggested that a guidance
was needed for specifying the detailed
chemical and physical analysis needed
for this requirement. The Agency
believes that a guidance is necessary.
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28140 Federal Register / Vol. 53, No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
and will issue it as soon as possible.
Indeed, this guidance is under
development in response to similar
concerns regarding § 264.13(b). It will be
issued as expeditiously as possible.
2. Hydrogeologic Compatibility
The approach to addressing
hydrogeologic compatibility requires the
operator to submit a plan which
identifies anticipated reaction products
and demonstrates to the Director's
satisfaction that neither the waste nor
the reaction products would adversely
affect the injection or confining zone. In
other words, both the injection and
confining zones must continue to satisfy
siting requirements in § 146.62. This
amendment clarifies and adds some
specificity to existing regulations in
§§ 146.12 and 146.14, but does not
substantially alter them.
Several concerns were indicated
regarding hydrogeologic compatibility
requirements. One commenter
maintained that this requirement was
already addressed in the § 148.20
petition process. The petition process,
however, does not cover all hazardous
waste injection. Moreover, for the
foreseeable future, EPA will be
implementing the petition process, while
in many cases. States are implementing
Part 146 requirements. Thus, the data
may not be available for States to
determine compliance.
Another commenter expressed the
opinion that compatibility should only
be required for the arresting layers of
the injection zone and not the confining
zone. The Agency disagrees and
believes that in order to meet the siting
requirements in § 146.62, an assessment
of hydrogeologic compatibility of the
confining layer must be made.
One commenter sought a change in
the language addressing cases in which
the waste stream in an existing well
changes. The commenter believed that
such a change should require the
Director to take into account what the
formation is like at the time of the
change for the assessment of
hydrogeologic compatibility. The
Agency believes that this concern is
addressed in the existing requirement
The owner or operator must provide
information acceptable to the Director
that the relevant protection
characteristics of the confining and
injection zones are not compromised.
3. Compatibility with Well Materials
Section 146.68(c) requires that the
owner or operator of the hazardous
waste well provide assurance that the
materials in the well are compatible
with the injected fluid. Corrosion
monitoring, generally accomplished by
exposing well components or coupons to
the waste stream, provide the necessary
data for addressing well material
compatibility. Several commenters
contended that continuous corrosion
monitoring was usually unnecessary
particularly when a non-corrosive waste
stream is injected. Others suggested that
such monitoring should be required in
all cases, regardless of whether the
waste may be corrosive nor not.
The Agency believes that in many
cases, the rates of corrosion can be
accurately predicted, particularly in
wells with a long operating history and
with a waste stream of a consistent
composition. The Agency has therefore
afforded the Director some latitude in
requiring monitoring, as indicated in
§ 146.68(c)(l); the owner or operator
needs only to demonstrate to the
Director that the waste stream will be
compatible with well materials in
contact with the wastes. However, the
Agency will require continuous
corrosion monitoring of the well
construction materials used in the well
for wells injecting corrosive wastes. The
Director is given the discretion to
require such monitoring for other
wastes, but alternative methods may be
approved by the Director.
4. Mechanical Integrity Testing
Current mechanical integrity tests
(MITs) require the operator to check for
fluid movement behind the casing
(including movement of formation fluids
through cement channels adjacent to the
well bore) and for leaks in the tubing,
casing, or packer. These tests are to be
run at least once every five years. The
frequency of testing was especially
controversial when the UIC regulations
were initially proposed and promulgated
(see 45 FR 42500 et seq.. June 24.1980).
and for this reason, in part EPA
included § 146.15 which specified that
the EPA would review the adequacy of
certain requirements, including MIT
tests. After analyzing annual and
quarterly reports and reviewing the
results of the section report, the Agency
has concluded that the frequency of
certain tests is inadequate and that
certain other tests not specified in
existing regulations should be added. In
several instances, problems developed
and evolved within a five-year time
period. While these problems were
detected by routine monitoring, it
suggestes that the MIT testing frequency
needs to be increased.
In view of these concerns. EPA is now
requiring annual pressure tests and is
also requiring the operator to conduct an
annual radioactive tracer survey (RTS)
for wells injecting hazardous waste.
This test is required in many State
programs and has been approved by
EPA for use in federally-implemented
programs. Moreover, RTS tests are
effective for locating leaks in the bottom
hole cement and they can be utilized for
leak detection of a well's tubular goods.
and in some instances fluid flow behind
casing. In addition, the Agency is now
requiring the use of a tool to evaluate
the casing prior to operating the well for
new wells, and at least once every five
years thereafter for all wells. This tool,
which uses electromagnetic flux to
measure the thickness of the casing, has
the advantage of being predictive. It not
only indicates the presence of a leak in
the well casing, but also shows
developing weaknesses. The language
affords the Director some discretion in
using this tool since it is not effective
with some casing materials.
The majority of comments pertaining
to this section of the proposed
regulations opposed the increase in
stringency of mechanical integrity
testing. Many commenters were of the
opinion that the mechanical integrity
testing requirements were excessive
even in the current regulations. They
objected particularly to the casing
evaluation tool, maintaining either that
it should not be required in addition to
existing MIT requirements or that it
should only be run if a well were
worked over, but in no case every five
years. As previously mentioned, the
Agency has determined that the
predictive ability of this tool warrants
its use, and the propensity for problems
to develop in a well within a five year
time period justifies the frequency of
use, particularly with wells injecting
hazardous wastes. Such wastes are
often corrosive. Numerous commenters
objected strongly to the prospect of
pulling the tubing and packer at specific
.intervals in order to assess mechanical
integrity and suggested that such testing
be limited to periods of well workovers.
They contended that pulling tubing
could damage the well. The Agency
disagrees. Mechanical integrity tests
such-as the temperature log and the
noise log are currently required to be
run every five years by existing
regulations. These test are most
sensitive when run with the tubing
pulled; thus, in most cases, the tubing is
being pulled every five years anyway.
The casing tool, which is run with the
tubing pulled, is to be run every five
years as well and should not
significantly contribute to the "down
time" of a well as some commenters
argue. Moreover, a demonstration of
mechanical integrity is already required
after every workover and the
regulations state that the Director may
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28141
schedule the required tests to coincide
with workovers whenever possible.
Several commenters also questioned
the need for annual RTS testing as they
also believed it was excessive and that
the bottom hole cement never degrades.
The Agency believes that an annual RTS
test is justified in that it assures the
operator that the waste stream is being
emplaced in the injection zone and that
the bottom hole cement is intact In
addition, use of the RTS does not
require tubing to be pulled for assessing
bottom hole cement and, in some cases,
potential leaks in casing, tubing, or
packer. Finally, in response to one
comment, the Agency does not believe
that visual inspection of pulled tubing is
a viable alternative for a-pressure-test-or"
an accurate assessment of the tubing's
mechanical integrity.
5. Ambient Monitoring
The ambient monitoring requirements
are specified in § 145.13 and apply to
owners and operators of all Class I
wells, not just those who inject
hazardous waste (see Section (IV) of
today's preamble). Section 145-68(e)
restates these requirements as
applicable to Class 1 hazardous waste
wells in order to facilitate easy
reference for the regulated community.
The Agency has been investigating
methods of ambient monitoring which
might be useful and will continue to do
so. With one exception, there appears to
be no single technique which could
provide meaningful data at all sites. The
question of what might prove effective -
at a given site depends on the
hydrogeologic setting and the
characteristics of the operation.
Many commenters urged the deletion
of the one technique that the Agency
believes has the broadest application;
the monitoring of the pressure decay or
pressure fall-off testing of the injection
zone when the well is not injecting and
assessing whether the pressure .decay
curve tracks predictions. Commenters
believed that this was not always
effective, and could be inaccurate.
Predicted pressure decay curves are
made for siting and area of review
calculations and are based on
hydrogeologic data and operating
parameters such as injection pressure.
fluid density, and volume injected. If the
geology has been accurately portrayed.
then the pressure decay should
generally match predictions. If an
unexpected fault or fracture is
transmitting fluid it will decline at a
faster rate, or conversely, if a boundary
condition is present then the decay
curve will be slower than anticipated.
The Agency agrees that no ambient
monitoring system is foolproof, and
agrees that false readings could occur.
Nevertheless. EPA has determined this
to be the most universally applicable
monitoring method and has evidence
showing it to be accurate in most
instances. Therefore. EPA is requiring
pressure decay monitoring of the
injection zone annually.
There were several commenters who
requested a language change in this
section that would allow the Director
more discretion to conduct ambient
monitoring. Other commenters sought to
require monitoring in the injection zone,
the first aquifer above the injection
zone, and the lowermost USDW. Still
other commenters indicated that
ambient monitoring should be strictly a
•site*spreific requirement The Agency
agrees that ambient monitoring
requirements should be site-specific and
has indicated this in the proposed rule
(see 52 FR 32463 and 32464) and today's
final rule, and gives the Director
discretion in determining an acceptable
program.
6. Seismic Monitoring
As noted in Section (ffl)(C)(2) of this
preamble, the Agency believes that
seismicity monitoring may be necessary
under certain circumstances. A1987
USGS report indicated several key
factors in determining when an injection
site might be the cause of increased
seismic activity: (1) a large difference
between the maximum and minimum
compressive stress of an area, (2) the
preexistence of faults or fractures of
sufficient size and orientation to
facilitate induced seismic activity, (3)
relatively high injection pressures. (4)
clusters of wells within a relatively
small area, and (5) an injection zone of
low permeability. As noted in the USGS
report such conditions and the resulting
earthquakes are rare, and are associated
almost exclusively with water-flooding
operations for the purpose of secondary
recovery of oil. a Class II injection
activity. Such Class II activity is often
characterized by large arrays of wells
injecting at high pressures into small,
confined reservoirs with low
permeabilities. In contrast waste
disposal wells typically inject at lower
pressures into large, porous aquifers of
high permeability. Only one waste well
has ever been conclusively linked with
seismic activity of any significant
amount
EPA believes that the potential for
Class I hazardous waste injection to
induce tectonic activity is minimized by
a number of requirements being
promulgated today. Section 146.62(b)(l)
prohibits the siting of a Class I well
unless the director has considered
regional seismicity in his evaluation of
the geologic suitability of the proposed
site. Section 146.62(c)(2)(i) requires a
confining zone that is laterally
continuous and free of transecting faults
or fractures, a requirement which
improves the confining zone's ability to
prevent increased seismic activity.
•• The Agency can foresee, however.
limited circumstances where local
seismic monitoring may be necessary.
Seismic stations are neither expensive
nor burdensome in the time required for
their installation and operation. Today's
final rule at § 146.68(0 will provide the
Director the authority to require seismic
monitoring on a case-by-case basis. The
results of any monitoring required under
this section will be reported under
§ 146.69(a](7).
/. Reporting Requirements—Section
146.69
Section 146.69 of the proposal detailed
the minimum reporting requirements for -
owners and operators of Class I
hazardous xvaste injection wells. A
variety of comments were submitted
concerning this section.
1. Injectivity Index
The Agency received several
comments on 5 146.69(a)(2). which
required the owner or operator to report
changes in the ratio between injection
pressure and flow rate. In the proposal.
the Agency tied this reporting
requirement to the gradients established
in § 146.67(f) which are used to trigger
automatic alarms or shutoff devices.
As several commenters correctly
pointed out. the ratio between injection
pressure and flow rate—commonly
termed the injectivity index—is best
used to evaluate the long term
performance of the injection formation.
Thus, tying the requirement to the
provisions in § 146.67(f) makes little
sense, and the Agency is changing this
requirement in the final rule to reflect
the more appropriate application of this
requirement
Some commenters suggested that
there was no legitimate need to require
operators to report information on
injectivity indexes. They contended that
the primary purpose was to tell the
operator when it may be necessary to
stimulate the formation or conduct other
routine maintenance. If the only result of
such observations were to note an
orderly increase in pressure while flow
remained relatively stable, this
commenter would be correct. The
obvious conclusion to be made from this
observation would be that the formation
or well screen was becoming clogged—
an operational inconvenience, but in
most instances not an environmental
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concern. However, other outcomes may
be observed. For example, a decrease in
pressure with flow remaining constant
or increasing, could indicate that the
formation is fracturing or that a point of
discharge has been reached. Similarly,
an increase in flow while pressure
remained constant could provide
evidence that there were problems with
the formation or the geologic
description. Accordingly, the Agency .
rejects the contention that reporting the
injectivity index has no legitimate
regulatory purpose, and retains the
requirement with the change outlined
above.
2. Shutdown Requirements
Section 146.09(a)(3), the new alarm,
shutdown, and resulting response
requirements, received many comments.
Of particular concern to some was
discrepancy between this section and
§ 146.67. In the preamble of the
proposal, EPA addressed false alarms or
shutdowns, stating that, "The Agency is
not interested in receiving a report any
time such an event occurs: nor would it
want the operator to shut in the well
under these circumstances." This
position, while reflected in § 146.67, was
not clearly stated in the reporting
requirements at § 146.69(a)(3). The
Agency believes that there is no
immediate need to report false alarms or
shutdowns. Such requirements place
unnecessary burden on both operator
and regulator. Today's final rule at
§ I46.69(a)(3) requires immediate
Director notification only if a loss of
mechanical integrity is expected. Other
routine occurrences would be reported
with quarterly reports.
3. Annular Fluid Loss or Gain
Two commenters believed that
§ I46.69(a)(5) should require the
reporting of not only annular fluid lost, if
any, but also annular fluid gained, if
any. They noted that this would serve a
dual purpose: 1) the indication of leaks
in the well tubing: and 2) the indication
of situations where, contrary to the new
§ I46.67(c) requirements, injection
pressure exceeds annular pressure. The
Agency believes that this comment has
validity, and today's promulgation of
§ 146.69(a)(5) reflects this new
requirement.
K. Information to be Evaluated by the
Director—Section 146.70
Section 146.70 sets forth the
information which must be evaluated by
the Director in authorizing Class I
hazardous waste wells. This section
essentially restates- the information
required in § 146.14 of the existing
regulations. As such, the Agency
believes it is under no obligation to
address comments which are targeted at
the already promulgated standards of
§ 146.14 and simply recodified at
§ 146.70 for the benefit of the injection
community. Substantive comments
relevant to proposed additions or
changes, however, are addressed below. ,
One commenter requested that the
location of any penetrations of the
additional confining zone required by
§ 146.62(d)(l) be submitted to the
Director as a § 146.70 requirement.
Another commenter believed that the
time at which closure/post-closure plans
are to be submitted should be included
in § 146.70. The requirement for
information in § 146.70 on wells which
penetrate the confining-orinjectian zone--
was duplicative, according to one
commenter. One group believed that this
section omitted the regional seismicity
information required in § 146.62. Prior to
the issuance of a permit, one commenter
believed that the chemical and physical
characteristics of the fluid to be injected
should be evaluated by the Director.
Finally, one commenter believed that
the requirement for a program to reduce
the volume or quantity and toxicity of
the waste produced at a facility should
be approved by the Director.
1. Confining Zone Penetrations
One commenter requested that the
added second confining stratum
provided by § 146.62(d)(l) be deleted,
stating that "it will create far more
problems than it is intended to solve
. . .". This same commenter went on to
suggest that EPA request the location of
any penetrations of this stratum as well
as an evaluation of the potential for
further migration through this stratum.
The Agency notes that the location of -
these wells will be required under
S 146.70(a)(2). However, EPA believes
that this stratum, while adding an
additional measure of protection to an
injection site, does not need to be part of
the corrective action plan.
One commenter requested the
inclusion, in 5146.70. of deadlines for
the submission of post-closure plans.
These plans are required as part of the
permitting process. As the commenter
noted, these plans must be submitted
with the initial permit application. The
Agency sees no need to further regulate
this action, as similar plans for plugging
and abandonment have been handled in
a timely manner to this point
Another commenter wanted to delete
the phrase "injection zone" from
§§ 146.70 (a)(3). (a)(4J. and (a)(15) as
well as other areas. He indicated that
'The proposed regulations request
information on wells which 'penetrate
the injection zone or the confining zone'
* * * All wells which penetrate the
confining zone is sufficient. If a weft
penetrates the injection zone it will have
penetrated the confining zone." In
requiring the owner or operator to
consider penetrations of the confining
zone, the EPA was seeking to address
. partial penetrations of that zone, not to
reopen the existing requirements
relative to injection zones.
Therefore, today's promulgation
remains unchanged from the proposal, in
this regard.
2. Regional Seismicity
One group noted that the regional
seismicity siting requirement of
§ 146.62(b)(l) was not included in
§ 146.7C as information to be evaluated
by the Director. Pursuant to
§ 146.70(a)(2), the applicant must show
the location of known or suspected
faults. Section 146.70(a)(6) requires an
analysis of the regional geologic
structure, and § 146.70(a)(9) requires a
formation testing program. Together,
these information requirements provide "
the data which allows the owner or
operator and die Director to assure that
the requirements of §146.62(b)(l) have
been met. The issue of seismicity
monitoring is addressed in section
{III)(I)(6) of the preamble.
3. Waste Stream Analysis
One commenter believed that the
Director should evaluate chemical and
physical characteristics of the fluid to be
injected before issuing a permit. The
Agency believes that the waste stream
analysis required by § 146.68(a),
combined with the compatibility
requirements of §§ 146.68 (b) and (c),
and § 146.70(b)(6) adequately address
this issue. The same commenter
requested that specific gravity be
included as one of the waste stream
analysis requirements. Specific gravity
analysis is an implicit requirement of
§146.68(a) and does not need to be
codified at § 146.70.
One commenter felt that the Director
should approve the § 146.70(d)(l)
certification that the generator of
hazardous wastes (at a site which
disposes of its own hazardous waste) is
implementing a waste minimization
program that is protective of human
health and the environment. The Agency
notes that the regulatory language tracks
the statutory language in § 3005(h),
which merely requires a certification.
Accordingly, the Agency believes that
the proposed language is most
consistent with the legislative mandate
and today promulgates the language as
proposed.
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Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1968 / Rules and Regulations 23143
L. Closure—Section 146.71
The Agency reorganized and
consolidated existing requirements for
closure in the proposed rule. To the
extent that these represent a
restatement of existing requirements,
the Agency is neither seeking comment
nor making any changes. However, EPA
has addressed concerns regarding any
new requirements proposed.
Three new requirements for closure
include: (1) Requiring the owner or
operator to observe and record pressure
decay for a time specified by the
Director, (2) requiring the demonstration
of mechanical integrity prior to plugging,
and (3) clarifying that both the owner or
operator as well as a third, party, if
different, must certify that the facility
was closed in accordance with the
closure plan.
1. Pressure Decay Data
Most of the commenters objected to
the proposed provision requiring the
owner or operator to observe and record
pressure decay over a time period
specified by the Director. While there
was some support for this part of the
closure plan, several commenters
indicated that it was either not essential'
or should not be an automatic
requirement.
The Agency believes that pressure
decay data helps define the appropriate
period of regulatory concern.
Specifically, when injection induced
pressures in the formation decay, there
is usually no force which will lift the
fluid to overlaying strata, and thus there
is no environmental threat. In
overpressurized formations, this lifting
force may remain but observation of
plugged wells over a thirty year time
period provides sufficient assurance that
the wells are plugged in a satisfactory
manner, and will continue to provide
containment for the long term.
Accordingly, this requirement will
remain as proposed.
2. Cementing and MIT Requirements
Several commenters were of the
opinion that tests to ensure mechanical
integrity of the long string casing and
cement left in the ground before plugging
was not necessary and should not be an
automatic requirement.
The Agency disagrees and further
notes that the EPA presently requires
this demonstration of mechanical
integrity in permits in all federally-
administered programs. Obviously, a
well with casing leaks should not be
plugged as it can eventually become a
source of contamination during the post-
closure period.
One commenter noted that just the
placement of cement plugs in casing
prior to closure will not prevent fluid
movement into USDWs. EPA agrees,
and it is for precisely this reason that
EPA requires MIT tests prior to plugging.
Moveover. the rule specifies that the
plugging must be done in a manner that
will not allow movement of fluids into or
between USDWs, and requires certain
actions such as perforating the casing
where leaks may develop, or placing
cement behind casing prior to setting a
plug. The actions are designed to assure
that the performance standards are met.
3. Authority to Temporarily Cease
Injection
One commenterexpressedthe"
concern that the Agency's rewarding of
the current § 144.28 language created
some uncertainty as to when an
operator must seek authorization to
temporarily cease injection.
It is the intent of this rule that the
owner or operator notify the Director
immediately upon deciding to
temporarily cease injection. The Agency
did not intend, however, to require an
owner or operator to report well shut-ins
associated with routine maintenance or
testing activities. Rather, the notification
should be initiated by the decision to
take the well out of service. In the
proposed rule, the Agency intended that
the owner or operator seek the
permission of the Director in writing,
outlining the technical steps being taken
to assure continued non-endangerment
of USDWs.
4. "Closure"
Another commenter questioned the
use of "plugging and abandonment" in
the proposed regulations whereas RCRA
uses "closure" in referring to this
procedure.
"Plugging and abandonment" has
been a term used in injection well
closure for years. It refers specifically to
the closure of a well. The term
"closure", which is used in RCRA.
pertains to the technical procedures
appropriate to shutting-in a surface
impoundment, landfill, or other surface
land disposal, treatment or generator
facility. In using "plugging and
abandonment" versus "closure" there is
no difference in the protectiveness of the
standard being applied, there is merely
a difference in the types of units that the
term refers to.
One commenter has suggested that
the time requirement for closure report
submission is unreasonable as the
submission of the report may be
required in as little as 15 days if a
quarterly report is also due.
The Agency promulgated this
requirement on May 11.1984. It walr
proposed on September 2.1983 (see 49
FR 20185 and 48 FR 40098 et seq.
respectively). This rule was litigated and
a settlement was reached. The Agency
was not intending to seek comment, nor
was it reproposing the requirement: it
was merely recodifying the requirement.
Accordingly, EPA sees no reason to
amend a requirement which has been in
effect for nearly 5 years, and which
apparently has caused no great hardship
to the regulated community.
Finally, some commenters maintained
that existing closure requirements were
adequate and lhat these proposed
requirements were excessive. The
Agency would like to note that, in
general, today's rule merely restates
what has been existing practice, either
as part of permitting (as in the case of
required mechanical integrity tests) or
as part of earlier rulemaking. In the few.
instances where the Agency has
specified additional or more specific
requirements, it has done so primarily to
make the closure requirements for wells
injecting hazardous waste comparable
to closure requirements for other
facilities managing hazardous waste.
Several commenters requested
clarification on how closure and post
closure requirements would be applied.
This is outlined in the section which
follows.
M. Post-Closure Care and Financial
Responsibility for Post-Closure Care—
Sections 146.72 and 146.73
The Agency is now applying post-
closure care requirements and
associated financial responsibility
requirements to hazardous waste
injection wells. The Agency believes
that even though a proper)y chosen site
should contain the waste indefinitely
under natural conditions, future
injection activities, oil and gas drilling
activities, and other man-induced forces
that may affect containment must be
taken into account. The Agency believes
that the special problems associated
with hazardous waste warrant these
new requirements.
1. Post-closure Care
Comments received by the Agency
pertaining to post-closure care were
generally supportive of the new
requirements. However, several
concerns were voiced by commenters on
various issues.
The regulations, as proposed.
stipulated the appropriate time-frames
for groundwater monitoring, retention of
well records, and notification to State
and local agencies having authority over
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20144 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
drilling activities. The rule would also
require the owner of the surface or
subsurface property on or in which a
hazardous waste well is located to
record certain information on the deed
or other property instrument that would.
in perpetuity, provide notice to any
subsequent purchaser of the property.
A few commenters were unclear as to
when the post-closure period ends. As
indicated in the proposal, the duration
of the post-closure care period is defined
by the length of time the increased
pressure from the injection well would
create the potential to "lift" fluids from
the injection zone. As the injection
pressure decreases to a point where the
induced lift from the well is dissipated,
post-closure requirements would
become unnecessary.
In response to concerns about the
clarity of the rule, the Agency is
changing the manner in which it applies
both closure and post-closure care
requirements. As promulgated today, the
owner or operator would have to submit
a plan for the Director's approval which
outlined the closure and post-closure
care procedures. The requirements of
this plan would survive permit
termination. Any changes which might
be required in the plan could be made
using the procedures of § 124.5.
One commenter suggested that the
notation on the deed required by
§ 146.72(c) pertain to any property
located over the projected position of
the waste plume. The Agency does not
believe it is necessary, or legally
possible to impose such a requirement
It is generally unnecessary because
waste in deep formations moves at
exceedingly slow rates; thus in many
cases it is unlikely that the waste plume
will move appreciably over very long
time frames. Moreover, area of review
and corrective action requirements will
have addressed any concern associated
with abandoned wells. As noted, these
requirements are based on the pressure
front from the well, which exceeds the
plume by a considerable distance. Thus,
there is built-in protection for plume
travel in these requirements.
More importantly, the Agency derives
its authority by imposing permit
requirements on the regulated entity. No
such vehicle exists for surrounding
landowners. Therefore, the Agency sees
neither the technical necessity nor the
legal authority for such a request.
Accordingly. EPA will retain the
requirement as proposed.
Several commenters noted that
required ground water monitoring should
only be conducted until pressure in the
injection zone decays to the point that
there is no longer any risk of vertical
migration into USOVVs. The Agency
agrees and although preamble language
in the proposed rule indicated that such
monitoring must be conducted until
pressure in the injection zone reaches
background levels, language in § 146.72
stipulates that groundwater monitoring
must take place until pressure in the
injection zone decays to the point that
the well's cone of influence no longer
intersects the base of the lowermost
USDW. The Director may extend the
period of post-closure monitoring if he
determines that the well may still
endanger a USDW.
One commenter believed that
groundwater monitoring should be
limited only to the lowermost USDW.
As noted in the discussion of § 146.68 in
this preamble, the Agency has
determined that monitoring
requirements must be applied in a
flexible manner to address site specific
concerns. Therefore, EPA continues to
believe that the specific monitoring
required by the permit is still essential
and will continue to be applied if the
pressure from the injection poses a
threat to a USDW.
Another commenter indicated that the
permittee, not the Director, should
estimate the proposed cost of the post-
closure plan. The Agency clearly stated
in the proposal that the permittee is
required to provide this cost estimate,
and further believes that he is in the
best position to accurately do so. The
Director, in reviewing the estimate, will
have the opportunity to reject it if he
deems it unrealistic.
One commenter explained that the
original formation pressure may not
have been obtained for many existing
wells and that it is not possible to meet
the § 146.72(a)(3) requirement in these
cases. The Agency agrees, but notes that
regulations contain enough flexibility to
allow existing wells which have not
conducted tests verifying background
pressures prior to injection to use
reasonable estimates based on available
data acceptable to the Director.
2. Financial Responsibility
The Agency proposed that the owner
or operator should demonstrate and
maintain financial responsibility for
post-closure care. Only a few comments
were received pertaining to this
requirement
Two commenters believed that
financial responsibility should be
limited only to the time period when
induced pressures in the injection zone
remain sufficiently elevated to pose a
risk of vertical migration into USDWs,
and not until injection zone pressures
decay to background levels. Another
commenter also felt that the financial
responsibility for post-closure
groundwater monitoring should be
required only if the permit requires such
monitoring.
The Agency agrees with these
commenters and articulated this
position in the proposed rule. Therefore,
EPA is not revising this requirement and
.will retain it as proposed.
One commenter believed that
permittees should be responsible for
third party liability costs and that they
should demonstrate up-front financial
responsibility for cleanup in the event
that the waste does contaminate a
USDW. The Agency does not believe
that in the context of injection wells,
such requirements are warranted or
justified. Generally, once the formation
has stabilizedr there is little or no
possibility that waste will move
vertically.
Finally, one commenter recommended
that the Agency use the RCRA post-
closure financial responsibility
instruments.
The rule proposed to use the
requirements of subpart F of Part 144. A
careful analysis of this subpart will
show that these requirements mirror
exactly the requirements outlined in
sections 265 and 264 of the RCRA
regulations.
TV. Summary of Today's Rulemaking:
Response to Comments; Section 146.13,
Ambient Monitoring for all Class I Wells
As proposed. § 146.13 addressed the
requirements for owners or operators of
all Class I wells to develop an ambient
monitoring program. This part of the rule
would also satisfy the mandate of
section 1426 of the Safe Drinking Water
Act. These requirements differ from
other requirements made today in that
they are not restricted solely to Class I
hazardous waste wells, but rather they
are applicable to all Class I wells.
At a minimum the proposed rules
required a monitoring of the pressure
buildup in the injection zone. This would
require an annual shut down of the well
for a period of time sufficient to conduct
a valid observation of the pressure fall-
off curve.
At the Director's discretion, it was
proposed that one or more of the
following site-specific monitoring
techniques may also be required in
order to prevent the contamination of
USDWs:
1. Continuous monitoring for pressure
changes in the first aquifer overlying the
confining zone;
2. The use of indirect geophysical
techniques to determine pertinent
characteristics of the formation and
injected fluids;
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Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 2S145
3. Periodic monitoring of the ground
water quality in the lowermost USDW;
or
4. Any other technique which the
Director deems necessary to protect
USDWs.
Further details concerning ambient
monitoring and the response to several
comments can be found in the preamble
language in Testing and Monitoring.
§ I46.68(e) of today's rule.
As many commenters indicated, the
question of what might prove effective
at a given site depends on the
hydrogeologic setting and the
characteristics of the operation. Many
commenters urged the deletion of the
one technique that the Agency believes
has the best application: the monftoring
of a pressure decay or pressure fall-off
testing of the injection zone when the
well is not injecting, and assessing
whether the decay curve tracks
predictions. Commenters believed that
this was not always effective, was too
costly, and could be inaccurate.
Although some of these concerns may
be valid, EPA has determined that this is
the most universally applicable
monitoring technique and has evidence
showing it to be accurate in most cases.
Therefore, the Agency will require
pressure decay monitoring of the
injection zone annually.
Some commenters were of the opinion
that ambient monitoring was too costly
and should be optional. The Agency
does not believe that this type of
monitoring is particularly expensive
when compared to the information
received. Still other commenters
believed that certain site-specific
monitoring techniques that may also be
required by the Director were either
inappropriate or flawed in preventing
the contamination of USDWs. In
response, the Agency agrees that
ambient monitoring requirements should
be site-specific and has indicated this in
the proposal and today's rule, and has
therefore given the Director discretion in
determining an acceptable ambient
monitoring program.
V. Summary of Today's Rulemaking:
Response to Comments; Amendments to
Parts 121 and 144
A. Part 124
The Agency proposed to amend Part
124 to require that State and local
agencies which regulate oil and gas
activities, and state agencies that
regulate mineral exploration be notified.
by operators, of permit activities for all
Class I wells. This practice could help
agencies coordinate their programs and
apply specific requirements when
appropriate. One commenter supported
this idea, but felt it should work both
ways. i.e.. that State and local agencies
regulating oil. gas. or mineral
exploration and recovery should give
notice of their permit activities to the
agency regulating Class I facilities. The
EPA believes that such coordination
would be beneficial to all involved
parties, but also realizes that its
authority to require such notification
from State regulatory bodies is
questionable. The EPA intends to take
all necessary measures to insure that
federal, State, and local regulatory
bodies are notified of all federally
implemented injection activities.
two commer.ters believed that the
new requirement to notify agencies of
permit sctivitres was burdensome. The
Agency believes that such a requirement
is not unreasonable in the context of
other § 124.10 notification requirements.
On the contrary. EPA believes that such
notification is appropriate, given the
special concerns associated with
hazardous waste injection.
B. Part 144
The proposal contained two
amendments to Part 144. Section
144.31(h) was proposed to assure that
plugging and abandonment, closure, and
post-closure requirements are met. As
outlined in Section (III)(M)(1) of this
preamble, the Agency is changing the
approach. Under the new approach, the
plan will be submitted as part of a
permit application or modification, but
will survive the permit as a directly
enforceable requirement until the end of
the post closure period.
The Agency is also amending
§ 144.52(a) ("Establishing Permit
Requirements") to ensure that all
Subpart G requirements can be
administered through a permit,
consistent with the framework •
established for the UIC program.
Amendments to 55 144.39 (a) and (b)
would broaden the reasons for which
permits may be modified or revoked and
reissued. Specifically, this section would
require permit modification either when
regulations change, or when the waste is
changed or reclassified. The intent of
this change is to give the Director the
discretion to revise or reissue a permit
when the waste becomes or is
determined to be hazardous as defined
in Part 261.
Many commenters objected to the
removal of the "shield" provision. This
provision currently prevents the
modification, revocation, or reissuance
of a permit to require compliance with
new regulations unless the permittee
requests or agrees to such action. They
argue that the Part 146 requirements
have, to this point, proved protective of
human health and the environmenUThe
HSWA Amendments impose new.
higher levels of concern on hazardous
waste facilities. Recently proposed rules
to amend the regulations governing the
disposal of hazardous waste in surface
facilities would broaden the Director's
'.authority to revise permits when
conditions warrant such revisions, and
the Agency believes that rules
applicable to injection of hazardous
wastes should mirror this new approach.
A number of commenters believed
that Part 144 should contain a section
that would grant interim permit status to
wells with approved petitions. It is their
opinion that such approved petitions are
similar inJcind-io a valid permit, and
that administrative procedures
associated with the repermitting process
may delay the continued operation or
startup of their facilities.
In response, EPA would like to note
that an approved permit and an
approved petition are similar in certain
aspects, but they do not address
identical concerns. The Part 148 petition
process does not contain provisions
pertaining to the movement of formation
fluids. The SDWA. however, requires
the Agency to regulate endangerment of
USDWs, regardless of whether that
endangerment were to occur from
injected wastes or formation fluids. The
movement of formation fluids is
regulated through an approved permit.
Review and approval of both a permit
and a petition are required to insure
protection of human health and the
environment, and non-endangerment of
USDWs. It should be noted that the
Agency will attempt to run concurrent
petition and permit review processes
whenever possible.
One commenter addressed 5 144.36'
and the duration of permits. No change
was proposed to this section, and
consequently we are not addressing it.
VI. Regulatory Requirements
A. Regulatory Impact Analysis
Executive Order 12291 requires EPA
to assess the effect of contemplated
Agency actions during the development
of regulations. Such an assessment
consists of a quantification of the
potential benefits and costs of the rule.
as well as a description of any benefical
or adverse effects that cannot be
quantified in monetary terms. In
addition. Executive Order 12291 requires
that regulator}' agencies prepare an
analysis of the regulatory impact of
majcr rules. Major rules are defined as
those likely to result in:
1. An annual cost to the economy of
S100 million or more: or
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28146 Federal Register / Vol. 53, No. 143 / Tuesday. July 26, 1988 / Rules and Regulations
2. A major increase in costs or prices
for consumers or individual industries;
or
3. Significant adverse effects on
competition, employment, investment,
innovation or international trade.
At the request of the Office of
Management and Budget, the Agency
has reexamined this final rule in light of
the changes made since the proposal.
and their effect on its status as a minor
rule. This economic analysis indicates
that the changes made will have no
appreciable effect on the compliance
costs estimated for the rule proposed on
August 27,1987. Total annualized
compliance costs of the regulation are
estimated to total S63 million. Total
capital costs are estimated to totai Si5
million and one-time petition costs are
estimated to be S3 million. These costs
indicate that the rule does not constitute
a major rule under Executive Order
12291 and EPA has not prepared a
formal regulatory impact analysis of
today's promulgation. The Agency has,
however, prepared an assessment of the
cost and potential economic effects of
the rule.
B. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility
Analysis Act, 5 U.S.C. 601 et seq.,
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effect of the rule on small
entities (;'-e, small businesses, small
organizations, and small governmental
jurisdictions). This analysis is
unnecessary, however, if the agency's
administrator certifies that the rule will
not have significant economic effect on
a substantial number of small entities.
Owners and operators of hazardous
waste injection wells are generally
major chemical, petrochemical and other
manufacturing companies. The Agency
is not aware of any small entities that
would be directly affected by this rule.
Part 148.1(c)(3) of this rule exempts any
small quantity generator, as defined in
§ 261.5. from the underground injection
prohibitions outlined in this rule. The
Administrator certifies that this rule will
not have significant economic effects on
a substantial number of small
businesses. As a result of this finding •
EPA has not prepared a formal
Regulatory Flexibility Analysis.
C. Paperwork Reduction Act
The information collection
requirements in this rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
The Agency has amended the
Information Collection Request
document to address concerns raised by
OMB. A copy of this document (ICR No.
0370) may be obtained from Eric
Strassler. Information Policy Branch:
EPA: 401 M St., SW. (PM-223);
Washington. DC 20460 or by calling
(202) 382-2738.
D. Administrative Procedures Act
As a petition may grant a variance
from a prohibition, EPA may make Part
148 immediately effective pursuant to
the Administrative Procedures Act (see
5 U.S.C. 553(d)(l)). The Agency is
choosing to do so as the statutory
deadline establishing prohibitions is
effective August 8,1988. Except to the
extent incorporated in Part 140. the
amendments to Parts 124.144 and 146
become effective 30 days after
publication in the Federal Register.
VII. References
A. Reference List (or Port 148
1. LeBlanc. R.J.. 1972 Geometry of
sandstone reservoir bodies in Underground
Waste Management and Environmental
Implications. Cook TJ5.. ed., American Assoc.
of Petroleum Geologists. Memoir 18, Tulsa.
Oklahoma. P. 133-190.
2. Selly, R.C., 1978, Ancient Sedimentary
Environments, 2nd Edition. Cornell
University Press. Ithaca. New York. 287 pp.
3. Bouma. A-H. Moore. G.T.. and Coleman.
J.M.. editors. 1978. Framework. Facies. and
Oil-Trapping Characteristics of the Upper
Contmental~Margin. American Assoc. of
Petroleum Geologists. Tulsa. Oklahoma. 326
pp.
4. Krumbein. W.C. and Sloss. U-, 1963.
Stratigraphy and Sedimentation. W.H.
Freeman and Co., San Francisco, 660 pp.
5. Levorsen. AJ.. 1967, Geology of
Petroleum. 2nd Edition, W.H. Freeman and
Co.. San Francisco. 724 pp.
6. Pettijohn. F.J. 1975. Sedimentary Rocks.
3rd Edition. Harper and Row. New York. 628
pp.
7. Background Document for First Third
Wastes to Support 40 CFR Part 268 Land
Disposal Restrictions. First Third Waste
Volumes, Characteristics, and Required and
Available Treatment Capacity—Part II: U.S.
EPA. OSW. May 1988.
8. Estimated Quantity of Extracted Ground
Water—RCRA Facilites and CERCLA Sites:
1988-1990: Report to US. EPA. ICF
Incorporated. July 1988.
9. Goolsby. DA, 1972. Geochemical effects
and movement of injected industrial waste in
a limestone aquifer in Underground Waste
Management and Environmental
Implications. Cook.T.D.. ed- American
Assoc. of Petroleum Geologists, Memoir 18.
Tulsa. Oklahoma, p. 355-368.
10. Kaufman. M.I.. Goolsby. DA., and
Faulkner. GX_ 1973, Injection of acidic
industrial waste into a saline carbonate
aquifer geochemical aspects in Underground
Waste Management and Artificial Recharge.
Braunstein, J- ed, voL 1. p. 526-551.
11. Leenheer. J.A.. Malcolm. RI_ and
White. W.R. 1976. Physical, chemical^nd
biological aspects of subsurface organic
waste injection near Wilmington. North
Carolina. Geol. Survey Professional Paper
987. Washington. 51 pp.
12. McKenzi. D.].. 1976. Injection of acidic
industrial waste into the Floridan aquifer
near Belle Glade. Florida: upward migration
and geochemical interactions. 1973-1975.
Geological Survey Open-File Report 76-626.
54pp.
13. Pascals. C.A. and Martin. ]£. 1978,
Hydrologic monitoring of a deep-well waste-
injection system near Pensacola, Florida.
March 1970—March 1977. U.S. Geol. Survey
Water Resource Investigation 78-27, 61 pp.
14. Ehrlich, G.G.. Godsy. E.M.. Pascaie,
C.A.. and Vecchioli.).. 1979. Chemical
changes in an industrial waste liquid during
post-injection movement in a limestone
aquifer. Pensacola. Florida. Ground Water.
vol. 17, no. 6. p. 562-573.
15. Ward, D.S.. Buss. D.R- and Wadsworth.
T.D.. 1986. Numerical Simulation for Waste
Injection in Deep Wells: Phase 1-Potential
Failure Scenarios. Texas Culf Coast. Report.
by Geotrans Inc.. prepared under contract to
Engineering Enterprises, Inc.. for U.S. EPA.
pp. 28 et seq.
16. Morganwalp. D. and Smith R.. 1987.
Modeling of Representative injection sites.
EPA Report
17. Collins. R.E_ 1961. Flow of Fluids
Through Porous Media. Van Nostrand &
Reinhold. New York.
18. Report on the review of proposed
environmental standards for the management
and disposal of spent nuclear fuel, high level
and transuranic radioactive wastes (40 CFR
191). High-level Radioactive Waste
Subcommittee. Science Advisory Board. U.S.
EPA January 1984.
19. Miller et aL 1986 Flow and containment
of injected wastes in Proceedings of the
International Syposium on Subsurface
Injection of Liquid Wastes. Nat'l. Water Well
Ass'n- Dublin, Ohio.
20. Bachmat. Y.. BridehoefU ]- Andrews. B-
Holtz, D.. and Sebastian. S.. 1980, Ground
Water Management. The Use of Numerical
Models.
21. Lamareaux. P.E.. 1987, Synopsis of Use
of Mathematical Models to Evaluate Sites for
Injection Wells for Disposal of Hazardous
Waste. Environmental Institute for Waste
Management Studies Publication. University
of Alabama. Tuscaloosa. Alabama.
22. Evaluation of certain crucial issues
regarding the injection of hazardous waste.
Environmental Institute for Waste
Management Studies, report for U.S. EPA in
progress.
23. SimBest II. Single/Dual Porosity. 5-
Component Black Oil Simulator. Scientific
Software Intercomp, Technical Manual. 53
pages.
24. Department of Energy. 1984. General
Guidelines for Recommendation of Sites for
the Nuclear Waste Repositories: Final Siting
Guidelines. 10 CFR Part 60, Federal Register.
Vol. 49. P. 47714. December 6.1984.
25. Laboratory Protocol for Determining
Fate of Waste Disposed In Deep Wells. 1987.
Robert S. Ken- Environmental Research
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Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 28147
Laboratory. Prepared for U.S. DOE and U.S.
EPA. Interagency Agreement No.
DW89931947.
B. Reference List for Part 146
1. Cordon. W. and Bloom. I., undated.
Deeper Problems: Limits to Underground
Injection as a Hazardous Waste Disposal
Method. Natural Resources Defense Council.
Inc.. New York. N.Y.. 69 pages.
2. Class I Injection Well Survey—Phase 1
Report: Survey of Selected Sites. 1986. CH2M
Hill Report prepared for Underground
Injection Practices Council. Oklahoma City.
Oklahoma. 303 pages.
3. Class I Hazardous Waste Injection Wells
Evaluation of Non-Compliance Incidents.
1986. Engineering Enterprises. Inc. report
prepared for U.S. EPA. Office of Drinking
Water. UIC Contract No. 68-01-7011. 295
pages.
4. Salazar. M.'. et oL 1985. Report'to
Congress on Injection of Hazardous Waste.
U.S. EPA Report (EPA 570/9-85-003).
5. Wesson. R.L.. and Nicholson. C.. 1987.
Earthquake Hazard Associated with Deep
Well Injection (Open-File Report 87-331). U.S.
Geological Survey report prepared for U.S.
Environmental Protection Agency, 72 pages.
6. Ward. D.S.. Buss. D.R.. and Wadsworth.
T.D.. 1986. Numerical Simulation for Waste
Injection in Deep Wells: Phase 1—Potential
Failure Scenarios. Texas Gulf Coast. Report
by GeoTrans Inc. prepared under contract to
Engineering Enterprises. Inc. for U.S. EPA. 28
pages.
7. Ward. D.S.. Buss. D.R.. and Wadsworth.
T.D.. 1987. A numerical simulation evaluation
of deep injection wells for waste confinement
performance. Report by GeoTrans Inc..
prepared under contract to Engineering
Enterprises. Inc. for U.S. EPA. 110 pages.
List of Subjects
40 CFR Part 124
Administrative practice and
procedure. Hazardous materials. Waste
treatment and disposal. Water pollution
control. Water supply.
40 CFR Part 144
Administrative practice and
procedure. Hazardous materials.
. Reporting and recordkeeping
requirements. Confidential business
information. Waste treatment and
disposal, Water supply.
40 CFR Part 146
Administrative practice and
procedure. Hazardous materials.
Reporting and recordkeeping
requirements. Waste treatment and
disposal. Water pollution control. Water
supply.
40 CFR Part 148
Administrative practice and
procedures. Confidential business
information. Hazardous materials.
Intergovernmental relations. Waste
treatment and disposal. Water pollution
control. Water supply.
Date: July 15.1988.
Lee M. Thomas.
Administrator.
Therefore Chapter I of Title 40 is
amended as follows:
PART 124—PROCEDURES FOR
DECISION MAKING
1. The authority citation for Part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act. 42 U.S.C. 6901 et seg.: Safe
Drinking Water Act. 42 U.S.C. 300f et seg.:
Clean Water Act. 33 U.S.C. 1251 et seg.: and
Clean Air Act. 42 U.S.C. 1857 et seq.
2. Section 124.10 is amended by
redesignating paragraphs (cj(l)(viii) and
(IX) as paragraphs ^c)(l)(ix).and (x).and,
adding a new paragraph (c)(l)(viii) to
read as follows:
§ 124.10 Public notice of permit actions
and public comment period.
*****
(c) ' * *
(I)'*'
(viii) For Class I injection well UIC
permits only, state and local oil and gas
regulatory agencies and state agencies
regulating mineral exploration and
recovery:
PART 144—UNDERGROUND
INJECTION CONTROL PROGRAM
1. The authority citation for Part 144 is
revised to read as follows:
Authority: Pub. L. 93-523. as amended by
Pub. L 95-190. Pub. L. 96-63. and Pub. L. 96-
502.42 U.S.C 300f et seq. and 6901 et seq.
2. Section 144.1 is amended by adding
new paragraph (OU)(vi) to read as
follows:
§ 144.1 Purpose and *cope of Part 144.
***** *
(f) * * *
(1) • • *
(vi) Subpart F sets forth the financial
responsibility requirements for owners
and operators of all existing and new
Class 1 hazardous waste injection wells.
• • • * *
3. Section 144.39 is amended by
revising the introductory texts of
paragraphs (a) and (a)(3). and by adding
a new paragraph (bj(3) to read as
follows: . . . "
§ 144.39 Modification or revocation and
reissuance of permits.
• * * • •
(a) Causes for modification. The
following are causes for modification.
For Class I hazardous waste injection
wells. Class II. or Class III wells the
following may be causes for revocation
and reissuance as well as modification;
and for all other wells the following may
be cause for revocation or reissuance as
well as modification when the permittee
requests or agrees.
*****
(3) New regulations. The standards or
regulations on which the permit was
based have been changed by
promulgation of new or amended
standards or regulations or by judicial
decision after the permit was issued.
Permits other than for Class I hazardous
waste injection wells. Class II, or Class
III wells may be modified during their
terms for this cause only as follows:
*****
(b)' ' *
(3) A determination that the waste
being injected is a hazardous waste as
defined in § 261.3 either because the
definition has been revised, or because
a previous determination has been
changed.
*****
4. Section 144.51 is amended by
revising paragraph (j)(2)[ii) to read as
follows:
§ 144.51 Conditions applicable to all
permits.
*****
0) * *'
(2) • • •
(ii) The nature and composition of all
injected fluids until three years after the
completion of any plugging and
abandonment procedures specified
under § 144.52(a)(6). or under Part 146
Subpart G as appropriate. The Director
may require the owner or operator to
deliver the records to the Director at the
conclusion of the retention period. For
EPA administered programs, the owner
or operator shall continue to retain the
records after the three year retention
period unless he delivers the records to
. the Regional Administrator or obtains
written approval from the Regional
Administrator to discard the records.
* * * * *
5. Section 144.52 is amended by
revising paragraph (a) introductory text.
to read as follows:
§144.52 Establishing permit conditions.
(a] In addition to conditions required
in § 144.51. the Director shall establish
conditions, as required on a case-by-
case basis under § 144.36 (duration of
permits), § 144.53(a) (schedules of
compliance), §144.54 (monitoring), and
for EPA permits only § 144.53(b)
(alternate schedules of compliance), and
§ 144.4 (considerations under Federal
law). Permits for owners or operators of
hazardous waste injection wells shall
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3S148 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
include conditions meeting the
requirements of § 144.14 (requirements
for wells injecting hazardous waste),
§§ 144.52(a)(7) and (a)(9), and subpart G
of Part 146. Permits for other wells shall
contain the following requirements,
when applicable.
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
1. The authority citation for Part 146 is
revised to read as follows:
Authority: Pub. L. 93-523, as amended by
Pub. L. 95-190, Pub. L. 96-63, and Pub. L. 96-
502.42 U.S.C. 300 f et seq.. as amended—
Subpart G also issued under 52 U.S.C.6801 eL
seq., as amended.
2. Section 146.11 is revised to read as
follows:
§ 146.11 Criteria and standards applicable
to Class I nonhazardous wells.
This subpart establishes criteria and
standards for underground injection
control programs to regulate Class I
nonhazardous wells.
3. Section 146.13 is amended by
adding a new paragraph (d) to read as
follows:
§ 146.13 Operating monitoring and
reporting requirements,
• • • • •
(d) Ambient monitoring. (1) Based on
a site-specific assessment of the
potential for fluid movement from the
well or injection zone and on the
potential value of monitoring wells to
detect such movement, the Director shall
require the owner or operator to develop
a monitoring program. At a minimum,
the Director shall require monitoring of
the pressure buildup in the injection
zone annually, including at a minimum,
a shut down of the well for a time
sufficient to conduct a valid observation
of the pressure fall-off curve.
(2] When prescribing a monitoring
system the Director may also require:
(i) Continuous monitoring for pressure
changes in the first aquifer overlying the
confining zone. When such a well is
installed, the owner or operator shall, on
' a quarterly basis, sample the aquifer
and analyze for constituents specified
by the Director
(ii) The use of indirect, geophysical
techniques to determine the position of
the waste front, the water quality in a
formation designated by the Director, or
to provide other site specific data:
(iii) Periodic monitoring of the ground
water quality in the first aquifer
overlying the injection zone:
(iv) Periodic monitoring of the ground
water quality in the lowermost USDW;
and
(v) Any additional monitoring
necessary to1 determine whether fluids
are moving into or between USDWs.
3. A new Subpart G is added to read
as follows:
Subpart G—Criteria and Standards
Applicable to Class I Hazardous Waste
Injection Wells
Sec.
146.61 Applicability.
146.62 Minimum criteria for siting.
146.63 Area of review.
146.64 Corrective action for wells in the
area of review.
146.65 Construction requirements.
146.66 Logging, sampling, and testing prior
to new well operation.
146.67 Operating requirements.
146.68 Testing and monitoring requirements.
146.69 Reporting requirements.
146.70 Information to be evaluated by the
Director.
146.71 Closure.
146.72 Post-closure care.
146.73 Financial responsibility for post-
closure care.
Subpart G—Criteria and Standards
Applicable to Class I Hazardous Waste
Injection Wells
! 146.61 Applicability.
(a) This subpart establishes criteria
and standards for underground injection
control programs to regulate Class I
hazardous waste injection wells. Unless
otherwise noted this Subpart
supplements the requirements of
Subpart A and applies instead of
Subpart B to Class I hazardous waste
injection wells.
. (b) Definitions.
Cone of influence means that area
around the well within which increased
injection zone pressures caused by
injection into the hazardous waste •
injection well would be sufficient to
drive fluids into an underground source
of drinking water (USDW).
Existing well means a Class I well
which was authorized prior to August
25.1986 by an approved State program,
or an EPA-administered program or a
well which has become a Class 1 well as
a result of a change in the definition of
the injected waste which would render
the waste hazardous under § 261.3 of
this Part.
Infection interval means-that part of
the injection zone in which the well is
screened, or in which the waste is
otherwise directly emplaced.
New well means any Class I
hazardous waste injection well which is
not an existing well.
Transmissive fault or fracture is a
fault or fracture that has sufficient
permeability and vertical extent to
allow fluids to move between ',
formations.
§ 146.62 Minimum criteria for siting.
(a) All Class I hazardous waste
injection wells shall be sited such that
they inject into a formation that is
•beneath the lowermost formation
containing within one quarter mile of the
well bore an underground source of
drinking water.
(b) The siting of Class I hazardous
waste injection wells shall be limited to
areas that are geologically suitable. The
Director shall determine geologic
suitability based upon:
(1) An analysis of the structural and
stratigraphic.geology, the hydrogeology,
and the seismicity of the region:
(2) An analysis of the local geology
and hydrogeology of the well site,
including, at a minimum, detailed
information regarding stratigraphy,
structure and rock properties, aquifer
hydrodynamics and mineral resources;
and
(3) A determination that the geology
of the area can be described confidently
and that limits of waste fate and
transport can be accurately predicted
through the use of models.
(c) Class I hazardous waste injection
wells shall be sited such that:
(1) The injection zone has sufficient
permeability, porosity, thickness and
areal extent to prevent migration of
fluids into USDWs.
(2) The confining zone:
(i) Is laterally continuous and free of
transecting, transmissive faults or
fractures over an area sufficient to
prevent the movement of fluids into a
USDW; and
(ii) Contains at least one formation of
sufficient thickness and with lithologic
and stress characteristics capable of
preventing vertical propagation of
fractures.
(d) The owner or operator shall
demonstrate to the satisfaction of the
Director that:
(1) The confining zone is separated
from the base of the lowermost USDW
by at least one sequence of permeable
and less permeable strata that will
provide an added layer of protection for
the USDW in the event of fluid
movement in an unlocated borehole or
transmissive fault: or
(2) Within the area of review, the
piezometric surface of the fluid in the
injection zone is less than the
piezometric surface of the lowermost
USDW, considering density effects,
injection pressures and any significant
pumping in the overlying USDW; or
(3) There is no USDW present.
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Federal Register / Vol. 53. No. 143 / Tuesday. )uly 26. 1988 / Rules and Regulations
23149
(4) The Director may approve a site
which does not meet the requirements in
paragraphs (d) (1). (2), or (3) of this
section if the owner or operator can
demonstrate to the Director that
because of the geology, nature of the
waste* or other considerations,
abandoned boreholes or other conduits
would not cause endangerment of
USDWs.
§ 146.63 Area of review.
For the purposes of Class I hazardous
waste wells, this section shall apply to
the exclusion of § 146.6. The area of
review for Class I hazardous waste
injection wells shall be a 2-mile radius
around the well bore. The Director may
specify a larger area of review based on
the calculated cone of influence of ihe.
well.
§ 146.64 Corrective action for wells in the
area of review.
For the purposes of Class I hazardous
waste wells, this section shall apply to
the exclusion of § 144.55 and § 146.07.
(a) The owner or operator of a Class I
hazardous waste well shall as part of
the permit application submit a plan to
the Director outlining the protocol used
to:
(1) Identify all wells penetrating the
confining zone or injection zone within
the area of review; and
(2) Determine whether wells are
adequately completed or plugged.
(b) The owner or operator of a Class I
hazardous waste well shall identify the
location of all wells within the area of
review that penetrate the injection zone
or the confining zone and shall submit
as required in § 146.70(a):
(1) A tabulation of all wells within the
area of review that penetrate the
injection zone or the confining zone; and
(2) A description of each well or type
of well and any records of its plugging or
completion.
(cj For wells that the Director
determines are improperly plugged.
completed, or abandoned, or for which
plugging or completion information is
unavailable, the applicant shall also
submit a plan consisting of such steps or
modification as are necessary to prevent
movement of fluids into or between
USDWs. Where the plan is adequate.
the Director shall incorporate it into the
permit as a condition. Where the
Director's review of an application
indicates that the permittee's plan is
inadequate (based at a minimum on the
factors in paragraph (e) of this section}.
the Director shall:
(1) Require the applicant to revise the
plan:
(2) Prescribe a-plan for corrective
action as a condition of the permit; or
(3) Deny the application.
(d) Requirements:
(1) Existing injection wells. Any
permit issued for an existing Class I
hazardous waste injection well requiring
corrective action other than pressure
limitations shall include a compliance
schedule requiring any corrective action
accepted or prescribed under paragraph
(c) of this section. Any such compliance
schedule shall provide for compliance
no later than 2 years following issuance
of the permit and shall require
observance of appropriate pressure
limitations under paragraph (d)(3) until
all other corrective action measures
have been implemented.
(2) New. injection wells. No owner or
operator -fit -a new-Class I-hazardour-
waste injection well may begin injection
until all corrective actions required
under this section have been taken.
(3) The Director may require pressure
limitations in lieu of plugging. If pressure
limitations are used in lieu of plugging,
the Director shall require as a permit
condition that injection pressure be so
limited that pressure in the injection
zone at the site of any improperly
completed or abandoned well within the
area of review would not be sufficient to
drive fluids into or between USDWs.
This pressure limitation shall satisfy the
corrective action requirement.
Alternatively, such injection pressure
limitation may be made part of a
compliance schedule and may be
required to be maintained until all other
required corrective actions have been
implemented.
(e) In determining the adequacy of
corrective action proposed by the
applicant under paragraph (c) of this
section and in determining the
additional steps needed to prevent fluid
movement into and between USDWs.
the following criteria and factors shall
be considered by the Director
(1) Nature and volume of injected
fluid:
(2) Nature of native fluids or
byproducts of injection:
(3) Geology;
(4) Hydrology:
(5) History of the injection operation:
(6) Completion and plugging records;
(7] Closure procedures in effect at the
time the well was closed:
(8) Hydraulic connections with
USDWs;
(9) Reliability of the procedures used
to identify abandoned wells; and
(10) Any other factors which might
affect the movement of fluids into or
between USDWs.
§ 146.65 Construction requirements.
(a) General. All existing and new „
Class I hazardous waste injection wells
shall be constructed and completed to:
(1) Prevent the movement of fluids
into or between USDWs or into any
unauthorized zones;
(2) Permit the use of appropriate
testing devices and workover tools; and
(3) Permit continuous monitoring of
injection tubing and long string casing
as required pursuant to §146.67(0-
(b) Compatibility. All well materials
must be compatible with fluids with
which the materials may be expected to
come into contact. A well shall be
deemed to have compatibility as long as
the materials used in the construction of
the .well meet or.exceed standards
developed for such materials by the
American Petroleum Institute, The
American Society for Testing Materials.
or comparable standards acceptable to
the Director.
(c) Casing and Cementing of New
Wells. (1) Casing and cement used in the
construction of each newly drilled well
shall be designed for the life expectancy
of the well, including the post-closure
care period. The casing and cementing
program shall be designed to prevent the
movement of fluids into or between
USDWs. and to prevent potential leaks
of fluids from the well. In determining
and specifying casing and cementing
requirements, the Director shall consider
the following information as required by
§ 146.70:
(i) Depth to the injection zone;
(ii) Injection pressure, external
pressure, internal pressure and axial
loading;
(iii) Hole size;
(iv) Size and grade of all casing -
strings (well thickness, diameter,
nominal weight length, joint
specification and construction material);
(v) Corrosiveness of injected fluid.
formation fluids and temperature:
(vi) Lithology of injection and
confining zones;
(vii) Type or grade of cement: and
(viii) Quantity and chemical
composition of the injected fluid.
(2) One surface casing string shall, at
a minimum, extend into the confining
bed below the lowest formation that
contains a USDW and be cemented by
circulating cement from the base of the
casing to the surface, using a minimum
of 120% of the calculated annual volume.
The Director may require more than
120% when the geology or other
circumstances warrant it.
(3) At least one long string casing.
using a sufficient number of centralizers.
shall extend to the injection zone and
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28150 Federal Register / Vol. 53, No. 143 / Tuesday, July 26, 1988 / Rules and Regulations
shall be cemented by circulating cement
to the surface in one or more stages:
(i) Of sufficient quantity and quality to
withstand the maximum operating
pressure: and
(ii) In a quantity no less than 120% of
the calculated volume necessary to fill
the annular space. The Director may
require more than 120% when the
geology or other circumstances warrant
it-
(4) Circulation of cement may be
accomplished by staging. The Director
may approve an alternative method of
cementing in cases where the cement
cannot be recirculated to the surface,
provided the owner or operator can
demonstrate by using logs that the
cement is continuous and does not allow
fluid movement behind the well bore.
(5) Casings; including-any casing"* ' '
connections, must be rated to have
sufficient structural strength to
withstand, for the design life of the well:
(i) The maximum burst and collapse
pressures which may be experienced
during the construction, operation and
closure of the well: and
(ii) The maximum tensile stress which
may be experienced at any point along
the length of the casing during the
construction, operation, and closure of
the well.
(6) At a minimum, cement and cement
additivies must be of sufficient quality
and quantity to maintain integrity over
the design life of the well.
(d) Tubing and packer. (1) All Class I
hazardous waste injection wells shall
inject fluids through tubing with a
packer set at a point specified by the
Director.
(2) In determining and specifying
requirements for tubing and packer, the
following factors shall be considered:
(i) Depth of setting;
(ii) Characteristics of injection fluid
(chemical content corrosiveness,
temperature and density);
(iii) Injection pressure;
(iv) Annular pressure;
(v) Rate (intermittent or continuous).
temperature and volume of injected
fluid:
(vi) Size of casing: and
(vii) Tubing tensile, burst and
collapse strengths.
(3) The Director may approve the use
of a fluid seal if he determines that the
following conditions are met:
(i) The operator demonstrates that the
seal will provide a level of protection
comparable to a packer
(ii) The operator demonstrates that
the staff is. and will remain, adequately
trained to operate and maintain the well
and to identify and interpret variations
in parameters of concern;
(iii) The permit contains specific
limitations on variations in annular
pressure and loss of annular fluid;
(iv) The design and construction of the
well allows continuous monitoring of the
annular pressure and mass balance of
annular fluid: and
(v) A secondary system is used to
monitor the interface between the
annulus fluid and the injection fluid and '
the permit contains requirements for
testing the system every three months
and recording the results.
§ 146.66 Logging, sampling, and testing
prior to new well operation.
(a) During the drilling and
construction of a new Class I hazardous
waste injection well, appropriate logs
and tests shall be run to determine or
verify the.depth..thicknesst-porosityr*. -
permeability, and rock type of, and the
salinity of any entrained fluids in. all
relevant geologic units to assure
conformance with performance
standards in § 146.65. and to establish
accurate baseline data against which
future measurements may be compared.
A descriptive report interpreting results
of such logs and tests shall be prepared
by a knowledgeable log analyst and
submitted to the Director. At a
minimum, such logs and tests shall
include:
(1) Deviation checks during drilling on
all holes constructed by drilling a pilot
hole which are enlarged by reaming or
another method. Such checks shall be at
sufficiently frequent intervals to
determine the location of the borehole
and to assure that vertical avenues for
fluid movement in the form of diverging
holes are not created during drilling: and
(2) Such other logs and tests as may
be needed after taking into account the
availability of similar data in the area of
the drilling site, the construction plan,
and the need for additional information
that may arise from time to time as the
construction of the well progresses. At a
minimum, the following logs shall be
required in the following situations:
(i) Upon installation of the surface
casing:
(A) Resistivity, spontaneous potential,
and caliper logs before the casing is
installed: and
(B) A cement bond and variable
density log. and a temperature log after
the casing is set and cemented.
(ii) Upon installation of the long string
casing:
(A) Resistivity, spontaneous potential,
porosity, caliper. gamma ray. and
fracture finder logs before the casing is
installed; and
(B) A cement bond and variable
• density log. and a temperature log after
the casing is set and cemented.
(iii) The Director may allow the use of
an alternative to the above logs when an
alternative will provide equivalents
better information: and
(3) A mechanical integrity test
consisting of:
(i) A pressure test with liquid or gas:
(ii) A radioactive tracer survey:
(iii) A temperature or noise log:
(iv) A casing inspection log. if
required by the Director, and
(v) Any other test required by the
Director,
(b) Whole cores or sidewall cores of
the confining and injection zones and
formation fluid samples from the
injection zone shall be taken. The
Director may accept cores from nearby
wells if the owner or operator can
demonstrate that core retrieval is not •.
possible and that such cores are
representative of conditions at the well.
The Director may require the owner or
operator to core other formations in the
borehole.
(c) The fluid temperature. pH.
conductivity, pressure and the static
fluid level of the injection zone must be
recorded.
(d) At a minimum, the following
information concerning the injection and
confining zones shall be determined or
calculated for Class I hazardous waste
injection wells:
(1) Fracture pressure;
(2) Other physical and chemical
characteristics of the injection and
confining zones; and
(3) Physical and chemical
characteristics of the formation fluids in
the injection zone.
(e) Upon completion, but prior to
operation, the owner or operator shall
conduct the following tests to verify
. hydrogeologic-characteristics of the
injection zone:
(1) A pump test; or
(2) Injectivity tests.
(f) The Director shall have the
opportunity to witness all logging and
testing by this Subpart The owner or
operator shall submit a schedule of such
activities to the Director 30 days prior to
conducting the first test.
§ 146.67 Operating requirements.
(a) Except during stimulation, the
owner or operator shall assure that
injection pressure at the wellhead does
not exceed a maximum which shall be
calculated so as to assure that the
pressure in the injection zone during
injection does not initiate new fractures
or propagate existing fractures in the
injection zone. The owner or operator
shall assure that the injection pressure
does not initiate fractures or propagate
existing fractures in the confining zone.
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Federal Register / Vol. 53. No. 143 / Tuesday, July 26, 1988 / Rules and Regulations 28151
nor cause the movement of injection or
formation fluids into a USDW.
(b) Injection between the outermost
casing protecting USDWs and the well
bore is prohibited.
(c) The owner or operator shall
maintain an annulus pressure that
exceeds the operating injection pressure,
unless the Director determines that such
a requirement might harm the integrity
of the well. The fluid in the annulus
shall be noncorrosive, or shall contain a
corrosion inhibitor.
(d) The owner or operator shall
maintain mechanical integrity of the
injection well at all times.
(e) Permit requirements for owners or
operators of hazardous waste wells
which inject wastes which have the
potential to react with the injection- -• •
formation to generate gases shall
include:
(1) Conditions limiting the
temperature, pH or acidity of the
injected waste: and
(2) Procedures necessary to assure
that pressure imbalances which might
cause a backflow or blowout do not
occur.
(f) The owner or operator shall install
and use continuous recording devices to
monitor the injection pressure: the flow
rate, volume, and temperature of
injected fluids: and the pressure on the
annulus between the tubing and the long
string casing, and shall install and use:
(1) Automatic alarm and automatic
shut-off systems, designed to sound and
shut-in the well when pressures and
flow rates or other parameters approved
by the Director exceed a range and/or
gradient specified in the permit: or
(2) Automatic alarms, designed to
sound when the pressures and flow
rates or other parameters approved by
the Director exceed a rate and/or
gradient specified in the permit, in cases
where the owner or operator certifies
that a trained operator will be on-site at
all times when the well is operating.
(g) If an automatic alarm or shutdown
is triggered, the owner or operator shall
immediately investigate and identify as
expeditiously as possible the cause of
the alarm or shutoff. If, upon such
investigation, the well appears to be
lacking mechanical integrity, or if
monitoring required under paragraph (f)
of this section otherwise indicates that
the well may be lacking mechanical
integrity, the owner or operator shall:
(1) Cease injection of waste fluids
unless authorized by the Director to
continue or resume injection.
(2) Take all necessary steps to
determine the presence or absence of a
leak: and
(3) Notify the Director within 24 hours
after the alarm or shutdown.
(h) If a loss of mechanical integrity is
discovered pursuant to paragraph (g) of
this section or during periodic
mechanical integrity testing, the owner
or operator shall:
(1) Immediately cease injection of
waste fluids:
(2) Take all steps reasonably
necessary to determine whether there
may have been a release of hazardous
wastes or hazardous waste constituents
into any unauthorized zone;
(3) Notify the Director within 24 hours
after loss of mechanical integrity is
discovered;
(4) Notify the Director when injection
can be expected to resume; and
(5) Restore and demonstrate
mechanical integrity to the satisfaction
of the Director prior to resuming
injection of waste fluids.
(i) Whenever the owner or operator
obtains evidence that there may have
been a release of injected wastes into an
unauthorized zone:
(1) The owner or operator shall
immediately case injection of waste
fluids, and:
(i) Notify the Director within 24 hours
of obtaining such evidence;
(ii) Take all necessary steps to
identify and characterize the extent of
any release;
(iii) Comply with any remediation
plan specified by the Director
(iv) Implement any remediation plan
approved by the Director; and
(v) Where such release is into a
USDW currently serving as a water
supply, place a notice in a newspaper of
general circulation.
(2) The Director may allow the
operator to resume injection prior to
completing cleanup action if the owner
or operator demonstrates that the
injection operation will not endanger
USDWs.
(j) The owner or operator shall notify
.the Director and obtain his approval
prior to conducting any well workover.
§ 146.68 Testing and monitoring
Testing and monitoring requirements
.shall at a minimum include:
(a) Monitoring of the injected wastes.
(1) The owner or operator shall develop
and follow an approved written waste
analysis plan that describes the
procedures to be carried out to obtain a
detailed chemical and physical analysis
of a representative sample of the waste,
including the quality assurance
procedures used. At a minimum, the
plan shall specify:
(i] The paramenters for which the
waste will be analyzed and the rationale
for the selection of these parameters;
(ii) The test methods that will be used
to test for these parameters; and
(iii) The sampling method that wilfbe
used to obtain a representative sample
of the waste to be an_:yzed.
(2) The owner or operator shall repeat
the analysis of the injected wastes as
described in the waste analysis plan at
'frequencies specified in the waste
analysis plan and when process or
operating changes occur that may
significantly alter the characteristics of
the waste stream.
(3) The owner or operator shall
conduct continuous or periodic
monitoring of selected parameters as
required by the Director.
(4) The owner or operator shall assure
that the plan remains accurate and the
analyses remain representative.
(b) Hydrogeologic compatibility
determination. The owner or operator
shall submit information demonstrating
to the satisfaction of the Director that
the waste stream and its anticipated
reaction products will not alter the
permeability, thickness or other relevant
characteristics of the confining or
injection zones such that they would no
longer meet the requirements specified
in § 146.62.
(c) Compatibility of well materials. (1)
The owner or operator shall
demonstrate that the waste stream will
be compatible with the well materials
with which the waste is expected to
come into contact, and submit to the
Director a description of the
methodology used to make that
determination. Compatibility for
purposes of this requirement is
established if contact with injected
fluids will not cause the well materials
to fail to satisfy any design requirement
imposed under § 146.65(b).
(2) The Director shall require
continuous corrosion monitoring of the
construction materials used in the well
for wells injecting corrosive waste, and
may require such monitoring for other
waste, by.
(i) Placing coupons of the well
construction materials in contact with
the waste stream; or
(ii) Routing the waste stream through
a loop constructed with the material
used in the well; or
(iii) Using an alternative method
approved by the Director.
(3) If a corrosion monitoring program
is required:
(i) The test shall use materials
identical to those used in the
construction of the well, and such
materials must be continuously exposed
to the operating pressures and
temperatures (measured at the well
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23152 Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations
head) and flow rates of the injection
operation: and
(ii) The owner or operator shall
monitor the materials for loss of mass,
thickness, cracking, pitting and other
signs of corrosion on a quarterly basis to
ensure that the well components meet
the minimum standards for material
strength and performance set forth in
§ 146.65(b).
(d) Periodic mechanical integrity
testing. In fulfilling the requirements of
§ 146.8, the owner or operator of a Class
1 hazardous waste injection well shall
conduct the mechanical integrity testing
as follows:
(1) The long string casing, injection
tube, and annular seal shall be tested by
means of an approved pressure test with
a liquid or gas annually and whenever
there has been a well workoven
(2) The bottom-hole cement shall be
tested by means of an approved
radioactive tracer survey annually;
(3) An approved temperature, noise,
or other approved log shall be run at
least once every five years to test for
movement of fluid along the borehole.
The Director may require such tests
whenever the well is worked oven
(4) Casing inspection logs shall be run
at least once every five years unless the
Director waives this requirement due to
well construction or other factors which
limit the test's reliability; and
(5) Any other test approved by the
Director in accordance with the
procedures in § 146.8(d) may also be
used.
(e) Ambient monitoring. (1) Based on
a site-specific assessment of the
potential for fluid movement from the
well or injection zone, and on the
potential value of monitoring wells to
detect such movement, the Director shall
require the owner or operator to develop
a monitoring program. At a minimum.
the Director shall require monitoring of
the pressure buildup in the injection
zone annually, including at a minimum,
a shut down of the well for a time
sufficient to conduct a valid observation
of the pressure fall-off curve.
(2) When prescribing a monitoring
system the Director may also require:
(i) Continuous monitoring for pressure
changes in the first aquifer overlying the
confining zone. When such a well is
installed, the owner or operator shall, on
a quarterly basis, sample the aquifer
and analyze for constituents specified
by the Director
(ii) The use of indirect, geophysical
techniques to determine the position of
the waste front, the water quality in a
formation designated by the Director, or
to provide other site specific data:
(iii) Periodic monitoring of the ground
water quality in the first aquifer
overlying the injection zone:
(iv) Periodic monitoring of the ground
water quality in the lowermost USDW;
and
(v) Any additional monitoring
necessary to determine whether fluids
are moving into or between USDWs.
(f) The Director may require
seismicity monitoring when he has
reason to believe that the injection
activity may have the capacity to cause
seismic distrubances.
§ 146.69 Reporting requirements.
Reporting requirements shall, at a
minimum, include:
(a) Quarterly reports to the Director
containing:
(1) The maximum injection pressure;
(2) A description of any event that
exceeds operating parameters for
annulus pressure or injection pressure
as specified in the permit:
(3) A description of any event which
triggers an alarm or shutdown device
required pursuant to § 146.C7(f) and the
response taken;
(4) The total volume of fluid injected; -
(5) Any change in the annular fluid
volume;
(6) The physical, chemical and other
relevant characteristics of injected
fluids: and
(7) The results of monitoring
prescribed under § 146.68.
(b) Reporting, within 30 days or with
the next quarterly report whichever
comes later, the results of:
(1) Periodic tests of mechanical
integrity;
(2) Any other test of the injection well
conducted by the permittee if required
by the Director and
(3) Any well workover.
§ 146.70 Information to be evaluated by
the Director.
This section sets forth the information
which must be evaluated by the Director
in authorizing Class I hazardous waste
injection wells. For a new Class I
hazardous waste injection well, the
owner or operator shall submit all the
information listed below as part of the
permit application. For an existing or
converted Class I hazardous waste
injection well, the owner or operator
shall submit all information listed below
as part of the permit application except
for those items of information which are
current, accurate, and available in the
existing permit file. For both existing
and new Class I hazardous waste
injection wells, certain maps, cross-
sections, tabulations of wells within the
area of review and other data may be
included in the application by reference
provided they are current and readily
available to the Director (for example, in
the permitting agency's files) and '•
sufficiently identifiable to be retrieved.
In cases where EPA issues the permit,
all the information in this section must
be submitted to the Administrator or his
designee.
, (a) Prior to the issuance of a permit for
'an existing Class I hazardous waste
injection well to operate or the
construction or conversion of a new
Class 1 hazardous waste injection well.
the Director shall review the following
to assure that the requirements of this
Part and Part 144 are met:
(1) Information required in § 144.31:
(2) A map showing the injection well
for which a permit is sought and the
applicable area of review. Within the
area of review, the map must show the
number or name and location of all
producing wells, injection wells.
abandoned wells, dry holes, surface
bodies of water, springs, mines (surface.
and subsurface), quarries, water wells
and other pertinent surface features.
including residences and roads. The
map should also show faults, if known
or suspected;
(3) A tabulation of all wells within the
area of review which penetrate the
proposed injection zone or confining
zone. Such data shall include a
description of each well's type.
construction, date drilled, location.
depth, record of plugging and/or
completion and any additional
information the Director may require;
(4) The protocol followed to identify, -
locate and ascertain the condition of
abandoned wells within the area of
review which penetrate the injection or
the confining zones;
(5) Maps and cross-sections indicating
the general vertical and lateral limits of
all underground sources of drinking
water within the area of review, their
position relative to the injection
formation and the direction of water
movement, where known, in each
underground source of drinking water
which may be affected by the proposed
injection:
(6) Maps and cross-sections detailing
the geologic structure of the local area;
(7) Maps and cross-sections
illustrating the regional geologic setting:
(8) Proposed operating data:
(i) Average and maximum daily rate
and volume of the fluid to be injected;
and
(ii) Average and maximum injection
pressure:
(9) Proposed formation testing
program to obtain an analysis of the
chemical, physical and radiological
characteristics of and other information
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Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 28153
on the injection formation and the
confining zone;
(10) Proposed stimulation program;
(11) Proposed injection procedure;
(12) Schematic or other appropriate
drawings of the surface and subsurface
construction details of the well;
(13) Contingency plans to cope with
all shut-ins or well failures so as to
prevent migration of fluids into any
USDW;
(14) Plans (including maps) for
meeting monitoring requirements of
§ 146.68;
(15) For wells within the area of
review which penetrate the injection
zone or the confining zone but are not
properly completed or plugged, the
corrective action to be taken under
§ 146.64;
(16) Construction procedures
including a cementing and casing
program, well materials specifications
and their life expectancy, logging
procedures, deviation checks, and a
drilling, testing and coring program; and
(17) A demonstration pursuant to Part
144. Subpart F. that the applicant has the
resources necessary to close, plug or
abandon the well and for post-closure
care.
fb) Prior to the Director's granting
approval for the operation of a Class I
hazardous waste injection well, the
owner or operator shall submit and the
Director shall review the following
information, which shall be included in
the completion report:
(1) All available logging and testing
program data on the well:
(2) A demonstration of mechanical
integrity pursuant to § 146.68:
(3) The anticipated maximum pressure
and flow rate at which the permittee
will operate;
(4) The results of the injection zone
and confining zone testing program as
required in § 146.70(a)(9);
(5) The actual injection procedure;
(6) The compatibility of injected waste
with fluids in the injection zone and
minerals in both the injection zone and
the confining zone and with the
materials used to construct the well;
(7) The calculated area of review
based on data obtained during logging
and testing of the well and the
formation, and where necessary
revisions to the information submitted
under § 146.70(a) (2) and (3).
(8) The status of corrective action on
wells identified in 5146.70(a)(15).
(c) Prior to granting approval for the •
plugging and abandonment (i.e., closure)
of a Class I hazardous waste injection
well, the Director shall review the
information required in §§146.71(a)(4)
and 146.72(a).
(d) Any permit issued for a Class I
hazardous waste injection well for
disposal on the premises where the
waste is generated shall contain a
certification by the owner or operator
that:
(1) The generator of the hazardous
waste has a program to reduce the
volume or quantity and toxicity of such
waste to the degree determined by the
generator to be economically
practicable; and
(2) Injection of the waste is that
practicable method of disposal currently
available to the generator which
minimizes the present and future threat
to human health and the environment.
§146.71 Closure
(a) Closure Plan. The owner or
operator of a Class I hazardous waste
injection well shall prepare, maintain,
and comply with a plan for closure of
the well that meets the requirements of
paragraph (d) of this section and is
acceptable to the Director. The
obligation to implement the closure plan
survives the termination of a permit or
the cessation of injection activities. The
requirement to maintain and implement
an approved plan is directly enforceable
regardless of whether the requirement is
a condition of the permit
(1) The owner or operator shall submit
the plan as a part of the permit
application and, upon approval by the
Director, such plan shall be a condition
of any permit issued.
(2) The owner or operator shall submit
any proposed significant revision to the
method of closure reflected in the plan
for approval by the Director no later
than the date on which notice of closure
is required to be submitted to the
Director under paragraph (b) of this
section.
(3) The plan shall assure financial
responsibility as required in
5l44.52(aK7).
(4) The plan shall include the
following information:
(i) The type and number of plugs to be
used;
pi) The placement of each plug
including the elevation of the top and
bottom of each plug;
(iii) The type and grade and quantity
of material to be used in plugging;
(iv) The method of placement of the
plugs;
(v) Any proposed test or measure to
be made;
(vi) The amount, size, and location (by
depth) of casing and any other materials
to be left in the well;
(vii) The method and location where
casing is to be parted, if applicable;
(viii) The procedure to be used to
meet the requirements of paragraph',
(d](5) of this section:
(ix) The estimated cost of closure: and
(x) Any proposed test or measure to
be made.
(5) The Director may modify a closure
.plan following the procedures of § 124.5.
(6) An owner or operator of a Class I
hazardous waste injection well who
ceases injection temporarily, may keep
the well open provided he:
(i) Has received authorization from
the Director and
(ii) Has described actions or -
procedures, satisfactory to the Director,
that the owner or operator will take to
ensure that the well will not endanger
USDWs during the period of temporary
disuse. These actions and procedures
shall include compliance with the
technical requirements applicable to
active injection wells unless waived by
the Director.
(7) The owner or operator of a well
that has ceased operations for more
than two years shall notify the Director
30 days prior to resuming operation of
the well.
(b) Notice of intent to dose. The
owner or operator shall notify the
Director at least 60 days before closure
of a well. At the discretion of the
Director, a shorter notice period may be
allowed.
(c) Closure report. Within 60 days
after closure or at the time of the next
quarterly report (whichever is less) the
owner or operator shall submit a closure
report to the Director. If the quarterly
report is due less than 15 days after
completion of closure, then the report
shall be submitted within 60 days after '
closure. The report shall be certified as
accurate by the owner or operator and
by the person who performed the
closure operation (if other than the
owner or operator). Such report shall
consist of either (1) A statement that the
well was closed in accordance with the
closure plan previously submitted and
approved by the Director or
(2) Where actual closure differed from
the plan previously submitted, a written
statement specifying the differences
between the previous plan and the
actual closure.
(d) Standards for well closure. (1)
Prior to closing the well, the owner or
operator shall observe and record the
pressure decay for a time specified by
the Director. The Director shall analyze
the pressure decay and the transient
pressure observations conducted
pursuant to 5146.68(e)(l)(i) and
determine whether the injection activity
has conformed with predicted values.
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28154 Federal Register / Vol. 53, No. 143 / Tuesday, July 26, 1988 / Rules and Regulations
(2) Prior to well closure, appropriate
mechanical integrity testing shall be
condircted to ensure the integrity of that
portion of the long string casing and
cement that will be left in the ground
after closure. Testing methods may
include:
(i) Pressure tests with liquid or gas;
(ii) Radioactive tracer surveys:
(iii) Noise, temperature, pipe
evaluation, or cement bond logs; and
(iv) Any other test required by the
Director.
(3) Prior to well closure, the well shall
be flushed with a buffer fluid.
(4) Upon closure, a Class I hazardous
waste well shall be plugged with cement
in a manner that will not allow the
movement of fluids into or between
USDWs.
(5) Placement of the cement plugs
shall be accomplished by one of the
following:
(i) The Balance Method:
(ii) The Dump Bailer Method;
(iii) The Two-Plug Method; or
(iv) An alternate method, approved by
the Director, that will reliably provide a
comparable level of protection.
(6) Each plug used shall be
appropriately tagged and tested for seal
and stability before closure is
completed.
(7) The well to be closed shall be in a
state of static equilibrium with the mud
weight equalized top to bottom, either
by circulating the mud in the well at
least once or by a comparable method
prescribed by the Director, prior to the
placement of the cement plug(s).
§ 146.72 Post-closure care.
(a) The owner or operator of a Class I
hazardous waste well shall prepare,
maintain, and comply with a plan for
post-closure care that meets the
requirements of paragraph (b) of this
section and is acceptable to the
Director. The obligation to implement
the post-closure plan survives the
termination of a permit or the cessation
of injection activities. The requirement
to maintain an approved plan is directly
enforceable regardless of whether the
requirement is a condition of the permit.
(1) The owner or operator shall submit
the plan as a part of the permit
application and. upon approval by the
Director, such plan shall be a condition
of any permit issued.
(2) The owner or operator shall submit
any proposed significant revision to the
plan as appropriate over the life of the
well, but no later than the date of the
closure report required under § 146.71(c).
(3) The plan shall assure financial
responsibility as required in i 146.73.
(4) The plan shall include the
following information:
(i) The pressure in the injection zone
before injection began;
(ii) The anticipated pressure in the
injection zone at the time of closure:
(iii) The predicted time until pressure
in the injection zone decays to the point
that the well's cone of influence no
longer intersects the base of the
lowermost USDW:
(iv) Predicted position of the waste
front at closure;
(v) The status of any cleanups
required under § 146.64; and
(vi) The estimated cost of proposed
post-closure care.
(5) At the request of the owner or
operator, or on his own initiative, the
Director may modify the post-closure
plan after submission of the closure
report following the procedures in
§ 124.5.
(b) The owner or operator shall:
(1) Continue and complete any
cleanup action required under § 146.64,
if applicable:
(2) Continue to conduct any
groundwater monitoring required under
the permit until pressure in the injection
zone decays to the point that the well's
cone of influence no longer intersects
the base of the lowermost USDW. The
Director may extend the period of post-
closure monitoring if he determines that
the well may endanger a USDW.
(3) Submit a survey plat to the local
zoning authority designated by the
Director. The plat shall indicate the
location of the well relative to
permanently surveyed benchmarks. A
copy of the plat shall be submitted to the
Regional Administrator of the
appropriate EPA Regional Office.
(4] Provide appropriate notification
and information to such State and local
authorities as have cognizance over
drilling activities to enable such State
and local authorities to impose
appropriate conditions on subsequent
drilling activities that may penetrate the
well's confining or injection zone.
(5) Retain, for a period of three years
following well closure, records reflecting
the nature, composition and volume of
all injected fluids. The Director shall
require the owner or operator to deliver
the records to the Director at the
conclusion of the retention period, and
the records shall thereafter be retained
at a location designated by the Director
for that purpose.
(c) Each owner of a Class I hazardous
waste injection well, and the owner of
the surface or subsurface property on or
in which a Class I hazardous waste
injection well is located, must record a
notation on the deed to the facility
property or on some other instrument
which is normally examined during title
search that will in perpetuity provide
any potential purchaser of the property
the following information:
(1) The fact that land has been used to
manage hazardous waste;
(2) The name of the State agency or
local authority with which the plat was
filed, as well as the address of the
Regional Environmental Protection
•Agency Office to which it was
submitted:
(3) The type and volume of waste
injected, the injection interval or
intervals into which it was injected, and
the period over which injection
occurred.
§ 146.73 Financial responsibility for post-
closure care.
The owner or operator shall
demonstrate and maintain financial
responsibility for post-closure by using a
trust fund, surety bond, letter of credit,
financial test, insurance or corporate
guarantee that meets the specifications
for the mechanisms and instruments
revised as appropriate to cover closure
and post-closure care in 40 CFR Part 144,
Subpart F. The amount of the funds
available shall be no less than the
amount identified in § 146.72(a)(4)(vi).
The obligation to maintain financial
responsibility for post-closure care
survives the termination of a permit or
the cessation of injection. The
requirement to maintain financial
responsibility is enforceable regardless
of whether the requirement is a
condition of the permit
Part 148 is added to read as follows:
PART 148—HAZARDOUS WASTE
INJECTION RESTRICTIONS
Subpart A—General
Sec.
148.1 Purpose, scope and applicability.
14&2 Definition*.
148.3 Dilution prohibited as a substitute for
treatment.
148.4 Procedures for case-by-case
extensions to an effective date.
M8-5 Watte analysis.
Subpart B—Prohibitions on Infection
148.10 Watte specific prohibitions—solvent
wastes.
148.11 Waste specific prohibitions—dioxin-
containing wastes.
Subpart C—Petition Standards and
Procedures
148.20 Petitions to allow injection of a
waste prohibited under Subpart B.
148,21 Information to be submitted in
support of petitions.
148.22 Requirements for petition
submission, review and approval or
denial.
148.23 Review of exemptions granted
pursuant to a petition.
148.24 Termination of approved petition.
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Federal Register / Vol. 53, No. 143 / Tuesday, July 26, 1908 / Rules and Regulations 28155
Authority: Sees. 3004. Resource
Conservation and Recovery Act. 42 U.S.C.
6901 et seq.
Subpart A—General
§ 148.1 Purpose, scope and applicability.
(a) This part identifies hazardous
wastes that are restricted from disposal
into Class I hazardous waste injection
wells and defines those circumstances
under which a waste, otherwise
prohibited from injection, may be
injected.
(b) The requirements of this part apply
to owners or operators of Class I
hazardous waste injection wells used to
inject hazardous waste.
(c) Wastes otherwise prohibited from
injection may continue to be injected:
(1) If an extension from the effective
date of a prohibition has been granted
pursuant to § 148.4 with respect to such
wastes: or
(2) If an exemption from a prohibition
has been granted in response to a
petition filed under § 148.20 to allow
injection of restricted wastes with
respect to those wastes and wells
covered by the exemption: or
(3) If the waste is generated by a
conditionally exempt small quantity
generator, as defined in § 261.5; or
(4) Until November 8.1988. if the
waste has been determined to be
contaminated soil or debris resulting
from a response action taken under
section 104 or 106 of the Comprehensive
Environmental Response, Compensation
and Liability Act of 1980 or a corrective
action required under the Resource
Conservation and Recovery Act.
§148.2 Definitions.
Injection interval means that part of
the injection zone in which the well is
screened, or in which the waste is
otherwise directly emplaced.
Transmissive fault or fracture is a
fault or fracture that has sufficient
permeability and vertical extent to
allow fluids to move between
formations.
§148.3 Dilution prohibited a* a substitute
tor treatment.
The prohibition of § 268.3 shall apply
to owners or operators of Class I
hazardous waste injection wells.
§148.4 Procedures for case-by-case
extensions to an effective date.
The owner or operator of a Class I
hazardous waste injection well may
submit an application to the
Administrator for an extension of the
effective date of any applicable
prohibition established under Subpart B
of this Part according to the procedures
of §268.5.
§148.5 Waste analysis.
Generators of hazardous wastes that
are disposed of into Class I injection
wells must comply with the applicable
requirements of § 268.7 (a) and (b).
Owners or operators of Class I
hazardous waste injection wells must
comply with the applicable
requirements of § 268.7(c).
Subpart B—Prohibitions on Injection
§ 148.10 Waste specific prohibitions-
solvent wastes.
(a) Effective August 8.1988, the spent
solvent wastes specified in § 261.31 as
EPA Hazardous Waste Nos. FOOl. F002.
F003. F004. and F005 are prohibited from
underground injection unless the solvent
waste is a solvent-water mixture or
solvent-containing sludge containing
less than 1 percent total F001-F005
solvent constituents listed in Table A of
this section.
(b) Effective August 8.1990, all spent
F001-F005 solvent wastes containing
less than 1 percent total FOOlr-FOOS
solvent constituents listed in Table A of
this section are prohibited from
injection.
(c) The requirements of paragraphs (a)
and (b] of this section do not apply:
(1) If the wastes meet or are treated to
meet the standards of §268.41; or
(2) If an exemption from a prohibition
has been granted in response to a
petition under Subpart C of this Part; or
(3) During the period of extension of
the applicable effective date if an
extension has been granted under
§ 148.4 of this Part; or
(4} During the period the waste has
been granted a treatability variance
under 5268.44.
Table A
Acetone
n-Butyl alcohol
Carbon disulflde
Carbon tetrachloride
Chlorobenzene
Cresols and cresylic acid
Cyclohexanone
1.2-dichlorobenzene
Ethyl acetate
Ethyl benzene
Ethyl ether
Isobutanol
Methanol
Methylene chloride
Methylene chloride (from the
pharmaceutical industry)
Methyl ethyl ketone
Methyl isobutyl ketone
Nitrobenzene
Pyridine
Tetrachloroethylene
Toluene
1.1.1-Trichloroe thane
1.2.2-Trichloro-1.2.2 trifluoroethane ,_
Trichloroethylene
Trichlofluoromethane
Xylene
§ 148.11 Waste specific prohibitions—
dioxin-containing wastes.
., (a) Effective August 8.1988. the
dioxin-containing wastes specified in
§ 261.31 as EPA Hazardous Waste Nos.
F020, F021. F022. F023. F026, F027. and
F028. and prohibited from underground
injection.
(b) The requirements of paragraph (a)
of this section do not apply:
(1) If the wastes meet or are treated to
meet the standards of § 268.41: or
(2) If an exemption from a prohibition
has been granted in response to a
petition under Subpart C of this Part: or
(3) During the period of extension of
the applicable effective date of an
extension has been granted under
§ 148.4 of this Part: or
(4) During the period the waste has
been granted a treatability variance
under §268.44.
Subpart C—Petition Standards and
Procedures
§ 148.20 Petitions to allow Injection of a
waste prohibited under Subpart B.
(a) Any person seeking an exemption
from a prohibition under Subpart B of
this part for the injection of a restricted
hazardous waste into an injection well
or wells shall submit a petition to the
Director demonstrating that, to a
reasonable degree of certainty, there
will be no migration of hazardous
constituents from the injection zone for
as long as the waste remains hazardous.
This demonstration requires a showing
that:
(1) The hydrogeological and
geochemical conditions at the sites and
the physiochemical nature of the waste
stream(s) are such that reliable
predictions can be made that:
(i) Fluid movement conditions are
such that the injected fluids will not
migrate within 10.000 years:
(A) Vertically upward out of the
injection zone: or
(B) Laterally within the injection zone
to a point of discharge or interface with
an Underground Source of Drinking
Water (USDW) as defined in 40 CFR
Part 146; or
(ii) Before the injected fluids migrate
out of the injection zone or to a point of
discharge or interface with USDW, the
fluid will no longer be hazardous
because of attenuation, transformation,
or immobilization of hazardous
constituents within the injection zone by
hydrolysis, chemical interactions or
other means; and
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28156 Federal Register / Vol. 53, No. 143 / Tuesday, July 26. 1988 / Rules and Regulations
(2) For each well the petition has:
(i) Demonstrated that the injection
well's area of review complies with the
substantive requirements of § 146.63:
(ii) Located, identified, and
ascertained the condition of all wells
within the injection well's area of
review (as specified in § 146.63) that
penetrate the injection zone or the
confining zone by use of a protocol
acceptable to the Director that meets the
substantive requirements of § 146.64:
(iii) Submitted a corrective action plan
that meets the substantive requirements
of § 146.64, the implementation of which
shall become a condition of petition
approval: and
(iv) Submitted the results of pressure
and radioactive tracer tests performed
within one year prior to submission of
the petition demonstrating the
mechanical integrity of the well's long
string casing, injection tube, annular
seal, and bottom hole cement. In cases
where the petition has not been
approved or denied within one year
after the initial demonstration of
mechanical integrity, the Director may
require the owner or operator to perform
the tests again and submit the results of
the new tests.
Note.—The requirements of § 14B.20(a)(2)
need not be incorporated in a permit at the
time of petition approval.
(b) A demonstration under
§ 148.20(a](l)(i) shall identify the strata
within the injection zone which will
confine fluid movement above the
injection interval and include a showing
that this strata is free of known
transmissive faults of fractures and that
there is a confining zone above the
injection zone.
(c) A demonstration under
§ 148.20(a)(l)(ii) shall identify the strata
within the injection zone where waste
transformation will be accomplished
and include a showing that this strata is
free of known transmissive faults or
fractures and that there is a confining
zone above the injection zone.
(d) A demonstration may include a
showing that:
(1) Treatment methods, the
implementation of which shall become a
condition of petition approval, will be
utilized that reduce the toxicity or
mobility of the wastes: or
(2) A monitoring plan, the
implementation of which shall become a
condition of petition approval, will be
utilized to enhance confidence in one or
more aspects of the demonstration.
(e) Any person who has been granted
an exemption pursuant to this section
may submit a petition for reissuance of
the exemption to include an additional
restricted waste or wastes or to modify
any conditions placed on the exemption
by the Director. The Director shall
reissue the petition if-the petitioner
complies with the requirements of
paragraphs (a), (b) and (c) of this
section.
(f) Any person who has been granted
an exemption pursuant to this section
may submit a petition to modify an
exemption to include an additional
(hazardous) waste or wastes. The
Director may grant the modification if he
determines, to a reasonable degree of
certainty, that the additional waste or
wastes will behave hydraulically and
chemically in a manner similar to
previously included wastes and that it
will not interfere with the containment
capability of the injection zone.
§ 148.21 Information to be submitted In
support of petitions.
(a) Information submitted in support
of § 148.20 must meet the following
criteria:
(1) All waste analysis and any new
testing performed by the petitioner shall
be accurate and reproducible and
performed in accordance with quality
assurance standards:
(2) Estimation techniques shall be
appropriate, and EPA-certified test
protocols shall be used where available
and appropriate;
(3) Predictive models shall have been
verified and validated, shall be
appropriate for the specific site, waste
streams, and injection conditions of the
operation, and shall be calibrated for
existing sites where sufficient data are
available;
(4) An approved quality assurance
and quality control plan shall address
all aspects of the demonstration;
(5) Reasonably conservative values
shall be used whenever values taken
from the literature or estimated on the
basis of known information are used
instead of site-specific measurements;
and
(6) An analysis shall be performed to
identify and assess aspects of the
demonstration that contribute
significantly to uncertainty. The
petitioner shall conduct a sensitivity
analysis to determine the effect that
significant uncertainty may contribute to
the demonstration. The demonstration
shall then be based on conservative
assumptions identified in the analysis.
(b) Any petitioner under
S 148.20(a)(l)(i) shall provide sufficient
site-specific information to support the
demonstration, such as:
(1) Thickness, porosity, permeability
and extent of the various strata in the
injection zone:
(2) Thickness, porosity, permeability,
extent, and continuity of the confinihg
zone;
(3) Hydraulic gradient in the injection
zone:
(4) Hydrostatic pressure in the
injection zone; and
•• (5) Geochemical conditions of the site.
(c) In addition to the information in
§ 148.21(b). any petitioner under
§ 148.20(a)(l)(ii) shall provide sufficient
waste-specific information to ensure
reasonably reliant predictions about the
waste transformation. The petitioner
shall provide the information necessary
to support the demonstration, such as:
(1) Description of the chemical
processes or other means that will lead
to waste transformation: and
(2) Results of laboratory experiments
verifying the waste transformation.
§ 148.22 Requirements for petition
submission, review and approval or denial.' -
(a) Any petition submitted to the
Director pursuant to § 14B.20(a) shall
include the following components:
(1) An identification of the specific
waste or wastes and the specific
injection well or wells for which the
demonstration will be made;
(2) A waste analysis to describe fully
the chemical and physical
characteristics of the subject wastes;
(3) Such additional information as is
required by the Director to support the
petition under §§148.20 and 148.21: and
(4) This statement signed by the
petitioner or an authorized
representative:
I certify under penalty of law that I have
personally examined and am familiar with the
information submitted in this petition and all
attached documents, and that, based on my
inquiry of those individuals immediately
responsible for obtaining the information, 1
believe that submitted information is true.
accurate, and complete. I am aware that there
are significant penalties for submitting false
information, including the possibility of fine
• and imprisonment.
(b) The Director shall provide public
notice and an opportunity for public
comment in accordance with the
procedures in $124.10 of the intent to
approve or deny a petition. The final
decision on a petition will be published
in the Federal Register.
(c) If an exemption is granted it will
apply only to the underground injection
of the specifice restricted waste or
wastes identified in the petition into a
Class I hazardous waste injection well
or wells specifically identified in the
petition (unless the exemption is
modified or reissued pursuant to
§ 148.20(e) or (f).
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Federal Register / Vol. 53. No. 143 / Tuesday. July 26. 1988 / Rules and Regulations 28157
(d) Upon request by any petitioner
who obtains an exemption for a well
under this Subpart, the Director shall
initiate and reasonably expedite the
necessary procedures to issue or reissue
a permit or permits for the hazardous
waste well or wells covered by the
exemption for a term not to exceed ten
years.
' 148.23 Review of exemptions granted
jursuant to a petition.
(a) When considering whether to
reissue a permit for the operation of a
Class I hazardous waste injection well.
the Director shall review any petition
filed pursuant to § 148.20 and require a
new demonstration if information shows
that the basis for granting the exemption
may no longer be valid.
(b) Whenever the Director determines
that the basis for approval of a petition
may no longer be valid, the Director
shall require a new demonstration in
accordance with § 148.20.
. § 148.24 Termination of approved petition.
(a) The Director may terminate an
exemption granted under § 148.20 for the
following causes:
(1) Noncompliance by the petitioner
with any condition of the exemption:
(2) The petitioner's failure in the
petition or during the review and
approval to disclose fully all relevant
facts, or the petitioner's
misrepresentation of any relevant facts
at any time; or
(3) A determination that new
information shows that the basis for
approval of the petition is no longer
valid.
(b) The Director shall terminate an
exemption granted under § 148.20 for the
following causes:
(1) The petitioner's willful withholding
during the review and approval of the
petition of facts directly and materially
relevant to the Director s decision on the
petition;
(2) A determination that there has
been migration from the injection zone
or the well that is not in accordance
with the terms of the exemption, except
•.that the Director may at his discretion
decide not to terminate where:
(i) The migration resulted from a
mechanical failure of the well that can
be corrected promptly through a repair
to the injection well itself or from an
undetected well or conduit that can be
plugged promptly; and
(ii) The requirements of § 146.67(i) are
satisfied.
. (c) The Director shall follow the
procedures in § 124.5 in terminating any
exemption under this section.
[FR Doc. 88-16404 Filed 7-25-88: 6:45 am]
BILLING CODE 6SSO-SO-M
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37396
Federal Register / Vol. 53, No. 186 / Monday, September 26. 1988 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 35,124,141,142,143,
144,145, and 146
[FRL-3304-2]
Safe Drinking Water Act—National
Drinking Water Regulations,
Underground Injection Control
Regulations; Indian Lands
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Safe Drinking Water Act
(SOWA) Amendments of 1986 (Pub. L
99-339) require EPA to promulgate
regulations specifying those provisions
of the Act for which it would be
appropriate to treat Indian Tribes as
States. This rule allows Tribes to be
treated as States for purposes of
administering a Public Water System or
Underground Injection Control program.
The rule establishes procedures for (a)
Determining eligibility of Indian Tribes
to apply for treatment as States; (b) if
found eligible, to apply for primary
enforcement responsibility (primacy) on
Indian lands; and (c) to receive grants to
support EPA approved Public Water
System and Underground Injection
Control regulatory programs. EPA in a
separate notice proposed rules for
administration of Wellhead Protection
and Sole Source Aquifer Demonstration
programs by Indian Tribes (52 FR 46712,
December 9,1987).
EFFECTIVE DATE: The amended
requirements contained in this rule
found at 40 CFR Parts 35,124.141.142,
143,144.145, and 146 will take effect
October 26,1988. In accordance with 40
CFR 23.7. this regulation shall be
considered final Agency action for the
purpose of judicial review at 1:00 pan.
eastern time on October 11,1988.
ADDRESSES: Public comments.
supporting documents, and the public
docket for this rulemaking are available
for review during normal business hours
at the Environmental Protection Agency,
Room 1003 East Tower. 401M Street
SW., Washington. DC 20460.
FOR FURTHE3 INFORMATION: Contact Al
Havinga, State Programs Division.
Office of Drinking Water (WH-550E),
Environmental Protection Agency, 401M
Street SW.. Washington. DC. 20460.
telephone (202) 382-5355.
SUPPLEMENTARY INFORMATION:
Table of Contents
L Statutory Authority
II. Background
A. EFA's Indian Policy
B. Statutory and Regulatory Background
C. Public Comments on the Proposal
III. Summary and Explanation of Today's
Action
A. Statutory, Regulatory, and Programmatic
Framework
1. Statutory and Regulatory Framework
2. Programmatic Framework
B. Treatment of Indian Tribes as States
1. Federal Recognition
2. "Substantial Governmental Duties and
Powers"
3. Jurisdiction
4. Tribal Capability
5. Process for Evaluating Applications
C. Requirements for Primary Enforcement
Responsibility
1. Tribal Primacy Requirements
2. Primacy Requirements not Applicable
to Tribes
3. Administrative Options Available to
Tribes
4. Primacy Technical Assistance
D. Program Grants
1. Grant Eligibility
2. Reserves for Indian Tribes
3. Gran! Matching Requirements
4. Reallocation of Reserve Funds
5. Development Grant Time Frames and
Grants
E. Other Issues
1. Technical Assistance
2. Alaska Native Villages
3. Trust Responsibility
IV. Other Regulatory Requirements
A. Compliance With Executive Order 12291
B. Paperwork Reduction Act
C Regulatory Flexibility Act
List of Subject* in 40 CFR Parts 35.124.141.
142,143.144.145. and 146
I. Statutory Authority
The June 19.1986 amendments to the
Safe Drinking Water Act (42 U.S.C. 300f
et seg.) added a new section 1451
entitled "Indian Tribes." The
amendments authorize EPA to treat
Indian Tribes as States, delegate
primary enforcement responsibility for
the Public Water System (PWS) and
Underground Injection Control (UIC)
programs, and provide grant and
contract assistance to Indian Tribes
where appropriate. The amendments
require EPA to promulgate regulations
by December 19,1987, specifying those
provisions of the Act where it is
appropriate to treat an Indian Tribe as a
State.
Section 1451 of the Safe Drinking
Water Act establishes certain criteria an
Indian Tribe must meet before treatment
as a State is authorized: (1) "The Indian
Tribe is recognized by the Secretary of
the Interior and has a governing body
carrying out substantial governmental
duties and powers;" (2) "the functions to
be exercised by the Indian Tribe are
within the area of the Tribal
Government's jurisdiction;" and (3) "the
Indian Tribe is reasonably expected to
be capable, in the Administrator's
judgment, of carrying out the functions
to be exercised in a manner consistent
with the terms and purposes
of * * * [the Act] and of all applicable
regulations." The amendments state that
Indian Tribes "may not assume or
maintain primary enforcement
responsibility in a manner less
protective of the public health than such
responsibility may be assumed or
maintained by a State". However, an
Indian Tribe "shall not be required to
exercise criminal enforcement
jurisdiction for purposes of complying
with" the requirements for primary
enforcement responsibility.
Because funds are limited and will be
allocated on the basis of the Tribe's
workload many Indian Tribes may
decide it is not cost-effective or
otherwise beneficial to apply for
primary enforcement authority. For
these Tribes, and Tribes otherwise
deemed not eligible for "treatment as a
State", the EPA's Regional Offices will
continue to regulate public water
systems and injection wells on their .
reservations. This issue is discussed
more fully in Section III (E)(l).
II. Background
A. EPA's Indian Policy
This rule is consistent with Federal
policy statements regarding Indian
Tribes. On January 24.1983. President
Reagan signed a Federal Indian Policy
Statement providing for treatment of
Tribal governments on a government-to-
government basis and supporting the
principle of self-determination and local
decision-making by Indian Tribes. The
EPA responded to the President's
statement by developing a discussion
paper entitled "Administration of
Environmental Programs on Indian
Lands" in July 1983 and subsequently
adopted the EPA Indian Policy
Statement and Implementation
Guidance in November 1984.
The EPA's policy is "to give special
consideration to Tribal interests in
making Agency policy and to ensure the
close involvement of Tribal governments
in making decisions and managing the
environmental programs affecting
reservation lands." In practice, EPA's
policy is to work directly with Tribal
governments as independent authorities
for reservation affairs and not as
political subdivisions of States.
B. Statutory and Regulatory Background
The Safe Drinking Water Act was
adopted on December 16,1974 (Pub. L
93-523) and amended in 1977 (Pub. L
95-190). 1979 (Pub. L 96-€3). 1980 (Pub.
L 96-502). and 1986 (Pub. L. 99-339). The
statute was enacted to protect the
quality of drinking water supplies
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 37397
throughout the United States by
establishing four major programs: Public
\Vater System. Underground Injection
Control. Wellhead Protection, and Sole
Scarce Aquifer Demonstration
programs. The Public Water System
program establishes drinking water
quality standards; the Underground
Injection Control program protects
groundwater by regulating the injection
of fluids into the ground; the Wellhead
Protection program is designed to
protect aquifers from contamination
through controls of the area around
public water supply wells; and the Sole
Source Aquifer Demonstration program
is designed to protect "critical aquifer
protection areas" within aquifers
designated as "sole source aquifers."
The Safe Drinking Water Act allo\vs
States to assume primary enforcement
responsibility (primacy) to administer
Public Water System and Underground
Injection Control programs. The Safe
Drinking Water Act also authorizes EPA
to support Public Water System and
Underground Injection Control programs
by providing financial and technical
assistance to develop and administer
these programs. Currently, EPA
administers the Public Water System
and Underground Injection Control
programs on Indian lands. However, the
1986 Safe Drinking Water Act
Amendments change the relative roles
and responsibilities of Indian Tribes and
the EPA by enabling Indian Tribes to
apply to EPA for "treatment as a State"
and, if approved, subsequently to apply
for primary enforcement responsibility
for the Public Water System and
Underground Injection Control
programs.
The EPA formed a workgroup in
August 1986 to draft regulations that
would implement the Safe Drinking
Water Act Amendments pertaining to
Indian-Tribes. In October 1986, the
workgroup circulated draft material to
all Indian Tribes and States for
comment On July 27.1987. EPA
proposed at 52 FR 28112 to amend the
National Drinking Water regulations
found at 40 CFR Parts 141,142, and 143;
the Underground Injection Control
regulations found at 40 CFR Parts 144.
145, and 146: the Public Water System
and Underground Water Source
Protection Grant regulations found at 40
CFR Part 35; and EPA's generic
permitting procedures at 40 CFR Part
124. These regulations will enable
Indian Tribes to be treated as States and
enable Tribes meeting the "treatment as
a State" criteria to apply for primary
enforcement responsibility and financial
assistance for the Public Water System
and Underground Injection Control
programs.
Copies or the proposed regulations
were sent to each Federally recognized
Alaska Native Village and Indian Tribe
prior to publication in the Federal
Register to enable Indian Tribes and
Alaska Native Villages additional time
to comment on the proposed rule. The
following final rule reflects the
comments on the July 27,1987 proposal
and the Agency's response.
C. Public Comments on the Proposal
The EPA requested comments on all
aspects of the July 27 proposal. A
summary of the major comments and the
Agency's response to the issues raised
are presented in the following section.
The Agency's detailed response to the
comments received are presented in the
document "Response to Comments
Received on the Proposed Indian
Primary Enforcement Responsibility
Requirements of July 27,1987," which is
available in the public docket for this
rulemaking.
The EPA received 38 written
comments on the proposed rule. Twenty-
two written comments were received
representing the views of 32 Indian
Tribes and Alaska Native Villages, nine
written comments were received from
States or Federal Agencies, five written
comments were received from public or
professional organizations, and two
written comments were received from
private industry.
The EPA held three public hearings on
the proposed rule: August 17,1987 in
Washington, DC; August 25.1987 in
Spokane, Washington: and September 3,
1987 in Denver, Colorado. Fourteen
individuals representing eleven Indian
Tribes, one professional organization.
one industry, and one private individual
made oral statements at the public
hearings.
m. Summary and Explanation of
Today's Action
A. Statutory. Regulatory and
Programmatic Framework
1. Statutory and Regulatory Framework
Under the existing Safe Drinking
Water Act requirements. Indian Tribes
are currently treated as
"municipalities." Today's rule
implements section 1451 of the Safe
Drinking Water Act which authorizes
EPA to treat an Indian Tribe as a State if
the Indian Tribe meets the eligibili:,
criteria. Once eligible, the Indian Tribe
may apply for primacy under sections
1413.1422. and 1425 of the Act The
statute provides that Indian Tribes
which do not meet the criteria will still
be treated as municipalities with
Federal regulatory oversight.
States and eligible Indian Tribes may,
apply for primary enforcement authority
for a Public Water System program
under section 1413 of the Safe Drinking
Water Act; a Class I. II, III. IV. and V
Underground Injection Control program
under section 1422 of the Act; and a
Class I, III. IV, and V Underground
Injection Control program under section
1422 and/or a Class II Underground
Injection Control program under section
1425 of the Act. States and Indian Tribes
treated as States may also apply to
receive technical and/or financial
assistance for primary enforcement
responsibility under section 1443 of the
Act. The EPA discusses later in this
notice how specific provisions of
sections 1442.1443, and 1444 affect
Indian Tribes.
With respect to the Underground
Injection Control program, EPA would
like to clarify that eligible Indian Tribes
can apply for primacy for the Class II
program under section 1425 of the Act
separately from primacy for the Class I,
III. FV, and V program. However, an
Indian Tribe would only need to apply
for "treatment as a State" once for the
Underground Injection Control programs
since an EPA determination of
"treatment as a State" will cover both
the 1422 and the 1425 programs.
A Tribe must show the appropriate
jurisdiction and capability and
otherwise qualify for treatment as a
State in order to subsequently apply for
Public Water System and Underground
Injection Control grants and primacy.
For example, if the Tribe is designated
for "treatment as a State" for the Public
Water System program, the Tribe would
then be treated as a State for only those
provisions of the Act and EPA
regulations relating to the Public Water
System program (e.g.. SDWA sections
1412,1413,1414,1415,1416.1443(a)). The
Tribe would not be eligible to
participate in other programs or grants
contained in the Act until EPA approved
the corresponding separate application
for "treatment as a State." For programs
authorized by the Safe Drinking Water
Act EPA intends to approve Indian
Tribes for "treatment as a State" on a
program-by-program basis. As is the
case for States, an Indian Tribe must
have its own legal authorities to
administer a program under the Safe
Drinking Water Act; EPA cannot
delegate its own authority.
The EPA received several comments
suggesting that EPA should require
Indian Tribes to apply once for
"treatment as a State" for all EPA water
programs. The Agency finds that this
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37398 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations
comment has merit. When all
regulations under the Safe Drinking
Water and Clean Water Acts stipulating
how Tribes shall be treated as States
are final the Agency will develop
procedures to implement a single
application procedure. Most
qualifications are of a general nature
and need only be provided when a Tribe
first applies for "treatment as a State"
under the Safe Drinking Water or the
Clean Water Acts. However, the Agency
believes that even with a streamlined
application procedure, some
qualifications such as § § 142.76(c).
142.56(d)(6), 145.76(C). and 145.56(d)(6)
will need to be demonstrated for each
program. For example, an Indian Tribe
may possess the requisite jurisdiction to
regulate public water systems on certain
lands but lack the authority to regulate
underground injection wells on these
lands. Consequently, the Agency has
revised the final rule to enable Indian
Tribes which have previously been
designated as a State to provide only
that information which is unique to the
Public Water System or Underground
Injection Control programs (§§ I42.76(f)
and 145.56(f)).
2. Programmatic Framework
Today's rule establishes a three-step
process for an Indian Tribe to assume
primary enforcement responsibilty for
the Public Water System and
Underground Injection Control
programs. The first step is to receive
designation for "treatment as a State."
The four criteria an Indian Tribe must
meet for "State" designation for the
Public Water System and Underground
Injection Control programs are set forth
in 40 CFR 142.72 and 145.52 respectively.
After receiving "State" designation for
a program, a Tribe is then eligible to
apply for a grant to develop the program
(the second step) and primacy (the third
step). EPA anticipates that typically
Indian Tribes will apply for a
development grant before applying for
primacy. Furthermore, EPA expects that
most Indian Tribes will need the full
three and/or four years (this issue is
discussed more fully in section in (D)(5))
to develop the corresponding public
Water System and Underground
Injection Control programs.
Consequently, EPA anticipates that
applications for primary enforcement
responsibility would not occur until near
the end of the program development
process.
Before a Tribe can receive a
development grant, the Tribe must
submit a development plan for EPA
approval. This plan must outline in
detail what activities the Tribe will
undertake to obtain primacy, how the
Tribe will carry out these activities, and
the specific time frame in which the
Tribe will accomplish these activities.
The EPA will on an annual basis
evaluate Tribal adherence to the
development plan. The Regional
Administrator will not give a
continuation award to any Tribe unless
it demonstrates reasonable progress .
towards assuming primary enforcement
responsibility within the three year or •
four year period.
Approximately six to twelve months
before completion of the program
development process. Tribes would
formally apply to EPA for primacy. If the
Tribe has renewed the development
plan, it typiciiliy would meet the
programmatic requirements as well as
possess the necessary administrative
and technical capability to assume
primacy. Excepting the "treatment as a
State" designation, the process outlined
above is similar to the process States
currently use to obtain primacy.
However, as discussed later in this
notice. Indian Tribes are afforded longer
development times than States in order
to gain the necessary expertise to
assume primacy.
B. Treatment of Indian Tribes as States
This rule creates procedures for
Indian Tribes to apply to EPA for
"treatment as a State." After "State"
designation. Tribes are subsequently
eligible to apply for financial assistance
and primacy for the Public Water
System and Underground Injection
Control programs. This rule creates
procedures set forth in a new Subpart H
under Part 142 (National Primary
Drinking Water Regulations
Implementation), and a new Subpart E
under Part 145 (State UIC Program
Requirement), each titled: Treatment of
Indian Tribes as States." Subparts H
and E establish criteria Indian Tribes
must meet for "treatment as a State**,
list the information the Tribe must
provide in its application to EPA. and
provide a procedure for EPA to formally
review applications for "treatment as a
State." The requirements a Tribe must
meet under Subparts H and E are
identical.
Under this rule, a Tribe is eligible for
treatment as a State if it meets the four
criteria listed in §§ 142.72 and 145.52.
The four eligibility criteria are: (1) The
Indian Tribe must be recognized by the
Secretary of the Interior: (2) the Indian
Tribe must have a governing body
carrying out substantial governmental
duties and powers over a defined area;
(3} the Tribe must demonstrate that the
public water systems snd/cr
underground injection wells it will
regulate are within the area of its
jurisdiction; and (4) the Tribe must
demonstrate that it is "reasonably
expected to be capable" of
administering (in a manner consistent
with the teims and purposes of the Act
and all applicable regulations] an
effective Public Water System and/or
Underground Injection Control program.
The EPA's review of the comments
revealed general support for the
proposed approach to treating Tribes as
States. However, the support was
qualified by the view that some criteria
for "treatment as a State" were too
demanding. One of the commenters
argued that the criteria in Parts 142 and
145 should be eliminated since livers is
no statutory basis for the requirement
that Tribes must go through a
"prequalification" process that was nut
required of States. However, section
1451(a) of the Act clearly specifies that
the Agency is authorized to treat Tribes
as States and subsequently to award
grants and delegate primacy only to'
those Tribes which meet the criteria for
"treatment as a State" set forth in
section 1451(b). The Agency must ensure
that a Tribe meets the statutory criteria
in section I451(b)(l) before it is
empowered to treat the Tribe as a State
under the Act
Another commenter stated that the
statutory criteria contained in section
1451(b)[l) of the Safe Drinking Water
Act are "boiler plate." The commenter
stated that the language of 1451(b)(l)
was"* * * simply to reaffirm that
Tribal primacy programs would be no
less rigorous than the States." This view
is based upon the commenter's reading
of the legislative history and discussion
with "individuals involved" in the
development of the 1986 Amendments.
The Agency cannot presume that such
statutory language is superfluous. The
Agency finds nothing in the legislative
history to support this interpretation of
section 1451(b)(l). Moreover, if this view
were correct there would have been no
need to state in section 1451(b)(2) that
"Indian Tribes [may not] assume or "
maintain primary enforcement
responsibility in a manner less
protective of the public health than such
responsibility may be assumed or
maintained by a State."
1. Federal Recognition
With respect to Federal recognition as
an Indian Tribe, the Secretary of the
Interior periodically publishes a list of
Federally recognized Tribes. If the
applicant appears on this list it need
only state that this is so. If the Tribal
name does not appear on this list
because the list has not been updated.
the Tribe can still provide appropriate
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations -37399
documentation to EPA verifying that it is
Federally recognized.
2. "Substantial Governmental Duties
and Powers"
The second criterion that a Tribe must
satisfy to be treated as a State is that
the Tribe has a governing body which is
"carrying out substantial governmental
duties and powers." The Agency
received several comments on this issue.
A number of the commenters suggested
that most Indian Tribes will be able to
meet this criterion because most Tribal
governments do, in fact carry out
substantial governmental duties and
powers.
One of the commenters stated that the
phrase "carrying out substantial
governmental duties and powers" was
only designed to "limit eligibility to
those Tribes that ere Federally-
recognized" and that "[f]ew if any
Tribes do not carry out substantial
governmental duties and functions." The
same commenter stated that if more is
required than establishing that the
Indian Tribe is Federally recognized.
then the regulations should establish a
presumption that a "federally-
recognized" Tribe does carry out
"substantial governmental duties and
functions." The Agency cannot presume
that the statutory phrase "carrying out
substantial governmental duties and
powers" is superfluous. If the terms
"Federally recognized" and "carrying
cut substantial governmental duties and
powers" are synonymous, then the latter
phrase would necessarily be redundant
The Agency does not find any
evidence in the legislative history that
the only purpose of this language was to
limit the eligibility determination to the
issue of whether a Tribe was Federally
recognized. Moreover, the essential
significance of Federal recognition is
that a given recognized Tribe is eligible
to receive services and participate in
programs which an available only to
Indians because of their status as
Indians. Although Federal recognition
may imply that the Tribe has some form
of governmental structure (i.e., has some
identity as a governmental entity), this
does not automatically mean that a
particular applicant which is a Federally
recognized Tribe is. in fact currently
"carrying out substantial governmental
duties and powers."
The same commenter stated that the
Agency's use of the Indian
Governmental Tax Status Act (Pub. L.
97-473) in the discussion of this
requirement accompanying the proposed
rule (52 FR 28113) was inappropriate.
The commenter stated that the Internal
Revenue Service (IRS) has presumed
that Federally recognized Tribes carry
out "essential governmental functions''
(the language in the Tax Status Actl.
and thus IRS has established a
"conclusive presumption" that a
Federally recognized Tribe does, in fact,
carry out "essential governmental
functions."
The EPA made reference to the Tax
Status Act because of IRS's
interpretation of the phrase "substantial
governmental functions"; the IRS
regulations state that the police power,
the power to tax, and the power of
eminent domain are the usual types of
basic governmental functions performed
by sovereigns. In construing the term
"carrying out substantial governmental
duties and powers" in Section I431(b)(l)
of the Safe Drinking V/ater Act EPA is
not bound by the decision of IRS to
presume that Federally recognized
Tribes carry out "essential
governmental functions", especially
since the purposes of the two statutes
are different.
The Agency believes that this second
criterion will not pose a barrier to
treatment of Tribes as States. Based on
the comments received, the Agency
believes that most Tribes will be able to
meet this requirement with relative ease.
The Agency recognizes that in general.
Federally recognized Tribes do carry oui
"substantial governmental duties and
potvers." However, the Agency has a
statutory obligation to make this
determination on a case-by-case basis.
Therefore, the Agency does not believe
that it is appropriate to create a
presumption (whether conclusive or
rebuttable in nature] that all Federally
recognized Tribes are "carrying out
substantial governmental duties and
powers."
The comments expressed the general
view that the proposed requirements for •
submission of documentation (&£.,
Tribal constitutions, codes, etc.) would
be unduly burdensome and unnecessary.
Based on the comments received, the
Agency is relaxing the proposed rule so
as not to require such documentation
initially. Rather, the Agency will require
a narrative statement: (1) Describing the
form of Tribal government: (2)
describing the types of substantial
governmental functions currently
performed: and (3) identifying the source
of the authority to perform these
functions (e.g.. Tribal constitutions.
codes, etc.). The Agency is. however.
continuing to require documentation to
support the Tribe's claim of jurisdiction.
Additionally, the Agency is reserving
the right to request supplemental
information as it may deem necessary.
Finally, one commenter inquired as to
whether an applicant must be exercising
each of the types of substantial
governmental functions listed in
§ l42.7G(b)(l) and § 145.52(b)(l) (i.e.
police powers affecting the health,
safety and welfare, taxation, and power
of eminent domain) to meet this
criterion. The Agency merely intended
the listed types of functions as
examples. It is not necessary that an
applicant be currently performing each
such function to qualify for "treatment
'as a State."
3. Jurisdiction
The third requirement a Tribe must
meet for "treatment as a State" is that
the functions to be exercised by the
Tribe must be within the "area of the
Tribal Government's jurisdiction." EPA
interprets this statutory language to
mean that the Tribal government must
have both the subject matter and
geographical jurisdiction necessary to
administer a Public Water System and/
or Underground Injection Control
program.
A number of commenters urged that
the Agency should automatically
assume (or establish a rebuttable
presumption to the effect) that a Tribal
government has the necessary
jurisdiction to administer and enforce
either the Public Water System program
or the Underground Injection Control
program within the exterior boundaries
of the particular Tribe's reservation. The
concern of the commenters appears to
have been two-fold. First many
commenters expressed the view that
Tribes should not face the burden of
proving their jurisdiction, Le.. that they
should receive the same general
recognition of sovereign authority that
EPA accords States when reviewing
applications for primacy. A related, be
different concern is that EPA should nut
establish a process for resolving
jurisdictional disputes that allows States
to impede Tribal assertions of
jurisdiction over reservation lands. This
second concern is addressed in Section
m(B)(5) of this preamble.
The Agency recognizes that there is
substantial support for the general
proposition that a Tribal government
has jurisdiction to administer a Public
Water System and/or Underground
Injection Control program within the
exterior boundaries of the Tribe's
reservation. The Agency does not
believe, however, that it is appropriate
to establish a rebuttable presumption
concerning Tribal governmental
jurisdiction on reservation lands. EPA is
under a duty to ensure that all public
water systems and underground
injection control activities are being
regulated by EPA. the Tribes, or States.
Just as when EPA considers an
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37400 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations
application for State primacy, EPA must
not delegate enforcement responsibility
to a Tribe unless the Tribe can
adequately show it possesses the
requisite jurisdiction. Establishment of a
presumption regarding Tribal
jurisdiction would not be protective of
human health and the environment since
Tribal authority may, in some instances,
be in question.
The inappropriateness of establishing
a presumption is exemplified by the
comments of the Penobscot Tribe of
Maine requesting'that EPA promulgate
special regulations to enable the
Penobscot Tribe to be treated as a State
for purposes of both the Public Water
System and Underground Injection
Control programs. This request is based
on the fact that under the terms of the
Maine Indian Land Claims Settlement
Act of 1980 (25 U.S.C. 1721 et seq.) and
the Maine Implementation Act (30 Me.
Rev. Stat. Ann. section 670 et seq. (1979.
as amended 1981)) the State has limited,
but not clearly defined, regulatory
jurisdiction over the lands within the
exterior boundaries of the Tribe's
reservation, presumably, the other two
Federally recognized Tribes which were
parties to the Maine Settlement Act, the
Passamaquoddy Tribe and the Houlton
Band of Maliseet Indians, are subject to
the same jurisdictional infirmity. In
addition, different jurisdictional
problems may arise with respect to
complex ownerships potentially
involving Federal, State, and Tribal
jurisdiction within so-called
"checkerboard areas" (i.e., fee lands
owned by non-Indians or non-Indian
entities interspersed with Indian owned
lands within the exterior boundaries of
reservations).
The request that a given Tribe
establish its jurisdiction for either a
Public Water System program or an
Underground Injection Control program
is not meant to be a barrier or deterrent
to that Tribe's attainment of primacy.
Rather, it reflects the need to identify at
an early date the presence or absence of
a key element to effective
administration of either program. The
EPA recognizes its statutory
responsibility not to delegate
enforcement authority to a Tribe unless
the Tribal government possesses the
necessary regulatory authority.
Therefore, EPA believes that it would be
inappropriate to develop special
procedures to allow Tribes which do not
meet the statutory criteria under section
1451(a) nonetheless to be treated as a
State as requested by the Penobscot
Tribe. Furthermore, EPA believes it
lacks the statutory authority to make
funds available under section 1443 to
Tribes which do not qualify for
"treatment as a State", as further
requested by the Penobscot Tribe.
Several commenters suggested that
for jurisdictional determinations the
Agency should include a definition of
"Indian lands" in the regulations which
equates Indian lands with "Indian
Country." The pertinent text of 18 U.S.C.
1151 is as follows:
* * * the term "Indian Country", as used
in this chapter, means (a) all land within the
limits of any Indian reservation under the
jurisdiction of the United States Government,
notwithstanding the issuance of any patent,
and. including rights-of-way running through
the reservation, (b) all dependent Indian
communities within the borders of the United
States whethei within the original or
subsequently acquired territory thereof, and
whether within or without the limits of a
state, and (c) all Indian allotments, the Indian
titles to which have not been extinguished.
including rights-of-way running through the
same.
One of the commenters noted further
that the draft Underground Injection
Control Direct Implementation
Regulations (52 FR17684) proposed to
adopt the 18 U.S.C. 1151 definition and
that, to be consistent, it should also be
used in these regulations.
The EPA's recognition that there is
substantial support for the general
proposition that a Tribal government
has jurisdiction to administer a Public
Water System and/or an Underground
Injection Control program within the
exterior boundaries of a Tribe's
reservation does not require the Agency
to adopt a definition of "Indian lands"
which equates this term with the term
"Indian Country."
The adoption of the "Indian Country"
definition within the Underground •
Injection Control Direct Implementation
draft regulations reflects EPA's basic
concern with ensuring that all
underground injection activities on all
lands, including Indian lands, are
regulated. By contrast, the basic concern
addressed by these regulations is to
allow an eligible Indian Tribe to
regulate public water systems and
underground injection activities located
only on those lands over which the
Tribe adequately demonstrates its
jurisdiction. In short, the underlying
concern addressed by these regulations
is not as broad as the basic concern
addressed by the Underground Injection
Control Direct Implementation proposed
regulations of May 11.1987.
Furthermore. EPA believes that
adoption of the proposed definition of
"Indian Country" would tend to
generate additional jurisdictional
disputes. This is because the term
"Indian Country" encompasses areas
which are "dependent Indian
communities." The issue of whether a
particular area constitutes a "dependent
Indian community" is inherently
complex; what constitutes the proper
resolution of this issue will be the
subject of sharply divergent, views
among the affected governmental
entities. To effectively increase the
number of potentially disputed areas
would not be in the best interest of the
public health. Also, regulated entities
carrying on activities within disputed
areas would be presented with
uncertainty as to whether a particular
Indian Tribe or another governmental
entity was the proper regulatory
authority.
Finally, the comments received from
Indian Tribes indicate a basic concern
with obtaining authority to administer
Public Water System and Underground
Injection Control programs within the
exterior boundaries of their respective
reservations. The Agency does not nejsd
to adopt the definition of "Indian
Country" to meet this basic concern.
EPA notes that this rule is not intended
to, and does not. preclude a Tribe from
applying for "treatment as a State" with
respect to any lands over which it
believes it has jurisdiction.
To assist EPA in reviewing the Tribe's
assertion of jurisdiction, the Agency is
adding a requirement to §§ 142.76(c) and
145.56(c) that the Tribe submit a
statement signed by the Tribal Attorney
General or an equivalent official
explaining the legal basis for the Tribe's
regulatory jurisdiction to administer a
Public Water System and/or
Underground Injection Control program.
The statement is similar to the
statement currently required of States
applying for Underground Injection
Control primacy (40 CFR 145.24). It is a
logical supplement to the jurisdictional
documentation mentioned in
§§ 142.76(c) and 145.56(c) of the
proposed rule, which is still required
under this final rule (a map, copies of
tribal codes and ordinances, etc.) The
Attorney General's statement with the
supporting documentation will assist
EPA in verifying that the Tribe has the
necessary jurisdiction to run a Public
Water System and/or Underground
Injection Control program.
4. Tribal Capability
The fourth criterion that a Tribe must
meet is that in the Administrator's
judgment it must be "reasonably
expected to be capable" of
- administering an effective program. In
making his determination as to whether
a Tribe has shown that it is "reasonably
expected to be capable" of
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Federal Register / Vol. 53, No. 186 / Monday, September 26, 1988 / Rules and Regulations .37401
administering an effective Public Water
System 'and/or Underground Injection
Control program, the Administrator xvill
consider six factors: (1) the Tribe's
previous management experience; (2}
existing environmental or public health
programs administered by the Tribe; (3)
its accounting and procurement systems:
(4) the mechanism(s) in place for
carrying out the executive, legislative,
and judicial functions of the Tribal
government; (5) the relationship
between the owner/operator of the
public water systems and/or
underground injection wells and the
administrative agency of the Tribal
government which is, or will be,
designated as the primacy agent; and (6)
the technical and administrative
capabilities of the staff to administer
and manage the Public Water System
and/or Underground Injection Control
program(s) or a plan describing how the
Tribe intends to obtain the additional
technical and administrative staff
necessary to manage either program.
One commenter noted that the Agency
should look at general management
experience. EPA agrees and emphasizes
that the description of the Tribe's
previous management experience may
include information which indicates that
the Tribe has the general managerial
expertise to administer an effective
Public Water System and/or
Underground Injection Control program.
One source of information that a Tribe
may use to demonstrate managerial
capability is administration of programs
and services under contracts authorized
by the Indian Self-Determination and
Education Assistance Act (Pub. L. 93-
638), the Indian Mineral Development
Act (Pub. L. 97-382), and the Indian
Sanitation Facilities Construction
Activity Act (Pub. L. 86-121).
The Agency recognizes that many
Tribes may not have experience in
administering environmental programs.
Although lack of this experience will not
preclude a Tribe from demonstrating the
required capability, the presence of such
experience will be of significant
importance to the Agency.
Some comments were received with
respect to the proposed requirement that
a Tribe describe the "technical and
administrative capabilities of the staff to
administer and manage an effective"
Public Water System and/or
Underground Injection Control program.
The commenters stated that few Tribes
have existing technical staff to operate
such programs. Therefore, in response.
the Agency is changing §§ 142.72.142.76,
145.52. and 14536 to require that a Tribe
show that it has either the necessary
staff or a viable plan to acquire the
additional technical and administrative
expertise. This presumes that while a
Tribe may not yet possess all the
necessary existing technical and
adminstrative expertise to administer
these programs at the outset, at a
minimum, it must possess the
administrative and technical expertise
necessary to begin development of a
Public Water System and/or
Underground Injection Control program.
The EPA, in its July 27 notice.
proposed to require a Tribe to supply
information on its accounting and
procurement system. The purpose of this
requirement is to make an applicant
demonstrate its capability to track
program funding. A description of this
function may be included in the Tribe's
discussion of previous managerial
experience. This requirement is
unchanged from the July 27 proposal.
The EPA is requesting information on
the Tribe's executive, legislative, and
judicial functions to assure that the
Tribe has the capability to: enact
enforceable public water system and/or
underground injection control
regulations, administer and enforce
effectively those regulations, and
adjudicate alleged violations of those
regulations..
Some commenters felt that it is
inappropriate for the Agency to expect
Tribes to have separate executive,
legislative, and judicial branches, as do
State governments. The Agency is not
requiring that Tribal governments have
the same structure as State
governments. On the other hand, the
Agency believes it is appropriate to
request Tribes to make a showing that
their respective Tribal governments do.
in fact carry out the legislative.
executive, and judicial functions
necessary to administer effectively a
Public Water System and/or
Underground Injection Control program.
The EPA's evaluation of the Tribe's
capability will also consider the
relationship between the existing or
proposed Tribal agency which will
assume primary enforcement authority
and the owner/operator of the public
water systems and/or the underground
injection wells the agency would
regulate. A common situation among
Indian Tribes is that the Tribe is the .
owner/operator of the public water
systems and/or the injection wells.
Tribal ownership of the public water
systems or underground injection wells
could result in a conflict of interest if
EPA delegated primary enforcement
responsibility to the Tribe, since the
Tribe would be regulating itself.
Many comments were received
indicating that Tribes believe they
would not be in a conflict of interest
situation if they owned and operated the
public water systems and /or the
underground injection wells they would
be regulating under primacy. The
preamble to the proposed rule indicated
that Tribes would have to resolve the
owner/operator conflict in order to
receive primacy, but not for treatment as
a State designation. The Agency still
believes that the independence of the
regulator and regulatee is necessary to
best assure effective and fair
administration of these programs.
However, the resolution of the matter
is not meant to require the Tribes to
divest themselves of these systems (i.e.,
sell the systems). As stated in the
proposed regulations, a possible solution
to the problem could be the
development of a Tribal utility authority
or an independent environmental
commission. Failure to resolve the
owner/operator conflict will not
preclude a Tribe from being eligible for .
"Treatment as a State", but is intended
to signal Tribes at an early date about a
potential bar to primacy that must be
resolved. Resolution of the regulator/
regulatee issue relative to primacy will
be evaluated on a case-by-case basis.
One of the commenters pointed out
that States are sometimes owners/
operators of public water systems over
which they have primary enforcement
responsibility. Examples the commenter
pointed out include State universities,
prisons, and hospitals. The Agency is
aware of this situation; however, the
actual number of these types of systems
in States is quite small in proportion to
the total inventory. In addition. State
infrastructures are typically such that
the State agency operating the State
public water systems is not the same
State agency that has primary
enforcement authority. This is in
contrast to the typical situation
exhibited by Indian Tribes which own
and operate most or all of the public
water systems on their reservations.
The Agency considered in its July 27
proposal whether the eligibility and
primary enforcement requirements
would tend to exclude the smaller
Tribes. To address the concerns of small
Tribes, as reflected in several of the
comments. EPA will consider
applications by a group or consortium of
Tribes within the same geographical
area. However, the applicant must still
meet all the eligibility requirements to
be treated as a State, particularly the
jurisdictional requirement In response
to a comment. EPA in this rule will
include a definition of "Interstate
Agency" in $ 142£ for the Public Water
System program. A definition,
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37402 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations
"Interstate Agency" for the
Underground Injection Control program
was previously proposed.
As stated earlier in this notice, many
Tribes, particularly the smaller Tribes,
may feel that it is not cost-effective or
otherwise beneficial to apply for
primary enforcement responsibility
because of funding and workload
consideration. The Agency anticipates
that, in general, a certain mininum size
(as determined by tribal populations, the
size of the regulated community, and the
number of entities regulated) will prove
necessary for Tribes to effectively and
efficiently administer these programs.
The EPA further anticipates that, in
general, the smaller Tribes will have
difficulty obtaining the required
expertise to administer effectively these
programs. Consequently, the Agency
encourages smaller Tribes to consider
consortiums or intertribal agencies as
ways to obtain the necessary expertise
to administer these programs and to
make the attainment of primacy cost-
effective and beneficial to the Tribe. The
Agency will consider and evaluate all
applications it receives, regardless of
the applicant's size, on a case-by-case
basis.
5. Process for Evaluating Applications
Within thirty days after receipt of a
Tribe's complete application for
treatment as a State (which has all the
information required in § 142.76 and/or
§ 145.56), EPA will notify appropriate
governmental entities (e.g., neighboring
Tribal and State governments) of the
receipt of the application and the
substance of the Tribe's jurisdictional
assertions. Each of the governmental
entities will have thirty days after
receipt of the notice to submit comments
to EPA. Comments will be limited solely
to the issue of the Tribe's assertion of
jurisdiction. EPA will not consider
comments directed to whether the Tribe
meets EPA's other requirements for
treatment as a State.
If an Indian Tribe's asserted
Jurisdiction is subjected to a competing
claim, the Administrator, after
consultation with the Secretary of the
Department of the Interior, or his
designee, and in consideration of
comments received, will evaluate the
validity of any challenge to the Tribe's
jurisdictional claim for the Public Water
System and/or Underground Injection
Control programs and make a final
decision on the Tribe's jurisdictional
claim. If the Administrator concludes
that the Tribe has not adequately
demonstrated its jurisdiction with
respect to an area in dispute, then Tribal
primacy will be restricted accordingly.
Any such determination by the
Administrator is not a determination of
a Tribe's general regulatory jurisdiction.
but only jurisdiction relative to
administration of the Public Water
System and/or Underground Injection
Control programs.
This procedure does not imply that
States or Federal agencies have veto
power over Tribal applications for
"treatment as a State." Rather, the
procedure is simply intended to ensure
that the Tribe has the necessary
jurisdiction to administer a Public Water
System and/or Underground Injection
Control program.
The EPA received several comments
stating that the Agency should approve
all applications for "treatment as a
State within a specified time period
(i.e., 90 or 120 days). Though the Agency
agrees with the intent of the suggestions.
it does not believe that it will be
possible to approve or disapprove all
applications for "treatment as a State"
within a designated time frame. The
Agency fully anticipates that there will
be instances where the jurisdictional
and capability determinations will
require the Agency to go back to a Tribe
for clarification or additional
information. Likewise, the Agency's
experience with State primacy
applications for the Underground
Injection Control and Public Water
System programs indicates that at times
many meetings and communications
between EPA and a State are necessary
before all requirements are met The
Agency believes that the same process
of negotiation and communication with
Tribes will be beneficial in ensuring that
Tribes meet the "treatment as a State"
criteria in an expeditious manner.
If the Administrator determines that a
Tribe meets all the requirements of
Subpart H and/or Subpart E, a Tribe is
then eligible to apply for a development
grant and primary enforcement
responsibility for the Public Water
System and/or Underground Injection
Control programs and associated
funding to administer effective
programs.
One commenter suggested that
applications for "treatment as a State"
and for development grants occur at the
same time. An applicant should note
that EPA will not award a development
grant until the applicant is found eligible
to be treated as a State. Though EPA
sees no reason to bar an applicant from
applying for "treatment as a State" and
for a development grant simultaneously.
it cautions applicants to contact the
appropriate EPA Regional Office to
ensure that the requirements to be
treated as a State and to receive a
development grant are understood.
C. Requirements for Primary
Enforcement Responsibility
1. Tribal Primacy Requirements
As stated above. Tribes which meet
the requirements for treatment as States
are eligible to apply for primary
enforcement responsibility for these
programs. The EPA has promulgated
regulations specifying requirements for
primary enforcement responsibility for
the Public Water System program (40
CFR Part 142) and the Underground
Injection Control program (40 CFR Part
145). States and Indian Tribes treated as
States must meet the minimum program
requirements specified in these parts for
EPA to grant primary enforcement
responsibility.
The EPA considered in its July 27
proposal which requirements currently
applicable to States seeking primacy
should apply to Indian Tribes. Section
1451(b)(2) of the Safe Drinking Water
Act is instructive. It states that
"[n]othing in this Section shall be
construed to allow Indian Tribes to
assume or maintain primary
enforcement responsibility for public
• water systems or for underground
injection control in a manner less
protective of the health of persons than -
such responsibility may be assumed or
maintained by a State." hi the July 27
Federal Register notice. EPA proposed
that except for the laboratory
certification and the criminal
enforcement responsibility
requirements, as described below, all
primary enforcement responsibility
requirements for Public Water System
and/or Underground Injection Control
programs applicable to States also apply
to Indian Tribes. The Agency in this ride
retains the same requirements for Indian
Tribes as described in the July 27
proposal.
One of the commenters expressed
concern about the ability of non-Indians
generally to participate in the Tribal
regulatory decision-making process. The
EPA points out that the requirements for
primacy include the provisions for
public participation by the affected
population in the Tribal regulatory
decision-making process (See 40 CFR
Part 124). Specifically, the applicant
must afford public participation in
regulatory decisions pertaining to. but
not limited to. rulemaking. permit
hearings, and aquifer exemptions. This
will ensure that the concerns of the non-
Indian portion of the affected population
are brought to the attention of the Tribal
government It should also be noted that
the Indian Civil Rights Act of 1968 (Pub.
L 90-284) affords non-Indians as well as
Indians certain protections which are
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similar in nature to "due process" or
"equal protection" safeguards.
Four commenters stated that the
primary enforcement requirements
proposed for Tribes were more stringent
than those that States must meet. The
EPA disagrees. As stated in the July 27
proposal, Tribes must meet the same
requirements as States except in the
areas of laboratory certification and
criminal enforcement responsibility. The
commenters may have misunderstood
the Agency's July 27 proposal by
confusing the requirements Tribes must
meet for "treatment as a State" with the
primary enforcement responsibility
requirements. These two sets of
requirements are separate and distinct
Section 1451(b)(l) of the Act effectively
requires the Agency to develop
regulations that enable Tribes to be
treated as States. The Agency has done
this by establishing the criteria Tribes
must meet to be treated as States under
subparts H and E. The Agency fully
intends that once Tribes do meet the
regulatory requirements for "treatment
as a State" that they will be treated in
the same manner as States except where
noted in this rule (i.e., grant match
requirements, developmental grant time
frames, primary enforcement
responsibility requirements, etc.).
Several commenters stated that EPA
should be flexible in the primary
enforcement requirements that Tribes
must meet. They stated that some Tribes
may not be able to meet all the
requirements and that EPA should
consider a waiver of some primacy
requirements to enable the applicant to
receive primacy. The EPA believes that
additional flexibility beyond waiver of
the criminal enforcement and laboratory
certification requirements would be
inappropriate and might be less
protective of the public health and the
environment. Two commenters
suggested that Indian Tribes should be
able to apply for "partial primacy" for
certain parts of the program(s). The
EPA's policy for the Public Water
System and Underground Injection
Control programs is to delegate primary
enforcement responsibility for all
program activities and not allow partial
program delegations. Consequently,
when an Indian Tribe or State applies
for Public Water Supply primacy under
section 1413 of the Safe Drinking Water
Act. it must assume all the requirements
found in § 142.10. Likewise, when an
Indian Tribe applies for Underground
Injection Control primacy programs
under sections 1422 and/or 1425 of the
Safe Drinking Water Act, it must assume
all the requirements found in §§ 145.11,
145.12.145.13 (as amended for Indian
Tribes), and 145.14. However, a Tribe
may apply for primacy over a particular
class of injection wells without applying
for primacy over other classes.
2. Primacy Requirements Not Applicable
to Tribes
The Agency has determined that it is
inappropriate to require Tribes to meet
the primary enforcement responsibility
requirements found in § 142.10(b)(3),
development of a laboratory
certification program, and § 145.13
pertaining to criminal enforcement
jurisdiction. Section 142.10(b)[3) requires
a State seeking primacy for a Public
Water System program to establish and
maintain a State program for the
certification of laboratories conducting
analytical measurements of drinking
water contaminants. To comply with the
statute, EPA is amending § 142.10(b)(3)
so that an Indian Tribe will not have to
establish a separate or independent
laboratory certification program in order
to receive primary enforcement
responsibility. If a Tribe chooses to
avail itself of the laboratory certification
waiver provision. EPA will require each
Tribe to demonstrate that it has access
to a State or EPA certified laboratory to
conduct all required analyses through
formal agreements or other
arrangements.
The EPA received four comments on
this issue, each supporting the
laboratory certification waiver. The
commenters stated that the laboratory
certification requirements could bar
small tribes from seeking primacy and
that, in general, most Tribes would not
be able to develop a laboratory
certification program. The EPA agrees.
The waiver in 1142.10(b)(3) is
promulgated as proposed.
Section 145.13 of the Underground
Injection Control regulations requires
that a State have criminal enforcement
authority to obtain primacy. Likewise,
S 142.10(b)(vi) requires that a State have
authority to assess civil or criminal
penalties to obtain primacy for Public
Water System programs. EPA interprets
section 1451 to mean that criminal
enforcement jurisdiction shall not be a
requirement for granting primacy to
Indian Tribes. Therefore, this rule
amends § 145.13 to state that Tribes will
not be required to possess and/or
exercise criminal enforcement authority
as a condition of obtaining primary
enforcement responsibility. Instead.
§ 145.13 requires Tribes to develop a
memorandum of agreement with EPA to
refer criminal enforcement matters to
the Administrator in an appropriate and
timely manner. EPA is not making a
similar change to {142.10, since for
Public Water System primacy a Tribe
need not have criminal enforcement
authority.
All commenters favored this change-
though two commenters expressed
concerns about how this process will
work. One commenter voiced the
concern that care should be taken to
ensure that specific language is
developed detailing conditions under
which a Tribe will refer criminal
enforcement cases to EPA. The EPA
shares this concern and will require that
all proposed memoranda of agreement
be submitted simultaneously with the
primary enforcement responsibility
application to ensure that criminal
enforcement cases are referred in a
timely manner. Another commenter
wrote that the criminal enforcement
referrals in § 145.13 should not bar or
remove Tribal courts from the
enforcement process. The EPA agrees
and believes that the process outlined in
this rule will not interfere with
authorized Tribal enforcement activities..
Tribes retain their own authority to
pursue criminal enforcement cases. The
EPA points out that a Tribe's criminal
enforcement jurisdiction does not
extend to non-Indians unless Congress
has explicitly so provided by treaty or
•statute. The procedure outlined in
§ 145.13 does not diminish Tribal
criminal enforcement authority.
3. Administrative Options Available to
Tribes
Several commenters urged that these
regulations should allow Indian Tribes
flexibility to meet the primary
enforcement requirements. For example,
several of the comments stated that
Tribes should be able to meet program
requirements through contracts, grants,
or memoranda of agreement with States
or the Indian Health Service. The EPA
agrees that there are various
administrative and organizational
options available to Tribes in
implementing the Public Water System
and Underground Injection Control
programs. However, the Agency
cautions that not all program functions
can be accomplished through a contract
grant or a memorandum of agreement
For example, EPA will not approve
delegation of the enforcement function
through a contract or memorandum of
agreement because that would be
inconsistent with EPA's primacy
policies. For activities such as plan
review and inspections, the Tribe may
consider other administrative
arrangements. Tribes should be aware
that EPA will require the Tribe to have
the basic "in-house" capabilities to
attain and administer Public Water
System and/or Underground Injection
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations
Control programs. Administrative
arrangements which result in "paper" or
"shell" programs will be unacceptable to
the Agency.
Three commenters wrote that EPA
should establish "core primacy
requirements" for all EPA programs so
Tribes will only have to apply a single
time for all Agency programs. The EPA
believes that this is administratively
infeasible since Agency programs have
different statutory bases and
consequently different program
requirements.
4. Primacy Technical Assistance
Two commenters stated that EPA has
a statutory obligation under section 1442
of the Safe Drinking Water Act to assist
Tribes to obtain "regulatory primacy"
by providing technical assistance. To
the extent that funds are available for
technical assistance to Tribes under
section 1442, the EPA will give eligible
Tribes (i.e.. Tribes which have met the
"treatment as State" criteria) priority to
help them obtain "regulatory primacy"
for the Public Water System and the
Underground Injection Control
programs. After addressing the needs of
eligible Tribes, the Agency will consider
providing Tribes which do not meet the
requirements for "treatment as a State"
with technical assistance. Regardless of
whether funds are available, it is the
responsibility of the Tribes to gain the
basic capabilities to meet the "treatment
as a State" criteria.
To ensure that eligible Tribes receive
adequate technical assistance, the
Agency, in fiscal year 1988 has allocated
two additional staff positions in the
Public Water System Program to provide
technical and programmatic assistance
to Tribes which are developing or
applying for primary enforcement
responsibility programs. In subsequent
years the Agency will reevaluate its
Public Water System and Underground
Injection Control program staffing needs
in light of the applications received.
D. Program Grants
The requirements for program grants
to States are found at 40 CFR Part 35.
Subpart A. This rule addresses grant
eligibility, initial reserve or set-aside
funds for use on Indian lands, grant-
match requirements, grant reallocations,
and grants to develop Indian Public
Water System and/or Underground
Injection Control programs.
In both the Public Water System and
Underground Injection Control
programs. EPA allocates available funds
on the basis of a formula. Congress
appropriates a fixed amount of funds for
these programs each year. The amount
appropriated in any year may not equal
the amount desired by eligible States or
Tribes treated as States. As discussed
laler in this notice, this situation often
accounts for the fact that States actually
contribute more to the program costs
than the required minimum of 25%. It is
important to note that the denial of a
grant application submitted by an Indian
Tribe treated as a State or a State is not
a denial of a right or an entitlement. ' •
1. Grant Eligibility
This rule expands the list of
jurisdictions eligible to receive Public
Water System and/or Underground
Injection Control grants to include
Indian Tribes meeting the requirements
of Subparts H and/or E (Treatment of
Indian Tribes as States). It implements
section 1451 of the Safe Drinking Water
Act which authorizes EPA to make grant
and contract assistance available to
eligible Indian Tribes.
One commenter stated that there is no
legal justification for requiring that
Indian Tribes meet the criteria for
"treatment as a State" in order to apply
for program grants. However. EPA does
not interpret sections 1443 and 1451 as
allowing the issuance of a section 1443
grant to a Tribe before it is designated
as a State.
2. Reserves for Indian Lands
Beginning in Fiscal Year 1989
(October 1.1988) EPA annually will
reserve up to 3% and 5% respectively of
the Public Water System and
Underground Water Source grant funds
for development or primacy grants to
eligible Tribes and to EPA Regions for
direct implementation purposes on
Indian lands. It is EPA's intent that once
the reserve amounts are established
each year that these funds will only be
used for development or primacy grants
by Indian Tribes or by EPA Regions for
use on Indian lands. EPA intends to use
these funds for Indian programs even if
the February 1 deadline passes and the
funds are reallocated. This deadline is
further discussed in section four which
addresses reallocation.
EPA intends to make development or
primacy grants available to eligible
Tribes according to an equitable
formula. The Agency is now considering
several formula options. A possible
option includes applying to the Tribes
the same formula now used for States.
The current formula for the PWS
program assigns 10% of the available
funds to land area. 30% to population.
48% to community water systems and
12% to non-community water systems. If
this option is used, a particular Tribe's
grant would be determined by adding its
percentage of the national Indian total
for each factor. For the UIC program, the
assigned weights are 10% to land area.
10% to population. 14% to Class I wells.
41% to Class II wells. 10% to Glass III
welis. 4% to Class IV wells and 11% to
Class V wells. Again, individual grants
are based on that recipient's percentage
of the national total for each factor.
While EPA's intention is to allocate
available grant funds by formula at the
beginning of each fiscal year, in the first
few years after primacy becomes
possible for Indian Tribes it will be very
difficult to anticipate the number of
Tribes that may become eligible for
grants during the year. Therefore.
initially EPA will reserve or set
sufficient grant funds aside to assure
that funds will be sva liable to ir.aks
grants to Tribes that qualify. Th:s
reserve or set-aside will also cover
EPA's costs of implementing the two
programs on Indian lands.
In the July 27 Federal Register notice.
EPA proposed to limit the reserve to not
more than 3% of Public Water System
and 5% of the Underground Injection
Control program grants. Many
commenters stated that the proposed set
asides (or reserves] of up to 3% and 5%.
respectively, were inadequate. A
number of commenters stated that the
reserves should be minimum amounts
rather than maximum amounts. Five
commenters stated the proposed set
asides were too great and would
adversely impact existing State
programs. The EPA believes that the
reserves for Indian lands as proposed on
July 27 are adequate and at the same
time will not have an adverse effect on
existing State programs. Historically.
EPA has spent about 1% of the Public
Water System and just over 2.5% of the
Underground Injection Control program
grants for its implementation of these •
programs on Indian lands. The proposed
limits of 3% and 5% represent an
increase over the historical levels and
recognize that Indian Tribes may need
additional resources to develop and
administer primacy programs.
In the July 27 proposal. EPA estimated
that 10-12 Tribes may meet the
requirements for primacy. EPA has
further refined its estimates based upon
Regional data. EPA believes that 25
Tribes may apply for and receive
"treatment as a State" designation
within the next three years. These
Tribes would thus be eligible to apply
for financial assistance. However, the
Agency still anticipates that only 10-12
of these Tribes will apply for and
receive primacy within the next three
years.
Included in the record for this rule is
an analysis of how the 25 Tribes
estimated to receive "treatment as a
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Federal Register / Vcl 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 37405
State" within the next three years and
the 10-12 Tribes estimated to receive
primacy within the next three years
correlate with the 3% and 5% limits
selected as the Public Water System and
Underground Infection Control reserves.
In light of the foregoing estimate and
additional analysis the Agency
conducted, the EPA believes that the
reserves for Indian Tribes of "up to 3%"
and "up to S%" are sufficient. The
Agency intends to reevaluate the
funding levels within three years (or
sooner if necessary) to ensure their
adequacy.
EPA does not anticipate that the full
3?£ and 5% reserves will be fully utilized
by Indian Tribes unless and until each
Indian Tribe which might qualify for a
grant has applied for and received
financial assistance for these programs.
EPA does not anticipate, at least
initially, that all potentially qualified
Indian Tribes will apply for these
programs.
The EPA believes that the Public
Water System and Underground
Injection Control reserves of "up to" 3%
and 5% for Indian Tribes will not
adversely affect existing State programs.
The EPA notes that the Public Water
System and Underground Injection
Control grants were increased by
55.000.000 and S3.000.000, respectively.
in Fiscal Year 1988 over the Fiscal Year
1986 levels. Moreover, given the
relatively small number of Tribes which
are likely to apply for and receive grants
and the small amount of funds which
may be reserved compared to the total
State allocation. EPA believes that the
reserves will not adversely affect
existing State programs. Consequently,
the reserves established for Indian
Tribes are unchanged from the July 27
proposal.
3. Grant Matching Requirements
In the July 27 notice. EPA proposed
that Tribes meet a 25 percent match
requirement In addition, the Agency
noted that Tribes could use in-kind
contributions and Federal matching
funds authorized by statute as the Tribal
match. The EPA also proposed reducing
the Tribal match to ten percent in the
event that the Tribe does not have .
adequate funds to meet the 25 percent
match requirement.
Several comments were received with
respect to the proposed matching
requirements. Several commenters urged
the Agency to either eliminate the
matching requirement for Tribes or to
reduce the current 25 percent minimum
applicable to States to ten percent or
less. These commenters noted that many
Indian Tribes lack a revenue base and
thus lack the ability to fund these
programs.
Other commenters pointed out that
States frequently match Federal grant
funds beyond'the minimum
requirements. This observation is
consistent with the study conducted by
the Association of State Drinking Water
Administrators as reported in its recent
draft report entitled "A Survey of
Resource Needs of State Drinking Water
Programs" of April 16,1987. The
Association conducted an analysis of
the actual percentage of program costs
contributed by EPA and the primacy
States in the Public Water System
program. This analysis shows that, on
average, EPA contributes 47% of the
total program costs with States
contributing 53%. Moreover. EPA notes
that the 1986 Safe Drinking Water Act
Amendments authorizing the Aqency to
"treat Tribes as States" also imposed
additional requirements on States and
Indian Tribes to adopt filtration/
disinfection regulations, a lead ban.
unregulated contaminant regulations
and an expanded list of regulated
contaminants. Administration of these
new requirements will require that
Indian Tribes and States obtain
additional resources.
After considering the comments, the
Agency believes that a matching
requirement is appropriate because such
a requirement ensures from the outset
that Tribes have a financial stake in
developing and operating viable Public
Water System and Underground
Injection Control programs. The Agency
acknowledges, however, that many
Indian Tribes do not have the revenue
base needed to meet the 25% matching
requirement. The provisions for a
reduction of the required matching funds
to 30% address this situation. Further,
Tribes which qualify for a 10% reduction
should be able to provide the requisite
match through in-kind contributions and
Federal funds authorized by statute to
be used as a match for Public Water
System and Underground Injection
Control programs. Accordingly, the
matching requirements are unchanged
from the proposed rule. It is important
for Tribes to realize that regardless of
the required matching level, the actual
percentage of program costs that may be
incurred by a given Tribe in the course
of adequately administering these
programs could easily exceed the 25%
matching requirement
4. Reallocation of Reserve Funds
As stated above. EPA intends to
develop a formula to determine the
amount of funds available each year to
eligible recipients and EPA Regions.
Thus, once the number of eligible Tribes
stabilizes, there should be no unused
funds and no need for reaiiocation since
EPA will allocate funds for its own "-
implementation needs and each eligible
recipient at the beginning of each fiscal
year.
Until that point of stability is reached.
however. EPA will reserve amounts,
"based on its best estimate of EPA
implementation needs, eligible Tribes
and likely applicants. Any funds
allocated to a Region horn this reserve
which are not awarded to specific
Indian Tribes by February l of each
fiscal year (four months after the fiscal
year begins) may be subject to
reaiiocation to other Regions. Regions
which receive reallocated funds rr.ay use
them for supplemental awards to
eligible Indian Tribes or for direct
implementation activities on Indian
lands. As stated earlier, once EPA
reserves these funds, it is the Agency's
intent that Indian reserve funds will be
used either by EPA Regions for activities
on Indian lands or by eligible Indian
Tribes. EPA's decision or. the actual
timing of reaiiocation (whether it is
February 1 or later in the fiscal year)
will depend upon a number of factors
including how long the current fiscal
year's appropriation has been available
to Indian Tribes.
A number of comments were received -
pertaining to the reaiiocation of funds.
Some commenters stated that
unallocated reserves for Indian Tribes
should be reallocated solely to States.
since initially the program grant funds
were established only for States.
Conversely, numerous comments were
received that unallocated reserves
should be solely reallocated to Tribes or
that the Agency should show a
preference for Indian Tribes in the
reaiiocation process. Since the Agency
intends to reserve funds each year
based on its best estimate of what will
actually be used, the amount reserved
will, in all likelihood, be less than the 3%
and 5% limits. Thus, the Agency does
not believe that impacts on State
programs will be significant nor that a
preference for States in the reaiiocation
process is appropriate. Rather, the
Agency believes that the objectives of
the drinking water programs will be
better served if, as stated above, the
unused funds are reallocated for use on
Indian lands.
Three commenters suggested that EPA
should extend the reaiiocation date
beyond the February 1 deadline. One
commenter suggested May 1 as an
appropriate date for Fiscal Year 1988.
Except for Fiscal Year 1988 when the
promulgation of this rule will delay
Tribal applications. EPA believes
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37406 Federal Register / Vol. 53. No. 186 / Monday, September 26, 1988 / Rules and Regulations
February 1 is as late in the Fiscal Year
as funds can be withheld and still
enable the Agency and eligible Indian
Tribes to effectively utilize these funds
during the remainder of the Fiscal Year.
EPA notes that the reallocation of State
funds typically occurs around December
Fiscal year 1988 represents a special
case for the reallocation of these reserve
funds. In October 1987. the EPA
allocated S334.500 for the Public Water
System program and S339.000 for the
Underground Injection Control program
to its Regional Offices for use on Indian
lands in Fiscal Year 1988. In addition.
the Agency reserved 8669,000 and
S236.300 respectively for the Public
Water System and Underground
Injection Control programs for grants to
eligible Indian Tribes. However, with
the delay in promulgating this rule, the
Agency decided in July to reallocate the
remaining 5236,300 in UIC funds to EPA
Regions for grants to primacy States and
for direct implementation in States and
Indian lands. Within the PWS program.
the Agency decided to reallocate
$494,000 of the S669.000 amount to EPA
Regions for additional grants to States
or for direct implementation purposes in
States and Indian lands. Until the Fiscal
Year 1989 appropriations become .
available, EPA will continue to reserve
the remaining S175.000 of Fiscal Year
1988 Public Water System funds for
grants to eligible Indian Tribes and for
direct implementation on Indian lands.
This amount will assure that there is no
interruption in our ability to make grants
to all Tribes that may qualify in the near
term.
5. Development Grant Tune Frames and
Grants
The next issue is how much time
should be allowed to eligible Tribes to
develop Public Water System and
Underground Injection Control programs
with EPA Financial assistance. The
proposed rule allowed for two years for
the Public Water System and three
years for the Underground Injection
Control program. A number of
commenters pointed out that many
Tribes do not have the existing staff or
resources to develop a Public Water
System program in 2 years, or an
Underground Injection Control program
in 3 years. In addition, several •
commenters felt that the lack of Agency
funding in past years has contributed to
Tribal inability to establish the.
necessary staff and administrative and
technical expertise to apply for Public
Water System and/or Underground
Injection Control programs. Most
commenters proposed that there be no
time limitations on Indian Tribes or that
there be a provision for waiver from any
time frames the Agency establishes, if a
Tribe is making a good faith effort to
develop a program and is making
reasonable -progress in this endeavor.
Other commenters proposed that, at a
minimum, the time frames should be
lengthened—for example, to 4 and 5
years, respectively.
In order to make the best use of the
limited amount of available grant funds
the Agency believes that Indian Tribes
receiving Section 1443 (a) and (b) grants
should be required to develop primacy
within a definite time period. The
Agency recognizes that Tribes generally
do not possess the resources States have
to develop Public Water System and
Underground Injection Control
programs. After careful consideration of
the comments, it is the Agency's best
judgment that it should extend the time
frames for the development of programs
to three years for the Public Water
System program and four years for the
Underground Injection Control program
but with no provision for waiver from
these time frames. Tribes which do not
achieve primacy within the three and/or
four year periods of grant eligibility
would be ineligible for further grants
until primacy is achieved. The Agency
believes that establishing longer time
frames, beyond three and/or four years
is not warranted in that meeting
"treatment as a State" criteria will mean
that a Tribe has a basic level of
capability. Consequently, three years
and four years should be adequate for
developing the respective programs. The
EPA believes that some Tribes may
require less than three or four years to
develop their program.
EPA wishes to clarify, however, that
Tribes may apply for these programs at
any time. Tribes are not required to
apply for these programs within three or
four years after promulgation of this
rule. Further. Tribes are not required to
develop their programs within three
and/or four consecutive years. For
example, after developing a Public
Water System program for two years
with EPA's financial assistance, a Tribe
could then opt to work on program
development without EPA financial
assistance for a year. Thereafter, the
Tribe would still have one more year to
develop a program with EPA's financial
assistance. Tribes which have received
development grants for three years and
four years without achieving primacy
may continue to develop their programs
beyond the three and four-year time
limits for the Public Water System and
Underground Injection Control
programs, respectively, without EPA
financial assistance.
A number of comments were received
stating that many Tribes may not have
the technical staff in place at the time of
the development grant application. It is
the intent of the Agency to be flexible
and recognize that some Tribes may not
have each required element in place,
such as all the required technical staff
' needed to administer a Public Water
System or Underground Injection
Control program at the time the Tribe
applies for its initial development grant.
Indeed, the purpose of development
grants is to ensure that the basic
organizational structure is in place
which can then be "fine tuned" to meet
the primacy requirements.
The EPA will evaluate each Tribal
applicant's capability to achieve
primacy within the three-year
development period for the Public Water
System program or four-year
development period for the Underground -
Injection Control Program by reviewing
the development grant application that
the Tribe submits. With the application.
EPA will require that the Tribe submit a
development plan specifying how it will
develop its Public Water System and/or
Underground Injection Control
program(s). An applicant will not be
awarded additional grants unless it can
demonstrate reasonable progress as
measured against its development plan
commitment during each grant period.
As stated earlier. Tribes which fail to
obtain primacy within the respective
three or four-year grant eligibility
development periods will be ineligible to
receive further grants until primacy is
obtained.
It was suggested by some commenters
that the Agency recognize the possibility
of Tribes entering into memoranda of
agreement with Regional Offices, States.
or other Tribes in order to develop
primacy programs in an effective
manner. The Agency agrees that in
many cases such agreements may be
beneficial to all parties involved. It
should be recognized, however, that the
Tribe initiating the agreement is
expected to take the lead in assuring all
program responsibilities are met. Any
such agreements should be entered into
with the understanding that the
initiating Tribe is expected to assume
full programmatic responsibility within
a definite period of time. Examples of
such agreements could include an
Inspection program such as conducting
sanitary surveys, data entry for
purposes of tracking sampling
requirements, or laboratory analyses.
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E. Other Issues
1. Technical Assistance
Several commenters pointed out that
the Agency in its July 27,1987 proposal
made no mention of technical assistance
funds authorized under section 1442[g)
of the Act The 1986 Amendments
authorized an appropriation of
310,000.000 for each of the Fiscal Years
1987 through 1991 for technical
assistance. Subsection (g) states, in part:
"Not less than the greater of (1) 3
percent of the the amounts
appropriated * * * or (2) 5280,000 shall
be utilized for technical assistance to
public water systems owned or operated
by Indian Tribes." To date no funds
have been appropriated under section
I442(g) of the Act. The Agency further
notes that section 1442(g] specifies that
technical assistance funds are to be
used for matters such as operator
certification, circuit rider programs, and
technical assistance visits to community
water systems. The Agency interprets
section 1442(g) to mean that technical
assistance funds can be made available
to water systems. Individual Indian
public water systems would be eligible
to receive technical assistance in the
form of circuit rider programs, training,
and preliminary engineering studies;/
funds are subsequently appropriated.
Several commenters mentioned that
the Agency has not historically provided
technical assistance to Tribes. The
Agency disagrees. Each EPA Regional
Office which has primary enforcement
responsibility for Indian reservations
annually receives a direct.
implementation budget Historically, the
Agency's direct implementation budget
for Indian lands has been approximately
S300.000 for the Public Water System
program and $250.000 for the
Underground Injection Control program.
In addition, approximately eleven and
twenty full-time staff are currently
assigned to administer the Public Water
System and Underground Injection
Control programs on Indian lands
respectively.
Because the Regional Offices are the
primary enforcement agents for
programs on Indian lands, each office
uses its direct implementation budget to
implement requirements of the National
Primary- Drinking Water and/or
Underground Injection Control
regulations on Indian lands. In addition
to tracking monitoring and reporting
requirements. Regional staff also
provide on-site technical assistance.
Technical assistance provided by EPA
Regional Offices is often coordinated
with the Indian Health Service (IMS).
Many of the Regions fund "circuit rider-
programs that are for the purpose of
providing technical assistance to public
water system operators on reservations.
The circuit riders have a working
knowledge of small rural systems such
as those found on reservations. In
addition to technical assistance, the
circuit rider programs (often in
conjunction with the IHS) provide
training to the Indian operators that can
lead to certification. The EPA believes
that certified operators, in turn, can
contribute greatly [in an indirect way] to
a Tribe's in-house technical expertise.
Many commenters asserted that
technical assistance and technical
assistance funds should be used for
construction of new community water
systems and/or upgrading existing
facilities. With the limited exception of
special demonstration projects
authorized by section 1444. (for which
appropriations are not currently
available), there is no statutory
authority within the Safe Drinking
Water Act for the Agency to fund either
the construction of new facilities or the
upgrading of existing facilities. The
Indian Health Service, the Department
of Housing and Urban Development, the
Bureau of Indian Affairs, or an
individual Indian Tribe each have the
requisite authority to construct and/or
maintain water systems.
2. Alaska Native Villages
In its July 27,1987 proposal EPA
addressed the question of whether
Alaska Native Villages meet the
definition of an "Indian Tribe"
contained in section 1401 of the Safe
Drinking Water Act The EPA noted that
the SDWA definition of "Indian Tribe"
does not mention Alaska Native
Villages. The EPA stated in its proposal
that it believed the legislative history of
the Act indicated that Congress
intended to exclude Alaska Native
Villages from coverage under the
"Indian Tribes" amendment (section
1451). Support for this interpretation
was derived from the Senate definition
of "Indian tribal organization" in S. 124
(i.e.. the bill containing the Safe
Drinking Water Act amendments that
the Senate originally passed) which
specifically included Alaska Native
Villages. However, since Congress
adopted the House definition of "Indian
Tribe" (which did not include Alaska
Native-Villages). EPA concluded that
Congress intended to exclude Alaska
Native Villages from the definition of
"Indian Tribe."
The Agency also noted that in
Section 101 of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA), Congress specifically
referred to "Alaska Native Villages" in
the definition of "Indian Tribe". The •
Safe Drinking Water Act amendments
and SARA were both enacted by the
same session of Congress. This contrast
in definitions constituted additional
evidence of Congressional intent to
exclude Alaska Native Villages from the
scope of the Safe Drinking Water Act
amendments.
• • EPA received two comments during
the formal comment period, and
additional comments after the formal
comment period. EPA also met with
representatives of Alaska Native
Villages after the formal comment
period had closed. All of the comments
EPA received during and after the
formal comment period disagreed with
EPA's conclusion that the legislative
history shows Congressional intent to
make Alaska Native Villages ineligible
to apply for "treatment as a State" for
the Underground Injection Control and
Public Water System programs. The
commenters further asserted that
Alaska Native Villages clearly fall
within the Safe Drinking Water Act's
definition of "Indian Tribe." One
commenter noted that major Indian
legislation has applied to Alaska Native
Villages. EPA notes, however, that
whenever Congress has desired to have
the term "Indian Tribe" in major Indian
legislation encompass Alaska Native
Villages it specifically has included
them within the respective statutory
definitions of "Indian Tribe" (e.g.. Indian
Self-Determination and Education
Assistance Act (25 U.S.C. 450 et sec}.).
Indian Health Care Improvement Act (25
U.S.C. 1601 et sag.), and the Indian Child
Welfare Act (25 U.S.C. 1901 et seq.}).
Based on the legislative history of the
Act. the comparisons with SARA, and
the specific references to Alaska Native
Villages in the definitions of the term
"Indian Tribe" contained in major
Indian legislation, the Agency has
concluded that the SDWA definition of
"Indian Tribe" does not include Alaska
Native Villages. Consequently, under
this rule, Alaska Native Villages will not
be eligible to apply for treatment as a
State; primary enforcement
responsibility for the Public Water
System and Underground Injection
Control programs; or financial
assistance available to States and
Indian Tribes treated as States.
3. Trust Responsibility
One commenter stated that "[pjerhaps
the greatest flaw in these proposed
regulations is EPA's failure to consider
its trust responsibility and develop an
affirmative action program to assist
Tribes in developing the capability to
regulate programs under SDWA." ^
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37408 Federal Register / Vol. 53. No. 166 / Monday. September 26. 1988 / Rules and Regulations
Several other commenters echoed this
viewpoint.
Both the Public Water System
program and the Underground Injection
Control program are regulatory in nature
and designed to protect the public
health and overall environmental
quality for the benefit of the general
public, including Indian Tribes.
Specifically, these are not programs
applicable solely to Indians because of
their status as Indians. Instead, these
programs were created to ensure
acceptable water quality to all
consumers (Indian and non-Indian) and
also ensure that underground injection
is regulated in an environmentally
acceptable manner through promulgated
standards.
The purpose of section 1451 of the
Safe Drinking Water Act is to authorize
the Agency (under certain conditions) to
treat Indian Tribes as States and
subsequently to allow eligible Indian
Tribes to apply for primacy (and the
corresponding regulatory
responsibilities] under either the Public
Water System or the Underground
Injection Control provisions. Those
Indian Tribes not found eligible for
treatment as States, or opting not to
apply for treatment as States, are to
continue to benefit from existing
programs through Regional direct
implementation.
In sum, the purpose of the 1986
Amendments is to allow eligible Indian
Tribes to participate in the
administration of these general
regulatory programs. The Agency does
not believe that the 1986 Amendments
mandate establishment of an
"affirmative action program" to assist
Indian Tribes, in general, to meet the
criteria for "treatment as a State." The
scope of EPA's "responsibility,"
however characterized, is defined by the
language of the 1986 Amendments and
the provisions of the Safe Drinking
Water Act The EPA believes that its
statutory responsibility under the 1986
Amendments is to promulgate regulatory
requirements which afford eligible
Indian Tribes a fair and reasonable
opportunity to attain primacy for Public
Water System and/or Underground
Injection Control programs and, at the
same time, ensure that Tribes assume
and maintain primacy in a manner
which is "no less protective of the public
health than such responsibility may be
assumed or maintained by a State."
These regulations are consistent with
that mandate and with EPA's Indian
Policy Statement.
IV. Other Regulatory Requirements
A. Compliance With Executive Order
12291
Executive Order 12291 (46 FR 13193,
February 9/1981) requires that a
regulatory agency determine whether a
new regulation will be "major" and, if
so, that a regulatory impact analysis be
conducted. A major rule is defined as a
regulation which is likely to result in:
(1) An annual effect on the economy
of SlOO million or more;
(2) A major increase in costs or prices
for consumers; individual industries;
Federal. State, and local government
agencies; or geographic regions; or
(3) Significant adverse effect on
competition, employment, investment,
productivity, innovation, or the ability of
United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
* Since this rule does not meet the
definition of a major regulation, the
Agency has not conducted a regulatory
impact analysis. The proposed rule was
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291. Any
comments from OMB to EPA and any
response to these comments will be
available for viewing at the
Environmental Protection Agency, Room
1003 East Tower, 401 M Street SW.,
Washington, DC 20460.
B. Paperwork Reduction Act
The information collection
requirements in this final rule was
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act 44 U.S.C. 3501 et sea. and
has been assigned control numbers
2040-0090 (Public Water System) and
2040-0042 (Underground Injection
Control).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
requires that Federal agencies prepare
regulatory flexibility analyses assessing
the impacts of proposed rules on entities
such as small businesses, small
organizations, and small governmental
jurisdictions. Such analysis is not
required, however, when the head of the
agency certifies that a rule will not have
a significant economic impact on a
substantial number of small entities.
The EPA considers the information
required by this rule to be the minimum
necessary to administer effectively the
Indian provisions of the 1986 Safe
Drinking Water Act amendments. Any
additional economic impact on the
public resulting from reporting and
recordkeeping requirements that Tribes
adopt as part of a Public Water System
and/or Underground Injection Control
program(s) is expected to be negligible
since owners /operators of public water
systems and/or underground injection
wells are already reporting to EPA.
Awarding primacy to an Indian Tribe
will not change the reporting or
regulatory requirements, but only the
government to which the owner/
' operator reports. Accordingly, I certify
that these regulations, when
promulgated, will not have a substantial
' impact on a number of small entities.
Last of Subjects in 40 CFR Parts 35,124.
141,142,143,144,145, and 146
Administrative practices and
procedures. Air pollution control,
Chemicals, Confidential business
information. Grant programs—
environmental protection. Hazardous
materials, Indians. Intergovernmental
relations. Penalties, Pesticides and
pests. Radiation protection. Reporting
and recordkeeping requirements. Waste
treatment and disposal, Water pollution '
control, Water supply.
Dated: September 12,1986.
Lee M. Thomas,
Administrator.
Therefore, for the reasons set forth in
the preamble, 40 CFR Chapter I is
amended as follows:
PART 35—STATE AND LOCAL
ASSISTANCE
Subpart A—Financial Assistance for
Continuing Environmental Programs
1. The authority citation for Subpart A
is amended to read:
Authority: Sees. 105 and 301(a) of the Clean
Air Act. as amended (42 U.S.C. 7405 and
7601(a)); sees. 106.205(g). 205(j). 208 and 501
(a) of the Clean Water Act. as amended (33
U.S.C. 1256.1285(g). 1285(j), 1288, and
136l(a)l: sees. 1443.1450. and 1451 of the Safe
Drinking Water Act (42 U.S.C. 300J-2 and
300J-9): sees. 2002(a) and 3011 of the Solid
Waste Disposal Act. as amended by the
Resource Conservation and Recovery Act of
1976 (42 U.S.C. 6912(8). 6931.6947. and 6949):
and sees. 4.23. and 25(a) of the Federal
Insecticide. Fungicide, and Rodenticide Act,
•• amended (7 U.S.C, 136(b), 136(u), and
136w(a)).
2. Section 35.105 is amended to add, in
alphabetical order, new definitions for
"Indian Tribe" and "State" to read as
follows:
{35.105 Definitions.
• • * • •
"Indian Tribe" means, within the
context of the Public Water System
Supervision and Underground Water
Source Protection grants, any Indian
Tribe having a Federally recognized
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Federal Register / Vol. 53. No. 186 / Monday, September 26. 1988 / Rules and Regulations 37409
governing body carrying out substantial
governmental duties and powers over a
defined area.
• * * * *
"State" means, within the context of
the Public Water System Supervision
and Underground Water Source
Protection grants, one of the States of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands. Guam,
American Samoa, the Trust Territory of
the Pacific Islands, the Commonwealth
of the Northern Mariana Islands, or an
Indian Tribe treated as a State.
* * * * *
3. Section 35.115 (e) and (f) are revised
to read as follows:
§ 35.115 State allotments and reserves.
*****
(e) Public Water System Supervision
allotment (Safe Drinking Water Act,
section 1443(a)): Population, geographic
area, numbers of community and
noncommunity water systems and other
relevant factors. All jurisdictions except
American Samoa. Guam, the Northern
Mariana Islands, the Virgin Islands or
an individual Indian Tribe treated as a
State shall be allotted at least one
percent. Up to three percent of the
Public Water System Supervision funds
shall be reserved each year for use on
Indian lands.
(f) Underground Water Source
Protection allotment (Safe Drinking
Water Act, section 1443(b)): Population.
geographic area, extent of underground
injection practices, and other relevant
factors. Up to five percent of the
Underground Water Source Protection
funds shall be reserved each year for
use on Indian lands.
* * * • •
4. Section 35.155 is amended by
adding a new paragraph (c) to read as
follows:
§ 35.155 RuUocation.
* * * • *
(c) Public Water System Supervision
and Underground Water Source
Protection funds reserved for use on
Indian lands which are not awarded to
specific Indian Tribes by February 1 of a
fiscal year, may be reallocated by the
Administrator for supplementary
awards to Indian Tribes treated as
States or to EPA Regions forpurposes of
direct implementation on Indian lands.
5. Section 35.400 is revised to read as
follows:
§35.400 Purpose.
Sections 1443(a) and 1451(a)(3) of the
Safe Drinking Water Act authorize
assistance to States and Indian Tribes
treated as States for Public Water
System Supervision Programs.
Associated program regulations are
found in 40 CFR Parts 141.142. and 143.
6. Section 35.405 is amended by
designating existing text as paragraph
(a) and adding a new paragraph (b) to
read as follows:
§ 35.405 Maximum Federal share.
*****
(b) The Regional Administrator may
increase the 75 percent maximum
Federal share for an Indian Tribe based
upon application and demonstration by
the Tribe that it does not have adequate
funds (including Federal funds
authorized by statute to be used for
matching purposes). Tribal funds, or in-
kind contributions to meet the required
25 percent Tribal match. In no case shall
the Federal share be greater than 90
percent.
7. Section 35.410 is amended by
adding a new paragraph (c) to read as
follows:
§35.410 Limitations.
* • • • •
(c] The limitations in paragraphs (a)
and (b), of this section do not apply to
funds allotted to Indian Tribes.
8. Part 35 is amended by adding a new
§ 35.415 to read as follows:
§35.415 Indian Tribes.
(a) The Regional Administrator will
not award initial section 1443(a) funds
to an Indian Tribe unless:
(1) EPA has determined that the
Indian Tribe meets the requirements of
40 CFR Part 142, Subpart H—Treatment
of Indian Tribes as States: and
(2) The applicant has a Public Water
System Supervision Program or agrees
to establish one within three years of
the initial award and agrees to assume
primary enforcement responsibility
within this period.
(b) The Regional Administrator shall
not give a continuation award to any
Indian Tribe unless the Tribe can
demonstrate reasonable progress
towards assuming primary enforcement
responsibility within the three-year
period.
(c) After the three-year period expires.
the Regional Administrator shall not
award section 1443(a) funds to an Indian
Tribe unless the Tribe has assumed
primary enforcement responsibility.
9. Section 35.450 is revised to read as
follows:
§35.450 Purpose.
Section 1443(b) of the Safe Drinking
Water Act authorizes assistance to
States and Indian Tribes treated as
States for Underground Water Source
Protection Programs. Associated
program regulations are found in 40 CFR
Parts 124,144,145.146. and 147.
10. Section 35.455 is amended by '"
designating existing text as paragraph
(a) and adding a new paragraph (b) to
read as follows:
§ 35.455 Maximum Federal share.
* • • • •
(b) The Regional Administrator may
increase the 75 percent maximum
Federal share for an Indian Tribe based
upon application and demonstration by
the Tribe that it does not have adequate
funds (including Federal funds
authorized by statute to be used for
matching purposes). Tribal funds, or in-
kind contributions to meet the required
25 percent match requirement. In no
case shall the Federal share be greater
than 90 percent.
11. Section 35.460 is revised to read as
follows:
§ 35.460 Limitations.
After September 30.1983. the Regional
Administrator will not award section
1443(b) funds unless the applicant has
primary enforcement responsibility for
the Underground Water Source
Protection program. The above
limitation shall not apply to funds
allotted to Indian Tribes.
12. Part 35 is amended to add a new
Section 35.465 to read as follows:
§ 35.465 Indian Tribes.
(a) The Regional Administrator will
not award initial section 1443(b) funds
to an Indian Tribe unless:
(1) EPA has determined that the
Indian Tribe meets the requirements of
40 CFR Part 145 Subpart E—Treatment
of Indian Tribes as States.
(Z] The applicant has an Underground
Water Source Protection program or
agrees to establish one within four years
of the initial award and agrees to
assume primary enforcement
responsibility within this period.
(b) The Regional Administrator shall
not give a continuation award to any
Indian Tribe unless the Tribe can
demonstrate reasonable progress
towards assuming primary enforcement
responsibility within the four-year
period.
(c) After the four-year period expires.
the Regional Administrator shall not
award section 1443(b) funds to an Indian
Tribe unless the Tribe has assumed
primary enforcement responsibility.
PART 124—PROCEDURES FOR
DECISION MAKING
1. The authority citation for Part 124
continues to read as fallows:
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37410
Federal Register / Vol. 53. No. 185 / Monday. September 26. 1938 / Rules and Regulations
Authority: Resource Conservation and
Recovery Act 12 U.S.C. 6901 et sea.; Safe
Drinking Water Act. 42 U.S.C. 300f et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; and
Clean Air Act. 42 U.S.C. 1857 et seq.
2. Section 124.2 is amended by adding
the definition "Indian Tribe" in
alphabetical order and by revising the
following definitions to read:
§ 124.2 Definitions.
• ••»**
"Director" means the Regional
Administrator, the State director or the
Tribal director as the context requires,
or an authorized representative. When
there is no approved State or Tribal
program, and there is an EPA
administered program, "Director" means
the Regional Administrator. When there
is an approved State or Tribal program,
"Director" normally means the State or
Tribal director. In some circumstances.
however, EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program.
(For example, when EPA has issued an
NPDES permit prior to the approval of a
State program. EPA may retain
jurisdiction over that permit after
program approval; see § 123.1) In such
cases, the term "Director" means the
Regional Administrator and not the
State or Tribal director.
• * * * *
"Indian Tribe" means (except in the
case of RCRA) any Indian Tribe having
a Federally recognized governing body
carrying out substantial governmental
duties and powers over a defined area.
* * * « •
"Person" means an individual,
association, partnership, corporation.
municipality. State, Federal, or Tribal
agency, or an agency or employee
thereof.
• • % • *
"State" means one of the States of the
United States, the District of Columbia,
the Commonwealth of Puerto Rico, the
Virgin Islands. Guam, American Samoa,
the Trust Territory of the Pacific Islands
(except in the case of RCRA), the
Commonwealth of the Northern Mariana
Islands, or an Indian Tribe treated as a
State (except in the case of RCRA).
"State Director" means the chief
administrative officer of any State,
interstate, or Tribal agency operating an
approved program, or the delegated
representative of the State director. If
the responsibility is divided among two
or more States, interstate, or Tribal
agencies. "State Director" means the
chief administrative officer of the State.
interstate, or Tribal agency authonzed
to perform the particular procedure or
function to which reference is made.
• * • * *
3. Section 124.10[c)(l)(iii) is revised to
read as follows:
§ 124.10 Public notice of permit actions
and public comment period.
(c) * • •
(1) • • •
(iii) Federal and State agencies with
jurisdiction over fish, shellfish, and
wildlife resources and over coastal zone
management plans, the Advisory
Council on Historic ['reservation. State
Historic Preservation Officers, including
any affected States (Indian Tribes). (For
purposes of this paragraph, and in the
context of the Underground Injection
Control Program only, the term State
includes Indian Tribes treated as
States.)
PART 141—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
1. The authority citation for Part 141 is
revised to read as follows:
Authority: 42 U.S.C. 300f et seq.
2. Section 141.2 (d) and (h) are revised
to read as follows:
§141.2 Definitions.
* * * * *
(d) "Person" means an individual;
corporation; company; association:
partnership; municipality; or State,
Federal, or tribal agency.
• • • * •
(h) "State" means the agency of the
State or Tribal government which has'
jurisdiction over public water systems.
During any period when a State or
Tribal government does not have
primary enforcement responsibility
pursuant to Section 1413 of the Act. the
term "State" means the Regional
Adminstrator, U.S. Environmental
Protection Agency.
PART 142—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
IMPLEMENTATION
1. The authority citation for Part 142 is
revised to read as follows:
Authority: 42 U.S.C. 300f et seq.
2. Section 142-2 is amended by
redesignating paragraphs (f) through (p)
as paragraphs (h) through (r) and by
adding new paiagiuphs (f) and (g); and
the redesigns ted paragraphs (i), (k), and
(o) are revised to read as follows:
§ 142.2 Definitions.
*****
(f) "Indian Tribe" means any Indian
Tribe having a Federally recognized
governing body carrying out substantial
governmental duties and powers over a
defined area.
(g) "Interstate Agency" means an
agency of two or more States
established by or under an agreement or
compact approved by the Congress, or
any other agency of two or more States
or Indian Tribes having substantial
powers or duties pertaining to the
control of pollution as determined and
approved by the Administrator.
*****
(i) "Municipality" means a city, town.
or other public body created by or
pursuant to State law, or an Indian Tribe
which does not meet the requirements of
Subpart H of this part.
• * * * •
(k) "Person" means an individual; - .
corporation: company: association;
partnership: municipality; or State.
federal, or Tribal agency.
- * * * * *
(o) "State" means one of the States of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands. Guam.
American Samoa, the Commonwealth of
the Northern Mariana Islands, the Trust
Territory of the Pacific Islands, or an
Indian Tribe treated as a State.
» • • • •
3. Section 142.3 is amended by adding
a new paragraph (c) to read as follows:
§142.3 Scope.
*••*•*
(c) Section 1451 of the SDWA
authorizes the Administrator to delegate
primary enforcement responsibility for
public water systems to Indian Tribes.
An Indian Tribe must be designated by
the Administrator for treatment as s
State before it is eligible to apply for
Public Water System Supervision grants
and primary enforcement responsibility.
All primary enforcement responsibility
requirements of Parts 141 and 142 apply
to Indian Tribes except where
specifically noted.
4. Section 142.10 is amended by
designating existing paragraph (b)(3) as
paragraph (b)(3)(i) and by adding a new
paragraph (b)(3)(ii) and by adding
paragraph (f) to read as follows:
§ 142.10 Requirements tor • determination
of primary enforcement responsibility.
****•>
(b) * • *
(3)(i) * • •
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Federal Register / VoL 53. No. 186 / Monday. September 26, 1988 / Rules and Regulations . 37411
(ii) Upon a showing by an Indian
Tribe of an intergovernmental or other
agreement to have all analytical tests
performed by a certified laboratory, the
Administrator may waive this
requirement.
*****
(f) An Indian Tribe shall not be
required to exercise criminal
enforcement jurisdiction to meet the
requirements for primary enforcement
responsibility.
5. Part 142 is amended to add a new
Subpart H to read as follows:
PART 142—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
JMPLEMENTATJON
Subpart H—Treatment of Indian Tribes as
States
Sec.
142.72 Requirements for treatment as a
State.
142.76 Request by an Indian Tribe for a
determination of treatment as a State.
142.78 Procedure for processing an Indian
Tribe's application for treatment as a
State.
Subpart H—Treatment of Indian Tribes
as States
§ 142.72 Requirements for treatment as a
State.
The Administrator is authorized to
treat an Indian Tribe as a State (for
purposes of making the Tribe eligible to
apply for a Public Water System
Program) if it meets the following
criteria:
(a) The Indian Tribe is recognized by
the Secretary of the Interior.
(b) The Indian Tribe has a tribal
governing body which is currently
"carrying out substantial governmental
duties and powers" over a defined area.
(ije~ is currently performing
governmental functions to promote the
health, safety, and welfare of the
affected population within a defined
geographic area).
(c) The Indian Tribe demonstrates
that the functions to be performed in
regulating the public water systems that
the applicant intends to regulate are
within the area of the Indian Tribal
government's jurisdiction,
(d) The Indian Tribe is reasonably
expected to be capable, in the
Administrator's judgment of
administering (in a manner consistent
with the terms and purposes of the Act
and all applicable regulations) an
effective Public Water System program
"by the existence of management and
technical skills necessary to administer
an effective Public Water System
program or a plan to acquire the
additional management and/or
technical skills to administer an
effective Public Water System Program:
by the existence of institutions to
exercise executive, legislative, and
judicial functions: by a history of
successful managerial performance of
public health or environmental
programs: and by acceptable accounting '
and procurement procedures.
§ 142.76 Request by an Indian Tribe for a
determination of treatment as a State.
An Indian Tribe may apply to the
Administrator for a determination that it
qualifies for treatment as a State
pursuant to section 1451 of the Act. The
application shall be concise and
describe how the Indian Tribe will meet
each of the requirements of § 142.72. The
application shall consist of the following
information:
(a) A statement that the Tribe is
recognized by the Secretary of the
Interior.
(b) A descriptive statement
demonstrating that the Tribal governing
body is currently carrying out
substantial governmental duties and
powers over a defined area. The
statement shall:
(1) Describe the form of the Tribal
government
(2) Describe the types of governmental
functions currently performed by the
Tribal governing body such as, but not
limited to. the exercise of police powers
affecting (or relating to) the health.
safety, and welfare of the affected
population: taxation; and the exercise of
the power of eminent domain: and
(3) Identify the sources of the Tribal
government's authority to carry out the
governmental functions currently being
performed.
(c) A map or legal description of the
area over which the Indian Tribe asserts
jurisdiction; a statement by the Tribal
Attorney General (or equivalent official)
which describes the basis for the Tribe's
jurisdictional assertion (including the
nature or subject matter of the asserted
jurisdiction); a copy of all documents
such as Tribal constitutions, by-laws.
charters, executive orders, codes.
ordinances, and/or resolutions which
support the Tribe's asserted jurisdiction;
and a description of the locations of the
public water systems the Tribe proposes
to regulate.
(d) A narrative statement describing
the capability of the Indian Tribe to
administer an effective Public Water
System program. The narrative
statement shall include:
(1) A description of the Indian Tribe's
previous management experience
including, but not limited to, the
administration of programs and services
authorized by the Indian Self-
Determination and Education ._
Assistance Act (25 U.S.C. 450 etseg.).
the Indian Mineral Development Act (25
U.S.C. 2101 et seq.}, or the Indian
Sanitation Facilities Construction
Activity Act (42 U.S.C. 2004s).
(2] A list of existing environmental or
public health programs administered by
the Tribal governing body and a copy of
related Tribal laws, regulations and
policies.
(3) A description of the Indian Tribe's
accounting and procurement systems.
(4) A description of the entity (or
entities) which exercise the executive.
legislative, and judicial functions of the
Tribal government.
(5) A description of the existing, or .
proposed, agency of the Indian Tribe
which will assume primary enforcement
responsibility, including a description of
the relationship between owners/
operators of the public water systems .
and the agency.
(6) A description of the technical and
administrative capabilities of the staff to
administer and manage an effective
Public Water System Program or a plan
which proposes how the Tribe will
acquire additional administrative and/
or technical expertise. The plan must
address how the Tribe will obtain the
funds to acquire the additional
administrative and technical expertise.
(e) The Administrator may. in his
discretion, request further
documentation necessary to support a
Tribal request for treatment as a State.
(f) If the Administrator has previously
determined that a Tribe has met the
requirement for "treatment as a State"
for programs authorized under the Safe
Drinking Water or the Clean Water
Acts, then that Tribe may provide only
that information unique to the Public
Water System program (Le^ § § l4Z76(c)
and 142.76(d)(6)).
§ 142.78 Procedure for processing an
Indian Tribe's application for treatment *s a
State.
(a) The Administrator shall process a
completed application of an Indian
Tribe for treatment as a State submitted
pursuant to § 142.76 in a timely manner.
He shall promptly notify the Indian
Tribe of receipt of the application.
(b) Within 30 days after receipt of the
Indian Tribe's completed application for
treatment as a State, the Administrator
shall notify the appropriate
governmental entities. Notice shall
include information on the substance of
and basis for the Tribe's jurisdictional
assertions.
(c) Each governmental entity so
notified by the Administrator shall have
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37412 Federal Register / Vol. 53. No. 186 / Monday. September 26, 1988 / Rules and Regulations
30 days to comment upon the Tribe's
assertion of jurisdiction. Comments by
governmental entities shall be limited to
the Tribe's assertion of jurisdiction.
(d) If a Tribe's asserted jurisdiction is
subject to a competing or conflicting
claim, the Administrator, after
consultation with the Secretary of the
Department of the Interior, or his
designee. and in consideration of other
comments received, shall determine
whether the Tribe has adequately
demonstrated the requisite jurisdiction
for primacy for the Public Water System
Program.
(e) If the Administrator determines
that a Tribe meets the requirements of
§ 142.72, the Indian Tribe is then eligible
to apply for development grants and
primary enforcement responsibility for a
Public Water System Program and
associated funding under section 1443(u)
of the Act and for primary enforcement
responsibility for public water systems
under section 1413 of the Act.
PART 143—NATIONAL SECONDARY
DRINKING WATER REGULATIONS
1. The authority citation for Part 143 is
reviised to read as follows:
Authority: 42 U.S.C 300f et seq.
2. Section 143.2(d) is revised to read
as follows:
§143.2 Definitions.
• • * * *
(d) "State" means the agency of the
State or Tribal government which has
jurisdiction over public water systems.
During any period when a State does not
have responsibility pursuant to section
1443 of the Act. the term "State" means
the Regional Administrator, U.S.
Environmental Protection Agency.
PART 144—UNDERGROUND
INJECTION CONTROL PROGRAM
1. The authority citation for Part 144 is
revised to read as follows:
Authority: Safe Drinking Water Act. 42
U.S.C. 300f et seq: Resource Conservation
and Recovery Act. 42 U.S.C. 6901 el »*q.
2. Section 144.3 is amended by adding
the definition "Indian tribe" in
alphabetical order and by revising the
following definitions to read:
§144.3 Definitions.
• * • « •
"Approved State Program" means a
UIC program administered by the State
or Indian Tribe that has been approved
by EPA according to SDWA sections
1422 and/or 1425.
"Director" means the Regional
Administrator, the State director or the
Tribal director as the context requires,
or an authorized representative. When
there is no approved State or Tribal
program, and there is an EPA
administered program, "Director" means
the Regional Administrator. When there
is an approved State or Tribal program,
"Director" normally means the State or
Tribal director. In some circumstances,
however, EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program. In
such cases, the term "Director" means
the Regional Administrator and not the
State or Tribal director.
* • • * •
"Indian Tribe" means any Indian
Tribe having a Federally recognized
governing body carrying out substantial
governmental duties and powers over a
defined area.
• * • • •
"Interstate Agency" means an agency
of two or more States established by or
under an agreement or compact
approved by the Congress, or any other
agency of two or more States or Indian
Tribes having substantial powers or
duties pertaining to the control of
pollution as determined and approved
by the Administrator under the
"appropriate Act and regulations."
• * • • •
"Person" means an individual,
association, partnership, corporation,
municipality. State, Federal, or Tribal
agency, or an agency or employee
thereof.
"State" means any of the 50 States,
the District of Columbia, Guam, the
Commonwealth of Puerto Rico, the
Virgin Islands. American Samoa, the
Trust Territory of the Pacific Islands, the
Commonwealth of the Northern Mariana
Islands, or an Indian Tribe treated as a
State.
"State Director" means the chief
administrative officer of any State,
interstate, or Tribal agency operating an
"approved program." or the delegated
representative of the State director. If
the responsibility is divided among two
or more States, interstate, or Tribal
agencies, "State Director" means the
chief administrative officer of the State,
interstate, or Tribal agency authorized
to perform the particular procedure or
function to which reference is made.
PART 145-STATE UIC PROGRAM
REQUIREMENTS
1. The authority citation for Part 145 is
revised to read as follows:
Authority: 42 U.S.C. 300f et seq.
2. Section 145.1 is amended to add a
new paragraph (h) to read as follows:
§ 14S.1 Purpose and scope.
*•••••
(h) Section 1451 of the SDWA
authorizes the Administrator to delegate
. primary enforcement responsibility for
the Underground Injection Control
Program to Indian Tribes. An Indian
Tribe must establish its eligibility to be
treated as a State before it is eligible to
apply for Underground Injection Control
grants and primary enforcement
responsibility. All requirements of Parts
124,144,145, and 146 that apply to
States with UIC primary enforcement
responsibility also apply to Indian
Tribes except where specifically noted.
3. Section 145.13 is amended to add a
new paragraph (e) to read as follows:
§ 145.13 Requirements for enforcement
authority.
• • * • •
(e) To the extent that an Indian Tribe
does not assert or is precluded from
asserting criminal enforcement authority
the Administrator will assume primary
enforcement responsibility for criminal
violations. The Memorandum of
Agreement in § 145.25 shall reflect a
system where the Tribal agency will
refer such violations to the
Administrator in an appropriate and
timely manner.
4. In Section 145.21. existing
paragraphs (c) through (f) are
redesignated as paragraphs (d) through
(g) and a new paragraph (c) is added to
read as follows:
§ 145.21 General requirements for
program approvals.
(c] The requirements of § 145.21 (a)
and (b) shall not apply to Indian Tribes.
• • • • •
5. Part 145 is amended to add a new
Subpart E to read as follows:
Subpart £—Treatment of Indian Tribes as
States
Sec.
145.52 Requirements for treatment as a
State.
145.56 -Request by an Indian Tribe for a
determination of treatment as a State.
145.58 Procedure for processing an Indian
Tribe's application for treatment as a
State.
Subpart E—Treatment of Indian Tribes
as States
§ 145.52 Requirements for treatment as a
State.
The Administrator is authorized to
treat an Indian Tribe as a State (for
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Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 57413
purposes of making the Tribe eligible to
apply for an Underground Injection
Control Program) if it meets the
following criteria:
(a) The Indian Tribe is recognized by
the Secretary of the Interior.
(b) The Indian Tribe has a Tribal
governing body which is currently
"carrying out substantial governmental
duties and powers" over a defined area,
(i.e., is currently performing
governmental functions to promote the
health, safety, and welfare of the
affected population within a defined
geographic area).
(c) The Indian Tribe demonstrates
that the functions to be performed in
regulating the underground injection
wells that the applicant intends to
regulate are within the area of the
Indian Tribal government's jurisdiction.
(d) The Indian Tribe is reasonably
expected to be capable, in the
Administrator's judgment of
administering (in a manner consistent
with the terms and purposes of the Act
and all applicable regulations) an
effective Underground Injection Control
Program by the existence of
management and technical skills
necessary to administer an effective
Underground Injection Control Program
or a plan to acquire the additional
management and/or technical skills to
administer an effective Underground
Injection Control Program: by the
existence of institutions to exercise
executive, legislative, and judicial
functions: by a history of successful
managerial performance of public health
or environmental programs: and by
acceptable accounting and procurement
procedures.
§ 145.56 Request by an Indian Tribe for a
determination of treatment a* a State.
An Indian Tribe may apply to the
Administrator for a determination that it
qualifies for treatment as a State
pursuant to section 1451 of the Act The
application shall be concise and
describe how the Indian Tribe will meet
each of the requirements of § 145.52. The
application shall consist of the
following:
(a) A statement that the Tribe is
recognized by the Secretary of the
Interior.
(b) A descriptive statement
demonstrating that the Tribal governing
body is currently carrying out
substantial governmental duties and
powers over a defined area. The
statement shall:
(1) Describe the form of the Tribal
government:
(2) Describe the types of governmental
functions currently performed by the
Tribal governing body such as. but not
limited to. the exercise of police powers
affecting (or relating to) the health,
safety, and welfare of the affected
population: taxation: and the exercise of
the power of eminent domain; and
(3) Identify the sources of the Tribal
government's authority to carry out the
governmental functions currently being
performed.
(c) A map or legal description of the
area over which the Indian Tribe asserts
jurisdiction: a statement by the Tribal
Attorney General (or equivalent official)
which describes the basis for the Tribe's
jurisdictional assertion (including the
nature or subject matter of the asserted
jurisdiction); a copy of all documents
such as Tribal constitutions, by-laws,
charters, executive orders, codes.
ordinances, and/or resolutions which
support the Tribe's asserted jurisdiction;
and a description of the locations of the
underground injection wells the Tribe
proposes to regulate.
(d) A narrative statement describing
the capability of the Indian Tribe to
administer an effective Underground
Injection Control program which shall
include:
(1) A description of the Indian Tribe's
previous management experience
including, but not limited to, the
administration of programs and services
authorized under the Indian Self-
Determination and Education
Assistance Act (25 U.S.C. 450 et seq.).
the Indian Mineral Development Act (25
U.S.C. 2101 etseq.), or the Indian
Sanitation Facilities Construction
Activity Act (42 U.S.C. 2004a).
(2) A list of existing environmental or
public health programs administered by
the Tribal governing body and a copy of
related Tribal laws, regulations and
policies.
(3) A description of the Indian Tribe's
accounting and procurement systems.
(4) A description of the entity (or
entities) which exercise the executive,
legislative, and judicial functions of the
Tribal government
(5) A description of the existing, or
proposed, agency of the Indian Tribe
which will assume primary enforcement
responsibility, including a description of
the relationship between owners/
operators of the underground injection
wells and the agency.
(6) A description of the technical and
administrative capabilities of the staff to
administer and manage an effective
Underground Injection Conr :•! Program
or a plan which proposes he . the Tribe
will acquire adcuional administrative
and/or technical expertise. The plan
must address how the Tribe will obtain
the funds to acquire the additional
administrative and technical expertise.
(e] The Adminstrator may, in his
discretion, request further
documentation necessary to support a"
Tribal request for treatment as a State.
(f) If the Administrator has previously
determined that a Tribe has met the
requirement for "treatment as a State"
for programs authorized under the Safe
Drinking Water or the Clean Water
Acts, then that Tribe may provide only
that information unique to the
Underground Injection Control program
[i.e.. §§ 145.76(c) and 145.76(d)(6J).
§ 145.56 Procedure for processing an
Indian Tribe's application for treatment as a
State.
(a) The Administrator shall process a
completed application of an Indian
Tribe for treatment as a State submitted
pursuant to § 145.56 in a timely manner.
He shall promptly notify the Indian
Tribe of receipt of the application.
(b) Within 30 days after receipt of the
Indian Tribe's completed application for
treatment as a State, the Administrator
shall notify the appropriate
governmental entities. Notice shall
include information on the substance
and base for the Tribe's jurisdictional
assertions.
(c) Each governmental entity so
notified by the Administrator shall have
30 days to comment upon the Tribe's
assertion of jurisdiction. Comments by
governmental entities shall be limited to
the Tribe's assertion of jurisdiction.
(d) If a Tribe's asserted jurisdiction is
subject to a competing or conflicting
claim, the Administrator, after
consultation with the Secretary of the
Department of the Interior, or his
designee, and in consideration of other
comments received, shall determine
whether the Tribe has adequately
demonstrated the requisite jurisdiction
for primacy for the Underground
Injection Control Program.
(e) If the Administrator determines
that a Tribe meets the requirements of
§ 145.52. the Indian Tribe is then eligible
to apply for development grants and
primary enforcement responsibility for
an Underground Injection Control
program and the associated funding
under section 1443(b) of the Act and
primary enforcement responsibility for
the Underground Injection Control
Program under sections 1422 and/or
1425 of the Act
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
1. The authority citation for Part 146 is
revised to read as follows:
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37414 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations
Authority: Safe Drinking Water Act: 42
U.S.C. 300f et seq.; Resource Conservation
and Recovery Act. 42 U.S.C. 6901 el seq.
2. Section 146.3 is amended by adding
the definition "Indian Tribe" in
alphabetical order and by revising the
following definitions to read:
§ 146.3 Definitions.
• • « • •
"Director" means the Regional
Administrator, the State director or the
Tribal director as the context requires,
or an authorized representative. When
there is no approved State or Tribal
program, and there is an EPA
- administered program, "Director" means
the Regions.! Administrator. When there
is an approved State or Tribal program,
"Director" normally means the State or
Tribal director. In some circumstances,
however, EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program.
(For example, when EPA has issued an
NPDES permit prior to the approval of a
State program, EPA may retain
jurisdiction over that permit after
program approval: see § 123.69). In such
cases, the term "Director" means the
Regional Administrator and not the
State or Tribal director.
* • * • «
"Indian Tribe" means any Indian
Tribe having a Federally recognized
governing body carrying out substantial
governmental duties and powers over a
defined area.
• • • • • *
"State Director" means the chief
administrative officer of any Stats,
interstate, or Tribal agency operating an
"approved program," or the delegated
representative of the State Director. If
the responsibility is divided among two
or more State, interstate, or Tribal
agencies, "State Director" means the
chief administrative officer of the State,
interstate, or Tribal agency authorized
to perform the particular procedure or
function to which reference is made.
« * * • *
[FR Doc. 88-21695 Filed 9-23-88; 8:45 am]
BILLING CODE 6560-50-M
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246
Federal Register / Vol. 54, No. 2 / Wednesday, January 4, 1989 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122, 123, 124, 125, 130
and 403
[FRL 3405-2]
National Pollutant Discharge
Elimination System Permit Regulations
AGENCY: Environmental Protection
Agency.
ACTION: Final rule. __
SUMMARY: On February 4.1987.
Congress enacted the Water Quality Act
of 1987 (WQA). which revised the Clean
Water Act (CWA). This new statute
makes a number of changes to EPA's
existing National Pollutant Discharge
Elimination System (NPDES) permit and
pretreatment programs under section
402 of the CWA, and includes
modifications to other CWA provisions
as well. Today's rules revise EPA's
existing NPDES. pretreatment, and
water quality regulations to reflect
statutory changes which supplement or
supersede existing regulatory
requirements.
These rules also change existing
NPDES regulations to reflect recent
court decisions and contain corrections
of typographical errors, incorrect cross-
references, and inadvertent omissions or
additions of language in previous
regulations implementing the NPDES
permit program. These earlier
regulations were published at 50 FR 6939
(February 19,1985). 49 FR 37998
(September 26.1984). 49 FR 31840
(August 8,1984), 48 FR 39611(September
28.1983), 48 FR 14146 (April 1,1983), and
47 FR 53685 (November 26.1982).
EFFECTIVE DATE: These rules become
effective January 4,1989.
ADDRESSES: Comments should be
addressed to: David Greenburg, Permits
Division (EN-336), Environmental
Protection Agency, 401M Street SW.,
Washington, DC 20460. The supporting
information and all comments on this
rulemaking will be available for
inspection and copying at the EPA
Public Information Reference Unit,
Room 2402. TheEPA public information
regulation (40 CFR Part 2) provides that
a reasonable fee may be charged for
copying.
FOR FURTHER INFORMATION CONTACT:
David Greenburg at (202) 475-9524,
Permits Division (EN-336). Office of
Water Enforcement and Permits. U.S.
Environmental Protection Agency, 401M
St.. SW.. Washington. DC 20460.
SUPPLEMENTARY INFORMATION:
L Background
II. Analysis of Regulatory Changes
A. Definitions
1. Point Source
2. Agricultural Storm Water Discharges
3. State
B. Storm Water Permit Requirements
C. Deadline Extensions
1. Compliance Dates
2. POTW Application Deadline
3. Innovative Technology
D. Industrial Variances
1. General Note on Fundamentally
Different Factors Variances
2. Application Requirements for
Fundamentally Different Factors
Variance Requests
3. Availability of Section 301(g) Variances
4. State Concurrence on Fundamentally
Different Factors and Section 301(g)
Variances
E. Penalties
F. Anti-Backsliding
C. Inspection and Entry
H. Sewage Sludge
I. Partial NPDES Program
]. 304(1) Toxic Control Strategies
1. Identification of Polluted Waters
2. EPA Review of Individual Control
Strategies
K. New Source—Preconstruction Ban
L Corrections
IIL Regulatory Analysis
A. Executive Order 12291: Regulator}- Impact
Analysis
B. Regulatory Flexibility Act
C Paperwork Reduction Act
I. Background
On February 4,1987, Congress
enacted the Water Quality Act of 1987
(WQA). which amends the Clean Water
Act (CWA). The Water Quality Act
makes a number of adjustments to the
NPDES program.
Many of the changes necessitate
revisions to the NPDES regulations. This
rule contains changes which incorporate
specific provisions from the Water
Quality Act into existing NPDES
regulations. Today's rulemaking also
makes revisions to the NPDES
regulations in response to recent court
decisions by the U.S. Court of Appeals
for the District of Columbia Circuit
In addition to today's final rule, EPA
is also preparing companion .
nilemakings which will propose
modifications to existing regulations to
implement other provisions of the WQA
and court orders. These companion
proposals will supplement the new
provisions, as well as codify the
remaining statutory language. EPA has
codified in this rulemaking only those
statutory provisions which can stand
alone and out of context. In some cases,
implementation of specific provisions of
the WQA amendments will involve both
codification of explicit statutory
requirements and notice and comment
ruiemaking to implement those parts of
the statute where the Agency has
discretion to act Where these are
inextricably intertwined. EPA has
decided to defer codification in favor of
a combined notice and comment
rulemaking. This will avoid confusion
which may arise from a piecemeal
approach. Because the principal purpose
of today's rule is to codify the new
statutory requirements of the WQA.
today's rulemaking is properly classified
as an interpretive rule, see. United
Technologies Corporation v. EPA. 821 F.
2d 714.718 (D.C. Cir. 1987), in that it
"simply states what (EPA) thinks the
[underlying] statute means and only
'reminds' affected parties of existing
duties." quoting Citizens to Save
Spencer County v. EPA. 600 F. 2d. 844.
876 n. 153 (D.C. Cir. 1979). It does not
intend "to create new law. rights or
duties." Id.
If the rule is based on specific statutory
provisions, and its validity stands or falls on
the correctness of the agency's interpretation
of those provisions, it is an interpretative
rule. If, however, the rule is based on an
agency's power to exercise its judgment as to
how best to implement a general statutory
mandate, the rule is likely a legislative one.
United Technologies, supra, at 719-20.
Today's final rule conforms to the
Court's definition of aninterpretative
rule by revising existing regulations to
implement the new statutory provisions.
In most instances. EPA has codified the
relevant statutory language. EPA
recognizes that many of these provisions
raise interpretive questions. 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
legislative history and EPA's view of
Congressional purposes for the new
requirements.
The Administrative Procedure Act
(APA) specifically excludes
"interpretative" rules from its notice and
comment procedures. 5 U.S.C. 553(b)(A)
(1982). In addition, while EPA recognizes
the importance of public comment in its
rulemaking activity, the Agency believes
that notice and comment is unnecessary
because the "good cause" exception to
the APA notice and comment
requirement is applicable. The
Administrative Procedure Act, 5 U.S.C.
551. etseq.. specifically recognizes that
there will be situations where an
administrative agency need not go
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Federal Register / Vol. 54, No. 2 / Wednesday. January 4. 1989 /' Rules and Ragulations
247
through a round of public comment
before issuing a rule. Under 5 U.S.C.
553(b}(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 therefor 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 summarized the case
law on the issue of the "good cause"
exemption, saying in relevant pan that
the exemption is warranted where:
••• • * delay in promulgation will cause
an injurious inconsistency between an
agency rale and a newly enacted statute
or judicial decision." AC'JS Rec. 83-2;
The "Good Cause" Exemption from AFA
Rulemaking Requirements. 1 CFR Part
305.33-2 (1384).
EPA believes the good cause
exemption from the notice and comment
requirements of the EPA 5s properly
invoked here for the following reasons.
The limited objective of this rule is to
assure that the Code of Federal
Regulations (CFR) accurately reflects
the current requirements of the Water
Quality Act. This serves important
public policy and regulatory objectives.
It eliminates any confusion on the part
of the regulated community, which relies
on the CFR as an accurate reflection of
the controlling statutory requirements. It
assures that the regulated community is
aware of the new requirements and fully
understands the impact of the
requirements upon permitted facilities.
In addition, many permits include
citations to specific provisions of die
federal regulations. Many State
regulatory programs are modeled after
EPA's regulations: some States even
incorporate EPA's regulations by
reference. . -
. Today's rulemaking will eliminate
many questions concerning
implementation of the WQA, and will
clarify in a number of areas which parts
of the existing regulations are
superseded by new requirements.
Moreover, it is essential Jo the
Agency's enforcement program that the
CFR accurately reflect the statutory
requirements imposed on the regulated
community by the WQA. Immediate
codification of WQA requirements will
put.regulated parties on notice of their
legal responsibilities and potential
liabilities, without the potential for
confusion that might arise in the event
that a conflict is perceived between the
requirements of the Act and those
contained in the CFR. By reducing
confusion about the program and
clarifying permittees' responsibilities
umier the CWA. EPA is ultimately
serving the basic purposes of the
statute—the protection of human health
and the environment. It also promotes
certainty and encourages efforts by
responsible segments of the regulated
community to move ahead to meet their
responsibilities. By the same token, it
prevents other members of the regulated
community from using confusion as an
excuse not to comply with the law.
For the reasons discussed above, EPA
has concluded that to the extent this
rule is deemed a legislative rule rather
than an interpretive rule ihere is good
cause to issue it without receiving public
comment in accordance with 5 U.S.C.
553(b)(B), because under tin-
circumstances, notice and conr.ier.i
procedures would be impracticable.
unnecessary, and contrary to the public
interest. For the same reasons. EPA
believes that it has good cause to make
today's rule immediately effective, as
provided in 5 U.S.C. 553(d)(3).
II. Analysis of Regulatory Change*
A. Definitions
1. Point Source
Prior to passage of the WQA, the -
definition of "point source" in the CWA •
was very broad, encompassing any
discharge of pollutants from a
"discernible, confined and discrete
conveyance." EPA has in practice
interpreted this definition to include
landfill leachate collection systems.
since they channel runoff from landfills.
Section 507 of the WQA confirmed
EPA's interpretation by amending the
statutory definition of point source to
explicitly include landfill leachate
collection systems. Accordingly, today's
rulemaking revises EPA's existing
definition of point source in § 122-2 by
inserting the phrase "landfill leachate
collection system."
2. Agricultural Storm Water Discharges •
Section 503 of the WQA amended
section 502(14) of the CWA to expressly
exclude from the definition of point
source agricultural storm water
discharges. Thus, these discharges are
not subject to NPDES permit
requirements. Today's rule amends the
existing definition of point source in
S 122£ to incorporate this statutory
exclusion.
EPA's regulations had previously
excluded certain agricultural and
silvicultural discharges, which EPA
defined as non-point from the
requirement to obtain an NPDES permit
(see S 122J(e)). This exclusion had been
challenged by the Natural Resources
Defense Council (NRDC) in NRDC v.
EPA, No. 80-1607 (filed June 3.1980) as
being beyond EPA's authority. In view
of the new statutory exclusion for '•
agricultural storm water discharges, the
U.S. Court of Appeals for the District of
Columbia Circuit dismissed NRBC's
challenge to § 122.3(e) as moot.
Today's revision ciarifies tha! the
.exclusion in > 122.3(e) includes
agricultural and silvicultural storm
water discharges. Siivicultural point
source discharges under § 122.27 are stili
required to obtain NPDES permits. For
consistency, EPA is also adding a
reference to § 122.3(e) in the definition o'
point source.
3. State
Section 502 of the WQA amends the
definition of "State" in § 5C2(3) of the
CWA to include the Commonwealth oF
the Northern Mariana Islands. The ruse
promulgated today implaments this
statutory provision by IB vising EPA's
existing definition in 40 CFR 5 § 122^: - -
and 124.2
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Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1989 / Rules and Regulations
which are from conveyances or systems
of conveyances (including but not
limited to pipes, conduits, ditches, and
channels) used for collecting and
conveying precipitation runoff and.
which ere not contaminated by contact
with, or do not come into contact •with.
any overburden, raw material.
intermediate products, finished product.
byproduct or waste products located on
the site of such operations. Today's rule
codifies this limitation on NPDES
permitting authority at 512Z26(aH3).
The legislative history accompanying
this provision explains that "(wjith
respect to oil or grease or hazardous
substances, the determination of
whether storm water is contaminated by
contact with such materials, as
established by the Administrator, shall
take into consideration whether these
materials are present in such storm
waler runoff in excess of reportable
quantities under section 311 of the Clean
Water Act or section 102 of the
Comprehensive Environmental
Response, Compensation and Liability
Act of 1980 or in the case of mining
operations, above natural background
levels." (Conference Report, H10574
Cong. Rec.. (daily ed. Oct. 15.1986). The
Agency will address the scope of this
provision in future rulemaking.
2. Section 402(p)
Section 402(p) contains a number of
important provisions and requirements
relating to the issuance of NPDES
permits for municipal and industrial
storm water discharges. Today's rule
codifies subsection 402{p)(l) at S 12i26
end provides that neither federally-
administered nor approved State NPDES
programs may require a permit for
discharges composed entirely of storm
water prior to October 1.1992. unless
the discharge falls within a list of five
exceptions set forth in subsection
402(p)(2). These exceptions are also
codified in today's rule and include the
following storm water discharges:
(A) A discharge with respect to which
a permit has been issued prior to
February 4,1987;
(B) A discharge associated with
industrial activity,
(C) A discharge from a municipal
separate storm sewer system sen-ing a
population of 250.000 or more;
CD) A discharge from a municipal
separate storm sewer system serving a
population of 100.000 or more, but less
than 250.000: or
(E) A discharge which the
Administrator or the State, as the case
may be. determines contributes to a
violation of a water quality standard or
i» a significant contributor of pollutants
to the waters of the United States.
The last exception at 402(p)(2)(E)
provides the Administrator or the State.
as the case may be. with authority to
designate storm water discharges for a
permit oh a case-by-case basis. This
authority can be used to require a
designated storm water discharge
associated with industrial activity or a
discharge from a municipal separate
storm sewer system serving a
population of greater than 100.000 to
obtain a permit prior to the development
of permit application requirements for
the particular class of storm water
discharges in question. In addition, the
authority applies to designated stcrm
water discharges that are not otherwise
required to obtain a permit prior to
October 1.1992 under section 402(p)(l).
In determining that a storm water
discharge contributes to a violation of a
wuter quality standard or is a significant
contributor of pollutants to waters of the
United States for the purpose of a
designation under Section 402(p){2)(E) of
the amended CWA. the legislative
history for the Water Quality Act
provides that "EPA or the State should
use any available water quality or
sampling data to determine whether the
latter two criteria (of section
402(p)(2)(EJ] are met and should require
additional sampling as necessary to
determine whether on not these criteria
are met" Conference Report, Cans-Rcc-
S16443 (daily ed. October 16,1986). In
accordance with this legislative history,
EPA intends to require designated storm
water dischargers to submit permit
applications in accordance with the
requirements of 40 CFR 122.21. The
Agency will consider a number of
factors when determining whether a
storm water discharge is a significant'
contributor of pollutants to the waters of
the United States. These factors include:
the location of the discharge with
respect to waters of the United States:
the size of the discharge: the quantity
and nature of the pollutants reaching
waters of the United States; and any
other relevant factors. As noted above.
EPA has proposed a rulemaking to
address NPDES application and
designation requirements for storm-
water discharges. These factors are
included in that rulemaking.
Until EPA conducts additional
rulemaking under § 405 of the Water
Quality Act case-by-case designations
of storm water discharges requiring a
permit will be modeled on existing
regulatory procedures found at § 124.52
(for permits required on a case-by-case
basis]. The procedures at { 12432
require the Regional Administrator to
notify the discharger in writing of the
decision that the discharge requires a
permit and the reasons for the decision.
In addition, an application form is to be
sent with the notice. Deadlines for
submitting permit applications will be
established on a case-by-case basis.
Although the 60 day period provided for
submitting a permit application under
§ 124.52 may be appropriate for many
designated storm water discharges,
additional time may be necessary
depending upon site specific fuctors. For
example, due to the complexities
associated with determining whether a
municipal, separate storm sewer system
requires a permit, the Regional
Administrator may provide the
applicant with additional time to submit
relevant information or may require that
information be submitted in several
phases.
The WQA also adds subsection
402(pJ(3)(B)(i) to clarify that permits fur
municipal storm sewer discharges may
be issued on a system or jurisdiction-
wide basis. Today's rule codifies this - .
clarification at {12i26(a}(2).
A number of other provisions of
Section 402 are not being codified in
today's rule but still warrant discussion.
Section 402(p)(4) requires EPA to
promulgate final regulations governing
storm water application requirements
for storm water discharges associated
with industrial activity and discharges
from municipal storm sewer systems
serving a population of 250.000 or more
by "no later than two years" after the
date of enactment (i.e.. no later than
February 4,1989). This provision also
requires EPA to promulgate final
regulations governing storm sewer
permit application requirements for
discharges from municipal separate
storm sewer systems serving a
population of 100.000 or more but less
than 250.000 by "no later than four
years" after enactment (i.e.. no later
than February 4.1991).
In addition, section 402(p)(4) provides
that permit applications for storm wster
discharges associated with industrial
activity and large municipal separate
storm sewer systems "shall be filed no
later than three years*' after the date of
enactment of the WQA (i.e., no later
than February 4,1990). Permit
applications for discharges from
medium-sized municipal systems must
be filed "no later than five years" after
enactment (i.e., no later than February 4.
1992).
NPDES permits for all other storm
water discharges are not required until
October 1.1992. unless a permit for the
discharge was issued prior to the date of
enactment of the WQA (Le.. February 4.
1987), or the discharge is determined to
be a significant contributor of pollutants
to waters of the United States or is
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Federal Register / Vol. 54. No. 2 / Wednesday, January 4, 1989 / Rules and Regulations
249
contributing to a violation of a water
quality standard.
In addition, EPA, in consultation with
the States, is required under section
402(pH5) to conduct two studies on
storm water discharges. The first study
will identify those storm water
discharges or classes of storm water
discharges for which permits are not
required prior to October 1.19S2 and
determine, to the maximum extent
practicable, the nature and extent of
pollutants in such discharges. This study
was due by October 1,1983. The second
study will establish procedures and
methods to control storm water
discharges to the extent necessary to
mitisate impacts on water quality. This
study was due by October 1,1989. Based
on the two studies. ETA. in consultation
with State and local officials, is required
to issue regulations by no later lhan
October 1,1992 which designate
additional storm water discharges to be
regulated to protect water quality and
cstnblish a comprehensive program to
regulate such designated sources. The
program must, at a minimum. (A)
establish priorities. (B) establish
requirements for Slate storm water
management programs, and (C)
establish expeditious deadlines. The
program may include performance
standards, guidelines, guidance, and
management practices and treatment
requirements, as appropriate.
C. Deadline Extensions
1. Compliance Dates
Section 301 in the VVQA revises the
compliance deadlines in $ 301 of the
CWA for the technology-based
requirements of the CWA. The NPDES
regulations in § 125.3 currently reflect
compliance deadline requirements prior
to the WQA. Under the existing rules.
the compliance date for limits based on
best practicable control technology
currently available (BPT) is the date of
permit issuance. For conventional
pollutants subject to limitations based
upon best conventional poiluumt control
technology (BCT) and for all toxic
pollutants identified under CWA section
307(a) (listed at 40 CFR 401.15) and
subject to limitations baaed upon best
available technology economically
achievable (BAT), compliance was
required by July 1,1984. For all other
toxic pollutants subject to effluent
limitations based on BAT. compliance
was required no later than three years
after the date such effluent limitations
were incorporated into an NPDES
permit. For BAT effluent limitations on
other pollutants (i.e. nonconventionaU),
compliance was required no later than
three years after the date such effluent
limitations were incorporated into an
NPDES permit, or July 1,1984. whichever
was later, but in no case Liter than July
1.19S7.
The WQA fevis.s certain deadlines
for compliance with permits containing
effluent limitations based upon BPT.
DAT and BCT. Compliance with permit
effluent limitations established based on
BAT or BCT is required as expeditiously
as practicable but in no case later than
three years after the date such
limitations are instituted, and in no case
later than March 31.1989.
The deadline for BPT efflunnt
limitations continues to be July 1.1977.
However, the V.'QA sets a later deadline
where EPA promulgates on effluent
limitation after January 1,13B2 and the
revised limitation requires a level of
control substantially greater or is based
on fundamentally diifercnt control
technology than required in permits
issued for the industrial category prior
to January 1. 1332. Compliance for this
second category of BPT effluent
limitations is required as expeditiously
as practicable, but in no case later lhan
three years after the date such
limitations are promulgated under
section 304(b) and in no case later than
March 31.1989.
For permits based upon best
professional judgment (BPJ) issued after
enactment of the WQA (February 4.
1987). compliance is required as
expeditiousiy as practicable but in no
case later than three years after the date
such limitations are established, and in
no case later than March 31.1989. For
BPJ permits issued before enactment of
the WQA, compliance continues to be
required in accordance with the Section
301(b)(l)(A), 301(b)(2)(A) and
301(b)(2)(E) deadlines in effect when the
permit was issued.
Today's rule implements the statutory
amendment by revising EPA's existing
§ 125.3(a)(2)(iHv) to extend the
compliance deadline for each of the
above mentioned categories.
2. POTW Application Deadline
Section 304 of the WQA reopens, for
180 days after enactment the deadline
for POTWs to apply under section
301(i)(l) of the CWA for extensions of
the 1978 date by which secondary
treatment and water quality standards
in effect prior to 1977, must be achieved.
The Administrator may extend this
compliance deadline until no later than
July 1.1983. Many eligible POTWs
applied for the 301(i) extension in 1977
and 1978. Congress enacted section 304
of the WQA to allow POTWs that did
not apply in a timely manner for a 301(i)
extension another chance to submit an
application. Treatment works on a
compliance schedule established by a
court order or final Agency (or State)-
order prior to February 4.1987 were not
eligible to apply for an extension under
WQA section 304.
Even though the deadline for this
extension is nast. EFA is amending the
.existing regulations to conform to the
statute in Section 301(i). This will assure
that the regulations accurately reflect
the statute. This statutory provision is
implemented in today's rule by revising
existing $ § 12Z21(n)(2) and 122.21(m)(3).
Section 122.21{n}{2) is revised to change
the POT.V filing deadline for a 30l(i)(l)
extension, from June 26.1978 to August
3.1S87. Thus, the chanpe in the
application deadline effectively changes
§ I22.2i(m)!3] by reopening the time
period in which an industrial faciiiu
planning to discharge through a
municipal treatment works that has
requesied an extension under 301(i) can
apply for a 301(i)(2) extension. The
deadline for these industrial dischargers
is extended to January 30,1988 (180 days
after the POTW can request a 301(i)
extension for delay in construction
undur § 122.21(n)(2)).
3. Innovative Technology
This codification incorporates WQA
changes with respect to facilities
proposing to use innovative technology
to meet applicable BAT effluent
limitations. Prior to passage of the
WQA. the deadline for compliance with
such effluent limitations by facilities
using innovative technology under
§ 301(k) of the OVA was July 1.1987.
This date is currently found at 40 CFR
125.21.125.23.125.24 and 125.27.
Section 303 of the WQA amends section
301(k) of the CWA. to allow the
Administrator (or the State with an
approved program, in consultation with
the Administrator) to establish a date
for compliance no later than 2 years
after the date for compliance with the
effluent limitation which would
otherwise be applicable. This
codification changes 5s 125.21,125.23.
125.24. and 123.27 to reflect the statutory
change.
Prior to the 1907 amendments, the
301 (k) deadline extension was available
only for compliance with BAT limits.
Many facilities subject to BAT also were
required to meet limits for conventional
pollutants based upon best conventional
pollutant control technology (BCT) and
use., -he same treatment equipment in
me' ; both limits. These facilities
wer tssentially barred from obtaining
301(Kj extensions because of the
requirement to meet BCT. The WQA
expands the scope of section 301 (k) to
allow an extension where the permittee
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250 Federal Register / Vol. 54. No. 2 / Wednesday. January 4, 1989 / Rules and Regulations
is using innovative technology for
compliance with BCT. EPA is not,
however, revising Subpart C of Part 125
to reflect these changes in today's
rulemaking. These revisions will be
addressed along with a number of
additional issues in connection with
section 301 (k) in subsequent notice and
comment rulemaking. In that
rulemaking. EPA plans to define the
term "significantly greater effluent
reduction" for purposes of BCT. As part
of that rulemaking. EPA also plans to
propose regulations addressing the
amendment to section 307(e) of the
CWA (i 309 WQA) which authorizes a
compliance deadline extension for
indirect dischargers who install an
innovative technology. In addition. EPA
will address specific substantive criteria
for evaluating 301(k) compliance
extensions. EPA proposed these criteria
in 19B5 pursuant to a remand in NRDC
v. SPA. No. 84-1500 (D.C. Circuit April
16.1985). See 50 FR 49904. December 5.
1985. That earlier proposal was not
finalized, however, and will be
reproposcd as part of the upcoming
more general notice and comment
rulemaking.
D. Industrial Variances
1. General Note on Fundamentally
Different Factors Variances
Regulations establishing
Fundamentally Different Factors (FDF)
variances for BPT. BAT. BCT. and PSES
are found at 40 CFR125, Subpart D and
40 CFR 403.13. In the WQA. the
Congress established an explicit
statutory scheme for FDFs. as applied to
BAT, BCT and PSES. In a future
rulemaking. EPA intends to propose
amendments to the substantive criteria
for FDF variances consistent with the
requirements of section 301(n) of the
CWA for direct (40 CFR Part 125.
Subpart D) and indirect (40 CFR
403.13) dischargers. The Agency will
also address the regulatory authority for
granting variances from BPT. However.
because the legislative history of the
WQA indicated that Congress intended
the FDF variance provisions to be self-
implementing (Conference Report, 132
H.10567. Cong. Rec.. Oct. 15.1986) EPA
is using the new FDF statutory criteria
under section 306 of the WQA. when
appropriate, on a case-by-case basis in
addressing FDF variance requests.
2. Application Requirements for
Fundamentally Different Factors
Variance Requests
The existing NPDES regulation at
S 122Jn(m)(l) requires that a
Fundamentally Different Factors (FDF)
variance request be submitted by the
close of the public comment period on
the draft permit. The existing filing
deadline will continue to be used fur
FDF variance requests from BPT effluent
guidelines. However, where variances
are requested from best available
technology economically achievable
(BAT) and best conventional pollutant
control technology [BCT). the WQA "
establishes a new filing deadline in
section 301(n)(2) of the CWA. The
statute requires submission of an FDF
application within 180 days after the
date that the limitation from which the
variance is sought is established or
revised: EPA considers the date of the
establishment of such limitation as the
date the guideline or standard is
published in the Federal Register. This is
consistent with the Conference Report
(132 H.10566. Oct. 15.1986) which states
that "an application under this section
shell be submitted within 180 days after
the publication of the initial guideline or
standard" and EPA's handling of
requests for relief under sections 301(c)
and 301(g) of the Act (40 CFR
122^1(m)(2)) within 270 days after
promulgation of an effluent guideline.
The statute is not clear when BAT and
BCT FDF variance requests are due for
those effluent guidelines established or
revised before February 4,1987. Such
facilities previously were guided by
EPA's regulations which, as stated
above, allowed FDF requests to be
submitted by the close of the public
comment period on the draft permit.
EPA will provide a period, not to exceed
180 days after publication of this final
rule, to allow such facilities to file a
request (Only facilities for which the
previously applicable filing deadline has
not passed can make these FDF
requests. The previously applicable
filing deadline is the close of the draft
permit's comment period.) This time
period mirrors the time period for filing
established by the statute, and will
allow those whose time period to file a
FDF variance request has not otherwise
passed an opportunity to file such a
request EPA has modified the second
sentence of the previously applicable
provision and designated the sentence
as § 122,21(m)(l)(ii). to indicate that FDF
variance requests shall explain how
applicable regulatory and/or statutory
criteria are satisfied.
The general pretreatment regulations
at 40 CFR 403.13(g) previously also
contained application deadlines for FDF
variance requests for indirect
dischargers. Therefore. EPA has made
' changes to these regulations, as well, to
reflect the statutory provision. Included
in these changes is the provision
requiring the submission of an
application within 180 days after the
date an applicable categorical •-
pretreatment standard is established or
revised. As indicated above. EPA
considers the date of the establishment
as the date the standard is published in
the Federal Register this is a change
from the previous regulatory
requirement which was based upon the
effective date of the categorical
pretreatment standard.
3. Availability of Section 301(g)
Variances
Section 302 of the WQA modified
section 301(g) of the CWA to limit
section 301(g) variance requests to five
specific non-conventional pollutants
(ammonia, chlorine, color, iron and total
phenols (4AAP) (when the
Administrator determines total phenols
to be a pollutant covered by CWA
section 301(b)(2)(F]). Additional non-
conventional pollutants may be added.
to this group by the Administrator in
response to petitions, under a new
listing procedure specified in section
301(g}(4) of the CWA. Section
122,21(m)(2) is being revised to reflect
this amendment. The current regulation
does not list the five specific non-
conventional pollutants and allows
variances "pursuant to section 301(g) of
the CWA. because of certain
environmental considerations, when
those requirements were based on
effluent guidelines." The WQA did not
revise application deadlines for section
301(g) applications which are based on
section 301(])(1)(B) of the CWA.
It has been brought to the Agency's
attention that Congress did not specify
how the time limit for filing the petitions
for listing referenced above was to be
applied to currently-pending 301(g)
variance requests. EPA is only aware of
one pending 301 (g) variance application
which requested relief for a non-
conventional pollutant which was not
one of the five listed pollutants. EPA
will deal with this, and any other
dischargers in a similarly situated
position, on a case-by-case basis.
The WQA specifies deadlines for EPA
decisionmaking. For example, section
301(j)(4) requires EPA to make a final
decision on 301(g) applications within
365 days of filing a submission under
301(g). Because an application may be
filed without being complete, the
deadline for decisionmaking could pass
without a complete application ever
being filed, it is only logical to imply a
deadline for completion of the
application before EPA's decision must
be made. Therefore. EPA is revising
S 122^1 (m)(2)(i)(B) to clarify that the
complete application must be filed in
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Federal Register / Vol. S4. No. 2 / Wednesday. Januory 4. 1989 / Rules and Regulations 251
sufficient time, as determined by the
Regional Division Director, to allow
compliance with the decision timing
requirement contained in section
301(j)(4) of the CWA. Generally, this
period will require submission of the
complete application no later than 180
days before the deadline for EPA to
issue a decision.
EPA notes that it proposed, but has
not to date finalized, substantive criteria
regulations (40 CFR Part 125, Subpart F)
for section 301(g) on August 7.1904 (49
FR 31462).
4. State Concurrence on Fundamentally
Different Factors and Section 301(g)
Variances
Sections 301(g) and 301 (n) of the CWA
require State concurrence on sections
301 (g) and 301(n) variance approvals.
The NPDES regulations at 5 12*.62(e!
are being revised to indicate that F.PA
will act on PDF or 301 (g) variance
requests which have been submitted to
the Slate Diieutor only after approval of
the request by the State Director. EPA
notes that in the case of a State that
does not have the NPDES program, the
variance request should be submitted to
EPA, which will then forward the
request to the appropriate State agency
for concurrence; State concurrence must
be obtained before EPA can approve
either a 30l(g) or 301(n) variance.
The general pretreatment regulation at
§ 403.13(k) does not authorize a State
Director to forward a FDF variance
request for en indirect discharger
without a recommendation of approval
which EPA interprets to be the State's
concurrence. Therefore, no change has
been made to this provision. EPA again
notes that in the case of a State that is
not approved to administer the
pretreatment program. State
concurrence must be obtained before
EPA will finally approve the FDF
variance request
E. Penalties
The WQA makes a number of
change* to the civil and criminal penalty
provisions of the CWA and adds an
administrative penalty provision. The
WQA adds CWA § 405 to the Hst of
sections for which criminal penalties are
applicable, and confirms the availability
of civil and criminal penalties for
violation* of pretreatment requirements.
Section 313 of the WQA emends CWA
§ 309(d) to provide that violators of
CWA sections 301.302,306.307.308,318
or 405. or any condition or limitation in
an NPDES permit or any requirement
imposed in a pretreatment program
approved under section 402[a)(3) or
402(b)(8). are subject to a maximum civil
penalty of "525.000 per day for«ach
violation." in contrast to the previous
maximum of "$10.000 per day of such
violation."
Section 312 of the WQA amends
section 309(cj(l) of the CWA, increasing
the penalty for any person who
negligently violates section 301. 302. 306.
307. 308, 318 or 405 of the Act, or any
permit condition or limitation
implementing any of these sections in an
NPDES permit, or any requirement
imposed in a pretreatment program
under section 402(a)(3) or 402(b][B).
Negligent violations of these provisions
arc subject to criminal penalties of
$2.500 to $25,000 per day of violation or
up to one year in prison, or both. A
second offense under these provisions
may be subject to penalties of not more
than S50.000 per day of violation or
imprisonment of up to two yuans. or
both.
Section 312 of the WQA also amends
section 309(c) of the CWA by incrcnsins
the criminal penalties for knowing
violations of sections 301, 302. 306, 307.
308, 318 or 405 of the Act, or any permit
condition or limitation implementing any
such, section in an NPDES permit, or any
requirement imposed in a pretreatment
program under section 402(a}(3) or
402(b)(8). Knowing violations of these
provisions are subject to criminal
penalties of S5.000 to S50.000 per day of
violation or up to three years in prison,
or both. A second offense under these
paragraphs may be subject to penalties
of not more than S100.000 per day of
violation or imprisonment of up to six
years, of both.
The WQA also creates a new class of
knowing violations. In the event of a
knowing violation placing another
person in imminent danger of death or
serious bodily injury, individuals are
subject to penalties of up to 15 yean in
prison or fines of up to $250.000, or both.
Organizations are subject to fines of up
to $1 million. Individuals committing a
second offense under this paragraph
may be subject to penalties of not more
than $500.000 or 30 years in prison, or
both. Organizations are subject to fines
of up to S2 million. Section
309(c)(3)(B)(iii) of the CWA defines -the
term "organization" for the purpose of •
this provision.
Section 314 of the WQA adds section
309(g) to the CWA. This provision
allows the Administrator to assess
administrative penalties against persons
violating section 301.302,306,307.308.
318 or 405 of this Act or any permit
condition or limitation implementing any
such section in a permit issued under
section 402. Section 314 also provides
administrative penalty authority for .
violations of State-issued permits under
CWA section 404. Today's rulemaking.
however, does not address penalty •____
authority for violations of section 404".
Section 314 creates two classes of
penalties. Penalties for Class I violations
are not to exceed S10.COO per violation,
with the maximum amount assessed not
to exceed S25.000. Penalties for Class II
.violations are not to exceed $10.000 per
day for each day during which the
violation continues, with the maximum
amount not to exceed S125.000.
EPA is revising § 122.41(a) (2) and (3)
to reflect these changes. Section 122.41
sets out standard conditions that must
be included in all permits. This language
merely puts permittees on notice as to
the applicable enforcement provisions of
the CWA.
Swtion 312(a)(4) of the WQA
increases the maximum penalty for
knowingly making any false statement!;
from six months to two years. The
existing fine of not more than S10.000 for
first time false statements remains
unchanged, but maximum penalties are
doubled for second offenses. EPA is
revising the language set out in
§ 122.41lji(5) to reflect the requirements
of thu WQA.
F. Anti-Backsiidaig
EPA regulations in \ 122.44(1) have
generally prohibited the issuance of e
permit with limitations less stringent
than those in the previous permit except
in certain circumstances. The primary
application of these rules has been to
prohibit backsliding from permits
written on a case-by-case basis under
CWA section 402(a){l) using best
professional judgment (BPJ) to less
stringent subsequently promulgated
effluent limitations guidelines (see •
S 1=2.44(0(2)).
In section 404 of the WQA Congress
added section 402(o) to the CWA to
clarify the Congressional intent that
backsliding from BPJ limits to such
subsequent guidelines was prohibited.
Congress also listed several exceptions
to the prohibition. In general, these
exceptions tracked the existing NPDES
anti-backsliding rules applicable to BPJ
permits. However, some of the
exceptions have been changed or •
. limited by the amendment and today's
rulemaking is revising SB 122.44(11(2)
and 122.C2(a) to reflect these differences.
Specifically. {122.62(a)(15) which
allowed a BPJ permit to be modified dun
to excessive costs is not authorized by
the statute end is being deleted. The
other exceptions in \ 122.44(1)(2) an
being conformed to the amendment In
addition. EPA is adding the limitation
from CWA section 402(o)(3) prohibiting
the issuance of a permit less stringent
than existing effluent guidelines or
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252 Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1989 / Rules and Regulations
applicable State water quality
standards.
The WQA also adds a prohibition
against backsliding from water quality-
based permits except in limited
circumstances. Today's revision doea
net implement this prohibition. EPA
plans to propose rules to implement the
prohibition against backsliding from
water quality-based permit limits in the
near future. EPA's regulation at
5122.44(1)(1) restricts backsliding in
cases not covered by the WQA
amendments. EPA is not planning any
rulemaking to revise this broader
prohibition.
G. Inspection and Entry
In Section 310 of the WQA (amending
§ 308 of the CWA) Congress confirms
EPA's practice of allowing contractors
to represent the Administrator for
purposes of entering and inspecting
permitted facilities. The rule
promulgated today revises EPA's
existing standard permit conditions on
entry and inspection under Section 308
(S 122.41(1) of the regulations) to insert
the statutory language from Section 310.
H. Sewage Sludge ...
*' Previously, the CWA regulated sludge
through the NPDES program only when
the sludge was discharged into surface
water from a point source. In the case of.
publicly owned treatment works, the.
CWA prohibited disposal of sludge
except in accordance with national
criteria controlling disposal Section 406
of the WQA amends section 405 of the
CWA to expand the applicability of the
sewage sludge criteria promulgated
under this section to include sludge from
' any treatment works that treats — •
domestic sewage, whether publicly or -
privately owned. Further, the -.-•-•-
amendments direct that any NPDES
permits issued must include the sewage
•ludge criteria. Today's rulemaking
revises existing { 122.44(o) by inserting
a phrase to specify all treatment works
treating domestic sewage are subject to
• national regulations controlling its
disposal Two future rulemakings will
establish EPA's sludge management
•program. One rulemaking will propose-
technical standards for the use and
disposal of sewage sludge; the other will
establish sludge permitting requirements
and requirements for approving state
sludge management programs. A
proposal for this second rulemaking -
appeared at S3 FR 7642 (March 9.1988).
I. Partial NPDES Programs
Section 403 of the WQA amends
CWA section 402 to allow States to seek
partial NPDES approval in certain
circumstances. Partial approval is
approval of a program which does not
include NPDES.-pretreaL-nent and
federal facilities authority over all
facilities in the State subject to these
programs. The amendment provides for
two types of partial program approval.
The first is intended for circumstances
where jurisdiction over ail direct and
indirect wastewater discharges in the
State is split between two or more State
agencies. The amendment requires the.
program to cover at a minimum
administration of a major category of
discharges into the navigable waters of
the State. The partial program must abo
represent a significant and identifiable
part of the State program required by
CWA § 402(b). and encompass all
discharges under the jurisdiction of the
State agency or agencies. The second
type of partial program authorized is the
"partial and phased" program. This
requires initial approval of a major
component of a State program (which
also must represent a significant and
identifiable part of the State program).
with the State assuming the remaining
program elements in phases. A State
choosing this latter approach must
submit a plan for assumption of the full
program by a specified date not more •
than 5 years after submission of the
partial program. To distinguish between
the two types of partial programs
authorized by the WQA. EPA will refer
to the first as "partial" and the latter as
"phased" in this and subsequent rules.
The existing regulation at § 123.1(g)
expressly prohibits EPA from approving
partial programs. As a first step towards
implementing the amendment today's
rule deletes the existing regulatory
provision prohibiting partial programs in
S 123.1(g) and revises that provision to
clarify that EPA will not accept partial •
or phased program submissions. —
EPA will propose additional rules that
will explain how a State can apply for .-
and receive partial or phased program
authority in a future rulemaking.
/. 3O4(1J Toxic Control Strategies
Section 308 of the WQA amends
CWA section 304 by creating a new
section 304(1). This provision requires
States to develop lists of impaired
waters, identify point sources and
amounts of pollutants they discharge
that cause violations of water quality
standards and develop and implement
individual control strategies for each
such point source. The Agency is
preparing a companion rulemaking that
will address more completely the
requirements of § 304(1).
1. Identification of Polluted Waters
Paragraph (A) of Section 304(1)(1)
requires States to submit to EPA two
lists of waters. These lists include those
waters within the State which, after
application of BAT or 3CT. cannot
reasonably be anticipated to attain or
maintain (i) State water quality
standards adopted under section
303(c)(2)(B). due to toxic pollutants: or.
(ii) the water quality goals of the CWA.
The list prepared under paragraph
(A}(ii) includes all waters affected by
toxic, conventional, and non-
conventional pollutants from point and '•
non-point sources. It includes all waiers
whose designated uses are less than the
fishnble/svvimmable goals of the CWA
as well as those that are not meeting
water quality standards for established.
designated uses. The list prepared under
paragraph (A)(i) is a subset of the list
required by paragraph (A](ii) and
identifies only segments where
promulgated State water quality
standards are not being met due to toxic
pollutants. These two lists must be
submitted to EPA not later than
February 4.1989.
Paragraph (B) of section 304(1)(1)
requires each State to submit a list of
waters for which the State does not
. expect the "applicable standard" under -
section 303 of the CWA to be achieved . .
after the requirements of technology-
based treatment standards are met due
entirely or substantially to the point
source discharge of any toxic pollutants
listed under section 307(a) of the CWA.
This list is also a subset of the (A)(ii)
list
Paragraph (C) of section 304(1)(1)
requires States to determine, for each
water body on the paragraph (B) list the
'specific point source discharges of toxic
pollutants believed to be preventing or .
impairing water quality. The States must
also identify-the amount of each
pollutant discharged by each point
• source identified in paragraph (C). Like
the three lists developed under
paragraphs (A) and (B). the point : .
sources identified under paragraph (C)
must be submitted to EPA no later than
February 4.1989.
Paragraph (D) of section 304(1)(1)
requires States to submit individual .
control strategies for each segment •.
identified on the list required by
paragraph (B) to EPA by February 4.
1989. The amendment requires that
these control strategies contain effluent
limitations which will result in
achievement of the applicable water .
quality standard as soon as possible, but
in no event later than 3 years after
establishment of the strategy (June 4.
1992 at the latest). At section 304(l)(2).
. the amendment requires the
Administrator to approve or disapprove
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Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1989 / Rules and Regulations 253
control strategies submitted by States
by no later than June 4,1989.
Today's ruiemakir.g codifies the
requirements contained in section
304(1)(1) (A), (B) and (C) at S 130.10 of
the regulations. Section 304(1) (1)(D) and
(2) is codified by today's rulemaking in a
new section of the regulations at
§ 123.46.
In order to meet the deadline in
paragraphs (A), (B) and (C) of section
304(1)(1), a draft final EPA guidance
document "Implementation of
Requirements under Section 304(1) of the
Clean Water Act As Amended" (Sept.
1987) allows States to use existing and
readily available data to develop the
required lists of waters. At the same
time. States should continue to gather
new data under existing programs
where important information gaps exist.
The toxics control program will continue
to address, emerging problems and
ensure prevention of water quality
impairment due to toxicity even after
section 304(1] deadlines have been met.
2. EPA Review of Individual Control
Strategies
Section 304(1)(3) addresses EPA
review of State individual control
strategies and is codified at § 123.46(b).
Section 304(1)(3) requires EPA to
implement the requirements of section
304(1)(1) where a State fails to submit a
control strategy or where EPA does not
approve a control strategy submitted by
the State. The statute requires EPA to
perform these tasks within one year and
120 days after the date States are
required to submit individual control
strategies to-EPA. Thus, where EPA •'
action is required under this provision, "
the Agency must carry out these tasks
by June 4.1990.
Where EPA implements the
requirements of section 304(1}(1J. EPA • •
must also consider listing those-waters .
for which any person submits a petition •
for listing. Today's rule adds a new
provision at S 123.46 to implement this
requirement • • • • • • •
, j . ..
K. New Source—Preconstruction Ban
EPA's existing regulation at -. ,
S 12T29(c) (4) and (5) addresses - .
requirements for new sources and new .:
dischargers. Section {q)(4)(ij £rohibit&.. 4 »
on-site construction of a new. .source, for .
which an Environmental.Impact .r
Statement (EIS). under, the National. ,-- .
Environmental Policy Afit (NEPA) a ..
required-prior, to final.Agency-.acUon in•...
issuing an NPDES permit.-Section (c)(51., .
provides that violation of the on-site .,.....
construction ban ^grounds for.permit.j .-.
denial..--....'- _;;,'.-.;.- ;-. .:..« ..•;.
The United States.Court .pf Appeals ..-
for the District of Columbia Circuit
recently ruled on the validity of the on-
site construction ban for new sources in
Natural Res. -res Defense Council v.
Environment:! Protection Agency, 822 F.
2d 104 (D.C. Cir., 1987). The court held
that the construction ban exceeded the
agency's authority under either the
Clean Water Act or NEPA, and that EPA
therefore lacks authority to ban .
construction of new sources pending
permit issuance. Accordingly, the court
granted the petition for review of this
issue.
In response to the decision of the
Court of Appeals for the D.C. Circuit
EPA is removing § 12Z29(c) (4) and (S)
from the existing NPDES regulations.
EPA will address these issues in
subsequent rulcmakinq.
L. Corrections
Today's rulemaking also corrects
inadvertent omissions, erroneous
internal cross-references, and
typographical errors in the regulations.
HI. Regulator}' 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
(R1A) in connection with even,' major
rule. The regulation.promulgated today
is not a major rule, and therefore is not "
subject to the Regulatory Impact ...
Analysis (RIA) requirement This rule =
does not make changes in the existing
law, but merely inserts the WQA
provisions into the rules. This package •
does not incur more than $100 million in"
costs and fails to qualify as a "major.".. •
rule under that standard.
these amendments will not cause a
significant impact on small entities..,
C. Paperwork Reduction Act
The Paperwork Reduction Act is
intended to minimize the reporting
burden on the regulated community as
well as minimize the cost of Federal
information collection and
dissemination. There are no information
collection requirements triggered by this
rule except for the listing requirements
for State waters required by CWA
section 304(1}(1) and implemented in
today's rulemaking at 40 CFR 123.46.
The public will have the opportunity to
comment on this information collection
requirement in a companion rulemaking
more fully implementing the . ...
requirements of section 304(1)..
List of Subjects .,-.-••
40 CFR Part 122
Administrative practice and
procedure; Air pollution control:
Hazardous materials; Reporting and
recordkeeping requirements; Waste
treatment and disposal; Water pollution
control; Water supply; Confidential . ,
business information.
40 CFR Part 123
Hazardous materials; Indians-lands;
Reporting and recordkeeping
requirements; Waste treatment and
disposal; Water pollution control* Water
supply; Intergovernmental relations;
Penalties;. Confidential business
information. ' • •.-.., •.-•-•:
40 CFR Part 124 ' '"V ."]
Hazardous materials; Waste
treatment and disposal: Water-pollution •
control; Water supply, Indians-lands. '
40 CFR PCai'.12S...- :,'-_ ".„„.; , ....'."..; ..'...'-=,
B. Regulator)'Flexibility Avt: •• •*••• ' •••••
The Regulatory Flexibility Act (5 ' " '
U.S.C. 601 et sec.) requires each Federal
agency to prepare a Regulatory
Flexibility Analysis (RFA) when it
promulgates a final rule. (5 U.S.C. 604).
The purpose of the RFA is to describe
the effeqts the .regulations will have on ,
small entities and.examirie. alternatives.,.
that may reduce, tjiese effects. EPA, hns .'.
determined the. Agency does notiave.tpi.
prepare a RFA to determine .the^mpact,...
of today's jegulatipn.pn State NPDES . .
Watfer'pbllutibn cdntrot Water'- ;!-'-:- ''";
treatment and disposal '•'••"'••"' "'."
4O CFR Part 130 .
Water quality standards.
40 CFR Part 403
Confidential business information-...
Reporting.and recordkeeping •,, ... ....,.-.:-.
requirement* .Waste .treatment and. : - .
disposal:. -Water pollution control.. • :-..-
Date: December 18; 1988. ...... :••• " '" "" •" '
industries because taday's.rule is.merely
a technical amendment implementing.......
those provisions in the 1987 WQA that'
do not require additional interpretation :
or comments. EPA has concluded that •.
Administrator.
For the reasonrsetout-in'the —-"''*• "•
Preamble.jChapter I-ef Title 40oLthe ::
Code ofcthe Federal Regulations is. .-•-•;.':
amended- as follows:. .- -, "" '""." :-- >"••«.
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254 Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1909 / Rules and Regulations
PART 122— EPA ADMINISTERED
PERMIT PROGRAMS; THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for Part 122
continues to read as follows:
Authority. The Clean Water Act, 33 U.S.C
1251 et seq.
2. Section 122^ is amended by
revising the definition of "point source"
and "state" to read as follows:
Definitions.
Point source means any discernible.
confined, and discrete conveyance,
including but not limited to, any pipe.
ditch, channel, tunnel, conduit, well.
discrete fissure, container, rolling stock,
concentrated animal feeding operation.
landfill leachate collection system,
vessel or other floating craft from which
pollutants are or may be discharged.
This term does not include return flows
from irrigated agriculture or agricultural
storm water runoff. (See § 122.3).
* ' * * * *
State means any of the 50 States, the
District of Columbia. Guam, the
Commonwealth of Puerto Rica the
Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana
Islands, and the Trust Territory of the
Pacific Islands.
• • • • •
3. Section 122.3 is amended by
revising paragraph (e) to read as
follows:
§1223 Exclusions.
• • • • •
(e) Any introduction of pollutants
from non point-source agricultural and
silvicultural activities, including storm
water runoff from orchards, cultivated
crops, pastures, range lands, and forest
lands, but not discharges from
concentrated animal feeding operations
as defined in § 12? ?3. discharges from
concentrated aquatic animal production
facilities as defined in § 12T24.
discharges to aquaculture projects as
defined in § 12Z25. and discharges from
silvicultural point sources as defined in
4. Section 12Z21 is amended by
revising paragraphs (m)(l). (m](2),
(m)(3). (m)(4). (n)[2) and (o) to read as
follows:
S 12271 Application for a permit
(applicable to State programs, § 123.25)
* • • • •
(m) * * •
(1) Fundamentally different factors.
(i) A request for a variance based on
the presence of "fundamentally different
factors" from those on which the
effluent limitations guideline was based
shall be filed as follows:
(A) For a request from best
practicable control technology currently
available (BPT), by the close of the
public comment period under § 124.10.
(E) For a request from best available
technology economically achievable
(BAT) and/or best conventional
pollutant control technology (BCT), by
no later than:
[1] July 3,1989. for a request based on
an effluent limitation guideline
promulgated before February 4,1987, to
the extent July 3.1989 is not later than
that provided under previously
promulgated regulations: or
(2} 180 days after the date on which
an effluent limitation guideline is
published in the Federal Register for a
request based on an effluent limitation
guideline promulgated on or after
February 4.1987.
(ii) The request shall explain how the
requirements of the applicable
regulatory and/or statutory criteria have
been met
(2) Non-conventional pollutants. A
request for a variance from the BAT
requirements for CWA section
301(b)(2)(F] pollutants (commonly called
"non-conventional" pollutants) pursuant
to section 301(c) of CWA because of the
economic capability of the owner or
operator, or pursuant to section 301(g) of
the CWA (provided however that a
§ 301(g) variance may only be requested
for ammonia: chlorine; colon iron; total
phenols (4AAP) (when determined by
the Administrator to be a pollutant
covered by section 301(b)(2)(F)) and any
other pollutant which the Administrator
lists under section 301(g)(4) of the CWA)
must be made as follows:
(i) For those requests for a variance
from an effluent limitation based upon
an effluent limitation guideline by.
(A) Submitting an initial request to the
Regional Administrator, as well as to
the State Director if applicable, stating
the name of the discharger, the permit
number, the outfall numbers), the
applicable effluent guideline, and
whether the discharger is requesting a
section 301(c) or section 301 (g)
modification or both. This request must
have been filed not later than:
(J) September 25.1978. for a pollutant
which is controlled by a BAT effluent
limitation guideline promulgated before
December 27,1977; or
(2} 270 days after promulgation of an
applicable effluent limitation guideline
for guidelines promulgated after
December 27,1977; and
(B) Submitting a completed request no
later than the close of the public
comment period under § 124.10 •
demonstrating that the requirements of
§ 124.13 and the applicable requirements
of Part 125 have been met.
Notwithstanding this provision, the
complete application for a request under
section 301[g) shall be filed 180 days
before EPA must make a decision
(unless the Regional Division Director
establishes a shorter or longer period).
(ii) For those requests for a variance
from effluent limitations not based on
effluent limitation guidelines, the
request need only comply with
paragraph (m)(2)(i)(B) of this section and
need not be preceded by an initial
request under paragraph (m)(2)(i)(A) of
this section.
(3) Delay in construction cfPOTW.
An extension under CWA section
301(i)(2) of the statutory deadlines in
section 301 (b)(l)(A) or (b)(l)(C) of the
CWA based on delay in completion of a
POTVV into which the source is to
discharge must have been requested.on
or before June 26.1978 or 180 days after
the relevant POTW requested an
extension under paragraph (n)(2) of this
section, whichever is later, but in no
event may this date have been later than
January 30.1988. The request shall
explain how the requirements of 40 CFR
Part 125, Subpart ] have been met
(4) Innovative technology. An
extension under CWA section 30100
from the statutory deadline of section
301(b)(2)(A) for best available
technology or 301(b)(2)(E) for best
conventional pollutant control
technology, based on the use of
innovative technology may be reqested
no later than the close of the public
comment period under $ 124.10 for the
discharger's initial permit requiring
compliance with section 301(b)(2)(A) or
301(b)(2)(E). The request shall
demonstrate that the requirements of
§ 124.13 and Part 125, Subpart C have
been met.
(n) • * *
.. (2) Delay in construction. An
extension under CWA section 301(i)(l)
of the statutory deadlines in CWA
section 301 (b)(l)(B) or (b)(l)(C) based
on delay in the construction of the
POTW must have been requested on or
before August 3,1987.
(3) * * *
(o) Expedited variance procedures
and time extensions. (1)
Notwithstanding the time requirements
in paragraphs (m) and (n) of this section.
the Director may notify a permit
applicant before a draft permit is issued
under { 124.6 that the draft permit will
likely contain limitations which are
eligible for variances. In the notice the
Director may require the applicant as a
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Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1S89 / Rules and Regulations 255
condition of consideration of any
potential variance request to submit a
request explaining how the requirements
of Part 125 applicable to the variance
have been met and may require its
submission within a specified
reasonable time after receipt of the
notice. The notice may be sent before
the permit application has been
submitted. The draft or final permit may
contain the alternative limitations which
may become effective upon final grant
of the variance.
(2) A discharger who cannot file a
timely complete request required under
paragraph (m)(2)(i)(3) or (mj(2Hii) of thi»
section may request an extension. The
extension may be granted or denied at
the discretion of the Director.
Extensions shall be no more than fi
months in duration.
* • • • •
5. Section 122.26 is added to read
§122.25 Storm wzter discharges
(applicable to State NPDES programs, see
Section 123.25).
(a) Permit requirement. (1) Prior to
October 1,1992, a permit shall not be
required for a discharge composed
entirely of storm water, except for.
(i) A discharge with respect to which •
a permit has been issued prior to
February 4.1987;
(ii) A discharge associated with
industrial activity,
(iii) A discharge from a municipal
separate storm sewer system serving a
population of 25C.OOO or more:
(iv) A discharge from a municipal
separate storm sewer system serving a
population of 100,000 or more but less
than 250,000;
(v) A discharge which the
Administrator or the State, as the case
may be. determines contributes to a
violation of a water quality-standard or
is a significant contributor of pollutants
to waters of the United States.
(2) Permits for discharges from
munic- - separate storm sewers may
be issv::-.. on a system or jurisdiction-
wide basis.
(3) The Administrator shall not
require a permit under this section, nor
shall the Administrator directly or
indirectly require any State to require a
permit for discharges of storm water
runoff from mining operations or oil and
gas exploration, production, processing,
or treatment operations or transmission
facilities, composed entirely of flows
which are from conveyances or systems
of conveyances (including but not
limited to pipes, conduits, ditches, and
channels) used for collecting and
conveying precipitation runoff and
which are not contaminated by contact
with or do not come into contact with •
any overburden, raw materiel.
intermediate products, finished product,
byproduct, or waste products located on
the site of such operations.
(b) [Reserved).
$122£9 [Amended]
6. Section 122.29 is amended by
removing subparagraphs (c) (4) and (5).
7. Section 122.41 is amer.dcd by
revising paragraphs (a)(2), (i)
introductory text and (j)(5) and by
adding paragraph !a)(3) to read as
follows:
{t22.41 Conditions applicable to all
permits (applicable to State procrsms. see
$ 123.25)
* * • • •
la) * ' *
(2) The Clean Water Act provides that
any person who violates section 301,
302. 306. 307. 308, 31S or 405 of the Act,
or any permit condition or limitation
implementing any such sections in a
permit issued under section 402, or any
requirement imposed in a pretreatment
program approved under sections
402(a)(3) or 402(b)(8) of the Act is
subject to a civil penalty not to exceed
$25,000 per day for each violation. The
Clean Water Act provides that any
person who negligently violates sections
301,302.306,307,308,318, or 405 of the
Act, or any condition or limitation
implementing any of such sections in a
permit issued under section 402 of the
Act or any requirement imposed in a
pretreatment program approved under
section 402(a)(3) or 402lb)(8) of the Act
is subject to criminal penalties of $2.500
to 525,000 per day of violation, or
imprisonment of not more than 1 year,
or both. In the case of a second or
subsequent conviction for a negligent
violation, a person shall be subject to
criminal penalties of not more than
$50.000 per day of violation, or by
imprisonment of not more than 2 years,
or both. Any person who knowingly •.
violates such sections, or such • '•
conditions or limitations is subject to
criminal penalties of $5.000 to $50,000
per day of violation, or imprisonment for
not more than 3 years, or both. In the
case of a second or subsequent -•
conviction for a knowing violation, a
person shall be subject to criminal
penalties of not more than $100.000 per
day of violation, or imprisonment *of not
more than 6 yean, or both. Any person
who knowingly violates section 301,302.
303.306,307,308,318 or 405 of the Act
or any permit condition or limitation
implementing any of such sections in a
• permit issued under section 402 of the
Act and who knows at that time that he
thereby places another person in
imminent danger of death or serious
bodily injury, shall, upon conviction, be
subject to a fine of not more than "-
S250.000 or imprisonment of not more
than 15 yeurs, or both. In the case of a
second or subsequent conviction for a
knowing endangerment violation, a
person shall be subject to a fine of not
.more than £500.000 or by imprisonment
of not more than 30 years, or both. An
organization, as defined in section
309(c)(3)(B)fiii) of the CWA, shall, upon
conviction of violating the imminent
danger provision, be subject to a fine of
not more than Si.000,000 and can be
fined up to S2.000.000 for second or
subsequent convictions.
(3) Any person may be assessed an
administrative penalty by the
Administrator for violating section 301,
302, 306. 307, 308, 318 or 405 of this Act,
or any permit condition or limitation
implementing any of such sections in a
permit issued under section 402 of this - -
Act. Administrative penalties for Class 1
violations are not to exceed SlO.OOO per
violation, with the maximum amount of
any Class I penalty assessed not to
exceed $25,000. Penalties for Class II
violations are not to exceed $10,000 per
day for each day during which the
violation continues, with the maximum
amount of any Class II penalty not to
exceed $125.000.
• * * • *
(i) Inspection andenuy. The permittee
shall allow the Director, or an
authorized representative (including an
authorized contractor acting as a
representative of the Administrator),
upon presentation of credentials and
other documents as may be required by
law. to:
(j)' * '
(5) The Clean Water Act provides that
any person who falsifies, tampers with,
or knowingly renders inaccurate any
monitoring device or method required to
be maintained under this permit shall
upon conviction, be punished by a fine
of not more than SlO.OOO. or by .
imprisonment for not more than 2 years,
or both. If a conviction of a person is for
a violation committed after a first
conviction of such person under this
paragraph, punishment is a fine of not
more than $20,000 per day of violation,
or by imprisonment of not more than 4
vcars, or both.
8. Section 122.44 is amended by
revising paragraphs (1}(2) and (o) to read
as follows:
-------
256
Federal Register / Vol. 54. No. 2 / Wednesday, January 4. 1989 / Rules and Regulations
5 122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPOES programs, see
§123.25).
• * » • •
(I)***
(2) In the case of effluent limitations
established on the basis of Section
402(a)(l)(B) of the CWA. .a permit may
not be renewed, reissued, or modified on
the basis of effluent guidelines
promulgated under section 304(b)
subsequent to the original issuance of
such permit to contain effluent
limitations which are less stringent than
the comparable effluent limitations in
the previous permit. .
(i) Exceptions—A permit with respect
to which paragraph (1)(2) of this section
applies may be renewed, reissued, or
modified to contain a less stringent
effluent limitation applicable to a
pollutant, if—
(A) Material and substantial
alterations or additions to the permitted
facility occurred after permit issuance
which justify the application of a less
stringent effluent limitation;
(B)(J) Information is available which
was not available at the time of permit
issuance (other than revised regulations,
guidance, or test methods) and which
would have justified the application of a
less stringent effluent limitation at the
time of permit issuance; or
(2) The Administrator determines that
technical mistakes or mistaken
interpretations of law were made in
issuing the permit under section
402(a)(l)(b):
(C) A less stringent effluent limitation
is necessary because of events over
which the permittee has no control and
for which there is no reasonably
available remedy;
(D) The permittee has received a
permit modification under section 301(c).
301 (g). 301(h). 301(i), 301 (k), 301(n). or
316(a):or
(E) The permittee has installed the
treatment facilities required to meet the
effluent limitations in the previous
permit and has properly operated and
maintained the facilities but has
nevertheless been unable to achieve the
previous effluent limitations, in which
case the limitations in the reviewed.
reissued, or modified permit may reflect
the level of pollutant control actually
achieved (but shall not be less stringent
than required by effluent guidelines in
effect at the time of permit renewal.
reissuance. or modification).
(ii) Limitations. In no event may a
permit with respect to which paragraph
(1){2) of this section applies be renewed,
reissued, or modified to contain an
effluent limitation which is less stringent
than required by effluent guidelines in
effect at the time the permit is renewed,
reissued, or modified. In no event may
such a permit to discharge into waters
be renewed, issued, or modified to
contain a less stringent effluent
limitation if the implementation of such
limitation would result in a violation of
a wutcr quality standard under section
303 applicable to such waters.
• • • « •
(o) Sewage sludge. Requirements
under section 405 of CWA governing the
disposal of sewage sludge from publicly
owned treatment works or any other
treatment works treating domestic
sewage for any use for which
regulations have been established, in
accordance with any applicable
regulations.
§122.62 lAmenoed]
9. Section 122.62 is amended by
amending paragraph (a) to remove
existing paragraph (15); and
rcdesignating existing paragraphs (16).
(17). and (IB) as (15). (16), and (17)
respectively.
PART 123— STATE PROGRAM
REQUIREMENTS
10. The authority citation for Part 123
continues to read as follows:
Authority: The Clean Water Act 33 U.S.C.
11. Section 123.1 is amended by
revising paragraph (g) to read as
follows:
§ 123.1 Purpose and scope.
• • • • *
(g)(l) Except as may be authorized
pursuant to paragraph (g)(2) of this
section or excluded by 5 1?79. the State
program must prohibit all point source
discharges of pollutants, all discharges
into aquaculture projects, and all
disposal of sewage sludge which results
in any pollutant from such sludge
entering into any waters of the United
States within the State's jurisdiction
except as authorized by a permit in
effect under the State program or under
section 402 of CWA. NPDES authority
may be shared by two or more State
agencies but each agency must have
Statewide jurisdiction over a class of
activities or discharges. When more
than one agency is responsible for
issuing permits, each agency must make
a submission meeting the requirements
of § 123.21 before EPA will begin formal
review.
(2) A State may seek approval of a
partial or phased program in accordance
wi th section 402(n) of the CWA.
12. Section 123.46 is added to read as
follows: .
§ 123.46 Individual control strategies.
(a) Not later than February 4. 1989,
each State shall submit to the
Administrator for review, approval, and
implementation an individual control
strategy for each waterbody identified
by the State pursuant to section
304(1)(1)(B) of the Act which will
produce a reduction in the discharge of
toxic pollutants from the point sources
identified under section 304(I)(1)(C)
through the establishment of effluent
limitations under section 402 of the
CVVA and water quality standards
under section 303(c)(2)(B) of the CWA.
which reduction is sufficient in
combination with existing controls on
point and nonpoint sources of pollution.
to achieve the applicable water quality
standard as soon as possible, but not
later than three years after the date of .
the establishment of such strategy.
(b) The Administrator shall approve
or disapprove the control strategies
submitted by any State pursuant to
paragraph (a) of this section, not later
than June 4. 1989. If a State fails to
submit control strategies in accordance •
with paragraph (a) of this section or the
Administrator does not approve the
control strategies submitted by such
State in accordance with paragraph (a).
then, not later than June 4. 1990. the
Administrator in cooperation with such
State and after notice and opportunity
for public comment shall implement the
requirements of CWA section 304(1)(1) in
such Slate. In the implementation of
such requirements, the Administrator
shall, at a minimum, consider for listing
under CWA section 304(1)(1) any
navigable waters for which any person
submits a petition to the Administrator
for listing not later than October 1. 1989.
PART 124— PROCEDURES FOR
DECISiONMAKING
13. The portion of the authority
citation for Part 124 relating to the Clean
Water Act continues to read as follows:
Authority: The Clean Water Act 33 U.S.C
14. Section 124.62 is amended by
revising paragraph (e) introductory text
to read as follows:
{124.62 Decision on variances.
• • • • •
(e) The State Director may deny or
forward to the Administrator (or his
delegate) with a written concurrence a
completed request for
-------
Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1989 / Rules and Regulations 257
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
15. The authority citation for Part 125
continues to read as follows:
Authority: The Clean Water Act. 33 U.S.C.
1251 el set)., unless otherwise noted.
16. Section 125.3 is amended by
revising paragraph (a)(2) to read as
follows:
§125.3 Technology-tossed treatment
requirements In permits.
• « • * •
la)' ' '
(2J For dischargers other than POTVVs
except as provided in § 122^9(d).
effluent limitations requiring:
(i) The best practicable control
technology currently available IBPT)—
(A) For effluent limitations
promulgated under Section 304(b) after
January 1.1932 and requiring a level of
control substantially greater or based on
fundamentally different control
technology than under permits for an
industrial category issued before such
date, compliance as expeditiously as
practicable but in no case later than
three years after the date such
limitations are promulgated under
section 304(b) and in no case later than
March 31.1989:
(E) For effluent limitations established
on a case-by-case basis based on Best
Professional Judgment (BPJ) under
Section 402la)(l)(B) of die Act in a
permit issued after February 4.1987.
compliance as expeditiously as
practicable but in no case later than
three years after the date such
limitations are established and in no
case later than March 31.1989.
(C) For all other BPT effluent
limitations compliance is required from
the date of permit issuance.
(ii) For conventional pollutants, the
best conventions! pollutant control
technology (BCTV—
(A) For effluent limitations
promulgated under Section 3041 b). as
expeditiously as practicable but ia no
case later than three years after the date
such limitations are promulgated under
section 304(b), and in no case later than
March 31.1909.
(E) For effluent limitations established
on a case-by-case (BPJ] basis under
Section 402(a)(1)(B) of the Act in a
permit issued after February 4.1987.
compliance as expeditiously as
practicable but in no case later than
three years after the date such
limitations are established and in no
case later than March SI. 1989:
(iii) For all toxic pollutants referred to
in Committee Print No. 95-30. House
Committee on Public Works and
Transportation, the best available
technology economical!' .-.hievable
(BAT}- ..
(A) For effluent limital.^.is
established under Section 304(b), as
expeditiously as practicable but in no
case later than three years after the date •
such limitations arc promulgated under
section 304(b). and in no case later than
March 31.1989.
(B) For permits issued on a case-by-
case (BPJ) basis under section
402(a)(l}(B) of the Act after February 4.
1987 establishing BAT effluent
limitations, compliance is required as
expediiiously js pnn.tir.abie but in no
case later than ihree years tifter the date
such liir.iliKions, are promulgated under
section 304;h|, and in no case later than
March 31.1909.
(iv) For all toxic pollutants other than
those listed in Committee Print No. 95-
30. effluent limitations based on BAT—
(A) For effluent limitations
promulgated under Section 304{b)
compliance is if quired as expeditiously
as practicable, but in no case later than
three years after the date such
limitations arc promulgated under
section 304(b) and in no case later than
March 31.1989.
(BJ For permits issued on a case-by-
case (BPJ) basis under Section
402(a)(l)fB) of the Act after February 4.
1987 establishing BAT effluent
limitations, compliance is required as
expeditiously as practicable but in no
case later than 3 years after the date
such limitations are established and in
no case later than March 31.19a9.
(v) For all pollutants which are neither
toxic nor conventional pollutants.
effluent limitations based on BAT—
(A) For effluent limitations
promulgated under section 304(b).
compliance is required as expeditiously
as practicable but in no case later than 3
years after the date such limitations are
established and in no case later than
March 31.1989.
(E) For permits issued on a case-by-
cttse (BPJ | basis under Section
402|H)I1)(B) of the Act after February 4.
1987 establishing BAT effluent
limitations compliance is required as
expeditiously as practicable but in no
case later than three years after the date
such limitations are established and in
no case later than March 31.1989.
* • * • *
17. Section 12521 is revised to read as
follows:
S 125.21 Statutory authority.
Section 301(k) provides that the
Administrator (or a State with an
approved NPDES program, in
consultation with the Administrator)
may grant a compliance extension,.^-
BAT limitations to a discharger which
installs an innovative technology. The
innovative technology must produce
either a significantly greater effluent
reduction than that achieved by the best
available technology economically
. achievable (BAT) or the same level of
treatment as BAT at a significantly
lower cost. The Administrator is
authorized to grant compliance
extensions to a date no later than 2
years after the date for compliance with
the effluent limitation which would
otherwise he applicable.
18. Section 125.23 is amended by
revising the introductory paragraph to
rend us follows:
§ 125.23 Request tor compliance
extension.
The Director shall grant a compliance
extension to a date no laser ihau 2 years
after the dale for compliance with the - -
effluent limitation which would
otherwise lie applicable, to a discharger
that demonstrates:
« • • • •
19. Section 125.24 is amended by
revising the introductory paragraph and
paragraph (b) to read as follows:
§12524 Permit conditions.
The Director may include any of the
following conditions in the pennit of a
discharger to which H compliance
extension beyond the otherwise
npp'.icable compliance date is granted:
"(«)' ' '
(b) Alternative BAT limit; Jons that
the discharger must meet a? soon as
possible and not later than 2 years after
the date for compliance with the effluent
limitation which would otherwise be
applicable if the innovative technology
limitations that are more stringent than
BAT are not achievable.
20. Section 125.27 is amended by
revising paragraph (a) to read as
follows:
S 125.2? Procedures.
(a) The procedure for requesting a
section 301(M compliance extension is
contained in § J 124.62 and 124.63. In
addition, notwithstanding § 12221(m)(4).
the Director may accept applications for
such extensions after the close of the
public comment period on the permit if
the applicant can show that information
necessary to the development of the
innovation was not available at the time
the permit was written and that the
innovative technology can be installed
and operated in time to comply no later
than 2 years after the date for
compliance with the effluent limitation
which would otherwise be applicable.
-------
253 Federal Register / Vol. 54. No. 2 / Wednesday. January 4. 1989 / Rules and Regulations
PART 130—WATER QUALITY
PLANNING AND MANAGEMENT
21. The authority citation for Part 130
continues to read as follows:
Authority: The Clean Water Act. 33 U.S.C
1251 etseq.
ZZ. Section 130.10 is amended by
adding paragraph (d) to read as follows:
§ 130.10 State suomtttals to EPA.
• • • * *
(d) Not later than February 4,1989.
each State shall submit to EPA for
review, approval, and implementation—
(1) A list of those waters within the
State which after the application of
effluent limitations required under
section 301[b)(2) of the CWA cannot
reasonably be anticipated to attain or
maintain (i) water quality standards for
such waters reviewed, revised, or
adopted in accordance with section
303{c)(2)(B) of the CWA, due to toxic
pollutants, or (ii) that water quality
which shall assure protection of public
health, public water supplies,
agricultural and industrial uses, and the
protection and propagation of a
balanced population of shellfish, fish
and wildlife, and allow recreational
activities in and on the water
(2) A list of all navigable waters in
such State for which the State does not
expect the applicable standard under
section 303 of the CWA will be achieved
after the requirements of sections 301 (b),
306, and 307(b) are met, due entirely or
substantially to discharges from point
sources of any toxic pollutants listed
pursuant to section 307(a);
(3) For each segment of navigable
waters included on such list, a
determination of the specific point
source discharging any such toxic
pollutant which is believed to be
preventing or impairing such water
quality and the amount of each such
toxic pollutant discharged by each such
source. .
PART 403—GENERAL
PRETREATMENT REGULATIONS FOR
EXISTING AND NEW SOURCES OF
POLLUTION ;
23. The authority citation for Part 403
is revised to read as follows:
Authority: Sec. 54(c)(2) of the Clean Water
Act of 1977, (Pub. L. H5-217) sections
204ib)ll)(C), 208(b)(2)(C)(iii), 301(b)fl)f A)(ii),
301(b)(2)(A)(ii), 3 Water
Quality Act of 1987 (Pub. L. 100-4).
24. Section 403.13 is amended by
revising paragraph (g)(2) to read as
follows:
$ 403.13 Variances from categorical
pretreatment standards for fundamentally
different factors.
18) * * *
(2) In order to be considered, a
request for a variance must be
submitted no later than:
(i) July 3,1989, for a request based on
a categorical Pretreatment Standard
promulgated before February 4,1987, to
the extent July 3:1089 is not later than
that provided under previously
promulgated regulations; or
(ii) 180 days after the date on which a
categorical Pretreatment Standard is
published in the Federal Register for a
request based on a categorical
Pretreatment Standard promulgated on
or after February 4,1987.
• • • • •
Corrections
§122.3 [Amended]
25. Section 122J(d) is amended by
substituting "300" for "1510" and
inserting "Contingency" before "Plan".
§12Z28 (Amended]
26. Section 122J8 is amended by
removing paragraph 122£8(b)(2)(i)f A)
and redesignating the existing
paragraphs (B). (C), (D), (E) and (F) as
(A). (B). (C). (D) and (E) respectively.
<12Z29 [Amended]
27. Section 12Z29(c}(4)(i) is amended
by revising the word "coditions" to read
"conditions".
$122.45 [Amended]
28. Section 122.45(a) is amended by
revising the reference to "$ 122.44lj)(2)"
to read "S 122.44(k)."
§ 122.32 [Amended]
29. Section 122.62 is amended by "
revising the reference to "paragraph (c)
of this section" contained in the
introductory paragraph to read
"§ 124.5JC)".
PART 123—iAMENDED]
5 123.27 [Amended]
30. Section 123.27, second note, is
amended by revising the reference to
"fa)(3)fiiiKB)" to read "(a)(3)(ii)".
PART 124—[AMENDED]
$ 124.10 I Amended)
31. Section 124.10(c)(2)(i) Note is
amended by revising "NFDES of 404" to
read "NPDES or Section 404."
§124.12 [Amended]
32. Section 124.12(a}(2) is amended by
inserting a "," after "whenever".
§ 124.56 [Amended]
33. Section 124.56(a) is amended by
revising the reference to "§ 122.4" to
read "§ 122.44."
$124.59 [Amended]
34. Section 124.59(b) is amended by
revising the reference to "§ 122.47" to'
read "§122.49".
$124.62 [Amended]
35. Sections 124.62 (c) and (d), are
amended by revising the references to
"EPA Deputy Assistant Administrator
for Water Enforcement" to read "EPA
Office Director for Water Enforcement
- and Permits", and the reference in (d) to
"Deputy Assistant Administrator" is
revised to read "Office Director". •
{124.65 [Amended]
36. Section 124.65 is removed and
reserved.
|FR Doc. 8*-64 Filed 1-3-89; 8:45 am]
-------
RCRA REVISION CHECKLIST 24 (AMENDED)
*v
Financial Responsibility:
Settlement Agreement
51 FR 16422-16459
May 2, 1986
(Non-HSWA Cluster II and Non-HSWA Cluster VI)
Note: A March 10, 1988 (53 FR 7740) amendment to this rule corrected errors In the preamble In
which certain provisions were erroneously described as less stringent (i.e., optional) than the
previous Federal program. Therefore, final determination of optional sections and subsections for
the original Revision Checklist 24 were based on the March 10, 1988 amendments. The
preamble to the May 2, 1986, rule was corrected again on June 26, 1990 (55 FR 25976).
Amendments to two provisions, 264.113 and 265.113, were erroneously characterized as less
stringent in the May 2, 1986 rule, and thus designated as optional in the original Revision
Checklist 24 (Issued in the SCRAM of 1988). The amended Revision Checklist 24, below,
removes the optional designation for these two sections of code. States which have not been
authorized for Revision Checklist 24 should now use this amended checklist when seeking
authorization for the Checklist 24 provisions. States which have already been authorized for - -
Revision Checklist 24, but who chose not to adopt the previously optional 264.113 and 265.113
amendments, must now amend their regulatory programs to include these requirements; States, so
affected, need only provide analogous State citations for the 264.113 and 265.113 paragraphs
when submitting this amended checklist form. States have until July 1, 1991, to adopt the May 2,
1986 amendments to 264.113 and 265.113 (July 1, 1992, if a statutory change Is needed). The
rest of the provisions addressed by Revision Checklist 24 (Amended) should have been adopted
by July 1, 1987 (July 1, 1988, if a statutory change is needed).
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV*
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 260 - HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
SUBPART B - DEFINITIONS
DEFINITIONS
•active life"
"final closure"
"hazardous waste
manaaement unit"
"partial closure"
260.10
260.10
260.10
260.10
May 2, 1986-Page 1 of 11
-------
RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART G - CLOSURE AND POST-CLOSURE
APPLICABILITY
closure of all
facilities
post-closure care
264.11 0(a)
264.11 0(b)
CLOSURE PERFORMANCE STANDARD
minimizes
maintenance
controls, minimizes
Dost-closure escape
complies with
requirements
264.111(a)
264.111(b)
264.1 11(c)
CLOSURE PLAN: AMENDMENT OF PLAN
t written plan
content of plan
hazardous waste
management
unit to be closed
final closure/maximum
extent of enclosed
operations
maximum inventory
remove or decontam-
inate all residues/
equipment
other activities to
assure closure
schedule for closure
t estimate year of final
closure
amendment of plan
264.112(8)
264.112(5)
264.112(b)(1)
264.112(bU2)
264.1 12(b)(3)
264.1 12(b)(4)
264.1 12(b)(5)
264.1 12(W(6)
264.1 12(b)(7)
264.1 12fc)
May 2, 1986- Page 2 of 11
-------
RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
t notification of partial
and final closure
t remove wastes,
decontaminate and
dismantle
FEDERAL RCRA CITATION
264.11 2(d)
264.112(9)
ANALOGOUS
STATE CITATION
••
Jjl/Ut ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
1 CLOSURE: TIME ALLOWED FOR CLOSURE
treat final volume in
90 davs or use criteria
complete closure in
180 days or use
criteria
demonstration must
be within 30 days
timeframe
264.113(a)
264.1 13(b)
264.113(0)
DISPOSAL OR DECONTAMINATION OF EQUIPMENT. STRUCTURES AND SOILS
requirement at closure
264.114
CERTIFICATION OF CLOSURE
approved in
accordance with
264.115
SURVEY PLAT
survey plat reauired
264.116
POST-CLOSURE CARE AND USE OF PROPERTY
continued care for
30 years
reduction or extension
of care period
security retirements
oost-cbsure use limits
activities In accord
with plan
264.1 17(aH1)
264.1 17fa)(2)
264.1 17(W
264.1 17fc)
264.1 17(d)
POST-CLOSURE PLAN
written plan
specified activities
AMENDMENT OF PLA
264.118(8)
264.118(b)
N
May 2, 1986- Page 3 of 11
-------
RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
availability of Dlan
amendment of plan
FEDERAL RCRA CITATION
264.118(0)
264.1 18(d)
ANALOGOUS
STATE CITATION
,,
IJ'iAiE ANALoa is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
POST-CLOSURE NOTICES
record of type,
location and quantity
of hazardous waste
requirement to enter
note on deed
conditions for removal
of notation
264.119(a)
264.1 19(b)
264.119(c)
CERTIFICATION OF COMPLETION OF POST-CLOSURE CARE
completion of post-
closure period
264.120
SUBPART H - FINANCIAL REQUIREMENTS
DEFINITIONS OF TERMS AS USED IN THIS SUBPART
"current plugging and
abandonment cost
estimate"
264.141 (f)
COST ESTIMATE FOR CLOSURE
o/o must have written
cost estimate
adjust closure cost
estimate for Inflation
closure plan chanoes
264.1 42(a)
264.142(b)
264.142(c)
FINANCIAL ASSURANCE FOR CLOSURE
reimbursement for
closure activities
standby trust fund
eaual to penal sum
surety liability keyed
to final Administrative
Order
after final 3008 deter-
mination Regional
Administrator may
draw on credit
264.143(a)(10)
264.143(b)(4)fli)
264.143(c)(5)
264.143(d)(8)
May 2, 1986- Page 4 of 11
-------
RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
o/o may request
reimbursement
net capital and worth
at six times
90% of assets in
U.S.
net worth at 6 times
sum of cost estimate
90% of assets in
U.S.
phrases of cost
estimates including
plugging and
abandonment
release of o/o from
requirements
FEDERAL RCRA CITATION
264.143(e)(5)
264.143(f)(1)(i)(B)
264.143(0(1 )(i)(D)
264.1 43(f)(1)(ii)(B)
264.1 43(f)(1)(il)(D)
264.1 43(f)(2)
264.143m
ANALOGOUS
STATE CITATION
•.
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
COST ESTIMATES FOR POST-CLOSURE CARE
annual post-closure
cost requirements
adjust for inflation
post-closure plan
changes
264.144(a)
264.144(b)
264.1 44(c)
•
FINANCIAL ASSURANCE FOR POST-CLOSUR
introductory text
reimbursements for
post-closure activities
standby trust fund
equal to penal sum
surety liability keyed
to final Administrative
Order
after final 3008 deter-
mination Regional
Administrator may
draw on credit
o/o may request
reimbursement
net capital and worth
at six times
90% of assets In U.S.
264.145
264.1 45(a)(11)
264.1450>)(4)(il)
264.145
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RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
net worth at 6 times
sum of estimate
90% of assets in U.S.
phrases of cost
estimates include
plugging and
abandonment
release of o/o from
requirements
FEDERAL RCRA CITATION
264.145(f)(1)(ii)(B)
264.i45(f)(i)(ii)(D)
264.145(0(2)
264.145(1)
ANALOGOUS
STATE CITATION
•.
STATE ANALOG IS:
EoTJlV^"
ALENT
MORE
STRINGENT]
BROADER
IN SCOPE
LIABILITY REQUIREMENTS
period of coverage
264.147(e)
WORDING OF THE INSTRUMENTS
financial guarantee
bond
closure cost
estimates under 40
CFR 144.62; includes
UIC costs
closure cost
estimates under 40
CFR 144.62; includes
UIC costs
264.151(b)
264.151(0(5)
264.151 (a)(5)
-.
PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART G - CLOSURE AND POST-CLOSURE
APPLICABILITY
management facilities
dlsDosal faculties
265.1100)
265.110(b)
CLOSURE PERFORMAI
minimize maintenance
controls, minimizes,
eliminates escape
MCE STANDARD
265.1 11 (a)
265.11Kb)
May 2, 1986- Page 6 of 11
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RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
complies with closure
requirements
FEDERAL RCRA CITATION
265.111(0)
ANALOGOUS
STATE CITATION
•.
sfATt ANALOG IS:
~EQOJ\T~
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
CLOSURE PLAN: AME
t written olan
content of plan
hazardous waste
management unit
to be closed
final closures and
maximum extent of
facility
maximum Inventory
remove or decontam-
inate all residues/
eouloment
other activities to
assure closure
schedule of closure
t estimate year of final
closure
amendment of clan
notification of partial
and final closure
t date when o/o expects
to begin closure;
extension to one-year
limit
t submtttal of
closure olan
t opportunity to
comment, pubic
hearing, and
approval, modifica-
tion or disapproval
of plan by
Realonal Administrator
t remove wastes,
decontaminate and
dismantle
NDMENT OF PLAN
265.112(a)
265.1 12(b)
265.1 12(b)(1)
265.112(b)(2)
265.1 12(b)(3)
265.112(b)(4)
265.1 12(b)(5)
265.112(b)(6)
265.1 12(b)(7)
265.112(0)
265.1 12(d)(1)
285.1 12fdH2)
265.1 12(dH3)
265.1 12(d)(4)
265.1 12(e)
.
May 2, 1986- Page 7 of 11
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RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
1 CLOSURE: TIME ALLOWED FOR CLOSURE
treat final volume in
90 davs or use criteria
complete closure in
180 days or use
criteria
demonstrations must
be made within
30 davs
265.113(8)
265.113(0)
265.113(0)
ANALOGOUS
STATE CITATION
oTAIt ANALOG IS:
EuOTV"-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
DISPOSAL OR DECONTAMINATION OF EQUIPMENT. STRUCTURES AND SOILS
requirement at closure
265.114
CERTIFICATION OF CLOSURE
requirement at closure
265.115
SURVEY PLAT
survey plat required
265.116
POST-CLOSURE CARE AND USE OF PROPERTY
continued care for 30
years
reduction or extension
of care period
security requirements
post-closure use limits
activities in accord
with plan
265.1 17(a)(1)
265.1 17(a)(2)
265.117(b)
265.117(c)
265.1 17(d)
POST-CLOSURE PLAN:
written plan
availability of plan
specified activities
amendment of plan
o/o to submit plan 180
davs before closure
AMENDMENT OF PLAN
265.118(8)
265.1180?)
265.118(0)
265.1 18(d)
265.118(e)
May 2, 1986- Page 8 of 11
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RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
approval of plan
modification of plan
FEDERAL RCRA CITATION
265.1 18(f)
265.118(0)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQuiv-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
POST-CLOSURE NOTICES
record of type, loca-
tion and quantity of
waste
requirement to enter
note on deed
conditions for removal
of notation
265.119(a)
265.119tt>)
265.119(c)
CERTIFICATION OF COMPLETION OF POST-CLOSURE CARE
completion of post-
closure period
265.120
SUBPART H - FINANCIAL REQUIREMENTS
APPLICABILITY
all hazardous waste
facilities
265.140(a)
DEFINITIONS OF TERMS AS USED IN THIS SUBPART
current plugging and
abandonment of cost
estimate
265.1 41 (f)
COST ESTIMATE FOR CLOSURE
o/o must have written
cost estimate
adjust closure cost
estimate for inflation
closure plan chanoes
265.142(a)
265.142(b)
265.142(c)
FINANCIAL ASSURANCE FOR CLOSURE
reimbursement for
closure activities
standby trust fund
eaual to penal sum
after final 3008 deter-
mination Regional
Administrator may
draw on credit
265.143(a)(10)
265.143(b)(4)(ii)
265.143(c)(8)
May 2, 1986- Page 9 of 11
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RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
o/o may request
reimbursements
net capital and worth
at six times
90% of assets in U.S.
net worth at six times
sum of cost estimate
90% of assets in U.S.
phrases of cost esti-
mates Including
plugging and
abandonment
release of o/o from
reauirements
FEDERAL RCRA CITATION
265.1 43(d)(5)
265.143(e)M)m(B)
265.1 43(e)mm(D)
265.1 43(e)(1)(li)(B)
265.1 43(eH1)fliKD)
265.143(eW2)
265.1 43(M
ANALOGOUS
STATE CITATION
••
STATE ANALOG IS:
EOUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
COST ESTIMATE FOR POST-CLOSURE CARE
o/o must have written
cost estimate
adjust for inflation
post-closure plan .
chanaes
265.144(a)
265.1 44(W
265.144(c)
FINANCIAL ASSURANCE FOR POST-CLOSURE CARE
Introductory text
o/o may request
reimbursements
standby trust fund
equal to penal sum
after final 3008 deter-
mination Regional
Administrator may
draw on credit
o/o may request
reimbursement
net capital and worth
at six times
90% of assets in U.S.
net worth at 6 times
sum of cost estimates
90% of assets in U.S.
265.145
265.145(aH11)
265.1 45n»)(4)fln
265.1 45(cU9)
265.145(dH5)
265.145(eM1MHB)
265.145mm(D>
265.145feM1)fllMB)
2B5.145feU1MnfD)
t
May 2, 1986 - Page 10 of 11
-------
RCRA REVISION CHECKLIST 24 (AMENDED): Financial Responsibility:
Settlement Agreement (cont'd)
FEDERAL REQUIREMENT
phrases for cost esti-
mates including
plugging and
abandonment
release of o/o from
requirements
FEDERAL RCRA CITATION
265.145(eH2)
265.145(h)
ANALOGOUS
STATE CITATION
••
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
LIABILITY REQUIREMENTS
period of coverage
265.1 47(e)
PART 270 - EPA ADMINISTERED PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART B - PERMIT APPLICATION
CONTENTS OF PART B: GENERAL REQUIREMENTS
documentation that
notices are filed
cost estimates and
financial assurance
post-closure cost
estimates and
financial assurance
270.14(bM14)
270.14(b)(15)
270.14(bM16)
SUBPART D - CHANGE TO PERMITS
MINOR MODIFICATIONS OF PERMITS
changes In ownership
or operational control
270.42W)
SUBPART G - INTERIM STATUS
CHANGES DURING INTERIM STATUS
changes In ownership
or operational control
270.72(d)
1
The changes to this section are in non-HSWA Cluster VI. See the June 26, 1990 (55 FR
25976) technical correction and the explanatory note at the beginning of this checklist.
May 2, 1986 - Page 11 of 11
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ATTACHMENT B
Updated Portions of SAM
-------
MODEL REVISION ATTORNEY GENERAL'S STATEMENT FOR FINAL
AUTHORIZATION FOR CHANGES TO THE FEDERAL
RCRA PROGRAM FROM JANUARY 1983 THROUGH
DECEMBER 1989
I hereby certify, pursuant to my authority as and in accordance with
Section 3006(b) of the Resource Conservation and Recovery Act, as amended by the
Hazardous and Solid Waste Amendments of 1984 (42 USC 6901 et seg.), and 40 CFR
271 that in my opinion the laws of the State [Commonwealth] of provide
adequate authority to carry out the revised program set forth in the revised "Program
Description" submitted by the fState Agency]. The specific authorities provided are
contained in statutes or regulations lawfully adopted at the time this Statement is signed
and which are in effect now [shall be fully effective by J, as specified
below. These authorities and this certification supplement [or supercede (and indicate how
supercede)] the previously certified authorities described in my [or my predecessors]
certification(s) of (date or dates).
Please add an explanation of how the Revision Attorney General's Statement you are
submitting relates to any prior Attorney General's Statements you have submitted.
I. IDENTIFICATION AND LISTING
A. State statutes and regulations contain lists of hazardous waste which
encompass all wastes controlled under the following Federal regulations as indicated in the
designated Revision Checklists:
(1) Chlorinated aliphatic hydrocarbons, 40 CFR 261.31, Part 261 Appendices VII
and VIII as amended February 10, 1984 [49 FR 5308], Revision Checklist 4.
1 (2) rOPTIONAL: This is a reduced requirement.] Warfarin and zinc phosphide
listing, 40 CFR 261.33(e) and (f), as amended May 10, 1984 [49 FR 19923],
Revision Checklist 7.
(3) TDI, DNT and TDA wastes, 40 CFR 261.32, 261.33(f), and Part 261
Appendices III, VII and VIII as amended October 23, 1985 [50 FR 42936],
Revision Checklist 18.
(4) Spent solvents, 40 CFR 261.31, as amended December 31, 1985 [50 FR
53319] and January 21, 1986 [51 FR 2702], Revision Checklist 20.
(5) EDB wastes, 40 CFR 261.32 and Part 261 Appendices II, III and VIII, as
amended February 13, 1986 [51 FR 5330], Revision Checklist 21.
1The phrase "OPTIONAL: This is a reduced requirement" is used to indicate
provisions that either are less stringent or reduce the scope of the program. Any State
which adopts an "optional* requirement must ensure that it is at least as stringent as the
Federal requirement.
9
-------
(6) Four spent solvents, 40 CFR 261.31, 261.33(f), and Part 261 Appendices III,
VII and VIII as amended February 25, 1986 [51 FR 6541], Revision Checklist
22.
(7) [OPTIONAL: This is a reduced requirement.] Listing of spent pickle liquor
from steel finishing operations, 40 CFR 261.32, as amended May 28, 1986
[51 FR 19320] and September 22, 1986 [51 FR 33612], Revision Checklist
26.
(8) Listing of commercial chemical products and Appendix VIII constituents, 40
CFR 261.33 and Appendix VIII, as amended August 6, 1986 [51 FR 28296],
Revision Checklist 29; as amended July 10, 1987 [52 FR 26012], Revision
Checklist 41; and as amended April 22, 1988 [53 FR 13382], Revision
Checklist 46.
(9) EBDC wastes, 40 CFR 261.32 and Part 261 Appendices III and VII, as
amended on October 24, 1986 [51 FR 37725], Revision Checklist 33.
(10) fOPTIONAL: This is a reduced requirement.] Generic delisting of iron
dextran (CAS No. 9004-66-4), 40 CFR 261.33(f) and Appendix VIII, as
amended October 31, 1988 [53 FR 43878], Revision Checkfst 56.
(11) [OPTIONAL: This is a reduced requirement] Generic delisting of strontium
sulfide (CAS No. 1314-96-1), 40 CFR 261.33(e) and Appendix VIII, as
amended October 31, 1988 [53 FR 43881], Revision Checklist 57.
(12) Listing of two wastes (K131 and K132) generated during the production of
methyl bromide, 40 CFR 261.32 and 261 Appendices III and VII, as
amended October 6, 1989 [54 FR 41402], Revision Checklist 68.
(13) Listing of one generic category (F025) of waste generated during the
manufacture of chlorinated aliphatic hydrocarbons by free radical catalyzed
processes and amending F024, 40 CFR 261.31 and 261 Appendix VII;
adding one toxicant to 261 Appendix VIII; as amended December 11, 1989
[54 FR 50968], Revision Checklist 69.
Federal Authority: RCRA §3001 (b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations define hazardous waste so as to control the
generation, transportation, treatment, storage and disposal of hazardous waste produced by
small quantity generators of between 100 and 1000 kilograms/month as indicated in
Revision Checklist 23 (which supercedes prior amendments by Revision Checklist 17 A)
and Revision Checklist 47 (providing technical corrections to Checklist 23). State statutes
and regulations also require small quantity generators to certify good faith efforts to
minimize waste generation and to select the best available and affordable treatment,
storage or disposal alternatives, 40 CFR Part 262 as amended October 1, 1986 [51 FR
35190], Revision Checklist 32 (see Item IX below).
10
-------
Federal Authority: RCRA §3001 (d); 40 CFR Parts 260-263 and 270 as amended March
24, 1986 (51 FR 10146), October 1, 1986 (51 FR 35190), and July 19, 1988 (53 FR
27162).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. [This requirement applies only if States have a delisting mechanism. This
requirement is NOT OPTIONAL for such States.] State statutes and regulations provide
authority to delist hazardous waste as indicated in Revision Checklist 17 B.
(1) State statutes and regulations require that before deciding to delist a waste,
the State must consider whether any listing factor (including additional
constituents) other than those for which the waste was listed would cause
the waste to be hazardous.
Federal Authority: RCRA §3001 (f)(1); 40 CFR 260.22 as amended July 15, 1985 (50 FR
28702) and June 27, 1989 (54 FR 27114).
(2) State statutes and regulations require that there be no new temporary delistlngs
without prior notice and comment. All temporary delistings received before November 18,
1984 without the opportunity for public comment and full consideration of such comment,
shall lapse if not made final by November 8, 1986.
Federal Authority: RCRA §3001 (f)(2); 40 CFR 260.20(d) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. [OPTIONAL: This is a reduced requirement.] State statutes and regulations
define hazardous waste so as to exclude waste pickle liquor sludge generated by lime
stabilization, but only to the extent that such waste is excluded by 40 CFR 261.3(c)(2), as
indicated in Revision Checklist 8.
Federal Authority: RCRA §3001; 40 CFR 261.3(c) as amended June 5, 1984 (49 FR
23284).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. [OPTIONAL: This is a reduced requirement.] State statutes and regulations
define hazardous waste so as to not exclude household waste other than those household
wastes excluded in 40 CFR 261.4(b)(1), as indicated in Revision Checklists 9 and 17 C.
Federal Authority: RCRA §3001; 40 CFR 261.4(b)(1) as amended November 13, 1984 (49
FR 44980) and July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
11
-------
Remarks of the Attorney General
F. State statutes and regulations incorporate the mos; --sent edition and updates to-
Test Methods for Evaluating Solid Waste, Physical/Chemical hods" (SW-846) as
indicated in Revision Checklists 11 and 35.
Federal Authority: RCRA §§2002, 3001; 40 CFR 260.11, 260.21 and 270.6(a) as amended
December 4, 1984 (49 FR 47390) and March 16, 1987 (52 FR.8072).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
G. State statutes and regulations define solid wastes to include the hazardous
components of radioactive mixed wastes, July 3, 1986 [51 FR 24504]. See State Program
Advisory (SPA) #2.
Federal Authority: RCRA §§1004(27) and 3001 (b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
H. rOFTIONAL: This is a reduced requirement] State statutes and regulations
exempt (with certain limitations) waste samples used in small scale treatability studies from
Subtitle C regulation as indicated in Revision Checklist 49.
Federal Authority: RCRA §3001; 40 CFR 260.10 and 261.4(e)&(f) as amended July 19,
1988 (53 FR 27290).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
I. State statutes and regulations provide for listing of six wastes (K064, K065,
K066, K088, K090, and K091) as indicated in Revision Checklist 53.
Federal Authority: RCRA §3001 (b); 40 CFR 261.32 and Part 261 Appendix VII as
amended September 13, 1988 (53 FR 35412).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
J. State statutes and regulations provide final criteria to define Bevill-excluded
mineral processing wastes, finalize the Beviil status of nine mineral processing waste
streams, and 1st those mineral processing wastes subject to conditional retention as
indicated in Revision Checklist 65.
Federal Authority: RCRA §3001 (b); 40 CFR 261.3, 261.4 as amended September 1, 1989
(54 FR 36592).
Citation of Laws and Regulations; Date of Enactment and Adoption
12
-------
Remaps of the Attorney General
K. State statutes and regulations incorporate 47 new testing methods as approved
methods for use in meeting the regulatory requirements under Subtitle C of RCRA as
Indicated in Revision Checklist 67.
Federal Authority: RCRA §§3001, 3004, 3005, and 3006; 40 CFR 260.11, 261 Appendix III
as amended September 29, 1989 (54 FR 40260).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
II. DEFINITION OF SOLID WASTE
A. State statutes and regulations define hazardous waste and impose management
standards so as to control all the hazardous waste controlled under 40 CFR Parts 261,
264, 265 and 266 as indicated in Revision Checklists 13 and 37.
Federal Authority: RCRA §§3001, 3004; 40 CFR Parts 260, 261, 264, 265, and 266 as
amended January 4, 1985 (50 FR 614), April 11, 1985 (50 FR 14216), August 20, 1985
(50 FR 33541) and June 5, 1987 (52 FR 21306).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
III. MANAGEMENT OF DIOXIN WASTES
A. State statutes and regulations contain the following requirements regarding
dioxin wastes as indicated in Revision Checklist 14:
(1) Dioxin wastes are listed and otherwise identified as hazardous wastes so as to
encompass all such wastes controlled under 40 CFR 261.5(e), 261.7(b), 261.30(d), 261.31,
261.33(f), and Part 261 Appendix X.
(2) Special management and permitting standards for facilities managing dioxin
wastes and prohibitions applicable to permitted and interim status facilities, as provided in
40 CFR Parts 264, 265, and 270.
Federal Authority: RCRA §§3001, 3004; 40 CFR Parts 261, 264, 265 and 270 as
amended January 14, 1985 (50 FR 1978).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
13
-------
IV. SATELLITE ACCUMULATION
A. [OPTIONAL: This is a reduced requirement] State statutes and regulations
allow generators to accumulate at the site of generation, without a permit or interim status,
as much as 55 gallons of hazardous waste or one quart of acutely hazardous waste
provided that the generator complies with the requirements specified in §262.34(c) as
indicated in Revision Checklist 12.
Federal Authority: RCRA §§2002, 3002, 3004, 3005; 40 CFR 262.34(c) as amended
December 20, 1984 (49 FR 49571).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
V. APPLICABILITY OF INTERIM STATUS STANDARDS
A. State statutes and regulations contain the following requirements regarding
interim status standards as indicated in Revision Checklists 3 and 10:
(1) Interim status standards apply to facilities identified in 40 CFR 265.1 (b).
Federal Authority: RCRA §3004; 40 CFR Part 265 as amended November 22, 1983 (48
FR 52718) and November 21, 1984 (49 FR 46095).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
VI. PAINT FILTER TEST
A. State statutes and regulations require the use of a paint filter test to determine
the absence or presence of free liquids in either a containerized or bulk waste as indicated
in Revision Checklists 16, 17 F and 25.
Federal Authority: RCRA §§3004, 3005; 40 CFR Parts 260, 264, 265, and 270 as
amended April 30, 1985 (50 FR 18370), July 15, 1985 (50 FR 28702) and May 28, 1986
(51 FR 19176).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
VII. NATIONAL UNIFORM MANIFEST SYSTEM AND RECORDKEEPINQ
A. State statutes and regulations require generators to use the national uniform
manifest as Indicated In Revision Checklists 5 and 32.
Federal Authority: RCRA §§2002, 3002, 3003; 40 CFR Parts 260 and 262 as amended
March 20, 1984 (49 FR 10490) and October 1, 1986 (51 FR 35190).
14
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations require that generators, of between 100 and 1000
kg/mo of hazardous waste, file an exception report in those instances where the generator
does not receive confirmation of delivery of his hazardous waste to the designated facility
as indicated in Revision Checklist 42.
Federal Authority: RCRA §§3001 (d) and 3002(a)(5); 40 CFR Parts 262.42 and 262.44 as
amended September 23, 1987 (52 PR 35894).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations require that the following be recorded, as it
becomes available, and maintained in the operating record, until facility closure, as
indicated in Revision Checklist 45: monitoring, testing or analytical data, corrective action
where required by Subpart F and §§264.226, 264.253, 264.254, 264.276, 264,278, 264.280,
264.303, 264.309, 264.347, and 264.602.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.73(b) as amended December
10, 1987 (52 FR 46946).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
D. fOPTIONAL: This is a reduced requirement.] State statutes and regulations
include a burden disclosure statement with each uniform manifest form and renew the use -
of this form as indicated in Revision Checklist 58.
Federal; Authority: RCRA §§2002, 3002, and 3003; 40 CFR 262.20 and 262 Appendix as
amended November 8, 1988 (53 FR 45089).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
VIII. BIENNIAL REPORT
A. State statutes and regulations contain the following reporting requirements as
indicated in Revision Checklists 1 and 30.
(1) The biennial report contains the information indicated in 40 CFR 262.41 (a),
264.75 and 265.75.
(2) Facilities must submit groundwater monitoring data annually to the State
Director as indicated in 40 CFR 265.94.
Federal Authority: RCRA §§3002, 3004; 40 CFR Parts 262, 264 and 265 as amended
January 28, 1983 (48 FR 3977) and August 8, 1986 (51 FR 28566).
15
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
IX. WASTE MINIMIZATION
A. State statutes and regulations contain the following requirements regarding
waste minimization as indicated in Revision Checklists 17 D, 30 and 32 (see Item I B
above).
(1) Generators must submit report and manifest certifications regarding efforts taken
to minimize the amounts and toxicity of wastes.
Federal Authority: RCRA §3002(a)(6), (b); 40 CFR 262.41, 264.75 and 265.75 as
amended July 15, 1985 (50 FR 28702), August 8, 1986 (51 FR 28556) and October 1,
1986 (51 FR 35190).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) 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.
Federal Authority: RCRA §3005(h); 40 CFR 264.70, 264.73 and 270.30(j)(2) as amended
July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
X. LIQUIDS IN LANDFILLS
A. State statutes and regulations contain the following requirements regarding
liquids in landfills as indicated In Revision Checklists 17 F and 25.
(1) Effective May 8, 1985, there is a ban on the placement of bulk or
non-containerized liquid hazardous waste or hazardous waste containing free liquids in any
landfill pursuant to 40 CFR 264.314 and 265.314 as amended July 15, 1985 and May 28,
1986.
(2) Effective November 8, 1985, there is a ban on the placement of non-hazardous
liquids in landfills unless the owner or operator satisfies the criteria set forth in 40 CFR
264.314(e) and 265.314(f), as amended July 15, 1985 and May 28, 1986.
(3) For bulk or non-containerized liquid wastes or wastes containing free liquids
they may be placed in a landfill prior to May 8, 1985, only if the requirements of 40 CFR
264.314(a) and 265.314(a) are met
16
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Federal Authority: RCRA §3004(c); 40 CFR 264.314, 265.314 and 270.21 (h) as amended
July 15, 1985 (50 FR 28702) and May 28, 1986 (51 FR 19176).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
XI. GROUND-WATER MONITORING
A. State statutes and regulations provide that the §3004 groundwater monitoring
requirements applicable to surface impoundments, waste piles, land treatment units and
landfills 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, as indicated in Revision Checklist 17 I.
Federal Authority: RCRA §3004(p); 40 CFR 264.222, 264.252, 264.253, and 264.302 as
amended July 15, 1985 (50 FR 28702).2
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. fOPTIONAL: This is a reduced requirement] State statutes and regulations
may allow variances from the ground-water monitoring requirements as provided in
§3004(p). However, those variances must be restricted as provided in RCRA §3004(p) as
indicated in Revision Checklist 17 I.
Federal Authority: RCRA §3004(p); 40 CFR 264.90(b) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations provide that with regard to ground-water
monitoring, all land based hazardous waste treatment, storage, and disposal facilities
analyze for a specified core list (Part 264, Appendix IX) of chemicals plus those chemicals
specified by the Regional Administrator on a site-specific basis as indicated in Revision
Checklist 40.
Federal Authority: RCRA §§1006, 2002(a), 3001, 3004, and 3005; 40 CFR Parts 264.98,
264.99, Appendix IX of Part 264, and 270.14 as amended Jury 9, 1987 (52 FR 25942).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
2Note that Revision Checklist 17 I reserved the cited sections of 40 CFR Part 264.
Prior to Revision Checklist 17 I, these sections of code addressed exemptions from the
Subpart F groundwater monitoring requirements.
17
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D. State statutes and regulations specify statistical methods, sampling procedures,
and performance standards that can be used in groundwater monitoring procedures to
detect groundwater contamination at permitted hazardous waste facilities as indicated in
Revision Checklist 55.
Federal Authority: RCRA §§1006, 2002(a), 3004 and 3005; 40 CFR 264.91, 264.92,
264.97, 264.98 and 264.99 as amended October 11, 1988 (53 FR 39720).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XII. BURNING AND BLENDING OF HAZARDOUS WASTES
A. State statutes and regulations provide the following requirements:
(1) The burning of fuel containing hazardous waste in a cement kiln is prohibited
as specified In 40 CFR 266.31 and Revision Checklist 17 J.
Federal Authority: RCRA §3004(q); 40 CFR 266.31 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) Fuels containing hazardous waste and all persons who produce, distribute and
market fuel containing hazardous wastes must be regulated as indicated In Revision
Checklists 17 J, 17 K, and 19.
Federal Authority: RCRA §§3004(q)-(s); 40 CFR 261.31; 266.34 as amended July 15,
1985 (50 FR 28702), November 29, 1985 (50 FR 49164), and November 19, 1986 (51 FR
41900).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
B. [OPTIONAL: This is a reduced requirement] State statutes and regulations
provide exceptions to the burning and blending of hazardous waste as specified In
§§3004(q)(2)(A) and 3004(r)(2) & (3).
Federal Authority: RCRA §§3004(q)2(A) and 3004(r)(2) & (3).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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XIII. CORRECTIVE ACTION
A. State statutes and regulations contain the following corrective action
requirements as indicated in Revision Checklist 17 L:
(1) Corrective action is required for releases of hazardous waste or constituents
from any solid waste management unit at a facility seeking a permit, regardless of when
the waste was placed in the unit, in all permits issued after November 8, 1984.
Federal Authority: RCRA §3004(u); 40 CFR 264.90; 264.101; 270.60 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(2) Corrective action is required beyond a facility's boundary, in accordance with
RCRA §3004(v). (States now may impose these requirements through a permit or a
corrective action order. Once EPA promulgates the regulations required by RCRA
§3004(v), States will need authority to impose corrective action in a permit following the
§3004(v) regulations.)
Federal Authority: RCRA §3004(v)(1).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) Corrective action is required beyond a facility's boundary in accordance with
§3004(v) for all landfills, surface impoundments and waste pile units (including any new
units, replacements of existing units or lateral expansions of existing units) which receive
hazardous waste after July 26, 1982.
Federal Authority: RCRA §3004(v)(2).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(4) There is evidence of financial responsibility for corrective action on- and off-site.
Federal Authority: RCRA §§3004(a)(6); (u); 40 CFR 264.90; 264.101 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations provide for additional information and engineering
feasibility plan requirements regarding groundwater contamination detected at the time of
Part B permit application as indicated in Checklist 38.
19
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Federal Authc : =ICRA §§3004, 3005; 40 CFR 270.14 as amended June 22, 1987 (52
FR 23447) ar member 9, 1987 (52 FR 33936).
Citation of La and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations require owners and operators of facilities seeking
permits to provide descriptive information on the solid waste management units themselves
and all available information pertaining to any releases from the units as indicated in
Revision Checklist 44 A.
Federal Authority: RCRA §3004(u); 40 CFR 270.14 as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations require that owners and operators of hazardous
waste treatment, storage and disposal facilities (including permit-by-rule facilities subject to
264.101) institute corrective action beyond the facility boundary to protect human health
and the environment, unless the owner/operator is denied access to adjacent lands despite
the owner/operator's best efforts, as indicated in Revision Checklist 44 B.
Federal Authority: RCRA §3004(v); 40 CFR 264.100(e) and 264.101 (c), as amended
December 1, 1987 (52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. State statutes and regulations contain the following corrective action
requirements for injection wells as indicated in Revision Checklist 44 C.
(1) Hazardous waste injection wells now operating under RCRA interim status may
retain interim status after issuance of a UIC permit. Until a RCRA permit or a RCRA
"rider" to a UIC permit, which addresses Section 3004(u) corrective action, is issued, the
well must comply with applicable interim status requirements imposed by §265.430, Parts
144.146 and 147, and any UIC permit requirements.
Federal Authority: RCRA §3004{u); 40 CFR 144.1(h) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) As part of the UIC permit process, available information regarding operating
history and condition of the injection well must be submitted as well as any available
information on known releases from the well or injection zone.
20
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Federal Authority: RCRA §3004(u); 40 CFR 144.31 (g) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(3) UIC facility owners/operators must submit certain information related to
corrective action with their UIC applications.
Federal Authority: RCRA §3004(u); 40 CFR 270.60(b)(3) as amended December 1, 1987
(52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations require that miscellaneous units comply with
regulations (Subpart F) regarding releases from solid waste management units when
necessary to comply with §264.601 through 264.603 as indicated in Revision Checklist 45.
Federal Authority: RCRA §3004(u); 40 CFR 264.90(d) as amended December 10, 1987
(52 JFR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XIV. HAZARDOUS WASTE EXPORTS
A. State statutes and regulations require generators and transporters of hazardous
waste destined for export outside the United States to comply with standards equivalent to
those as indicated in Revision Checklists 17 R, 31, and 48 (with the latter providing
technical corrections to Checklist 31).
Federal Authority: RCRA §3017; 40 CFR 262.50 as amended July 15, 1985 (50 FR
28702), August 8, 1986 (51 FR 28664), and July 19, 1988 (53 FR 27164).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XV. STANDARDS FOR FACILITIES3
A. State statutes and regulations prohibit the land disposal of hazardous waste
prohibited under 40 CFR Parts 264 and 265 as indicated in Revision Checklist 17 E. Land
^Thls section contains all changes to the Federal RCRA program concerning facility
standards except for those specifically related to groundwater monitoring. This latter group
of facility standard changes are addressed by Section XI.
21
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disposal includes, but is not limited to, placement in landfills, surface impoundments, waste
piles, deep injection wells, land treatment facilities, salt dome and bed formations and
underground mines or caves. Deep injection well means a well used for the underground *-
injection of hazardous wastes other than a well to which §7010(a) of RCRA applies.
Federal Authority: RCRA §§3004(b)-(q); 40 CFR 264.18, 265.18 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. Effective on November 8, 1984 State statutes and regulations prohibit the
placement of any non-containerized or bulk liquid hazardous waste in any salt dome or salt
bed formation any underground mine or cave except as provided in §264.18(c) and
§265.18(c) as indicated in Revision Checklist 17 E. Furthermore, State statutes and
regulations prohibit the placement of any other hazardous waste in such formations until a
permit is issued.
Federal Authority: RCRA §3004(b); 40 CFR 264.18 and 265.18 as amended July 15, 1985
(50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations prohibit the use of waste oil or other materials
contaminated with hazardous wastes (except ignitible wastes) as a dust suppressant as
indicated in Revision Checklist 17 G.
Federal Authority: RCRA §3004(1); 40 CFR 266.23 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations allow direct action by third parties against the
insurer or guarantor of an owner/operator's financial responsibilities if an owner/operator is
in bankruptcy reorganization or arrangement or where (with reasonable diligence)
jurisdiction in any State or Federal Court cannot be obtained over an owner/operator likely
to be solvent at time of judgment
Federal Authority: RCRA §3004(t).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. State statutes and regulations require the permittee to take steps to minimize
releases to the environment in accordance with 40 CFR Part 270.30(d) as indicated in
Revision Checklist 2.
22
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Federal Authority: RCRA §3005(c); 40 CFR Part 270 as amended September 1, 1983 (48
FR 39622).
*" »
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations require that closure and post-closure requirements
and special requirements for containers apply to interim status landfills as indicated in
Revision Checklist 15.
Federal Authority: RCRA §3004; 40 CFR 265.310, 265.315 as amended April 23, 1985 (50
FR 16044).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
G. State statutes and regulations require compliance with closure/post-closure and
financial responsibility requirements applicable to owners and operators of hazardous waste
treatment, storage and disposal facilities, as indicated in Revision Checklists 24, 36, and
45.
Federal Authority: RCRA §§3004 and 3005; 40 CFR Parts 260, 264, 265, and 270 as
amended May 2, 1986 (51 FR 16422), March 19, 1987 (52 FR 8704), and December 10,
1987 (52 FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
H. fOPTIONAL: This is a reduced requirement.] State statutes and regulations
allow qualified companies that treat, store or dispose of hazardous waste to use a
corporate guarantee to satisfy liability assurance requirements as indicated in Revision
Checklists 27 and 43.
Federal Authority: RCRA §§2002, 3004, and 3005; 40 CFR 264.147, 264.151, and
265.147 as amended July 11, 1986 (51 FR 25350) and November 18, 1987 (52 FR
44314).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
I. State statutes and regulations require companies that generate, treat or store
hazardous waste in tanks to comply with tank standards equivalent to those indicated in
Revision Checklists 28 and 52.
Federal Authority: RCRA §§1006, 2002, 3001 - 3007, 3010, 3014, 3017 - 3019 and 7004;
40 CFR Parts 260, 261, 262, 264, 265, and 270 as amended July 14, 1986 (51 FR
25422), August 15, 1986 (51 FR 29430) and September 2, 1988 (53 FR 34079).
Citation of Laws and Regulations; Date of Enactment and Adoption
23
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Remarks of the Attorney General
J. State statutes and regulations require environmental performance standards;
monitoring, testing, analytical data, inspection, response and reporting procedures; and
post-closure care for miscellaneous units as indicated in Revision Checklist 45.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.600, .264.601, 264.602, and
264.603 as amended December 10, 1987 (52 FR 46946).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
K. [OPTIONAL: This is a reduced requirement] State statutes and regulations
allow owners and operators of landfills, surface impoundments, or land treatment units,
under limited circumstances, to remain open after the final receipt of hazardous wastes in
order to receive non-hazardous wastes in that unit as indicated in Revision Checklist 64.
Federal Authority: RCRA §§1006, 2002(a), 3004, 3005 and 3006; 40 CFR 264.13,
264.112, 264.113, 264.142, 265.13, 265.112, 265.113, 265.142 and Appendix I to 270.42
as amended August 14, 1989 (54 FR 33376).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
XVI. REQUIREMENTS FOR PERMITS
A. [OPTIONAL: This is a reduced requirement] State statutes and regulations
allow a facility (1) to construct an approved TSCA facility for burning PCBs without first
obtaining a RCRA permit and (2) to subsequently apply for a RCRA permit in accordance
with Revision Checklist 17 M.
Federal Authority: RCRA §3005(a); 40 CFR 270.10(f)(3) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations require review of land disposal permits every five
years and modification of such permits as necessary to assure compliance with the
requirements in Parts 124, 260 through 266, and 270, as indicated in Revision Checklist 17
N.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.41 (a)(6), 270.50(d) as amended July
15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
24
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C. State statutes and regulations require permits to contain any conditions
necessary to protect human health and the environment in addition to any conditions
required by regulations as indicated in Revision Checklist 17 O.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.32(b) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations require that:
(1) For land disposal facilities granted interim status prior to 11/8/84, interim status
terminates 11/8/85; unless a Part B application and certification of compliance with
applicable groundwater monitoring and financial responsibility requirements are submitted by
11/8/85, as indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(e); 40 CFR 270.73(c) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) For land disposal facilities in existence on the effective date of statutory or
regulatory changes under this Act that render the facility subject to the requirement to have
a permit and which is granted interim status, interim status terminates 12 months after the
date the facility first becomes subject to such permit requirement unless a Part B
application and certification of compliance with applicable groundwater monitoring and
financial responsibility requirements are submitted by that date as indicated in Revision
Checklist 17 P.
Federal Authority: RCRA §3005(e); 40 CFR 270.73(d) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) Interim status terminates for incinerator facilities on 11/8/89 unless the
owner/operator submits a Part B application by 11/8/86 as indicated in Revision Checklist
17 P.
Federal Authority: RCRA §3005(c)(2)(C); 40 CFR 270.73(e) as amended Jury 15, 1985 (50
FR 28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
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(4) Interim status terminates for any facility othP- 'han a land disposal or an
incineration facility on 11/8/92 unless the owner/operat limits a Part B application by
11/8/88 as indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(c)(2)(0); 40 CFR 270./wv) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. [OPTIONAL: This is a reduced requirement] State statutes and regulations
allow facilities to qualify for interim status if they (1) are in existence on the effective date
of statutory or regulatory changes that render the facility subject to the requirement to have
a permit and (2) comply with §270.70(a) as indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(e); 40 CFR 270.70(a) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations provide that facilities may not qualify for interim
status under the State's analogue to Section 3005(e) if they were previously denied a
Section 3005(c) permit or if authority to operate the facility has been terminated as
indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.70(c) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
G. fOPTIONAL: This is a reduced requirement.] State statutes and regulations
allow the issuance of a one-year research, development, and demonstration permit
(renewable each year, but not for a period longer than three years) for any hazardous
waste treatment facility which proposes an innovative and experimental hazardous waste
treatment technology or process not yet regulated as indicated in Revision Checklist 17 Q.
If adopted, however, the State must require the facility to meet RCRA's financial
responsibility and public participation requirements and retain authority to terminate
experimental activity if necessary to protect health or the environment
Federal Authority: RCRA §3005(g); 40 CFR 270.65 as amended July 15, 1985 (50 FR
28702)
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
H. State statutes and regulations require landfills, surface impoundments, land
treatment units, and waste piles that received waste after July 26, 1982 and which qualify
26
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for interim status to comply with the groundwater monitoring, unsaturated zone monitoring,
and corrective action requirements applicable to new units at the time of permitting as
indicated in Revision Checklist 17 L.
Federal Authority: RCRA §3005(i); 40 GFR 264.90(a) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
I. State statutes and regulations require:
(1) Surface impoundments in existence on November 6, 1984 [or subsequently
becoming subject to RCRA pursuant to §3005(j)(6)(A) or (B)] to comply with the double
liner, leachate collection, and groundwater monitoring requirements applicable to new units
by November 8, 1988 [or the date specified In §3005(j)(6)(A) or (B)] or to stop treating,
receiving, or storing hazardous waste, unless the surface impoundment qualifies for a
special exemption under §30050).
Federal Authority: RCRA §3005(j)(6)(A).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) Surface Impoundments to comply with the double liner, leachate collection and
ground-water monitoring requirements if the Agency allows a hazardous waste prohibited
from land disposal under §3004(d), (e) or (g) to be placed in such Impoundments.
Federal Authority: RCRA §3005(j)(11).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) rOFTIONAL: This is a reduced requirement.] State statutes and regulations
may allow variances from the above requirements as provided In RCRA §30050X2-9) and
(13). However, the availability of such variances must be restricted as provided in RCRA
§30050).
Federal Authority: RCRA §30050)(2-9).
Citation of M*ws and Regulations.' Date of Enactment and Adoption
Remarks of the Attorney General
J. [OPTIONAL: This is a reduced requirement.] Facility owners or operators are
given the opportunity to cure deficient Part A applications in accordance with 40 CFR
270.70(b) before failing to qualify for interim status as indicated In Revision Checklist 6.
Federal Authority: RCRA §3005; 40 CFR Part 270 as amended April 24, 1984 (49 FR
17716).
27
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Citation of Laws and Regulations: Date of Enactment and Adoption
^»
Remarks of the Attorney General
K. State statutes and regulations allow the permit granting agency to initiate
modifications to a permit without first receiving a request from the permittee, in cases
where statutory changes, new or amended regulatory standards, or judicial decisions affect
the basis of the permit as indicated in Revision Checklist 44 D.
Federal Authority: RCRA §3005(c); 40 CFR 270.41 (a)(3) as amended December 1, 1987
(52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
L State statutes and regulations require that permittees must comply with new
requirements imposed by the land disposal restrictions promulgated under Part 268 even
when there are contrary permit conditions, as indicated in Revision Checklist 44 E.
Federal Authority: RCRA §3006(g); 40 CFR 270.4(a) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
M. State statutes and regulations require information from permit applicants
concerning permit conditions necessary to protect human health and the environment as
indicated in Revision Checklist 44 F.
Federal Authority: RCRA §3005(c); 40 CFR 270.10 as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
N. State statutes and regulations require post-closure permits for all landfills,
surface impoundments, waste piles and land treatment units receiving hazardous waste
after July 26, 1982 as indicated in Revision Checklist 44 G.
Federal Authority: RCRA §3005(1); 40 CFR 270.1 (c) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
O. State statutes and regulations require that all owners and operators of units that
treat, store, or dispose of hazardous waste in miscellaneous units must comply with the
general application requirements (including Part A permit requirements), the Part B general
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application requirements of §270.14, and specific Part B information requirements for
miscellaneous units as indicated in Revision Checklist 45 and Revision Checklist 59.
^^
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.600, 270.14 and 270.23 as
amended December 10, 1987 (52 FR 46946) and January 9, 1989 (54 FR 615).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
P. [OPTIONAL: This is a reduced requirement] State statutes and regulations
provide owners and operators more flexibility to change specified permit conditions, to
expand public notification and participation opportunities, and allow for expedited approval if
no public concern exists for a proposed permit modification. Owner/operator permit
modifications are categorized into three classes with administrative procedures for approving
modifications established in each class. These changes are as indicated in Revision
Checklist 54.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR Parts 124, 264, 265,
and 270 as amended September 28, 1988 (53 FR 37912) and October 24, 1988 (53 FR
41649).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
Q. State statutes and regulations make It clear that existing incinerator facilities
must either conduct a trial bum or submit other information as specified In 270.19(a) or (c)
before a permit can be issued for that facility as indicated in Revision Checklist 60.
Federal Authority; RCRA §3005(b); 40 CFR Part 270 as amended January 30, 1989 [54
FR 4286).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
R. [OPTIONAL: This is a reduced requirement.] State statutes and regulations
allow greater flexibility to interim status facilities to make changes during interim status
following director approval as indicated in Revision Checklist 61.
Federal Authority: RCRA §§2002(a), 3004, 3005, 3006; 40 CFR 270.72 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
S. [OPTIONAL; This is a reduced requirement] State statutes and regulations lift
the reconstruction limit for changes: 1) to certain interim status units necessary to comply
with Federal, State, or local requirements, 2) necessary to allow continued handling of
newly listed or identified hazardous waste, 3) made in accordance with an approved
29
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closure plan, and 4) made pursuant to a corrective action order as indicated in Revision
Checklist 61.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR 270.72 as amended *"
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
T. [OPTIONAL; This is a reduced requirement.] State statutes and regulations
that clarify that a permit can be denied for the active life of a facility while a decision on
post closure permitting is pending as indicated in Revision Checklist 61.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR 124.1, 124.15,
124.19, 270.1, 270.10 and 270.29 as amended March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
U. fOPTIONAL: This is a reduced requirement.] State statutes and regulations
that classify as Class 1 certain permit modifications requested by owners/operators
necessary to enable permitted facilities to comply with the land disposal restrictions as
indicated in Revision Checklist 61. Specifically these modifications include 1) adding
restricted wastes treated to meet applicable 40 CFR Part 268 treatment standards or
adding residues from treating "soft hammer" wastes, 2) adding certain wastewater treatment
residues and incinerator ash, 3) adding new wastes for treatment In tanks or containers
under certain limited conditions, and 4) adding new treatment processes, necessary to treat
restricted wastes to meet treatment standards, that take place in tanks or containers.
Federal Authority: RCRA §§2002(a), 3004, 3005 and 3006; 40 CFR 270.42 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
V. State statutes and regulations incorporate updates to 40 CFR Part 124 as
indicated in Revision Checklist 70.
Federal Authority: RCRA §§6901 and 6902; 40 CFR 124.3, 124.5, 124.6, 124.10 and
124.12 as amended April 1, 1963 (48 FR 14146), June 30, 1983 (48 FR 30113), July 26,
1988 (53 FR 28118), September 26, 1988 (53 FR 37396) and January 4, 1989 (54 FR
246).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
30
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XVII. MINIMUM TECHNOLOGICAL REQUIREMENTS
A. State statutes and regulations require that new units, expansions, and
replacements of interim status waste piles meet the requirements for a single liner and
leachate collection system in regulations applicable to permitted waste piles as indicated in
the Revision Checklist 17 H.
Federal Authority: RCRA §3015(a); CFR 265.254 as amended. July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulation require that:
(1) New units, expansions, and replacement units at Interim status landfills and
surface impoundments and permitted landfills and surface impoundments meet the
requirements for double liners and leachate collection systems applicable to new permitted
landfills and surface impoundments in 40 CFR 264.221 and 264.301 and 265.221 and
265.301 as indicated in Revision Checklist 17 H.
(2) [OPTIONAL: This is a reduced requirement] Facilities which comply in good
faith need not retrofit at permit issuance unless the liner is leaking as provided in
§§265.221 (e) and 265.301 (e) as indicated in Revision Checklist 17 H.
(3) [OPTIONAL: This is a reduced requirement.] Variances from the above
requirements are optional. However, the availability of such variances is restricted as
provided in §§264.221 (d) and (e), 264.301 (d) and (e), 265.221 (c) and (d), and 265.301 (c)
and (d) as indicated in Revision Checklist 17 H.
Federal Authority: RCRA §3015(b); 40 CFR 264.221, 265.221 and 265.301 as amended
July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XVIII. EXPOSURE ASSESSMENTS
A. State laws and regulations require permit applicants for landfills or surface
impoundments to submit exposure information as indicated in Revision Checklist 17 S.
Federal Authority: RCRA §3019(a); 40 CFR 270.10(1) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
31
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B. State laws and regulations allow the State to make assessment information
available to the Agency for Toxic Substances and Disease Registry. (See CERCLA
§1040).]
Federal Authority: RCRA §3019(b).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
XIX. AVAILABILITY OF INFORMATION
A. State statutes and regulations provide that:
(1) All records shall be available to the public unless they are exempt from the
disclosure requirements of the Federal FOIA, 5 U.S.C. 552;
(2) All nonexempt records will be available to the public upon request regardless of
whether any justification or need for such records has been shown by the requestor;
(3) The same types of records would be available to the public from the State as
would be available from EPA. [In making this certification, the Attorney General should be
aware of the types of documents EPA generally releases under the FOIA, subject to claims
of business confidentiality: permit applications; biennial reports from facilities; closure plans;
notification of a. facility closure; contingency plan incident reports; delisting petitions;
financial responsibility instruments; ground-water monitoring data (note that exemptions 5
U.S.C.552(b)(9) of the FOIA applies to such wells as oil and gas, rather than to
ground-water wells); transporter spill reports; international shipment reports; manifest
exception, discrepancy and unmanifested waste reports; facility EPA identification numbers;
withdrawal requests; enforcement orders; and, inspection reports]; and,
(4) Information is provided to the public in substantially the same manner as EPA
as indicated in 40 CFR Part 2 and the Revision Checklist in Appendix N of the State
Authorization Manual. [OPTIONAL Where the State agrees to implement selected
provisions through the use of a Memorandum of Agreement (MOA) the Attorney General
must certify that: The State has the authority to enter into and carry out the MOA
provisions and there are no State statutes (e.g., State Administrative Procedures Acts)
which require notice and comment or promulgation of regulations for the MOA procedures
to be binding.]
(5) [OPTIONAL- The State statutes and regulations protect Confidential Business
Information (CBI) to the same degree as indicated in 40 CFR 2 and the Revision Checklist
in Appendix N of the State Authorization Manual. Note, that States do not have to protect
CBI, to satisfy 3006(f). However, if a State does extend protection to CBI then it cannot
restrict the release of information that EPA would require to be disclosed.]
Federal Authority: RCRA §3006(f); 40 CFR §271.17(c).
Citation of Laws and Regulations: Date of Enactment nd Adoption
Remarks of the Attorney General
32
-------
XX BURNING OF WASTE FUEL AND USED OIL FUEL IN BOILERS AND
INDUSTRIAL FURNACES
A. State statutes and regulations contain the following requirements regarding the
burning of waste fuel and used oil fuel for energy recovery In boilers and industrial
furnaces as indicated in Revision Checklist 19:
(1) Waste fuels and used oil fuels are identified as solid wastes so as to
encompass ali such wastes controlled under 40 CFR 261.3, 261.5 and 261.6.
(2) Special management standards for generators, transporters, marketers and
burners of hazardous waste and used oil burned for energy, as set forth in 40 CFR
264.340, 265.340, 266.30-35 and 266.40-44.
Federal Authority: RCRA §§3001, 3004, 3014(a); 40 CFR Parts 261, 264, 265 and 266 as
amended November 29, 1985 (50 FR 49164), November 19, 1986 (51 FR 41900) and April
13, 1987 (52 FR 11819).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations provide the authority to obtain criminal penalties
for violations of the waste fuel and used oil fuel requirements, as set forth in 40 CFR
266.40-44.
Federal Authority: RCRA §§3006(h), 3008(d), 3014; 40 CFR 271.16.
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XXI. LAND DISPOSAL RESTRICTIONS
A. State statutes and regulations provide for the restrictions of the land disposal of
certain spent solvents and dioxin-containing hazardous wastes as indicated in Revision
Checklists 34, 39, and 50.
Federal Authority: §3004(d)-(k) and (m); 40 CFR Parts 260, 261, 262, 263, 264, 265, 268
and 270 as amended on November 7, 1986 (51 FR 40572), June 4, 1987 (52 FR 21010),
July 8, 1987 (52 FR 25760), and August 17, 1988 (53 FR 31138).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations for restricting the disposal of certain California list
wastes, including liquid hazardous waste containing polychtorinated biphenyls (PCBs) above
specified concentrations, and hazardous waste containing halogenated organic compounds
(HOCs) above specified concentrations as indicated In Revision Checklists 39, 50, and 66.
33
-------
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Parts 262, 264, 265, 268 and 270
as amended on July 8, 1987 (52 FR 25760), October 27, 1987 (52 FR 41295), August 17,
1988 (53 FR 31138), and September 6, 1989 (54 FR 36967).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations for specific treatment standards and effective
dates for certain wastes from the "First Third" of the schedule of restricted wastes listed in
40 CFR 268.10 as well as land disposal restrictions for those First Third wastes for which
a treatment standard is not established as indicated in Revision Checklists 50, 62 and 66.
Federal Authority: RCRA §3004 (d)-(k) and (m); 40 CFR Parts 264, 265, 266 and 268 as
amended on August 17, 1988 (53 FR 31138), February 27, 1989 (54 FR 8264), May 2,
1989 (54 FR 18836), September 6, 1989 (54 FR 36967), and June 13, 1990 (55 FR
23935).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations for certain treatment standards and prohibition
effective dates for certain Second Third wastes and for imposing the "soft hammer"
provisions of 40 CFR 268.8 on Second Third wastes for which the Agency is not
establishing treatment standards as indicated in Revision Checklist 63.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 268 as amended June 23,
1989 (54 FR 26594).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
E. State statutes and standards for treatment standards and effective dates for
certain First Third "soft hammer" wastes as well as for certain wastes originally contained
in the Third Third of the Schedule as indicated in Revision Checklist 63.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Parts 264, 265 and 268 as
amended June 23, 1989 (54 FR 26594).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XXJI. MEMORANDUM OF AGREEMENT (MOA)
[If the State uses the MOA to satisfy Federal procedural requirements, the Attorney
General must certify the following:
(1) The State has the authority to enter into the agreement,
34
-------
(2) The State has the authority to carry out the agreement, and
(3) No applicable State statute (including the State Administrative Procedure Act)
requires that the procedure be promulgated as a rule in order to be binding.]
Seal of Office
Signature
Name (Type or Print)
Title
Date
35
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I. Index to the checklist entries found In the
Model Revision Attorney General's Statement
Revision checklist number/name
Subsections pertaining to checklist
1. Biennial Report
2. Permit Rule: Settlement
Agreement
3. Interim Status Standards
4. Chlorinated Aliphatic Hydrocarbons
5. National Uniform Manifests
6. Permit Rule - Deficient Part A
Applications
7. Listing Warfarin & Zinc Phosphide
8. Lime Stabilized Pickle Uquor Sludge
9. Exclusion of Household Waste
10. Interim Status Standards -
Applicability
11. Corrections to Test Methods Manual
12. Satellite Accumulation Standards
13. Definition of Solid Wastes
14. Dioxin Listing and Management
Standards
15. Interim Status Standards for
Treatment Storage, and Disposal
Facilities
16. Paint Filter Test
17 A. Small Quantity Generators
(Superceded: See Checklist 23)
17 B. Delisting
17 C. Household Waste
17 D. Waste Minimization
17 E. Location Standards for Salt
Domes, Salt Beds, Underground
Mines, and Caves
17 F. Liquids in Landfills
17 G. Dust Suppression
17 H. Double Uners
17 I. Ground-water Monitoring
17 J. Cement Kilns
17 K. Fuel Labeling
VIII A
XV E
V A
VII A
XVIJ
IA(2)
I D
I E
V A
I F
IV A
II A
III A
XV F
VI
I B
I C(1)&(2)
I E
IX A(1)&(2)
XV A & B
VI A; X A
XV C
XVII A; XVII B(1),(2)&(3)
XI A& B
XII A(1)&(2)
XII A(2)
Continued.
36
-------
I. Index to the checklist entries found In the
Model Revision Attorney General's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
17 L Corrective Action
17 M. Pre-construction Ban
17 N. Permit Ufe
17 O. Omnibus Provision
17 P. Interim Status
17 Q. Research & Development Permits
17 R. Hazardous Waste Exports
17 S. Exposure Information
18. Listing of TDI, TDA, DNT
19. Burning of Waste Fuel and Used Oil
20. Spent Solvents Listing
21. EDB Waste Listing
22. Four Spent Solvents Listing
23. Small Quantity Generators
24. Financial Responsibility:
Settlement Agreement
25. Paint Filter Test - Correction
26. Listing of Spent Pickle Liquor
27. Corporate Guarantee - Liability
Coverage
28. Hazardous Waste Storage and Tank
Systems
29. Correction - Commercial Chemical
Products and Appendix VIII
30. Biennial Reports; Correction
31. Exports of Hazardous Wastes
32. Standards for Generators - Waste
Minimization Certifications
33. Listing of EBDC
34. Land Disposal Restrictions
35. Revised Manual SW-846; Amended
Incorporation by Reference
36. Closure/Post-Closure Care for
Interim Status Surface Impoundments
XIII A(1),(2),(3)&(4); XVI H
XVI A
XVI B
XVI C
XVI D(1),(2),(3)&(4); XVI E & F
XVI G
XIV A
XVIII A
IA(3)
XX A
IA(4)
IA(5)
IA(6)
I B
XV G
VI; X A
IA(7)
XV H
XV I
IA(8)
VIII A; IX A
XIV A
I B; VII A; IX A(1)&(2)
IA(9)
XXI A
I F
XV G
Continued.
37
-------
I. Index to the checklist entries found In the
Model Revision Attorney Qeneral's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
37.
38.
39.
40.
41.
42.
43.
Definition of Solid Wastes;
Technical Corrections
Amendments, Part B - Information
Requirements for Disposal Facilities
California List Waste Restrictions
List (Phase I) of Hazardous
Constituents for Ground-water
Monitoring
Identification and Listing of
Hazardous Waste
Exception Reporting for Small
Quantity Generators
Liability Requirements; Corporate
Guarantee
44 A. Permit Application Requirements
Regarding Corrective Action
44 B. Corrective Action Beyond Facility
Boundary
44 C. Corrective Action for Injection Wells
44 D. Permit Modification
44 E. Permit as Shield Provision
44 F. Permit Conditions to Protect Human
Health and the Environment
44 G. Post-closure Permits
45. Hazardous Waste Miscellaneous
Units
46. Technical Correction - Identification
and Listing of Hazardous Waste
47. Small Quantity Generators;
Technical Correction
48. Farmer Exemption; Technical
Correction
49. TreatabiHty Studies Sample
Exemption
50. Land Disposal Restrictions
for First Third Scheduled Wastes
II A
XIII B
XXI B
XI C
IA(8)
VII B
XV H
XIII C
XIII D
XIII E(1),(2)&(3)
XVI K
XVI L
XVI M
XVI N
VII C; XIII F; XV G; XV J; XVI O
IA(8)
I B
XIV A
I H
XXI A, B & C
Continued.
38
-------
I. Index to the checklist enrrles found In the
Model Revision Attorney General's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
51. Liability Coverage for Owners/
Operators of Treatment, Storage,
and Disposal Facilities
52. Standards for Hazardous Waste
Storage and Treatment Tank
Systems
53. Identification and Listing of
Hazardous Waste; and Designation,
Reportable Quantities and
Notification
54. Permit Modifications for Waste
Management Facilities
55. Statistical Methods for Evaluating
Ground-Water Monitoring Data from
Hazardous Waste Facilities
56. Removal of Iron Dextran from the
Lists of Hazardous Wastes
57. Removal of Strontium Suffide from
the Lists of Hazardous Wastes
f58. Standards for Generators of
Hazardous Waste; Manifest
Renewal
59. Hazardous Waste Miscellaneous
Units; Standards Applicable to
Owners and Operators
60. Amendment to Requirements for
Hazardous Waste Incinerator Permits
61. Changes to Interim Status Facilities
for Hazardous Waste Management
Permits;
Modifications of Hazardous Waste
Management Permits;
Procedures for Post-Closure
Permitting
62. Land Disposal Restrictions
Amendments to First Third
Scheduled Wastes
63. Land Disposal Restrictions for
Second Third Scheduled Wastes
Withheld, no entry as yet
XV I
I I
XVI P
XI D
I A(10)
VII D
XVI O
XVI Q
XVI R & S
XVI U
XVI T
XXI C
XXI D & E
Continued.
39
-------
I. Index to the checklist entries found In the
Model Revision Attorney Qeneral's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
64. Delay of Closure Period for Hazardous
Waste Management Facilities XV K
65. Mining Waste Exclusion I I J
66. Land Disposal Restrictions; Correction
to First Third Scheduled Wastes XXI C
67. Testing and Monitoring Activities I K
68. Reportable Quantity Adjustment Methyl
Bromide Production Waste I A (12)
69. Reportable Quantity Adjustment I A (13)
70. Changes to Part 124 Not Accounted
for by Present Checklists XVI V
40
-------
II. Index to the non-checklist entries found In the
Model Revision Attorney General's Statement
Description
Pertinent subsections
Agency for Toxic Substances and Disease
Registry, making assessment information
available to XVIII B
Availability of Information XIX A(1)-(5)
Burning and blending of hazardous waste,
RCRA §§3004(q)(2)(A) & 3004(r)(2) & (3)
exceptions XII B
Criminal penalties for waste fuel and
used oil fuel requirement violations XX B
Radioactive mixed wastes, hazardous
components of I G
Surface Impoundments:
1. compliance with new unit require-
ments by November 8, 1988 or
stop hazardous waste activity for
units existing prior to November 8,
1984 or becoming subject to RCRA
pursuant to §3005(j)(6)(A) or (B) XVI 1(1)
2. disposal of waste prohibited from
land disposal under RCRA §3004(d),
(e)or(g) XVI 1(2)
3. variance under RCRA §3005(j)(2-9)
and (13) XVI l(3)
Third party direct action against financial
responsibility insurer or granter XV D
41
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TABLE G-1. LIST OF REVISION CHECKLISTS BY CLUSTER
Through December 31, 1989
Revision
Checklist
Number
Federal Requirement
HSWA or FR
Reference
Non-HSWA Requirements prior to non-HSWA Cluster I (January
June 30, 1 984; Due Date - one year after the promulgation date
1
2
3
4
5
t6
t7
t8
t9
10
11
T12
13
rule')
Biennial Report [See Revision Checklist
30]
Permit Rules - Settlement Agreement
Interim Status Standards - Applicability
[See Revision Checklist 10 in non-HSWA
Cluster I]
Chlorinated Aliphatic Hydrocarbon Listing
(F024)
National Uniform Manifest [See Revision
Checklists 17 D & 32 in HSWA Cluster I]
Permit Rules: Settlement Agreement
Warfarin & Zinc Phosphide Listing
Lime Stabilized Pickle Uquor Sludge
Non-HSWA Cluster I (July 1. 1984 - June 30
State Availability of Information
Household Waste
Interim Status Standards - Applicability
Corrections to Test Methods Manual
Satellite Accumulation
Definition of Solid Waste
[Definition of Solid Waste; Correction (See
48 FR 3977
48 FR 39611
48 FR 52718
49 FR 5308
49 FR 10490
49 FR 17716
49 FR 19922
49 FR 23284
Promulga-
tion or
HSWA Date
26, 1983 -
of the final
1/28/83
9/1/83
11/22/83
2/10/84
3/20/84
4/24/84
5/10/84
6/5/84
1985: Due Date - July 1. 19861)
HSWA §3006(f)
49 FR 44978
49 FR 46094
49 FR 47390
49 FR 49568
50 FR 614
50 FR 14216
11/8/84
11/13/84
11/21/84
12/4/84
12/20/84
1/4/85
4/11/85
Revision Checklist 13 in non-HSWA
Cluster I)]
Continued
-------
Revision
Checklist
Number
15
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Federal Requirement
Non-HSWA Cluster I (cont'd)
Interim Status Standards for Treatment,
Storage, and Disposal Facilities
HSWA or FR
Reference
50 FR 16044
[Definition of Solid Waste; Correction (See 50 FR 33541
Revision Checklist 13 in non-HSWA
Cluster I)]
Promulga-
tion or
HSWA Date
4/23/85
8/20/85
Non-HSWA Cluster II (July 1. 1985 - June 30. 1986: Due Date - July 1.
T9871)"
24 Financial Responsibility: Settlement
Agreement [See non-HSWA Cluster VI]
|26 Listing of Spent Pickle Liquor (K062)
51 FR 16422
51 FR 19320
5/2/86
5/28/86
Non-HSWA Cluster III (July 1. 1986 - June 30. 1987: Due Date - July 1.
T98T)
Radioactive Mixed Waste (See SPA 2)
f27 Liability Coverage - Corporate Guarantee
[See Revision Checklist 43 In non-HSWA
Cluster IV]
28 Standards for Hazardous Waste Storage
and Treatment Tank Systems [Certain
sections superseded by 53 FR 34079, see
Revision Checklist 52 In non-HSWA
Cluster V; also see HSWA Cluster I]
29 Correction to Listing of Commercial
Chemical Products and Appendix VIM
Constituents [Completely superseded by
53 FR 13382; use Revision Checklist 46 In
non-HSWA Cluster IV to replace this
checklist]
51 FR 24504
51 FR 25350
51 FR 25422
51 FR 28296
7/3/86
7/11/86
7/14/86
8/6/86
Continued
-------
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Revision
Checklist
Number
35
36
37
38
Federal Requirement
Non-HSWA Cluster III (cont'd)
[Standards for Hazardous Waste Storage
and Treatment Tank Systems; Correction
(See Revision Checklist 28 in non-HSWA
Cluster III)]
t [Listing of Spent Pickle Liquor; Correction
(See Revision Checklist 26 In non-HSWA
Cluster II)]
Revised Manual SW-846; Amended
Incorporation by Reference
Closure/Post-Closure Care for Interim
Status Surface Impoundments
Definition of Solid Waste; Technical
Corrections
Amendments to Part B Information
Requirements for Land Disposal Facilities
Non-HSWA Cluster IV (Jutv 1. 1987 - June
HSWA or FR
Reference
51 FR 29430
51 FR 33612
52 FR 8072
52 FR 8704
52 FR 21306
52 FR 23447
30. 1988: Due Date
Promulga-
tion or
HSWA Date
8/15/86
9/22/86
3/16/87
3/19/87
6/5/87
6/22/87
- July 1.
1989')
40 List (Phase I) of Hazardous Constituents
for Ground-Water Monitoring
41 Identification and Listing of Hazardous
Waste
52 FR 25942
52 FR 26012
[Listing of Spent Pickle Liquor, Clarification 52 FR 28697
(See Revision Checklist 26 In non-HSWA
Cluster II)]
[Development of Corrective Action
Programs After Permitting Hazardous
Waste Land Disposal Facilities; Corrections
(See Revision Checklist 38 in non-HSWA
Cluster III)]
52 FR 33936
7/9/87
7/10/87
8/3/87
9/9/87
Continued
-------
Revision
Checklist
Number
t43
45
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Promulga-
46
Federal Requirement
Non-HSWA Cluster IV (cont'd)
Liability Requirements for Hazardous
Waste Facilities; Corporate Guarantee
[See Revision Checklist 27 in non-HSWA
Cluster III]2
Hazardous Waste Miscellaneous Units
[See Revision Checklist 59 in non-HSWA
V for technical corrections]
[Standards Applicable to Owners and
Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities;
Closure/Post-Closure and Financial
Responsibility Requirements (See Revision
Checklist 24 In non-HSWA Cluster II)]
Technical Correction; Identification and
Listing of Hazardous Waste (Entirely
supersedes Revision Checklist 29 In non-
HSWA Cluster III)
HSW or FR
Reiurence
52 FR 44314
52 FR 46946
53 FR 7740
53 FR 13382
tion or
HSWA Date
11/18/87
12/10/87
3/10/88
4/22/88
Non-HSWA Cluster V (Jutv 1. 1988 • June 30. 1989: Due Date - July 1.
"J9901)
f49 Identification and Listing of Hazardous
Waste; Treatabilrty Studies Sample
Exemption
51 Standards Applicable to Owners and
Operators of Hazardous Waste Treatment,
Storage and Disposal FadWes; Liability
Coverage [withheld; EPA Is responding to
the settlement of legation surrounding this
rule]
52 Hazardous Waste Management System;
Standards for Hazardous Waste Storage
and Treatment Tank Systems [See
Revision Checklist 28 In non-HSWA
Cluster III; also see HSWA Cluster II]
53 FR 27290
53 FR 33938
53 FR 34079
7/19/88
9/1/88
9/2/88
Continued
-------
Revision
Checklist
Number
53
f54
55
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Federal Requirement
t56
t57
t58
59
60
tei
Non-HSWA Cluster V (cont'd)
Identification and Listing of Hazardous
Waste; and Designation, Reportable
Quantities, and Notification
Permit Modifications for Hazardous Waste
Management Facilities
Statistical Methods for Evaluating Ground-
Water Monitoring Data from Hazardous
Waste Facilities
[Permit Modifications for Hazardous Waste
Management Facilities (See Revision
Checklist 54 in non-HSWA Cluster V)]
Identification and Listing of Hazardous
Waste; Removal of Iron Dextran from the
List of Hazardous Wastes
Identification and Listing of Hazardous
Waste; Removal of Strontium Sulfide from
the List of Hazardous Wastes
Standards for Generators of Hazardous
Waste; Manifest Renewal
Hazardous Waste Miscellaneous Units;
Standards Applicable to Owners and
Operators (Technical correction to Revision
Checklist 45 in non-HSWA Cluster IV)
Amendment to Requirements for
Hazardous Waste Incinerator Permits
Changes to Interim Status Facilities for
Hazardous Waste Management Permits;
Modifications of Hazardous Waste
Management Permits; Procedures for
Post-Closure Permitting
HSWA or FR
Reference
53 FR 35412
53 FR 37912
53 FR 39720
53 FR 41649
53 FR 43878
53 FR 43881
Promulga-
tion or
HSWA Date
9/13/88
9/28/88
10/11/88
10/24/88
10/31/88
10/31/88
53 FR 45089
54 FR 615
54 FR4286
54 FR 9596
11/8/88
1/9/89
1/30/89
3/7/89
Continued
8
-------
Revision
Checklist
Number
f64
65
67
70
24
TABLE G-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Promulga-
tion or
HSWA Date
Federal Requirement
HSWA or FR
Reference
Non-HSWA Cluster Vi (July 1. 1989 - June 30. 1990: Due Date - July 1.
19911) "
Delay of Closure Period for Hazardous
Waste Management Facilities3
Mining Waste Exclusion I
Testing and Monitoring Activities
Financial Responsibility: Settlement
Agreement; Correction [See Revision
Checklist 64]4
54 FR 33376
54 FR 36592
54 FR 40260
Changes to Part 124 Not Accounted for by Various
Present Checklists
55 FR 25976
8/14/89
9/1/89
9/29/89
Various
6/26/90
14
HSWA Cluster I (November 8. 1984 - June 30. 1987: Due Date • July 1.
HSWA §3005Q)
§3004(d)
HSWA
§3004(q)(2)(A)
§3004
-------
Revision
Checklist
Number
16
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
17
t
t
Federal Requirement
HSWA Cluster I (cont'd)
Paint Fitter Test [See Revision Checklist
25 in HSWA Cluster I]
Prohibition of Liquids in Landfills [See
Revision Checklist 17 F in HSWA Cluster
I]
Expansions During Interim Status - Waste
Piles [See Revision Checklist 17 P in
HSWA Cluster q
Expansions During Interim Status -
Landfills and Surface Impoundments [See
Revision Checklist 17 P In HSWA Cluster
I]
Sharing of Information With the Agency for
Toxic Substances and Disease Registry
HSWA Codification Rule [See Revision
Checklist 44 in HSWA Cluster II]
17 A - Small Quantity Generators
[Superseded by 51 FR 10146, see
Revision Checklist 23 in HSWA
Cluster q
17 B - Delisting
17 C - Household Waste
17 D - Waste Minimization [See Revision
Checklist 32 in HSWA Cluster I]
17 E - Location Standards for Salt Domes,
Satt Beds, Underground Mines and
Caves
17 F - Liquids in Landfills [See Revision
Checklist 25 in HSWA Cluster I]
17 Q - Dust Suppression
17 H - Double Liners
17 I - Ground-Water Monitoring
17 J - Cement Kilns
17 K - Fuel Labeling [Superseded by 51
FR 49164, see Revision Checklist
19 In HSWA Cluster
HSWA or FR
Reference
50 FR 18370
HSWA
§3004(c)
HSWA
§3015(a)
HSWA
§3015(b)
HSWA
§3019(b)
50 FR 28702
Promulga-
tion or
HSWA Date
4/30/85
5/8/85
5/8/85
5/8/85
7/15/85
7/15/85
Continued
10
-------
Revision
Checklist
Number
TABLE G-1. LIST OF REVISION CHECKLISTS !*Y CLUSTER
Through December 31, 198*
18
19
20
21
22
23
25
28
Federal Requirement
30
HSWA Cluster I (cont'd)
17 L - Corrective Action
17 M - Pre-construction Ban
17 N - Permit Ufe
17 O - Omnibus Provision
17 P - Interim Status
17 Q - Research and Development Permits
17 R - Hazardous Waste Exports
[Superseded by 51 FR 28644, see
Revision Checklist 31 in HSWA
Cluster I]
17 S - Exposure Information
Listing of TDI, IDA, DNT
Burning of Waste Fuel and Used OH Fuel
in Boilers and Industrial Furnaces
Listing of Spent Solvents
[Listing of Spent Solvents; Correction (See
Revision Checklist 20)]
Listing of EDB Waste
Listing of Four Spent Solvents
Generators of 100 to 1000 kg Hazardous
Waste [See Revision Checklists 42 and 47
in HSWA Cluster II]
Codification Rule, Technical Correction
(Paint Filter Test)
Standards for Hazardous Waste Storage
and Treatment Tank Systems [Certain
sections superseded by 53 FR 34079, see
Revision Checklist 52 in HSWA Cluster II;
also see Non-HSWA Cluster III]
Biennial Report; Correction
HSWA or FR
Reference
(cont'd)
Promulga-
tion or
HSWA Date
50 FR 42936
50 FR 49164
50 FR 53315
51 FR 2702
51 FR 5327
51 FR 6537
51 FR 10146
51 FR 19176
51 FR 25422
10/23/85
11/29/85
12/31/85
1/21/86
2/13/86
2/25/86
3/24/86
5/28/86
7/14/86
51 FR 28556
8/8/86
Continued
11
-------
Revision
Checklist
Number
31
TABLE G-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
32
33
34
Federal Requirement
HSWA or FR
Reference
HSWA Cluster i (cont'd)
Exports of Hazardous Waste [See Revision 51 FR 28664
Checklist 48 in HSWA Cluster II]
[Hazardous Waste Storage and Tank
Systems; Corrections (See Revision
Checklist 28 in HSWA Cluster I)]
Standards for Generators - Waste
Minimization Certifications
Listing of EBDC
Land Disposal Restrictions [Certain
sections superseded by 52 FR 25760 and
53 FR 31138, see Revision Checklists 39
& 50 in HSWA Cluster II, and SPAs 4 &
6]
[Burning of Waste Fuel and Used Oil Fuel
in Boilers and Industrial Furnaces;
Technical Corrections (See Revision
Checklist 19 in HSWA Cluster I)]
[Land Disposal Restrictions; Corrections
(See Revision Checklist 34 in HSWA
Cluster I)]
51 FR 29430
51 FR 35190
51 FR 37725
51 FR 40572
52 FR 11819
52 FR 21010
Promulga-
tion or
HSWA Date
8/8/86
8/15/86
10/1/86
10/24/86
11/7/86
4/13/87
6/4/87
HSWA Cluster II (July 1. 1987 - June 30. 1990: Due Date - July 1. 1991')
39 California List Waste Restrictions [See
Revision Checklist 34 and SPA 4; certain
sections superseded by 53 FR 31138, See
Revision Checklist 50, In HSWA Cluster II,
and SPA 6]
52 FR 25760
7/8/87
Continued
12
-------
Revision
Checklist
Number
42
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Promulga-
44
47
48
50
52
Federal Requirement
HSWA Cluster II (cont'd)
Exception Reporting for Small Quantity
Generators of Hazardous Waste [See
Checklist 23 in HSWA Cluster I]
[California List Waste Restrictions;
Technical Corrections (See Revision
Checklist 39 In HSWA Cluster II)]
HSWA Codification Rule 2 [See Revision
Checklist 17 in HSWA Cluster I]
44 A - Permit Application Requirements
Regarding Corrective Action
44 B - Corrective Action Beyond Facility
Boundary
44 C - Corrective Action for Injection Wells
44 D • Permit Modification
44 E - Permit as a Shield Provision
44 F - Permit Conditions to Protect Human
Health and the Environment
44 G - Post-Closure Permits
Identification and Listing of Hazardous
Waste; Technical Correction (corrects
Revision Checklist 23 in HSWA Cluster I)
Farmer Exemptions; Technical Corrections
(corrects Revision Checklist 31 in HSWA
Cluster I)
Land Disposal Restrictions for First Third
Scheduled Wastes [See Revision Checklist
62 in HSWA Cluster I]
Hazardous Waste Management System;
Standards for Hazardous Waste Storage
and Treatment Tank Systems [Supersedes
certain portions of Revision Checklist 28 in
HSWA Cluster I; also see non-HSWA
Cluster V]
HSWA or FR
Reference
52 FR 35894
52 FR 41295
52 FR 45788
53 FR 27162
53 FR 27164
53 FR 31138
53 FR 34079
tion or
HSWA Date
9/23/87
10/27/87
12/1/87
7/19/88
7/19/88
8/17/88
9/2/88
Continued
13
-------
Revision
Checklist
Number
TABLE Q-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
62
63
66
68
69
Federal Requirement
HSWA Cluster II fcont'd)
[Identification and Listing of Hazardous
Waste; Land Disposal Restrictions--
Administrative Stay (See Revision
Checklist 50 in HSWA Cluster II)]
[Land Disposal Restrictions (See Revision
Checklist 50 in HSWA Cluster II)]
Land Disposal Restriction Amendments to
First Third Scheduled Wastes [amends
portions of Revision Checklist 50 In HSWA
Cluster II]
Land Disposal Restrictions for Second
Third Scheduled Wastes
[Hazardous Waste Management System:
Requirements of Rutemaklng Petitions
(See Revision Checklist 17 B in HSWA
Cluster I)]
Land Disposal Restrictions; Correction to
the First Third Scheduled Wastes
Reportabte Quantity Adjustment Methyl
Bromide Production Wastes
Reportabte Quantity Adjustment
[Land Disposal Restrictions; Correction
(See Revision Checklist 66)]
HSWA or FR
Reference
54 FR 4021
54 FR 8264
54 FR 18836
54 FR 26594
54 FR27114
54 FR 36967
54 FR 41402
54 FR 50968
55 FR 23935
Promulga-
tion or
HSWA Date
1/27/89
2/27/89
5/2/89
6/23/89
6/27/89
9/6/89
10/6/89
12/11/89
6/13/90
t Optional.
'States have an additional year If statutory changes are required.
2Whlte Revision Checklists 27 and 43 are optional, States which have adopted or
choose to adopt the changes addressed by Revision Checklist 27 must adopt Revision
Checklist 43's changes.
Continued
14
-------
TABLE G-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Through December 31, 1989
Revision Promulga-
Checklist HSWA or FR tion or
Number Federal Requirement Reference HSWA Date
*The May 2, 1986 amendments to 40 CFR 264.113 and 265.113, addressed by
Revision Checklist 24, must be adopted before or simultaneous'with adopting the provisions
addressed by Revision Checklist 64. Also see Footnote 4.
4Only those sections, i.e., 40 CFR 264.113 and 265.113, of Revision Checklist 24
(Amended) recharacterized as more stringent by the June 26, 1990 correction are included
in non-HSWA Cluster VI. All other Revision Checklist 24 provisions continue to be
included In non-HSWA Cluster II. States which have already adopted the 264.113 and
265.113 amendments as part of their authorization for Revision Checklist 24 In non-HSWA
Cluster II, are not affected by this correction and do not have to submit an amended
Revision Checklist 24.
15
-------
TABLE Q-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER
Revision
Checklist
Number
2
3
5
t6
t7
t8
Federal Requirement
State Availability of Information [See
Appendix N]
Radioactive Mixed Waste (See SPA
2 and Appendix N)
Direct Action Against Insurers
Surface Impoundment Requirements
Sharing of Information With the
Agency for Toxic Substances and
Disease Registry
Exceptions to the Burning and
Blending of Hazardous Waste
Hazardous and Used CHI Fuel
Criminal Penalties
Biennial Report
Cluster
Non-HSWA Cluster I
Non-HSWA Cluster III
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Permit Rules - Settlement Agreement Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Interim Status Standards -
Applicability
Chlorinated Aliphatic Hydrocarbon
Listing (F024)
National Uniform Manifest
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Permit Rules: Settlement Agreement Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Warfarin & Zinc Phosphide Listing
Lime Stabilized Pickle Liquor Sludge
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Continued
16
-------
Revision
Checklist
Number
TABLE Q-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Federal Requirement
Cluster
f9 Household Waste
10 Interim Status Standards -
Applicability
11 Corrections to Test Methods Manual
f12 Satellite Accumulation
13 Definition of Solid Waste
14 Dloxin Waste Listing and
Management Standards
15 Interim Status Standards for
Treatment, Storage, and Disposal
Facilities
16 Paint Filter Test
17 HSWA Codification Rule
Non-HSWA Cluster I
Non-HSWA Cluster I
Non-HSWA Cluster I
Non-HSWA Cluster I
Non-HSWA Cluster I
HSWA Cluster I
Non-HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
17 A - Small Quantity Generators
t 17 B - Delisting
t 17 C - Household Waste
17 D - Waste Minimization
17 E - Location Standards for Salt
Domes, Salt Beds, Underground
Mines and Caves
17 F - Liquids in Landfills
17 G - Dust Suppression
17 H - Double Uners
17 I - Ground-Water Monitoring
17 J - Cement Kilns
17 K - Fuel Labeling
17 L - Corrective Action
17 M - Pre-construction Ban
17 N - Permit Life
17 O - Omnibus Provision
17 P - Interim Status
t 17 Q - Research and Development
Permits
17 R - Hazardous Waste Exports
Continued
17
-------
TABLE Q-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number
18
19
20
21
22
23
24
25
t26
*t27
28
29
30
31
32
33
Federal Requirement
17 S - Exposure Information
Listing of TDI, TDA, DNT
Burning of Waste Fuel and Used Oil
Fuel In Boilers and Industrial
Furnaces
Listing of Spent Solvents
Listing of EDB Waste
Listing of Four Spent Solvents
Generators of 100 to 1000 kg
Hazardous Waste
Rnanclal Responsibility: Settlement
Agreement
Codification Rule, Technical
Correction (Paint Filter Test)
Listing of Spent Pickle Uquor (K062)
Liability Coverage - Corporate
Guarantee
Standards for Hazardous Waste
Storage and Treatment Tank
Systems
Correction to Listing of Commercial
Chemical Products and Appendix VIII
Constituents
Biennial Report; Correction
Exports of Hazardous Waste
Standards for Generators - Waste
Minimization Certifications
Listing of EBDC
Cluster
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
Non-HSWA Cluster II and Non-HSWA
Cluster VI"
HSWA Cluster I
Non-HSWA Cluster II
Non-HSWA Cluster III
Non-HSWA Cluster III and HSWA
Cluster I
Non-HSWA Cluster III
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
Continued
18
-------
Revision
Checklist
Number
TABLE Q-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Federal Requirement
Cluster
34 Land Disposal Restrictions
35 Revised Manual SW-846; Amended
Incorporation by Reference
36 Closure/Post-Closure Care for Interim
Status Surface Impoundments
37 Definition of Solid Waste; Technical
Corrections
38 Amendments to Part B Information
Requirements for Land Disposal
Facilities
39 California List Waste Restrictions
40 List (Phase I) of Hazardous
Constituents for Ground-Water
Monitoring
41 Identification and Listing of
Hazardous Waste
42 Exception Reporting for Small
Quantity Generators of Hazardous
Waste
*t43 Liability Requirements for Hazardous
Waste Facilities; Corporate
Guarantee
HSWA Cluster I
Non-HSWA Cluster III
Non-HSWA Cluster III
Non-HSWA Cluster III
Non-HSWA Cluster III
HSWA Cluster II
Non-HSWA Cluster IV
Non-HSWA Cluster IV
HSWA Cluster II
Non-HSWA Cluster IV
Continued
19
-------
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number
44
45
46
47
48
T49
50
51
Federal Requirement
HSWA Codification Rule 2
44 A - Permit Application
Requirements Regarding
Corrective Action
44 B - Corrective Action Beyond
Facility Boundary
44 C - Corrective Action for
Injection Wells
44 D - Permit Modification
44 E - Permit as a Shield
Provision
44 F - Permit Conditions to Protect
Human Health and the
Environment
44 G - Post-Closure Permits
Hazardous Waste Miscellaneous
Units
Technical Correction; Identification
and Listing of Hazardous Waste
Identification and Listing of
Hazardous Waste; Technical
Correction
Farmer Exemptions; Technical
Corrections
Identification and Listing of
Hazardous Waste; TreatablRty
Studies Sample Exemption
Land Disposal Restrictions for First
Third Scheduled Wastes
Standards Applicable to Owners and
Operators of Hazardous Waste
Treatment, Storage and Disposal
Facilities; Liability Coverage
[withheld; EPA Is responding to the
settlement of litigation surrounding
this rule]
Cluster
HSWA Cluster II
Non-HSWA Cluster IV
Non-HSWA Cluster IV
HSWA Cluster II
HSWA Cluster II
Non-HSWA Cluster V
HSWA Cluster II
Non-HSWA Cluster V
Continued
20
-------
Revision
Checklist
Number
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Federal Requirement
Cluster
52 Hazardous Waste Management
System; Standards for Hazardous
Waste Storage and Treatment Tank
Systems
53 Identification and Listing of
Hazardous Waste; and Designation,
Reportable Quantities, and
Notification
f54 Permit Modifications for Hazardous
Waste Management Facilities
55 Statistical Methods for Evaluating
Ground-Water Monitoring Data from
Hazardous Waste Facilities
f56 Identification and Listing of
Hazardous Waste; Removal of Iron
Dextran from the Ust of Hazardous
Wastes
t57 Identification and Listing of
Hazardous Waste; Removal of
Strontium Sulflde from the Ust of
Hazardous Wastes
t58 Standards for Generators of
Hazardous Waste; Manifest Renewal
Non-HSWA Cluster V and HSWA
Cluster II
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
59 Hazardous Waste Miscellaneous
Units; Standards Applicable to
Owners and Operators
60 Amendment to Requirements for
Hazardous Waste Incinerator Permits
Non-HSWA Cluster V
Non-HSWA Cluster V
21
Continued
-------
TABLE Q-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number
f61
62
63
64
65
66
67
68
69
70
Federal Requirement
Changes to Interim Status Facilities
for Hazardous Waste Management
Permits; Modifications of Hazardous
Waste Management Permits;
Procedures for Post-Closure
Permitting
Land Disposal Restriction
Amendments to First Third
Scheduled Wastes
Land Disposal Restrictions for
Second Third Scheduled Wastes
Delay of Closure Period for
Hazardous Waste Management
Facilities
Mining Waste Exclusion I
Land Disposal Restrictions;
Correction to First Third Scheduled
Wastes
Testing and Monitoring Activities
Reportabte Quantity Adjustment
Methyl Bromide Production Wastes
Reportable Quantity Adjustment
Changes to Part 124 Not Accounted
for by Present Checklists
Cluster
Non-HSWA Cluster V
HSWA Cluster II
HSWA Cluster II
Non-HSWA Cluster VI
Non-HSWA Cluster VI
HSWA Cluster II
Non-HSWA Cluster VI
HSWA Cluster II
HSWA Cluster II
Non-HSWA VI
Optional.
White Revision Checklists 27 and 43 are optional, states which have adopted or
choose to adopt the changes addressed by Revision Checklist 27, must adopt
Revision Checklist 43's changes.
Only those sections, i.e., 40 CFR 264.113 and 265.113, of Revision Checklist 24
(Amended) recharacterized as more stringent by the June 26, 1990 correction are
included In non-HSWA Cluster VI. All other Revision Checklist 24 provisions continue
to be included In non-HSWA Cluster II. States which have already adopted the
264.113 and 265.113 amendments as part of their authorization for Revision Checklist
22
-------
TABLE Q-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (eont'd)
Revision
Checklist
Number Federal Requirement Cluster
24 In non-HSWA Cluster II, are not affected by this correction and do not have to
submit an amended Revision Checklist 24.
23
-------
Revision Checklist Linkage Table
as of December 31, 1989
Revision Linked
Checklist Number Checklists Topic or Explanation
1 17 D, 30 Biennial Report
2 — Permit - Settlement Agreement1
3 10 Interim Status - Applicability
4 — Chlorinated Aliphatic Hydrocarbon Listing
5 17 0,32,58 National Uniform Manifest Requirements
6 — Permit - Settlement Agreement'
7 ~ Warfarin & Zinc Phosphate Listing
8 — Lime Stabilized Pickle Liquor Sludge
9 17 C Household Waste Exclusion
10 3 Interim Status - Applicability
11 35,67 Corrections to Test Methods Manual
12 — Satellite Accumulation
13 37 Definition of Solid Waste
14 — Dioxin Waste Listing and Management
Standards
15 — Landfill Interim Status
16 25 Paint Filter Test
17 A2 23,42,47 Small Quantity Generators
17 B — DelistJng
17 C 9 Household Waste Exclusion
17 D 1,5,30,32,58 Biennial Report/National Uniform Manifest
17 E — Salt Domes, Salt Beds, Underground
Mines and Caves Standards
17 F — Liquids in Landfills
17 G — Dust Suppression
17 H — Double Liners
17 I — Ground-Water Monitoring
17 J — Cement Kilns
17 K9 — Fuel Labeling
17 L — Corrective Action
17 M — Pre-constructlon Ban
17 N ~- Permit Life
Continued..
-------
Revision Checklist Linkage Table (cont'd)
Revision
Checklist Number
170
17 P
17 Q
17 R4
17 S
18
19
20
21
22
23
24
25
26
27
285
29'
Linked
Checklists
—
31,48
22
20
17 A.42,47
64
16
43
52
46
Topic or Explanation
Omnibus Provision
Interim Status
Research and Development Permits
Hazardous Waste Exports
Exposure information
TDI, TDA, & DNT Listing
Waste Fuel/Used Oil Fuel
Spent Solvents Listing
EDB Waste Listing
Four Spent Solvents Listing
Small Quantity Generators
Rnancial Responsibility - Settlement
Agreement
Paint Filter Test
Spent Pickle Liquor Listing
Corporate Guarantee
Hazardous Waste Tank Systems
Listings • 261 .33(e)&(f ) and Associated
30
31
32
33
34
35
36
37
38
39
40
41
1,17 D
17 R,48
5,17 D.58
39,50,62,63,66
11,67
13
34,50,62,63,66
Appendices
Biennial Report
Exports of Hazardous Waste
National Uniform Hazardous Waste
Manifest
EDBC Listing
Land Disposal Restrictions
Corrections - Test Methods Manual
Surface Impoundments: Closure/Post
Closure Care
Definition of Solid Waste
Part B Information Requirements
Amendment
Land Disposal Restrictions
List of Hazardous Constituents for
Ground-Water Monitoring
Container/Liner Residues
Continued.
-------
Revision Checklist Linkage Table (cont'd)
Revision Linked
Checklist Number Checklists Topic or Explanation
42 17 A.23,47 Small Quantity Generators
43 27 Corporate Guarantee
44 A — Permits/Corrective Action
44 B -- Corrective Action Beyond Facility
Boundary
44 C — Corrective Action for Injection Wells
44 D 54 Permit Modification
44 E — Permit as a Shield Provision
44 F — Permit Conditions/Health-Environment
44 G ~- Post-Closure Permits, Scope of
Requirement
45 59 Miscellaneous Units
46 29 Listings 261.33(e),(f) and Associated
Appendices
47 17 A.23,42 Small Quantity Generators
48 17 R,31 Hazardous Waste Exports
49 — Sample Exemption
50 34,39,62,63,66 Land Disposal Restrictions
51 — Liability Coverage
52 28 Hazardous Waste Tank Systems
53 — Smelting Waste Listing
54 44 D Permit Modification
55 — Ground-Water Monitoring Statistical
Methods
56 — Iron Dextran Listing Removal
57 — Strontium Sufflde Listing Removal
58 5,17 0,32 National Uniform Manifest
59 45 Miscellaneous Units
60 — Incinerator Permits
61 — Changes to Interim Status Facilities
— Reconstruction Limits
54 Modifications to Hazardous Waste
Management Permits
— Procedures for Post-closure Permitting
62 34,39,50,63,66 Land Disposal Restrictions
Continued.
-------
Revision Checklist Linkage Table (cont'd)
Revision
Checklist Number
63
64
65
66
67
68
69
Linked
Checklists
34,39,50,62,66
24
34,39,50,62,63
11,35
Topic or Explanation
Land Disposal Restrictions
Delay of Closure Period for Hazardous
Waste Management Facilities
Mining Waste Exclusion I
Land Disposal Restrictions
Testing and Monitoring Activities
Methyl Bromide Production Wastes
Chlorinated Aliphatic Hydrocarbon
Production Wastes
70 -- Updates to Part 124
'These are checklists affecting the lists of hazardous waste in 40 CFR 261, Subpart D.
1 While Revision Checklists 2 and 6 address similar topics, they affect different sections of
code.
2 Superseded by Revision Checklist 23.
3 Superseded by Revision Checklist 19.
4 Superseded by Revision Checklist 31.
5 Contains sections superseded by Revision Checklist 52.
* Superseded by Revision Checklist 46.
6
-------
ATTACHMENT C
Revised Checklists
-------
The following revised Revision Checklist 50 should
replace the previous version of this checklist.
-------
RCRA REVISION CHECKLIST 50
Land Disposal Restrictions for First Third
Scheduled Wastes
53 FR 31138-31222
August 17, 1988
as amended on February 27, 1989, at 54'FR 8264-8266
(HSWA Cluster II)
Notes: 1) The "First Third" Scheduled Waste rule addressed by this checklist is the third in a
series of rules restricting the land disposal of hazardous waste. Previous related checklists
include Revision Checklists 34 and 39. The First Third Scheduled Waste rule was subsequently
modified by corrections at 54 FR 18836, and 54 FR 36967 addressed by Revision Checklists 62
and 66, respectively. Also, related to this present checklist are the Second Third Scheduled
Wastes (54 FR 26594, Revision Checklist 63) and the Third Third Scheduled Waste (55 FR
22520, Revision Checklist 78). Revision Checklist 78 is not yet finalized.
2) Certain sections or paragraphs of the land disposal restrictions are not delegabte, specifically
§§268.5, 268.42(b) and 268.44. These continue to be nondelegable. With regard to §268.6, "no-
migration" petitions, EPA will continue to handle these petitions at Headquarters although States
may be authorized to grant these petitions in the future.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
si ATI: ANALOQ IS:
MORE
STRINGENT
BROADER
IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL WASTE ANALYSIS
GENERAL WASTE ANALYSIS
clarify language and
apply testing to soft
hammer wastes in
treatment surface
ImDoundmerrts
apply to wastes that
do not meet treatment
apply to wastes for
which no treatment
standards are
established
prohibited disposal
of residues under
268.32 or 3004W)
264.1 3(b)(7)
Oil)
264.1 3(b)(7)
flHMA)
264.13(b)(7)
(iii)fB)
264.13(b)(7)
fflMBMD
August 17, 1988 - Page 1 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
prohibited disposal
of residues
under 268.33(f)
FEDERAL RCRA CtTATION
264.13(b)(7)
ffil)(BM2)
ANALOGOUS
STATE CITATION
STATE ANALOG 15:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING AND REPORTING
1 OPERATING RECORD
remove "or" after
268.5; add clause on
268.8 certification;
add "applicable"
before "notice
required"; change
"268.7(a)(3)"
to "268.7(a)"
add "and the certi-
fication and demon-
stration, If
applicable" and "or
the owner or
operator"; change
"268.7(a)(1) to
"268.7 or 268.8"
add 1) clause on
certification/
demonstration, and
2) "or the owner
or operator";
substitute
"268.7 or 268.8"
for "268.7(a)(1)";
change placement of
"except the manifest
number," excluding
the word "for."
add "and demonstra-
tion If applicable";
move reference to
generator, replace
"268.7(b)(1) and
(2)" and
"268.7(a)(2)" with
•268.7 and 268.8,
whichever is
applicable
264.73(W(10)
264.73(bU11)
264.73(bH12)
264.73(b)M3)
--
August 17, 1988 - Page 2 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
change structure;
add specific mention
of "the generator"
moving the place-
ment of the refer-
ence to "treater"
and replacing it with
"or owner or operator
of a treatment
facility"; replace
"268.7(a){2)" and
"268.7(b)(1)" with
"268.7"; add clause
on certification/
demonstration
referencinq 268.8
add new paragraph
on off-site storage
facility
requirements
add new paragraph
on on-site storage
facility
requirements
FEDERAL RCRA CITATION
264.73(b)(14)
264.73(bM15)
264.730>H16)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
"EoTJTV^
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
_
PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
GENERAL WASTE ANALYSIS
clarify language and
apply testing to soft
hammer wastes in
treatment surface
impoundments
apply to wastes that
do not meet treatment
standards
apply to wastes for
which no treatment
standards are
established
265.1 3(b)(7)
mi)
265.1 3(b)(7)
(iiiUA)
265.1 3(b)(7)
(iiiHB)
August 17, 1988 - Page 3 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
prohibited disposal
of residues under
268.32 or 3004(d)
prohibited disposal
of residues under
268.33(f)
FEDERAL RCRA CITATION
265.13(b)(7)
fllMBMD
265.13(b)(7)
(iii)(BK2)
ANALOGOUS
STATE CITATION
SI ATE: ANALOG IS:
"KSOIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING, AND REPORTING
1 OPERATING RECORD
after 268.5 replace
1) "or" with
"monitoring data
required pursuant
to" and 2) "pur-
suant to" with
"under"; Insert
clause on certifi-
cation after
"268.8"; add
"applicable"
before "notice";
replace "268.7(a)(3)"
with "268.7(a)"
add 1) "a copy of
before "the notice,"
2) "and the certi-
fication and
demonstration if
applicable" after
"the notice" and 3)
"or the owner or
operator" after
"generator"; replace
"268.7(a)(1)" with
"268.7 or 268.8"
265.73(W(8)
265.730>)(9)
'
August 17, 1988 - Page 4 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
add 1) clause on
certification/
demonstration,
after "notice" and
2) "or the owner or
operator" after
"generator"; move
manifest number
clause; substitute
"268.7 or 268.8"
for "268.7(a)(D"
add 1) "a copy of
before "notice"
and 2) "and demon-
stration if
applicable" after
"certification";
restructure para-
graph and move
reference to
generator; replace
"268.7(b)" and
"268.7(a)(2)" with
268.7 or 268.8"
restructure para-
graph moving clause
on manifest number
and placement of
"treatment facility";
add 1) "owner or
operator of a"
before "treatment
facility" and 2)
"and the certifica-
tion and demonstra-
tion if applicable"
before "required";
replace "268.7(a)(2)"
and "268.7(b)(2)"
with "268.7 or
268.8":
add new paragraph on
requirements for
off-site storage
facilities
FEDERAL RCRA CtTATtON
265.73(b)(10)
265.73(b)(11)
265.73(b)(12)
265.73(bM13)
ANALOGOUS
STATE CITATION
STATE ANALOG IS'
EQU1V-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 17, 1988 - Page 5 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
add new paragraph on
requirements for
on-site storage
facilities
FEDERAL RCRA CITATION
265.74(b)(14)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV?
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND
SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
SUBPART C - RECYCLABLE MATERIALS USED IN A MANNER CONSTITUTING DISPOSAL
APPLICABILITY
add language to
reflect that products
for general public's
use are not subject
to regulation if they
meet treatment
requirements of 268
Subpart D or prohibi-
tion levels of 268.32
or 3004(d) where no
treatment standards;
zinc-containing
fertilizers using
K061 not subject to
this requirement
266.20(b)
PART 268 - LAND DISPOSAL RESTRICTIONS
SUBPART A - GENERAL
2 PURPOSE. SCOPE. AND APPLICABILITY
remove old
268.1 (c)(3);
redesignate
268.1 (c)(4) as
268.1 (cM3)
redesignate old
268.1 (c)(5) as
268.1 (c)(4)
and revise
268.1 (cN3)
268.1 fcM
August 17, 1988 - Page 6 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
add new
268.1(c)(5)~
landfills/surface
impoundments, in
compliance with
268.8 with
respect to wastes not
subject to specific
treatment standards
or prohibitions
add new paragraph
preserving
waiver availability
under 121(d)(4)
FEDERAL RCRA CITATION
268.1(cK5)
268. 1(d)
ANALOGOUS
STATE CITATION
•.
STATE ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
TREATMENT SURFACE IMPOUNDMENT EXEMPTION
clarify language and
revise to apply to
soft hammer wastes to
treatment surface
impoundments that
meet a list of
conditions:
sampling and testing
requirements for
wastes with and
without treatment
standards; super-
natant and sludge
samples tested
separately
annual removal of
specific residues;
residues subject to
valid certifica-
tion; flow-through
standard of removal
for supernatant
268.4(a)(2)
268.4(aH2)(i)
268.4(a)(2Hii)
August 17, 1988 - Page 7 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
requirements for
subsequent manage-
ment of treatment
residues in another
impoundment pro-
hibited unless
certification under
268.8 and standards
of 268.8(a) are met
recordkeeping
requirements must
be specified in the
facility's waste
analysis plan
FEDERAL RCRA CITATION
268.4(a)(2)(iii)
268.4(a)(2)(iv)
ANALOGOUS
STATE CITATION
til A TE ANALOG 15:
EoTJlV^
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
•-
WASTE ANALYSIS AN
clarify language and
provide exception to
section 268.43
testing requirements
remove the clause
after "treatment
standards" which ends
with "exceeds" and
insert "set forth in
Subpart D of this
part or exceeds";
insert "or storage"
after "treatment";
remove "of this part"
after "268.32" and
"section" before
"3004(dr
insert "treatment
storage, or before
"land disposal
facility*; insert
"levels" after
"prohibition"; remove
"of this part" after
"268.32" and "section"
before "3004(4)"
D RECORDKEEPING
268.7(a)
268.7(a>m
268.7(a)(2)
August 17, 1988 - Page 8 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
remove "an extension
under §268.1 (c)(3)";
insert "with each
shipment of waste"
after "Subpart C";
replace "forward"
with "submit"; remove
"with the waste" and
"land disposal";
add new notice
requirements for
facility receiving
the waste
EPA hazardous
waste number
treatment standards
and applicable
268.32 or 3004(d)
prohibition
manifest number
of shipment
waste analysis
data
date waste is
subject to
prohibition
redesignate old
268.7(a)(4) as
268.7(a)(5); add
new paragraph
268.7(a)(4)
requires generator
notification for
268.33(f) only
prohibited wastes
EPA hazardous
waste number
applicable
268.33(f)
prohibitions
manifest number
waste analysis
data
FEDERAL RCRA CITATION
268.7(a)(3)
268.7(a)(3)m
268.7(a)(3Hin
268.7(aM3Hiii)
268.7(a)(3Hiv)
268.7(a)(3Uv)
268.7(aH4)
268.7teH4Mi)
268.7(aK4ttin
2B8.7(aU4)ffln
2BB.7l*)(4)(M
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 17, 1988 - Page 9 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
add new requirement
for retention of
waste analysis data
on-site in files
add five-year reten-
tion period for
notices, certifica-
tions, demonstra-
tions, etc. produced
relative to 268.7;
extensions during
enforcement actions
clarify language and
applicability of
testing reauirements
redesignate old
268.7(b)(1) as
268.7(b)(4); add
new paragraph
268.7(b)(1) derived
from old 268.7(b)
on testing when
standards are
expressed as
concentrations in
waste extract
redesignate old
268.7(b)(2) as
268.7(b)(5); add new
paragraph 268.7(b)(2)
derived in part from
old 268.7(b) on testing
of 268.32 or 3004(d)
prohibited wastes not
subject to Subpart D
treatment standards
add new paragraph
on testing for wastes
with treatment
standards expressed
as concentrations
in waste
old 268.7(b)(1)
redesignated as
268.7(b)(4)
FEDERAL RCRA CITATION
268.7(aH5)
268.7(a)(6)
268.7(b)
268.7ft>W1)
268.7(b)(2)
268.7(bV3>
268.7(bH4>
ANALOGOUS
STATE CITATION
•
STATE ANALOQ IS:
EOUTV^"
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 17, 1988 - Page 10 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
old 268.7(b)(2)
redesignated as
268.7(b)(5)
add new paragraph
for compliance
with generator
notice/certification
requirements if waste
sent off-site
notification with
each shipment for
waste subject to
268.33(f), but not
subject to 268.32
EPA hazardous
waste number
applicable 268.33(f)
prohibitions
manifest number of
waste shipment
waste analysis
data
no 268.7(b)(4)
notification for
recyclable materials
used in a manner
constituting
disposal and
subject to
266.20(b);
268.7(b)(5)
certification and
268.7(b)(4)
notice to
Regional Administra-
tor; records of
recipients of waste
derived products
clarify lanauaoe
have copies of notice
under 268.7(a) or
(b) and certifica-
tions in 268.8 if
applicable
FEDERAL RCRA CITATION
268.7(bK5)
268.7(b)(6)
268.7(b)(7)
268.7(b)(7)(i)
268.7(b)(7)(ii)
268.70>K7Uiii)
268.7(bK7)(iv)
268.7(W(8)
268.7(c)
268.7(c)(1)
ANALOGOUS
STATE CITATION
STATt ANALOG IS:
"EQUIV-
ALENT
MOHE
STRINGENT
BROADER
IN SCOPE
August 17, 1988 - Page 11 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
retain rest of old
268.7(c), starting
with "test the
waste," and designate
as 268.7(c)(2)
waste subject to
268.33(f) prohibi-
tions, but not 268.32
prohibitions or sub-
ject to certification
prior to disposal in
landfill or surface
impoundment unit and
disposal is In
accordance with
268.5(h)(2); same
for wastes subject to
268.33(f) and 3004(d)
prohibitions or
codified 268.32
prohibitions
FEDERAL RCRA CITATION
268.7(cH2)
268.7(cH3)
ANALOGOUS
STATE CITATION
••
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
LANDFILL AND SURFACE IMPOUNDMENT DISPOSAL RESTRICTION
disposal of 268.33(0
prohibited wastes
in landfills or
surface impoundments
in compliance with
268.5(h)(2) if
requirements of
268.8 are met
good faith
generator effort
to contract with
treatment and
recovery facilities
providing greatest
environmental benefit
demonstration and
certification
submitted to
Regional Adminis-
trator that
268.8(a)(1) require-
merrts have been met
268.8(a)
268.8(aU1)
268.8(aU2)
*
August 17, 1988 - Page 12 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
explanation and
certification when
no practically
available treatment
can be found
contracting and
certification when
practically available
treatments are found
copy of demonstration
and certification
sent to receiving
facilities for
shipments of waste
with no practically
available treatment;
certification only
for subsequent
shipments; generator
recordkeeping and
five year retention
generator copy of
demonstration and
certification sent to
receiving facilities
for shipments of
wastes with
practically available
treatment; certification
only for subsequent
shipments; generator
record-keeping and
five vear retention
additional information
for certification if
requested by Regional
Administrator
notification when
change in conditions
forming basis of
certification
FEDERAL RCRA CITATION
268.8(a)(2)(i)
268.8(a)(2)(ii)
268.8(a)(3)
268.8(aH4)
268.8fb)
268.8(b)(1)
ANALOGOUS
STATE CITATION
• STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
August 17, 1988 - Page 13 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
invalidation when
Regional Administrator
finds practically
available treatment
method or a method
yielding greater
environmental benefit
than certified
when certification Is
invalidated, generator
must cease shipment,
communicate with
facilities receiving
waste, and keep
records of
communication
receiving treatment,
recovery or storage
facilities keep copy of
generator's demonstra-
tion and certification
receiving treatment,
storage or recovery
facility certify
waste treated
according to
generators'
receiving treatment,
recovery or storage
facility must send
generator demonstra-
tion/certification
and 268.8(c)(1)
certification to
facility receiving
waste or treatment
residues
FEDERAL RCRA CITATION
268.8(b)(2)
268.8(b)(3)
268.8(c)
268.8(0(1)
268.8(0(21
ANALOGOUS
STATE CITATION
STATe ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
--
August 17, 1988 - Page 14 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
disposal facility must
assure certification
prior to disposal in
landfill or surface
impoundment unit and
units in accordance
with 268.5(h){2) for
wastes prohibited
under 268.33(0
wastes may be
disposed in landfill
or surface impound-
ment meeting
268.5(h)(2) if
certified and
treated
FEDERAL RCRA CITATION
268.8(d)
268.8(6)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
--
SUBPART C - PROHIBITIONS ON LAND DISPOSAL
5 WASTE SPECIFIC PROHIBITIONS - SOLVENT WASTES
repromulgate require-
ment to treat to
applicable standard
unless restricted
solvent falls into
treatability group
for which EPA has
determined no
capacity exists
remove final clause
starting wKh "not
subject to..." and
ending with "November
8. 1988"
change hyphenation;
add "; or" at end of
Daraoraoh
change first "(2), and
(3)" to "(2), (3), and
(4)"; remove second
sentence concerning
disposal in landfills
prior to November
8. 1988
268.30(a)
268.30(a)(2)
268.30(aU3)
268.30(b)
August 17, 1988 - Page 15 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
redesignate old
268.30(c) as
268.30(d); add new
paragraph 268.30(c)
prohibiting after
November 8, 1990
land disposal of F001-
F005 solvent waste
contaminated soil
and debris (and
their treatment
residues) resulting from
CERCLA action or
RCRA corrective
action; permitting
disposal in landfill or
surface impoundment
unit in compliance with
268.5(h)(2) prior to
November 8. 1990
old 268.30(c) is new
268.30(d); revise
"(a) and (b)" to
read "(a), (b), and
(c)"; 268.30(d)(1)-
(3) are the same as
the old 268.30(c)(1)-
(3) except in (3)
add "and units"
after "wastes"
FEDERAL RCRA CITATION
268.30(c)
268.30(d)
ANALOGOUS
STATE CITATION
••
STATfc ANALOG IS'
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
--
6 WASTE SPECIFIC PROHIBITIONS-DIOXIN-CONTAINING WASTES
add phrase "unless
the following
condition aoolies:"
contaminated soil
and debris waste
resulting from
response action
under CERCLA
or from a RCRA
corrective action
268.31 (a)
268.31 (a>m
August 17, 1988 - Page 16 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
redesignate old
268.31 (b) as
268.31 (d); new
paragraph 268.31 (b)
prohibiting land
disposal of F020-F023
& F026-F028 dioxin-
containing wastes
after November 8,
1990
change years to
"1988" and "1990,"
respectively; insert
"(1)" after "(a)";
replace "the facility"
with "such unit"
old 268.31 (b) is
new 268.31 (d);
in introductory
sentence insert "and
(b)" after "(a)";
268.31 (d)(1)-(3) are
the same as old
268.31 (b)(1)-(3)
except in (3) change
"extension from" to
"extension to"
FEDERAL RCRA CITATION
268.3Kb)
268.31 (c)
268.31 (d)
ANALOGOUS
STATE CITATION
STATE ANALOG is:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
WASTE SPECIFIC PROHIBITIONS - CALIFORNIA LIST WASTES
revise variance
dates to reflect
that the require-
ments of (a) and
(e) do not apply
until:
268.32(d)
August 17, 1988 - Page 17 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
revise language and
change date to July
8, 1989; insert "not"
before "resulting
from a response...";
insert "(CERCLA)" after
"Liability Act"; add
sentence about
disc., r.l between
Jui. i. !987 and
Jul * 1989 permitted
in It ill or surface
impoundment in
compliance with
268.5(h)(2)
change date to
November 8, 1990,
wastes from a CERCLA
action or RCRA correc-
tive action; disposal
between November 8
1988 and November 8,
1990 permitted in
landfill or surface
impoundment in
compliance with
268.5(h)(2)
7 change date to
November 8. 1988
add clause on not
including wastes
described in
268.32(d)
change "July 8, 1989"
to "November 8,
1988"; replace
"described" with
"included" and
"the facility" with
"such disposal"
insert ",(d)f" after
"(a)"
insert ",(d)t" after
•faM3T
FEDERAL RCRA CITATION
268.32(d)(1)
268.32(d)(2)
268.32(9)
268.32(eH2)
268.32m
268.32(a)
268.32m)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
bHOADER
IN SCOPE
August 17, 1988 - Page 18 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG1 IS:
EQUlT^"
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
WASTE SPECIFIC PROHIBITIONS - FIRST THIRD WASTES
specific wastes
prohibited from land
disposal effective
August 8, 1988
land disposal prohi-
bition of K061 waste
containing 15% or
greater of zinc
pursuant to
268.41 treatment
standard for K061
containing less than
15% zinc
wastes--K048, K049,
K050, K051, K052,
K061 (contain 5%
or greater zinc),
K071 -prohibited
from land disposal
effective August 8,
1990
effective August 8,
1990, land disposal
prohibition of
wastes specified in
268.10 having a
treatment standard
in 268, based on
incineration and
which are contami-
nated soil and
debris, Suboart D
between November 8,
1988 and August 8,
1990, landfill or
surface impoundment
disposal permitted
if In compliance with
268.5(h)(2) of
wastes included
under 268(b) & (c)
requirements of
268(a)-(d) do not
aoolv when:
268.33(a)
268.33(a)M)
268.33(b)
268.33(c)
268.33(d)
268.33(8)
*
August 17, 1988 - Page 19 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
waste meets
applicable 268,
Suboart D standards
granted an exemption
from prohibition for
wastes and units
under 268.6
granted an extension
to an effective date
for wastes under
268.5
prohibition of
landfill or surface
impoundment disposal
of wastes specified
in 268.10 for which
treatment standards
do not apply (other
than 268.32 or
section 3004(d)
prohibitions) unless
268.8 demonstration
and certification
for a waste listed
in 268.10, initial
generator testing to
determine exceedance
of 268.41 & 268.43
treatment standards
and prohibition from
land disposal if
exceed standards
FEDERAL RCRA CITATION
268.33(e)(1)
268.33(eH2)
268.33(eH3)
268.33m
268.33(0)
ANALOGOUS
STATE CITATION
'•
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
SUBPART D - TREATMENT STANDARDS
APPLICABILITY OF TREATMENT STANDARDS
replace "this
subpart" with
"§268.41"; remove
"without further •
treatment"
268.40(a)
August 17, 1988 - Page 20 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
land disposal of a
restricted waste
identified in 268.43
only if below listed
constituent
concentrations
FEDERAL RCRA CITATION
268.40(c)
ANALOGOUS
STATE CITATION
-.
JJIAft ANALOG IS:
"EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
TREATMENT STANDARDS EXPRESSED AS CONCENTRATIONS IN WASTE EXTRACT
in Table CCWE
remove entry
specified below;
add subtables to
Table CCWE in
numerical order as
specified below
268.41(8)
Delete the following entry:
Concentration (in mo/1)
F001-F005 spent solvents
Wastewaters
containing spent
solvents
All other
spent solvent
wastes
Methylene chloride (from the pharmaceutical
industry)
12.7
.96
Add the following subtables to Table CCWE in numerical order by EPA Hazardous Waste Number:
TABLE CCWE—CONSTmmiNT
CONCENTRATIONS m WASTE EXTRACT
FOQ9 nonwutvwttsrt (Mt itto Tabto
CCW in 1268.43)
CWffTW"
Chrenum (ToW) ,,., , ,
1 ttfl
Stfvvr
Gyirmm foW)
ConconM*
Mn(mmg/
0.066
5.2
.51
.32
.072
K001 nom»«it««»iMn (M* ado
Tab* m 1 266.43)
1 rtfl
Conccnm-
tian(nfng/
031
TtttoCCW m| 266.43)
CXtrmmmt (TijtjJ)
ConocntfA*
•on (in rng/
1)
U
0.32
K046 nonwMtttwiMfB (Nofwttttctow
SubctMgory)
Concarm-
bondnmo/
1)
0.16
August 17, 1988 - Page 21 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT FEDERAL RCRA CITATION
STATE ANALOG IS!"
ANALOGOUS EOUIV- MORE BHOADER
STATE CITATION ALENT STRIN3ENT IN SCOPE
K048. K049. KOSO. KOS1 Mid KOS2
nonwastawatar* (»aa atao Tatola
CCW in f 268.43)
ChrofiMum (Total) .n
Michel
Setemurp - - - - ,
Concentra-
tion (m mg/
1)
0.004
1.7
.048
.025
K061 nonwaatawatani (Low Zinc
anc)
Chromium (Total)..-.,..- ..--
lead
Nicfcal
Concontra*
ton(mmg/
1)
0.14
Si
2*
.32
K061 nonwailawatafa (Higti Zloc
Subcategory— 15% w greater total
one): effective untt U/8/90
Cadmium —
Ctwwmum (Tw!tO •-- - » «
(•art
Nickel
Coficaiiifa
Uon(inmg/
1)
0.14
52
.24
.32
Chromium (Total) - -
Lead ,--,,-•-
Concantri*
ton (m mg/
1)
0.094
J7
K071 nonwtstcwatars
Marc-jry _
Concentra-
tion (in mg/
1)
0.025
KC86 nonwastawaters (Sotv«nt
Wartas Subcatagory) sa« also Tabia
CCW in f 266.43)
Chtxnwff) (Totat)..... «
Hid „
Concentra-
tion (in mg/
D
0.094
.37
K087 nonwastawatars (saa alao
Tabla CCW m { 268.43) .
Lavl , __ , .. .
Concentra-
tion (in mg/
1)
0.51
K101 and K102 nonwattawatan
(Low Anane Subeatagory— 4aaa (nan
1% Total Ananc) (aaa alao Tabla
CCW m f 268.43)
I tad
Mtffctf
Concantra*
tton (mmg/
D
0.088
52
.51
42
TREATMENT STANDARDS EXPRESSED AS SPECIFIED TECHNOLOGIES
add ability to
incinerate in boilers
and industrial
furnaces after "265,
Suboart O"
268.42(aK2)
TREATMENT STANDARDS EXPRESSED AS WASTE CONCENTRATIONS
introductory para-
graph for Table CCW
explainina table:
268.43(a)
Add new Table CCW as shown below. Subtabtes are arranged in numerical order by EPA
Hazardous Waste Number. Additionally there is a listing after the subtabtes of "K" wastes which
are prohibited from land disposal.
August 17, 1988 - Page 22 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
STATE ANALOG IS:
ANALOGOUS EQUIV- MORE BROADER
FEDERAL RCRA CITATION STATE CITATION ALENT STRINGENT IN SCOPE
TABLE CCW— CONSTITUENT
CONCENTRATIONS IN WASTES K°1« nonwawewaters
FOCI. F002, FOOT. e004 end F005
wastewaters (Pharmaceutical
Industry)
Methylene chlonde
Concentra- .^Mn^h^,
uon (in mg/ HexacnlorooerHene — - -......—..
044 HexacMoroamana
Tetrachkxoathane
F006 nonwastewatars (sea also
Table CCWE in §268.41)
Cyanides (Total) .««•....«...—
K001 nonwastewalera (see also
Table CCWE mj 268.41)
rZZL
Vy1init - i i
Concentra-
tion (in mo/ KQIA wfstewaten
kg) l«lloww-w«wr.
ResaWtd Htxachtofobgfctn* ,.m.»»......T..T....,1
kg)
8-° K018 nonwMtewatars
37
8.0
73 Chkxoethana _.
U*«wMnmM«UM
K001 wastewaters
PanucMaronfiwial
Dh,^^,— ,
Pyrene
1 *MMl
K015vmstMv.tt.in
Benzo (b and/or k) fluoramftene___
Toluene. ..
Chromum (Total)
MeM
STorTmg/ 1.1.1-Tncntoroethane
0.15
.88 K018 wastewaters
.15
.16 RMtwumhfii.
Bon(lnmg/ 1.1.1 Trttl*u**B«Aa
1 O
-9ft
32 CMorooemene
.44 Omotonn
otiiiwf'tni __
bon (m mg/ K019 »aala»alan
kg)
M Bm/J^om-Wyw*-
56 Cx
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
K024 wastewaters
imatcaod -. -
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
Concentra- KQ4J nonwasiewaters (see also
don (m mg/ TaW- CCWE m } 268.41)
0.54 Benzene
Bts<2-etrrylhe)>*J TTLT_T.a-n.i.in.«
Toluene
« Xytenas
28 Cyanides (Total)
5.0
Concentra-
tion (in mg/
*9>
9.5 An
•84 B«
37 B«
2.2 Bu
4.2 Cl
67 0
[Reserved] 2,'
7.7 EM
STATE ANAL
EOUIV- I MORE
ALENT I STRINGENT
BROADER
IN SCOPE
K049 wastawaters
thr
ma
M2-
irtJC
»v*
m
taH»
icana
Xa)pyrene._
etnylhexyOpI
ithalata...
vne...»_.-.«**.«.>.»«.»-»«»'.."»»»"*».
i^nmim
2.0 prr—
9.5
[Reserved)
1.8
K049 wastewaters
Concentra-
tion (m mg/
1)
0.039
.011
.047
.043
.011
.043
033
.011
.033
.039
Concentra-
tion On m9'
1)
1,2.4.5-Tetrachlorobenzena
Tetractiloroethene
1,2,4-Tricr)lorobenzene.
14
6.0
19
K030 wastewaters
n-f • '.InnViAnnina
I-U MinrfrtHitg^Mnf
p*"'aef»tofoeihane
124 S-Teiraerriorebefnarw
1 9 l.Tf^Mgfgt^njtnt
Concentra-
tion (in mg/
1)
0.008
.008
.007
.033
.007
.017
.007
.023
K037 nonwastewaters
OauMoto
Toluene.
Concenira*
toon (in mg/
kg)
K048 wastewatan
gtnreAt
Bi«(2-ethylnaxyl)phtnalata
Di-n-buiyi ptiDtaiate ,
Rupftftt
Naphtt^lene
rhenimtirane
pt^ngt
fynnt „, ,
Tfrtiene „, , , „ -
tfyienee >
Chromium (Total) ,
1_»KJ
Concentra-
tion (in mg/
0.011
.047
.043
.043
.060
.011
.050
.033
.039
.047
.049
.011
.011
M
037
Phenol
Pyrene
Toluene
Xylenea
Chromwm (Total)._
047
045
011
Ott
.20
C37
KOSO nonwastewaters (see also
Table CCWE m { 268.41)
| Concentra-
tion (in mg/
Banzo(a)pyrena..
Cyandea (Totall-
084
27
1 8
0.1
a
K037 wastewaters
Dltulfnton
ToVr"* , ,
Concantfa*
•on(inmg/
1)
0.003
.028
TabtoCCWE.n§ 266.41)
pfWMjf
OkevaM*
Totutftf
«•.*__.
**va- rtii (Total)
ConccntTB*
toon (to mo/
kg)
6J
9.S
0.84
37
12
67
[Reserved]
7.7
2.7
2.0
9.S
[Re»ervad]
1J
KOSO wastewaters
8^tj»il«yiyi^M
pt^^qj
Chrafnum (TMaf)
Concentra-
tion (m mg/
1)
0.047
.047
.20
.037
August 17, 1988 - Page 24 of 27
TaW* CCWE ei 1268.41 )
B^umi»
Danip(a)p iTe^a
On^HM
rtiatianffirsni
fttfifjt
Pi-...
ToVtnt
Cyanidaa (Tmafl
Concentra-
•ontmmg/
kg)
62
9.5
1 4
.84
37
2.2
42
67
[Reserved]
77
2.7
2.0
95
(Reserved)
1 8
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
^TATE ANALOG IS:
ANALOGOUS EQUIV- MORE BROADER
FEDERAL REQUIREMENT FEDERAL RCRA CITATION STATE CITATION ALENT STRINGENT IN SCOPE
K051 wasimvatws
n*n7f>{|)pyrfnf
B**(?-«ttiyrwMry1) phthatM
C*-*HMi«y* pMMfa** -T
Ettiyltxfi7»>n<........— «. „ •...••«..
Fluow1*
Naphthaton.1
Phenol
Puiwia
TnkMM
Xylanaf ,
Leafj
K052 nonwastewaters (see alto
Table CCWE in $ 268.41)
o-Cresol .'.
Etftyloenzen* -,-—.-.-. „.,.„,—.,
Pneranttvene
Xyfenes -,L,I,.,I i, ...
Cyanides {Total) .- « ™
KOE2 waf.twats.-s
Bwnit^o , , ,,,..,,,„.....
Benzctajpyrene ,
2 4-Qim»tPyip1'-»n<"
Naphthalene
PiMnfMtv^fif
P*««l«l
Toluene
(•»»>.«. •«« (T/tfgl)
l**ri
Concentra-
1)
0050 Chromium (Total) _.
039 Lead
011 Nickel
STiirmo/ K087 "onwaatewaters (see also
Don"1"mg/ TaWe CCWE in 5 268.41)
fl3' Acenaohtnaiene
.04 Bef>z«fiorot>*"w^
bon (in mg/ Et^y* actttata
kg) E^yi tytnz*"!
95 M*tnyl«f)« chlond*
084 Ualhyi »t«yl k»lo~t _
2_2 Methyl itooutyl keton*
ooo Naphthalene _
'-•» Niifooenzene ™_
6/ . »»-.. — ™
mn^iMrtl laumnm ...... ,-„--,-,-, -„-,-„_...„
77 1.1.1 .-Tnehlofoethane ...._...._._...._._..
95 Xylene*
1) Toluene
Concentra-
tion (m mg/
Ng)
34
.071
3.4
34
3.4
3.4
3.4
.65
.070
Concentre- K087 wastewaters
tion (inrng/
»gi
*C*Mphth«l^«t
037 Benzene
49 Oryuna „. ... ..,,
.37 Fkioranihene.. _
4B in4«nnalene
.031 T^i-n.
31 Xytenea
.037 LMd
.37
J7
49
.49
.031 K099 nonwauewaters
.044
K086 wastewaters— Solvent Washes
Subcategory
lion (in mg/
1) Acetorie
b»tt!-ethylhexyt)pr::nalat«
0011
.047
Oil K086 waatewaters — Sotveni Washes
Ion Sufteategon/
•™ ivButyi alcohol
'M_ Cyctonexanone
•rft U-OishJorooenzene
' Etnyl acetate
•«! I Eihyl bemene
~n Methanol
*037 MethyMne chloride
Methyl ethyl katone
Methyl •obutyl ketone
Nepnthelene
Nitrobenzene
Toluene
1.1.1 .-Trichtefoelhene
TnchkxoethyierM
Xytenet - -..
Ltetf „„
ton (m mg/ P«^acMQ'od<)e«ro'u'«n» .................
Teuachlorodibenxolurans ._...........„_.„.
0.015
Concentra-
tion (n mg/
D
0.028
.014
.028
.028
.028
.028
.028
.008
.014
.037
Concentre.
Bon In mg/
"91
1.0
.001
.001
.001
.001
.001
.001
.044
Concentre- K099 wastewaters
ton (nrng/
2.4-Oichkvaphenoxyacetic ead
•031 Hexachkxoaibenzc-p-diouns
•Ot2 HexacMorodibenzo!urans
.044 PentachKxoCioenio-p-dKwms
•031 Pentacnioreolbenzoturana
•015 TeMcMonNftbenzo-p-aaune
•031 T«f^-hlnnv*t>«n^'.^n.
.031
.031
Ml
^. Kt91 "onwamwaien (Low Arserac
•044 Subcategory— leas men 1% total
.029 •rsenc) (see ttto Table CCWF in
.031 f 269.41)
.uz»
.32 I
Concentra-
tion (m mg/
1)
1.0
.001
.001
.001
.001
.001
001
Concentra-
tion (in mg/
"9>
14
.037
August 17, 1988 - Page 25 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
ANAL
FEDERAL REQUIREMENT FEDERAL RCRA CITATION STATE
KtOt wastvwatan
Oftho-Nitroanrtma
Aiffpf,,.,,, -
Cadfrw1* ...... . ..i ™
lUfl , , , „,_
ktorniry
Concentra-
tion (in mg/ K100 waatawatara
')
30 R^rrtmnf
1 V Nitrebanzana
097 Ptn««l
siAVt ANALOG IS:
OQOUS EQlW- MORE BR6ADER
CITATION ALENT STRINGENT IN SCOPE
gneanir.. No Land Disposal for
n K004 Nonwastewaters [Baaed on No
Generation]
4.5 K008 Nonwastewaters [Based on No
•J* Genera tionj
073 K015 Nonwastewaters [Based on No
1.4 Ash]
Genera tinnl
K102 nonwasttwatan (Low Arsanic
Subcatagoiy— law thin 1 % total
arsenic) (saa also TabM CCU
Antina _ ..
13 Banzana
Nitrobanzana
K102 wastawatars
Arfifitt
r-artmnjiT!
LMrf ...... ......
Umtrurf
fnnt-mntfm 'l^»n^»— .^..^.•^.MI. n«. B •..
rff*1™'. Cy«nu^« (Tptaii,,, ,
don (in mg/ ' * '
Concentra- K02S Nonwastewaters [Based on No
tnn (m mg/ Generation]
"9) Knse Nonwastewatera [Based on No
Generation]
| * K044 [Based on Reactivity]
5B K045 [Based on Reactivity]
56 K047 [Based on Reactivity] . .
56 K060 Nonwastewaters [Based on No
18 Generation]
, ..." WJH1 Nonwastswa^r«_High Zinc
0028
2.0 K104 waatawatara
.24
.11
.027 AnrtM
2.«-0«Wp»«*nOl ^ , ,_
K103 nonwastawatan
Banzana
9 J.f>iiitfnpti««ial
NitmbMnn* T
Pti«~rf
K^O* ^WtffVMtan
*0 MitHAafiMn, (
56 fH^a^l
5.O
r«~. w Subcalejjory (greater than or equal to
wSTn^ "* total *«) Pa«d «>n Recycling]:
D effective a/8/90
K069 Nonwastewaters— Non-Calcium
4.5 Sulfate Subcategory [Based on
•« Recycling]
61 K083 Nonwastewaters— No Ash
_. Subcategory (leaa than fim* totnl
ConeanM- ash) [Based on No Ash]
oonbnmg/ Kioo Nonwastewaters [Based on No
.073
1.4
2.7
_!/ These prohibitions will be modified to apply only to wastes generated and
~~ disposed after 8/17/88. A final rule addressing this is forthcoming.
y Rescheduled to 3rd 3rd—a final rule is forthcoming.
treatment standard
for combinations of
wastes with different
treatment standards,
must meet lowest
standard
268.43ft))
SUBPART E - PROHIBITIONS ON STORAGE
August 17, 1988 - Page 26 of 27
-------
RCRA REVISION CHECKLIST 50: Land Disposal Restrictions for
First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOO IS.
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PROHIBITIONS ON STORAGE OF RESTRICTED WASTES "
add to end of para-
graph "or a valid
certification
under 268.8"
268.50(d)
11n this section, the language is clarified and requirements are added to reflect soft hammer
certification and retention of records and to apply to storage facilities.
2 Revise this section to reflect soft hammer wastes.
3 In this section, apply testing and recordkeeping analyses to First Third wastes and storage
facilities and add notification requirements for soft hammer wastes.
4Note that 268.8(d) has a typographical error. The reference to 263.33(f) should be 268.33(f).
5 Note that while 268.30(a)(introduction), 268.30(a)(1), and 268.30(a)(4) appear in the FR
addressed by this checklist, they have not been changed by this FR. As such, 268.30(a)(1) and
268.30(a)(4) were not included in this checklist. An entry for the 268.30(a) introduction was
included, however, to help clarify the modifications to 268.30(a).
6 For this section, revise applicability from facility-wide to unit and reschedule CERCLA and RCRA
corrective action soil and debris dioxin-containing wastes prohibition from land disposal.
7 Note that the FR addressed by this checklist did not change 268.32(e)(1) even though It appears
in the FR. Consequently, 268.32(e)(1) was not included in this checklist.
August 17, 1988 - Page 27 of 27
-------
The following revised Revision Checklist 62 should
replace the previous version of this checklist.
-------
RCRA REVISION CHECKLIST 62
Land Disposal Restrictions Amendments to
First third Scheduled Wastes
54 FR 18836-18838
May 2, 1989
(HSWA Cluster II)
This checklist amends the First Third Scheduled Waste requirements made to Part 268 by
Revision Checklist 50 (53 FR 31138, August 17, 1988). Revision Checklist 66 (54 FR 36968,
September 6, 1989) corrects the cross references in 268.33(a) to certain revisions made by this
present checklist. Also, EPA rescheduled all K015 and K063 nonwastewaters to the Third Third
as part of the May 2 rule addressed by Revision Checklist 62. Revision Checklist 66 removes
these wastes from 268.33(a). States are encouraged to adopt the corrections addressed by both
Revision Checklists 62 and 66 at the same time the provisions addressed by Revision Checklist
50 are adopted. States already authorized for the Revision Checklist 50 provisions are
encouraged to adopt the amendments and corrections addressed by Revision Checklists 62 and
66 as soon as possible.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
si Alb ANALOG IS:
EUUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 268 - LAND DISPOSAL RESTRICTIONS
SUBPART D - TREATMENT STANDARDS
TREATMENT STANDARDS EXPRESSED AS WASTE CONCENTRATIONS
revise Table CCW as
shown below
268.43(a)
No Land Disposal foe
KOM Nonwastewatar forms of these wastes
generated by the proem dncribtd In
th» waste listing description and
disposed after August 17.1988, and not
generated in tfaa eoursa of Mating
wnatewvtar form* of thaw wastes (Basad
on No Generation)
KOOB Nenwastawatarfaasofthasawastes
gensiaied by the process described in
the waste listing description and
dieposed alter August 17,1988. and not
generated In the course of Mating
wastewater fonts of these wastes (Baaed
on No Generation)
K021 Nonwastewater forms of these wastes
generated by the process described in
the waste listing description and
disposed after August 17.1988. and not
generated in the course of Mating
wastewater forms of these wastes (Based
on No Generation)
K02S Nonwastewater forms of these wastes
generated by the process described in
the waste listing description and
disposed after August 17,1988. and not
generated in the course of Mating
wastewater forms of these wastes (Based
on No Generation)
K098 Nonwastewater forms of these wastes
generated by the process described In
the waste listing description and
disposed after August 17.1988. and not
generated in the course of Mating
wastewater forms of these wastes (Based
on No Generation)
KOM (Based on Reactivity)
KOtS (Based on Reactivity)
K047 (Based on Reactivity)
K080 Nonwastewater forms of these wastes
generated by the process described in
the waste listing description and
disposed after August 17.1988. and not
generated in the course of Mating
wastewater forms of these wastes (Based
on No Generation)
May 2, 1989 - Page 1 of 2
-------
RCRA REVISION CHECKLIST 62: Land Disposal Restrictions
Amendments to First Third Scheduled Wastes (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
KOB1 Nonwastewaters—High Zinc
Subcategory (greater thin or equal to
15% total zinc) (Based on Recycling):
effective 8/8/90
KOM Non-CaldumSvlfate Subcategory—
Nonwastewater krau of these wattes
generated by the process described in
the waste listing description and
disposed after August 17.1988. and not
generated in the course of treating
wastewater forms of these waste* (Based
on Recycling)
K100 Nonwastewater forms of those wastes
generated by the process described in
the waste listing description and
disposed after August 17.1988. and not
generated in the course of treating
wastewater forms of these wastes (Based
on No Generation)
(PR Doc. 89-10471 Filed 5-1-69; 8:45 am]
May 2, 1989 - Page 2 of 2
------- |