BACKGROUND DOCUMENT
RESOURCE CONSERVATION AND RECOVERY ACT
SUBTITLE C - HAZARDOUS WASTE MANAGEMENT
SECTION 3004 - STANDARDS APPLICABLE TO OWNERS AND
OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE,
AND DISPOSAL FACILITIES
40 CFR PART 265
GENERAL ISSUES CONCERNING
INTERIM STATUS STANDARDS
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF SOLID WASTE
April 1980
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Table of Contents
I. Introduction 1
II. Rationale for Need to Regulate 2
III. Synopsis of Proposed Regulation 5
IV. Comment Analysis and Rationale for Chosen Action 5
A. Authority 6
B. Additional Requirements During Interim Status 11
1. Ground-water and Leachate Monitoring 12
2. Closure and Post-Closure 15
3. Ignitable, Reactive, or Incompatible Wastes 18
4. Landfill Rules 19
5. Waste Analysis 21
6. Human Health and Environmental Standards 21
7. Site Selection Standards 22
8. Food Chain Crops on Land Treatment Facilities . 23
9. Soil Monitoring at Land Treatment Facilities 23
10. Inspections at Basins 24
11. Incinerator Trial Burns and Monitoring 24
C. Financial Requirements 25
D. Compliance Period 27
E. Notes and Variances 36
F. Equity 38
G. General Comments 44
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GENERAL ISSUES CONCERNING
INTERIM STATUS STANDARDS
I. INTRODUCTION
Section 3005(e) of the Resource Conservation and Recovery Act
(RCRA or "the Act") states that any owner or operator of an existing
hazardous waste management facility who has complied with the notifi-
cation requirements specified in Section 3010(a) and has applied for
a permit shall be treated as having been issued a permit. Facility
owners or operators who meet the above conditions are considered to
have interim status until final administrative disposition of the
permit application is made. Accordingly, the interim status period
is defined as the period between the date the initial Section 3001-
3005 regulations go into effect and the date final administrative
action on the permit application is taken.
At the time the RCRA Section 3004 standards were proposed on
December 18, 1978 (43 FR 58982), it was the Agency's intent that
interim status standards would consist of a selected set of the
general Section 3004 standards. Accordingly, the proposed interim
status standards were specified in §250.40(c)(2) for the most part as
references to certain provisions of the proposed Section 3004
standards.
It is now clear that promulgation of the general Section 3004
standards will be phased over time. Consequently, the Agency is
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specifying the interim status standards in 40 CFR Part 265
independently of the general Section 3004 standards in 40 CFR Part
264. This procedure will allow implementation of the initial phase
of the RCRA hazardous waste control program without further delay,
and will avoid the ambiguity and confusion which may arise when
standards are referenced and cross-referenced (which was the case in
the December 1978 proposal).
This document addresses general issues regarding interim status
standards. The reader is directed to other background documents for
discussion of the substantive requirements applicable during the
interim status period.
II. RATIONALE FOR NEED TO REGULATE
The Agency estimates that approximately 48 million metric tons
per year of hazardous waste--mainly from industrial sources—was
generated in the United States in 1975.'*' This amount grows every
year. Based on documented damage cases (see other background
documents for particulars) and EPA reports,^) EPA estimates that
treatment, storage, and disposal of as much as 90 percent of
hazardous waste is not currently in accord with the proposed Section
3004 regulations. In RCRA, Congress mandated regulatory controls
EPA Draft Environmental Impact Statement, Subtitle C, Resource
Conservation and Recovery Act, January 1979.
EPA Open File Report, "The National Potential for Damage from
Industrial Waste Disposal," 1977, p. 12.
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over hazardous waste management activities to protect human health
and the environment. However; the requirements to be imposed on
prospective permittees who have interim status pursuant to Section
3005(e) of RCRA presents a special problem.
EPA anticipates approximately 30,000 prospective permittees.
They will have notified EPA of their hazardous waste activities, will
have applied for a permit, and will be waiting for EPA issuance or
denial of a permit. Based on the potential administrative complexity
of issuing hazardous waste permits, the limited staff that EPA
expects to have available to review and negotiate permit
applications, and based on EPA's experience with the NPDES permit
program under the Clean Water Act, the Agency estimates that it will
take several years to issue all permits. Therefore, many prospective
permittees will have interim status for an extended period of time.
In keeping with the intent of Congress that hazardous waste
management be regulated by national standards as quickly as possible,
EPA believes that these prospective permittees should at least comply
with selected minimal requirements of the general Section 3004
standards during interim status.
The Agency does not believe that permit applicants with interim
status should be expected to meet all of the general Section 3004
standards because many of the specific requirements of these
standards may be inappropriate for certain facilities and alternate
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requirements may be substituted when a permit is issued. Some
permittees also may be allowed a reasonable period of time to comply
with certain of the general Section 3004 standards because Section
3005(c) of RCRA provides that EPA (or a. State when it is issuing the
permit under a program authorized by EPA pursuant to Section 3006)
may incorporate compliance schedules in the permits it issues.
Because most variance and all compliance schedule determinations are
meant to be made in the permit issuance process, where there is full
opportunity for public participation, the Agency does not believe it
is appropriate or possible to impose all of the general Section 3004
requirements prior to permit issuance.
On the other hand, given Congress' intent that hazardous waste
management be regulated as quickly as possible, and the independent
enforceability of Section 3004 standards, EPA believes that the
prospective permittees should begin to meet certain requirements of
the general Section 3004 standards which apply generally to all
permittees and which will definitely be included in the permit. This
will help achieve RCRA1 s goal of protection of human health and the
environment. For the same reasons, the prospective permittee in
interim status also should meet the financial requirements for
facility closure and post-closure monitoring and maintenance; some
funds then will be available even if the facility is closed prior to
issuance of a permit or as a consequence of failure to obtain a
permit.
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Further, EPA believes it would be inequitable to most facility
owners and operators to allow some of them to enjoy the benefits of
operation during the interim status period without assuming the
financial responsibility for proper closure and post-closure care,
should they elect to close their facility prior to obtaining a
permit.
III. SYNOPSIS OF PROPOSED REGULATION
The proposed regulation required interim status facilities to
comply with a small, slightly modified portion of the proposed
Section 3004 standards. More specifically, the proposed interim
status regulation included:
• all security and contingency plan requirements
• all training requirements
• all manifest, recordkeeping, and reporting requirements
• all visual inspection requirements
• most closure and post-closure care requirements
• groundwater monitoring where equipment was already installed
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• most financial requirements where compliance would not render
the facility insolvent
• limited storage requirements
• very limited technical treatment and disposal requirements
IV. COMMENT ANALYSIS AND RATIONALE FOR CHOSEN ACTION
The Agency received numerous comments from a wide cross-section
of commenters concerning general issues raised by the proposed
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interim status standards. These comments fall into the following
issue areas which are discussed in turn below:
• authority for interim status standards
• additional requirements during interim status
• financial requirements
• compliance period
• notes and variances
• equity
• general comments
A. Authority
A number of commenters expressed support for the interim status
standard concept. Some of these stated that legal authority for such
requirements exists in Section 3004 of the Act. They argued as
follows:-
Compliance with the permit requirements of Section 3005 is
only one of seven requirements Congress set forth for inclusion
in Section 3004 regulations. The interim status provision of
Section 3005(e) applies only in lieu of the specific require-
ments of Section 3005(a) and 3010(b) that operators of hazardous
waste treatment, storage, and disposal facilities (TSDFs) must
have a permit issued pursuant to the RCRA regulations within six
months of their promulgation. The remaining Section 30C
requirements for TSDFs are not affected by the interim status
provisions. If Congress had intended to exclude all interim
status TSDFs from Section 3004 requirements then .here would be
no Section 3004 regulations to take effect on the date specified
in Section 3010(b).
In opposition, a number of commenters stated that EPA has no
legal authority to impose facility requirements during the interim
status period, and recommended deletion of the interim status
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standards since EPA has the power to deal with imminent hazards under
Section 7003 and the remaining facilities can continue under existing
local control until new permits are issued.
One commenter argued that neither Section 3005 nor Section 3010
of RCBA authorizes EPA to require compliance with interim status
standards. The commenter stated:
Moreover, Section 3005(e) requires that interim status
applies if the facility owner or operator complies with its
three prerequisites. Under these circumstances, established
principles of statutory construction mandate that no additional
prerequisite be imposed by regulation.
Another commenter stated:
The requirements of Section 3004 need to be considered only
at the final disposition of the permit application, where the
application is approved, approved with a compliance schedule, or
denied. Therefore, while the requirements of Section 3004 must
be complied with in order to receive a permit, they need not be
complied with during the period of interim status.
Along the same lines, another commenter stated:
The requirements listed here are requirements for a permit,
not an interim permit. An interim permit, according to Section
3005(e) is granted automatically upon meeting the requirements of
3010(a) and has applied for a permit under Section 3005 until
such time as the appropriate agency (State or Federal) has
reviewed and processed the application. If such requirements
were presently being met, there would be no need for a law such
as P.L. 94-580. These requirements, if left in, would completely
close down any operations commenced prior to October 21, 1976,
thereby causing complete chaos of disposal, treatment, and/or
storage activities. Any replies made to Section 3010 (notifica-
tion) and 3005(e) (permit application) would make the notifier or
applicant subject to suit in Federal court immediately and no
protection could be given.
Upon review of these comments, it is apparent that there is some
misunderstanding about the relationship of Section 3004 to Sections
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3005, 3008, and 3010 of RCRA. Section 3004 regulations are
independent national standards applicable to owners and operators of
hazardous waste treatment, storage, and disposal facilities. These
standards are independently enforceable. Section 3008 authorizes
enforcement actions against persons violating any requirement of
Subtitle C, which includes Section 3004 requirements.
Section 3005(a) mandates EPA to promulgate regulations requiring
owners or operators of hazardous waste facilities to have a permit,
and prohibits treatment, storage, and disposal of hazardous waste
without a permit after the effective date of these regulations.
Section 3005(c) requires that EPA determine that a facility complies
with Section 3004 requirements before issuing a permit. Section
3010(b) states that all the Subtitle C regulations, including Section
3004 and 3005 regulations, take effect six months after they are
promulgated. Section 3001 regulations are keyed to the entire
Subtitle C system, however, because only persons handling waste
identified or listed in 3001 regulations must comply with Subtitle C
requirements.
Thus, on the effective date of the Section 3001, Section 3004,
and Section 3005 regulations, facility owners and operators are
required to comply with all the Section 3004 standards and have a
permit under Section 3005 in order to operate legally. Clearly, it
is beyond the capability of facility owners or operators to comply
with all Section 3004 requirements, and the Agency (or authorized
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States) to issue all permits, within the six months between
regulation promulgation and effective date.
Section 3005(e) resolves part of the problem by authorizing
facility owners or operators, under certain conditions, to obtain
interim status wherein they are to be treated as having been issued a
permit until such time as final administrative disposition of their
permit application is made. This satisfies the mandates of Section
3005(a) and of Section 3004(7) which prohibit operations without a
permit. However, Section 3005(e) does not address the independent
requirement of compliance with Section 3004 standards upon their
effective date.
As discussed above, Section 3004 standards are independently
enforceable requirements which apply to all treatment, storage, and
disposal of hazardous waste. In addition to the automatic
applicability of Section 3004 standards, however, EPA interprets the
language of Section 3005(e)(3), that a person shall be treated as
having been issued a permit, to mean that a person who operates with
interim status must accept the responsibilities and liabilities
associated with being a permittee. Thus the conditions of Section
3004 which are imposed on permit holders by operation of Section
3005(c) and (d) are also applicable to owners or operators of
facilities with interim status because they "shall be treated as
having been issued such permit."
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For the reasons noted in Section II. above, the Agency does not
believe that permit applicants with interim status should be expected
to meet all of the general Section 3004 standards immediately.
Hence, the Agency derived the concept of interim status standards
which the Agency believes can be met: (1) without substantial
interpretation by or negotiation with EPA, (2) without substantial
capital expenditures which are properly the result of the certainty
of permit conditions, and (3) within the six-month period between
regulation promulgation and effective date.
The Section 3004 interim status standards are expressly intended
to avoid the "complete chaos" and "closure of operations begun prior
to October 21, 1976," mentioned by a commenter above, which could
otherwise result if the full force of all the Section 3004 standards
were applied immediately.
The general rulemaking authority of Section 2002(a)(l) of RCRA
provides additional authority to establish interim status standards.
This section states:
In carrying out this Act, the Administrator is authorized to:
(1) Prescribe, in consultation with Federal, State, and
regional authorities, such regulations as are necessary to
carry out his functions under this Act;
The Agency believes, for the technical and policy reasons given
above, that it is appropriate to use this general authority to
establish interim status standards.
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B. Additional Requirements During Interim Status
Several cotmnenters felt that the scope of the proposed interim
status standards should be expanded to include all requirements of
the general Section 3004 regulations which could be implemented
immediately and that would be unlikely to require modification when a
permit is issued. Specifically, one or more commenters suggested
adding the following requirements to those proposed:
1. Ground-water and leachate monitoring for all facilities,
whether or not such systems are already in place.
2. All closure and post-closure requirements including
submission of a closure plan.
3. Limits on the types of waste that can be handled at
facilities.
4. Landfill diversion structures, gas collection systems, and
cover materials.
5. Sampling and analysis of wastes by facility owners
or operators under proposed §250.43(f), (g), and (h).
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6. General human health and environmental standards outlined in
proposed §250.42.
7. General site selection standards in proposed §250.43-1.
8. Prohibition on the growth of food chain crops on land
treatment facilities (landfarms).
9. Soil monitoring at land treatment facilities (landfarms).
10. Inspections at basins.
11. Incinerator trial burns and exhaust gas monitoring.
Each of these suggested additions to the interim status
standards is discussed below. In some cases, the reader is referred
to other documents which contain more detailed discussions of the
Agency's rationale for resolving these comments.
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1. Ground-water and Leachate Monitoring. The proposed interim
status standards required the owners or operators of landfills and
surface impoundments where ground-water or leachate monitoring
systems were in place to conduct sampling and analyze samples from
these systems, and to keep records and report results of the sampling
and analysis. Several commenters suggested requiring ground-water
and leachate monitoring at all facilities, whether or not such
systems were already in place. They felt that exempting some sites
from conducting this monitoring would mean that local and State
implementing authorities would be deprived of the warning needed to
determine if sites are endangering ground water and local water
supplies. Further, some of the commenters stated that ground-water
monitoring must be installed eventually at all final permitted
facilities. They felt that EPA should not postpone monitoring until
the final permit is issued because facility permits may not be issued
for five years or longer. Other commenters felt that monitoring data
were essential to identify sites violating the human health and envi-
ronmental standards and to trigger appropriate action against those
sites. (However, the human health and environmental standards were
not proposed as interim status standards.)
The Agency has considered these comments carefully. First of
all, it should be noted that leachate monitoring in the unsaturated
zone beneath landfills and surface impoundments has been deleted from
the Phase I Section 3004 standards for technical reasons (see
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ground-water monitoring background document for details). However,
the Agency has determined that leachate monitoring is technically
feasible and appropriate for land treatment facilities (landfarms),
and has added this requirement Go the interim status standards for
these facilities (see land treatment background document for
details).
The proposed ground-water monitoring requirements in the interim
status standards applied to landfills and surface impoundments but
not to other types of hazardous waste management facilities, such as
storage tanks and incinerators. This was done because the Agency
believed it was not necessary to monitor ground water beneath facili-
ties where hazardous waste is not held or handled for long periods
and where containment structures can be inspected visually for leak-
age. However, some of the commenters suggested requiring ground-
water monitoring for all facilities.
The Agency has reviewed its position on this point and has con-
cluded that ground-water monitoring is generally applicable to land
treatment facilities, as well as landfills and surface impoundments,
since hazardous waste-_is_ held or handled for long periods and seepage
to ground water cannot be detected visually. Ground-water monitoring
may also be appropriate in certain cases for other types of facili-
ties, such as underground storage tanks. However, the Agency has
decided that these situations are better handled on a case-by-case
basis than by a general rule. (See ground-water monitoring back-
ground document for further discussion.)
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Consequently, the Agency believes that landfills, surface
impoundments, and land treatment facilities are the only classes of
hazardous waste management facilities to which ground-water moni-
toring is generally applicable. For purposes of this discussion, the
Agency will assume that the basic issue is whether or not all land-
fills, surface impoundments, and land treatment facilities should
have ground-water monitoring systems during the interim status
period.
There are a number of factors upon which this issue turns. On
the one hand, it is true that nearly all landfills, surface impound-
ments, and land treatment facilities will eventually be required to
install ground-water monitoring systems as a condition of issued
permits. Installation of these systems during interim status would
supply several years of data and early warning of potential ground-
water contamination problems which would not otherwise be available.
Given the recent spate of ground-water problems identified at haz-
ardous waste facilities operated in the past (see ground-water
monitoring background document), this is a significant factor.
On the other hand, the planning and construction of ground-water
monitoring systems takes time and should be overseen by qualified
hydrogeologists. Also, ground-water monitoring systems may not be
needed in some circumstances. Further, the proposed ground-water
sapling and analysis requirements were extensive and contained
provisions for variances in some cases.
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On balance, the Agency has decided that 'the advantages—in terms
of increased human health and environmental protection—obtained by
requiring all landfills, surface impoundments, and land treatment
facilities to have ground-water monitoring systems during the interim
status period outweigh the drawbacks outlined above. However, the
Agency is concerned about the short time (six months after regulation
promulgation) available for compliance by such facilities currently
operating without ground-water monitoring systems and the other
negative factors mentioned earlier. Consequently, the Agency has
written the final interim status standards to require all hazardous
waste landfills, surface impoundments, and land treatment facilities
to have ground-water monitoring systems unless the owner or operator
conducts hydrogeological studies overseen by a geologist which
demonstrates such systems are unnecessary. This demonstration must
be available on demand by the Regional Administrator. The
requirement, however, has been delayed for one year after the
effective date of the regulations to allow enough time for proper
planning and installation of such systems. Finally, the sampling and
analysis requirements have been simplified so that variances are no
longer necessary.
2. Closure and Post-Closure. A number of commenters suggested
adding the requirement for submitting a closure plan to EPA, as
outlined in proposed §250.43-7(c), to the interim status standards.
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Another commenter felt that all general closure and post-closure
requirements in proposed §250.43-7 should be included, as well as the
technical closure requirements for landfills in proposed
§250.45-2(c), for surface impoundments in proposed §250.45-3(e), for
basins in proposed §250.45-4(h), and for landfarms in proposed
§250.45-5(g). The commenter felt inclusion of these sections in the
interim status standards would diminish the abandonment of dangerous
hazardous waste facilities during the years it takes EPA to develop
permits.
The technical closure requirements cited above were already
included in the proposed rule as interim status standards and thus
are not at issue. Further, all sections of §250.43-7, except
paragraphs (c), (i), and (o), were also included in the proposed rule
as interim status standards. Thus, the following discussion
concentrates on the excepted paragraphs of §250.43-7, which dealt
with submission of a closure plan, securing the site at closure, and
transfer of ownership during the post-closure period.
Upon review of the comments, it is clear that some members of
the public did not understand the Agency's intention regarding
closure plans during the interim status period. The Agency intended
that each facility owner or operator with interim status would
prepare a closure plan for his facility to include estimates of
closure costs, and post-closure costs, if applicable. The owner or
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operator would Chen use this information as the basis for complying
with financial requirements (a closure trust fund, and post-closure
trust fund, if applicable). However, the Agency did not and does not
believe it is necessary for owners or operators routinely to submit
these closure plans to the Agency for review during the interim
status period. In EPA'3 opinion the Agency staff should focus on
issuing permits and enforcement matters, rather than reviewing
closure plans. The Agency can ensure that closure plans are prepared
via facility inspections. Further, a closure plan is to be submitted
with Part B of the facility permit application. At the time the
permit is considered, the Agency will review the plan and require it
to be revised, if necessary.
Should an owner or operator wish to close his facility during
the interim status period (prior to permit issuance or denial), he
must contact the Regional Administrator 180 days before he expects to
begin closure. At that time, the Agency will review the closure plan
and require it to be adjusted, if necessary.
These procedures have been clarified in the final rules. (See
closure and post-closure background document for details.)
The Agency has reviewed the closure security and post-closure
transfer of ownership provisions which were excluded from the
proposed rule. The Agency concurs with the comment that the post-
closure security and transfer of ownership provisions should be
included in the interim status standards, since a significant number
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of facilities may close during the interim status period. These
facilities should be subject to the same requirements for closure as
those which close after a permit is issued to them, in order to
assure that human health and the environment are protected.
3. Ignitable, Reactive, or Incompatible Wastes. A commenter
suggested that restrictions on the handling of ignitable, reactive,
incompatible, or volatile wastes at landfills, surface impoundments,
basins, and landfarms should be included in the interim status
standards. No rationale for this suggestion was given.
Most references to volatile waste have been deleted from the
final standards for the reasons provided in the preamble to the
Section 3004 regulations. The other restrictions were not included
in the proposed interim status standards because they involved
variances which were to be resolved during the permitting process.
As a result of a number of comments about variances (see IV. E.
below), the Agency has decided that certain variances can apply
during the interim status period by rewording the proposed rules and
relying upon a self-implementing system wherein an owner or operator
can use the variances to suit particular circumstances at his
facility, provided he can demonstrate upon request by EPA that the
variances in fact apply.
Consequently, in the final interim status rules, thegrAgency has
included restrictions on the handling of ignitable, reactive, and
incompatible waste at certain facilities, subject to variances which
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may apply. Application of these variances will be up to the owner or
operator during interim status, and will be reviewed during the
permit issuance process. The Agency believes this procedure provides
a greater degree of human health and environmental protection than
would be the case if the rules were simply excluded from the interim
status standards.
4. Landfill Rules. Several commenters felt that requirements
for landfill diversion structures, gas collection systems, and cover
material should be included in the interim status standards. No
rationale for this suggestion was given.
The requirement for landfill gas collection systems has been
deleted from the final standards for the reasons given in the
landfill background document.
The need for landfill diversion structures arises from the
potential for precipitation from outside the active portion of the
•facility to run onto the active portion and become contaminated.
This contaminated water may then run off into surface waters or seep
into the ground. A related problem involves precipitation which
falls directly on the active portion of a facility. It may also
become contaminated run-off, and thereby cause similar problems.
The Agency shares what was apparently the commenter's concern
regarding contaminated surface water run-off, and agrees that
provisions for its control should be included in the final interim
status regulations. Accordingly, during the interim status period,
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the final rules require that run-on must be diverted away from the
active portions of a landfill, and the run-off from the active
portions of a facility must be collected. The collected run-off must
be managed in accordance with these Subtitle C regulations if it is
found to be hazardous waste. As suggested by the commenters, one
means to reduce the amount of run-off which must be dealt with is to
divert non-contaminated run-off (from non-active areas) away from the
active part of the facility. However, because surface water run-off
can be controlled by means other than construction of diversion
structures, the Agency has left the choice of measures to control
contaminated surface water run-off up to the owner or operator.
The Agency realizes that constructing run-off containment struc-
tures and treatment facilities, where necessary, may require a modest
capital expenditure and may take longer to implement than the period
between the promulgation and effective dates of these regulations.
Also, obtaining an NPDES permit, when necessary, may take longer than
six months. Therefore, the Agency has decided that the requirements
to divert run-on and to contain run-off will not become effective
until one year after promulgation of these regulations.
Landfill cover material requirements were not proposed as inter-
im status standards because daily cover is not always needed, and the
requirement was subject to a variance. The Agency has decided not to
include a landfill cover requirement in the final interim status
standards, except for final cover during closure (see landfill
background document).
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5. Waste Analysis. Some commenters felt that sampling and
analysis of hazardous waste by facility owners or operators (proposed
§250.43(f), (g) and (h)) should be included as an interim status
standard. No rationale for this suggestion was given.
These provisions were not specifically proposed as interim
status standards. However, waste analysis was required in order to
comply with other interim status standards. As a result of a number
of comments about these provisions (see waste analysis background
document), the Agency has modified the requirements for waste
sampling and analysis. The facility owner or operator is now
required to prepare and follow a waste analysis plan appropriate to
the waste handled and type of facility. Waste analysis requirements
specific to different types of facilities (e.g., incinerators, tanks)
are given in the technical sections.
The Agency believes this approach will account for the wide-
ly varying circumstances encountered at facilities across the nation.
Further, the Agency believes that facility owners or operators should
know enough about the wastes they handle to comply with the reporting
and technical requirements of the regulations. Consequently, both
general and specific waste analysis requirements have been added to
the interim status standards.
6. Human Health and Environmental Standards. One commenter
suggested adding the general human health and 'environmental standards
(proposed §250.42) to the interim status standards. However, the
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human health and environmental standards have been deleted from the
final rules for the reasons given in the preamble to the Section 3004
regulations. Thus, the comment is not discussed further here.
7. Site Selection Standards. Some commenters felt that the
general site selection standards (proposed §250.43-1) should be made
a part of the interim requirements, because omission of these stand-
ards is "contrary to the intent of the law and completely unaccept-
able."
While it is true that Section 3004(4) of the Act specifies that
regulations must include requirements respecting the location of
hazardous waste facilities, and the Agency proposed such standards in
§250.43-1, the Agency excluded them from the interim status requi-
rements for the simple reason that there are few options, other than
closure, for existing facilities already located in areas restricted
by the new rules.
The Agency feels that immediate closure of such facilities
during the interim status period is too severe a sanction, and may be
contrary to Section 3005 of RCRA which provides for compliance
schedules as part of the permitting process. Also, there may be
circumstances where variances or waivers to allow continued operation
of such facilities is in the best overall interests of human health
and environmental protection. Thus, the Agency disagrees with the
comment and has continued to exclude site selection standards from
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the interim status requirements. EPA believes that those standards
should be applied on a case-by-case basis during the permitting
process.
8. Food Chain Crops on Land Treatment Facilities (Landfarms).
Commenters suggested that growth of food chain crops on landfarms
should be prohibited during the interim status period. No rationale
was given for this suggestion.
This issue is discussed at length in the land treatment
facilities background document. Based on the reasons discussed in
that document, the Agency has decided that growth of food chain crops
on land treatment facilities should be prohibited during the interim
status period unless the owner or operator develops substantial data
on plant uptake, soil conditions, waste application rates, etc., and
retains this data subject to EPA review on request.
9. Soil Monitoring at Land Treatment Facilities (Landfarms).
Commenters suggested that soil monitoring at landfarms (proposed
§250.45-5(d)) should be an interim status standard. No rationale was
given for this suggestion.
Again, this issue is discussed in the.land treatment facilities
background document, and that discussion will not be repeated here.
For the reasons given in that document, the Agency has decided that
the soil monitoring requirement at land treatment facilities should
be made part of the interim status standards. It should be noted
that soil monitoring also is indicated after closure of a land
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treatment facility whether closure occurs during interim or permitted
status.
10. Inspections at Basins. Commenters felt the requirement for
inspections at basins (proposed §250.45-4(f)) should be an interim
status standard. No rationale for this suggestion was given.
In-response to numerous comments on the proposed rule for
inspections, the Agency has adopted an approach in the final rule
which calls for a facility owner or operator to prepare and implement
an inspection plan specific to the circumstances at his facility.
(See inspections background document for details.) This approach
applies to basins, (which are considered as tanks in the final
rules), among other types of facilities, during both the interim and
permitted status periods. Thus, the Agency has adopted the comment-
er's suggestion, but in a different manner than specified in the pro-
posed rule.
11. Incinerator Trial Burns and Monitoring. Commenters felt
that requirements for incinerator trial burns and emissions, feed,
and temperature monitoring (proposed §250.45-1 (b) and (c)) should be
included in the interim status standards. No specific reason for
this suggestion was given.
The Agency recognizes that incinerator trial burns and monitor-
ing are important factors for incineration facilities. However,
these requirements were not included in the proposed interim status
standards because trial burn parameters and methods can be complex,
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and continuous emission monitoring equipment is relatively sophisti-
cated and expensive, and must be installed properly to give meaning-
ful readings. The Agency continues to believe these requirements
should be specific permit conditions based on case-by-case evaluation
of each facility owner's or operator's permit application. Thus,
these requirements are not appropriate for interim status standards.
C. Financial Requirements
Proposed §250.40(c,)(2)(vi) regarding closure and post-closure
requirements during the interim status period made reference to,
among others, proposed §250.43-7(a) which required facility owners or
operators to "comply with the applicable Financial Requirements in
§250.43-9." Commenters pointed out that proposed §250.43-7(a) is
inappropriate since financial requirements for the interim status
period were spelled out in proposed §250.40(c)(2) (viii).
The Agency acknowledges that the comment is correct. Proposed
§250.43-7(a) was included inadvertently and inappropriately in the
interim status standards.
Proposed §250.40(c)(2)(viii)(D) provided discretion to the
Regional Administrator to allow partial compliance with the closure
and post-closure trust fund requirements if the facility owner or
operator could demonstrate that full compliance with these require-
ments would render the facility owner or operator insolvent. Com-
menters objected to this provision on the grounds that it allowed
excessive discretion to the Regional Administrator. Others felt that
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the insolvency waiver during the interim status period should apply
only if the owner or operator can demonstrate that he will ultimately
be able to fully comply with the closure and post-closure trust fund
requirements upon permit issuance.
The Agency has carefully reviewed these comments and the others
directed at the main financial requirement provisions in proposed
§250.43-9. Based on these comments, the Agency has decided to change
and repropose the approach to closure financial requirements during
both interim and general status. In the reproposed rules, a surety
bond, a trust fund built up over the facility life, a letter-of-
credit, or a combination of these financial instruments, or a
financial strength test, may be used to satisfy the closure financial
requirements. These new provisions should allow facility owners or
operators to meet the requirements with substantially less "upfront"
money than was required by the trust fund approach in the original
proposed rule.
The reproposed post-closure financial requirements can be
satisfied with the same financial instruments required for closure,
or a combination of them. The post-closure requirement applies only
to disposal facilities, rather than to all facilities. Nonetheless,
to avoid undue financial hardship, the post-closure financial
requirement effective date is proposed to be delayed for one year
after the effective date of the regulations. This should allow
owners or operators to satisfy their post-closure financial
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requirements, if applicable, from operating revenues rather than from
current assets.
Consequently, the Agency believes the insolvency waiver proposed
for the interim status period is no longer appropriate, and it has
been deleted from the reproposed standards. (See the financial
requirements background document for further details.)
D. Compliance Period
Many commenters suggested alternate compliance schedules for the
interim status requirements as follows:
1. Should the effective date of the regulations coincide with
the date of promulgation, compliance with the interim status
standards would not be feasible. Some could be effective
immediately, such as manifests or visual inspections. Other
items will take some period of time to evaluate and
implement, such as the financial requirements. We therefore
recommend that the Agency develop a reasonable timetable for
the implementation of the interim status standards, with the
allowed compliance time ranging from 30 to 180 days,
depending upon the complexity of the particular standard.
2. Most facilities will not be able to develop a contingency
plan and closure plan and meet the security, training, and
financial requirements in one day (the effective date). We
would suggest that the interim status requirements be
limited to the manifest system, recordkeeping, and reporting
requirements at least for the first 180 days.
3. All interim status requirements should take effect six
months after promulgation of the regulations as supported by
Section 3010(b) of RCRA.
4. Recommend that 180 days additional time be given for an
existing facility to comply with the interim status
requirements after the rules become effective. [No
rationale given.]
5. Allow a reasonable compliance period for each interim
requirement. ["Reasonable" not defined.]
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6. EPA should phase in the interim standards over a period of
years and thus avoid problems that would arise from failure
to comply with these standards on the effective date of the
RCRA regulations. Those companies that have difficulty
meeting the interim standards should be allowed time in
which to achieve compliance.
7. Three commenters presented specific recommendations for
interim status standard compliance periods using essentially
the same rationale, but with different suggested schedules,
as follows:
Many of the interim status requirements will be
difficult, if not impossible, for existing facilities to
comply with in the time proposed. It is recognized that
Subtitle C regulations are not effective until 180 days
following promulgation (90 days for Section 3010), but this
time period will be utilized for examining and testing waste
streams, and preparing the necessary permit applications
which will be required as well as implementing these interim
requirements. Additional time must be provided for
achieving compliance with the substantive requirements such
as building a fence (250.43-2), and developing a contingency
plan (250.43-3), and so on. Accordingly, requests
that 250.40(c) be revised to allow for a reasonable
compliance period for each specific interim requirement. In
particular, we recommend that this be accomplished by
adding a new section 250.40(c)(7) as follows:
Compliance with the interim requirements
specified in 250.40(c)(2) shall be achieved on the
following time periods, following the effective date of
interim status for each facility:
Commenter Commenter Commenter
Requirement ABC
Security 90 days 270 days 180 days
Contingency Plan 90 days 90 days 180 days
Training 180 days 180 days NC
Manifest, Records, Immediately Immediately NC
Reports
Inspection Immediately NC * NC
Closure and Post- 180 days 360 days 180 days
Closure
Ground-water 30 days 30 days NC
Monitoring
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Financial Require- 180 days 180 days NC
ments
Storage Immediately 180 days NC
Containers 30 days 180 days NC
Treatment/Disposal 90 days 180 days NC
Landfills 30 days 180 days NC
Surface Impoundments Immediately 180 days NC
Basins Immediately 180 days NC
Land farms Immediately 180 days NC
Chem./Phys./Biol. 30 days 180 days NC
Treatment
[NC means no comment was made. No rationale for the specific
schedule suggested for each requirement was provided.]
The Agency's response to the above comments is as follows.
Comments No. 1 and No. 2 were clearly predicated on the incorrect
assumption that the interim status requirements become effective on
the date of promulgation. Those making Comment No. 3 correctly noted
that Section 3010(b) of RCRA specifies that the interim status
requirements take effect six months after promulgation of the regula-
tions. EPA did not require a particular compliance schedule in the
proposed rule, because to do so would be redundant to Section 3010(b)
and because EPA believed that six months was a reasonable compliance
period for all of the interim status standards. Nonetheless, the
concerns expressed in Comments No. 1 and No. 2 are automatically
accounted for by the compliance schedule specified in RCRA.
Comment No. 4 is similar in some ways to Comment No. 7 in that
both recognize the schedule specified in RCRA, and yet make an appeal
for specific additional time for compliance with the requirements.
Since no rationale was provided for Comment No. 4, however, the
Agency will respond to it under the umbrella of Comment No. 7.
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Comment No. 5 was submitted by a. number of sources but is too
general in that it lacks definition of what a "reasonable" compliance
period may be. Therefore, the Agency will not respond to this com-
ment specifically except to say that the statute provides that the
regulations are to become effective six months after their promulga-
tion and EPA believes that's reasonable compliance time for all those
requirements for which we haven't given an extended compliance date.
Comment No. 6 argues for phasing in the interim standards over a
period of years "to avoid problems that would arise from failure to
comply with these standards on the effective date." Presumably, the
"problems" referred to are EPA enforcement actions against those not
in compliance. The Agency considers six months to be a reasonable
compliance period, and, therefore, disagrees with this comment.
Comment No. 7 provides a general rationale for specific suggest-
ions for compliance periods for each interim requirement, but the
three commenters proposed different schedules for each item. Fur-
ther, no specific rationale for each proposed schedule was provided
by any of the three commenters.
The general rationale argues that additional time beyond the six
months between regulation promulgation and effective date is needed
to achieve compliance with the substantive requirements, such as
building a fence and developing a contingency plan, because facility
owners or operators will use the six-month period for examining and
testing waste streams, and preparing the necessary permit applica-
tions.
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The Agency does not believe these are valid arguments. Examina-
tion and testing of wastes listed in the Section 3001 regulations is
not required. For nonlisted wastes, it takes a maximum of 24 hours
to perform the test protocols for determining whether or not a waste
stream meets the hazardous waste characteristics specified in the
Section 3001 regulations. In any event, these tests must be com-
pleted within 90 days (not six months) in order to comply with the
notification requirements of Section 3010 of RCRA.
The comments were written before the permit application regula-
tions under Section 3005 of RCRA were proposed, and, therefore, the
commenters may have assumed that applying for a permit would be a
difficult and time consuming task. However, the permit rules provide
for a two-step permit application process. A facility owner or oper-
ator may satisfy Section 3005(e) of RCRA and thereby qualify for
interim status (provided Sections 3005(e)(l) and (2) are also com-
plied with) by submitting Part A of the permit application within six
months after the Section 3005 regulations are promulgated. Part A of
the permit application requires the following:
(1) Name, address, and telephone number of the owner and
operator, and, if different, of the facility.
(2) Type of facility ownership (e.g., State, private).
(3) A brief description of the nature of the business and
applicable SIC codes.
(4) A listing of all permits or construction approvals under
certain Federal and State permit^programs.
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(5) A topographic map depicting the facility and nearby wells,
springs, and other surface water.
(6) The latitude and longitude of the facility.
(7) The relationship between the operator and owner of the
facility.
(8) The physical status of the facility (whether existing,
undergoing modifications, or planned).
(9) A schematic drawing of the facility.
(10) Photographs of the facility.
(11) Cost estimates for closure and post-closure activities.
(12) A description of the techniques used for storing,
treating, or disposing of hazardous waste, and an estimate of the
capacity of the components used.
(13) A description of the hazardous wastes that will be handled
while the facility is under interim status.
(14) A description of the hazardous wastes that the owner or
operator wishes to handle when the facility is issued a RCRA permit.
Part B of the permit application, to be submitted later when
requested by EPA, contains the more substantive information require-
ments, such as detailed operation and maintenance plans, detailed
descriptions of site geology and hydrology, climatic information,
etc. The Agency believes it is neither difficult nor time consuming
to assemble the Part A information* Consequently, the burden of
preparing Part A of the permit application should be substantially
less than the commenters anticipated.
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As to building fences, the security requirement has been modi-
fied in the final rule such that a fence is no longer explicitly
required. Where a facility must have a fence but does not already
have one (which is unlikely), the Agency believes a suitable fence
can be constructed around a facility within the six-month period
following regulation promulgation.
The contingency plan must include:
(1) A description of the response to emergencies at the
facility;
(2) Where appropriate, a description of arrangements agreed to
by local agencies to provide emergency response services;
(3) A list of facility emergency coordinators;
(4) A list of emergency equipment at the facility; and
(5) Where appropriate, an evacuation plan.
The Agency believes a facility owner or operator should be able
to prepare a contingency plan meeting the above requirements within
the six-month period between regulation promulgation and effective
date.
For all of the reasons given above, the Agency does not agree
with the points made in the general rationale of Comment No. 7 and
sees no reason to delay compliance of the security and contingency
plan requirements mentioned therein.
Of the 14 remaining specific compliance schedule recommendations
(for which no rationale was given) in Comment No. 7, at least one of
the three commenters felt that six of these could be met without
33
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additional time delays. The Agency concurs with those comments.
Four other requirements were proposed to take effect 30 days after
the effective date of the regulations, or 210 days after promulgation
instead of 180 days. It is not clear to the Agency that an addi-
tional 30 days would provide any significant advantage to facility
owners or operators, nor does the Agency agree that such delays are
justified, except as noted earlier that the installation of new
ground-water monitoring and run-off control systems may require up to
an additional year beyond the normal compliance period.
The four remaining requirements for which compliance delays were
proposed are:
Training 180 days
Closure and Post-Closure 180/360 days
Financial Requirements 180 days
Treatment/Disposal 90/180 days
The training requirement has a six-month delay built into it
already, that is, operating personnel at existing facilities must
complete a training course six months after the effective date, or
one year after promulgation of the regulations. The Agency believes
a one-year period is more than adequate time for facility owners or
operators to develop a Graining program and administer it to their
employees. Hence, the Agency is convinced that further delays are
not justified.
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The closure and post-closure requirements apply upon or after
closure of a facility. The key to compliance is the facility closure
date, not the effective date of the regulations. Thus, the Agency
sees no reason to delay the effective date of the regulations. How-
ever, the Agency intends to add the requirement that a closure plan,
and for disposal facilities, a post-closure plan, be prepared for
interim status, as discussed earlier. The closure plan must be com-
pleted within the six-month period following regulation promulgation,
and must include:
(1) A description of how and when the facility will be closed
and a schedule for closure;
(2) A description of the steps necessary to decontaminate
equipment during closure; and
(3) The maximum inventory of wastes that is expected during the
life of the facility.
The post-closure plan, where applicable, must include a
description of post-closure monitoring and maintenance planned for
the facility.
The Agency believes these requirements can easily be met within
the six months following regulation promulgation and thus is not per-
suaded that a compliance period delay is justified.
As mentioned earlier, the closure and post-closure care finan-
cial requirements have been modified by allowing a variety of finan-
cial instruments, and will be reproposed. Consequently, the proposed
delay in the compliance period is moot.
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The proposed treatment/disposal requirements for interim status
(proposed §250.45(a) and (b)) have been deleted from the final rule.
Thus, there is no need to discuss compliance periods for them.
Commenters recommended not only that the interim requirements
should take effect six months after promulgation, but also that com-
pliance with them should be a prerequisite to the granting of a per-
mit.
EPA considered making these interim status standards part of the
permit application process under Section 3005(b) of RCRA, i.e., hav-
ing the permit application require an owner or operator to submit
information about how he is implementing the interim status stand-
ards. EPA would then review the application and assess the owner's
or operator's explanation before notifying a prospective permittee
that he has fulfilled the requirements for interim status. The
Agency, however, considers that requiring this additional information
would impose too great a burden on the regulated community and evalu-
ating the information would impose too great a burden on EPA. EPA
believes that the mandate of RCRA will be better served by having its
staff work on issuing or denying permits rather than on making com-
plicated assessments relating to interim status.
E. Notes and Variances
Many commenters suggested that the status of "Notes" in the pro-
posed rules should be clarified regarding their applicability during
the interim status period. Some commenters felt the regulations
should allow facility owners or operators with interim status to make
36
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good faith judgments as to their compliance with the applicable regu-
lations including the "Note" requirements. Also it was recommended
that EPA revise the interim security requirement to clarify that
facilities that do not need to construct fences, for any of the
reasons in the accompanying "Note," are not required to do so.
The Agency agrees that it was not clear whether "Notes" in the
proposed rules (which were intended to allow variances from the rules
in certain circumstances) applied during the interim status period,
nor was it clear who was to determine compliance with the "Notes" if
they did apply.
4
In response to numerous comments concerning the "Note" system in
general, the Agency has incorporated the substance of these "Notes"
directly into the final rules. Thus, there are no "Notes" allowing
variances anymore. Where appropriate, allowable variances are
included directly in the final interim status standards. Conse-
quently, there should be no confusion as to whether or not certain
variances are allowable during the interim status period.
The Agency agrees that, to a certain degree, facility owners or
operators should be allowed to make good faith judgments as to
whether or not allowable variances apply to them during interim
status. The final rules specify that a facility owner or operator
may elect to follow alternative requirements allowed by a variance,
provided he can demonstrate the facts and rationale supporting that
judgment when requested by the Regional Administrator. Thus, a
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self-implementing system applies to variances during the interim
status period, but that system is subject to oversight by EPA, which
can request evidence supporting the variance at any time.
In any event, variances will be reviewed by EPA during the per-
mit issuance process, and will be reflected in the permit conditions
if a facility owner- or operator can demonstrate eligibility for the
variance as required in the regulations.
F. Equity
1. Common Permit Effective Date. Many commenters expressed
concern that inequities are likely to develop in permitting facili-
ties during the interim status period. EPA estimated in the preamble
to the proposed regulations that it could take up to five years to
issue all of the permits. Several commenters pointed out that, for
example, one facility's permit application may be reviewed early in
the period and a compliance schedule imposed to meet the full set of
Section 3004 standards, while a similar competing facility might be
subject only to the interim status standards for several years there-
after until its permit application is reviewed.
To minimize potential inequities, several commenters urged EPA
to establish a definite period in which only the interim status
standards apply, regardless of when a permit is issued. In other
words, all permits and permit requirements would become effective at
the same time. The interim status period, according to some comment-
ers, should be sufficiently long to ensure that essentially all of
38
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the permits would be issued. Others suggested a five-year period.
Also, it was suggested that the permitting procedure could be similar
to that followed in achieving compliance with the BPT requirements
under the Clean Water Act, and that this procedure would ensure
equitable treatment.
It should be noted that there is no language in RCRA which
suggests that EPA should or could specify a future date by which all
facilities are to be in compliance with the Subtitle C regulations.
Thus, RCRA differs from the Clean Water Act which mandated a specific
date by which all wastewater treatment systems were to be in compli-
ance with the BPT requirements, as mentioned by one of the comment-
ers. There is no statutory mandate in RCRA to follow the suggested
approach. Further, the Clean Water Act approach did not provide
complete equity since all permits were not issued in time for the
compliance date to be met. Thus, the Agency does not agree that
setting a future date on which all RCRA permits would become effec-
tive would necessarily preclude inequitable situations. Further, EPA
believes this approach is inconsistant with the clear Congressional
mandate to provide safer hazardous waste management practices as
quickly as possible.
The above comments are really directed at the Agency's permit-
ting priority policies, rather than at the substance of the interim
status standards. Further, RCRA provides that the Administrator may
include compliance schedules in permits when necessary to bring a
39
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facility into compliance with Section 3004 requirements. This is
done at the time of permit issuance, and thus after the interim
status period ends. Consequently, the equity issue is more properly
addressed by the manner in which EPA sets permitting priorities, and
implements Section 3005(c) of the Act.
2. Case-by-Case Interim Status Standards. Some commenters
assumed that final permits would be delayed the longest for existing
facilities, and that these facilities would thus have to carry a
disproportionate share of the compliance burden. These commenters
suggested that interim requirements should be imposed on existing
facilities on a case-by-case basis, using past operating experience
of these facilities which is known by State environmental agencies.
These commenters felt that case-by-case evaluations would be more
equitable than the "blanket" approach proposed.
First of all, the Agency is at a loss to understand why the com-
menters believe that delay of permit issuance will cause a facility
to carry an increased share of the compliance burden over those per-
mitted at an earlier time. This is the opposite stance from the com-
ments reviewed at F.I. above. Since the interim status standards are
less extensive than the general Section 3004 standards which apply
under permitted status, one assumes that those facilities permitted
first would carry the greater burden.
Setting this anomaly aside, the Agency does not agree that
interim status standards should be applied on a case-by-case basis.
This approach would be a "de facto" permit program. It would require
40
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substantial commitment of Agency resources which are better spent in
developing final permits, rather than "de facto" permits. Lastly, it
is difficult to see how this approach would be considered more
equitable than uniform national standards applicable to everyone, as
proposed. Consequently, the Agency has not adopted a case-by-case
approach for the interim status standards.
3. Discrimination Against Off-site Facilities. In the preamble
to the proposed rules, it was mentioned that the Agency had developed
implementation plans which would give first priority for permitting
to off-site disposal facilities and new facilities. Several commen-
ters felt it would be discriminatory to regulate (permit) off-site
facility owners or operators while others (on-site) are subject only
to the more limited interim status standards.
i
Again, these comments are aimed at EFA's implementation plans
for RCRA rather than the interim status standards themselves. The
Agency is developing final implementation strategies which may be
different from those proposed. Consequently, the Agency believes no
further discussion of these comments is appropriate in this document.
4. No Intention To Obtain Permits. Commenters suggested that
many facility owners or operators who never intend to actually obtain
a permit will take advantage of the interim status period by applying
for a permit, using unrealistically low estimates for establishing
closure and post-closure funds, competing in the marketplace with
legitimate owners or operators for the several years it will take to
41
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fully review permit applications, and then closing their facility
prior to permit issuance or denial. To counter this, commenters
suggested that EPA should: (a) prior to issuing an identification
number, inspect each facility to determine the facility owner's or
operator's financial capability and his potential to comply ulti-
mately with the requirements of RCRA, or (b) issue identification
numbers only to those facility owners or operators who presently hold
valid State or Federal NPDES permits to receive and dispose of
specific hazardous waste compounds. [Note: In the proposed rule,
EPA announced its intention to issue an identification number to each
facility owner or operator who qualifies for interim status.]
The Agency shares the concern expressed by these commenters, but
disagrees with their suggested solutions. Interim status is achieved
automatically by a facility owner or operator who complies with Sec-
tion 3005(e) of RCRA. EPA cannot initially withhold interim status
from facility owners or operators, who otherwise qualify, based on
the Agency's subjective judgments of financial capability, intent to
ultimately comply with RCRA's requirements, or on the ba'is of State
or Federal permits issued under other statutes. If EPA becomes aware
of facilities which are not meeting the interim status standards (in-
cluding financial requirements) the Agency can bring an enforcement
action against them under Section S^S of RCRA or can act quickly on
the facility's permit application (i.e., request Part B and begin
processing it).
42
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The Agency has made it clear in the final rules for interim
status (as it was in the proposal) that facility owners or operators
who elect to close their facilities while in interim status (before
permit issuance or denial) must do so in accordance with closure
requirements and post-closure requirements, if applicable, that are
equivalent to those required for closure and post-closure for per-
mitted facilities. Thus, these owners or operators will not escape
the responsibilities (and costs) of complying with these require-
ments. Consequently, the potential inequities feared by the comment-
ers should be greatly reduced, if not totally eliminated.
5. The "In Existence" Problem. Several commenters pointed out
what they perceived as a serious fault in the structure of RCRA.
As currently written, Section 3005(e) limits interim status to
owners or operators of facilities "in existence on the date of
enactment of this Act," or October 21, 1976. Facilities built
after that date are not eligible for interim status and must
obtain final permits within 180 days after regulation promul-
gation in order to operate legally. It is unlikely that final
permits can be obtained in this time by all facility owners or
operators in this group. This would be grossly unfair to this
group.
Some commenters felt that the owners or operators of facilities
in operation or in an advanced state of construction before the
effective date of the RCRA regulations should be eligible for interim
status as a matter of practicality and fairness. Others suggested
that the Section 3005 regulations provide for a temporary, short-term
permit for facility owners or operators in this group.
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The Agency agrees that the "in existence" problem identified by
the commenters is serious and has important equity and capacity
availability aspects. In the proposed rule, the Agency defined "in
existence" as broadly as possible to minimize the number of facili-
ties affected by the problem. Nonetheless, some facilities will
still be affected. Consequently, the Agency proposed, and the Con-
gress is now considering an amendment to RCRA which would change the
wording of'Section 3005(e)(l) of RCRA to solve the problem and
eliminate the need for temporary permits as suggested by commenters
above.
G. General Comments
1. Hazardous Waste Definition. Commenters felt that the ques-
tion of what truly constitutes a "hazardous" waste should be resolved
prior to the imposition of the additional costs which will be associ-
ated with the interim status standards.
The Agency agrees, certainly, since this is implicit in the
structure of Subtitle C of RCRA. The Section 3001 regulations pro-
vide the definition of hazardous wastes which are subject to interim
status standards.
2. Exemptions. A few commenters were alarmed to discover there
may be many instances where existing boilers, incinerators, kilns,
clarifiers, or lagoons may suddenly be defined as hazardous waste
treatment plants under the RCRA regulations. The commenters1 argu-
ment goes on to state:
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It does not seem that the Agency has yet recognized the full
import of this issue. The rules applying to "interim status"
may be quite appropriate for an existing hazardous waste site,
but very lacking if they are to apply, say, to an industrial
power boiler or to a wastewater lagoon.
The Agency is urged to consider this problem more carefully and
to make adequate provision for exclusions and exemptions of
certain such facilities which we believe were not intended to be
covered.
The Agency is well aware of the "import of this issue," to
paraphrase the commenter. Many other comments on the main Section
3004 proposed regulations (as opposed to the interim status stan-
dards) raised the same issue and challenged the applicability of the
RCRA rules to certain types of facilities. This led to recently
proposed Congressional amendments to RCRA to clarify its applica-
bility to surface impoundments which are part of NPDES permitted
wastewater treatment systems, and to exemptions or deferral of appli-
cability of RCRA regulations tq certain other types of facilities,
such as drilling mud and brine pits associated with oil and gas
exploration and production.
In addition to pending Congressional actions, the Agency has
deferred or excluded from regulatory coverage other facilities, such
as industrial power boilers. (See Section 3001 background documents
for further details.) All of these actions apply to the interim
status standards as well as the general regulations. Thus, there has
been substantial response to the comments in the final rules.
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3. Closure of "Active Portions." Commenters inferred that the
interim status standards do not apply to portions of a landfill site
closed in accordance with the facility closure plan and closure
standards, and then raised the question:
During interim status, are those portions of the site not
meeting the definition of "active portion" (i.e., not closed
according to the closure plan) included in [the interim status
standards]? Will site owners or operators be forced to reclose
all parts of their site if they want to remain in operation
under these regulations? There is a need for clarification of
the definition of "active portion" in relation to what closure
plans apply during interim status.
Fart of the commenters' confusion arises from the original
inference, which is incorrect. The interim status standards apply to
those portions of a landfill which are either actively receiving
hazardous waste (active portion) or are closed after the effective
date of the regulations. The interim status standards contain land-
fill closure and post-closure standards which must be complied with
after the rules take effect. Portions of landfills closed prior to
the effective date of the regulations are not subject to the interim
status standards, whether or not they were closed in accordance with
the new rules. Thus, landfill owners or operators will not be forced
to reclose all parts of their site in order to remain in operation
under the interim status standards.
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