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
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             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









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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

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        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:
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ALENT

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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

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                 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:
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ALENT


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STRINGENT


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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

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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










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ALENT










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STRINGENT










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IN SCOPE










              August 14, 1989 - Page 8 of 11

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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)
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             August 14, 1989 - Page 9 of 11

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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)

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       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

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                  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

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 54 FR 33376-33398



Revision Checklist 64

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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

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 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.

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            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

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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

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           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.

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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

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            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

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           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

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                    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

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 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 *>
-------
 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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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 "
-------
 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

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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

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  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
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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
                                                                           
-------
           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

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            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.

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             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.

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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

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                                                 •

           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
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                         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:

-------
          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» 	
tfto vponi owiccont WSMVOS wow vw proouctoft of

ph>tte tiydrocvbonc ••*• ttioM fnvfciy cvvon
cnvn MnytrM ivnQinQ irofti onv to wo inciuoHQ
WT*B, tMV) w^inQ wttountv) (wio poswons ov cniO'
rin« MtoHMkm.
CASRN






SMMory
RO
•1
Cod*-
* 4
S2C-
was
FMRO
CMIBU.I
X
Mi**
"1(04S4|
* IndtefllM vw Mfllulofy 9ourct n tfvflnM by 4 bvlnw.
• MtoMM Ml M WihJtory wureo tor dBUgnrttoi Ol Mt htnrdou* cubsttnc* undir CERCIA to CWA Mcton 311(bK^
• InteatM Ml tw tUrtiitory touroo tor d^jUgotton ol W« huwrtout tubtttneo undw CERCIA to CWA toetan 307(«J
f hw^f^laa M^ MM •ial.^naM «<^»ra tar rtaalnnaMnii irf •tea h«vAij4n.M ai«i«l«n^A iMniar r^COT*! A te r^ftA ••rMn« t •«
                                                                                  .
   • IndleMM Ml M MaMery Wt* tor Omantton ol ttm rwzcrtfoui Mbfttinc* undtr CERCtA • RCRA Mdton 3001.
   '* IndfcMM »M «w 1-pound HO M • CERCLA MMiMry RO.
   •• Tho Agoncy m«y KtM> •»• itttutary RO tor Ms tanrdaut wbrann In • Muro rutoiiMklng: unH Mn. M MMutory RO
|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

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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

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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
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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).

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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)

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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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              Federal Register / Vol. 48. No.  64 / Friday. April 1. 1983  /  Rules and Regulations
                                                                       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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14156
Federal  Register / Vol. 48. No. 64 / Friday.  April 1.  1983 / Rules and Regulations
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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              Federal Register  /  Vol. 48.  No. 64 / Friday,  April i.  1983 / Rules and Regulations	14157
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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 14162
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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 14170
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

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              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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               Federal Register / Vol. 48. No. 64 / Friday.  April 1.  1983 / Rules and Regulations	14181
  (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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  14182
Federal Register /  Vol. 48.  No. 64  / Friday. April  1.  1983 / Rules and Regulations
  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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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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Federal  Register / Vol. 48, No.  64 / Friday, April  1, 1983  / Rules and Regulations
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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                Federal Register /  Vol.  48.  No. 64  / Friday. April  1. 1983 / Rules and Regulations
                                                                         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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              Federal Register / Vol. 48. No. 64  /  Friday.  April 1. 1983 / Rules  and Regulations
                                                                     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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 14192
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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 14198	Federal  Register / Vol. 48. No.  64 / Friday. April 1. 1983 / Rules and Regulations
  (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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              Federal Register / Vol.  48. No. 64 / Friday.  April 1. 1983 / Rules  and Regulations
                                                                      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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Federal  Register / Vol. 48. No.' 64  /  Friday. April 1. 1983 / Rules and  Regulations
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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               Federal Register / Vol..48. No. 64 / Friday. April  1. 1983 / Rules  and Regulations         14201
   (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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               Federal Register / Vol. 48,  No. 64  / Friday. April  1. 1983 / Rules and  Regulations         14209
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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14222
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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Federal Register / Vol. 48. No. 64 / Friday. April  1. 1983 / Rules  and  Regulations
                                 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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              Federal Register  /  Vol. 48. No. 64  / Friday. April 1. 1983  / Rules and Regulations
                                                                        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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Federal Register / Vol. 48, No.  64 / Friday. April  1. 1983 / Rules  and Regulations
                                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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 14253
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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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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              Federal Register / Vol.  48. No. 64 / Friday. April  1. 1983 / Rules  and  Regulations
                                                                       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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 14274	Federal Register / Vol. 48. No.  64 / Friday. April 1,  1983 / Rules and Regulations
 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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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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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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               Federal  Register / Vol. 48. No.  64 / Friday. April  1. 1983 / Rules and Regulations	14279
 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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               Federal Register / Vol.  48, No. 64 / Friday, April 1,  1963 / Rules and Regulations        14235
 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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              Federal Register /  Vol. 48.  No. 64  /  Friday. April 1. 1983 /  Rules and Regulations	14287
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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Federal Register  / Vol. 48, No. 64  / Friday.  April 1. 1933  / Rules and Regulations
 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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                Federal Register /  Vol. 48.  No.  64 /  Friday.  April  1.  1983  / Rules  and Regulations	14289
  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 ar.d Regulations
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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

-------
              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

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            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.,

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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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            Federal Register  / Vol.  53. No. 143 / Tuesday.  July 26. 1988 / Rules  and Regulations      28133
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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            Federal Register  / Vol. 53, No. 143 / Tuesday. July 26, 1988  /  Rules and Regulations
                                                                      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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            Federal Register  / Vol.  53. No. 143 / Tuesday.  July  26. 1988 / Rules  and Regulations      28137
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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            Federal Register  / Vol. 53. No.  143 / Tuesday. July 26. 1988  /  Rules and Regulations
                                                                      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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Federal  Register  / Vol. 53. No.  143 / Tuesday.  July 26. 1988  / Rules  and Regulations
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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         Federal Register / Vol. 53,  No. 186 / Monday. September 26. 1988 / Rules and Regulations   37403
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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37404
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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          Federal Register  /  Vol. 53. No. 186 / Monday. September  26. 1988 / Rales and Regulations    37407
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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248
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:

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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

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           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
-------
          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

-------
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

-------
          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

-------
          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

-------
          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

-------
   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

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      (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

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 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

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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

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 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

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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
                                         18

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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
                                         28

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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

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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

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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

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       (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

-------
 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


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            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
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              August 17, 1988 - Page 5 of 27

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            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
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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)
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•.





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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

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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
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•-
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

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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











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ALENT











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              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
•






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ALENT







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              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










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              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
••




















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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:
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              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





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ALENT





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--



              August 17, 1988 - Page 14 of 27

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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






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--

     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

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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
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••





























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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

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              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



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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

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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







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              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
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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)

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'•




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          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

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               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
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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

-------