lt>
f «« I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
««
JUM 9099
MEMORANDUM
SUBJECT: Federal Register^ Notices-, of Regulations for the
underground: injection Control Program
FROM: Susan R. Suli-iya'n ,<
Attorney/OE/Water ,
Donald M. Olson^chier^**-"
Underground Injection Control
compliance and Enforcement Section
TO: Addressees
This memorandum along with a three volume copy of the
Federal Register notices of regulations for the Underground
Injection control (UIC) Program is transmitted to you for the use
of your office. One copy of these documents is being distributed
to each of the Water Divisions in the Regions and each of the
offices of Regional Counsel as well as to the Office of General
Counsel, the Enforcement Branch of the office of Ground Water and
Drinking Water and the Water Division of the office of
Enforcement in Washington, D.c.
In Volume 1 of the documents are the tabs that need to be
inserted between all of the notices, otherwise, the volumes are
complete. Please locate the Federal Register notices in a
central location accessible to those whojmay use jthese documents.
Finally, £thiel|eSoeumeritsliwi
I hope you find the documents as useful as we do. If you
have any questions or comments regarding these documents, please
call Susan Sullivan at 202-260-2856 or Don Olson at 202-260-
5558.
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2
Addressees: Diane Chabot, ORC, Region I
Nina Dale, ORC, Region II
Betsy Lukens, ORC, Region III
Tori George, ORC, Region IV
Dorothy Attermeyer, ORC, Region V
Pat Weatherly, ORC, Region VI
Pearl Fain, ORC, Region VII
Peggy Livingston, ORC, Region VIII
Chri.stopher Sproul-,. ORC Region IX
Ann Prezyna;: ORC, ;Region X
Lee Schoer, OGC
UIC Section Chiefs, Regibns 1 thrua)
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TABLE OF
CONTENTS
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Underground Inlection Control Program Rules Index
1. Proposed Regulations; Grants for State Underground Water
Source Protection Programs; State Underground Injection
Control Program, 41 Fed. Reg. 36726 (Aug. 31, 1976) (40
C.F.R. Parts 35 and 146).
2. Proposed Revision of Existing Regulations; National
Pollutant Discharge Elimination System, 43 Fed. Reg. 37078
(Aug. 21, 1978) (40 C.F.R. Parts 6, 122, 123, 124, and 125).
3. Reproposal of Rules; Water Programs; State Underground
Injection Control Programs, 44 Fed. Reg. 23738 (Apr. 20,
1979) (40 C.F.R. Part 146).
4. Guide; Significant Features of EPA’S Revised Proposals for
the Underground Injection Control Program Under the Safe
Drinking Water Act (1979).
5. Proposed Rule; Consolidated Permit Regulations: RCRA
Hazardous Waste; SDWA Underground Injection Control; CAA
Prevention of Significant Deterioration; CWA National
Discharge Elimination System; and Section 404 Dredge or
Fill Programs, 44 Fed. Reg. 34244 (June 14, 1979) (40 C.F.R.
Parts 122, 123, and 124).
6. Final Rule; Consolidated Permit Regulations: RCRA
Hazardous Waste; SDWA Underground Injection Control; CWA
National Pollutant Discharge Elimination System; CWA
Section 404 Dredge or Fill Programs; and CAA Prevention of
Significant Deterioration, 45 Fed. Reg. 33290 (May 19, 1980)
(codified at 40 C.F.R. Parts 122, 123, 124, and 125).
7. Final Rule for Part 146 and Amendments to Part 122; Water
Programs; Consolidated Permit Regulations and Technical
Criteria and Standards; State Underground Injection Control
Programs, 45 Fed. Reg. 42472 (June 24, 1980) (codified at 40
C.F.R. Parts 122 and 146).
8. Reproposal of Proposed Rule and Proposed Amendments to Rule;
Hazardous. Waste Management System; Standards Applicable to
Owners and Operators of Hazardous Waste Treatment, Storage
and Disposal Facilities and EPA Administered Permit
Programs, 46 Fed. Reg. 11126 (Feb. 5, 1981) (40 C.F.R. Parts
122, 260, and 264).
9. Interim Final Rule and Request for Comment; Interim
Standards for Owners and Operators of New Hazardous Waste
Land Disposal Facilities and EPA Administered Permit
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Programs: The Hazardous Waste Permit Program, 46 Fed. Reg.
12414 (Feb. 13, 1981) (40 C.F.R. Parts 122 and 267).
10. Interim Final Guidance and Request for Public Comment;
State Underground Injection Control Programs, 46 Fed. Reg.
27333 (May 19, 1981). (SDWA § 1425; 40 C.F.R. Ch. I).
11. Technical Amendments to Final Regulations; Underground
Injection Control Program Criteria and Standards, 46 Fed.
Reg. 43156 (Aug. 27, 1981) (40 C.F.R. Parts 122 and 146).
12. Proposed Rule; Underground Injection Control Program
Criteria and Standards, 46 Fed. Reg. 48243 (Oct. 1, 1981)
(40 C.F.R. Parts 122 and 146).
13. Final Rule; Underground Injection Control Program Criteria
and Standards, 47 Fed. Reg. 4992 (Feb. 3, 1982) (codified at
40 C.F.R. Parts 122 and 146).
14. Interim Final Rule With Request for Comments; Hazardous
Waste Management System; Standards Applicable to Owners and
Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities; and EPA Administered Permit Programs,
47 Fed. Reg. 32274 (July 26, 1982) (40 C.F.R. Parts 122,
260, 264, and 265).
15. Final Rule; Environmental Permit Regulations: RCRA
Hazardous Waste; SDWA Underground Injection Control; CWA
National Pollutant Discharge Elimination System; CWA
Section 404 Dredge or Fill Programs; and CAA Prevention of
Significant Deterioration, 48 Fed. Reg. 14146 (Apr. 1,
1983) (40 C.F.R. Parts 122, 123, 124, 125, 144, 145, 146,
233, 260, 261, 262, 263, 264, 265, 270, and 271).
16. Proposed Rule; Underground Injection Control Program:
Federally Administered Programs, 48 Fed. Reg. 40098 (Sept.
2, 1983) (40 C.F.R. Parts 124, 144, 146, and 147).
17. Final Rule; Underground Injection Control Program;
Federally Administered Programs, 49 Fed. Reg. 20138 (May 11,
1984) (codified at 40 C.F.R. Parts 124, 144, 146, and 147).
18.. Final Rule; Underground Injection Control Program:
Federally-Administered Programs, 49 Fed. Reg. 45292 (Nov.
15, 1984) (codified at 40 C.F.R. Parts 124, 144, 146, and
147).
19. Final Rule; Hazardous Waste Management System; Final
Codification Rule, 50 Fed. Reg. 28702 (July 15, 1985) (40
C.F.R. Parts 260, 261, 262, 264, 265, 266, 270, 271, and
280).
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20. Proposed Rule; Notice Requirements for Citizen Suits Under
the Safe Drinking Water Act, 51 Fed. Reg. 29426 (Aug. 15,
1986) (40 C.F.R. Part 135).
21. Final Rule; Hazardous Waste Management System; Land
Disposal Restrictions, 51 Fed. Reg. 40572 (Nov. 7, 1986) (40
C.F.R. Parts 260, 261, 262, 264, 265, 268, 270, and 271).
22. Final Rule; Technical Amendment, Underground Injection
Control Programs on Indian Lands in Direct Implementation
States, 52 Fed. Reg. 17680 (May 11, 1987).
23. Proposed Rule; Water Pollution Control; Underground
Injection Control Programs on Indian Lands, 52 Fed. Reg.
17684 (May 11, 1987) (40 C.F.R. Part 147).
24. Proposed Rule; Underground Injection Control Programs for
Certain Indian Lands, 52 Fed. Reg. 17696 (May 11, 1987) (40
C.F.R. Part 147).
25. Final Rule; Water Pollution Control; National Primary
Drinking Water Regulations, 52 Fed. Reg. 20672 (June 2,
1987) (codified at 40 C.F.R. Parts 141, 142, and 144).
26. Extension of Interim Approval; Underground Injection
Control Program; Extension of Water-in-Annulus Mechanical
Integrity Test Interim Approval, 52 Fed. Reg. 26342 (July
14, 1987) (40 C.F.R. Part 146).
27. Proposed Rule; Indian Lands; National Primary Drinking
Water and Underground Injection Control Regulations, 52 Fed.
Reg. 28112 (July 27, 1987) (40 C.F.R. Parts 35, 124, 141,
142, 143, 144, and 146).
28. Proposed Rule; 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, 52 Fed. Reg. 32446 (Aug.
27, 1987) (40 C.F.R. Parts 124, 144, 146, and 148).
29. Final Rule; Codification Rule for 1984 RCRA Amendments,
Fed. Reg. 45788 (Dec. 1, 1987) (40 C.F.R. Parts 144, 264, -
265, 270, and 271).
30. Notice of Final Approval and Response to Comments;
Underground Injection Control Program; Radioactive Tracer
Survey; Final Approval, 52 Fed. Reg. 46837 (Dec. 10, 1987).
31. Final Rule; Hazardous Waste Miscellaneous Units; Standard;
Applicable to Owners and Operators, 52 Fed. Reg. 46946 (Dec.
3
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10, 1987) (codified at 40 C.F.R. Parts 144, 260, 264 and
270).
32. Proposed Rule; Underground Injection Control Program;
Hazardous Waste Disposal Injection Restrictions, Phase Two,
53 Fed. Reg. 14892 (Apr. 26, 1988) (40 C.F.R. Part 148).
33. Final Notice and Interim Final Notice and Request for
Comments on New Proposal Only; Underground Injection
Control Program: Establishment of Maximum Allowable
Injection Pressure for Rule Authorized Wells in the State of
Montana, 53 Fed. Reg. 20013 (June 1, 1988).
34. Notice of the U.S. EPA’S Action to Terminate Withdrawal
Proceedings; State Underground Injection Control Programs;
Illinois, 53 Fed. Reg. 21450 (June 8, 1988) (40 C.F.R. Part
147)
35. Regulatory Determination; Regulatory Determination for Oil
and Gas and Geothermal Exploration, Development and
Production Wastes, 53 Fed. Reg. 25446 (July 6, 1988).
36. Final Rule; 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, 53 Fed. Reg. 28118 (July
26, 1988) (codified at 40 C.F.R. Parts 124, 144, 146, and
148)
37. Final Rule; Underground Injection Control Program;
Hazardous Waste Disposal Injection Restrictions, Phase Two;
California List and Certain “First Third” Wastes, 53 Fed.
Reg. 30908 (Aug. 16, 1988) (codified at 40 C.F.R. Part 148).
38. Notice of Alternative Method; Interim Approval With Request
for Comments; Underground Injection Control Program:
Oxygen Activation Method Mechanical Integrity Test for
Injection Well Classes I—V, 52 Fed. Reg. 37294 (Sept. 26,
1988) (40 C.F.R. Part 146).
39. Notice of Alternative Method; Extension of Interim
Approval; Underground Injection Control Program; Extension
of Water—In—Annulus Mechanical Integrity Test, 53 Fed. Reg.
37296 (Sept. 26, 1988) (40 C.F.R. Part 146).
40. Approval of Primacy Program; Nevada Department of
Conservation and Natural Resources; Underground Injection
Control Primacy Program Approval, 53 Fed. Reg. 39088 (Oct.
5, 1988) (codified at 40 C.F.R. Part 147).
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41. Final Rule; Correction; Underground Injection Control
Program: Hazardous Waste Disposal Injection Restrictions;
Phase Two; California List and Certain “First Third”
Wastes, 53 Fed. Reg. 41601 (Oct. 24, 1988) (codified at 40
C.F.R. Part 148).
42. Final Rule; Underground Injection Control Programs on
Indian Lands, 53 Fed. Reg. 43084 (Oct. 25, 1988) (codified
at 40 C.F.R. Part 147).
43. Proposed Rule; Underground Injection Control Program;
Hazardous Waste Disposal Injection Restrictions; Additional
Effective Dates; First Third Wastes, 53 Fed. Reg. 43400
(Oct. 26, 1988) (40 C.F.R. Part 148).
44. Proposed Rule; Land Disposal Restrictions for Second Third
Scheduled Wastes, 54 Fed. Reg. 1056 (Jan. 11, 1989) (40
C.F.R. Parts 148, 268, and 271).
45. Notice of Alternative Method; Request for Comments;
Underground Injection Control Program; Casing Cementing
Pressure/Single Point Resistivity Log Mechanical Integrity
Test for Class III In-Situ Uranium Injection Wells, 54 Fed.
Reg. 4903 (Jan. 31, 1989).
46. Final Rule; Approval of State Program; Mississippi State
Oil & Gas Board; Underground Injection Control (“UIC”)
Primacy Program Approved, 54 Fed. Reg. 8734 (Mar. 2, 1989)
(codified at 40 C.F.R. Part 147).
47. Proposed Rule; Revisions to the Safe Drinking Water Act
Underground Injection Control Regulations, 55 Fed. Reg.
26462 (June 28, 1990) (40 C.F.R. Parts 144 and 146).
48. Final Rule; Safe Drinking Water Act; Administrative
Enforcement Regulations, 56 Fed. Reg. 3752 (Jan. 30, 1991)
(40 C.F.R. Parts 22 and 142).
49. Notice of Alternative Method; Underground Injection Control
Program; Approval of Oxygen Activation Method Mechanical
Integrity Test for Injection Well Classes I-V, 56 Fed. Reg.
4063 (Feb. 1, 1991).
50. Final Rule; Underground Injection Control Program; State-
Administered Programs; Incorporation by Reference Update,
56 Fed. Reg. 9408 (Mar. 6, 1991) (codified at 40 C.F.R. Part
147).
51. Proposed Rule; Non-APA, Consolidated Rules of Practice for
Administrative Assessment of Civil Penalties, 56 Fed. Reg.
29996 (July 1, 1991) (40 C.F.R. Part 28).
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52. Notice of Intent to Grant a Case-by-Case Extension;
Underground Injection Control Program; Hazardous Waste
Disposal Injection Restrictions, 56 Fed. Reg. 33288 (July
19, 1991).
53. Approval of State Primacy Program; Indiana Department of
Natural Resources (IDNR); Underground Injection Control
(UIC) Program; Primacy Program Approval, 56 Fed. Reg. 41071
(Aug. 19, 1991) (codified at 40 C.F.R. Part 147).
54. Final Determination; Sole Source Designation of the Eastern
Snake River Plain Aquifer, Southern Idaho, 56 Fed. Reg.
50634 (Oct. 7, 1991).
55. Notice of Alternative Method; Final Approval; Underground
Injection Control Program; Water—Brine Interface Mechanical
Integrity Test for Class III Salt Solution Mining Injection
Wells, 57 Fed. Reg. 1109 (Jan. 10, 1992) (40 C.F.R. Part
146)
56. Notice of Alternative Method; Final Approval; Underground
Injection Control Program; Approval of Oxygen Activation
Method for Mechanical Integrity Testing of Injection Well
Classes I—V, 57 Fed. Reg. 1176 (Jan. 10, 1992).
57. Notice of Proposed Decision on Request for an Extension of
the LDR Effective Date for Certain Mixed Wastes; Hazardous
Waste Management System; Land Disposal Restrictions (LDR);
DOE Mixed Wastes Extension Application, 57 Fed. Reg. 22024
(May 26, 1992) (40 C.F.R. Part 268).
58. Approval of State Primacy Program; State Underground
Injection Control Program; Puerto Rico, 57 Fed. Reg. 33445
(July 29, 1992) (codified at 40 C.F.R. Part 147).
59. Final Rule; Underground Injection Control Program;
Hazardous Waste Disposal Injection Restrictions and
Requirements for Class I Wells; Revision of Testing and
Monitoring Requirements, 57 Fed. Reg 46292 (Oct. 7 1992)
(codified at 40 C.F.R. Part 146).
60. Proposed Rule; Environmental Radiation Protection Standards
for the Management and Disposal of Spent Nuclear Fuel, High-
Level and Transuranic Radioactive Wastes, 58 Fed. Reg. 7924
(Feb. 10, 1993) (40 C.F.R. Parts 141 and 191).
61. Notice of Final Decision on Petition Modification;
Underground Injection Control Program Hazardous Waste
Disposal Injection Restrictions; Petition for Exemption
Class I Hazardous Waste Injection Whitco Corp., Marshall,
TX, 58 Fed. Reg. 8275 (Feb. 12, 1993).
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TUESDAY, AUGUS 1f [ !E
PART H:
ENVIRONMENTAL
PROTECTI ON
AGENCY
GRANTS FOR STATE
UNDERGROUND WATER
SOURCE PROTECTION
PROGRAMS
STATE UNDERGROUND
INJECTION CONTROL
PROGRAM
Proposed Regulations
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36726
PROPOSED RULES
ENVIRONMENTAL PROTECTION
AGENCY
(40 CFR Part 35]
IFEL 595-el
GRANTS FOR STATE UNDERGROUND
WATER SOURCE PROTECTION PROGRAMS
Proposed Regulations
Notice Is hereby given that pursuant to
sections 1443(b) and 1450 of the Pub-
lic Health Service Act (“the Act”), as
amended by the Sate Drinking Water
Act (“SDWA,” Pub. L. 93-523) the Ad-
ministrator of the Environmental Pro-
tection Agency (EPA) proposes to Issue
additions to 40 CFR Part 35 settIng forth
regulations foverning grants to States to
assist In the funding of underground
water source protection programs.
The SDWA provides for both direct
regulation of public water systems and
regulation of underground Injection
practices which may endanger under-
ground drinking water sources for those
systems. The underground water source
protection program and the public water
system supervision program.are two sep-
arate programs covered by separate rug-
ulations and any State may seek separate
pr imMy for either one or both grant pro-
grams. In both cases, Congress sought to
leave primary enforcement responsibility
to the States, and provided for grants
from ERA to State programs meeting
certain requirements. Provisions for gen-
eral program grants are contained Ip sec-
tion 1443(b) of the Act.
Regulations for State programs regu-
lating public water systems and for EPA
grants supporting those programs were
published In the Fsszm Racism on
January 20. 1976 at 41 FR 2916. Proposed
regulations for State underground Injec-
ticu control programs pursuant to sec-
tIon 1421 of the Act are being published
In the FEDERAL RzcisTxa concurrently
with these regulations which contain the
requirements for grants to the States to
help support “underground water source
protection programs.” (See PR, Doc. 76-
24700. hdra.)
Sonic confuslop may result from the
nsa of the terms, “undergrow)d Injection
control program,” and “uhderground
water source protection program” found
In sectIons 1421 and 1443 respectively of
the Act. They refer to the same basic
State program designed to provide broad
Drotectlon to underground drinking
water sources from endangerment by
underground Injection of contaminants.
Thus, section 1443(c) (2) defines the term
underground water source protection
program as “a program or the adop-
tion and enforcement pf a program
which meets the requirements of regula-
tions under section 1421 and for keeping
records and “ kIng reports required by
section 1422(b) (1) (A)(li).” Because the
o]low1ng regulations axe proposed prin-
cipally pursuant to sectIon 1443 of the
Act, they ‘will be referred to by the term
used In sectIon 1443, “uhderground water
source protection programs” but with
the understanding that what Is meant
Is basically the type of underground In-
3ectlon control (U I C.) program required
under section 1421.
Section 1443(b) (2) of the Act pro-
vides that no State may receive Its first
grant until the Administrator determines
that the State has established or will
establish Within two years from the date
of the grant award an underground In-
jection control program pursuant to sec-
tion 1421 of the Act, and will, within two
years, assume primary enforcement for
underground water sources within the
State.
Section 35.661-1 of the proposed grant
regulations provides that an application
for the Initial grant must be accom-
panied by a letter from the chief elected
omclal of the State stating whether the
State has, or intends to establish within
two years, an underground Injection Con-
trol program and amrmlng the State’s
intention to assume primary enforce-
ment responsibility within two years.
Pursuant to the requirements of the Act,
proposed I 35.663 provIdes that a State
cannot receive a grant for a period be-
ginning more than two years after the
date of the State’s Initial grant unless
the State has assumed and maintains
primary enforcement responsibility.
SectIon 1422(a) of the Act provides
that withIn 180 days of enactment of the
Safe Drinking Water Act the Mmtnh.
trator of the Environmental Protection
Agency shall list In the FEDERAL Rscisna
“each State for which In his judgment a
Btate underground Injection control pro-
gram may be necessary to assure that
underground Injection will not endanger
drinking water sources.”
The Administrator’s judgment with
respect to each State must be reasoned
judgment based on pertinent Informa-
tion. The designation of States requiring
underground Injection control programs
Is directly related to the development of
regulations for State underground injec-
tion ‘control programs pursuant to sec-
tion 1421 of the Act and to the assess-
ment of Information on the Incidence of
ground-water contamination. The de-
velopment of those regulations includes
the collection of data pertinent to the
designation of States requiring control
programs, The list of States requiring
VIC programs can be amended from time
to time.
On July 24, 1975 (40 FR 31034) the Ad-
ministrator published a notice in the
FEDERAL Rioisraa deferring designation
of the States until the Information do-
scribed above Is considered. This will bQ
alter publication of the proposed State
program regulations, but prior to promul-
gation of those regulations. The pro-
posed scheduling will enable States to
understand the program requirements
which womld be applicable and to formu-
late plans for asalunlng primary program
responsibIlIty accordingly.
Those States not listed by the Admln-
atrator who wish to apply for a grant to
operate a State underground Injection
control program, in compliance with the
regujatlons promulgated under sections
142 : 1422, 1423 and 1450 of the Act, may
do so by petitioning-the Administrator to
amend his list to Include such State.
The petition must clearly demonstrate
to the Administrator that the State does
have a program In operation which meets
the requirements of the regulations and
that there Is substantial compelling evi-
dence that the State needs such a mo-
gram at this time.
SectIon 1443(b) (4) of the Act p
thpt the grant funds will be a
among the 56 States on the basis of pop-
ulation, geographical area, and “other
relevant factors.” EPA proposes to allo-
cate grant funds during fiscal year 1971
to the States named by EPA during the
fiscal year as requiring underground
water source protection programs. The
allocation will be made on the basis of
populatIon (20 percent weight factor),
geographic area (30 percent), and quan-
tity of ground water used for drinking
water purposes (50 percent). In subse-
quent years, EPA proposes to allocate
funds to those States named as provided
for In section 1422 of the Act, on the basis
of the number of injection facilities with-
in a State (30 percent weight factor) as
well as on the populatIon (20 percent),
geographic area (20 percent), and
ground-water withdrawals for drinking
water purposes (30 percent) of the State.
Statistics on population and geographical
area are, of course, readily available.
Also, statistics regarding the amount of
ground water used for drinking water
purposes are available from the most
recent U.S. Oeological Survey (TJ.S.O.B.)
report on ground water use In the United
States. These use figures wIll be used
Initially for documenting ground-water
withdrawal. However, statistics on the
number of underground Injection fa-
cfflties in each State are not yet entirely
reliable. The comprehensiveness of im-
derground Injection facility nventrwles
varies widely from State to State.
EPA is encouraging the States t
plete their injection facilities Inver.
during the Initial grant year. The Inven-
tory shall Include all Industrial and
municipal waste disposal wells, subsi-
deuce control wells, barrier wells, re-
charge wells, mining wells, geothermal
wells, disposal and recovery wells asso-
ciated with production of oil or natural
gas, agricultural drainage wells and
urban run-off wells, as defined In 40 CFR
146.2. State Underground Injection Con-
trol Program Regulations, being pub-
lished concurrenuy with these regula-
tions. These may be drilled, bored or
driven wells or dug wells where the depth
Is greater than their largest surface di-
mension. They must have as a principal
function the subsurface emplacement of
fluids. The Inventory shall also Include
all other dug wells, such as pits, ponds
nd lagoons, which may function as In-
Jection wells.
In the interest of a fair distribution of
available grant funds, proposed I 35.655
would define “underground injection fa-
cilities” lor allocation purposes asunder-
ground InjectIon facilities Identified to
EPA as of April 1, 1977. These regula-
1s provide for the Regional Adminis-
trator to award grants based on need
In accordance with S 35.655. In no event
shall a State’s allotment be less than
*10.000. Comments on the proposed allo-
cation formula are Invited.
“State” Is defined in the Act to to’
the District of Columbia, Puerto
FEDEIAL 59011111, VOL. 41, NO. 170—TUESDAY, AUGUST 31, 1976
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PROPOSED RULES
the Virgin Islands, Ouam, American
Samoa or the Trust Territories of the
Pacific Islands.
Proposed * 35.657 would provide that
the actual grant to the State will be de-
termined by the Regional Adniir.istrator
at the time of the grant award. The grant
must not exceed 75 percent of the allow-
able costs of a State program.
Eligibility for grant awards Is pro-
vided for In 35.659. Each State named
by the Administrator In accordance with
the requirements of section 1422 of the
Act Is eligible to receive a grant award
in an amount not to exceed the reason-
able cost of carrying out Its approved
program.
Proposed 35.655—1(c) provides that
the Administrator will reallot, on a na-
tional basis, all unobllgated funds among
eligible States demonstrating a need for
additional funds. For fiscal year 1977,
this reallot,ment will be made as soon as
possible after May 1, 1977. The unob-
ligated funds will be allocated on the
basis of each State’s total allocation fac-
tor compared to the total allocation
factor for the eligible States.
As soon as practicable after June 30
of each fiscal year, funds remaining Un-
obligated and other funds available from
reduction of grants will be reallocated to
States demonstrating a need for addi-
tional funds In accordance with proposed
0 35.655—1(d).
Proposed 0 35.674 provides that the Re-
gional Administrator may reduce a
State’s grant If the accomplishments
achieved are substantially below the level
approved in the State program plan. Any
funds retrieved by reduction of a State’s
grant may be reallotted to other States in
the same Region In accordance with pro-
posed 035.655-1(d).
Program elements of an underground
water source protection program are
listed in proposed 035.676-1. Each of
these elements is desirable and Is an ap-
propriate element for the use of grant
funds. Although it Is not necessary for a
State program to Include every element
In proposed 0 35.676—1 or to produce an
accomplishment for every program ele-
ment, the program of a State with
primary enforcement responsibility must
Include the program elements required
by 0 146.10 of this chapter. In addition, a
State may Include other program ele-
ments If it can demonstrate that such
other elements are appropriate to its pro-
gram. A State can propose almost any
mixture of program elements and accom-
plishments which can reasonably be con-
sidered part of an underground water
source protection program. The Regional
AdmInistrator wUl have a great deal of
discretion in determining If the amount
requested by a State is consistent with
the accomplishments the State proposes
In Its program.
EPA believes that routine monitoring
should be the responsibility of the under-
ground injection facility operator. Com-
ments on the need for, or appropriate-
ness of, the use of Federal grant funds
fur routine monitoring purposes are jn
vited.
In accordance with 0 35.663(c), P d-
oral granttundsshall not be used tosup-
plant non-Federal funding used for
underground Injection control efforts by
the State.
Proposed amendments to Subpart B,
.0* 35.400 t.hru 35.425, are being published
concurrently with these proposed regula-
tions. The regulations, applying to all
EPA program grants, are amended to in-
elude the authority for State Under-
ground Water Source Protection Pro-
gram grants.
EPA has been appropriated $5 million
for fiscal year 1977. In addition, $2.5 mil-
lion In grant funds were appropriated for
fiscal year 1976. EPA intends to propose
that the unobligated fiscal year 1976 ap-
propriation continue to be available for
grant awards.
COMMENTS
Interested persons may participate In
this rulemaking process by submitting
written comments In triplicate to the
Comment Clerk, Underground Injection
Control Grant Program, Office of Water
Supply (WR—550) • Environmental Pro-
tection Agency, Washington, D.C. 20460.
Comments on all aspects of the pro-
posed regulations are solicited. In add!-
tion to considering public comments, the
Agency will hold public hearings to re-
ceive comments and statements on the
proposed regulations. The hearing room
locatIons, dates and times should be con-
firmed by Interested parties in advance
by telephone.
October 6, 1978: EPA, Region V II !. 900 Lin-
coln Tower Building. 1880 LIncoln Street,.
Denver, Colorado 80202. Telephone: (803)
837—2721.
October 13, 1978: EPA, Region VI, First In-
ternational Building. 1201 Elm Street,
Dallas, Terse 76270. Telephone: (214) 749—
1962.
September 20, 1978: EPA, headquaftsr..
Waterside MaIl, 401 35 Street SW., Wash-
lngton, D.C. 20460. Telephone: (202) 428-
3934.
All comments received on or before
November 15, 1976 wIll be considered.
A copy of all public comments will be
available for Inspection and copying
from the EPA Freedom of Information
Center. As provided In 40 CFR Part 2,
a reasonable fee may be charged for
copying services.
It Is hereby certified that the economic
and inflationary impacts of these pro-
posed regulations have been carefully
evaluated in accordance with Ob Cir-
cular A—107.
Dated: August 18. 1976.
RUSSELL . Tasne,
Adtn ln lsfrator.
40 CFR Part 35 Ii proposed to be
amended by amending Subpart B as in-
dicated below:’
Subpart B—Prsgiam Gronts
85.400 Purpose.
85.400-1 Afr pollution control agency grant
awards.
85.400-2 Water pollution control program
grant awards.
ISection numbers sr. not eonsecutively
numbered to allow room for modification and
insertion of new sections as needed.
Authority.
Public water systasit supervision
program grant awards.
Underground water source protec-
tion program grant awards.
Annual guidance.
Criteria for evaluation of program
objectives.
Evaluation of agency pertcrmsw’
Report of project expenditures.
Payment.
Federal and grantee pragram onp-
port.
• S • S S
Stat. Und.rground Water 5ou, , P,.t.dhmj,
Program Grants
Scope and purpose.
Definitions.
Determination of allotments.
Notification of allotments and re-
allotments.
Rate of Federal assistance.
Eligibility for grant awards.
Application for grant.
State program plan/grant sub-
mission.
Limitation on grant award.
.AllowabI coats.
Budget period.
Reduction of grant amount.
State program plan. -
Program elements of an under-
ground water source protection
program.
Regional administrator’s action on
grant application.
Program Umitatlons.
Assignment of personnel.
Aumoarry: Seca. 1448 and 145001 Pub. k
93422, 88 Stat. 1680 (42 U.S.C. 300J-2 and
800j—9).
Sebtions 35.400 thru 35.425. applying
to all EPA program grants, are proposed
to be amended to include authority for
State underground water source protec-
tion program grants as follows:
§ 35.400 Purpose.
This subpart establishes and codthes
policy and procedures for air pollution,
water pollution, public water system
supervision program and underground
water source protection assIstance grants
and supplements the EPA general grant
regulations and procedures (Part 30 of
this chapter). These grants are Intended
to aid programs for air pollution control,
water pollution control, public water
system supervision and underground
water source protection at the State, in-
terstate, or local level.
335.400—1 Mr pollution control agency
grant award..
No ethange . See 40 CFR 35,
§ 35.400—2 Water pollution control pro-
gram grant awards.
No change . See 40 CFR 35.
$35,400-S Public water system suposvl.
aba program pant award..
No change. See 40 CFR 35.
• 35.400-4 Underground water s .
protection program grant award.. -
Grants may be awarded to State agon-
ales to aseist theta in developing or ad-
ministering programs to protect under-
36727
Sec
85.403
36.400-3
85.400—4
85404
38.405
86410
85.415
88.420
36.425
35620
35.853
88.665
35.665—1
85.687
85.659
86.661
85.661—1
86.683
85.670
85.672
35.674
35.676
35676—1
85.676-2
85.678
35.680
FEDERAL REGSTER. VOL. 41, NO. 170—TUESDAY. AUGUST 31. 1976
-------
36728
PROPOSED RULES
ground sources of drinking water by
adoption and enforcement of a program
which meets the requirements of regu-
lations under section 1421. and for
record-keeping and reporting required
by sectIon 1422(b) (1) (A) (iP of the Act.
§ 35.403 Authority.
This subpart is Issued under sections
105 and 301(b) of the Clean Air Act, as
amended (42 U.S.C. 1857(c) and 1857(g);
sections 106 and 501 of the Federal Water
Pollution Control Amendments of 1972
(83 U.S.C. 1256 and 1361); and sections
1443(a), 1443(b) and 1450 of the Safe
Drinking Water Act (42 U.S.C. 300j—2).
§ 35.404 Annual guidance.
The Environmental Protection Agency
will develop and disseminate annual
guidance to be used by the grantee to
structure air pollution, water pollution,
public water system supervision and un-
derground water source protection pro-
grams for the coming Federal fiscal year.
The guidance will contain a statement of
the national strategy including national
objectives and national priorities for the
year together with .plannlng figures for
Federal program grant assistance based
on the EPA budget approved by the Pres-
ident. The annual guidance will be dis-
seminated each year as soon as practi-
cable during the month of February.
§ 35.405 Criteria for e aluation of pro-
gram objectives.
(a) Programs set out in the applica-
tion and submitted in accordance with
these regulations shall be evaluated In
writing by the Regional Administrator to
determine:
(1) ConsIstency and compatibility of
objectives and expected results with
EPA national and regional priorities In
Implementing purposes and policies of
the Clean Air Act, the Federal Water Pol-
lution Control Act, or the Safe Drinking
Water Act.
(2) Feasibility of achieving the objec-
tives and expected results In relation to
existing problems, past performance,
program authority, organization, re-
sources and procedures.
(b) Approval of the program developed
pursuant to 0 35.526 (aIr), or 0 35.565
(water pollution), { 35.626 (public water
system supervision), or 35.676 (under-
ground water source protection) shall be
based on the extent to which the appli-
cant’s program satisfies the above cri-
teria.
• 35.410 Evaluation of agency perform.
ease.
(a) A performance evaluation shall be
conducted at least annually by the Re-
gional Administrator and the grantee to
provide a basis for measuring progress
toward achievement of the approved ob-
jectives and outputs described in the pro-
gram. The evaluation shall be consistent
with the requirements of I 35.538 for air
pollution control agencies, 35.570 for
water pollution control agencies, I 35.-
826(d) for public water system super-
vision agencies, and 0 35.676 for under-
ground water source protection agencies.
(b) The Regional Administrator shall
prepare a written report of the annual
evaluation. The grantee shall be allowed
15 working days f ross the date of receipt
to concur with or comment on the find-
ings.
§ 35.415 Report of project expcndi.
No change. See 40 CFR 35.
§ 35.420 Payment.
No change. See 40 CFR 35.
§ 35.425 Federal and grantee program
support.
(a) For purposes of establishing the
amount of resources which will be com-
mitted by the Agency to particular
budget categories or program elements
under H 35.527 (air) • 35.561(a) (water),
35.626—1 (public water system super-
vision) or 35.676—1 (underground water
source protection), Federal and grantee
financial contribution shall be considered
as .combined sums, and shall not be
separately identified for each budget
category or program element. For pur-
poses of this subpart, and pursuant to
0 30.700(a) of this chapter, all project
expenditures by the grantee shall be
deemed to include the Federal share.
(b) A grantee may not unilaterally
reduce the non-Federal share of project
costs. In the event of a significant pro-
posed or actual reduction in the non-
Federal contribution, the Regional Ad-
ministrator must consider a reduction in
the Federal share or an increase to the
Federal percentage.
Subpart B Is further amended by.
adding new fl 35.650—35.680 as follows:
STATE UNDERGROUND WATER Souaci -
PRoTEcliox PROGRAM GRANTS
§ 35.630 Scope and purpose.
Sections 35.650 through 35.880 estab-
lish regulations and procedures for pro-
viding program grant funds to the States
for the development and administration
of underground water source protection
programs as authorized by section
1443(b) of the Public Health Service Act.
These regulations are intended to foster
development of State program plans and
programs to assist In implementing Title
X1V of the Act (added by the Sale Drink-
lug Water Act). This subpart supple-
ments EPA General Grant Regulations
and Procedures set forth in Part 30 of
this chapter.
§ 35.653 Definitions.
As used in this part, and except as
otherwise specifically provided;
(a) “Act” means the Public Health
Service Act.
(b) “Allotment” means the sum re-
served for each State from funds ap-
propriated by Congress. The allotment
represents the maximum amount of
funds potentially available to each State
from each annual appropriation.
(C) “State” means one of the States
of the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, Ameri-
can Samoa. or the Trust Territory of
the Pacific Islands.
(d) “State Underground Injection
Control Program” (State WC Program)
means a State program for the regulation
of the practice of underground Injection
to protect underground drinking water
sources and meeting the requirement’
sections 1421 and 1422(b) (1) (A) (Ii
the Act and regulations proinulga
pursuant to those provisions of the Act.
(e) “Underground water source pro-
tection program” means a program for
the adoption and enforcement of a pro-
gram which meets the requirements of
regulations under section 1421 of the Act
and for keeping records and making re-
ports required by section 1422(b) (1) (A)
(Ii) of the Act.
(I) Other terua used herein shall have
the same meanings as prescribed In the
definitions of tenns contained in Part
146 of this chapter except as the context
may otherwise require.
§ 35.655 Determinations of allotments.
Fends appropriated in each fiscal year
will be allotted as follows:
(a) The initial allotment for fiscal
year 1977 will be established on the basis
of the following weighted factors:
(1) The population of each State in
proportion to the total population of all
States (weight factor: 20 percent). Pop-
ulation statistics will be drawn from the
1970 census and tables 4 and 11 of the
1974 StatIstical Abstract of the United
States.
(2) The land area of each State In
proportion to the total land area of all
States (weight factor: 30 percent). Land
area statistics will be drawn from Table
290.0! the 1974 StatistIcal Abstract of the
United States.
(3) The quantity of ground-wat-
withdrawals In each State used for dii
lug water purpd ses In proportion to
total quantity of ground-water used.
drinking water purposes in all States
(weight factor: 50 percent). Water use
quantities will be taken from the most re-
cent U.S. Geological Survey (U.S.G.S.)
report on ground-water use In the United
States.
(b) Initial allotments established for
the States based on the weighted ratios
In paragraph (a) of this section will be
adjusted so that no State allotment will
be less than $10,000.
(c) The total increase in Initial allot-
ments resulting from application of
paragraph (b) of this section shall be
offset by an equivalent total decrease in
the Initial allotments which exceed the
$10,000 minimum, such decrease to be
apportioned among the States In propor-
tion to the extent to which each State’s
initial allotment exceeds the $10,000
minimum.
(d) The allotment for fiscal year 1978
and subsequent fiscal years will be es-
tablished on the basis of the following
weighted factors:
(1) The population of each State In
proportion to the population of all States
(weight factor: 20 percent). Population
statistics will be drawn from the most
recent census.
(2) The land area of ‘each State In
proportion to the total land area of all
States (weight factor: 20 percent). Land
area statistics will be taken from V
latest Statistical Abstract of the Uni
States.
FEDERAL UGISTER, VOL. 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
PROPOSED RIflES
(3) The quantity of ground-water
withdrawals In each State used for drink-
Mg water purposes In proportion to the
total quantity of ground-water used f:
thinking water purposes In all States
(weight factor: 30 percent). Water use
quantities w be drawn from the most
recent U.S.G.S. report ou ground-water
use In the United States.
(4) The number of underground In-
jection operations In each eligible State
In proportion to the number of such eye-
tems In all States (weight factor: 30 per-
cent). Underground Injection operation
statistics will be drawn from the Inven-
tow of Underground Injection Opera-
tions compiled by the States pursuant to
035.676. For fiscal year 1978 grants, the
number of underground Injection opera-
lions for which inventory data have been
submitted on or before April 1, 1977 wIll
apply.
(e) The allotted amounts will be
rounded to the nearest hundred dollars.
9 35.655 -1 NotificatIon of aliolnients
and reallotments.
(a) Each year, within thIrty days af-
ter the President delivers his budget to
Congress, the Administrator will issue to
each Regional Administrator a tentative
regional allocation (planning target) for
the next fiscal year. The tentative State
allotment shall be promptly communi-
cated to each State by the Regional Ad-
ministrator. This tentative allotment will
be based on the amount of funds request-
S In the President’s budget for this pur-
pose for the next fiscal year.
(b) As soon as practicable after funds
are appropriated, the Administrator will
Issue to each Regional Administrator a
final regional allowance for State allot-
ments to all 56 States from funds appro-
priated for that fiscal year. This final al-
lotment shall be promptly communicated
to each State by the Regional Adminis-
trator.
Cc) As soon as practicable after April 1
of each fiscal year, except for fiscal year
1977, the Administrator will reallot on a
national basis all unobligated funds
among States which can demonstrate a
need for sdldtlonal funds. The unobli-
gated funds will be allocated on the basis
of each State’s total allocation factor
compared to the sum of the total al-
location factors for the eligible States.
For fiscal year 1977, this reallotmept of
unobligated funds will be made as soon
as practicable after May 1, 1977.
Cd) As soon as practicable after June
30 of each fiscal year, funds remaining
imobligated under 0 35.855 —1(c) and oth-
er funds made available by reduction of
grant amounts shall be available for re-
allotment within the region to States
which can demonstrate a need for addi-
tional funds.
335.657 Rate of Federal assistance.
(a) The rate of Federal assistance fur-
nished to a grantee shall not exceed 75
percent of the allowable costs of the
State’s underground water source pro-
tection programs as described in 035.676.
(b) The actual amount of each State’s
grant, which shall not exceed the State’s
allotment, shall be determined at the
time of the grant award by the Region-
el Aln lctrator.
§ 35.659 fl&gILilIty for pant awards,
Each State which Is on the Adn’ilnk .
trator’s list pursuant to section 1422 of
the Act shall be eligible to receive a
grant award from Its final allotment In
an amount not to exceed the reasonable
cost. of carrying out Its approved pro-
grn
§ 35.661 ApplicatIon for pant.
For fiscal year 1977, States Identified
on the Adnth tsitrator’s list as eligible
applicants pursuant to section 1422 of the
Act must submit their grant applica-
tions no later than January 1, 1977 for
grant awards not to exceed their final
allotments. All other States, petitioning
the Administrator to amend the list for
their Inclusion as eligible applicants,
must submit their grant applications no
later than April 1, 1977. RegIonal Ad-
ministrators shall negotiate grant
amounts for each State added to the
Administrator’s list. Grant awards to
new States will be prorated against each
State allotment pursuant to 35.855.
States wishing to make appiication for a
program grant shall comply with all ap-
plicable requirements set forth In Part
30 of this chapter.
(a) All States applying for program
grants shall comply with all applicable
requirements of OMce of Management
and Budget (0MB) Clrculsr A-95, p 1w-
susnt toj 30.305 of this chapter.
Cb) Applications shall be made to EPA
on such forms as the Administrator may
prescribe pursuant to 030.315 of this
chapter.
9 35.661—1 State program plan/grant
submission.
Each State applying for a program
grsntshsll:
(a) Develop an annual program plan
(Part IV of the grant application) In
accordance with 035.676.
(b) For fiscal year 1977, submit an
application and program plan to the Re-
gional Administrator no later than April
1, 1977.
Cc) The application for an Initial
grant shall include, In addition to the
other submissions requested by this sub-
part, a letter from the chief elected of-
fice of the State. stating whether the
State has established or Intends to estab-
lish, an underground water source pro-
tection program. The letter should des-
ignate the one State agency to adminis-
ter the grant and serve as coordinator
for dealing with EPA. However, the State
may allocate funds among State agen-
des as It deems appropriate as long as
such allocations are generally propor-
tional to their respective share of the
approved plan for conducting the State
underground water source protection
program. The letter shall also amrm
the State’s intent to assume, within two
.years from the approval of the initial
grant, prlmazy enforcement reeponsibil-
Ity In accordance with the requirements
oL.Subpart B, Part 148 of this title.
(d) For fiscal year 1978, or any later
fiscal year, submit a (draft) State pro-
36729
gram plan pursuant to 035.678 to the
Regional Adn’tntatrator no later than
90 days prior to the start of the Federal
fiscal year.
(e) For fiscal year 1971, or any later
fiscal year, submit an application which
Includes the annual State program plan
submission for pant award to the Re-
gional Mmtntatrator no later than 30
days prior to the start of the Federal
fiscal year.
135.663 Limitation on pant award,
(a) Notwithstanding any other pro-
vision of this part, the Regional AdmIn-
istrator may not approve an applica-
tion of a State for Its Initial grant to
carry out an underground water source
protection program, unless he deter-
ni n a that the State (1) has established
or will establish within two years from
he effective date of the grant an under-
ground water source protection program.
as defined In sectIon 1421 of the Act, and
(2) will, within that two-year period
assume primary enforcement responsi-
bility for underground water source pro-
tection within the State pursuant to
I I 146.10 through 146.13 of this chap-
ter,
(b) Notwithstanding any other provi-
sion of this part, no.grant may be made
to a State for any period beginning more
than two years after the date of the
approval of the State’s Initial grant un-
less the State has assumed and main-
tains primary enforcement responsibility
within the State pursuant to 00146.10
through 146.13 of this chapter.
Cc) No grant will be awarded If It
is determined by the Regional Ad’ntntc-
trator that Federal grant funds will sup-
plant rather than supplement non-Fed-
eral funding committed to underground
water source protection efforts by the
State.
935.670 Allowable costs.
Allowable costs shall be determined In
accordance wIth 0 30105 of this part by
showing that the costs are reasonable
and proper for carrying out an approved
grant program.
3 35.672 Budget perIod.
The budget period of the grant shall
be for the Federal fiscal year.
5 35.674 Reduction otgrant amount,
Ca) If the Regional Adn hln latrator
determInes that the grantee has substan-
tially failed or will fail to achieve the
planned accomplishments, the grant
amount may be reduced accordingly.
These funds will be available for use In
accordance wIth 0 35.655 —1(d).
(b) States shall be notified prior to
any reduction, pursuant to paragraph
(a) of this section, In the amount of Fed-
eral support to that State. This notifica-
tion should Include the reasons for se-
duction and, If appropriate, what steps
the State must take to regain funding In-
cluding the time frame within which the
steps must be taken,
935.676 State program plan.
Any State wishing to apply for a grant
shall prepare and submit to the Regional
FEDERAL REGISTER, VOL. 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
PROPOSED RULES
36730
Administrator for approval a program
plan which Iltisfies the requirements of
this section and contains planned ac-
con2pllshmenta. This program plan Is
Part IV of the pant application (see
335.661-1). A State may Include In the
plan submitted to the Regional Adminis-
trator any program element listed In
I 35.671-1. and any other program ele-
ment If the State can demonstrate that
such other program element Is appropri-
ate for the conduct of its underground
water source protection program. The
essence of the plan Is to relate the
utilization of available resources (both
Federal and non-Federal) to the achieve-
ment of expected accomplishments. The
program plan shall describe how the
planned accomplishments address the
problems In the State and are consistent
with the objectives of the Act. Informa-
tion on the program elements contained
In each State’s submission shall be pie-
seated In anmmRry form and shall In-
chide: -
(a) The planned accomplishments;
(b) The resources to be expended by
the State to produce the planned accom-
plishmenta. Including anticipated Fed-
eral financial and technical assistance:
(c) For fiscal year 1978 the grant ap-
plication must include an Inventory of
underground Injection facilities:
(d) After fiscal year 1978. an updated
summary Inventory of underground In-
jection facilities must be provided to
A prior to Apr11 1 of the preceding
calendar year; and
(e) For the second grant and sub-
sequent grants, an analysis of the previ-
ous year’s State program. This analysis
shall comvare the planned accomplish-
ments with expected resources, the
actual resources expended, and the
actual accomplishments.
(f) There will be en annual program
evaluation In accordance with I 35.410
of this subpart
335.676 -I Program element. of an un-
derground water source protection
program.
The following program elements are
appropriate for carrying out under-
ground water source protection pro-
grams. Other program elements may be
Included In the State program plan If the
State can demon trate that such other
program element Is appropriate for the
conduct of It s underground water source
protection program. For a State with
primary enforcement responsibility, the
State program must Include program ele-
ments satisfying the requirements of
3 146.10 of this chapter.
(a) Administration and program de-
velopment. Planning, development and
coordination of program activities for the
management of an underground water
source protection program Including
general program direction and supervi-
alon: development of staffing and budget
needs; and development and evalua-
tion of basic underground water source
protection legislation, regulations, poli-
cies, and public Information.
(b) Surveillance and technical assist-
ance. Surveys of underground Injection
operations on an established schedule
with written survey reports to the well
Injection operators; technical assistance
to well Injection operators, water sup-
pliers, and others regarding the plan-
ning, design, operation, maintenance,
tieatment, quality control; and assess-
ment of underground Injection opera-
tions.
(c) Plan review and approval. A plan
review and approval activity for new or
proposed underground Injection opera-
tions and modifications or additions to
existing underground Injection opera-
tions.
(d) Training. An activity for the train-
ing of State surveillance personnel
(e) Enforcement. An activity for the
establishment and Implementation c i
procedures for administrative and judi-
cial enforcement of State prImary un-
derground water source protection re-
sponsibilities.
(f) Data management. A data man-
agement activity to maintain essential
- - — -ds needed for conduct of the under-
gr ...4 water source protection program
and for submission to the Agency; In-
cluding the maintenance of an inventory
for all underground Injection operations.
(g) SurveWance and Investigation.
The maintenance of a coordinated activ-
ity with State and local agencies to dc.
tect, Investigate and report suspected
ground-water contamination cases.
(Ii) Public participation. Activities
conducted by the State to encourage In-
formed public Involvement in the plan-
ning and conduct of the State under-
ground water source protection program,
and establishment of a system to l)andle
citizen complaints.
(I) Other.
§ 35.676—2 Regional Administrator’s ac-
lion on grant application.
(a) Each State’s final grant applica-
tion and program plan shall be approved
or disapproved by the Regional M,nInI
trator withIn 45 days of receipt
(b) Should the Regional Admlnistra-
br’s evaluation of the final grant appli-
cation reveal that the planned accom-
plishments are not consistent with the
level of funding requested, he shall
negotiate wIth the State either to In-
crease the planned accomplishments or
to reduce the grant amount. Funds freed
by this procedure will remain within the
Region to be available for use In ac-
cordance with 335.655—1(c).
335.678 Program limhatlona.
The provisions of 3335.650 through
35.680 are for the sole purpose of assist-
ing the States in providing for protection
of underground drinking water sources
through an underground water source
protection program. These provisions are
not Intended to assist States In the
routine study and monitoring of aquiflera
or to assist States to undertake broad
geological studies.
§ 35.680 AssIgnment of personnel. •
Upon the written request of a State
agency, the Regional AthnInI trator may
assign personnel of the Agency to such
State agency pursuant to section 1450(c)
of the Act. As provided by O ce of Man-
agemeut and Budget Circular A-fl. the
State agency must reimburse the!
for the salaries and all other Ides
direct or indirect costs of provl&
personnel.
IFR Doc.76-24701 PØed 8—80—76;8:45 am’
(46 CFR Part 146]
IFEL. 596—71
STATE UNDERGROUND INJECTION
CONTROL PROGRAMS
Proposed Regulations
IxvaoDuCnoN
Notice Is hereby gIven that pursuant to
sectIons 1421. 1422, 1423 and 1450 of the
Public Health Service Act, as amended by
the Safe DrinkIng Water Act (“SDWA”
or “the Act,” Pub. L. 93-523) • the Ad-
ministrator of the Environmental Pro-
tection Agency (EPA) proposes to Issue a
new 40 CFR Part 146 setting forth regu-
lations governing State underground In-
jectlon-control programs.
ApproxImately 100 millIon Americans
are dependent upon drinkIng water from
underground sources which have his-
torically been relatively free from harm-
ful contaminants. However, In recent
years there has been Increasing concern
over the threat to public health posed by
the underground Injection of substances
which degrade the quality of i nder-
ground drinking water sources. As a re-
sult of this concern, Congress Included
In the Safe Drinking Water Act, enacted
on December 16, 1974, a statutory man-
date for the establishment of. minimum
requirements for effective State
grams designed to protect under
drinking water sources from subt
Injection of contaminants.
The Intent of the proposed regulations
to establish minimum requirements
for effective State programs to protect
existing and potential underground
sources of drinking water from endan-
gerinent from underground injection of
fluids.
It Is clear from the Act and the legis-
lative history of the SDWA that Congress
Intended that the States exercise pri-
mary enforcement responsibility for the
protection of underground sources of
drinking water to the extent possible.
For this reason the regulations are de-
signed to be administratively compatible
with and non-duplicative of existing
State programs. The regulations are In-
tended to broaden and strengthen these
existing State programs as well as to
establish minimum national require-
ments which reflect good engineering
practice.
It Is also clear that many differences
exist between States, Including geological
conditions, use and availability of ground
water, and Intensity of underground In-
jection operations. For this reason the
regulations are designed to allow a State
to exercise maximum lexiblilty In order
to prevent underground Injection prac-
tices fromcontanalnntlng drinking water
sources.
LeGaL PaAUIEWOSX OP TES RIOVL&•
Section 1421 ci the Act deflne
basic requirements ci EPA’s regula
FEDEIAL CEGISTER, VOL. 41, NO. 170—TUESDAY, AUGUST 31, 1976
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PROPOSED RULES
36731
for State underground Injection control
programs. The Administrator must pro-
mulgate regulations which contain mm-
Imum requirements for effective pro-
grams to prevent underground Injection
practices which endanger potential or
present drinking water sources. In ac-
cordance with this mandate, the prin-
cipal purpose of the regulations is to
prevent endangerment of underground
drinking water sources, and the burden
Is placed on the underground Injection
operator to demonstrate that his opera-
tion will not result in endangerment.
SectIon 146.2(x) of the proposed regula-
tions seeks to clarify what is meant by
“endangerment” by defining that term
to include the contamination or poten-
tial contamination of an aquifer which
may result In the need for additional
tr tnient of water from the aquifer to
make It suitable for drinking. Comments
on this definition and suggestions for
alternative approaches are welcome.
EPA believes that the definition of en-
dangerment should be construed lib-
erally so as to effectuate the preventive
and public health protection purposes of
the Act. Therefore, the proposed regula-
tions seek to prevent the Injection of
materials which may enter a present or
potential drinking water source and pose
a threat to human health or otherwise
render a present or potential water
source unfit for human consumption.
Necessarily, the regulations seek to pre-
vent the injection of materials which
may force a public water system to ex-
pand funds to comply with any national
primary drinking water regulation or
otherwise to avoid endangerment to the
public health.
Section 1421(b) (2) states that regula-
tions for State underground injection
programs may not prescribe a require-
ment which Interferes with or Impedes
underground injection in connection
with oil and natural gas produetlon or
the secondary or tertiary recovery of oil
and natural gas unless such a require-
ment is essential to assure that under-
ground sources of drinkIng water will not
be endangered by such Injection. The
Rouse Report accompanying the Act de-
fines the term “interfere with or Impede”
to mean “stop or substantially delay”
(Report 93—1185. at 31):
The Administrator need not demon-
strate that a particular requirement is
essential unless It can be first shown that
the requirement interferes with or ha-
pedes oil or gas production. As Indicated
In the House Report, the Administrator
does not have an “impossible”burden in
‘ stabllsh1ng the essentiality of a require-
ment. (Report 93—1185, at 31) Moreover,
as discussed above, the Agency Intends to
Interpret the term “endangerment”
broadly so as to effectuate the purposes
of the Act. Recognizing the complexity,
intensity, age and experience in regulat-
ing Injection operations as they relate
to oil and gas production and the fact
that several alternative methods have
been demonstrated to be equally effective
In protection of underground sources of
drinking water proposed 146.42(c) pro-
vIdes that a State Director may approve
an alternative method of protection to
specific minimum requirements con-
tained In 8146.42(a), 11 the operator
clearly demonstrates that (1) the require-
ment would stop or substantially delay
oil or natural gas production at his site;
and (U) the requirement is not necessary
to assure the protection of an existing or
potential source of underground drinking
water. SectIon 146.42(c) applies only to
specific wells or Injections. SectIon 146.42
(b) provides that the Director may des-
ignate specific geographical areas where
an alternative method to the require-
ments In 8146.42(a) (1) or (a) (2) may
be employed.
Section 1422(a) of the Act requires the
Administrator to list In the FEDERAL REG-
ISTER those States for which a State un-
derground Injection control program
may be necessary to assure that us-
derground injection will not endanger
drinking water sources. Such a determi-
nation will not be based on the adequacy
of an existing State program but will be
Initially based on the dependency of a
State on ground water as a source of
drinking water and the magnitude of un-
derground Injection operations in a 8tate.
All States will eventually be listed. Under
section 1422(b) of the Act, a State so
listed must submit a State program to the
Administrator withIn 270 days after be-
ing named. 1’! the State program does not
fully meet the requirements of the Act
and applicable regulations, or If no State
program is submitted, the Administrator
must prescribe a program for the State
WithIn 90 days. The States will be listed
WithIn 90 days of the publication of This,.
notIce (40 FR 31034, July 24, 1975).
If a portion of a State’s program meets
the requirements of the Act and these
regulations, that fact will be taken Into
account In the Administrator’s prescrip-
tion and administration of a program
for the State. EPA will administer only
that portion of an underground injection
control program for the State for which
the State’s program Is not adequate.
However, section 1421 of the Act makes
clear that the State cannot assume over-
all “primary enforcement authority”
unless all of its program Is approved by
the Administrator. If a State does not
aesume primary enforcement responsibil-
ity, It cannot be awarded program grant
funds related to an underground injec-
tion control program after an Initial two-
year period, and the Administrator will
have direct enforcement authority In the
State pursuant to sectIon 1423 of the Act.
State underground injection control
programs under sectIon 1421 of the Act
are considered separately from State
public water system supervision programs
under sectIon 1413. A State does not have
to qualify for primary enforcement re-
sponsibility for public water systems to
qualify for primary enforcement re-
sponsibility for underground injection.
Section 1421 of the Act requires the
AdminIstrator to promulgate regulations
establishing minimum requirements for
the State underground Injection control
programs. Section 1421 elso specifies
some of those requirements. The regula-
tlons must require that a State program,
to be approved under section 1422—
(A) SheLl prohibit, effective three years
after the date of the enactment of this title,
any underground Injection in such State
which is not authorized by a permit Issued by
the State (except that the regulations may
permit a State to authorize underground
Injection by rule);
(B) Shall require (I) In the case of a pro-
gram which provides for authorization of
underground Injection by permit, that the
applicant for the permit to Inject satisfy the
State that the underground injection will
not endanger drinking water sources, and (II)
In the case of a program which provides for
such an authorization by rule, that no rule
may be promulgated which authorizes any
underground Injection which endangers
drinking water sources;
(C) Shall include inspection, monitoring,
recordkeeping and reporting requirements;
end
(D) Shall apply ( I) as prescribed by sec-
tion 1447(b), to underground Injections by
Federal agencies, sad (ii) to underground
injections by any other peesons hether or
not occurring on property owned or leased
by the United States.
Within the framework of section 1421
(b), the Agency has based the proposed
regulation on its review of thirty-one
existing State programs and on technical
and polIcy input from a diverse work
group including four State officials
(Texas, Kansas, Florida and Michigan),
the U.S. Oeological Survey, five regional
EPA representatives (Regions VI, IX and
X, three representatives from U8EPA
laboratories, and seven representatives
from u r t’A headquarters. Comments
were also solicIted from State program
officials, Industry representatives, and
environmental groups.
SCOPE OF TEE Rzcui,snoxs
The Act defines “underground Injec-
tion” as the “subsurface emplacement of
fluids by well Injection” (Section 1421
(d)(1)).
The scope of the coverage of these
regulations Is determined by the deflnl-
tion of “well injection.” The term is not
explicitly defined in the Act or the legis-
lative history. Upon examinatIon of the
purpose and legislative history of the Act.
EPA is Including the following definition
In proposed 8146.2(r):
Well InjectIon means subsurface emplace.
ment through a bored, drilled, or drIven wefl
or through a dug well where the depth Ii
greater than the largest surface dimension.
whenever a principal function of the weU is
the subsurface emplacement oX Suids.
The term “well InjectIon” Is defined In
terms of the function of a well. As well
as Including what is normally referred to
as the ‘deep well” injection of industrial
or munIcipal wastes, the proposed defini-
tion of “well Injection” also Includes a
number of well Injection practices other
than ‘deep well” waste disposal, Includ-
ing the subsurface emplacement of fluIds
generally, not just waste disposal. This
definition Is supported by the House Re-
port, which states:
definition of underground injection
intended to be broad enough to corn’ any
con - ”’ ” nt which sosy be put below gr
level and which flows or moves, whether the
FEDERAL REGISTER, VOL. 41, NO. 170—TUESDAY. AUGUST 31, 1976
-------
36732
PROPOSED RULES
contaminant is semi-sold, liquid, sludge or
any other form or state.
This definition is not limited to the injec-
tion of wastes or to injection for disposal
purposer. it is intended also to cover, among
other contaminants, the Injection of brinea
and the injection of cont itTI flts for ex-
traction or other purposes. (Report 93—1185
at 31.)
‘The proposed definition Includes
drilled wells, since these are the type of
wells used in the practices most often
mentioned In the legislative history as
requiring regulation. It also covers bored
and driven wells, which are similar In
concept and are used for the same pur-
poses in appropriate situations.
The proposed definition includes dug
wells in the definition of well Injection
practices only when the depth of the well
Is at least greater than the largest sur-
face dimension of the well. Imposing this
depth-width limitation Is an effort to ad-
here to a conunon view of a well, that
It Is substantially deeper than It is wide.
Eeveral factors were considered and
rejected in the development of the defi-
Ilition of “well Injection.” For example,
as noted in the legislative history above.
the nature of the fluid emplaced Is not a
controlling factor. Also, the legislative
history does not suggest that subsurface
emplacement of fluids becomes “under-
ground Injection” at some predeter-
mined depth below the surface.
A simple way to define “Injection” In
the context In which it Is used in the
statute would be to relate It to mechan-
ically induced pressure. However, the
clear purpose of the Act Is to prevent the
endangerment of underground drinking
water sources through the injection of
fluids, and there is no reason to dis-
tinguish between mechanical pressure
and gravity flow injection.
The proposed definition does not cover
practices which In many cases endanger
underground drinking water because
they cannot be deemed to be “under-
ground Injection” within the meaning of
section 1421(d) (1) of the Act. For exam-
pis, leakage from sewer mains, septic
systems, highway salting and leaching
from landfills appear to be very serious
sources of contamination of underground
drinking water, but they are not under-
ground Injection practices and therefore
are not regulated by Part C of the Act. It
also does not cover a situation such as
the construction of an oil or gas produc-
tion well or those surface Impoundments
where incidental subsurface emplace-
ment of fluids occurs but Is not a prin-
cipal function of the operation.
In 1146.2(r), the term “dug well” ap-
plies only to Impoundments where the
depth Is greater than the largest surface
dimension. However, the term “dug well”
also can be applied technically to surface
Impoundments, such as pits, ponds and
lagoons, where the depth Is less than the’
largest surface dimension. (See Meftzzer,
OutlIne of Ground-Water Hydrology
With Definitions). What Is unclear Is
whether these dug walls which also have
as a principal function the subsurface
emplacement of fluids ai’e also covered by
the Act.
What Is clear Is that there are tens of
thousands of dug wells—including Indus-
trial and municipal pita, ponds and la-
goons used for waste treatament, storage
or disposal—which pose a very serious
potential hazard to underground drink-
ing water. EPA proposes to attack the
problem of these dug walls, Including
pits, ponds and lagoons, In the following
manner;
1. Proposed § 148.16(b) requIres 8tates
to undertake a survey of dug wells to de-
termine the extent to which they func-
tion to emplace fluids underground and
the hazards they pose to underground
drinking water sources.
2. EPA will seek to obtain needed addi-
tional data on these dug wells through
the study of pits, ponds and lagoons au-
thorized by section 1442 of the Act.
3. When enough data Is available to de-
termine which dug wells should be reg-
ulated and how they should be regulated,
EPA will endeavor to amend the defini-
tion of “well Injection” to the extent pos-
sible to cover additional dUg wells or wIll
seek such additional legislation as may be
necessary. It Is EPA’s intention that any
broadening of the regulation of dug wells
would not take effect for at least two
years after the effective date of the Initial
underground injection control regula-
tions, in the Interest of orderly adminis-
tration of the State programs.
However, It should be noted that EPA
could act to prevent such endangerment
under sectIon 1431, the emergency powers
provision of the Act. EPA Is studying the
effects of these and other sources of
ground-water contamination. In--the
meantime, the States are encouraged to
continue their efforts to regulate a
broad range of sources of contamination
which do not fall WIthin the meaning of
“underground injection” as that . term Is
used In the Act.
Comments are encouraged on ways In
which those dug wells which have as a
principal function the underground em-
placement fluids can be defined and In-
eluded In an underground Injection con-
trol program.
FRAMEWORK OF THE REGuLATIONS
These regulations are established to
provide the minimum requirements for
regulating the underground Injection of
fluids by the practice of well Injection.
The practices which are covered by the
proposed regulations include Injection
through any bored, drilled or driven well,
or any dug well, where the depth Is great-
er than the largest surface dimension,
whenever a principal function of the well
Is the subsurface emplacement of fluids.
This covers several hundred industrial
and municipal waste disposal wells, wells
used to Inject materials Into under-
ground strata for storage, recharge wells,
barrier wells, subsidence control wells,
nilnhig wells, geothermal wells, brine dis-
posal wells, Injection wells used In con-
nection with oil and gas recovery, and
drainage wells used for the purpose of
disposal of storm water runoff and Irri-
gauon return flow.
The proposed regulations include three
categories for different types of u
ground Injection practices. Subpart
eludes waste disposal wells, wells us
Inject materials Into underground i....,,_.
for storage, recharge wells, barrier wells,
subsidence control wells, geothermal
wells and minIng wells. Permits would be
required for all such wells, although wells
In existence on the effective date of the
State program could be regulated by gen-
eral rule for a period of up to five years
pending review of the well by the Stata.
Subpart D Includes underground injec-
tion wells associated with oil and gas pro-
duction. Owing to the unique nature and
diversity of these wells, Subpart D allows
greater flexibility to the States In regu-
lating these wells. As In the case of Sub-
part C, a permit would be required for
these wells also. Subpart D wells In exist-
ence on the effective date of the State
program could also be regulated by gen-
eral rule for a period of up to five years
pending review of the wells by the State.
Review of existing wells could be con-
ducted on a field-by-field or similar ap-
proach by the State to simplify the per-
mitting of existing wells and to avoid
duplicative data requirements. Subpart
E governs drainage wells. These wells can
be regulated by permit or by rule, at the
option of the State. Maximum flexibility
Is given to the States for regulation of
these types of underground Injection
wells.
Comments are Invited on the categori-
zation of well Injection practIces used In
the regulations and the adequacy of cov-
erage of the regulations,
APPROVAL OP STATE PRocaas(s
Subpart B of the proposed regulations
sets forth the procedures for the approval
of State programs. Proposed 0 148.10 lIsts
the basic requIrements for approval. One
of those requIremen Is that a State
program must follow the pattern of reg-
ulations by ‘rule or permit established In
Subparts C, D, and E. In other Words, a
State program must fellow the require-
ments of ubpart C In Its regulation of
waste disposal wells and engineering
wells. The State program regulating in-
jection wells related to oil and gas pro-
duction must follow the requiremen of
Subpart D. With respect to other types
of Injection wells, the State program may
regulate by a permit system or by rules
of general applicability or by a combi-
nation of the two, so long as It meets the
minimum requlremen of Subpart E.
Proposed 0 146.12 sets out the require-
ments for an application for a State pro-
gram. It Is not Intended that a State in-
clude all possible Information about Its
program, but a State must submIt the
relevant State statutes arid regu2latIo
and a description of the State’s enforce-
ment procedures. This Includes designa-
tion of geographical areas under ft 146.11
and 146.42(b).
Under proposed 0146.13, the AdmIn ..
trator will give public notice of a request
for approval of a State program, and
will Invite comment. Action must -
taken on the State application wltbli
EDUAL IEGISTER, VOL. 41, NO. 170—TUESDAY, LUOUST 31, 1976
-------
PROPOSED RULES
days after Its receipt. Opportunity for
public hearing Is required by sectIon 1422
(b)(4) of the Act.
Once a State program Is approved by
the AdmInistrator, it will remain in of-
Sect until such time as the Administrator
determizies that the program no longer
meets applicable requirements. Tb facil-
itate the Mmlnlqtrator’s consideration of
the continued compliance of a State pro-
gram with applicable requirements, Pro-
posed I 148.15 requires that the 8tate
retain pertinent records on outstanding
State-Issued permits and on violations of
State requirements. In addition, under
proposed 146.16 a State would be re-
quired to submit to the Administrator,
for approval, Information on any pro-
posed material changes In the State pro-
gram. This Includes designation of geo-
graphical areas under fi 146.11 and 146.-
42(b). The State also would be required
to submit on April 1 of each year a brief
annual report updating the State’s In-
ventory of underground injections (a
summary, not a faclilty-by-facluty de-
scription) and summarizing violations of
State statutes and regulations and of
enforcement actions taken by the State.
Erv ROVI5IONS OF THE PROPOSED
Rzcux.&rxozes
A. ENDAnGERMENT OP DRINKING WATER
SOURCES
The goal of any requirement for the
protection of underground water sources
Is set by the statute as preventing the
endangerment of drinking water sources.
As provided by section 1421(d)(2) of
the Act:
underground injecuon endangers drinking
water sources If such Injection may result in
the presence in underground water which
supplies or can reasonably be expected to
supply any public water system of any con-
taminant, and If the presence of such con-
taminant may result in such system’s not
complying with any national primary drink-
ing water regulation or may otherwise ad-
Tersely affect the health 01 persons.
The House Report accompanying the
Act provides some guidance as to which
underground water sources can reason-
ably be expected to supply any public
water system. The Report Indicates that
any underground source with a level of
total dissolved solids of 10.000 mg/I or
less should be protected (Report 93—1185.
at 32). Proposed I 146.2(g) defines un-
derground drinking water sources ac-
cordingly. However, EPA believes that
there should be some means of excluding
Individual aquifers or parts oX aquifers
which are not in fact potential sources of
drinking water even though they have
total dissolved solids levels of less than
10,000 mg/ I. For example, an aquifer may
be oil-producing even with a TDS level
of less than 10.000 mg/I. and In such a
case It may be wise to give the oll-produc-
lug qualities of the aquifer precedence
over Its ability to provide drinking water.
Also, some aquifers below the 10.000 mg/I
level are so contaminated that as a prac-
tical matter they are not potential drink-
ing water sources.
Because It would be a misallocation of
resources to seek to protect as potential
drinking water sources aquifers which In
fact will not be used by public water sys-
tems, proposed 146.11(a) provides that
a State program may designate one or
more aquifers or portions thereof In the
State which have a TDS level below
10.000 mg/I but which will not be pro-
tected because they are oil-producing,
are severely contnailnnted or located In
such away that use as drinking water Is
Impracticable. The 8tate must demon-
strate by compelling evidence that an
aquifer Is and will continue to be un-
suitable as a source of drinking water.
As part of the State program, the desig-
nation would be subject to public notice
and public hearing prior to submission
to EPA. The regulations also provide, In
146.11(b), that a State may designate
geographical areas where no under-
ground drinking water sources exist. In
such geographical areas, the require-
ments of Subparts C, D, and E would not
apply. Comment Is requested on this ap-
proach to selecting aquifers which do
not require protection as potential drink-
ing water sources.
Once the aquifers to be protected are
identifled, the question remains as to the
degree of protection to be given. The Act
defines “endangerment of drinking water
sources” to mean the presence of a con-
taminant which “may result In (a public
water] system’s not complying with any
national primary drinking water reglila-
tion or may otherwise adversely affect
the health of persons.” In the case of ex-
isting system using an underground
water source, the logical meaning of this
provision Is that contamination endan-
gers drinking water If It requires the use
of new or additional treatment by- the
system to meet a national primary drink-
lug water regulation or otherwise to pre-
vent a health risk. In many Instances
there would be a time lag between the
time of contamination and the Initiation
of the new treatment. Diversion of water
system resources to deal with such pre-
ventable contamination Is an Inefficient
approach to the problem of providing
safe drinking water to all persons.
The question of endangerment of un-
derground drinking water sources Is more
difficult with respect to potential sources
not currently used by public water sys-
tems. It could be argued that potential
sources of underground water are en-
dangered whenever they are degraded.
In the case of a potential source of under-
ground water which would meet primary
drinking water regulations without treat-
ment, degradation of that water may
make treatment hecessary. In the case of
a potential source of underground water
which will require treatment if It Is used
In the future, degradation may make
further treatment necessary or may
make the water unsuitable for use as
drinking water.
The problem of what constitutes “en-
dangerment” Is further complicated by
the fact that It Is expected that several
contaminants not covered by the na-
tional Interim primary drinking water
regulations will be covered within a few
years by the revised regulations. It can
also be anticipated that new contaml-
36733
rants will be added to the revised regu-
lations from time to time thereafter.
How can underground Injection control
programs protect underground water
sources from “endangerment” by con-
tamination with materials which ase not
now prohibited In any concentration in
drinking water but which may be limited
by future maximum conth ninant levels?
nally, there Is the statutory mandate
to protect underground water sources
from any contamination which “may
otherwise adversely affect the health
of persons.” The legislative history of
the SDWA suggests that this language
means, at the least, that cont inIn.t1on
by underground Injection which causes
ground water to be unpalatable Is pro-
hibited (Report 93-1185), at 32). The
justification for such a prohibition Is
that It makes little difference that water
can meet applicable primary regulations
If for aesthetic or other reasons It is im-
drinkable. Clearly there can be other
types of contamination which “may
otherwise adversely affect the health of
persons.” For example, water with of-
fensive taste; odor, or color may force the
use of alternative water sources of poorer
quality. Also, even if a specific danger-
ous pesticide or other toxic chemical Is
not covered by the primary regulations
because It Is not usually found In drink-
ing water supplies, the contamination of
an underground drinking water source by
that chemical could adversely affect the
health of persons who obtain the drink-
ing water from that source.
Despite the difficulty of dafining en-
dangerment of drinking water as that
term Is used in the statute, the task must
be undertaken In these regulations. For
although every effort will be made to
permit consideration of local geological
conditions, local laws and local proce-
dures, the basic health standards to be
applied In underground injection con-
trol programs should be uniform acr
the country. It was the Intent of Con-
gress to accommodate local differences
within the framework of a national
policy for the protection of the health of
the Nation’s citizens.
Endangerment of drinking water
sources Is defined In proposed 1146.2(x)
as follows:
underground Injection “endangers under-
ground drinking water sources” if (1) such
injection may make it necessary for a public
water system using an underground drink-
ing water source to Increase treatment of Inc
water, or (2) 11 such injection might make
it necessary for a public water system which
uses the source In the future to use more
extensive treatment of the water than would
otherwise have been neceesary, or (8) If such
Injection may otherwise adversely affect the
health of persons such as by adding a sub-
stance that would make water from the
source unfit for human consumption.
It Is expected that the application of
the definition of endangerment will be
different In the case of existing under-
ground injection than In the case of new
underground injection. An applicant for
a permit for underground Injection will
be expected to demonstrate to the satis-
faction of the State that the Injection
will not endanger underground drinking
FEDERAL REGISTER, VOLr 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
PROPOSED RULES
36734
water sources. However, in the cue of an
stIng injection, the appucant nor-
mal i will be able to show, based on the
history of the operation, that continued
operation will not require additional
treatment of ground water for drinking
water use and will not otherwise ad-
versely affect the health of persons such
as by making the water unfit for use as
drinking water. New underground injec-
tions, or a substantial change in an exist-
ing underground injection, will be ex-
pected to bear a heavier burden of proof.
Comments on the definition of the en-
dangerment of drinking water sources
and how that definition might be applied
in the regulations are welcomed.
B. COMPARISON OF SUBPARTS C AND D
1. Standards Jot Existing and New In-
fection WeUs. Existing wells under both
Subparts C (waste disposal wells and en-
gineering wells) and D (oil or natural
gas production) could be regulated by
rule for a period of up to five years after
approval of the State program so long
as such wells do not endanger under-
ground drinking water sources. Proposed
I 14610(a) would prohibit new under-
ground Injection under both subparts
without a permit. SectIon 1421(b) (1) (A)
of the Act authorizes EPA to permit a
State to regulate underground Injection
by rule or permit, and the legislative his-
tory of this provision states:
In order to implement these controls to
protect drinking source. with minimum ad-
minlatrative iedtape, the Committee decided
to allow EPA discretion to utilise a permit
system, rulemaking, or a combination of the
two to control underground tn ectlon. (Re-
port as—i 185. at 80)
Accordingly. EPA believes that It Is
prudent to allow States to phase-in per-
mit procedures for existing wells under
Subparts C and Dso long as underground
sources of drinking water are protected
by appropriate rules. Consistent with
this effort to minimize redtape, proposed
5 146.41 (a (1) provIdes that a State Di-
rector has discretion to require appro-
priate Information In permit applications
for existing underground InjectIons
under Subpart D. fly comparison, the
Information set out in proposed 5146.47
Is required in all permit applications for
new Injection sites under Subpart D.
Similarly, the Informatlonset out In pro-
posed 5146.24 under Subpart C Is re-
quired In permit applicatIon for both new
and existing operations. The reason be-
hind this distinction Is the large number
of existing Injection wells related to oil
or gas production and the vast amount
of data already on file in the States. Dy
granting the Director discretion with re-
spect to Information requirements for
these wells, EPA anticipates that a State
will be able to focus Its resources on
critical exIsting injection sites without
becoming enveloped in an unduly bus’-
densome permit program for existing
2. Permit System Subparts C and D.
Am noted above, permits would be re-
quired for all underground Injec-
some which commenc, operation In a
State after approval of the State pro-
gram (‘New underground injections”).
Permits would be required for all un-
derground injection operations In oper-
ation prior to approval of the State pro-
gram within five years of approval.
Section 1421(b) of the Act does not
specify any type of hearing as a pre-
requisite to the Issuance of a permit, but
the regulations provide f or an opportu-
nity for Informal public bearing prior to
the Issuance of permits under Subparts C
(5146.28) and D (514t45). Proposed
I 146.4 provIdes the Director with discre-
tion In determining necessary require-
merits for the renewal of permits after
five years. Public notice of the renewal
of a permit would be required by pro-
posed 5146.5. It Is anticipated that State
administrative procedures will provide
for judIcial review of permit proceedings.
3. ‘Temporary Permits. Section 1421(c)
(1) of the Act allows the Administrator
to authorize a State to Issue temporary
permits for existing underground Injec-
tion operations, effective untIl Decem-
ber of 1978, when the State is unable to
process all permits within the time avail-
able. The authority can be given to a
State only under the conditions spelled
out In section 1421(c) (1), and only under
an application for the authority from the
Governor of the State. tinder the pro-
posed regulations, sectIon 1421(c) (1) au-
thority would not be necessary because
the States would be allowed to regulate
wells covered by Subparts C and D by rule
rather than by permit for up to five years
and to regulate drainage wells by rule
Indefinitely. -
Section 142 1(c) (2) of the Act pesnilts
the Administrator to authorize a State,
- again only under an application from
the Governor of the State, to Issue tem-
porary permits amounting to variances
from the prohibition of endangerment of
underground drinking water sources. As
In the case of the section 1421(c)(i)
temporary permits, these permits cannot
be effective later than December of 1978.
Furthermore, a temporary permit under
sectIon 1421(c) (2) cannot be Issued by
a State until the State can find, based
on the record of a hearing, that each
of the following requirements are met:
(A) flat technology (or other means) to
permit safe injection of the fluid In accord-
ance with the applicable underground Injec-
tion control program is not generally avail-
able (taking costs into consideration):
IB) flat Injection of the flul’ would be
l .i harmful to health then the use of other
available means of disposing of waste or
producing the desired pmduct and
(C) That available technology or other
means have been employed (and will be em-
ployed) to reduos the volume and toxicity of
the ffutd and to nit, .t ,&. the potential a-
veme effect of the Injecuon on the public
health.
C. SUBPART!
Proposed Subpart K allows a State
program to exercise great flexibility in
designing a program for the control of
drainage wells. A State may regulate
these wells by either rule or permit, or
a combination thereof. While seeking to
prevent drainage wells from endanger-
ing underground water sources, EPA
recognizes that the number and dlv’
CharacteristIcs of drainage wells me
extremely difficult to establish sP.
requirements under Subpart K. Acoc. -
Ingly, EPA has allowed State programs
mnvlmum flexibility to deal with drain-
age wells on a case by case basis, If nec-
essary. As such, EPA Intends to monitor
State programs under Subpart K and
carefully analyze the efficacy of this ap-
proach.
V. REMEDIAL ACTION UNDER SUBPARTS C, B
*xn
Underground injection operations
regulated under Subpart C, D, or K that
are found to endanger underground
drinking water sources are required to
discontlnuç operations until remedial ac-
tion is taken unless the Director deter-
mines, that It is unreasonable and im-
practicable to discontinue operations
while taking remedial action. If the DI-
rector permits an endangering operation
to continue operation while taking reme-
dial action, the Director must prescribe
a compliance schedule which shall re-
quire remedial action to be taken as soon
as practicable but In no case later than
one year following the determination of
endangerment. It Is expected that State
Director will require cessation of Injec-
tion in cases where an imminent health
problem may result from such an injec-
tion.
SPECIFIC Psovissows or rim REGULATIONS
A. axvrxw OF COMPLETION AND PLUGGING
REPORTS
Proposed 5146.22(f) requires that
well completion and plugging repo
for wells penetrating the proposed injec-
tion zone within a two mile radius of the
proposed well injectIon be revIewed to in-
sure that all wells that, In the judgment
of the Director, present a potential threat
to underground drinking water sources
are properly completed or plUgged. In
5146.42(a) (6) dealing with oil and gas
production this review Is also required
except that the radius Is reduced to one-
half mile. These requirements are in-
tended to prevent the contamination of
underground drinking water sources by
formation fluids or injected fluids mi-
grating up linproperly completed or
plugged wells Into fresh water forma-
tions.
EPA feels that the same minimum
regulations should apply to both waste
disposal wells and engineering wells be-
cause they share common construction,
engineering, and operational character-
Istics. Most States have defined policies
for waste disposal wells tut few policIes
exist on the engineering wells. Eburteen
States entirely ban the use of waste dis-
posal wells, Twelve States have specific
regulations applying to waste disposal
wells. The requirements relating to ra-
dius of review vary, but a two mile or
greater radius Is moat common. Texas,
which now regulates over 40 percent of
an such wells. requires a two and one-
half mile radius of review. Twenty oti’
States have policies requiring a car
RDEML REGISTER, VOL. 41, NO. 170—TUESOAY, AUGUST 31, 1976
-------
case by case review of waste disposal
wells. Therefore, on the basis of the
Texas requirement and the fourteen
States which ban waste disposal wells,
EPA does not feel that mlnhnum radius
of review below two mlleswould be ap-
propriate. It Is Important to note that
these regulations neither require those
States which ban waste disposal wells to
permit them In the future nor require a
State such as Texas to adopt less strin-
gent requirements. To the contrary, EPA
encourages States to. adopt more strin-
gent requirements, If necjssary, to pre-
vent the endangerment pf underground
water sources.
State regulations demonstrate flexibil-
ity with respect to Injection wells related
to oil and gas production. TbIr y of the
thirty-one oil producing States require a
pint denoting ownership and locatI m of
all wells Including oil, gas, drilling and
dry holes. Seventeen of the thirty-one
States have specified that all wells with-
in a one-half mile radius of the proposed
Injection wells should be Indicated on a
map or plat and that the injected fluid
wIll not cause damage to oil, gas, fresh
water or other natural resources. Fur-
ther, It should be noted that the plugging
or completion requirement applies only
to those wells penetrating the Injection
zone which pose a potential danger to
i nderground drinking water sources. It
is Incumbent on the injector to demon-
.strate that no hazard exists.
B. 5(TRFACE CASING REQUIREMENTS
Proposed fi 146.22(a) and 146.42(a)
(1) require that “all underground drink-
ing water sources of 3,000 mg/l total
dissolved solids or less (be) protected by
surface casing cemented to the surface.”
The House Report accompanying the
SDWA recommended that all ground
water to 10,000 mg/i TDS be pro-
tected as potential drinking water
sources. Discussion with major oil pro-
ducing States Indicated that existing
practice requires protecting ground wa-
ter containing up to 3.000 mg/l TDS
with surface casing as potential drinking
Water sources. In light of these existing
provisions, the 3,000 mg/i limit has been
established as a minimum standard. Of
course, where underground injection
would endanger a present or potential
source of drinking water containing up
to.10,000 mg/i TDS, EPA expects States
to protect such a source.
It Is recognized, however, that In oil
producing States there are specific areas
where alternate methods of protection
have been utilized effectively In the past
to protect ground water and can be used
to do so In the future. Therefore, the
Director Is given discretion under 0146.42
(b) to permit the continued use of this
practice within specified areas of the
State provided a public bearing Is held.
Compelling evidence must be adduced
at such a hearing to demonstrate that
the continued use of the practice will not
endanger underground souroes of drink-
lug water. The alternative chosen will
be applicable to ill wells wtthln the
specific area.
PROPOSED RULES
C. TUBING AND PAC
Proposed 10146.22(c) and 146.42(a)
(2) zequlre that “Injection Is ninintalned
through tubing with a suitable packer
set Immediately above the Injection
zone.” Most State rqgulatlons and those
knowledgeable In the field of under-
ground Injection reoomznend that tubing
and packer or fluid seal be used to Isolate
the Injection zone from potential drink-
ing water sources which may be endan-
gered as a result of the injection of
fluids.
It Is recognized, however, that there
are some areas where alternative
methods of protection have been used
and can continue to be used effectively to
protect ground water. ?or this reason,
the Director Is given the discretion to
permit the continued use of this practice
under 0 146.42(b) provided a public
hearing ls-”held. Compelling evidence
must be adduced at such a bearing to
demonstrate that the continued use of
the practice will not endanger under-
ground sources of drinking water. The
alternative chosen will be applicable to
all wells within the specific area. The
Director may also approve alternative
methods under 0 146.22(c) where they
are demonstrated to be equally effective.
3e7
Its continued use endanger underground
sources of drinkIng water. Comments are
solicited on the adequacy of these re-
quirements In protecting underground
sources of drinking water and on the
Impact of these requirements on existing
wells.
H. CATEGORIZATION ANOIIALIZS
There are several special types of wells
such as certain recharge wells and min-
ing wells, where current technology man-
dates utilization of annual Injection, and
multiple use wells such as those used for
water flood and subsidence control which
may not readily fit Into the current cate-
gorization scheme. Comment Is solicited
on the extent and nature of these wells
and on the necessity of developing Ciffer-
ent minimum requirements than those
currently contained l the regulations.
I. SUMMAST or so scivz co vs
Comments are solicited on specific
parts of the regulations. These are sum-
marized below:
• 1. DefinItion of “underground drinking
water source”;
2. Definition of “well Injection”;
3. Definition of “endangers under-
ground drinking water sources ’;
4. RequIring data to be kept by States
In a form admissible as evIdence in on-
forcement proceeding;
5. Adequacy of time for conducting In-
ventory and analyses of surface Im-
poundments;
z. xoicrroamc WELL
Section 146.42 (a) (9) permIts presenta-
tion of vldence gathered from monitor-
Ing wells In support of a demonstration of
non-endangerment from an annular In-
jection. These monitoring wells may be
drilled specifically for this purpose or
they may be producing water wells cur-
rently In place providing they draw water
from thb base of fresh water within the
calculated zone of Influence of the Injec-
tlon well.
F. ST?PLEMENTAL DATA ACQui rnON
Section 146.47(b) contains a list of ad-
dItional data which Is desirable to have
In evaluating an application for well
Injection. It should be noted, huw v ,
that It .Is not necessary to collect this
data In every case. ThIs data should be
collected only where necessary to make
the necessary determinations.
G. PRniENTATION OF co wELLnea
EVIDENCE
s. ANNULAR INJECTION Sections 146.22(c), 146.42(a) (9). 146.—
Section 146.2(z) defines “annular In- 42(c) (1) and 146.42(c) (2) require the
jection” as any Injection between strings presentation of “compelling evidence.”
of casing, between tubing and casing, “Compelling evidence” means the types
between strings of tubing and between and quantity of data necessary to provide
casing and hole. The following sections a base such that reasonably qualified
deal with the differing types of protec- people would draw the same conclusion.
tion necessary to protect drinking water.. In 0 146.42 (C) (1) and (0) (2) “wrItten”
sources from the three common types of compelling evidence Is required. This may
ann alar Injection, take the form necessary to satiscy the
Section 146.42 (a) (7) prohibIts annular ctOr. However, in States where a
Injection between the casing and the formal public hearing, Including the use
hole. With this type of annular Injection, of court stenographers and cross exami-
there Is no protection for underground nation Is required, this procedure may be
sources of drinking water. utilized alone or In support of other re-
Section 146.42 (a) (8) prohibits annular qi ’ements by the Director.
Injection between strings of casing and
between tubing and casing, except that
the Director may approve such Injection
provIded: (1) there is an annulus be-
tween the outer string of casing receiving
the Injection, and the surface casing
which can and will be monitored for
leaks; (2) that the surface casing Is pro-
tected by cement to the surface; and (3)
that the Injector demonstrates to the
satisfaction of the Director that the In-
jection will not endanger underground
sources of drinking water.
Section 148.42(a) (9) prohIbits annular
Injection between the surface c . 1 rig and
the next Innermost casing or between the
surface casing and the tubing, or injec-
tion through the surface casing only;
except that the Director may approve
such Injection where: (1) the Injection
was in operation prior to approval of the
proposed State program, and; (2) the
injector demonstrates to the satisfaction
of the Director that, based on previous
history and presentation of compelling
evidence collected through fluid Injection
profile surveys or monitoring wells that
the injection has not endangered under-
ground sources of drinking water, nor will
FEDERAL REGISTER, VOL. 41, NO. 1 7d—TUESDAY, AUQUST 31 1976
-------
38736
6. Combination rule-permit program-
matic staging system for existing Injec-
tion wells;
7. Handling of confidential Informa-
tion;.
8. Adequacy of requirements In pre-
venting endangerment and Impact of
these requirements on existing annular
Injection wells; and
9. Alternative methods of determisling
non-endangerment from wells penetra-
ting Injection horizon.
COMMENTS
Interested persons may participate In
this rulemaking process by submitting
written comments In triplicate to.the Of-
floe of Water 8upply (WH- .550), En-
vironmental Protection Agency, Wash-
ington. D.C. 20460 Attention: Comment
Clerk, State Underground Injection Con-
trol Program Regulations.
Comments on all aspects of the pro-
posed regulations are solicited. In addi-
tion to considering public comments. the
Agency will hold public hearings to re-
ceive comments and statements on the
proposed regulations. The hearing room
locations, dates and times should be con-
firmed by interested parties In advance
by telephone.
October 8. 1976: EPA. Region VIII. 900 IAn-
coin Tower Building. 1880 LIncoln 8treet,
Denver, Colorado 60202, Telephone: (303)
837—2731.
October 13. 1976: EPA, Region VI. First In-
ternational Building, 1201 Elm Street.
Dallas. Texas 75270. Telephone: (21$) 749-
1982.
September 29, 1978: EPA, headquarters,
Waterside Mall, 401 M Street SW., Wash-
ington, D.C. 20460, Telephone: (202) 426-
3934.
All comments received on or before
November 15. 1978 wIll be considered.
A copy of all public comments will be
available for Inspection and copying
from the EPA Freedom of Information
Center. As provided In 40 CP’R Part 2,
a reasonable fee may be charged for
copying services.
It is our judgment that these proposed
regulations will not have a significant
Impact on Inflation as specified In the
Agency’s Guidelines on Inflation Impact
Statement as specified In the Agr ncy’s
Guidelines. Hence, these regulations are
not considered major regulatory actions
so that they do not require preparation
of an Inflation Impact Statement as set
forth In Executive Order 11821. However,
an economic evaluation has been pre-
pared.
It Is hereby announced that a draft
Environmental npact Statement baa
been prepared on these proposed regula-
tions, Copies of the statement may be
obtained from the Office of Water Supply
(WH -550), Environmental Protection
Agency, Washington, D.C. 20460, Atten-
tion: UIC-EIS.
The Council of Environmental Quality
.will publish In the Fiusm Rscxsvn on
the second Friday following proposal of
these regulations the duration of the
comment period. AU comments received
on or before the date specified by CEQ
will be consIde ed.
PROPOSED RULES
Comments should be submitted In isipli-
cate to the Office of Water Supply (WH-
550), EnvIronmental Protection Agency,
Washington, D.C. 20460, Atientt n:
Comment Clerk Environmental Impact
Statement-UIC.
Dated: August 13, 1976,
RUSSELL E. Thm.
Adm i nistrator.
Sec. ‘
346.1 Scope end purpose.
146.2 DefinItions.
146.3 Duration of permits.
146.4 Renewal of VIC permits.
146.6 Public notice of renewal of UIO
permit..
Subpart B State Underground lnIs eu
146.10 RequIrements for appi’pval of a State
underground Injedtion oon ’o1
program.
146.11 AquIfers protected by a Stats pro-
gram.
146.12 Request for approval of a State un-
derground Injection control pro-
gram.
148.18 Action on request for approval of a
State program.
146.14 Public hearing.
146.15 Records kept by States.
146.16 Reports by States.
SubpM C Requirements Applicabi. to Waste
Disposal Wall. and Seglnesring Wells
146.20 Underground injection to which sub-
part applies.
148.21 RevIew or existing underground
injections.
146.22 RequIrements for existIng and new
underground injections.
146.23 General permit procedures.
14624 Application for VIC permit. -
14635 Formulation of preliminary deter-
mination and draft 1710 permits.
146.26 Public notice of proposed lseuáce
or denial of 1730 permits icr exist-
ing and now underground injec-
tioiis.
146.27 NotIce to other Government agen-
cies.
146.28 Public bearings en existing and new
underground injections.
14629 Public notice of hearings on existing
and new underground Injections.
146.30 Director action on UIC permit appli-
cations.
14621 Prohibited underground Injection.
146.32 Permit conditions and other require-
ments.
14623 MonitorIng and record-keeping.
146.94 Reporting requirements.
Subpart D Requirements Applicable to Injectiss
Wells Related to Oil and Gas Preductien
146.40 Underground injection to which sub-
part applies.
146.41 RevIew c i existing underground
injections.
148.42 Requlrement . for existing and new
underground Injections.
146.42 Public notice of proposed ‘ nuance
or denial of VIC permits for exist-
ing and new underground Injec-
tions.
146.44 NotIce to other Government agen-
eisa.
146.45 Public hearings on existing and new
underground injections,
146.46 Public notice of hearings on existing
and new underground Injections.’
146.47 ApplicatIon for 1720 permit for a
new underground Injection.
146.46 Permit conditions and other require-
ments.
Sea.
148.49 MonitorIng and reccrd-keep1n
146.10 ReportIng requirements.
Subpart £ Requirements A4 5 3D.
Drainage Welia
146.70 UndergrOund injections to whIch
subpart applies.
146.71 Regulation by rule or permit.
146.72 RegulatIon by permit.
146.73 RegulatIon by rule.
146.74 Remedial action.
Subpart A—General
§ 146.1 Scope and purpose.
(a) Part C of the Safe Drinking Water
Act, Pub. L. 93-523. added to the Public
Health Service Act (“the Act”) provisions
for the protection of present and poten-
tial underground drinking water sources
from contamination by underground In-
jection o contAnhIn 1ts. Public Health
Service Act, sections 1421-1424,42 U.S.C.
300-h through 300-h-3. -
(b) Section 1422 of the Act provides
that the Administrator shall list in the
FEDERAL REGISTER each State for which
In his judgment a State underground
InjectIon control program may be neces-
sary to assure that underground Injec-
tion will not endanger drinking water
sources. WithIn 270 days after a State
is listed, It must submit to the A.iniInis
trator a State program adequate to pro-
tect underground sources of drinking
water. If the State program is not sub-
mitted or Is not approved by the Mmfn-
Istrator, an underground inJectIon con-
trol program for the State must be pre-
scribed by the Administrator.
(C) Under ‘sectIons 1421, 1422
1450 of the Act this part sets fort)
cedural and substantive require.
which must be met by State progran... .
obtain the Administrator’s approval. Any
State program approved by the Adminis-
trator will be subject to the requlrement
of this part A State with an approved
program in effect shall have primary’ en-
forcement responsibility for ,&U under-
ground Injection activities In the Stats,
except as noted In paragraph Cd) of this
section.
(d) To qualify for primary enforce-
ment responsibilIty, a State’s program
for enforcement of underground InjectIon
control regulations must apply to all un-
derground Injection practices In the State
required to be regulated by this Part,
except for:
(1) Underground Injection practices
on Indian land where the State does not
have the necessary Jurisdiction or Its
jurisdiction Is In question; or
(2) An underground InJectlqn practfce
operated by or for a Federal agency
where the Administrator has waived
compliance with all or part of an appli-
cable underground Injection control pro-
gram under section 1447(b) oX the Act.
(e) Underground Injection to be rng.
ulated includes underground Injection by
municipal and Industrial waste disposal
wells, storage wells, subsidence control
wells, mining wells, geothermal well.,
barrier wells,’ recharge wells; under-
ground Injection of brine or other ?‘““
which are brought to the surface In
nection with oil or natural gas produ
FEDERAL REGISTER, VOL. 41, NO. ITO—TUESDAY, AUGUST 31, 1976
-------
PROPOSED RULES
36737
and underground Injection for the sec-
ondary or tertiary recovery of oil or nat-
ural gas; and underground Injection by
drainage wells.
E 146.2 Definliloni.
As used In this part, and except as
otherwise specifically provided:
(a) “Act” means the Public Hedith
Service Act.
(b) “Agency” means the United States
Environmental Protection Agency.
(C) “Administrator” means the Ad-
minlstrator of the Agency or his author-
ized representative.
(d) “Regional Administrator” means
a Regional Aiimin1 trator of the Agency.
(e) “Director’ means the chief ad-
ministrative officer of a State ground-
water pollution control agency. In the
event responsibility for ground-water
pollution control and enforcement is
divided among two or more State agen-
cies, the term “Director” means the
State administrative omcer authorized to
take the action to which reference Is
made.
(f) “FWPCA” means the Federal
Water Pollution Control Act, as
amended, 33 U.S.C. 1314. et seq.
(g) Except as provided In I 146.11,
“Underground drinking water source”
means (1) an aquifer which currently
supplies a public water system, or (2) an
aquifer which contains water having
less then 10,000 mg/I total dissolved
solids.
(Noix.—Comment Is splicited on the ado-
quacy of this definition)
(h) “Contaminant” means any physi-
cal, chemical, biological, or radiological
substance or matter in water.
(I) “Public water system” means a
system for the provision to the public of
piped water for human consumption, If
such system has at least fifteen service
connections or regularly aerve.s at least
twenty-five individuals daily at least
60 days out of the year. Such term In-
cludes (1) any collqptlon, treatment,
storage, and distribution facilities under
control of the operator of such system
and used primarily In connection with
such system, and (2) any collection or
pretreatment storage facilities not under
such control which are used primarily In
connection with such system.
(j) “State Underground Injection
Control Program” (State mc Program)
means a State program for the regula-
tion of the practice of underground In-
jection to protect underground drink-
ing water sources and meeting the re-
quirements of sectIons 1421 and 1422(b)
(1) (A) (U) of the Act and regulations
promulgated under those provisions of
the Act.
(k) “Underground Injection Control
permit application” (UIC permit appli-
cation) means the State application
form including subsequent additions,
revisions, or modifications duly promul-
gated by the Director for application for
a mc permit.
(1) “Underground Injection Control
reporting forms” ( C reporting forms)
means any State reporting forms, In-
cluding subsequent additions, revisions,
or modifications duly promulgated by
the Director for reporting data and in-
formation pursuant to monitoring and
other conditions of mc permits.
Cm) “Underground Injection Control
permit” (UTC permit) means any permit
or equivalent document Issued by the Di-
rector, setting forth the terms under
which the applicant may Inject fluids.
(n) “Aquifer” means a formation,
group of formations, or part of a forma-
tion that contains sufficient saturated
permeable material to yield or be capable
of yielding significant quantities of water
to wells or springs.
(0) “Total dissolved solids” means
the entire quantity of Inorganic and or-
ganic materials dissolved in water.
(p) “Underground Injection’ means
subsurface emplacement of a fluid, or
fluids by well injection.
(q) “fluid” means material which
flows or moves, whether sCmI-solid,
liquid, sludge, or any othel’ form or state.
Cr) ‘WeU Injection” means subsurface
emplacement through a bored, drilled, or
driven well, or through a dug well where
the depth Is greater than the largest
surface dimension, whenever a principal
function of the well Is the subsurface em-
placement of flulde.
(NoTs.—Commnent Is solicited on the ads.
quacy of tb’s definition.)
Cs) “Surface Impoundment” means
any dug well which has a depth less than
the greatest surface dimension and Is
used for collection, storage, treatment, or
disposal of fluids. -
(t) “Existing underground Injection”
means underground injection In ope d-
tion In a State before the approval of the
proposed State program pursuant to sec-
tIon 1422(b) of the Act.
Cu) “New underground Injection”
means underground Injection which
starts operation In a State after approval
of the proposed “State program under
sectIon 1422(b) of the Act.
Cv) ‘Person” means an Individual,
corporation, partnership, association,
State, municipality, or Federal agency
other than the Agency.
Cv) “MunIcIpalIty” means a city,
town, or other public body created by or
under State law, or an Indian tribal or-
ganization authorized by law.
(x) Underground Injection “endangers
underground drinking water sources” If
(1) such Injection may make It n es-
eary for a public water system using an
underground drinking water source to
Increase treatment of the water, or C2)
If such Injection might make It necessary
for a public water system which uses the
source In the future to use more extensive
treatment of the water than would other-
wise have been necessary, or (3) If such
Injection may otherwise adversely of-
fect the health of persons such as by add-
ing a substance that would make water
from the source unfit for human con-
sumption.
(Non—Comment Is solicited on the ade-
quacy of tbts definition.)
(y) “Federal agency” meaen any de-
partment, agency, or Instrumentality of
the United States.
(a) “Annular Injection” means any In-
jection between strings of casing, be-
tween tubing and casing, between strings
of tubing and between c ’ g and hole.
8 146.3 DuratIon of pennils.
No mc permit may be Issued for a
term greater than five years.
§ 146.4 Renewal of UIC permits.
Upon a request by the permittee, the
Director may renew a permit, Without
requiring a formal reapplication by the
permittee, after a determination by the
Director that the continued operation
of the underground Injection will not en-
danger underground sources of drinking
water. If the Director determines that
the continued operation of the facility
may endanger underground sources of
drinking water the Director may require
the permittee to submit Information to
demonstrate that the continued opera-
tion of the tacifity will not endanger tnt-
derground sources of drinking water. If
the Director finds that the pèrmittee has
failed to demonstrate the continued
operation will not endanger underground
sources of drinking water, the Director
shall refuse to reissue the permit. The
Director’s decision shall be set forth In
writing, and a copy furnished to the
applicant.
3 146.5 Public notice of renewal of UIC
permits.
The director shall give public notice
of the Intent to renew a UIC permit or
group of permits under either ft 146.26
(a), 146.43(a) and 146.72(b).
Subpart B—State Underground Injection
Control Programs
§ 146.10 Requirements for approval of
a State Underground injection Con-
trol Program.
The Administrator will approve a pro-
posed State Underground Injection Con-
trol Program under section 1422- of the
Act If the State program:
(a) Prohibits, effectIve December 11.
1977, or as of the time of the AiImtnIR-
trator’s approval, any underground In-
jection covered by Subparts CoP D which
Is not authorized by a permit Issued by
the State; except that If underground In-
jection In operation prior to the ap-
proval of the State program under sec-
tIon 1422(b) of the Act, the State pro-
gram may authorize continued operation
by rule for a period of up to five years
from the date of designation;
b) Prohibits, effective December 16,
1977, or as of the time of the Admtnts-
trator’s approval, any underground In-
jection covered by Subpart E which in
not authorized by a rule or permit Issued
by the State:
Cc) Complies with Subparts C. D and
E, which set forth requirements for the
various categorIes of underground Injec-
tion;
Cd) Applies to undergrouz)d Injection
by any person within the boundarIes of
the State, Including any Federal agency
except for:
(1) Underground Injection practice.
en Th’ ”’ land which the State does not
esDERAL IEOISTEU VOt. 41, NO. 170—TUESDAY AUGUST 31, 1976
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36738
PROPOSED ROLES
have the necessary jurisdiction or Its
jurisdiction Is In question; or
(2) An underground Injection practice
operated by or for a Federal agency
where the Mmintatrator has waived
compliance with all or part of an app))-
cable underground Injection control pro-
gram under sectIon 1447(b) of the Act
Ce) Includes statutory or regulatory
enforcement authority adequate to com-
pel compliance with State requirements
which seek to prevent the endangerment
of underground drinking water sources
by underground Injection. auth authority
to Include:
(1) Authority to sue In courts of com-
petent jurisdiction to enjoin any threat-
ened. or continuing violation of the State
Underground Injection Control regula-
tons;
(2) Right of entry and Inspection of
underground Injection facilities, Includ-
ing the right to monitor or take samples,
whether or not the State has evidence
that the facility Is In violation of an
applicable legal requirement;
(3) Authority to require operators of
underground Injection facilities to keep
appropriate records and make appropri-
ate reports to the State; and
(4) Authority to assess civil or crlzn-
Inal penalties for violation of the State’s
Underground Injection Control regula-
tions Including the authority to assess
daily penalties or multiple penalties
when a violation continues;
(f) Insures that any Information on
file with the State and pertinent to UIC
applications and permits shall be avail-
able to the public for Inspection and
copying subject to appropriate protection
of trade secrets;
(g) Includes Inspection and surveil-
lance procedures which with reasonable
assurance will determine, Independent
of Information supplied by applicants
and pernñttees, compliance or noncom-
pliance with applicable standards and
limitations, VIC permit filing require-
ments. and Issued UIC permits or terms
or conditions thereof. Such surveillance
end Inspection support procedures shall
include the following:
(1) A supporting survey program with
sufficient capability to make systematic
surveys of operatlcns subject to the Di-
rector’s authority In order to Identify
and locate all operations subject to tIC
permit filing requirements;
(2) A supporting Inspection program
for the periodic lnspedtlon of under-
ground Injection operations, ayatezns, or
facilities. Such inspection shall deter-
mine compliance or noncompliance with
the terms, conditions, limitations and
schedules of compliance in tIC permits;
and
(h) Has been adopted after reason-
able notice and public hearings.
§ 146.11 Aqulfen protected by a State
program.
(a) Notwithstanding 5 146.2(g) which
defines “underground drinking water
sources” to encompass aquifers which do
not currently supply a public water sys-
tem but which contain water having less
than 10,000 mg/I total dissolved solids.—
a State program which does not under-
take to protect o ne or more such aquifers
or portions thereof may meet the require ,
ments for primary enforcement respon-
sibility if the State can demonstrate to
WA that the aquifer or portion thereof
Is not an underground drinking water
source became the aquifer is either oil-
producing; is too contatatneted for use as
an underground drinking water source;
or Is In a location which makes future
use of the aquifer as an underground
drinkIng water source Impracticable, and
that the Injection into such aquifer would
not endanger underground drinking
water sources in another part of the
aquifer or In another aquifer.
(b) The State program may designate
specific geographic areas which do not
contain underground sources of drinking
water as defined In 5146.2(g), in which
underground Injection Is not subject to
these regulations. The State must clearly
demonstrate to EPA that within that
specified area no underground drinking
water sources exist, and further that un-
derground Intection in such ageograpbic
area would not endanger underground
drinking water sources outside that area.
(c) A complete record of all evidence as
well as all analyses of such evidence re-
lated to designations under (a) and (b)
above shall be submitted to the Adminis-
trator upon submission of the State pro
gram under sectIon 1422(b) of the Act.
All Injection wells located in the desig-
nated area shall be Identified as a part
of the submission to the Administrator.
Such designations are subject to the re-
quirements of 55 146.10(h) and 146.14(a).
If an area Is to be designated after ap-
proval of the State program the proãe-
dure contained In this paragraph áust
be followed.
§ 146.12 Request for approval of a State
Underground Injection Control Pro-
gram.
A State may apply to the Administra-
tor for approval of Its Underground In-
jection Control Program under 1146.10.
The application shall be as concise as
possible, shall describe and document the
State’s compliance with the requirements
set forth in 5 146.10. and shall Include
the following Information:
(a) The text of the State’s statutory
authority and regulations pertaining to
thç State underground Injection control
program; and
(b) A brief description, accompanied
by appropriate documentation, of the
State’s procedures for the enforcement of
its underground injection control pro-
gram, Including State Inspection, moni-
toring, recordkeeplng and reporting re-
quirements.
§146.13 Action en request for approval
of estate program.
(a) (1) Upon receipt of a request for
approval of a State program submitted
under 5146.12, the AdmInIstrator shall
publish notice of the request In the Pta-
sun. Rzorsnx and In a newspaper or
newspapers of general circulation In the
State Involved, with a brief s” ’ °’y of
the State program, and shall Invite com-
ments on the request
(2) WIthin 90 days after receipt of the
State’s completed application, the A”-
ministrator sbsll either approve, d l ’
prove, or approve In part and dlsapt
in part, the State program. The Adim.
t.rator’s action shall take effect in aocora-
ance with 0146.14.
•) (1) If the Administrator approves
the State inugrnm, the State shall have
primary enforcenient responsibility for
tm4erground Injection control in the
State until such time as the approval is
terminated under this paragraph (b).
(2) The Administrator shall perlodi-
cally review, with respect “to each State
determined to have primary enforce-
ment responsIbility, the compliance of
the State with the requirements set forth
In 0146.10.
(3) When the Administrator’s periodic
review, or other Information available to
him, Indicates that a State no longer
meets the requirements set forth In
0 146.10, he shall notify the State In writ-
ing of that fact and shall stmimarlze In
his notice the Information available to
him which indicates that the State no
longer meets such requirements.
(4) The State notified under subpara-
graph (3) of this paragraph may, within
30 days of receiving the Administrator’s
notice, submIt to the Administrator evi-
dence demonstrating that the State eon-
tinues to meet the requirements for pri-
mary enforcement responsibility.
(5) After reviewing the submission of
the State, If any, made under subpara-
graph (4) the Administrator shall either
determine that the State no longer meets
the requirements of 5 146.10 or that t’”’
State continues to meet those requ
menta, and shall notify the State 0)
determination. Any determination tz...
the State no longer meets the require-
mentsof 5 146.10 shall notbeoomeeffec-
Live except as p vided In 0146.14.
§ 146.14 Public Leering.
(a) Before any determlnatlo&as to the
transfer of authority to a State under
0146.13(a ) becomes effective, or any de-
termination pursuant to 0 146.13(b) that
a State program no longer meets the re-
qufrements of 0142.10 becomes effective,
the Administrator shall provide an op-
portunity for public hearing on his deter-
mInation under section 1422(b) (3) of
the Act.
(b) The Administrator shall publish
notice of any determination specified In
paragraph (a) of this section in the
Psasm Bscrsrra and In a newspaper or
newspapers of general circulatIon In the
State involved, within 15 days after mak-
ing such determination, with a statement
of his reasons for the determination, The
notice shall inform interested persons
that they may request a public hearing
on the Mn lntatrator’s determination,
Such notice shall also indicate one or
more locations In the State where Infor-
mation submitted by the State under
0146.11 Is available for Inspection by the
general public. A publIc hearing may be
requested by any Interested person other.
than a Federal agency.
(c) Requests for hearing under pa
graph (b) of this section shall be a
mItted to the Administrator within
ESD UAL hOISTER, VOL 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
PROPOSED RULES
36739
days after publication of notice or op-
ortunIty for hearing In the PIDZSAr.
zozswi. Such requests shall Include the
Iollowing Information: -
(1) The name, address and telephone
number of the individual, organization
or other entity requesting a hearing;
(2) A brief statement of the requesting
person’s Interest In the Administrators
determination and of information that
the person making the request Intends
to submit at such bearing; and
(3) The signature of the Individual
making the request; or. if the request Is
made on behalf of an organization or
other entity, the signature of a respon-
sible official of the organization or other
entity.
(d) If an appropriate request for hear-
ing is submitted In accordance with
paragraph (C) of this section, the Ad-
snlnlstrator shall give notice in the Psa-
XRAL ReGISTER and In a newspaper or
newspapers of general circulation in the
State involved, of any hearing to be held
accçdlng to a request submitted by an
interested person or on his own motion.
Notice of the hearing shall also be sent
to the person requesting a hearing, If
any, and to the State Involved. Notice
of the hearing shall include a statement
of the purpose of the hearing, informa-
tion regarding the time and location for
the hearing and the address and tele-
phone number of an office at which in-
terested persons may obtain further in-
formation concerning the hearing. At
least one hearing location specified in
the public notice shall be within the in-
volved State. Notice of hearing shall be
given not less than 30 days prior to the
time scheduled for the hearing.
(e) Bearings convened under pain-
graph (d) of this section shall be con-
ducted before a hearing officer to be
designated by the Administrator. The
hearing shall be conducted by the hear-
ing officer in an informal, orderly and
expeditious manner. The hearing officer
shall call witnesses, receive oral and
written testimony and take such other
action as may be necessary to assure the
efficient conduct of the hearing. Follow-
ing the conclusion of the hearing, the
hearing officer shall forward the record
of the hearing to the Administrator.
(f) After reviewing the record of the
hearing and other relevant Information,
the Administrator shall issue an order
affirming the determination referred to
In paragraph (a) of this section or re-
scinding such determination. If the de-
termination Is affirmed, it shall become
effective as of the date of the Adminis-
trator’s order.
(g) If no timely requests for hearing
Is received and the Administrator does
not determine to hold a hearing on his
own motion, the Administrator’s deter-
mination shall become effective 45 days
after notice is Issued under paragraph
(b) of this section.
(h) If a determination of the Admin-
istrator that a State no longer meets
the requirements of l46.1O becomes of-
festive, the State may later apply for
a determination that it meets such re-
quirements bi submitting to the Admin-
Istrator info ’mat1on demonstrating that
It has remedied the deficiencies found by
the Administrator without adverse ly of-
testing other aspects of Its IlroS*m re-
qulredby l 146.10.
Ci) WithIn 270 days after any amend-
ment of a regulation, under section 1421.
revising or adding any requirement, each
State shall submit a notice to the Ad-
ministrator containing a showing satis-
factory to him that the State program
meets the revised added requirement.
8 146.15 Records kept by States.
(a) Each State which has primary
enforcement responsibility under section
1421(b) (1) (C) of the Act shall maintain
the following Information with respect
to each underground Injection for which
a permit is in e’ect or for which the
Director has received evidence of a vio-
lation of applicable requirements:
(1) Reports of any monitoring re-
quired by the permit or other surveillance
conducted by the Director;
(2) CopIes of permits In effect and the
applications for those permits: and
(3) Records of any enforcement ac-
tions or evidence of violation of appli-
cable requirements.
(b) Records required to be kept under
paragraph (a) must be In a form ad-
missible as evidence In State enforce-
ment proceedings.
(Nors.—Co=ent is solicited on the feasi-
bility of requiring data to be kept in this
form.)
(C) Each State which has enforce-
ment authority for the Injection regulat-
ed under Subpart D of these regulations,
shall maintain complete records of nfl
approvals granted under 0 146.42(a) (8)
and (9) and I 146.42(c).
5 146.16 Reports by States.
Each State which has primary en-
forcement responsibility shall submit to
the Administrator the following infor-
mation:
(a) A complete Inventory of all under-
ground injections subject to regulation
under Subpart C, D, and E of this Part
within one year after approval of the
program; and
(b) An inventory of existing surface
impoundments, and an assessment of the
extent to which they function to em-
place fluids underground and an evalu-
ation of the hazard they pose to under-
ground drinking water supplies, within
eighteen months after approval of the
program, and
(Nom —Comment is aollcitcd on the ad.-
quacy of the time for conducting this in-
ventory and subsequent analysis In defloing
the problem of underground injection
through dug wells including surface im-
poundments not currently covered by this
Regulation.)
(C) An annual report to be submitted
by Apr11 1 of every year, consisting of:
(1) A summary of the number of vio-
lations of State underground injection
control statutes and regulations and of
enforcement actions taken by the State;
(2) An updated list of new and
abandoned underground Injection oper-
ations In the State;
(3) A listing of specific permits issued
for underground Injections in areas des-
ignated under H 146.11 and 146.42(b).
(4) A listing of specific permits cqn-
ta4nhig approvals granted under H 148-
42(a) (8), 146.42(a) (9) and 146.42(c).
(5) Information on any proposed ma-
terial change In the State program, be-
fore adoption of the change.
Subpart C—Requirements Applicable to
Waste Disposal Wells and Engineering
Wells
§ 146.20 Underground Injectioni so
which subpart applies.
This subpart sets forth requirements
for State programs of underground in-
jection by Industrial and municipal waste
disposal wells, subsidence control wells.
barrier wells, recharge wells, mining
wells, storage wells and geothermal wells.
5 146.21 Review of existing under-
ground injection ..
(a) Underground Injections which
were In operation under approval by the
Director under an existing State pro-
gram before the approval of the proposed
State program under section 1422(b) of
the Act may. for a period of up to five
years after approval, be regulated by rule
provided such underground injections
will not endanger underground drinking
water sources.
(1) The Director shall require appli-
cations to be filed under 0146.24 for each
existing underground Injection which is
to continue in operation.
(2) The Director shall systematically
review such underground. injections to
determine that they do not endanger un-
derground drinking water sources. The
method of review to be used must be in-
dicated In the program submission to
EPA along with a time schedule to assure
that all existing underground injections
will be reviewed within five years.
(3) Underground injection operations
that are found to endanger underground
drinking water sources shall discontinue
operation pending remedial action un-
less the Director determines that It Is un-
reasonable or impracticable to discon-
tinue operating pending remedial action.
If the Director permits an endangering
operation to continue pending remedial
action the Director shall prescribe a
compliance schedule which shall require
remedial action to be taken as soon as
practicable but not later than one year
following the determination of endan-
germent.
(b) Pending review by the Director,
underground injections must comply at a
minimum with State rules In effect on
date of proposal of the program by the
State.
(NoTE—Comment is solicited on the prac-
ticality and impact of this regulatory ap-
proach.)
§146.22 Requirement, for existing and
new underground injection..
The Director shall review data on
existing underground injections and on
proposed new underground injections to
assure that:
(a) All underground drinking water
sources of 8,000 mg/I total dlssolve4
PEDERAL REGISTER, VOL. 41, NO. 1 70—TUESDAY. AUGUST 31, 1976
-------
36740
solids or less are protected by casing
cemented to the surface;
(b) The long string is cemented with
sufficient cement to assure no migration
of Injected fluid above or below the in-
jection zone;
(C) Injection Is maintained through
tubing with a suitable packer set immedi-
atly above the Injection zone; except
that the Director may approve an al-
ternative method of protection where
compelling evidence has been presented
demonstrating that the alternative
method will prevent endangerment of
underground drinking water sources. The
Director must also offer the opportunity
for Informal public bearing.
(d) There are no leaks in the sys-
tern;
(e) Surface Injection pressure Is Urn-
Ited to preclude the possibility of frac-
turing the confining strata;
(1) All well completion and plugging
reports for wells of record penetrating
the proposed Injection zone within a two
mile radius of the proposed well Injec-
tion should be thoroughly reviewed to
insure that all wells are properly com-
pleted end/or plugged that In the judg-
ment of the Director present a potential
threat to underground drinking water
sources; and
(g) Annular Injection Is not practiced.
• 146.23 General permit procedures.
State proceduers for permits subject to
this subpart shall Insure that every ap-
plicant for a permit complies with filing
requirements to Include the following:
(a) The applicant must submit a com-
plete UIC permit application on forms
prescribed by the Director, Including
data required by 0146.24 except that If
the Director determines that the data
required Is on file with the regulatory
agency regulating the Injection under
consideration, the Director may consider
the application complete without resub-
mission of that specific data.
(b) In the case of new underground In-
jections, a complete VIC permit applica-
tion must be filed far enough In advance
at the date on which It Is desired to start
the injection to allow adequate consid-
eration of the application, and In suf-
ficient time before starting the Injection
to Insure compliance with any applica-
ble requirement under section 208(b) (2)
(K) of the FWPCA. and any other ap-
plicable regulations; and
(C) Procedures must be established
which Cl) enable the Director to require
submission of additional Information
after an application has been filed, and
(2) Insure that, if any tIC permit ap-
plication Is incomplete or otherwise de-
ficient, processing of the application
shall not be Oompleted until such time as
the applicant has supplied the missing
Information or otherwise corrected the
deficiency.
I 146.24 Application for tIC permit.
Each application for a tIC permit cov-
ered by this subpart shall include the
following information:
(a) Ownership and Location Data.
The application shall Identify the owner
and operator of the proposed under-
PROPOSED RULES
ground injection facility, and the loca-
tion of the facility.
(b) An accurate map showIng (1) loca-
tIon and surface elevation of the injec-
tion well, (II) location of all facilities,
(lii) property boundaries, and (iv) s w-
fact mineral ownership.
(C) An accurate map showing the lo-
cation of: water wells; surface bodies of
water; oil, gas, exploratory or test wells
(with depths of penetration); other In-
jection wells; mines (surface and sub-
surface) and quarries; and other per-
tinent surface features including resi-
dences, roads, bedrock outcrops, and
faults and fractures within a two mile
radius of the Injection operation.
(d) A tabulation of all wells requested
under (0) penetratIng the proposed in-
jection zone, showing operator; lease or
owner; well number; surface casing size,
weight, depth and -cementing data for
surface, Intermediate and long string
caainga ; and plugging data.
(e) Maps and cross sections Indicating
the vertical and lateral limits of aquifers
containIng 3,000 mg/I and 10,000 mg/i
TDS water quality levels, above and be-
low the injection zone and direction of
movement of the water In every under-
ground drinking water source which may
be affected by the proposed Injection.
(f) Maps and cross sections detailing
geologic structure for the local area and
generalized maps and cross sections il-
lustratIng the regional geologic setting.
(g) Description of chemical, physical,
and biological properties and characteris-
tics of the fluid to be Injected.
(N0TZ.—Comment is .ollclted on the Im-
pact of this requirement. SinCe some Infor-
natIon Involves trade secrete. how can con-
fidentiality be protected without unduly re-
straining public Involvementt(i)
(h) Volume, Injection rate and injec-
tion pressure of the fluid to be Injected.
(I) The following geological and phys-
ical characteristics of the injection in-
terval and the overlying and underlying
confining beds:
(1) Thickness;
(2) Areal extent;
(3) Lithology;
(4) Location, extent and effects of
known or suspected faulting, fracturing
and natural solution channels;
(5) ?brmatlon fluid chemistry, in-
cluding total dissolved solids; and
(6) Fracturing gradients.
(j) The following engineering data:
(1) Diameter of hole and total depth
of the well;
(2) Type, size, weight, and strength of
all casing strings;
(3) Proposed cementing procedures
and type of cement;
(4) Proposed formation testing pro-
gram;
(5) Proposed stimulation program;
(6) Proposed Injection procedure;
(7) Plans of the surface and subsur-
face construction details of the system
Including engineering drawings;
(8) Plans for monitoring both well
head and annular fluid pressure, fluids
being Injected in Injection zone and
other aquifers;
(9) Expected changes In pressure, na-
tive fluid displacement and direr’ ‘f
movement of Injected fluid; and
(10) Contingency plans to C i.
all shut-Ins or well failures to I.. t
ndangerment of underground drinking
water sources.
(k A written evaluation of alterna-
tive disposal practIces In terms of nazI-
mum environmental protection.
§ 146.25 FormulatIon of prel ’m 6 2.ry de-
termination and draft UIC permits.
(a) The Director shall prepare a preli-
mInary staff determination with respect
to a tIC permit application In advance
of public notice of the proposed Issuance
of a tIC permit. The preliminary deter-
mination shall Include at least the to!-
lowing:
(1) A proposed determination to Issue
or deny a tIC permit for the Injection
described In the tIC permit application;
(2) Name and address of the appli-
cant; name of the facility or operation
producing the contaminants to he In-
jected; site or proposed sIte of the In-
jection; and a list of the alternatives
to underground Injection which have
been considered;
(3) Proposed injection limitations for
each major parameter; and
(4) A brief description of any pro-
posed specIal conditions which will have
significant Impact upon the Injection de-
scribed In the applicatIon.
(b) The Director shall organha the
tentative determination, prepared under
(a) of this section Into a draft tIC
permit.
§ 14&26 Public nodee of props.
or denial of UIC perm . s
existing and new underground injec-
tions.
(a) The Director shall give public no-
tice of any preliminary determInation
to Issue or deny a D XC permIt.. The public
notice shall be circulated to a manner
designed to Inform Interested persona of
the proposed injection and of the pre-
liminary determination to issue or deny
a tIC permit for the proposed Injection.
At a minimum:
(1) The public notice shall be pub-
lished In a local newspaper of general
circulation;
(2) Notice shall be mailed to any per-
son or group of persons upon request;
(3) The Director shall provide a period
of not less than 30 days following the
date of the public notice, during whIch
time interested persons may submit writ-
ten comments regarding the preliminary
determination with respect to the tIC
permit applIcation. All written comments
submitted during the comment period
shall be retained by the Director and
considered In the formulation of his final
determination with respect to the D XC
permit application.
(b) The contents of public notice of
proposed Issuance or denial of tic per-
mits shall Include at least the following:
(1) Name and address of the appll-
cant and a brief description of the loca-
tion of the Injection;
(2) Nature of the applicant’s act(
or operations which result in the
FEDERAL REGISTER, VOL 41, NO. 170—TUESDAY, AUGUST 3). 1976
-------
to be injected (e.g., municipal waste
treatment plant, steel manufacturing,
drainage from mining activities);
(3) A physical, chemical, and blologi-
cal description the fluid to be Injected
and the rate and pressure of Injection;
(NoTE—Comment is solicited on the im-
pact of this requirement since some informa-
tion Involves trade secrets, flow can confi-
dentiality be protected without unduly re-
straining public involvement?)
(4) Depth and geologic name of the
Injection zone or formation:
(5) A statement of the Director’s pre-
limlnary determination to Issue or deny
the permit and a brief description of the
procedures for the formulation of final
determinations. Including the comment
period and any other means by which
Interested persons may Influence or com-
meat upon those determinations; and
(6) Name of the State agency Issuing
the public notice with address and phone
number at which Interested persons may
obtain further Information, and inspect
and copy UIC application forms and re-
lated documents.
§ 146.27 Notice to oilier go erntIIent
agencies.
The Director shall also notify other
appropriate government agencies of the
proposed Issuance of a UIC permit and
shall provide such agencies an opportu-
nity to submit their written views and
recommendations or request a public
hearing. Procedures for such notification
shall include the following:
(a) At the time of Issuance of public
notice under I 146.25. a copy of’ the
notice will be transmitted to the Director
in any other State whose waters may be
affected by the issuance of a UIC permit
and, upon request, such State will be pro-
vided with a copy of the tflC permit ap-
plication and a copy of the proposed per-
mit. Each potentially affected State may
submit written recommendations to the
Director (with copies to the Regional
Administrator(s) for the affected Re-
gIon(s) (1). The Director shall provide
the affected State or States (and the Re-
gional Administator(s)) a written ex-
planation of his reasons for falling to ac-
cept any such written recommendations;
(b) A procedure, similar to paragraph
(a) of this section, for notifying any
Interstate agency or commission having
ground-water quality control authority
over waters which may be affected by the
issuance of a permit: end
(C) A procedure for mailing a copy of
the public notice of an application for a
VIC permit to any other Federal, State,
or local agency, or any foreign country,
upon request, and providing an oppor-
tunity to respond, comment, or request a
public hearing pursuant to I 146.29. Such
agencies shall include at least the follow-
ing:
U) The agency responsible for the
preparation of an approved plan under
section 208(b)(2)(K) of the FWPCA;
and
(2) The State or Interstate agency re-
sponsible for the preparation of a plan
pursuant to an approved continuous
pl nnhig process under sectIon 303(e)
PROPOSED RULES
of the PWPCA, unless such agenry Is
under the supervision of the Director.
§ 146.28 Public hearings on existing and
new underground Injections.
(a) The Director shall provide an op-
portunity for the applicant, any affected
State, any affected Interstate agency,
any affected country, the Regional Ad-
ml nistrator, or any interested agency,
person, or group of persons to request an
informal public hearing with respect to a
TJIC permit application.
(b) The Director shall hold an in-
formal public hearing on a permit ap-
plication if he finds there Is a significant
public Interest (Including the filing of
requests or petitions for such a hearing)
In holding such a hearing. Any hearing
held under this subsection shall be held
In the geographical area of the Injection
or proposed injection, and may, as ap-
propriate, consider related groups of per-
mit applications.
§ 146.29 Public notice of hearings on
existing and new underground injec-
tions.
(a) Public notice of any hearing held
under I 146.28 shall be circulated at least
as widely as was the notice of the UIC
permit application and shall be given at
least 30 days prior to the hearing date.
(b) The contents of the public notice
of any hearing held under I 146.28 shall
Include at least the following:
(1) A brief description’ of the nature
and purpose of the hearing, Including
rules and procedures to be followed;
(2) Name and address of the applicant
whose application will be considered at
the hearing:
(3) Name of formation Into which In-
jection Is proposed, the Injection depth,
and a description of the location of the
Injection;
(4) A description of the fluid to be In-
jected and the rate and pressure of In-
jection;
(5) Nature of the applicant’s activi-
ties or operations which result In the
fluid to be injected (e.g., municipal waste
treatment plant, steel manufacturing,
drainage from mining activities);
(8) The date, tJzne and location of the
hearing;
(7) A concise statement of the Issues
raised by the person requesting the hear-
ing; and
(8) Name of the agency holding the
public hearing with address and phone
number at which interested persons may
obtain further information.
§ 146.30 DIrector action on UIC permit
applications.
After considering the application for a
permit for a new or existing underground
injection and all pertinent matters rela-
tive thereto, If the Director finds that the
applicant has demonstrated that the pro-
posed well injection will not endanger
underground drinking water sources, the
Director may Issue a permit. If the Di-
rector finds that the applicant has not
demonstrated that the proposed well In-
jection will not endanger underground
drinking water sources, the Director shall
Issue a permit under I 148.21(a) (3). The
36711
Director’s decision shall be in writing.
and a copy furnished to the applicant.
§ 146.31 Prohibited underground injee-
lion.
The Director shall insure that no per-
mit shall be issued authorllzng under-
ground injection unless the applicant can
demonstrate to the satisfaction of the
Director that such Injection will not en-
danger underground drinking water
sources.
§ 146.32 Permit conditions and other re-
quirements.
State procedures must Insure that the
terms and conditions of each issued UIC
permit comply with the following:
(a) Adherence to any applicable more
stringent limitations Including those (I)
necessary to meet both treatment stand-
ards and schedules of compliance, estab-
lished under State law or regulation, or
(II) necessary to meet other Federal law
or regulation;
(b) Allowance of no underground In-
jection of contaminants until after:
(1) The usc of appropriate techniques
for construction, operation and mainte-
nance of the injection system; and
(2) Provisions for Inspection, monitor-
ing, record-keeping and reporting of the
underground Injection operation;
(C) Allowance of no contaminant to
enter an existing or potential under-
ground drinking water source if the pres-
ence of such contaminant may endanger
such drinking water source;
(d) Adequate contingency plans to
cope with malfunctions or failure of the
underground injection system;
(e) Adequate procedures for detecting
failure of the system in a timely fashion;
(f) Provisions for such measures as the
Director finds necessary to assure the
availability of adequate financial re-
sources for dealing with underground In-
jectien systems which either are Improp-
erly abandoned or may otherwise cause
contamination of underground drinking
water sources;
(g) That all Injections authorized by
the UIC permit shall be consistent with
the terms and donditions of the permit
and that the Injection of any contam-
inant at a greater rate or pressure than
that authorized by the permit, or a vol-
ume In excess of that authorized by the
permit shall constitute a violation of the
terms and conditions of the permit;
(ii) That the permit may be modified,
suspended, or revoked In whole or In part
during Its term for cause Including but
not limited to, the following:
(1) The underground injection, endan-
gers underground drinking water
sources;
(2) ViolatIon of any material terms or
conditions of the permit;
(3) ObtaIning a permit by mIsrepre-
sentation or failure to disclose fully all
relevant facts; or
(4) A change In any condItion that
may indicate failure of the underground
Injection syst ;
U) That the perinittee shall allow the
Director or his authorized representative.
upon the presentation of appropriate cre-
dentials:
FEDERAL REGISTER, VOL. 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
36742
PROPOSED RULES
(I) To enter the permittee’s premises
in which a contaminant source or injec-
tion system Is located and In which any
records are required to be kept under
terms nd conditions of the permit;
(2) To have access to and copy records
required to be kept under terms and con.
ditloris of the permit;
(3) To Inspect the permittee’s fad—
flies, Including any monitoring equip-
ment or analytical devices; and
(4) To sample any fluids being Inject-
ed, and If sampling of the Injection zone
and other aquifers Is required by the per-
mittee wider the monitoring plan of the
permit, to also have the right to sample
those zones;
cp That the permittee at all times
shall maintain In good working order and
operate emclently facilities or systems of
control Installed by the permittee to
achieve compliance with terms and con-
ditions of the permit;
(k) That Immediately following the
permanent cessation of underground In-
jection or where a well Is not completed,
the permlttee shall notify the Director
and follow the procedures prescribed by
the Director for plugging and abandon-
ment: and
(1) That the permittee shall submit re-
ports of all remedial work actions to the
Director.
§ 146.33 MonItoring and record-keeping.
Each permittee shall keep on forms
prescribed by the Director complete and
accurate records of:
(a) All monitoring required In the
permit which will include, but not be
lim itedto:
(1) Weekly readings of the surface In-
jection pressure:
(2) Weekly readings of the tubing—
long string annulus pressure;
(3) Weekly total volume of Injected
fluid; and
(4) Weekly average injection volume
(bbls/day) (liters/day);
(b) All periodic well tests, Including
but not limited to:
(1) Water analyses;
(2) Measured or calculated bottom
bole pressure readings of the Injection
sone; and
(3) Well conditions;
(C) All shut-in periods, times conlin-
geney measures used for handling the
fluid to be injected;
(d) The permittee shafl retain, for a
period of five years. records of all in! or-
mation resulting from any monitoring
activities required by the UIC permit or
by regulation. This requirement shall
continue In effect during the five year
period following abandonment of the
well. The period of retention shall be ex-
tended ‘when requested by the Director;
and
(C) Records of monitoring activities
and results shall Include for all samples;
(1) the date, place and time of sampling;
(2) the dates analyses were performed;
(3) who performed the analyses; (4) the
analytical techniques/methods; and (5)
the result of such analyses.
§ 146.34 Repóitlng requfrescents.
(a) Each permittee shall submit at
least the following reports or notifica-
tion to the Director on fonna precribed
by the Director:
(1) NotificatIon of the Initial Injec-
tion operation within ten days of the
start-up date; and
(2) Quarterly reports which contain
the data records required by the Direc-
tor.
(b) Within ten days after the tem-
porary discontinuance of disposal op-
erations, the permittee shall notify the
Director of the date and length of such
discontinuance and the reason therefor.
The Director will prescribe appropriate
procedures to Insure that underground
drinking water sources are protected.
Subpart D—Requlrements Applicable to
Injection Wells Related to Oil and Gas
Production
§ 146.40 Underground injections to
which subpart applies,
This subpart sets forth requirements
for State programs with respect to the
underground injection of brine or other
fluids which are brought to the surface
in connection with oil or natural gas pro-
duction; and underground injection for
the secondary or tertiary recovery of oil
or natural gas.
§ 146.41 Review of existing under-
ground injections.
(a) Underground injections which
were In operation under approval by the
Director under an existing State pro-
gram before the approval of the proposed
State program under section 1422(b) of
the Act may, for a period of up to five
years. after approval, be regulated. by
rule provided such underground injec-
tions will not endanger underground
drinking water sources.
(1) The Director shall obtain data
necessary to make the determinations
required under * 146.42.
(2) The Director shall systematically
review such underground Injections to
determine that they do not endanger
underground drinking water sources.
The approach for review may be by
county, field, age of well or other sys-
tematic approach decided upon by the
Director.
The method of review to be used must
be Indicated In the program submission
to EPA along with a time schedule to as-
sure that all existing underground In-
jections will be reviewed within five
years.
(3) Underground Injections reviewed
by the Director that do not endanger
underground drinking water sources may
continue operation under a permit
Issued In compliance with 3*146.42 and
146.47. -
(4) Underground injection operations
that are found to endanger underground
drinking water sources shall discontinue
opelutlon pending remedial action un-
less the Director determines that It Is
unreasonable or Impracticable to discon-
tinue operating pending ren edlal action.
If the Director permits an endangering
operation to continue pending remedial
action the Director shall prescribe a com-
pliance schedule whleh shall require re-
medial action to be taken as soon as
practicable but in no case later than one
year following the determination of
dangerment.
(b) Pending review by the Dirt
underground Injections must comply ‘
State rules In effect on the dote of pro-
posal of the program.
(Norz.—Comment Is soilcited on the prac-
tIaalIty and Impact of this regulator ap-
proach.)
§ 146.42 Requirements for existing and
new underground injections.
(a) The Director shall review data on
existing underground Injection and on
proposed new underground Injections to
assure that:
(1) All underground drinking water
sources of 3,000 mg/i total dissolved
solids or less are protected by surface
casing cemented to the surface;
(2) Injection Is maintained through
tubing with a suitable packer set immedi-
ately above the Injection zone;
(3) The long string is cemented with
sufficient cement to assure no migration
of Injected fluid above or below the In-
Jection zone;
(4) There are no leaks In the system;
(5) Surface Injection pressure Is
limited to preclude the possibility of
fracturing the confining strata;
(6) All well completion and plugging
reports for wells of record penetrating
the proposed Injection zone within a one-
half mile radius of the proposed well In-
jection have been thoroughly reviewed
to Insure that all wells are properly com-
pleted and/or plugged that in the judg-
ment of the Director present a poten”-’
threat to underground drinking v
sources; and
(7) Annular Injection between the
lug and hole Is not practiced.
(8) Annular Injection between strings
of casing and between tubing and casing
Is not practiced; except that In specific
cases the Director may approve such
annular Injection providing: ( ) there Is
an annulus between the outer string of
casing receiving the Injection and the
surface casing which can and will be
monitored for leaks; (ii) that the sur-
face casing Is protected by cement to
the surface; and (Ill) that the Injector
demonstrates to the satisfaction of the
Director that the Injection will not en-
danger underground drinking water
sources.
(9) Annular Injection between the sur-
face casing and the next Innermost cas-
ing or between the surface casing and
the tubing, or Injection through the sur-
face casing only, Is not practiced; except
that In specific eases the Director may
approve such Injection where: (I) the
Injection was in operation prior to ap-
proval of the proposed State program
and (II) the Injector demonstrates to
the satisfaction of the Director that,
based on previous history and presenta-
tion of compelling evidence collected
through fluid InjectIon profile surveys
and/or monitoring wells that the injec-
tion has not’ endangered underground
sources of drinking water, nor will con-
tinued use endanger underground sour -
of drinking water.
(b) The Director may designate ap
areas In the State where an a1terna
method of protection to those required
FEDERAL REGISTER. VOL 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
In paragraphs (a) (1) and (2) of this
section has been used and has been dem-
onstrated to be equally effective In the
prevention of endangerment to under-
ground drinking water sources provided:
(1) A complete record or all evidence,
as well as all analyses of such evidence
relative to a designation under this para-
graph is submitted to the Administrator
upon submission of the State program
under section 1422(b) of the Act.
(2) All Injection wells located In the
designated area and the alternative to be
used are identified as a part of the sub-
mission to the Administrator. Such des-
Ignatlons are subject to the approval of
the Administrator and the public hearing
requirements of I 146.10(g) and 146.14
(a). If an area Is to be designated after
approval of the State program the pro-
cedure contained In this paragraph must
be followed.
(C) The Director may approve an al-
ternative method of protection for a
specific well or Injection in lieu of those
required In paragraphs (a) (1), (2). and
(3) provided:
(1) The injector can demonstrate to
the Director with written compelling evi-
dence that that specific requlrem it
wouid interfere with or impede oil and
gas production from the production
well(s) serviced by that specific injec-
tion well:
(2) The Injector can demonstrate to
the Director with written compelling
evidence that that specific requirement
Is not essential to prevent endangerment
to underground drinking water sources
resulting from that specific injection;
(3) The Injector provides a written
assessment of the alternative method of
protection to be used; and
(4) The Director provides the oppor-
tunity for Informal public hearing on
that specific well or injection.
(Norz.—Comment Is solicited on the ade-
quacy of these requirementa In preventing
endangerment to underground drinking
water sources, and of the Impact on existing
wells.)
146.43 Public notice of proposed issu-
ance or denial of UIC permits for
existing and new underground Injec-
tions.
(a) The Director shall give public
notice of the intent to issue or deny
WC permits for those existing and new
underground injections reviewed under
ft 146.41 and 148.47. The public notice
may contain more than one under-
ground injection facility. The approach
may be sI,, 1nv to that in I 146.41 (a) (3).
The public notice shall be circulated in
a manner designed to inform Interested
persofis of the proposed Injection and of
the determination to issue or deny a
mc permit for the proposed Injection.
Procedures for the circulation of public
notices shall include at least the follow-
ing:
(1) Notice shall be circulated within
the geographical area of the proposed
Injection by publication In a local news-
paper of general circulation;
(2) Notlceshaflbe mailed to any per-
son or group upon request;
PROPOSED RUlES
(3) The Director shall provide a pe-
riod of not less than 30 days following
the date of the public notice, during
which time interested persons may sub-
mit written comments regarding the
determination to Issue or deny the UIC
permit for an existing underground in-
jection. All written comments submitted
during the 30 days comment period shall
be retained by the Director and con-
sidered in the formation of his final
determination with respect to the mc
permit application.
(4) The Director shall provide a pe-
riod of not less than 14 days following
the date of the public notice, during
which time Interested persons may sub-
mit written comments regarding the
determination to Issue or deny the mc
permit for new underground injections.
All written comments submitted during
the 34 days comment period shall be
retained by the Director and considered
in the formation of his final determina-
tion with respect to the UIC permit ap-
plication.
(b) The contents of public notice of
Issuance or denial of WC permits shall
include at least the following:
(1, Ownership and location data.
- (I) Operator of injection well or proj-
ect; and
(H) Location by geographic area, or
section. township, and range.
(2) Engineering Data.
(I) Purpose of Injection (Disposal, Re-
covery):
(11) Estimated volume and type of
fluid to be injected (by lease, pool, field
or other suitable means); and -
(iii) Number of injection wells.
(3) Depth and geologic name of the
Injection zone or formation;
(4) A statement of the Director’s de-
termination to issue or deny the permit
and a brief description of the procedures
for the formulation of final determina-
tions, including the comment period and
any other means by which interested
persons may influence or comment upon
those determinations; and
(5) Name of the State agency issuing
the public notice with address and phone
number at which Interested persons may
obtain further Information, and inspect
and copy WC application forms and re-
lated documents.
§ 146.44 Notice to other government
agencies.
The Director shall also notify other
appropriate government agencies of the
proposed issuance of a mc permit and
shall provide such agencies an opportu-
nity to submit their written views and
recommendations or request a public
hearing. Procedures for such notifica-
tion shall Include the following:
(a) At the time of Issuance of public
notice under 1146.43, a copy of the notice
will be transmitted to the Director In any
other State or Territory whose waters
may be affected by the Issuance of a
mc permit and, upon request, such State
will be provided with a copy of the mc
permit application and a copy of the pro-
posed permit. Each potentially affected
State or Territory may submit written
36743
recommendations to the Director (with
copies to the Regional Administrator(s)
for the potentially affected Region(s)).
The Director shall provide the affected
State or States (and the Regional Ad-
ministrator(s)) a written explanation of
his reasons for failing to accept any such
written recommendations;
(b) A procedure, 51m1i r to paragraph
(a) of this section, for notifying any in-
terstate agency or commission having
ground-water quality control authority
over waters which may be affected by
Issuance of a permit; and
(c) A procedure for mailing a copy of
the public notice of an application for a
mc permit to any other Federal, State,
or local agency, or any foreign country,
upon request, and providing an oppor-
tunity to respond, comment, or request a
public hearing under 1 146.48. Such
agencies shall Include t least the fol-
lowing:
(1) The agency responsible for the
preparation of an approved plan under
section 208(b) (2) (K) of the FWPCA. and
(2) The State or Interstate agency re-
sponsible for the preparation of a plan
pursuant to an approved continuous
planning process under section 303(e) 0!
the FWPCA, unl(ss such agency Is under
the supervision of the Director.
§ 146.45 PublIc hearing, on existing and
new underground injections.
(a) The Director shall provide an op-
portunity for the applicant, any affected
State, any affected Interstate agency,
any affected country, the Regional
Administrator, or any Interested agency,
person, or group of persons to request an
Informal public hearing with respect to a
tnc permit application.
(b) The Director shall hold an in-
formal public hearing on a permit ap-
plication if he finds there Is a significant
public Interest (including the filing of
requests or petitions for such hearing)
in holdIng such a hearing: Any hearing
held under this subsection shall be held
In the geographical area of the Injection
or proposed injection, and may, as ap-
propriate, consider related groups of per-
mit applications.
§ 146.46 Public notice of hearings a.
existing and new underground injec-
tions,
(a) At least 14 days prior to a public
hearing held under 1146. ’45, the Direc-
tor shall give notice of such hearing by
publication In a newspaper of general
circulation WithIn the geographical area
of the proposed Injection and shall set
forth the following:
(1) Ownership and location data.
(i) Operator of Injection well or proj-
ect; and
(ii) The location of the Injection well
or project by section, townshIp and
range, or by a location from the nearest
village or town, or In such other n anne
as will identify the geographical area
Involved.
(2) EngIneering Data.
(i) Purpose of Injection (disposal, ze-
covery);
(II) Volumeandtypeoffluldtobe ln.
jected; and
FEDERAL REGISTER. VOL. 41, NO 170—TUESDAY, AUGUST 31, 1976
-------
36744
(lii) Number of Injection weDs In-
vctved;
(3) Depth and geologic name of the
Injection zone or formation;
(4) A concise statement of the Issues
raised by the person requesting the hear-
(5) The name of the agency Issuing
the notice and the date, time, and loca-
tion of the hearing;
(b) The Director shall further supply
the information set out above to each
State, interstate or Federal agency and
to each person or group of persons ex-
pressing an Interest in the permit to be
considered at a hearing.
146.47 Application for UIC permit for
a new underground injection.
An application for a UIC permit for a
new underground injection shall be filed
with the Director on forms prescribed by
the Director.
(a) The application form for any new
underground Injection shall Include the
following:
(1) OwnershIp and Location Data.
The application shall Identify the owner
and operator of the proposed under-
ground injection facility, and the loca-
tion of the facility;
(2) Engineering Data.
(I) A detailed casing and cementing
program, or a schematic showing: d l-
aineter of hole, total depth of well and
ground surface elevation; surface, con-
ductor, and long string cuing size and
weight, setting depth, top of cement,
method used to determine top; tubing
size, and setting depth, and method of
completion (open hole or perforated);
(II) A map showing name and loca-
tion of all producing wells, Injection
wells, abandoned wells, dry holes, and
water wells of record within a one-half
mile radius of the proposed Injection
well; and
(iii) A tabulation of all wells re-
quested under (11) penetrating the pro-
posed injection zone, showing: opera-
tor; lease; well number; surface cuing
size and weight, depth and cementing
data; intermediate casing size and
weight, depth and cementing data; long
string size and weight, depth and Ce-
menting data; and plugging data.
(Non—Comment le solicited on other
way. to demonstrate non-endangerment
om wells penetrating the proposed injec-
lion zone where it Is possible that the wells
may be an open connection to an under-
ground drinking water source)
(3) OperatIng Data.
(I) Depth to top and bottom of injec-
tion zone;
(U) Anticipated daily Injection vol-
ume, minimum and maximum, in barrels;
(iii) Approximate injection pressure;
and
(lv) Type, source and characteris-
tics of injected fluids.
(4) Geologic Data—Injection Zone.
Appropriate geologic data on the Injec-
tion zone and confining beds including
such data as geologic names, thickness
and areal extent of the zone.
(6) Underground Sources of Drink-
ing Water Which May be Affected by the
PROPOSED RULES
Injection. Geologic name and depth (be-
low land surface) of aquifers above and
below the injection zone contQh tng
water of 3,000 mg/i total dissolved solids
or lass and aquifers cpntalnlng water of
10,000 mg/i total dissolved solids or less.
(6) An electric log on all new wells
and on existing wells where available.
(b) The Director may request any of
these additional data necessary to make
the determinations required In 146.41.
(1) Engineering Data.
(1) Method to determine rate of cor-
rosion;
(ii) Cement bond log;
(iii) List of all cement squeeze oper-
ations, giving Interval and number of
sacks of cement;
(2) Operating Data.
(i) Whether open or closed system;
(ii) Contingency plans to cope with
a11 shut-Ins or well failures;
(3) Geologic Data—Regional Struc-
ture. Location, extent and effects of
known or suspected faulting, Indicating
whether faults are sealed or fractured
avenues for fluid movement;
(4) Underground Sources of Drinking
Water. Lithology of aquifers defined as
underground sources of drinking water;
(5) Any surface retention facilities as-
sociated with the Injection operation;
(6) Reservoir and Fluid Data on En-
tire Reservoir.
Ci) Lithology;
(ii) Original and current bottom bole
pressure;
(7) Reservoir and Fluid Data on Lease.
(I) Average horizontal permeability;
(ii) Average porosity;
(8) Production history of reseyvoir;
(9) Type of Injection project and re-
sults expected; and
(10) Injection pattern and spacing.
§ 146.48 PermIt conditions and other as-
quiremenhs.
State procedures must Insure that the
terms and conditions of each Issued UIC
permit including each permit for an ex-
isting underground Injection, comply
with the following:
(a) Adherence to any applicable, more
stringent limitations Including those
(I) necessary to meet treatment stand-
ards, or schedules of compliance, estab-
lished pursuantto State law or regula-
tion, or (II) necessary to meet other Fed-
eral law or regulation;
(b) Allowance of no underground in-
jection of contaminants until alter:
(1) The use of appropriate techniques
for operation and maintenance of the
Injection system; and
(2) Provisions have been completed
for inspection, monitoring record-keep-
ing and reporting of the underground
injection operation;
Cc) Allowance of no contaminant to
enter an underground drinking water
source U the presence of such contasni-
ziant may endanger such drinking wa-
ter source;
(d) Adequate contingency plans to
cope with malfunctions or failure of the
underground injection system;
Ce) Adequate procedures for detecting
failure of the system in a timely fashion;
Cf) Provisions for such measures as
the Director finds necessary to assure
the availability of adequate flnane’
sources for dealing with undergroi
jection systems which either are is
erly abandoned or may otherwise Cc...
contamInation of underground drinking
water sources;
(g) That all injecuops authorized by
the UIC permit shall be consistent with
the terms arid conditions of the permit
and that the Injection of any contami-
nant at a greater rate of pressure than
that authorized by the permit, or a vol-
ume in excess of that authorized by the
permit shall constitute a violation of the
terms and conditions of the permit;
(Ii) That the permit may be modified,
suspended, or revoked in whole or In
part during Its term for cause Including
but not limited to, the following:
(1) The underground Injection endan-
gers underground drinking water sourc-
es;
(2) Violation of any material terms
or conditions of the permit;
(3) Obtaining a permit by misrepre-
sentation or failure to disclose fully all
relevant facts; or
(4) A change in any condition that
may Indicate failure of the underground
injection system;
Ci) That the permittee shall allow the
Director or his authorized representative,
upon the presentation of appropriate
credentials:
(1) To enter permittee’s premises In
which a conthn hiant source or Injection
system Is located and in which any
records are required to be kept u”
terms and conditions of the permIt
(2) To have access to and copy r
required to be kept under terms and. -
ditioris of the permit;
(3) To inspect the permittee’s facili-
ties, Including any monitoring equip-
mentor analytical devices; and
(4) To sample any fluIds being inject-
ed and if sampling of the Injection zone
and other aquifers is required by the
permittee under the monitoring plan of
the permit, to also have the right to sam-
ple these zones;
(3) That the permittee at all times
shall maintain In good working order and
operate efficiently the facilities or sys-
tems of control Installed by the permittee
to achieve compliance with terms and
conditions of the permit;
(k) That Immediately following the
permanent cessation of underground In-
jection or where a well is not completed
the applicant shall notify the Director
and follow the procedures prescribed by
the Director for plugging and abandon-
ment; and
(1) That the permittee shall report all
remedial work to the Director.
I 146.49 MonItoring and reeoid.keep..
leg.
Each permittee shall keep on forms
prescribed by the Director complete and
accurate records of:
(a) All monitoring required In the per-
mit which will Include, but not be Ur’
to:
FEDERAL REGISTER VOL. 41, NO. 170—TUESDAY, AUGUST 31, 1976
-------
PROPOSED RULES
36745
(1) Weekly readings of the surface In-
jection pressure;
(2) Weekly readings of the tubing—
song string annulus pressure;
(3) Weekly total volume of Injected
uld; and
(4) Weekly average Injection volume
(bbls/day) (liters/day);
(b) All periodic well teats, including
but not limited to:
(1) Water analyses; and
(2) Well conditions;
(C) The permittee shall retain, for a
period of five years, records of all Infor-
mation resulting from any monitoring
activities required by the tIC permit or
by regulation. This requirement shall
continue in effect during the five-year
period following abandonment of the
well. The period of retention shall be ex-
tended when requested by the Director;
and
(d) Records of monitoring activities
and results shall Include for all samples;
(1) the date, place and time of sampling;
(2) the dates analyses were performed;
(3) who performed the analyses; (4) the
analytical techniques/methods; and (5)
the results of auth analyses.
§ 146.50 ReportIng requirements.
(a) Each permittee shall submit at
least the following reports or notification
to the Director on forms prescribed by the
Director:
(1) NotIfication of th Initial Injection
operation within ten days of the start-
update; and
(2) Quarterly reports which contain
the data records required by the Director.
(b) Within ten days after the tern-
orary discontinuance of disposal op-
rations the permittee shall notify the
Director of the date and length of such
discontinuance and reason therefor. The
Director will prescribe appropriate pro-
cedures to insure that underground
drlnkftW water sources are protected.
Subpart E Requlram.nte Applicable to All
Drainage Wells
§ 146.70 Underground Injections to
which subpart applies.
This subpart sets forth requirements
for State programs with respect to drain-
age wells used. Underground Injections
covered by this subpart include Injec-
tions to dispose of storm water runoff.
Irrigation return flow, and excess ponded
surface waters.
§ 146.71 ReguLation by rule or permit.
A State program may regulate any
category of underground injection cov-
ered by this subpart by rule or by per-
mit system, at the option of the State.
§ 146.72 Regulation by permit.
If a State elects to regulate a category
of underground Injection covered by this
subpart by permit, the permit require-
ments must Include, as a minimum:
(a) That the applicant for the permit
to inject must provide such Information
as the State may require regarding lo-
cation and design of the facility, nature
and volume of the fluid to be Injected,
and such other information as may be
necessary to satisfy the State that the
underground injection will not endanger
underground drinking water sources.
(b) That the Director will give public
notice and provide opportunity for com-
ment and Informal public hearing In
cases where the Director determines
that the application raises substantial
question of possible endangerment of
underground drinking water sources.
(C) That permits Issued will be condi-
tioned on compliance with specified in-
spection, monitoring, record-keeping
and reporting requirements.
§ 146.73 Regulation by rule.
If a State elects to regulate a cate-
gory of underground injection covered
by this subpart by rule, the State regu-
lations applicable to that category shall
provide, but not be limited to, the
following:
(a) That no underground injection
that endangers underground drinking
water sources Isauthorized;
(b) A mechanism for determinfrig the
nature and extent of the underground
Injection activity in the State:
(c) A mechanism for insuring that
periodic testing Is conducted and teat
records are maintained In appropriate
cases: and
Cd) That design, location or construc-
tion of underground Injection facilities
that would be Inconsistent with good
practice for the protection of under-
ground drinking water sources Is ‘pro-
hibited.
§ 146.74 Remedial action.
Underground injection operations
that are found to endanger underground
drinking water sources shall discontinue
operation pending remedial action nil-
less the Director determines that it ii
unreasonable or impracticable to dis-
continue operating pending remedial ac-
tion. If the Director permits an endan-
gering operation to continue pending re-
medial action, the Director shall pie-
scribe a compliance schedule which shall
require remedial action to be taken as
soon as practicable but In no case later
than one year following the determina-
tion of endangerment.
(FR Doc ‘16—24700 Filed 8—3O—76;8:45 amj
FEDERAL REGISTEE, Vat. 41, NO. 170—TUESDAY. AUGUST I I , 1976
-------
2
-------
MONDAY,
AUGUST 21, 1978
PART II
ENVIRONMENTAL
PROTECTION
AGENCY
U
NATIONAL POLLUTANT
DISCHARGE ELIMINA-
TION SYSTEM
Proposed Revision of Existing
Regulations
= =
-------
37078
PROPOSED RULES
(6 l]
NV1RONMENTAL PROTECTION
AGENCY
14001 ParN 6, 123, 123, 124, 1251
(PRL 91241
NATIONAL POLLUTANT DISGIARGI
EUMINAT1ON SYSISM
1.vI.I.n of ExWing 1.gul.Hsns
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: This rule extensively re-
vises the existing regulations govern-
Ing the National Pollutant Discharge
Elimination System (NPDES) program
for three purposes:
(1) To clarify and improve existing
program regulations and procedures in
light of past experience;
(2) To fill in significant gaps In cov-
erage under the existing regulations,
particularly in response to court deci-
sions and the emerging emphasis on
the control of toxic and hazardous pol-
lutants; and
(3) To make the regulatory changes
which are necessary under the 1977
amendments to the Clean Water Act.
The existing NPDES regulations will
remain in effect until the effective
date of these revised regulations.
DATES: Comments must be received
on or before October 20. 1978. Two
meetings open to the public to discuss
and receive comments on the proposed
regulations, are scheduled for the fol-
lowing times and places: September 19,
1978—1 to 5 p.m. and 7 to 10 p.m.—
Washington. D.C. September 21.
1978—1 to 5 p.m. and 7 to 10 p.m.—San
Francisco, Calif.
ADDRESSES: Interested persons may
participate In this proposed rulemak-
ing by submitting comments to
Edward A. Kramer, Permits Division
(EN Office of Water Enforce-
ment, Environmental Protection
Agency, 401 M Street SW., Washing-
ton, D.C. 20460. Due to the length of
the proposed regulations, all com-
ments should be organized by page
and section number.
A copy of all public comments will
be available for inspection and copying
at EPA Public Information Reference
Unit, Room 2922 (EPA Library), 401 M
Street SW., Washington, D.C. 20460.
The EPA information regulation (40
CFR Part 2) provides that a reason-
able fee may be charged for copying.
Two open meetings to discuss and re-
ceive comments on the -proposed regu-
latlons, are to be held at the following
addresses:
September 19, 1978—1 to 5 p.m. and
7 to 10 p.m—GSA AudItorium, 18th &
F Streets NW.. Washington, D.C.
20001. (For information concerning
the Washington, D.C. meeting contact
Edward £ Kramer at address shown
above.)
September 21, 1978—1 to 5 p.m. and
7 to 10 p.m—EPA, Region IX, 6th
Floor Conference Room, 215 Premont
Street. San Francisco. CalIf. 94105.
(For further Information concerning
the San Francisco meeting contact
Rick Hoffman, EPA, Region IX,
Office of External Relations, 215 Pie-
mont Street, San Francisco, Calif.
94105, Telephone No. 415-556-6895.)
FOR FURT Ic INFORMATION
CONTAC1
Edward A. Kramer (EN-336), Office
of Water Enforcement Environmen-
tal Protection Agency, Washington,
DC. 20460. 202-755-0750.
SUPPL TARY INFORMATION:
B*cxoaow n
The Federal Water Pollution Con-
trol Act Amendments of 1972 estab-
lIshed the National Pollutant Dis-
charge 1imITIatlon System (NPDES)
permit program. Shortly after, in De-
cember 1972 and May 1973. EPA pro-
mulgated regulations outlining the
NPDES program In two parts. Part
124 established substantive require-
ments for approved State NPDES pro-
grams. while part 125 established the
similar requirements of the EPA
permit program. These two parts
remain the core of the NPDES regula-
tions to date, although various other
parts of title 40 are applied or involved
in the Issuance of permits, e.g., 40
CFR Part 6.9 (new sources); 40 CFR
part 122 (section 316(b) determIna-
tions); 40 CFR Part Part 123 (State
certification): 40 CPR. 402 (section
316(a) determInations).
In 1977, a new phase of the NPDES
program began, prompted by several
developments. First, five years of ex-
perience with dlschargers, approved
NPDES States, and the courts had
been gained. Second, the “first round”
of NPDES permits, issued for a term
of five years, were beginning to expire.
Third, a major statutory deadline
(July 1. 1977) had passed; and the 1983
deadline for achievement of more
stringent treatment requirements
became the new program goal, along
with an increased ernphsis on the con-
trol of toxic and hazardous pollutants.
In late 1977, Congress enacted the
Clean Water Act amendments of 1977,
making several significant changes in
the scpe and direction of the NPDES
program. These changes include: Revi-
sions of the 1983 treatment require-
ments for industrial dlschargers; ex-
tensions of the 1977 treatment dead-
line for certain municipal and industri-
al discbargers; the establishement of
certain variances from techgnology-
based treatment requirements; recog-
nition of the Consent Decree in NRDC
v. TraIn, 8 ERC 2120 (D.D.C. 1976); rr-
quirernents for best management prac-
tices in certain industrial permits; pro-
visions for control of sewage sludge
disposal; provision for EPA issuance of
State permits, to which there have
been objections; and authorization of
State assumption of the permit pro-
grams under sections 318, 404, and 405.
In addition to the need for regula-
tion revisions to address these major
developments, the present regulations
must be amended and reorganized be-
cause they have become unwieldy. On
one hand, much needless duplication
between the basic substantive and pro-
cedural requirements for State and
Federal NPDFS programs withIn the
current regulations can be eliminated.
Under the proposed regulations, the
basic substantive and procedural re-
quirements applicable to all permits
would be set forth In parts 122 and
124, respectively, and cross-referenced
In part 123, which establishes State
Permit Program Requirements. EPA
believes that this new structure will
help to simplify the regulations for
use by perinlttees, the States, and the
public, and will avoid inconsistencies
between State and Federal programs.
On the other hand, parts of the ex-
isting NPDES regulations are either
too terse to provide meaningful guid-
ance, or leave significant permit-relat-
ed issues unaddressed. For example, in
many situations the existing regula-
tions governing adjudicatory hearings
provide inadequate assistance or direc-
tion to presiding officers or the par-
ties. Based upon several years of expe-
rience accumulated by EPA in con-
ducting these hearings, the proposed
regulations for part 124 provide more
detailed procedures better tailored to
result in responsible, informed permit
issuance decisions. Similarly, and for
the same purpose, the proposed regu’.
lations for parts 122 and 125 provide
guidance on substantive questions I or-
merly unaddressed In regulations.
Accordingly, four new parts of title
40, incorporating all of existing parts
122, 123,, 124, 125 and 402, as well as
portIons of § 6.900. have been estab-
lished as follows:
Part 122 National Pollutant Discharge
Elimination System.
Part 123 State Permit Program Require-
nients.
Part 124 Procedures for the National P01-
lutant Discharge Elimination System.
Part 125 Crltena and Standards for the
National Pollutant Discharge Elimination
System.
The contents of each of these pro-
posed Parts Is described below:
L PART 122—NATIoNAl. POLLUTANT
DISCHARGE ELIMINATION SYSTEM
A. WHAT DOES THIS PART DO’
Proposed part 122 establishes the
basic “program definition” of the
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37079
NPDES, whether administered by
EPA or an appr3ved Slate. The Part
covers the full range of substantive
program requirements, spelling out in
detail who must apply for a permit;
how a permit Is Issued; what terms.
conditions, and schedules of compli-
ance must be Incorporated Into per-
mite; when and how monitoring and
reporting of permit compliance must
be performed; when permits may be
revised or reissued; and what special
requirements apply to certain types of
discharges.
B. HOW DOES THIS PART RELATE TO
EXISTIRG REGuLATIoNs?
Existing regulations contain sepa-
rate NPDES program definitions for
approved States (40 CFR Part 124)
and for EPA (CFR Part 125). Since
the NPDES envisions a minimum level
of regulation that Is nationally con-
sistent, the majority of provisions
under existing parts 124 and 125 duplI-
cative. To eliminate this duplication,
the NPDES program requirements ap-
plicable to both EPA and approved
States have now been consolidated
Into one set of regulations in proposed
part 122. The process for approval of a
State program to administer the
NPDES. however, has been proposed
as a separate part (see part 123 below),
which cross-references the substantive
requirements of proposed part 122.
C. WHAT CHANGES RAVE BEEN HADE BY
THIS PART?
The proposed part 122 regulatIons
have been revised to reflect significant
developments since the NPDES pro-
gram began. Furthermore, provisions
of existing regulations have been reor-
ganized and rewritten. New regula-
tions have been proposed where exist-
lng regulations do not adequately ad-
dress the requirements of the Act.
(I.e .. where court decisions have al-
ten.d aspects of the NPDES program,
where ‘EPA guidance for administra-
tion of the NPDES program was not
previously Incorporated Into regula-
tions, and where experience In admin-
istering the program has highlighted
gaps In regulation). Finally, certain re-
visions have been made to conform the
NPDES program to provisions of the
Clean Water Act of lOlL
Other than language clarifications,
the significant revisions contained In
part 122 are as foflows:
1. § 122.3 DefinItions. For clarity.
definitions have been added for “ap-
proved State programs”, “best man-
agement pratices,” ‘Indirect discharg-
er,” “new discharger,” “New Source
and Environmental Questionnaire”,
“permit program forms,” “Secretary”
and “variance.”
The definitions of “application” and
“permit” have been revised to indicate
that the uniform EPA forms need not
be used by approved States, but the
States must have substantialy similar
forms approved by EPA.
The term “applicable standards and
limitations” now Includes best man-
agement practloes.
The definitions “Director” and “Re-
gional Administrator” have been re-
vised to include their delegated repre-
sentatives.
The definition of “navigable waters”
has been revised to more accurately
reflect which waters are subject to the
requirements of the Clean Water Act.
Consistent with legislative history, ju-
dicial Interpretations, and long-stand-
ing EPA policy, the term covers all
waters which may be regulated by the
Federal Oovernment within constitu-
tional limits, Including but not limited
to wetlands, Intermittent streams, and
Impoundments.
The definition of “person” has been
revised to Include Federal agencies, in
accordance with the 1977 amendments
to sectIon 313 of the Clean Water Act.
The definition of “new source” clari-
fies that a discharger may be a new
source where construction Is com-
menced before promulgation of an ap-
plicable new source performance
standard only 11: (1) ConstructIon fol-
lows the proposal of such standards
and (2) fInal standards are promulgat-
ed within 120 days of proposal, as con-
templated by sectIon 306(b) of the Act.
Other dlschargers commencing con-
struction after the proposal of applica-
ble standards are not new sources, but
may be entitled to the new source
“protection period” under section
306(d) and proposed { 122.47.
2. §122.4 Exclusions. The listing of
dlschargers not requiring an NPDE8
permit has been revised to:
Clarify that the exclusion of sewage
from vessels does not extend to vessels
operating as energy, mining, or sea-
food processing facilities or to secured
vessels used for mineral or oil explora-
tion or development. It Is EPA’s posi-
tion that vessels of these sorts, not
used for the primary purpose of trans-
portation, were not intended by Con-
gress to be excluded from NPDES cov-
erage by the mere fact that they are
operating In or on water.
Clarify that certain discharges of
dredged or fill material are subject to
the NPDES program rather than the
section 404 permIt program. Consist-
ent with regulations promulgated by
the U.S. Army Corps of Engineers to
govern the sectIon 404 permit pro-
gram, these discharges are subject to
the NPDES program U their primary
purpose Is the disposal of waste mate-
rials rather than changing the bottom
elevation of a water body.
Reflect the exclusion of Irrigation
return flows under the 1971 amend-
ments to sectIons 402(1) and 502(14) of
the Act. Irrigation return flows are
non-point sources under section
208(bX2)(F) of the Act. However, irri-
gation return flows (now defined In 40
CFR 125.52(a)(1)) do not Include flows
from land used for crop production
which are not return flows from Irriga-
tion. For Instance, any system which Is
used for backpumplng of stormwater,
or which carries discharges from activ-
ities unrelated to crop production may
be a point source subject to NPD
permit requirements.
Clarify that neither State regulation
of the excluded areas nor the Issuance
of joint permits (combining require-
ments of NPDES with those of other
permit programs) Is precluded.
5. § 122.5 Signatories to permit pro-
groins forms. This section has been re-
vised to require that all signatories for
permit program forms represent that
they have made sufficient Inquiries to
certify the veracity of any statements
made In the forms. Further, forms
submitted or agreed to by a corpora-
tion must be signed by a principal ex-
ecutive officer or at least the level of
vice-president.
4. § 122.12 Duration and trans/era.
bilit of permits. This section clarifIes
past uncertainties as to when and how
a permit, with Its accompanying re-
sponsibifitles and coverage, may be
transferred. In particular, the permit
IssuIng authority must agree to any
transfer and may always reject the
transfer In favor of a new application.
5. § 122.14 Conditions applicable to
all permits. the conditIons set out In
this section constitute the permit “boi-
lerplate”; they are binding on all per-
mittees whether or not they are ex-
pressly Incorporated Into the permit.
a. The permit as a limited authoriza-
tion to discharge. Most significantly,
under this section a permlttee would
be limited to the pollutant discharge
levels reported in Its application where
the pollutant Is not otherwise limited
In the permit. A permittee would be
prohibIted from discharging any pol-
lutant for which information was re-
quested In the application U. in re-
sponse. no discharge was detected or
no Information was reported. While
this requirement may pose technical
and economic difficulties in some In-
stances, past uncertainties concerning
the scope of the permit’s authoriza-
tion to discharge require such a clarif I-
cation.
A revised permit application form is
now being developed to implement
this requirement One approach being
considered Is to require applicants to
characterize the amount and nature of
all pollutants In each waste stream as
completely as currently available ana-
lytical methodologies allow. This ap-
proach Is consistent with concern re-
cently expressed by Congress that
EPA nad NPDES States should con-
centrate upon Identifying and control-
FEDSIAL SEGIS1IR, VOL. 43 NO. H2—MONDAY, AUGUST 21, im
-------
37080
PROPOSED RULES
llng all toxic and potentially toxic pol-
lutants being discharged into the Na-
tion a waterways.
Additionally, in light of comments
solicited on this point (42 FR 05209,
December 30, 1977), EPA is consider-
tag an alternative approach In the
permit application form. Under this
approach, Information will be sought
at a minimum, for conventional pollut ..
ants listed under section 304. toxic p01-
lutants listed under section 307. cer-
taIn nonconventional end nontoxic
pollutants, hazardous pollutants under
section 311, and pollutants for which a
primary standard Is promulgated
under the Safe Drinking Water Act.
To help mlntmfre the Impact of this
second approach, EPA Is developing
appropriate test methods, taking cost
Into account. Mechanisms may be de-
veloped to use blomonitoring tech-
niques or to use “indicator pollutants”
to help reduce compliance monitoring
costs in some cases. In addition, crite-
ria may be developed to determine the
practical extent of testing and moni-
toring that should be required of each
source, depending on the volume of
the discharge, the relative toxicity of
the waste stream, and other factors.
Comments are solicited on these two
approaches, Including the question of
whether the second alternative above
accomplishes the necessary degree of
pollution control, Comments concern-
ing the problem areas EPA guidance
should address, and the test methods,
screening mechanisms, and methods
for applying these requirements are
also welcomed.
b. Bypass and upset. The listing of
conditions that are applicable to all
NPDES permits has also been revised
to allow a permittee to make certain
demonstrations justifying permit non.
compliance for: (1) Bypass or diversion
of wastes from any portion of the
treatment facilities and (2) exceedence
of pe inlt effluent limitations due to
factors beyond the reasonable control
of the perinittee (i.e., upset). See Mar-
athon Oil Co. v. EPA, 564 F. 2d 1253
(9th CIr. 1977). Bypass may be permis-
sible where necessary to prevent loss
of life, serious injury, or severe proper-
ty damage, and when there are not
feasible alternatives to bypass. Simi-
larly, upset shall be an affirmative de-
fense to an action brought for non.
compliance with permit effluent limi-
tations If the permittee can demon-
strate that the cause-of the upset was
In fact beyond the control of the per-
mittee. despite proper facility design,
operation, and maintenance. In the
case of either bypass or upset, the
permit Issuing authority must be noti-
fied by the permittee and Is solely re-
sponsible for a determination concern-
ing the acceptability of the bypass or
upset. EPA believes that this approach
to permit noncompliance is closely dr.
cumscrlbed to provide fair treatment
In instances of excusable noncompli-
ance by permittees, while ensuring
proper pollution control through ade-
quate design operation and mainte-
nance of treatment facilities.
6. § 122.15 ApplIcable Umitations,
standards, prohibitions and condi-
lions. Section 12245 provides that the
applicable regulations and require-
ments for NPDES permit Issuance are
those which are in effect prior to the
effective date of State Issued permit,
or prior to the Issuance of an EPA
permit under 40 CFR 124.61(b) (i.e.,
prior to any evidentiary hearings).
This provision Is consistent with the
decision of the Administrator In the
Matter of U.S. Pipe and Foundry Co.,
NPD Appeal No. 75-4 reprinted In
EPA, Decisions of the Administrator
and Decisions of the General Counsel,
V. I at 110 (1975), The Administrator’s
views on this Issue were adopted by
the Fifth Circuit in Alabama en reL
Baxleij v EPA. 557 P.2d 1101 (5th Cir.
1977).
The general rule laid down In U.S.
Pipe and foundry is appropriate in
most cases of NPDES permit issuance.
However, because of the structure of
the Federal permit issuance process,
there are likely to be some cases In
which strict application of the rule
will yield unsatisfactory results. For
example, if a permit Is issued under 40
CFR 5124.61(b) based on a case-by-
case determination of treatment tech-
nology under section 402(a)(1) of the
Act prior to promulgation of effluent
limitations guidelines, a discharger
may seek an evidentiary hearing. If
applicable effluent limitations guide-
lines are promulgated while the hear-
ing request is pending but before the
hearing has been held and evidence in-
troduced, it may weli be appropriate to
apply those effluent limitations to the
permittee. The application of the
newly promulgated limitations could
narrow the scope of the evidentiary
hearing and ensure equal treatment of
dlschargers, and would not, in most In-
stances, prejudice the discharger. Con-
sequently. 40 CFR 124.86(c) of these
regulations authorize the Presiding
Officer to require the application of
the subsequently Issued regulations to
the permittee. Where necessary, the
Presiding Officer would have the au-
thority to certify this decision for in-
terlocutory review by the Administra-
tor under 40 CFR 124.90 of these regu-
lations.
The listing of terms and conditions
that must be placed in NPDES permits
where appropriate has been revised:
To clarify when permit limits in ad-
dition to or more stringent than tech-
nology-based effluent limitations or
standards are required. Such limits are
required:
(a) To incorporate conditions, limita-
tions or requirements Into a new
source permit under the National En-
vironmental Policy Act, where EPA Is
the permitting authority;
(b) To incorporate more stringent
limits based upon a fundamentally dif-
ferent factors variance under proposed
40 CFR Part 125, Subpart E;
(c) To establish, on a case-by-case
basis, -technology-based limitations
controlling pollutants not included in
promulgated effluent guidelines or
standards, especially If necessary to
protect downstream water supplies or
to address ambient levels of the pollut-
ant;
To require operating measures and
practices to control the discharge of
pollutants where reasonably necessary
to achieve effluent llmlt ,ations and
standards or where numerical effluent
limitations are infeasible;
To require permits to publicly owned
treatment works to contain pretreat-
ment requirements in accordance with
new sections 307(b)(1) and 402(b)(8) of
the Clean Water Act.
To require a newly issued permit to
contain limitations, standards or con-
ditions at least as stringent as those
contained in the expired permit, in-
cluding the situation where conditions
were Imposed In the previous permit
under section 402(a)(1) and are more
stringent then subsequently promul-
gated effluent guidelines. This provi-
sion is necessary to guard against un-
warranted “backsliding” in pollution
control. See U.S. Steel v. Train, 556 F.
2d 822 (7th dr. 1977). However, this
requirement does not apply where cir-
cumstances upon which the permit
was based have changed materially
and substantially, e.g., where there
have been changes In actual produc-
tion rates and corresponding pollutant
removal rates.
7. §122.16 Calculations and Specifi-
cations of Effluent LiraitaUons and
Standards This section clarifies how
effluent limitations shall be specified
In permits, including, where applica-
ble, the calculation of effluent limita-
tions based upon actual production of
the faculty rather than design capac-
ity. Consistent with court decisions,
credit for pollutants In Intake waters
Is authorized provided certain condi-
tions are satisfied.
Under 5122.16(a), permIt effluent
limitations must be calculated for each
outfalls or discharge point of the per-
mitted facility. It has been suggested
that this requirement be interpreted
In such a way that, for a given Indus-
trial plant, the sum of the effluent
limitations on all outfall could be re-
allocated among the outf ails. Under
this proposal, some outfalls could re-
ceive effluent limitations more strin-
gent, and some less stringent, than
would be required if technology-based
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 197$
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PROPOSED RULES
37081
limits were applied to each outfall.
Comments are invited on this sugges-
tion.
In addition, effluent limitations Im-
posed on Internal waste streams axe
expressly .sanctioned where necessary
to carry out the requirements of the
Act. EPA recognizes that NPDLS au-
thority extends only to the control of
pollutants which are In fact dis-
charged to receiving waters, and may
not Indiscriminately control internal
process flows of a discharger. Bowev-
er, In the event that the control of the
discharge of pollutants by monitoring
an outfall point Is not feasible, the
only way to carry out the Act’s re-
quirements may be to monitor and
control the discharges at that point In
the process where they become com-
mingled with process flows. For exam-
ple, many dischazgers have combined
discharges consisting of small amounts
of process water, sometimes contain.
Ing extremely toxic materials, which
are diluted with much larger quanti-
ties of cooling water. In such cases, It
may be that currently available ana-
lytical techniques will not be able to
measure the pollutant accurately at
the point of discharge. Thus, the only
way to ensure that applicable effluent
limitations and standards are met is to
measure and to control the pollutant
at a point In the process before It be-
comes con ?n1ngled with the cooling
water flows. Similarly, the authority
to Impose effluent limitations on Inter-
nal waste streams must also be exer-
cised where waste streams are com-
mingled with other waste streams
which interfere with the analytical
technique for the pollutant that Is
being controlled.
8. 122.17 Schedules of compluance.
This section specifies how schedules of
compliance should be structured In
NPDES permits, Including the case of
plant “shut down.” When a discharger
choses to terminate operations and
cease discharge rather than comply
with a final statutory compliance date,
the permit must contain two schedules
of compliance—one reflecting a “no
discharge” requirement and the other
based on compliance with the statuto-
ry deadline. In the event that the
plant does not shut down as contem-
plated by the first schedule, the
second schedule must be met
9. 122.23 Noncompliance reporting
by permit issuing authority. This sec-
tion establishes requirements for quar-
terly and annual reporting of noncom-
pliance by the permit Issuing authori-
ty. Specified schedule, effluent limita-
tions, and reporting violations by
major dlschargera must be reported
quarterly in narrative form. Violations
to be reported are those which have
not been resolved within specified
time periods, e.g., 45 days for effluent
limitation violations. Other Instances
of non-compliance by major dlscharg-
era must be reported statistically on a
quarterly basis.
For minor permittees whose compli-
ance baa in fact been determined by
the permit issuing authority, statisti-
cal information must be reported an-
nually.
10. 0122.31 ModIfication and Revo-
cation. Section 402(b)(lXc) of the Act
states that permits may be modified or
revoked for cause, Including but not
limited to three specified situations.
These proposed regulations further
define “cause” to allow modification
or revocation where:
There have been material and sub-
stantial alterations or additions to the
discharger’s operation (provided that
they do not convert the discharger to
a new source);
Factors have arisen which were not
know or could not have been discov-
ered at the time of permit issuance, If
the factors would justify application
of alternative limitations;
EPA promulgates, revises or with-
draws effluent limitations or stand-
ards, but only under certain limited
circumstances;
EPA promulgated effluent limita-
tions are remanded by the courts and
the remand effects determinations In
the guidelines which are essential to
support applicable standards and limi-
tations;
The discharger fails or refuses to
allow authorized representatives of
the permit issuing authority to enter,
inspect or copy materials on the pu-
mises as provided In p124.14(g) of the
proposed regulations;
Modifications of the permit are spe-
cifically authorized by the Act, e.g., by
sectIons 301(h) and 301(1);
Information indicates a potential
threat to the public health or welfare.
This section also indicates that cer-
tain Incontested actions amending
minor provisions of an effective permit
need not be subject to the usual proce-
dures of notice and opportunity for
hearing.
A provision which would authorize
modification or revocation of permits
to publicly owned treatment works
upon promulgation of revised stand-
ards for best practicable_waste treat-
ment technology (Bs’ws-i), Is under
EPA consideratIon for Inclusion In this
section . As now contemplated,
Brwri would be revised to reflect an
Increased emphasis on the control of
toxic pollutants. As In the case of In-
dustrial dlschargers, EPA believes that
Increased control of toxic pollutants
constitutes good cause for permit
modification or revocation In view of
the potential for harm to human
health and the environment Com-
ments on this point are solicited.
11. 5122.33 Extensions of edpiring
permits, 5 U,S.C. 5658(c) of the Ad-
minlatratlve Procedure Act provides
circumstances under which an expir-
ing permit may be extended pending
Issuance of a new permit. This provi-
sion is applicable to EPA and has been
Incorporated into the proposed regula-
tions. However, the terms of section
558(c) of the Administrative Procedure
Act do not apply and an expiring
permit will not be extended where
delays In permit Issuance are attribut-
able to the permittee or where an ex-
tension is determined to be unwarrant-
ed (e.g where the permittee Is not In
compliance with the terms and condi-
tions of the expiring permit).
12. 5122.41 DIsposal of pollutants
Into wells or into publicly owned treat-
ment work& The proposed regulations
delete the requirement of current 40
CFR 5126.26(a) that NPDES permits
Issued by EPA control the disposal of
pollutants into wells. The issue of
EPA’s authority to control disposal
Into wells has been considered by two
courts. The United States Court of Ap-
peals for the Seventh Circuit held
that EPA has such authority In
United States Steel Corp. v. Troth, 556
F.2d 882 (1977). The United States
Court of Appeals or the Fifth Circuit.
on the other hand, concluded that
EPA lacks such authority In Exxon
Corp. v. Train, 554 F. 3d 1310 (5th
dr. 1977).
At the time EPA promulgated 40
CFR 125.26(a), requIring EPA to regu-
late well disposal associated with sur-
face water discharges, no other unecha-
nlsm existed for EPA to deal with pol-
lution from these activities. Subpart
(C) of the subsequently enacted safe
Drinking Water Act now provides a
comprehensive program of under-
ground Injection control under ap-
proved State programs. Regulations
governing these programs will be pro-
mulgated In the near future. ‘Itis au-
thority will provide more comprehen-
sive regulation of well disposal ,prac-
tices than would be possible under the
NPDES program. Thus, It appears de-
sirable to amend the NPDES regula-
tions to defer to the regulations under
the Safe Drinking Water Act In estab-
lishing effective controls over well In-
jection practices.
The proposed regulations will, how-
ever, require EPA and the States to
apply technology.based effluent limi-
tatIons and standards to waste streams
which are discharged to surface
waters, but not to waste streams that
are discharged Into publicly owned
treatment works or Injected Into wells,
This proposed approach Is consistent
with the holding of the fifth circuit,
that EPA does not have direct authori-
ty to apply the Act’s regulatory re-
quirements to these waste streams.
Moreover, this method of applying the
Act’s treatment requirements will
Insure: (1) That adequate treatment
DERAL REGiSTER, VOL 43, NO 162—MONDAY, AUGUST 21, 1975
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PROPOSED RULES
37082
will be applied to waste strean s which
are disposed to surface waters, and (2)
that these treatment requirements are
not met by diverting most of the waste
stream to wells or to publicly-owned
treatment -works. Under the proposed
regulations, effluent guidelines will be
applied only to the actual quantity of
pollutants discharged to waters of the
United States. To arrive at this actual
quantity, the total waste stream would
be reduced by the proportion that well
Injected flows and flows to publicly
owned treatment works combined,
bear to the total plant flow. The fol-
lowing hypothetical examples illus-
trate how this regulation would be ap-
plied:
Example 1. Poultry processing efflu-
ent guidelines allow the discharge of 1
lb of BOD for every 100 lbs of poultry
processed. A poultry processor process-
es 1,000 lbs of poultry per day, but dis-
poses of 60 percent of its process flow
Into a POTW. The effluent limitation
applicable to the direct discharge
would be 10 lbs less 60 percent, or 4 lbs
per day.
Example 2. ApplIcable effluent limi-
tations guidelines for the inorganic
chemicals industry allow the discharge
of 1 lb of copper for every 1,000 lbs of
copper sulfate produced. A facility
produces 5,000 lbs of copper per day,
but disposes of 10 percent of its total
process waste water into a well, and 10
percent to publicly-owned treatment
works. The facility would receive a
permit to discharge 5 pounds less 20
percent, or 4 pounds of copper per day
directly to receiving waters.
13. § 122.42 Animal Feeding Oper-
ations, § 122.43 Aquatic Animal Pro-
duction Facilities. § 122.45 Separate
Storm Sewers, regulations governing
animal feeding operations (5 122.42),
aquatic animal production facilities
(5 122.43). and separate storm sewers
(5122.45). have been revised to define
all co iveyances in these operations as
point sources. EPA had initially ex-
cluded discharges from some of these
operations from the requirements of
obtaining a permit. Recent decisions in
the Federal courts, however, have re-
quired EPA to propose and promul-
gate regulations extending the NPDES
permit program to include all point
sources. In compliance with the court
order, EPA promulgated regulations
for concentrated animal feeding oper-
ations and separate storm sewers on
March 18, 1976. which defined certain
of these activities as point sources.
The proposed regulations will extend
that definition to classify all such op-
erations as point sources, but to re-
quire only general permit coverage of
those which have relatively small
overall pollution problems, or which
are otherwise inappropriate for mdi-
vidual permitting.
14. §122.47 New Source& This sec-
tion clarifIes the kinds of construction
activities which result In a new source
as defined in 5122.3(t), Including modi-
fications existing sources. It also de-
scribes the effect of a new source de-
termination: the requirement that an
environmental impact statement (ElS)
be prepared where EPA is the permit
issuing authority: the effect of EIS re-
quirements on the permit; and the ap-
plication of new source performance
standards and the “protection period.”
Most significantly, this section indi-
cates that the new source “protection
period” from more stringent permit
limitations applies to technology-
based effluent limitations (and not, for
example, to more stringent water qual-
ity standards), and does not preclude
limitations on additional pollutants as
new effluent guidelines are promulgat-
ed or approved under section 301(b) of
theAct -
II. Paurr 123—STATE PERMIT PROGRAM
- REQUIREMENTS
A. WHAT DOES THIS PART no?
Proposed 40 CFR Part 123 estab-
lishes guidelines specifying what the
Admlnthtrator will require before ap-
proving State permit programs under
sections 318 (aquaculture), 402
(NPT)ES), 404 (dredged or fill materi-
al), or 405 (sewage sludge) of the Act.
In addition, the regulations outline
the process of State program approval
and revision. Particular substantive
and procedural requirements of pro-
posed 40 CFR Parts 122, 124, and 125
are incorporated by reference for
State permit programs under NPDES
(i.e., sections 318. 402. and 405) and
serve as guidance for the section 404
program pending the development of
corresponding section 404 regulatIons.
The part 123 regulations also describe
the conforming actions which States
with previously approved NPDES pro-
grams must take under the Clean
Water Act amendments of 1977.
B. 110W DOES THIS PART RELATE TO
EXISTING REGULATIONS?
The major portions of proposed 40
CFR Part 123 have not previously
been established In regulations. While
existing part 124 focuses on particular
substantive requirements for State
NPDES programs, the approval proc-
ess outlined In new part 123 has been
developed largely In EPA policy
memoranda and other Informal com-
munications. The approval process in
these regulations Is merely a codifica-
tion of existing requirements. EPA
does not intend to restructure the ap-
proval process, but merely to explain
the existing process, providing a refer-
ence for States and members of the
public interested in State program ap-
proval.
C. HOW DOES THIS PART APPLY TO THE
SECTION 404 PERMIT PROGRAM?
Part 123 is designed to be equally ap-
plicable to State programs regulating
the discharge of dredged or fill materi-
al under sectIon 404 of the Act and to
State NPDES permit programs under
section 402 of the Act. The program
approval requirements for these two
types of programs were combined into
one set of regulations because of the
In flni nature of the statutory re-
quirements under sections 402 and
404. Indeed, 12 out of 14 statutory re-
quirements of an approvable State 404
program are identical, or nearly identi-
cal to section 402 program require-
ments.
Consequently, where the language
of part 123 refers to “any State permit
program,” It is meant to apply to both
section 402 and section 404 programs.
Where program requirements differ
between the two programs, the regula-
tions specify the varying require-
ments. Often these differences Involve
part 123’s Incorporation by reference
of certain portions of parts 122, 124,
and 125 which apply only to the oper-
ation of State NPDES programs.
Where this Is the case, comments to
the regulations explain that while
these referenced sections of parts 122.
124, and 125 are not directly applica-
ble to State 404 programs, States
should use them as guidance in devis-
ing their program until specific 404
program operational regulations are
promulgated. These comments also
note that pertinent parts of the regu-
lations of the US Army Corps-of Eij-
gineers may also serve as interim guid-
ance for developing State 404 pro-
grams.
Before these proposed regulations
become final, EPA expects to propose
section 404 program operation regular
tions which will specify applicable
definitions (as noted in * 123.2); permit
Issuance procedures (as noted In
§ 123.31): condItions on the transfer,
modification, and relssuance of per-
mits (as noted In § 123.52); require-
ments for inspections, monitoring,
entry, and reporting (as noted In
§ 123.61(b)); and other program oper-
ation requirements listed in § 123.4(c).
These program operation regulations.
to be codified in a new part 126, will
complement the proposed part 123
program approval regulations where
Bect1on 404 Is concerned. Just as parts
122, 124, and 125 do with respect to
NPDES permits.
D. WHAT SPECIFIC CHANGES ARE MADE BY
THIS PART?
1. General policies and require.
ments. Several general policies and re-
quirements concerning approval of
State permit programs have arisen
from EPA’s experience with the States
currently approved to administer the
FEDERAL REGISTER VOL 43, NO. 162—MONDAY, AUGUST 21, 1975
-------
NPDLS program. Subpart A of pro-
posed 40 CFR Part 123 formalIzes
these policies and requirements, mdi-
nUng that
(a) The permit programs under sec-
tions 318 and 405 may not be approved
Independent of section 402 permIt pro-
grams. and must be incorporated Into
all such programs
(b) No partial program approvals
will be granted or allowed;
(C) States with approved programs
must revise those programs to con-
form to the Clean Water Act of 1977;
Cd) States may adopt more stringent
requirements or operate permit pro-
grams with a greater scope than man-
dated by the Act; and
(e) Approved State permit programs
operate In lieu of the Federal pro-
gram, subject to Federal oversight.
Additionally, subpart A sets out the
basic contents of the State program
submission necessary to obtain EPA
approval. This Includes
(a) A complete program description
which outlines such program aspects
as regulatory approach, agency organi-
zation, funding and personnel, and
permit program forms;
(b) An Attorney General’s statement
which certifies that the State has ade-
quate legal authority to carry out the
program;
(C) A memorandum of agreement
(MOA) approved by the EPA Admfnlq.
trator between the EPA Regional Ad-
ministrator and the State Director
which covers policies, permit Issuance,
compliance and enforcement, report-
ing and Information tr n niIttal, EPA
overview, waivers of EPA review for
certain classes and categories of per-
mits, and provision for modification of
MOA. The MOA must outline the
funding arrangements for effective
litigation support for the State Attor-
neys General or other appropriate
lgal officers of the State enforcement
program; this Is in accordance with
the June 16, 1978, letter from the
Acting Administrator to the Attorney
General of the State of Idaho which
emphasized EPA’s concern for ade-
quate funding of litigation support as
an essential element of an approved
State program. MI MOA’s must be re-
viewed and revised as necessary, but at
least once every three years.
2. Substantive permit requirements.
Subparts B. C, F., F, and 0 establish
the Bubstantive requirements which a
State program must have authority
and resources to Implement (e.g., who
must obtain a permit, permit terms
and conditions, permit modification
and revocation, etc.). For the most
part, these requirements are incorpo-
rated by reference from proposed
parts 122 arid 125 In the case of section
402 programs. In the case of section
404 programs, .the referenced sections
of parts 122, 124, and 125 and the reg-
PROPOSED RULES
ulatlons of the Corps of Engineers (33
CFR Parts 320, 323, and 325) will serve
as g 4A n e for S - ee In devising their
404 programs until specifIc 404 sub-
stantive requirements are developed In
the regulations.
Add1tlnns1 y, 123.11 clarifies, for
the first time in regulations, which
State Is responsible for pennlttlng of
discharges located en waters forming
boundaries between States. When a
discharging facility is located within
one State, but the actual discharge Is
Into the waters of another State, It Is
the latter State which has either certi-
fication rights under section 401, or
permitting authority under sections
402 and 404. Discharge permits Issued
by approved States where the facility
Is located may be valid State permits,
but are not permits as required under
sections 402 and 404.
3. Permit program procedures. Sub-
part D provides a listing of sections
from proposed part 124 whIch a State
must Implement in order to have an
approved section 402 permIt program.
Particular comments note those provi-
sions of proposed part 124 and the per-
tinent regulations of the Corps of En-
gineers which provide Interim guid-
ance for developing State 404 pro-
grams.
4. Enforeemen4 resource and other
requirements. Subparts H and I estab-
lish specific requirements for State
program compliance evaluation, en-
forcement, resources, and protection
ag 1 n4 conflict of Interests. In parUc-
War, States must have:
(a) A supporting Inspection and sur-
veillance program to determine com-
pliance Independent of Information
provided by dlsI.h gers;
(b) Adequate powers and procedures,
substantially equivalent to those pro.
vlded EPA under section 309 of the act
to seek criminal and civil penalties arid
obtain Injunctive relief;
(C) Sufficient resources and qualified
personnel to effectively Implement the
requirements of part 123; and
(d) ConflIct-of-Interest restraints on
agency board membership.
Enforcement of the requirements of
NPDES permits Is an essential ele-
ment of all State NPDE8 programs.
While EPA retains the authority to
take enforcement action In approved
States, It is the Intent of the Act and
of the policy of the Agency that States
assume primary responsIbility for
compliance with NPDI requirements
within their jurisdictions. Consequent-
ly, approved States are expected to
take prompt, effectIve, nd aggressive
enforcement measures for vIolaU
of permit terms and md1ttn,,
The goal of the NPD enforcement
program is to assure a high level of
compliance with NPDES permits, now
and In the future. One m ans of ac-
cnmpu hIng thIs goal Is to take effec-
31083
tive enforcement action against those
who violate NPDES permits, seeking
to require both expeditious compil-
once arid appropriate penalties. Seek-
ing expeditious compliance, of coura’
assures compliance by the source I
question. Seeking appropriate penal-
ties assures a high level of voluntary
compliance by others In the future; a
high level of voluntary compliance Is
ementlal to the ongoing success of the
program. Appropriate penalties will
help to assure that there Is not an eco-
nomic disadvantage to those who
comply In a timely mAnner, thus main-
taming equity between those who
comply and those who do not. Appro-
priate penalties will also help to assure
that there Is no economic advantage
or Incentive for any source not to
comply In a timely manner.
These principles form the keystone
of EPA’s policy concerning violations
of statutory treatment deadlines. In
guidance, EPA baa emphasized that
aggressive enforcement action should
be taken against recalcitrant dlscharg-
era and appropriate penalties sought
to assure expeditious compliance with
the law. (See e.g., the Apr11 11, 1978,
memorandum of the Assistant Admin-
istrator for Enforcement entitled “En-
forcement Against Major Source vio-
lators of Air and Water Acts.” To sup-
port these efforts, EPA Issued a “Clvi i
Penalty Policy” on, April 11, 1978, (8
Environment Reporter, Current Devel-
opments 2011) which enunciated gen-
era] principles for determining appro-
priate penalties In Individual cases
This policy Is based primarily on fou
considerations—the economic benefit
gained by the violation; the harm done
to public health or the environment;
the degree of recalcitrance of the vie-
lator and any unusual or e traordi-
nary enforcement costs thrudi upon
the public.
In proposed f 123.72(1), these four
considerations are set forth as require-
ments for approved State programs In
seeking and assessing civil penalties.
In determining how these consider-
ations are reflected In an individual
case, States shall apply the discussions
and principles contained In the April
11 policies and subsequent elabora-
tions of those policies. The adequacy
of the State enforcement program will
be determined by these discussions
and principles. This will help to assure
fairness and national uniformity In en-
forcing the Act, Le., no area of the
country- will be able to offer lenient
enforcement as an advantage to Its in-
dustries or as a lure to Industries locat-
ed In other areas.
In carrying out an )(PD enforce-
ment program It Is Important that
Federal and State officials cooperate
to the maximum extent possible, co-
ordinate their efforts, and work to-
gether br national consistency. To
FIPIRAL RIGISTSI. VOL. 43 NO. 162—MONDAY, AUGUST 21, 197 5
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37084
PROPOSED RULES
assist In achieving these goals a con-
sultative panel of enforcement offi-
cials, including representatives of
EPA, the Department of Justice, and
-e States, has .been established. This
na]ty panel will review and advise
PA and States on penalty calcula-
tions. Through the panel, the officials
handling a case will know in advance
the minimum sum acceptable for set-
tlement using the criteria In
• 123.72(1), and can be assured that
any sum above that minimum will be
an acceptable penalty. Details con-
cerning the functioning of the penalty
panel may be found in an April 11,
1978, memorandum of the Assistant
Administrator for Enforcement enti-
tled “Federal-State Cooperation
- Against Major Source Violators of the
Air and Water Acts—Civil Penalty
Consultative Panel.”
5. Program approvat, revision, and
return. Subpart .7 describes the proce-
dures for program approval for sec-
tions 402 and 404. In both Instances,
public notice and opportunity to com-
ment and a public hearing must be
provided. In the case of the section
402 program, the Administrator must
approve or disapprove the State pro-
gram wIthin 90 days of receipt of a
complete and sufficient submission,
while in the case of the sectIon 404
program, 120 days Is provided due to
the additional review role of the U.S.
Army Corps of Engineers, the U.S.
Fish and Wildlife Service, and the Na-
tional Marine Fisheries Service.
Subpart K clarifies that revisions to
-proved programs require a new sub-
dsslon by the State. opportunity for
public comment, and a new approval
by the AdmInistrator, In order to
assist with program revision under the
Clean Water Act amendments of 1977.
subpart K lists the amendments which
must be incorporated Into existing
state programs (e.g., Section 313-Fed-
eral F ciities; Section 304(e)—Best
Management Practices for Industry;
Section 402(b)(8)—Pretreatment) as
well as a listing of optional revisions
(e.g., Section 301(1)—MunIcipal and In-
dustrial “Tie-in” Time Extensions; sec-
tion 402(l)—ExemptIon of Irrigation
Return Flows). The former areas of
• revision must be incorporated Into
State programs by December 27, 1979,
In order for State program approval to
continue.
- Subpart K also provides for revision
of State programs where the State
seeks to transfer authority to a new or
successor agency and where the State
chooses to terminate program approv-
al by “returning” the permit program
to EPA or to the Corps of Engineers.
5. ADDITIONAL REQUIR ENT8 APPLICABLE
TO SECTION 404 PROGRAMS
In addition to the policies and re-
quirements Just highlighted, the pro-
posed part 123 regulations would es-
tabilsh certain requirements which
pertain only to State 404 programs.
The following list summarizes the
principal additional requirements:
A single State agency responsible for
IssuIng 404 permits ({ 123.3(b));
Assurance that the State will pursue
a coordinated enforcement strategy
with EPA and the U.S. Army Corps of
Engineers c 123.3(e));
Development of a memorandum of
agreement with the Corps of Engi-
neers speclfylng (1) Those waters in
which the-corps will suspend the Issu-
ance of 404 permIts; (2) procedures for
Jointly processing corps § 10 and State
404 permIts In historically navigable
waters; (3) those individual and gener-
al permits Issued by the corps for
which the State intends to assume ad-
ministration and enforcement upon
program approval; (4) procedures
whereby the corps will transfer pend-
ing permits and other relevant infor-
mation. to approved States; (5) assur-
ance that the State will not Issue 404
permits for activities which the Secre-
tary of the Army determines would
substantially Impair anchorage or
navigation of any navigable water’ (6)
those classes and categories of State
permits for which the corps wishes to
waive its right to review; and (7) other
matters deemed appropriate by the
corps and the State ( 123.3(h));
Assurance that the State’s law pro-
hibiting the taking of private property
wlthout Just compensation will not ad-
versely affect the successful imple-
mentation of the State’s 404 program
( 123.4(b)(1));
Authority to prohibit, deny, or re-
strict the Issuance of State 404 permIts
on the basis of each of the following
authorities: (1) The application of the
environmental criteria promulgated
under section 404(b)(1) of the Act and
contained In 40 CFR Part 230; (2) a de-
termination of unacceptable adverse
Impact on municipal water supplies,
shellfish beds and fishery areas (in-
cluding spawning and breeding areas).
wildlife or recreational areas; (3) a de-
termination that the discharge would
violate applicable water quality stand-
ards c 123.4(b)(il));
Assurance that the State will tram-
mit copies of proposed permits to the
U.S. Army Corps of Engineers, U.S.
Fish and Wildlife Service, and the Na-
tional Marine Fisheries Service at the
same time they are transmitted to
EPA 123.5(cX5) and 123.23(a));
EPA particularly solicits comments
on the nature nd scope of the memo-
randum of agreement between the
Corps of Engineers and the States, re-
quired by § 123.3(h) of the proposed
regulations. Such an agreement seems
required by the provision for a “full
and complete description” of a pro-
posed State program In section
404(g)(1) because without agreement
between the State and the corps as to
those waters for which each has pri-
mary permitting responsibility, there
will be needless duplication of admin-
istrative effort, wasting scarce re-
sources, and burdening the public with
uncertainties In applying for permits
and delays In the processing of permit
application.
EPA also solicits public comments
on the extent to which State programs
must Insure compliance with related
Federal and State statutes. The regu-
lations of the Corps of Engineers (e.g.,
33 CFR 320.4(b)-(1) and 325.2) require
compliance with a number of other au-
thorities before the corps will Issue a
404 permit. It Is possible the require-
ments In section 404(h)(1)(H) of the
Act that States “assure continued co-
ordination with Federal and Federal-
State water related planning and
review processes” may require States
to insure compliance with some or all
of the statutes and executive orders
listed in the corps regulations. The
comment to 123.82 of the proposed
regulations specifically encourages
public comments regarding the Imple-
mentation of section 404(h)(1)(}I).
Comments are also welcomed on the
nature of permissible State-local insti-
tutional relationships In approvable
State 404 programs. While § 123.3(b)
of the proposed regulations requires
that responsibility for the Issuance of
404 permits be vested In one State
agency, local agencies may be able to
play a significant role In the planning
of activities subject to 404 permits and
- in the consideration of proposed per-
mits. As explained In the comment to
• 123.3(b) of these regulations, the per-
missible structure of State-local rela-
tions may be further addressed in the
part 126 State program operation reg-
ulations, which will complement these
regulations. However, because of its
Importance, commentators may wish
to address this Issue at this time.
SectIon 123.1(f) and the comment to
section 123.11(b) of the proposed regu-
lations make It clear that States are
not precluded from establishing
stricter-than-Federal standards and re-
quirements or from operating permit
programs with a greater scope of cov-
erage than the Federal 404 program.
It is relatively clear from the language
of section 404(t) of the Act that States
are not preempted from regulating dis-
charges in waters which, because of
section 404(g)( 1) of the Act, also re-
quire a Federal 404 permIt from the
U.S. Army Corps of Engineers. While
State permits in waters described in
section 404(g)(1) may be valid State
permits, they are not 404 permits.
States are also not precluded from reg-
ulating certain types of activities
having minor Impacts that are ex-
cluded from the Federal permit pro-
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37085
gram by section 404(f)(1) of the Act.
However. State authority over those
Federal projects which, under section
404(r) of the Act, do not require Fed-
eral 404 permits, is less clear. Com-
ments which address this Issue in light
of language contained in sections
313(a) and 404(t) of the Act are wel-
corned.
In view of the number of unresolved
Issues concerning the requirements for
approvable 404 programs, States are
encouraged not to seek Federal ap-
proval of their programs until these
regulations become final after an op-
portunity for public review and com-
ment. States are further encouraged
to coordinate the development of their
404 programs with the ongoing revi-
sion of EPA’s environmental criteria
(40 CFR 230), in order to fulfill the re-
quirements of section 404(hXl)(A)(iI).
If a particular State does make a full
and complete 404 program submission
prior to the final promulgation of
these regulations, the State’s program
will be closely evaluated in terms of its
ability to meet the requirements of
the Act. In this evaluation, the regula-
tions proposed today will serve as
guidance on EPA’s construction of the
law and its view as to what constitutes
a minimum acceptable program.
III. Paar 124—NPDES Paocznuazs
A. WHAT DOES THIS PART DO?
Proposed part 124 establishes all the
procedures to be used by EPA and ap-
proved NPDES States for receiving
permit applications, writing draft per-
mits, and soliciting public comment on
them. In addition, proposed part 124
establishes procedures to be used by
EPA for issuing final permits and
holding evidentiary hearings. (NPDES
State procedures for issuing final per-
mits and providing appeals of permit
terms and conditions are established
in accordance with requirements of
dtate law,)
On November 29, 1976, EPA pro-
posed significant changes to the evi-
dentiary hearing procedures (these are
called adjudicatory hearings in the ex-
isting regulations which now appear at
40 CFR 125.36), 41 FR 52308. Many of
the changes proposed then are reflect-
ed In this proposal, and other changes
have been made in this proposal in the
light of the comments made on the
earlier one. However, because this pro-
posal differs in many respects from
the earlier one, comments made on
the earlier proposal will not automati•
cally be considered part of the record
of this proceeding and points raised
earlier must be resubmitted.
B. WHAT CHANGES HAVE B MADE BY
THIS PART?
1. Rationalisation of the basic struc-
ture. In most cases, proposed part 124
will not change the general outlines of
the current procedures for m kI g
permit determinations. Applications
for permits will still be filed with the
appropriate permit issuing authority;
draft permits and factsheeta will stW
be prepared and made available for
comment. After comments have been
received and analyzed, any necessary
changes will be made by the permit Is-
suing authority, and final permit will
be Issued. Any interested person will
then be able to request an evidentiary
hearing on any issues involved. This
basic structure is being rationalized
and expanded in three major ways.
(a) Intergration of different types of
permits and permit decisions Into one
procedure. Under the Clean Water Act
amendments of 1977 and the existing
regulations, there are approximately
16 different statutory or regulatory
provisions on which permit require-
ments could be based, and 7 provisions
under which a variance from those
provisions could be granted. Many of
these provisions are not covered in the
existing regulation, and where they
are, the references are scattered
through various parts of the Code of
Federal Regulations (CFR). In addi-
tion, the current regulations do not
specify how such actions as permit
modifications by EPA or at the re-
quest of a discharger will be handled.
The proposed regulations deal with
these problems In two ways. First,
they consolidate into one Fznxm
Rssimta part the existing procedures
for making decisions on permit teftis.
These are currently contained in 40
CFR parts 122 and 402, relating to
thermal discharge requirements, and
the present 40 CFR Part 124,
Second, they specify where in the se-
quence of “application—draft permit—
comment—final permit,” permit ac-
tions other than the simple one of de-
ciding on permit applications should
fit. Thus, under the proposed regula-
tions a discharger seeking a permit
modification will request It by writing
to the permitting authority asking for
permission to apply for a new permit.
If permission is granted, the applica-
tion could be filed and will then be
treated like any other application.
Similarly, if EPA or the State wants to
amend or revoke a permit on its own
Initiative, the regulations provide for
accomplishing that action by issuing a
draft permit embodying the desired
changes, even though there has been
no application. That draft permit will
then become subject to comment and
a potential evidentiary hearing like
any other draft permit.
The proposed regulations deal with
variance applications in two ways.
Whenever possible, a variance must be
applied for before the close of com-
ments on a draft permit. This will
insure that there Is an opportunity to
consider all the relevant issues before
deciding the terms of a final permit
and that issues are not raised at a
later date for purposes of delay. The
regulations also provide that where a
variance is properly requested after
this stage (for example, because the
statute provides that all requests must
be made within a certain limited 180-
or 270-day period), the decision on the
variance will still be made through the
same permit issuance procedures. This
will be done by issuing a new supple-
mentary draft permit embodying the
Agency’s response to the variance re-
quest, and holding action on the origi-
nal permit until the supplementary
permit has reached the same proce-
dural stage and the two permit can
proceed together.
While the proposed regulations indi-
cate that appeals of variance determi-
nations will be through evidentiary
hearing procedures (including less
formal panel hearings where appropri-
ate), EPA has not yet determined
whether variance appeals will follow
this approach. It may be preferable to
develop a separate, but simpler and
faster appeal procedure for reviewing
variance determinations because of
the potentially different nature of the
appeal involved. Comments are re-
quested on the desirability of using
either the proposed evidentiary hear-
Ing procedures or alternative hearing
mechanisms for variance appeals.
(b) Greater explanation of the basis
for decisions. Under the present regu-
lations, “factsheets” for permits are
intended to explain how and why the
Agency arrived at specific permit con-
ditions. However, there have been fre-
quent complaints that the level of ex-
planation is often inadequate, and
that the documents or other tnforma
tion considered at this stage are hard
to identify.
Under the proposed regulations, the
contents of factaheets will be expand-
ed and specified in more detail to
assure that the explanation is ade-
quate in all cases. In addition, EPA
would assume an affirmative obliga-
tion to respond In the final factsheet
to major points raised during the
public comment period. Because there
are practical limits to EPA’S ability to
explain each of the permits It issues.
the discussion in the factaheet should
be proportional to the importance of
the Issues involved and the degree of
controversy surrounding them. A page
or two of discussion should constitute
an adequate factsheet for many
“minor” permits.
Proposed { 122.44 also provides that
draft and final permit terms must be
based on an “administrative recorcL”
This could simply be an adequately or-
ganized file drawer containing the rel-
evant informatiOn. This provision
would insure that the information
flDEIAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, I S IS
-------
37086
PROPOSED RULES
considered In drawing up a permit is
Identified and publicly available for
comment. It Is not Intended to require
“record” support for peymit terms
that by their nature do not require
them. such as monitoring or reporting
conditions - or effluent limitations
based on effluent limitations guide.
Unes. Of course, calculations needed to
derive permit limitations from efflu.
ent guidelines must be set out in the
factaheet itself.
These regulations Increase the op-
portunities for public participation In
the NPDES permit program by provid-
ing more Information In the factsheets
which accompany the public notice of
a draft permit, by providing advance
notice of proposed decisions, and by
providing opportunities for public
hearings prior to Issuance, modifica-
tion. suspension, or revocation of a
permit and prior to approval. modif I-
cation, or withdrawal of a State pro-
gram. In order to show the permitting
agency’s responsiveness to questions
raised during the public review proc.
ess, a final factsheet, which responds
to all significant objections raised, Is
required. All public participation ole-
ments In these regulations apply
equally to EPA and to approved
States.
Cc) Linking the evidentiary hearing
to prior admfnlstative proceedings. As
Indicated above, the proposed regula-
tions concerning evidentlary hearings
are applicable only to EPA, although
similar NPD State procedures may
be required under State law. At pres-
ent, even where all major Issues have
been fully analyzed and resolved
before the final permit was Issued.
they can be reexamined anew in the
evidentlary hearing. The presiding of-
ficer may not know what happened re-
garding the permit before the hearing
began. Also, new issues might be
ralsed at the evidentlary hearing even
though they could have been settled
much more simply If raised at an earli-
er stage.
The proposed regulations attempt to
remedy this situation In two ways.
First, the añnth lstrative record on
which the final permit was based will
automatically go into evidence at any
evidentlary hearing so that the dccl-
slonniAker will have the benefit of the
earlier stages of consideration of the
Issues.
Second, no issue may be raised at an
evldentlary hearing If It was not first
raised during the comment period on
the draft permit. An exemption from
this requirement is provided If “good
cause” can be shown for the failure to
raise the Issue earlier. The purpose of
this provision Is not to exclude any
person from EPA’s decislonmaking
process, but rather to focus the atten-
tion of the Agency and parties on the
Informal comment and public hearing
stage of the permit Issuance process.
EPA believes that policy Issues and
most t thn1caI Issues relating to the Is-
suance of NPDE permits should be
decided In the most open, accemible
form pn fh1. , and at a stage where
the Agency has the greatest flexibifity
to make appropriate modIfk *1nns to
the permit. Evidentlary hearings, be-
cause they entail great delays, because
they are cumbersome, and be ” e
only the well financed an afford to
participate, are disfavored so a
of solving any Issues other than con-
tested factual banes requiring cross-
examin tlon. Not only will this In the
long run lead to greater and better In-
formed citizen partIc1pat m. ft will In-
crease efficiency In the permit Issu-
ance process and will speed application
of pollution control requirements.
3. Ownpea in adjudicatory hearing
procedwe& These regulations have
been drafted on the assumption that
lormal hearings on NPDFE permits
Issued by EPA are subject to the re-
quirements of 5 U.S.C. sections 554,
556, and 557, which set forth the
formal hearing requirements of the
Administrative Procedure Act (APA).
Within that framework, there has
been one major revision and a number
of minor ones.
(a) ‘Wonadversary” Initial licensing
procedures. The Administrative Proce-
dure Act allows decisions on the initial
draft of a license or variance to be
made by procedures that are much
less adversarial than strict courtroom
procedures, even when a formal hear-
ing Is required. The proposed regula-
tions use this provision of the APA to
move away from traditional format
hearings in which EPA and other par-
ties present separate cases before a
single hearing officer. Instead, under
proposed part 124, a panel of EPA em-
ployees with expert knowledge of, or
responsibility for, the subjects In-
volved wIll be present at the hearing
and will question the parties, subject
to overall control of the proceeding by
an administrative law judge (the pre-
siding officer). No Agency trial staff
will be designated. Instead, the Agency
will prepare a draft response to the
permit application, and the Informa-
tion contained In the application and
the draft response will be the focus of
attention at the hearing. The hearing
Itself wIll be defvided into a ‘legisla-
tlve” phase—at which the parties can
present views and arguments to the
panel and question and be questioned
b It, and an “adjudicative” phase—at
which formal cross-examination can
be ordered If certain threshold condi-
tions are met. After the hearing, the
panel will prepare a recommended de-
cision which may be appealed to the
Administrator. Though the Admin-
strator will make an independent
review of the decision upon deciding to
review It. the Administrator would be
free to consult with panel members.
EPA believes that this procedure com-
plies with the literal language of tjie
“Initial licensing” provisions of the
APA and fits the purpose of those pro-
visions more closely than existing pro-
cedures.
Under the APA, agencies may re-
quire the submission of evidence in
written form in Initial licen 1ng (5
U.S.C. 556(d)). Contact between
Agency trial staff and ultimate deci-
sionm.kers Is not forbidden (5 U.S.C.
sec. 554). nor Is there a requirement
that the presiding officer must pre-
pare the Initial bplnlon. Instead, any
“responsible employee” of the Agency
may recommend a decision 5 U.S.C.
557(bXl)). These exemptions were
provided for Initial licensing because
the decisions Involved were complex
and policy dominated and thus were
thought to be “like rulemakIng.” Since
these decisions did not involve accus-
- lug anyone of wrongdoing, there was
no reason for “separation of func-
tions” within the Agency or for an Ini-
tial decision by a statutorily Independ.
ent Individual. Rather, the complexity
of the problems required that the
Agency be able to draw on Its staff ex-
perts freely without being hampered
by such artificial barriers. APA: Legis-
lative History-, S. Doc. 248, 79th Cong..
3d. Seas. 204, 229, 262, 361 (1946).
The omission of an EPA trial staff
under these proposed procedural regu-
lations would make the structure of
‘the proceeding conform to the nonac-
cusatory nature of the decision In
question. The form of proceeding
would correspond to its function—a
group of EPA employees exploring the
Issues to determine what decision to
make or recommend—rather than to a
courtroom trial.
EPA has recently proposed similar
procedures for Implementing section
301(h) of the Act. Those procedures
and the ones proposed today will be
consolidated to the extend practicable
when these rules are promulgated In
final form.
(b) OtheT changes in evidentiary
hearing procedures. Apart from the
new Initial licensing procedures, the
changes In the rules for evidentIary
hearings are less extensive than those
In other portions of these regulations.
However, the following signifIcant
changes have been made:
The current regulations provide for
an automatic stay of permit conditions
which are the subject of an eviden-
tiary hearing or an appeal from the
denial of one. The proposed regula-
tions also provide for an automatic
stay of conditions relating to a legal
Issue that had been certified for an
opinion by the Office of General
Counsel, and give the Regional Admin-
istrator descretlon to stay terms that
EDEIAL UGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 1975.
-------
PROPOSED RULES
37087
are the subject of a modification re-
Quest. The proposed regulations also
state that a source receiving its Initial
permit is considered to be without a
permit to the extent that permit terms
are stayed under these provisions.
It remains EPA’s position, however
that permittees contesting permit
terms and conditions do so on their
own time. See U.S. Steel v. Train, 556
F.2d, 822 (7th dr. 1977). To the extent
that a permittee does not prevail in
appeal proceedings, it is bound to
comply with permit terms and condi-
tions and requirements of the Act.
This general principle applies to all
appeal proceedings, whether ai4n InIs -
trative of judicial, and whether in
State or Federal forums. We are con-
sidering mRklng this principle more
explicit In the regulations themselves
and solicit comments on whether this
Is necessary.
2. No evidentiary hearing will be
held to consider the general terms of
general permits (0124.71). These gen-
eral permits will In effect be rules
based on general considerations appli-
cable to numbers of sources within an
area. Evidentlary bearings are inap-
propriate for such decisions unless the
statute explicitly requires them. How-
ever, any Individual source subject to
such a general permit will be able to
obtain an evidentiary hearing by ap-
plying for a source-specific under pro-
posed 0 124.12.
3. EPA staff members must be made
available for cross.exaznlnation to the
same extent as employees and repre-
sentatives of other parties. This cross-
examination would be confined to fac-
tual questions, where It is necessary
for disclosure of material facts. Cross-
examination would not be permitted
Ofl questions of law or policy, where
the facts are not In real dispute, or
where cross-examination would not be
useful to clarify them.
4. The discharger has the ultimate
burden of persuasion on all permit
terms. This position is consistent with
recent court decisions.
5. The right of cross-examination in
evldentiary hearings Is explicitly rec-
ognized. However, presiding officers
should bear In mind that there ii no
automatic right of cross-examination
and that the proponent of cross-exam-
ination has the burden of justifying its
use.
6. DIrect testimony must be submit-
ted In written form unless an explicit
showing can be made that the nature
of the testimony Is such that It can
only be effectively presented orally.
This adopts the position of the Food
and Drug Administration that the
question whether there should be oral
direct testimony should be answered
through analysis of the kind of issues
presented. 40 FR 40682, 40703 (Sept. 3,
1975); 41 FR 51706, 51716-17 (Nov. 23.
1976).
7. ProvIsions for appeal of presiding
officer decisions to the Regional Ad-
ministrator and then to the Admfr t-
trator similar to existing procedures
are retained in the proposed regula-
tions. However, they have been rewrit-
ten to make clear that the Regional
Adnalnistrator may waive review and
transmit the case directly to the Ad.
mlnlstrator wherever such action
would be more efficient.
3. OTHER SIGNIFICANT CHANGES
(a) 0124.43. “General permits” appli-
cable to categories of sources In partic-
ular areas will be issued ‘directly In
draft form by EPA wIthout any pre-
ceding application being necessary.
They will then be subject to notice,
comment, and legislative hearings just
llke any other permit. As stated earli-
er. no evidentlary hearing will be held
on these permits.
(b) 0 124.132. If the Agency misses
deadlines Imposed by these regula-
tions. compensating relief In the form
of deadline extensions may be granted
to private persons affected by that
failure.
4. EFFB IIVE DATES
All provisions of this part will apply
to permits Issued In draft form after
the effective date of this part. In addi-
tion, all provisions of subpart H (relat-
ing to evldentlary hearings) will apply
to EPA hearings held after the effec-
- tive date of this part, with two excep-
tions. These are the provisions In
0124.84 for automatically Introducing
the administrative record Into evi-
dence, and the provisions In 0124.76
for limiting Issues to those raised
during the notice-and-comment proc-
ess.
Regional Administrators’ will have
discretion to make all the provisions of
this part applicable to any EPA permit
which has not reached the stage of Ini-
tial decision in an evidentlary hearing
as of the effective date of this part.
They would do this by Issuing a new
draft permit based on an explicitly de-
fined administrative record and grant.
Ing a new opportunity for public com-
ment on the permit. Where this was
done, the provisions of 0*124.76 and
124.84 would apply in any hearing.
flT P r—CarrziuA AND STANDARDS FOR
THE NPDES Pnoos si
A. WHAT DOES THIS PART DO?
Proposed part 125 contaIns the par-
ticular requirements or standards
which must be applied by EPA or ap-
proved States In making certain
permit determinations. One or more of
these determinations (e.g., concerning
variances from or the application of
EPA promulgated guidelines) must
often be made In the course of permit
modification or issuance.
Most of the requirements and stand-
ards established In proposed part 125
have not been previously incorporated
Into ,regulatlons. Only subpart B is
taken from existing regulations (agua-
culture projects, 40 CFR Part 115) .
Standards for some determinations,
particularly those established by the
Clean Water Act of 1977, are currently
under development and so have not
been included in this proposal (sub-
parts D, F, 0. H, J, K, and M). Howev-
er, subparts for those determinations
have been reserved.
3. WHAT CHANGES ARE MADE BY THIS
PART?
1. Subpart A—Technology-based
treatment requirements. This subpart
establishes the criteria and standards
for Imposing technology-based treat.
ment requirements In permits under
section 301(b) of the Act. It clarifies
the long-standing EPA policy that
these technology-based treatment re-
quirements represent the minimum
levels of control under section 402, and
that they cannot be satisfied through
the use of “nontreatment” techniques
such as flow augmentation and In
stream mechanical aerators (although
such techniques may be used to
achieve water quality standards In cer-
tain limited circumstances).
Technology-based requirements may
be imposed In permits through the ap-
pilcatlon of an EPA promulgated ef-
fluent guideline or on a case-by-case
basis under section 402(a)(l) of the
Act, Case-by-case determinations must
consider. the factors listed In section
304(b) of the Act for development of
EPA effluent guidelines; EPA draft or
proposed development documents or
other guidance; and other appropriate
factors.
The proposed regulations make
clear, that even If effluent limitations
guidelines have not been promulgated
for a class or category of point sources,
State and Federal permit Issuers are
obligated to establish pci-mit require-
ments which will assure the attain-
ment of the best practicable control
technology currently available (BPT),
the best available technology economi-
cally achievable, or best conventional
pollutant control technology (BCT). as
appropriate. This provision of the pro-
posed regulations responds to the con-
cerns expressed by the court in Ford
Motor Co. v. EPA, 567 F.2d 661 (6th
dr. 1977), whIch Indicated that EPA
may “veto” State-Issued permits only
on the basis of valid promulgated EPA
regulations or clear statutory require-
ments. This provision also address the
decision In Washington v. EPA, 573
F.2d 583 (9th dr. 1978). holding that
section 301(b) of the Act, setting forth
BPT, BAT, and other substantive re-
FEDERAL REGISTER, VOL. 43, NO. 142—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37088
quirements, Is not self-executing. EPA
believes that the decision of the ninth
circuit Is an Incorrect one: regardless
of whether BFF. BAT and scr and
other requirements of the Act are
spelled out in• EPA regulations, they
must be attained by all permlttees *0
whom they are applicable. As a result,
until these regulations are promulgat-
ed, the decision In Waslilngkni v. EPA
will now be applied by EPA only
within the ninth circuit. When these
regulations are Issued In final form,
EPA believes they will not only carry
out the purposes and provisions of the
Act (under the authority of sections
402(aXl). 402(a)(3), 304(1), and 501(a)).
but will be consistent with the holding
in Washington v. EPA
2. Subpart E—Fundamenta7ly differ-
ent factors variances. This subpart es-
tabllshes the criteria and standards
which EPA and the States shall use In
deterndn1v g whether an Industrial dis-
charger should be subject to more or
less stringent effluent limitations than
those required by promulgated efflu-
ent limitations guidelines or standards
under sections 301(bX1XA). 301(b)(2)
(A) and (E). and 307(b) of the Act, be-
cause factors relating to that discharg-
er are fundamentally different from
those factors considered by EPA In de-
velopment of the applicable effluent
limitations. In establishing effluent
limitations under these sections of the
Act. EPA considered all the Informa-
tion It could collect, develop and solicit
regarding factors listed In section
304(b) of the Act and other factors
necessary to the establishment of the
effluent limitations. In some cases.
however, data which could affect
these effluent limitations as they
apply to a particular discharger were
not available or were not considered
during their development. As a result,
It may be neceseary on a case-by-case
basis t Mj the e(fhiemt limita-
tions. to make them sithar more or
less stringent, as they apply to certain
discharger within an industrial catego-
ry If factors relating to the discharger
are fundamentally different from
those considered by EPA.
Upon final promulgation, the provi-
sions of this subpart will supersede all
of the fundamentally different factors
variance provisions contained in 40
CFR Subchapter N as they apply to
limitations established under section
301(bX1XA) of the Act with one ex-
ception. The steam electric power gen-
erating point source category will be
subject Instead to the Individual vari-
ance provisions contained In various
subcategories of 40 CFR Part 423. Fur-
ther. subpart E does not apply to ef-
fluent limitations guidelines promul-
gated under section 301(bX1XA)
which do not contain a fundamentally
different factors variance provision.
The fundamentally different factors
variance provision of this subpart will
apply to guidelines or standards pro-
mulgated or approved under sections
301(bX2) (A) and (B), and 307(b)
unless the guidelines or standards con-
tain a provision st- ’ing that it Is not
subject to the provisions of this Sub-
part.
3. Subpart I—AUerisative thermal P
fluent UmUationa. This subpart estab-
lishes the criteria and standards by
which a discharger may request the
Imposition of less stringent thermal
limitations under sectIon 3 16(a) of the
Mt
This subpart has been revised to
stre nl e and strengthen the 316(a)
demonstration process. The revision
addressed two major Issues.
First, In the 316(a) demonstratIon,
the discharger must consider the cu-
mulative Impact (long-term) of the
thermal dlscharge It Is EPA’s position
that In n king a 316(a) demoristra-
tion, the discharger must take into ac-
count, In addition to thermal stress
(short-term), all other Identifiable Im-
pacts to the representative Important
specles. Including the entrapment and
entrainment effects of any existing or
proposed intake structures. The dis-
charger bears the burden of proof In
showing that the Incremental effects
of a thermal 4Ig hai.ge would not
cause the cumulative effect of all rele-
vant stresses to exceed the 316(a) re-
quIrement. This position was adopted
in A n*or Coatle’s .pinlon In
the SeabrooJc case.
Second, the discharger would be re-
quired to provide early screening In-’
formation pertaining to the proposed
316(a) demonstratIon. The Intent of
this requirement is to avoid in the
future costly and unnecessary study
requiremests for ‘ i ng and pro-
posed sites and to assure that both the
discharger and regulatory authority
understand the scope and Intent of
the 3 16(a) demonstratIon.
In all other respects the substantive
provisions of this subpart are the same
as those contained in 40 CFR Part 122
and will replace part 122 when pro-
inulgated.
N0TE.—The Environmental Protection
Agency has determined that this document
does not constitute a major regulation re-
quiriog preparation of an economic Impact
statement under Executive Order 11821. as
amended by Executive Order 11949. and
under 0MB Circular A-107.
Dated August 10. 1978.
Donsx s M. Cosms.
Administrator.
1. Part 122 of title 401. revised as set
forth below
PA*T 122—NATIONAL POLLUTANT
ISSCNARGI BIMINATION SYSTEM
$ bçe.i A 0.astd
Purpose and scope.
Law authorizing NFDES permits.
Definitions.
Exclusions.
Signatories to permit program forms.
&a,.it S —1D55 P.sII App5c I.s sed hr
122.10 ApplicatIon for a permit
122.11 Permit Issuance; effect of permit.
122.12 Duration and transferability of per-
mit..
122.13 ProhIbitions.
122.14 CondItions applicable to all permits.
122.15 Applicable limitations, standards.
prohibitions and conditions.
122.16 Calculation and specification of ef-
fluent limitations and standards.
122.17 Schedules of comphance.
Subpe, C—PsseII CsepII.uics
122.20 Monitoring. -
122.21 Recording of monitoring results.
122.22 Reporting of monitoring results and
compliance by permittees.
122.23 Noncompliance reporting.
Sápa I D-hrwlf Modificetlosa, b...csH , .sd
bliss...
In generaL
Modification and revocation.
Permit reimuance.
Extensions of expiring permits.
$â,.isl I—Sp.d 095(1 P,.g,sm.
122.40 In general.
122.41 DIsposal of pollutants into wells or
into publicly owned treatment works.
422.42 Concentrated animal Seeding oper-
122.43 Aquslie animal produc on facilities.
122.44 Aqusculture projects.
122.45 Separate storm sewers.
122.46 Silvicultural activities.
122.47 New aiw and new dischargers.
122.48 General permit program.
122.49 SpecIal eonsiderat.ions under Feder-
al law.
— 9. -Mocelsesavi
122.60 Delegation of authority.
Aurucaivr: Titles II I, IV and V. Clean
Water Act (Pub. L. 92-500. as amended by
Pub. L. 95-217)83 U.S.C. 1251, et. seq.
A—G.s.ssI
1122.1 Purpose and scope.
(a) The regulations In this part
define the National Pollutant DIs.
charge WlImin atton System (NPDES)
program: they apply to both EPA and
approved NPDES States.
(b) The regulations In parts 123, 124,
and 125 also apply to the NPDES pro-
(1) Part 123 describes the require-
ments for State participation In the
NPDES and the sectIon 404 pei nIt
programs.
(2) Part 124 descrIbes the procedures
for the NPDES program: these proce-
dures apply in their entirety to EPA
Sec.
122.1
122.2
122.3
122.4
122.5
122.30
122.31
122.32
122.33
PEDEIAL SEGISTEI, VOL. 43, NO. 162—MOIAY, AUGUST 21, 1978
-------
PROPOSED RULES
37089
and In part to approved NPDES
States.
(3) Part 125 descrIbes the criteria
and standards for making determina-
tions In the NPDES program; these
criteria and standards apply to both
EPA and approved NPDES states,
Cc) Section 402 of the Federal Water
Pollution Control Act (the Clean
Water Act), as amended, (Pub. L 92-
500, 95-217) establIshes the NPIDES
program. This program regulates the
discharge of pollutants from point
sources Into the waters of the United
States. All such discharges are unlaw-
ful absent an NPDES permit. After a
permit is obtained, a discharge not In
compliance with all permit terms and
conditions is unlawfuL
Cd) NPDES permits are issued by the
Director of an approved State NPDES
program, or, where there is no ap-
proved State program, by the EPA En-
forcement Division Director.
(Comment. Throughout this part, the Re-
gional Enforcement Division Director Is des-
ignated as the EPA permit Issuing authority
where no State NPDES program Is ap-
proved. However, reference to the “Enforce-
ment Division Director” for purposes of
permit Issuance should be read to Include
the Regional Administrator or the A nIni .
trator. or the appropriate delegated repre-
sentative of EPA. Similarly, the term “Di-
rector” includes the delegated representa-
tive of the Director,)
122.2 Law authorizing NPDES permits.
(a) Section 301(a) of the Act pro-
vides 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.”
(b) Section 402(a)(1) of the Act pro-
vides, in part, that “(T)he Administra-
tor may, after opportunity for public
hearing, Issue a permit for the dis-
charge of any pollutant, or combina-
Uon of pollutants.’ • upon condition
hat such discharge will meet either
all applicable requirements under sec-
tIons 301, 302, 306, 307, 308, and 403 of
(the) Act, or prior to the taking of
necessary Implementing actions relat-
ing to all such requirements, such con-
ditions as the Administrator deter-
mines are necessary to carry out the
provisions of (the) Act.”
(C) SectIon 318(a) of the Act provides
that “The Administrator Is author-
ized, after public hearings, to permit
the discharge of a specific pollutant or
pollutants under controlled conditions
associated with an approved aquacul-
ture project under Federal or State su-
pervision pursuant to section 402 of
this Act,”
(d) Section 405 of the Act provides,
in part, that “where the disposal of
sewage sludge resulting from the oper-
ation 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 en-
tering the navigable waters, such dis-
posal Is prohibited except in accord-
ance with a permit Issued by the Ad-
ministrator under section 402 of this
Act.”
(e) SectIons 402(b), 318(b) and Cc),
and 405(c) of the Act authorize EPA
approval of 8tate permit programs for
discharges from point sources, dis-
charges to aquaculture projects, and
disposal of sewage sludge.
(f) Section 304(1) of the Act provides
that the Administrator shall promul-
gate guidelines establishing uniform
application forms and other minimum
requirements for the acquisition of In-
formation from dlschargers in ap-
proved States and establishing mini-
mum procedural and other elements
of approved State NPDES program,
( ) Section 501(a) provides that
“The Administrator is authorized to
prescribe such regulations as are nec
essary to carry out his functions under
this Act.”
122,3 DefinitIons
The following definitions apply to
this part and to parts 123, 124, and
125:
(a) “Act” means the Clean Water
Act (also known as the Federal Water
Pollution Control Act) Pub. L. 92-500,
as amended by Pub, L. 95-217, 33
U.S.C. 1251 et seq.
(b) “Administrator” means the ‘Ad-
ministrator of the United States Envi-
ronmental Protection Agency,
(C) “Application” means:
(1) The EPA standard national
forms for applying for an NPDES
permit, including any subsequent addi-
tions, revisions or modifications, or
(2) SubstantIally similar forms ap-
proved by EPA for use In approved
States at the time of a program sub-
mission under part 123, and as subse-
quently necessary due to form revi-
sions, etc.
See appendix A. this part for a sample
EPA application.
(d) “Applicable standards and limita-
tions” means all State and Federal
standards and limitations to which a
discharge is subject under the Act, In-
cluding, but not limited to, effluent
limitations, water quality standards,
standards of performance, toxic efflu-
ent standards and prohibitions, best
management practices, and pretreat-
ment standards. -
Ce) “Approved State program”
means a State or interstate permit
program which meets the require-
ments of section 402(b) and (e) of the
Act, and which has been submitted to
and approved by EPA under section
402(c) of the Act. Approved State pro-
grams may include authority to ad.
minister sections 318 and 405 of the
Act through the NPDES program. In
part 123, thIs term also includes a
State or Interstate permit program
which meets the requirements of sec-
tIon 404(h) of the Act, and which has
been submitted to and approved by
EPA under sections 404 (g) and (h) of
the Act. An “approved State” Is one
administering an “approved State pro-
gram,”
(f) “Best management practices”
(“EMP’s”) means methods, measures,
or practices to prevent or reduce the
contribution of pollutants to waters of
the United States. For purposes of
these regulations, BMP’s Include but
are not limited to treatment require.
ments, operating and maintenance
procedures, schedules of activities,
prohibitions of activities, and other
management practices to control plant
site runoff, spillage or leaks, sludge or
waste disposal, and drainage from raw
material storage. They may be Im-
posed In addition to or in the absence
of effluent limitations, standards, or
prohibitions.
(g) “ContIguous zone” means the
entire zone established by the United
States under artIcle 24 of the Conven-
tion of the Territorial Sea and the
Contiguous Zone.
(h) “Director” means the chief ad-
ministrative officer of a State water
pollution control agency or Interstate
agency approve by EPA to administer
the NPDES program, or the delegated
representative of the Director. If re-
sponsibillty for water pollution control
and enforcement is divided among two
or more State or interstate agencies,
“Director” means the administrative
officer authorized to perform the par-
ticular procedure or function to which
reference Is made.
(I) “Discharge” when used without
qualification Includes a discharge of a
pollutant and a discharge of pollut-
ants.
(j) “Discharge of a pollutant” and
“discharge of pollutants” each means:
(1) Any addition of any pollutant or
combination of pollutants to navigable
waters other than the territorial sea,
from any point source, and
(2) Any addition of any pollutant or
combination of pollutants to the
waters of the territorial sea, the con-
tiguous zone or the ocean from any
point source other than a vessel or
other floating craft.
This definition Includes: Surface
runoff which is collected or chan-
nelled by man Into point sources; dis-
charges to pipes, sewers, or other con-
veyances owned by a State or munici-
pality which do not lead to treatment
systems designed and constructed to
meet the applicable requirements of
section 301(b) of the Act; discharges to
pipes; sewers, or other conveyances
owned by a State or municipality
which handle primarily Industrial
FEDERAL REGISIU, VOL 43. NO, 162—MONDAY, AUGUST 21, 1978
-------
37090
PIOPOSED RULES
wastes, and discharges to pipes,
sewers, or other conveyances owned in
whole or In part by a third party other
than a State or a municipality.
(k) “Dls hs.rge monitoring report”
(“DMR”) means
(1) The EPA st. an d national form
for the reporting of self-monitoring re-
sults by permlttees, including any sub-
sequent additions, revisons or modifi-
cations, or
(2) SubstantIally 5 Imfl forms ap-
proved by EPA for use in approved
States at the time a program submis-
sion under part 123 and as subsequent-
ly necessary due to form revision. etc.
See appendix D, this part for a sample
EPA Discharge Monitoring Report.
U) “Effluent limitation” means any
restriction, Including schedules of
- compliance, Imposed by a State or the
Administrator on quantities, flows,
and concentrations of pollutants
which are discharged from point
sources into navigable waters, or the
waters of the contiguous zone or the
ocean.
(in) “Enforcement Division Direc-
tor” means the Director of any En-
forcement Division within any Region-
al Office of the Environmental Protec-
tion Agency or the delegated repre-
sentative of the Enforcement Division
Director.
- (n) “Environmental Protection
Agency” (“EPA”) means the United
States Environmentral Protection
Agency.
(0) “IndIrect dlicharger” means a
nonmunicipal, nondoanestic discharger
Introducing pollutants to a publicly
owned treatment works, which Intro-
duction does not constitute a dis-
charge of pollutants under § 122.3( 1).
(p) “Inter tate agency” means an
agency of two or more States estab-
lished 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 pol-
lution as determined and approved by
the Admintetrator.
(g) “Municipality” means a city, Vil-
lage, 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 au-
thorized Indian tribal organization, or
a designated and approved manage-
ment agency under sectIon 208 of the
act. -
(r) “National Pollutant Discharge
Vfllmlnation . System” (“NPDES”)
means the national program for Issu-
ing, conditioning, modifying, revoking,
denying, monitoring, and enforcing
permits for the discharge of pollutants
from point sources into the waters of
the United States under sectIons 402,
318. and 405 of the act. The term In-
cludes any State or Interstate program
which has been approved by the Ad-
ministrator.
(5) “Navigable waters” is defined In
sectIon 502(7) of the act to mean
“waters of the United States, Includ-
ing the territorial seas”. This term in-
cludes but is not limited to:
(1) All waters which are presently
used, or 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 flow
of the tide, intermittent streams, and
adjacent wetland& “Wetlands” means
those areas that are Inundated or satu-
rated by surface or grodnd water at a
frequency and duration sufficient to
support, and that under normal cir-
cumstances do support, a prevalence
of vegetation typically adapted for life
in saturated soil conditions. Wetlands
generally include swamps, marshes,
bogs, and similar areas such as
slougbs, prairie potholes, wet mead-
ows, prairie river overflows, mudflats,
and natural ponds.
(2) TrIbutaries of navigable waters
of the United States, Including adja-
cent wetlands;
(3) Interstate waters, including wet-
lands, and
(4) All other waters of the United
States such as Intrastate lakes, rivers,
streams, mudflats, sandflats, and wet-
lands, the use, degradation or destruc-
tion of which would affect or could
affect interstate commerce Including
but. not limited to:
(1) Intrastate lakes, rivers, streams,
and wetlands which are or could be
used by interstate travelers for recre-
ational or other purposes; and
(II) Intrastate lakes, rivers, streams,
and wetlands from which fish or shell-
fish are or could be taken and sold in
interstate commerce; and
(III) Intrastate lakes, rivers, streams,
and wetlands which are used or could
be used for Industrial purposes by in-
dustries in interstate commerce.
(5) AU impoundments of waters of
the United States otherwise defined as
navigable waters under this para-
graph.
(Comment For purposes of clarity the
term “waters of the United States” is used
throughout the regulations rather than
“navigable waters.”)
(tXl) “New source” means any build-
ing, structure, facility or installation
from which there Is or may be a dis-
charge of pollutants, the construction
of which commenced:
(I) After promulgation of standards
of performance under sectIon 306 of
the act which are applicable to such
source; or
(II) After proposal of standards of
performance under section 306 whIch
are appilcable to such source, but only
if the standards are promulgated
wIthin 120 days of their proposal.
(2) “New discharger” means:
U) Any source the construction of
which commenced after October 18,
1972, which does not fall within the
definition of “new aourqe”; or
(II) Any indirect discharger which
commences the discharge of pollut-
ants; or
(Iii) Any source from which a dis-
charge recommences following the ter-
mination of operations unless the ter-
mination of operations resulted from
maintenance ictivities, scheduled pen-
‘-odic shutdown, enforcement orders, or
events beyond the control of the
owner or operator of the source. A
new discharge includes the recommen-
- cement of a discharge by a source 101-
lowing termination of operations
under § 122.17(c) as a means of achiev-
ing final compliance dates established
in the Act.
See § 124.47 for the criteria and stand-
ards to be used in determining wheth-
er a source has commenced construc-
tion within the meaning of this defini-
tion, for the types of construction ac-
tivities which result In new sources,
and for the effect of a new source de-
termination.
(U) “New Source and Environmental
Questionnaire” (“NS/EQ”) means the
EPA standard national questionnaire
used to determine whether a discharg-
Ing facility Is a new source and to
evaluate the environmental effects of
the new source. See appendix C, this
part, for the NS/EQ.
-. (v) “Permit” means any NPDES
permit issued by EPA or an approved
8tte under section 402 of the Act.
The EPA standard permit form Is used
by EPA. Substantially 5ImIlJLr permit
forms may be approved by EPA for
use In approved States at the time of a
program submission under part 123.
and subsequently as necessary due to
form revisions, etc. See appendix B.
this part, for a sample EPA permit, T n
part 123, “permit” also Includes any
permit issued under section 404 of the
Act
(w) “Permit program forms” means
the permit application, the permit
itself, discharge monitoring reports,
compliance schedules reports, explana.
tions of - noncompliance, responses to
requests- for Information made under
sectIon 308 of the Act or similar State
authority, and any other submissions
of Information or agreements required
under the NPDES or sectIon 404
permit program.
Cx) “Person” means an Individual,
corporatIon, partnership, associatIon.
Federal agency, State, municipality,
commission, or political subdivision of
a State or any Interstate body.
(y) “Point sow-ce” means any dis-
cernIble, confined and discrete convey-
ance, Including but not limited to any
pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling
FEDERAL REGISTER, VOl.. 43, NO. 142—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37091
stock, concentrated animal feeding op-
eration. vessel, or other floating craft,
from which pollutants are or may be
discharged. This term does not Include
return flows from Irrigated agricul-
ture.
(a) “Pollutant” means dredged spoil,
solid waste, incinerator residue.
sewage, garbage, sewage sludge, muni-
tions, chemical wastes, biological ma-
terials, radioactive materials, heat.
wrecked or discarded equipment, rock,
sand, cellar dirt, and Industrial, munic-
ipal, and agricultural waste discharged
Into water. It does not mean:
(1) “Sewage from vessels,” or
(2) Water, gas, or other material
which Is Injected into a well to facili-
tate production of oil or gas, or water
derived In association with oil and gas
and disposed of In a well, If the well is
used either to facilitate production or
for disposal purposes Is approved by
authority of the State in which the
weil is located, and If that State deter-
mines that such Injection or disposal
will not result In the degradation of
ground or surface water resources.
(CornmeaL’ The legislative history of the
Act reflects that “radioactive materials” as
included within the definition of “pollut.-
ant” in section 502 of the Act means only
radioactive materials which are not encom-
passed in the definition of source, byprod-
uct, or special nuclear materia’ls as defined
by the Atomic Energy Act of 1954. as
amended, and regulated under the Atomic
Energy Act. Examples of radioactive materi-
als not covered by the Atomic Energy Act
and, therefore, included within the term
“pollutant” are radium and accelerator pro-
duced isotopes. See Troth v. Colorado Pubhc
Interest Research Gmup Inc., 426 U.S. 1
(1976).)
(as) “Regional Administrator”
means one of the Regional Adminis-
trators of the Environmental Protec-
tion Agency or the delegated repre-
sentative of the Regional Administra-
tor.
(bb) “Schedule of compliance”
means a schedule of remedial meas-
ures Including an enforceable se-
quence of actions, operations, or mile-
stone events leading to compliance
with applicable standards and limits.
tions.
(cc) “Secretary” means the Secre-
tary of the Army, acting through the
Chief of Englneers.
(dd) “Sewage from vessels” means
human body wastes and the wastes
from toilets or other receptacles in-
tended to receive or retain domestic
wastes, that are discharged from ves-
sels and regulated under section 312 of
the Act, except that for the Great
Lakes this term includes gray water.
For the purposes of this definition,
“gray water” means galley, bath, and
shower water.
(ee) “Sewage sludge” means the
solids, residues, and precipitate sepa-
rated from sewage by the unit process.
es of a publicly owned treatment
works. “Sewage” as used In this defini-
tion means any wastes, including
wastes from humans, households, com-
mercial establishments, industries, and
storm water runoff, that are dis-
charged to or otherwise enter a public-
ly owned treatment works.
(ff) “State” means a State, the Dis-
trict of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands.
Guam, American Samoa, or the Trust
Territory of the Pacific Islands.
(gg) “State water pollution control
agency” means the State agency with
responsibility for iyninI4erjng State
laws relating to the abatement of
water pollution.
(hh) “Variance” means any mecha-
nism or provision under sectIons 301 or
316 of the act and 40 CFR Part 125, or
In the effluent limitation guidelines
which allow modification to or waivers
of the requirements of sections
301(b)( 1 )(A), 301(b)(2)(A)-(F), and
307(b) of the act. This includes provi-
sions which allow the establishment of
alternative limitations based on funda-
mentally different factors and sections
301(c), 301(g), 301(h), and 316( 5) of
the Act, where appropriate.
f 122.4 ExclusIons.
(a) The following discharges do not
require an NPDES permit:
(1) Any discharge of sewage from
vessels, effluent from properly func-
tioning marine engines, laundry,
shower, and galley sink wastes, or any
other discharge incidental to the
normal operation of a vessel. This ex-
clusion does not apply to rubbish,
trash, garbage, or other such materials
discharged overboard, not to dis-
charges when the vessel Is operating In
a capacity other than a vessel such as
when a vessel Is being used as an
energy or mining facility, a storage fa-
cility, or a seafood processing facility,
or is secured to the bed of the ocean,
territorial sea, contiguous zone, or
waters of the United States for the
purpose of mineral or oil exploration
or development;
(2) Dredged or fill material dis-
charged into waters of the United
States and regulated under sectIon 404
of the act.
(CommenL Discharges of pollutants, such
as sludge, garbage, trash, dredged spoil, and
debris Into waters of the United States ie
quire an NPDES permit if the primary pur-
pose of the discharge Is the disposal of
waste materials rather than changing the
bottom elevation of a water body. (See 33
CFR 123.1(m).) II there Is doubt as to the
primary purpose of the disposal or the dis-
charge involves toxic materials subject to
section 307 or hazardous material subject to
sectIon 311. there is a presumption that the
primary purpose of. the discharge Is for the
disposal of wastes.)
43) The introduction of sewage, in-
dustrial wastes or other pollutants
Into publicly owned treatment works
by Indirect dlschargers as defined In
• 122.3( 0).
(CornmeaL’ This exclusion applies only to
the actual Introduction of pollutants into
publicly owned treatment works. Plans or
agreements to switch to this method of dis-
posal in the future do not relieve discbarg-
era of the obligation to apply for and receive
permits until all discharges of pollutants to
waters of the United States are acutally
elI ,, I , ted. All applicable pretreatment
standards promulgated by the Administra-
tor under section 301(b) of the act must also
be complied with, and my be included in the
permit to the publicly owned treatment
works. This exclusion does not apply to the
introduction of pollutants to privately
owned treatment works or to other dis-
charges of pollutants under f 122.3(j).)
(4) Any discharge from agricultural
and silvicultural activities, including
runoff from orchards, cultivated crops,
pastures, range lands, and forest lands,
except that this exclusion shall not
apply to:
(I) Discharges from animal feeding
operations as defined In j 122.42;
(ii) Discharges from aquatic animal
production facilities as defined In
§ 122.43;
(III) Discharges to aquaculture proS
jects as defined In § 122.44; and
(iv) Discharges from sllvlcultural
point sources as defined In § 122.46.
(CornmeaL’ The exclusion of discharges
from agricultural activities covers dis-
charges composed entirely of irrigation
return flows. It does not cover discharges
from conveyances used either concurrently
or at particular times for other purposes,
such as mixed return flows and Industrial
wastes or rainwater “back-pumped” during
wet seasons.)
(b) The exemption of a discharge
from NPDES requirements In para-
graph (a) of this section does not pre-
clude:
(1) State regulation of the discharge
under State authority, in accordance
with sections 301(b)(1)(C), 401, and
510 of the act; or
(2) The Issuance of permits contain.
lag requirements or conditions on the
exempted discharge under sections of
the act other than those directly relat.
ed to the NPDFS. Such permits could
be combined with an NPDES permit
(e.g., a joint NPDES/404 permit).
§ 1223 SignatorIes to permit program
forms. -
(a) All permit program forms must
be signed as follows:
(1) Permit program forms submitted
or agreed to by a corporation must be
signed by a principal executive officer
of at least the level of vice president;
(2) PermIt program forms submitted
or agreed to by a partnership or a sole
proprietorship must be signed by a
general partner or the proprietor, re-
spectively;
FEDERAL REGISTER, VOL 43 NO. 162—MONDAY, AUGUST 21, 1978
-------
37092
PROPOSED RULES
(3) PermIt program forms submitted
or agreed to by a municipal. State.
Federi l, or other public, facility must
be signed by either a principal execu-
tive officer or ranking elected official;
(b) Any person signing any permit
program fonn shall make the follow-
ing cerWication “I have personally
e nnih ed and am f Iular with the in-
formatlosr submitted in the attached
permit program form, and I hereby
certify under penalty of law that this
Information Is true, accurate, and com-
plete. I am aware that there are sig-
nificant penalties for submitting false
Information, Including the possibility
of fine and imprisonment.”
(Comment: Existing permit program
forms will be revised to incorporate this
statement. Where a permit program form
does not contain the statement, the certif i-
cation must be made In a letter directed to
the permit Issuing authority accompanying
the permit program form)
Subpart B.—.NPDES Permit Applisstlsn and
Issuanc e
§ 122.10 ApplicatIon for a permit.
Ca) Any person who discharges or
proposes to discharge pollutants shall
complete, sign, and submit an applica-
tion to the Enforcement Division Di-
rector or, where appropriate, the Di-
rector in accordance with part 124,
subpart B of this chapter.
(b) Persons currently discharging
who have not received a permit in ac-
cordance with the applicable provi-
sions of the act and reguJations are In
violation of the act and subject to en-
forcement action by EPA and, where
appropriate, the approved NPDES
State.
§ 122.11 Permit Issuance; effect of permit.
(a) The receipt of a complete appli-
cation by the Enforcement Division
Director or, where appropriate, by the
Director, Initiates the permit issuance
procesz described in part 124. subparts
C throt7 çh 0 of this chapter.
(b) Following the permit Issuance
process, the Enforcement Division Di-
rector or, where appropriate, the Di-
rector may Issue or deny a finally ef-
fective permit where EPA Is the per-
mitting authority, EPA action shall
not be final for the purpose of judicial
review under section 509(b) of the act
until this Issuance has taken place (see
40 CFR 124.61).
(C) Compliance with a finally effec-
tive permit during Its term constitutes
compliance, for purposes of sections
309 and 505, with sections 301, 302.
306, 307, and 403 of the act, except for
any standard Imposed under section
307 for a toxic pollutant Injurious to
human health. However, a permit may
be modified or revoked during its term
for cause as described inE 122.31.
Cd) The Issuance of a permit does
not convey any property rights of any
sort, or any exclusive privileges, nor
does it authorize any Injury to private
property or invasion of other private
rights, nor any infringement of Feder-
al, State, or local laws or regulations;
nor does it preempt any duty to obtain
State or local assent required by law
for the discharge authorized.
§122.1! DuratIon end transferabIlIty of
(a) All permits shall be Issued for
fixed terms not to exceed 5 years. Per-
mits of less than 5 years duration may
be issued In appropriate circumstances
(see 43 FR 22167 (May 23, 1976),
which Indicates some appropriate cir-
cumstances).
(b) Permits may be revoked or modi-
fied in conformance with subpart D of
this part. Except for the provisions of
§ 122.33, for expiring permits, permits
shall not be extended beyond 5 years.
Cc) A permit may not be transferred
to another person by the existing per-
snittee unless:
(1) The existing permittee notifies
the Enforcement Division Director or,
where appropriate, the Director ‘and
requests a transfer,
(2) A written agreement containing a
specific date for transfer of permit re-
sponsibilty and coverage between the
existing and new permittees (including
notice that the existing permittee Is
liable for violations up to that date,
and that the new permittee is liable
for violations from that date on) is
submitted to the Enforcement Divi-
sion Director, or where appropriate,
the Director; and
(3) The Enforcement Division Direc-
tor or, where appropriate, the Director
agrees to the transfer. In all cases the
Enforcement Division Director or the
Director retain the discretion to re-
quire that a new application be filed
rather than agreeing to the transfer of
the permit. Where the change of own-
ership Is accompanied by a change or
proposed change In waste water char-
acteristics, the existing permit cannot
be transferred and a new application
shall be required.
§ 122.13 ProhIbitions.
No permit shall be issued In the fol-
lowing circumstances:
(a) Where the terms or conditions of
the permit do not comply with the re-
quirements of the act, or regulations
and guidelines thereunder.
(b) Where the applicant Is required
to obtain a State or other appropriate
certification under section 401 of the
Act, that the discharge will comply
with the applicable provisions of sec-
tIon 301, 302. 303, 306, and 307 and
that certification was denied or where
such certification has not been ob-
tained and has not been waived.
(c) By the Director, where the En-
forcement Division Director has ob-
jected to issuance of the perint as au-
thorized by section 402(d) of the Act.
Cd) Where the imposition of condi-
tions cannot Insure compliance with
the applfr h1e water quality require-
ments of all affected States as re-
quired by section 401(a)C2) of the act.
(e) Where, 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 radiolo-
gical. chemical, or biological warfare
agent or high-level radioactive waste
into the waters of the United States.
(g) For any discharge from a point
source inconsistent with a plan or plan
amendment approved under section
208(b) of the act.
(h) For any discharge to the territo-
rial sea, the waters of the contiguous
zone, or the oceans in the following
circumstances:
(1) Prior to the promulgation of the
guidelines under sectIon 403(c) of the
Act, unless determined to be In the
public Interest;
(2) Mter promulgation of guidelines
under section 403(c) of the act (see 40
CFR Part 125, Subpart N), where in-
sufficient Information exists to make a
reasonable, judgment as to whether
the discharge compiles with any such
guidelines.
Ci) To a facility which Is a new
source or a new discharger, if the dis-
cbarge from the construction or oper-
itlon of the facility will:
(A) Cause of contribute to the viola-
tion of water quality standards appli-
cable to the water Into which the dis-
charge Is made if the discharge is Into
an effluent limited segment as defined
in 40 CPR 130.2(oX2); or
(B) Exceed the total pollutant lond
allocatIon for the water into which the
discharge Is made If the discharge is
Into a water quality limited segment as
defined in 40 CFR 1302(o)( 1).
(C) Upon commencement, cause or
contribute to the violation of any
other applicable standards and limita-
tions.
T1 ie owner or operator of facility
which Is a new source or results in
new discharge must submit a demon-
stration In writing to the Enforcement
Division Director, or, where appropri-
ate, the Director, that the discharge
from Its facility will meet the require-
ments of paragraph (I) before coin-
mencing any omite construction of
the facility. In the case of a discharge
Into the water quality limited seg-
ment, the owner or operator must also
demonstrate that there are sufficient
remaining pollutant load allocatIons to
allow the discharge and that the facili-
ty is entitled to these allocations.
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY. AUGUST 21, 1978
-------
PROPOSED RULES
37093
§ 122.14 Conditions applicable to all per.
miss.
The following conditions apply to all
permits, whether issued by the En.
forcement Division Director or the Di-
rector. They are binding upon all per-
snittees whether or not they are ex-
pressly incorporated Into the permit.
(a) The permittee shall not dis-
charge any pollutant for which infor-
mation was requested In the applica-
tion except as expressly authorized by
the permit.
(Comment In order to Implement this
permit condition, If a pollutant has been ie-
ported by the discharger in the application.
the permit may specify that discharge levels
for that pollutant are not to exceed the
levels reported In the application. Ap-
proaches for Implementing § 122.14(a) are
discumed in the preamblei
(b) All discharges shall be consistent
with the terms and conditions of the
permit; the discharge of any pollutant
more frequently than or at a level in
excess of that Identified and author-
ized by the permit shall constitute a
violation of the terms and conditions
of the permit;
(C) The permit may be modified, sus-
pended, or revoked In whole or In part
during Its term for cause as described
In { 122.31.
(d) It a toxic effluent standard or
prohibition (including any schedule of
compliance specified In such effluent
standard or prohibition) Is established
under section 307(a) of the act for a
toxic pollutant present In the permit.-
tee’s discharge and that standard or
prohibition is more stringent than any
limitation upon such pollutant In the
permit, the Enforcement Division Di-
rector or, where appropriate, the Di-
rector shall institute proceedings
under these regulations to modify the
permit to comform to the toxic efflu-
ent standard or prohibition.
(Comment- Effluent standards or prohibi-
tions established under sectIon 307(a) are ef-
fective within the time provided in the m i-
plementing regulations, even absent permit
modification.)
(e) Facility expansions, production
Increases, or process modifications
which result in new or increased dis-
charges of pollutants or a change In
the nature of the discharge of poliut-
ants must be reported by submission
of a new application. Submission of
this new application does not relieve
the discharger of the duty to comply
with the existing permit until it Is
modified. If such discharge does not
violate terms and conditions specified
in the permit, notice of such new In-
creased or changed discharges of pol-
lutants shall be submitted instead of a
new application.
(f) That the permittee shall slow the
Enforcement Division Director, the
Director, or their authorized repro-
aentative, upon the pres.T t tk n of
credentials;
(1) To enter upon the permittee’s
premises where a point source Is locat-
ed or where any records must be kept
under terms and conditions of the
permit;
(2) To have access to and copy at
reasonable times any records that
must be kept under terms and condi-
tions of the permit;
(3) To inspect at reasonable times
any monitoring equipment or method
required In the permit;
(4) To inspect at reasonable times
any collection, treatment, pollution
in nagement. or discharge facilities re-
quired under the permit; and
(5) To sample at reasonable times
any discharge of pollutants.
(g) The permittee shall at all times
maintain In good working order and
operate as efficiently as possible all fa-
cilities and systems for collection and
treatment (and related appurtenances)
which are installed or used by the per-
mittee for water pollution control and
abatement, to achieve compliance with
the terms and conditions of the
permit. Proper operation and mainte-
nance includes but Is not limited to ef-
fective performance based on facility
design removals, adequate imiding , ef-
fective management, adequate opera-
tor staffing and training, and adequate
laboratory and process controls.
(h) If, for any reason, the permiLtee
does not comply with or will be unable
to comply with any effluent llmltai ..
tions and standards specified in the
permit, the perinittee shall, at a mini-
mum. provide the Enforcement Divi-
sion Director or, where appropriate,
the Director, with the following Infor-
mation withIn 24 hours of becnm lng
aware of these circumstances:
(1) A description of the discharge
and cause of noncompliance;
(2) The period of noncompliance, in-
cluding exact dates and times; or, If
not corrected, the anticipated time the
noncompliance Is expected to contin-
ue: and
(3) Steps being taken to reduon,
Pihnhiate and aevent recurrence of
the n noo plylng dlschargs.
If this Information Is provided orally,
a written submission covering these
points must also be provided within
fIve (5) days of the time the permlttee
becomes aware of the circumstances
covered by this paragraph.
(I) That the permittee shall take all
reasonable steps to tnh ’ilmte any ad-
verse impact to waters of the United
States resulting from noncompliance
with any applicable limitations and
standards specified in the permit, In-
cluding any accelerated or additional
monitoring necessary to determine the
nature and impact of the noncomply-
ing dlscharge
(1) Solids, sludges, filter backwash,
or pollutants removed in the course of
treatment or control of wastewaters
shall be disposed of so as to prevent’
any pollutant from entering waters of
the United States, and in a manner
which Is consistent with all standards
for the management of solid or har-
ardoua wastes promulgated under sec-
tion 405 of the act, and under the solid
Waste Disposal Act, as amended by
the Resource Conservation and Recov-
ery Act of 1976 (42 U.S.C. 6901 et seq.).
(k) The permittee shall, in order to
maintain compliance with the effluent
limitations and prohibitions of Its
permit, halt, reduce or otherwise con-
trol production and all discharges
upon reduction, loss, or failure of the
treatment facilities until the facility Is
restored or an alternative method of
treatment Is provided. This Includes
the situation where the primary
source of power of the treatment f a-
dility is reduced or lost or fails.
(1) Bypass or diversion of wastes
from any portion of the treatment fa-
cilities Is prohibited except:
(1) Where unavoidable to prevent
loss of life, serious Injury or severe
property dasnage . Severe property
damage Includes substantial physical
damage to property; ilamnage to the
treatment facilities which would cause
them to become inoperable; or sub-
stantial and permanent loss of natural
resources which can reasonably be ex-
pected to occur In the absence of a
bypass. It does not Include economic
loss caused by delays In production;
and
(2) Where there are no feasible al-
ternatives to bypass, such as the use of
auxiliary treatment facilities, reten-
tion of untreated wastes, or mainte-
nance during normal periods of equip-
ment downtime: and
(3) Where the permittee promptly
but in no event later than 24 hours
after the pci-mlttee learns of the
bypass, submits notice of the bypass or
an anticipated need for bypass to the
Enforcement pivlsion Director, or,
where appropriate, the Director con-
taining the Information required by
9122.14(h). Where the permittee
knows In advance of the need for the
bypass, this notification shall be sub-
mitted for approval to the Enforce-
ment Division Director, or the Direc-
tor, at least 30 days before the date of
bypass. Bypass shall be eIther:
(I) Prohibited by the Enforcement
Division Director or the Director in
consideration of the adverse effects of
the bypass and the factors set out
above, or
(II) Allowed under conditions deter-
mined to be necessary by the Enforce-
ment Division Director, or the Direc-
tor to Tnlnlnhlng any adverse effects.
The public shall be notified and given
an opportunity to comment on bypass
PEDERAL REGISTER. VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
37094
P*OPOSED RULES
incidents of significant duration to the
extent feasible.
(Comment When a bypass occurs, the
burden is on the discharger to demonstrate
compliance wItJ this paragraph. Treatment
facUlties should generally be designed with
redundant or backup equipment In order to
eliminate the need for bypass for scheduled
preventive maintenance. All requests for or
past incidents of bypass shall be reviewed
critically by the Enforcement Division D I.
rector, or the Director. Where there Is any
doubt as to the necessity of the bypass or
the avallabWty of methods to reduce or
eliminate the discharge, appropriate en-
forcement action shall be taken.)
(m)( 1) An upset is an exceptional In-
cident in which there Is temporary
noncompliance with permit effluent
limitations because of factors beyond
the reasonable control of the permit-
tee. Noncompliance shall not consti-
tute an upset to the extent caused by
Improperly designed or inadequate
treatment facilities, poor maintenance,
or careless or improper operation.
(2) An upset may constitute an af-
firmative defense to an action brought
for noncompliance with permit efflu-
ent limitations if the permittee dem-
onstrates through properly signed,
contemporaneous operating logs, or
other relevant evidence:
Ci) That an upset occurred and the
specific cause(s) of the upset;
(ii) That the permitted facility was
at the time being operated in a pru-
dent and workmanlike manner and In
compliance with applicable operation
and maintenance procedures;
(lii) That the permittee submitted
Information In accordance with
§ 122.14(h); and
(lv) That any remedial measures re-
quired under § 122.14 (h) and Ci) have
been complied with.
(3) In any enforcement proceeding
the permittee seeking to establish the
occurrence of an upset shall have the
burden of proof.
(Comment: Agency enforcement determi-
nations with respect to the occurrence of an
upset shall not constitute final Agency
action for purposes of Judicial review.)
§ 122.15 Applicable limitations, standards,
prohibitions, and condltion&
The terms and conditions of each
issued NPDES permit shall provide for
and insure compliance with all appli-
cable requirements of the act and reg-
ulations issued under the act For the
purposes of this section, an applicable
requirement is a statute or regulatory
requirement which takes effect prior
to the effective date of a permit Issued
by a State with an approved NPDES
program, or, In the case of a permit
issued by EPA, which takes effect
prior to the issuance of the permit
under 40 CFR 124.61(b). Permits shall
insure compliance with all of the fol-
lowing where applicable:
(a) Effluent limitations and stand-
ards under sections 301, 302, 303, 304,
and 307 of the act, Including any inter-
im final limitations and standards.
(b) (This section Is reserved, but will
contain the existing requirements of
40 CFR 124.46 (permIt modlfication/
revocation to comply with effluent
limitations and standards promulgated
or approved under sections 307(a)(2),
301(b)(2) (C) and (D), and 304(b)(2) of
the act.))
(c) Standards of performance for
new sources under sectIon 306 of-the
act, including any Interim final limita-
tions and standards.
(d) Effluent standards or prohibi-
tions, and pretreatment standards
under sectIon 307 of the act. If the
permit Is for a discharge from publicly
owned treatment works, the permlttee
must:
(1) Provide adequate notice to the
Enforcement Division Director, or
where appropriate, the Director of the
follow i ng
Ci) Any new Introducton of pollut-
ants into that treatment works from
an indirect discharger which would be
a new source as defined In section 306
of the act and § 122.3(t) if It were dis-
charging those pollutants;
(II) Any new introduction of pollut-
ants Into that treatment works from
an indirect discharger which would be
subject to section 301 of the act if It
were discharging those pollutants;
(iii) Any substantial change in the
volume or character of pollutants
being introduced into that treatment
works by a source introducing pollut-
ants Into the treatment works at the
time of issuance of the permit.
(Comment: For purposes of this subsec-
tion, adequate notice shall include informa-
tion on. (a) The quality and quantity of ef-
fluent to be introduced Into such treatment
works, and (b) any anticipated Impact of
such change In the quantity or quality of ef-
fluent to be discharged from such publicly
owned treatment works.)
(2) IdentIfy, In terms of character
and volume of pollutants, any signif I-
cant Indirect dischaz-gers subject to
pretreatment standards under section
307(b) of the act into the publicly
owned treatment works.
(3) Establish a local program In ac-
cordance with 40 CFR Part 403 to
assure compliance with pretreatment
standards under section 307(b). The
local program shall be incorporated
into the permit as described in part
403,
(4) Require any Indirect discharger
to such treatment works to comply
with the reporting requirements of
sectIons 204(b), 307, and 308 of the act,
including any requirements estab-
lished under 40 CFR Part 403.
Ce) Any conditions Imposed In grants
made by the Administrator to treat-
ment works under sections 201 and 204
of the act and reasonably necessary
for the achievement of effluent limita-
tions under section 301 of the act.
(Comment: Among other things, this para-
graph contemplates permit conditions em-
bodying mitigating measures to protect the
treatment facility against overloading.)
(f) Any requirements In addition to
or more stringent than the require-
ments of sections 301(b)(1XA),
301(b)(1)(B), 301(b)(2)(A),
301(b)(2)(B), and 306 of the act where
necessary to:
(1) Achieve water quality standards
established under sectIon 303 of the
act;
(2) Attain or maintain a specified
water quality through water quality
related effluent limits established
under section 302 of the act;
(3) Conform to the conditions of a
State certification under section 401 of
the act;
(4) Incorporate any requirements es-
tablished under Federal or State law
or regulations in accordance with sec-
tion 301(b)(1)(C) of the act;
(5) Insure consistency with the re-
quirements of a water quality manage-
ment plan under sectIon 208(e) of the
act;
(6) Incorporate section 403(c) crlte-
na for ocean discharges;
(7) Incorporate a variance to the
technology-based treatment require-
ments of section 301 (b)(1)(A) and
(b)(2)(A) In the form of additional or
more stringent parameters where war-
ranted by “fundamentally different
factors,” under part 125, subpart E of
this chapter;
(8) Incorporate other requirements,
or conditions, or limitations into a new
source permit under the National En-
vironmental Policy Act, 42 U.S.C. 4321
et seq. and section 511 of the act.
where EPA Is the permit issuing au-
thority.
(9) Establish on a case-by-case basis
technologybased limitations control-
ling a pollutant not included in pro-
mulgated effluent guidelines or stand-
ards, particularly to protect down-
stream water supplies or to address
ambient levels of the pollutant In the
case of publicly owned treatment
works, this may be necessary to reflect
pretreatment requirements on contrib-
uting industries or treatment by other
than a conventional secondary system.
(Comment: This paragraph applIes to new
sources and new dlschargers. even where
covered by the protection period in 122.47.
For example, where new source perform-
ance standards have not limited a pollutant
which Is later limited in promulgated efflu-
ent guidelines under sections 3O1(b)(2XA)-
(F), the guideline limitation for that pollut-
ant may be incorporated into the new
source permit any time the permit is modi-
fied or reissued.)
FEDERAL REGISTER, VOL 4 , NO. 162—MONDAY, AUGUST 21, 1971
-------
PROPOSED RUlES
37095
(10) Any other conditions reasonably
necessary to attain effluent limita-
tions and standards.
(g) Requirements under section
304(e) of the act for the control of
toxic and hawdous pollutants from
ancillary Industrial activities in ac-
cordance wIth 40 CFR Part 125, Sub-
part L.
(h) Requirements under section 405
of the act governing the disposal of
sewage sludge from pubilcly owned
treatment works In accordance with 40
CFR Part. 125 Subpart M.
(I) Operating measures and practices
to control or abate the discharge of
pollutants where:
(1) Numeric effluent limitations are
Infeasible, or
(2) Reasonably necessary to achieve
effluent limitations and standards.
(j) In the case of any renewal of a
previously Issued permit (see § 122.32),
Initial limitations, standards, or condi-
tions of any permit at least as strin-
gent as the limitations, standards, or
conditions of the previous permit
(unless the circumstances on which
the previous permit was based have
materially and substantially changed
since the time that permit was Issued
and would otherwise constitute cause
for permit modification or revocation
under §122.31). This includes the situ-
ation where effluent limitations were
Imposed under section 402(aXl) of the
act in a previously Issued permit based
upon section 402(a)(1) of the act and
these limitations are more stringent
than the subsequently promulgated
effluent guidelines, unless
(1) The discharger has Installed the
treatment facilities required by the
previous permit and has operated and
maintained the facilities in an opti-
mum manner, but has nevertheless
been unable to achieve the previous
effluent limitations, the corresponding
llntatlons in the reissued permit may
be relaxed to reflect the level of pol-
lutant control actually achieved or
achievable (but In no case less strin-
gent than required by the subsequent-
ly promulgated effluent guidelines); or
(2) In the case of an approved State,
State law prohibits permit conditions
more stringent than an applicable ef-
fluent guideline.
(k) Any applicable regulations pro-
mulgated by the Secretary of the do-
partnient In which the Coast Ouard i s
operating, establishing specifications
for safe transportation, handling, car-
riage, and storage of pollutants, If the
permit Is for the discharge of pollut-
ants from a vessel or other floating
craft.
(1) Any conditions that the District
Engineer of the Corps of Engineers
considers necessary to insure that
navigation and anchorage will not be
substantially Impaired.
(in) Any conditions recommended by
State water pollution control agencies,
Federal and State fish, shellfish, and
wildlife resources agencies, public
health agencies, or other governmen-
tal bodies and determined to be neces-
sary to carry out the provisions of the
ast
(n) To the extent applicable effluent
standards and limitations under sec-
tions 301, 302, 806, 307, and 403, have
not been promulgated any conditions
necessary to carry out the provIsions
of the act.
§ 12216 calculation and specification of
effluent limitations and standards.
(a) The permit shall Impose interim
and final effluent limitations, stand-
ards, and prohibitions under §1 122.14
and 122.i5 for each outfall or dis-
charge point of the permitted facility.
These permit effluent limitations,
standards, or prohibitions shall not
apply to more than one outfall or dis-
charge point or to more than one fa-
cility. These limitations, at n*rds, or
prohibitions Imposed in the permit
shall be calculated based on the actual
production of the facifity and not on
the design capacity of the facility
(unless design capacity is representa-
tive of actual production) where the
promulgated effluent limitations and
standards are based on production.
Where production-based effluent Urn!-
tatlons or standards do not apply,
permit limitations, standards, or pro-
hibitions shall be imposed based on ef-
fluent flow (Including flow reduction
practices) and effluent concentrations
achievable following the applicatIon
required treatment, except as provided
in § 122.16(d).
(b) Except as provided in paragraphs
(C) and (d) of this section, all interim
and final permit effluent limitations,
standards, and prohibitions estab-
lished under §1 122.14 and 122.15, In-
cluding those necessary to achieve
water quality standards, shall be ex-
pressed quantitatively In terms of
mass as:
(1) Maximum daily and average
monthly discharge limitations for dis-
chargers other than publicly owned
treatment works:
(2) Average 7 consecutive day and
average monthly discharge limitations
for publicly owned treatment works;
(Comment provisions of this pars-
graph do not apply to best management
practices under •122.15(g) and operating
measures and practices under § 122.15(1))
(C) In addition to the requirements
of paragraph (b) of this section. all in-
terim and final permit effluent limita-
tions, standards, or prohibitions estab-
lished under §1 122.14 and 122,15 for
metals shall be expressed in terms of
total metals (Le, the sum of the dis-
solved and suspended fractions of the
metal) unless:
(1) The promulgated effluent limita-
tion and standard under sectIons 301,
302, 303, 304, and 307 of the act sped-
flea the limitation for the metal In the
dissolved or valent form; or
(2) In . f hllsh1ng permit limitations
on case-by-case basis under §122.15(n),
It. Is necessary to express the limita-
tion on the metal In the dissolved or
valent form In order to carry out the
guidelines - and requirements of the
act.
(d) Permit effluent limitations,
standards, and prohibitions estab-
lished under §1 122.14 and 122.15, In-
eluding those necessary to achieve
water quality standards, shall be ex-
pressed as described In paragraph Cb)
except:
(1) For pif, temperature, radiation,
or other pollutants which cannot be
appropriately expressed by mass; or
(2) Where applicable effluent limIta-
tions, standards, or prohibitions are
expressed in other terms, e.g., as con-
centration levels;
Ce) Supplemental limitations, e.g..
average or maximum concentration
levels, may be Incorporated Into a
permit: Provided. That effluent ilinita-
tions, standards, and prohibitions, es-
tablished under §1122.14 and 122.15
are also expressed In terms of mass.
(f) Effluent limitations or standards
Imposed In a permit may be calculated
on a “net” basis, i.e, adjusted to re.
flect credit for pollutants In the dis-
charger’s intake water, if the discharg-
er’s intake water is drawn from the
same body of water Into which the dis-
charge Is made and if:
(1) The applicable effluent limita-
tions and standards contained In sub-
chapter N of this chapter specIfically
provide that they shall be applied on a
net basls or
(2) The discharger demonstrates
that the pollutants present In the
Intake water will not be removed by
the treatment systems operated by the
discharger, and
(3) The permit contains conditions
requiring the permittee to conduct ad-
ditional monitoring (I.e., for flow and
concentration of pollutants) as neces-
sary to determine continued eligibility
for and compliance with any such ad-
justnients.
The discharger shall notify the En-
forcement Division Director, or, where
appropriate, the Director if this moni-
toring Indicates that eligibility for an
adjustment under this section has
been altered or no longer exists. In
such case the permit shall be modified
under § 122.3L
(4) Effluent limitations or standards
adjusted under this paragraph shall be
calculated on the basis of the amount
of pollutants present after any treat-
ment steps have been performed on
the Intake water by or for the dis-
charger. Adjustments under this para-
FEDERAL RESISTED, VOL. 43, NO 162—MONDAY, AUGUST 21, 2975
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PROPOSED RULES
graph shall be given only to the extent
that pollutants In the Intake water
which are limited in the permit are
not Incidentally removed by the Ye-
quired treatment technology. In addi-
tion, effluent limitations or standards
shall not be adjusted when the pollut-
ants In the intake water vary either
chemically or biologically from the
pollutants limited by the permit.
(g) Except as provided In paragraph
(1) of this section, effluent limitations
Imposed In permits shall be expressed
In gross terms; I.e., with no adjust-
ments for pollutants In the Intake
water.
(h) The manner In which effluent
imitations or standards shall be ex-
pressed under this section depends on
the nature of the discharge.
(1) Continuous discharges shall be
limited by daily loading figures and,
where appropriate, may be limited as
to concentration or discharge flow
(e.g., for toxic or highly variable con-
tinuous discharges).
(2) Batch discharges shall be more
particularly described and limited In
terms of:
I) Frequency (e.g.. to occur not
more than once every 3 weeks),
(II) Total weight (e.g., not to exceed
300 pounds per batch discharge).
(Ill) Maximum rate of discharge of
pollutants during the batch discharge
(e.g., not to exceed 2 pounds per
minute), and
(lv) Prohibition or limitation by
mass, concentration, or other appro-
priate measure of specified pollutants
(e.g., shall not contain at any time
more than 0.1 mg/i zinc or more than
one-fourth (41 ) pound of zinc in any
batch discharge).
(3) Other Intermittent discharges
such as recirculatlon blowdown as de-
fined In 40 CFR 423.11(e) shall be par-
ticularly limited to comply with any
applicable standards and limitations.
(I) Where effluent limitations or
standards Imposed at the point of dis-
charge are Impractical or Infeasible,
effluent limitations or standards for
discharges of pollutants may be hn-
posed on Internal waste streams prior
to mixing with other waste streams or
cooling water streams. In such In-
stances, the monitoring required by
subpart C of this part shall also be ap-
plied to the Internal waste streams.
• 122.17 Schedules of compliance.
(a) In addition to the calculation and
specification of applicable standards
and limitations and other require-
ments under the act, the permittee
shall be required to take specific steps
to achieve compliance with applicable
standards and limitations and other
requirements In the shortest period of
time consistent with the guidelines
and requirements of the act. Permit
schedules may -require compliance
prior to deadlines established in the
act, but in no cases may they extend
beyond those deadlines.
(b) If any permit allows a time for
achieving final compliance which ex-
ceeds 9 months from the date of
permit Issuance, the schedule of corn-
pliance In the permit shall set forth
interim requirements and the dates
for their achievement.
(1) in no event shall more than 9
months elapse between interIm dates.
(2)11 the time necessary for comple-
tion of any Interim requirements (such
as the construction of a treatment fe-
duty) Is more than 9 months and is
not readily divisible into stages for
completion, the permit shall specify
interim dates for the submission of re-
ports of progress toward completion of
the Interim requirements.
(CbinmenL Certain Interim requirements
such as the submission of preliminary or
final plans often require less than 9 months
and thus a shorter Interval should be aped.
fled. Other requirements such as the con-
struction of treatment facilities may require
several years for completion and may not
readily subdivide Into 9-month intervals.
Long-term Interim requirements should itill
be subdivided Into intervals not Longer than
9 months at which the pernilttee Is required
to report Its process under 1122.22.)
Cc) In the case where a permittee
chooses to terminate Its operation or
discharge to a publicly owned treat-
ment works and cease dIscharging p01-
lutanta rather than meet a final date
for compliance established In the act,
the permit shall contain two alterna-
tive schedules of compliance as fol-
lows:
(1) A schedule leading to “no dis-
charge” by the predicted termination
date, and.
(2) A schedule which would result In
compliance with the statutory dead-
line.
If at any time the permittee chooses
not to terminate Its operations and
cease discharging pollutants according
to the first schedule, the steps re-
quired under the second schedule shall
be met. In no event shall such a per-
mittee be authorized to discharge
without complying with the statutory
deadline requirements, even where the
permittee actually terminates Its oper-
ations or discharge to a publicly
owned treatment works and later de-
cides to resume those or other oper-
ations.
• Cd) New sources and new dlschargers
shall meet all applicable standards and
limitations upon commencement of
discharge (see ‘ ft 122.13(1) and
122.47(d) (3) and (4)). -
Ce) The Enforcement Division Direc-
tor or, where appropriate, the Director
may, upon request of the applicant,
modify a schedule of compliance in an
Issued permit U he/she determines
good and valid cause (such as an act of
God, strike, flood, materials shortage,
or other event over which the permit-
tee has little or no control or remedy)
exists for such revision under § 122.31.
Al] revisions or modificatIons made
under this paragraph shall be Included
as appropriate In the quarterly non-
compliance report prepared under
• 122.23. In no event shall such a modi-
fied schedule extend beyond a statuto-
ry treatment deadline contained in the
act without requiring the Installation
and operation of the appropriate
treatment systems.
Sub ri C—P.imll CsmpIlsnc.
• 122.20 MonItorIng.
(a) To assure compliance with
permit terms and conditions, all per-
mittees shall monitor, where appropri-
ate:
(1) The levels of discharge for pol-
lutants controlled in the permit
through applicable standards and limi-
tations;
(2) The volume of effluent dis-
charged from each point source;
(3) At such locations as may be spec-
ified in the permit;
(4) As otherwise specifically required
In the permit. e.g.. as required by
ft 122.16(f)(3) or Cli).
(b) For purposes of paragraph (a),
the Enforcement Division Director, or,
where appropriate, the Director shall
specify In the permit:
- (1) RequIrements concerning the in-
Btallatlon, use, and maintenance of
monitoring equipment or methods (In-
cluding biological monitoring methods
where appropriate), and
(2) Monitoring Intervals suffIciently
frequent to yield data which are repre-
sentative of the volume of effluent
flow and the quantity of pollutants
discharged. Variable effluent flows,
and pollutant quantities shall be moni-
tored at more frequent intervals than
relatively constant effluent flows and
pollutant quantities.
(e) Samples and measurements
taken for the purposes of this section
shafl be representative of the volume
and nature of the monitored dis-
charge. Test procedures for the analy-
sis of pollutants shall conform to regu-
lations published under section 304(h)
of the act,
(d) The act provides that any person
who falsifies, tampers with, or know-
bigly renders Inaccurate any monitor-
- lag device or method required to be
maintained under this section shall
upon conviction, be punished by a fine
of not more than $10,000 per violation,
or by imprisonment for not more than
6 months per violation, or by both.
§ 122.21 RecordIng of monitoring results.
(a) Any permittee who must monitor
under § 122.20 shall maintain records
FEDERAL REGISTER, VOL 43 NO. 162—MONDAY. AUGUST 21, 1979
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PROPOSED RULES
37097
of all monitoring Information, Includ-
ing, for a]] monitoring activities:
(1) The date, exact place, and time
of sampling or measurements;
(2) Who performed the sampling or
measurements;
(3) The dates analyses were per-
formed;
(4) Who performed the analyses;
(5) The analytical techniques/meth-
ods used; and
(6) The results of such analyses.
(b) AU records of monitoring activi-
ties and results (Including all original
strip chart recordings for continuous
monitoring tnstzwnentatlon and cali-
bration and maintenance records)
shall be retained by the permittee for
3 years. This period of retention shall
be extendet
(1) Automatically during the course
of any unresolved litigation regarding
the dIwth ge of pollutants by the per-
mittee or regarding effluent guidelines
applicable to the permlttee, or
(2) As requested by the Enforcement
Division Director or, where appropri-
ate. the Director.
(C) The act provides that any person
who knowingly makes any false state-
ment. representation, or certification
In any record or other document re-
quired to be maintained under this
section shall, upon conviction, be pun-
ished by a fine of not more than
$10,000. or by Imprisonment for. not
more than 6 months, or by both.
§ 122.22 Reporting of eaonltorlng romlis
and compliance by pesmittees.
(a) Permittees shall report the re-
sults of any monitoring Including but
not limited to monitoring required by
1122.20, to the Enforcement Division
Director and, where appropriate, the
Director, on a discharge monitoring
report (D1 fl ) form (see appendix D)
as often as required by the permit, but
in no case less than once per year.
(Comment’ Reporting frequency depends
upon the nature and In pact of the dis-
charge. For small volume, noncootact cool-
ing water discharges annual report submis.
ston may be sufficient. Discharges which re-
quire more frequent, even monthly report-
ing, Include variable discharges, discharges
which contribute significant amounts of pol-
lutants to the waters of the United States,
discharges which contain toxic or hazardous
pollutants or other pollutants of concern,
and discharges for which new treatment or
control methods are being applied,)
(b) If the permittee monitors any
pollutant more frequently than re-
quired by the permit, using approved
analytical methods, the results of this
monitoring shall be Indicated and In-
cluded In the calculation and report-
ing of the data submitted in the DME.
(C) WithIn 14 days after each Interim
and final permit compliance schedule
date, the permittee shall provide the
Enforcement Division Director or,
where appropriate, the Director, with
written notice of the permittee’s com-
pliance or noncompliance with the In-
terint and final requirements.
Cd) The act provides that any person
who knowingly makes any false state-
ment, representation, or certification
In the monitoring report or notice of
compliance shall, upon conviction, be
punished by a fine of not more than
$10,000 per false statement, or by be-
prisonment for not more than 6
months per false statement, or by
both
I 122.23 NoncomplIance repeating.
Ca) On the last day of February,
May, August, and November, the Di-
rector shall submit to the Enforce-
ment Division Director Information
concerning noncompliance by major
permitteca In the State with NPDES
permit requirements, In accordance
with the reporting schedule contained
In paragraph (g) of this section. SImi-
larly, the Enforcement Division Direc-
tor shall prepare and submit to the
EPA Office of Water Enforcement
this same Information for EPA-Issued
permits In accordance with paragraph
( 5)-
(b) The following Information shall
be reported narratively for major per-
mittees on a quarterly basis:
(3) Failure to complete construction
elements, Noncompliance shall be re-
ported In the following circumstances:
Ci) When the permittee has failed to
complete by the date specified in the
permit, an element of the compllan e
schedule Involving actual p1a ’nIng for
construction (e.g., awared of contract.
prelhnhiw’y plans, etc.) or an actual
construction step (e.g., begin construc-
tion. attain operational level), and
(II) If after a period of 30 days from
the date a report Is due the State or
EPA regional office under 1122,22(d),
the permittee has not returned to
compliance by actually submitting the
report and/or accomplishing the re-
qufrementa of the permit,
(2) Failure to complele/provide com-
pliance schedule reports. Noncompli-
ance shall be reported In the following
cfrcursstanees:
(1) When the permittee fails to com-
plete or provide a report required In
the permit compliance schedule or
under I 122.22 (e.g., progress reports,
notification of complIance/noncomplI-
ance etc. and
(H) If after a period of 30 days from
the date a report Is due at the State or
EPA regional office under 1122.22(d),
the permittee has not returned to
compliance by actually submitting the
report and/or a000mpllahhig the re-
quirements of the permit.
(3) Noncompliance with applicable
standards and UmUationa Noncompli-
ance shall be reported In the following
(I) When the permittee has violated
an applicable standard or limitation
and has not returned to compliance
with the NPD E permit requirements
wIthin 45 days from the date the dis-
charge monitoring report or notifica-
tIon of noncompliance m y
I 122.22(d) was due at the State or
EPA regional off lce or
(II) When a pattern of nonc miplI.
ance with applicable standards or limi-
tations as determined by the Enforce-
ment Division Director or, where ap-
propriate, the Director, exists for any
major permittee over a period of 12
months prior to the end of the current
reporting period. This shall Include
but not be limited to: (A) Any viola-
tion of the same standard or limitation
In two consecutive quarters, and (B)
any violation of one or more standard
or limitation In each of the four quar-
ters comprising the 12-month period.
(4) FaIlure to report effluent data,
I.e., where the permittee has failed to
iwovlde the discharge monitoring
report withIn 30 days of the date It Is
due or where the permlttee has ex-
ceeded effluent limitations and has
failed to report this noncompli.iwe
within the time specified In the permit
under 1122.22.
(5) DeficIent reports, Le., where the
required reports provided by the per-
mittee are so deficient as to cause mis-
understanding on the part of the State
agency or EPA and Impede the review
of the status of compliance.
(( ‘ommenL’ Noncompliance reported under
this paragraph shall be reported In sucees-
slve reports until the noncompliance Is re
solved. This resolution of noncompliance
shall also be reported. Once the noncompli-
ance Is reported as resolved, It will not
appear In subsequent reports.)
Cc) The narrative Information re-
quired under paragraph (b) of this sec.
tion shall:
(1) Include the following data In the
following order:
(I) Name, location, and permit
number of each noncomplying permit-
tee.
(II) A brief description and date of
each Instance of noncompliance.
(Iii) A brief description of the date(s)
and action(s) taken by the State or
EPA regional office to Insure compli-
ance.
(Iv) Status of the Instance of non-
compliance with the date of the action
or resolution.
Cv) Any details which tend to explain
or mitigate an Instance of noncompli-
ance or explain actions by the regula-
tory agency.
(2) Be arranged as follows:
(I) Separate lists shall be provided
for nonmunicipal and municipal and
Federal permittees.
(II) Information concerning schedule
and effluent noncompliance shall b’
F ERAL REGISTU, VOl.. 43, NO. 162—MONDAY, A1 UST 21, 1971
-------
37098
PROPOSED RULES
combined in a single entry for each
permlttee.
(lii) All narrative listings shall be in
alphabetical order by permittee name.
Where two or more permittees have
the same name, the lowest permit
numbers shall govern the order of
entry. i.e. the lowest number shall be
entered first.
Cd) Statistical Information shall be
reported quarterly on all other In-
stances of noncompliance with permit
requirements by major permittees not
set forth in paragraph (b) of this sec-
tion.
Ce) For minor perinlttees whose com-
pliance has In fact been reviewed by
the permitting authority, statistical
InformaUon on noncompliance shall
be reported annually. The types of
noncompliance reported shall be con-
sistent with those listed under para-
graph (b) of this section. In addition, a
separate list shall be provided annual-
ly for minor permittees one year or
more behind in construction phases of
the compliance schedule. They are to
be listed by name and permit number
in alphabetical order.
(f) Guidance for the reporting of
narrative and statistical Information
shall be provided from time to time by
the Deputy Assistant Administrator
for Water Enforcement.
(g) Reporting schedules: (1) The
quarterly reporting schedule for non-
compliance by major permittees under
paragraph (b), (C), and (d) shall be as
follows:
Quarters covered by reports on
Dates for
noncompliance by major
completion
diachargers
of reports
January. February. and March....... . ..... May 31’
April. May. ano June - - ... August 31’
July, August, and September.... November
30’
October. November. and December February
Report Is to be available to the public on this
date,
(2) The annual reporting period for
noncompliance by minor permittees
under paragraph Ce) of this section
shall end at the end of the Federal
fiscal year (currently October 31).
with reports completed and available
to the public no more than 60 days
later.
(h) All reports prepared under this
section shall be made available to the
public for inspection and copying.
(CommanL The distinction between
‘major and minor” permittees Is established
in EPA’s annual operating guidance for the
EPA Regional offices and the States.)
Subpart D—P.nuilt MediRcotlens, R.vocaHona,
and bissuanc.
§ 122.30 In general
Permits shall be revised or reissued
only as authorized in this subpart, and
then only in conformance with the
procedural regulations of 40 CFR Part
124. The following actions are author-
ized by the act and covered by this
Subpart:
(a) Modification and revocation of
existing permits; and
(b) Reissuance and extension of ex-
piring permits.
§ 122.31 Modification and revocation.
(a) An issued permit may be modi-
fled or revoked In whole or In part
during Its term for cause as specified
in paragraphs Cc) through Ce) of this
section.
(b) Permit modification shall not be
used to extent the term of a permit
beyond 5 years from the original date
of Issuance. Permits shall be extended
only under the provisions of § 122.33.
Cc) Modification or revocation of an
Issued permit may be Initiated by the
Enforcement Division Director, or the
Director, under 40 CFR Part 124. Any
interested person may request the En-
forcement Division Director, or the Di-
rector, to modify or revoke an Issued
permit.
(d) Cause for modification or revoca-
tion Includes but Is not limited to the
followlng
(1) Violation of any term or condi-
tion of the permit. This constitutes
cause only for revocation or for a
modification which would make the
permit more stringent;
(2) FaIlure of the permittee to dis-
close fully all relevant facts or misrep-
resentation any facts by the permittee-
during the permit issuance process.
These constitute cause only for revo-
cation or for modification which would
make the permit more stringent;
(3) A temporary or a permanent re-
duction or elimination of any dis-
charge controlled by the permit (e.g.,
plant closure, the promulgation of any
applicable effluent standard or prohi-
bition under section 307 of the act,
etc);
(4) Information Indicating that the
permitted discharge poses a threat to
human health or welfare;
(5) FaIlure or refusal of the permit-
tee to allow the Enforcement Division
Director, the Director, or an Author-
ized representative to enter, inspect,
have access to or copy as provided In
§ 122J4(I);
(6) Material and substantial alter-
ations or additions to the discharger’s
operation which were not covered by
the orginal permit (eg., production
changes, relocation or combination of
discharge points, changes in the
nature or mix of products produced)
provided that such alterations do not
constitute the total reconstruction of
an existing source converting It Into a
new source;
(Comment) Certain reconstruction activi-
ties may cause the new source provisions of
section 306 to become applicable to the dis-
charger. (See § 1224?.) In such cases the
new source permit issuance procedures of 40
CPR 124.13 should be followed rather than
the modification procedures of 40 CFR
124.16.)
C ?) The existence of a factor or fac-
tors which, If properly and timely
brought to the attention of the En-
forcement Division Director or, where
appropriate, the Director, would have
Justified the application of more or
less stringent limitations than re-
quired by applicable effluent limita-
tions guidelines under sections 301,
304, and 316 of the act or regulations
promulgated thereunder, but only if
the requester shows that such factor
or factors arose after the final permit
was Issued under section 40 CFR
124.61
(8) RevisIon or withdrawal of EPA
promulgated effluent limitations
guidelines, but only when:
Ci) The permit term or condition re-
quested to be modified or revoked was
based on a promulgated effluent limi-
tation or standards, rather than on
EPA effluent guidance, water quality
standard, proposed effluent liinlta-
tions or standards, or anything other
than promulgated effluent limitations
and standards;
(II) EPA has withdrawn or modified
the limitation or standard; and
(III) The interested person or EPA
files a request for modification In ac-
cordance with 40 CFR 124.16 on this
basis within ninety (90) days after
Federal Register notice of withdrawal
or revision of all or a material portion
of an applicable effluent limitation or
standard.
(9) JudIcial remand of EPA promul-
gated limitations guidelines, if the
remand affects determinations In’ the
guidelines which are essential to Sup-
port applicable standards and limita-
tions In the permit; -
(10) Any modifications of permits
specifically authorized by the act, e.g.,
under sections 301(h), 301(1) and (2);
(11) As necessary under § 122.14(d)
and 122.15(b);
(12) Where the permit falls to apply
any applicable standards or limita-
tions;
(13) Where other circumstances on
which the permit was based have ma-
terially and substantially changed
since the permit was issued.
(e) The following permit modifica-
tions shall not require public notice
and opportunity for hearing under 40
CFR Part 124 unless they would
render the applicable standards and
limitations In the permit less strin-
gent; or unless contested by the per-
mittee:
(I) Correction of typographical
errors;
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, ISIS
-------
(2) A change requiring more fre-
quent monitoring or reporting by the
permlttee
(3) A change In an interim canipli-
ance date, but not beyond 120 days
and not where the t hange would Inter-
-fere with the atfM,nent of a final
compliance date.
(4) A change In ownership or control
of a source which a permit where no
other change In the permIt Is neces-
sary and where transfer Is approved
under 5 122.12(c);
(5) A change In the construction
schedule for a discharger which Is a
new source under section 306 of the
Act and under 5122.47 of this pert,
when the discharge(s) regulated by
the permit will not begin until the re-
quired control and treatment facilities
are operational;
(6) DeletIon of a point source out-
fall, where the discharge from that
outfall Is terminated, and does not
result In discharge of pollutants from
other outfalls other than or in excess
or those limited In the permit.
5122.32 PermIt relesuance.
Any permittee who wishes to contin-
ue to discharge after the expiration
date of a permit must apply for a new
permit under 40 CFR Part 124 Sub-
part B of this chapter.
5122.33 ExtensIons of expiring permits.
(a) Where the Enforcement Division
Director Is the permit Issuing authori-
ty, the terms and conditions of an ex-
pired permit are automatically ex-
tended under 5 U.S.C 558(c) pending
Issuance of a new permit If:
(1) The permittee has submitted a
timely and sufficient application for a
new permit under 40 CFR 124,12(b)(3);
and
(2) The delay In permit Issuance has
not been caused by actions of the per-
mittee; and
(o) The Enforcement Division Direc-
tor is unable to Issue a new permit
before the expiration date of the pre-
vious permit (e.g. where It Is impracti-
cable due to time or and resource con-
tralnta).
(b) Permits extended under para-
graph (a) of this section remaIn fully
effective and enforceable against the
discharger.
(C) Where the permittee Is not In
compliance with the terms and condi-
tions of the expiring permit
(1) The permit may be extended
under this section and enforcement
action may be taken based upon the
extended permit; or
(2) A permit extension under this
section may be denied by the Enforce-
ment Division Director. This denial
shall be accomplished through written
notification to the permittee that Its
permit application has been rejected
due to noncompliance with the expir-
PROPOSED RULES
Ing permit, leaving the discharger sub-
ject to enforcement action for dis-
charging without a permit
(Cbmment The Director may also iil
expiring permits In this manner If so au-
thorized by State law.)
;1 I— :±f NPOIS Pr , .
122.40 In general.
The following sections describe
NPDP program coverage for certain
categories of point source discharger..
5122.41 Disposal of poflutammis Into well.
or Into publicly owned treatment
wo
(a) The Director shall not allow un-
controlled disposal of pollutants Into
wells within the State. Any such dis-
posal shall be prohibited or controlled
through the Issuance of a permit strin-
gent enough:
(1) To protect the public health and
welfare, and
(2) To prevent pollution of ground
and surface water resources.
(b) Where part of a discharger’s
process waste water Is disposed Into a
well or into a publicly owned treat-
ment works, thereby reducing the flow
or level of pollutants that otherwise
would be discharged, applicable efflu-
ent limitations and standards in the
permit shall reflect such disposal: Ef-
fluent limitations and standards shall
be calculated by multiplying the efflu-
ent limitations or standards applicable
to the total wastewater flow by the
flow discharged into wells or publlcly
owned treatment works, and dividing
the result by the total wastewater
flow. Effluent limitations and stand-
ards so calculated may be further ad-
justed to make them more stringent If
discharges Into wells or publicly owned
treatment works change the character
or treatability of the pollutants being
discharged to receiving waters.
(COmment The term procem waste
water” Ii defined In 40 CFR 401.11(g).)
(C) ParagrapW (b) of this section
shall not apply where promulgated ef-
fluent limitation guldelines
(1) Control concentrations of pollut-
ants discharged but not mass; or
(2) Specify a different specific tech-
nique for adjusting effluent limita-
tions to account for well Injection.
Paragraph (b) of this section in no
way alters a discharger’s obligation to
meet any more stringent requirements
established under 55122.14 and 122,15.
5122.42 -Concentrated - “I-”'I feedIng sp-
entices.
(a) Anhminl feeding operations are
point sources subject to the NPD
permit program. Concentrated
feeding operations are subject to the
individual permit program. Other
T1frnkI feeding operations are subject
37099
to the general permit program
(5122.48).
(b) Definitions. For the purpose of
this pa
(1) “Animal feeding OPeIULIOU ”
means a lot or facility (other than an
aquatic animal production facility)
where the following conditions are
met
(1) inln Ic (other than aquatic ani-
mals) 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, end
(II) Crops, vegetation, forage growth
or Post-harvest residues are not sus-
tained In the normal growing season
over any portion of the lot or facility.
Two or more animal feeding oper-
ations under common ownership are a
single RnIm 1 feeding operation If they
• next to each other or if they use a
common area or system for the dispos-
al of wastes.
(2) “ConceaL rated animal feeding
c eralion” means an ni hn 1 feeding
operation which meets the Criteria set
forth In paragraph (a)(2) (I), (H) or (III)
of this section:
(I) More than the numbers of ani-
mals specified In any of the following
categories are confined:
(A) 1.000 slaughter and feeder cattle,
(B) 700 mature dairy cattle (whether
milked or dry cows),
(C) 2,500 swIne weighing over 55
pounds,
(D) 500 horses,
(E) 10,000 sheep or lambs,
(F) 55,000 turkeys,
(0) 100,000 layIng hens or broilers
(If the facility has a continous over-
flow watering),
(H) 30,000 layIng hens or broilers (If
the facility has a liquid manure
system).
(I) 5,000 ducks,
(J) 1,000 anImal units; or
(II) More than the following num-
bers and types of animals are con-
fined:
(A) 300 slaughter or feeder cattle.
(B) 200 mature dairy cattle (whether
milked or dry cows).
(C) 750 swIne weIghing over 55
pounds,
(D) 150 horses,
CE) 3,000 sheep,
(F) 16,500 turkeys,
(0) 30,000 laying hens or broilers (If
the facility has continuous overflow
watering),
(H) 9.000 layIng hens or broilers (If
the facility has a liquid manure ban-
dllng system),
(I) 1.500 ducks, or
CJ) 300 animAl unlts
end either one of the following condi-
tions are met:
(K) Pollutants are discharged Into
waters of the United States through a
FEDSRAI. SEGISISS, VOt. 43, NO. 162—MONDAY, AUGUST 21, 197 ’S
-------
37100
manmade ditch, flushing system or
other similar manmade device; or
(L) Pollutants are discharged direct-
ly into navigable waters which origi-
nate outside of and pass over, across.
through or otherwise come into direct
contact with the animal confined in
the operation.
Provlde 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.
(Iii) The Enforcement Division Di.
rector or. where appropriate, the Di.
rector determines that the operation is
a significant contributor of pollution
to waters of the United States, In ac-
cordance with paragraph (e).
(3) 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
diary cattle multiplied by 1.4 plus the
number of swine weighing over 55
pounds multiplied by 0.4. plus the
number of sheep multiplied by 0.1,
plus the number of horses multiplied
by 2.0
(4) The term “man-made” means
constructed by man and used for the
purpose of transporting wastes.
Cc) Case-by-case designation of con-
centrateci animal feeding dperations.
(1) Notwithstanding any other provi-
sion of this section, any animal feed-
ing operation may be designated as a
concentrated animal feeding operation
where it is determined to be a signifi-
cant contributor of pollution to the
waters of the United States. In making
this designation the Enforcement Divi-
sion Drector or the Director shall con.
aider the following factors:
(1) The size of the animal feeding op-
eration and the amount of wastes
reachlrg waters of the United States;
(ii) The location of the animal feed-
ing operation relative to waters of the
United States;
(lii) The means of conveyance of
animal wastes and process wastewaters
into waters of the United States;
(iv) The slope, vegetation, rainfall,
and other factors affecting the likeli-
hood or frequency of discharge of
animal wastes and process wastewaters
into waters of the United States; and
(v) Other such factors relating to
the significance of the pollution prob-
lem sought to be regulated.
(2) No animal feeding operation with
less than the numbers of animals set
forth in paragraph (b)(2) (1) and (ii) of
this section shall be designated as a
concentrated animal feeding operation
unless it meets one of the following
conditions:
(1) Pollutants are discharged into
waters of the United States through a
PROPOSED RULES
manmade ditch, flushing system or
other similar manmade device; or
(ii) Pollutants are discharged direct-
ly Into waters of the United States
which originate outside of the facility
and pass over, across, through the fa-
cility or otherwise come Into direct
contact with the animals confined in
the operation.
In no case shall a permit application
be required from a concentrated
animal feeding operation designated
under this paragraph until there has
been an onsite inspection of the oper-
ation and a determination that the op-
eration should and could be regulated
under the permit program.
122.43 Aquatic animal production facili-
ties. -
(a) Aquatic animal production facifi-
ties, as defined in this section. are
point sources subject to the NPDES
permit program. Concentrated aquatic
animal production facilities are sub-
ject to the individual permit program.
Other animal production facilities are
subject to the general permit program
( 122.48.)
(b) Definitions. “Aquatic animal pro-
duction facility” means a hatchery,
fish farm, or other facility which con-
tains:
(1) Any species of fish or other
aquatic animal (other than carp (Cy-
prinus carpio). goldfish (Carassius aur-
atus), or brown trout (Salmo trutta))
nonnative of the United States and
from which there is a discharge at any
time; or
(2) Fish or other aquatic animals in
ponds, raceways or other similar struc-
tures for purposes of production.
which are not closed ponds discharg-
ing only during periods of excess
runoff, and which discharge at least 30
days per year.
(CommenL Non-native fish are as defined
in ‘ Special Publication No. 6” of the Ameri-
can Fisheries Society entitled, “A List of
Common and Scientific Names of Fishes
from the U.S. and Canad&” “Special Publi-
cation No. 6” may be ordered through the
American Fisheries Society, 1319 18th
Street NW., Washington, D.C. 20036.)
(3) “Concentrated aquatic animal
production facility” means any aquatic
animal production facility, as defined
in subparagraph (I) of this paragraph
which:
(I) Produces more than 20,000
pounds of aquatic animals per year; or
(II) Is designated by the Enforce-
ment Division Director, or where ap-
propriate, the Director as a significant
contributor of pollution to the eaters
of the United States in accordance
with paragraph (C).
(C) Case-b y-case designation of con-
centrated a uatlc animal production
facilities. Any aquatic animal produc-
tion facility not otherwise falling
within the definition provided in para-
• graph (b)(3) of this section may be
deslgna ed as a concentrated aquatic
animal ‘production facility where the
facility is determined to be a signifi-
cant contributor of pollution to waters
of the United States. In making this
designation the Enforcement Division
Director or, where appropriate, the Di-
rector shall consider the following fac-
tors:
(1) The location of the facility with
respect to waters of the United States;
(2) The size of the facility;
(3) The quantity and nature of the
pollutants reaching waters of the
United States; and
(4) Other such factors relating to
the significance of the pollution prob-
lem sought to be regulated.
* 122.44 Aquaculture projects.
(a) Aquaculture projects, as defined
in this section, are subject to the
NPDES permit program through sec-
tion 318 of the act, in accordance with
40 CFR Part 125, Subpart C.
(b) Definitions. For the purposes of
this subpart:
(1) “Aquacu]ture project” means a
defined managed water area which
uses discharges or pollutants into that
designated area for the maintenance
or production of harvestable fresh-
water, estuarine. or marine plants or
animals.
(2) “Designated project area” means
the portions of the waters of the
United States within which the appli-
cant for a permit plans to confine the
cultivated species, using a method or
plan or operation (including, but not
limited to, physical confinement)
which, on the basis of reliable scientif-
ic evidence, is expected to insure that
specific individual organisms compris-
ing an aquaculture crop will enjoy in-
creased growth attributable to the dis-
charge of pollutants permitted under
this part, and be harvested within a
defined geographic area.
§ 122.45. Separate storm sewers.
(a) Separate storm sewers, as defined
in this section, are point sources sub-
ject to the NPDES permit program.
Concentrated storm sewers are subject
to the individual permit program.
Other separate storm sewers are sub-
ject to the general permit program
( 122.48.)
(b) Definltion& (1) “Separate storm
sewer” means a conveyance or system
of conveyances (including but not lim-
ited to pipes, conduits, ditches, and
channels) primarily used for collecting
and conveying storm water runoff.
(i) “Separate storm sewer” does not
include any conveyance which dis-
charges process water or storm water
runoff contaminated by contact with
aggregations of wastes, raw materials.
or pollutant-contaminated soil, from
lands or facilities used for industrial or
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37101
commercial activities, into waters of
the United States or into separate
storm sewer. Such discharges are sub-
jest to the general provisions of this
part.
(II) “Process waste water” 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.
(2) “Concentrated storm sewer”
means any separate storm sewer as
designated under paragraph (C) of this
section.
(C) Designation of concentrated
storm sewers. The Enforcement Divi-
sion Director, or where appropriate,
the Director may designate a separate
storm sewer as a “concentrated storm
sewer.” This designation may be made
to the extent allowed or required by
effluent guidelines promulgated for
point sources in the separate storm
sewer category; or when:
(1) A water quality management
plan containing requirements applica-
ble to such point sources Is approved;
or
(2) A separate storm sewer is deter-
mined to be a significant contributor
of pollution to the waters of the
United States. In making this determi-
nation the following factors shall be
considered:
(i) The location of the separate
storm sewer with respect to waters of
the United States:
(ii) The size of the separate storm
sewer;
(iii) The quantity and nature of the
pollutants reaching waters of the
United States: and
(iv) Other such factors relating to
the significance of the pollution prob-
lems sought to be regulated. -
(CommenL An NPDES permit for dis-
charges into waters of the United States
from a separate storm sewer includes all
c ’ ’nveyanees which are a part of that sepa-
rate storm sewer system, even though there
may be several owners-operators of such
conveyances. An NPDES permit for dis-
charges of pollutants from separate storm
sewers does not cover discharges of pollut-
ants Into those sewers from point sources
which are not part of the separate storm
sewer systems (see paragraph (bX1XI) of
this section). Discharges Into separate storm
sewers from point sources which are not
part of the separate storm sever systems
are subject to the general provisions of this
part.)
I 122.46 Slivlcuitural activitieL
(a) Sllvicultural point sources, as de-
fined in this section, are point sources
subject to the NPDES permit pro-
gram. -
(b) Definitions. (1) “Sllvicultural
point source” means any discernible,
confined and discrete conveyance re-
lated to rock crushing, gravel washing,
log sorting or log storage facilities
which are operated in connection with
silvicultural activites and from which
pollutants are discharged into waters
of the United States. It also includes
silvicultural activities designated by
the Enforcement Division Director or,
where appropriate, the Director under
paragraph (C) of this section.
(Comment’ The term does not include
non-point source sllvlcultur9l activities such
as nursery operations, site preparation. re-
forestation and subsequent cultural treat-
ment., thinning, prescribed burning, pest
and fire control, harvesting operations, sur-
face drainage, and road construction and
maintenance from which there is runoff
during precipitation events, unless they
have been designated as a significant con-
tributor of pollution under paragraph (c).
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 aectioq 404 permIt (see
33 CFP. 209.120).)
(2) “Rock crushing and gravel wash-
ing facilities” means facilities which
process crushed and broken stone,
gravel and riprap (see 40 CFR Part
436, Subpart B, and the effluent limi-
tations guidelines pursuant thereto).
(3) “Log sorting and log storage fa-
cilities” means facilities whose dis-
charges result from the holding of Un-
processed wood, i.e. logs or roundwood
with bark or after removal of bark in
sell-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 J, and the effluent
limitations guidelines pursuant there-
to.)
(c) Case-by-case designations. A silvi-
cultural activity may be designated as
a silvicultural point source where it Is
determined to be a significant contrib-
utor of pollution to waters of the
United States by the Enforcement Di-
vision Director or, where appropriate,
the Director. In making this designa-
tion the following factors shall be con.
sidered.
(1) The location of the activity with
respect to waters of the United States;
(2) The size of the activity;
(3) The quantity and nature of the
pollutants reaching waters of the
United States; and
(4) Other such factors relating to
the significance of the pollution prob-
lems sought to be regulated.
I 122.47 New sources and new dlschargers.
(a) DefinItions. (1) “New source”
and “new discharger” are defined in
122.3(t).
(2) “Source” means any building,
structure, facility or Installation from
which there is or may be the discharge
of pollutants;
(3) “ExistIng source” means any
source which is not a new source or a
new discharger,
(4) “Site” means the land or water
area upon which a source and its
water pollution control facilities are
physically located, including but not
limited to adjacent land used for util-
ity systems, as repair, storage, ship-
ping or processing areas, or other
areas incident to the industrial manu-
facturing or water pollution treatment
process; -
(5) “Facilities or equipment” means
buildings, structures, process or pro-
duction equipment or machinery
which form a permanent part of the
new source and which will be used in
its operation provided that the value
of such facilities or equipment repre-
sents a substantial commitment to
construct. It does not include facilities
or equipment used in connection with
feasibility, engineering and design
studies regarding the source.
(b) Criteria and standards for new
source determination—
(1) The following construction activi-
ties result in a new source as defined
In 40 CFR 122.3(t):
(i) Construction of a source on a site
where another source(s) is not located;
or
(ii) Construction of a source on a site
where another source is located: Pm-
vlded That the process or production
equipment which causes the discharge
of pollutants from the other source is
totally replaced by this construction.
The fact that a source Is constructed
on a site so that it shares or uses
common land or water areas of an-
other source for utility systems,
repair, storage, or shipping does not
prevent that source from being consid-
ered a new source.
(2) The modification of an existing
source by changing existing process or
production equipment, replacing exist-
ing process or production equipment
(except as provided in paragraph
(a)(2) of this section) or by the addi-
tion of such equipment on the site of
the existing source which results in a
change in the nature or quantity of
pollutants discharged is not a new
source under this section. Modif lea-
tions of this nature are subject to the
provisions of I 122.31.
(3) ConstructIon of a new source as
defined under 40 CFR 122.3(t) has
commenced if the owner or operator
has:
(I) Begun, or caused to being as part
of a continuous on-site construction
program:
(A) Any placement, assembly, or in-
stallations of facilities;
(B) Significant site preparation work
including clearing or excavations or re-
moval of existing buildings, structures
or facilities which Is necessary for the
placement, assembly, or installation of
new source facilities or equlpmemt; or
(ii) Entered a binding contractual
obligation for the purchase of facili-
FEDERAL REGISTER. VOL 43, NO. 162—MONDAY, AUGUST 21, 1971
-------
37102
PROPOSED RULES
ties or equipment which are intended
to be used in Its operation within a
reasonable time (unless delays result
solely because of requirements of
8tate or Federal law. Options to pur-
chase or contacts which can be termi-
nated or modified without substantial
loss and contracts for feasibility, engi-
neering and design studies do not con-
stitute a contractual obligation under
this paragraph.
(C) Requirement of an envfl’onmen-
tel impact statement (1) The Issuance
of a permit to a new source:
(I) By the Enforcement Division Di-
rector may be a major Federal action
significantly affecting the quality of
the human environment within the
meaning of the National Environmen-
tal Policy Act of 1969 (N A), 33
U.S.C. 4321 et seq. and therefore may
be subject to the environmental review
provisions of N EPA as set out In 40
CFR 6.9000 et seq. -
(U) By the Director Is not a major
Federal action and therefore does not
require EPA to conduct an environ-
mental review.
(2) If the final enviromental Impact
statement under 40 CFR 6.916 recom-
mends that a new source permit be
denied, the Enforcement Division Di-
rector shall deny Issuance of the
permit under 40 CFR 12481. stating
measures that the owner or operation
of the new source must take In order
to receive a permit;
(3) If the final environmental Impact
statement under 40 CFR 6.916 recom-
mends that a new source permit be
issued upon satisfaction of certain con-
ditions, the Enforcement Division Di-
rector shall not Issue the permit
un]ess the permit contains terms and
conditions requiring the permfttee to
take the actions Identified by the final
environmental Impact statement as
necessary to prevent or minimize any
significant adverse environmental
Impact
(4) No onsite construction of a new
source for which an EIS is determined
to be rr a1red shall commence before
Issuance of a final permit or before 15
days after issuance of a negative decla-
ration under 40 CFR 6.908 unless such
construction Is approved by the En-
forcement Division Director upon a
finding that the construction will not
cause significant adverse environmen-
tal impact.
(5) The owner or operator must
notify the Enforcement Division Di-
rector of any onsite construction
which begins before the times speci-
fied In paragraph (C) of this section. If
onsfte construction begins In violation
of this paragraph, the Enforcement
Division Director shall advise the
owner or operator that It Is proceeding
with construction at Its own risk, and
that such construction activities con-
stitute grounds for denial of a permit.
The Enforcement Division Director
may seek a court order to enjoin con-
struction In violation of this para-
graph.
Cd) Effect a! compliance with new
source performance standards. (1) Any
new source which meets the applicable
promulgated new source performance
standards, or any new discharger
which constructs its facilities to meet
applicable new source performance
standards promulgated before the
commencement of discharge, shall not
be subject to any more stringent new
eom’ce performance standard or
(except as provided In paragraph
(dX2) of this section) to any technol.
ogy-based standard under section
301(bX2) of the Act for the shortest of
the following perlods
U) Ten years from the date that con-
struction Is completed or,
(U) Ten years from the date the
source begins to discharge pollutants;
or
(I I I) 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.
(Comment.- The provisions of this para-
graph do not apply to existing sources
which modify their pollution control facul-
ties or construct new poilution control fa-
duties and achieve performance andards,
but which are not new sources upder
• 122.3(t) or new discharges as defined under
122.3(t) and do not meet the .requlrements
of this paragraph)
(2) The protection from more strin-
gent standards of performance afford-
ed by paragraph (d)(1) of this section
does not apply to:
(i) Additional or more stringent
permit conditions which are not tech-
nology based, e.g.. conditions based on
water quality standards, effluent
standards or prohibitions under
301(a); and
(ii) Additional permit conditions con-
trolling pollutants not controlled by
the applicable new source perform-
ance standards.
(3) At the expiration of the “protec-
tion period” afforded by paragraph
(d)(1), of this section, the owner or op-
erator of the new source must be In
compliance with the requirements of
section 301(bX2) and any other appli-
cable requirements of the Act. No ad-
ditional period for achieving compli-
ance with these requirements shall be
allowed.
(4) In-accordance with §9122.13(i)
and 122.17(d), the owner or operator
of a new source or a new discharger
shall Install and have operating all
pollution control equipment required
to meet the terms and conditions of its
permit before beginning to discharge.
Within the shortest feasible time (not
to exceed 60 days) from the com-
mencement of discharge, the owner or
operator shall “start up” the pollution
control treatment systems and have
their operations stabilized so as to
meet all permit terms and conditions.
* 122.48 General permit program.
(This section Is reserved. Final regu-
latlons based on regulations proposed
In the PaM. Racisvun on February
4. 1977, will be Incorporated here at
the time of final promulgation.)
*122.49 SpecIal censlderatlose under Fed-
mu law.
Permits shall be consistent with and
reflect requirements under applicable
Federal laws other than the act, and
to the extent that they do not conflict
with requirements of law, require-
ments under Executive orders. Such
Federal requirements Include but are
not limited to the’followlng
(a) Executive Order 11990 (Protec-
ti on of Wetlands).
(Comment’ Wetlands are defined In
O 122.3(s) and are also subject to the EPA
policies on the protection of wetlands set
out In 38 FR 10834 (May 2, 1973) and guide-
lines Implementing section 404(bXl) of the
Act (40 CFR Part 330). There Is a presump-
tion against the discharge of pollutants Into
wetlands and such discharges will only be
authorized In unusual circumstances.)
(b) Executive Order 11988 (Preserva-
lion of Fioodplains).
(c) Sections 3, 4, and 5 of the WI id
and Scenic Rivers Act, 16 U.S.C. 1273
et seq.
(d) The National Historic Preserva-
- tion Act of 1966. 42 U.S.C. 4321 et seq.
- (and the related ExecutIve Order
11593).
(e) The Land and Water Conserva-
tion Act, 16 U.S.C. 460 et seq.
(f) SectIon 7 of the Endangered Spe-
cies Act, 16 U.S.C. 1531 et seq.
(g) Section 307 of the Costal Zone
Management Act, 18 U.S.C. 1451. et
seq.
(Comment. NPDES permits must be con-
sistent with approved coastal zone “age-
meet plans by virtue of sections 307(c)(3XA)
(federally Issued permits) and 307(eXl) (ap-
proval and oversight of State permit pro-
grams).)
(h) The Solid Waste Disposal Act, as
amended by the Resource Conserva-
tion and Recovery Act ci! 1976, 42
U.S.C. 6901 et seq.
(I) The Safe Drinking Water Act, 42
U.S.C. 300f et seq.
Ci) The Marine Protection, Research,
and Sanctuaries Act (the Ocean
Dumping Act), 33 U.S.C. 1401 et seq.
Subpw$ F—MhcslIun.ous
9 122.60 DelegatIon of authority.
Subject to the appeal provisions and
the national security responsIbility
provision of part 124 of this chapter.
the following authorities are hereby
delegated to each of the enforcement
FEDERAL REGISTER. VOl.. 43, NO. 162—MONDAY, AUGUST 21. 1978
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PROPOSED RULES
37103
division directors for the region In
which they are located:
(a) The authority to Issue, condition,
revoke, modify, deny, monitor, and en-
force permits for discharges regulated
by the NPDES program under sections
318 402. and 405 of the act.
(b) The authority to receive permit
applications and related documents
from States and to object In writing to
the Issuance of permits under section
402(b)(5) of the act or (If such permits
are outside the guidelines and require-
ments of the act) under sections 402(d)
(1), (2), and (4) of the act.
(C) The authority under section
403(c) of the act to Issue permits
under section 402 of the act for a dis-
charge into the territorial sea, the con-
tiguous zone, or the oceans before the
promulgation of guidelines under sec-
tIon 403(c) of the act, including the de-
termination that Issuance Is In the
public Interest.
(d) The authority granted to the Ad-
ministrator by section 308(a), and if
exercised in conformance with part
124 of this chapter, sectIon 308(b) of
the act.
Ce) The authority to grant variances
granted to the Administrator under
sectIons 301(c), 301(g), and 316(a) of
the act.
(f) The authority to grant time ex-
tensions of statutory compliance dates
under sections 301(1) (1) and (2) and
301(k) of the act.
(g) The authority to establish water
quality related effluent limitations
under section 302 of the act.
2. 40 CFR Part 123 is proposed to be
revised as follows:
PART 123—STATE PERMIT PROGRAM
REQUIREMENTS
kbpsit A—G.ui.r.I
See.
1:3.1 Scope and purpose.
123.2 DefinItions.
123.3 Program description.
123.4 Attorney generals statement.
123.5 Memorandum of agreement.
Subpart B—R.qvl,.sant to ObtaIn oPannif
123.11 Requirement to obtain a permit.
Subpart C—AcquIiItIsn of L.fv,.atlan
123.21 Application for a permit.
123.22 ReceIpt and use of Federal informa-
tion.
123.23 TransmIssion of information to
EPA.
123.24 Identity of signatories to permit
program forms.
Subpart D—Po,mf bsua,,ca Proesduts.
123.31 PermIt issuance procedures.
Subpart R—T.inm. and Conditions .f Psaiut.
123.41 ProhIbited discharges.
123.42 Applicable standards and limita-
tions, and other requirements.
123.43 NPDES determinations.
123.44 Control of disposal of pollutants
Into wells.
Sabpial P-Ou,otlaa aid Ir.bw .f Paadta
123.51 DuratIon of Issued permits.
123.52 Transfer, modification, and rein-
suance of permits.
Subpart G—ln.podlau, Monitoring, IM, , and
123.61 InspectIons, monitoring, entry, and
reporting.
A p aA
123.’il Receipt and followup of notifica-
tions and reports.
123.72 Enforcement.
Subpart I—lana. ,..., Planning, aid Othso
123.81 AvailabilIty of resources.
123.82 ContInuing planning process.
123.83 Agency Board membership.
SUbpart J—Pr.c.dur. toe App,ovid .f Stat. P.nalt
Pro 9 , .. ’
123.91 Section 402 approval process.
123.92 SectIon 404 approval process.
Subpwt k—Isvlsloni to Appnsv.d Stats P.tndt
Prows..
123.101 Procedure for revision of State
permit programs.
123. 102 Program revisions under the Clean
Water Act of 1977.
123.103 Other program revisions.
Aumoazrs: Titles III, IV, and V, Clean
Water Act (Pub. L 92-500, as amended by
Pub. L. 95-217). 33 US.C. 1251 et. seq.
Subpart A-0.ns,at
123.1 Purpose and scope.
(a) This part specifies procedural
and other requirements which must be
present in State permit programs in
order to obtain approval of the Adznln-
Istrator under sections 318 (aqua.cul-
ture), 402 (NPDES), 404 (dredged or
fill), or 405 (sewage sludge) of the act.
Except as expressly provided, each of
the guidelines In this part applies to
any State permit program which im-
plements any of these sections.
(Comment In many cases sections of this
part incorporate by reference particular sec-
tions of parts 122. 124. and 125. SInce these
parts describe the National Pollutant Dis-
charge Elimination System and its proce-
dures end standards, they are not directly
applicable to State programs developed
under section 404 of the act. EPA will soon
propose program operation regulations in
part 128 that will establish more specific
procedures and standards for State 404 pro-
grams. Until these part 128 regulations are
proposed, however, the referenced sections
of parts 122, 124, and 125 may serve as
useful guidance for States In formulating
theIr 404 programs. Consequently comments
have been frequently Inserted into these
regulations to point out the relationships of
certain sections of parts 122. 124, and 125, as
well as the dredged or fill regulations of the
U.S. Army Corps of Engineers, to State 404
programs.)
(b) A submitted State permit pro-
gram which conforms to the applica-
ble guidelines of this part and which
meets the requirements of sections
818, 402. 404. or 405 of the act and this
part shall be approved by the Adminis-
trator with respect to the section or
sections for which the requirements
are met, subject to the following con-
ditions:
(1) A State permit program will not
be approved by the Ariministrator
under section 402 of the act unless It
also satisfies the requirements of sec-
tions 306(c), 308(c), 318, and 405 of the
act for State authorization to Imple-
ment those sections. The permit pro-
grams under sections 318 and 405 may
not be approved independent of and
must be incorporated Into all section
402 permit programs.
(2) A State permit program will not
be approved by. the Administrator
under sectIon’ 404 of the 9ct unless It
also satisfies the requirements of sec-
tion 308(c) of the act for State au-
thorization to implement that section.
Cc) Upon approval (and upon subse-
quent notification from the State that
it Is administering the permit program
for purposes of section 404). the Ad-
ministrator (in the case of the section
402 programs) or the Secretary (in the
case of section 404 programs), shall
suspend the Issuance of permits for
those actMtles subject to the ap-
proved program.
Cd) Any State permit program ap-
proved by the Administor shall at all
times be conducted in accordance with
statutory requirements, and the appli-
cable sections of this part and parts
122, 124, 125, and 126.
(Comment As noted in the foregoing com-
ment, parts 122, 124. and 125 are not dlrect
ly applicable to State 404 programs. Howev-
er. because the legislative history of the
Clean Water Act Amendments of 177 indi-
cate that the process and requirements for
approving State 404 programs closely paral-
lel the NPDES State approval process, it Is
anticipated that the regulations being devel-
oped to specIfy 404 standards and proce.
dares (I.e., part 128) will, as far as partica-
ble, be similar to pertinent sections of parts
122. 124. and 125.)
Ce) No State permit program will be
approved under this part Unless the
State has the necessary authority and
resources and agrees to Implement all
requirements of the particular
program(s) for which It Is seeking ap-
proval.
(Comment No partial program approvals
will be granted. State programs which do
not meet all the requirements of sections
318. 402. and 405 wIll not receive approval
under section 402. In particular. States must
implement the Clean Water Act of 1977
(Pub. L 95-217) amendments to sections 313
(Federal facUlties); 304(e) (best manage-
ment practices); and 402(b)(8) (pretreat-
ment). States are not required to implement
the amendments listed in 123.102(a) of this
part, since the State would then be adopting
FEDERAL REGISTER, VOL 43 NO. 162—MONDAY, AUGUST 21, 1978
-------
7 104
PROPOSED RULES
and enforcing more stringent requirements
under sectIon 510 of the act. Similarly, all
the requirements of section 404 must be sat-
isfied prior to approval of a State’s 404 pro-
gram.
Although these regulations require States
to wh Ini ter bomplete programs, EPA rec-
ognizes that., as a matter of law, a State may
lack authority to exercise jurisdiction over
discharges from facilities on Indian lands.
The lack of such authority does not consU-
tute grounds for refusal to authorize State
administration of a program; however, to
the extent that States have authority to c i-
erclse jurisdiction, they are required to do
so-)
(f) Nothing In this part precludes a
State from:
(1) Adopting or enforcing any appli-
cable standards and limitations or
other requirements which are more
stringent than those required under
the act; or
(2) Operating a permit program with
a greater scope of covbrage than -re-
quired under the act.
(g) A State permit program ap-
proved under this part Is established
under State law and, subject to Feder-
al oversight, functions in lleu of the
Federal program.
(Comment EPA has a continuing respon-
slbWty to oversee the operation of State
programs. States must cooperate with EPA
and assure that It has accam to Information
which it requests in order to carry out this
responsibility. See 123.23(e).)
§ 123.2 DefinItions.
(a) In the case of sectIon 402 pro-
grams, the definitions in part 122
apply to this part.
(b) In the case of section 404 pro-
grams, the definitions in part 126
apply to this part.
(Comment Until part 128 regulatIons are
developed for State 404 programs, In formu-
lating their programs States should consult
with EPA to Insure that their definitions
are consistent with those in part 126.)
5123.3 Program description.
The Governor of any State desiring
to administer a permit program shall
submit to the Administrator a full and
complete description of each program
it proposes to establish and administer
under State law or under an interstate
compact. At a minimum, the program
description must Include:
(a) A description of how the State
Intends to carry out Its responsibilities
under the act;
(b) A description (Including organi-
zation charts) of the organization and
structure of the State agency or agen-
cies which will have responsibility for
administering the permit program. In
addition, in the case of 404 programs,
States must designate one State
agency to be responsible for Issuing
404 permIts. The program description
must include how a State 404 agency
will Interact with other State and local
agencies and also the agency’s statuto-
ry and regulatory responsibilities;
(Cbinment: The precise nature of State-
local lostitutlouni relations in approvable
State 404 programs is under consideration
by EPA and may be addressed in subsequent
State 404 programs operation regulations.
are welcomed.)
(c) A description of State procedures
for the issuance of permits, Including
any State appellate review procedures;
(d) A description of the State’s prior-
ities for issuance of permits;
Ce) A description of the State’s prior-
ities for enforcement of permits, in-
cluding a complete description of the
State’. compliance tracking and en-
forcement program. In addition, In the
case of 404 programs. States must
demonstrate the steps taken and the
mechanisms established to assure that
a coordinated enforcement strategy
will be pursued by the State, the
Corps of Engineers and EPA;
(f) A description of the funding ar-
rangement and personnel qualifica-
tions for the State’s programs, as re-
quired under subpart I of this part;
and an explanation of why these will
be sufficient to effectively implement
the requirements of this part, Includ-
ing permit compliance and enforce-
ment requirements specified in
0123.72; and
(g) Copies of any forms (other than
uniform national forms established by
the Administrator) which the State in-
tends to use In Its application, public
notice, permit issuance, monitoring, or
other program procedures.
(Comment Forms used by States need not
be identical to the forms used by EPA or
the Corps of Engineers, but should require
substantially the same Information. State
NPDES permit forms must contain or not
be inconsistent with the conditions listed in
40 CPR 122.14.)
(h) In the case of State 404 pro-
grams, a memorandum of agreement
with the Secretary of the Army, which
shall include:
(1) An Identification of those waters
in which the Corps of Engineers will
suspend the Issuance of section 404
permits upon approval of the State’s
program by the Administrator;
(2) An identification of those waters
identified in paragraph (h)(1) of this
section In which the Corps of Engi-
neers will retain authority to Issue
permits under sectIons 9 and 10 of the
Rivers and Harbors Act of 1899 (i.e.,
historically navigable waters), and pro-
cedures whereby the corps and the
State will jointly process sectIon 10/
404 permIts In such waters;
(3) Those Individual and general per-
mits, If any, issued by the U.S. Army
Corps of Engineers, the terms and con-
ditions of which the State intends to
administer and enforce (including In-
spection, monitoring, and surveillance
responsibilities) upon receiving ap-
proval of its program;
(4) Procedures whereby the Corps of
Engineers will transfer to the State
pendIng 404 permIts and other role-
went information, as specified in
* 123.22, which will also include proce-
dures to insure that the State will not
Issue a 404 permIt which the corps has
determined Is a major Federal action
significantly affecting the quality of
the human environment until at least
30 days after the corps has completed
an environmental impact statement on
the permit.
(5) Assurance that the State will not
issue any 404 permIt for an activity
which in the judgment of the Corps of
Engineers, after consultion with the
Secretary of the Department In which
the Coast Guard is operating, would
substantially Impair anchorage or
navigation of any navigable waters.
(6) Those ‘classes or categories,” if
any, of proposed State permits which
the Corps of Engineers wishes to waive
Its rights to review; and
(7) Other matters as the Corps of
Engineers and the State may deem ap-
propriate.
(Comment States that regulate the dis-
charge of dredged or fill material In those
waters which, by virtue of section 404(g)( 1),
will zequlre a Corps of Engineers permit
after the State program approval are
strongly encouraged to establish in this
memorandum of agreement procedures pro-
viding for joint processing of permits. in-
cluding joint public notices and public bear-
:4 n g s-)
0123.4 Attorney General’s statement
(a) Any State desiring to administer
a permit program shall submit a state-
ment from the State attorney general
(or the attorney for those State agen-
cies which have independent legal
counsel), that the laws of the State, or
the interstate compact, as the case
may be, provide adequate authority,
including authority to levy civil and
criminal penalties and obtain Injunc-
tive relief, to carry out the program
described under 5123.3 and to meet
the requirements of this-part. The At-
torney Oeneral’s statement shall In-
clude citations to specific statutes, ad-
sninistrative regulations, and, where
appropriate, judicial decisions, to sup-
port claims of adequate legal authori-
ty.
(Comment Where furisdiction is claimed
over activities on Indian lands, the state-
ment shall contain appropriate citations set-
ting forth the 8tate’s authority.)
(b) In the case of 404 programs, in
addition to certifying the authorities
described in paragraph (a) of this sec-
tion, the Attorney General’s state.
ments must also contain:
(1) An analysis of the State’s law
prohibiting the taking of private prop-
erty without just compensation, in-
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37105
cluding any applicable Judicial inter-
pretations, and assurance that this
will not adversely affect the successful
Implementation of the State’s regula-
tion of the discharge of dredged or fill
material;
(2) A-.certiflcation that, upon pro-
gram approval, the State has each of
the following authorities to prohibit,
deny, restrict, or withdraw the specifi-
cation of disposal sites for the dis-
charge of dredged or fill material in
any defined area of those waters in
which the Secretary of the Army will
suspend the Issuance of permits:
Ci) The application of the criteria
contained In part 230 of this chapter;
(II) A determination that the dis-
charge of dredged or fill materials into
such areas will have an unacceptable
adverse effect on municipal water sup-
plies, shellfish beds and fishery areas
(Including spawning and breeding
areas), wildlife of recreational areas;
(Comment The above authority to pro.
hibit, deny, restrict, or withdraw the specifi-
cation of disposal sites should not be limited
to situations where an application for a 404
permit has been made, but should also In-
clude the capability to designate areas
which will not be available for disposal site
specification, as described In 40 CFR
230.7(d). NothIng in paragraph (b)(l), of
this section Is intended to limit the Adminis-
trator’s authority to take RImflo.r actions
under section 404(c) of the Act.)
(C) The authorities cited by the
State attorney general or other legal
officer as authority to meet the re-
quirements of sections 402 or 404 of
the act, and the following require-
ments of this part shall be in the form
of lawfully adopted State statutes or
regulations and shall be in full force
and effect at the time the Attorney
General or other legal officer sigiis
the statement required by paragraph
(a) of this section:
(1) Section 123.11 (requirement to
obtain a permit);
(2) Section (application for a
permit);
(3) Section 123.23(a)(2) (transmis-
sion of Information to EPA);
(4) Section 123.24 (Identity of signa-
tories);
(5) Section 123.31 (permIt issuance
procedures);
(6) Section 123.41 (prohIbited dis-
charges);
(7) SectIon 123.42 (applicable stand-
ards and limitations);
(8) Section 123.51 (duration of Issued
permits);
(9) Section 123.52 (transfer, modifi.
cation and reissuance of permits);
(10) Section 123.61 (Inspections,
monitoring, entry, and reporting); and
(11) Section 123.72(a)-Ch) (enforce-
ment).
(Comment Where the above-cited sections
of Part 123 Incorporate by reference sec-
tions of 40 CFR Parts 122, 124, or 125, the
Incorporatlons should be viewed as guidance
for the purposes of State 404 programs until
40 CFR Part 126 regulatIons are developed.
in addition, States should utilize the proce-
dures and criteria set forth In 33 CFR Parts
820, 323 and 325 of the regulations of the
U.S. Army Corps of Engineers as Interim
guidance In formulating theIr 404 pro-
grams)
Cd) In the case of State 402 pro-
grams, in addition to the requirements
listed In paragraph (C) of this section.
the following requirements shall be in
the form of lawfully promulgated
State statutes or regulations and shall
be in full force and effect at the time
the Attorney General or other legal
officer signs the statement required by
paragraph (a) of this section:
(1) Section 123.42 (NPDES determi-
nations); and
(2) Section 123.44 (control of dispos-
al of pollutants into wells).
123.5 Memorandum of agreement.
(a) Prior to approval by the Adn In1n-
trator of any State permit program,
the Director and the Regional Admin-
istrator shall execute, and the Admin-
istrator shall approve by signature, a
memorandum of agreement which de-
scribes the manner in which the
permit program will be administered
by the State and reviewed by EPA,
(b) Such memorandum of agreement
shall be reviewed and revised as neces-
sary, but at least once every 3 years
EPA will undertake a comprehensive
review of the Memorandum to insure
its consistency with statutory amend-
ments and EPA policies, -
(c) The memorandum of agreement
shall Include but not be limited to, the
following topIcs: -
(1) Application of EPA policies;
(2) Permit Issuance and review;
(3) Compliance monitoring;
(4) Enforcement; including funding
arrangements for effective litigation
support for the State attorneys gener-
al or other appropriate legal officers;
(5) Reporting and transmission of In-
formation (which in the case of State
404 programs, shall include assurance
that the State will transmit to the
U.S. Army Corps of Engineers, the
U.S. Fish and Wildlife Service, and the
National Marine Fisheries Service
copies of all proposed permits at the
sante time such proposed permits are
transmitted to the Regional Adminis-
trator pursuant to § 123.23(a)).
(6) In the case of 402 programs, pro-
cedures for overview of permits by
EPA, Including a statement on the
scope of the waivers available under
sections 402(d)(3) (a), (e), or (f) of the
act. While the Regional Administrator
and the State may agree to waive EPA
review of certain “classes or catego-
ries” of permits, no waiver may be
granted for the following point
sources and activities;
(I) Discharges from publicly-owned
treatment works with a daily average
discharge exceeding 0,5 million gallons
per day;
(ii) Discharges of unpolluted cooling
water with a daily average discharge
exceedIng 1 millIon gallons per day;
(ill) All other discharges with a daily
average discharge exceeding 0.1 mil-
lion gallons per day;
(lv) Discharges into the territorial
sea, the contiguous zone or the oceans;
(v) Discharges of toxic pollutants, In-
cluding discharges covered by effluent
standards, prohibitions or limitations
under sectIons 307(a) or 301(b)(2) (C)
and (D) of the act;
(vi) Discharges of hazardous pollut-
ants listed under section 311 of the
act; or
(vii) Discharges which may affect
the waters of a State other than the
one in which the discharge originates.
(7) In the case of 404 programs, a
statement on the scope of the waivers
available In sections 404 (k) or (1) of
the act. While the Regional Adminis-
trator and the State, with the concur-
rence of the U.S. Army Corps of Engi-
neers, the U.S. Fish and Wildlife Serv-
ice, and the National Marine Fisheries
Service, may agree to waive Federal
review of certain “classes or catego-
ries” of permits, as provided In 40 CFR
§ 126, no waiver may be granted for
the following activities:
(I) Discharges of toxic pollutants’
listed under sections 307(a) of the act;
(ii) Discharges of hazardous pollut-
ants listed under section 311 of the
act;
(ill) Discharges which may affect the
waters of a State other than one from
which a discharge originates;
(Iv) Discharges incidental to activi-
ties described In 404Cf)(2) of the act
(activities having as their i)urpose
bringing an area of the waters of the
United States into a new use, where
the flow and circulation of waters may
be impiired or their reach reduced);
(v) Discharges Into wetlands, as de-
fined by 40 CFR 122.3(s)(1); or
(vi) Proposed general permits.
(Comment When further decisions are
made on how activities subject to subsee-
tons 404 Ct) and Ct) of the act will relate to
State 404 programs, other activities may be
added to this list. Comments are welcomed,)
(8) ProvIsions for modification of the
memorandum of agreement by the Re-
gional Administrator and the Director,
with the aproval of the Administrator.
Cd) An approved State’s failure to
comply with the terms of the memo-
randuxn of agreement constitutes
grounds for withdrawal of EPA pro-
gram approval under the authorities
of sections 402(c) (2) and (3) or 404(l).
FIOFRAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, lETS
-------
37106
Subpeef I—bqulism.nt To Obtain oPs,adt
§ 123.11 Requirement to obtain a permit.
(a) State 402 permit programs must
have a statute or regulation, enforce-
able In State courts, which prohibits
discharges of pollutants by any person
(Including Federal facilities) except as
authorized by a permit in effect under
the State program or under section
402 of the act, or unless the discharge
Is exempted from this requirement
under 40 CFR 122.4.
(b) State 404 permit programs, as de-
scribed under § 123.3 must have a stat-
ute or regulation, enforceable in State
courts, which prohibits the discharge
of dredged or fill material by any
person except as authorized by a
permit in effect under the State pro-
gram or under sectIon 404 of the act,
or unless the discharge Is exempted
from this requirement under section
404(g)(1), 404(fXl), or 404(r) of the
act.
(Comment. SectIon 123.1(1) of this part
makes ft clear that Slates are not preempt-
ed from adopting more stringent standards
or regulating more activities that the act re-
quires. For example. States may choose to
regulate certain minor categories of dis-
charges of dredged or fill material which
have been exempted from the scope of the
Federal program by section 404(f)(1) of the
act. States are not precluded from reglilat-
Ing activities which, by virtue of section
404(gXl) of the set, also require a 404
permit from the U.S. Army Corps of Engl
neers. Although State permits In waters de-
scribed In section 404(gxl) are not 404 per-
mits, section 404(t) of the Act makes it clear
that such permits are not preempted by the
Federal 404 program. It shquld be noted
that the regulations of the Corps of Engi-
neers encourage joint Corps-State process-
Ing of permits, Including joint public notices
and hearings (33 CFR 320.4(J)(7)), and the
Corps attaches considerable weight to State
determinatIons (33 CFR 320.4(jX I)-(7)).
(C) Where a facility Is located in one
State, but the actual discharge is into
the w ters of another State, the latter
State has permitting authority under
sections 402 and 404, or certification
rights under sectIon 401, whichever is
applicable. Approved State programs
under sections 402 and .404 shall re-
flect this authority. Discharge permits
Issued by an approved State In which
the facility is located may be valid
State permits, but do not constitute
permits as required by sections 402
and 404 of the act.
Subpoii C—Acquisition .f isfeein.fisn
§ 12321 Applicatlon for a permit.
(a) Any State 402 permit program
shall insure that every applicant or
permittee complies with the applica-
tion and filing requirements of 40
CFR 122.10 and 40 CFR Part 124, Sub-
part B, as appropriate.
(b) Any State permit program imple-
menting section 404 shall insure that
PROPOSED RULES
every applicant or permittee complies
with the application and filing re-
quirements of 40 CFR Part 126 of this
chapter.
(CornmeaL’ Until regulations establishing
permit application and filing procedures for
State 404 programs are promulgated In 40
CTh Part 120, States should use the proce-
dures contained in 40 CFR 122.10 and 40
CIB Part 124, subpart B, as well as 33 CFR
Part 325 of the Corps of Engineers regula-
tions as interim guidance.)
§ 123.22 ReceIpt and use of Federal Infor-
mation.
Upon receiving EPA approval, the
State agency a4mlnlsterlng a permit
program shall be sent any relevant in-
formation which was collected by EPA
or, where appropriate, the Secretary
of the Army, before the approval of
the permit program. To Implement
this requirement, the memorandum of
agreement under § 123.5 shall provide
for at least the following, in such
manner as the Director and the Re-
gional Administrator or, where appro-
priate, the Secretary of the Army,
shall agree:
(a) Prompt transmission to the Di-
rector from the Regional Adminstra-
tor or the Secretary of the Army of
copies of any pending permit applica-
tions or any other relevant informa-
tion collected before the approval of
the State permit program and not al-
ready in the possession of the Direc-
tor. Where existing permits are trans-
ferred to the Director (Le., for pur-
poses of compliance monitoring, en-.
forcernent, or reissuance), relevant in-
formation includes support files for
permit issuance, compliance reports,
records of enforcement actions, etc.
(b) Procedures to insure that the Di-
rector will not Issue a permit on the
basis of any application received from
the Regional Administrator or the
Secretary of the Army which the Re-
gional Administrator or the Secretary
identify as incomplete or otherwise de-
ficient until the Director receives in-
formation sufficient to correct the de-
ficiency.
5123.23 Transmission of information to
EPA,
(a) Each State agency adminIstering
a permit shall transmit to the Region-
al Administrator (and in the case of
State 404 programs, to the Secretary
of the Army acting through the U.S.
Army Corps of Engineers, the Secre-
tary of the Interior acting through the
U.S. Fish and Wildlife Service, and the
Secretary of Commerce acting
through the National Marine Fisher-
ies Services), copies of permit program
forms and any other relevant Informa-
tion to the extent and In the manner
agreed to by the Director and the Re-
gional Administrator. This shall in-
clude at least the followizigl
(1) Prompt transenlacion to the Re-
gional Administrator of a complete
copy of any permit program forms, in-
cluding any permit applications. re-
ceived by the Director.
(2) Prompt transmission to the Re-
gional Administrator of notice of every
action taken by the State agency relat-
ed to the consideration of any permit
application, including a copy of each
proposed or draft permit (Including
proposed permit applications) and any
terms, conditions, requirements, or
documents which are part of or relat-
ed to the proposed or draft permit.
For proposed or draft permits the
State program shall provide:
(I) A period of time (up to 90 days)
in which the Regional Administrator
may (a) under section 402(dX2) of the
Act and 40 CFR Part 124, Subpart K,
or (b) under sectIon 404(1) of the Act
and 40 CFR Part 128 comment upon.
object to, or make recommendations
with respect to the proposed permit;
(Comment’ If the Regional Administrator
wishes to comment upon a proposed permit.
he/she will notify the State of the intention
to comment wIthin 30 days of his receipt of
the proposed permit. In making comments,
objections or recommendations on proposed
State 404 permits, the Regional Administra-
tor and, where applicable, the Administra-
tor will consider any timely written com-
ments submitted to him by the U.S. Army
Corps of Engineers, the U.S. Fish and Wild-
life Service, or the National Marine Fisher-
ies Service, and will give great weight to
these comments where they pertain to the
conservation of fish and wildlife resources
- or the maintenance of anchorage and navi-
- - gation. The State will be urged to modify
proposed permits to accommodate these
concerns)
(ii) Procedures for action by the
State agency following a written objec-
tion by the Regional Administrator
under sections 402(d) (see 40 CFR Part
124, Subpart L) or 404(1) of the Act.
(3) Transmission to the Regional Ad-
ministrator of a copy of every Issued
pçrmit Immediately following Issu-
ance, along with any and all terms,
conditions, requirements, or docu-
ments which are a part of such permit
• or which affect the authorization by
the permit of the discharge of pollut-
ants.
(4) In case of a 402 permit applica-
tion, transmission to the Regional Ad-
ministrator of notices received by the
Director from publicly owned treat-
ment works under 40 CFR 122.15(c)
and 40 CFR Part 403, upon request of
the Regional Administrator.
(b) A State permit program may ex-
clude from the requirements of sub-
section (a) of this section any permit
program forms or other information
for which the Administrator has pro-
vided a waiver under section 402
‘(dX3), (e), or (f) or section 404 (k) or
(1) of the act and in accordance with
§ 12L5(b) (8) and (7).
FEDSRAL UGISTER. VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
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PROPOSED RULES
37107
(C) Any State 402 permIt program
shall provide for tranmnimlon by the
Director to the Enforcement Division
Director of a quarterly noncompliance
report for the permit program, Includ-
ing all violations of permits Issued by
the Director (or by EPA prior to ap-
proval of the State permit program. If
the State has assumed compliance and
enforcement responsibility) In accord-
ance wIth 40 CFR 122.23.
(d) Any State 404 permit program
shall provide for transmission by the
Director to the Regional Administra-
tor of the quarterly and annual re-
ports on the permit program, In ac-
cordance wIth 40 CFR 126.32.
Ce) Any State permit program shall
keep such records and submit to the
Administrator such Information as the
Administrator or the designee of the
Administrator may reasonably require
to ascertain whether the State pro-
gram complies with the requlreznents
of the act or regulations lulued there-
under.
5123.24 identIty of signatorie, to permit
program forms.
Any State permit program shall re-
quire that permit program forms sub-
mitted by an applicant or permittee to
the Director be signed as required In
40 CFE 122.10(d) or 40 CFR Part 126.
whichever Is applicable.
Subpart D—PsnnIt Issuance Procedures
§ 123.31 Permit Issuance procedures.
(a) Any State 402 permit program
shall provide procedures for the pro-
cessing of permit applications (Includ-
ing notices, public hearings, draft de-
terminations. factaheets, and public
and governmental participation)
which comply with the following sec-
tions of this chapter (except for refer-
ences relating to the preparation of an
environmental Impact statement for
i w sources):
(1) 40 CFR 122.11 (permit Issuance);
(2) 40 CFR 122.12 (duratIon and
transferability of permits);
(3) 40 CFR Part 124, Subpart C (cir-
culation of permit applications to Fed-
eral agencies);
(4) 40 CFR Part Subpart E (draft
permits);
(5) 40 CFR Part Subpart F (public
comment and hearings):
(6) 40 CFR 124.61 and 124.82 (Issu-
ance of final permits and factsheets);
(7) 40 CFR 124.111 (public access to
Information);
(b) Any State 404 permIt program
shall provide procedures for the pro-
cessing of permit applications (includ-
ing proposed permits, public notices
and hearings, and public and govern-
ment participation) which comply
with applicable sections of 40 CFR
Part 126.
(Cbmmenf. Until the part 126 regulatIons
are promulgated, the NPDES procedures
cited In paragraph (a) of this section. and
the procedures of the Corps of Engineers In
83 CFR Parts 323 and 825 may serve as .
terim guidance for States In devisIng 404
programs.)
Subpart I—Term, sad CendHtons ef Psanlis
5123.41 ProhibIted discharges.
Any State permit program shall pro-
vide that no permit shall be Issued au-
thorizing any of the followlng
(a) Any of the discharges described
In 5122.13 of this chapter’
(Comment In the case of State 404 pro-
grams, the prohibitions specified In subsec-
tion (a), (d), Ce), (f), and (g) of 1122.13 are
applicable.)
(b) Any permit to which the Region-
al Administrator has objected In writ-
ing under sectIon 402(d) or sectIon
404(j) of the act, whichever Is applica-
ble, and In the case of 404 programs In
any defined area in which the Admin-
istrator has made a determination
under section 404(c) of the act.
5123.42 Applicable standards and limita-
tions, and other requirements.
(a) Any State 402 permit program
shall provide that each Issued permit
apply and Insure compliance with the
authorities and requirements set out
In 40 CFR 122.14 through 122.17,
whenever applicable.
(b) Any State 404 permIt program
shall provide that each Issued permit
apply and Insure compliance with the
authorities and requirements con-
tained in 40 CFR Parts 126 and 230.
5123.43 NPDES determinations.
In addition to the requirements of
.j 124.42, any State 402 permit program
shall apply the provisions of 40 CFR
Part 122, Subpart E, and of 40 CFR
Part 125. whenever applicable.
1123.44 Control of disposal of pollutant.
Into wells.
Any State 402 permIt program shall
contol the disposal of pollutants Into
wells as required by 40 CFR 122.41.
Subpart F—Duraf Ion and 1.vI.w of P.,mIN
* 123.51 Duration of issued permit..
Any State permit program shall pro-
vide that each Issued permit shall
have a fixed term not to exceed 5
years from the date of original Issu-
ance. -
5123.52 Transfer, modifications, and rels-
suance of permits.
(a) Any State 402 permIt program
shall provide for the transfer, modifi-
cation, and relssuance of each Issued
permit only In accordance with 40
CF’R 122.30, 122.31, 122.32, and 124.17.
(b) Any State 404 permIt program
shall provide for the transfer, modifi-
cation, relssusnce of each Issued
permit only In accordance wIth 40
CFR Part 126.
(CommenL Specific procedures for the
transfer, modification and relsauance of sec-
tion 404 permIts are being formulated. Until
these part 126 regulatIons are developed,
the procedures contained In 55122.30.
122.31, and 122.32 and in 33 CPR Part 325 of
the Corps of Engineers regulations will
serve as Interim guidance for States In devis-
lag 404 programs.)
Subpwt G —Inspadtsns, M.nftoda. Entry, and
I.por,I a,
1123.61 Inspections, monitoring, entry,
and reporting.
(a) Any State permit program shall
provide adequate authority:
(1) To Issue permits which apply and
insure compliance with all appilcable
requirements of sectIon 308 of the act;
or
(2) To Inspect, monitor, enter, and
require reports to at least the same
extent as required In section 308 of the
act.
(b) In the case of State 402 permIt
programs, the program elements
which Implement paragraph (a) of this
section shall include at least those re-
quirements described In:
(1) SectIon 122.14(g) (entry, Inspec-
tion, reporting, sampling);
(2) SectIon 122.20 (monitoring);
(3) SectIon 122.21 (recording of mon-
itoring results);
(4) Section 122.22 (reporting and
compliance); and
(5) SectIons 124.12(e) and 124.18 tap-.
plicatlon filing requirements and re-
quests for additional Information).
(C) In the case of State 404 permIt
programs, the program elements
which Implement paragraph (a) of this
section shall include at least those re-
quirements described in 40 CFR Part
126.
(CommenC Specific 404 program elements
regarding the above listed requirements are
being formulated. While there wW be some
differences from NPDES procedures, ide-
quite authority to undertake inspections.
monitoring, entry, and requIred reporting
will be a necessary element In an approvable
State 404 program.) -
Subpart N—Info,c.m.nt Provisions
5123.71 ReceIpt and followup of notifica-
tions md reports.
(a) Any State permit program shall
have procedures and capability for re-
ceipt, evaluation, and investigatory
followup for possible enforcement or
remedial action of all notices and re-
ports required of permittees (or failure
to submit such notices and reports),
Including notices submitted by public-
ly owned treatment works under 40
CFR 122.15(c).
FEDERAL REGISTER. VOL. 43 NO. 162—MONDAY. AUGUST 21, 1971
-------
37108
PROPOSED RULES
(b) Any State permit program shall
have Inspection and surveillance pro-
cedures which will determine, Inde-
pendent of Information supplied by
applicants and permittees, compliance
or noncompliance with applicable
standards and limitations, filing re-
quirements. and permit terms or con.
ditions, including the following:
(1) A supporting survey program
with sufficient capability to make sys-
tematic, on-the-spot, comprehensive
surveys of all waters subject to the Di-
rector’s authority in order to identify
and locate all point sources or activi-
ties subject to filing requirements, or
where applicable, dredged or fill
permit requirements. Any compilation,
Index, or Inventory of point sources or
activities shall be made available to
the Regional Administrator or his au-
thorized representative upon request;
(2) Supporting Inspection program
for the periodic inspection of dis-
charges of pollutants and facilities for
the treatment and control of these dis-
charges (not less than once every year
for every discharge under a 402 permIt
which Is not a minor discharge.) These
Inspections shall determine compli-
ance or noncompliance with issued
permit terms or conditions and, in par-
ticular, compliance or noncompliance
with specific standards and limitations
and schedules of compliance;
(3) Supporting surveillance program
for the random sampling and analysis
of discharges for the purpose of Identi-
fying occasional and continuing viola-
tions of permIt terms or conditions
and the accuracy of Information sub-
mitted by perniittees in reportirg
forms and other forms supplying mon-
itoring data; and
(4) A supporting program for follow-
ing up evidence of violations of appli-
cable standards and limitations, filing
requirements, or permit terms or con-
ditions Indicated by reports and notifi-
cations evaluated under § 124.71(a)
above ‘r by survey, Inspection, and
surveillance activities In paragraphs
(b) (1) and (3) of this section.
Samples shall be taken and other in-
formation shall be gathered in a
manner that will produce evidence ad-
missible in an enforcement proceeding
or in court, should the followup indi-
cate a violation of applicable stand.
ards and limitations or other permit
terms or conditions.
§ 123.72 Enforcement.
Any State agency administering a
permit program shall have the follow-
ing powers and procedures and re-
course to criminal and civil remedies,
Including Injunctive relief:
(a) In the case of 402 programs, pro-
cedures which enable the Director to
Immediately and effectively halt or
eliminate any Imminent or substantial
endangerment to the health or wel-
fare of persons resulting from the dis-
charge of pollutants:
(1) By an order or suit In the appro-
priate State court to Immediately re-
strain any person causing or contribut-
ing to the discharge of pollutants, or
to take such other action as may be
nec ary, or
(2) By a procedure for immediate
telephone notice to the Regional Ad-
ministrator of any actual or threat-
ened endangerment to the health or
welfare of persons resulting from the
discharge of pollutants, or the dis-
charge of dredged or fill material,
where applicable;
(b) In the case of 404 programs, pro-
cedures which enable the Director to
immediately and effectively halt or
eliminate any unauthorized discharges
of dredged or fill material, including
the authority to do each of the follow-
in
(1) Issue a cease and desist or an in-
terim protective order to any person
responsible for and/or involved In the
performance of any unauthorized dis-
charge;
(2) Sue in the appropriate State
court to lmmedlat.ely restrain any
person responsible for and/or involved
In the performance of any unathorlzed
discharge;
(3) Take any other actions that may
be necessary to immediately restrain
any person responsible for and/or In-
volved in the performance of unau-
thorized discharge; and
(4) ImmedIately notify the Regional
Administrator by telephone of any-
actual or threatened endangerment to
the health and welfare of persons re-
sulting from any discharge of dredged
or fill material.
(C) Procedures which enable the Di-
rector to sue In courts of competent
jurisdiction to enjoin any threatened
or continuing violations of any permit
terms or conditions without the neces-
sity of a prior revocation of the
permit;
(d) Procedures which enable the Di-
rector to enter any premises In which
a source of a discharge, including a
treatment facility, Is located or In
which records must be kept under
terms or conditions of a permit, and
otherwise to Investigate, inspect, or
monitor any suspected violations of
applicable standards and limitations or
of permit terms or conditions; -
(el Procedures which enable the Di-
rector to require compliance with and
to assess or to sue to recover In court,
such civil fines, penalties, and other
civil relief as may be appropriate for
the violation by any person of any of
the followlnw,
(1) Any applicable standards and
limitations,
(2) Any permit term or condition,
(3) Any filing requirements,
(4) Any duty to permit or carry out
Inspection, entry, or monitoring activi-
ties.
(5) Any order Issued by the Director
under paragraph (a) of this section, or
(6) Any rules, regulations, or orders
Issued by the Director;
(f) Procedures which enable the Di-
rector to seek criminal fines for the
willful or negligent violation by any
person of any of the follow1ng
(1) Any applicable standards and
limitations,
(2) Any permit term or condition,
(3) Any filing requirements,
(g) Procedures which enable the Di-
rector to seek criminal fines against
any person who knowingly makes any
false statement, representation, or cer-
tification In any permit program form
or any notice or report required by the
terms and conditions of any Issued
permit or knowingly renders inaccu-
rate any monitoring device or method
required to be maintained by the Di-
rector
(h) The maximum civil penalties and
criminal fines recoverable by the Di-
rector under paragraphs (e) and (f) of
this section shall be comparable to
similar maximum amounts recoverable
by the Regional Administrator under
section 309 of the act. These civil pen-
alties or criminal fines shall be assess-
able up to the maximum amounts for
such violation specified in paragraphs
(e) and (f) of this section, or, If the
violation is a continuous discharge, as-
sessable for each day the discharge
occurs; and
(CommenL It is understood that in many
States the Director wIU be represented In
State courts by the State attorney general
or other appropriate legal olficer. While the
Director need not appear In court actions
under this subpart, he should have the
power to request that such actions be
brought.)
(I) Any clyil penalty assessed, sought
or agreed upon by the Director under
paragraphs Ce) and Ct) of this section
shall be appropriate to the violation. A
civil penalty agreed upon by the Direc-
tor in settlement of administrative or
judicial litigation may be adjusted by
a percentage which represents the
likelihood of success on establishing
the underlying violation or violations
In such litigation. In the event that
such a civil penalty would be so severe-
ly disproportionate to the resources of
the owner or operator of the violating
facility that Its Imposition, together
with the costs of expeditious compli-
ance, would jeopardize its continuance
In business, the payment of the penal-
ty may be deferred or the penalty may
be forgiven In whole or In part, as cir-
cumstances may warrant.
For violations resulting from a
source’s failure to bring Itself Into L iii-
tial compliance with a statutory or
final permit deadline, “appropriate to
FEDERAL REGISTER, VOl. 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37109
the violation” as used in this para-
graph, means a penalty which Is equal
to:
(1) An amount appropriate to re-
dress the harm or risk of harm 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 pen-
alty for the violator’s degree of recalci-
trance, defiance, or indifference to re-
quirements of the law; plus
(4) An amount appropriate to recov-
er unusual or extraordinary enforce-
ment 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 yb-
lat.or’s control (floods, fires, eta).
(j) The following enforcement op-
tions, while not mandatory, are highly
recommended as means not only for
compelling compliance but also for
providing additional funds to State
program efforts:
(1) Procedures for assessment by the
Director or by a State court of any vio-
lator for the costs of an investigation,
inspection, or monitoring survey
which led to the establishment of the
violation;
(2) Procedures which enable the Di-
rector to assess or to sue any persons
responsible for the unauthorized dis-
charge of pollutants or the authorized
discharge of dredged or fill material.
where applicable, for any expenses In-
curred by the State in removing, cor-
recting. or terminating any adverse ef-
fects upon water quality resulting
from the unauthorized discharge,
whether or not accidental; and
(3) Procedures which enable the Di-
rector to sue for compensation for any
luss or destruction of wildlife, fish, or
aquatic life, and for any other actual
damages caused by an unauthorized
discharge of pollutants, or the unau-
thorized discharge of- dredged or fill
material, where applicable, either for
the State, for any residents of the
State who are directly aggrieved by
the unauthorized discharge, or both.
Subpart l—Ruourc.s, Planning, and Of h.r
R.qulv.ss.Ms
123.81 Availability of resources.
(a) Any State requesting to adminls- -
ter a permit program shall, in submit-
ting the program description under
§ 123.3, provide information regarding
funding and manpower appropriated
for the use of the program.
(1) A description (including organi-
zational charts) of all full-time and
part-time employees who will be en-
gaged in carrying out the State permit
program, including information on the
qualifications and functions of the em-
ployees, If more than one agency is re-
sponsible for administration of a 402
permit program the responsible agen-
cies should be identified, their respec-
tive responsibilities delineated, and
their procedures for coordination set
forth.
(2) A list of the proposed costs and
expenses of establishing and adminis-
tering the program described in the
program description, includlng
( I) Wages and salaries of the person-
nel listed in subparagraph (1) of this
paragi-aph.
(II) Cost of administrative support
(such as office apace and supplies,
computer time, vehicles, notice and
hearing procedures, etc.), and
(Ill) Cost of technical support (such
as laboratory space and supplies, vehi-
cles, watercraft, etc.).
(3) These cost and expense estimates
shall include the cost and expense of
carrying out the procedures and re-
quirements contained in this part.
(4) A description of the funding
available to the Director to meet the
costs and expenses listed In subpara-
graph (2) of this paragraph, including
any restrictions or limitations upon
this fundlng and
(5) A list of categories and sizes of
all point sources (e.g., major industri-
al, major municipal, minor industrial,
minor municipal, feedlot, shopping
centers and subdivisions, etc.) or dis-
charges of dredged or fill material,
where applicable, to which the Direc-
tor proposes to Issue permits under
the Act. For each category, the follow-
ing information shall be given:
(i) Estimated number within the cat-
egory which must file for a permit:
and
(ii) Number and percent within each
category for which the State has al-
ready issued a State permit or equiva-
lent document regulating the dis-
charge of pollutants.
(b) The regional administrator and
the administrator shall review the In-
formation submitted by the Director
under paragraph (a) of this section to
determine whether the Director has
resources available to carry out the
program outlined in the program de-
scription based upon an examination
of criteria which shall include but not
be limited to, the following:
(1) Whether there is sufficient fund-
ing and manpower:
(i) To process applications and issue
permits which will assure compliance
with the guidelines and requirements
-of the Act; -
(ii) For compliance monitoring and
enforcement as required by this part;
(iii) To conduct independent inspec-
tion and surveillance as required in
_ 123.71(b); and
(iv) For case development and pros-
ecution for instances of noncompli-
ance.
(2) Whether the employees of the
Director have sufficient expertise and
experience for the proper specification
of terms and conditions of permits
under Subpart E of this part;
(3) Whether the employees of the
Director have aufficient administrative
and technical support and resources,
including funding, to enable the Direc-
tor to carry out the duties required
under this part and by the Act;
(4) The number, location, and kinds
of point sources or discharges of
dredged or fill material, where applica-
ble, which constitute major sources of
discharge of pollutants within the
State or Interstate area; and
(5) The quality of the waters of the
United States within the State or sub-
ject to the authority of the interstate
agency.
§ 123.82 ContInuing planning process.
Any State permit program shall
have an approved continuing planning
process under 40 CFR Parts 130 and
131 and shall assure that its approved
planning process is at all times consist-
ent with the Act.
CommenL State 404 programs must also
assure continued coordination with Federal
and Federal/State water-related planning
and review processes, under section
404(h)(1XH) of the Act. Comments on the
nature of the procedures necessary to fulfill
this requirement are welcomed.)
§ 123.83 Agency Board membership.
Each State permit program shall
ensure that any board or body which
approves all or portions of permit ap-
plications shall not include as a
member any person who receives, or
has during the previous 2 years re-
ceived, a significant portion of income
directly or indirectly from permit
holders or applicants for a permit.
(a) For the purposes of this section
the term “board or body” includes any
individual, includtjig the Director, who
has or shares authority to approve all
or portions of permit applications
either In the first instance, as modified
or reissued, or on appeal.
(b) For the purposes of this section,
the term “significant portion of
income” shall mean 10 percent of
gross personal income for a calendar
year, except that it shall mean 50 per-
cent of gross personal income for a cal-
endar year If the recipient is over 60
years of age and Is receiving that por-
tion under retirement, pension, or sim-
ilar arrangement.
(C) For the purposes of this section,
the term “permit holders or applicants
for a permit” shall not include any de-
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
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PROPOSED RULES
37110
partment or agency of a State govern-
ment, such as a Department of Parks
or a Department ol Fish and Wildlife.
(d) For the purposes of this section,
the term Income” includes retirement
benefits, con ultant fees, and stock
dividends.
(e) For the purposes of this section.
Income Is not received “directly or In-
directly from permit holders or appli-
cants for a permit” where It is derived
from mutual-fund payments, or from
other diversified Investments over
which the recipient does not know the
identity of the primary sources of
income.
Subpws J—P,oesduros for Approval of I .i.
Psimif Pr.grams
123.91 SectIon 402 approval process.
(a) WithIn 90 days of receipt of a
complete and suffIcient 402 State pro-
gram submittal under subparts A
through 1, the Administrator shall:
(1) Provide public notice of the sub-
mittal, allow opportunity for public
comment, and hold a public hearing In
the State;
(2) Evaluate the State program to
determine whether it meets the re-
quirements of this part and of section
402(b) of the Act; and
(3) Approve or deny the program
based upon the evaluation In para-
graph (a)(2) of this section.
(b) If the Administrator approves
the State’s 402 program, the Enforce-
ment Division Director shall suspend
the issuance of permits by EPA as of
the date of program approval.
§ 123.92 Section 404 approval process.
(a) WIthin 10 days of receipt of a
State 404 program submittal under
subparts A through I of this part, the
Administrator shall provide copies of
the State’s program description, Attor-
ney General’s statement, and other
material submittal by the State to the
U.S. .rmy Corps of Engineers, the
U.S. Fish and Wildlife Service, and the
National Marine Fisheries Service.
(b) Within 120 days of receipt of a
complete and sufficIent 404 program
submittal under subparts A through I,
the Administrator shall:
(1) Provide public notice of the sub-
mittal, allow opportunity for public
comment, and hold a public hearing In
the State;
(2) Evaluate the State program to
determine whether It meets the re-
quirements of this part and of section
404(h) of the Act; and
(3) Approve or deny the program
based upon the evaluation In para-
graph (b)(2) of this section, and taking
Into consideration any comments sub-
mitted by the U.S. Army Corps of En-
gineer, the U.S. Fish and Wildlife
Service, or the National Marine Fish-
eries Service, where such comments
are submitted to the Administrator
withIn 75 days of the receipt of a com-
plete and sufficient State program
submittal. The Mminiatrator will give
great weight to these comments where
they pertain to the conservation of
wildlife resources or the maintenance
of anchorage or navigation. The State
will be urged to motif y its program to
accommodate these concerns.
(C) If the Aelminlatrator approves
the State’s 404 program, the Secretary
- of the Army shall suspend the Issu-
ance of section 404 permits by the
Corps of Engineers within such State,
except for those waters specified In
section 404(g)(1) of the Act (I.e., (1)
those waters which are subject to the
ebb and flow of the tide; (2) those
waters which are presently used, or
are susceptible to use In their natural
condition or by reasonable Improve-
ment as a means to transport Inter-
state or foreign commerce shoreward
to their ordinary water high mark
and (3) wetlands adjacent to waters In
subparagraph (1) arid (2) of this para-
graph).
Subpart k—I.vlslons to Approved Stats Psanit
Programs
123.101 Procedure for revision of State
permit programs.
(a) Program revision may be initiat-
ed at the request of either EPA or the
State.
(b) Revision of a State permit pro-
gram shall be accomplished as follows:
(1) ModifIcation and resubmisslon to
EPA by the State of the program de-
scription required by • 123.3. the At-
torney General’s statement required
by 123.4, and the memorandum of
agreement required by § 123.5:
(2) FollowIng EPA public notice and
opportunity to comment, Including an
opportunity to request a public hear-
ing on the modification. A public hear-
ing shall be In cases of significant
public interest.
(3) With the approval of the Admin-
istrator.
122.1 02 Program revisions under the
Clean Water Act of 1977.
(a) Approved State permit programs
Implementing section 402 and ap-
proved by EPA may be revised, if nec-
essary,
(1) To exclude return flows from Ir-
rigated agriculture from coverage as
point source diachargers.
(2) To allow permits to be Issued
which comply with section 301(bX2) of
the Act,
(3) To allow the Directors to exercise
the authority under section 301(i) of
the Act to Issue or modify permits
which extend the time for compliance
specified in sections 301(bXl)(B) and
301(b)(1)(C). in accordance with the
requirements of subpart K, part 125 of
this chapter.
(4) To allow the Director to exercise
the authority under 301(k) of the Act
to establish, in consultation with the
Attninf4rator end In accordance with
40 CFR Part 125, Subpart D, a date
for compliance under section
801(bX2)(A) no later than July 1, 1987.
(Comment Section 510 of the Act provides
that States may adopt and enforce require-
ments more stringent than those In the Act.
Therefore, those States with approval
permit programs which do not revise their
402 programs under this paragraph retain
existing State requirements unless they are
revised. Similarly, as indicated In the com-
ment to 5123.11(b), States are not preempt-
ed from adopting more stringent standards
or regulating more activities than the Act
requires.)
(b) Approved State permit programs
Implementing section 402 and ap-
proved by EPA shall be revised, if nec-
essary:
(1) To Include Issuance of permits
under sections 318 and 405 of the Act.
(2) To ensure that any permit issued
to a point source complies with the re-
quirements of section 304(e) of the Act
and 40 CFR Part 125, Subpart L.
(3) To ensure that any permit for a
discharge from a publicly owned treat-
ment works Includes conditions which
comply with the amendment to sec-
tion 402(b)(8) of the Act, Including 40
CFR Part 402 and 40 CFR 122.15.
(4) To authorize and require State
Issuance, monitoring (including report-
•,lng, entry, and Inspection) and en-
forcement of permits to Federal facili-
ties to the same extent as any person.
(Comment Facilities on Indian lands are
not Federal facilities,)
(C) Any approved State 402 permit
program which requires modification
to conform to this section shall beso
modified before December 27, 1978,
unless In order to make the required
modification a State must amend or
enact a law, In which case such modifi-
cation shall take place before Decem-
ber 27, 1979.
(d) Failure of an approved State to
modify Its permit program under para.
graphs (b) and (c) of this section con-
stItutes grounds for withdrawal of pro-
gram approval under section 402c)3)
of the Act.
123.103 Other program revisions.
(a) Approved State permit programs
shall be revised whenever the State
desires to transfer any program au-
thorities from the approved State
agency to a new or successor agency.
Unless the transfer Is approved by
EPA, the new or successor agency
shall have no program authority, (I.e.,
It cannot Issue or enforce permits). If
no State agency is authorized by EPA
to Issue or enforce a permit because of
a trapsfer under this section, thIs con-
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 1975
-------
37111
stitutes grounds for withdrawal of pro.
gram approval. Any permit Issued by
the successor agency shall be subject
to EPA objection as being outside the
guidelines and requirements of the
Act.
(b) Any State with an approved pro-
gram may terminate that program and
“return” program authoriUes and re-
sponsibilities to EPA or the Secretary
of the Army, as the case may be.
through a written agreement with the
Regional Adenlnlatrator which Is ap-
proved by the Administrator.
3.40 CFR Part 124 Is proposed to be
revised as follows:
PART 124—PIOUDURES FOR DEOSIONMAK-
ING REGARDING NPOES PERMITS
— A-Puipss. and kap.
Sec.
124.1 ApplicabilIty.
124.2 DefinitIons.
B—Tb. Appikado. P,o.u
124 11 ApplicatIon for a permit.
124.12 SpecIal provisions for applications
from new sources.
124.13 InformatIon to be submitted when
applying for an alternative effluent limi-
tattoo for thermal discharges under sec-
tion 316(a).
124.14 ApplIcations for variances from and
modifications of effluent requirements.
124.15 ModIfication request.
124.16 Permits required on a case-by-case
basis.
124.17 Requests for additional informa-
tion.
Subpait C— culatisr of AppIicolisna Is, P•rndhs to
0th.. Asndss
124.21 CIrculation to the Corps of Engi-
neers.
124.22 CirculatIon to other Federal agen-
cies
124.23 New source consultation require-
ments.
Subpa,I 0—Slats C. ,tIBan$is .
124.31 CirculatIon of applications or draft
permit to certifying States.
124.32 State certifications.
24.33 Effect of State certification.
Subpoit I—P,.pa,atI.n .1 a proft P.n.lt
124.41 Draft permit.
124.42 Other draft permits.
124 43 Fact sheet.
124.44 AdminIstrative record.
Subpart F—Public C.inu..nt and H.aiiss
124.51 PublIc notice regarding draft per-
- mits and permit conditions.
124.52 Public comments and hearings.
124.53 ObligatIon to raise points and pro-
vide Information during the comment
period.
124.54 Reopening of comment period.
Subpart G—luu.nc. and Lff.ctlv. Dat. .1 P.i.It
124.61 Issuance and effective date of
permit.
12462 FInal environmental Impact state-
ment.
124.63 FInal fact sheet.
124.64 AdminIstrative record for final
permit.
PROPOSED RULES
Sec -
134.65 Early decision on certain permit
conditions.
124.66 Deferral of decision on certain
permit conditions.
kapad N-
124.71 ApplicabWty.
124.72 DeflnlUons.
12t73 Piling sod submission of documents.
124.74 Requests for evidentlary bearing
and /or legal decision.
124.75 DecIsion on request for a hearing.
124.76 Obligation to raise Issues before a
final permit is Issued.
124.77 NoUce of hearing.
124.78 SeparatIon of functions; 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 Prehearlng conferences.
124.84 Summary determination.
124.85 Bearing procedure
124.86 Motions.
124.87 Record of hearings.
124.88 Proposed findings of fact and con-
clusloDs brief.
124.89 DecIsions.
124.90 Interlocutory appeal.
124.91 DecisIons of General Counsel on
matters of law.
Subpaii l—Appaali
124.101 Appeal to the Regional Adminis-
trator.
124.102 Appeal to the Administrator.
124.103 ApplicabIlity of Subpart K
Subpart J—N.n-.dvsnary biltiol Lka.s g
Pros.’ . ...
124.111 ApplicabilIty. -
124.112 PublIc notice regarding draft per-
mits and permit conditions.
12L113 Request for hearing; Request to
participate In a hearing.
124.114 Effect of denial of or absence of re-
quest for hearing.
124.115 Notice of hearing.
124. 116 Request to participate In hearing.
124.117 SubmIssion of written comments
on draft permit.
124.118 PresIding officer.
124.119 Panel hearing.
124.120 Opportunity for cross-examina-
tion.
124.121 Ex parte contacts.
124.122 Record for final permit.
124.123 FIling of brief, proposed findings
of fact and conclusIons of law and pro-
posed modified permit..
124124 Recommended decision.
124.125 Appeal from or review of recom-
mend decision.
124.126 Final decision.
124.127 FInal decision If there Is no review.
kapad K- s.s.
184.131 Public access to Information.
124.132 Delegation of authority; time Umi-
Subpart L—.Pvsc.duans Is. EPA R.vlse .15 1.1.
P.,.Its Undo, SectIon 402 1
Aursoasry: TIUes Ill. IV and V. Clean
Water Act (Pub. L 92-600, as amended by
Pub. L. 95-217). 33 U.S.C. 1251. et seq.
* 124.1 Applicability.
This part specifies the procedures to
be followed in the three types of
permit decisions provided for by the
Act. These are the Issuance of a
permit, review of permits by other
agencies, and appeal procedures. Sub-
parts B, E, F, and 0 contaIn the piece-
dures for application and Issuance of a
permit, and are app1Ic ble to both
EPA and approved States. Subparts C;
D, and L establish the methods for
consultation, recommendations, or
review by agencies other than the
permit Issuing authority, e.g., subpart
D provides for State Certification
under sectIon 401 of the Act for EPA-
Issued permits, subpart L provides for
EPA review of State-Issued permits,
etc. Subparts H, I. and J contain
mechanisms for appeals from permit
decisions, but are applicable to EPA
only; appeals from permit decisions In
approved States must proceed accord-
ing to the applicable State law. Permit
decisions are organized under this part
into a sequence of nine procedural
stages. First, n application must be
made In proper from (subpart B). This
application will then be circulated to
the Corps of Engineers and other Fed-
eral agencies (subpart C) and to affect-
ed States (subpart D). After that, EPA
or the approved State will prepare and
Issue a draft permit or permit denIal
(subpart El, which will be made availa-
ble for public comment (subpart F or
J). Alter these comments have been
considered, EPA or the approved State
will Issue a final permit or permit
denial (subpart 0 or J), and any inter-
ested person may then request an EPA
hearing on the questlon Involved
(subpart H or J, for EPA issued per-
mits only). The initial decision made
after an EPA hearing may then be ap-
pealed to the Regional Administrator
and the Administrator (subpart I or
J). Under these regulations, decisions
on variance requests will ordinarily be
made during the permit Issuance proc-
ess. Requests for permit modifications
and other changes In permit terms will
be made where possible, through the
same procedures as apply In making
decisions on Initial permits. Each such
decision must move through the same
procedures of notice-and-comment and
potential hearings as the basic permit.
* 124.2 DefinitIons.
The definitions in Part 122 apply to
this part, except that, as used In this
part, “permit” includes the denial of a
permit or the grant or denial of a vail-
- once or permit modification.
Subpart A—Purpos, end kop.
FEDERAL REGISTER VOL. 43, NO. 162—MONDAY AUGUST 2I 1978
-------
37112
PROPOSED RULES
Subpstl I-Th. Appllcstlsn Prscsu
* 124.11 Application for a permit.
(a) Any person who discharges or
proposes to discharge pollutants shall
complete, sign, knd submit an applica-
tion to the Enforcement Division Di.
rector in accordance with paragraphs
(b) through (g) of this section,
(b) Persons currently discharging:
(1) Who have not received a permit
are In violation of the Act and are sub-
ject to enforcement action by EPA
and, where appropriate, the approved
State.
(2) Who have existing permits must
submit new applications under para-
graph Cc) of this section where facility
expansions, production increases, or
process modifications will:
(i) Result in new or Increased dis-
charges of pollutants or a change in
the nature of the discharge of pollut-
ants, or
(11) Violate the terms and conditions
of the existing permit.
(3) Who have expiring permits must
submit new applications at least 180
days before the expiration date of the
existing permit, unless permission for
a later date has been granted by the
Enforcement Division Director.
CommenL Under 5 U.S.C. 658(c) and 40
CFR 122.33, a discharger’s existing permit
will not expire once timely and sufficient
application has been made for a renewal
permit under this section and certain other
conditions are met, until EPA has reached a
final administrative decision on that new
permit.)
Cc) Except as provided In 40 CPR
122.47(c)C4) and 124.13. persons pro-
posing new discharges must 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 En-
forcement Division Director.
(d) No NPDES permit shall be issued
until the applicant has fully compiled
with tue application filing require-
ments in this subpart. If an applicant
falls or refuses to correct deficiencies
in his NPDES application form, the
permit should be denied or appropri-
ate action may be taken under sections
308, 309, 402(h). and 402(k) of the Act.
(e) Permit applications must comply
with the certification requirement of
40 CFR 122.5(b). The Act provides
that any person who knowingly makes
any false statement, representation, or
certification in any application, shall
upon conviction, be punished by a fine
of not more than $10,000 per false-
hood, or by imprisonment for not
more than 6 months per falsehood, or
both.
§ 124.12 SpecIal provisions for applica-
tions from new sources. -
(a) In addition to the application re-
quirenienta of * 124.11 the owner or
operator of any facility which may be
a new source as defined in 40 CPB
122.3(t) in a State without an ap-
proved NPDES program must comply
with the provisions of this section.
(b) (1) The owner or operator of any
facility which may be a new source
must submit a completed new source
and environmental questionnaire (NSf
EQ) to the Regional Administrator
before beginning any orisite construc-
tion of the source as defined in 40
CFR 122.47, NS/EQ forms will be pro-
vided by the Enforcement Division Di-
rector on request. The Enforcement
Division Director may request any ad-
ditional information needed to deter-
mine whether the facility is a new
source.
(2) The Enforcement Division Direc-
tor shall make an initial determination
of whether the facility is a new source
withIn 30 days of receiving all neces-
sary information under paragraph
(b)(1) of this section.
Cc) If the Enforcement Division Di-
rector decides that a facility is a new
source under paragraph (b) of this sec-
tion he/she shall notify the applicant
that It must comply with the environ-
mental review requirements of 40 CFR
Part 6.9.
Cd) Any interested person may chal-
lenge the Enforcement Division Direc-
tor’s initial new source determination
by requesting an evidentiary hearing
under Part 124 withIn 80 days of issu-
ance of the public notice of the Initial
determination. The Regional Adminis-
trator may defer the evidentlary hear-
ing on the determination until after a
final permit decision is made under
§ 124.61, and consolidate the hearing
on the determination with any hear-
ing on the permit.
§ 124.13 Information to he submitted
when applying for an alternative efflu-
ent limitation for thermal discharges
under sectIon 316(a).
Ca) (1) Any discharger may request
the Enforcement Division Director, or
where appropriate, the Director to
Impose alternative effluent limitations
under sectIon 3 18(a). ThIs application
shall be in writing and may only be
filed at the same time as a timely ap-
plication for a permit under this part.
A copy of the application shall be sent
simultaneously to the appropriate
State or interstate certifying agency.
The request shall Include:
(I) A description of the alternative
effluent limitation requested;
511) A description, Including a plan of
study, of the method by which the dis-
charger proposes to demonstrate that
the normally applicable thermal dis-
charge effluent limitations are more
stringent than necessary to assure the
protection and propagation of a bal-
anced, indigenous community of shell-
fish, fish and wildlife in and on the
body of water Into which the dis-
charge is to be made; and
(111) A description of the type of
data, studies, experiments, and other
Information which the discharger in-
tends to submit as support for the
demonstration.
(2) The Enforcement Division Direc-
tor/Director shall prompity notify the
Secretary of Commerce and the Secre-
tary of the Interior of the filing of the
request and shall consider any timely
recommendation they submit.
(3) Any species specifically men-
tioned In applicable State water qual-
ity standards, and any other particu-
larly representative Important species,
shall be considered for more detailed
study in an effort to provide a focus
for the demonstration.
(b) As soon as practicable, the En-
forcement Division Director/Director
shall inform the discharger whether
the method and supporting informa-
tion proposed to be submitted for the
demonstration Is acceptable as a pro-
ilminary matter.
Cc) In making the demonstration the
discharger shall consider any informa-
tion or guidance published by the
agency to assist in ‘ ing such dem-
onstrations,
Cd) If an applicant wishes a ruling on
a section 8 18(a) application before the
ruling on any other necessary permit
terms and conditions, as provided by
* 124.65, it shall so request upon filing
its application under paragraph (a) of
this section. This request shall be
granted or denied in the sole discre-
tion of the Enforcement Division Di-
rector/Director.
Ce) The discharger shall have the
burden of proof throughout the ad-
ministrative process until the agency’s
decision has become final after ex-
haustion of all administrative reme-
dies.
* 124.14 ApplIcations for variances from
and modifications of effluent requite-
menta. -
(a) Applications for variances from
and modifications of effluent limita-
tions under the statutory and regula-
tory provisions listed In this section
may be made only as provided in this
section.
(b) A discharger which Is not a pub-
licly owned treatment works may -
quest a modification of otherwise ap-
plicable effluent limitations under any
of the following statutory or regula-
tory provisions within the times speci-
fied, The request shall include all ar-
guments and factual grounds which
the applicant oonslders relevant to the
request, including all supporting mate-
rial.
(1) A request for a variance from
otherwise applicable effluent limita-
tions guidelines based on the presence
of fundamentally different factors
FEDERAL REGISTER VOL. 43 NO. 162—MONDAY, AUGUST 21, 1978
-------
PWPOSED lUtES
37113
from those on which the guideline was
based. may be made no later than the
close of the public comment period
under 5124.52. The request shall dam.
onstrate that the requirements of 40
CFR Part 125 Subpart E have been
met.
(2) A variance under section 301(c
based on economic capability from the
requirements of section 301(b)(2XF)
for best available control technology
(BAT) may be requested:
(I) On or before October 24, 1978, for
a pollutant which is controlled by a
BAT effluent limitation guideline pro-
mulgated before enactment of the
Clean Water Act of 1977 (December
27, 1977);
(ii) Not later than 270 days after
promulgation for a pollutant which is
controlled by a BAT effluent guideline
which Is promulgated after December
27, 1977;
(iii) No later than the close of the
public comment period under 5124.52.
for a pollutant which is limited in the
permit based on a BAT determination
under section 402(aXl) of the Act in
the absence of effluent limitation
guidelines.
The request shall demonstrate that
the requirements of 40 CFR Part 125
Subpart F have been met.
(3) A variance under section 801(g)
based on certain environmental con-
siderations from the requirements of
section 301(b)(2)(F) for best available
control technology (BAT) may be re-
quested:
(I) On or before October 24. 1978, for
pollutant which Is controlled by a
BAT effluent limitation guideline pro-
mulgated before enactment of the
Clean Water Act of 1977 (December
27, 1977);
(ii) Not later than 270 days after
promulgation for a pollutant which Is
controlled by a BAT effluent guideline
which is promulgated after December
• 7. 1977;
(ill) No later than the close of the
public comment period under § 124.52.
fora pollutant which Is limited In the
permit based on a BAT determination
under section 402(a)(1) of the Act in
the 8 bsence of effluent limitation
guidelines.
The request shall demonstrate that
the requirements of 40 CFR Part 125
Subpart F have been met.
(4) An extension under section
301(iX2) of the statutory deadlines In
sections 301(bX1XA) or (b)(1XC)
based on delay In completion of a pub-
licly owned treatment works Into
which the source is to discharge may
be requested on or before June 26,
1978. or 180 days after the relevant
publicly owned treatment works re-
quests an extension under paragraph
(c)(2) of this section, whichever is
later. The request shall demonstrate
that the requirements of 40 CFR Part
125 Subpart K have been met,
(5) An extension under section
301(k) from the statutory deadline of
section 301(bX2)(A) for best available
control technology based on the use of
innovative technology may be request-
ed no later than the close of the public
comment period under 5 124.52 for the
discharger’s Initial permit requiring
compliance with best available control
technology. The request shall demon-
strate that the requirements of 40
CFR Part 125 Subpart P have been
met,
(6) A modification under section
3023(bX2) of requirements under sec-
tIon 302(a) for achieving water quality
based effluent limitations may be re-
quested no later than the close of the
public comment period under 5124.52.
The request shall demonstrate that
the requirements of that section have
been met.
Cc) A discharger which is a publlUy
owned treatment works may request a
modification of otherwise applicable
effluent limitations under any of the
following statutory provisions within
the times specifled
(1) A variance under section 301(h)
from secondary treatment require-
ments under section 301(bX1XB) for
discharges into marine waters may be
requested on or before September 24,
1978. The request shall demonstrate
that the requirements of 40 CFE Part
125 Subpart U have been met.
(2) An extension under section
301(1X1) from the statutory deadlines
In sections 301(b)(1)(B) or (b)(1)(C)
based on delay In the construction of
new publicly owned treatment facili-
ties may be requested on or before
June 26, 1978.
(3) A modification under section
302(b)(2) of the requirements under
sectIon 302(a) for achieving water
quality based effluent limitations may
be requested no later than the close of
the public comment period under
5124.52. The request shall demon-
strate that the requirements of that
section have been met.
(d) Decisions on variances or modif i-
catlons,
(1) Variances or modifications under
paragraphs (b)(4) and (5) and (c)(2) of
this section may be granted by the Di-
rector, subject to EPA review under 40
CFR Part 124 Subpart L and 40 CFR
Part 125 Subpart B.
(2) Var Iances or modifications under
paragraphs (b) (1). (2), (3), and (6),
and (C) (1) and (3) of this section may
be granted by the Enforcement Divi-
sion Director only, even where there is
an approved State progam. Decisions
of the Enforcement Division Director
to grant these variance or modifica-
tion requests require the prior review
and concurrence of the EPA Deputy
Assistant Administrator for Water En-
forcement. Where the Deputy Assist-
ant Administrator does not concur
with the Enforcement Division Direc-
tor on a particular variance or modifi-
cation request, the decision of the.
Deputy Assistant A hnInI4rator for
Enforcement shall become the deci-
sion of the Enforcement Division Di-
rector and be reflected in the terms
and conditions of the permit.
(8) A request for a variance or mod!-
fication shall be made to the Director
for permits issued by the Director. If
the variance or modification requested
Is one which only the Enforcement Di-
vision Director can grant, EPA shall
take action on that request only if the
Director concurs In the request, Incor-
porates the requested variance or
modification into a draft permit, and
forwards the request and draft.permlt
to EPA for the Enforcement Division
Director’s determination,
(e) If a timely request under para-
graph (b) or (a) of this section is made
for a variance from or modification of
a permit which the Enforcement Divi-
sion Director has authority to Issue,
one of the following shall apply: -
(1) If the Enforcement Division Di-
rector has received an application
under 5124.12 for Issuance or renewal
of that permit but has not yet Issued a
proposed permit under 5124.41 cover-
ing the discharge In question, the En-
forcement Division Director shall set
forth a tentative determination on the
request at the time the draft permit is
issued as specified In 5124.43.
(2) If the Enforcement Division Di-
rector has issued a draft permit under
5124.41 coverIng the discharge in
question, but that permit has not yet
become final, administrative proceed-
ings concerning that permit shall be
stayed and the Enforcement Division
Director shall Issue a new draft permit
Including a tentative determination on
the request, and the fact sheet re-
Quired by 5124.43. -
(3) If the permit has become final
and no application under 5124.12 con-
cerning it Is pending, the Enforcement
Division Director shall issue a new
draft permit under § 124.41. This
permit shall be accompanied by the
tact sheet required by 5124,43. except
that the only matters considered shall
relate to the requested variance.
- (f) Any draft permit Issued under
paragraph Cd) or (e) of this section
shall be subject to the notice and com-
ment and other requirements of
§124.51 through 124.64, except that
the Enforcement Division Director In
his/her discretion may omit any re-
quirements, or decline to consider any
arguments or information, that do not
relate directly to the requested
variance(s).
FEDERAL REGISTER, VOL. 43, NO. 142—MONDAY, AUGUST 21 1978
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-37114
* 124.i5 Modification requesi&
If a discharger with a permit be-
lieves that a modification to that
permit is justified under the standards
of 40 CFR 12231. ft may request a
modification from the Enforcement
Division Director or, where appropri-
ate, the Director In writing. The re-
quest shall set forth all facts or rea-
sons known to the discharger which
may be relevant to a decision on the
modification request
(bXl) If the Enforcement Division
Director agrees that the modification
request appears justified, he/she shall
so notify the discharger, which may
then apply for a revised permit Incor-
porating the modification in accord-
ance with 124.12 and 124.13.
(2) If the Enforcement Division Di-
rector, or where appropriate, the Di-
rector decides that the modification
request does not appear justified, he/
she shall reply to the discharger brief-
ly setting forth In writing the reasons
for that decision.
* 124.15 Permits required on a case-by-
case basis.
(a) Various sections of 40 CFR Part
122 allow the Enforcement Division
Director or, where appropriate, the Di-
rector to determine, on a case-by-case
basis, that certain concentrated
animal feeding operations (0122.42),
aquatic animal production facilities
( 122.43), separate storm sewers
(0122.45), and silvicultural activities
(0122.46) that do not generally require
Individual permits should obtain one
because of their contribution to water
pollution.
(b) Whenever the Enforcement Divi-
sion Director or, where appropriate,
the Director decides that a permit
should be required under one of these
sections, he/she shall inform the dis-
charger In question of that decision
and tb reasons underlying it in writ-
ing. T’- e discharger must then apply
for a permit under this part. The ques-
tion whether the Initial designation
was proper will remain open for con-
sideration during the public comment
period under subpart F and any subse-
quent hearing.
124.17 Requests for additional informa-
tion.
Permit applications are designed to
fit the normal situation for most dis-
chargers. However, l} the Enforcement
Division Director or, where appropri-
ate, the Director determines that fur-
ther information or a site visit is nec-
essary In order to evaluate the dis-
charge completely and accurately, the
applicant shall be notified and a date
shall be scheduled for receipt of the
requested information and schedulIng
of any necessary site visit.
PROPOSED RULES
Subpaie C—GresI.$lan of Ap lIcsI1sos f 0 ,
Psonlis to Off ii , A..rdu
I 124.21 Circulation to the Corps of Engi.
(a) In order to assure that the Secre-
tary has enough time to evaluate the
Impact of any proposed discharge on
anchorage and navigation, the En-
forcement Division Director or, where
appropriate, the Director shall for-
ward to the District Engineer in the
appropriate district one copy of a
draft permit and a draft public notice
of it prior to the publication of that
notice.
(b) The Enforcement Division Direc-
tor or, where appropriate, the Director
shall also forward notice that the Dis-
trict Engineer has a stated number of
days to request further information
and to evaluate the impact of granting
that permit upon anchorage and navi-
gation and to advise the Enforcement
Division Director or the Director of
that evaluation. District Engineers will
normally be given 30 days to evaluate
that impact. If the Enforcement Divi-
sion Director or the Director finds
that less time should be allowed he/
she shall advise the District Engineer
of the lesser period of time and outline
the reasons for the finding. In all
cases the Enforcement Division Direc-
tor or the Director shall advise the
District Engineer that failure to
answer within the allotted period will
be considered a finding that anchor-
age and navigation will not be substan-
tially Impaired by granting the permit.
Ce) If the District Engineer advises
the Enforcement Division Director, or
the Director, that anchorage and navi-
gation 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 ap-
plicant shall be so notified. If the Dis-
trict Engineer advises the Enforce-
ment Division Director, or the Direc-
tor, that Imposing specified conditions
upon the permit is necessary to avoid
any substantial Impairment of anchor-
age or navigation, then the Enforce-
ment Division Director or the Direc-
tor, shall include the specified condi-
tions in the permit. Appeals of condi-
tions specified by the District Engi-
neer shall be made through the appli-
cable procedures of the Corps of Engi-
neers, and may not be made through
the procedures provided In this part,
Cd) If the District Engineer notifies
the Enforcement Division Director or
the Director that more time Is needed
for his/her evaluation more time will
be granted where it appears that the
public interest warrants this exten-
sion.
* 224,22 Circulation to other Federal
agencies.
Ca) The Enforcement Division Direc-
tor or, where appropriate, the Director
shall forward to the Regional Director
of the US. Fish and Wildlife Service
and the National Marine Fisheries
- Service, a draft permit and a draft
public notice of It prior to the publica-
tion of that notice. These agencies
may waive their right to receive no-
tices for any classes and categories of
permits.
Cb) The Enforcement Division Direc-
tor or the Director shall also forward
notice that the agency has a stated
number of days In which to request
further information and to evaluate
the Impact of granting that permit
upon the fish, shellfish, and wildlife
resources of the State In which the
discharge will occur. The normal
period to evaluate the effects of the
discharge on fish, shellfish and wild-
life resources will be 30 days. If the
Enforcement Division Director or the
Director finds that less time should be
allowed, he/she shall advise the
agency of the lesser period of time and
outline the reasons for that finding. In
all cases the Enforcement Division Di-
rector or the Director shall advise the
agency that failure to answer within
the allotted period will be considered a
statement that the agency does not
choose to comment.
(c) If the agency advises the En-
forcement Division Director or the Di-
rector that the Imposition of specified
conditions upon the permit Is neces-
sary to avoid substantial impairment
of fish, shellfish, or wildlife resources,
the Enforcement Division Director or
the Director may include the specified
conditions In the permit.
Cd) If the Agency notifies the En-
forcement Division Director or the Di-
rector that more time Is needed for
his/her evaluation, more time will be
granted where It appears that the
public Interest warrants this extéT-
sion.
Ce) Similar agreements should be
made by the Enforcement Division Di-
rector and the Director with other
Federal agencies and with State fish
and wildlife and public health agen-
cies,
* 124.23 New source consultation require-
ments.
The Enforcement Division Director
shall consult with other Federal agen-
des concerning the probable Impact of
a new source as required wider 40
CFR 6920.
Subp.,I D—Siat. Ces$Ifcsfiee
0124.31 CirculatIon of applications or
draft permits to certifying States.
(a) Under section 401(aXl) of the
Act, the Enforcement Division Direc-
FEDERAL REGISTER, VOL 43, NO. 152—MONDAY, AUGUST 21, 191$
-------
PROPOSED RULES
37115
tor may not Issue a permit until a cer•
tificatlon Is granted or waived In ac-
cordance with that section by the
State In which the discharge origi-
nates or will originate. Where a lacifi-
ty Is located In one State, but the
actual dIs1 ’h rge Is Into the waters of
another State. the latter State Is the
one with certification rights under sec-
tion 401(aXl).
(b) When an application Is received
which does not Include a State certifi-
cation, the Enforcement Division Di-
rector shall, approxImately 60 days
before public notice of the draft
permit Is planned, send the certifying
State agency;
(I) A copy of a prPlIminPJ ’y draft
permit or the application;
(II) A statement that the Enforce-
ment Division Director cannot issue or
deny the permit until the certifying
State agency has granted or denied
certification under 124.32;
(Ill) A statement that the right to
certify will be deemed waived unless
exercised within a specified reasonable
time.
(Comment- The specified reasonable time
will normally be 60 days. U the Enforce-
ment Division Director finds that Ices time
should be allowed, he/she shall advise the
certifying State agency of the lesser period
of time end outline the reasons for that
finding. If the agency notifies the Enforce-
merit Division Director In writing that more
time Is needed for evaluation, an extension
upto lyearmay be granted.)
§ 124.32 State certification.
(a) A State certification shall be
made In writing and shall state that
compliance with the terms and condi-
tions of the referenced permit plus
any additional requirements estab-
lished by the certifying State agency
will result In compliance with the ap-
plicable provisions of sectIons 301, 302,
306 and 30’l of the Act, and appropri-
ate requirements of State law. The
ertlllcation must Identify the provi-
sions of State law. If any, which form
the basis for any additional require-
ments.
(b) Where a certifying State agency
cannot certify to the conditions con-
tained in paragraph (a) of this section.
It may deny certification In writing.
I 124.33 Effect of State certification.
(a) Ordinarily, the Enforcement D1-
vision Director should not issue a
draft permit until State certification
has been obtained, denied, or waived.
However, the Enforcement Division
DIrector may. where necessary, Issue a
draft permit prior to State certif lea-
tion or waiver.
(b) Where certification Is required
under section 401(aXl) of the Act, no
final permit shall be Issued:
(I) If certification Is denied, or
(ii) Unless the final permit incorpo-
rates any requirements specified under
124.32(a). Appeals of State certified
conditions shall be made through the
applicable State procedures, and may -
not be made through the procedures
provided In this part. . -
(C) State certification, once granted,
cannot be withdrawn or modified
during the term of the permit
Subpaii I—.Mporatlon of D,uft Ps, t
124.41 Draft permit.
(a) If a permit has been properly re-
quested under 0124.12, the Enforce-
ment Division Director or, where ap-
propriate, the Director, after analyz-
ing the data and other Information
concerning a permit furnished under
subparts B and C, and any other rele-
vant information, shall tentatively
decide whether to Issue or deny the
permit. Any environmental Impact
statement prepared under 40 CFR
6.912, and any other applicable factors
listed in 40 CFR 6.920, shall be consid-
ered In deciding whether to Issue a
permit for a new source under this sec-
tion.
(b) If the Enforcement Division Di-
rector or. where appropriate, the Di-
rector tentatively decides to Issue a
permit, a draft permit shall be pre-
pared containing at a mI’ilmum
(1) All conditions, limitations, or re-
quirements required under 40 CFR
122.14:
(2) All effluent limitations, stand-
ards, prohibitions and conditions re-
quired by 40 CFR 122.15, includIng
any conditions certified by a State
agency under subpart D, variances or
other modifications. All effluent limi-
tations and standards shall be calcu-
lated and specified as required by 40
CFR 122.16;
(3) All compliance schedules re-
quired by 40 CFR 122.17; and
(4) All monitoring requirements re-
quired by 40 CFR 122.20.
Cc) Any draft permit shall be accom-
panied by the fact sheet required by
0124.43 and shall be based on the ad-
ministrative record required by
5124.44.
Cd) If the Enforcement Division Di-
rector determines under 40 CFR Part
6.9 that an environmental Impact
statement shall be prepared for a new
source the public notice of the draft
permit under this section shall not be
Issued unless a draft environmental
Impact statement Is Issued before or at
the same time as public notice of the
draft permit.
• 124.42 Other draft permits.
(a) In the following cases the En-
forcement Division Director or. where
appropriate, the Director may Issue a
draft permit concerning a permit with-
out having received an application
from a discharger.
(1) If the Enforcement Division DI- -
rector or, where appropriate, the Di-
rector decides that a permit should be
modified or revoked under 5122.31,
he/she shall issue a draft permit re-
flecting the modifications or a draft
notice of intent to revoke.
(2) Oeneral permits under 40 CFR
122.48 will be Issued In draft form
without having been applied for.
(b) Any draft permit or notice of
Intent to revoke Issued under para-
graph (a) of this section shall be as-
companled by the fact sheet required
by § 1 .24.43 and based on the n Ini
trative record defined In 5124.44.
5124.43 Fact sheet.
(a) Each draft permit or notice of
intent to deny a permit Issued under
5124.41 or 5124.42 shall be accompa-
nied by a fict sheet which shall briefly
set forth the major facts and the sig-
nificant factual, legal, methodological
and policy questions considered In set.-
ting the terms of the draft permit.
The Enforcement Division DIrector or,
where appropriate the Director shall
send this fact sheet to the applicant,
interested Federal agencies, any a!-
fected State, and to all persons on a
mailing list developed from those who
request to be on the list and by using
the following methods:
(1) SolicIting persons for “area lists”
from participants In past permit pro-
ceedings In that area and
(2) NotifyIng the public as to the
availability of mailings of fact sheets
through press publication and notices
In regional and State funded newslet-
ters. The mailing list may be updated
from time to time by requesting (via a
postage paid card) an Indication of
continued Interest lii being on the
mailing list.
(b) In general, the fact sl eet shall
Include:
(1) A brief explanation of the ex-
press statutory or regulatopy provi-
sions on which permit requirements
are based, Including appropriate sup-
porting references to the administra-
tive record required by 5124.44.
(2) Any calculations or other neces-
sary explanation of the derivation of
specific effluent limitations and condi-
tions, including a citation to the appli-
cable guideline or standard provisions
as required under 40 CFR 122.15 and
reasons why they are applicable.
(3) Reasons why requested variances
requested do or do not appear Justi.
fled.
(4) The results of any consultation
under subpart C and State certifica-
tion under subpart D. ,
(C) The fact sheet for every permit
Issued under 0124.41 or §124.42(aXl)
to a discharger which has a total
volume of more than 500,000 gallons
any day of the year shall also contain:
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21. 1916
-------
37116
PROPOSED RULES
(I) A sketch or detailed description
of the location of the discharge de-
Scribe 3 in the application;
“(2) A quantitative description of the
discharge described in the application
which includes at least the following;
Ci) The rate or frequency of the pro-
posed discharge; if the discharge Is
continuous, the average daily flow in
gallons per day, and where appropri-
ate the maximum and minimum flow
in gallons per day or million gallons
per thy;
(ii) For discharges of cooling water,
the average summer and winter tem-
peratures of the discharge in degrees
Fahrenheit and where appropriate the
maximum and minimum temperature
In degrees Fahrenheit and
(ill) The average daily discharge
before and after the required treat-
ment in pounds per day, and milli-
grams per liter where appropriate, of
any pollutants which are present in
the discharge or which are subJect to
limitations or prohibition under see-
lions 301, 302, 303, 306 or 307 of the
Act and regulations published there-
under,
(3) A brief citation of the water qual-
ity standards and effluent standards
and limitations applied to the pro-
posed discharge; including a brief Iden-
tification of the uses for which the re-
ceiving waters have been classified,
and
(4) A detailed description of the pro-
cedures for deciding on the final
permit includlnL
(i) The beginning and ending dates
of the comment period required under
* 12152 and the address where com-
ments will be received;
(U) Procedures for requesting a hear-
ing and the nature of that hearing
and
(iii) Any other procedures by which
the public may participate in the for-
mulat”.n of the final permit
(d i S’. appendix A of this part for a
sample iact sheet form.
I 124.44 AdminIstrative record,
(a) Decisions by the Enforcement
Division Director to Issue a draft
permit under § 124.41 or § 124.42 shall
be made only on the basis of the ad-
ministrative record defined in this sec-
tion.
(b) The record for Suing a draft
permit under § 124.41 shall consist of:
(I) The initial application and any
supporting data furnished by the ap-
plicant;
(2) The draft permit;
(3) The fact sheet required by
§124.43; -
(4) All documents cited in the fact
sheet unless they are published mate-
rials which are generally available (in
which case they should be specifically
referenced); and
(5) Other documents contained in
the supporting file for the permit, in-
cluding correspondence, telephone and
meeting memorandums, compliance
reports, etc.
(6) Where the applicant Is a new
source and EPA Is the permit issuing
authoritr
Ci) The 1 (5/EQ filled out by that
source;
(ii) Any environmental assessment,
environmental impact statement, neg-
ative declaration, or environmental
impact appraisal that may have been
prepared;
(lii) All documents cited in any docu-
ment prepared under subparagraph
Cdxli) of this paragraph, unless the
cited documents are published materi-
als which are generally available.
Ce) The record f or Suing a draft
permit under § 124.42 shall consist of
the draft pennit, the factsheet re-
quired by §124.43 and all documents
cited in the factaheet unless they are
published materials which are general-
ly available.
Cd) No later than the time a draft
permit is Issued, a record clerk shall be
designated with responsibility for
maintaining the records established
under this section. Copying of any
documents in the record shall be per-
mitted under appropriate arrange-
ments to prevent their loss. The
charge for such copies shall be made
in accordance with the written sched-
ule contained In part 2 of this chapter.
All documents in the record shall be
appropriately indexed and categorized.
Ce) This section applies to all draft
permits Sued after the effective date
of this part.
Subpart F—Public Cemmont end Neodags
§ 124.51 Public notice regarding draft per-
silts and pennit conditions.
(a) Notice of the proposed Issuance,
denial, or modification of a permit and
notice of sll hearings held under
§ 124.52 shall be given by the Enforce-
ment Division Director or, where ap-
propriate, the Director as follows: -
Cl) By mailing a copy to the appli-
cant; to the U’S. Army Corps of Engi-
neers to Federal and State agencies
with Jurisdiction over fish, shellfish,
and wildlife resources and to other ap-
propriate governmental authorities;
and to any person on the mailing list
referred to In § 124.43; and
(2) By either of the following meth-
ods:
(I) By publication at least once (A)
not less than 45 days before the effec-
tive date of the proposed issuance,
denial, or modification of the permit,
or (B) not less than 30 days before the
date of a hearing, as the case may be,
in a daily or weekly newspaper of gen-
eral circulation within the area where
the facility or discharge Is located; or
( Ii) By posting a copy at the princi-
pal office of the municipality In which
the facility or discharge is located, or
if the facility or discharge is not boat-
S within a municipality, then at the
principal office of the political subdivi-
sion with general Jurisdiction over the
premises en which It is located, and by
posting a copy at the US. post office
serving those premises.
(b) All public notices Sued under
this subpart shall contain the follow-
Ing information.
(1) Name and address of the office
processing the application or conduct-
ing the hearing;
(2) Name and address of the appli-
cant and the discharger (if different
from the applicant);
(3) Name and water quality stand-
ards classification of the receiving
waters into which the discharge occurs
or is proposed, and a general descrip-
tion of the location of each existing or
proposed discharge point on those
waters;
(4) Address and telephone nu mber
of the place where interested persons
may obtain further informatiod, in-
eluding copies of the draft permit and
the factsheet;
(5) The location of the admnlnlstra-
tlve record required by § 124.44 and
the times at which it will be open for
public Inspection;
(6) Any additional statements, repre-
sentations, or information considered
necessary or proper.
(c) In addition to the information it-
qulred under paragraph b) of this sec-
tion, public notice of the proposed Is-
suance, denial, or modification of a
permit shall contain the following in-
formation:
(1) A brief description of the appli-
cants’ activities or operations that
result In the discharge described ‘In
the application, and a statement
whether the application pertains to
new or existing dlschargcrs (e.g., nes
municipal waste treatment plant, ex-
isting steel manufacturing, or new
drainage from existing mining activi-
ties, eteJ
(2) A statement of the terms of the
draft permit;
(3) In cases where the draft permit
Involves a proposed variance from or
modification of effluent limitations or
extension or statutory deadlines, a de-
scription of the draft permit condi-
tions.
(4) Brief description of the comment
procedures required by * 12412, in-
cludIng the time and place of any
public hearing that will be held.
(5) If the discharge Is from a new
source, a statement of the Enforce-
ment Division Director’s decision as to
whether an invironmental Impact
atatement will be prepared.
(6) A statement of the right to re-
quest a public hearing. -
FED SRAL REGISTER, VOL 43 NO. 162—MONDAY, AUGUST 2), 167 ’S
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PROPOSED RULES
37117
Cd) In addition to the Information
required by paragraphs (b) and (C) of
this section. the public notice of the
proposed Issuance, denial, or modifica-
tion of a.permlt for a discharge as to
which a 316(a) application has been
filed under § 124.15 shall include:
(1) A statement that the thermal
component of the discharge is subject
to effluent limitations under section
301 or 306 of the Act and a brief de-
scription IncludIng a quantitative
statement of the thermal effluent
limitations proposed under section 301
or 306; and
(2) A statement that a 316(a) appli-
cation has been filed and that alterna-
tive (and less stringent) effluent limi-
tations may be imposed on the ther-
mal 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 application.
(3) If the applicant has submitted
data and information under § 124.15,
the public notice of the proposed issu-
ance, denial, or modification of a
permit shall include, in addition to the
statements required by paragraphs
(d)(1) and (cI)(2) of this section a state-
ment that the applicant has submitted
evidence in support of its request for
alternative effluent limitations which
warrants further consideration and
that imposition of such alternative
limitations is being condidered. The
notice shall state that all data submit-
ted by the applicant are available as
part of the administrative record for
public inspection during office hours.
The notice shall also state that any
person may comment in writing upon
the applicant’s desired alternative ef-
fluent limitations under § 124.52 and
may also request a hearing under that
section.
(4) If the applicant has filed a writ-
tv-i plan of study and demonstration
under § 124.15, the public notice of the
proposed Issuance, denial, or modifica-
tion Of a permit shall include, in addi-
tion to the statements required by
paragraph (d)(1) and (d)(2) of this sec-
tion, a statement that the applicant
has submitted such a plan.
The notice shall also include a sum-
mary of the applicant’s proposed plan
of study and demonstration and shall
state that the plan is available for
public inspection during office hours.
The notice shall aslo state that any
person may comment in writing upon
the applicant’s proposed plan of study
under § 124.52 of this chapter and may
also request a public hearing to consid-
er the plan under that section.
Ce) In addition to the information re-
quired under paragraph (b) of this sec-
tion, public notice of a public hearing
held under § 124.52(b) shall contain
the following information:
(1) Reference to the date and
manner of public notice of the pro-
posed issuance, denial, or modification
of the permit;
(2) Date, time, and place of the hear-
ing; and
(3) A brief description of the nature
and purpose of the hearing, including
the applicable rules and procedures.
(f) Public notice issued under this
section may describe more than one
permit and more than one discharge.
No public notice shall be given in cases
where a request for permit modifica-
tion is denied, but written notice of
that denial shall be given the person
requesting such modification,
(g) The Enforcement Division Direc-
tor may enter into agreements with
States for joint Federal/State public
notices and joint public hearings re-
gardIng (1) applications for and issu-
ance of Federal or State NPDES per-
mits or (2) certifications required by
section 401 of the Act.
§124.52 Public comments and hearings.
(a) At a minimum, a comment period.
of 45 days following the date of public
notice of the proposed issuance.
denial, or modification of a permit
shall be provided. During this period
any interested persons may submit
written comments on the draft permit
and accompanying fact sheet and may
request a public hearing. A request for
a public hearing shall state the nature
of the issues proposed to be raised In
the hearing. All such comments shall
be considered in preparing the final
permit and factsheet, and shall be re-
sponded to as providedin §124.63.
(b) (1) Where the Enforcement Divi-
sion Director or, where appropriate,
the Director finds a significant degree
of public interest in a proposed permit
or group of permits, he/she shall hold
a public hearing to consider the
permit or permits. Public notice of
that hearing shall be given as specified
in § 124.51. The hearing may be sched-
uled either by the Enforcement Divi-
sion Director or, where appropriate,
the Director at his/her own initiative,
or in response to a request received
during the comment period provided
for in paragraph (a) of this section.
(2) Hearings held under this section
shall be conducted by the Enforce-
ment Division Director or, where ap-
propriate, the Director or their desig-
nee. in an orderly and expeditious
manner.
(3) Any person may submit oral or
written statements and data concern-
ing the proposed permit. Reasonable
limits may be set upon the time al-
lowed for oral statements, and the
submission of statements in writing
may be required.
§ 124.53 Obligation to raise points and
provide information during the com-
ment period.
All persons, including applicants,
who believe any of the terms of a
draft permit is not appropriate either
because one of the variances listed in
1124.16 should be granted or for some
other reason, must bring forward all
arguments and factual grounds sup-
porting their position, including all
supporting material, no later than the
close of the public comment period
(including any hearing period) re-
quired by 1124.52.
5124.54 Reopening of comment period.
If any information or arguments
submitted during the public comment
period, including information or argu-
ments whose submission is required
under § 124.53. appears to raise sub-
stantial new questions concerning a
permit, the Enforcement Division Di-
-rector or. where appropriate, the Di-
rector may, If he/she concludes that
one of the following actions is neces-
sary for an informed decision, either
(a) issue a new draft permit, appropri-
ately modified, and reopen the com-
ment period under § 124.52 or (b)
simply reopen the comment period
under 1124.52 to give interested per-
sons an opportunity to comment on
the Information or arguments submit.
ted. In either case the notice required
by § 124.51 shall be given.
Svbp rf G—Issuanc. and Eff.divi Dot. at
P.,m lt
5124.61 Issuance and Effective Date of
Permit.
(a) (1) No less than 60 days after the
date of publication and/or posting of
notice of the proposed issuance,
denial, or modification of a’ permit
under 1124.51 whichever date Is later,
the Enforcement Division Director
shall make a determination with re-
spect to the issuance or denial of
modification of such permit. That de-
termination shall take the form of a
permit, modified permit, or notice of a
permit denial, as the case may be.
(2) No final permit shall be issued by
EPA which grants a modification of
otherwise applicable effluent require-
ments under section 301(g) or 301(h)
of the Act until the State within
which the discharge will take place
has been given 30 days’ notice in
which to approve or disapprove the
grant of the modification.
If the State disapproves the grant of
that modification within those 30
days, the modification shall be deleted
from the final permit.
(b) Upon making a determination
under paragraph (aX 1) of this section,
the Enforcement Division Director
shall issue the permit, modified
permit, or notice of permit denial, as
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
31118
the case may be 1 end shell mall a
notice of issuance, modification, or
denial of the permit to the applicant
and to each person who has submitted
written comments or participated In a
public hearing regarding the permit.
This notice shafl Include reference to
the procedures under § 124.74 et seq.
to contest the permit determination.
(C) The decision of the Enforcement
Division Director to Issue a permit,
modified permit, or notice or permit
denial under paragraph (b) of this sec-
tion constItutes the final action of the
Environmental Protection Agency,
unless a request for an evldentlary
bearing Is granted under 0 12t75. The
30-day period within which a person
may request an evldentlsry heailng
under that section begIns on the post-
mark date of notice of the En- force-
ment Division Director’s action.
(d) (1) Except as provided In para-
graph (d)(2) of this section, the permit
or modification shall become effective
30 days after the postmark date of
notice of the decision under paragraph
(b) of this section unless:
Ci) A later effective date Is specified
in the decision, or (I I) A request Is sub-
mitted for an evidentlary hearing or
legal decision In which case (A) If the
request Is denied, then the permit or
modification shall become effective 10
days after the denial, or (B) If the re-
quest is granted, then the permit or
modification shall become effective as
provided in paragraph (d)(2) of this
section.
(2) Stays of contested permit terms
and conditions:
Ci) If a request for an evidentiary
hearing or legal decision Is granted
under § 124.102. or If a petition for
review of the denial of a request for an
evidentlary hearing Is timely filed
with the Administrator under
§ 124.102, the force and effect of the
contest j1 provision(s) of any permit or
modlflc&,tlon Issued to an existing dis-
charger shall be stayed and shall not
be subject to judicial review under sec-
tion 509(b) of the Act, pending final
Agency action under § 124.101 or
§ 124.102. Requests for modification
shall not stay the force and effect of
the permit terms and conditions
sought to be modified, whether or not
an evidentlary hearing has been grant-
ed. unless the Enforcement Division
Director affirmatively decides to grant
such a stay. Contested provisions bf a
permit or modification shall include
uncontested provisions of a permit
which are not severable from those
provisions contested. These contested
provisions shall be designated by the
Enforcement Division Director. Un-
contested provisions of a permit shall
remain In full force and effect, and
the permittee shall be subject to all
those provisions.
PROPOSED RULES
(II) If a request for an evidentlary
hearing Is granted under § 12t’15 re-
garding the initial permit Issued for a
discharge or a discharger (Including
new sources and new disthargers), or
Ii a petition for timely review of the
denial of a request for an evidentisry
hearing Is timely filed with the Ad.
ministrator under 0124.102 with re-
spect to such a permit, the source
shall be considered to be without a
permit, pending final agency action
under 0124.101 If the Enforcement Di-
vision Director finds:
(A) That the contested permit
condition(s) Is Inseverable from the
uncontested condition(s); or
(B) That the contested permit condi-
tions are fundamental to the Enforce-
ment Division Director’s determina-
tion to Issue or deny the permit and
hence it would be contrary to the
public interest for the uncontested
conditions to be considered Issued and
effective or to authorize a new dis-
charge of pollutants. At a minimum,
contested permit conditions are funda-
mental to the determination to issue
or deny the permit if staying the con-
ditions would allow a discharger to
commence discharge without Install-
ing the requisite technology based
treatment under section 306 or 301. as
the case may be.
(II I) If a request for an evidentlary
bearing is granted under § 124.75 re-
gardIng a variance under section
30 1(g) in a permit Issued to a discharg-
er, or If a petition for timely review of
- the denial of a request for an eviden-
tiary hearing Is timely filed with the
Administrator under § 124.102 with re-
spect to such a variance, any otherwise
applicable standards and limitations
under section 301 of the Act, shall not
be stayed unless:
(A) In the judgment of the Enforce-
ment Division Director, the stay or the
variance sought will not result In the
discharge of pollutants In quantities
which may reasonably be anticipated
to pose an unacceptable risk to human
health or the environment because of
bioaccumulatlon, persistency In the
environment, acute toxicity, chronic
toxicity, or synergistic propensities;
and
(B) In the judgment of the Enforce-
ment Division Director, there Is a sub-
stantial likelihood that the discharger
will succeed on the merits of Its
appeal; and
(C) The discharger files any bond or
other appropriate security which Is re-
quired by the Enforcement Division
Director tp assure timely compliance
with the requirements from which &
variance Is sought In the event that
the appeal Is unsuccessfuL
(e) For purposes of judicial review
under section 509(b) of the Act, final
administrative action on a permit does
not occur unless and until a party has
first sought review by the Administra-
tor under * 124.102. Any party which
neglects or falls to seek review under
0 12t102 thereby waives Its opportuni-
ty to exhaust available Agency reme-
dies.
0124.62 FInal environmental Impact state-
ment.
No final permit for a new source
shall be Issued until at least 30 days
after the date of Issuance of a final en-
vironmental Impact statement re-
quired under 40 CPR 6.916.
§ 124.63 FIaaI factaheet.
(a) At the time any final permit Is
Issued under § 124.61, the Enforcement
Division Director shall also Issue a
final factaheet for that permit. This
final factsheet shall contain or Incor-
porate by reference the factaheet re-
quired by § 124.43 for the draft permit
and shall also contain:
(1) A specific Indication of which
provisions of the draft permit have
been changed In the final permit, and
the reasons for the change; and
(2) A response to all significant ob-
jections to the draft permit raised
during the public comment period.
(b) The final factsheet shall not cite
any documents which are not properly
Included In the administrative record
for the fInal permit as defined In
§ 124.64.
§ 124.64 Administrative record for final
permit.
- (a) Decisions to Issue a final permit
under § 124.61 shall be made only on
the basis of 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 required by
§12t52;
(2) The tape or transcript of any
hearing(s) held under * 124.52;
(3) The final factaheet required by
§ 124.63;
(4) Any final environmental impact
statement; -
(5) Other documents contained In
the supporting file for the permit, in-
cluding correspondence, telephone and
meeting memoranda, compliance re-
ports, etc.; and
(6) The final permit.
These additional documents shall be
added to the record as soon as possible
after their receipt or publication by
the Agency.
(C X 1) ThIs section applIes to all fInal
permits where the draft permit was
subject to the admInistrative record
requirements of § 124.48. In addition,
this section may be applied to any
other final permit Issued after the ef-
fective date of this part which has not
P8088*1 REGISIU, VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
37119
yet reached the stage of initial deci-
sion In an evidentlary hearing.
(2) For any final permit where the
draft permit was prepared prior to
publication of these requlatlons, and
therefore was not based on an admin-
istrative record In accordance with
§ 124.44. the record clerk shall prompt-
ly compile a record for that permit as
close as practicable to the record that
would have been compiled If the draft
permit had been subject to the admin-
istrative record requirements of
124.48. includIng a factaheet con-
forming to the requirements of
§ 124.43. When such a record has been
compiled, notice of that fact shall be
published as provided In § 124.51, and
the permit applicant and other inter-
ested persons shall be allowed 45 days
to comment on the record. Upon con-
sideration of the comments, the record
clerk shall take such action regarding
the record (including additions to or
deletions from it) as may be appropri-
ate to make It conform to the standard
stated in the first sentence, of this
paragraph.
(3) Whether or not a draft or final
permit was prepared subject to these
regulations, the Regional Administra-
tor, in any case where it appears
during the course of an evidentlary
hearing on a permit that significant
new factors affecting that permit
should be considered, may revoke the
permit subject to the hearing and
issue a new draft permit under
§ 124.41. The new draft permit shall
proceed through the same process of
public comment and opportunity for a
public hearLig, etc., as would apply to
any other draft permit.
§ 124.65 Early decision on certain permit
conditions.
The only issues connected with issu-
ance of a particular permit on which
EPA will make a final agency decision
before the final permit Is issued under
§ 124.61 are whether alternative efflu-
ent limitations would be justified
under section 316(a) and whether cool-
ing water intake structures will use
the best available technology under
section 316(b). Applicants who wish an
early decision on these issues should
request It and furnish supporting rea-
sons at the time their applications are
filed under if 124.12 and 124.15. The
Enforcement Division Director will
then decide wbether or not to grant it.
If it is granted, both the early decision
on 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 adjudicatory
hearing.
§ 124.66 Deferral of decision on certain
permit conditions.
(a) If the Enforcement Division Di-
rector on review of the administrative
record determines that the Informa-
tion necessary to decide whether or
not an alternative effluent limitation
under sectIon 316(a) should be granted
to a source Is not likely to be available
bY the time a decision on permit issu-
ance must be made, he/she may issue
a permit under § 124.61 whIch is for a
term of up to 5 years and which re-
quires that the point source achieve
the effluent limitations initially pro-
posed for the control of the thermal
component of the dlscharge no later
than the date specified in applicable
effluent limitations guidelines and
new source performance standards
Issued under sectIons 301(b) and 306 of
the Act but which affords the permit-
tee an opportunity to request a hear-
ing under section 316(a) after conduct-
ing biological and engineering studies
in order to develop information suffi-
cient for the Enforcement Division Di-
rector to make a knowledgeable deter-
mination as to whether alternative ef-
fluent limitations may be established
under section 316(a).
(b) Any hearing scheduled under
paragraph (a) of this section shall be
publicized as required by § 124.51 and
shall be held enough in advance of the
final compliance date specified in the
permit to allow the permittee to take
necessary measures to comply by that
date in the event its request for modi-
fication of thermal limits Is denied
after the hearing is concluded.
(c) Whenever the Enforcement Divi-
sion Director defers the determination
under section 316(a), he/she may also
defer any determination under section
316(b).
Subpwt H—EvId.ntlsry Hcorlngi
§ 124.71 ApplIcability.
The regulations in this subpart
govern all evidentiary hearings con-
ducted by EPA under sectIon 402 of
the Act, except as otherwise provided
In Subpart J or other EPA regulations.
An evidentiary hearing is available to
challenge any permit decision issued
under § 124.61 except for the issuance
of a general permit. Disehargers sub-
ject to a general permit who wish to
challenge the terms and conditions
that permit applies to them should in-
stead apply for an individual permit
under § 124.12 as authorized In
§ 122.48. An evidentiary hearing will
then be available on that separate
permit
§ 124.72 DefinItions.
As used in this subpart, the follow-
ing terms have the meanings specified:
(a) “Judicial Officer” means a per-
manent or temporary employee of the
Agency appointed as a judicial officer
by the Administrator under these reg-
ulations who shall meet the qualifica-
tions and perform functions as follows:
(1) A judicial officer shall be a duly
licensed attorney. A judicial officer
shall not be employed in the Office of
Enforcement or the Office of Water
and s, rdous Materials, and shall
not participate in the consideration or
decision of any case In whIch he per-
formed investigative or prosecutorlal
functions.
(2) The Admlni4rator may delegate
any authority to act in a given case
under this subpart to a judicial officer
who, In addition. may perform other
duties for EPA. The Administrator
may delegate authority to make find-
ings of fact in a particular proceeding,
provided that that delegation shall not
preclude a judicial officer from refer-
ring any motion or case to the Admin-
istrator when the judicial officer de-
cides referral would be appropriate,
The Administrator, In deciding a case,
may consult with and assign the draft-
ing of preliminary findings of fact and
conclusions and/or a preliminary deci-
sion to any judicial officer.
(b) “Party” means the persons desig-
nated by the Regional Administrator
under § 124,78 to present the EPA
staff position at an evidentlary hear-
ing, the applicant or permittee, and
any person whose request for a hear-
ing under § 124.74 or whose request to
be admitted as a party to Intervene
under § 124.79 has been granted.
(C) “Presiding Officer” means an Ad-
ministrative Law Judge appointed
under 5 U.S.C. 3105 and designated to
preside at the hearing.
(d) “Regional Hearing Clerk” means
an employee of the Agency designated
by a Regional Administrator to estab-
lish a repository for all book.s records,
documents, and other materials relat-
ing to hearings under this subpart. A
regional hearing clerk may be the
same person as the record clerk re-
quired by § 124.44.
§ 124.73 Filing and submission of docu-
ments.
(a) All documents authorized or re-
quired to be filed with the Agency
under this subpart shall be filed with
the regional hearing clerk, unless the
regulations provide otherwise. Docu-
ments shall be considered filed on the
date on which they are mailed or de-
livered in person to the regional hear-
ing clerk.
(b) All such submissions shall be
signed by the person making the sub-
mission, or by an attorney or other au-
thorized agent or representative on
his/her behalf.
(C) All data and Information referred
to or in any way relied upon In any
such submissions shall be included in
full and may not be incorporated by
FEDERAL REGISTER VOL. 43 NO. 162—MONDAY. AUGUST 21, 1975
-------
PROPOSED RULES
37120
reference, unless previously submitted
as part of the administrative record In
the same proceeding, except for mate-
rial which is generally av.fl Ne or of
peripheral relevancs, In which case
the party relying on ft shall file a writ-
ten undertaking to make copies avalla.
ble as directed by the Regional Admin-
istrator or the presiding officer.
(1) A copy of any article or other ref
erence or aow’ce cited shall be Includ-
ed. except for State or Federal stat-
utes and regulations, judicial decisions
published In a national reporter
system, officially issued EPA docu-
ments of general applicability, and
any other material which Is generally
available or of peripheral relevance.
(2) If any part of the material sub.
mitted is In a foreign language, It shall
be accompanied by an Th gllsh transla-
tion verified under oath to be .
plete 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 for-
eign language shall be aeeompanled by
copies of the original publication.
(3) Where relevant data or informa-
tion Is contained In a document also
eonthffiIng irrelevant matter, either
the Irrelevant matter shall be deleted
and only the relevant data or Informa-
tion shall be submitted or the relevant
portions shall be briefly Indicated.
(4) The failure to comply with the
requirements of this section or any
other requirement hi this subpart may
result In the exclusion from considera-
tion of any portion of the submission
which fails to comply. If the Regional
Administrator or the presiding officer.
on motion by any party or on his/her
own Initiative, determines that a sub-
mission fails to meet any requirement
of this subpart, he/she shall direct the
hearing clerk to return the suh, t Ion
With a copy of the applicable regula-
tions Indicating those provisions not
compiled with in the submission. Two
weeks to correct the error Indicated
shall then be allowed to the person
submitting the material, unless the
Regional AdmI1 trator or the Presid-
ing officer determines that there Is
good cause to allow a longer time.
(d) The filing of a suhn I Ion 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 contklning factual ma-
terial. data, or other information shall
be signed In ink by the person or au-
thorized representative of the person
submitting the same. The capacity of
the person signing, his/her address,
and the date shall be stated. The sig-
nature of the person IgnIng Is a repre-
aentation that the document has been
subscribed In the capacity specified
with full authority, that be/she baa
read It and knows the contents, and
that to the best of his/her knowledge
and belie!, the statements made In It
are true. All such SUbniISaIOflS are sub-
ject to section 309(cX2) of the Act and
the False Reports to the Government
Act, 18 U.S.C. 1001, under wblch a
wIllfully false stat ’ t or reprceenta-
Uon is a criminal offense.
3124.74 Bequests for evideatlary bearing
and/or legal 4
(a) WithIn 30 days following the
date of receipt of notice of the Region-
al Administrator’s determination to
Issue a permit under *124.61, any In-
terested person may submit a request
to the Regional Administrator under
paragraph (b) of this section for an
evidentlary hearing and/or legal deci-
sion, to reconsider or contest the
terms of that permit. If such a request
Is submitted by a person other than
the permittee. the person shall simul-
taneously serve a copy of the request
on the perinittee.
(b) In accordance with * 124.76, such
requests shall contain an exposition of
the factual questions alleged to be at
Issue, and their relevance to the basic
decision to be made, together with a
designation of the specific factual
areas to be explored and the hearing
time estimated to be necessary for
that exploration. A copy of any report,
article, survey or other written dcc ii-
ment relied upon shall be submitted
unless It Is already In the administra-
tive record required by 3124.64.
(C) Such requests shall also contain:
(1) The name, t’teTh’ g address, and
telephone number of the person
tn kIng such request.
(2) A clear and concise factual state-
ment of the nature and scope of the
Interest of the requester and (except
In the case of a permit applicant) an
explanation of how and to what
extent that Interest would be directly
and adversely affected by the Issu-
ance, denial, or modification of the
subject permit.
(3) The names and addresses of all
persona whom the requester repre-
aents.
(4) An express agreement and under-
standing by the requester that, upon
the request of the Presiding Officer on
his/her own motion or on motion of
any party, and without cost or expense
to any other party,
(I) The requestes,
(II) All persons represented by the
requester, and
(ill) All officers, directors, employ-
ees, and consultants of the requester
and the persons represented by the re-
quester, shall be made avftfl h1e for
crcss-ex snft Ucn.
(5) Clear and concise statement of
the legal Issues, If any, proposed for
referral to the Office of the General
Counsel for decision under 3124.90.
(6) Specific references to the con-
tested permit terms and conditions, as
well as suggested revised or alternative
permit terms and conditions which, In
the judgment of the requestor, would
be required to Implement the purposes
and policies of the Act.
(d) The Regional Administrator
(upon notice to all known parties) may
extend the tIme allowed for submit-
ting hearing requests under this sec-
tion for good cause.
3124.75 Decision on request for a hearing.
(a) Within 20 days following the ex-
piratIon of the time allowed by
* 124.14 for submitting a request for
an adjudicatory hearing, the Regional
Administrator shall grant or deny the
request and shall promptly assign the
matter for hearing If he/she deter-
mines that a submitted request
(1) Meets the requirements of this
section, and
(2) Sets forth material Issues of fact
relevant to the questions of whether a
permit should be Issued, denied or
modified.
(b) If the Regional Administrator
grants a request for an adjudicatory
hearing In regard to a particular pro-
posed permit, he/she shall treat any
other request for a adjudicatory hear-
ing In regard to that proposed permit
as a request to be a party and shall
grant any such request which meets
the requirements of * 124.’ 14.
(C) For purposes of 3124.18. a formal
evidentlary hearing shall begin on the
date that notice of hearing is pub-
lished under 1124.17.
§ 124.76 OblIgation to raise Issues before a
final permit is issued.
(a) No factual evidence shall be sub-
mitted for consideration by either the
Regional AdtT lntstrator or the presid-
Ing officer under this subpart that was
not submitted to the administrative
record required by 3 12t64 as part of
the Issuance of and comment on a
draft permit, unless good cause Is
shown for the failure to submit It. No
legal, analytical, or policy arguments
shall be raised for consideration by
either the Regional Administrator or
the presiding officer under this sub-
part that were not submitted to the
administrative record required by
* 124.64 as part of the Issuance of and
comment on a draft permit unless
good cause Is shown for the failure to
submit them. In particular, no request
for a variance or modification for any
of the reasons set forth In 3124.16
that was not raised and fully docu-
mented for the administrative record
under * 124.64 shall be considered
under this subpart.
UAL 1 IS1U, VOL. , NO. 162—MONDAY, AUGUST 21, 1975
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PROPOSED RULES
37121
(Comment. A finding of good cause under
this section will, In many cases, depend
upon the relative availability of the pretrial
material or arguments at the time that the
administrative record was being developed.)
(b) The Regional Administrator In
evaluating hearing requests under
§ 124.75 and the presiding officer in all
actions taken under this subpart shall
be bound by this section, except that
this section is not binding upon EPA
parties in consideration of the Agen-
cy’s obligation to provide a fair and
full hearing.
§ 124.77 NotIce of hearing.
(a) Public notice of grant of a formal
evidentiary public hearing regarding a
permit shall be given In the following
manner:
(1) By mailing a copy to the appli-
cant, to Federal and State agencies
with jwisdjctlon over fish, shellfish,
and wildlife resources and to other ap-
propriate governmental authorities,
and to any person on the mailing list
referred to in § 124.43;
(2) By either of the following meth-
ods:
(I) By publication in a daily or
weekly newspaper of general circula-
tion within the area in which the ef-
fluent source is located; or
(ii) By posting a copy at the princi-
pal office of the municipality In which
the effluent source is located, or if
such source is not located within a mu-
iclpality, then at the principal office
of the political subdivision with gener-
al Jurisdiction over the premises on
which the source is located, and by
posting a copy at the U.S. Post Office
serving such premises.
(b) All public notices Issued under
this section shall contain the following
information:
(1) Name and address of the regional
office conducting the hearing;
• (2) Name and address of the appli-
cant and the discharger (if different
from the applicant);
(3) Name and water quality stand-
ards classification of the receiving
waters into which the discharge occurs
or is proposed, and a general descrip-
tion of the location of each existing or
proposed discharge point on such
waters;
(4) Address and telephone number
of the place where interested persons
may obtain further information, in-
cluding a copy of the fact sheet Issued
under § 124.62;
(5) Reference to the date and
manner of each public notice of the
proposed Issuance, denial or modifica-
tion of the permit(s) and any public
hearings thereon;
(6) Name and address of the person
requesting the evidentiary hearing
and the name and address of each
known party to such proceedings:
(7) Brief description of the nature
and purpose of the hearing and the
Issues raised, together with a state-
ment of the applicable rules and pro-
cedures, and including the following
declarations:
(i) Any person who can establish
that he/she will be directly and ad-
versely affected by the Issuance, modi-
fication or denial of the subject
permit(s) may, under § 124.79, file a re-
quest to be admitted as a party to the
hearing withIn 15 days of the date of
publication of this notice;
(ii) Any person requesting to be ad-
mitted as a party may propose materi-
al issues of fact or law not already
raised by the original requestor or an-
other party;
- (8) Names or organizational descrip-
tion of the Agency employees desig-
nated under § 124.78 as available to
perform investigative or litigating
functions;
(9) The terms and conditions of the
permit(s) at issue may be amended by
the Regional Administrator before or
after the evidentiary hearing and any
person interested in those permits(s)
must request to be a party in order to
preserve any right to appeal or other-
wise contest the final administrative
determination.
§ 124.78 Separation of functions; cx pane
communications.
(a) No later than the time notice of
hearing is published under * 124.77,
the Regional Administrator shall des-
ignate the Agency employees who wifi
be available to perform investigative
or prosecuting functions for the
Agency in that hearing. Additional
employees may be so designated as
necessary during the course of the
proceedings. Appearance as a witness
ordinarily does not automatically con-
stitute the performance of invèstiga ’
tive or litigating functions.
(b) Upon Issuance of a notice of
hearing under 5124.77, no person des-
ignated under paragraph (a) of this
section shall participate or advise In
any decision arising out of that hear-
ing except as witness or counsel in
public proceedings. All employees of
the Agency other than persons so des-
ignated shall be available to advise the
Regional Administrator or the Admin-
istrator on any of their functions re.
lating to the hearing and any appeal.
(C) Between the date that separation
of functions applies under paragraph
(b) of this section and the date of the
Agency’s final decision on the matter,
communication with respect to the
matter involved in the bearing shall
be restricted as follows:
(1) No person designated under para-
graph (a) of this section or not em-
ployed by the Agency shall have any
cx parte communication, orally or in
writing, with the presiding officer, the
Regional Administrator, the Adzninls-
trator, or any person who may reason-
ably be expected to advise the Region-
al Administrator or Mminlstrator
with iespect to the matter involved in
the hearing. All such communications
shall be public communications, as
witness or counsel, in accordance with
the applicable provisions of this Sub-
part,
(2) Any written communication con-
trary to this section shall immediately
be filed with the regional hearing
clerk and any oral communication con-
trary to this section shall immediately
be recorded in a written memorandum
and filed with the regional hearing
clerk, as appropriate, as a part of the
record of the proceeding. Any person,
including any representative of any
party to a h arlng, who is involved in
any such oral communication shall be
made available for cross-examinatIon
with respect to the substance of that
conversation. Rebuttal testimony per-
tinent to any such written or oral com-
munication shall be permitted. Any
cross-examination and rebuttal testi-
mony shall be transcribed and filed in
the record of the hearing.
§ 124.79 Additional parties and Issue.
(a) Any person may submit a request
to be admitted as a party within 15
days after the date of mailing, publica-
tion, or posting of notice of an eviden-
tiary hearing, whichever occurs last.
The Regional Administrator shall
grant such requests as meet the re-
quirements of 5124.74, except that if
such request does not set forth new
factual or legal Issues, then it must
specifically set forth which of the
issues the requester seeks to address at
the hearing.
(b) After the expiration of 15 days
from the date of mailing, publication
or posting of notice of an evidentiary
hearing, whichever occurs last, any
person may file a motion for leave to
intervene as a party in the hearing.
This motion must meet the require-
ments of § 124.74 and set forth the
grounds for the proposed intervention:
Provided, however, That no additional
factual or legal issues may be proposed
except for good cause. Any such
motion must also contain a verified
statement showing good cause for the
failure to file a timely request to be
admitted as a party, and shall be
granted only upon an express finding
on the record that:
(1) Extraordinary circumstances Jus ’
tify granting the motion;
(2) The intervener has consented to
be bound by:
(I) Prior agreements and understand-
ings by and between the existing par-
ties, and
(ii) All orders previously entered in
the proceedings; and
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21. 1978
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37122
PROPOSED RULES
(3) Intervention will not cause undue
delay or prejudice the rights of the a-
Isting parties.
0124.10 Piling and service.
(a) An original and four (4) copies of
all written submissions relating to an
evidentlary bearing shall be filed with
the Regional Hearing Clerk.
(b) A copy of each such submission
shall be served by the person snaking
the submission upon the presiding of-
fleer and each party of record. Service
under this paragraph shall take place
by ma l i or personal delivery.
(c) Every submission shall be accom-
panied by an acknowledgment of serv-
ice by the person served or proof of
service in the form of a statement of
the date, place, time, and nanner of
service and the names of the persons
served, certified by the person who
made service.
(d) The Regional Hearing Clerk
shall maintain and furnish to any
person upon request, a list containing
the name, service address and tele-
phone number of all parties and their
attorneys or duly authorized represen-
tatives.
• 124.81 Assignment of Administrative
Law Judge.
No later than the date of mailing,
publication or posting of notice of an
evldentlary hearing, whichever occurs
last, the Regional Administrator shall
refer the proceeding to the Chief Ad-
ministrative Law Judge who shall
assign himself/herself or another ad-
nilnistrative law judge to serve as pre-
siding officer for the hearing.
O 124.82 Consolidation and severance.
(a) The Administrator, a Regional
Administrator or the presiding officer,
in his/her discretion, may consolidate
in whole or in part two or mon pro-
ceedings to be held under this subpart,
whenever it appears that a joint bear-
ing on any or an of the matters in
issue would expedite or simplify con-
sideration 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) The presiding officer may sever,
in whole or in part, consolidated saa b-
tars where he/she determines that
consolidation will not be conducive to
an expeditious, full and fair hearing.
§ 124.83 Prehearlng conferences.
(a) The presiding officer, on his/her
own Initiative or at the request of any
party, may direct the parties or their
attorneys or duly authorized represen-
tatives to appear at a specified time
and place for one or more conferences
before or during a hearing, or to
submit written proposals or cone-
spond with him/her for the purpose of
considering any of the matters set
forth in paragraph (e) of this aection.
(b) Except as circumstances other-
wise require, the presiding officer
shall allow a reasonable period before
the hearing begins for the orderly
completion of all prehearing proce-
dures and for the subnitesion and dis-
position of all prehearing motions.
Where the circumstances so warrant,
the presiding officer shall, not less
than 60 days after publication of
notice of the evidentlary hearing, call
a prehearing conference, to Inquire
Into the use of available procedures
contemplated by the parties and the
time required for their completion, to
draw up a schedule for their comple-
tion, and to set a tentative date for be-
ginning the hearing.
(c) In conferences held, or In sugges-
tions submitted, under paragraph (a)
of this section, the following matters
may be consldere&
(1) NecessIty or desirability of sim-
plification, clarification, amplification
or limitation of the Issues, including
but not limited to the Identification
and referral of Issues of law to the
Office of General Counsel for decision
under 0124.91.
(2) AdmIssion of facts and of the
genuineness of documents, and the
possibifity of stipulations with respect
to facts.
(3) Consideration of and ruling upon
objections to the introduction into evi-
dence at the hearing of any written
testimony, document,s, papers, exhib-
its, or other submissions proposed by a
party, except that the administrative
record required by 0124.64 shall be re-
ceived In evidence. Notwithstanding
the foregoing, at any stage of the pro-
ceedings before the end of the hearing
any party may make, and the presid-
ing officer shall consider and rule
upon, motions to strike testimony or
other evidence other than the admin-
istrative record on the grounds of rel-
evance, competency or materiality.
(4) Identification of matters of
which official notice may be taken.
(5) Establishment of a schedule
which includes definite or tentative
times for as many of the following as
are deemed necessary and proper by
the presiding officer.
(I) Submission of narrative state-
ments of position on each factual issue
In controversy.
(ii) Submission of written testimony
and documentary evidence (e.g., aff I-
davits, data, studies, reports and any
other type of written material) in sup-
port of such statements.
(iii) Written requests to any party
for the production of additional docu-
mentation, data, and other Informa-
tion relevant and material to the facts
in Issue.
(6) Grouping participants with sub-
stantially like interests for purposes of
etln 4nntlng duplicative or repetitive
development of the evidence and
vn.k lvig and arguing motions and ob-
jections.
(7) Such other matters as may expe-
dite the hearing or aid in the disposi-
tion of the matter.
(d) At a preheating conference or
within some reasonable time set by
the presiding officer, each party shall
make available to a n other parties the
names of the expert and other wit-
nesses It expects to call. At Its discre-
tion or at the request of the the pit-
siding officer, a party may Include a
brief narrative summary of any wit-
ness’ anticipated testimony. Copies of
any written testimony, documents,
papers, exhibits, or materials which a
party expects to introduce Into efl
dence, and the .aabnlni4rstlve record
required by §124.64, shall be marked
for Identjficatlon as ordered by the
presiding officer. Witnesses, proposed
written testimony and other evidence
may be added or amended only upon a
finding by the presiding officer that
good cause existed for failure to intro-
duce the additional or amended mate.
rial within the time specified by the
presiding officer. Agency employees
and consultants shall be made availa-
ble as witnesses by the Agency to the
same extent that production of such
witnesses is required of other parties
under • 124.74(cX4). (See also
§ 12425(bXl3)).
(e)The presiding officer shall pre-
pare a written prehearing order recit-
ing the actions taken at the prehear-
Ing conference and setting forth the
schedule for the hearing, unless a
transcript has been taken and accu-
rately reflects these matters. The
order shall include a written state-.
merit of the areas of factual agree-
ment and disagreement and of the
methods and procedures to be used In
developing the evidence and the re-
spective duties of the parties In con-
nection therewith, This order shall
control the subsequent course of the
hearing unless modified by the presid-
ing officer for good cause shown.
§ 124.84 Summary determination.
(a) Any party to an evidentlary hear-
ing may move with or without sup-
porting affidavits and briefs for a sum-
mary determination in his/her favor
upon all or any part of the Issues
being adjudicated on the basis that
there Is no genuine or material issue
of fact for determination. Any such
motion shall be filed at least 30 days
before the date set for the hearing.
(b) Any other party may, wIthin 30
days after service of the motion, file
and serve a response to It or a counter-
motion for su Tn inary determination.
When 5 motIon for summary determi-
FEGERAL REGISTER, VOL 43, NO. 142—MONDAY, AUGUST 21, 1975
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PROPOSED RULES
37123
nation 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 and substantial issue of mate-
rial fact for determination at the hear-
ing.
(C) Affidavits shall be made on per-
sonal knowledge, shall set forth facts
that would be admissible In evidence
and shall show affirmatively that the
afflant Is competent to testify to the
matters stated therein.
(6) The presiding officer may, at
his/her discretion, set the matter for
oral argument and call for the submis-
sion of proposed findings, conclusions,
briefs or memoranda of law. The pre-
siding officer shall rule on the motion
not more than 30 days after the date
of the motion Is filed.
(e) If all of the Issues (or dispositive
Issues) are decided on a motion for
summary determination, no hearing
will be held. Instead, the presiding of-
ficer shall thereupon prepare an Ini-
tial decision under § 124.89. (The
ruling on the motion may constitute
the initial decision,) If only some of
the issues (not including dispositive
Issues) are decided on a motion for
summary determination, or if the
motion is denied, the presiding officer
shall issue a memorandum opinion
arid order. interlocutory in character,
and hearing will proceed on the re-
maining issues. Appeals from interloc-
utory rulings are governed by § 124.90.
§ 124.85 Hearing procedure.
(a) The participant who, by raising
material Issues of fact, contends (1)
That particular terms, conditions or
requirements in the permit are ha-
proper or invalid, and who desires
either (1) the inclusion of new or dif-
ferent terms, conditions or require-
ments, or (ii) the deletion of such
terms, conditions or requirements, or
(2) that the denial of a permit Is ha-
proper or invalid, shall have the
burden of going forward to present an
affirmative case upon the issues and
has the ultimate burden of persuasion
thereon.
(b) The presiding officer shall have
the authority and duty to conduct a
lair and impartial hearing, to take
action to avoid unnecessary delay In
the disposition of the proceedings, and
to maintain order. Re/she shall have
all powers necessary to these ends, in-
cluding but not limited to the follow-
ing:
(1) To arrange and issue notice of
the date, time, and place of hearings
and conferences and, upon proper
notice, to change the date, time, and
place of hearings and conferences pre-
viously set.
(2) To establish the methods and
procedures to be used in the develop-
ment of evldentiary facts.
(3) To prepare, after considering the
views of the participants, written
statements of areas of factual dis-
agreement among the participants.
(4) To hold conferences to settle,
sinapUfy, 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) To aIimInf ter oaths and affirma-
tions.
(6) To regulate the course of the
hearing and govern the conduct of
participants.
(7) To examine witnesses.
(8) To identify and refer isues of law
to the Office of General Counsel for
decision under 5124.91.
(9) To rule on. admit, exclude, or
limit evidence.
(10) To establish the time for filing
motions, testimony and other written
evidence, briefs, findings, and other
submissions.
(11) To rule on motions and other
precedural matters pending before
him, including but not limited to mo-
tions for summary determination in
accordance with 5124.84.
(12) To order that the hearing be
conducted In stages In cases where the
number of parties is large or the Issues
are numerous and complex.
(13) To permit such cross-examina-
tion as may be required for a full and
true disclosure of the facts. No czoss-
examination shall be permitted - on
questions of law or policy, or regarding
matters (such as the validity of efflu-
ent limitations guidelines) that are not
subject to challenge in an NPDES pro-
ceeding. No agency witnesses shall be
required to testify or be made availa-
ble for cross-examination on such mat-
ters. Cross-examination shall only be
permitted to the extent the presiding
officer determines that is Is likely to
result in clarifying or resolving a dis-
puted issue of fact material to the de-
cision, and that the issue cannot be
more economically clarified in other
ways. The party seeking cross-exami-
nation has the burden of denionstrat-
lag that this standard has been met.
(14) To take any action not incon-
sistent with the provisions of this sub-
part for the maintenance of order at
the hearing and for the expeditious.
fair and Impartial conduct of the pro-
ceeding.
(C) All direct and rebuttal evidence
at an evidentiary hearing shall be sub-
mitted In written form, whether the
hearing concerns initial permit issu-
ance or post initial permit proceedings,
except to the extent that a party
makes a motion to present such evi-
dence orally and shows to the satisfac-
tion of the presiding officer that the
testimony concerns matters of particu-
lar fact to the extent that the oral
presentation of direct testimony is jus-
tified. Written testimony shall be pre-
pared in narrative form.
To the extent testimony Is to be sub-
mitted In writing the presiding officer
shall set (1) A date convenient to the
parties for the simultaneous filing of
direct testimony and (2) a date, at
least 21 days thereafter, for the simul-
taneous filing of all written rebuttal
testimony.
(d) (1) The presiding officer shall
admit all relevant, competent and ma-
terial evidence, except evedence that Is
unduly repetitious. Evidence may be
received at any hearing even though
Inadmissible under the strict rules of
evidence applicable to judicial pro-
ceedings. The weight to be given evi-
dence shall be determined by Its reli-
ability and probative value. The ad-
,nlnlntrative record required by
5124.64 shall be received and admitted
in evidence.
(2) Whenever any evidence or testi-
mony is excluded by the presiding offi-
cer 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, which shall consist
of a brief statement on the record de-
scribing the testimony excluded.
(3) Where two or more parties have
substantially similar interest and posi-
tions, the presiding officer may limit
the number of attorneys or other
party representatives who will be per-
mitted to cross-examine and to make
and argue motions and objections on
behalf of such parties. Attorneys may,
however, engage In cross-examination
relevant to matters not adequately
covered by previous cross-examination.
(4) Rulings of the presiding officer
on the admissibility of evidence or tes-
timony, the propriety of cross-exami-
nation, and other procedural matters
shall appear In the record and shall
control further proceedings, except if
reversed as a result of an interlocutory
appeal taken under 5124.90
(5) Parties shall be presumed to have
taken exception to an adverse ruling.
No objection shall be deemed waived
by further participation in the hear-
ing.
(6) No evidence shall be excluded on
the grounds that it was generated, (us.
covered or became available after the
Issuance of the subject permit.
5 124.86 Motions.
(a) Any party may make a motion,
Including any request, to the presiding
officer about any matter relating to
the proceeding. All motions shall be
filed with the Regional Hearing Clerk
as provided in 5124.80 except those
made on the record during an oral
hearing before the presiding officer.
FEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
37124
IROPOSED RULES
(b) WIthin 10 days alter service of
any written motion, any party 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 da3”s by the praciding of-
ficer for good cause shown.
Cc) NotwIthstanding 40 CFR 122.15,
any party may file with the presiding
officer a motion seeking to apply to
the permit any regulatory or statutory
requirement Issued or made available
after the Issuance of the permit under
5124.61 (b). The presiding officer may
- grant the motion where appropriate to
carry out the purposes of the Act, and
where no party would be unduly pre-
judiced thereby.
• 124.87 Record of hearing..
(a) All orders Issued by the presiding
officer, transcripts of oral hearings or
arguments, written statements of posi-
tion, written direct and rebuttal testi-
mony, and any other date, studies, re-
ports, documentation, Information and
other written material of any kind
submitted In the proceeding shall be a
part of the record of the hearing, and
shall be available to the public In the
office of the Regional Hearing Clerk
promptly upon receipt In that office.
(b) Evldentlary hearings shall be
either stenographically reported ver-
batim or tape recorded, and thereupon
transcribed. After the end of the hear-
ing, the reporter shall within such
time as the presiding officer may de-
termine, file with the Regional Hear-
Ing Clerk (1) The original of the tran-
script, and (2) The exhibits received or
offered Into evidence at the hearing.
Cc) The regional Hearing Clerk shall
promptly notify each of the parties of -
the filing of the certified transcript of
proceedings. Any party who would like
a copy of the transcript of the hearing
may order It from the Regional Hear-
Ing Clerk and pay the costs of supply-
ing it. ! the transcript of proceedings
has been prepared by a private stenog-
rapher or court reporter, the Regional
Rearing Clerk may direct interested
persons to make arrangements for
copies by dealing directly with such re-
porter.
After the close of the teking of evi-
dence, the presiding officer shall allow
witnesses, parties, and their counsel
time, not longer than 30 days except
In unusual cases, In which to submit
written proposed corrections of the
transcript of any oral testimony taken
at the hearing, pointing out errors
that may have been made In transcrib-
ing the testimony, as are required to
make the transcript conform to the
testimony.
5124.88 Proposed findings of fact and
conclusions; baieL
WithIn 45 days after the certified
transcript Is filled, any party may file
with the Regional Hearing Clerk pro-
posed findings of fact and conclusions
and a brief In support thereof, each
cont.ki ng appropriate reference to
the record. A copy of any such find-
lngs, conclusions and brief shall be
contemporaneously served upon every
other party 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.
5124.89 DecisIons.
(aX 1) In all cases except those de-
scribed In paragraph (b) of this section
the Presiding Officer shall, within 60
days following the expiration of the
filing period and any extensions grant-
ed under 5124.88, review and evaluate
the record before him/her the pro-
posed findings and conclusions and
any briefs filed by the parties. He/she
shall then prepare and Issue an initial
decision In the matter. Copies of that
decision shall be served upon all par-
ties (or their attorneys of record) and
the Afirnintetrator.
(2) ThIs decision shall become the
final decision of the Agency unless,
wIth 30 days after receipt of notice of
It a party files a petition for review by
the Regional Administrator under
5124.101, or unless the Regional Ad-
ministrator on his/her own motion de-
termines to review the decision under
5 124.101.
(bXl) In cases where no decision of
the General Counsel Is contested and
where no evidentlary hearing Is con-
ducted (I) Because the material facts
are stipulated, (II) Because the parties
have mutually agreed that the permit
be revised to contain certain terms,
conditions or requirements, or (Ill) Be-
cause no material Issues of fact exist
or ren’ in. no decision will be prepared
by either the Regional Administrator
or the presiding officer. The Regional
Administrator shall make a deterinina-
tion under 5124.81 consIstent with any
such stipulation or agreement, and
he/she shall Issue a revised permit In
conformity therewith.
(2) In cases where a decision of the
General Counsel Is contested, but
where no evidentlary hearing Is con-
ducted for the reasons set forth in
paragraph (bXl) of this section, the
presiding officer shall prepare and
Issue an Initial decision, consistent
with any stipulation or agreement ap-
proved by the Deputy Assistant Ad-
ministrator for Water Enforcement
and relying upon the decision of the
General Counsel, and copies of this de-
cision shall be served upon all parties
(or their attorneys of record) and the
Administrator. This decision shall
become the Mnal decision of the
Agency unless, wIthin 21 days after
such service of copies, a party files a
petition for review by the Administra-
tor of the General Counsel’s decision
or any part thereof under 5124.102 or
unless the Administrator on his/her
own motion determines to review the
decision under 5124.102.
§ 124.80 Interlocutory AppeaL
(a) Except as provided In this sec-
tion, appeals to the Administrator may
be taken only under §124.102. Appeals
from orders, rulings, or decisions of
the General Counsel may be taken
under this section only If the presiding
officer, upon motion of a party, certi-
fies those orders or rulings to the Ad-
ministrator for appeal on the record or
In writing. Requests to the presiding
officer for certification must be filed
In writing withIn 7 days of receipt 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
AdmlnIstrator
(1) When the order or ruling In-
volves an important question on which
there Is substantial ground for differ-
ence of opinion.
(2) Where 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 ineffec-
tive; and,
(3) Where such an appeal Is neces-
sary to prevent exceptional delay, ex-
pense or prejudice to any party.
(C) If the Administrator decides that
certification was improperly granted,
he/she shall decline to hear the
appeal; the Administrator shall rule
on all Interlocutory appeals withIn 30
days of their submission; If he/she
takes no action within that time, the
appeal shall be considered dismissed.
When the presiding officer declines to
certify an order or ruling to the Ad-
ministrator on Interlocutory appeal, It
may be reviewed by the Administrator
only upon appeal from the 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 In the public Interest.
Such motion shall be made within 3
days after receipt of notification from
the presIdIng officer that he/she has
refused to certify an order or ruling
for Interlocutory appeal to the Admin-
istrator. Ordinarily, the Interlocutory
appeal will be decided on the basis of
the submissions made to the presiding
officer. The Administrator may, how-
ever, allow briefs and oral argument.
(d) The presiding officer may stay
the proceeding pending a decision by
the Administrator upon an order or
ruling certified by the presiding offi-
cer for an interlocutory appeal, or
PIO AL IESIST VOL 43, NO. 142—MONDAY, AUGUST 21, 197$
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PROPOSED RULES
37125
upon the denial of such certification
by the presiding officer. Only in ex-
ceptional circumstances will proceed-
ings be stayed. No stay shall be grant-
ed for more than a 30-day period,
except that the presiding officer may
grant ari.additional stay not to exceed
30 days upon good cause shown.
(e) The failure to request an inter-
locutory appeal shall not foreclose a
party from taking exception to an
order or ruling in an appeal under
124.101.
124.91 Decisions of general counsel on
matters of law.
(a) Issues of law, including questions
about the interpretation of provisions
of the Act, and the interpretation of
regulations promulgated under the
Act, shall be decided under this sub-
section and shall not be considered at
the evidentiary hearing.
(b) The Regional Administrator or
the designee of the Regional Adminis-
trator shall determine which issues, if
any, submitted by the parties fall
under paragraph (a) of this section;
the Regional Administrator shall then
refer those issues to the General
Counsel for resolution and notify the
parties of that referral. Within 30 days
after the referral of legal issues, any
party may file briefs with the General
Counsel. All briefs shall contain, in
the order indicated, the following:
(1) A subject index of the issues pre-
sented In the brief, with page refer.
ences, and a table of statutes, cases,
treatises and other material cited, also
with page references:
(2) A concise statement of each re-
ferred issue;
(3) A discussion of each issue, includ-
ing arguments in favor of the refer-
ring party’s position and citations to
cases, statutes, legislative history and
other appropriate references and au-
thorities tending to support such posi-
tion: and
(4) A recommended decision for each
referred issue.
Cc) Where no evidentiary hearing
will be conducted because no material
issues of fact exist, the Regional Ad-
ministrator or the designee of the Re-
gional Administrator may still refer
issues of law_to the General Counsel
for decision under this section. Alter
the granting of a request for hearing,
even when all factual issues have been
resolved, the presiding officer may
still refer issues of law to the General
Counsel. The Regional Administrator
and the presiding officer need not
refer any Issue of law where a previ-
ously issued General Counsel Decision
would resolve the issue.
Cd) The General Counsel shall pro-
vide the Regional Administrator, the
presiding officer, where appropriate,
and each party with a written decision
on each referred issue of law within 60
days. A written opinion setting forth
the reasons and basis for the decision
shall also be provided. The decision of
the General Counsel shall be final
with respect to each referred issue of
law as it relates to the particular
permit in question and shall be relied
upon by the presiding officer in ren-
dering a decision under 5 124.89. The
General Counsel’s decision may not be
directly appealed to the Administra-
tor, but the Administrator may review
such decision in the context of an
appeal under 5124.102 and he/she
may reach different or additional con-
clusions of law. A decision of the Gen-
eral Counsel is “contested” If, within
30 days following service upon the par-
ties of that decision, any party files a
notice of Intent to appeal It. Copies of
that notice shall be served upon all
parties to the proceeding and the
Office of General Counsel, Water
Quality Division.
Subpor I—App.QII
§ 124.101 Appeal to the Regional Adminis-
trator.
(a)(1) Any party may appeal an Ini-
tial decision or any exception taken to
it by filing a petition seeking review by
the Regional Administrator.
(2) The Regional Administrator
may, on his/her own initative review
an initial decision. Within 7 days alter
the Regional Administrator has decid-
ed under this section to review an ini-
tial decision notice of that decision
shall be served by mall upon all affect-
ed parties and the presiding officer. - -
(b) WithIn 30 days after receipt of
notice of the initial decision any party
may take exception to any matter set
forth In the decision or to any adverse
order or ruling to which he/she ob-
jected during the hearing and may
appeal such exceptions to the Region-
ii Administrator for decision by filing
with the Regional Administrator
notice of appeal and petition for
review. Proof of service upon all par-
ties shall accompany such filing. The
petition shall include a statement of
the supporting reasons for such excep-
tions and, where appropriate, a show-
ing that the initial decision contains:
(1) A finding of fact or conclusion of
law which is clearly erroneous, or
(2) An exercise of discretion or
policy which is important and which
the Regional Administrator should, in
his/her discretion, review.
(c)(1) Within a reasonable time fol-
lowing the filing of the petition for
review, the Regional Administrator
shall issue an order either granting or
denying the petition for review. The
Regional Administrator, in his/her
discretion, may decline to review an
initial decision or the denial of an evi-
dentiary hearing, in which case that
decision or denial becomes the final
action of the Agency, unless appealed
to the Administrator under § 124.102.
When the Regional Administrator
grants a petition for review or deter-
mines on his/her own motion to
review a decision, he/she may notify
the parties that only certain issues
shall be briefed.
(2) A regional Administrator may de-
dine to review a case either (i) on the
grounds that there was no significant
error in the decision or (ii) on the
grounds that the issues presented for
review are so significant that the
appeal should be certified directly to
the Administrator in the interest of ef-
ficiency. The Regional Administrator’s
nctice declining to review a case shall
state which issues in his/her opinion
should be appealed directly to the Ad-
ministrator.
Cd) After granting a petition for
review or determining on his/her own
motion to review a decision, the Re-
gional Administrator may still aumrna-
rily affirm without opinion an initial
decision or the denial of an eviden-
tiai-y hearing, and may decline to
review an issue further on the grounds
that the Administrator shall review it.
Ce) A petition to the Regional Ad-
ministrator under paragraph (C) of
this section for review of any initial
decision is a prerequisite to any appeal
to the Administrator under § 124.102.
Ct) Unless a party timely files a peti-
tion for review, or unless the Regional
Administrator on his/her own initia-
tive orders review, the initial decision
becomes the final decision of the
Agency. If a petition for review Is
granted, or the Regional Administra-
tor takes action to review on his/her
own initiative under paragraph (a)(2)
of this section, the initial decision or
the denial of an evidentlary hearing
shall not become the final action of
the Agency.
(g) The petitioner may file a brief in
support of the petition withIn 21 days
after the Regional Administrator has
allowed review by granting a petition
for review. Proof of service upon all
parties shall accompany this filing.
Any other party may file a responsive
brief, together with proof of service,
within 21 days of service of a brief in
support of the petition. The petitioner
may file a reply brief as provided in
paragraph (j) of this section. If the
Regional Administrator determines.
on his/her own motion, to review an
Initial decision he/she shall notify the
parties of the briefing schedule.
(liXl) Review by the Regional Ad-
ministrator of an initial or tentative
decision shall be limited to issues spec-
ified under paragraph (d) of this sec-
tion. except that following notice to
all parties, the Regional Administra-
tor, in his/her discreation, may raise
and decide other matters which he/
she considered material on the basis of
the record.
FEDERAL REGISTER, VOL 43 NO. 162—MONDAY, AUGUST 2), 1978
-------
Sf126
PROPOSED RULES
(2) Upon review, the Regional Ad-
ininistrator may affirm, modify, set
aside or remand for further, proceed-
Inge, In whole or In part., an initial de-
cision, and he/she may make any find-
ln or conclusions which in his/her
judgment are proper and supported by
the record. Where an Initial decision is
affirmed by the Regional Administra-
tor, for whatever reason, that decision
shall be eonsldered affirmed for the
reasons Indicated In the Initial deci-
sion, except to the extent that other
reasons Inconsistent with the Initial
decision are stated by the Regional
Administrator.
(iXI) Briefs shall be confined to the
particular matters reina(nlng at Issue.
Each exception which is briefed shall
be supported by eltiatlon to auth stat-
utes, rules, decisions, and other au-
thorities and by page reference to
such portions of the reeord as may be
relevant. Reply briefs shall be con-
fined to matters In original briefs of
other partlea. The length and filing
achedtile for reply briefs shall be de-
termined by the Regional Administra-
tor.
2) AU briefs filed with the Regional
Administrator shall include an index
and a summary of points and authori-
ties. Each brief shall be dated, and no
brief shaU exceed 45 pages in length
except with leave of the Regional Ad-
ministrator. All briefs must contain
the signature and address of the party
filing It or his/her attorney.
(j) The Regional Administrator shall
decide the matters under review on
the basis of the hearing record. Oral
arpunent before the Regional Admin-
istrator will be available only If the
Regional Administrator, in his/her
discretion, requests It.
(k) AU papers that must be filed
with the Regional Administrator must
be served either by delivery in person
or by certified or registered mall, and
must be mailed or delivered to the
Agency within the time limit for such
filing. All papers required to be served
on any party shall be either delivered
in person or mailed to that party, cer-
tif led or registered mall, at the address
for that party as It appears on the
record, within the time limit for such
service.
U) Two (2) copIes of all material
filed under this section shall be filed
at the same time with the regional
hearing clerk, and a certificate evi-
dencing that filing shall accompany all
papers filed with the Regional Admin-
istrator.
Up) The Regional Administrator for
good cause shown may upon motion
extend the times prescribed herein for
doing any act or may permit an act to
be done after the expiration of such
time, but the Regional Administrator
may not extend the time for filing a
notice of appeal and petition for
review under paragraph Cc) of the sec .
tion.
§ 124.102 Appeal to the Administrator.
Ca) Any person whose request for an
evidentlary hearing has been denied
may file a petition seeking review of
that denial by the Administrator. Any
party (Including EPA trial staff) may
appeal any final decision by a Region-
al Administrator on review of an l i ii-
tlsl decision by filing a petition seek-
ing review by the Administrator.
Cb) The Administrator may, on hls/
her own Initiative, review the denial of
an evidentisry hearing or any final de-
cision by a Regional Administrator on
review of an initial decision. Within
seven (7) days after the Administrator
has decided under this section to
review a final decision or the denial of
an evldentlary hearing, notice of that
decision shall be served by mall upon
an affected parties and the Regional
Administrator.
Cc) WIthin 30 days after receipt of
notice of the final decision of the Re-
gional Administrator on review of an
Initial decision, or the denial of the re-
quest for evidentlary hearing, any
party or requestor, as the case may be.
may take exception to any matter set
forth in the decision or to any adverse
order or ruling to which he objected
during the hearing and may appeal
such exceptions to the Administrator
for decision by filing with the Admin-
istrator notice of appeal and petition
for review. Proof of service upon all -
parties shall accompany such filing.
the petition shall include a statement
of the supporting reasons for such ex-
ceptions and, where appropriate, a
showing that the initial decision con-
tains:
(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, in his dis-
cretion, review.
Policy or legal conclusions made In the
course of denying a request for an evi-
dentiary hearing may be reviewed and
changed by the Administrator in an
appeal under this section.
Cd) Within a reasonable time follow-
big the filing of the petition for
review, the Administrator shall Issue
an order either granting or denying
the petition for review. The Adminis-
trator, in his/her discretion, may de-
cline to review a final decision of the
Regional Administrator or the denial
of an evidentlary hearing, in which
ease that final decision or denial be-
comes the final action of the Agency.
When the Administrator grants a peti-
tion for review or determines on hls/
her own motion to review a decision,
he/she may notify the parties that
only certain Issues shall be briefed.
Ce) After granting a petition for
review or determining on his/her own
motion to review a decision, the Ad-
ministrator may stIll summarily affirm
without opinion an Initial decision.
any decision by the Regional Adminis-
trator on It, or the denial of an eviden-
tiary hearing.
Cf) A petition to the Administrator
under paragraph Cc) of this section for
review of any initial decision, any Re-
gional Administrator decision, or the
denial of an evidentlary hearing is,
under 5 U.S.C. 704, a prerequisite to
the seeking of judicial review of the
final decision of the Agency.
(g) Unless a party timely files a peti-
tion for review, or unless the Adminis-
trator on his/her own initiative orders
review, the decision of the Regional
Atfrnlnlstrator or the denial of an cvi-
dentiary hearing becomes the final de-
cision of the Agency. If a petition for
review is granted, or the Administra-
tor takes action to review on his/her
own initiative under paragraph Cb) of
this section, the decision of the Re-
gional Administrator or the denial of
an evidentisry hearing shall not
become the final action of the Agency.
Ch) The petitioner may file a brief in
support of the petition within 21 days
after the Administrator has allowed
revIew by granting a petition for
review. Proof of service upon all par-
ties shall accompany this filing. Any
other party may file a responsive
brief, together with proof of service,
.wlthln 21 days of service of a brief In
• support of the petition. The petitioner
may file a repiy brief as provided in
paragraph (j) of this section. If the
Administrator determines, on his/her
own motion, to review a Regional Ad-
ministrator’s decision or the denial of
an evidentlary hearing, he/the shall
notify the parties of the briefing
schedule.
C l) Review by the Administrator of a
Regional Administrator decision or
the denial of an evidentlary hearing
than be limited to Issues specified
under paragraph Cd) of this section,
except that following notice to an par-
ties, the Administrator in his/her own
discretion may raise and decide other
matters which he/she considers mate-
rial on the basis of the record.
1124.103 Applicability of subpart H.
(a) All the provisions of this subpart
other than § 124.76 and the provisions
of §124.83CcX3) and 124.65(d xl) for
automatic receipt of the administra-
tive record into evidence shall apply to
an hearings which may begin after the
effective date of these regulations:
Provfde That the presiding officer at
any such hearing may vary or suapend
any of the terms of these regulations
during a 6-month transItional period
after theIr effective date to avoid in-
convenience or Injustice.
FWERAL REGISTER, VOL 43 NO. 162—MONDAY, AUGUST 21, 1978
-------
PROPOSED RULES
3 I27
(b) Section 124.76 and the provisions
of 124.83(cX3) and 124.85(dXl) for
automatic receipt of the administra-
tive record into evidence shall apply to
all hearings regarding a permit which
was based on an administrative record
under 124.64:
S.abpei J—Nonodv.ity k.&Ild U mIn
124.111 Applicability.
(a) This subpart shall apply instead
of subparts F through H to any issu-
ance of a permit which constitutes
“initial licensing” under the Adininis-
trative Procedure Act and where the
Enforcement Division Director states
in the draft permit that this subpart
will be followed.
(b) “Initial licensing” includes both
the first grant of an NPDES permit to
a discharger that has not previously
held a permit and the first decision on
any variance applied for by a discharg-
er.
5124.112 Public notice regarding draft
permits and permit conditions.
(a) Notice of the proposed issuance,
denial, or modification of a permit
under this subpart shall be given by
the Enforcement Division Director as
follows:
(1) By rn iJlIiig a copy to the appli-
cant, and to Federal and State agen-
cies with jurisdiction over fish, shell-
fish, and wildlife resources and to
other appropriate governmental au-
thorities, and to any person who has
filed a written request with the En-
forcement Division Director to receive
copies of notices relating to permits
proposed to be issued, denied, or modi-
fied for particular facilities or for ef-
fluent sources located within a certain
state or geographical area: Provided,
That person has renewed that request
ir writing no more than 6 months ear-
11cr; and
(2) By either of the following meth-
ods:
(I) By publication at least once in a
daily or weekly newspaper of general
circulation within the area in which
the effluent source is located; or
(ii) By posting a copy at the princi-
pal office of the municipality In which
the effluent source is located, or if the
source Is not located within a munici-
pality, then at the principal office of
the political subdivision with general
jurisdiction over the premises on
which the source is located, and by
posting a copy at the U.S. post office
serving those premises.
(b) Any public notice issued under
paragraph (a) of this section shall con-
tain the following information:
(1) Name and address of the regional
office processing the application;
(2) Name and address of the appli-
cant and the discharger (if different
from the applicant);
(3) Name and water quality stand-
ards 1 lfLcation of the receiving
waters into which the discharge occurs
or is proposed, and a general descrip-
tion of the location of each existing or
proposed discharge ‘Doint on those
waters;
(4) Address and telephone number
of the place where Interested persons
may obtain further Information, in-
cluding copies of the draft permit and
the factsheet;
(5) The location of the administra-
tive record required by 5124.44 and
the times at which It will be open for
public inspection;
(6) Brief description of the appli-
cant’s activities or operation that
result in the discharge described in
the application, and a statement
whether the application pertains to
new or ‘existing diachargers (e.g., new
municipal waste treatment plant, ex-
isting steel manufacturing, or new
drainage from existing mining activi-
ties, etc.);
(7) Statement of the terms of the
draft permit;
(8) In cases where the draft permit
involves a proposed variance from or
modification of effluent limitations or
extenstion of statutory deadlines, a de-
scription of the draft permit condi-
tions; -
(9) A statement that written com-
ments on the draft permit submitted
to EPA within sixty (60) days of the
date of the notice will be considered
by EPA in making a final decision on
the application;
(10) A statement that the pci-mit will
be processed under the nonadversary
initial licensing procedures of this sub-
part, together with a brief description
of those procedures. This description
shall state explicitly the manner and
timing for any person to request a
hearing on the permit. if EPA has de-
cided on its own motion to hold a
hearing, the notice shall so state, and
shall also contain the information re-
quired by § 124.115;
(11) Such aditlonal statements, rep-
resentations, or information as the En-
forcement Division Director considers
necessary or proper.
(C) In addition to the information re-
quired by paragraph (b) of this sec-
tion, the public notice of the proposed
issuance, denial or modification of a
permit under a 3 16(a) application has
been filed under 5124.15 shall include:
(1) A statement that the thermal
component of the discharge is subject
to effluent limitations under section
301 or 306 of the Act and a brief de-
scription including a quantitative
statement of the thermal effluent
limitations proposed under sectIon 301
or 306; and
(2) A statement that a 316(a) appli-
cation has been filed and that alterna-
tive (and less stringent) effluent limi-
tations may be imposed on the ther-
mal component of the discharge under
section 516(a), a brief description In-
cluding a quantitative statement of
the alternative effluent limitations, If
any, included in the application, and
the extent to which the Enforcement
Division Director has proposed to
grant the request.
(d) Publlc notice Issued under this
section may describe more than one
permit and more than one discharge.
(e) In addition to giving public
notice as required by the previous
paragraphs of this section, the En-
forcement Division Director shall
transmit to the permit applicant and
to appropriate officials of Federal and
State fish, shellfish, and wildlife re-
source agencies copies of draft permits
and their accompanying support docu-
ments In accordance with subpart C.
The Enforcement Division Director
shall upon request add the name of
any person or group to a ni i1tng list
to receive copies of these documents.
In appropriate cases, such persons
may be required to pay reasonable du-
plicating expenses for such material.
5124.113 Request for hearing request to
participate in hearing.
(a) Within 30 days of the date of
publication or receipt of the notice re-
quired by 5124.112. any person may
request the Regional A4mlnlstrator to
hold an evidentiary hearing on the
draft permit by submitting a written
request cont RInIng the following:
(1) IdentIfication of the person re-
questing the hearing and his interest
In the proceeding:
(2) A statement of any objections to
the draft permit; and
(3) A statement of the Issues which
such person proposes to raise for con-
sideration at such hearing.
(b) Whenever (1) a written request
satisfying the requirements of para-
graph (a) of this section has been re-
ceived and presents genuine issues, or
(2) the Regional Administrator deter-
mines in his/her discretion that an
evidentlary hearing under this subpart
is necessary or appropriate, the Re-
gional Administrator shall give written
notice of the determination to each
person requesting such hearing and
the applicant, and shall provide public
notice of the determination in accord-
ance with 5124.115. If the regional Ad-
ininistrator determtnes that a request
filed under paragraph (a) of this sec-
tion does not comply with the require-
ments of paragraph (a) of this section
or does not present genuine issues, he/
she shall give written notice of his/her
determination to the person request-
ing the hearing.
PEDERAL REGISTER, VOl. 43, NO. 162—MONDAY AUGUST 21, 1915
-------
31128
(C) The Regional Administrator may
also decide before a draft permit Is
Issued that a hearing should be held
under this part. In such cases the
‘notice of Issuance of the draft permit
under § 124.112 shall so state.
5124.114 Effect of denial of or absence of
request for hearing.
If no request for a hearing Is made
under 5124.113, or If all such requests
are denied under that section, the
draft permit shall be treated procedur-
ally as if It were a recommended deci-
sion Issued under 5124.124, except
that for purposes of 5124.125 and
5124.126 the term “hearing partici-
pant” or “person who participated in
the hearing” shall be construed to
mean the applicant and any person
who submitted comments under
S 124.112(bX9).
5124.115 NotIce of hearing.
(a) Upon granting a request for an
evidentlary hearing under 5124.113
the Regions] Administrator shall
promptly publish a notice of hearing.
(b) The notice of hearing shall be
published as specified In 5124.112(a)
and shall contain:
(1) The information required by
paragraphs (b)(1) through (b)(5) of
5124.112;
(2) Reference to the date and
manner of public notice of the pro-
posed Issuance, denial or modification
of the permit;
(3) Name and address of the person
requesting the evidentiary hearing, or
that the hearing Is being held by order
of the Regional Administrator, and
the name and address of each known
party to the hearlng
(4) 4 statement that the hearing will
be held under the nonadversary Initial
licensing procedures of this subpart,
together with a brief description of
those procedures. The members or p0-
tenti ,1 members of the hearing panel
under 5124.119, and any staffers sup-
porting that panel, shall be listed by
name;
(5) A statement of the time and
place of the hearing;
(6) The due date for filing a written
request to participate In the hearing
under 5124.116;
(7) The due date for filing main com-
ments under 5124.117; and
(8) The name, address, and office
telephone number of the regional
hearing clerk.
§ 124.116 Request to participate In hear-
ing.
Each person desiring to participate
in any hearing notice under this sec-
tion, IncludIng any person requesting
such a hearing, shall file a written re-
quest to participate with the record
and hearing clerk by the deadline set
PROPOSED RULES
forth In the notice of hearing. The re-
quest shall include:
(a) A brief statement of the interest
of the person In the proceeding;
(b) A brief outline of the points to be
addressed;
(C) An estimate of the time required;
and --
(d) If the request Is submitted by an
organization, a nonbinding list of the
persons to take part In the presenta-
tion. As soon as practicable, but in no
event later than 2 Weeks before the
scheduled date of the hearing, the re-
gional hearing clerk shall make a
hearing schedule available to the
public and shall mall It to each person
who requested to participate In the
hearing.
§ 124.117 SubmIssion of written comments
on draft permit.
(a) Each person who has filed a re-
quest to participate In the hearing
shall file with the regional hearing
clerk 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) all comments
which such person has 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
person at the time.
(b) Not later than 2 weeks after
copies of the verbatim transcript of
the full hearing (including any cross-
examlnation)’has been made available
(or such other later date as may be set
forth in the notice of hearing), each
person who has filed a request to par-
ticipate In the hearing shall file with
the regions] hearing clerk all com-
ments he/she may have on:
(1) Written comments submitted by
other participants under paragraph
(a) of this section;
(2) Written comments submitted
under § 124.112(b)(9);
(3) Material in the hearing record;
and
(4) Material which was not and
could not reasonably have been availa-
ble prior to the deadline for submis-
sion of main comments under para-
graph (a) of this section.
(C) AU comments shall include any
affidavits, studies, tests, or other ma-
terials relied upon for making any fac-
tual statements In the comments.
(d) (1) WrItten comments filed
under this section shall constitute the
bulk of the evidence submitted at the
hearing. Oral statements at the hear-
ing should be brief, and restricted
either to points that could not have
been made in written comments, or to
emphasizing points which are made in
the comments, but which the partici-
pant believes can be more forcefully
urged In the hearing context.
(2) NotwithstandIng the foregoing,
WIthin 2 weeks prior to the deadline
specified by paragraph (a) of this sec-
tion for the filing of main comments,
any person who has filed a request to
participate in the hearing may file a
request with the Presiding Officer to
submit all or part of his/her main
comments orally at the hearing In lieu
of submitting written comments, the
Presiding Officer shall, wIthin 1 week,
grant such request if he/she finds that
such person will be prejudiced if he/
she Is required to submit such com-
ments In written form.
5124.118 PresidIng Officer.
(a) (1) Upon the granting of a re-
quest for hearing under * 124.113. the
Regional Administrator shall, as soon
as practicable, request that the Chief
Administrative Law Judge assign an
Administrative Law Judge as Presiding
Officer. The Chief Administrative Law
Judge shall thereupon make such as-
signment.
(2) If all parties to the hearing waive
their statutory right to have an Ad-
ministrative Law Judge preside at the
hearing, the Regional Administrator
shall name a lawyer permanently or
temporarily employed by the Agency
to serve as Presiding Officer.
(b) It shall be the duty of the Presid-
ing Officer to conduct a fair and im-
partial hearing, assure that the facts
are fully elicited, and avoid delay.
With respect to those cases assigned to
hlm/her, between the time he/she Is
- assigned and the time the hearing
closes, the Presiding Officer shall have
authority to:
(1) Chair and conduct administrative
bearings held under this Subpart;
(2) Administer oaths and affirma-
tions;
(3) ReceIve relevant evidence, pro-
vided that all comments, under
5124.117, the record of the panel hear-
ing under § 124.119, and the adminis-
trative record, as defined in 5 124.44
shall be received In evidence;
(4) Consider and rule upon motions,
dispose of procedural requests, and
Issue all necessary orders;
(5) Hold conferences for the settle-
ment or simplification of the Issues or
the expediting of the proceedings; and
(6) Do all other acts and take all
measures necessary for the mainte-
nance of order and for the efficient,
fair, and impartial conduct of proceed-
Ings under this subpart.
§124.119 Panel hearing.
(a) A Presiding Officer shall preside
at each hearing held under this sub-
part. An EPA panel shall also take
part In the hearing. In general, the
membership of the panel shall consist
of EPA employees having special ex-
pertise In areas related to the Issues to
be addressed at the hearing. For this
PEDERAL REGISTER, VOL 43, NO. 162—MONDAY, AUGUST 21, 1978
-------
reason, the membership of the panel
may change as different issues are pre-
sented for discussion. The Regional
Administrator may also designate
agency employees who will not or may
not serve on the hearing panel to pro-
vide staff support to the panel as
needed.
(b) Either bifore the hearing begins
or during the hearing, the Presiding
Officer, after consultation with the
panel, may request that a person not
then scheduled to participate in the
hearing (Including an EPA employee
or a person identified by any sched-
uled hearing participant as having
knowlege concerning the Issues raised
for discussion at the bearing) make a
presentation or be available for cross-
examination at the hearing.
Cc) The panel members may question
any person participating in the hear-
ing, Cross-examination by persons
other than panel members shall not be
permitted at this stage of the proceed-
ing except when the Presiding Officer
determines, after consultation with
the panel, that elrcurnstances compel
such cross-examination. However, per-
sons in the hearing audience, includ-
ing other hearing participants, may
submit written questions to the Presid-
ing Officer for the Presiding Officer to
ask the participants, and the Presiding
Officer may, after consultation with
the panel, and at his/her sole dia ne-
tion, ask these questions.
Cd) Participants in the hearing shall
submit for the hearing record such ad-
ditional material as the hearing panel
may request wIthin 10 days following
the close of the hearing, or such other
period of time as is ordered by the pre-
siding officer, Participants may also
submit additional information for the
hearing record on their own accord
within 10 days after the close of the
hearing.
Ce) The hearing shall be either
stenographically nported verbatim or
tt,,e recorded, and thereupon tran-
scribed.
§ 124.120 Opportunity for cross-examina-
tion.
(a) After the close of the panel hear-
ing under § 124.119, any participant in
that hearing may submit a written re-
quest for cross-examination on any
disputed issue of material fact. The re-
quest shall be received by EPA within
1 week after a full transcript of the
panel hearing becomes available and
shall specify:
(1) The disputed issue(s) of material
fact regarding which cross-examina-
tion is requcstecL 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 the
light of the record made thus far, and
the extent to which and why they can
PROPOSED RULES
reasonably be considered material to
the decision on the application for
modification; and
(2) The person(s) a participant de-
sires to cross-examine, and an estimate
of the time necessary. This shall in-
elude a statement as to why the cross-
exsmfnatlon requested can be expect-
ed to result in resolving the issue of
material fact Involved.
(b) As expeditiously as practicable
after receipt of all requests for cross-
enmlnatlon under paragraph Ca) of
this section, the presiding officer,
after consultation with the hearing
panel, shall issue an order either
granting or denying each such request,
which shall be disseminated to all per-
sons requesting cross-examination and
all persons to be cross-examined. If
any request for cross-examination is
‘granted, the order shall specify:
(1) The issues on which cross-exami-
nation action 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.
in issuing this ruling, the presiding of-
ficer may determine that one or more
participants have the same or similar
interests and that to prevent unduly
repetitious aoss.enrnination, they
should be required to choose a single
representative for purposes of cross-
examination. In such a case, the order
shall simply assign time for cross-ex-
ainination by that single representa-
tive without identifying the represent-
give further.
Cc) The presiding officer and at least
one member of the original hearing
panel shall preside at the supplemen-
tary hearing. During the course of the
hearing, the presiding officer shall
have authority to modify any order
issued under paragraph (b) of this sec-
tion. A verbatim transcript shall be
made of this hearing.
(d)(1) No later than the time set for
requesting eross-exanilnation, a hear-
ing participant may request that alter-
native methods of clarifying the
record (such as the submittal of addi-
tional written information) be used in
lieu of or In addition to cross-examina-
tion. The presiding officer shall issue
an order granting or denying such re-
quest at the time he issues (or would
have issued) an order under paragraph
(b) of this section. U the request is
granted, the order shall specify the al-
ternative provided and any other rele-
vant information (e.g., the due date
for submittal written information).
(2) In passing on any request for
cross-examination submitted under
3 !j29
paragraph (a) of this sectIon, the pre-
siding officer may, as a precondition to
ruling on the merits of such request,
require alternative means of clarifying
the record to be used whether or not a
request to do so has been made under
the immediately preceding paragraph.
The person requesting cros-enmina-
lion shall have 1 week to comment on
the results of utilizing such alternative
means, loUowlng which the presiding
officer, as soon as practicable, shall
Issue an order granting or denying
such person’s request for cross-exami-
nation.
0121121 Es pafle contacts.
(a) (1) At no time. after issuance of
the notice of hearing shall the Region-
al Administrator, presiding officer,
any panel member, or any other EPA
employee who is or may reasonably be
expected to be involved in making a
decision on the draft permit issued
under this part discuss cx parte the
merits of the proceeding with the ap-
plicant or any other person outside
the Agency who has filed written eoni-
ments on the application or draft
permit, requested a hearing, requested
to participate in a hearing or partici-
pated in a hearing on such application,
or with any representative of any of
the above or with any other interested
person outside the Agency.
(2) Notwithstanding the foregoing,
the Regional Admlnlitrator, presiding
officer, any panel member, or any
other EPA employee who is or may
reasonably be expected to be involved
in the decisional process may discuss
the merits of the proceedings with any
person Identified in paragraph (ax 1)
of this section if all participants in the
proceedings, or their representatives,
have been given reasonable notice and
opportunity to be present and to par-
ticipate.
(b) Any memorandum or other coin-
municatlon addressed to the Regional
Administrator, presiding officer, any
panel member, or any other EPA em-
ployee who is or may reasonably be
expected to be involved in making a
decision on the application for modifi-
cation, during the pendency of the
proceeding, and relating to the merits
thereof, by or on behalf of the appli-
cant or any hearing participant, shall
be regarded as argument made in the
proceeding and shall be served on the
applicant and all other hearing par-
ticipants.
Cc) (1) If the Regional Administra-
tor, presiding officer, any panel
member, or any other EPA employee
!hO is or may reasonably be expected
to be involved in making a decision on
the application for modification re-
ceives, or makes or knowingly causes
to be made, an oral or written ex parte
communication, he/she shall place in
the record:
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 1976
-------
3’Zi30
(I) The written communication, If
any;
(II) A memorandum stating the sub-
stance of any oral communication; aria
(iii) All written responses and memo-
randa stating the substance of all oral
responses to the materials listed
above. -
(2) Upon receipt of a communication
from an applicant, hearing partici-
pant, or other Interested person out-
side the Agency In violation of para-
graphs (a) and (b) of this section, the
Administrator, or presiding officer
may, to the extent consistent with the
interests of Justice and the policy of
the Act, require such person to show
cause why his/her application, claim
or interest In the proceeding should
not be dismissed, denied, disregarded,
or otherwise adversely affected on ac-
count of such violation.
§ 124.122 Record for final permiL
(a) The record on which the final
permit shall be based in any proceed-
ing under this subpart shall consist of:
(1) The administrative record com-
piled under § 124.44;
(2) All notices Issued under § 124.112;
(3) AU requests for hearings, and nil-
ings on those requests received or
Issued under § 124.113;
(4) Any notice of hearing issued
under 124.115; -
(5) Any request to participate in the
hearing received under § 124.116;
(6) All main comments, reply com-
ments. and any accompanying infor-
mation submitted under §124.117, and
any comments filed under
* 124.112(b)(9);
(7) The full transcript and other ma-
terial received Into the record of the
panel hearing under § 124.119;
(8) Any requests for or rulings on
cross-examination filed or issued
§ 124.120;
(9) Any orders for and the results of
any alternatives to cross-examination
under § 124.120;
(10) The full transcript of any cross-
examination held; and
(11) Any material submitted under
§ 124.21 relating to cx parte contacts.
§ 124.123 Filing of brief, proposed findings
of fact and concluilons of law and pro-
posed modified penniL
Unless otherwise ordered by the pre-
siding officer, each hearing partici-
pant may, wIthin 20 days after the
deadline for filing reply comments, file
with the hearing and record clerk and
serve upon all other hearing partici-
pants proposed findings of fact; con-
clusions regarding material Issues -of
law, fact, or discretion; a proposed
modified NPDES permit (If such
person Is urging that the draft permit
should be modified); and a brief in
support thereof; together with refer-
ences to relevant pages of transcript
PROPOSED RULES
and to relevant exhibits. Within 10
days thereafter each participant may
file a reply brief concerning matters
contained in opposing briefs and con-
taining alternative findings of fact;
conclusions regarding material issues
of law, fact, or dlscretion and a pro-
posed modified permit. Oral argument
may be held at the discretion of the
presiding officer on motion of any
hearing participant or sua sponte
§ 124.124 Recommended decision.
(a) The Regional Administrator
shall, as soon as practicable after the
conclusion of the hearing, evaluate
the record of the hearing and prepare
and file a recommended decision with
the Regional Hearing Clerk. The Re-
gional Administrator may consult with
and receive assistance from any
member of the hearing panel In draft-
ing the recommended decision. The
Regional Administrator may also dele-
gate the preparatlon of the recom-
mended decision to the panel or to any
member or members of it. This deci-
sion shall contain findings of fact, con-
clusions regarding all material issues
of law, and a recommendation as to
whether and in what respects the
draft permit shall be modified. After
the recommended decision has been
filed, the Regional Hearing Clerk shall
serve a copy of such decision on each
hearing participant and upon the Ad-
ininfetrat Or.
§ 124125 Appeal from or review of recom-
mended decision.
(a) (1) WithIn 20 days after service
of the recommended decision, any
hearing participant may take excep-
tion to any matter set forth in such
decision or to any adverse order or
ruling of the presiding officer prior to
or during the hearing to which such
participant objected, and may appeal
such exceptions to the Administrator
as provided In § 124.102. Such excep-
tions shall contain alternative findings
of fact; conclusions regarding material
Issues of law, fact, or discretion; to-
gether with references to the relevant
pages of the record and Initial deci-
sion, and, if It Is urged that the permit
should .be granted in whole or in part,
a proposed modified NPDES permit. A
copy of each such document taking ex-
ception to the initial decision shall be
served upon every other hearing par-
ticipant. Within the same period of
time each party filing exceptions shall
file with the Administrator and shall
serve upon all hearing participants a
brief concerning each of the excep-
tions being appealed. Each such brief
shall include page references to the
relevant portions of the record and to
the recommended decision.
(2) Within 10 days of the service of
exceptions and briefs under paragraph
(aXi) of this section, any hearing par-
ticipant may file and serve a reply
brief responding to exceptions or argu-
ments raised by any other hearing
participant together with references
to the relevant portions of the record.
recommended decision, or opposing
brief. Reply briefs shall not, however.
raise additional excepMons.
(b) Whenever the Administrator de-
termines sua spont.e to review a recom-
mended decision, notice of such inten-
tion shall be served upon the parties
by the record and hearing clerk within
30 days after the date of service of the
recommended decision. Such notice
shall include a statement of issues to
be briefed by the hearing participants
and a time schedule f or the service
and filing of briefs.
(C) The appeal of the recommended
decision shall be limited to the Issues
raised by the appellant, except when
the Administrator determines that ad-
ditional Issues should be briefed or
argued. If the Administrator deter-
mines that briefing or argument of ad-
ditional Issues Is warranted, all hear-
ing participants shall be given reason-
able written notice of such determina-
tion to permit preparation of adequate
argument.
(d) The Administrator may, upon re-
quest by a party or sua sponte. set a
matter for oral argument. The time
and place for such oral argument shall
be assigned after giving consideration
to the convenience of the parties.
§ 124.126 FInal decision.
- As soon as practicable after all
appeal proceedings have been complet-
ed, the Administrator shall Issue a
final decision. Such final decision shall
Include findings of fact; conclusions
regarding material issue of law, fact,
or discretion, as well as reasons there-
for and a modified NPDES permit to
the extent appropriate. It may accept
or reject all or part of the recommend-
ed decision. The Administrator may
consult with the presiding officer,
members of the hearing panel or any
other EPA employee in preparing the
final decision. The hearing and record
clerk shall file a copy of the decision
on all hearing participants.
§ 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 himself/herself, he/she shall
be deemed to have adopted the recom-
mended decision as the final decision
of the Agency upon the expiration of
the time for filing any appeals.
Subposl K—.MIsc.Haosovs
§ 124.131 Public access to Information.
All permit applications, certifica-
tions Issued under section 401 of the
FEDERAL REGISTER. VOL. 43, NO. 162—MONDAY, AUGUST 21 . 1978
-------
Act and subpart I ) of this part, the
comments of all governmental agen-
des on a permit application, and draft
permits and fact sheets prepared shall
be available to the public without re-
striction.
4 124. 132 DelegatIon of authority; time
limitations.
(a) The Administrator may delegate
to a judicial officer any or all of hls/
her authority to act under this sub-
part.
(b) The failure of the Administrator,
Regional Administrator or presiding
officer to do any act within the time
periods specified herein shall not be
construed as a waiver or in derogation
of any rights, powers or authority of
the U.S. Environmental Protection
Agency.
Cc) Upon a showing by any party
that it has been prejudiced by a fail-
ure of the Administrator, Regional Ad-
ministrator, or presiding officer to do
any act within the time periods speci-
fied herein, the Administrator, Re-
gional Administrator, or presiding offi-
cer, as the ease may be, may rant
such party such relief of a procedural
nature (including extension of any
time for compliance or other action)-
as may be appropriate.
Subpart L.—Piaadins h r EPA RerSa of S .. ..
Permit. ad.’ ladS.. 403
(Reserved. This subpart will reflect the
procedures of 40 CPR 124.47 and 124.48 for
EPA review of State permits under section
402(d). with one minor revision. To ensure
that interested persons are Informed of EPA
objections to State permits and can exercise
their right to request a public bearing on an
EPA objection, EPA will be required to pro-
vide a public notice of objection and the
rtght to request a public hearing at the
ea ue time an objection is transmitted to the
State Director.
4. 40 CFR Part 125 is proposed to be
revised as follows:
PART 125.-.CRITBiA AND STANDARDS FOR
THE NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM
Subpart A—O li n. sad Standards far Imp.dng T.d’-
.ala y-Sss.d Treatmant R.quirsasnls Usda . isa-
Sign 301(b) .4 lbs Ad
Sec.
125.1 Purpose andacope
125.2 Technology-based treatment require-
ments in permits.
Subpart 3—EPA aol. ’.. Ia Stais-lisuad Parmba
Usda. I..ti.. 402CdX2) of ski Ad IR.s.nadJ
Subpai C—Criteria far henna of PurStute
Aquecuiturs PrsI.d.
125.15 Purpose and scope.
125.16 Criteria.
PROPOSED RULES
Subpart 0—Criteria fir Eal..41 , C.mp.nca Data.
4., PariSHes br”g S.ev.tIve ladinelegy
Undar Sadie. 201(b) .4th. Ad (R.aaruedl
— E—CdSI. aid Standard . far DeI...M1. ,
Paidamoalahly Different faders l inda. Semi..
2D1(b)(IXA), 201(bX2)CA) and CE), ad 307(b)af
lb. Ad
125.23 Purpose and scope.
125.26 Criteria.
125.21 Method of Application-
sean P—Cdtnla far Orsalbig EconomIc Yarlaeaa
tram SAT 11.4.. Sadian 30 1 (e) sIll ’s Ad IRs—.’- dl
Subpmt G.—Oltala hr Wets. QualIty Re-
Sad Vodaaeao Usda. S.di.. lal(g) e l i ’. Ad
(Raarndl
Subpmt N—tilted. far MeSfyIsq the ! t.y
T,ntm,.nt Raquiramant Unda. SadIe. 30 5(k) .4th.
Ad (Rsoanadl
Subpart s—crisri. far DatenM.$.. 51 AIl.mdtv.
Effluant LStdL. _ Usdur ladS.. 310(e) alIbi Act
125.45 Purpose and scope.
125.46 Definitions.
125.47 Crtteria and standards for the deter-
mination of alternative effluent limita-
tions under section 316(a).
Subpart 1—Critsil . Appilaibis S. Ceding Wets.
blabs Structures Usda ’ S.ctien 316(b) of ba Ad
(R a nruedI
Subpart k—Oul,$. I. . Ectend Wig Cemplianes Dais.
Undo. Ssdien 301(I) .4th. Ad IRs.ervsd)
Subpart 1—C.lta$a mid St.nd.rds far Impasbig Seat
M.,i.gsaaS Pradleaa 11.4.’ Sidle. 304(e) of lbs
Ad IRsesned)
Subpart H—tilted. sad Standards Is. br-skis Can-
tieim fec lbs Disposal .4 Sing. 51.4 5. linda.
S.dla. 405.4th. Ad Resarued) -
Avneonsn: Tifles UI. IV, and V. Clesh
Water Act (Pub. L. 02400. as amended by
Pub. 1.. 05-217), 33 U.S.C. 1251. et seq
iubpevf A—CrIterl. end SlondeSe Fe. Tack-
nelegy-Sesed Treatment RequIrements
Under Sectlene 301(b) and 402 .4 l ,i. Ad
41251 Purpose and scope.
This subpart establishes criteria and
standards for the imposition of tech-
nology-based treatment requirements
in permits under section 301(b) of the
Act, including the application of EPA
promulgated effluent limitations and
case-by-case determinations of efflu-
ent limitations under section 4O2CaX1)
of the Act.
§ 125.2 Technology-based treatment re-
qoirenienta In permit ..
(a) Technology-based treatment re-
quirements under section 30 1(b) of the
Act (e.g. secondary treatment and best
practicable waste treatment technol .
ogy for municipal dischargers; best
practicable control technology cur-
rently available, beat conventional pol-
lutant control technology, and best
available technology currently availa-
ble for non-municipal diachargers) rep-
resent the minimum level of control
that must be imposed in a permit
Sued under section 402 of the Act.
Stisi
(b) Technology-based treatment re-
quirements are imposed in permits
through one of the following methods:
(1) Application of EPA promulgated
effluent limitations to diachargers by
industrial category or subcategory.
These effluent limitations are not ap-
plicable if:
Ci) The effluent limitations have
been remanded or withdrawn except
that determinations underlying efflu-
ent limitations shall be bending in
permit Issuance proceedings where
those determinations are not required
to be re-examined by a court remand-
ing the regulations;
(ii) One of the following variances
from the effluent limitations is au-
thorized by the Act and granted by
the appropriate authority.
(A) A fundamentally different fac-
tors variance (40 CFR Part 125, Sub-
partE);
(B) A section 316 (a) thermal va il-
ance (40 CFR Part 125, Subpart 1);
(C) A section 30 1 (c) economIc va il-
ance (40 CPR Part 125, Subpart F);
(D) A section 301(g) water quality re-
lated variance (40 CFR Part 125, Sub-
part 0); and
CE) A section 301 (h) marine dis-
charge variance (40 CFR Part 125.
Subpart B).
(2) On a case-by-case basis under sec-
tion 402(aXl) of the Act, If EPA pro-
mulgated effluent limitations are not
available or applicable. In making
these determinations:
Ci) Permits shall provide for the at-
tainment of effluent limitatIons based
on best practicable control technology
currently available for all non-munici-
pal dlschargers. In addition, permits
shall ensure that all such dlschargers
achieve, for conventional pollutants,
effluent limitations based on the best
conventIonal pollutant control tech-
nology, not later than July 1, 1984; for
all toxic pollutants referred to in Co in-
mittee Print No. 95-30, House Com-
mittee on Public Works and Transpor-
tation, effluent limitations based on
the best available technology economi-
cally achievable not later than July 1.
1984; for all toxic pollutants other
than those listed in Committee Print
No. 95-30, effluent limitations based
on the best available technology eco-
nomically achievable not later than 3
years after the date such effluent limi-
tations are incorporated into an
NPDE permit; and for all pollutants
which are neither toxic nor conven-
tional pollutants, effluent limitations
based on the best available technology
economically achievable not later than
3 years after the date such effluent
limitations are incorporated into an
NPDES permit, or July 1. 1984, whIch-
ever is later, but in no case later than
July 7, 1987.
(ii) The appropriate factors listed in
sections 304Cb)(1)(B), 304(b)(2XB) and
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 1975
-------
37132
PROPOSED RULES
304(b)(4)(B) of the Act shall be consid-
ered In setting effluent limitations
under subparagraph (2X1) of this pars.-
graph;
(iii) EPA draft or proposed develop-
ment documents or guidance, or other
available information discussing the
industry and the appropriate technol-
ogy in a national context shall be con-
sidered; and
(iv) Other appropriate factors may
also be considered.
(Comment: These factors must be consid.
ered in all cases, regardless of whether the
permit Is being Issued by EPA or an ap-
proved State.)
(3) Through a combination of the
methods in subparagraphs (1) and (2)
of this paragraph. This combined ap-
proath shall be used if promulgated
effluent limitations apply only to cer-
tain aspects of the discharger’s oper-
ation, to to certain pollutants, but
other aspects or activities are never-
theless subject to regulation on a case-
by-case basis in order to carry out the
provisions of the Act.
(C) Technology-based treatment re-
quirements are applied prior to or at
the point of discharge. They cannot be
satisfied through the use of “nontreat-
snent” techniques such as flow aug-
mentation and in instream mechanics.]
aerators. However, these techniques
may be considered as a method of
achieving water quality standards on a
case-by-case basis when:
(1) The maximum technology-based
treatment requirements applicable to
the discharge are not sufficient to
achieve the standards; and
(2) The discharger demonstrates
that such a technique Is the preferred
environmental and economic method
to achieve the standards after consid-
eration of alternatives such as ad-
vanced waste treatment, land disposal,
changes In operating methods, and
other available methods.
(d) Technology-based effluent ilmi-
tations represent minimum levels of
control under the Act; additional or
more stringent effluent limitations
and conditions shall be imposed in per-
mits as required by if 122.14 and
122.15 of this chapter.
kbpwf 1—Oresanda for A Ob sesIsn To
Sto ..Iuund Pinnif, [ Iss.rvndj
(This subpart Is reserved for the provi-
sions of exIsting 40 CFR 5124.47 for EPA
objection to State Issued permits under sec-
tion 402(d) of the Act.)
Subpo,i C—Cd$.rIa for Issuonc. of P.nnlfs Is
Aqu.cvbvrs Proud.
125.15 Purpose and scope.
(a) These regulations establish
guidelines under sectIons 318 and 402
of the Act for approval of an aquacul-
ture project and for approval of any
discharge of pollutants associated with
an aquaculture project.
(b) The regulations are intended to
authorize, on a selective basis, con-
trolled discharges which could other-
wise be unlawful under the Act in
order to determine, in a carefully su-
pervised manner, the existing and po-
tential feasibility of using pollutants
to grow aquatic organisms which can
be hal-vested and used beneficially and
to encourage such projects, while at
the same time protecting other benefi-
cial uses of the waters.
(C) These regulations do not apply to
those aquaculture facilities such as
fish hatcheries, fish farms and similar
projects which do not use discharges
of wastes from a separate Industrial or
municipal point source for the mainte-
nance, propagation and/or production
of harvestable freshwater, marine or
estuarine organisms. Such projects are
regulated directly as aquatic riln, 1
production facilities under section 402
of the Act (see 40 CFR 122.43).
Subpa,t D—C.lf.rl. for Ezi.ndIig Ceinpllunc.
Dot.. for fodHtl.. Installing inn.vatlv.
T.chnolsgy Und.r Sodlon 301(k) if Iii Ad
IRu.rv.dJ
Subpart E—Cdt.rl. for Dot.nnlnlng Fundu.,.n-
fully Dlff.r.nI Factors Und., Sodlon.
301(b)(1)(A), 301(b)(2) (A and ( 5), and
307(b) of lbs Ad
* 125.25 Purposes and scope.
This subpart establishes the criteria
and standards to be used In deterinin-
Ing whether alternative effluent limi-
tations or standards to those required
by promulgated EPA effluent limita-
(4) The Enforcement Division Direc-
tor or, where appropriate, the Direc-
tor, determines that the crop will be
fit for human consumption.
(5) The Enforcement Division Direc-
tor or, where appropriate, the Direc-
tor, determines that migration of p01-
lutanta from the designated project
area to water outside of the aquacul-
tore project will not violate water
quality standards or violate the efflu-
ent limitations applicable to the sup-
Vlier of the pollutant established
under sections 301, 302, 306, and 30’l of
the Act that would govern if the aqua-
culture project were itself a point
source. The approval of an aquacul-
ture project shall not result in the en-
largement of a preexisting mixing
zone area beyond what had been desig-
nated by the State for the original dis-
charge.
(b) No pci-mit shall be issued for any
aquaculture project In conflict with a
plan or an amendment to a plan ap-
§ 126.16 I rIteria. proved under section 208(b) of the Act.
(a) No NPDES permit shall be issued (C) No permit shall be issued for any
to an aquaculture project unless: aquaculture project located In the ter-
(1) The Enforcement Division Direc- ritorial sea, the water of the contigu-
tar or, where appropriate, the Director ous zone, or the oceans, except In con-
determines that the aquaculture proj. formity with guidelines Issued under
ect: sectIon 403(c) of the Act.
Ci) Is intended by the project opera- Cd) Designated project areas shall
tar to produce a crop which has corn- not include a portion of a body of
mercial value or will be used as food or water large enough .to expose a sub-
otherwise in the development of a har- stantial portion of the blots. Indig-
vestable crop in the designated project enous to the conditions within the des-
area having commercial value (or Is in- ignated project area. For example, the
tended to be operated for research ,--designated project area shall not In-
Into possible production of such a dude the entire width of a water-
crop); and course, since all organisms indigenous
(II) Does not occupy a designated to that watercourse might be subject-
project area which is larger than can ed to discharges of pollutants that
be economically operated for the crop would, except for the provisions of sec-
under cultivation or than is necessary tion 318 of the Act, violate section 301
for research purposes. of the Act.
(2) The applicant has demonstrated, Ce) Any modifications caused by the
to the satisfaction of the Enforcement construction or creation of a reef, bar-
Division Director or, where appropz-i- ncr or containment structure shall not
ate, the Director, that the use of the unduly alter the tidal regimen of an
pollutant to be discharged to the aqua- estuary or interfere with migrations of
culture project will result in an in- unconfined aquatic species.
creased harvest of organisms under (f) Any pollutants not required by or
culture over what would naturally - beneficial to the aquaculture crop
occur In the area; when entering the designated project
(3) The applicant has demonstrated area shall not exceed effluent limits-
to the satisfaction of the Enforcement tlofl5.
Division Director or, where appropri-
ate, the Director, that if the species to
be cultivated in the aquaculture proj-
ect is not indigenous to the immediate
geographical area, there will be mini-
mal adverse effects on the flora and
fauna indigenous to the area, that the
total commercial value of the intro-
duced species is at least equal to that
of the displaced or affected indigenous
flora and fauna (ot Is intended to re-
search into possible production of a
crop meeting this standard), and that
the Introduced species Is not a signifi-
cant carrier or vector of disease to
man or to indigenous flora and fauna;
FEDERAL REGISTER, VOL. 43, NO. 162—MONDAY, AUGUST 21, 197$
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PROPOSED RULES
3fl33
tions guidelines or standards under
sections 301, 304. and 307 of the act
hould be Imposed on a discharger be-
ause factors relating to the discharg-
er’s facilities, equipment, processes or
other factols related to the discharger
are fundamentally different from the
factors considered by EPA In develop.
ment of these effluent limitations or
standards. This subpart does not apply
to any effluent limitations guidelines
under 40 CFR Part 423. In establish-
ing effluent limitations under sections
301(b)(l)(A) and (b)(2) (A) and CE) of
the act, EPA took into account all the
Information it could collect, develop.
and solicit regarding the factors listed
In section 304(b) of the act and
§ 125.36(b). In some cases, data which
could affect these effluent limitations
as they apply to a particular discharge
were not available or were not consid-
ered during their development. A simi-
lar review under sections 307(b) and
304(g) was conducted for Indirect dis-
chargers subject to pretreatment
standards. As a result, It may be neces-
sary on a case-by-case basis to adjust
the effluent limitations or standards,
and make them either more or less
stringent, as they apply to certain dis-
chargers within an industrial category
or subcategory. Any interested person
believing that factors relating to a dis-
charger’s facilities, equipment, proc-
esses or other facilities related to the
discharger are fundamentally differ-
ent from the factors considered during
development of the effluent llnalta-
tions may request a fundamentally dif-
ferent factors variance under 40 CFR
124.15 or such a variance may be pro-
posed by EPA on the draft permit.
§ 125.26 CrIteria.
(a) A request for the establishment
of effluent limitations In a permit,
elth?r more or less stringent than re-
qul’. d by effluent limitations guide-
1lne’ , under the fundamentally differ-
ent factors variance shall be approved
only If:
Cl) Factors relating to the discharge
controlled by the permit are funda-
mentally different from the factors
considered by EPA in establishing the
effluent limitations or standards; and
(2) There Is an applicable effluent
limitations guideline or standard pro-
inulgated under sections 301 and 304,
or sections 307(b) and 304. which spe-
cifically controls the pollutant for
which alternative effluent limitations
or standards have been requested; and
(3) In the case of a request for less
stringent limits or standards, the dis-
charger’s raw waste load cannot be
treated to levels equal to or more
stringent than those prescribed by the
effluent limitations guideline or stand-
ard by the technologies upon which
guidelines or standards are based or by
reasonably available control alterna-
tives: and
(4) In the case of a request for more
stringent limits or standards, the dis-
charger’s raw waste load can be treat.
ad to levels more stringent than those
prescribed by the effluent limitations
guidelines or standards and by the
technologies upon which guidelines or
standards are based or by reasonably
available alternatives; and
(5) Because of the fundamental dif-
ference the cost of compliance would
be grossly disproportionate to the cost
of compliance considered In establish-
ment of the 301(b)C1)(A), 301(b)(2) (A)
and CE), or 307(b) requIrements; and
(6) The alternative effluent limita-
tion or standards requested are justi-
fied by the extent of the fundamental
difference; and
(7) The request for alternative efflu-
ent limitations or standards Is made In
accordance with the procedural re-
quirements in part 124 of this chapter;
and
(8) The alternative effluent limita-
tions or standards will not violate any
applicable water quality standard es-
tablished under the act or any other
requirements of State law; and
(9) The alternative effluent limita-
tions or standards will not result in
any additional requirements on any
other point or nonpoint source dis-
charger.
(Comment’ In determining whether fas-
ten concerning the discharger are funda-
mentally different. EPA wW consider. when
relevant, the applicable development docu-
ment for the effluent limitations guidelines
or standards, associated technical and eco-
nomic data collected for use in developing
each respective guideline or standard, rec-
ords of legal proceedings, and written and
printed documentation including records of
communications, etc., relevant to the devel-
opment of respective guidelines or standards
which are kept on public file by the Envi-
ronmental Protection Agency.)
(b) Factors which may be considered
fundamentally different are:
(1) The nature or quality of pollut-
ants contained in the raw waste load
of the applicant’s process wast.ewater;
(Comment Waste streams(s) associated
with a discharger’s process wastewater
which were not considered in the develop-
ment of the effluent limitations will not or-
dinarily be treated as fundamentally differ-
ent under paragraph (a) of this section. In-
stead, effluent guidelines should be applied
to the other streams, and the unique
stream(s) should be subject to effluent limi-
tations based on section 402(aXl) of the
act) -
(2) The volume of the discharger’s
process wastewater and effluent dis-
charged;
(3) Non-water quality environmental
Impact of control and treatment of the
discharger’s raw waste load, but only
when such control and treatment will
result In the violation of another ap-
plicable Federal or State environmen-
tal law;
(4) Energy requirements of the ap-
plication of control and treatment
technology, but only 11 the discharger
demonstrates that less energy con-
awnptlve alternative control technol-
ogy Is not available;
(5) Age, size, land availability, and
configuration as they relate to the dis-
charger’s equipment or facilities; proc-
esses employed; engineering aspects of
the application of control technology:
and other factors viewed in light of
the previous factors of this paragraph;
and
(6) Cost of compliance with required
control technology, but only If it Is
caused by one or more of the above
listed factors.
Cc) A variance request or portion of
such a request under this section shall
be denied If:
(1) The request is based solely on
the lnfeasibillty of Installing the re-
quired waste treatment equipment
within the time the act allows;
(Comment. Under this section a variance
request may be approved U it is based on
factors which relate to the discharger’s abil-
ity ultimately to achieve required effluent
limitations but not if It Is based on factors
which merely affect the discharger’s ability
to meet the statutory deadlines of sections
301 and 307 of the act such as labor difficul-
ties, construction schedules, or unavailabi-
lity of equipment.)
(2) The request Is based solely on
the fact that the effluent limitations
guidelines or standards cannot be
achieved with the appropriate waste
treatment facilities installed, and is
not based on factor(s) listed In para-
graph (b) of this section, or
(3) The request Is based upon the
discharger’s ability to pay for the re-
quired waste treatment.
§ 125.27 Method of application.
(a) A request for a variance tinder
this subpart shall be submitted In
writing In duplicate to the Enforce-
ment Division Director or, where ap-
propriate. the Director, In accordance
with 40 CFR 124.15.
(b) The burden Is on the person re
questing the variance to demonstrate
that:
(1) Factor(s) listed in paragraph (b)
of this section regarding the discharg-
er’s facility are fundamentally differ-
ent from the factors EPA considered
in establishing the effluent limitations
guidelines. In making this demonstra-
tion the requester should make refer-
ence to all relevant material and Infor-
mation, such as the published guide-
line regulations development docu.
ment, all associated technIcal and eco-
nomic data collected for use in devel-
oping each respective guidelines regu-
lation, all records of legal proceedings,
and all written and printed documen-
FEDERAL REGISTER VOL 43, NO. 162—MONDAY, AUGUST 21, 1979
-------
37134
PROPOSED RULES
tation including records of conimuni-
catlons, et cetera relevant to the regu-
Jation which are kept on public file by
the Environmental Protection Agency;
(2) The alternative limitations re-
quested are justified by the fundamen-
tal difference alleged in paragraph
(bIll) of this section; and
(3) The appropriate requirements of
*125.26 are complied with.
Subpart F—C.ftsrla far Creating Econesic Var-
lances free lest AvaIlable Tstheoglagy
Under Sorties 301(c) at di. Ad (Reserved]
Subpart 0—CrIteria for GrantIng W.t.’ Oval-
Wy Related Verm in Under Sadie . 301(g)
of lb. Act (Reserved]
Subpart N—Criteria far Me dfy lng di. Ssc.ad-
try Treatment Requirement Under Sadlan
301 (h) of Ihi Ad (Reserved]
Subpart I—Criteria far D.t.rnilnatl.n of Alias-
noISe Effluent tioladans Under Section
376(a) of lb. Ad
§ 125.45 Purpose and scope.
Section 316(a) of the act provides
that
With respect to any point source other-
wise subject to the provisions of section 301
or section 306 of this act, whenever the
owner or operator of any such source, after
opportunity for public hearing, can demon-
strate to the satisfaction of the Administra-
tor or, where appropriate, the Director that
any effluent limitation proposed for the
control of the thermal component of any
discharge from such source will require ef-
fluent limitations more stringent than nec-
essary to assure the protection and propaga-
tion of a balanced Indigenous population of
shellfish, fish and wildlife in and on the
body of water into which the dlschsrae S to
be made, the Administrator or, where ap-
propnate, the Director, may Impose an af-
fluent limitation under such sections on
such plant. with respect to the thermal com-
ponent of such dlachai-se (taking Into ac-
count the interaction of such thermal com-
ponent with other pollutlons), that will
assure - he protection and propagation of a
balanced indigenous population of shellfIsh,
fish, and wildlife In and on that body of
water. -
The regulations In this subpart pre-
scribe the factors, criteria, and stand-
ards for the establishment and imposi-
tion of alternative thermal effluent
limitations under section 316(a) of the
act in permits Sued under section
402(a) of the act.
§ 125.46 DefinItions.
(a) “Alternative effluent limitations”
means all effluent limitations or
standards of performance for the con-
trol of the thermal component of any
discharge which are established under
section 316(a) and these regulations
and imposed under sections 301 or 306
of the act, including aection
30i(b)(LXC) in lieu of effluent limita-
tions or standards of performance oth-
erWise appHa’e 1P under those sections.
(b) “fl p en3fte important ape-
des” means species which are repre-
sentative, in tnms of their biological
needs, of a balanced, indigenous com-
munity of shellfish, fish, and wildlife
in the body of water kite which a dis-
charge of heat Is made-
Ic) The term “balanced, indigenous
community” is synonymous with the
term “balanced, Indigenous popula-
tion” in the act and means a blotte
community typically characterized by
diversity, the capacity to sustain itself
through cyclic seasonal changes, pres-
ence of necessary food chain species
and non-domination of pollution toler-
ant species. Such a connnnnlty may in-
clude historically non-native species
introduced in connection with a pro-
gram of wildlife management and spe-
cies whose presence or abundance re-
suits from substantial, Irreversible en-
vironmental modifications. Normally,
however, such a community will not
include species whose presence or
abundance is attributable to the Intro-
duction of pollutants that will be
eliminated by compliance by all
sources with section 301(bX2) of the
act; and may not Include species whose
presence or bnn 1anee is attributable
to alternative effluent limitations im-
posed pursuant to section 316(a).
§125A7 Criteria and Standards for the
Determination of Alternative Effluent
Uniltations under .ectloa 3l6(aL
(a) Thermal discharge effluent limi-
tations or standards Imposed In per-
mits may be less stringent than re-
quired by effluent limitations or
flandards promulgated under sections
301 and 306 of the act if the dIscharg-
er demonstrates to the satisfaction of
the Enforcement Division Director or,
where appropriate, the Director that
such effluent limitations are more
stringent than necessary to assure the
protection and propagation of a bal-
anced, Indigenous community of shell-
fish, fish and wildlife In and on the
body of water into which the dis-
charge is made. This demonstration
may be accomplished by ahowing that
the alternative effluent limitation de-
sired by the discharger, considering
the cumulative impact of thermal dis-
charge together with all other signif I-
cant Impacts on the species affected,
will amuse the protection and propa-
gation of a balanced, indigenous com-
munity of shellfish, fish and wildlife
In and on the body of water into
which the discharge is to be made.
(b) Ilach demonstration under para-
graph (a) of this section shall be made
as follow.c
(lxi) The discharger shall, with the
ouncurreice of the Enforcement Dlvi-
Mon Director/Director, provide early
screening information pertatning to
the proposed demonstration. At this
time the extent and type of the re-
quirement for the demonstration such
as biological, hydrographlesl and me-
teoroLogical data, physical monitoring
data, engineering or diffusion models,
laboratory studies, and the selection,
If appropriate, of representative Im-
portant species to be studied particu-
larly closely or other relevant evi-
dence, will be determined by the En-
forcement Division Director/Director.
The discharger shall also provide any
additional Information or studies
which the Enforcement Division Di-
rector/Director may subsequently de-
termine to be necessary.
(II) In determining whether or not
the protection and propagation of the
affected species will be assured, the
Enforcement Division Director/Direc-
tor may also consider evidence demon-
strating that the discharge will comply
with any applicable temperature re-
quirements for growth, reproduction
and survival of such species as speci-
fied In any applicable water quality
criteria and water quality Information
published by the Administrator under
section 304(a) of the Act, or any other
Information he deems relevant for ap-
plying for a determination under sec-
tion 316(a) described at 40 CFR 124.14.
SCrt .1—C$tssla Applicable I. Ceoling
Water Inlets Skvclures Under Section
316(b) of the Ad (R.aervad)
Subpart X—Crltstla for Extondlng Coinpilanca
Dates Under Sactlan 30 1(I) at the Ad (Re-
served]
Subpart —CrIteria and Standards far Rest
Management Pradlcos Authorized Under
Sadlan 304(a) of lb. Ad (R.sarved] -
Subpart M—CrltsrIa and Standards far hepes-
Ing Cend.tlans tar the Dlapasal of Sewage
Sludga Under Section 405 of he Ad (Re-
servod]
PART 6—PREPARATION OF ENV ONMEMTAt
IMPACT STATSMSNTS
§6.906, 6.909 and 1,918 (Deleted] §6.916
(Amended]
5, 40 QPfl Part 6, Subpart I Is pro-
posed to be revised by deleting
§f 6.906, 6.909, 6 . 9126(b), and 6.918.
PART 402—COOLRIG WATER WAKE STRUC-
lURES (Dolotod]
6. 40 CPR 402 is proposed to be de-
leted,
(PR Doc. 15-23036 Filed 845-fl; 3:45 sin]
FEDERAL REGISTER, VOL 43, N0 162—MONDAY, AUGUST 21, 1978
-------
3
-------
Friday
April 20, 1979
Part III
Environmental
Protection Agency
Water Programs; State Underground•
injection Control Programs;
Minimum Requirements and Grant
Regulations
-------
23738
Federal Register I Vol. 44, No. 78 / Friday, April 20, 1979 ! Proposed Rules’
ENVIRONMENTAL PROTECTION
AGENCY
L40 CFR Part 146]
Water Programs; State Underground
Injection Control Programs
AGENCY: Environmental Protection
Agency.
ACTION: Reproposal of rules .
SUMMARY: The Safe Drinking Water Act
requires EPA to develop minimum
requirements for State Programs to
protect underground drinking water
sources. EPA proposed regulations
specifying minimum requirements on
August 31. 1976 (41 FR 36730). In
response to numerous public comments.
EPA has made significant changes in the
regulations.
The regulations have also been
separaled into two portions. First.
regulations under 40 CFR Parts 122. 123.
and 124 will consolidate the procedural
requirements for the Agency’s major
permit programs. Part 122 will contain
the basic framework of the underground
Injection control program (as well as
NPDES under the Clean Water Act and
the hazardous waste management
program under the Resource
Conservation and Recovery Act) when
administered by EPA. Part 123 will
specify the requirements for an
approvable State program, and Part 124
will describe the procedures for issuing
permits under the covered programs.
These regulations will be proposed in
the near future. Second. 40 CFR Part 148
establishes the technical criterib and
standards to be used in implementing
the underground injection control
program. Part 146 is the regulation
reproposed here today for further public
comment.
DATES: Public comments may be made
on or before August 20. 1979, either in
writing or at the informal public
hearings to be held at the times and
places listed immediately below.
ADDRESSES: Written public comments
should be sent to the Comment Clerk
UIC Program Regulations. Office of
Drinking Water (WH-550), EPA.
Washington, D.C. 20440. -
Joint informal public hearings will be
held on the consolidated permit
regulations and this reproposed Part 140
- in Dallas. Chicago. Seattle and
Washington, D.C. beginning in July of
this year. The specific times and places
of these public hearings will be
announced In the Federal Register in the
near future.
FOR FURTHER INFORMATION CONTACT
Thomas E. Belk, EPA Office of Drinking
Water (WH—550). Washington, D.C.
20480. (202) 426—3934
SUPPLEMENTARY INFORMATION:
Statutory Background
General
These regulations are being proposed
under the authority of the Safe Drinking
Water Act (the “Act”), Pub. L. 93—523,
December 16, 1974. as amended by Pub.
L. 95—190, November18. 1977. The Act Is
designed to protect the quality of
drinking water in the United States.
Part A of the Act (section 1401)
contains definitions. Part B (sections
1411—1416) addresses the quality of
water provided by public water
supplies. EPA’s regulations
Implementing Part B of the Act are
codified at 40 CFR Parts 141 and 142.
The proposal below relates to Part C
of the Act (sections 1421—1424), entitled
“Protection of Underground Sources of
Drinking Water.” These regulations,
when promulgated, will become Part 146
of 40 CFR.
Basis for Concern
The legislative history of the Act
reflects the basic Congressional
concerns in enacting Part C of the Act:
underground iniection of
contaminants is clearly an Increasing
problem. Municipalities are increasingly
engaging In underground Injection of sewage,
sludge, and other wastes. Industries are
Injecting chemicals by-products, and wastes.
Energy production companies are using
Injection techniques to Increase production
and to dispose of unwanted brines brought to
the surface during production. Even
government agencies, Including the military
are getting rid of difficult to manage waste
problems by underground disposal methods.
Part C is intended to deal with aH of the
foregoing situations Insofar as they may
endanger underground drinking water
sources.
(H.R. No. 93-1185, July10, 1974. p. 29.)
The potentially dangerous practices
which Congress sought to control in 1974
continue at an ever-increasing rate. EPA
- estimates that there are in excess of
500,000 municipal. industial, commercial.
agricultural, and domestic wells
currently injecting fluids below the
surface, and that there are at least 5,000
new wells of these types each year. The
purpose of Part C of the Act, and of the
regulations proposed below, Is to
establish a Federal-State system of
controls which will insure that such
underground injection practices do not
endanger drinking water sources.
Relevant Statutory Pro visions
A detailed discussion of the relevant
statutory provisions and legislative
- history appears in EPA’s initial proposal
of these regulations (41 FR 36730 et seq..
August 31, 1976). Those details need not
be repeated here, but it is useful to
summarize the basic scheme of Part C of
the Act.
1. § 1422(a):List of States—section
1422(a) requires EPA to list in the
Federal Register each State for which an
underground injection control program
“may be necessary” to insure that
underground injections will not
endanger drinking water sources. EPA
recently published its initial list of
- States (43 FR 43420, September 25, 1978).
Twenty-two States are on the initial
list
Arizona. Arkansas. California. Colorado,
Florida, Illinois, Indiana, Iowa, Kansas,
Kentucky. Louisiana. Michigan.
Mississippi, New Mexico. New York, Ohio,
Oklahoma. Pennsylvania, Texas, Utah,
West Virginia, Wyoming.
In addition, Maryland has petitioned to
be listed in this initial group of States.
As noted in House Report No. 93—1185.
Congress clearly comtemplated that all
States, Territories, and Possessions.
ehould eventually be listed. Accordingly,
EPA plans to use a phased approach,
listing 16 additional States and
Territories in May of 1979 and the
remaining ones in May 1980. This
schedule will bring the disposal of
hazardous wastes through well injection
wider regulatory control in parallel to
the control of surface disposal of
hazardous wastes under the Resource
-------
Federal Ragle I VoL 44, No 78 I Priday. April * 1979 1 Proposed Rules
53739
Conservation and Recovery Act (RCR.A)
Pub. L 94-580. October 21, 1976.
2. 1421: Minimum Requirements for
State Programs—I 1421 requires EPA to
propose and promulgate regul9tlons
specifying “minimum requirements” for
State programs to prevent underground
Injections which endanger drinking
water sources. Such minimum
requirements must provide for at least
the following:
• A program prohibiting any
underground injection which is not
authorized by a State peruilL EPA may
at its discretion, however, allow some or
all underground injections to be
authorized by general State rules
without case-by-case permits
(f 1421(b)(IXA)).
• Protection of underground drinking
water sources.
• Inspection. monitoring, record-
keeping, and reporting requirements
§ 1421 (b)(1)(C)).
• Coverage of underground injections
by Federal agencies and underground
injections by any person on property
owned or leased by the United States
(I 1421(b)(1)(Dfl.
3. 1 1422(b)—Id): Development of
Underground Injection Control
Programs—Once EPA has promulgated
the “minimum requirements”
regulations, each State which has been
listed under § 1422(c) wIll have the
opportunity to develop an enforceable
underground injection control program
(hereafter “UIC program”). The UIC
program must be adopted after
reasonable notice and public hearings,
and must comply with the minimum
requirements.
Each State will have 270 days to
develop its UIC program and submit it to
EPA for review. EPA may for good cause
extend this deadline for any State by an
additional 270 days If EPA determines
that a State UIC program meets the
minimum requirements of Parts 123 and
146, EPA will approve the program. The
State will then be deemed to have
‘pnmary enforcement responsibility”
under Part C of the Act, and there will
be no Federal UIC enforcement actions
in that State so long as the State
continues to meet Its responsibilities.
If a State fails to adopt and submit a
UIC program in a timely fashion, or if
EPA finds that a State’s UIC Program
fails in part or in whole to meet the
minimum requirements of Parts 123 and
146, EPA is required to propose and
promulgate remedial Federal regulations
to be effective in that State. In such an
event, a State will not be deemed to
have “primary enforcement
responsiblily,” and direct Federal
enforcement of the UIC program will
result (f 1422(bHc), 1423). In addition, a
State which falls to achieve In]] primacy
within two years of the award of Its first
UIC grant loses eligibility for further
Federal grants.
4. The lg77Amendments—Although
they do not vary the operating scheme
of Part C of the Act, the 1977 Amendents
to the Act. Pub. 1 95-190. should be
noted. In addition to allowing a 270 day
extension for State submissions of
requests for approval of State Programs
(See above), they emphasize that States
have jurisdiction over Federal agencies
which engage in well injection activity.
Federal agencies fall under State
regulation as would any other “person”
(I 1447(a)). With respect to injection
wells on Indian lands, however.
jurisdiction remains with EPA
(I 1447(c)).
New § 1421(b)(3) instructs EPA to
permit consideration of varying geologic,
hydrologic, and historic conditions
among States. The Section further
cautions EPA against fashioning
minimum requirements regulations
which would “unncessarily disrupt”
existing State underground injection
control programs now being enforced.
These considerations, however, may not
be used to compromise the overall
statutory requirement to prevent
endangerment to underground sources
of drinking water [ I 1421(b)(3)(C)). EPA
believes that these reproposed -‘
regulations amply serve these Interests:
The regulations offer States discretion to
tailor local programs to meet specific
needs and to consider geologic,
hydrologic, and historic conditions in
fashioning rules and permit
requirements.
Initial Proposal and Comments
EPA initially proposed a
comprehensive set of “minimum
requirements” regulations to be codified
in 40 CFR Part 146 on August 31, 1976 (41
FR 36730-36745). Four hundred twenty-
nine written comments were filed, and
many persons commented at public
hearings In Dallas, Denver, and
Washington, D.C.
EPA has carefully considered all
written and oral comments and
determined that many significant
changes should be made to the initial
proposal. In order to Insure meaningful
public participation. EPA has decided to
publish these significantly revised
regulations in proposed form for
additional public comment.
EPA has determined, In considering
the public comments, that there are
many ways that the initial proposal can
be made generally more flexible and
less burdensome without sacrificing the
resulting environmental protection to
any significant degree. A summary of
the most important comments and EPA’s
responses thereto is published below as
“Appendix A” to this Notice.
The Reproposed Regulations
Organization
The original U1C proposal in 1976
Included the grant regulations and the
program regulations proposed as Part
146. The grant regulations were
promulgated on October 12,1978(43 FR
47130, et seq.). As discussed above, an
Initial list of 22 States has also been
published.
In the fall of 1978, the Agency decided
to consolidate the regulations for its
major permit programs the hazardous
waste management program under the
Resource Conservation and Recovery
Act (RCRA); the UIC program under the
Safe Drinking Water Act (SDWA} and
the National Pollutant Discharge
Elimination System (NPDES) under the
Clean Water Act (CWA). The proposed
consolidated regulations will be
published in the near future as revisions
to 40 CFR Parts 122,123, and 124, which
at present contain only the NPDES
program regulations.
As a consequence of this decision the
requirements for the UIC program will
now appear In four places:
• 40 CFR Part 122 will define the
regulatory framework for the UIC
program.
• 40 CFR Part 123 will describe the
elements of an approvable State
program and establish the process for
EPA approval of State participation in
the UIC program.
• 40 CFR Part 124 will describe the
procedures for permit application and
Issuance which EPA will follow when it
has primacy. Certain provisions of 40
CFR Part 124 also apply to State UIC
programs.
o 40 CFR Part 146 (being proposed
here) will establish the technical criteria
and standards to be used by EPA or the
State in implementing a UIC program.
The Proposed Consolidoted Regulations
Each of the proposed consolidated
regulations will be divided into four
Parts: A general Subpart which includes
requirements applicable to all three
permit programs and three other
Subparts each applicable to one of the
programs specifically. The following
paragraphs provide a brief summary of
the proposed requirements applicable to
the UIC program. -
1.40 CFR PaM 122—This Part will
articulate the regulatory framework of
the SDWA. The UIC program requires
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Federal Register / Vol. 44. No. 78 F Friday. April 20, 1979 / Proposed Rulqs
23740
the containment of injection and
formation fluids through the imposition
of technological requirements. The most
important requirements In this regard
are that the well be sound (mechanical
integrity) and that man-made conduits
that permit the movement of fluids into
underground sources of drinking water
be properly sealed (corrective action in
the area of review). Should the technical
construction and operating requirements
prove Insufficient to assure the safety of
underground sources of drinking water
in a particular Instance, additional
requirements, In udIng the proper
abandonment of the well. may be
Imposed.
Some of the more important elements
of 40 CFR Part 122 are noted below.
a. Definltions—40 CFR 122.3 will
contain the definitions applicable to all
three major permit programs. Of
Importance to the UIC program is the
definition of “weilinjection”as
“subsurface emplacement of fluids
through a bored, drilled, or driven well;
or through a dug well where the depth is
greater than the largest surface
dimension and a principal function of
the well is the subsurface emplacement
of fluids.” This definition, essentially In
three parts, first extends coverage ‘to
“subsurface emplacement” of any
character. Both gravity flow injection
and pressure induced injection are
included. Second. the definition extends
to all “fluids” defined, In accordance
wIth the legislative history (HR. No. 93—
1185, p. 31), as any “material which
flows or moves whether semisolid,
liquid, sludge or any other form or
state.” Third, the definition covers all
wells, not simply “conventional” deep
wells. Drilled, bored and driven wells
are expressly within the definition. Dug
wells and non-residential septic tanks
also fall under the term.
Although the definition is broad, It is
not without limitation, It does not cover
simple depressions in the land or single-
family domestic cesspools or septic
systems. Nor does It cover surface
Impoundments. Whether these
.regulations should impose conditions on
surface Impoundments, generally
referred to as “pits, ponds, and
lagoons,” has been a matter of
considerable concern within EPA due to
the serious threat to groundwater which
they pose. (See “Report to Congress—
Waste Disposal Practices and Their
Effects on Groundwater,” January 1977,
prepared by EPA In accordance with
Section 1442(a)(4) of the Act, and
“Surface Impoundments and Their
Effects on Ground Water Quality in the
United States—A Preliminary Survey,”
June 1978, EPA 570/9-78-004.)
It should be noted that under RCRA
(the proposed hazardous waste
management program. 40 CFR Part 250,
and the proposed State Solid Waste
Disposal Program. 40 CFR Part 257), EPA
Is preparing standards to control
contamln tion from surface
Impoundments. Also, EPA Is conducting
a comprehensive assessment of surface
Impoundments which focuses on those
receiving Industrial, oil and gas, mining,
municipal, and agricultural wastes. That
effort, in conjunction with the RCRA
efforts, should generate data by mid-
1980 upon which to decide whether
further regulatory programs are
necessary.
The basic purpose of these regulations
Is to provide a framework for State
programs which assure that
underground injections will not
“endanger” drinking water sources
(I 1421(b)(1)(B)). The definition of
“endanger” in the Act is extremely
broad:
Underground injection endangers drinking
water sources If such injection may result in
‘ the presence In underground water which
supplies or can reasonably be expected to
supply any public water system of any
contaminant, and If the presence of such
contaminant may result in such system’s not
complying with any national primary
drinking water regulation or may otherwise
adversely affect the health of persons.
{ 1421(d)(2), (emphasis added).
The legislative history directs that this
definition be “liberally construed so as
to effectuate the preventive and public
health purposes of the bill * * it is
important to note that actual
contamination of drinking water is not a
prerequisite either for the establishment
of regulations or permit requirements or
for the enforcement thereof” (H.R. 93-.
1185, p. 32).
In its Initial proposal, EPA formulated
a definition of “endanger” which
expanded upon the statutory definition
(41 FR 30733). Upon consideration of the
comments, EPA has determined that its
proposed definition was unduly vague
and confusing. -
This reproposal, therefore, avoids the
term “endangerment.” EPA still intends
to accomplish the statutory goal of
“preventing endangerment to
underground sources of drinking
water”—no change In this regard Is
contemplated. Rather, our intention baa
been to fashion a test of
“endangerment” that is workable and
reduces uncertainty.
The test in these reproposed
regulations is whether injection
operations will cause the migration of
injected or formation fluids into an
underground source of drinking water. If
Injection into a well can cause such
migration, the owner/operator must take
appropriate action to eliminate the flul
migration.
EPA believes this approach is fully In
keeping with the statute and Its.
legislative history, and offers a primary
advantage missing In our previous
approach: Under this scheme, case-by-
case decisions regarding well lpjection
will rely more on physical data than on
subjective judgment Shifting the basis
of decision-making in this way should
make the regulatory scheme more easily
understood and should remove a
considerable degree of uncertainty. As
with all other elements of this
reproposal, EPA solicits public
comments.
b. Well classification—Injection well
practices are divided into five classes:
• Class I includes Industrial and
municipal disposal wells and nuclear
storage and disposal wells that inject
below all underground sources of
drinking water in the area.
• Class II includes all Injection wells
associated with oil and gas storage and
production.
• Class ifi includes all special
process Injection wells, for example,
those Involved in the solution mining of
minerals, in situ gasification of oil shale,
coal, etc., and the recovery of
geothermal energy.
• Class N includes wells used by
generators of hazardous wastes or
hazardous waste management facilities
to Inject into or above underground
sources of drinking water.
• Class V includes all other injection
wells.
c. Application of controls—40 CFR
Part 122 wIll specify that injection into
wells in Classes 1, II (except existing
enhanced recovery and hydrocarbon
storage wells), and III must be
authorized by permits obtained within
five years of the effective date of the
UIC program. Until the applicable
permit Is Issued, these wells may be
authorized by rules which are to apply
certain requirements, for example,
monitoring, reporting, and restrictions
on abandonment. In addition, Class II
existing enhanced recovery and
hydrocarbon storage injection wells,
and Class N and V wells may be
controlled through rules. These rules are
also to apply minimum requirements.
At one point in developing these
regulations, EPA contemplated
subjecting only wells that Inject Into,
through or above drinking water sources
to these regulations. On further
consideration, It appeared that such a
formulation could, In some Instances,
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Federal Register / Vol. 44, No 78 / Friday, April 20. 1979 1 Proposed Rules
2 741
leave the owner or operator of a
particular injection well uncertain of
whether he ie or is not subject to these
regulations. Furthermore, a well might
not inject into. through or above a
drinking water source, yet still endanger
if the injection zone were hydraulically
connected with an underground source
of drinking water. -
To avoid these results, this proposal
applies these regulations to all injection
wells. One result of this decision Is that
off-shore injection operations would be
subject to the UIC regulations.
Comments are solicited on this decision.
In particular, the Agency seeks data on
off-shore injection operations, Instances
of hydraulic connection between off-
shore injectior zones and underground
sources of drinking wate? and any
special problems, if any posed by the
Inclusion of off-shore wells under Class
V.
d. Permits—These regulations will
allow for a two-step permit application
process in cases where the well in
question is currently permitted under an
existing State program. In such cases.
the applicant may file a simplified initial
application. The State Director will then
specify the additional Information to be
submitted by the applicant. Such a two-
step process has the advantage of
allowing the permitting authority to
excuse an applicant from resubmitting
Information in support of his application
if that information is already available
to the permitting authority in an
accurate, timely and complete form.
Applicants for new permits or for EPA
issued permits must initially submit all
the information required In applicable
portions of 40 CFR Part 146.
The regulations also provide for
“area” permits where a number of
Injection wells within a single parcel of
land under the control of the same
individual would be issued a single
permit. Additional wells of similar
construction in the area could be
authorized administratively without the
necessity of going through the formal
permit issuance process.
EPA also recognizes that In
extraordinary circumstances, for
example In the case of a toxic chemical
spill or where the interruption of a
production process will lead to the
irretrievable loss of natural resources,
injection not authorized by rule or
permit may become necessary. In such
cases, the Director my immediately
grant extraordinary authorization to
.lnject, subject to subsequent review of
the circumstances, Such authorization
may be granted for not more than 90
days. However, if a permit to conduct
such injection is applied for, the
authorization may be extended until the
permit application can be reviewed and
- —- Issued or denied.
Part 122 will also specify that UIC
permits may be Issued for the life of the
facility. However, If the facility holds
tow or more EPA permits, the permitting
authority must review the IJIC permit
whenever another EPA permit expires,
but at-least once every five years. Based
upon the r v1ew, the permitting
authority must determine whether or not
to modify or to reopen the UIC permit.
Finally, 40 CFR Part 122 will detail the
minimum conditions that must be
stipulated in each permit and specify the
circumstances in which an operator’s
permit may be modified, suspended. or
revoked.
e. Financial responsibility—The
pemiitee Is inquired to assure adequate
resources, for example In the form of a
performance bond or a trust fund, to
dose, plug and abandon the well as
prescribed by the permitting authority.
2.40 CFR Pail 123—This Part of the
consolidated permit regulations will
define the requirements that a State
must meet to obtain EPA approval to
operate one of the three permit
programs, as well as a fourth progrm
which is to be consolidated only in its
State approval aapects—the dredge and
fill permit program under 404 of the
CWA,
State programs will be required to
adopt the applicable provisions as
staled in the regulations. The need for
variation to acoinmodate differences
among States, however, is recognized by
providing flexibility in the statement of
the underlying requirement itself,
The following sections summarize the
major requirements of 40 CFR Part 123,
a. Elements of an o.ppivvabie Stole
UlCprogrtzm—ln order to obtain EPA
approval for primacy, a State must
demonstrate the intent, adequate legal
authority and resources to Implement
the following program elements:
• Designate underground sources of
drinking water within the State;
• Develop and maintain an inventory
of injection wells;
• issue permits or rules that
Incorporate Federal requirements for
appticant signature, duration and
coverage;
• Stipulate permit conditions that
Incorporate Federal requirements for
construction, operation, monitoring.
record-keeping, and reporting by the
permittee;
• Conduct a program of inspection
and surveillance of operating facilities;
• Enforce all program requirements
through a range of enforcement tools
Including injunctive relief, civil penalties
and criminal penalties; and
• Assess maximum civil and criminal
fines the same as the maximums
spedfled in Federal law.
EPA solicits comments on the
requirements for enforcement authority.
In particular, the Agency seeks data
with regard to the number of States
which do not now have the authority to
apply either the enforcement tools
specified or the Federal maximums in
the case of civil or criminal fines.
b. EPA approval—The Administrator
is to approve State participation in the
UIC program within 90 days of the
receipt of a complete application
submitted by the State after public
hearings end comments. EPA. prior to
approval, must provide the opportunity
for public comment and hearings. The
public participation requirements will be
discussed further under 40 CFR Part 124.
A complete State application must
contain:
• A letter from the Governor
requesting approval:
• An Attorney General’s statement
demonstrating that adequate legal
authority exists to carry out the IJIC
program;
• A full description of the program
the State intends to carry out, including
the designation of underground sources
of drinking water, a phased priority plan
for repermitting existing facilities, plans
for regulating by rule, methods for
establishing and maintaining inventories
of wells by class, and plans for
implementing requirements for wells in
Classes IV and V;
• Copies of all program forms to be
used by the State if other than the
uniform national forms: and
• A memorandum of agreement
between EPA and the State which is to
embody the respective rights and
responsibilities in Implementing a
delegated UIC program.
A State need not develop a regulatory
program for a type of injection well
which does not exist in that State. This
provision is intended to relieve the State
of a pointless burden. However, the
State must, In such case, adopt a rule to
regulate that class of wells to preclude
the possibility of unregulated injection
should such wells seek to operate in the
State in the future. Comments are
solicited on this approach.
EPA may in its discretion, approve a
State program in whole or in part. In the
case of partial approval, the Agency’s
intention is to approve only a complete
program by type of well. In other words,
EPA would authorize a State to regulate,
for example, Frasch process wells or
hydrocarbon storage wells if it had the
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23742
Federal Register I Vol. 44, No. 78 / FrIday. April . 1979 / Proposed Rules
necessary legal authority and were
prepared to carry cut the full range of
regulatory requirements applicable to
such wells. However, the Agency does
not intend to approve a portion of a
State program if the program provides
only for partial regulation, i.e., If It
provided for State issuance of permits to
Frasch process wells but left
enforcement up to EPA. The Agency
believes that this approach is sensible
from an administrative point of view
and Is least confusing. Comments are
solicited on the advisability of this
approach.
Finally, It should by noted that the
1977 Amendments to the Act have
clarified State authority over Federal
facilities within Its boundaries
1447(a), 1421(b)(1)(D)). Management
of wells on Indian lands remains an EPA
responsibility unless the State has
adequate authority to implement the
program ( 1447(c)).
In cases where the State Is developing
an application for primacy, EPA Inlends
to promulgate the UIC program for
which it is responsible (i.e., on Indian
lands) at the same time as It approves
the State program. In cases where a
State program Is disapproved, EPA will
promulgate a UIC program, Including the
portions for which It has original
jurisdiction, within the 90 days from
disapproval specified In the Act. if a
State informs EPA that the State does
not intend to seek primary enforcement
responsibility, EPA will promulgate the
whole UIC program for the State within
one year (270 days plus 90 days
approval process) of the effective date
of these regulations.
c. Oversight—EPA will exercise
oversight of State UIC programs. To
enable EPA to carry out this
responsibility, 40 CFR Part 123 requires
States to provide to the Agency the
following: -
• Access to State files and
documents:
• Annual reports;
• Quarterly reports on the
compliance status of major (Class I and
Class IV) wells; and
• A mid-course review after the first
year of program operation to assess the
requirement to perform corrective action
In the area of review. The State analysis
will be used by EPA to assess the
associated costs and environmental
benefits, and may result In appropriate
changes lii the requirement.
Moreover EPA retains the authority to take
Federal enforcement action against a
permlttee If a State fails to exercise adequate
enforcement the authority to propose
revisfo s in a State pmgram and the
authority to withdraw approval of eState
program.
Procedures for the withdrawal of
approval from a State program will
provide ample opportunity for the State
to present Its case toietaln primacy. If
the Administrator has cause to believe
that a State Is not In compliance with
the Act or these regulations, he must
give the State 30 days of notice to
demonstrate Its compliance. If not
satisfied, the Administrator must
convene a public hearing in not less
than 60 days after notice of the hearing.
U. after the hearing, the Mmintatrator
concludes that the State Is not In
compliance, he must notify the State of
the particulars. The State then has 90
days to give up the program or come into
compliance.
3.40 CPR Port 124—This Part will
establish the permit procedures tobe
followed when EPA Is the permit issuing
authority. Some elements of the process
are established In 40 CFR Part 123 as
requirements for States as well. This
Part will address, among other concerns:
(1) The coordination of multiple permits
Issued to the same facility: and (2)
requirements for adequate public
participation.
a.Permit coordination—In the case of
multiple permits for the same facility, an
application for a permit may be delayed
up to 2½ years. subject to the approval
of the Administrator, so that the timing
of the Issuance and subsequent periodic
reviews can be brought into alignment.
- Processing of different permits may also
be consolidated and. If the State agrees,
the State end EPA can consolidate the
process for Issuing permits to the same
facility In cases where one program has
been delegated and another has not.
These requirements are not
mandatory Ins State program but a
State with one or more programs Is
encouraged to use or participate in
consolidated procedures.
b. Public partic,oatiom—States are
required to assure adequate public
participation in their decision-making
processes. Adequate public
particIpation must meet five tests:
• Public notice Is required to inform
the interested public either through: (1)
A newspaper or bulletin of general
circulation; (2) posting at a U.S. Post
Office and the principal office of the
municipality or political subdivision
affected by the activIty: (3) a mailing list
of interested persons: or through (4)
existing State notice mechanisms which
are equally effective.
• Opportunity for public comment
shall be given for at least 30 days:
• Opportunity for public hearing shall
be provided and notice of a hearing
given at least 30 days prior to the event;
• The public shall be Informed of the
availability of documents and given
Information on how and where the
documents may be Inspected end at
what cost they may be obtained;
• Notices shall be accompanied by
‘fact sheets or statements of basis that
provide sufficient Information so that
the public can tell what the proposed
action Is about; and
• Responsiveness summaries, which
account for the disposition of public
comments, shall be prepared in support
of final actions.
Comments are requested on the
adeçuacy of these public participation
requrements. Particularly, EPA seeks
data on States which now lack the legal
authority to implement these -
requirements and instances where these
requirements may significantly disrupt
existing State programs.
The Reproposed 40 CFR Part 148
In Its final form, the reproposed 40
CFR Part 148 wIll contain only the
technical criteria and standards to be
used In Implementing the UIC program.
In order to make this reproposa] more
comprehensible, selected programmatic
requirements have been repeated even
though they duplicate portions of 40 CFR
-‘i’art 122. TheBe requirements have been
carefully crafted to reflect both the
public comments received to date and
the Agency’s better understanding
gained through additional studies of the
activities to be regulated.
EPA believes that this reproposal
represents a more flexible and workible
regulatory scheme. For example, the
requirements for a State inventory and
assessment of “pits, ponds and lagoons”
has been deleted. Wells have been
reclassified to permit greater
consistency in the applicability of
requirements. Certain forms of annular
injections that would have been
prohibited previously are now
permitted. Only injection between the
outermost casing protecting
underground sources of drinking water
and the well bore remains forbidden.
40 CFR Part 148 Is organized into six
Subparts. Subpart A deals with general
concepts. Subparts B-F detail the
construction, abandonment, operating,
monitoring and reporting requirements
for each of the five classes of wells.
1. Subpart A—This Subpart provides
technical guidance for five fundamental
requirements established In 40 CFR Part
122.
a. Designation of underground sources
of drirzk in.g water—The definition of
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Federal Register I Vol. 44. No. 78 I Friday. April 20. 1979 I Proposed Rule .
23743
“underground sources of drinking
water” received extensive discussion In
the legislative history. The Committee
Report to the Act bmth2cted EPA to
construe the tenn llberally both
currently-used and potential drinking
water sources warrant inclusion in the
definition. Even aquifers which currently
cannot provide potable water need not
be excluded. As a guide to the Agency,
the Report suggested that aquifers with
fewer than 10,000 parts per million of
total dissolved solids (ppm or mg/i of
TDS) be included (H.R. No. 93-1185, p.
32).
EPA’s proposed definition accordingly
Includes all aquifers or their portions
which are currently providing drinking
water and, as a general rule, all aquifers
or their portions with fewer than 10,000
ppm/TDS. However, as explained in the
preamble to the Initial proposal (41 FR
36733). a numerical cutoff cannot always
accurately establish which portions of
aquifers have real potential to become
drinking water sources. For example, an
aquifer which meets the 10,000 ppm!
TDS standard still might never provide
potable water because of severe
contamination other than in the form of
dissolved solids. Similarly, aquifers
which comply with the numerical teat
may be located so far from any
population centers or may be so far
below the land surface as to make their
potential for use as a source of drinking
water extremely remote.
To reflect these facts, this proposal
allows but does not require States to
exclude portions of aquifers which are
not in a real sense potential drinking
water sources. A State may exclude an
aquifer or a portion which does not
currently provide drinldng water if It can
demonstrate that such an aquifer or its
portion cannot reasonably be expected
to do so because It is mineral, oil or
geothermal energy producing. or is
situated at such a depth or location, or is
so contaminated that recovery of water
for drinking purposes Is technologically
or economically impractical.
State determinations to designate and
exclude portions of aquifers are subject
to public comment, and hearings and will
be reviewed by EPA as part of the basic
UIC program approval process.
The recently proposed hazardous
waste regulations (43 FR 58999) do not
provide for any exceptions to the -
definition of underground sources of
drinking water. Despite this difference.
EPA believes that the two approaches
will, in practice, produce a result that Is
consistent. Because of the nature of
hazardous waste management facilities,
the impact of these facilities will be on
the surficial aquifers. La.. the aquifers
closest to the lend surface. Since these
are the aquifers which are normally
used for human consumption, It is
appropriate for EPA to take a more
stringent approach to their protection.
Both the hazardous waste and U!C
regulations are consistent in intending
this stringent level of protection for
surficial aquifers.
First, virtually every surf Iclal aquifer
In the United States currently serves as
a source of drlnldng water and, we
expect, therefore, will be designated and
protected as such under both programs.
Second. Injection wells in Classes I—Ill
which pass through the aurficlal aquifer
will have to meet requirements for
casing and cementing that protect that
aquifer. Class IV wells, which may be
Injecting directly Into surficia) aquifers,
are to be banned. The regulatory
approach proposed for Class V wells,
which also may inject directly into
surficlal aquifers, requires immediate
action with respect to injections that
pose a significant risk to human health:
additional Federal regulatory
requirements will be forthcoming as
soon as the Agency gains a better
understanding of these wells and their
Impacts.
Generally, the exceptions allowed In
the UIC program will come into play. If
at all, with regard to deeper aquifers
(which are not of concern In hazardous
waste management) and then only if the
portions of the aquifer do not have a
real potential to serve as drinking water
sources. The approach makes It possible
to avoid potentially burdensome
requirements In specific Instances when
little environmental purpose would be
served.
The intent of the exemption of
mineral, oil or geothermal producing
portions of aquifers from designation as
underground sources of drinking water
Is to allow current production in such
aquifers to continue undisrupted by
these regulations. The exemption is not
intended as a green light to exempt any
aquifer or Its portion which merely has
the potential to be used In the future for
production purposes. Such aquifers
houid be designated. However,
potential producers/injectors may at
any time petition the State to exempt a
portion of an aquifer on this ground,
subject to the public notice and EPA
approval requirements of 40 CFR 122.33.
EPA has considered placing
limitations on the use of this exemption
to insure that the resulting injection
relates only to the recovery of the
resource in question and does not
extend to unrelated and uncontrolled
injection activity, for example, the
disposal of hazardous waste. Such
limitations could, for example, take the
form of: (1) RestrIcting the geographical
extent of the exemption to the area of
the ore body or resource deposit (2)
specifying that the exemption is only for
a specified recovery operation and
precluding all injection except those
necessary to carry on the extractive
process: or(S) specifying that the
exemption is only for the life of the
extraction operation, after which the
aquifer portion once more becomes
protected. While such limitations seem
desirable, they may constitute economic
and other variances from the mandate to
protect underground sources of drinking
water. Such variances may not be
allowed under the Act. Comments and
information are requested on whether
such limitations would be desirable,
whether they would interfere with or
impede rasouce recovery, and how such
workable limitations could be
established.
Comments are also solicited on the
other two exemptions, which deal with
whether an aquifer or Its portion can
reasonably be expected to be used as a
source of drinking water. Are these
exemptions necessary or desirable? If
so, does the concept of “Impractical”
need to be defined in terms of future
Importance of drinking water resources.
future technological developments,
length of tUne or other factors?
The Agency generally solicits
comments on the appropriateness of the
definition offered here for the UIC
program and on the desirability of a
single definition far all EPA programs.
b. Mechanicolintegrity—Mechanical
integrity is defined as: (1) The absence
of significant leaks through the ubmg
packer, or casing; and (2) the absence of
fluid migration between the outer casing
and the well bore. All wells (except
Classes IV and V) will have to
demonstrate mechanical integrity,
through well construction records or
specific tests, initially and every five
years thereafter. While I 148.08 lists the
tests that may be used to demonstrate
each of the two conditions of
mechanical integrity, additional
flexibility has been provided in allowing
the use of other tests, present, or future,
with the approval of the Administrator.
EPA believes that this approach
provides a workable method for the
verification of continued well integrity
while avoiding unnecessary and
expensive burdens on the operators.
As proposed here, all injection wells
In Classes I—Ill would have to
demonstrate mechanical integrity. The
Agency has considered requiring only a
percentage of wells of similar design
and age within the same field to meet
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Federal Register I Vol. 44, No.78 / Friday. April 20. 19?9 I Proposed Rides
this requirement. Comment Is solicited
on the desirability of such sampling
approaches and the possibility of
designing such approaches without the
sacrifice of envIr nmental protection.
c. Area of review—During permit
review of injection wells covered by
Classes I, II (with exceptions; see
discussion below), end III, the
permitting authority Is to determine
whether the proposed injection
operation has a potential for
contaminating underlying and overlying
aquifers through other wells penetrating
the injection zone. To accomplish this,
States are to establish an “area of
review”: That radial distance from an
injection well within which other active
or abandoned wells must be checked.
In the initial proposal, EPA set a
specific distance (2 miles for Subpart C;
1/2 mile for Subpart D) as the radius of
the area of review. Coinmentere argued
that the single measurement was unduly
burdensome as well as unecessarily
inflexible. It would, they contended,
require the submission and study of a
great many wells, their penetration,
injection records, and other data with no
resulting benefit.
In response to comments and on the
basis of additional data, EPA now
proposeiio allow two alternatives to
cfeterznine the radius of the area of
review. The radius may be computed by
use of the formula contained in
proposed § 146.06 orinother of equal
soundness. Application of the formula
would determine the actual “zone of
endangering influence” for each well.
Alternatively, the area of review may
be determined by the use of a fixed
radial measurement not lees than 1/4
mile. Such an alternative Is necessary
because the available formulae are not
applicable in certain hydrogeologic
conditions. A minimum of 1/4 mIle Is
proposed because actual computations
of the zone of endangering influence
Indicate that in most instances the
appropriate radial distance Is less than
1/4 mile.
The f4 mile radius is a minimum only
when a fixed radial measurement is
used. If the area of review is calculated
by the use of a formula, the permissible
radius Is the result of the computation
even if that is less than V. mile.
EPA is proposing to leave the choice
of method to State discretion in each
case. EPA requests comments on this
approach, particularly whether a
specific minimum radius should be
imposed, and whether a State should be
authorized to vary the radius by
regulation on the basis of geography -
and/or well-type. -
d. Corrective action—Once the area
of review is defined, the applicant must
teview the wells within it to determine
which of them penetrate the injection
zone. If available, well records do not
Indicate proper plugging of abandoned
wells or adequate cementing around
active producing wells, the applicant
must propose apppropriate corrective
action for the wells penetrating the
Injection zone as part of his permit
ap llcation. The Director Is to review
the well records and the corrective
action proposed by the applicant and
determine whether additional corrective
action needs to be prescribed.
Coinmenters objected to the potential
cost of this requirement. EPA believes
that the requirement, as now structured,
will not prove unreesur.ao y
burdensome. The calculated zone of
endangering influence should closely
match the area at risk in which
contamination can take place.
Exempting the existing Class II wells
from the requirement should reduce the
number of wells that have to be
reviewed In the first five years. It should
also be remembered that not all wells
that fall in an area of r view necessarily
penetrate the injection zone. Because
the evolution of technology permitted
drilling only to certain depths at various
times in the past, whether a well
penetrates beyond a given depth might.
In some cases, be determinable from its
age alone.
Finally, the cost of this requirement is
a direct function of the number of
Improperly plugged or completed wells
that could serve as a conduit for the
migration of fluids. If the number of such
wells is high, the costs, as well as the
danger to underground sources of
drinking water will be high as well.
a. Requirements for injection facilities
managing hazardous wastes—The
SDWA. of course, applies to all injection
wells. RCRA, on the other hand, covers
all treatment, storage and disposal of
hazardous wastes. As a consequence.
any injection facility that treats, stores
or disposes of a substance identified as
a hazardous waste under 3001 of
RCRA and proposed 40 CFR 250 Subpart
A is subject to the requirements of both
Acts.
EPA Is aware that the dual coverage
of injection wells under both SDWA and
RCRA would complicate the
administrative process by imposing
distinct requirements as well as by
necessitating owners or operators to
secure two separate permits. To avoid
this duplication and to minimi e
burdens on both EPA and the regulated
community, EPA, through these
regulations and those proposed at 40
CPR Part 122, Is proposing to regulate
injection of hazardous wastes under the
SDWA only. EPA believes that this
approach fully satisfies the requirements
of both statutes by protecting against
any release of these substances Into the
environment as well as adhering to the
directive of Section 1006 of RCRA that
the requirements of that statute be
Integrated to the maximum extent
possible with those of other statutes,
including the SDWA. EPA appreciates
comments on Its attempt to lighten
administrative burdens on the regulated
community while fully complying with
Its responsibilities under both statutes.
Specific comment is requested in this
regard on Section 146.09 of this
pronosal. In that section. EPA i
requiring o . r& ai Ci tãtOID o .
at which hazardous wastes
accompanied by a manifest are
delivered directly to the cutoff valve at
the well head to comply with the
manifest system, record-keeping and
reporting provisions of 40 CFR 250.43—5.
By this means the agency Is attempting
to assure that hazardous waste injection
wells, like other hazardous waste
facilities, participate in the system of
tracking hazardous wastes from their
generation to their ultimate treatment.
storage, and disposal. Comments on the
legal and practical implications of this
approach are solicited.
Finally, we note that, In some cases,
owners and operators of hazardous
waste injection welts may still have to
secure permits under RCRA. These
permits would not apply to, or control,
injection of wastes into wells, but rather
would govern the operation of surface
facilities which qualify as hazardous
waste management facilities, such as
storage tanks or pie. In such instances,
when EPA is the permit Issuing
authority for both the RCRA and UIC
permits, it will coordinate the permit
application and review process to the
maximum extent possible.
2. Subparts B-F—These Subparts
establish the technical requirements for
wells in Classes I—V. As part of these
requirements, Part 146 would specify
minimum types and frequencies of
monitoring for each class of practices. It
would also establish the Information the
Director must consider in reviewing a
permit application, for example, the
existence of a contingency plan to cope
with any well failures. These plans are
not intended to be elaborate scenarios
but rather must demonstrate that the
owner/operator has anticipated possible
failure and is prepared to take specific
prudent steps in the face of such en
eventuality. EPA specifically requests
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Federal Register I Vol. 44. No. 78 1 Friday. AprIl m. 1079 / Proposed Rules
23745
comments on the monitoring and
information requirements.
EPA particularly requests comments
on one specific possible monitoring
requirement: The monitoring of annular
pressure by Class II wells. Annular
pressure monitoring appears to be a
reliable and financially reasonable test
for the absence of leaks In a well.
However, our data Indicates that
numerous Class II wells do not have
enclosed annuli which are capable of
being pressurized. The cost of enclosing
the annulus and fitting It with valves is
several thousand dollars per well or an
estimated $10 million for all wells In
Class I I. The Agency has contemplated
Imposing a requirement for testing
annular pressure because the high Initial
investment may be balanced byiuture
savings In testing costs. EPA requests
data on the cost of enclosing the annulus
and the number of Class II wells that
now have open annuli. In addition. EPA
solicits comments on the reliability and
usefulness of such tests.
Other important requirements in
proposed Subparts B—F and r!hRnges
from the original proposal, are
highlighted below.
a. Siting and const.ri,clion
requirements—This reproposal would
establish a number of construction
requirements at some level of
specificity. For example. the presence of
adequate confining beds free of known
open fractures or faults would be a
consideration in the siting of both Class
I and II wells. Materials used in the
construciton of Class I and Ill wells
would have to be able to withstand the
corrosiveness of the injected fluids.
In addition, while the permit under the
UIC program would authorize the act of
injecting into a well, the regulations
would also require the owner or
operator of a new Class I. IL or III well
to obtain prior approval for the plans to
test, drill and construct the new well.
The proposed requirements now specify
logs to be conducted before and after
setting the surface casing and the long
string of casings. Tests would also be
mandated to establish the
characteristics of the Injection
formation. the injection capacity, the
pressure required to fracture the
Injection formation, bottom hole
temperature and pressure, etc.
Comments are solicited on these
requirements, particularly on the level of
detail and specificity of the formation
testing program.
b. Surface casing requirements—The
Initial proposal required that all drinking
water sources of 3000 mg/i TDS be
protected by casing cemented to the
surface. Some commenters argued that
that approach was economically
Infeasible, while others maintained that
alternate casing and cementing
techniques could serve equally well.
In response to these comments, EPA
has modified the Subparts to allow more
flexible casing and cementing programs.
Casing cemented to the surface,
although usually favored, need not be
required if an alternate casing end
cementing technique will equally suffice.
Thus, an injection well may use (at a
substantial cost reduction) multiple
strings of casing rather than a single
string to the surface in appropriate
situations.
Casing and cementing requirements
for Class II wells are discussed
separately below.
c. Tubing and packer—The initial
proposal permitted injections only
“through tubing with a suitable packer
set immediately above the injection
zone.” States, however, could allow
alternative methods upon compelling
evidence that ground water would be
protected.
EPA has i odifled this rigid approach
because In some Instances (slim hole
completions, for example), tubing and
packer Is not practical. In other cases, a
fluid seal can suffice in place of packer.
Consequently. the reproposed
regulations apply this requirement only
to Class I and allow a permit applicant
to propose tubing and packer uniquely
fitted to the design and function of his
well, If the applicant can show that the
design will prevent migration of fluids
into underground drinking water
sources, the reviewing authority may
approve It.
d. Annular injection—The Initial
proposal prohibited three common types
of annular injection: (1) Injection
between the casing and hole: (2)
injections (with exceptions) between
strings of casing and between tubing
and casing; and (3) injections between
surface casing and the next Innermost
casing or tubing (again with exceptions).
Comnienters pointed out that for some
wells, surface casing alone provides the
needed protection. For others, fluid
migration could be prevented by testing
to determine existence or non-existence
of significant leaks In the well bore.
These considerations have prompted
EPA to change the proposal. Injection
between the hole and casing remains
prohibitedi this practice Is Inherently
unsafe. Other types of annual injection
would be permissible, however, If Ills
determined on a case-by-case basis that
they would not result in the
contamination of ground water. Such a
determination would be made by a
mechanical Integrity test, unless the well
design Itself Insures that fluid migration
will not occur.
a. Class II: Method of regulation—
Class II covers injection wells
associated with the production of oil
and gas. In Its orginal proposal the
Agency would have required all new
Injection wells covered by Class U to
have a permit before beginning
operation. Existing disposal and
enhanced recovery wells were to be
repermitted within five years. during
which tune they could be regulated by
n ile.
Information now available to EPA
suggests that pperatore of enhanced
recovery and hydrocarbon storage
operations have a strong economic
incentive to maintain the injection wells
themselves, as well as the other wells in
the Immediate vicinity, In good
condition. Enhanced recovery
operations rely on the pressure built up
through the injection of fluids to force
additional oil and gas to the surface
through producing wells. To the extent
that the pressure in the producing
formation Is dissipated through leaks In
the injection well, fractures In the
confining layers, or leaks through other
wells In the vicinity, enhanced recovery
-becomes less cost-effective or even
Impossible. Similarly, the subsurface
storage of hydrocarbons Is practical
only If a preponderant portion of the
stored resource can be recovered when
desired.
This inherent economic Incentive
reduces the need for scrutiny of these
operations through an elaborate system
of case-by-case permits. Thus EPA has
modified tl)e approach In this r!proposal
to allow for regulation of the
approximately 115,000 existing
enhanced recovery and hydrocarbon
storage wells by rule. Such rules would.
however, have to apply essentially the
same requirements as the individual
permits. New injection wells (estimated
at 5.000 per year) would not be allowed
to begin operation without a permit.
Existing disposal wells (c. 40.000).
because they pose the greatest threat of
all wells covered by Class U. will also
be regulated by permits. The Agency
specif ’ ents on this
osed approach.
f. Class 11: Area of revie The
al proposal also ap the area
o all Injection
wells covered by Class U. Many
commenters pointed out that this was
possibly the most costly requirement In
the regulations.
The Agency has given extensive
consideration to the question of the
nearby wells. I.e.. the producing and
abandoned wells that penetrate zones of
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23746
Federal Register / Vol. 44, No. 78 / FrIday, April 20. 1979 / Proposed Rules
endangering Influence associated with
Injection wells. EPA’s contractor
estimates that there may be as many as
1.8 mIllion abandoned and producing
wells. Their very number makes any
requirement for review and corrective
-action potentially resource Intensive. At
the same time, the existence of this
number of nearby wells that may In
some way serve as conduits for the
migration of contaminants from the
Injection zone to underground sources of
drinking water cannot be Ignored.
EPA examined three alternative
regulatory approaches to Class II: (1)
Apply the area of review requirement to
all new and existing injection wells; (2)
apply the area of review requirement to
all new wells and existing dosposal
wells: and (3) apply the area of review
requirement to new injection wells only.
This proposal applies the area of
review requirement only to new Class II
injection wells. Of the three alternatives,
this approach eliminates the greatest
amount of paperwork and potential
resource demand on Industry and the
States. At the same time, because new
injection wells are normally located In
existing oil fields, the review of
abandoned and producing wells in the
vicinity of new injection wells, will, with
time, result in the review of oil other
wells. The primary gain from imposing
the area of review requirement on
existing as well as new injection wells
would be to shorten the time in which
all potentially reviewable wells are In
fact reviewed.
In view of the potential cost and the
substantial uncertainty surrounding the
question of the extent to which nearby
abandoned and producing wells in fact
act as conduits for the contamination of
underground sources of drinking water,
EPA believes the application of the area
of review concept to new injection wells
only to be a responsible approach to
balancing short-run costs and
environmental protection.
Prudence, however, dictates that this
decision be open to review.
Consequently, EPA has determined that
a mid-course evaluation should be
conducted to reassess the need for and
benefits of the area of review
requirement. States are required to make
a one-time report after the first year of
operation on the costs and benefits of
conducting reviews of nearby wells.
Based on those reports, EPA may amend
the requirement to broaden or reduce Its
coverage In the future.
The Agency welcomes specific
comments on this proposed approach.
Moreover. EPA solicits comment on the
possibility that the imposition of this
requirement on new wells only may
create disincentives to the construction
of new wells.
g. Class II: Casing and cementing—
The previous proposal contained a
requirement that all drinking water
sources of 3,000 mg/i of TDS be
protected by casing cemented to the
surface. Most commenters argued that
the requirement was not economically
feasible. EPA has studied this
requirement further and decided that an
easing of this requirement Is possible
and desirable. These regulations do not
require Class II standards for casing and
cementing to exceed what the prevailing
practice has been In an existing
injection field, unless there Is significant
risk to human health. Since oil wells In a
field are usually highly concentrated.
strata that have not been protected In
the post are already likely to be
contaminated. Extending protection to
these strata Is not likely to produce any
tangible environmental benefits.
In any case, It is impossible in most
Instances to add surface casing to an
existing well. Such a requirement would
generally force the dosure of the well.
While additional cementing to prevent
the migration of fluids In the well bore is
possible, or best estimate of the cost of
additional cementing requirements is
upward of $20 billion.
EPA requests comments on this
approach.
h. Technical requfr’ements for Class
flu—Comments received on the
regulations proposed in August of 1976
argued that the practices now covered
under Class III are sufficiently diverse
that no single set of requirements Is fully
applicable to all the practices, and that,
In the case of some practices, e.g., the
Frasch process, several of the technical
requirements are unnecessary and
Impossibly burdensome. In particular,
commenters noted that In the Frasch
process time is of the essence In the
replacement of wells, and, therefore.
there Is Insufficient time to obtain the
necessary prior authorization to put a
new well into operation. Because of the
density of wells of Identical construction
all Injecting Into the same ore body, It Is
urged that the requirements to determine
the characteristics of the injection zone
and demonstrate the mechanical
Integrity of each well through the tests
specified in 146.32 and § 146.08
respectively, Is duplicative, burdensome
and unnecessary. Furthermore, In some
cases the confining bed forms a natural
seal around the outside of the well
casing. making the use of cement to
Isolate the injection zone unnecessary.
The requirement for the use of materials
resistant to corrosion Is said to be
unnecessary and extremely costly.
Finally, many commenters argued that
In some Class Ill operations It Is
unnecessary to monitor the
displacement of fluids from the injection
zone because there are no lateral
connections to underground sources of
drinking water.
This reproposal does respond to some
of these comments. For example, the
present classification of wells does
make the applicability of the
requirements more consistent than the
scheme In the earlier proposal.
Additional flexibility has been granted
the Director In specifying construction
and formation testing requirements for
Class Ill. Comments are solicited In this
preamble on possible ways of easing the
mechanical integrity requirement.
Finally, the area permit Is Intended to
reduce the burdens of obtaining
Individual permits for new wells.
At the same time, the Agency
concluded that other suggested changes
should not be adopted without further
Information on potential environmental
consequences and opportunity for public
comment.
EPA Is continuing to evaluate
alternatives for fashioning Class ill
requirements. One possible approach
would be to subdivide Class ill so that
consistent requirements could be
established for each subdass. Such
- subdivision could be based on the type
-of practice (e.g. Frasch process, salt
mining, geothermal wells, etc.), the
depth of injection, the life expectancy of
the well, or the relationship of the
Injection zone to underground sources of
drinking water.
Another alternative would be to retain
the form of this reproposal but to ease or
eliminate certain requirements for
specific practices. Such eased
requirements might Include relieving the
operators of Frasch projects of the
responsibility to obtain the Director’s
approval prior to constructing or
operating new wells, to require
monitoring In the Injection zone only in
cases where a hydraulic connection to
an underground source of drinking
water exists, to removj the’t ’equfrement
for the use of corrosion resistant
materials, to require formation testing
only for the project and not each well.
and to provide more flexibility (for
example, allowing a natural seal as an
alternative to cementing) In the
requirement to demonsImte mechanical
Integrity.
The Agency solicits data on the
difficulties the reproposed requirements
would pose for Class Ill wells, and
comments on the present approach In
the regulations as well as the alternative
approaches discussed here.
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Fedsial Register I Vol. 44, No.78 I Friday, April 20. 1979 I Proposed Rules
747
1. Abandonment requirements/or
Class Ill—Several types of Class ill
operations, notably the solution mining
of uranium. are normally conducted In
shallow aquifers. While the water In the
Immediate vicinity of the ore body is not
or should not be used for human
consumption, hydraulically connected
portions of the sante aquifer can and do
serve as acceptable sources of drinking
water. Because of the use of solvents
and other chemicals, water in the mining
area Is often degraded from Its original
quality. Fluids can migrate from the
Injection site and, thereby, contaminate
hydraulically connected portions of the
aquifer which may be underground
sources of drinking water.
The Agency has considered
establishing requirements designed to
protect underground sources of drinking
water in such situations. One alternative
would be to require the restoration of
the injection site. Information available
to the Agency, however, Indicates that
restoration technology is costly and
experimental with uncertain results.
Another possibility would be to require
the containment of fluids within the
injection zone. This requirement seems
technically feasible. However, it may be
necessary to contain the fluids for an
indefinite period into the future which
Would not be administratively feasible.
The Agency solicits comments on the
extent of this problem and on the
technical and economic aspects of
possible ways of protecting underground
sources of drinking water from
migration from Class III injection sites.
j. Regulatoiy approach b Classes IV
and V—In the current proposal, Classes
IV and V cover all wells not covered
under Classes 1—ill, Induding wells that
inject into or above underground
sources of drinking water. This group
includes Industrial and municipal waste
disposal wells, dry wells, non-
septic system wells, drainage
wells, cooling water return flow wells,
salt water intrusion barrier wells and
subsidence control wells. These
practices were previously covered under
1 Subparts C and B of the August 31, 1976,
proposal.
Developing a viable regulatory
for these two classes offers
special challenges. “Conventional”
disposal end oil and gas related wells
are designed to Inject Into confined
strata. Contamination is normally a
function of leaks or the movement of
fluids from the injection zone through
natural or man-made conduits, and can,
therefore, be controlled through the
application of sound engineering
practices to siting. construction and
operation. The practices now grouped
under Classes N and V, however, are
diffetent: because many of them inject
into or above drinking water sources,
they may cause contamination even If
designed and operated In accord with
the strictest engineering practices.
Orginally EPA proposed to bring these
practices under oontrol through a system
of permits. Information now available to
the Agency raises questions about the
appropriateness of such a regulatory
approach. Fire4 Class IV and V wells
may continue to endanger regardless of
the construction and operating
requirements imposed and may.
therefore, not be “permittable” at all.
Second, according to the best
Information available to EPA (Geraghty
and Miller, Inc. and Temple. Barker and
Sloane, Inc., “Analysis of Costs:
Underground Injection Control
Regulations, Class IV and V Wells”
there may be in excess of 250.000 wells
that fall into this category nationwide.
Permitting such a great number of wells
would be highly resource intensive.
Third, little is known either about the
extent of environmental damage caused
by these wells or about the
consequences of bringing them under
regulation. In fact, In some places, such
practices are carried out intentionally
(e.g. aquifer recharge) or tolerated as the
most environmentally feasible method
for disposing of fluids (e.g.. storm water
drainage). Finally, while the total -
volumn of fluids injected into such weus
Is large (estimated at upwards of 50
billion gallons per year), the injection
into a particular well may be
intermittent and the toxicity of the
injected fluids highly variable.
EPA considered several alternative
regulatory approaches to these wells: (1)
A permit program as outlined In the
earlier proposal: (2) a national
assessment independent of the UIC
regulations; (3) a three-year assessment
within the framework of the regulations
leading to State plans; and.(4) an
assessment within the framework of the
regulations coupled with regulatory
control over certain of these practices.
Even though a great deal Is unknown
about these practices, available
evidence suggests that the fourth option
is most appropriate. Such wells may
represent the most immediate and most
serious environmental problem of all the
practices covered by these proposed
regulations. Consequently, bringing at
least the potentially most endangering
practices under regulatory control now
Is justified.
Under this proposal, wells under the
control of hazardous waste generators
or management facilities (as defined in
RCRA) which inject into or abova
underground sources of drinking water
are defined as Class N wells.
Class IV wells are to be inventoried
through the notification system under
the RCRA hazardous waste
management program. The States are
required to formulate enforcement
strategies that would result In the
closure of these wells within three years
of the effective date of the program.
New Class IV wells would be
prohibited.
All wells not covered under Classes I—
lv fall under Class V. Owners or
operators of such wells are required to
notify the State within six months of the
effective date of the UIC program.
Within two years of that date, the State
shall complete and submit to EPA an
assessment of the contamination
potential of Class V wells, an
assessment of the regulatory
alternatives for these wells, and
recommendations for Federal regulatory
action. Based on the State reports, EPA
will fashion further national
requirements. States may begin the
assessment of Class V wells as part of
the development of approvable State
UJC programs. Such activity is a cost-
eligible Item under the program grant.
EPA has considered longer time-
frames for the assessment. However,
given the potential problem posed by
these wells, two years appear to be
realistic. Comments are requested
regarding the feasibility of completing
the assessment In this time.
A second important requirement for
Class V is that if the Director, at any
tIme, gains knowledge of a well which
poses a significant risk to human health,
the Director shall Immediately prescribe
such action as necessary to remove such
risk. This may include closing the well.
The Agency gave conaiderable thought
to the formulation of this requirement.
thile It is EPA’a conclusion that
Insufficient information Is now available
to bring all or a large portion of the
practices covered under Class V under
regulatory controL It is also apparent
that some Class V wells do represent a
problem for human health and the
environment. The intent of this
requirement Is to set a protective
criterion for Immediate action to deal
with Class V wells that constitute a
problem At the same time, EPA sought
to avoid drawing the criterion so
broadly as to include virtually any Class
V well. Such a broad criterion would
have contradicted the Agency’s
judgment that the regulatory control of
Class V Is. at this time, premature. After
consideration of several alternatives,
the Agency chose the criterion,
“significant risk to the health of
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Federal Register / Vol. 44, No. 78 I Friday, April 20. 1979 I Proposed Rules
persons.” to provide the Director with
the flexibility to take Immediate action
when necessary without forcing him to
undertake the control of all Class V
wells at the time.
EPA believes the approach deicaibed
above to be a reasonable course of
action. #Yrs6 Class N well. appear, by
• their very nature to pose a threat to
underground sources of drinking water.
Their speedy termination seems justified
on environmental grounds. Second. the
approach chosen here links Class N
with the RCRA hazardous waste
management program, thereby fostering
a coordinated environmental attack on
the disposal of hazardous wastes. -
Iinki g Class N at least In part with the
hazardous waste management program
would help to avoid duplicative
administrative requirements and.
thereby, would ease the administrative
burden on States and at least some
operators. -
EPA recognizes that there may be
some instances where Class IV wells do
not necessarily pose a threat to
underground sources of drinking water.
We request examples of’such instances
(if any), comments on the desirability of
exempting such wells from the
requirements of Class N. and
suggestions on how such an exemption,
If necessary, could be forged.
The assessment mandated for Class
V wells represents solely the recognition
that Insufficient information is available
to the agency at this time. EPA has
every intention of continuing to seek the
necessary environmental and economic
It should be emphasized that the
estimate Is largely a function of the size
of the environmental problem. The cost
data and establishing appropriate
national regulatory requirements In the
future.
Comments on the approach adopted
for Classes Wand V Is, as on all parts
of this proposal, solicited.
Econsenic Impact
Most States already regulate the
underground injection of fluids in some
manner or to some degree. State
personnel are already assigned to work
on the control of injection wells, and
owners and operators of injection wells
are already forced to take some level of
action In response to existing State
requirements. Nevertheless, the UIC
regulations will cause both Statis and
industry to commit resources to the
protection of underground sources of
drinking water In addition to their
current level of effort.
EPA’s best estimate is that these
regulations will result in incremental
Costs of approximately $808 million to
all 57 States and Territories and the
regulated community In the first five
years of program operation (Table I
provides a summary).ThIs estimate
Includes costs only for developing and
conducting the assessment of Class V
wells and does not try to guess the
impact of immediate closures or the
eventual regulatory requirements. In
addition, no attempt was made to
anticipate the changed requirements
that may result from the mid-course
evaluation of the area of review
requirement.
of carrying out the fixed requirements—
permit application, permit Issuance,
Inspection, surveillance, monitoring,
testing. reporting, etc.—ls estimated to
be $207 million In the first five years. or
$41 million annually. This is, in a sense.
the fixed cost of the regulations. The
remainder, $601 million, Is the estimated
cost, In the first five years. of repairing
leaky injection wells, re-plugging wells
improperly abandoned In the first place.
and re-cementing improperly completed
producing well, In the areas of review.
For Class IV, these costs include the
pretreatment of hazardous waste, the
construction of environmentally
acceptable alternative disposal wells,
and the hauling of hazardous wastes to
approved hazardous waste management
facilities. This is a variable coat which
directly depends..upon the number of
problem wells. If the environmental
problem Is more or less extensive than
assumed for the purposes of this
analysis, this portion of the cost would
vary accordingly and potentially widely.
Of the total $808 million estimated
cost, about $773 million falls on
Industry. The studies that support these
estimates were aimed primarily at
estimating total national costs.
Economic impacts were addressed only
indirectly. In view of the costs imposed,
however, no measurable impact is
projected for the industries regulated
under Class m. Similarly, despite the
large absolute cost. imposed on Class II
operations in the aggregate, no
significant impacts are expected since
the costs imposed are small relative to
the economic potential of the oil and gas
industry.
Commenters on the previous proposal
argued that the regulations would place
undue burdens on small oil and gas
producers, and would, in fact. forcti
many of them to close down. In view of
the adjustments EPA has made In the
requirements of this reproposal. EPA ’s
- Initial analysis does not indicate a
significant impact In this regard. The
Agency request. data on the impact of
these regulations on small oil and gas
producers. In addition, we solicit
comments on whether some form of an
exemption for small producers from
these requirements would be desirable,
and on how such an exemption might be
formulated.
The total Incremental State burden Is
estimated to be about $35 million over
five years or about $7 million annually.
EPA Is authorized to award grant. to
States to support UIC program
development and operation. $6.0 million
Is available In fiscal year 1979 and $7.6
million in fiscal year 1980.
Table 1.— Suimna,y of Fi - Year Ir ’nental Costs 0IUICRG9u!abodi’
P thouw.d, ci Ia n doll uj
Non4u Il I9
Rs eaç
Tolal
h y
i............:_................
-
2.30 0
642.770
L S5I
6.000
200
‘3. 520
120
114.500
2.100
‘610.500
6.371
120.100
Class I I...... . —. . _... ..__....__...___
D i i i Ill .
c lass r ..__________________________
SL __________
102.521
$70
12.097
109
2.500
7.200
116. 130
4075
‘6,491
1,110
fl2.5 51
4.945
‘16.606
1.6 59
u10
7.200
QalG
Cl i , , I_________________________________
cli , . II...
Class In
._____________________________________________________
C l , .. IV._
Class V________________________________________
-
& IcI ,l
23.576
657,407
11,716
100.340
15.232
007.543
Tc
alv. m min of mJ ii 50 bud s II .150.
‘bu jd , . . .,.u1.. , casts I . . Ilarsge a
-------
Federal Register I Vol. 44. No. 78 I Prlday. April 20. 1979 I Proposed Rules
23749
The cost of regulating oil and gas
related injection wells, $665 million over
five years. dearly dnmlnRtes both State
and industry costs. However, this Class
also has the largest number of wells (2
million) potentially affected by the
regulations. The following discussion
provides details of the cost estimates by
Class of Well. The sections are
organized Into Industry estimates and
State estimates. They also discuss non-
recurring and recurring costs. Non-
recurring cost. Include such one-time
activities as Inventorying wells In the
area of review, taking appropriate
remedial action, and repermitting
existing wells. Demonstrations of
mechanical Integrity are also treated as
one-time costs because the second
round of test. will not take place In the
fIrst five-year period. RecurrIng cost.
Include such periodically required
activities as monitoring, reporting. and
enforcement.
Class I wells
1. Industry Costs—A demonstration of
mechanical integrity will be required of
operators but flexibility Is provided In
the tests for demonstrating it. Unit costs
can range from $5,000 to $35,000 per test.
The total cost of mechanical integrity
testing is estimated to be in the range of
$300,000 to $2.1 million.
Appropriate remedial workis
prescribed for defective wells and may
vary from $15,000 to $100,000 to repair a
severely damaged well. Total
incremental repair costs for the class are
estimated to range from $35,000 to
$200,000. No costs have been Included In
the estimates for plugging abandoned
wells because indications are that all
abandoned wells near existing Class I
wells are already properly plugged.
The average number of new wells
being constructed each year Is estimated
at twenty. Since all States now have
permitting requirements at least as
stringent as the UIC requirements, new
construction will incorporate the new
design criteria contained In these
regulations and no Incremental
construction cost. are expected to
i aulL
Incremental recurring costs will be
Incurred by operators of municipal and
Industrial injection wells located In
States other than Texas, Louisiana and
Michigan. which already have reporting
requirement. that meet or exceed those
proposed here. Additional reporting
requirements 1z other States have been
estimated to cost $300 per well for 125—
170 new and existing deep disposal
wells, and $3,000 for nuclear disposal
wells. Total recurring costs are
estimated to range from $48,000 to
$5 000 per year.
2. Stole Costs.—The regulations
require collection and review of data on
a quarterly basis for each site subject to
the regulations. One work day per
submission per site has been assigned
as the cost accounting standard. The
submission of reports to EPA will -
require 40 to 60 work days per State.
‘The total costs of the requirements In
Class I appear In Table 2.
Class.!! Wells
Class II wells Include Injection wells
associated with oil and gas production
and hydrocarbon storage. The
conceptual scheme for estimatIng
Incremental costs involvei the
Identification of unit costs for the
activities required by the proposed
regulations and multiplying those by the
estimated numbers of wells requiring.
each kind of action.
1. Industry Costs.—lncremental non-
recurring cost. of compliance to
operators are estimated to be $847
million over the first five year period. Of
this total $20 million is for the
preparation of permit applications, and
$136 million Is the cast associated with
determining the nature and extent of
necessary corrective action. The bulk of
these cost., $487 million, Is the
estimated cost of the corrective work
itself.
In estimating the cost of corrective
action the unit cost of reabandoning a
well was taken as $20.000. However
data recently obtained suggests that this
may be a conservative figure. EPA Is
particularly Interested in obt lnlng data
during the public comment period which
will enable It to assess the
appropriateness of the unit cost figure.
On the average. industry will
experience one-time costs of some $129
million per year over a five-year period.
These estimates assume the current
requirements for Class U and do not try
to anticipate the outcome of the mid-
- course evaluation regarding the area of
review requirement.
In addition to the one-time costs
associated with existIng well., there are
Incremental costs which producers will
Incur each year to collect and report
monitoring data. The total recurring
costs attributable to the regulation are
I estimated at $3.8 million over five years
or about $760000 annually. Table 3
provides additional detail on these
cost..
Table 1.—Incremental Rvo .Yeer Costs to Pie aosis .
Class II WeOs.
l5uoww st 1977 5I
E *1 n ciConibucti os.
Recw*ç ‘ is. ,
Table L—mowl*7ta! P*e .YearPmpram eta—Qers I W
lb -snd , al iW7 dalh.i.J
M
Ron Astcn.
W . 550.500
pmea mAss
.ct on Wale — hub
P aL .
0 12.770
545. 590
‘lodude. sass far , sporti tar hydroc.itoo ite..
2. State Costs—The estimate of the
Incremental cast to States of
Implementing the proposed UIC control
program for Class ills based on an
estimate of the total effort that will be
required In oil-producing States to
enforce the proposed Federal
regulations. The amount currently spent
on UIC programs by these States was
then subtracted from the total, yielding
the Incremental costs.
It Is estimated that oil-producing
States will Incur total costs of $39.3
million over a five year period. Of this,
____ $12.1 million will be one-time coat to
, repermit existing disposal wells and
other start-up costs. The remaining $27
million will cover the permitting of new
wells, monitoring and enforcement and
general overhead. Since current State
spending projected for five years equals
$20.7 million, Incremental costs over five
years are $18.6 million or $3.7 million
annually.
These estimates do not Include
Wyoming because It did not provide
data on well population during the
survey. SInce Wyoming Is a major
C.—
TN. - -
5904, 100 ______
590490
010459
is o ______
190490
730
11 5-470
‘ Th
5004100
59400
0704,890.
590450
t oo
100490
•730
iis-47 0
1.5004,875
2. 54 5-4 , 845
5 .42O—7 53 5
500-870 2.345.4,075
em-aim se 5- ses
-------
23750
Federal Register I Vol. 44. No. 78 / FrIday. April 20, 1979 / Proposed Rules
producer, the cost to States will be
somewhat greater than those presented
here. These costs are summarized in
Table 4.
T 1e 4.—Incremsn J Five-Year Costs Status,
auseuwesa
fllraiabg( 19fldo iJ
I 1 2.2 5 0
PurrS Ej th D po W 7,335
O31 2.072
12.097
5. 500
PunS New Wuta. 5.010
CI1—— —.J . at Othur_ 16.631
__________ 6 1.231
Lass Q,vunt SrSs —20.740
&t . aumw4I Neart 5.431
To laiStat. CoaL 19.310
Titul State Gout 15.518
Class III Wells
Special process mining Is, In most
instances, a developing technology
already operating under relatively strict
controls. There are about 2,000 wells but
a relatively small number of sites at the
present time. Consequently, the costs of
compliance are estimated to be small
and the Impact on the industry to be
negligible. The prevalence of these
practices may, however, Increase In the
future.
1. Industry Costs—The total
Incremental cost to Industry of
complying with Class ill requirements Is
estimated to be between $2.1 and $3.4
million for the first five years, or about
$400,000 to $700,000 annually. Of this,
about $1.7—2.9 million are non-recurring
Costs mainly associated with tests for
mechanical Integrity and repair of faulty
wells. The remaining $400.000-$520,000
are the costs of monitoring and
reporting.
Several types of Class ifi operations
are not estimated to carry any
additional cost burden either because of
a lack of information or because the
operations are experimental processes
under apparently strict Federal or State
control. Types of wells which are
assumed to have incremental costs due
to these regulations are discussed
briefly.
The States of Texas and Louisiana
account for all current Frasch process
sulfur mining . There are 10 mine fields
with approximately 5(X) wells In the two
States. The average useful life of a
Frasch well Is about one year. Since this
practice was started 80 years ago.
approximately 35000 wells have been
drilled.
The present application requirements
for Frasch process wells will Involve
expenses ranging from $1,700 to $4,800
per site depending upon the Information
required by the State Director. The total
one-time permitting expenses for the ten
fields will be approximately $24,000. No
Incremental costs are assumed for
mechanical Integrity testing.
Construction and maintenance of
monitoring wells and monitoring
activities are estimated to cost from zero
to $13,000 per site additIonal. The total
Incremental cost for monitoring ranges
from zero to $80,000 annually, or zero to
$300,000 over five years. The
Incremental costs of reporting are
estimated to be about $7,000 annually.
or $35,000 over five years.
There are fifty operating salt solution
mining sites in the u.a. principally in
Texas, Louisiana, Michigan, New York.
Ohio. and Kansas. These sites contain
approximately 500 wells, each well
having an average useful life of seven
years.
Permit application expenses for the
fifty fields vary from $85,000-$170.000,
and incremental annual reporting
requirement expenses are estimated at
$16,000 for each site which is not
currently generating the Information.
The total one-time cost of mechanical
Integrity testing will vary from $1.5
million to $2.5 million.
One operating field wIth 18 wells (17
injection and one extraction) for the
solution mining of potash exists In
Moab. Utah. The company which
operates the Utah site Is exploring other
sites near the western Canadian border.
Permit application requirements for
the one site will involve a one-time cost
of $20.000-$30.000. Mechanical integrity
testing of the injection wells will cost
$2000 to $5,000 per well. All abandoned
wells In the field are thought to be
adequately plugged so that no cost
would be Incurred by the operator for
reviewing nearby wells. Recurring
Incremental costs for reporting and
monitoring will amount to $20,000 per
year. or $100,000 over five years.
Summaries of the one-time costs and
annual recurring costs to Industry are
presented in Table 5.
Table 6.— IF YçerCostu to hu a6 ç Qaes Ill
(In thouund. of 1977 dollar ,]
PuiuSa 9
tessNelcol
fla Iy
Tct.I
N _____
m.$lhjfl_ ._IL_.
0
0
0
42
24
55-170
20-30
0
0
0
0
0
1.500-2.500
34-85
0
9
0
42
24
1.565-2.610
64-115
thou*inLa. wg
O.oei&,.d.___..__
SluOooc.rLesolwig._
.
F ssthSt1h,MW*ig...
8oSAtan *igol Sat..
Sotulon Mussg c i PolarS
&S tcteI
171—260
U.ii.. ,,
1.534—2.555
Aupcilrg
1.705-2,551
Test
R
—‘i .,
0
0
0
170
300
50
0
0
0
15
35
50
• 0
0
0
lOS
35-335
100
Umnan Lsa ri
O aoIb. ..ni..
ataco poul..srSr 0
Frasdt Sulw MII*1Q.
Sc lutionMitWig o(S aIt.
S tabn Msut of PourS
Stt e su t
230423
WA
150
WA
400-623
2.105-3.371
Total
-------
Pederel Register! Vol. 44. No. 75 / Priday. Apill 20. 1979 / Proposed Rulee
751
2. Stole Costs—The regulations
require collection and review of data on
a quarterly basis for each site subject to
the regulations. One work day per
submission per site has been assigned
as the cost accounting standard. The
submission of an annual report to EPA
will requIre 40 to 60 work days per State
to comply with the regulations.
The State program costs for all States
to comply with this Subpart of the
regulations are estimated to be $919000
to $1,659,000 over five years as shown in
Table 6.
Class IV Wells
Preliminary analysis based on limited
field work, suggests that there are
between 5.000-10,000 wells that will
meet the definition of Class IV. The
“best estimate” Is 7,500 wells.
Depending on the volume of wastes to
be disposed of, the owner or operator of
a Class IV well Is expected to choose
one of three alternatives when the well
is closed: (1) Pretreating the waste and
disposing to a municipal treatment
system; (2) constructing a Class I
disposal well: or (3) hauling the
hazardous waste to an approved
hazardous waste management facility.
Field experience indicates that as the
cost of disposal increases, facilities
either separate their hazardous and non.
hazardous waste streams, or reduce
their total waste stream. This analysis,
therefore, assumes a sharp reduction in
the volume of the current hazardous
waste stream now generated by these
facilities.
The analysis assumes that the
ultimate full cost of disposing the wastes
associated with Class IV range from $20
million to $80 million per year. with the
“best estimate” being about $40 million
each year. This cost, however, will not
be reached until the forth year of
program operation: In the first three
years costB Incurred by Industry will
increase as additional wells are closed
down.
It Is expected that the cost to industry
In the first five years of program
operation will total $120 million. State
coats are estimated at $2.0 million over
this period.
Class V Wells
Non-recurring State costs for Class V
wells are related to establishing the
assessment program while annual costs
relate to compiling, categorizing and’
analyzing the information collected. It is
estimated that this effort will cost $5.2—
$7.2 million over a five year period.
It Is almost impossible to estimate the
cost or impact of the requirement to
prescribe immediate corrective actions
for Class V welts which pose a
significant risk to human health. We
cannot anticipate the number of such
wells or the nature of the steps the
Director may prescribe.
EPA solicits data on all costs end
economic impacts resulting from these
regulations.
Reporting Impacts
Reporting requirements established In
these regulations, as well as In the
related sections of 40 CFR Parts 122 and
123 for the UIC program are estimated
to cost about $3.1 million per year to
producers, operators. EPA and the
States.
Reporting requirements apply to all
permit holders under Classes 1,11, and
III, and to owners or operators of well.
authorized by rule under Classes H and
IV. Owners or operators of Class II
wells are to report once each year.
Owners or operators of all other wells
must report quarterly. Total annual
costs to producers and operators are
estimated to be $1.7 million.
The State must review these reports.
It must, in turn, make three types of
reports to EPA: (1) SemI-annual reports
while It Is developing Its application for
primary enforcement responsibility; (2)
quarterly reports on the compliance
status of major facilities (Classes I and
IV) once the State program Is effective:
and (3) annual reports on the operation
of Its program. States will also have to
conduct and report on a special mid-
course evaluation. State costs are
estimated to be about $1.4 million per
year.
EPA will have to review the periodic
and special reports from the 57 States
Jurisdictions. The reviews should cost
about $33,000 per year.
‘sea
s ean
is
,soo
4
1
4
4
5-I l
I
5-16
4
75-150
15
80-175
40
43-63 410 2 9
ian
1,410 29,000 572
8 I 1
1 1$ 10 105
‘15.000
1
15
129 504 60
291
13 51 S
54
ix - —
13_ . ...
an__ _..
i s o
40
an
20. .._.. . .....
134
Table t—SIovmisblI R.e Vest - OanlV W
“ of 1017 ddUmzsj
‘T I iI
—
se l l
‘I—’
Piu 11 . .4
-
-
160-360
‘4
60- 56
—- ..
-
-
&*
-
a x
Roarseg
OjaIsd R
1 56
55-I SO
40 5 -
jv aIR at.
-- -—-
.-
anbl
.885-1.150
foui_________________________________________________
..
519-1,069
Wof Owno r
-
I U th
IJseanØolos) - ___
5600.
a.—
-------
23752
Federal Register f Vol. 44, No. 78 I FrIday. April 30, 1979 / Proposed Rules
‘Avu,.ge ,iu,rt.r cq ws ftvs ysws
‘G iy F O mpo uS atuStid m thu au .
‘One thns cost. ki o.e. cn uth .1t cobcn b p, n cy
Evaluation Plan
The UIC program will be evaluated in
three ways. First, quarterly and annual
reporting Is required both of the owners
and operators of wells and the States
with primary enforcement responsibility
for the program. This periodic reporting
will allow the periodic assessment of
the efficiency of the program In terms of
whether the permits are being issued on
schedule, what the rates of permit
violations are and whether the rates are
Increasing or decreasing. and whether
State programs are performing
adequately as measured by the
conditions of State primacy.
Second. a mid-course evaluation of
the requirement for corrective action In
the area of review has been scheduled
after the first full year of program
operations. This assessment will
evaluate one of the central requirements
of the regulatory approach. It will
provide information on the potential
environmental problem posed by
abandoned and producing wells that
penetrate the zone of endangering
Influence associated with injection
wells. It will also yieldtnformation on
the costs and benefits of corrective
action and analyze alternatives to the
current requirement.
Finally, a full evaluation will be
undertaken at the end of the fourth year
of program operation to assess whether
the UIC Program is achieving its
Intended objective of protecting
underground sources of drinking water
from well Injection. A number of
elements have been built into the
program, for example, monitoring in the
case of new wells to establish
backgound water quality In the
proposed injection formation and
effective State programs to respond to
public complaints, which will permit a
comparison of ground water quality in
at least selected aquifers before and
after the UIC program will have become
operational.
The development of a detailed
evaluation plan has been initiated. A
final plan will be available at the time
these regulations are promulgated.
Public Participation
Interested parties are encouraged to
participate In this rulemaking by
submitting written comments to the
Comment Clerk at the address given in
the Introduction to this preamble.
Comments are invited on all issues
raised in the reproposed regulations, this
preamble, and the documents referenced -
In the preamble. Comments are also
invited on all aspects of EPA’s initial
designation of States. All relevant
comments received no later than August
20, 1979, will be considered.
Comments are also solicited on any
other provisions of the Act (including
the 1977 Amendments) relating to UIC
which may not have been raised in
today’s Federal Register. Comments and
the following supporting documents will
be available for public inspection and
copying at a reasonable fee during
normal business hours at the
Environmental Protection Agency,
Public Information Reference Unit,
Room 2922,401 M Street. SW..
Washington. D.C. 20480. Copies of the
supporting documents will also be
available for inspection and copying In
the Library at the ten EPA Regional
Offices.
The supporting documents are;
1, “Statement of Basis and Purpose for
the Underground Injection Control
Program Regulations.”
2. “Analysis of Costs Underground
Injection Control Regulations, Class I
and Class III.”
3. “Methods and Costs for Inventory
and Assessment of Injection Wells
Covered Under Classes N and V.”
4. “Estimated Cost of Compliance.
Proposed Underground Injection Control
Program Regulations, Class II Wells.”
5. “Draft Environmental Impact
Statement—State Underground Injection
Control Program, Proposed Regulation.”
8. “Supplement to Draft EIS.
Reproposed Regulations.”
7. “A Guide to the Underground
Injection control Program.”
EPA will propose to consolidate Its
regulations covering the procedures for
certain permit programs. Proposed
regulations will appear soon In the
Federal Register as revisions to existing
40 CFR Parts 122,123 and 124 and will
cover the Underground Injection
Control, Hazardous Waste Management
and National Pollutant Discharge
Elimination System (NPDES) Permit
Programs. This will include regulations
to implement Section 3008 of the —
Resource Conservation and Recovery
Act (RCRA). To facilitate review of the
UIC specific regulations In light of the
proposed consolidation, EPA will hold
Informal joint hearings on the
consolidated regulations and Part 146 in
Dallas, Chicago, Seattle and
Washington, D.C. beginning in July of
this year.
The specific times and places of these
- public hearings will be announced in the
- Federal Register in the near future.
(Sec.. 1421,1422, 1423,1447, and 1450 of the
Safe Drinking Water Act, as amended (42
U.S.C. 300-h eL seq.).)
Dated: April 2, 1979.
DougIu II. Coeds,
Admira,fr oSo,
Appendix A—Response to Public
Comments
Proposed State Underground Injection
Control MC) Program Regulations were
published for comment on August 31,
1970, 40 CFR Part 146. Written
comments on the proposed regulations
were invited, and public hearings were
held In Dallas, Texas; Denver, Colorado:
and Washington, D.C. Four hundred
twenty-nine written submissions were
received, totaling several thousand
pages.
Since that time, EPA has decided to
consolidate certain UIC requirements
wIth other EPA permit programs and, as
explained in the Preamble, intends to
propose them as part of 40 CFR Parts
122, 123 and 124 in the near future.
However, since these requirements were
originally included In the 1976 proposal
of Part 146. and since all of them
together constitute the minimum
requirements for the UIC program, the
o e
I
I
II
I V
—
fr4 fli )_
25
50-235
7 5€0
28
180
1 0
16
50-108
4 40-I 25
-
ST
150
Z280
cost tdolw
Tct.I cost (S eumi40_. —
EPA Rosier
IS- SO
51
7-28
134
25
5
4
40
52
5
5
80
16
5
4
40
5 ?
5
4
40
Ftsqu eflCy....... —____________
(1.11 thns (howl)..
(kst c o s t(dol lsr.)
T otiIcost (Itha )
5
13
3
12
-------
23753
Federal Register I Vol. 44, No. 78 I Friday, April 20. 1979 I Proposed Rules
EPA responses to all comments are
summarized here for the sake of clarity.
Definitions and Coverage
Underground Sources of Drinking
Water. The 1976 proposal defined
•“underground sourcel of drinking
water” as an aquifer already in use or
an aquifer containing water with fewer
than 10.000 mg/i of TDS. A vast -
majority of commenters were opposed
to the total dissolved solid limit of 10,000
mg/i or less that would qualify an
aquifer as an underground drinldng
water source to be protected by proper
well construction. They felt that a figure
of from 2000 mg/i to 5,000 mg/I of TDS
would be much more realistic. Many
commenters also felt that the State
should play a larger role in the
determination of what constitutes
underground drinking water sources.
The revised regulations have been
reworded in the light of the comments to
allow States additional flexibility. A
section has been added in Part 148
allowing underground sources of
drinking water to be designated by the
State (or EPA if it has primacy) after
public hearings and with EPA approval.
However, in view of the specific
discussIon on this point in the
committee report (House Report 93—
1185, p. 32) that accompained the Safe
Drinking Water Act (SDWA). the
Agency does not believe that it has the
authority to depart from the 10,000 mg/I
of TDS standard. This decision is
discussed at length in the body of the
Preamble.
Endangerment. The 1976 proposal
offered a definition of “endangerment”
that expanded on the definition stated in
§ 1421(d)(2) of the Act. Several,
conflicting comments were received on
this point. Some commenters felt that
the definition was not protective enough
of drinking water sources. Some felt
there were too many ambiguities in the
definition, rendering it unclear and
diminishing its service as a guideline.
Other comnienters wanted extensive
modification of the definition or wanted
the definition of “endangerment” to
revert to the one in the Act.
EPA agrees that the proposed
definition was unduly vague and
confusing, and has decided that since
“endangerment” is defined in the Act, it
need not be redefined in these
regulations.
Instead of a formal definition, EPA
now proposes to use an operational test:
Whether an injection operation will
cause the migration of injection or
formation fluids into an underground
source of drinking water. This change Is
discussed further in the Preamble.
Well Injection. The original proposal
solicited comments on a definition of
“well injection” which included dug
wells. Under that definition, EPA
proposed to bring surface
impoundments (pits, ponds, and
lagoons) under the coverage of the UIC
regulations and would have required an
inventory and assessment of these
practices within 18 months after the
approval of a State program.
Several commenters questioned EPA’s
legal authority to extend its regulatory
adtivlty to pits, ponds, and lagoons,
under the term “dug well,” Nine
commenters felt that the inventory and
assessment prescribed under the August
31, 1978 draft of the regulations would
place an undue burden on State
agencies and would ultimately impede
State efforts to attain primary
enforcement authority. Conversely, four
coinmenters stated that such waste
retention facilities should be controlled
by the proposed regulations.
EPA has considered these comments
and reached the conclusion that an
assessment of pits, ponds. and lagoons
within the framework of the UIC
regulations may not be the most
desirable approach to such practices at
this time. The exclusion of surface
impoundments narrows the application
of “dug wells” to situations where the
depth of the facility is greater than the,
largest surface dimension. -
An assessment of surface
impoundments has been undertaken
through a separate EPA grant
independently of the UIC program. It is
also the Agency’s current intention to
cover surface impoundments under the
solid waste disposal and hazardous
waste management programs mandated
by the Resource Conservation and
Recovery Act.
Well Crtwpings. The 1976 proposal
divided wells into three categories and
offered differing requirements for each
category. Subpart C included
“underground injection by industrial and
municipal waste disposal wells,
subsidence control wells, barrier wells,
recharge wells, mining wells, storage
wells and geothermal wells.” Subpart D
included produced fluid disposal wells
and secondary and tertiary recovery
wells related to oil and gas production.
Subpart £ included drainage wells such
as those used to dispose of “storm water
runoff, Irrigation return flow, and excess
ponded surface waters.”
More than one hundred comments
were received which questioned
whether the regulations were flexible
enough to provide effective guidelines
for the many different types of
underground injection operations which
were grouped under Subpart C.
EPA has recognized the unique
requirements of different wells: Wells
have now been classified into five
classes, each with differing regulatory
requirements. Certain well types have
also been shifted among categories. This
revised classification scheme will now
more effectively provide for the specific
requirements of each different type of
injection and will be consistent with the
goal of optimum protection of
underground drinking water sources.
Changes are more specifically
addressed in response to the following
six groups of comments,
1. Ninety-four comments were
received which objected to the inclusion
of mining and geothermal wells in
Subpart C. They stated that the
- inclusion of these two types well in
Subpart C would either seriously hinder
or expressly prohibit some essential
facets of underground solution mining
and energy production.
EPA has considered the operational
requirements specific to each industrial
application and concurs that these type.
of injection should be moved from
Subpart C to Class ill of these
regulations. The requirements of Class
m will allow the State Director much
more flexibility to provide for these
unique injection practices, while
continuing to afford maximum
protection to drinking water sources
2. Concern was expressed by
numerous commenters that gas storage
wells should not be included under
Subpart C. They’noted that these wells
should be included under Subpart 0.
One commenter suggested that gas
storage wells should be excluded from
these regulations entirely.
Gas storage well operations fit the
definition of “underground injection,” as
discussed in House Report 93—1185,
which notes specifically that the
definition of underground injection ‘is
not limited to the injection of wastes or
to injection for disposal purposes.”
Therefore, EPA concluded that
hydrocarbon strorage wells should be
covered in the regulations, but should
appropriately be moved to Class II with
the other injection activities aaociated
with the production of oil and gas.
3. Fourteen commenters maintained
that subsidence control wells, barrier
wells, and recharge wells were “over-
regulated,” due to their inclusion in
Subpart C of the regulations.
EPA reviewed the comments and
agrees. These types of wells have been
transferred to Class V. Class V wells are
required to be inventoried and their
potential for contaminating underground
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23754
F.d.zalltar/V 0L4LN 078/Friday,April*1979/ProposedRules
sources of drinking water to be assessed
within three years. Based on the
assessments and State
recommendations, EPA Intends to
fashion further regulatory requirements
In the future.
4. Six commenters suggested that
septic tanks and nuclear waste disposal
wells not be regulated In Subpart C.
Multifamily. commercial, and industrial
septic system disposal wells are now
Included in Class V In accordance with
the intent of Congress, as stated in the
House Report 93—1185 (p. 31). Nuclear
waste disposal and storage wells are
Included in Class I because of the need
for more stringent control.
5. Several commenters questioned
EPA’s authority to regulate “gravity
driven” drainage wells and others
suggested that the proposed regulations
for drainage wells were not specific
enough to provide guidelines for the
control of the different types of Injection
which would be Included in thia
category. House Report 93—1165 states
that “the definition of underground
Injection Is Intended to be broad enough
to cover any contaminant which may be
put below ground level • whether
semisolid, liquid, sludge, or any other
form or state,” and that the intent of
Congress Is to provide regulations for
any well “whose principal function is
the subsurface emplacement of fluids.”
Therefore. EPA continues to include
drainage wells as a regulated practice,
particularly since such “gravity driven”
drainage may go directly into drinking
water sources.
Drainage wells now fall either into
Class IV If they are owned or operated
by generators of hazardous wastes or
hazardous waste management facilities.
or into Class V.
6. One commenter suggested that the
subsurface disposal of mill wastes
(tailingsibe specifically exempted from
the regulations. Conversely, two
suggested that seismic ‘Ihot holes,”
mineral exploration test wells, and
cathodic protection wells be included.
EPA is guided by the intent of
Congress, as stated in Section 1421(d) of
the SDWA, that “underground injection
means the subsurface emplacement of
fluids by well injection.” Therefore, only
wells whose primary function is the
emplacement of fluids would be subject
to these regulations. Consequently, the
subsurface disposal of mill tailings has
been retained in the regulations. The
other three categories are not included.
States to be included in the program.
Twenty.six comments were received
concerning I 148.1(b) of the proposed
regulations, which provided that the
Administrator list in the Federal
Register each State for which a State
UIC program may be necessary to
assume protection of underground
drinking water sources.
The majority of these comments
questioned what defines a State as
“needing” a UIC program. One
commenter maintained that the Intent of
Congress was that all States have a UIC
regulatory program. Two other
commenters recommended that only
those States be Included for which a
study of “essentiality” indicated a need.
Twenty-one commenters from seven
States asked that specific States be
excluded from the list of those needing a
program, because they felt that existing
State programs adequately protected
their drinking water sources. -
It is the intent of Congress that all
States eventually be included In the UIC
program. Some States, however, have a
greater need for such a protective
program. Therefore. EPA has published
an initial list of 22 States and intends to
list additional States “from time to time”
In the future.
The determination of the “need” for
an underground injection program (and
a State’s listing In the Federal Register)
Is not based on criteria such as the
quality or adequacy of existing State
programs. Rather, “need” Is established
by criteria such as the number of people
In a State dependent on underground
sources of drinking water, end the
number of injection wells in the State.
A list of 22 States requiring UIC
programs was published on September
25, 1978. About 85 percent of the
injection Wells to be regulated are
located in this Initial group of States. In
addition, the Agency has reconsidered
Its original intentions with regard to
bringing the remaining States under the
program. Under the original plans, 17
States and territories would not have
been listed until mid-1981. As a
consequence, there would have been
areas in the country which would have
lacked controls over underground
Injection, at least under Federal
regulations, even though the disposal of
hazardous waste would have bean
regulated under the Resource
Conservation and Recovery Act
(RCRA). EPA now plans to subject
underground injection to Federal
regulation on about the same schedule
as hazardous waste disposal under
RCRA. An additional 17 States will be
listed In May 1979 and the remaining
ones in May 1980 so as to preclude even
temporary situations where uncontrolled
Injection could be an alternative to
regulated methods of disposal.
Federal Facilities. A number of
comments were received on the control
of injection wells at Federal facilities.
Several of the cominenters suggested
that the Administrator of EPA should
have the authority to waive the need for
compliance with a State UIC program in
the case of an Injection well operated by
or for a Federal agency.
The 1977 amendments to the Safe
Drlnldng Water Act have clarified State
authority over Federal facilities In this
regard. Section 1447 and the legislative
history of the Act clearly Indicate that
Federal agencies, like other well owners
or operators, must comply with State
UIC requirements. The only exception
allowed is In cases where the President
determines that a waiver In necessary In
the interest of national security. The
President’s authority Is not delegable.
EPA is responsible for promulgating
and enforcing the program on Indian
lands.
Textual Clarification. A number of
commenters suede suggestions for
dropping or adding definitions.
enhancing the clarity and specifidty of
the regulations, and the like.
These reproposed regulations have
been substantially rewritten and many
of these helpful comments were taken
into account.
General Program Concepts
Corrective Action in the Area of Review
The UIC regulations proposed in 1976
would have required the owners or
operators of all wells under Subpart C
and D to take appropriate corrective
action in the area of review. For Subpart
C Wells, the area of review was defined
as a two mile radius. For oil and gas
wells under Subpart D the radius was
defined as one.half mile. The owner o
operator was also required to tabulate
all wells penetrating the injection zone
hi the area of review and report a
variety of Information with respect to
each such well.
Numerous comments were received
with regard to the “area of review -
concept.” Many commentera argued that
to collect the level of information
required within the specified radii would
be, in some cases, Impossible, and
generally time-consuming, costly, and
unnecessary. Nineteen such comments
were received with regard to the ball
mile radius specified for oil and gas
related Injection wells alone.
Conversely, some coznmenters held
that even the two mile radius was
Insufficient to embrace all the possible
subterranean features that could play a
part in contaminating underground
sources of drinking water, Other
commenters offered suggeations for
alternative approaches to the conc pt,
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Federal Register I Vol. 44, No. 78 1 FrIday. April 20, 1979 I Proposed Rules
w55
for example. the use of a “zone of
endangering influence” calculated with
the use of a mathematical formula or
allowing the Director of ihe State
regulatory agency to determine an
appropriate area of review In each case.
In response to the helpful public
comments and additional Information
developed by EPA’s consultants, the
area of review concept has been
significantly revised. These revised
regulations now contain specific
sections descrIbing the Agency’s
intentions with regard to the area of
review and corrective action. Also, the
distinction (two miles v. one-half mile)
between oil and gas related wells and
other wells has been eliminated. The
State Director Is now given the
discretion to choose the method by
which he will determine the applicable
area of review. He may choose to use a
mathematical formula (for example, a
modified form of the Theis equation) to
calculate the actual zone of endangering
influence. Alternatively, he may set a
fixed radius based on a number of such
criteria as local geology and hydrology
but in no event less than one-quarter of
a mile. The method of determining the
area of review may vary from area to
area within a State and may differ for
each type of underground injection. The
one-quarter mile is a minimum only if a
fixed radius is used. If the area of
review Is calculated, the distance to be
used is whatever the formula indicates.
The area of review requirement is not
applied to existing oil and gas related
wells. The data available to us to date
leave some question as to the extent of
the environmental problem posed by
nearby wells penetrating the injection
zone. This suggests that the best course
is to apply the requirement to all Class I
and Class Ill wells plus new Class II
wells only for the time being.
Application of this requirement to
existing Class II injection wells was
discarded because of cost and because
the existence of economic incentives
suggests that it is a requirement that can
be eased without the sacrifice of
environmental protection. A mid-course
assessment will be conducted after the
first full year of program operation to
permit the Agency to reconsider this
decision.
Remedial Action v, Prevention
A few commenters requested that
provisions be added to these regulations
for cleaning up any contamination of an
underground source of drinking water
which results from injection activities.
Congress obviously intended to
provide protection to underground
drinking water sources, and therefore,
the main thrust of these regulations Is to
prevent such contamination. EPA has,
however, considered adding
requirements for aquifer restoratlpn. The
best information available to the
Agency indicates that the technology of
aquifer restoration Is costly and the
results not always certain.
Consequently, these proposed
regulations do not establish any specific
requirements for such remedial action.
However, discretion Is given the State
Director In a number of instances to
specify requirements which could
include remedial action. More
specifically, brond authority Is granted
the State Director to set such additional
requirements as necessary If monitoring
shows that migration of fluids into
underground sources of drinking water
Is taking place. Furthermore, the
Director is to specify the manner In
which a well is to be abandoned, and
the requirements could Include a range
of remedial action. Finalij, the Director
Is to take Immediate action In the case
of Class V wells that present a
significant risk to the health of persons.
Here again, the Director could prescribe
remedial action Including aquifer
restoration if he sees fit.
- The Preamble solicits further
information on the whole question of
remedial action. -
The Standard of “Compelling Evidence ”
In several Instances, the regulations
proposed In 1978 allowed the Director to
approve technical requirements other
than those spelled out in the regulations,
for example, for tubing and packer on
Subpart C wells, annular injection for
Subpart D wells, etc. However, in such
cases the Director was to demand
“compelling evidence” from the
applicant that a comparable level of
protection would be achieved for
underground sources of drinking water.
Four commenters objected to the
standard embodied In the term
“compelling evidence.” It was argued
that this standard could be used as a
vehicle to deny permits for even the
safest injection operations. EPA has
concurred with this opinion and deleted
this term from the regulations.
Duration of Permits
The 1976 proposal specified that
permits could be Issued only for a perlo’d
of five years. Fifty commenters objected
to the five-year duration for UIC permits
as being too short. Thirty-two
commenters suggested that the permit
period extend for the life of the project.
Typical reasons cited for extending the
permit period included the time required
for reinspection, the costs to both
operators and regulatory agencies to
reapply and hold public hearings on
renewal of permits, and the difficulty In
obtaining financing for facilities having
short-term permits. A few others
recommended ten-year permit periods
with essentially “automatic” renewals.
As a result of these strong opinions
and EPA’s re-evaluation of permitting
needs, the Director has been given the
discretion to issue permits for the life of
the facility. In cases where the same
facility holds more than one permit
under an. EPA program, all permits must
be reviewed whenever another permit
expires, but In no case less often than
once every five years. As a result of this
review, the Director must decide
whether the permit should be continued,
modified, or revoked and reissued.
Technical Requirements
Regulation of Oil and Gas Related
Wells
The most persistent comment on the
1978 proposal was that the requirements
for injection wells associated with oil
and gas production, if literally
interpreted, would interfere with oil and
gas production without significantly
Increasing protection of water supply
sources.
EPA requested commenters to dubmlt
data substantiating their comments. The
Agency also retained consultants to
evaluate this information, collect
additional information, and advise EPA
of their findings. These findings
indicated that changes In the regulations
were needed. The regulations have been
rewritten In response to these findings
so as to minimize interference With the
injection of oil and gas related fluids, yet
maintain minimum requirements that
are essential to assure that underground
sources of drinking water are protected.
Major changes from the 1978 proposal
are: (1) The requirement for surface
casing cemented to protect water to
3,000 mg/I of TDS has been eliminated
In existing Injection fields; (2) the
Director has been given the discretion to
regulate existing enhanced recovery and
hydrocarbon storage wells by rule,
thereby eliminating the burden of
reissuing approximately 115,000 permlts
and (3) the area of review requirement
has been made applicable to new oil
and gas related injection wells only. The
reproposed regulatory requirements are
discussed fully in the body of the
Preamble.
Construction and Operating
Requirements
One commenter suggested that a list
of approved well drilling techniques and
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WJ..J FVeL44 No.7$IPtidaY.APTlI 20 iwu!ProposedRulas
maintenance practices should be
drafted. and two commenters believed
that ground water sources with up to
10,000mg/I total dissolved solids fF09)
should be protected by surface casing.
However, numerous comments were
received stating that the technical
requirements in the 1976 proposal were
too specific and restrictive. The
cominenters felt that “aeross the board”
requirements were neither needed nor
applicable in many instances.
EPA recognizes the need for a less
specific but more goal oriented
approach. Flexibility Is necessary to
allow for the development of the most
efficient site-specific operations which
take into consideration unique and/or
local situations. and to encourage the
d eveIopment of new technology.
Upon further examination, the Agency
has decided that the technical
requirements could be eased in some
cases and that the Director can be given
the discretion to allow methods other
than those spelled out in the regulations
when such alternatives can adequately
protect underground sources of drinking
water. The more important changes from
the 1976 proposal are highlighted below.
1. Pre-Operution Contml,—Several
commenters suggested that a
requirement be added to test injection
systems prior to operation.
EPA igrees that there Is a potential
for environmental damage during the
construction of the well and that the
integrity of the well should be
d znonstrated before injection begins.
These revised regulations clarify and
specify that: (1) The Director must
approve plans for the testing, drilling
and construction of new wells before
the plans are carried out (2) the owner
or operator must submit the results of
various logs or tests before injection
may begin; and (3) the owner or
opera toimust demonstrate the
mechanical Integrity of the well before
injection may begin.
2. Casing and Cementrng—The 1976
proposal required that Subparts C and D
wells protect all underground drinking
water sources of 3,000 mg/I of IDS or
less, with surface casing cemented to
the surface. Twelve comments were
received objecting to this requirement
EPA agrees that the objections had
merit. The revised proposal requires that
all underground sources of drinking
water be adequately protected with
casing and cementing. This requirement
represents easing in two respects: (1)
Continuous cementing back to the
surface would no longer be required;
and (2) In existing oil and gas Injection
fields, the Director may continue the
current level of protection. -
3. Tubing and hc&er—The earlier
proposal required that injection be
carried out through tubing with a packer
aet immediately above the injection
zone In the case of both Subparts C and
Dwells. Twelve comments were
received pointing out that this
requirement was not applicable in all
cases and would virtually eliminate dual
purpose and other types of wells which
require various forms of annular
injection to operate. They also pointed
out that the requirement would preclude
the use of other technologies, such as
hydraulic seals, which in some cases -
provide better sealing and monitoring
capabilities than traditional packer
systems.
EPA and its contractors consulted
with various industry representatives
having expertise in these systems. In
light of the information supplied by
these individuals, EPA has revised the
requirement Tubing and packer would
now be required only for Class I wells.
The Director would have the dismetion
to permit the use of alternatives to
tubing and packer in cases where they
will provide adequate protection of
underground sources of drinking water.
4. Annular In jection—Nine
commenters objected to the restrictions
placed on annular injection by the
earlier proposal. They Indicated that the
regulations would place severe
limitations on certain types of
secondary and tertiary oil recovery
practices, and would result ins net loss
of oil production with no Increased
protection of drinking water sources.
They pointed out that with proper
design and maintenance, some forms of
annular Injection could be utilized with
no endangerment to ground water
sources. Several of these commenters
submitted documented case histories to
substantiate. their views.
After evaluation of this and other
additional hiforinatlon, EPA has revised
the regulations to allow annular
Injection between strings of casing and
between tubing and casing. However,
annular Injection between the casing
and the hole will not be permitted, as
this practice would not allow for
protection of underground drinking
water sources.
5. Hydraulic F)ucturing—Twenty-two
commenters expressed strong objection
to the restriction Imposed on hydraulic
fracturing of receiving formations. It was
argued that these limitations would
Inhibit commonly used fracturing
techniques necessary to enhance oil
production and disposal operations.
EPA does not intend that hydraulic
fracturing for well development be
prohibited or discouraged. Therefore,
this repropo.aI has been reworded to
clarify EPA ’s Intent The use of
hydraulic fracturing of the injection zone
is permitted. but injection pressures
must be regulated to elhnlnMe the
possibility of fracturing the confining
strata above or below the injection zone.
Monitoring and Reporting Requirements
Several commenters suggested that
the monitoring, record-keeping and
reporting requirements in the 1976
proposal were excessive and costly.
One commenter recommended an
inspection program, citing a self-
monitoring program as ‘unrealistic.”
Three commenters suggested that the
Director specify monitoring (frequency
and type) as needed for specific
operation. and one commenter
requested that the Director be required
to maintain records for a specified
period of lime. In addition, questions
were raised as to when, under I 14634.
an operator had to notify the Director of
the discontinuance of operations and
what constituted a discontinuance.
The regulations have been revised to
clarify the requirements regarding
monitoring, record-keeping, and
reporting, and describe the Directo?s
role in setting specific requirements.
With the narrowing of the types of
injection wells to be Included In the
revised Class I, It Is appropriate to
require the continuous monitoring of
injection and annulus pressures of all
pressure operated wells. The Director
will specify periodic monitoring (with
regard to frequency and quality
parameters) of undcr 5 wuud sources of
drinking water within the zone of
endangering Influence. Of particular.
Importance, the Director Is given the
responsibility to establish monitoring,
record-keeping and reporting systems
that are adequate to demonstrate the
soundness of both new and eidsting
Injection facilities, and to detect any
malfunctions of such operations which
could lead to the contanmlnation of an
underground drinking water source.
Owners/operators are required to keep
records of the results of their monitoring
for three years.
Procedural Requirements Applicable to
States
The UIC regulations proposed hi 1976
contained procedures and requirements
for States which choose to assume end
maintain primary enforcement
responsibility for the UIC program.
These requirements are now reproposed
as part of the consolidated 40 CFR Part
123 (as explained in the Preamble).
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Federal Register I Vol. 44, No. 78 / FrIday, April 20, 1979 / Proposed Rules
23757
Major areas of comment, and EPA’s
response to them, are summarized here.
1. Two commenters expressed
concern over the provision in 146.07(a)
of the earlier proposal which required
the State to submit an effective UIC
program to the Administrator within 270
days of that State being listed In the
Federal Register. These commenters
noted that possible legislative and
administrative delays may make it -
Impossible for a State to meet such a
schedule.
The SDWA required that the
designated States formulate and submit
programs wIthin 270 days after
promulgation of the regulations by the
EPA. Under the 1977 Amendments to the
Act, the time can be extended to 540
days for good cause.
2. The earlier proposal would have
required (* 146.16(a)) each State with
primary enforcement responsibility to
submit a complete inventory of all
injection wells subject to regulation
within 12 months from the approval of
the State program. Several commenters
urged that one year is not enough time
and requested that this time period be
lengthened.
EPA has considered these comments
but decided to retain the requirement.
An accurate count of the wells to be
regulated is basic to an effective State
program. it is also necessary as a base
for the allocation of program grant funds
among States.
The preparation of Inventories for
wells already under a State permit
(Classes I—ill) should not represent a
major burden. The Agency also plans to
assist States by preparing an initial
inventory of Class IV wells. In the case
of Class V wells, the owner or operator
Is required to notify the Director within
8 months of the effective date of the UIC
program.
Finally, the time available for the
preparation of the initial inventories is
actually more than 12 months. It Is an
eligible cost for program grants and may
be undertaken at the time the first grant
is received. Therefore. States have
almost 2 years to complete the Initial
inventory.
3. Four commenters felt that It was not
feasible to require States to maintain
monitoring recpt’ds In a form admissible
as evidence In State enforcement
proceedings. This requirement is
necessary to provide a workable
enforcement program, and, therefore,
EPA has determined to retain this
requirement In the revised regulation.
4. A number of comments were made
that the regulations did not fully protect
trade secrets. EPA recognized this
inadequacy. 40 CFR 123.18 has been
added to conform with Section 1905 of
Title 1 of the U.S. Code on protection of
frade secrets. It states that all
information In the permit application
and the. comments of all governmental
agencies on the application shall be
available to EPA and the public without
restriction, unless the application
specifically Identifies the Information
the disclosure of which would divulge
processes entitled to protection as trade
secrets and the State passes such claims
on to EPA with the Information.
5. Finally, comments were received
requesting that the regulations clarify
what steps EPA would take in the event
that a State failed to enforce its UIC
program.
40 CFR 123.59 has been added to
specify the process EPA intends to
follow If it has cause to believe that a
State may not be enforcing its program.
Procedural Requirements Applicable to
the Permit Issuance Process
1. Content of Application—Numerous
commenters noted that the amount and
nature of information to be submitted
with a permit application were
Inappropriate, and described the
requirements as excessive, duplicative.
unobtainable, and llurdensome. Many of
these comments applied to the area of
review requirements. Changes In that
requirement have already been -
discussed under that topic above.
This reproposal has also reworded
some of the remaining permit
application requirements to simplify the
Information required and expanded the
items that need not be submitted if they
are already available to the Director.
2. Area Permits—Two commenters
observed that an operation whIch drills
a large number of wells in a gIven year
could find itself In a endless round of
permit applications and public hearings.
One recommended that permitting
procedures be abbreviated in the case of
new underground injection operations
located In substantially the same area
as previously permitted without hearing
and notices.
EPA concurs, and has rewritten the
regulations to allow permitting on a
project, block, or field basis In certain
cases. The Director may authorize
additional wells within the specified
area by administrative action without
hearings, provided the construction of
the additional wells Is similar to that of
the wells already permitted.
3. Public Participation—The
regulations proposed In 1976 required
the permit issuing authority, whether
EPA or the State Director, to provide
adequate opportunity for public
comment and informal hearings on any
permit application. A number of adverse
comments were received on this
requirement. Commenters argued that
this requirement would result In
additional costs, undue delays In -
processing the permit and attempts at
technical declsion-maldng in an
Inappropriate forum. Suggestions were
also received for limiting the
applicability of the requirement in
various ways.
EPA has considered these comments
and has decided to retain the
requirement for effective public
participation. First, the SDWA explicitly
provides for public participation and
public hearings during the processing of
permit applications. In addition, the
accompanying House Report 93—1185
states (p. 24) that the development of an
affirmative public awareness program is
an essential attribute of effective State
programs. Second, affirmative action to
foster public participation In
governmental decision-making Is a
policy of this Administration. Third,
effective public participation is a
declared objective of EPA. The Agency
has recently promulgated regulations (40
CFR Part 25) to specify the public -
participation required In EPA programs.
The requirements applicable to the UIC
program which are to be proposed in 40
CFR Parts 123 and 124 conform to the
requirements of 40 CFR Part 25. The
requirements made applicable to States
have been eased to the extent possible
and are less exacting than the ones EPA
intends to Impose on itself when It is the
permit isBuing authority.
The Agency believes that public
participation in governmental decision-
making Is not only desirable but
necessary, and that In the great majority
of cases It can be achieved without any
unnecessary costs or delays.
Economic Impacts
More than fifteen comments were
received on the possible adverse
economic impacts of the regulations.
EPA retained a consultant to evaluate
the costs of various alternative methods
for protecting underground sources of
drinking water, Based on this analysis,
EPA agrees that certain requirements
previously proposed were costly and
has revised the regulations where
possible without sacrificing an
acceptable level of environmental
protection.
The incremental cost associated with
these reproposed regulations is *
estimated to be $808 million over the
first five years of the program, or $162
million per year on the average. Most of
this, $685 million over five years. is
estimated to be the cost of regulating
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23758
Federal Ra star I Vol. 44. No. 78 I Friday. April 20. 1979 j’ Proposed Rules
Injection wells associated with oil and
gas production.
Economic Impacts were also
examined. The Agency’s estimate Is that
these regulations may result in a loss of
oil production of 12.000 barrels per day,
or about one-tenth of one percent of
total annual production. The anticipated
effects on other regulated Industries are
expected to be similarly negligible.
The estimated costs of these
reproposed regulations are extensively
discussed in the Preamble.
A new Part 148 is proposed to be
added to tItle 40 CFR to read as follows:
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
Subpart A—General Provisions
Sec
148.01 ApplicabIlity and scope.
148.02 Law authorizing these regulations.
14603 DefinItions.
148.04 Underground sources of drinking
water.
148.05 Classiflcabon of injection wells.
146.06 Area of review.
148.07 Conactlva action.
148.08 Mechanical integrity.
148.09 SpecIal requirements for wells
managing hazardous waste.
Subpart B—Criteria and Standards
Applicable to Class I Wells
146.11 General
148.12 Construction requirements.
14613 Abandonment of class I wells.
148.14 Operating. monitoring & reporting
requirements.
146.15 Information to be considered by the
Director prior to the Issuance of a permit.
Subpart C CrfleII. and Standards
Applicable to Class I I Wells
146.21 General.
148.22 Construction requirements.
146.23 Abandonment of dasa II wells.
146.24 Operating monitoring & reporting
requirements.
146.25 Information to be considered by the
Director prior to the Issuance of a parent
146.20 Regulation of existing enhanced
recovery wells and hydrocarbon storage
wells by rule.
Subpart 0—Criteria And Standards
Applicable to Class Ill Wale
148.31 General.
146.32 Construction requirements.
148.33 Abandonment of class W wells.
146.34 Operating, monitoring & reporting
requirements.
148.35 Information to be considered by the
Director prior to the issuance of a permit.
Subpart E—Crltarls and SIan ds
ApplIcable to Class IV Wells
148.41 General.
146.42 Notification by operators ax owners.
14843 Closure of class IV wells.
146.44 Monitoring and reporting
requirements.
Subpart F—Cdtes and Standards
to Clues V injaullon Welts
146.51 Genera].
148.52 Inventory and assessment.
1146.53 Requirement.
Authority. Safe Drinking Water Act (the
“Act”). Pub. L 93-523, December 10, 1974, as
amended by Pub. L 95-190. November16.
1977.
§146.01 Appllcabllltyandscope.
(a) This part sets forth technical
criteria and standards for the
requirements established in 40 CFR Part
122,123. and 124 which also apply to
UIC programs.
(Comment 40 ‘R Part 122 defines the
regulatory framework of EPA administered
permit programs. 40 Q ’R Part 123 describes
the elements of an approvable State program
and procedures for EPA approval of State
participation In the permit programs. 40 CFR
Part 124 descrIbes the procedures the Agency
will use for Issuing permits under the covered
programs, and applies to State.arhninlctered
programs as indicated in 40 CFR Part 123.
These three Parts should be read in
conjunction with this Part.]
(b) Upon the approval or partial
approval by the Administrator of a State
UIC program or the establishment of a
porgram by the Administrator
applicable to a State, any underground
injection which Is not authorized by the
Director for the UIC program is
unlawful.
1146.02 Law authorizing these
rsgu lut lona -
The law authorizing these regulations
and all other UIC program regulations is
referenced in 40 CFR Part 122. In
summary it includes Sections 1421,1422.
1423, 1445,1447 and 1450 of the Public
Health Service Act as amended by the
SDWA (Pub. L 93-523) and by the
SDWA Amendments of 1977 (Pub. L 05-.
190).
1146.03 Defkiflions.
The definitions in 40 CFR 122.03 apply
to this part.
§146.04 Undsvgrosmd sources of drinking
The Director, by regulation and
subject to the approval of the
Administrator, shall designate as
underground sources of drinking water
In the State,’ after public hearing, all
aquifers or parts thereof which currently
serve as sources of drinldng water or
which contain water with fewer than
10,000 mIlligrams per liter of total -
dissolved solids, except that the
Director need not designate an aquifer
or part thereof with fewer than 10,000
milligrams per liter of total dissolved
solids If the aquifer or part thereof
(a) Does not currently serve as a
source of drinking water, and
(b) Cannot now and will not in the
future serve ‘as a source of drinking
water because:
(1) It is mineral, oil, or geothermal
energy producing;
(2) It is situated at a depth or location
which makes recovery of water for
drinking water purposes economically
or technologically impractlcal or
(3) It isso contamInated that It would
be economically or technologically
impractical to render the water fit for
human consumption.
§146.05 ClassifIcatIon of Injection wells.
The Director shall classify Injection
wells into five classes as required In 40
CFR 122.34.
§ 148.06 Area of review.
(a) The Director shall select the
methods by which the area of review
shall be established for each injection
well or each field, project or area of the
State.
(b) The area of review may be defined
as either
(1) The zone of endangering influence
as determined in accordance with
‘paragraph (c) of this section; or
(2) An erea within a fixed radius
around each injection well as
determined in accordance with
paragraph (d) of this section.
(c) The zone of endangering influence
ehall be that area the radius of which is
the lateral distance from an Injection
well or injection well pattern in which
the pressure change resulting from the
Injection operation may cause the
migration of the injt ction and/or
formation fluid into an underground
source of drinking water. Computation
of the zone of endangering influence
should be based upon but not limited to,
the parameters listed below and ahould
be calculated for an Injection time
period equal to the expected life of the
facility. The following Theis equation is
an example of one possible objective
methodi
1/2
r. [ s(io ’. (( a- T ]
Note—e’a’b=a
whesm
r=Radius from the Injection well (feet)
F-
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Federal Register I Vol. 44. No. 78 / FrIday. April 20. 1979 I Proposed Rules
23759
k=Hydraulic conductivity of the Injection
zone (feet! day)
H=Thickriess of the Injection zone (feet)
t=Time of Injection (days)
S=Storage coefficient (dimensionless)
Q=lnjection rate (Cu. ft/day)
h..=Orlginal hydrostatic head of
formation fluid (feet) measured from top of
Injection zone
b = Hydrostatic head of underground
source of drinking water (feet) measured from
top of Injection zone
S,G 5 = Specific gravity of formation fluid
(dimensionless)
=3.142
(d) A fixed radius around the well of
not less than Y mile may be used. In
determining the fixed radius, the
following factors shall be taken Into
consideration: (1) the toxicity of the
Injected fluids; and (2) the geology,
hydrology, population, ground water
use, and historical practices in the area.
146.01 CorrectIve Action.
In determining the adequacy of
corrective action proposed by the
applicant under 40 CFR 122.38 and in
determining the additional steps needed
to prevent fluid migration into
underground sources of drinking water.
the Director shall consider the following
criteria and factors:
(a) Toxicity and volume of the
injected fluid;
(b) Potenti .ly affected population:
(c) Geology;
(d) Hydrology:
(e) History of the injection operation;
(I) Completion and plugging reports;
(g) Abandonment procedures in effect
at the time the well was abandoned; and
(h) Hydraulic connections with
underground sources of drinking water.
§ 146.08 Mechanical Integrity.
(a) An injection well has mechanical
integrity If:
(1) There is no significant leak in the
casing, tubing or packer and
(2) There Is no significant fluid
movement into an underground source
of drinking water through vertical
channels adjacent to the injection well
bore.
(b) Some combination of the following
tests shall be used to evaluate the
absence of significant leaks under
paragraph (a)(1) of this section:
(1) TV monitoring;
(2) Monitoring of annulus pressure:
(3) Radioactive tracer survey
(4) Casing inspection log;
(5) Pressure test with fluid or gas
(6) Temperature survey-.
(7) Flowineter survey: or
(8) Packer test.
(c) The absence of fluid movement
under paragraph (a)(2) of this section
may be demonstrated by:
(1) Well records demonstrating the
presence of adequate cement to prevent
such migration; or
(2) The results of a cement bond log,
•onlc log, temperdture log, density log,
or dual neutron log.
(d) The Director may allow the use of
a test to demonstrate mechanical
Integrity other than those listed In
paragraphs (b) and (c)(2) of this section
with the written approval of the
Administrator. To obtain approval, the
Director shall submit a written request
to the AdmInIstrator, which shall set
forth the proposed teat and all technical
data supporting its use. The
Administrator shall approve the request
If It will reliably demonstrate the
mechanical integrity of wells for which
Its use is proposed. Any alternate
method approved by the Administrator
may be used in all States unless its use
is restricted at the time of approval by
the Administrator.
(e) In conducting end evaluating the
tests enumerated in this section or
others to be allowed by the Director, the
owner or operator and the Director shall
apply methods and standards generally
accepted In the industry. When the
owner or operator reports the results of
mechanical integrity tests to the -
Director, he shall include a description
of the test(s) and the method(s) used. In
making his/her evaluation, the Director
shall review monitoring and other test
data submitted since the previous
evaluation.
IComment EPA will Issue technical
guidance on acceptable methods for
conducting and evaluating the permissible
test. to demonstrate mechanloal integrfty.j
§ 146.09 Special requirements for wells
managing hazardous wastes.
(a) As provided in 40 CFR 122.44. the
owner or operator of any well that is
used to Inject hazardous wastes
accompanied by a manifest or delivery
document shall obtain authorization to
inject as specified in 40 CFR 122.35 and
38.
(b) In addition to the applicable
requirements of 40 C2 ’R Part 122 and 40
CFR Part 146 Subparts B-F. the Director
shall, for each facility meeting the
requirements of paragraph (a) of this
section, requIre that the owner or
operator comply with:
(1) The notification requirements of 40
CFR Part 250, Subpart C (proposed at 43
FR 29911 (July 11, 1978); and
(2) The manifest system. record-
keeping, and reporting requirements of
40 CFR 250.43—5(a); (b)(8); (c)(5)(lHiii);
(c)(5)(iii)(A)—(F) and (H): and (c)(6)
(proposed at 43 FR 59003 (December 18.
1978)).
lCornrnena Wells which Inject hazardous
wastes qualify as hazardous waste
management facilities under the Resource
Conservation and Recovery Act (‘RCRA”). 42
U.S.C. 690181 seq. This section is designed to
help Integrate the regulatory coverage of
these wells under RCRA and SDWA by
avoiding the imposition of duplicative or
unduly burdensome requirements. For a
discussion of EPA’s efforts in this regard, see
the preamble to these regulations and to
proposed 40 CFR Pert 122.1
Subpart B—Criteria and Standards
Applicable to Class I Wells
§146.11 GeneraL
(a) This subpart sets forth
requirements for underground injection
control programs to regulate Class I
wells as described in 40 CFR 122.34(a).
These include industrial, municipal and
nuclear disposal wells.
(b) No existing Class I well may
continue to operate for more than 5
years after an underground injection
control program becomes effective,
unless the owner or operator has
obtained a permit for such operation
pursuant to 40 CFR 122.36.
(Comment: Applications must be filed and
permits must be Issued In accordance with
the permit plan submitted by the State as part
of Its application for primary enforcement
responsibility under 40 CPR 223.42 or
promulgated by the Mmtnlstrator as part of
an EPA.admlnktered UIC program. Such
permit plans must provide for the issuance of
all permits as rapidly as possible, but in no
event later than 5 years after the effective
date of the UIC program.]
(c) No new Class I well may begin to
operate after an underground injection
control program becomes effective
unless the owner or operator has
obtained a permit for such operation
pursuant to 40 CFR 122.36.
(d) If the monitoring required under
I 148.14(b) indicates the migration of
Injection or formation fluids into
underground sources of drinking water.
the Director shall, under 40 CFR
122.42(b)) prescribe such additional
requirements for construction, corrective
action, operation, monitoring or
reporting (including closure of the
injection well) as necessary to prevent
such migration.
I 148.12 Consthictlon requirements.
The Director shall under 40 CFR
122.42(a)(1), prescribe requirements for
the construction of Class I injection
wells. Existing wells shall achieve
compliance with such requirements
according to a specific compliance
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23760
W.dsrsl Rs Ister I VoL 4L No. 78/ FrIday, April 20, 2979 I Proposed Rule.
schedule established by the Director as
a condition of the pernuL New wells
shall be in compliance with construction
requirements before injection operations
begin. The owner or operator of a
proposed injection well shall submit
plans for testing. drilling and
construction to the Director and obtain
the approval of the Director of the Initial
plans as a condition of the permit The
Director’s approval of any modifications
of the plans shell be obtained before
Incorporating them into the construction
of the injection well. At a minimum,
such requirements shall prescribe that:
(a) Each Class I well shall be sited In
such a fashion that It injects into a
stratum which is below the deepest
underground source of drinking water In
the area and has an overlying confining
bed that is free of known open faults or
fractures within the area of review.
(b) Each Class I well shall be cased
and cemented to prevent the upward
migration of fluids into or between
underground sources of drinking water.
In determining and specifying casing
and cementing requirements, the
Director shall consider the following
factors:
(1) Depth to the injection zone;
(2) Injection pressure (external
pressure, Internal pressure, axial
loading, etc.);
(3) Hole size;
(4) Size and grade of all casing strings
(wall thickness, diameter, nominal
weight, length, joint specification.
construction material, etc.);
(5) Corrosiveness of formation fluids;
and
(6) Lithology of possible Injection and
confining intervals.
(c) All Class I injection wells, except
for those municipal wells injecting only
non-corrosive wastes, shall inject fluids
through tubing and packer set
Immediately above the injection zone.
(1) The Director may allow the use of
an alternative to tubing and packer set
Immediately above the injection zone
with the written approval of the
Administrator. To obtain approval, the
Director shall submit a written request
to the Administrator, which shall set
forth the proposed alternative and all
technical data supporting Its use. The
Administrator shall approve the request
if It will reliably provide a comparable
level of protection to underground
sources of drinking water. The
Administrator may. in his discretion,
approve an alternative method solely for
an individual well or for general use.
lCommenL This approval responsibility
may be delegated to the Regional
Administrator. Reports on the use of
alternatives are required under 40 CPR
223.48. )
(2) In determining and specifying
requirements for tubing and packer, the
Director shall consider the following
factors:
(I) Depth of setting
(ii) Characteristics of Injection fluid
(chemical content, density, eto);
(HI) Injection pressure;
(lv) Annular pressure;
(v) Rate and volume of injected fluid:
and
(vi) Size of casing.
(d) All parts of Class I wells which
will come Into contact with corrosive
fluids (whether injected or in the native
environment) shall be constructed of
corrosion resistant material -
(e) Logs and other tests shall be
conducted during the drilling and
construction of new Class I wells. A
descriptive report interpreting the
results of such logs and tests shall be
prepared by a qualified person and
submitted to the Director. At a
- minimum, such logs and tests shall
Include:
(1) Directional surveys conducted on
all holes, including pilot holes, at
sufficiently frequent intervals to assure
that vertical avenues for fluid migration
In the form of diverging holes are not
created during drilling.
(2) For surface casing intended to
protect underground sources of drinking
water:
(i) Resistivity, spontaneous potential,
and caliper logs before the casing is
installed; and
(ii) A cement bond, temperature, or
density log after the casing is set and
cemented.
(3) For Intermediate and long strings
of casing intended to facilitate injection:
(I) Resistivity, spontaneous potential,
porosity, and gamma ray logs before the
casing is Installed:
(Ii) Fracture finder logs in appropriate
situations as prescribed by the Director;
and
(iii) A cement bond, temperature, or
density log after the casing Is set and
cemented.
(f) At a mini mum , the following
information concerning the Injection
formation shall be determined for new
Class I wells, and submitted to the
Director In an integrated fonn
(1) Fluid pressure.
(2) Temperature.
(3) Fracture pressure.
(4) Other physical and Chemical
characteristics of the injection matrix.
(5) Pbyslcal and r1 min J
characteristics of the formation fluids.
(6) CompatibIlity of Injected fluids
with formation fluids.
I 148.13 Abandonment olclanalvsfls.
(a) Class I wells shall be abandoned
in a manner, to be prescribed by the
Director under 40 CFR 122.35(aXl) and
123.42(a)(6), which will not allow the
migration of fluids either into or
between underground sources of
drinking water. At a minimum, the well
to be abandoned 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 a comparable method
prescribed by the Director, prior to the
placement of the cement plug(s).
(b) The owner or operator shall
assure, through a performance bond or
other appropriate means, the
availability of resources necessary fat
the proper abandonment of the well as
required in 40 CFR 122 .42(a)(7).
§ 148.14 OperatIng, monitoring and
reportIng requirements.
(a) Operating Requirements:
The Director shall, under 40 R
122.42(a)(3), prescribe requirements
governing the operation of Injection
wells in the permit. Requirements for
Class I shall, at a minimum, specify that
(1) Injection pressure at the well head
shall not exceed a maxin*m which shall
be calculated so as to assure that the
bottom hole pressure during injection
does not propagate fractures In the
injection formation, Initiate fractures In
the confining strata or cause the
migration of Injection or formation fluids
Into a underground source of drinking
water.
(2) Injection between the outermost
casing protecting underground sources
of drinking water and the well bore Is
prohibited.
(3) Unless an alternative to tubing and
packer has been approved under
I 146.12(c)(1), the annulus between the
tubing and the long string of casings
shall be filled with a fluid approved by
the Director and an appropriate pressure
shall be maintained on the annulus.
(b) Monitoring Requirements: The
Director shall, by rule under 40 R
122.35(a)(1) and In permits under 40 R
122.42(a)(4), prescribe requirements for
the monitoring of the Injection fluids, the
Injection well, and the underground
sources of drinking water that could
potentially be affected by the Injection.
Monitoring requirements shall, at a
minimum, Include:
(1) TestIng of the Injected fluids with
sufficient frequency to yield
representative data of Its
characteristics;
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Federal Register I Vol. 44. No. 78 / Friday. April 20, 1979 / Proposed Rules
23761
(2) Continuous recording devices to
monitor injection pressure, flow rate and
volume, and the pressure on the annulus
between the tubing and the long string;
(3) Demonstration of mechanical
integrity pursuant to 148.08 at least
once every five years during the life of
the well;
(4) Type number and location of wells
to monitor any migration of fluids into
and pressure in the underground sources
of drinking water, the parameters to be
measured and the frequency of
monitoring shall be specified; and
(5) The maintenance of the results of
required monitoring for at least three
years as prescribed in 40 CFR 122.14.
(c) Reporting Requirements: The
Director shall, by rule under 40 CFR
122.35(a)(1) and in permits under 40 CFR
122.42(a)(4). prescribe the form, manner.
content and frequency of reporting by
the operator. The operator shall be
required to Identify the types of tests
and methods used to generateihe
monitoring data. At a minimum.
requirements shall include:
(1) Quarterly reports to the Director
on:
(i) The physical, chemical and other
relevant characteristics of injection
fluids;
(ii) Injection pressure, flow rate and
volume, and annular pressure; and
(iii) Monitoring of pressure and
quality in underground sources of
drinking water.
(2) Reporting with the first quarterly
report after the completion of:
(I) Periodic demonstration of
mechanical integrity; and
(ii) Any other test of the Injection well
conducted by the permittee if required
by the Director.
(3) Written notice to the Director
within 30 days after any compliance
schedule date whether the permittee has
or has not complied with the
requirement In question;
(4) Immediate reports to the Director
of any violation of a permit condition or
malfunction of the injection system
which may cause fluid migration into or
between underground sources of
drinking water.
§ 146.15 InformatIon to be considered by
the Director prior to the issuance of a
peTmit.
Prior to the issuance of a permit for an
existing or new Class I well the Director
shall consider the following information.
For an existing Class I well the Director
may rely on the existing State permit file
for those items of information listed
below which are current and accurate in
the State file. For a new Class I well, the
Director shall require the submission of
all the informationjisted below. For
both existing and new Class I wells,
paragraphs (c), (d), and (f) of this section
may be included In the application by
reference If the reference is specific In
Identifying the maps In question and the
maps are readily available to the
Director. In cases where EPA Issues the
permit all the information in this Section
must be submitted to the Administrator.
(a) Information as specified in 40 C
122.36.
(b) A map showing the injection
well(s) 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, 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. Only information of public
record is required to be included on this
map.
(c) A tabulation of data on all wells
within the area of review which
penetrate into the proposed injection
zone. Such data shall include a
description of each well’s type, location.
depth, record of plugging and/or
completion, and any additional
information on these well as the
Director may require:
(d) 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:
(e) Maps and cross sections detailing
the geologic structure of the local area;
(F) Generalized maps and cross
sections illustrating the regional geologic
setting;
(g) Operating data:
(1) Average and maximum daily rate
and volume of the fluid to be injecte±
(2) Average and maximum injection
pressure; and
(3) Source and an analysis of the
chemical, physical, radiological and
biological characteristics of injection
fluids.
(It) Formation testing program to
obtain an analysis of the chemical,
physical, and radiological
characteristics of and other information
on the receiving formation;
(I) Stimulation program:
U) Injection procedure;
(k) Engineering drawings of the
surface and subsurface construction
details of the system:
(I) Contingency plans to cope with all
shut•ins or well failures so as to prevent
migration of contaminating fluids into
any underground sdurce of drinking
water.
(in) All available logging and testing
program data on the well;
(a) Plans for meeting the monitoring
requirements In § 148.14(b);
(o) For wells within the area of review
which penetrate the injection zone but
are not properly completed or plugged,
the corrective action proposed to be
taken under 40 CFR 122.38;
(p) Construction procedures including
cementing and casing program, logging
procedures, directional survey, and
drilling, testing, and coring program;
(q) Feasibility of monitoring
permeable strata located between the
injection zone and undergound sources
of drinking water
(r) Compatibility of injected waste
with fluids in the injection zone and
minerals in both the injection zone and
the confining strata:
(s) A certificate that the applicant has
assured, through a performance bond or
other appropriate means, the resources
necessary to close, plug or abandon the
well as required by 40 CFR 122.42(a)(7);
and
(t) A satisfactory demonstration of
mechanical integrity as required by
§ 122.36(d).
Subpart C—Criteria and Standards
Applicable to Class II Wells
§ 148.21 GeneraL
(a) This subpart sets forth
requirements for underground injection
control programs to regulate enhanced
recovery, hydrocarbon storage,
produced fluid and other Class II
injection wells described in 40 CFR
122.34(b).
(b) Except as provided in paragraph
(d) of this section, no existing Class II
well may continue to operate for more
than 5 years after an underground
injection control program becomes
effective, unless the owner or operator
has obtained a permit for such operation
pursuant to 40 CFR 122.38.
tCom,nenL Applications must be flied and
permits must be issued in accordance with
the permit plan submitted by the State as part
of Its application for primary enforcement
responsibility under 40 CFR 123.42 or
promulgated by the Administrator as part of
an EPA.adininistered UIC program. Such
permit plans must provide for the issuance of
all permits as rapidly as possible, but in no
event later than 5 years after the effective
date of the UIC program.J
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Federal Reginer! Vol. 44. No.75 1 Friday. April 20. 1975 I Proposed Rules
(c) No new class u well may begin to
operate after an underground injection
control program becomes effective
unless the owner or operator has
obtained a permit for such operation
pursuant to 40 CFR 122.36.
(d) Notwithstanding the pro 1llons of
paragraph (bJ of this section the Director
may regulate existing enhanced
recovery and existing hydrocarbon
storage wells by rule, as provided In 40
CFR 122.35(a)(2).
(e) The director may under 40 CFR
122.* disregard the provisions of
§ 146.06 (area of review) and § 146.07
(corrective action) when reviewing an
application to permit an existing Class U
well.
(f) If the monitoring required under
§ 146.24(b) Indicates the migration of
Injection or formation fluids into
underground sources of drinking water.
the Director shall, under 40 CFR
122.42(b), prescribe such additional
requirements for construction, corrective
action, operation, monitoring or
reporting (including cI ure of the
injection well) as necessary to prevent
such migration.
§ 146.22 Consbuc on vequlremonte.
The Director shall prescribe
requirements for the construction of
- Class U injection wells. Existing
produced fluid disposal wells shall
achieve compliance with such
requirements according to a specific
compliance schedule established by the
Director as a condition of the permit
under 40 CFR 122.42(a)(1). Existing
enhanced recovery and hydrocarbon
storage wells shall be subject to general
compliance schedules established by
rule as provided In 40 CFR 122.35 [ a)(2).
New wells sh ll be in compliance
with construction requirements before
injection operations begin. The owner or
operator of a proposed injection well
shall submit plans for testing, drilling
and construction to the Director and
obtain the approval of the Director of
the initial plans as a condition of the
permit. The Director’s approval of any
modifications of the plans shall be
obtained before incorporating them ln o
the construction of the injection well. At
a minimum, such requirements shall
specify that:
(a) All new Class II wells shall be
sited in such a fashion that they inject
into a stratum which has confining beds
that are free of known open faults or
fractures within the area of review.
(b) All Class II Injection wells shall be
cased and cemented to prevent
migration of fluids into or between
underground sources of drinidng water.
In determining and specifying casing
end cementing requirements, the
Director shall consider the following
factors:
11) Depth to the Injection zone:
(2) Injection pressure (external
pressure, Internal pressure, axial
loading, etc.);
(3) Hole size;
(4) Size and grade of all casing strings
(wall thickness, diameter, nominal
weight, length, joint specification,
construction material, etc.);
(5) CorrosIveness of native fluids; and
(6) Llthology of possible Injection and
confining intervals.
(c) The Director need not Impose the
requirement In paragraph (b) of this
section on Class II wells located In
existing injection fields if:
(1) Regulatory controls existed prior to
the effective date of the applicable
underground Injection control program
with respect to casing and cementing:
(2) The Director Imposes those
regulatory controls which have
historically been present and
(3) Well injection will not result in the
migration of fluids Into an underground
source of drinking water so as to create
a significant risk to the health of persons
using the source as drinking water.
(d) Logs and other tests shall be
conducted during the drilling and
construction of new Class II wells. A
descriptive report Interpreting the
results of such logs and tests shall be
prepared by a qualified person and
submitted to the Director. At a
minimum, such logs and teats shall
include:
(1) Directional surveys conducted on
all holes, Including pilot holes, at
sufficiently frequent Intervals to assure
that vertical avenues for fluid migration
in the form of diverging holes are not
created during drilling.
(2) For surface casing intended to
protect underground sources of drinking
waten
(i) Resistivity, spontaneous potential,
and caliper logs before the casing Is
installed; and
(ii) A cement bond, temperature, or
density log after the casing is set and
cemented.
(3) For intermediate and long strings
of casing intended to facilitate injection:
(I) Resistivity, spontaneous potential,
porosity, and gamma ray logs before the
casing is installed:
(ii) Fracture finder logs In appropriate
situations as prescribed by the Dfrector
and
(iii) A cement bond, temperature, or
density log after the casing is set and
cemented.
(e) At a minimum, the following
Information concerning the Injection
formation shall be determined for new
Class II wells, and submitted to the
Director In an integrated form:
41) Fluid pressure.
(2) Temperature.
(3) Fracture pressure.
(4) Other physical and chemical
characteristics of the Injection matrix.
(5) Physical and chemical
characteristics of the formation fluids.
(6) Compatibility of injected fluids
with formation fluids.
§146.23 Abmndoment of doss it welts.
(a) Class U wells shall be abandoned
In a manner, to be prescribed by the
Director under 40 CFR 122.35(a) (1) and
(2) and 122.42(a)(6) which will not allow
the migration of fluids either Into or
between underground soures of drinking
water. At a minimum, the well to be
abandoned 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 a comparable method
prescribed by the Director, prior to the
placement of the cement plug(s).
(b)Owners or operators shall assure,
through a performance bond or other
appropriate means, the availability of
resources necessary for the proper
abandonment of the well as required in
40 CFR 122.42(a)(7).
0146.24 Operating, monitoring, and
reporting requirements.
(a) Operating Requirements: The
Director shall prescribe requirements
governing the operation of injection
wells. For existing produced fluid
disposal wells and all new wells,
operating requirements shall be included
as conditions of each permit as
prescribed in 40 CFR 122.42(a)(3). For
existing enhances recovery and
hydrocarbon storage wells, operating
requirements shall be established by
rule under 40 CFR 122.35(a)(2).
Requirements for Class U wells shall, at
a minimum, Include that:
(1) Injection pressure at the surface
shall not exceed a maximum which shall
be calculated so as to assure that the
bottom hole pressure during Injection
does not initiate fractures in the
confining strata or cause the migration
of injection or formation fluids Into an
underground source of drinking water.
(2) Injection between the outermost
casing protecting underground sources
of drinking water and the well bore shall
be prohibited.
(b)Monitoring Requirements: The
Director shall prescribe monitoring
requirements for Class U wells. For
existing produced fluid disposal wells
and all new wells, monitoring
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Fe ii Rsgtstar / VoL 44. No. 78 F Friday. April ), 197O Proposed Rule .
23763
requirements shall be Included In the
Interim rule under 40 CFR 122.35(a)(1)
and as conditions of each permit under
40 CFR 122.42(a)(4). For existing
enhanced recovery and hydrocarbon
storage wells, monitoring requirements
whall be established by rule under 40
CFR 122.35(a3(2). Such monitoring
requirements shall, at a minimum,
include:
(1) Monitoring of the nature of
inlected fluids at Intervals sufficiently
frequent to yield data representative of
its characteristics.
(2) Monitoring and injection pressure,
flow rate, and cumulative volume at
least with the following frequencies:
(i) Weekly for salt water disposal
operations:
(ii) Monthly for enhanced recovery
operations;
(iii) Daily during the injection or
withdrawal of stored hydrocarbons; and
(iv) Daily during the injection phase of
cyclic steam operations.
(3) Demonstration of mechanical
integrity pursuant to 146.08 at least
once every five years during the life of
the Injection well.
(4) Maintenance of the results of all
monitoring for at least three years as
precribed in 40 CFR 122.14.
(c) Reporting Requirements: The
Director shall establish the form,
manner content and frequency of
reporting by the owner or operator. For
existing produced fluid disposal wells
and all new wells, reporting
requirements shall be included in the
interim rule under 40 CFR 122.35(a)(1)
and as conditions of each permit under
40 CFR 122.42(a)(4). For existing
enhanced recovery and hydrocarbon
storage wells, reporting requirements
shall be established by rule under 40
CFR 122.35(a)(2). The owner or operator
shall be required to identify the types of
tests and methods used to generate the
monitoring data. At a minimum,
requirements shall include:
(1) An annual report to the Director
summarizing the results of the
monitoring required under paragraph (b)
of this section.
(2) The immediate reporting to the
Director of any violation of a permit
condition or rule, or any malfunction of
the injection system which may cause
the migration of the fluids into
underground sources of drinking water.
(3) Written notice to the Director
within 30 days after any compliance
schedule date of whether the permittee
has or has not complied with the
7equirement in question.
f 148.25 InformatIon to be Con&dsred by
the Director Prior to the Issuance of a
Permit
Prior to the Issuance of a permit for an
existing or new Class Dwell, the
Director shall consider the following
lnfârmation. For an existing Class II
disposal well, the Director may rely on
the existing State permit file for those
Items of Information listed below which
are current and accurate in the State
file. For a new Class II well the Director
shall, pursuant to 40 CFR 122.38(c),
require the submission of all of the
Information listed below. The
Information required In paragraphs (b),
(c), and (f) of this section may be
included by reference If the reference Is
specific in identifying the information in
question and If Itis readily available to
the Director. In cases where EPA Issues
the permit, all the Information In this
Section is to be submitted to the
Administrator.
(a) Information required In 40 CFR
122.38, as appropriate.
(b) A map showing the Injection
well(s) for which a permit Is sought and
the eppilcable 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 and water
wells. Only wells of public record are
required to be included on this map.
This requirements does not apply to
existing Class II wells.
(c) A tabulation of data on all wells -
within the area of review of a new Class
H well which penetrate the proposed
injection zone. Such data shall include a
description of each well’s type, location,
depth, record of plugging and/or
completion, and any additional
information the Director may require.
This requirement does not apply to
existing Class II wells.
(d) Operating data:
(1) Anticipated average and maximum
daily rate and volume of injected fluids;
(2) Anticipated average and maximum
Injection pressure: and
(3) Source, and an analysis of the
physical and chemical characteristics of
the injection fluid.
(e) Appropriate geological data on the
injection zone and confining strata
Including lithologic description,
geological name, thickness, depth and
area of extent
(fl Geologic name, lateral extent and
depth to top and bottom of all
underground sources of drinking water
which may be affected by the injection:
(g) Logging and testing program data
on the well:
(h) Engineering drawings of the
surface and subsurface construction
details of the system;
(I) Formation testing program;
0) Stimulation program:
(k) Injection procedure;
(1) Contingency plans to cope with all
shut-ins or well failures so as to prevent
migration of contaminating fluids into
any underground source of drinking
water
(m) Plans for meeting the monitoring
requirements of * 146.24(b):
(a) In the case of new Injection wells,
the corrective action proposed to be
taken by the applicant under 40 CFR
122.38
(o) A certificate that the applicant has
assured, through a performance bond or
other appropriate means, the resources
necessary to close, plug or abandon the
well as required by 40 CFR 122.42(a)(7
and
(p) A satisfactory demonstration of
mechanical Integrity as required In
- 122.36(d).
f 14028 RegulatIon of Existing Enhanced
Recovery Wells and Hydrocarbon Storage
Wells by Rule.
Rules adopted to regulate existing
enhanced recovery wells and
hydrocarbon storage wells shall, as
stated in 40 CFR 122.35(a)(2), at a
minimum apply the relevant
construction, abandonment, operating,
monitoring and reporting requirements
In 146.22,148.23 and 146.24.
Subpart D—Criterla and Standards
Applicable to Class iii Wells
148.31 General
(a) This Subpart sets forth
requirements for underground injection
control programs to regulate Class ill
wells. This Includes Frasch process, In
situ gasification, solution mining,
geothermal and othe wells described in
40 CFR 122.34(c). -
(b) No existing Class III well may
continue to operate for more than 5
years after an applicable underground
Injection control program becomes
effective, unless the owner or operator
has obtained a permit for such operation
pursuant to 40 CFR 122.38.
(Comment Applications must be filed and
permits must be Issued In accordance with
the permit plan submitted by the State as part
of Its application for primary enforcement
responsibility under 40 Q ’R 123.42 or
- promulgsted by the Administrator as part of
an EPA-sdminstered UIC program. Such
permit plans must provide for the Issuance of
all permits as rapidly us possible, but in no
event later than 5 years after the effective
date of the UIC program.J
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23764
peihesi Register F Vol. 44, No. 78 ! Friday, April 20. IWJO I Proposed Rides
(c) No new Class UI well may begin to
operate after an applicable underground
injection control program becomes
effective unless the owner or operator
has obtained a permit for such operation
pursuant to 40 CFR 122.38.
(d) If the monitoring required under
I 148.34(b) Indicates the migration of
injection of formation fluids into
underground sources of drinking water.
the Director shall, under 40 CER -
122.42(b). prescrIbe such additional
requirements for construction, corrective
action, operation, monitoring or
reporting (including closure of the
injection well) as necessary to prevent
such migration. -
* 146.32 Cons uctIon Requirements.
The Director shall, under 40 CFR 122.-
42(I)(1). prescribe requirements for the
construction of Class III injection wells.
Existing wells shall achieve compliance
with such requirements according to a
specific compliance schedule
established by the Director as a
condition of the permit. New wells shall
be In compliance with construction
requirements before Injection operations
begin. The owner or opei’ator of a
proposed injection well shall submit
plans for testing. drilling and
construction to the Director and obtain
the approval of the Director of the initial
plans as a condition of the permit. The
Director’s approval of any modifications
of the plans shall be obtained before
Incorporating them into the construction
of the Injection well. At a minimum.
such requirements shall specify that
(a) All Class UI wells shall be cased
and cemented to prevent the migration
of fluids into and between underground
sources of drinking water. In
determining and specifying casing and
cementing requirements, the Director
shall consider the following factors.
(1) Depth to the injection zone;
(2) Injection pressure (external
pressure. Internal pressure, axial
loading. etc.):
(3) Hole sins:
(4) Size and grade of all casing strings
(wall thickness, diameter, nominal
weight. length, joint specification,
construction material. etc.);
(5) Corrosiveness of native fluids: and
(6) Lithology of possible Injection and
confining Intervals.
(b) All parts of Class UI wells which
will come into contact with corrosive
fluids (whether injected or In the native
environment) Shall be constructed of
corrosive resistant material.
(c) Appropriate logs and other tests
shall be conducted during the drilling
and construction of new Class III wells.
A descriptive report interpreting the
results of such logs and tests shall be
prepared by a qualified person and
submitted to the Director. The Director
uhall specify the logs and tests
appropriate to each type of Class Ill
well based on the intended function.
depth construction and other
characteristics of the well. At a
minimum, such logs and tests, shall, as
appropriate, Include:
(1) Directional surveys conducted on
all holes. Including pilot holes, at
suffidently frequent Intervals to assure
that vertical avenues for fluid migration
In the form of diverging holes are not
- created during drilling.
(2) For surface casing intended to
protect undeground sources of drinking
waten
(I) Resistivity, spontaneous potential,
and caliper logs before the casing is
installed and
(ii) A cement bond, temperature. or
density log after the casing Is set and
cemented.
(3) For Intermediate and long strings
of casing intended to facilitate injection:
(i) Resistivity, spontaneous potential,
porosity, and gamma ray logs before the
casing Is installed
(ii) Fracture finder logs In appropriate
situations as prescribed by the Director,
and
(iii) A cement bond, temperature, or
density log after the casing Is set and --
cemented.
(d) At a minimum, the following
Information concerning the injection
formation shall be determined for new
Class Ill wells, and submitted to the
Director In an integrated form:
(1) FluId pressure.
(2) Temperature.
(3) Fracture pressure. -
(4) Other physical and chemical
characteristics of the injection matrix.
(5) Physical and chemical
characteristics of the formation fluids.
(8) Compatibility of injected fluids
with formation fluids.
(e) A system of at least five
monitoring wells shall be Installed at
each Class Ill site and located so as to
maximize the probability of detecting
any horizontal or vertical fluid
excursion from the injection zone. In the
case of new Class III wells, the natural
fluid level and water quality In the
injection area shall be established
- before the operation of the injection well
Is begun.
f 146.33 Abandonment of Class I II Ws8s.
(a) Class Ill wells shall be abandoned
In a manner, prescribed by the Director,
under 40 CPR 122.33(a)(1) and
122.42(a)(8), which will not allow the
migration of fluids either into or
between underground sources of
drinking water. At a minimum, the well
to be abandoned 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 era comparable method
prescribed by the Director, prior to the
placement of the cement plug(s).
(b) The owners or operators shall
assure, through a performance bond or
other appropriate means, the
availability of respurces necessary for
the proper abandonment of the well as
required In 40 CFR 122.42(a)(7).
* 148.34 OperatIng, Moi1lI w1ng mid
Reporting Requirements.
(a) Operating Requirements: The
Director shall, under 40 CFR 122.42(a)(3).
prescribe requirements governing the
operation of injection wells In the
permit. Requirements for Class III wells
shall, at a minimum. include that:
(1) Injection pressure at the well head
shall be controlled to prevent the
migration of fluids into underground
sources of drinking water.
(2) Injection between the outermost
casing protecting underground sources
of drinking water and the well bore shall
be prohibited.
(b) Monitoring Requirements: The
Director shall, by rule under 40 CFR
122.35(a)(1) and In permits under 40 CFR
122.42(s)(4), prescribe requirements for
the monitoring of the injection fluids, the
injection well, and underground sources
of drinking water In the vicinity that
could potentially be affected by the
injection. Monitoring requirements shall,
at a minimum, Include:
(1) Testing of the physical and
chemical characteristics of the Injected
fluid with sufficient frequency to yield
representative data of Its
character lstic
(2) installation of continuous
recording devices and continuous
monitorIng of the injection pressure,
flow rate and volume;
(3) DemonstratIon of mechanical
Integrity pursuant to * 146.08 at least
once every five years during the life of
the well;
(4)Weekly monitoring of fluid l vel
and the parameters chosen to measure
water quality In the formation through
the monitoring wells:
(5) Quarterly monitoring of water
supply wells adjacent to the Injection
site to detect any excursion from the
Injection sits: and
(6) The maintenance of the results of
required monitoring for three years
pursuant to 40 CFR 122.14.
(c) Reporting Requirements: The
Director shall, by rule under 40 CPR
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Federal Register I .Vol. 44 No. 78 / Friday. April 20, ière I Proposed Rules
23765
122.35(a)(1) and In permits under
122.42(a)(4), prescribe the form,
‘manner, content and frequency of
reporting by the permittee. The
permittee shall be required to Identify
the types of tests and methods used to
generate the monitoring data. At a
minimum, requirements shall include:
(1) Quarterly reporting to the Director
on required monitoring;
(2) Results of mechanical integrity and
any other periodic test required by the
Director reported with the first regular
quarterly report after the completion of
the test;
(3) Written notice to the Director
within 30 days of any compliance
schedule date of whether the permittee
has or has not complied with the
requirement in question; and
(4) Immediate reports to the Director
or any violation of a permit condition of
malfunction of the injection system
which may cause fluid migration into
underground sources of drinking water.
f 146.35 InformatIon to b Consider.d by
the Director Prior to the Issuance of a
Permit
Prior to the Issuance of a permit for an
existing or new Class m well, the
Director shall consider the following
information. For an existing Class Ill
injection operation the Director may rely
on the existing permit file for those
items of information listed below which
are current and accurate in the State
file. For a new Class U I injection well
the girector shall require the submission
of all the information listed below. For
both existing and new Class Ill wells,
paragraphs (b). (c), (e), and (f) of this
section may be included by reference If
the maps are specifically identified and
readily available to the Director, In
cases where EPA issues the permit, all
the information in this section must be
submitted to the Administrator.
(a) Information required in 40 CFR
122.36, as appropriate.
(b) A map showing the injecjion
well(s) for which the 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, mines (surface and
subsurface), quarries, public water
systems, water wells and other pertinent
surface features including residences,
and roads. The map should also show
faults If known or suspected. Only
information of public record is required
to be included on this map.
(c) Maps and cross sections Indicating
the vertical and lateral limits of all
3nderground 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 every underground source of
drinking water which maybe affected
by the proposed injection.
(d) Maps and cross sections detailing
the geologic structure of the local area;
(e) Generalized maps and cross
sections Illustrating the regional geologic
setting:
(I) A tabulation of data on all wells
within the area of review which
penetrate the proposed injection zone.
Such data shall include a decription of
each well’s type, location, depth, record
of plugging and completion, and such
other information as the Director may
require.
(gJ Operating data:
(1) Anticipated maximum daily rate
and volume of fluid to be injected;
(2) Maximum injection pressure;
(3) Source and an analysis of the
chemical, physical, and radiological
characteristics of the injection fluid; and
(4) An anaylsis of the physical and
chemical characteristics of the
formatlon
(h) Formation testing program;
(I) Stimulation program;
(j) Injection procedure;
(k) Engineering drawings of the
surface and subsurface construction
details of the system;
(1) Plans (including maps) for meeting
the monitoring requirements of
§ 146.34(b):
(m) Expected changes in pressure,
native fluid displacement, direction of
movement of injection fluid;
(n) Contingency plans to cope with all
shut-ins or well failures so as to prevent
the migration of contaminating fluids
into underground sources of drinldng
water
(o) All available logging and testing
data on the well;
(p) The corrective action proposed to
be taken under 40 CFR 122.38.
(q) A certificate that the applicant, has
assured, through a performance bond or
other appropriate means, the resources
necessary to close, plug or abandon the
well as required by 40 CFR 122.42(a)(7);
and
(r) A satisfactory demonstration of
mechanical intergrlty as required by 40
CFR 122.30(d).
Subpart E—Crlteria and Standards
Applicable to Clau IV Wells
O 146.41 General. -
(a) This Subpart sets forth criteria and
standards for underground injection
control programs to regulate wells,
including non-residential septic system
wells, used by generators of hazardous
wastes and owners and operators of
hazardous waste management facilities
(as defined In 40 CFR 122.3(b)) to inject
into or above strata that contain an
underground source of drinking water.
(b) All new Class N wells are
prohibited.
0146.42 NotificatIon by Owns . or
Operatbrs.
The owner or operator of an existing
Class IV well shall submit to the
Director
(a) Notice of the existence of any
Class IV well under his control: and
(b) Information regarding the well.
lCom,nenL ’ Information on Class IV wells will
be gathered under the hazardous waste
management program mandated by the’
Resource Conservation and Recovery Act.
Regulations Issued under that Act (40 CFR
122.25) requIre generators of hazardous
wastes and owners or operators of hazardous
waste management facilities to notify EPA
within 90 days of the promulgation of the
regulations and to file Part A of their permit
applications within an additional 90 days.
Owners or operators will be required to file
information on Class IV wells as part of this
process.)
146.43 Closure of Class IV Wells.
(a) The Director shall formulate an
enforcement strategy resulting in closure
of all Class N wells at the earliest date
but in no event later than three years
after the effective date of the applicable
underground injection control program.
(b)In determining the enforcement
strategy and time allowed for closure,
the Director shall consider the following
criteria:
(1) Population relying on the
underground source of drinking water
affected or potentially affected by the
injection;
(2) Local geology and hydrology;
(3) ToxicIty and volume of injected
fluid; and
(4) Injection well density.
(c) The owners or operators of Class
N wells shall be notified by certified
mail of the time by which closure must
be accomplished as decided upon by the
Director and, If appropriate, of a
compliance schedule leading to closure.
(d) Nothing in this Subpart Is intended
to limit the Director in taking Immediate
action necessary to protect the health of
persons.
f 146.44 Monftodng and Reporting
Requirements.
The Director shall, by rule under 40
CFR 122.35(u)(3), prescribe monitoring
and reporting requirements for existing
Class N wells while they are operating.
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23768
Federal Register / Vol. 44. No. 78 / FrIday, April 20. 1979 / Proposed Rules
(a) Monitoring requirements shall, at a
minimum Include: -
(1) Record-keeping as required In 40
CPR 250.43—5(c) (1) and (2);
(2) Weekly monitoring of existing
water supply wells in the vicinity for
parameters based upon the
characteristics of the Injection fluids;
{3) Maintenance of the results of
monitoring pursuant to 40 CFR 122.14.
(b) Reporting requirements shall
prescribe the form, manner, content and
frequency of reports to the Director. The
permlttee shall be required to identify
the types of tests and methods used to
generate the monitoring data. At a
minimum, the requirements shall
Include:
(1).Quarterly reporting of the results
of monitoring required under paragraph
(a) of this section;
(2) Immediate notification to the
Director of any change in the
concentration of any parameter
measured at an existing water supply
well; and
(3) Written notification to the Director
within 30 days after any compliance
schedule date of whether the owner or
operator has or has not complied with
the requirement in question.
Subpart F—Criteria and Standards
Applicable to Class V Injection Wells
I 146.51 General.
This subpart sets forth requirements
for underground injection control
programs to regulate all injection not
regulated in Subparts B, C, D, and E.
Generally, wells covered by this Subpart
Inject non-hazardous fluids into strata
that contain underground sources of
drinking water. It Includes but Is not
limited to the following types of
Injection wells: waste disposal wells,
such as dry wells, non-residential septic
system wells, and sand backfill wells;
and recharge wells, such as drainage
wells, cooling water return flow wells,
air conditioning return flow wells, salt
water barrier wells and subsidence
control wells (not associated with oil
and gas production).
f 146.52 Inventory and Assessment
(a) The owner or operator of any
Class V well shall, within six months of
the effective date of an underground
injection control program, notify the
Director of the existence of any well
meeting the definitions of Class V under
his control, and submit a description oft
(1) The construction features of the
well;
(2) The nature and volume of Injected
fiuids
(3) The alternative means of disposal
available to the operetor and
(4) The environmental and economic
consequences of well disposal and Its
alternatives.
(b) Within 2 years of approval of the
State program the Director will make
and report to EPA:
(1) An assessment of the
contamination potential of the Class V
wells using Information supplied by the
operator and hydrogeological data
available to the State;
(2) An assessment of the available
corrective alternatives where
appropriate and their environmental and
economic consequences; and
(3) Recommendations both for the
most appropriate regulatory approaches
and for remedial actions where
appropriate.
§ 148.53 Requk’sment.
If at any time the Director gains
knowledge of a Class V well which
presents a significant risk to the health
of persons, he/she shall, under 40 CFR
122.46(b), prescribe such action as
necessary (including the immediate
closure of the injection well) to remove
such risk.
p iteo-
IFS Doc. 79—i 2 FSsd 4— —75 145 iii )
SILLIIeG COOS I6eS .C$
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Federal Register / Vol. 44. No. 78 / Fnday. April 20. 1979 / Notices
23767
ENVIRONMENTAL PROTECTION
AGENCY
Grants for State Underground Water
Source Protection Programs Class
Deviation
Under authority of 40 CFR 30.1000,
EPA has issued a class deviation from
the provisions of 40 CFR 35.656(b) and
35.070-3 for the State underground water
source protection program grants
awarded under section 1443(b) of the
Safe Drinking Water Act, as amended.
EPA promulgated the State
underground water source protection
grant regulations on October12. 1978 (43
FR 47130) with the expectation that the
underground injection control
regulations would be zeproposed In 40
CFR Part 146 (originally proposed on
August 31, 1976 in 41 FR 38730) by
December. These regulations are
reproposed in this edition of the Federal
Register.
The delay In publication of the
reproposed regulations affects the
application submission and reallotment
date requirements in the grant
regulations. 40 CFR 35.670—3(a) and (b)
require, in part, that eligible States must
submit the fiscal year 1979 grant
applications to the Regional
Administrator by March 1, 1979, and
that a draft Stale program plan for fiscal
year 1980 grants be submitted to the
Regional Administrator by June 1. 1979.
40 CFR 35.656(b) provides that EPA will
reallot any remaining unobligated funds
to eligible States no later than April 1.
On April 9. 1979. EPA approved a
deviation to modify the reallotment
date, waive the draft plan submission
requirement for fiscal year 1980 grants.
and extend the grant application period
of eligible States for fiscal year 1979
grants until 30 days after reproposal of
the underground injection control
regulations.
Under our policy to publish class
deviations In the Federal Register, EPA
Is publishing the deviation as part of this
notice.
FOR FURTHER INFORMATION CONTACT
Mr. Alexander J. Greene. Director,
Grants Administration Division (PM—
218). Environmental Protection Agency,
401 M Street. SW.. Washington. D.C.
20460 (Tel No. 202-755-0850).
Dated: April 9. 1979.
I II! Th.ytce.
A s,stanl Adrnhiistmw Plannzra and Man a4emenL
Thom., C. JmBa .
Ais,stgnt Admirnabutorfo, Water and Waite Manapaten&
UNITED STATES ENVIRONMENTAl.
PROTECTION AGENCY
Date: April 11. 1979.
Sublect Class Deviation from 40 CFR
35.858(b) and 35.070-3, State Underground
Water Source Protection Program Grants.
From: Alexander J. Greene. Director.
Grants Administration Division (PM-lie).
To: Regional Administrators.
EPA promulgated grant regulations for the
State underground water source protection
program grants on October 12. 1978(43 FR
47130). The preamble to these regulations
references the underground Injection control
regulations to be reproposed In 40 CFR Part
148 (proposed In 41 FR 36730 on August 31,
1976). Publication of the reproposed
regulations has been delayed beyond the
anticipated time of December 1978. or
January 1979. On April 3.1979, the
Administrator approved these regulation. for
reproposal In the Federal Register. The delay
In reproposal of the underground Injection
control regulations necessitates some
temporary changes to the State underground
water source protection program grant
regulation.. I am approving deviations for the
fiscal year. 1979 or 1980 grants as provided
below.
1. Section 35.670—3(a). This section requires
that fiscal year 1979 grant applications be
submitted to the Regional Administrator by
March 1. 1979.
This deviation approval extends the grant
application period for States eligible for fiscal
year 1979 grants untIl 30 days after the date
of publication of the reproposed underground
Injection control regulations.
2. Section 35.670-3(b). This section
requires. In part, that for a fiscal year 1980
grant an eligible State must submit a draft
State program plan to the Regional
Administrator no later than June 1, 1979.
This deviation approval waives the
requirement for the draft program plan for
fiscal year 1980 grants, provided the States
work closely with the Regional Offices In the
development of their plans.
3. Section 35.658(b). This section provides.
In part, that no later than April 1. the
AdmInistrator will reallot remaining
unobligated funds to eligible States.
This deviation approval changes this
provision for reallocation of the fiscal year
1979 funds to no later than 60 days after the
date of publication of the reproposed
underground injection control regulations.
-All other requirements of the State
underground water source protection
program grant regulation. remain In full
effect for the fiscal year 1979 and subsequent
year grant awards.
Dated: AprIl 9. 1979.
Ba .ytc
Auiar an tAthwiisbvt orfarPl annlrandManq.ment
Thomas C. Imlins.
Assistant Adm,rust,otor far Water and Watts ManogemanL
WRL ia 4j
(FR Duo. mm Flied 4-i9-R ass
BILLING COOS 55 10-0 1-N
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4
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I. THE UIC PROGRAM IN PERSPE. rE
TABLE !OF. CONTENTS
.:
tT?’ THE PROPOSED REGULATIONS ,
ThiJ.Guide discusses the significant
e 1 a 3 dres of EPA ’s revised proposals for the
nderground Injection Control program under
a fe Drinking Water Act. The proposed
•chri’ical criteria and standards were
ttbiishe&on April 20, 1979, in the Federal
i?sted(44 . FR23738)to be codified as Part
6*it1e 40i. Code of Federal Regulations,.
the rrpertinent requirements have been
oposed 8 as part of the Consolidated Permit
ü1àtións ”intended as revisions to.40 cFR ,
‘s 22,w123 and l24.
: . . , .&5, ’.’ c : ’. ... .. . . . .‘
S.
1Tr .,.. .RAM IN PERSPECTIVE
PTS AND REQUIREMENTS
TOOLS FOR
• :“
.
HE ’STATE ”
ITS ’ AND
. .2 ING
. . ‘ .
The Concern for Ground Water
Most areas of the United States are
underlain by geological formátions’ r strata
that are capable of yielding usable quantities
of water. Such geological formations are
called aquifers.
People have long relied on aquifers as the
source of high—quality water. Today, about
half of the American population uses ground
water for its domestic needs.
In the drier areas of the country,
aquifers are often the only source of water
available. National reliance on ground water
is expected to increase as the consumption and
usage of water, increase in the future.
Ground water is also a vital link in the
water cycle. Aquifers are replenished by
rainfall or other surface water percolating
through the soil. In turn, ground water
supplies the base flow of many ‘streams and
feeds lakes through underground springs.
Recent years have seen a growing concern
for the quality of ground water. Pollutants
in surface waters ‘or substances deposited on
the. soil (e.g., pesticides and fertilizers)
may be carried into aquifers in the
replenishment process. The land disposal of
wastes (e.g., into land fills, surface
impoundments and injection wells) can also
cause contaminants to enter ground water.
Injection wells are a major problem in
this regard. It is estimated that perhaps
many as 500,000 injection wells are in
operation nationwide. These wells involve
broad variety of practices from beneficial
purposes (e.g., aquifer’ recharge) ‘to the
as
a
OR CONC
•4 w# .
:‘c’ PAT]
-------
production of oil, gas and minerals, to the
disposal of toxic and hazardous wastes.
The contamination of ground water is a
matter of grave concern. Ground water is
usually assumed to be of high quality and is
often used with little or no treatment.
Contamination is usually discovered when the
consumer is taken ill and, in many cases, the
only practical solution is to search for
another source. Because of the slow movement
of ground water, it may be decades or even
centuries before the aquifer is once more
usable. In some cases, the contamination can
never be reversed and the resource may be lost
forever. Finally, the effort to clean up the
nation’s surface waters is hampered if the
base flow of streams is already contaminated.
Congress Acts
Congress recognized these potential
threats to ground water when, in the Safe
Drinking Water Act of 1974 (P.L. 93—523), it
instructed the Environmental Protection Agency
(EPA) to establish a national program to
prevent underground injections which endanger
drinking water sources. More specifically,
the Safe Drinking Water Act (SDWA) requires
EPA to:
Publish minimum national requirements
for effective State Underground
Injection Control (UIC) programs.
List States that need UIC programs.
Make grants to States for developing
and implementing UIC programs.
Review proposed State programs and
approve or disapprove them.
Prc gate and enforce UIC programs in
listed States if the State chooses not
to participate or does not develop and
operate an approvable program.
Several points are worth noting about the
statutory mandate. First, the SDWA was
intended to head off what Congress perceived
as an emerging problem. The cmmittee report
accompanying the Act (H. Rept. 93—1185, p. 32)
makes clear that no burden is laid on EPA or
the State to prove actual contamination before
establishing regulations or enforcing them.
Second, UIC is clearly to remain a State
program. States are expected to assume
primary responsibility for fashioning and
operating effective programs in their States.
Federal facilities are subject to applicable
State programs. EPA is required to step in
only if a State chooses not to participate in
the program or fails to administer its program
effectively. EPA also has direct
responsibility on Indian lands. Third,
Congress enjoined EPA to observe three
provisos in establishing regulations. The
regulations:
Are not to interfere with or impede
oil and gas production unless
necessary to protect underground
sources of drinking water.
Are not to disrupt effective existing
State programs unnecessarily.
Are to take local variations in
geology, hydrology and history into
account.
Background of the Reproposed Regulations
EPA proposed a set of UIC Legulations for
public comment on August 31, 1976 (41 Federal
Register 36730). Almost 500 comments e
received from the public and other in sted
-------
pdrties. In response to the many helpful
suggestions, EPA undertook an extensive effort
to acquire additional information on the
practice and economics of well injection.
During this period, Congress amended the
Act (P.1.. 95—190, November 16, 1977) and added
several new requirements. Moreover, EPA
decided to consolidate the procedural
requirements for several of its major permit
programs, including the UIC program; the
Hazardous Waste Management (HWM) program under
the Resource Conservation and Recovery Act
(RCRA); and the National Pollutant Discharge
Elimination System (NPDES) or Dredge and Fill
program ‘under the Clean Water Act (CWA).
Thus, public canments, further study,
amended legislation and internal management
improvements are the principal foundations of
the revised UIC program proposals.
II. MAJOR CONCEPTS OF THE UNDERGROUND
INJECTION CONTROL PROGRAM
Congress intended the UIC program to
protect not only the ground water which
already serves as a source of drinking water
but also the ground water that could
potentially serve as a source of drinking
water in the future. The regulations propose,
therefore, that all aquifers or portions of
aquifers (See Figure 1 for a definition of the
more important technical terms) currently
serving as drinking water sources be
designated for protection. Furthermore, any
other aquifer or portion of it which is
capable of yielding water containing 10,000 or
fewer milligrams per liter of total dissolved
solids should also be designated. However,
not all underground water sources are suitabre
for providing drinking water. Some aquifers
are used for producing minerals, oil and gas,
or geothermal energy. Others are so
contaminated or located in such a manner that
recovery of water for drinking purposes is
neither econanically practical nor
technologically feasible. Such sources need
not be designated unless they already serve as
sources of drinking water.
PIGUR! I
Significant Teres Used in the
UIC Program Regulations
Aquifer — any geologic formation which is
capable of yielding usable quantities of
ground water.
Well injection — the emplacement of
fluids into the ground (except drilling muds
and similar materials used in well
construction) through a bored, drilled,
driven or dug well.
Fluids — materials or substances which
flow or move, whether semi—solid, liquid,
sludge, or any other for. or state.
Mechanical integrity — a general standard
for injection wells which signifies that
there is no: (1) significent leakage in the
well’s casing, tubing or packeri and (2)
significant movement of fluids between the
outermost casing and the well bore.
Migration of fluids — the movement of
fluids from the well or the injection zone
into underground sources of drinking water.
1
Area of review — the area on the surface
surrounding an injection well within which
all wells that penetrate the injection zone
must be reviewed and, if necessary, repaired.
It may be defined in terms of a fixed radius
of not less than 1/4 mile from the injection
well. Alternatively, the area of review may
be computed by the use of a mathematical
formula which predicts the lateral distance
over which the incremental pressure generated
by the injection may cause the upward
migration of fluids from the injection zone
through faults, improperly abandoned welli,
or improperly completed producing wells.
-------
Potential Pathways of Contamination
Pathway — Faulty Well Construction
The basic concept of the proposed UIC
program is to prevent the contamination of
underground sources of drinking water by
keeping injected fluids within the well and in
the intended injection zone. There are five
major ways in which injection practices can
cause fluids to migrate into underground
drinking water sources. The following
discussion describes each pathway and
summarizes the technical requirements proposed
in the regulations to prevent migration
through that pathway.
Leaks through the well casing or fluid
forced back up between the well’s outer casing
and the well bore, as illustrated in Figure 2.
Preventive Requirements
The regulations require adequate casing to
protect drinking water sources, and cementing
to isolate the injection zone. The absence of
significant leaks and fluid movement in the
well bore must be demonstrated initially and
every five years thereafter.
FIGURE 2
FAULTY WELL CONSTRUCTION
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Pathway — Nearby Wells
Pathway— !aulty or Fractured
Fluids from the pressurized area in the
injection zone may be forced upward through
nearby wells that penetrate the zone of
endangering influence, as illustrated in
Figure 3.
Preventive Requirement
Wells that penetrate the injection zone in
the zone of endangering influence must be
reviewed to assure that they are properly
comple ed or plugged. Corrective action must
be taken if they are not completed or plugged
to prevent fluid migration. Newly abandoned
wells must be plugged to conform with EPA or
State procedures.
Confining Strata
Fluids may be forced upward out of the
pressurized area through faults or fractures
in the confining beds, as illustrated in
Figure 4.
Preventive Requirements
Wells must generally be sited so that they
inject below a confining bed that is free of
known open faults or fractures. Injection
pressure must be controlled so that fractures
are not propagated in th injection zone or
initiated in the confining bed.
FIGURE 4
FAULTY OR FRACTURED CONFINING STRATA
FIGURE 3
- NEARBY WELLS
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Pathway — Direct Injection
Pathway — Lateral Displacement
Wells may be designed to inject into or
above underground sources of drinking water,
as illustrated in Figure 5.
Preventive Requirement
Wells injecting hazardous materials into
or above underground sources of drinking water
would be illegal: new ones would be
prohibited, and old ones are to be phased out
in three years. Wells that inject
non—haz rdous materials will be regulated in
the future based on recommendations to be
formulated by the States.
Fluid may be displaced from the injection
zone into hydraulically connected underground
sources of drinking water, as illustrated in
Figure 6.
Preventive Requirement
The proximity of injection wells to
underground sources of drinking water will be
considered in future siting of such wells.
Well operators will be required to control
injection pressure and conduct other
monitoring activities to prevent the lateral
migration of fluids illustrated in Figure 6.
FIGURE 5
LAND SURFACE
FIGURE 6
UNDERGROUND SOURCE
OF DRINKING WATER
I,,,,
If/f
fill
LATERAL DISPLACEMENT
DIRECT INJECTION
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PICURI e
Requirements for Injection Well Classes
To implement its proposed technological
controls, EPA categorized well injection
activities into five classes defined in Figure
7. Each class includes wells with similar
functions and construction and operating
features so that technical requirements can be
applied consistently to the class. A brief
summary of the general underground injection
controls proposed for each class are
highlighted in Figure 8.
Requirements for Class I
Class I wells are likely to inject
potentially dangerous fluids, and will,
therefore, have to meet strict construction
and operating requirements.
Class I wells must inject into strata tha
are below the deepest underground source of
drinking water and must have an adequate
confining layer above the injection zone. Al
Class I wells must be cased and cemented to
prevent fluid migration and must inject
through tubing with a suitable packer set
immediately above the injection zone (or an
equivalent alternative).
Technical integrity must be demonstrated
initially and every five years thereafter, anc
corrective action must be taken on improperly
plugged or completed wells within the area of
review.
TEPE OP CONTROLS APPLICABLE TO ISJ PION WELl. CLASSES
I.
TYPE OF CONTROL
CLASS I
CLASS II
CLASS III
CLASS IV
CLAN
ARIA OP REVIEW
Tea
New Wells
Tee
N/A
No
IIECHANICAL INTEGRITY
REQUIREMENTS
lea
The
.
Tea
N/A
No
CONSTRUCTION
REQUIREMENTS
Strict
Flexible
Roderate
Banned
To
Deft,.
MONITORING
Contin—
uOuS
Periodic
Conttn-
uou S
Varied
To t
DeE in
RZPØI Ir!NG
Quarterly
Annual
Quarterly
Quarterly
N/A
PORN OP R IJLATION
By
Permit
By Rule or
Permit
By
Permit
By
Rule
By
Rule
FIGURE 7
FIVE CLASSES OF INJECTION WELLS
Class I veils are those used to inject
Industrial, nuclear, and municipal
wastes beneath the deepest stratum
containing an underground drinking
water source.
Class XI wells are used to dispose of
fluids which are brought to the
surface in connection with oil and gas
production, to inject fluids for the
enhanced recovery of oil or gas, or to
store hydrocarbons.
• Class III wells are those used to
inject fluids for the solution mining
of minerals, for in situ gasification
of oil shale and coal, and to recover
geotheEmal energy.
• Class IV wells are those used by
generators of hazardous wastes or by
owners and operators of hazardous
waste management facilities to inject
into or above strata that contain
underground drinking water sources.
• Class V veils include all wells not
incorporated in Classes x—iv. Typical
examples of SUch wells are recharge
wells and air conditioning return flow
wells.
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Class I well operators are required to
monitor continuously and measure volumes, as
well as annular pressures. Class I operators
must also test the composition of injected
fluids periodically and provide the permitting
authority with quarterly operating reports.
Requirements for Class II
Requirements for Class II wells (those
injection wells associated with oil and gas
production) have been fashioned in light of
the congressional injunction that the UIC
regulations are not to interfere with or
impede oil and gas production unless necessary
to protect underground drinking water sources.
These proposed regulations attempt to
balance measures necessary for the protection
of the environment against burdens imposed on
the regulated community.
Class II injection wells are tO have
casing and cementing adequate to protect
underground sources of drinking water.
However, wells in existing injection fields
need only meet the standards historically
applicable to that field. All Class II wells
will also have to demonstrate mechanical
integrity initially and every five years
thereafter. However, only the applicants for
new Class II permits must review nearby wells
in the area of review and take corrective
action on those improperly completed or
plugged.
Operators of Class II wells are subject to
limitations on the pressure and rate of
injection. They must also monitor the
injection pressure and volume, and the quality
of the in -—tjon fluids at intervals depending
on the t: )f operation. Annual reports to
the contt authority would be required.
Class II wells would also besubject to a
special requirement. After the first full
year of program operation, the requirements
for Class II, especially those for area of
review and mechanical integrity, will be
reviewed to assess their appropriateness.
Requirements for Class III
Construction, monitoring, and reporting
requirements for these wells will resemble
those for Class I wells. Class III wells must
be cased and cemented to prevent fluid
migration. All Class III wells must comply
with area of review requirements and
demonstrate mechanical integrity. Class III
wells will havethe same monitoring
requirements as Class I wells, except that
more frequent monitoring will be required of
drinking water supply wells adjacent to the
injection sites. The Agency has considered
easing requirements for some Class III wells
(e.g., Frasch process wells). The Preamble to
proposed Part 146 discusses these in detail.
Requirements for Class IV
Existing Class IV wells used by generators
of hazardous waste and operators of hazardous
waste management facilities will be closed as
soon as possible, but in no event later than
three years from the effective date of the
program. No new Class IV wells will be
authorized or pemitted. EPA considers these
wells to be a significant danger to
underground drinking water sources.
Operators of Class IV wells will be
required to mpnitor injected fluid
characteristics and volumes, as required for
hazardous wastes under the Resource
Conservation and Recovery Act. Week
monitoring of the impact of injectioi. on
drinking water supply wells will also be
-------
necessary. Class IV well operators must
submit quarterly reports of operating results
and immediate reports of changes in the
characteristics of water supply wells in the
vicinity of Class IV wells.
Requirements for Class V
At present EPA has too little information
on the extent, operation, and impact of Class
V wells to propose a suitable regulatory
approach. The proposed regulation, therefore,
would require States to conduct an assessment
of such yells and submit recanmendations to
EPA within two years. Specific regulatory
requirements will be fashioned after the
canpietion of the assessments.
In the meanwhile, States are required to
take immediate action on any Class V well that
poses a significant risk to human health.
The Cost Impact on Industry and Government
Over the first five years of the program,
total costs of compliance are expected to be
$808 million, of this, $772.5 million will
fall on well owners/operators, and $35.3 on
States. On the average, these costs will be
$154.5 million for well owners/operators and
$7 million for States each year in the first
five years.
Some costs (e.g., repair of a leaky well)
will only have to be incurred once.
Non—recurring costs total $677.5 million or
$135.5 million annually. Other activities
will have to be performed repeatedly (e.g.,
monitoring nd reporting). Recurring costs
total $130.3 million or $26 million annually.
It is important to note that the cost
estimates are largely driven by the size of
the environmental problem, i.e., the number of
faulty wells. These costs estimate that about
$601 million or $120 million annually will
have to be spent to take corrective action on
an estimated 21,000 wells. If the number of
faulty wells turns out to be higher or lower,
the costs will vary as well.
Only $207 million over five years or $41
million annually represent “fixed”costs ——
the costs of permitting, monitoring, reporting
and enforcing.
Class 1
Class II
Clase III
Class IV
2.300
642.770
2,851
6,000
290
3,8202
520
114,000
2 .590
646,590
3,371
120,000
Subtotal
653,921
111,630
772,551
Class I
Class II
Class III
Class IV
Class V
870
12,097
509
2.900
7.200
4,075
6,4912
1,150
——
—
4,945
18.5882
1,659
2,900
7.200
Subtotal
23,576
11,716
35,292
IVTAL
677.497
130,346
807,843
FIGURE 9
SU)UIARY OF FIVE—YEAR INCREMENTAL STS or uzc EmULATION 1
(thousands of 1977 dollars)
Non—recurring Recurring
Industry
State
Total
1 Numbers show eaxirium of ranges for all but Class II wells.
2 Include. reporting Costs for hydrocarbon storag, walls.
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III. Permits and Rules — Tools for
Regulation
Under the Act, EPA has the discretion to
specify whether the minimum national
requirements are to be applied, through rules
or permits. a rule is a law, ordinance or
regulation that sets forth the standards and
conditions under which an activity may be
conducted. A permit is a specific
authorization to an individual to carry on an
activity under the conditions and limitations
specified in the permit.
Each method of control is appropriate in
certain situations. Although the
requirements imposed are equally enforceable
under either method, permits are generally
considered to make possible a greater degree
of control. On the other hand, permits are
more resource and time intensive since they
require: (1) the individual to file an
application containing information about his
proposed activity; (2) the effective
participation of the public in the review
process; and (3) State or EPA personnel to
review, write and process each permit.
In the UIC program EPA proposes to
specify the use of permits, permanent rules
and temporary rules in different situations.
These are minimum requirements and States may
choose to adopt stricter standards.
Who Must Obtain a Permit
Owners/operators of Class I, Class II
(except existing enhanced recovery and
existing hydrocarbon storage), and Class III
wells must obtain a permit to inject. New
wells (those that begin to inject after the
effective date of a program in a State) must
be authorized by a permit before injection
may bec For existing wells, the
permitting authority (State Director or EPA)
will develop a schedule not to exceed five
years, based on appropriate priorities, f or
issuing or reissuing the permits. Until the
application of the owner/operator of an
existing well has been processed, the
injection may be authorized by a rule.
A permit may be sought either for an
individual well or for a group of wells in an
area. An area permit may be issued for a
group of wells if they are:
Under the control of a single
individual.
Within a single field, project or site
within a State.
. Of the same type and construction.
Injecting into the same aquifer or
zone.
Under an area permit, additional wells that
meet the above criteria may be authorized
administratively by the permitting authority.
Who May Be Authorized By Rule
Class II existing enhanced recovery and
existing hydrocarbon storage wells, may be
authorized by rule for the remaining life of
the well. New Class IV wells are banned.
Existing ones may be authorized by rule until
they are closed but in no case for more than
three years after the effective date of the
program. Class V wells may be authorized by
rule until such a time as further regulations
issued by EPA become effective. All of these
rules must apply the requirements specified
for the appropriate well Class in the UIC
regulations.
-------
As mentioned above, owners/operators of
existing wells waiting to file their
applications and have them processed may be
authorized to inject by rule in the interim.
Such rules must incorporate the appropriate
monitoring, reporting and abandonment
requirements for each well class.
Finally, in the case of imminent and
substantial hazard to human health or the
environment, or if substantial and
irretrievable loss of oil and gas resources
will occur, injection not otherwise
authorized may be desirable. In such cases,
a temporary authorization to inject may be
granted administratively, subject to certain
limitations.
Basic Permit Requirements
UIC permits may be issued for the life of
the well. However, each permit must be
reviewed at least every five years for
possible modification or revocation. In
addition, if a facility holds multiple
permits under more than one EPA—administered
program, all permits must be reviewed
whenever any permit is changed, revoked or
reissued.
Each permit must be enforceable in the
jurisdiction in which it is issued. It must
specify construction, abandonment, operating,
monitoring and reporting requirements
appropriate to the well class (see Section II
above). In addition, permits must
incorporate appropriate compliance schedules
if any corrective action is to be taken by
the well owner/operator. Finally, permits
must recognize the right of the permitting
authority to have access to the well and the
related records to assure compliance with
permit terms.
How To Obtain a Permit
Applications for new injection wells
should be filed in time to allow for the
review and issuance of the permit prior to
operation. Applications for existing wells
will be filed according to the schedule
established in each State, but in no case
later than four years after the effective
date of the program. Permit applications
must be signed by a policy level officer of
the company except in the case of Class II
wells where applications may be made by
individuals authorized by their companies in
writing to do so. Applications must contain
a statement that the signing official has
satisfied himself that the information
provided is correct.
The information that must be available to
the permitting authority is specified for
each well class in Part 146. Generally, such
information should include the surface and
subterranean features of the injection area,
the location of underground sources of
drinking water in the vicinity, the results
of tests in the proposed injection formation,
construction features of the well, and the
nature of the proposed injection operation.
To the extent that such information is
already available to the permitting authority
(e.g., in the case of a well already under a
State license), in an accessible and accurate
form, it need not be submitted again.
The review of a permit application begins
with the receipt of a complete application by
the permitting authority. The permitting
authority considers the application, gathers
such additional information as it needs, and
prepares a draft permit. The draft permit
must be presented for public comment for at
least 30 days with a fact sheet that provides
enough information that the public can make
c
-------
informed judgments about the proposed action.
If there is sufficient interest, a public
hearing should be held and announced at least
30 days in advance.
Public comments must be taken into
account in preparing the final permit, and
the permitting authority must prepare a
summary of the comments and its disposition
of them. A final permit is then prepared and
issued. Figure 10 presents a schematic
summary of the process.
Where EPA is the permitting authority,
certain other requirements must be met.
First, EPA must prepare an administrative
record that documents its decision making for
both the draft and final permit. Second, if
sufficient interest is expressed, EPA may,
after a public hearing, hold a further
hearing with an opportunity for cross
examination. Third, if sufficient new
information becomes available during the
public comment period, EPA may prepare a
revised draft permit and solicit further
public comment. Finally, a final EPA permit
does not become effective for 30 days after
it is issued. During that time, a permit may
be appealed. Appeals will be considered in
an established EPA process. Where the State
is the permitting authority, State law will
govern the appeal process.
It is estimated that a State could
process a straightforward permit in about 60
days. A controversial permit issued by EPA
could take well over a year.
PIGURE 10
TEll UIC PIRMIT PROCESS
Prepare and Submit
P rnit Application
Well Operator
1
PubliC Coeo entS. I
liearln TranscriPtsJ
State or EPA
.1
keview and Analyze
Permit Application
State or EPA
1 .
Prepare Final permit.
Respond to Cornients
Action
Required:
Action by:
,
/
/
I lJtte
Draft.
Reopen
Coiitiient
I Period
State or (PA
.1
Issue Final Permit
Prepare Oraft Permit
and Fact Sheet
State or EPA
‘I ,
F Give Public Motice oU
] Draft Permit,
71l Solicit Comments —
State or EPA
1
State or EPA —
1
rriiiir aT 1
Adainistrative Record I
_ (EPA Process Only )
L
Appeal Decision
(EPA Process Only)
Give Public Notice of
HearingS Wold Hearings
State or EPA
FEnd I
I State I
I Proc e!
FEnd
I EPA
Ii ocess
“I
ill
hIil trot -Exam Hearings
If Required
_ JEPA Process Only) —
EPA
Interested Party
Rule on Appeal
((PA Process Only)
— EPA Mministrator
23
-------
IV. State Participation in the UIC Program
LJIC programs must be established in each
State listed by the Administrator as needing
a program. To date, 40 States have been
listed. It is expected that the remaining
States and jurisdictions will be listed by
May 1980.
The Safe Drinking Water Act clearly
intends the States to have the primary
responsibility for developing and
implemez ting UIC programs. In fashioning
these regulations, EPA has attempted to
minimize the disruption of existing effective
State programs and to encourage States to
assume primary responsibility (primacy).
States have the authority to regulate
well injection at Federal facilities.
Injection on Indian lands, however, remains a
Federal responsibility.
After these regulations becqme final or
after a State has been listed by the
Administrator, the State has 270 days to
develop a program and apply to EPA for
approval. This period may be extended by 270
days for good cause.
Elements of An Approvable State Program
To qualify for EPA approval, a State
program must, first of all, be based on State
law adequate to implement and enforce the
program. Furthermore, while a State program
may be stricter, it should at least
incorporate the minimum requirements
established in proposed 40 CFR 123
regulations for authorization of wells,
permit issuance processes, and requirements
for construction, abandonment, operation,
monitoring and reporting. State programs
must also contain enforcement mechanisms,
more specifically: Cl) procedures for
inspection and surveillance of authorized
facilities; (2) authority to seek injunctive
relief and to assess civil and criminal
fines; and (3) authority to assess maximum
civil and criminal fines in amounts the same
as Federal maximums. Finally, States must
demonstrate the commitment of resources to
carry out the program.
A State need not develop a regulatory
program for a type of injection well that
does not exist in that State. However, it
must, in such cases, adopt a rule to regulate
that type of well to preclude the possibility
of unregulated injection should such wells
seek to operate in the State in the future.
Content of the State Application
In general, the State must submit a
reasonably complete description of the scope,
structure, and procedures of its proposed
program. Formally, the submission should
contain the following five elements:
• A letter from the Governor requesting
approval.
• A statement from the State Attorney
General demonstrating that the State
has the necessary legal authorities.
• A full description of the program
including:
— the proposed organization,
staffing and financing for the
program;
— the designation of underground
sources of drinking water;
— initial inventories of wells
-------
— plans and procedures for
regulating by permic or rule;
— a phased priority plan for
reissuing permits to existing
wells; and
— plans for implementing Class IV
and V requirements.
• Copies of the relevant State
regulations, statutes, and program
forms.
• A memorandum of agreement between the
State and EPA which details the
respective rights and responsibilities
(e.g., Federal oversight) in
implementing a State UIC program.
The Approval Process
The Act specifies that a State is to
submit its application to EPA after a public
hearing and comments. EPA is given 90 days
from the receipt of a complete application to
approve or disapprove the program.
These regulations propose to reserve the
approval of a State program for the
Administrator. Approval of subsequent
program modifications may be delegated to
Regional Administrators in the future. In
its review of a State application, EPA will
provide the opportunity for public hearing
and comment. The process is similar to the
one outlined for the review of permit
applications.
If EPA approves the State program, th
State has primary enforcement responsibility,
(primacy), and EPA’s role will be to exercise
an appr”oriate level of oversight.
If a listed State fails to suomit an
application, of if the application is
disapproved, or if the State subsequently
fails to enforce its program adequately, EPA
must promulgate the UIC program for that
State and assume primary enforcement
responsibility for enforcing it.
Under the Act, E ’A may approve a State
program in part. At present, the Agency’s
intention is to approve only a complete
program by type of well. In other words, EPA
would authorize a State to regulate, for
example, Frasch process wells. However, the
Agency does not intend to approve a State
program if it provides only for partial
regulation, i.e., if it provided for issuing
permits for Frasch process wells but left the
enforcement of the permits to EPA. A State
with partial approval would not have primacy
for the UIC program and would not be eligible
for UIC program grants.
To assist the States in developing and
implementing UIC programs, EPA is authorized
to make grants to States with primacy.
States working toward primacy are also
eligible for grants, but must obtain primacy
within two years of the first grant to remain
eligible. There are $6.0 million available
in FY 1979 and $7.6 million in FY 1980.
V. About Public Comments and Participation
in Hearings
To Make Comments
EPA welcomes public comments on the
proposed UIC program and the Part 146
regulations. Please forward them by August
20, 1979, to:
-------
Comment Clerk — UIC Program Regulations
Office of Drinking Water (WH—550)
U.S. Environmental protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Interested parties may present their
views during the public hearings on these
regulations. EPA has scheduled joint
informal public hearings on 40 CFR 146 (the
technical standards and criteria for the UIC
program), 40 CFR Parts 122, 123 and 124 (the
consolidated permit regulations), and the
consolidated permit application form.
The public hearings will be held in
Dallas, Texas; Washington, D.C.; Chicago,
Illinois, Seattle, Washington, and Denver,
Colorado over a three—day period in each
location, starting at 8:30 a.m.
Persons desiring to make oral statements
on the consolidated regulations during the
hearings should contact:
Ms. Judith Shaffer
Office of Water Enforcement (EN—336)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Persons desiring to make oral statements
on the proposed UIC program technical
criteria and standards (40 CFR Part 146)
should mail requests to:
Ms. Sharon Gascon
Office of Drinking Water (WH—550)
U.S. Environmental protection Agency
401 M Street, S.W.
Washington, D.C. 20460
EPA — Region X
1200 6th Avenue
Seattle, Washington
About public Hearings
Schedule of Hearings
Date
(1979)
Topic Location
July 16
UIC Program
Regulations
Northpark Inn
9300 North Central Expressway
July 17*
and 18
Consolidated
Regulations
Dallas, Texas
j
July 23
UIC Program
Regulations
HEW Auditorium
330 Independence Avenue, S.W.
Washington, D.C.
July 24*
and 25
Consolidated
Regulations
July 26*
UIC program
Regulations
Water Tower Hyatt
800 North Michigan Avenue
Chicago, Illinois
July 27
Consolidated
and 28
Regulations
July 30
UIC Program
Regulations
July 31*
and
August 1
Consolidated
Regulations
;
August 28
UIC Program
Regulations
U.S. Post Office Auditorium
Roan 269
1823 Stout Street
.
August 29
and 30
Consolidated
Regulations
Denver, Colorado
* fln theqQ g.g fl4Y .1 ,.1.’. I ’
-------
5
-------
Thursday
June 14, 1979
Environmental
Protection Agency
Part U
Proposed Consolidated Permit
Regulations
-------
34244
hleral Register / Vol. 44, No. 116 I Thursday. June 14, 1979 f Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
(40 CFR Parts 122, 123, 124)
(FRI. 1225-13
Consolidated Permit Regulations:
RCRA Hazardous Waste; SDWA
Underground injection Control; CAA
Prevention of Significant
Deterioration; CWA National Pollutant
Discharge Elimination System; and
SectIon 404 Dredge or Fill Programs
AaENCY Environmental Protection
Agency.
ACTION: Proposed nile.
suMuARr. This rule establishes
consolidated permit program
requirements governing the Hazardous
Waste Management program under the
Resource Conservation and Recovery
Act (RCRA), the Underground Injection
Control (UICJ permit program under the
Safe Drinking Water Act (SDWA), the
National Pollutant Discharge
Elimination System (NPDES) under the
Clean Water Act (CWA), and the
Prevention of Significant Deterioration
(PSD) program under the Clean Air Act.
for three primary purposes:
(1) To consolidate program
requirements for the RCRA and SDWA
programs with those already established
for the NPDES program.
(2) To establish, for the first time,
requirements for State programs under
the RCRA, UIC and Section 404
programs.
(3) To consolidate permit Issuance
procedures for EPA-issued Prevention of
Significant Deterioration permits under
the Clean Air Act with those for the
RCRA, UIC. NPDES and State 404
programs.
DATES: Comments must be received by
September 12. 1979.
Public hearings to discuss and to
receive comments on the proposed
Consolidated Permit regulations, the
proposed Underground Injection Control
regulotions (proposed at 44 FR 23738.
April 20, 1979) under the Safe Drinking
Water Act, and on the Consolidated
Permit Application Forms, will be held
In four cities, over three days In each
city. The meetings are scheduled for the
following places:
July 16, 17 . 18 1079, Dallas. Texas.
July 23, 24 , 25, 1979. Washington, DC.
July26 ‘.27, 28. 1979, Chicago, Illinois.
July 30, 31 ‘August 1. 1979. Seattle,
Washington.
ADDRESSES: Interested persons may -
participate in this proposed rulemaking
D I ) and .v.nm .euiou.
by submitting comments to Edward A.
Kramer (A—2) Permits Division (EN-338),
Office of Water Enforcement,
Environmental Protection Agency, 401 M
Street, SW., Washington. D.C. 20440.
Due to the length and complexity of the
regulations, all comments should be
organized by page and section number.
Because a number of program offices
will be Involved in the review of
comments received, EPA requests that
four copies of comments be submitted.
A copy of all comments received will be
available for review during normal
business hours at the Environmental
Protection Agency. Public Information
Reference Unit. Room 2922,401 M
Street. SW, Washington. DC 20460.
Four public hearings have been
scheduled at the following locations:
July18. 17 ‘, 181979. Northpark, Inn.
9300 North Central Expressway, Dallas,
Texas.
July23. 24 . 25,1979, HEW
AudItorium. 330 Independence Avenue.
S.W., Washington. DC.
July28 , 27, 28 1979, Water Tower
Hyatt. 800 North Michigan Avenue,
Chicago. Illinois.
July 30,31 ‘August 1, 1979, EPA—
Region X, 1200 6th Avenue, Seattle,
Washington.
The format for each of the hearings
will be the same. Each day In a series
will be devoted to a separate subject: -.
Day 1 will cover the proposed Part 148
UIC technical regulations, Day 2 and
Days will cover the proposed
consolidated regulations, the application
form, and proposed changes to the
NPDES permit program regulations on
application requirements. The evening
session will cover all subjects.
Following registration there will be a
short presentation by EPA officials
concerning the topic of that day’s
hearings, an opportunity for anyone In
the audience to make a statement, and a
question and answer session.
A court reporter will be present at
each of the public hearings. Official
transcripts will be available at cost.
Anyone requesting an evening session
or wishing to make an oral statement at
the Consolidated Permit Regulations
and Application Form hearings should
notify in writing, specifying the hearing
and the city in which they are
Interested: Ms. Judith Shaffer, Permits
Division (EN-336), U.S. Environmental
Protection Agency, 401 M Street. SW,
Washington, D.C. 20480.
Anyone wishing to make an oral
statement at the hearings on the UIC
regulations should notify in writing,
specifying the hearing and the city In
which they wish to make the atatement
Ms. Sharon Gascon. Office of Drinking
Water (WH-550), U.S. Environmental
Protection Agency, 401 M Street. SW.
Washington, D.C. 20480.
Pamphlets describing the proposed
regulations and tl eIr Impact on the
various programs are available from the
Environmental Protection Agency,
Public Information Center (PM—21 5), 401
M St., SW, Washington, DC 20480.
Please order by title and code.
• A Guide to New Regulations for
NPDES (C-i).
• A Guide to the Undergroufld
Injection Control Program (C-2).
• A Guide to Consolidated Permit
Programs (C-3).
• A Guide for States on Consolidated
Permit Programs (C-4).
• A Guide to the Hazardous Waste
Management Program (C-5).
• AGuldetotheDredgeorFlllPermlt
Program (C-8).
• A Guide to the Consolidated Permit
Application Form (C—7).
POR FUR’TNER INFORMATION CONTACI
Edward A. Kramer (A-2), Office of
Water Enforcement (EN-336), U.S.
Environmental Protection Agency,
Washington. D.C. 20480, (202) 755-0750.
SUPPt.EMENTARY INFORMATION:
Background
The proposed rules Integrate program
- descriptions. State program
requirements and procedures for
decision-snaking for four EPA regulatory
programs: (1) the Hazardous Waste
Management Program established under
the Resource Conservation and
Recovery Act (RCRA), (2) the
Underground Injection Control (UIC)
Program established under the Safe
Drinking Water Act (SDWA), and (3) the
National Pollutant Discharge
Elimination System (NPDES) and 404
(Dredge or Fill) program established
under the Clean Water Act (CWA). Also
consolidated are permit Issuance
procedures for EPA-issued Prevention of
Significant deterioration (PSD) permits
under the clean Air Act (CAA).
These proposed regulations we an
Important element of an Agency-wide
effort to consolidate and make uniform
procedures and requirements applicable
to EPA and State-administered
programs.
Work began In the early Fall of 1978
to consolidate permit program
regulations for one existing program—
the National Pollutant Discharge
Elimination System (NPDES) under the
Clean Water Act, and two new
programs—the Hazardous Waste
Management program under the
—Resource Conservation and Recovery
Act (RCRA) and the Underground
-------
Federal RegIster 1 Vol. 44. No. 116 / Thursday, June 14. 19?9 I Proposed Rules
34245
Injection Control MC) program under
the Safe Thinking Water Act. State
program requirements under the section
404 Dredge or Fill program of the Clean
Water Act were also included. In
October of 1978. the Administrator
established a Permits Consolidation
Task Force to examine the benefits,
costs and possible extent and range of
permit consolidation that could be
undertaken by EPA. The Task Force
completed its examination and
concluded In Iti Report to the
Administrator that consolidation of
permit activities could result in
significant benefits for the environment.
t) .regulated public and EPA. One of
the Task Force recommendations to the
Administrator was the continuation of
development of consolidated permit
program regulations, particularly
procedural regulations, for the RCRA
hazardous waste management. LJIC.
NPDES and 404 programs. The Task
Force also recommended that
procedures for issuance of Air PSD
pennits should be the same as those for
the four above programs, where
procedural requirements are shared.
These proposed regulations are the
first step in EPA’s effort to consolidate
permit programs. The proposal focuses
on consistency and unification, to the
extent possible. between RCRA. UIC.
and NPDES program definitions and
descriptions. State program
requirements and permit issuance
procedures. The proposed regulations
also consolidate State program
requirements under section 404 of CWA
(permits for discharges of dredged or fill
material), and EPA permit issuance
procedures for Air PSD program.
Draft consolidated application forms
are published with these proposed
regulations, so as to enable a more
complete review of EPA’s Permits
Cor solidated efforts. The Agency also
intends to move in the direction of
Issuing a single consolidated permit for
a facility that requirea multiple EPA
permits, which would cover all EPA
permit reqi irements for the facility.
As the first expression of this process,
the Agency has developed a single form
for applying for permits under the
Consolidated Permit regulations. This
form appears as a notice for public
comment In a separate part of today’s
Federal Register. The Consolidated
Application form consists of a single
part to collect general information from
all applicants, followed by separate
program-specific parts which cotlect
information needed to Issue permits
under each program. Today’s notice
includes the general information part
and parts for hazardous waste permits
under ROtA and for certain water
discharges under NPDES. The parts for
the other permit programs will be
developed in the near future, end will be
Inwq,orated Into the consolidated
application form when they are reedy.
A set of NPDES regulations Is also
being proposed today as part of the
Consolidated Application form package.
These proposed NPDES regulations,
which are closely tied to the proposed
application form. we numbered to
correspond with the Consolidated
Permit regulations and the two should
be read together. The preamble to the
proposed conformin* regulations
contains a detailed discussion of the
new NPDES application form
requirements and their place In the
entire NPD permitting process.
Although nothing In these regulations
would require States to undertake a
- reorganization of environmental
permitting functions. EPA encourages
States to begin or continue efforts
toward “one-stop” permitting, or other
forms of permit program conaoidaticm.
The Agency anticipates a number of
benefits to the environment, the
regulated community, the general public
and Its own Institutional efficiency In
the Permits Consolidation effort:
•Envfiviimentol Benefits:
Consolidation of procedures, regulations
and permit review functions should
result in more comprehensive
management and control of wastes or
residuals, and e)iniI, atlon of gaps in
managing these wastes.
• Regulotory Burifen Reduction: The
use of uniform procedures and program
requirements among EPA permit
programs should result In more
consistent and predictable requirements
for the regulated community, and should
reduce the costs of complying with
multiple program requirements. The use
of common program regulations, and
future use of a single application form
for EPA-Issued permits should reduce
the paperwork and increase efficiency In
processing permits.
• Institutional Benefits: The Agency
has already experienced greater
coordination, sharing of information,
and resolution of Inconsistencies and
overlaps among the various programs
during the development of these
proposed regulations. By October, 1979.
the Agnecy will be establishing
centralized permit-writing units in the
Regions.
• Public Participation Benef,ts
Procedures and opportunities for public
participation in permit program
decisions and in State program
approvals will became more uniform
and predictable under these regulations.
This should facilitate public
involvement In the implementation of
the RCRA. UIC, NPDES and 404
programs.
• Resource &nefits.’ EPA expects that
consolidation of permit programs should
result in some reduction In overall
Agency permitting resource needs over
the next few years, measured against
what the expanding scope of EPA permit
programs would otherwise require,
particularly as Implementation of the
RCRA and UIC programs begins and the
consolidated application form is utilized.
If States adopt similar approaches.
resource benefits could also be felt at
‘the State level.
Organization of Proposed Regulations
The proposed regulations will revise
40 CFR 122. 123 and 124. presently used
-for NPDES program regulations. These
Parts of the Code of Federal Regulations
are being used because they already
provide the skeleton for organizing
permit regulations. namely
Part 122—Program Descriptions
Part 123—State Program
Requirements.
Part 124—Procedures for Decision-
making.
To structure the proposed regulations
In an understandable format, parts 122,
123 and 124 have been organized Into
Subparts. Subpart A of each Part applies
to each permit program included in that
Part Subsequent Subparts set forth
program-specific requirements for the
Individual programs.
Although the Agency has attempted to
unify and consolidate these proposed
regulations, statutory and programmatic
considerations preclude complete
uniformity. Thus, to review the
regulations for a particular program, one
must read both the general subpart plus
the applicable specific subpart.
In adopting the proposed format. the
Agency considered various alternative
formats for combining requirements for
the covered programs. The Agency
solicits comments on the proposed
format and any alternative approaches
The Agency recognizes that these
regulations are long and complicated.
However, If each program were to
publish separate regulations, they would
be approxImately 40 percent larger in
total. This savings has resulted from the
formulation of generally applicable
requirements for all programs
Summary of Proposed Regulations
Proposed Part 122—Establishes
program definitions and basic program
requirements for the ROtA. UIC. NPDES
and 404 programs. Part 122 also provides
certain requirements for State programs,
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34246
Federal Register / Vol. 44, No. 116 I Thursday. June 14, 1979 I Proposed Rules
to the extent Part 123 explicitly
references Part 122 requirements. This
Part spells out In detail who must apply
for a permit what terms, conditions and
schedules of compliance must be
Incorporated Into permits; when and
bow monitoring and reporting of permit
compliance must be performed when
permits may be revised or reissued. and
other requirements.
Proposed Part 123—Establishes the
requirements for State programs. Each
of the programs described in Part 122
may be administered by any State. In
lieu of EPA, that has received the
approval of the Administrator. In
addition of the hazardous waste. UIC
and NPDES programs. Part 123 governs
State section 404 permit programs for
discharges of dredged or fill materiaL
After receiving the approval of the
Administrator a State may issue section
404 permIts. in lieu of the United States
Army Corps of Engineers, in so called
“Phase I I and II I ” waters (sometimes
referred to as traditionally non-
navigable waters). In addition, Part 123
contains the procedures for State
program approval, revision and
withdrawal.
Proposed Port 224—Establishes the
procedures to be followed in making
permit decisions under the RCRA
hazardous waste. U1C, PSE) and NPDES
permit programs, including procedures
to ei’.able public partcipation in permit
decisions, consultation with Stale and
Federal agencies, procedures for
consolidated review and Issuance of
two or more permits to the same facility
or activity, and mechanisms for appeal
from permit decisions. Most
requirements In Part 124 are only
applicable where EPA is the permit.
Issuing authority. Part 123 requires
States to comply with some of the Part
124 provisions, such as the public
participation aspects of permit Issuance.
Relationships Betwsen Programs
The programs covered in these
regulations overlap one another In two
different ways. The first type of overlap
occurs where different activities
associated with a single source require
permits under two or more of the
programs covered by these regulations.
For example, a facility may store
hazardous waste In surface facilities.
inject some of Its waste lab the ground.
and have a discharge of other waste into
surface waters. The basic reason for
proposing theie consolidated
regulations is to assure that permit
decisions are consistent, and that the
procedures (or permit Issuance are
efficient and coherent.
The second type of overlap occurs
where the same activity Is regulated
under two or more of the statutes
authorizing these regulations. For
example, disposal of hazardous waste
by well Injection must have a permit
under section 3005 (a) of RCRA, a permit
under section 1421(b) of SDWA and. If
located In a State with an approved
NPDES program, a permit under section
402(b)(IUD) of the CWA. The following
Is a discussion of the approaches the
Agency Is proposing In this second area:
UIC/NPDES—Under section
402(b)(1)(D) of the CWA approved State
NPDES programs are required to
“control the disposal of pollutants Into
wells.” The UIC program, likewise.
requires States to establish programs for
controlling well Injections. EPA believes
that these two requirements are
complementary and that a single permit
Issued by a State to a well Injector can
satisfy the requirements of both acts.
Although EPA has required NPDES
States to demonstrate the legal authority
to Issue permits for well disposal, it has
never specified how States should
exercise this authority. No technical
requirements have been established
under the NPDES program for well
disposal; States are merely required to
exercise their authority “to protect the
public health and welfare and to prevent
the pollution of ground and surface
waters.” EPA believes that the legal
authority possessed by NPDES States
can serve as the nucleus for
development of State UIC programs.
Therefore, In many Instances, these
States will be able to develop UJC
programs without any further action by
their State legislatures. Once a State
develops regulations and other program
components in accordance with UIC
regulations under Part 148 (proposed at
44 FR 2378 (April 20. 1970)). and receives
the approval of the Administrator under
Part 123, a State-Issued permit for well
Injection should satisfy both CWA and
SDWA requirements.
UIC/RCRA—The UIC program
Imposes requirements on all well
Injection, whIle the hazardous waite
program under RCRA Imposes
requirements on treatment, storage and
disposal of hazardous waste. When
materials which are hazardous wastes
for purpose, of the RCRA program are
injected into a well, that well falls
within the definition of a Hazardous
Waste Management Facility (HWM)
facility and, consequently, Is subject to
regulation under both programs.
To avoid any possible duplication and
Inconsistency In regulation, EPA
proposes to regulate hazardous waste
injection wells under the UIC program
because Ills specifically oriented
toward underground injection as a
technique of disposal EPA believes that
the degree of environmental protection
afforded by the tflC regulations meets
the requirements of RCRA. A has
taken several actions to assure that
hazardous waste is adequately covered
under the UIC program. In cases where
a site has both an injection well and
surface facilites that treat, store or
dispose of hazardous wastes, the
surface facilities will be subject to a
hazardous waste management program
perinlL The appropriate RCRA
requirements will be applied through
that mechanism. In cases where a-well
receives wastes accompanied by a
manifest, the UIC controls will apply
exclusively. Those controls, however,
will incorporate the RCRA requirements
for notification, manifest, recordkeeping
and reporting.
However, any pits, ponds, lagoons.
storage tanks or other surface facilities
associated with an injection well that
are used to treat of store hazardous
waste are still required to obtain a
RCRA permit For further discussion of
this approach, see the preamble to
Subpart B of Part 122 of these
regulations.
Another particular concern cf the
Agency was that the imposition of
controls over hazardous waste under
RCRA might make underground disposal
of such waste snore economically
attractive in States that were not yet
hated as requiring a U IC program. Under
the UIC program. State program
requirements are only triggered once a
State has been listed by EPA. EPA has
therefore decided to implement UIC
controls over well injections on the
same schedule as the RCRA hazardous
waste program. All the remaining
unlisted States will be listed by May of
1980 as needing a UIC program.
The U]C Program also proposes to ban
all Class IV wells (i.e.. wells owned or
operated by generators of hazardous
wastes or by hazardous waste
management facilities that Inject Into or
above underground sources of drialcing
water). Since the operators of these
wells are subject to RCRA requirements,
they will have to notify EPA under
section 3010 of RCRA, The Initial
inventory of Class IV wells will be
developed through the notification
process under RCRA.
NPDES/RCRA_Publiciy owned
treatment works(POTW) which receive
wastes defined as hazardous under the
RCRA program are also point sources
subject to the NPDES permit program of
secion 402 of the CWA. This creates the
possibility of duplicative regulation of
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34247
the same activity. In an effort to avoid
this result, EPA is proposing a “permit
by rule’ under the RCRA program for
publicly owned treatment works
(POTW) which receives hazardous
wastes and are regulated by the NPDES
program Under this proposal. POTW’s
would be “deemed to have.. permlr. for
purposes of RCRA if the facility has an
NPDES permit’ and if it adheres to the
notification requirements of sectIon 3010
of RCRA, as well as the manifest.-
recordkeeping and reporting
requirements of 40 CFR Part 250 under
sections 3001-3004 of RCRA. EPA
believe, that this approach
.accomphshes the protective goals of
RCRA in a way which eliminates much
of the administrative burden which
parallel regulation would cause. For
further discussion of this approach, see
the preamble to Subpart B of Part 122.
Applicability of NEPA to the
Consolidated Permit Programs
With the exception of EPA-issued
permits for new sources, none of the
permitting requirements under these
regulations is subject to requirements of
the National Environmental Policy Act
(NEPA). 43 U.S.C. section 4332(2)(E).
NPDES permits. other than for new
sources as defined in section 306 of
CWA. are removed from NEPA by the
terms of section 511(c) of CWA. That
section expressly exempts from NEPA
requirements all actions taken by the
Adrrunistrator pursuant to CWA, except
issuance of permits to new sources and
construction grants for publicly owned
treatment works PSD permits under the
CAA are similarly exempted by statute
from NEPA. See Energy Supply and
Environmental Coordination Act of 1974
section 4(c)(1). 15 U.S.C. 793(c)(1).
EPA permits for hazardous waste
facilities under RCRA are also not
subject to the formal requirements of
NEPA. The courts have recognized that
Federal regulatory action taken by an
agency with recognized environmental
e’cpertise. when circumscribed by
extensi’. e procedures. Including public
participation for evaluation
environmental issues, constitutes the
functional equivalent of NEPA’s
requirements. See Port/and Cement
Assoc. v. Ruckelshous, 488 F.2d 375
(D.C. Cir. 1973). cert. den., 417 U.S. 921
(1974): Maryland v. Train, 415 F. Supp.
166, 122 (D. MD. 1976). EPA has
determined that the procedures
regarding EPA’s issuance of RCRA
permits clearly satisfy that standard.
The Agency also anticipates that the
functional equivalence principle will
apply to EPA-issued U]C permits, end
that such permits are similarly exempt
from formal NEPA requirements.
Finally, NEPA requirements do not
apply to State-Issued permits. -
Chesapeake Boy Foundation, Inc. v.
United States, 453 F. Supp. 122 (E.D. Va.
1978).
The Agency believes that the
proposed regulations will have a
positive environmental impact by
providing more comprehensive
environmental review of facilities which
require EPA permits under the NPDES,
PSD, RCRA or LJIC permit programs,
‘particularly where two or more of these
permits may be required for the same
facility or activity. We believe that the
possible transfer of various programs to
State responsibility will not affect the
stringency of program administration.
The State programs must meet Federal
Standards In order to receive Federal
approval, and they will be subject to
Federal oversight While transfer of
aspects of the 404 program to the States
will eliminate the NEPA requirement for
some 404 permIts, it is unclear whether
this transfer will lead to narrowed
environmental review of the subject
activities, since States are free to adopt
a more stringent approach to regulation
and many States have their own EIS-
type requirements.
Previous Publication of Regulations for
RCRA. UIC. and NPDES Programs
Portions of these pr posed regulations
have appeared previously In the Federal
Register in either proposed or final form.
Comments on any prior proposal will
not automatically be considered part of
the record of this proposal. Commenters
should resubmit such comments as
comments on this proposal If they want
to make sure that EPA will consider
them.
RCRA Program: Under the RCRA
program, Guidelines for State
Hazardous Waste Programs were
proposed as Part IV of the Februaq 1,
1978, Federal Register (43 FR 4306).
These consolidated regulations contain
changes which reflect comments on the
February 1976, proposed guidelines.
Because the consolidated regulations
may surface Issues on which the public
has not had a chance to comment, the
consolidated regulations are a
reproposal of the RCRA Section 3006
guidelines.
ations for the UIC
program were origin ly proposed on
August 31, 1976, as CFR Part 146. In
us public comments,
EPA as made significant changes In the
regulations and has reproposed them for
further public comment (See 44 FR
23738 (April 20, 1979]). Many elements of
the UIC program are now being
proposed for inclusion in Parts 122,123
and 124, while the technical criteria and
standards by which the Director of an
EPA or State-administered UIC program
makes decisions continue to remain in
Part 148.
NPDES Program: Subparts D of the
proposed Parts 122 and 123. and
Subparts D, E and F of proposed Part
124 are virtually identical to each of the
contents of the NPDES Parts 122-124
which were recently promulgated. These
NPDES regulations were made final
after a comment period of 90 days
during which over 500 comments were
received. The comments were fully
considered by the Agency, and the final
NPDES regulations now occupy Parts
122—124. The consolidated permit
program regulations, when finally
promulgated, will Incorporate and take
the place of the final NPDES regulations
In Parts 122-124. There are some minor
changes to the Final NPDES regulations
which occurred in the process of
generali’ing requirements for all
programs in Subpart A. In addition.
there are several new provisions
applicable to the NPDES program, such
as procedures for the withdrawal of
State programs under Part 123. and new
permit modification and confidentiality
of Information provisions under Part 122.
These changes are highlighted in this
preamble discussion. -
Technical Requirements for RCRA, UIC,
and NPDES Programs
Technical requirements and criteria
which apply to decision-making under
these three programs have been
developed separately from Parts 122—
124. These regulation, set the standards
for the actual contents of permits under
the three programs and provide some of
the technical bases for determining the
adequacy of State programs and
Individual permit decisions.
RCRA Program: For the RCRA permit
program. Parts 122-124 should be read,
where appropriate, lii conjunction with
technical standards proposed under 40
CFR Part 250 on December 16,1978, (43
FR 58948-59028) under sections 3001,
3002 and 3004 of RCRA prescribing (1)
criteria for identifying and listing
hazardous wastes, Identification
methods, and a hazardous waste list. (2)
standards for generators of such waste
for recordkeeplng, labeling,
containerizing and using a manifest, and
(3) performance standards for hazardous
waste management facilities including
human health and environmental
protection levels and design and
operating standards as well as
recordkeeping. monitoring, reporting,
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contingency plans and training and
financial responsibility requirements.
These proposals together with those
under section 3003. (AprIl 26, 1978. FR
18506-18512). section 3005(40 CRF Parts
122 and 124). section 3006(40 CFR Part
123). section 3008 (August 4, 1978. FR
34738-34747), and section 3010 auly 11,
1978. FR 29906-29916) of RCRA and that
or the Department of Transportation
(May 25,1978. FR 22626-22634) under
the Hazardous Materials Transportation
Act constitute the hazardous waste
regulatory program under subtitle C of
RCRA
UIC Program: Technical criteria and
standards for underground Injection
Control Programs under the SDWA were
proposed as40 CFR Part 146. on April
20, 1979 (44 FR 23738).
M’DFS Program: NPDES criteria for
decision-making will be located in 40
CFR Part 125. which was recently
promulgated. in addition, effluent
guidelines used in setting permit effluent
limitations are located in 40 CFR
Subchapter N.
404 Program: Interim final guidelines
detailing the environmental concerns to
be considered In evaluation of section
404 Permit applications (I.e.. the section
404(bff 1) guidelines are set forth in 40
CFR Part 230 however revised
guideLnes will soon be proposed to
amend Part 230. Procedures under
section 404(c) for use of EPA’s authority
to prohibit or restrict disposal sites are
detailed in 40 CFR Part 231 and
regulations covering activities under
section ZJ8fb114) of CWA will be in 40
CFR Part 130.
Part 122
What does this Pail do’
Subpart A of Part 122 provides both
general and program-specific definitions
for the EPA administration of RCRA
hazardous waste, SDWA underground
Injection controL and CWA NPDES
programs. In addition, all Subparts of
Part 122 describe basic program
elements for the three programs,
Including application requirements.
standard permit concLtions, permittee
monitoring and reporting requirements
and other requirements. Both the general
Subpart (A) and the appropriate
individual Subpart (B-D) must be
consulted for a full description of any
program.
Certain of these requirements are
made applicable, as indicated In Part
123. to State programs which operate in
lieu of EPA programs after receiving
EPA approval. In the case of section 404.
State programs operate in lieu of the
Corps of Engineers program In so’called
“Phase II and III” waters.
Subpart A
The major elements of Part 122.
Subpart A are:
Program definitions (f 2223).
Definitions for the RCRA. UIC, NPDES
and 404 programs are set forth In f 122.3.
Definitions applicable to all programs
appear under “General Definitions,” and
those applicable only to a particular
perinl program are set forth separately.
Wherever possible, common
definitions have been provided for the
four programs. In some cases, where
different definitions must be employed
due to the differing statutofy
requirements. differences between
definItions for two or more programs are
highlighted. For Instance, the definitions
of “State” and “person” under the three
Acts are necessarilydifferent and are
highlighted In I th.3(a).
Both the RCRAand UIC programs
propose to use a similar definition of
“underground sources of drinking
water” or “undeigitiund drinking water
source’ (USDW). Any aquifer or ils
portion qualifies as an USDW I L
(1) It is currently in use as a source of
drinking water
(2) It produces water with fewer than
10,000 mg.i of total dissolved solids
(‘I’DS); or
(3) It is designated as an USDW by
the Administrator or State (as
appropriate)
Under the UIC program, however,
flexibility is granted in the application
of the definition to recognize those
situations where the aquifer or Its
portion may technically meet the
definition but In fact has no real
potential to serve as a drinking water
source. Therefore, in those instances
where the aquifer or Its portion does not
currently end will not in the future serve
as a source of drinking water, it need
not be designated If:
(i) It is mineral, oil or geothermal
energy producing
(ii) It is situated at a depth or location
which makes recovety of water for
drinking water purposes economically
or technologically impractical: or
(iii) It Is so contaminated that It would
be economically or technologically
impractical to render the water fit for
human consumption.
To balance the flexibility provided,
the LflC program will require the
designations of USDW’s lobe made
after public hearing and subject to
approval by the Administrator.
The RCRA program does not propose
a similar degree of flexibility In the
application of the definition. It is the
Agency’s judgment that where
hazardous wastes are concerned, a
stricter level of protection is prudent
Since little disceetion is available, the
HWM program also does not propose to
require public hearings or review by the
Administrator.
Both the NPDES and section 404
programs employ the concepts of best
management practices (BMP’s) and
general permits. Because of the
differences In the regulatory programs.
differing definitions are applicable to
these concepts (no definition of “general
permit” Is given for purposes of NPDES
although EPA is considering formulating
one). The public is invited to comth*aL
on whether it is appropriate to develop
unified defInitions for these concepts.
Signatories to permit progrwn forms
( I 1225). These regulations require that
permit applications, except those for
Class LI wells under the UIC program.
must be signed by a principal executive
officer of at least the level of vice-
president or equivalent official for
partnerships or public facilities. Permit
applications for Class II wells, reports
required under Part 222, and certain
requests for information forms may be
signed by a duly authorized
representative. Applications for permits
for Class 11 wells under the Underground
Injection Control program are
distinguished from other applications
due to the large numbers of small and
physically dispersed Class B wells
associated with oil and gas operations
involving the injection of fluids. All
signatories for permit program forms
must represent that they have made
sufficient inquiries to certify the truth of
any statements made In the forms.
Duration of Permits; Continuation of
Expiring Permits; Transferability of
Permits ( 1122.8). This section
establishes requirements for the
duration of RCRA, UIC. 404 and NPDES
permits, the continuation of expiring
EPA-issued permits, and requirements
that must be met by permittees who
transfer ownership of their facilities.
NPDES and section 404 permits are
required under the Clean Water Act to
have fixed terms not to exceed five
years. Neither RCRA nor the SDWA
establish specific permit terms for
hazardous waste or undei ound
injection control permits. SectIon 122.8
proposes that RCRA and UIC permits
may be issued with terms up to the life
of the permitted facility. A lifetime
permit was selected for these facilities
so as to enable them to obtain more
favorable financing, to avoid continuous
facility siting problems and to save
paperwork burdens on EPA or State
permit writers. NPDES and 404 permits
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34249
will continue to be issued for terms that
do not exceed five years. However, to
Insure a regular review of permits’
particularly where aRCRA, UIC, or 404
permit Is Issued to a fadlity or activity
that requires an NPDES pennit, review
of each permit Issued for a given facility
or activity Is required each time another
permit for the same facthty Is modified.
reissued or terminated. This review will
thus coincide with the NPDES
reissuance cycle and will be conducted
for purposes of considering whether
modification or revocation and
reissuance of any other permit(s) is
w rranted. These proposed periodic
reviews are mandatory on both EPA and
approved States.
After reviewing a permit, a decision
whether or not to modify the permit will
be made by the EPA Regional
Administrator or the State Director.
Reasons for modifying a permit would
Include new Information about human
health or environmental risks, changes
In the national standards, and changes
In the type or volume of hazardous
waste(s), injected fluids or pollutants.
Facility siting will not be considered at
the time of permit modification unless
new information or standards Indicate a
threat to human health or the
environment exists which was unknown
at the time of permit Issuance or unless
new data has been developed since the
time the permit was granted.
Regardless of whether another permit
expires or Is modified or terminated.
review of single U]C or RCRA permits
for a given facility Is required in any
event at least every five years and upon
public request where Information Is
submitted which Indicates that grounds
for permit modification exist
The Agency solicits public comment
on this approach to ensure -
comprehensive, regular review of
permits, In particular, the Agency
solicits comment on an alternative that
was considered and rejected during the
development of these regulations. Under
this alternative, where multiple permits
are required for a single activity or
facility, all permits would be set to
expire at the same time. Where only a
single permit under any program Is
required. It would be subject to review
and reissuance at the time that an
additional permit under another
program is required In the future. This
option would assure that a
comprehensive review of the permit(s)
from the standpoint of all programs is
accomplished concurrently and on a
regular basis. It would insure regular
review of multiple permit and public
participation during the Issuance!
reissuance process because of the built-
In expiration and reissuance of permits.
in addition, this option would enable
continuing EPA review of State-Issued
permits for the same facility or activity,
If the requirement ware made applicable
to States.
Review and Modification or
Revocation and Reissuance of Permits.
Section 122.9 covers both modification
and revocation and reissuance of
permits. These are alternative means of
accomplishing very similar results.
Either action can be chosen by the State
Director or the Regional Administrator
as a means of changing the terms of a
permit. If cause exists under 122.9(e).
In general, however, the Director would
choose to revoke an existing permit and
reissue a new permit when permit terms
and conditions are to be extensively
changed. or where the remaining term of
the existing permit Is short and It would
be to the advantage of the permittee to
obtain a new permit with a longer term.
This latter situation will Involve
primarily the shorter term NPDES and
404 permits, since most. If not all. UIC
and RCRA permits will be set for the life
of the facility.Addlilonal program.
specific provisions for modification of
NPDES permits are contained in Subpart
D. Most modifications under this section
require compliance wIth 11124.5 and
124.7, which require the Issuance of.
draft permit for permit modifications,.
thus Initiating the public review process
under Part 124. Such modifications are
processed in the same manner as
permits, except that public comment is
sought only on the proposed
modifications. However, certain minor
modifications under § 122.9(g) do not
require compliance wIth 124.5, unless
the modifications woulrrender the
permit less stringent or unless contested
by the permittee. These minor
modifications take effect Inunediately
when issued, and do not require the
preparation of a draft permit or public
notice and comment In addition,
Section 404 permit modifications will be
processed according to procedure. set
forth In Part 123. Subpart E.
Teiminotion of perrnita Section 122.10
specifies conditions under which
permits will be terminated for cause by
the permitting authority. While -
revocation and relssuance is a
mechanism for changing permit terms
and condition. in light of changed
conditions, termination Is essentially an
enforcement mechanism, The term
“termination”, as It Is used in Part 122,
Includes permit suspension or
revocation under section 3008 of RCRA.
Procedures for termination of RCRA
permits are provided in 40 CFR Part 22
(proposed 43 FR 34738 (August 4, 1978)).
Conditions applicable to all permits
( 122.1IJ SectIon 122.11 specIfies
general conditions applicable to all
permits under the RCRA. UIC. NPDFS
and 404 programs. Additional specific
conditions are also included in Subparts
B-D, unique to the individual permit
Schedules of Compliance. Section
122.12 specIfies requirements for
schedules of compliance leading to
expeditious compliance with program
requirements. For NPEJES permits. these
schedules of compliance lead the
permittee to compliance with the CWA a
statutory treatment deadline
requirements, as well as other program
requirements. For permits under the
RCRA. UIC and 404 programs, schedules
of compliance will be used to set
timetables for expeditious compliance
with program requirements. These
schedules are required, under proposed
* 122.12(a). to set interim compliance
dates where the total schedules exceed
nine months. Permittees are required to
provide written notice to the Director of
the permlttee’s compliance or
noncompliance with interim or final
requirements. For most EPA-Issued
permits this notice must be provided
withIn 14 days of each interim or final
date. However. UIC permits issued by
EPA will require such notice within 30
days. This variation In the notice
requirements for UIC permits results
from an effort to make the UIC program
requirements in these proposed
regulations consistent with those that
were proposed as Part 148 on April 20.
1979(44 FR 23738). However, EPA
requests comments on the most.
appropriate lime for providing such
notice, and whether the notice
requirements for all programs should be
the same.
In addition, proposed I 122.12 allows
approved State programs to choose
different intervals for Interim
compliance dates, and up to 30 days for
providing written notice following an
Interim or final compliance date.
Comments on this approach are also
solicited.
SectIon 122.12 also provides for two
alternate schedules of compliance in
cases where an EPA perinittee may
choose to terminate operations rather
than meet permit requirements. One
schedule reflects the dates for the
proposed termination of operations, and
the other reflects dates for compliance
with all permit requirements. Very
specific requirements for these alternate
schedules are proposed for NPDES
permits Issued by EPA. because NPDES
permits are subject to statutory deadline
requirements under the CWA, However.
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Federal Register! Vol. 44, No. 116 1 Thursday, June 14 1WS F Proposed Rules
because the UIC and RQ A proçems
are expected to encounter situations In
which alternate schedules will be
necessary to assist both the Regional
A.I n1 b’ator and the permittee In
making the desision to terminate
operations c i meet compliance.
alternate schedule provisions are also
provided for these programs. Cm,iinents
arc solicfted on the use of alternate
schedule. for the UIC sad RCRA
programs.
Reco,r1b g and Reporting of
Moailwir.g Results. SectIon 122.14
establishes general requirements
applicable to all periniltee. for the
recording and reporting of monitoring
results to the permitting authority.
Noncompliance Reportir4g (1 l22.15)
This section outlines the general
requirements for noncompliance
reporting that must be met by bothEPA
Regional o ces and approved States.
Reports are required on a quarterly
basis for malor permits under the three
programs. and on an annual basis for
minor permits. Additional or more
specific reporting requirements are
provided In Subparts 5 -0.
ConfidentzoJity of lnfomiatian
(f 122.16). This section provides for
claims of confidentiality by persons
submitting information to EPA under
these regulations. Such claims will be
processed In accordance with the
procedures eel out hi 40 CFR Part 2..
Paragraph (b) describes fonus.
documents and other materials will not
be given confidential treatment.
Relationship of Subpart A to the Final
NPDES Regulations. Part 2
Certain elements of the NPDES
program have been modified slightly in
Subpart A of Part 122, as a result of the
consolidation with the RCRA and UIC
programs. Among these changes are the
following:
Review and Modification or Revocation
andfleissuonce of Pennita(f 122.9)
— Under these proposed Consolidated
regulations. NPDES permits must be
reviewed to determine whether cause
exists for modification or revocation and
raissuance every time that another
permit for the same facility or activity Is
modified, revoked and reissued, or
terminated, and when Information is
presented to the Director Indicating that
cause exists far action under { 122.9Cc).
The final NPDES regulations did not
require this kind of review by the
Director. (See f 122.31 of the NPDES
regulations.)
Conditioier Applicable to all Permits
( 1122.11)
The standard conditions spelled anIta
o inn of the.. proposed consolidated
regulations are easy similar to those
contained In 122.14 of the final NPD
regulatlon* however, In certain ceses
the language has been adjusted to better
reflect all prcgrenis. Additional
conditions In f 122.68 unIquely
applicable to NPD permit. ale
Identical to their counterparts In the
final NPDES regulations. 0122.14.
Confidentiality of lnfarmolioar (I 12Z16)
The confidentiality of Information
section Is an expansion of provisions
contained in 1124.131 of the final
NP’DES regulations (Public Access to
Information), and Incorporates
references to the procedures of 40 CFR
Past 2, for processing claims for
confidential freatmeaL
Subpart B
Subpart So? Part 122 sets forth
specific requirements for Hazardous
Waste Management Programs to
supplement the general requirements of
Subpart A. This section will discuss
-those specific requirements after a brief
description of EPA ’. overall efforts to
implement Subtitle C of RCRA.
Subtitle C of RCRA creates a “cradle.
to g”ave” control system for the
management of hazardous waste
including appropriate monitoring,
recordkeeping and reporting. Section
3001 requires EPA to define criteria end
methods for Identifying and listing
hazardous wastes. Wastes which axe
Identified or listed as hazardous by
these means are then included In the
management control system established
under sections 3002 through 3000 and
3010. Those wastes which are not
Identified or listed wili be governed by
the requirements of Subtitle D of RCRA
for the management of municipal solid
waste.
Section 3002 ieqnlres EPA to define
the standards applicable to hazardous
Waste generators. SectIon 3002 also
requires establishment of s manifest
system to track hazardous wastes from
their generation to their ultimate
disposition Ins permitted treatment.
storage or disposal facility.
Section 3003 requires EPA to define
standards applicable to transporters of
hazardous wastes to Insure proper
management of hazardous wastes
during transportation. The Agency Is
exploring opportunities for integrating
this program with proposed and existing
Department of Transportation
regulations on the transportation of
hazardous materials.
Section 3004 requires EPA to develop
performance standards for the locatipn.
deszgn. construction and operation of
hazardous waste treatment. storage and
disposal facilities. Facilities, whether on
or off the site of hazardous waste
generation are covered by these
standards and are required to obtain
permits. Section 3004 standards
comprise the criteris against which
applications for permits will be
evaluated.
Section 3005 requIrements. as
proposed In Past 124 of these regulations
establish the procedures for obtaining a
permit to construct and/or operate a
hazardous waste treatment, storage or
disposal facility.
Section 3000 requires EPA to Issue
guidelines for State programs and
procedures by which States may seek
authorization to cany out the hazardous
waste program In lieu of the EPA-
ailininiatered program. Regulations to
Implement section 3005 are proposed In
Part 123.
Section 3010 regulations establish
procedures by which any person
generating or transporting hazardous
waste, or owning or operating a facility
for storage, treatment, sad/or dispose!
of hazardous waste, must notify EPA of
this activity wIthin 90 days of
promulgation of regulations defining a
hazardous waste (section 3001). Section
3010 provides that no hazardous waste
subject to Subtitle C regulation may be
transported, treated, stored or disposed,
unles, this notification I. timely given to
EPA.
Table I appearing below cross
reference. the numbered sections of
RCRA to the Subpart designations to be
used in the regulations:
Table I
Solid Waste Diapa.olAc1 (as amended)
Sobi i de CNumb.ring System
40 CF2 Part 250, Subpart A (proposed at 43
FR 5e.4&-5e96s (Dec.18. 1978)}—$octjon
3001 Standards for Qiterla, Identification.
and Listing of Hazardous Waste.
40 CER Part 250, Subpart B (proposed at 43
FR 589O9.-5 81 (Dec.11, 1I78))—Sectjon
3002 Standards Applicable to Generators.
40 CFR Part 250, Subpart C—(proposed . 143
FR 18506-18512 (April 2ff l978])—Section
3003 Standards Applicable to Transporters.
40 CER Part 250. Subpart D (proposed at 43
( 18. lO?B 1 1—Sec t ion
3004 Standards for Owners and Operators
of Treatment, Storage and Dlspesal
Facilities.
40 CFR Pail 122 and 124 Subparts A arid B—.
Section 3005 PermIts for Treatment, Storage
and Dispo,aI of Hazardous Waste.
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40 CFR Pail 125 Subpart. A and B—Section
3006 Gatdeliaes for Authorized Sets
Program..
40 ‘R Pail 250, Subpart G—(Fopo.ed 5143
FR 9OS-2O91O (July 11. 1078).-Seckoc
3010 PrelimInary Notification of Hazardous
Waste ActlvItlea. -
Applicotion for opennft ( 122.23)
The information requirements for a
RCRA Hazardous Waste Management
Facility permit will be divided Into two
parts (A and B). This approach is being
taken in eider to expedite and simplify
the permit issuing process so that
existing Facilities may comply with the
statutory requirement For attaining
“Literim” status (section 3005(e) of
RCRA). Additional discussion on this
approach is included later in this
Preamble. Section 122.23 of these
regulations specifies the information
that will be required In each part of the
application and is discussed briefly -
here.
The Agency is now preparing the
necessary forms that will be needed, as
part oF the effort to consolidate the
application forms for the RCRA, NPD
and UIC programs. These forms appear
as a notice for public comment
elsewhere in today’s Federal Register.
Part A of the application requirements
is reflected in two sections (Forms I and
3) of the consolidated application form.
These information requirements include;
submission of a U.S. Geological Survey
topographical map of the general area
where the facility is located; a
description of the hazardous waste
handled and a brief description of how
it will be handled; the annual quantity of
each hazardous waste handled and
copies of all available dr Wings and
specifications for the facility.
Part B of the application requires
submission of detailed data concerning
the geology, hydrology and engineering
aspects of the HWM facility. A master
plan including a detailed facility map
also must be submitted. In addition.
detailed information concerning such
factors as financial responsibility,
employee training. contingency plans,
operation plans and closure plans, and
plans for air and water monitoring must
be submitted in enough detail to allow
the permitting authority to determine if
the RCRA section 3004 standards are
met.
A separate application form will not
be ‘developed for Part B as part of the
Consolidated Application form due to
the detailed nature of the information
required. In supplying Form B
information, applicants must comply -
with the information requirement. of
this Subpart.
Existing facilities must submit Part A
within 180 days of the date of
promulgation of the regulations under
section 3001 of RCRA (40 CFR Part 250,
Subpart A). This requirement will be
satisfied by submitting Form I and Form
S of the Consolidated Application forms.
This Information will be used to
determine the priority for requesting the
submission of Part B for final
determination of the permit application.
For new facilities, both Part A and B
application requirements must be
submitted together, at least 190 days
before physical constructkm Is
scheduled to start.
Permilthti Requfrements- ’-Genero!
With some exceptions (discussed
later), any person who owns or operates
or proposes to own or operate a facility
for the treatment. storage or disposal of
hazardous wastes as identified or listed
in proposed 40 CFR 250, Subpart A. must
obtain a RCRA hazardous waste
management facility (“HWM facility”)
permit. Owners/operators of existing
HWM facilities must meet this
requirement by submitting Part A of the
application requirements within 180
days of promulgation of 40 CFR Part 250,
Subpart A and by submitting Part B and
the remainder of the required
information upon request of the
permitting authority. Owners/operators
of new I-fl ’JM facilities must submit both
parts of thE r!o metion requirements no
later than lâ c.ays before the scheduled
physical construction date for the
facility for which the permit Is sought.
Part A will provide the Director with
general information on the various
HWM facilities in his/her area. Part B
will furnish more detailed data
necessary to bring the permitting effort
to a conclusion.
EPA ii today proposing this two-part
application process with separate filing
dates for existing facilities for the
following reasons; First, the ready
information which Part A (Forms I and S
of the Consolidated Application Forms)
will supply (See 122.23(c)) will enable
the State Director or the Regional
Administrator to establish a system of
priority review for HWM permits. He or
she can review Part A form. to
determine which facilitie, warrant
prompt attention under 40 CFR Part 250,
Subpart D (Standards for Owners and
Operator. of Hazardous Waste
Treatment, Storage and Disposal
Facilities) and can then require an
earlier submission of Part B of these
applicants. Hence, permits could be
issued earlier to the facilities which are
in greatest need of regulation. Because
EPA expects that approxImately 3 00O
existing facility permits will have to be
issued, it foresees a 5 year period for
issuing all permits. Given this span of
time, EPA believes this attempt to Issue
permits on a priority basis to be the
most effective and efficient use of
limited resources.
Second, the immediate submission of
Part A which ihould not entail lengthy
preparation on the part of owners and
operators, will satisfy the “permit
application” requirement for obtaining
interim status under section 3005(e) of
R(ZA.. Third. a later submission of Part
B assures that the detailed information
upon which permit decisions will be
hosed is complete and current.
The owner/operator of an existing
HWM facility is required to submit Part
B of the permit application on the date
established by the Director. The Director
must give the owner/operator at least
six months notice of the date for
submission of Part B (I 122.23(a)(2)).
Submitting Part Ben time will assure
that a facility with interim status
maintains interim status during permit
review; conversely, failure to submit
Part Ben time will result in loss of
interim status. Part B of the permit
application, which must be signed by a
appropriate official 9 122.5). will not be
considered to be submitted until all of
the required information is supplied,
except that the Director may waive
submission of certain information upon
request as authorized in § 12z.23(d)(7).
With respect to determining which
permit applications will receive priority
review and action, the Director shall
consider several factors. These factors
include the amount and nature of the
hazardous waste handled by the fagilhty,
the apparent adequacy àf the facility’s
design and operation, aid the
environmental sensitivity of the
geographic area in which the facility to
be permitted Is located.
A permit application for a new H1 VM
facility must be submitted at least 180
days before the date on which physical
construction is expected to begin
9 122.25(b )). Actual time for processing
of applications and for issuing of
permits will vary depending on the -
degree of complexity and extent of
public participation involved. Since
physical construction of a new facility
cannot begin until a final permit has
been Issued, the burden is on the
applicant to submit an application far
enough in advance of the physical
construction date to enable the Director
to satisfy all of the review requirements
of the regulations and not jeopardize the
planned construction dates. Within 30
days of receipt of an application, the
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Federal RegiBter I Vol. 44, No. 116 1 Thursday, June 14. 1979 1 Proposed Rules
Director must determine whether the
application ii complete.
Establishing Permit Terms mid
Conditions
EPA is proposing to allow “minor”
modifications to existing permits Issued
under RCRA that may be appropriate
under limited circumstances, as stated
in f 122.24. at the discretion of the
Director. Thu limited modification shalt
only be granted Il: (1) the Director has
determined that a particular HWM
facility Is capable of handling the type
or volume of waste proposed in the
modification without violating any other
terms and conditions of the section 3004
standards of RCRA. and (2) the HWM
facility can demonstrate that It will
receive these proposed wastes in a
manner that cannot be anticipated
through contract provisions or by other
means available at the time of Initial
permit issuance.
The Director shall issue public notice
in accordance with f 124.11 prior to or at
the time of approving any minor
modification, By requiring a public
notice to be issued and the requirement
that all applicable section 3004
standards be met, EPA believes that
human health and the environment will
be adequately protected while, at the
same time, any unnecessary paperwork
required of permit applicants will be
reduced. Comments on this approach
are solicited.
Permitting Requirements—Special
Cat egories
These proposed regulations would not
Impose the detailed permit requirements
of Subpart B upon several categories of
HWM facilities, where EPA is the
permit-issuing authority. Two classes of
facilities, health care facilities and
experimental facilities, would be
required to obtain a “special permit” in
lieu of the regular permit described
above. Three other classes of facilities,
special waste facilities, publicly owned
treatment works accepting wastes under
a manifest or other delivery document.
and barges or other vessels accepting
waste under a manifest or delivery
document for ocean disposal, would be
regulated under a ‘ pernut by rule”
mechanism. Finally, Injection wells
which dispose of hazardous wastes and
certain solid waste management
facilities which accept small amounts of
hazardous wastes would not fall under
the permitting requirements of these
regulations. States approved by EPA to
administer hazardous waste programs
are also authorized, but not required, to
regulate such facilities in the same
manner as EPA.
SpedoiPennits-’-HeoJth Care Foalitles
fl 122.25( 0))
Certain departments of hospItals and
veterinary hospitals routinely produce
wastes which fall under the broad
definition of “hazardous waste” me set
forth in proposed 40 CFR Part 250,
Subpart A. These facilities when storing
or otherwise treating such waste on
their premises s ill be considered as
HWM facilities. In most cases, however,
health care facilities are closely
regulated by existing State laws, EPA
has concluded that detailed permitting
requirements under RCRA are
unnecessary for health care facilities
which are complying with State law.
Specifically, these regulation. require
health care facilities which aze
operating under and complying with a
comprehensive and enforced State law
to submit only an abbreviated
applicailon. The application would
describe the type of facility and would
provide certain operational Information.
Including certification that the facility Is
operating under a State license. If the
application satisfies the requirements of
this Subpart. EPA would issue a special
permit. Because State law would be
adequately controlling the treatment
and storage of hazardous waste by the
facility, the permit would impose no
additional express controls. - --
Special Permits—Experimensci
Facilities (j 122.25(b))
EPA is also proposing to issue special
permits for “experimental facilities”, Le.,
facilities which are or would be engaged
In technology advancing activities which
are intended to Improve the state-of-the-
art for hazardous waste treatment,
storage or disposal. As with health care
facilities, the applications which
ownersJoperators of experimental
facilities should submit should be easy
to prepare and limited in Informational
requirements. EPA Is proposing the
special permit mechanism for
experimental facilities for two reasons.
First, EPA seeks to encourage Inquiry
into new and innovative ways to handle
hazardous wastes. Relieving some of the
administrative prerequisites to operating
such a facility may facilitate that end.
Secondly, and equally important is the
distinct possibility that the Part 250.
Subpart D standard., which are
designed primarily for typical
containment facilities, might not apply
functionally to facilities Implementing a
new technology for hazardous waste
management. It would not be sensible to
force on Innovative facility to comply
with informational or other
requirements not suited to Its design.
Of course, these facilities will be
required to comply with all of the
applicable standards of Part 250.
Subpart D. Additionally, the regulations
limit the term of such permits to one
year (With an additional one year
extension under certain conditions) and
establish requirements for submission of
full-evaluation reports.
Permit by Rule—Special Waste
Facilities (f 122.2 8(a))
Proposed 40 CFR Part 250. f 250.46.
.creates a special category for owners
and operators of facilities which treat,
store or dispose of “special waste8.”
Special wastes are hazardous portions..
of certain large volume wastes on which
the Agency has limited Information.
These large volume wastes are cement
kiln dust. utility waste (fly ash, bottom
ash, and scrubber sludge) phosphate
rock mining waste, beneficatlon and
processing waste, uranium mhmiig
wastes, other mining waste, and gas and
oil drilling muds and oil production
brineL In Part 250. Subpart D, EPA Is
proposing to exempt these facilities from
compliance with generally applicable
requirements In favor of certain special
standards (40 CFR 250.46—1 through 6).
EPA intends to propose comprehensive
standards for these facilities when
sufficient Information on which to base
- a regulatory program becomes available.
Because the generally applicable
performance standards do not apply to
special waste facilities. EPA h s
determined that Imposing the lull
permitting burden on members of this
class serves no useful purpose.
Consequently in Its place EPA Is
proposing to rdt uIre only a “permit by
rule.” A permit by rule would simply
mean thai the owner or operator of a
special waste facility would be deemed
to have a permit, without having to
submit any application for It. If the
facility complied with the special waste
facility atandards of 40 CFR 250.48. After
data is available to the Agency, this
regulatory approach would be modified
as appropriate, -
Permit byRz,le—PubJIc/y Owned -
Treatment Works and Ocean Disposal
Vessels j 122.28(b) andfr))
EPA Is also proposing to use the
permit by rule mechanisms for two other
HWM facilities, publicly owned
treatment works which accept
hazardous wastes under a hazardous
waste manifest or other delivery
document, and barges or other vessels
which receive hazardous wastes under a
manifest or delivery document for
purposes of ocean disposal.
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34253
Similar to the situation of the special
waste facilities, use of the permit by rule
mechanism should save owners and
operators of these types of HWM
facilities from paperwork burdens which
accompany the task of preparing and
submitting permit applications.
EPA is eliminating the affirmative
requirement to secure a permit for these
facilities because they are currently
regulated under ether EPA water
pollution control programs. Publicly
Owned Treatment Works (POTW’s) fall
under the National Pollutant Discharge
Elimination System (NPDES) permit
system of the clean Water Act and
ocean dumping vessels come under the
permit system of the Marine Protection.
Research. and Sanctuaries Act. These
ongoing programs should provide a
degree of environmental protection
equivalent to that-of Part 250. In
recognition of this fact. Part 250. Subpart
D. specifically exempts both of these
types of HWM facilities from Its
requirements (40 CFR 250.40(e). 43 FR
58996 (Dcc. 18. 1978)).
Thus, a POTW or ocean disposal
vessel would be deemed to have a
permit If It operates In accordance with
the ?.‘PDES and Ocean Dumping permits
and If the owner or operator complies
with the notification. manifest,
recordkeeping and reporting
requirements.
Underground Injection Welis Peimiuutg
These regulations propose to relieve
the activity of injecting hazardous waste
into underground injection wells from
RCRA permitting requirements. As In
the case of POTW s and ocean disposal
vessrls, injection wells are
technologically dissimilar to more
conventional HVIPM facilities and,
therefore, many performance standards
of Part 250, Subpart D. are functionally
inapplicable. Also, as in the case of
TW’s and ocean disposal vessels.
underground Injection wells fall under
an alternate Federal regulatory program.
Consequently. Part 250. Subpart D. has
been made specifically inapplicable to
underground injection wells (40 CFR
250.46(e ) ).
The alternate regulatory program Is
the underground injection control (UIC)
program of Title C of the Safe Drinking
Water Act, which is proposed for public
comment In these regulations and in 40
CFR Part 146 (proposed at 44 FR 23738
(April 20, 1979)). The UIC program
requires that all hazardous waste
Injection wells comply with Its minimum
standards. Injection wells, Including
those injecting hazardous wastes, are
exclusively regulated by those minimum
standards. Thus, in an instance where
one site contains surface facilities which
treat, store or dispose of hazardous
wastes, as well as a hazardous waste
Injection well, the surface facilities will
be required to comply with the
requirements of the RCRA program only
and the Injection well will be required to
comply solely with the requirements of
the UIC program.
But, In order to assure that these
parallel regulatory efforts work together,
the UIC program has Included In 40 CFR
148.09 a subset of standards from the
RCRA program regarding notification.
reporting, recordkeeping and the
manifest system. Injection wells which
inject hazardous wastes, as a general
matter, must comply with these RCRA.
originated standards to assure that the
informational system of that program
successfully tracks all bezardous
wastes.
In instances where the RCRA
informational system requirements have
already been met, for example, when the
wastes received by the well are supplied
by an on-site surface facility which has
already complied with these
requirements under the RCRA program,
the well operator need not comply with
the requirements a second time. Wastes
received by such wells would not be
“accoinpawed by a minilest or other
delivery document” as stipulated in
148.09.
The pemit by rule mechanism Is nol-
needed because compliance with the
notification, recordkeeping, reporting
and manifest requirements of Part 250.
Subparl D Is provided in the UIC
regulations themselves. The Agency has
done so In 40 CFR 145.09 -, the permit by
rule, thus, has become operationally
unnecessary.
The Agency is well aware that section
3005 (a) of RCRA asserts a broad
permitting requirement for all HWM
facilities. Despite this language. EPA Is
making a concerted effort to streamline
Its procedures and does not want to
Impose non-beneficial and duplicative
regulations which seemingly do not
further the goals of the statute. The
Agency solicits comments on the
adequacy of environmental protection
which these alternate regulatory
programs offer, on the appropriateness
of establishing “special permits”.
“permits by rule”, or the alternate
mechanism to cover UIC wells, and on
the legal and practical implications of
the entire effort -
Solid Woste Disposal Facilities Which
Receive Small Amounts of Ho.zardous
Wosles
These regulations also exempt from
RCRA permitting requirements certain
solid waste disposal facilities which
receive hazardous wastes In small
quantities. These facilities are those
which receive wastes exclusively from
- persons subject to 40 CFR 250.29
(proposed at 43 FR 58979, Dec.18, 1976)
Persons under 250.29 are those who
produce and dispose of no more than
100 kilograms (approximately 220
pounds) of hazardous waste in any one
month; any retailer disposing of
hazardous waste (other than waste oil);
and certain farmers who dispose of
pesticides and follow specified
operating procedures.
40 CFR 250.40(c)(5) exempts these
facilities from meeting any of the section
3004 stan lards for HWM facilities
because they will be regulated as solid
waste disposal facilities under Subtitle
D of RCRA. Moreover, the relatively
small amounts of hazardous wastes
which these facilities would receive
would not change their overall character
as solid waste disposal fscilitie& nor
would these facilities in any way
provide an insufficient level of
protection to human health and the
environment (see preamble to 40 CFR
Subpart D. 43 FR 58985). Thus, In the
definitional section ( 122.3(b)) of
Subpart A of this Part, EPA is proposing
to remove this class of facility from the
scope of the term “hazardous waste
management facility.”
Interim StoWs ( 222.23)
Section 3005(e) of RCRA provides a
mechanism for existing facilities to
continue receiving hazardous wastes
prior to obtaining a permit under these
regulations. That mechanism is “interim
status.” Under the terms of section
3005(e). a facility with interim status
“shall be treated as having been issued
a permit until such time as final
administrative dispostion of such
application is made, unless the
Administrator or other plaintiff proves
that final administrative disposition of
such application has not been made
because of the failure of the applicant to
furnish information reasonably required
or requested in order to process the
application.” To qualify for Interim
status, a facility must have complied
with the notification requirements of
section 3010 of RCRA, and must have
submitted Part A of the permit
application. Moreover, during the
interim status period, facilities must
comply with a limited set of operating
procedures (see 40 CFR 250.40(c)). EPA
Inteiprets Congressional Intent, In
providing interim status, as a means for
allowing the continued receipt and
handling of hazardous wastes by HWM
facilities during the “start-up” period of
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Federal Register / Vol. 44, No. 116 1 Thursday, June 14, 1979 I Proposed Rules
the RCRA program. Therefore, existing
facilities which are participating In the
program would not be Dub ject to the
general prohibition against beating,
storing or disposing of hazardous wastes
In the absence of a permit
Because these regulations 4o not
require site-specific permits for three
classes of facilities (special waste
facilities, certain POTW’s, and ocean
dumping vessels) these three classes of
facilities need not submit a Part A
application (Forms 1 and 3 of the
Consolidated Application Form.) to
qualify for Interim status. EPA is
proposing this approach because It
would be contradictory for the agency to
ease a requirement to avoid regulatory
overlap on the one hand, and, then, to
simply reinstitute the requirement for
another reason. Consequently, for these
classes of facilities. EPA intends to
consider the submission of notification
under section 3010 as satisfying the
‘permit application requirement” of
section 3005(e). Section 3010
notifications supply the same
Information, although in lesser detail, as
do Part A applications. More
Importantly, however, allowing interim
status to these facilities Is In keeping
with the Intentions of Congress.
These regulations also adjust the
scope of coverage of section 3005(e)
intenm status. The statute specifically
extends interim status, upon satisfaction
of the prerequisites, to all HWM
facilities In existence on the date of
ensctment of RCRA. EPA is extending
the option to obtain Interim status to
HWM facilities in existence on the date
of promulgation of regulations under
section 3001 of RCRA. Again, EPA
believes that this adjustment
implements the intent of the legislation.
Congress intended that the flow of
wastes would not be interrupted during
the start-up of the Federal progam.
Indeed, the continued availability of
disposal sites to take ever-increasing
amounts of hazardous wastes can be
termed realistically as a public health
necessity. If EPA were to disallow the
continued receipt of hazardous wastes
by post-enactment facilities for all or a
portion of the anticipated five years It
will take to fully implement the
permitting program, It could seriously
disrupt ongoing hazardous waste control
efforts. To do so would contradict the
entire premise of the statute.
Moreover, It would be inequitable to
interrupt operations of HWM facilities
for which all posaible steps to comply
with new regulatory requirements have
been taken.
EPA specifically requests comment on
this implementation of section 3005(e).
Mo/or Facilities (I 122.3(b))
One of the primary administrative
task. which EPA will undertake once
these rdgulations come into effect is the
systematic review of permit applications
received by approved States and of
draft hazardous waste permits prepared
by approved States. EPA will undertake
this effort to assure routine compliance
wIth these regulations and Part 250.
However, It became apparent early
during preparation of these regulations
that this review function could
overwh lm the Agency—approximately
30,000 RCRA permits will be Issued
under these provisions In the next five
years. Consequently, recognizIng
administrative limitations on Its review
function, EPA does not intend to review
permit applications and draft permits for
facilities subject to a State program
which are small, non-complex, and non-
controversial. Instead, It intends to
review these documents as they relate
jo “major” facilities. EPA will consider a
facility to be “major” If it handles, or
would handle, more than 5,000 metric
tons of hazardous wastes per year.
Permits for major facilities must be
accompanied by fact sheets containing
relevant Information on the fadility’
permits for non-major facilities must be
accompanied by a less detailed - .
“statement of basis.” (See f § 124.8
through 124.9.)
EPA considers the use of a tonnage
cutoff figure to establish the “major”
character of a facility to be the most
telling and straightforward way of
reliably and simply accomplishing the
objective. EPA considered other means
of doing this, but found them less
preferable. For example, EPA
considered basing this determination on
an analysis of the relative hazard of
wastes received by each facility. As was
discussed In the preamble to EPA’s
regulations defining “hazardous waste”,
(Pail 250. Subpart A). the Agency was
unsuccessful In this effort.
EPA requests comments from the
public on the use of a volume criterion
to distinguish major and non-major
facilities. Moreover, EPA request
comment on the selection of 5,000 metrIc
tons per year as the criterion. EPA
believes that use of this figure should
result in review of facilities which truly
warrant close attention. As EPA’s data
indicates that the median HWM facility
handles about 1,100 metric tons of
hazardous waste annually, EPA
anticipates that, under this criterion, it
would review approximately 10 percent
of permit applications and draft permits
processed by States.
EPA, however, recognizes that Its
Information on the relative sizes of
HWM facilities Is incomplete. Because
the utility of the 5,000 metric ton
criterion is largely dependent upon the
actual capacities of existing HWM
facilities, the Agency intends to continue
Investigating Its appropriateness.
Information from the regulated
community and other interested persons
In this regard is solicited.
Other Environmental Factors
During the development of these
regulations, the Agency recognized that
certain ‘secondary” environmenta)
Impacts from factors including roadway
traffic to and from facilities, access
routes to facilities, noise, dust, odor,
aesthetics, etc., were not amendable to
control through the RCRA section 3004
standards nor by these regulations.
Thus, these regulations do not address
these general environmental issues. The
Agency did consider the following
options before deciding not to propose
regulations In this area:
1. Require that an Environmental
Impact Statement (EIS) be prepared.
EPA has determined that the permitting
process under section 3005 is not subject
to the EIS requirement of section
102(2)(c) of the National Environmental
Policy Act. A legal memorandum on this
point has been prepared and will be
made available upon request The
permitting process as specified In Part
124 of these regulations fully allows and
encourages Involvement of the public in
section 3005 decision making. The
Agency also has determined that the
regulation of secondary environmental
Impacts Is outside the scope of authority
granted to the Agency by RCRA States
and local authorities can more suitably
regulate these impacts.
2. RequIre applicants for permits to
analyze the impact of the environmental
factors outline above, and to submits
“Supplementary Environmental
Analysis” (SEA) with the application for
a permit The SEA would be a part of
the application, would be made public.
and would be addressed during the
permit application review process.
S. Same as OptIon 2, except EPA In
granting permits to facilities would
Insert conditions In such permits based
on the Impact analyses of the SEA.
4. Require applicants for permits to
certify that all State and local laws and
ordinances regarding the environmental
factors outlined above will be complied
with.
Comments on these options, or
suggestions for other options or
approaches to this Issue are solicitied.
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34255
Emergency Authorization 9 122.28)
These regulations also provide the
Director with emergency authority to
respond appropriately to Immediate
hazards to the environment or to human
health. They provide that, m auth event.
the Director iday issue a temporary
authorization to a permitted facility, not
to exceed 90 days. to accept hazardous
waste. not covered by a permit. The
authorization may be oral or written. U
oral authorization Is given. It must be
followed withn five days with a written
order. Emergency authorization can be
rescinded at any time. EPA has included
this proposed emergency authorization
because It believes that the Director
should have broad discretion to respond
In a measured and effective way to
emergency situations. The Agency
requests comments on the propriety and
scope on this emergency authority.
Subpart C—The UIC Program
Congress has authorized EPA in
sections 1421—1424 of the Safe Drinking
Water Act to establish by regulation (1)
minimum requirements for effective
State UIC programs: and (2) a
procedural mechanism whererby States
may obtain EPA approval to operate all
or part of auth programs. Were States
do not obtain EPA approval. EPA is
empowered to establish and operate
programs for those States.
As a result of the consolidation of the
NPDES and RCRA programs with the
UIC program. EPA examined the
overlaps inherent in the three programs’
statutory authority as described above.
As a result, the Agency has decided to
regulate injection well. primarily under
the LIIC program. Comments are
solicited on the propriety of the
Agency’s assigning primary jurisdiction
over underground injection control to
the UIC program.
In addition, any well that injects
hazardous waste could be regulated
under RCRA. In those cases, also the
Agency has chosen to regulate such
wells under the UIC program and to
apply certain RCRA requirements (e.g.,
closing of the manifest cycle) through
the LJIC regulations.
At one point in developing these
regulations. EPA contemplated -
subjecting only wells that injected into,
through or above underground sources
of drinking water to these regulations.
However, even wells which do not inject
Into, through or above underground
sources of drinking waler may cause
fluid to move underground in such a
fashion as to contaminate such sources.
The Agency decided that the proper
approach would be initially to bring all
wells into the regulatory system so that
every injection activity could be publicly
- known. Each well may then be classified
properly, (see discussion below)
resulting in requirements that the well
lnje tion practice be regulated or
banned entirely or, where appropriate.
not controlled at all.
Comments are solicited on the above
approach. In addition, the Agency seeks
data on off-shore injection operations
and Information on special problems
that control of off-shore injection walls
may pose, if any. -
Listing of St ales
The UIC program becomes operative
In a State only alter the State has been
listed by EPA under section 1422 of
SDWA as needing a UIC program, and
either the State obtains EPA approval of
It. program or EPA eatabliahes a
program for that State. State program
requirements and approval procedures
are set forth In Part 123.
On September 25, 1978. EPA listed 22
States as needing a UIC program:
Arizona, Arkansas, California,
Colorado, Florida. fllinois, Indiana.
Iowa, Kansas. Kentucky, Louisiana,
Michigan, Mississippi. New Mexico,
New York, Ohio, Oldahoma,
Pennsylvania. Texas. Utah, West
Virginia and Wyoming. See 43 FR 43420
(September 25, 1978). Since that time,
Maryland has petitioned to be listed.’ -
The Agency had initially intended to
focus Its efforts on these listed States
and to phase In other States gradually.
The purpose was to focus Agency
resources and grant funds upon areas
which appeared to have the most urgent
need for such programs. However, as a
result of its consolidation efforts, the
Agency became aware of potentially
different timetables for the listing of
State. under the UIC program and the
establishment of RCRA programs in
those States. States are expected to
begin operating approved hazaj’dous
waste programs in mid-1980. This raises
the possibility that some disposer. of
hazardous waste will seek to avoid
RCRA requirements by injecting
hazardous waste underground in
unlisted States. To ensure consistency of
coverage, the Agency has decided to list
the remaining unliated States in two
stages by May of 1080,
Designation of Underground Drinking
Water Sources ( 122.22)
As part of developing Its UIC program,
the State must designate those aquifer.
which are to be protected a
underground drinking water sources and
those which are not. The criteria for
designation are contained in Part 148,
and are explained in detail In the
Preamble discussion on Subpart A of
this Part.
Section 122.33 specifies procedures for
State designation of aquifers. All
aquifers will automatically be
designated as underground drinking
water sources unless specifically
excluded. Any exclusion must define the
excluded area In geographic terms.
rather than by name, to ensure that
Injectori have adequate notice as to
whether or not they will be injecting
above, into or through a designated
underground drinking water source.
Classes of wells ( 122.34)
The injection wells covered by the
UIC regulations are divided into the
following five classes:
(a) Class I includes Industrial -and
municipal disposal wells and nuclear
storage and disposal wells that inject
below all underground sources of
drinking water in the area.
(b) Class II includes all injection wells
associated with oil and gas storage and
production.
(c) Class ill includes all special
process Injection wells, for example,
those involved in the solution mining of
minerals, in situ gasification of oil.
shale, coal etc.. and the recovery of
geothermal energy.
(d) Class IV includes wells used by
generators of hazardous wastes or
hazardous waste management facilities
to inject into or above underground
sources of drinking water.
(e) Class V includes all other injection
wells.
Due to basic differences in function
end/or environmental effects o( the
above classes of wells, they are treated
differently In many respects, as
explained below.
Once a State UIC program is effective,
all new Class I, U and ill injection wells
must obtain a permit to begin operation.
All existing wells In these three Classes
(except existing enhanced recovery and
hydrocarbon storage wells) must also
obtain permits within five years of the
effective date of the program according
to priority schedule to be established by
the permitting authority.
Existing well. requiring a permit must
be authorized by rule until the permit is
applied for and processed. Such rules
must apply the appropriate monitoring,
reporting and abandonment
requirements set forth In 40 CFR 146,
Existing enhanced recovery and
hydrocarbon storage wells may be
authorized by rule for the life of the
facility. These roles are to apply
essentially the same requirements as
permits under Class U. However, while
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Federal RegIster 1 Vol. 44, No. 116 1 ‘fliuraday, June 14, 1979 I Proposed Rules
each permit is to establish a specific
compliance schedule, rules are to set
forth a general timetable for the
attainment of applicable requirements.
To obtain a permit, owners or
operators of well. must submit
applications to the Director in
accordance with the requirements of
Subpart C of Part 122. Because most of
the Information relied upon by the
Director to write a permit Is In many
cases already contained In State Files.
only a few basic Items of Information
must be contained in an application tol
Director of a State-administered LJIC
program unless the Director request.
further information (either because State
files are Incomplete or because the
Director wishes to update the
Information). In the case of EPA -
administered programs, the application
must contain all the information which
the Director need. to write the permit.
Part 148 (proposed at 44 FR 23738 (April
20. 1979)) sets forth the Information
which a Director must consider when
writing a permit.
A well may be covered by an area
rather than an Individual permit To
qualify for an area permit, the wells
must be:
(1) Under the control of a single
person: -
(2) Of the same type (e.g.. Fra.cb
process, enhanced recovery, or salt
water disposal);
(3) WIthin a single well field, project
or site
(4) Injecting Into the same zone or
aqwfer, and
(5] Covered by the same application
fore permit
The requirements which apply to an
individually permitted well apply
equally to a well authorized by an area
permit. However, under an area permit,
new wells may be authorized
administratively as long as they are
under the control of the person holding
the area permit are essentially of the
same construction and are intended for
the same purposes as existing wells.
EPA requests comment on the
advisability of the use of area permits.
In particular, comment Is solicited on
whether the conditions (e.g.. the use of
“well fiald”) have been properly framed
to provide the Intended relief from
environmentally unproductive
administrative burdens.
Section 122.42 contains two additional
requirements of the UIC program. First.
the permittee must notify the Director of
his or her intention to cease operation
and follow the Director’s prescribed
procedures for abandoning the well.
Second, the permittee must maintain
fiscal responsibility in some form to
dose, plug and abandon the well In a
inn which does not endanger
underground drinking water sources.
TemporwyAuthxlzaion
The Agency has Identified two type.
of situations where It may be necessary
to authorize underground Injection
temporarily before pennlt4ssuance
procedure. may be carried out.
The first situation Is where an
Imminent hazard to human health or the
envIronment may occur unless
Immediate injection Is authorized. One
example might be a spill or leak which
would result in significant releases of
hazardous wastes to the environment.
While the Agency cannot predict all of
the situations where this may occur, It
ha. concluded that a temporary
authorization should be available under
the circumstances defined in these
proposed regulations.
The other situation is where oil and
gas production would be delayed.
resulting in loss of such natural
resources. unles8 reinjection of brine if
Immediately authorized. Temporary
authorization In this situation is
consistent with sections 1421(b)(2) and
1422(c). wInch provide that the UIC
program may not interfere with oil and
gas production except as necessary to
protect underground sources of drlnking
water. The Agency proposes to allow
temporary authorization in the above
situation, provided that timely
application for a permit could not have
been made, and that the Injection will
not cause fluid movement to
underground sources of drinkIng water.
Comments are solidted on both types
of temporary authorizations. Are they
well defined? Should certain criteria be
added or deleted? Should temporary
authorization be added For other
situations?
Class IV wells
Class IV wells are expected to involve
the Injection of hazardous waste Into or
above underground drinking water
sources, a practice which is Inherently
unsafe. Unlike the case of deep disposal
wells, ill. not possible to prevent
endangerment of underground drinking
water sources by establishing
construction and operation
requirements. EPA proposes, therefore,
that existing class IV wells will be
Inventoried and closed, and that
Injection into new class IV wells will be
prohibited.
Existing des. fV wells are proposed
to be authorized by rule until the time of
their closure.
Comment, are solicited on the
Agency’s proposed approach to class IV
wells
Class V wells
There are many types of class V
wells, and Agency studies Indicate the
existence of perhaps a 250.000—500.000
such wells in the United States. The
Agency Is not presently in a position to
determine which wells are safe or
unsafe, and whether some of these wells
should be either regulated or phased out.
As a result, Directors of UIC program.
will be required to inventory class V
wells within their States, provide EPA
with aueasments of the impact of these
wells, and recommend possible mean.
of regulating them. If necessary. EPA
will then amend these regulations to
cover class V wells iii a manner which
will prevent endangerment of
underground drinking water sources In
the meanwhile, Immediate action will be
required to address those wells that
pose a significant risk to human health
Class V wells will be authorized by
rule pending amendment of these
regulations to regulate such wells.
Comment, are sollcited.on the need to
regulate particular types of class V wells
and how to do so. In particular, EPA
solicits comment. on whether special
•procedures for regulating class V wells
- should be provided.
Subpart fl—Specific Requirements
Applicable to the NPDES Program
Subpart D of Part 122 contains
requirements which are Identical to the
final NDPES regulation, Part 122, as well
as certain application requirements fi’om
final NPDES Part 124.
Part 123
What does this Part do?
This Pail establishes the requirements
for State NPDES, UIC, RCRA.
(hazardous waste) and section 404
(discharges of dredged or fill material)
programs and the process for approval,
revision and withdrawal of State
programs. While State programs are
established and operated under State
law. epproved CWA. RCRA. or SDWA
State programs implement Federal law.
A permit Issued by a State under State
law after the program has been
approved satisfies the Federal permit
requirement.
Part 123 Is divided into a general
subpart (Subpart A) and program
specific subparts (Subparts fl—E). The
requirements of Subpart A are generally
applicable to all four of the State
Programs covered by this Part. The other
Subparts provide requirements
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Federal Register I VoL 44, No. 116 1 Thursday. June 14, 1979 / Proposed Rules
34257
additional to those of Subpart A. Since
E A does not issue section 404 permits
Ithese are Issued by the Corps of
Engineers In the absence of an approved
State program). Part 122 does not -
contain a Subpart E. Part 123 Subpart E.
therefore, contains the additional permit
processing requirements applicable to
State 404 programs.
Subpart A
Purpose and scope ( 223.1). This
section notes that Part 123 Is related to,
among others, Parts 122 and 124.
However, only those sections of Parts
122 mid 124 which are adopted by
reference in Part 123 are applicable to
State programs. Part 123 lists all the
requirements applicable to State
programs. In addition. applicable
portions of Part 122 may. in turn, adopt
requirements derived from other Parts of
this Chapter.
The approach of the statutes
authorizing the programs covered by
this Part is that the Federal government
should set minimum standards, with any
State being given the freedom to impose
any more stringent approach It deems
appropriate. The only exception to this
Ia in the hazardous waste program -
where Congress determined that the
need for consistency between the States
outweighs any one State’s Interest In
hazardous waste regulation. This
exception has been narrowly construed
and is discussed further in the preamble
discussion of Subpart B.
State programs are developed and
implemented under State law. While
this Part sets minimum requirements for
State programs. it generally does not
require that State authorities be worded
or structured the same as the applicable
Federal authorities. Nonetheless, the
Agency encourages States to
incorporate by reference, to the extent
allowable under State law, Federal
requirements, especially those which are
technical In nature.
Elements of a program submission
( 123.3). This section lists the contents
of a complete State application for
program approval. Each of the elements
must be received by EPA before the
formal statutory review starts. Each of
the laws authorizing the State programs
covered by this Part limits the time for
EPA review of a State application for
authorization. Therefore, It Is necessary
that EPA have complete Information,
organized In a particular way, about the
State program before formal review
commences. States are encouraged to
consult with EPA in developing the
sulmislon.
Attorney General’s Statement
( 123.5). In understanding the
requirements of State law, EPA gives
great weight to the interpretations made
by the State’s Attorney General. Indeed.
the Attorney General’s Statement is
necessary for EPA to adequately judge
the legal basis for the State programs.
EPA will develop a model Attorney
General’s Statement format for each of
the programs.
Memorandum of Agreement with
RegionalAdministrator( 123.8). The
Memorandum of Agreement (MOA)
between EPA and FState defines the
basic working relationship between the
agencies, thereby avoiding confusion
and legal uncertainty which might
otherwise exist.
The MOA may Dot be need as a
substitute for adequate legal authority.
While It maybe appropriate for a State
to give, In the MOA. Its assurance that It
will abide by certain requirements, the
authority to do so must be present In
State law.
Relotionship Between Memorandum of
Agreement and State/EPA Agreement
The State/EPA Agreement Is an
overall management tool which provides
• way for the Regional Administrator
end the State to coordinate and, to the
maximum extent feasible. Integrate-
program administered by EPA and the
State, emphasizing problem-solving
approaches to specific environmental
problems. The State/EPA Agreement
reflects Important decisions on
Environmental priorities, administrative
problems, timing, responsibilities and
allocation of resources. In FY 1980, the
State (EPA Agreement Is to cover
programs under the Clean Water Act,
Safe Drinking Water Act and Resource
Conservation and Recovery Act. Other
environmental programs will be added
to the process in following years.
The Memorandum of Agreement, Is a
document signed by the Administrator
end the State which formally sets forth
the relationship between EPA and State
In the administration_of an approved
State permit program and details
specific procedures that must be
followed by both parties in the
development. Issuance, review and
enfortement of permits. The
Memorandum of Agreement Ii one of
the means by which EPA assures that
State issued permits are consistent with
the requirements of the appropriate Act
and Implementing regulations. Because
of this, any proposed change to an MOA
must be reviewed and agreed to the
Administrator to assure It is consistent
with the requirements of this Part.
The Memorandum of Agreement and
the State/EPA Agreement should be
consistent. This should not present a
problem since they generally address
different areas of the State/EPA
relationship. The State/EPA Agreement
should include the MOA. However, It
may not override it In the instance of
any Inconsistency, lithe State/EPA
Agreement indicates that a change Is
needed in the MOA. the proposed
change must be reviewed and agreed to
by the Administrator.
Operational Requirements (* 123.8).
This section bets out, by cross
referencing applicable sections of Parts
122 and 124. certain operational aspects
of State permit programs. To
demonstrate cornphunce with these
sections, States do not need authorities
Identical to EPA’ ,. Compliance may be
shown by any set of authorities which
enable the State Director to meet these
requirements or requiremente which are
more stringent Where these regulations
require that certain activltiee be covered
by permit, a State authority to regulate
the activity by rule will not be approved.
Compliance evaluation programs
(I 123.9). States must have a systematic
program for evaluating compliance with
permit conditions and other program
requirements. These programs must
have the abilily to e aluate reports
submitted by permlttees. to conduct
inspection and to investigate evidence
of violations submitted by the public.
Enforcement authority ( 123.10). This
section proposes that States should have
an array of enforcement tools available.
These must Include a procedure for
immediately responding to emergency
situations endangering public health,
Injunctive relief, civil penalties and
criminal fines. Each of these remedies Is
ivailable to EPA where It Is
administering the program and States
must have equivalent authorities.
The requirements for the programs
vary slightly because each of the
Federal acts have different provisions
for EPA enforcement For example,
establishing the degree of criminal intent
of the violator Is a necessary element of
any criminal prosecution. This section
provides that the degree of criminal
Intent which the State must establish
ahall be no greeter than that In the
appropriate Act for EPA prosecution.
Likewise, the penalty amounts
recoverable by the State shall be at least
the same as those recoverable by EPA.
See Table U.
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34258
Federal Ragistar / Vol. 44. No. 116 / Thursday, June 14, 1979 / Proposed Rules
EPA proposed to require States to
have the maximum penalty amounts at
least the same as those listed In Table L
States are encouraged to comment on
this requirement. In particular, EPA Is
interested in finding out which States
have existing programs which are
unable to meet these requirements, what
enforcement remedies are available to
those States and what other legislative
changes. U any, must be made by those
States to meet the requirements of this
Part.
The State need not alway . adopt the
same terminology on degree of criminal
Intent. For example. If the burden of
proof for establishing ‘criminal
negligence” In State court Is equivalent
to that for establishing “negligence” in a
criminal proceeding in Federal court
such State authority satisfies the
requirements of this section.
Each of the three Acts implemented
by these regulations provide citizens
with the right to initiate legal action in
Federal court to enforce permit
requirements. This right exists even
when a permit program ii administered
by a State after approval by EPA. The
three Acts also provide citizens mth the
right to Intervene In enforcement actions
brought by EPA. However, EPA has
concluded that requiring States to allow
citizens to Intervene In State
enforcement actions is neither necessary
to foster public involvement in permit
enforcement nor required by law.
Accordingly, these regulations do not
provide that States must provide for
citizen intervention In enforcement
actions brought by States in State
courts. Although there Is some
possibility than an inadequate State
effort could thwart effective citizen
Involvement in enforcement of State
issued permits. EPA believes that the
opportunity for citizens to being
enforcement actions In Federal courts
makes that risk minimal. Comment on
this point Is Invited. For further
Information on citizen Involvement in
enforcement, see the preamble to the
recently promulgated NPDES permit
program regulations (44 FR 32854).
Approval process (I 123.12). The
process for approving State programs
was not stated In Subpart A because of
the differences which exist between the
statutes Involved. Therefore, these are
set out in the Individual program
subparts.
Withdrawoifl f 122.14 and 123.15).
These sections set forth the proposed
criteria and process for withdrawal of
State programs including the
requirements for voluntary
relinquishment of Federal program
responsibility by a State. The criteria set
out In { 123.14 are an elaboration of the
- criteria set out In each of the applicable
Federal statutes.
It should be noted that program
withdrawal is an extreme remedy which
Is likely to be employed only where all
other efforts to insure that a State
program complies with this Part have
failed.
I 223.15(a) se” o .t the basic process
for voluntar) reiinguashn ent of Federal
program responsibility by a State It
provides for a 180-day advance notice
by the State accompanied by a plan for
the orderly transfer of necessary
Information. It further provides for 30
days advance public notice of the
transfer. These provisions may be.
modified by agreement.
I 123.15(b) sets out a formal hearing
process for withdrawing State programs
(other than UIC programs, which are
covered In Subpart C). This process may
be initiated by the Admintatrator on his
or her own motion or in response to a
formal petition from any Interested
person. In order to avoid the need for
the Agency to develop anew set of
formal hearing procedures, this
paragraph adopts by reference certain
provisions from the regulations of Part
22 of this Chapter. (Part 22 regulations
were proposed on August 4, 1978,43 FR
34730, and will be promulgated shortly
in essentially the form proposed. All
citations are to the proposed version.)
Re!ationsli,’p of Subpw’t A to the Final
NPDES Regulations
Certain elements of the NPDES
program have been modified or added to
in Subpart A, as a result of
consolidation with the other programs.
Comments are welcome on these
changes or addition.. Poe example, the
criteria and process for withdrawal of
State programs, Including NPDES and
section 404 programs, are new to these
regulations. In addition, the proposed
requirement that States have at least the
same penalty amounts as EPA Is a
change from the existing requirement
Subpart B
Subpart B of Part 123 establishes
additional substantive and procedural
requirements for State hazardous waste
management programs under section
3006(a) of RCRA. This Subpart contrifils
both “Authorization” and interim
Authorization” of State programs under
sections 3006(b) and (a) of RCRA,
respectively. Proposed Guidelines for
State Hazardous Waste Programs were
published as Part IV of the February 1,
1978 Federal RegIster (43 FR 4386). They
are reproposed here.
EPA’s response to several recurring
substantial comments, received
concerning the February 1. 1971
proposal, and discussions of certain
program decisions, are set forth below.
Under section 3009 of RCRA. States
may not impose any requirements less
stringent than those under Subtitle C of
RCRA. However. sc,me latitude will be
•..llowed In the degree of stringency of
the State’s criteri and standards during
the Interim authorization period. When
‘full” authorization (hereafter called
“authorization”) is approved under
section 3006(b), the State’s standards
and criteria must be no less stringent
than those promulgated by EPA under
sectIons 3001-3005 of RCRA. See Table
L
For example, as a condition for such
authorization, EPA expects such State
programs to control at least the same
universe of hazardous wastes as the
Federal program. This may be
accomplished most easily by adopting
EPA’. criteria and listings under section
3001 of RCRA, although such an
adoption Is not a requirement for
authorization. See proposed 40 CFR Part
250, Subpart A. as referenced En Table I.
The State program also must control
at least the same universe of generators
and transportera.and contain standards
that are at least as stringent as those of
the Federal program under sections 3002
and 3003 of RCJ A, Including
recordkeeping. labeling, use of
appropriate containers, reporting and
management of a waste tracking
(manifest) system using the Federal
manifest format. See proposed 40 CFR
Part 250, Subparts B and C, as
referenced in Table I.
T ft
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-------
34259
Federal Re lster / Vol 44, No. 116 I Thursday, June 14. 1979 / Proposed Rules
Finally, the State program must
control at least the same universe of
treatment, storage and disposal facilities
and must not compromise the human
health and environmental standards
under sectIon 3004 of RCRA . The
adequacy of the State’s general facility
standards treatment, storage and
disposal facility standards and special
waste standards will be evaluated
against those Issued by EPA under
section 3004 In order to determine If the
State program is equivalent to the
Federal program. See proposed 40 CFR
Part 250. Subpart D. as referenced in
Tablet
In addition, a State’s pest
performance In responding to situations
involving hazardous waste which may
present an endangerment to health or
the environment will be considered by
EPA in deciding whether to approve
State hazardous waste programs.
Comments or suggestions on the
evaluation of the equivalence of State
programs are solicited. One option
under consideration is to require States
to adopt the Part 250 regulations.
Another alternative requirement for
authorization of a State hazardous
waste program would be to require
States to issue all hazardous waste
permits under their jurisdiction within a
set time frame, such as three or four
years. EPA estimates that complete
permit issuance without such a -
requirement will probably take at least
seven years. On the other hand, State
resources are limited, and the imposition
of such a requirement could deter some
States from seeking approval of their
programs. Comments are solicited on
this problem, and on alternative
approaches.
Concurrent enforcement authority is
provided EPA under 3008(a)(2) of
RCRA in States with either type of
authorrzaion. EPA can use this
enforcement authority and will not
hesitate. under appropriate -
circumstances, to enforce directly
against any facility or activity violating
the Federal standards.
Manifests. To satisfy the operational
requirement. specified In 123.39. a
State need not have an operating system
for controlling manifests during the
period of Interim authorization.
However, a State must have adequate
legislative authority and should be
capable of commencing routine
operation of the manifest system,
reporting, and recordkeeping
immediate’y after full authorization. It Is
important for the regulated community
to note that although the manliest
system control Is not a requirement for
Interim adthorization, manifests must
nevertheleu be prepared and used in a
State with Interim authorization. In
conjunction with the management of the
information reported through the
manifest system, the Agency Is
developing an Automated Data
ProcessIng (ADP) system which will be
made available to the States. Use of the
ADP system by the States Is optionaL
ve Movement of Hazordous Wastes.
A decision by the United States
Supreme Court (City of Philadelphia v.
New Jersey, No. 77-404. june 23.1978).
invalidated New Jersey’s ban on the
Importation of wastes for disposal on
the grounds that it imposed an undue
restraint on interstate commerce. Based
on this decision. It is reasonable to
assume that other present and future
Interstate waste Importation bans would
likewise be struck. The Agency.
therefore, has chosen to propose a
provision In these regulations which
would deny authorization to any State
with such a ban.
Furthermore, States should note that
section 112 of the Hazardous Materials
Transportation Act (HMTA) of 1974
(Pub. L 93-833) prohibits a State (or its
political subdivisions) from Imposing
requirements which are Inconsistent
with the Federal Department of
Transportation (DOT) regulations. In
addition. HMTA authorizes DOT to -
preempt any State requirement If such
requirement places an unreasonable
burden on commerce. DOT, however.
can only preempt State regulations for
which DOT has existing authority and
standards. State regulations are not
preempted If they afford an equal or
greater level of protection to the public
and do not unreasonably burden
commerce. If preemption occurs, only
the standard that places a burden on
commerce would be preempted. not the
entire prvgmm.
ForlialAuthorization. Approximately
three-quarters of the comments received
on partial authorization provision,
which were Included In the February 1.
1978 proposal, were opposed to partial
authorization on the grounds that it
would be burdensome and confusing to
the regulated community. EPA
understands these concerns and has
decided not to include the “partial
authorization” provision in this
proposed nile. The Agency intends to
enter into cooperative agreements with
States to allow States to participate
fully in the program as administered by
EPA until such time as the State
becomes eligible for authorization,
Similar arrangements with several
States have worked well for the NPDES
program.
Interior Authorization. Section 3O0 c)
of RCRA (as recently amended by Pub.
L 95-609) provides for a interim
authorization” of State programs for up
to two years “beginning on the date six
months after the (actua4 date of
promulgation of regulations under
sections 3002 through 3005.” (EmphasIs
added.) This Interim authorization could
be granted to States with a hazardous
waste program substantially equivalent
to the Federal program existing
“pursuant to State law before the date
ninety day after the factua!j date of
promulgation of regulations” under
sections 3002 through 3005 (EmphasIs
added). The recent amendment to RCRA
(Pub. L 95-809) allows the cutoff dates
for the existence of State legislation and
the onset of the Interim authorization
period to be related to the promulgation
of the bulk of EPA’s other Subtitle C
regulations. Consequently. the phasing
of the application for and initiation of
Interim authorization Is now based on
the actual promulgation date of
regulations under section 3001 of RCRA.
since EPA intends louse this section as
the “trigger” for the Federal program.
States are encouraged to begin
evaluation of their legislation and
regulations and to assess the adequacy
of their programs. However. EPA will
not be able to formally act on
applications until after the promulgation
of section 3001 regula (ions (40 CFR 250,
Subpart A), due to the lack of a
reference point against which EPA can
judge a program. In granting interim
authorization. EPA will require the State
to prepare an “authorization plan”
which will desatbe the additions or
modifications to the State programs.
Including changes needed in State legal
authority and a time schedule to achieve
changes, so as to enable the State to
become eligible for authorization.
The Intent of RCRA as expressed in
the legislative history of RCRA, was to
allow States to develop and Implement
hazardous waste programs equivalent
(not necessarily identical) to the Federal
program, thus utilizing the police power
of the States rather than creating
another Federal bureaucracy to
Implement RCRA, (House Report No.
94—1491, September 9, 1979. p. 30.) State
primacy is a common theme running
through the legislative history. (Op. cit.,
pp.5.0. 24 and 29.) Interim authorization
was specifically established under
section 3006(c) in order to facilitate
State assumption of the program. The
requirement for Interim authorization of
“substantially equivalent” State
programs was used -. ‘ (1) so that
existing progress In the area of Slate
hazardous waste lawdoes not come to
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Federal Register I Vol. 44, No. 116 I Thursday, June 14, 1979 I Proposed Rules
an abrupt halt, as has been the situation
with the passage of other environmental
laws, and (2) to give such States that
have begun developing or implementing
a hazardous waste program sufficient
time to bring such program into
conformity with the Federal minimum
standards.” (Op. cit.. p. 29). However.
Congress neither defined what a
“substantially equivalent” State
program was, nor gave further directives
as to how EPA was to set such “Federal
minimum standards” without disrupting
the progress of existing hazardous waste
programs.
EPA’s proposed approach to this
problem (see 123.12) Is as follows: In
order to implement RCRA’s legislative
intent of not disrupting the progress of
existing programs. EPA’s proposed
minimum Federal standards for
determining “substantial equivalence”
(and therefore suitability for interim
authorization) would require the States
to Implement (i.e., regulate and enforce)
controls over at least either on-site or
off-site disposal of hazardous wastes.
(See f 123.32). Note that this is a
minimum requirement and that during
the two-year period States must
implement all statutory and regulatory
hazardous waste management
authorities they possess. (For example;
States with interim authorization which
have the necessary authorities in
existence to Implement a manliest
system and/or control of treatment an ’/
or storage facilities must do so. See
f 123.34(a)(2)).
Since it Is dear that Congress -
Intended this interim period to provide a
“grace” period to the States to develop a
program suitable for authorization of a
full program, the major difference
between “equivalent” (section 3006 (b))
and “substantially equivalent” (section
3006(c)) State hazardous waste
management programs is that the latter
program would reflect some of the
limitations of existing statutory
authority at the State level. Similarly,
the degree of stringency of a given
regulation may. during this interim
period, be less than Federal standards.
This temporary relazation from strict
“equivalence” to “substantial
equivalence” and the corresponding
latitude in degree of stringency for the
interim period, EPA believes to be
consistent with the intent of Congress to
facilitate the entry by the maximum
number of States into the interim
hazardous waste management program,
and ultimately, Into a full program.
In the wake of such incidents as Love
Canal, public pressure for State primacy
Is increasing. Many States are
increasing their commitment of
resowoes and developing programs: at
this time, II appears to be more prudent
for EPA to be as flexible as possible in
‘order to build on existing State
programs. than to hamper their
development. The proposed approach
should result in a greater degree of
protection of public health and the
environment than If EPA had to conduct
the hazardous waste program Ins large
number of States.
Before reaching this conclusion, the
Agency gave special consideration to
two alternatives as requirements for
Interim authorization. The first was to
require States to have authority to -
control either the on-site or off-site
disposal of hazardous waste, while the
second was to require authority for
broader controL Analysis of current
State legislative authority Indicates that
the first alternative would allow
significantly greater State participation
In the hazardous waste programs than
would the second. Furthermore, It is
expected t at It will be easier for a State
with Interim authorization to upgrade Its
program than It would be for an
unauthorized State to take over a full
program. On the other hand, there could
be a significant risk to public health and
the environment In requiring States to
control disposal but not treatment or
storage. However, It Is likely that the
degree of protection of public health sad’
the environment which States could
offer by carrying out programs
controlling disposal while building the
other elements would exceed the degree
of protection which EPA could offer In
attempting to implement a large number
of full programs in unauthorized States
with limited resources.
Although EPA recognizes that control
of treatment and storage facilities, full
control of all disposal facilities, and
other elements necessary for
authorization of a full program (such as
implementation of the manifest tracking
system) are essential in a full
comprehensive program of hazardous
waste management. the vast majority of
the environmental damage has resulted
from improper disposal. EPA also
recognizes that the proposed approach
does involve some risk that direct
control of certain portions of the
complete hazardous waste management
program could be deferred for as much
as two years (the maximum duration of
the Interim authorization period). For
example, according to data based on
notional averages. 80 percent of the
quantity of hazardous wastes generated
Is disposed on-site. These on-site
disposal jacilites amount for about 90
percent of the total number of disposal
facilities in the nation. Current
Information available to EPA on the
status of State legislation and
regulations In the 30 States which
generate most of the hazardous wastes,
indicates that as many as three of these
States lack statutory or regulatory
authority to control on-site disposal and
as many as seven States lack statutory
or regulatory authority to control
treatment and/or storage. Similar
problems might be encountered In the
remaining smaller States.
The risk of non-regulation, however, Is
tempered by several factors. During the
first six months after promulgation of
section 3001 regulations, EPA wlflbe
reviewing proposed State programs as
well as conferring “interim status” under
section 3005(e) to all HWM facilities
(see previous discussion of “interim
status” under the RCRA portion of the
Part 122 preamble). Receipt of the
information necessary to confer “interim
status” to facilities under section 3005(e)
will provide EPA the basis for making
an assessment of which facilities may
be actual or potential violators of
Federal standards under the section
3004 regulations (which call for an
extensive set of requirements to be met.
(see the interim status facility standards
of 40 FR 250.40(c) proposed December
18,1978, at 43 FR 58995). EPA is
empowered by section 3008(a) of RCRA
to take direct enforcement action
against all hazardous waste
management facilities or activities on a
case-be-case basis regardless of the type
of State authorization conferred. In
especially egregious circumstances, EPA
also can enforce under the imminent
hazard provisions of section 7003 of
RCRA. Finally, although direct State
oversight of the manifest system Is not a
requirement for Interim authorization,
EPA can use Its enforcement powers to
follow up on noncompliance with
national manifest requirements. (See
previous discusion of “manifests” under
RCRA portion of Part 123 In this
Preamble).
Based on current Information, It is
expected that very few States will be In
a position to undertake the full
hazardous waste program when the
Subtitle C regulations are promulgated.
Additionally, some of those States
which already have, or which will have,
some type of hazardous waste programs
when the regulations are promulgated
would prefer to control the program
from the beginning, rather than
assuming a program that has been
initiated by or operated concurrently
with EPA. The proposed approach will
minim -e the disruption and uncertainty
sensed by changing administration of
the program.
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Comments are requested on the
possible alternatives for EPA regulation
of activities that are not regulated by the
State during the Interim authorization
period. EPA recognizes the potential
problems with this arrangement This
concept resembles that of “Partial
Authorization”, which EPA rejected for
the reasons described above. Ths new
concept also has drawbacks. First, the
regulated community has strenuously
contended that a single entity should
carry out the entire program in a given
State, arguing that a sharing of
responsibility would result In confusion
and duplu’ation of effort for the
agencies, and greatly increased
complexity for regulated firms. Second.
the availability of this arrangement
could encourage some States capable of
qualifying for authorization, to take over
only selected program elements. Third,
the delineation of responsibilities
between the Region and the State would
undoubtedly be a lengthy and difficult
process. Finally, the existence of this
arrangement could remove some of the
incentive for strenuous State efforts
toward authorization. However, this
alternative would assure more
comprehensive control of all hazardous
waste facilities during the interim
authorization period.
Comments are also requested on the
alternatives of requiring control of all
disposal. or additional elements of the
requirements for full authorization under
RCRA and the Impact this would have
on State participation.
Federal Role After Program Approval
Many comments were received
concerning the Federal role after a State
has been authorized as outlined in the
February 1,1978 proposal. EPA has
primary responsibility under RCRA for
protecting public health and the
environment and is charged with
de eloping a consistent and effective
national program to meet this
responsibility. Thus, in authorizing State
programs EPA’s prime concern Is to
ensure that the State program Is at least
as effecthre in controlling at least the
same universe of hazardous wastes as
does the Federal program. The purpose
of EPA’s oversight activities, subsequent
to authorization of a State program, Is to
ensure that State programs are being
operated in accordance with these
regulations.
Federal oversight of State programs is
conducted in a number of ways. The
Agency has encountered much interest
and comment from States and others on
three specific aspect, reporting, review
of permits, and facility inspections.
With regard to reporting, the Agency
has chosen to reduce the number and
complexity of the reports required In
these regulations. Quarterly reports that
will be required are: a list of major
facilities out of compliance, and a
summary of International shipments of
wastes. For States with interim
Authorization a semi-annual report on
progress toward attaining authorization
will be required. Finally, an annual
report, including a list of permit actions
completed and summary Information on
wastes managed (quantities, types,
method of management) Is also required.
It should be recognized that EPA has a
responsibility to develop and maintain a
national data base on the generation
and maciagement of hazardous wastes.
It may be necessary to negotiate
additional reporting “ Jreinents In the
Memorandum of Agreement In
particular cases, such as In a State with
an unproven program. The
Memorandum of Agreement is a more
flexible document than these
regulations. and can be changed to
accommodate expected changes In the
need for nationally significant
information.
Concerning review of permits, the
Agency could not possibly review all
permits Issued by a State, nor Is such a
review necessary or desirable.
Therefore, EPA will only review a
sufficient number of permit applications
and draft permits to assure that the -.
State permit program is being operated
in a sound manner consistent with the
requirements of these regulations.
Accordingly, these regulations require
that authorized States forward to EPA
copies of permit applications, and draft
permits for major facilities only. (The
definition for “major” facilities Is
discussed earlier in the preamble).
Normally, the number of draft pemits or
permit applications reviewed by EPA
should amount to about 10 percent of the
total number of permits processed. In
sonic cases, where a history of sound
program administration by a State
exists; EPA may agree to reduce this
level of review even furilier. in others.
for example, where a State program Is
new and inexperienced, the Regional
Administrator may choose to review
some minor permits as well, In either
case, such agreements should be
contained in the Memorandum of
Agreement.
These regulations lii 123.38 specify
the bases on which EPA will comment
on permit applications and draft -
permits Reasons for each comment will
be given as well as recommendations
for actions to be taken by the State
Director to address each comment The
State Director is also provided with the
opportunity to respond to EPA’s
comments.
In regard to EPA’s conducting
Inspections of facilities, I 123.37
specifies the provisions which will be
included in the Memorandum of
Agreement, normaily Including
notification before EPA conducts
inspections, and opportunity for States
to investigate situations where EPA ha.
reason to believe that violations may be
occurring
Comments are solicited on the
practicality and impact of these end
other oversight procedures.
National Enforcement Information
System. EPA is aware of the need to
centralize reported information
concerning hazardous wastes by both
the Agency and authorized States. It is
necessary for enforcement compliance
monitoring purposes to have a single
system which contains all this
information. Therefore, EPA is
considering requirir.g. as a condition of
authorization, that each State applying
for such authorization either (1) agree to
insert its reporting data directly into
EPA’s national ADP system (discussed
earlier in the preamble under Manifests)
or (2) allow EPA to so Input the data for
the State. The National ADP system is
being designed so that any such State
may use this system for its o n purpose.
Comments are solicited on the
advantages and disadvantages of such a
requirement.
Subpart C
Subpart C sets forth additional
requirements for State programs as well
as the procedures EPA will use lit taking
the required approval, disapproval or
partial approval actions on UIC
programs under sections 1422(b) and (c)
of SDWA.
Elements of on Approvable State UIC
program. In order to obtain EPA
approval for primacy, a State must
demonstrate the ability, adequate legal
authority and resources to Implement
the following program elements:
• Designate underground sources of
drinking water within the State;
• Develop and maintain an Inventory
of injection wells;
• Issue permits or rules that
Incorporate requirements of Part 1
• Issue permits which Include
conditions that incorporate UIC
requirements for monitoring,
recordkeeplng and reporting by the
permittee;
• Conduct a program of enforcement.
Inspection and surveillance of injection
well facilities.
EPA -approval, The Administrator Is to
approve, disapprove or partially
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Federal Register I Vol. 44, No. 116 / Thursday. June 14, 1979 I Proposed Rules
approve State participation In the UIC
program within 90 days of the receipt of
a complete State application by the
State. Prior to ruling on the application. -
EPA must also provide the opportunity
for public comment and hearings.
A State need not develop a regulatory
program for a type of Injection well that
does not exist in that State. In such case,
however, the States must show It has
adequate legal authority to Initiate a
control program should such wells seek
to operate In the State In the future.
Comments are solicited on this
approach. EPA I. particularly concerned
whether States could develop a control
program quicldy enough to Issue proper
regulations where a new type of well
Injection operation commences In a
State.
Unlike the other programs covered by
this Part, EPA may In Its discretion,
approve a State UIC program in part. In
the case of partIal approval, the
Agency’s intention is to approve only a
complete program by type of well. In
other words. EPA would authorize a
State to regulate, for example, Frasch
process mines or hydrocarbon storage
wails If It had the necessary legal
authority end were prepared to carry
out the full range of regulatory
requirements applicable to such wells.
However, the Agency does not intend to
approve a portion of a State program If
the program provides only for partial
regulation. i.e., It provided for State
Issuance of permits to Frasch process
wells but left enforcement up to EPA.
The Agency believes that this approach
is sensible from an administrative point
of view and is least confusing to the
regulated community and public.
Comments are solicited on the
advisability of this approach.
Finally, It should be noted that the
1977 amendments to the Safe Drinking
Water Act have clarified State authority
over Federal facilities within its
boundaries (sections 1477(a) and
1422(b)(1)(D) of SDWA). Nonetheless,
management of wells on Indian lands
remains an EPA responsibility unless
the State has adequate authority to “Subpart D
Implement the program (SDWA section
1477(c)).
In cases where the State Is developing
an application for primacy. EPA Intends
to promulgate the U]C program for
which It is responsible (i.e., on Indian
lands) at the same time as the approved
State program becomes effective. In
cases where a State program Is
disapproved. ZPA will promulgate a UIC
program wIthin 90 days from
disapproval in whole or in part. If a
State informs EPA that the State does
not intend to adopt a UIC program, EPA
Information to EPA, which has been
changed and 123.99. which Is now
contained, In changed form, in 123.110.
The remaining sections (ft 123.105-
123.112) are being proposed for the first
time and were to be promulgated as Part
126 until the decision was made to
Incorporate It into these consolidated
regulations. There will be no Part 126.
Although the final NDPES regulations
specify that State section 404 programs
must designate one agency to be
responsible for issuing permits
(I 123.4(b)(1)). the Agency is
reconsidering this position and invites
further comment on this requlj:ement
(I 123.95(a)). In particular, the Agency
would like to receive comments on
whether such a requirement would
Interfere with State efforts to coordinate
and consolidate their own permit
programs.
The following are major provisions of
Subpart E
Application procedures 0123.105. The
specffic information required of all
applicants Is discussed, as well as
general application procedures. Public
notice must be published for all permit
applications, except when a draft permit
— must be prepared, and all permit
denials. Since, In most Instances, EPA
and the public will review only permit
applications, detailed application
-Information is required.
Draft permits. Section 123.98(c)
provides that the State section 404
programs may circulate permit
applications for public and EPA review
and comment, in most instances.
However, In some cases the State will
be required to reach a tentative
determination and formulate a draft
permit (where the tentative
determination is to issue a permit) for
public and EPA review and comment. (It
should be noted that all the other
programs covered by these proposed
consolidated regulations are required to
formulate draft permits in all cases.)
Draft State 404 permits are required
fon
(1) Discharges which may affect the
waters of another State;
(2) Major discharges;
(3) Discharges into critical areas such
as National Parks and Wildlfe refuges:
(4) General permits; and
(5) Discharges containing toxic
pollutants In toxic amounts and
hazardous substances in reportable
quantities.
Comments are solicited on this list
(which is also the list of activities for
which EPA will not waive its right to
review State permits). In particular, EPA
would appreciate comments on the
following issues;
will promulgate the whole lflC program
for the State within one year (270 days
plus 90 days approval process) of the
effective date of these regulations or of.
40 CFR Part 148 (proposed it 44 FR
23738 (April 20, 1979)), whichever is
later.
Oversight—EPA has a statutory duty
to oversee State UIC Programs. To
enable EPA to carry out this
responsibility, Part 123 requIres States
to provide to the Agency the following
• Access to State files and
documents
• Annual reports;
• Quarterly reports on the compliance
status of major wells;
• A mid-course review after the first
year of program operation to assess the
requirement to perform corrective action
Inihe area of review. The State analysis
will be used by EPA to assess the
associated costs and environmental
benefits, and may result In appropriate
changes In the requirement
In addition, under SDWA the Agency
Is given the authority to enforce against
program violations If the State fails to
enforce adequately.
Procedures for the withdrawal of
approval from a State program provide
the State with the opportunity to present
Its case that withdrawal is not
warranted. If the Administrator has -
cause to believe that a State is nol in
compliance with the SDWA or these
regulations, he must give the State 30
days of notice to demonstrate its
compliance. if not satisfied, the
Administrator must convene a public
hearing not less than 80 days after
notice of the hearing. If, after the
hearing, the Administrator concludes
that the State Is not in compliance. he
must notify the State of the particulars.
The State then has 90 days to give up
the program or come Into compliance.
This process for withdrawal Is different
from the withdrawal process for the
other programs covered by Part 123
because of the difference In the statutes
Involved.
This Subpart sets forth requirements
which are unique to the NPDES which
supplement the Subpart A requirements.
For a further discussion of the NPDES
requirements see the preamble to those
regulations.
Subpart E
The first 14-sections (ff 123.9-123i04)
of this Subpart were promulgated In Part
123 of the NDPES regulations and, like
Subpart D, are discussed in the preable
to those regulations. The only
exceptions are f 123.98. transmission of
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34263
(1) What discharges should be
considered “major”? In this regard EPA
is considering acreage limitations which
might vary In different parts of the
cou’itry. Other discharges may be
considered major based on different
criteria.
(2) Should the list of critical areas be
expanded to Include others?
(3) Are the criteria that toxic
pollutants be present in toxic amounts
and hazardous substances In reportable
quantities proper? EPA believes that a
cut-off is necessary since many
discharges which contain trace
quantities of these substances are not of
-concern. In addition, the criteria must be
clearly defined and workable. On this
basis EPA rejected formulations of this
language which were couched in terms
of “agnificant” of ‘substantial’ since
these may not be readily meaningful in
the context of a particular discharge.
Waivers. EPA solicits comments on
the extent to which the Agency should
continue to receive permit applications
and permits from a State for those
discharges the Agency has waived
review.
Generoiperrnits. Procedures for
public notice of proposed general
permits. review of proposed permits.
Issuance and enforcement are included
In { 123.106.
Coordination procedures. The State
Director must assure coordination of
permit with appropriate Federal and
Federal-State water-related planning
and review processes. as required by
section 404(h)(1)(H) of CWA.
Requirements for Implementing such
coordination are In 123.110.
Review procedures. All permit
applications or draft permits are subject
to review by EPA and the public
(although under 123.92 EPA may waive
such review in many cases). During the
review process, the Regional
Administrator provides opportunity for
comrner.t by the Corps of Engineers, the
Fish and Wildlife Service and the
National Marine Fisheries Service, as
well as from other interested Federal
agencies, and these must be considered
In his or her review.
Waters Subject to Stole Regulation
Under section 404(g)(1) of CWA, the
Corps of Engineers will, In all cases.
retain jurisdiction over disposl of
dredged or fill material into those
waters of the United States, together
with their adjacent wetlands, that are
subject to the ebb and flow of the tide
and/or are presently used, or may be
susceptible to use for interstate
transport or foreign commerce. A State
may apply for a section 404 authority to
regulate all other waters within the
State. As a prerequisite for program
approval ( 123.93) an agreement is
required between the State and the
Corps of Engineers, which sets forth a
description of those waters over which
the Corps of Engineers will retain
jurisdiction, end those watBrs over
which the State will have jurisdiction.
Major Issues
(1) An earlier formulation of these
regulations provided for preparation by
the States of a draft and proposed
permit prior to Federal review. Several
reviewers expressed concern that
processing procedures, and In particular,
the processing schedule for permits,
were unnecessarily lengthy end
complex. EPA’s specific concerns (based
on comments received) included:
(a) The three-stage process would
substantially extend the time required to
process applications. The 1977
amendments to the CWA, together with
Its legislative history, establish a strong
sense of Congressional insistence on the
elimination of unnecessary delay in
section 404 permit processing.
(b)Due to the nature of activities
regulated under section 404, EPA
believes that public participation and
right to comment will usually be
adequate If the permit application Is
circulated rather than a draft permit.
The proposed regulation has been’
redrafted to eliminate the “draft p rmlt”
and the “proposed permit” stages In
most Instances, except as described
above, and thus to provide for public
and agency review Input during a single
continuous period that normally will not
exceed 90 days from receipt of the
permit application. Safeguards were
added to ensure that permit applications
are complete. To ensure that there is
adequate basis for review of specific
projects provision was made for the
Regional Administrator to require
submission of additional Information.
Including a draft or proposed permit
where appropriate. EPA believes that
thi. process more nearly accords with
the overall Congressional emphasis on
timely processing of section 404 permit
applications, and is consistent with
meaningful review. However, this
approach differs from the other
programs under this part, which require
preparation of a draft permit In all cases
as a basis for public comment.
Comments on this Issue are solicited.
(2) By far the most controversial Issue
raised In the review of this proposed
regulation was the Interpretation of
section 404(f)(1J(A) of the Clean Water
Act, as treated in 0 123.107 of the
proposal. Section 404(fXl)(A) provides
that discharges of dredge or fill material
In connection with certain activities
enumerated In section 401(fl(1)(A)
through (F) are not subject to regulation
under the 404 program. with the caveat
in section 404(fl(2) that any discharge of
such material Incidental to any activity
having as its purpose to bring an area of
navigable waters into a use to which It
was not previously subject, where the
flow or circulation of navigable water
may be Impaired or the reach of such
waters may be reduced, will require a
404 permIt,
The background and legislative
history of section 404(fl(1)(A) Is
exceedingly complex and has led to
several schools of thought on what the
section really means. At one extreme,
proponents of a liberal interpretation
argue that section 404(f)(1)(A) exempts
alL or virtually all discharges of
dredged or fill material associated In
any way with agricultural, silvicultural.
and ranching activities, except where
such activities are recaptured by section
404(fl(2). Under this view, neither the
word “normal” nor the specific activities
listed significantly limit the scope of the
exemption. A more moderate view is
that the word “normal” is Intended to
signify that the exempted farming.
silvicultural. and ranching activities
must be established and ongoing, and
that the exemption only extends to the
particular activities named In the statute
OT c’ther activities of similar character.
At the other extreme, proponents ci a
conservative Interpretation take the
view that section 404(f)(1)(Aj refers to
activites which do not involve
discharges (either because no earth Is
moved, there Is no point source, or no
waters of the United States are
Involved), and that such activities are
not merely exempt (e.g.. still subject to
(fl(2). but rather are excluded entirely
from regulation under section 404. Under
this view, activities which are not
excluded will always need a permit.
There are several variations of these
Interpretations which Incorporate
components of both,the exclusion and
exemption approaches and construe the
listed activites In various ways. The
Interpretation of section 404(f) Is
exceptionally complex, especially since
no one view Is consistent with both the
literal language of the statute and all the
often ambiguous and conflicting
legislative history.
These regulations follow a middle
ground. Section 123.107 specifies that
any discharge “that may result from” the
named activities “is not prohibited by or
otherwise subject to regulation, ’ except
when recaptured by the provisions of
section 404(Q(2). The proposed
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Federal Register / Vol. 44. No. lie I Thum ay, June 14, 1979 ! Proposed Rules
regulation defers to the language of the
statute, which when taken literally.
clearly contemplates that discharges of
dredge or fill material may occur in
conjunction with the activities listed in
(f)(1)(A). The practical effect of this
language is to assure that such activities
are not subject to the permit
requirement. whether or not any actual
discharge or dredge or fill material is
associated with them. Consistent with
section 404(f)(2). however, the regulation
precludes any such exemption where an
sctlvitiy involves the discharge of
materials containing any section 307(a)
toxic substance; or, any discharge
Incidental to an activity which converts
waters of the Untied States to new uses,
where flow or circulation may Impaired
or the reach of the waters reduced.
The proposed regulations interpret the
exemption in 404ffl(1)(A) as applicable
only to the activities ,iomed in the
statute and other activities of essentially
the same character as those named. This
Interpretation derives from the “such
as” language of (fl(IXA), which in EPA’s
view, precludes the extension of the
exemption for “normal farming.
silvicultural, and ranching activities” to
activities that are unlike those named.
Support for this position is seen In
paragraphs (C) and (D) of subsection (1),
which provide for specific farming and
silvicultural exemptions in addition to
those in (fl(1)(A). If (f)(1)(A) intended an
across-the-board exemption for
agricultural. silvicultural, or ranching
practices, there would have been no
need for the additional specific
exemptions of (f)(i) (DJ and (E).
Part 124—Procedures for Dedsion..
m ’ldng
Whol Does This Port Do?
Proposed Part 124 establishes the
procedures EPA will use in Issuing
RCRA. UIC. PSD and NPDES permits
either separately or in combination with
each other. It sets the framework for
receiving permit applications, writing
draft permits. soliciting public comment
on them, and issuing the final permit.
Where NPDES permits are concerned,
this Part also contains the procedures
for conducting evldentiary hearings.
These Include both procedures for the
traditional evidentlary hearing (Subpart
EJ and special procedures for “initial
licensing” (Subpart F). (As discussed
below, EPA believes that evidentiary
hearings are not required for issuance or
modification of RCRA, UIC and PSD
permits.) Some of the requirements of
this Part are made applicable by Part
123 to States with approved permit
programs.
In addition, this Part Includes
procedures for Issuing permits
implementing the “prevention of
significant deterioration” (PSD)
provisions of the Clean Air Act. These
procedures are very similar to those
presently contained in 40 CFR 52.21(r).
No parallel requirements have been
Included in Parts 122 and 123 because
the established mechanisms for
approving State programs under the -
Clean Air Act are somewhat different
from those for approving other permit
programs. Consolidating the procedures
Is the aspect of consolidation with most
immediate benefit to those affected,
EPA will explore the possibility of more
comprehensive consolidation in the
future.
Subpart A
Basic Permit Issuance Procedures
Under the permitting procedures -
established by the Part, permits must
first be applied for In accordance with
permit application requirements set
forth in Part 122, (or 40 CFR 52.21 in the
case of PSD permits). Alter receipt of a
complete application a draft permit will
be prepared under 1124.6. ‘l’bis permit
must be accompanied by a “fact sheet.”
for “major” permits, explaining the basis
for the draft permit in some detail under
I 124.9. A “statement of basis” must be
prepared for all other permits under
124.8. Because there are practical
limits to EPA’s ability to explain each of
the permits it issues in comprehensive
detail, the discussion in the fact sheet or
statement of basis should be
proportional to the importance of the
Issues involved and the degree of
controversy surrounding them.
Modifications to permits and processed
as draft permits in accordance with
I 124.6, under the requirements of
124.5 and I 124.7. except or minor
modifications as described under
122.9(g).
Under I 124.10, an “administrative
record” must be assembled, containing
appropriate supporting documents.
When the draft permit has been
formulated and public notice Is issued
under 1124.11, I I 124.12 and 124.13
provide for a comment period and, in
suitable cases, a public hearing. This
process will provide a forum for any
Interested persons to bring forward any
comments or questions they may have
about the draft permit or Its supporting
materials. Alter the comment period has
closed, EPA will prepare and Issue the
final permit under 0124.17. It will be
accompanied by a response to all the
significant comments received under
f 124.19. This response to comments
plus any additional supporting material
will constitute a final administrative
record for the final permit under
0124.20. When the final permit has been
issued, there will be an opportunity
under I 124.21 for discretionary review
of RCRA. UIC and PSD permits by the
Administrator. In the case of NPDES
permits, there will also be an
opportunity for an evidentiary hearing
and opportunity for appeal to the
Administrator following the evldentiary
hearing under Subpart E or F.
A few of the provisions of Part 124.
particularly those affording b4sic public
participation in permit Issuance. gre
applicable to State programs (except fOr
State PSD programs). States must
prepare a draft permit, provide public
notice and opportunity for a hearing and
allow the public 30 days to comment on
the draft permit before final permit
Issuance. A statement of basis or fact
sheet (for major permits) Is also
required.
Hearing Requirements JorRCRA. UIC
PSD and NPDES P ’opnms
The procedures for issuing RCRA, LflC
and PSD permits are relatively more
simple than those for NPDES permits
both because the programs are newer
and because the underlying statutes are
- - not as detailed as the applicable
provisions of the Clean Water Act The
major difference between the
procedures for these three programs and
those for the NPDES program as that no
provision for the traditional form of
evidentiary hearing is made for RCRA.
UIC or PSD permits, while a full
evidentlary hearing (under Subpart E or
F) Is required for NPDES permits.
Three Courts of Appeals have held
that the Clean Water Act requires an
evidentiary hearing before NPDES
permits can be issued. However, these
decisions rested largely on specific
Interpretations of the language of the
Clean Water Act, and EPA does not
believe that the other three statutes
contain analogous provisions. To the
extent the decisions expressed a
broader concern for reasoned and
documented decision-making, EPA
shares that concern and believes there
are alternative and preferable wars of
satisfying It.
Unlike the Clean Water Act, the
Resource Conserva in and Recovery
Act does not explicitly require any
“hearing” at all before issuing permits,
Section 3008(bl of RCRA provides what
EPA interprets to be an adjudicatory
hearing for permit revocation, but
neither this section nor any other
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34265
provides any procedures for permit
tssuance.
Similarly, there is no requirement in
section 1422 of the Safe Drinking Water
Act that any hearing Is a prerequisite to
EPA Issuance of a UIC permit. Where
Congress intends that a hearing must
precede Issuance of a permit, the
intention is manifest in the language of
the Act, as in the requirement for a
hearing on the record for State
permitting under section 1421(c)(2)
(temporary permits) and section 1424
(interim permits). Additionally, since
section 1421(b)(1) of SDWA authorizes
State regulation of underground
pjection by rule as well as by permit,
Congress could not have intended for
Informal rulemaking procedures to apply
to the former, but trial-type procedures
to apply to the latter.
Section 185 of the Clean Air Act does
require a hearing before PSD permits are
issued, but the text of the statute makes
clear that a formal adjudicatory bearing
was not intended. See 165(a)(2). No
person who commented In the extensive
rulemaking leading up to promulgation
of EPA’s current PSD regulations alleged
that the statute required a formal
hearing
When the statute does not require any
hearing at all, the traditional rule of
thumb is that evidentiary procedures are
not required even for licensing. EPA
takes the silence of these statutes on
necessary EPA permitting procedures
(or the explicit rejection of adjudicatory
hearings, in the case of ND), as an
invitation to the agency to develop
permitting procedures that are
expeditious and informal and still
satisfy the requirements of due process
and sound administrative procedure.
Accordingly. EPA has developed the
procedures in these proposed
regulations which are described below.
These should be enough to allow a
thorough ventilating of the facts and
policy choices at issue in any permit
proceeding.
Coordination of One Per rail Program
With Another
A major purpose of these regulations
Is to provide as much coordination as
feasible between the permit programs
cot ered To some extent, this should be
accomplished simply by the parallel
structure of these regulations in general.
pre.propoeal comment argued that the
ference to “order In auction 3008 (b) make a
hearing aeceasai , since The granting of an Initial
license may be an “arder” under the APA. Howevi.,
the tern, ii dearly cued in section song a. a
,ynon ,m for the ‘complianc, order,” desn,4bed In
paragraph (al. and nothing more. See. e.g. aectioc
SOusic) which ii entitled “Requirementa of
Compliance Order,” and then Immediately cue
“order” a. a .ynonyin.
and of the common procedures in Part
124 in particular. In addition, these
regulations prov e several specific
mechanisms for closer integration of
permit decisions:
Under 124.4, facilities or activities
which will need a permit under more
than one of the programs covered will
be able to delay filing the applications
due rst in order to consolidate them
with the application due last. by
providing EPA with written notice of
intent to delay the filing date, Part A
applications under the RCRA program
are exiguded from this provision -
because the submission of a Part A
RCRA application triggers Interim status
under section 3005 of RCRA. and interim
status Is only available for a limited
period. ND applications are also
excluded from this provision. Because
EPA is currently allocating Increment on
a first-come, first-served, basis (43 FR
28401, June19, 1978], postponement of a
source’s application date could cause
delay In processing later applications
from other sources. This provision could
also present an opportunity for abuse by
applicants seeking unfaIrly to reserve
Increment In the future and to escape
the requirements imposed for
construction of a source that would
affect certain non-attainment areas after
July 1,1979. Such an applicant could
attempt to unfairly reserve Increment
and escape the July 1 deadline by
claiming that since Its full application
had properly been postponed under this
se t . I’ shc i ,. . be treated as having
been filed earlier. EPA specifically
solicits comments on this exclusion of
the PSD program. EPA solicits comments
on this general approach, and whether
there are certain other categories of
permit applications that should not be
delayed for purposes of consolidation.
The regulations provide explicitly for
Joint Issuance of draft permits for a
facility or activity which requires
permits under more than one statute.
Joint comment periods, and Joint
hearings. Where EPA is Issuing all the
permits, It may elect to choose this
,consolidated route at any time. Where
responsibility Is divided between EPA
and a State, the regulations encourage
such Joint proceedings by mutual
agreement. EPA solicits comments on
this approach, and whether there are
certain other categories of permit
applications that should not be delayed
for purposel of consolidation.
These regulations also prescribe ways
to coordinate the traditional evidentiary
hearing portions of the NPDES
procedures with the “hybrid”
procedures that will be used to make
RCRA. UIC and ND permit decisions,
Briefly, they allow the Initial comment
proceedings on the draft permit to
become formal when that might avoid
the need for a subsequent evidentiary
hearing, and allow NPDES evidentiary
hearings to consider matters relating to
RCRA. UIC and ND permit decisions
which are indissolubly linked to the
decision on the NPDES permit They
thus provide some limited flexibility to
shift the consideration of issues back
and forth between the two stages as
circumstances dictate. Although stays
based on cross-effects are possible
under certain limited circumstances
under f 124.18 the general pattern will
be that RCRA and UIC permits will not
be stayed while an evidentiary hearing
on an NPDES permit Issued to the same
source is In progress. However, a stay of
contested P 50 permIt term(s) is
unavailable under proposed f 124.18.
Review of a ND permit Is uniquely
dependent on the resolution of earlier
PSD applications because of the first-
come, first-served allocation scheme
being employed by EPA for these
permits. The stay provisions of 124.18
might seriously impede the ability of
EPA to process later PSD applications
expeditiously.
Where the new “initial licensing”
procedures for NPDES permits can be
used, a much greater degree of
procedural consolidation should be
possible. Here the regulations provide
that all permits which have been
consolidated with the NPDES permit
shall simply be passed through the same
procedures as the NPDES permit EPA
explicitly invites comment on whether
this approach might “overjudicialize”
the process of Issuing RCRA. UIC or
PSD permits, and on alternative
approaches that might be acceptable.
Relationship of Subpart A to the Final
NPDES Regulations, Part 124
The final NPDES regulations that were
recently promulgated contain a number
of requirements that are similar, but not
Identical, to those required for all three
programs In Subpart A. Changes to the
Part 124 procedures for the NPDES
program are the result of an effort to
provIde uniform procedures for the
issuance of permits that accommodate
the programmatic and statutory
requirements of all three permit
programs. These changes include:
Consolidation of Applications. NPDES
permit applications can now be
consolidated under I 124.5 with permit
applications for other programs, and
application deadlines may be delayed
for purposes of this consolidation.
Statement of Basis andFoct Sheet,
The statement of basis required for
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Federal Register I Vol. 44, No. 116 / Thursday. June 14. 1979 I Proposed Rules
NPDES permits under the Consolidated
regulations is the sante as that required
under the final NPDES regulations
(0124.33). However, the requirements
for fact sheets required for major NPDES
permit. have been changed slightly to
enable the establishment of common
requirements. The changes were mostly
In the nature of providing more general
requirements than those applicable to
NPDES fact sheets In the final NPDES
regulations. Certain additional unique
NPDES requirements for fact sheets are
provided In Subpart D, and these are
Identical to those required under the
final NPDES regulations.
Public Hearings. The public hearing
requirements in 0 12413 of the
consolidated regulations are
considerably more detaIled than those
provided under the final NPDES
regulations (see 0 124.42). and contain
additional requirements that are
designed to provide procedural
safeguards for the Issuance of RCRA,
UIC and PSD permits, which do not
require evidentiary hearings. NPDES
permits must nonetheless be subject to
subsequent evidentiary hearings under
Subpart E of these regulations where
NPDES permit provisions are contested.
Where related permit provisions are
contested under NPDES RCP.A. LJIC or
PSD permits for the same facility or
activity, these provisions may be
consolidated in the NPDES evidentiary
hearing to facilitate decision.making on
the related issues.
Subpart B—Specific Procedures
Applicable to RCRA Permits
One additional requirement for RCRA
permits is provided in Subpart B. Public
notice of the receipt of a permit
application for a major hazardous waste
management facility Is required under
0124.31. in addition to the public notice
of the issuance of a draft permit
required under f 124.11. This additional
notice will provide both States and the
general public with early notice of a
request to permit a hazardous waste
management facility and should
facilitate coordination with State
programs regarding the issuance of a
permit to a facility located in that State.
The permitting and siting of these
facilities is expected to be controversial
In some areas of the country, and this
section seeks to ensure full public
participation in the permit decision
process.
In addition, a summary of significant
permit applications may be prepared
and will be made available upon
request.
Subpart C—Spsdflc Procedures
Applicable to PSD Permits
Incorporation of the PSD permit
requirements Into this Part Is not meant
to change the structure of the program
currently set forth at 40 R 52,21. The
procedures set forth at 40 CFR 52.21(r),
which Is the analogous provision of that
section. are very similar to the ones In
Subpart A.
One specific provision has been
Included In this Subpart. It provides that
PSD applications from small source,
shall be processed expeditiously under
the existing Part 52 regulations.
In the past, determinations by EPA
that a source was required to apply for a
PSD permit have been litigated as final
agency action. EPA believes that In most
cases such litigation represents an
avoidable waste of Judicial time and
conflicts with the principles of
administrative primary jurisdiction.
Accordingly, the approach Implicitly
adopted by these regulations is that the
determination that a source must apply
for a PSD permit Is not reviewable when
It Is made. Instead, the source may
• challenge that threshold determination
during the permit Issuance process and
a final decision will be made at the time
of the final decision of other Issues.
hi some cases such as those In which
the threshold determination raises
purely legal Issues, this course may not
be appropriate. In most cases the
Regional Administrator will be able to
designate the threshold determination as
final action subject to immediate
judicial review by publishing It In the
Federal Register. See section 307(b) of
the Clean AirAcL
Subparts D, E and F—Specific
Procedures Applicable to NPDES
Permits
- These Subparts contain a number of
additional requirements for NPDES
permit processing that are largely
unique to the Clean Water Act and the
.NPDES program, Including evidentiary
hearing procedures. They incorporate
without substantive change
requirements contained In the final
NPDES regulations that were recently
promulgated.
Note—The final regulations for Parts 122—
124 wIll include a plan to evaluate ft within
five years of Implementation. The plan will
describe oriterla for assessing the degree of
success of the regulations The sources of
data that will be used to evaluatithe
regulations under these criteria, and the
resources anticipated as neoeuaiy to gather
and analyze the data and oonduci the
reviews.
except for the UIC and RCRA
provisions, does not constitute a major
regulation requiring preparation of an
economic impact statement under
Executive Order 12044.
Analyses of the environmental,
economic and regulatory-Impacts of the
entirety of Subtitle C. RCRA, Hazardous
Waste Management (including the
ECRA programs In Parts 122-124
proposed) and on the UIC program are
being or have been performed.
Drafts of the Environmental Impact
Statement and the Economic Impact
Analysis on the RCRA program are
available by contacting:
Ed Ccx. Solid Waste Infonnation Office.
Sevironmantal Protection Agency, SB West
St. Cleft Street, Cincinnati, Ohio 42580
(513.4848491). -
In addition, copies of these RCRA
documents are available for review in
the EPA Library Reading Room, Room
2404, Waterslde Mall, 401 M Street. SW.,
Washington. D.C.. and in the EPA
Regional Office libraries. Comments on
these documents must be received on or
before September 12, 1979. Final
versions of these documents will be
Issued at the time of promulgation of the
RCRA Part 250 regulations.
Comments and the following
supporting documents on the UIC
-program will be available for public
Inspection and copying at a reasonable
fee during normal business hours at the
Environmental Protection Agency,
Public Information Reference Unit.
Room 2922, 401 M Street, SW.
Washington, D.C. 20880. Copies of the
supporting documents will also be
available for Inspection and copying in
the Library at the ten EPA Regional
Offices.
The supporting documents are:
1. “AnalysIs of Costs Underground
Injection Control Regulations. Class I
and Class HI.”
2. “Methods and Costs for Inventory
and Assessment of injection Wells
Covered Under Classes IV and V.”
3. “Estimated Cost of Compliance,
Proposed Underground Injection Control
Program Regulations, Class DWells.”
4. “Draft Environmental Impact
Statement.State Underground injection
Control Program, Proposed Regulation •
5. “Supplement to Draft EIS,
Reproposed Regulations.”
Dated: June 4,1979.
Douglas M. Coitle,
Administrator.
The Environmental Protection Agency
has determined that this document,
1. It is proposed to revise Parts 122,
123 and 124 as follows:
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34267
PART W—PROORAM
DESCRIPTIONS: THE HAZARDOUS
WASTE PERMiT PROGRAM THE
UNDERGROUND INJECT ION
CONTROL PROGRAM; THE NATIONAL
POLLUTANT DiSCHARGE
EUMINATION SYSTEM; AND THE 404
DREDGE OR Flu. PROGRAM
9 ’pt A—General Program Requirements
1 1 Purpose and scope.
1223 DefinitIons.
1224 Slate authadtles .
122.5 SIgnatories la permit pucvlm foams.
122.6 ApplicatIon fore permit
1 2.7 Permit Issuance: effect cia permit
122.8 DuratIon of permits. continuation of
expiring permits; and tranaferabllfty c i
—is.
122.9 Review and modification or
revocation and reissuance of permits.
122.10 TermInation of permits.
122.11 CondItions applicable to all permits.
122.12 Schedules of compliance.
122.13 EstablishIng permit terms and
conditions.
122.14 RecordIng and reporting of
monitoring results and compliance by
permittee,.
122.15 Noncompliance repurtlug
122.10 ConfidentialIty of information.
Subpart B—Additional Requksiusnts br
#. . ,Jous Waste Programs Under the
Resource Conservation and Rscovs. , Act
122.21 Pwpoae and scope.
122.22 Law autborIzI g hazardous waste
control program.
12223 Application fur a permit
122.24 EstabLishing pvruilt terms and
conditions.
122.25 Special HWM Facility permits.
122.25 Pereritsby rule.
122. Reporting requliements.
122.28 Emergency Authorization.
Subpart C—Additional Requirements for
UIC Programs Under Vie SOWA
122.31 Pwpose and scope.
122.32 Law authorizing UIC program.
222.33 DesignatIon of underground drinking
water sources.
122.54 Classification of Injection wells.
122.35 Authorization of underground
Injection by rule.
122.36 Authorization of underground
Injection by permit
12237 Area permits.
12238 Corrective action.
122.39 General Prohibition against
moveoaent of fluid Into underground
sources of drinking water.
12240 Temporary Authorization.
122.42 Establishing UIC permit terms and
conditions.
12243 No.icompllance reporting.
122.44 SpecIal Requirements for wells
managing hazardous wastes.
12245 ElimInation of ill class IV wells
12240 Inventory of class V wells.
Subpart D—AddlVenmi Requirement. for
National Poflutant Dtedierge Thuinitisn
Iptum Programs Under Oe m Wi Ant
122.81 Purpos. and scope.
122.62 Law authorizing NPD permits.
122.63 ExclusIons.
122.54 ApplIcation to, a permit
122.56 Effect of as NPD23 permit
122.6$ Ourattea ci permits.
122w Pr bitIoes.
i22.& Mdltionsl medltlnss applicable to
122J9 Applicable limitations, standards.
prohibitions arid co ’- 4 ” 1 onL
122.70 r IulaUon and specification of
effluent limitations arid standards
122.71 NPD23 requirements for recording
and reporting of monitoring reports.
122.72 NPDt noncompliance importing
requbemeats.
122.71 ModIfication or revocation and
1ssuance of NPDES permits
22221 Termmnsbon of NPOES permits.
122.75 Disposal of pollutants Into wells. Into
publicly owned treatment works erby
land applicationzs.
122.78 Concentrated animal feeding
operations.
122.37 Concentrated aquatic animal
produdlon facilItIes.
122.78 Aqenacaltias , ...4.. .i. .
122.79 Separate storm sews.
122.9) Sliolanltural acti villas.
122.81 New sources and new dlscbaipars.
122.82 lWDFS general permit program.
122.83 SpecIal considerations under Federal
law.
Appendix A—Point Source Categories an8
Permit Expiration Dates.
Authority Resource Conservation and
Recovery Act. 42 USC 0901 et aeq Safe
Drinking Water Act. 42 USC 300f et seq. and
Clean Water Act 33 USC 1251 ci seq.
Subpart A—General Progmmi
Requirements
• 122.1 Purpos, and ecops
(a) The regulations In this Part define
three permit programs administered by
EPA. They apply to the permit programs
as they are administered by approved
Slates, to the extent incorporated by
reference In Part 123. These permit
programs arm
(1) The Hazardous Waste Permit
Program (the RCRA Program) under
section 3005 of the Solid Waste Disposal
Act as amended by the Resource
Conservation and Recovery Act of 1979
(Pub. L 94-580. as amended by Pub. I ..
95-09) (RQLA)
(2) The Underground Injection Control
Program (the UIC Program) under
section 1421 of the Safe Drinking Water
Act (Pub. L 93-823. as amended by Pub.
1.. 95-190) (SDWA) and
(3) The National Pollutant Discharge
Elimination System (the NPDES
Program) under sections 318402 and
405(a) of the Clean Water Act (Ptib. L.
93-80a as amended by Pab I. 9 5-237
and Pub. I i5-576 (CWA3.
(b) These regulation. also app to
State section 404 pr ame under CWA
as set out In Part 1.23.
(c) The consolidation f these permit
programs Into one jetof regulations 1$
authorized by aections 101 (I) and 501(a)
of the C1 VA. sections 1006 and 2 of
RCRA. and section 2450 of SDWA.
(d) The regulations In Parts 123.124.
125,148 and 250 also apply to the &ZA.
thC. NPDES and section 404 permIt
programs In the following mannan
(1) Part 123 describes the
requirements for State pazticlpatlnu Iii
these programs:
- (2) .Part 124 describes the procodures
for issuing permits. These procedures
apply in their entirety to EPA and In part
to approved Slates as described An Part
123; and
(3) Subchapter N of this Chapter and
Parts 125,148 and 250 describe
technical criteria and standards for
determinations under the NPDES. UIC
and RCRA programs, respectively. They
apply to both EPA and State programs.
The technical criteria of 40 CFR Part 230
apply to State section 404 programs.
(e) The regulations in this Part and In
Parts 123 and 124 establIsh the
requirements for public participation In
the State permit issuance process and In
the approval of State RCRA. UIC.
NPDE and 404 programs. These
requirements carry out the purpose, of
the public participation requirements of
40 CFR Part 25. and eupercede the
requirements of that Part as they apply
to actions contained under Parts 122,123
and 124.
• 1223 DefinItions.
The following definitions apply to this
Part and to Parts 123, 124 and 125. Terms
not defined In this Part shall have the
meaning given by the appiopnate Act
(a) General defwiliona
Admlnlstratof’ means the
Administrator of the United States
Environmental Protection Agency. er
his/her designee.
“Application” means the ‘A
standard national forms fcnr applying for
a permit. including any subsequent
additions, revisions or modifications to
the form or forms approved by EPA for
use In approved States, Including any
approved modifications or revisions.
“Appropriate Act and/or Regulations”
means the Clean Water Act (CWA) the
Solid Waste Disposal Act, as amended
by the Resource Conservation and
Recovery Ad (RCRA); the Safe Drinking
Water Act (SDWA) the Clean Air Act
and applicable regulations
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Federal Register I Vol. 44. No. 116 I Thursday. June 14. 1979 1 ,Proposed Rules
promulgated under these laws. This term
Is used to describe the application of
general requirements to spedflc
program activities under one or more of
the above laws, as appropriate.
“Approved program” means a State
program which has been submitted to
and approved by EPA under Part 123
and the appropriate Act. An ‘approved
State” I . one administering an
“approved program.”
“Aquifer” means a geological
formation, group of formations, or part
of a formation that Is capable of yielding
useable quantities of groundwater.
“CWA” means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act) Pub. 1.92—
500, as amended by Pub. L. 95-217 and
Pub. 1. 95-578 33 U.S.C. 1251 et seq.
“Contaminant” means any physical.
chemical, biological or radiological
substance or matter in water.
“Contaminant” includes, but Is not
limited to or by. the term pollutant, as
defined in this Part.
Director” means the Regional
Administrator, or the State Director, as
defined In this section. as the particular
context may require.
lCommenL Where there is no approved
State program. the term “director” refers to
the Regional Administrator. Where there Is
an approved State program, the term
“director” normally refers to the State
director. In some circumstances, however,
EPA retauis authority to take certain actions
even where there Is an approved State
prcgran: e.g., where EPA issued an NPDES
permit prior to the approval of a State
program. EPA may retain Jurisdiction over
that permit after program approval, see
• 123.71 and 123.91. In such cases, the term
“director” means the Regional Administrator
and not the State Dlrector.j
“Environmental Protection Agency”
( EPA”) means the United States
Environmental Protection Agency.
“Facility or activity” means any
facility or activity (including land or
appurtenances thereto) that Is subject to
regulation under the RCRA. UIC, or
NPDES programs.
“Ground water” means water in the
saturated zone beneath the land surface.
“Hazardous waste” has the meaning
given In section 1004(5) of RCRA as
further defined and identified in 40 CFR
Part 250, Subpart A. 250.13 and .14
(proposed st43 FR 58955-9).
“Interstate agency” means an agency
of two or more States established by or
under an agrerment 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
wuler the appropriate Act and
regulations.
“NPDES” (“National Pollutant
discharge Elimination system”) means
the national program for Issuing,
modifying, revoking and reissuing,
terminating, monitoring, and enforcing
permits pursuant to sections 402. 318,
and 405 of CWA. The term Includes spy
State or Interstate program which has
been approved by the Administrator.
“Owner or Operator” means the
owner or operator of any facility or
activity subject to regulation under the
RCRA. UIC, NPDES or 404 programs.
“Permit” means a permit or equivalent
control document that complies with afl
of the requirements and procedures of
this part and Parts 123 and 124. Issued
by EPA or an approved State. In Part
124, references to “permit” may include
permit modification, revocation or
denial.
“Person” means an individual,
corporation. partnership, association.
State or municipality or Federal agency.
Under RCRA and CW& “person” also
means a commission, political
subdivision of a State, or interstate
body. Under RCRA only, “parson” also
means a trust, firm or joint stock
campan and under SDWA only.
“person” also means a company or -
federal agency, and includes officers,’
employees, and agency of any
corporation. company, association, State
municipality, or Federal agency.
“Pollutant” means dredged spoil. solid
waste, incinerator residue, filter
backwash, sewage. gart age, sewage
sludge, munitions, chemical wastes,
biological materials, radioactive
materials, heat, wrecked or discarded
equipment, rock, sand, cellar di ii and
Industrial, municipal, and agricultural
waste discharged into water. It does not
mean:
(1) Sewage from vessels; or
(2) Water, gas, or other material which
is Injectedinto 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 such
State determines that such Injection or
disposal will not result In the
degradation of ground or surface water
resources.
fConimenL’ The legislative history of the
CWA indicates that “radioactive materials”
as Induded WIthin the definition of
“poSulant” hi section 502 of the CWA means
only radioactive materials which are not
encompassed In the definition of source,
byproduct, or special nuclear materials
defined by the Atomic energy Act (AEA( of
1954, u amended, and regulated under the
AEA. Enamplsa of radioactive materials not
covered by the ABA and, therefore, included
within the term “pollutant” or radium and
accelerator produced Isotopes. See Train v.
Colorado Public Interest Research Gmu
Inc U.S. 1(1976) 1
“Publicly owned treatment works” or
°POTW” means a treatment works as
defined In section 212 of the Clean
Water Act (CWA), which is owned by a
State or municipality (as defined under
I 122,3(d)), excluding any sewers or
other conveyances not leading to a
facility providing treatment.
“Regional Administrator” means the
Regional Administrator of the
appropriate Regional Office of the
Environmental Protection Agency or the
delegated representative of the Regional
Administrator.
“Regulated activity” or “Activity
subject to regulation” means any
activity subject to regulation under the
RCRA. UIC, or NPDES programs.
“RCRA” means the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976 (Pub. 1.94—580, as amended
by Pub. I. 95-409).
“SDWA” means the Safe Drinking
Water Act (Pub. L 95—523, as amended
by Pub. 1.95-1900).
“Schedule of compliance” means a
schedule of remedial measures including
an enforceable sequence of interim
requirements (e.g., actions, operations,
or milestone events) leading to
compliance with the appropriate Act
and regulations.
“Secretary” means the Secretary of
the Army, acting through the Chief of
Engineers. *
“Site” means the land or water area
upon which a facility or activity is
physically located or conducted,
Including but not limited to adjacent
land used for utility systems, as repair,
storage, shipping or processing areas, or
other areas incident to the controlled
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 Teffitory of the Pacific Islands
(except In the case of RCRA), and the
Northern Mariana Islands (except in the
case of (CWA). -
“State Director” means the chief
administrative officer of a State agency
or Interstate agency approved under
Part 123 by EPA to administer a Stale
program, or the delegated representative
of the State Director. If responsibility is
divided within a State agency or among
two or more State or interstate agencies,
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342
“State Director” means the
administrative officer authorized to
perform the particular procedure or
function to which reference is made.
“Stratwa” means a single sedimentary
bed or layer, regardless of thickness.
that consists of approximately the same
kind of rock material. Strata is the plural
of stratum.
‘Totat dissolved solids” (“TDS”)
means the total disaolved (filterable)
solids as detennined by use of the
method promulgated at 40 CFR 136.3.
Table I. (The, method Is described in
EPA’s “Methods for Chemical Analysis
of Watet and Wastes, 1974.” pages 266-
387.)
“Underground Di4nldng Water
Source” or “Underground Source of
Drinking Water.” except as specified in
5 146,04 means’
(1) An aquifler or Its portion supplying
drinking water for human consumption:
(2) An equifer or Its portion in which
the grour.dwater contains less than
10.000 mgll total dissolved solids; or
(3) An aquifer or Its portion
designated as such by the Administrator
or the Director:
(Comment Both the RCRA and UIC
programs will use this definition of
underground source of drinking water
(USOWI However, under the UIC program
latitude Is gIven to the responsible .utholit)
In de.:gnatiog USDW’i (ace ft 122.33 and
348.04) As a balance to this latitude,
designations under the UIC program must be
made after public bearing and are subject to
the appros al of the Mnnnistrator.j
(bj Definitions applicable to RCRA
program requirements
“Application, Part A” means that part
of the application which a RCRA permit
applicant must complete to qualify for
Interim status under section 3005(e) of
RCRA and for consideration for a
permit.
(Comm.iit: Part A of the application
consists of Form I (General Information) and
Form 3 (Hazardous Waste Information
Summary) as proposed In todays Federal
Register as “Public Notice of the
Consolidated Application Form.”)
“Application Part B” means that part
of the application which a RCRA permit
applicant must complete to be
considered for a permit,
lCommen ERA Is not proposing • specific
form for Part B of the permit application.)
‘Authorization” means authorization,
or approval by EPA of a State program
which has met the applicable
requirements of section 3006(b) of RCRA
and Part 123. Subparts A and B.
“Close Out” means the point In time
at which Hazardous Waste Management
facility owuer,foperatms di, linue
accepting hazardous waste for
treatment, storage or disposal.
lComment ‘This definition baa beeti
changed from the one Induded In 40 CFR Part
250, Subpart 25041 (proposed St 43 FR 51998
(December ls. IW7Il) mis to d.ii 1 7 indicate
that close’oiit begins ashen the facility
discontinues ac tleg hazardous wastes
Comments recenied on this provision, as well
as those submitted on the Part 250 definItion
of “close-out”. r di be considered together
and will be conformed when these
regulations are Onally promulgated.)
“Closure” means the act of securing a
Hazardous Waite Management facility
pursuant to the requirements of 40 C ’R
Part 250,5 250.43-? (proposed at 43 FR
59004 (December11, 1978)).
“Delivery Document” means a
shipping paper (bill of lading. waybill,
dangerous cargo manifest, or other
shipping document) used In lieu of the
original manifest to fulfill the
recordkeeping requirements of 40 CFR
Part 250, 5 250.33 (proposed at 43 FR
18510 (April 28, 1975)).
“Disposal” means the discharge,
deposit, Injection, dumping. spilling.
leaking, or placing of any solid waste or
hazardous waste into or en any land or
water so that such solid waste or
hazardous waste or any constituent
thereof may enter the environment or be
emitted Into the air or discharged into
any waters, including groundwaters. ,
A “Disposal facility” means any
Hazardous Waste Management facility
which disposes of hazardous waste.
“Existing HWM facility” means a
Hazardous Waste Management facility
which was In operation or under
physical construction, on or before the
date of promulgation of the regulations
under 53001 of RCRA, 40 CFR 250.
Subpart A, (proposed at 43 FR 58954
(December 18.1978)).
“Generator” means any person or
Federal agency whose act or process
produces hazardous waste identified or
listed under 40 CFR Part 250, 5 250.13
and .14 (proposed at 43 FR 589 55- I
(December 18, 1978), provided, however.
that certain producers may or may not
be generators depending on whether
they meet the ailed. specified in 40
CF.R Part 250, 1 250.29 (proposed at 43
FR 58979 (December 18. 1978)).
A “Hazardous Waste Management
facility” (‘UWM facility ’) means any
facility, land and appurtenances thereto
used for the treatment. storage, and/or
disposal of hazardous waste, except that
solid waste disposal facilities which
receives hazardous wastes only from
persons subject to 40 CFR 250.29 shall
not be considered HWM facilities.
lComment Pureous subject te40G
250.29 are those who produce sad dispose of
no more than 2( kilogram. (approximaislji
220 pounds) of hazardous wastes to say con
month. retailer, who dispose of hazardous
wastes other than waste oil, and farmers who
dispose of pesticides wliidi are hazardous
and who follow certaia specilledeperathig
proceduresj
“In operation” means Hazardous
Waste Management faciltias that are
actively treating. storing, or disposing of
hazardous waste,
“Interim authorization” means
authorization or approval by EPA of s
State program which has met the
applicable requirements of section
3000(c) of RCRA and Part 123, Subparts
A and B
The term “Major hazardous Waste
Management facility” means a facility
used for the treatment, storage or
disposal of hazardous waste at a rate
equal to or greater than 5,000 metric tons
per year.
lComrnenl This definition is ased In
con uncnon with the leqiutremenra for 25 A’s
review of State issued permits &n5 225.38 the
Issuance of public notices in 5 124.12, and die
Issuance of tact sheet. (a 1 1249, and shall
not be construed to mean that any of the
application procedures or public bearing
procedures are waived for any facility ,J
“New FIWM facility” means a
Hazadous Waste Management facility
which does nol meet the definition of an
existing facility as defined in this
section
“Off-site” means any site that does
not meet the definition of “on-site” as
defined in this section.
“On-site” means on the same or
geographically contiguous property. Two
or more pieces of property which are
geographically contiguous and are
divided by public or private rights(s)-of’
way are considered a single site.
“Physical construction’ means
excavation, movement of earth, erection
of forms or structures, the purchase of
equipment or any other activity
Involving the actual preparation of the
Hazardous Waste Management facility.
“Storage” means the containment of
hazardous waste, either on a temporary
basis or for a period of years, in such a
manner as not to constitute disposal of
such hazardous wastes, -
“Storage facility” means Hazardous
Waste Management facility which
stores hazardous waste, except for
generators who store their own wastes
on-site for less than 90 days for
subsequent transport off-site, In
accordancc with regulations In 40 CFR
Part 250, 5 250.20(c)(2] (proposed at 43
FR 58970 (December 18.1975)).
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Federal Register/Vol. 44, No. 118 I Thursday, June 14, 1979 I Proposed Rules
“Transporter” means a person or
Federal Agency engaged in the
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 waste or so as to render such
waste nonhazardous, safer for transport,
amenable for recovery, amenable for
storage or reduced in volume. Such term
Includes any activity or processing -
designed to change the physical form or
chemical composition of hazardous
waste so as to render lrnoñhazardous.
“Treatment facility” means any
Hazardous Waste Management facility
which treat. hazardous waste.
(ci Definitions opp!ica Ie So UIC
program requirements
“Appro al in part” means action by
the Administrator which authorizes a
State to administer a UIC program
covering less than all types of Injection
wells within the State. In order to be
approved In part, the State program
must meet all the requirements of Part
123 for those injection wells for which
authorization is given.
IComznenL State. which have not received
full approval are not eligthle to receive
program grant. under section 1443 of SDWA.J
“Area of review” means the area
surrounding an injection wall which Is
described according to the triteria set
forth In § 145.06.
“Effective date of a UIC program”
mean. the date that a State UIC
program Is approved or the date that a
UIC program is established by the
Administrator.
“Existing injection wells” means all
- Injection wells other than new injection
wells as defined in this section.
“fluid” means material or substance
which flows or moves whether
semisolid, liquid, sludge or any other
form or state
“Injection well” means a well Into
which Injection occurs, including the
following types of injection wells (which
are divided into the classes in 122.34):
(1) “Air conditioning return flow well”
means a well used to return to the
supply aquifer the water used for
heating or cooling in a heat pump.
(2) “Cesspool” means an underground
des ice with an open bottom and often
with perforated sides that receives
wastes.
JCommepL The LJIC requirement, will not
apply to single family residential cesspoolsj
(3) “Cooling water return flow well”
means a well used to inject water
previously used for cooling.
(4) “Disposal well” means a well used
for the disposal of waste into a
subsurface stratum.
(5) “Drainage well” means a well used
to drain surface fluid, primarily storm
runoff. Into a subsurface stratum.
(6) “Dry well” means a well that Is
used for the Injection of wastes Into the
unsaturated zone above an underground
drinking water source.
(7) “Enhanced recovery injection
well” means. well used to inject fluids
for the purpose of facilitating recovery
of oil-or natural gas.
(8) “Frasch process well” means a
well used for the production of sulfur by
the Frasch process. -
(9) “Geothermal well” means a well
used to inject fluids to extract heat from
the earth’s interior.
(10) “Hydrocarbon storage well”
means: (I) a well used to Inject
hydrocarbons into an underground
formation or reservoir for the purpose of
storage or (ii) a well for the injection of
fluids For the purpose of recovery of
stored hydrocarbons.
(11) “In situ gasification well” means
a well used for the injection of air and!
or fuels to gasify by partial combustion
fossil tuel such as coal, tar sands and oil
shale.
(12) “Industrial waste disposal well”
means a well iL .: e disposal of
waste fluids from an :ndusthal facility
into a subsurface stratum.
(13) “Municipal disposal well” means
a well used for the disposal of effluent
or sludge from a municipal wastewater
collection, storage or treatment facility
Into a subsurface stratum,
(14) “Nuclear disposal or storage
well” means a well used for the
injection of nuclear materials or wastes
into a subsurface stratum, whether for
temporary storage or ultimate disposal.
(15) “Produced fluid disposal well”
means a well used for the injection of
water or other fluids which are brought
to the surface In connection with oil or
natural gas production into a subsurface
stratum other than the oil producing
formation.
(16) “Recharge well” means a well
used to artificially replenish the water in
en aquifer.
(17) “Salt water Intrusion barrier
-well” means a well used to Inject water
Into a fresh water aquifer to prevent the
Intrusion of salt water into the fresh
water.
(18) “Sand backfill well” means a well
used to inject a mixture o(water and
send, mill tailings or other solids into
mined out portions of subsurface mines.
(19) “Septic system well” means (I) a
well used to Inject the waste or effluent
from a multiple dwelling, community or
regional septic tank; or (ii) a multiple
dwelling, community or regional
cesspool; or (Ill) a septic tank system
well used to dispose of hazardous
wastes; but does not mean Individual
residential waste disposal systems.
(20) “Solution mining well” means (I)
a well used to inject fluid containing
leaching chemicals to effectuate in-situ
leaching and subsequent recover of
metals such as copper and uranium, or
(U) a well used for the injec on of water
or other fluids for the purpose a L,
recovering minerals such as sodium
chloride, potash and phosphate.
(21) “Subsidence control well (not for
the purpose of oil and gas recovery)”
means a well used to inject fluids into a
non-oil gas producing zone to reduce or
eliminate subsidence associated with
the overdraft of fresh water.
“Listed State” means a State listed by
the Administrator under section 1422 of
the SDWA as needing a State UIC
program.
“New Injection bells” means those
wells which begln,lnjection after a UIC
program applicable to such wells
becomes effective in the State.
“Underground injection” means the
subsurface emplacement of fluids by
well injection.
“Well injection” means the subsurface
emplacement of fluids (except drilling
muds, cement and sunilar construction
materials) through a bored, drilled or
driven well; or through a dug well,
where the depth of the dug well is
greater then the largest surface
dimension.
(d) Definitions applicable So NPDES
program requirements
“Applicable standards and
limitations” means all State, interstate
and Federal standards and limitations to
which a discharge or. related activity is
subject under the CWA, Including, but
not limited to, effluent limitations, water
quality standards, standards of
performance, toxic effluent standards
for prohibitions, best management
practices, and pretreatment standards
under sections 301, 302, 303, 304, 306,
307.308,403 and 405 of CWA.
“Best management practices”
(“BMPs”) include treatment
requirements, operating and
maintenaij e procedures, schedules of
activities, prohibitions of activities, and
other management practices to control
plant site runoff, spillage or leaks,
sludge or waste disposal, or drainage
from raw material storage. BMPs may be
imposed in addition to or in the absence
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Federal Register / Vol. 44. No. 116 / Thursday June 14. 1979 / Proposed Rules
of effluent limitations, standards, or
prohibitic’ns.
“Contiguous zone’ means the entire
zone estaoli.hed by the United States
under article 24 of the Convention on the
Territorial Sea and the Contigous Zone.
‘Direct discharge” means the
discharge of a pollutant or the discharge
of pollutants.
“Discharge” when used without
qualification includes a discharge of a
pollutant and a discharge of pollutants.
“Discharge of a pollutant” and
“discharge of pollutants” each means: (1)
Any addition of any pollutant or
comjnnation of pollutants to navigable
waler. from any point source, or
(ii) Any addition of any pollutant or
combination of pollutants to the waters
of the contiguous zone or the ocean from
any point source other than a vessel or
other floating craft when being used as a
means of transportation.
This definition Includes discharges
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
party which do not lead to treatment
systems; and discharges through pipes,
sewers, or other conveyances, leading
Into treatment systems owned in whole
or in part by a third party other than a
State or a municipality.
“Discharge Monitoring Report”
(“DMR”) means the EPA uniform
national form, including any subsequent
additions revisions or modifications, for
the reporting of self-monitoring results
by pennittees. DMRs must be used by
approved Stales as well as by EPA.
(Comment, EPA will supply DMRa to any
appruied Stale upon re ueat. The EPA
national forms may be modified to substitute
the Stale Agency name, address, logo and
other similar Information, as appropriate, In
place of EPA’.)
“Effluent limitation” means any
restriction imposed by the Director on
quantities, rates, and concentrations of
pollutants which are discharged from
point sources Into navigable waters, the
waters of the contiguous zone or the
ocean.
“Indirect discharger” means a non-
municipal, non-domestic discharger
introducing pollutants to a publicly
owned treatment work, which
introduction does not constitute a
“discharge of pollutants.”
!‘Municipality” means a city, town.
borough, county, parish, district,
association or other public body created
by or pursuant to 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 management agency under
section 208 of CWA.
“Navigable waters” means “waters of
the United States, Including the
territorial seas”. This term Includes:
(1) 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 flow of the
tide;
(2) Interstate waters, Including
Interstate wetlands:
(3) All other waters such as Intrastate
lakes, rivers, streams (including
Intermittent streams). mudflats.
sandflats, wetlands, sloughs, prairie
pothole., wet meadows. plsya lakes,
natural ponds, the use, degradation or
destruction of which would affect or
could affect interstate or foreign
commerce including any such waters:
(I) Which are or could be used by
interstate of foreign travelers for
recreational or other purposes:
(ii ) From which fish or shellfish axe or
could be taken and sold In Interstate or
foreign commerce;
(lii) Which are used or could be used
for industrial purposes by Industries In
interstate commerce:
(4) All impoundments of waters
otherwise defined as navigable watei
under this paragraph,
(5) Tributaries of waters indentifled Iii
paragraphs (1)—(4) of this section.
Including adjacent wetlands; and
(6) Wetlands adjacent to waters
Identified in paragraphs (1H5) of thi.
section; (“Wetlands” means those areas
that are Inundated or saturated by
surface or ground water at a frequency
end duration sufficient to support, and
that wider normal circumstances do
support, a prevalance of vegetation
typically adapted for life in saturated
soil conditions. Wetlands generally
Include swamps, marshes, bogs, and
similar areas.
(7) Provided. That treatment ponds or
lagoons designed to meet the
requirements of the CWA (other than
cooling ponds meeting the criteria of this
paragraph) are not waters of the United
States.
(Comment’ For purposes of clarity the term
“waters of the United Slates” Ii primarily
used throughout thu regulation. rather than
“navigable water.”)
‘?Jew discharger” means any building,
structure, facility or installation (1)
which on October 18,1972, had never
discharged pollutants and (a) which has
never received a finally effective NPDES
permits and (3) from which there Is or
34271
may be a new or additional discharge of
pollutants and (4) whIch does not foil
within the definition of “new sources’.
“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:
(I) After promulgation of standards of
perlcirmnance under section 306 of the
CWA which are applicable to such
source, or
(II) After proposal of standards of
performance under section 306 of the
CWA which are applicable to such
source, but only If the standards are
promulgated within 120 days of their
proposal.
(Comment’ See f 122.81 for the celteria and
standards to be used in determhUn.g whether
a source has begun construction within the
meaning of this definitions, for the types of
construction activities which result In new
sources or new discharges, and for the effect
of a new source determination.)
“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.
“Process waste water 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.
“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 the 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.
“Variance” mean . any mechanism or
provision under section 301 or 316 of
CWA and Part 125, or Iii the applicable
effluent limitation guidelines which
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312fl
Federal Re lster / Vol. 44. No. 110 / Thursday. June 14. 1979 I Proposed Rules
allow modification toor waivers of the
effluent limitation requirements of
CWA. This includes provisions which
allow the establishment of alternative
limitations based on fundamentally
different factors and sections 301(c).
301(g). 301(h). and 316(a) of CWA. where
appropriate.
“Water, of the United States”means
navigable waters, as defined in this
section. —
(e) Definitions applicable to section 40f
program requirements
“Best Management Practices”
(“BMPs”) means methods, measures,
practices or design and performance
standards to prevent or reduce the
pollution of waters of the United States.
B?Ws include but are not limited to -
schedules of activities, prohibitions of
practices. and maintenance procedures.
BMPs developed by State section 404
Agencies must insure compliance with
the section 404(b)(1) environmental
guidelines. 140 CFR 230). and effluent
limitations and prohibitions under
section 307(a). and water quality
standards.
“Cultivating” means physical means
of soil tmatuient employed within
established agricultural and silvicultural
lands upon planted farm or forest crops
to aid and Improve their growth. quality
and yield
“Discharge of dredged material”
means aria adthtion of dredged material
intd waters of the United States. The
term Includes, without limitation, the
addition of dredged material into waters
of the United States and the runoff or
overflow from a contained land or water
disposal area. Discharges of pollutant.
into waters of the United States
resulting from the subsequent onshore
processing of dredged material that is
extracted for any commercial use (other
than fill) are not included within this
term and are subject to section 402 of
the Clean Water Act even though the
extraction and deposit of such material
may also require a permit from the
Corps of Engineers.
“Discharge of fill material” means the
addition of fill material into waters of
the United States. The term generally
includes without limitation, the
following activities in waters of the
United States: 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, alte-development fills 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 endosed
within fixed boundaries consisting of a
water surface area (when present), a
volume of water (when present), and a
substrate area. in the case of wetlands
on which water is not present, the -
disposal site consiats of the wetlands
surface area. Fined boundaries may
consist of fixed geographic point(s) and
associated dimensions, or of a discharge
point and specific asaoclated
dimensions.
“Dredged material means material
that is excavated or dredged from
waters of the United States.
“Fill material” means any material
used for the primary purpose of
replacing any water of the United States
with dz ’ land or of changing the bottom
elevation of a waterbody. The term does
not Include any pollutant discharged
into the water primarily to dispose of
waste, as that activity Is regulated under
section 402 of CWA. The Director, in
consultation with the section 402
permitting authority, will snake
determinations as to the primary
purpose of proposed activities.
ICommenL In some instance. the proposed
activity will require both a section 402 and a
section 404 permIt. Is a.’ dilung an area of
waters of the United States to fill It with
municipal wastes Where thia is the case,
every attempt should be made to jointly
process the permit application. Including Joint
public notices and pubbc bearings if
necessary. Consideration Is presently being
given to changing the primary purpose test-
Should this occur the above comment will no
longer be applicable.)
“Ceneral permit” means either a State
permit or a Corps of Engineers Army
permit that is issued under section 404
of CWA after notice and opportunity for
public hearing. on a local State. Regional
or nationwide basis to authorize any
discharges of dredged or fill material
from dearly described categories of
activities involving dlschar ,gea of
dredged or fill material that are similar
In nature, will cause onJy mInimal
adverse environmental effects when
performed sep rately, and will have
only minimal cumulative adverse effects
on the environment.
“Harvesting” means physical
measures employed directly upon farm.
or forest crops to bring about their
removal from farm lands or forest land,
but does not include the construction of
farm or forest roads.
“impoundment” means a standing
body of open water created by
artificially blocking or restricting the
flow or circulation of a water of the
United States. As used in this regulation
the term does not include artificial lakes
or ponds created by excavating and/or
diking dry land areas to collect and
retain water for such purposes as stock
watering. Irrigation, settling basins,
cooling, or rice growing, and actually
used for such purposes.
“Minor drainage” means construction
and maintenance of facilities for the
removal of excess soil moisture from
drylands (uplands). It includes ditching
and tiling Incidental to the planting,
cultivating, protecting, or harvesting of
crops. The connection of such drainage
ways from uplands to the water, of the
United States Is considered to be minor
drainage. The discharge of dredged or
fill material incidental to connecting an
upland drainageway to water of the
United States, adequate to the purpose
of removing excess soil moisture
incidental to the above activities is
minor drainage. The term does not
include discharges incidental to the
construction of ditches or other drainage
features which converts any water of
the United States to farming, ranching,
or silvicultural uses, nor dons It include
discharges incidental to the drainage of
a forested wetland to convert It to any
type of nonwetland forest.
“Navigable waters” arid “Wetlands”
are defined under the NPDES program
definitions.
“Plowing” means all forms of primary
tillage, Includ g moldboard, chisel, or
wide-blade, plowing, discing, harrowing;
and similar physical means utilized on
established farm 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 spoil, rock sand, or
other superficial materials in a manner
which changes any area of the waters of
the United States to dryland. For.
example, the redistribution of surface
materials by blading, grading, or other
means to fill in wetland areas will
require a permit whenever the affected
areas lie within the water, of the U.S.
“Seeding” means the manual or
mechanical sowing of seed and
placement of seedlings for the
production of farm or forest crops and
includes the placement of soil beds for
seeds or seedlings on established farm
lands and forest lands.
“State regulated water,” means those
waters of the United States In which the
Corps of Engineers will suspend the
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Federal Register f Vol. 44, No. 116 1 Thursday. June 14. 1979 f Proposed Rules
34273
issuance of section 404 permIts upon
approval of a State’s section 404 permIt
program by the Administrator under
section 404(h). These waters shall be
identified In the Memorandum of
Agreement between the State and the
Secretary as required by 0122.93.
lComment OVA section 404(g) ! 1) requIres
that the Secretary retain jurisdiction, for
purpoaes of section 404 over the following
waters:
(1) Waters which are subject to the ebb
and flow of the tide
(2) Those waters which are presently used.
or are susceptible to use In their natural
condition or by reasonable lmprovemeat as a
miens to transport Interstate or foreign
ceiiimerce ahoreward to their ordinary high
water mark; and
I S) Wetlands edjaceat to waters In 41) and
(2).l
• 1221 Stale authorttlat
Nothing In Pans 122-124 predudea
more stringent State regulation of any
activity covered by these Pane, except
as provided for the RCRA program In
* 123.33(c).
I 122.6 SIgnatories to permit program
Iormt
(a) All permit applicationi. except for
those submitted for Class I I wells for the
UIC program (see paragraph (b) below).
shall be aigned as follows;
(1) For a corporation. by a principal
executive officer of at least the level of
vice presuientt
(2) For a partnership or sole
proprietorship, by a general partner or
uat kuprictoI. rtspc ct.vcly; or
(3) For a municipality. State. Federal
or other public agency. by either a
principal executive officer or ranking
elected official.
(b) All reports required by permits or
otherwise required by the Director, other
requests for Information made by the
Director, and all pennit applications
submitted for Class I I wells under
- { 122.35 for the LJIC program ahall be
signed by a person designated In
paragraph (a), or by a duly authorized
repreaentative of such person; If:
(1)The representative so authorized is
responsible for the overall operation of
the facility from which the regulated
activity originatea, e.g., a plant manager,
superintendent or person of equivalent
reaponslbihty
(21 The authorization is made in
writing by the person designated under
paragraph (a); and
(3) The written authorization is
submitted to the Director.
(c) Any changes in the written
authorizat.on submitted to the
permitting authority under paragraph (b)
which occur after the issuance of a -
permit shall be reported to the Director
by submitting a copy of a new written
authorization which meets the
requirements of paragraph (b) (1) and
(2).
(d) Any person signing a document
under psngraph 4e) or Ib) of this section
shall make the following certification; “I
certify under penalty of law that I have
personally einmtned and am fsimfliae
with the Information submitted In the
attached document, and that based on
my Inquiry of those Individusla
immediately responsible for obt a 4 t tg
the Information, I believe that the
submitted information Is true, accurate
and complete. I am aware that there are
significant penalties for submitting false
information, including the poeaibl]lty of
fine and imprisonment”
lconient Permit sppllcatlona are being
revised to Incorporate this atateineot Where
a program document doaa not eontaln the
statement the certification must accompany
the appropriate document)
to) This section is applicable to
approved State programs (see 0 123.6).
States may adopt language that is
equivalent to but not Identical to, the
certification statement In paragraph (d),
- If such equivalent language le approved
by the Regional Administrator.
§ 122.5 Applteatlon for 5 permIt.
(a) Any person wbo conducts or who
proposes to conduct an activity for
which a permit is required under this
Part shall complete, sign, and submit an
application to the Director as described
In * 122.23, 122.38 and 122.64.
*122.7 PermIt Issuance; effect eta
permit
(a) The permit Issuance procesa is
Initiated by the receipt ala complete
application by the Director.
(b) The Issuance of a permit does not
(1) convey any property rights of any
sort, or any exclusive privileges; (2)
authorize any injury to private property
or Invasion of other private rights, or
any infringement of Federal, State, or
local law or regulations, or (3) preempt
any duty to obtain State or local assent
required by law for the authorized
activity.
(c) Any perrnlttee who wishes to
continue a regulated activity after the
expiration date oft permit must apply
for a new permit under the applicable
sections of this Part, Part 124, and In the
case of section 404 permIts, Part 123,
Subpart E.
• 122.s Duration of permitE eontiswaUoa
of sapping pee ls bineferSty of
(a) NPDES and sectIon 404 permIts
shall be Issued for a term not to exceed
five years. Permits of ieee than five (5)
years duration may be lesued In
appropriate circumstances (for example,
see §122.89). Except as provided In
paragraph (c), the term of an NPDES
permit shall not be extended beyond
five year. from Its original data of
effectiveness by modification, extension
or other means.
(b)ltCRAandl i lCparmltsahallbe
Issued for a period not to exceed the
designed operating li la of the facility (In
the case of new facility) or the
remainder of the designed operating life
of the facility (In the case of an existing
facility), except as provided In
1122.75(b) 4RCRA Experimental Special
Permits).
(c) Continuation of expiring permits.
(1) Where EPA Ia the permit Issuing -
authority, the terms and conditions of an
expired permit are automatically
continued under 5 U.S.C I 558(c)
pending lasuance of a new permit iE
(I) The permittee baa aubmitted a
timely and sufficient application for a
new permit under * 122.23, 0 122.36, or
0 122.64; and
(ll) The Regional Adminietrator is
unable, through no fault of the pertnlttee,
to Issue a new permit before the
expiration date of the previous permit
(eg., where It Is imprecticable due to
time and/or reeource constraints).
(2) Permits continued under this
paragraph remain fully effective and
enforceable.
(3) Where the permitlee Is not hi
compliance with the terms and
conditions of the expiring permit:
(I) The permit may be continued under
this eection pending a final
determination by the Regional
Administrator on the application for a
new permit and enforcement action may
be taken based upon the continued
permit or
(ill The Regional Administrator may
make a determination to deny the
application for a new permit In
accordance with the procedures
specified In Part 124. The owner or
operator would then be required to
cease the activities authorized by the
permit or be subject to enforcement
action for operating without a permit
(d) States authorized to administer the
RCRA, UIC or NPDES programs may
continue permits In a similar manner If
so authorized by State law. However, a
permit is not continued under Federal
law where WA originally issued the
permit, but the State Is the permitting
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34274
Federal Register I Vol. 44, No. 116 / Thursday, June 14, 1979 I Proposed Rules
authority at the time the permit expired.
In such case, the activity or facility Is
operating without a permit from the time
the EPA .4ssued permit expires to the
- time that the State-issued permit Is
effective.
(e) Trwssf era billy of permits. A
permit may be transferred to another
person by a permittee It
(1) The permittee notifies the Director
of the proposed fransfer.
(2) A written agreement containing a
specific date for transfer of permit
responsibility and coverage between the
current and new permittee. (including
ecimowledgement that the existing
permittee Is liable for violations up to
that date, and that the new permittee Is
liable for violations from that date on) is
submitted to the Director snd
(3) The Director wIthin 30 days does
not notify the current permittee and the
new permittee. of his or her intent to
modify, revoke and reissue or terminate
the permit and to require that a new
application be flied rather than agreeing
to the transfer of the permit.
IC nwienL A new application could be
required under this paragraph where the
change of ownership Is accompanied by a
change or proposed change In process,
wastewater, or hasardous waste
characteristics or a change or potential
change in any circoinstances that the
permitting authority believes will affect the
conditions or restrictions in the permit)
§ 1229 RevIew end modification or
revocation end relasuance of permits.
(a) The Director shall review each
Issued UIC or RCRA permit at least once
every five years to determine whether
the permit should be modified or
revoked and reissued for one or more of
the cause, listed in paragraph (e) of this
section.
IComme. ’iL The purpose of paragraph (a) Is
to ensure that RCRA and UIC permits are
sbbject to cwjiprehensive review at specified
times and modification or revocation and
relesuance as may be desirable to better
carry out the statutory purpose(s).
Accordingly. the Director is as free to
propose and adopt permit modifications for a
life.term permit as the result of such a review
as he would be to propose and adopt new
permit lerins as the result of the expiration
and reissuance of a fixed term permit Permit
modifications for cause during the term of a
permit are also possible where cause exists
under paragraph IC))
(b) Where permits under two or more
programs under this Part are issued for a
single facility or activity, the Director
shall review all the permits issued for
that facility or activity whenever any
one of the permits is reviewed pursuant
to paragraph (a), or any one of the
permits expires pursuant to § 122.8 or Is
terminated under 122.10. The purpose
of this review shall be to determine
whether the permit should be modified
or revoked arid reissued for one or more
of the causes listed In paragraph (e) of
this section. The permit shall specify a -
date for review under this section
whenever the date of expiration of
another permit for the same facility or
activity I. available.
(c) The Director may review an Issued
permit at any time and shall review an
Issued permit on the request of any
person who present. Information which,
If valid, would constitute cause for a
modification or revocation and
reissuance under paragraph (e) of this
section.
(d) The Director may base his/her
review on any or all of the followlng
(1) information submitted by the
permittee in periodic reportr,
(2) Information collected by the
Director In inspections of the permitted
facility;
(3) Information requested of the
permittee, including all or part of the
Information which the Director might
otherwise request In an application for
the Issuance or reissuance of a permit
or
(4) Any other pertinent Information
that the Director may obtain.
- (e) Cause for modification or
revocation and reissuance exists:
(1) Where there are material and
ubstantial alterations or additions to
the permitted operation which are not
covered by the effective permit
provided that for NPDES permits, such
alterations or additions do not constitute
a replacement of the process or
production equipment of an existing
source, converting It to a new source
under 9 122.81.
(Comment: Such alterations or additions
Include but are not limited to material or
substantial changes In the quantity (increase
or dedrease) or composition of the wastes
fluids or pollutants Injected, discharged,
treated, disposed or storecli changes In the
Injection, discharge, treatment disposal or
storage methods or other operational
methods employed, production change.,
relocation or combination of discharge
points, change. In the nature or mix of
products produced.
Certain reconstruction activities may cause
the new source provisions for NPDES permits
under 9122.81 to become applicable to the
permittee. In such àses. the new source
permit Issuance procedures of 9122.04 and
S 124.01 shall be followed instead of the
modification or revocation end reissuance
process and an ElS may be required for an
EPA.issued new source permit.)
(2) Where the existence of any
factor(s) which, If properly and timely
brought to the attention of the Director,
would have justified the application of
different permit terms and conditions,
but only If the requester show that such
factors arose after the final permit was
Issued.
(3) Where the standards and/or
regulations on which the permit was
based have been changed by
promulgation of amended standards
and/or regulations or judicial decision
after the permit was Issued, except that
NPDES permits may be modified during
their terms for such reasons only to the
extent set forth in 9 122.73;
(4) Where an existing permittee
proposed a change of ownership ng
control of the permitted activity or
facility, and the Director determines
mder 9 122.8 that modification or
revocation and relnssuance Is
appropriate;
(5) Where modification, revocation
and relssuance or termination of another
permit Issued to the same facility or
activity requires a modification or
revocation arid reissuance of the permit;
(6) Where the permit fails to apply
any applicable requirements under the
appropriate Act or regulations, which
are In effect prior to the effective date of
permit Issuance; and
(7) For NPDES and section 404 permits
only, where cause exists for termination
under 9 122.10 or 9 122.74.
• (Comment: The Director will genera!ly base
his/her decision on whether to modify.
Instead of revoking and reissuing a permit.
where cause exists under paragraph fe) of
this section. on the extent of the anticipated
changes and on the length of the remaining
term of the permit For Instance, where the
remaining permit term Is only two years, it
may be desirable to revoke the existing
permit and Issue another permit incorporating
the changes. See also 9122.89 for certain
circumstance, when NPDES permits will be
revoked and reissued.)
(I) Except as provided for minor
modifications under paragraph (g) of
this section the modification or
revocation and reissuance of permits
under this section shall comply with
5 124.5 and 9 124.7.
(g) The following minor permit
modification, shall not require public
notice and opportunity for hearing under
9 124.5 or 9 124.7, unless they would
render the permit less stringent, or
unless contested by the permittee:
(1) Correction of typographical errors;
(2) A change requiring snore frequent
monitoring or reporting by the permittee;
(3) A change In an Interim compliance
date, provided the change would not -
exceed 120 days or would not interfere
with attainment of a final compliance
date; and
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P ederal Register I Vol. 44, No. 116 /Thundey: June 14. 1.979 / Proposed Rules
(4) A change hi ownership or
operational control of a facility where
the Director determines that no major
change of the permit is necessary under
I 122.8(d).
• (5) To the extent authorized under
§ 122.24, changes in quantities or types
of wsstes treated, disposed or stored
which are within the capacity of the
facility as permitted and, hi the
judgment of the Director, would not
Interfere with the operation of the
facility or Its capacity to meet
conditions prescribed in the permit.
(8) To the extent authorized under
* 122.24, changes In treatment, disposal
or storage methods or operations which,
In th judgenient of the Director, are
equivalent to or better than those on
which their permit Ia based.
(7) Extension of the term of e State
section 404 permIt so long as the
extension does not conflict with
§122*s).
(b) Minor modifications as defined In
paragraph (g) of this section shall
become immediately effective or
effective on a date specified by the
Director.
§ 122.10 Tennlnalten of permits.
(a) An issued permit may be
terminated, in whole or in part, during
Its term for cause as specified in this
section.
(b) Cause for termination includes:
(1) Violation of any term or condition
of the permit or requirement of the
appropriate Act by the permittee;
(2) Failure of the perinittee to disclose
fully all relevant facts or
misrepresentation of any relevant facts
by the perinittee in the application or
during the permit issuance process;
(3) Information indicating that the
pennlited activity pose. a threat to
hum:n health or the environment:
(4) A change in ownership or control
of a source which has a permit where
required by the Director in accordance
with § 122.8(e): or
(5) Other ood cause.
ltomment Tereninstion wider this section
includes the suspension or revocation of a
permit under section 3008 of 1 1CM.
Procedures for termination or suspension end
revocation of RCRA permits are provided in
40 CFR Part 22 (proposed at43FR 34739
lAugusi 1. 1975].]
* 122.11 Cendftlons applicable toab
-
The following conditions apply to all
permits end shall be incorporated Into
all permits either expressly or by
reference.
(Comment If not Incorporated by
woference, the inclusion of the requirements of
this action Into permits may require some
wording change.. Where this is the cass. the
permit conditioas should be worded
substantially similar to the requirements of
this section. and should be of equivalent
Sa l
(a) The perinittee meat comply with -
all terms and conditions of the permit
whether they are directly stated or
Incorporated by Serence
fCaneient Any failure in compliance
constitute. a violation of the appropriate Act
and eeastltates rmida lee an enforcamant
action.)
(b) The permit shell be reviewed at -
times specified in I 1 2 2.9(e), (b) and (c),
and may be modified, revoked and
reissued or terminated during its term
for cause as described in § 122.9(e) and
* 122.10.
(c) Any permittee who knows or has
any reason to believe that any activity
has occurred or will occur which would
constitute cause for modification or
revocation and reiasuance under
§ 122.9 (e) must report his(her plans or
such Information to the Director so that
the Director can decide whether action
to modify or revoke and reissue a permit
under (122.9 will be required. The
Director may require submission of a
new epplication.
(d) Unless and until a permit Ja
modified or revoked and reissued, a
perntitiee must comply with the terms
and conditions of the existing permir.
whether or not that existing permit
would allow the perinittee to begin the
activity described in paragraph (cJ of
this section.
(e) The permlttee shall allow the
Drrector or an authorized representative,
upon the presentation of credentials and
such other document as may be re ulred
by law:
(1) Enter upon the permltte&s
premises where a regulated facility or
activity is conducted or located, or
where records must be kept under the
terms and conditions of the permit;
(2) Have accees to and copy. at
reasonable times, any records or labels
that muat be kept under the terms and
conditions of the permit;
(3) Inspect st reasonable times any
facilities, equipment (including
monitoring equipment) or operations
regulated under the permit; and
(4) Sample at reasonable times any
substances which the permittee is
required to monitor under the permit.
Including any discharge of pollutants.
hazardous wastes. and injected fluids.
(5) Sample at reasonable times any
eubstancea at any monitoring point
which the permittee Is required to
monitor under the permit.
34275
(Comment This subparagraph includes
both the sampling of pollutants, wastes and
fluids which are discharged. tinted, stored.
disposed or iniected and also the monitoring
of surrounding environment, e.g.. the
sainplin.g of adjacent parts of aquifers by use
of monitoring wells I
( I) The peniittee shall furnish to the
Director copies of records required to be
kept under the terms and conditions of
the permit upon request within a
reasonable time, as specified m l 122.14.
(g) The permittee shall at all times
maintain in good working order and
operate efficiently all facilities and
systems of treatment or control (and
related appurtenances) which are
installed or used by the pennlttee to
achieve compliance with the terms and
conditions of the permit. Proper
operation and maintenance includes but
Is not limited to effective performance
based on designed facility removals.
adequate funding, effective
management, adequate operator staffing
and training, and adequate laboratory
and process controls, including
appropriate quality assurance
procedures.
(h)(i) U. for any reason, the permittee
does not comply with or will be unable
to comply with any terms or conditions
of a RCRA, UIC, or 4 permit, or the
maximum daily or average weekly
discharge limitations or standards of an
NPDES permit. the permlttee shall
provide the Director with the following
information:
(i) A description of the noncompliance
and cause of noncompliance;
(ii) The period of noncompliance.
including exact dates and times, and/er,
If not corrected, the anticipated time the
noncompliance is expected to continue;
(iii) Steps taken and/or planned to
reduce, eliminate and prevent
recurrence of the noncompliance, and
(2) The information required under
subparagraph (1) shall be provided as
follow s i
(i) In the case of noncomplying
activities which could constitute a threat
to human health, welfare or the
environment, the Director may require
that the information required by
subparagraph (1) be provided within 24
hours or five days from the time the
permittee becomes aware of the
circumstances. Where the Director
requires ,24 hour notice, If the
In lormation is provided orally, a written
submission covering the information
must be provided within five days of the
time the permittee becomes aware of the
circumstances covered by this
paragraph This requirement shall not
apply to NPDES discharges subject to
subparagraph (2)(ii).
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Federal Register 1 Vol. 44 No. 116 I Thursday, June 14. 1979 I Proposed Rules
lCemiIleftt The Director may require a
perinittee to report noncompliance withIn 24
hours under paragraph (h)(2)(l) when the
noncompliance Involves CWA section 311
pollutants. toxic pollutants or pollutants
which could cause a threat to public drinking
water supplies; or, In the event of a release or
discharge of hazardous waste, a fire or an
explosion from aHWM facility that has the
potential for damaging human health or the
environment, the permittee shall report such
an Incident Immediately after discovering It
as required In 40 CFR Part Z50 I Z5(L43-3(c).I
( Ii) In the case of any discharges from
an NPDES-permltted facility subject to
any applicable toxic pollutant effluent
standard under section 307(a), the
inlormation required by subparagraph
(1) regarding a violation of such
standard shall be provided within 24
hours from the time the perndttee
becomes aware of the circumstances. If
this Information Is provided orally, a
written submission covering these
points shall be provided within five
days of the time the NPDES pernuttee
becomes aware of the circumstances
covered by this paragraph.
(3) Where a permittee orally reports a
violation within 24 hours in accordance
with paragraphs (h)(2)(i) or (ii). the
Director may waive, on a case.by.case
basis, the requirement that a written
submission be provided within five days
of the time the permittee becomes aware
of the violation.
(4) In all cases not covered by
subparagraph (2), information required
under subparagraph (1) shall be
provided in accordance with the
requirements of f 122.15.
(I) The permittee shall take all
reasonable steps to minimize any
adverse impact on the environment
resulting from noncompliance with the
permit.
U) The perinittee shall halt or reduce
Its business activities whenever and to
the extent necessary to maintain
compliance with the terms of a permit.
(k) The permittee shall at all times
comply with the requirements for
testing. monitoring. recordkeeping. and
reporting as specified in the permit and
in applicable regulations. The permittee
shall not falsify, tamper with or
knowingly render Inaccurate any
monitoring device or method referred by
the permit or regulations; or kno ringly
make a false statement, representations,
or certification, in any document or
record required under the permit or by
regulations.
• 122.12 Schedules of compliance,
(a) The permit shall specify a schedule
of compliance leading to expeditious
compliance, where appropriate.
(Commenb For NPtWS permits, schedules
of compliance are required where necessary
to achieve compliance with applicable
standards and limitations and other
requirements. NPDES new dlschargers ,
sources which recommence discharging alter
terminating operations and those sources
which had been Indirect discharger. which
commence discharging Into navigable waters
do not qualify fQr complIance schedules
under this section and are subject to
I 122,St(d)(4). Schedules of compliance shall
require compliance as soon as possible, but
In no case later than the applicable statutory
deadline under the CWA.J
(1) Except as provided In paragraph
(b) and (d). Ifs permit establishes a
schedule of compliance which exceeds 9
months from the date of permit issuance,
the schedule of compliance In the permit
shall set forth Interim requirements and
the dates for their achievement.
(I) In no event shall more than 9
months elapse between InterIm dates.
(ii) If the time necessary for
completion of any Interim requirements
(such as the construction of a control
facility) I . more than 9 months and Is
not readily divisible Into stage. 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.
(Comment: Examples of Interim
requirements Include 1) lets contract For
construction of required facilities; 2)
commence construction of required fadlitlesi
3) complete construction of required facilities;
and 4) submits complete Step 1 constructIon
grant (for PO’I’W’s).J
(2) Except as provided In paragraph
(ii), no later than 14 days following each
Interim date and the final date of
compliance, the permettee shall provide
the Director with written notice of the
permittee’a compliance or
noncompliance with the Interim or final
requirements.
(3)(i) The Director, upon request of the
perinittee. may modify, In accordance
with § 122.9 a schedule of compliance in
an issued pc-mit if he/she determines
good and valid cause exists for such
revision, such as an act of God, strike,
flood, or materials shortage or other
events over which the permlttee has
little or no control or remedy. However,
In no case shall an NPDES compliance
schedule be modified to extend beyond
an applicable CWA statutory treatment
deadline.
(Ii) In the case of a P01W whIch has
received a grant under section 302(a)(3)
of CWA, to fund 200% of the costs to
modify or replace facilities constructed
with a grant for Innovative and
alternative waatewater technology
under section 202(a)(2), the schedule of
compliance for an NPDES permit may be
modified to reflect the amount of time
lost during construction of the
Innovative and alternative facility. In no
case shall the compliance schedule be
modified to extend beyond an
applicable CWA statutory deadline for
compliance.
(b) Where an applicant for an EPA-
Issued I.ThC or RCRA permit chooses to
cease conducting regulated activities
rather than taking steps to meet permit
control requirements, the Director may
establish two alternative schedules of
compliance In the permit
(1) A schedule leading to termination
and/or proper closure In accordance
with regulations under the appropriate
Act or regulations by the predicted
termination or closure date. U at any
time the permiltee chooses not to
terminate his/her regulated activities
and cease conducting regulated
activities according to this schedule, the
steps required under subparagraph (2)
below shall be met: and
(2) A schedule which would result In
compliance with the appropriate Act
and regulation.. In no event shall a
permittee be authorized to operate
without complying with this schedule,
even where the permittee actually
terminates his/her operations and later
resumes these or other operations.
(c A permlttee may terminate Its
direct discharge by cessation of
operation or discharge to a POTW
rather than achieve applicable
standards and limitations by the final
date for compliance established in Its
permit or In CWA under the following
circumstances:
(1) If the decision to terminate a direct
discharge Is made after Issuance of a
permit:
(I) The permit shall be modified or
revoked and reissued to contain a
schedule of compliance leading to
termination of the direct discharge by a
dale which Is no later than the statutory
deadline; or
(Ii) The permittee shall termInate
direct discharge before noncompliance
with any interim requirement specified
In the schedule of compliance in the
permit.
(2)1! the decision to terminate a direct
discharge Is made before Issuance of the
permit, the permit shall contain a
schedule leading to termination of the
direct discharge by e date which Is no
later than the statutory deadline.
(3) If the permiuee contemplates but
has not made a final decision to
terminate the direct discharge before the
Issuance of the permit, the permit shall
contain alternative schedules leading t
compliance as follows:
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(1) The schedule shall contain an
Interim requirement requiring such a
nal decision no later than a date which
allows sufficient lime to comply with
applicable limitations and standards in
accordance with paragraph ( Iii ). (i.e.. a
milestone event for commencement of
construction of control equipment); and
(ii) A subsequent schedule leading to
termination of the divide discharge by a
date which Is no later than the statutory
deadline;
(iii) A sabsequent alternative schedule
leading to compliance with applicable
standards and limitations, no later than
the statutory date; and
(iv) A requirement that after the
perinitee has made a decision pursuant
to paragraph (3)(i) , It shalL
(A) Follow the schedule required by
paragraph (3)(ii) If the decision is to
terminate its discharge; or
(B) Follow the schedule required by
paragraph (3)(iii) if the decision is not to
ternunate it. discharger and
(4) If the permittee has made a
decision to terminate Its direct discharge
in accordance with tiuis section. ii shall
not post a bond within 30 days of permit
Issuance, or the date of the decision. in
the amount of the cost of compliance
with applicable limitations and
•tandards, payable to the permit issuing
authority in the event that termination
or compliance with applicable
limitations and standards Is not
achieved by the statutory deadline or
the date set forth in the permit, if earlier.
(5) In all cases, the permittees
decision to terminate his/her direct
discharge of pollutants shall be
evidenced by a Board of Director’s
resolution which has been made public
or by such other means as EPA
determines evidence a firm public
commitment.
ConvnenL A permlttee may evidence a
firm pubhc commitment’ (I) by a resolution of
the Board of Directors signed by the
Chairman of the Board and the Chief
E ecut,ve Officei- (2) i ii the case of a public
facilit). by appropriate action by either the
principal asecutive officer or elected official
or (3) as otherwise appropriate for
partnerships, sole proprietorship. etc.)
(9) Where a source recommences
discharge alter terminating operations.
or where an indirect source commences
direct discharge to navigable waters.
any permit issued to such source shall
require the source to meet all applicable
standards and limitations as specified In
§ 122.81(d)(4).
(d)(1) Where agreed to in the
Memorandum of Agreement, an
approved State program may use
intervals of up to one year (rather than 9
months) for establishing Interim
requirements under subparagraph (a)(1).
(2) Slate programa may provide for up
to 30 days (rather than 14 days) for
repo-ting compliance or non.compliance
with Interim or final requirements under
subparagraph (a)(Z).
• 122.13 E.ts UsIth1 permit turm. nd
Permit terms and conditions shall be
established in permits as set out lit
Subpart B through D. as appropriate.
O 122.14 R.co.dlng and reporting of
monitoring results and compesncs by
(a) All permits shafl include:
(1) RequIrements concerning the
proper use, maintenance, and
Installation, where approprinie. of
monitoring equipment or methods
(including biological monitoring
methods where appropriate), and
( wienL Generally Installation of
monitoring equipment is not required under
the UIC program.)
(2) RequIred monitoring frequency,
type and iniervsls sufficiently frequent
to yield data which are representative of
the monitored activity, Including, where
appropriate, continuous monitoring.
(b) Samples and measurements taken
for the purposes of this Part shall be
representative of the volume, wetgh
pressure or nature of the monitored
activity’,
(c) The permittee shall maintain
records of all such monitoring
informat ion (including all original strip
chart recordings for continuous
monitoring instrumentation and
calibration and maintenance records).
Such records shall be retained by the
perinittee for three years. This period of
retention shall be extended
automatically during the course of any
unresolved litigation regarding the
regulated activity or regarding control
standards applicable to the permittee or
as requested by the Director. Such
records shall include:
(1) The date, exact place and time of
sampling, or measurements;
(2) The person(s) who performed the
sampling or measurements;
(3) The date(s) analyses were
performed;
(4) The person(s) who performed the
analyses;
(5) The analytical techniques or
methods used; and
(6) The results of such analyses.
(d) Permittees shall report the results
of any monitoring specified In the permit
to the Director on an EPA.approved
form as often as required by the permit,
but In no case less than once per year.
Reporting frequency requirements will
be based upon the minimum Intervals
specified in Subparts B-D. and, In
addition. upon the Impact at the
regulated activity.
(Comment NPDES perndttees mast report
monitoring results on a Discharge Monitoring
Report (DMR). NPDES permittees need not
submit data c ii Internal process of waste
streams, or data collected by third parties
unless I i Indicates a violation, but shall be
Identified as a supplement to the DMR.J
(e) The permittee shall provide the
Director with wrItten notice of the
permittee’s compliance or
noncompliance with the Interim and
final compliance schedule requirements
In accordance with 122.1. a)(2) and
(b)(2).
• 122.15 Noncompliance reporting.
Reports shall be prepared and
submitted by the Director as detailed
below and in 122,27. 122.43. 122.72
and 123.113.
(a) Quarterly Report. Naerstive
reports of noncompliance by major
RCRA, UIC. NPDES and section 404
permittees shall be submitted using the
following format.
(1) Name, location, and permit number
of each noncomplying permittee;
(2) A brIef description and date of
each instance of noncompliance.
instances of noncompliance may include
one or more of the following’
(I) Failure to complete construction
elements;
(ii) Failure to complete or provide
compliance schedule reports;
(iii) Noncompliance with applicable
standards and limitations:
(iv) Failure to provide effluent. or
other monitoring reports as required by
the permit and
(v) Deficient reports
(3) A brief description and date(s) of
action(s) taken by the Director to ensure
compliance;
(4) Status of the instance of
noncompliance with the date of the
action or resolution; and
(5) Any information which tends to
explain or mitigate an instance of
noncompliance or to explain actions by
the Director.
(b) Annual Report s, (1) Statistical
reports shall be submitted on minor
RCRA, UIC and NPDES permittees.
where compliance has been reviewed by
the Director, indicating number of
noncomplying minor perinittees, number
of enforcement actions, and number of
changes in permit status.
(2) Additional information for RCRA,
UIC. NPDES and sectIon 404 programs is
detailed in ft 122.27, 122.43, 122.72 and
123.113.
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(Comment’ For the distinction between
- “major” and “minor” permiltees under RCRA
see 122.3(b) (definition of “major HWM
facility”). The distinction between “major”
and “minor” permittees for NPDES, UIC and
section 4041s established in EPA’s annual
operating guidance for the EPA Regional
Offices and the States.) -
(c) Reports required under this section
from the State Director shall be
submitted to the Regional
Administrator, and reports from the
Regional Administrator shall be
submitted to EPA Headquarters.
122.16 ConfIdentIalIty f Information.
(a) Except as provided in paragraph
(b) any information submitted to EPA
pusuant to these regulations may be
claimed as entitled to confidential
treatment 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
disclosed only in accordance with the
procedures in Part 2 of this title.
(b) The following information may not
be accorded confidential treatuient
(1) The name and address of any
permittee.
(2) Permits, draft permits, fact sheets,
comments received by the permit issuing
authority with respect to draft or
proposed permits and statements of
basis.
(3) In the case of section 402 and 404
permits under CWA, permit applications
and effluent data; and
(4) In the case of UIC permits, any
information-applications and effluent
data.
Subpart B—Additional Requirements
for Hazardous Waste Programs Under
the Resource Conservation and
Recovery Act
5 122.21 Purpose andsccps.
(a) The requirements in this Subpart
contain the specific elements and permit
conditions for the RCRA hazardous
waste permit program. They apply to
EPA, and to approved States to the
extent set forth in part 123. in case of
inconsistencies between this Subpart
and Subpart A of this Part, this Subpart
Is controlling.
( b)Six months after the date of
promulgation of regulations under
section 3001 of RCRA. 40 CFR 250,
Subpart A (proposed at 43 FR 58954
(December 18, 1976)), the storage,
treatment and disposal of hazardous
waste is unlawful unless owners!
operators of existing Hazardous Waste
Management facilities have notified
EPA under 40 CFR 250 Subpart C
I 250.800 (proposed at 43 FR 2991 Uuly
11, 1978)). and have submitted a permit
application in accordance with this
Subpart and Part 124.
(c)(1) Any hazardous waste storage
pits, ponds, or lagoons and/or storage
tanks and any distribution systems
which are associated with an
underground injection well that i ecelve .
hazardous waste(s) must obtain a RCRA
permit.
(2) Any one/shore hazardous waste
treatment or storage facilities associated
with an ocean disposal operation must
obtain a RCRA permit.
(3) Any surface Impoundment
associated with a wastewater treatment
plant, other than a P01W, that treats
and/or stores hazardous waste must
obtain a RCRA permit for that part of
the facility up to the point of discharge.
(Comment’ See 40 CFR Part 250.45-3
(proposed at 43 FR 59011 (December 18.
1978)).]
(4) Any on-site treatment, storage, or
disposal facilities for managing
hazardous wastes resulting from
treatment or control of wastewaters by
a wastewater treatment plant, other
than a P01W, must obtain a RCRA
permit.
• 122.22 Law authorizing hazardous wasts
central program.
Sections 3001 through 3005 of RCRA
authorize EPA to promulgate regulations
establishing a Federal hazardous waste
management program. Section 3006 of
RCRA authorizes EPA to promulgate
guidelines for State assumption and
operation of the hazardous waste
management program (with EPA
approval) in lieu of a Federal program.
(Comment’ Regulation. under Sections
3001.3002, and 3004 are published at 40 O’R
250, Subparts B. and D, (proposed at 43 FR
58946 (December 18.1978)) RegulatIon.
wider SectIon 3003 are published at 40 CFR
250, Subpart C, (proposed st43 FR 18506
(April 28. 1978)) Regulations under Section
3010 are pubhshed at 40 CFR 250. Subpart C.
(proposed at 43 FR 29908 Quly 11. 1978)).)
5122.23 ppllcatlon fore P”
(a) Any person who owns or operates
an “existing HWM facility” as defined
In 5 122.3 of this Part, shalL
(1) NotIfy as required by 40 CFR Part
250, Subpart C (proposed at 43 FR 29911
Uuly 11, 1978)); and
(2) Submit Part A of the permit
application within six months after the
date the regulations under 40 CFR Part
250. Subpart A (proposed at 43 FR 58948
(December 18.1978)) are promulgated, In
order to qualify for Interim etatus under
RCRA. To satisfy the application
deadline of this subsection, and to
qualify for Interim status under RCRA,
an applicant shall subniitonly the
Information required in Part A of the
application, or in the case of an
application for a special HWM facility
permit under 5 122.25, the application
shall contain the requirements specified
In the appropriate subsection of 5122.25.
The Director shall advise the applicant
of the receipt of Part A of the
application. This advisement shall
signify the beginning of interim status if
the application was timely submitted, A
date for submission of Part B of the
application shall be established by the
Director at a later date. The Director
shall provide at least six months notice
for the submission of Part B of the
application. Failure to submit an
adequate Part B of the application by
the date established by the Director
shall result in automatic loss of interim
status on such date.
(Comment’ Owners or operators of existing
HWM facilities wider Interim status who
elect to modify these facilities muat
nevertheless meet the requirement. of 40 R
Part 250. Subpart D (proposed at 43 FR 58994
- - (December 18,1978)) at the time that a permit
Is Issued for the facility. Any modification
made during Interim status is therefore
sub ject to the review of the Director at the
time of permit iasuance and is undertaken at
the risk that additional changes to the facility
will be required In order to meet the
requirements of 40 CFR Part 250. Subpart D.)
(b)Owners/operators of new HWM -
facilities shall submit both a Part A and
a Part B application at least 180 days
before physical construction is expected
to commence. No physical construction
shall commence until a final permit is
Issued. In the case of an application for
a special HWM facility permit under
5122.25, the application shall contain
the requirements specified in the
appropriate subsection of 5122.25.
(c) Pa n A of the Application shall
Include the following as a minimum:
(1) Name, title and address of the
applicant name and address of the
facility. -
(2) A description of the boundaries of
the HWM facility, including a
topographic map of the area for a
distance of one mile (1.6km) beyond the
boundarIes of the HWM facility a.
required In the permit application forms.
This map shall correspond to a 7%
minute series map published by the U.S.
Geological Survey. if a 7% minute series
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map is not available, a 15 mInute series
map may be substituted.
(3) A detailed description of the
hazardous waste to be handled at the
HWM facility (name and common code)
by Its Department of Transportation
(DOT) proper shipping name (49 CTR
Part 172). 172.101 (proposed at 43 FR
22631 (May 25, 1978)). if the DOT proper
shipping name “NOT OTHERWISE
SPECIFIED” (NOS) Is used, the EPA
name (as Identified in 40 CFR Part 250,
250.14 (proposed at 43 FR 58957—0
(December 18,1978)) must be Included
after the DOT proper shipping name
NOS. If no EPA name exists, then only
the DOT proper shipping name NOS
shall be used
(4) The hazard class of each waste as
Identified or listed under DOT hazard
class (49 CFP. Part 172). 172.101
(proposed at 43 FR 22631 (May 25,1978))
or by the EPA chai’acterlstica (as
Identified in 40 CFR Part 250. 250.13
(proposed at 43 FR 58955—7 (December
18.1978)) if the DOT hazard class Is not
applicable. if the DOT hazard class
“OTHER REGULATED MATERIAL”
(ORM) is used, the EPA characteristic or
property, as Identified in 40 CFR Part
250 250.13 (proposed at 43 FR 58955—7
(December 18, 1978)) must be used after
the DOT hazard class ORM
(5) The annual quantity of each
hazardous waste to be treated, stored or
disposed by volume or weight. In either
the metric or the English system;
(6) A brief description of how the
hazardous waste is to be treated, stored
or disposed of at the HWM facility, and
(7) For an existing HWM facility.
copies of all available drawings and
specifications for the HWM facility, Its
processes and equipment.
(d) Part B of the Application shall
Include the following as a minimum:
(1) A master plan for the HWM
facility, Including a topographic map
with a scale of one Inch (2.5 cm) equal to
not more than 200 feet (60.8 m) and a
contour interval not greater than five
feet (1.5 m) for the area within one
thousand feet (304 m) of the boundaries
of the HWM facility and Indicating any
five-hundred-year flood prone areas.
The master plan shall Include a detailed
description of:
(i) For a new HWM facility, or for
modification to an existing facility, any
structures, buildings, equipment and
machInery to be used at the HINM
facility including site preparation plans,
design plans and specifications for
treatment, storage or disposal facilities;
(ii) A detailed plan of operation and
maintenance, Including operating
conditions, projected hours of operation,
security and access control, plans for
covering and compaction, plans for
controlling odor, air, surface water and!
or groundwater pollution, plans for
controlling leachate production, plans
for vector control and control of
burrowing animals, and other related
hems;
(iii) The planned life of the HWM
facility based on projected use and the
expansion potential and plans for the
use or disposition of the HWM facility
after closure:
( Iv) The contingency plan for
emergency situations, Including the
procedures. equipment and facilities to
be used, a listing of the fire departments,
ambulance services, hospitals, and other
emergency services that will serve the
facility and the response time, the
person responsible for implementing the
contIngency plan, the on-site plan for
fire control, spill prevention control and
countermeasure plans under section 311
of CWA, best management practices
under sections 304(c) and 402(alil) of
CWA (see 40 CFR Parts 125 and 151),
and 40 CFR Part 250, 250.43-3
(proposed at 43 FR 59001—2 (December
18, 1978)):
(v) The plan for closure of the HWM
facility, including the estimated cost of
closure, post closure expenses,
proposals for controlling access, steps
that are planned to control leachate
production, and the plan for
maintenance of the HWM facility after
final closure for disposal operations;
(vi) The plan for visual inspections of
the HWM facility conditions and for
monitoring air, surface water, and
groundwater pollution, Including the
period after closure:
(vii) The plan for segregation of
incompatible wastes and how wastes
will be placed or located within the
treatment. storage, or disposal facility’,
and
(viii) The plan for conducting trial
burns at inc1nera or facilities as
required under 40 CFR Part 250.
250.45—1 (proposed at 43 FR 59008
(December18, 1978)).
(2) A detailed description of site
geology of the area within one thousand
feet (304 m) of the boundaries of the
HWM facility. including a description of
physlography, soil depth and types
including chemical and physical
properties; and a detailed description of
the geologic column including Intrusive
bodies, fluids, fractures, faults, joints,
and fracture traces. Where access to
adjacent properties for obtaining
geological data Is not reasonably
available, data available from public
sources may be substituted.
(3) For HWM disposal facilities and
HWM surface impoundment facilities, a
detailed description of the site
hydrology and the hydrology of the area
within one thousand feet (304 m) of the
boundaries of the facility. Including
known or recorded springs, depth to
ground water, thickness, extent.
characterIstics of aquifers, perched
water zones, porosity and permeability -
of soils, directions and rate of flow of
groundwater, recharge and discharge
areas, drainage patterns and divides,
distance to surface water, location of
public, livestock, and private water
supplies, background quality of
groundwater as specified in 40 CFR Part
250, { 250.43—8(c)(1) (proposed at 43 FR
59005 (December 18, 1978)) and other
related Items. Where access to adjacent
properties for obtaining hydrological
data Is not reasonably available, data
avallabi e from public sources may be
substituted. -
(4) A description of the climate In the
area, including average annual rainfall.
average annual evapotranspiration
rates average annual wind speed,
prevailing wind direction, and other
factors that may affect water or air
pollution.
(5) PosItion or job descriptions
covering the persons responsible for the
operation of the HWM facility. Including
education, training, and work
experience requirements and a
description of the training program to be
used to prepare persons to operate and
maintain the facility in a safe and
environmentally adequate manner.
(6) A listing of the applicant’s
performance bonds, Insurance carriers
and policies, trust instruments, escrow
accounts or other instruments which
constitute continued financial
responsibility In accordance with
standards in 40 CFR Part 250, 250.43-9
(proposed at 43 FR 59006-7 (December
18,1978)).
(7) The Director, upon the written
request of the applicant, may waive
certain of the application requirements
hi Part B of the Application If he/she
determines that the information is not
applicable to the facility and is not
needed to establish compliance with the
standards in 40 CFR 250.42 and 250.43
(proposed at 43 FR 58999 (December 18,
1978)). A request for a waiver of certain
PariB application information shall be
submitted In writing by the applicant
and shall state why the specified
Information Is not needed to determine
compliance with the standards in 40
CPR 250.42 and 250.43 (proposed at 43
FR 58999 (December18. 1979)). The
Director shall grant or deny the waiver
request In writing. Including a statement
of the reasons for the decisions,
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Federal Re Lster / Vol. 44. No. 118 1 Thursday, June 14. 1979 1 Proposed Rules
lConunene Ritamples of where such
waivers ms ’ be grunted ladude the waiver of
pile geological mfounaticn for facWlze. that
only lncimrate hazardous waite and dispose
oF any residues off .slte. end site geological
Information for above-ground storage tanks
that are not assoclst,d with any other
treatment. doings. or disposal HWM
fadlit iei.l
(8) The Director shall determine
whether or not an application of permit
Is complete and shall notify the
applicant in writing of such
determination wIthin 30 days of receipt
of such application The application
shall not be considered as submitted to
the Director until It I. In complete forni.
19) Where an approved State is the
permit.issuing authority, the application
must contain at least the information
required under this section. paragraph
(c) and peagraph (d) unless waived
under 122.23(d)(7).
o *22.21 Eablsludngpernth *smrs and
cond l eon
Lu addition to the terms and
conditions specified in Subpart A of this
Part, any RCRA perliut shall include the
following terms and conditions:
(a) Each of the applicable
requirements specified ut 40 CFR 250.43.
250.44. 250.45 and 25046 (proposed ailS
FR 58999-59016 (December 18.1976)).
except where an alternative requirement
is established and included in the permit
in accorcance with 40 CFR 250.43.
250.44. 25.0.45 and 250.46:
(bJ Such additional requirements as
the Director deems nesessary to comply
with the human health and
environmental standards laID CFR
25042 (proposed at 43 FR 56999
(December18. 1978.)).
(c) Requirements alternative to those
established in the regulations in
accordance with the variance oriteria
Incorporated in the notes in 40 R
250.43-45 (proposed at 43 FR 38999.
59026 lDecember 28. 1978)).
(d) Provisions for minor modification
to a permit under 122 .Q(j) (5) and (6).
where appropriate. The Director shall
Issue a public notice In accordance with
0124.12 prior loot at the time that he!
she approves audi minor modification.
(2) Minor modifications may be made
under this paragraph only where the
Director determines that a particular
HWM facility has the capacity and
equipment necessary to handle a variety
of different types of hazardous waste
without violating any other permit terms
and conditions or the requirements
specified in 40 CFR 250.43.259.44.2.50.45
and 250.46 (proposed at 43 FR 58999.
59016 1December18. 1978)), and where
the facility can demonstrate that t will
receive different quantities and/or types
of hazardous wastes on an
unpredictable basis.
(2) In modifying the permit under this
paragraph, the Director may limit the
types andf or quantities of hazardous
wastes that can be the subject of minor
modifications under 122.9(j) ( 5) and
(6).
ICoaiJnenL Provisions for minor
inodillc.borrs under this paragraph and
I 122.9(j) (5) and (6) are not Intended to be
generally In R( .A posmita. but .ze
appropriate oniy under cartalo *imaisd
circomutances u spec fled to this paragraph,
and at the discretion of the Director. This
paragraph does not apply where the types or
quantities of wastes can be anticipalad
through contract provisions or by other
means. maldng ft poulble to include
provisions covering such wastes in the Initial
permit Modificaticrea nst covered by this
paragraph must comply with the applicable
requuemenhs of fi 122.9,124.5 and L ILt.)
( .3 No HWM facility shall commence
treatment, storage or disposal of
hazardous waste In a modified or newly
constructed facility until such
construction or modification Is complete;
and
(1) The permittee has submitted to the
Director a certified letter signed by the
perniittee and a registered professional
engineer in the State where the facility
Is located, stating clearly that
construction or modification of the
facility ha, compiled with the permit,
and in the case of Incinerator facilities, a
trial burn and result analysis has been
completed and is submitted to the
Director, and
12) The Director has inspected the
modified or newly constructed facility
and find, that the facility Is in
compliance with all terms of the permit.
provided that, the Director has notified
the permittee. within ten (10) days of
receipt of such letter, of his/her intent to
inspect and
(3) The Director atith nzes
commencement of treatment. storage, or
disposal of hazardous waste.
(I) Where an approved State Is the
perm.t.isauing authority, the permit must
establish such terms and conditions as
are necessary to provide a degree of
control and protection of human health
and the environment equivalent to that
required under this section.
p12225 Speotni HWy facMypan&
(a) Health Car. Facility Special
Peri’niL (1) A person who owns or
opera tea a health care facility which
treats or stores hazardous waste may
apply for a health care facility special
permit if the following conditions are
satisfiedi
4i) The Health care facility is licensed
under a State licensing law and such
license requires compliance with
requirements for the storage.
sterilization. Inoenaration, or treatment
of .11 hazardous waste generated
( II) The State licensing law and
control program provides for the
adequate enforcement of the program by
withholding or wlthdrawusg the license
of the health care facility where
compliance with license requirements is
not being achieved.
(W) If Incineration Is used, the
Incinerator is operated under the terms
and conditions of a license issued under
applicable State law’, and
(iv) The person owning or operating
the health care facility submits a
certification of compliance with an
Issued license signed by the appropriate
Slate licensing official.
(2) An applicant for a health care
facility special permit shall submit the
following Information:
(I) The name and addre,s of the
facility-.
(ii) Certification signed by the
appropriate State licensing authority
specifying that the facility has an
effective license and is iii compliance
with such license: end
(iii) A list of the hazardous wastes
covered by the State license.
(3) The licensing law requirements of
a State shall be judged against the
applicable RCP.A 3004 standards, 40
C}’R 250, Subpart D (proposed at 43 FR
58982 (December 16. 1976)) to determine
If art equivalent degree of control is
provided.
(4) Whenever the condition, of
subparagraph (1) are not being met the
health care facility loses eligibility for a
special permit under this section.
lCommen (1) Health care facilities
Include hospitals as defined by SiC Code.
6062 and 8009 and veterinary hospitals as
defined by SIC Codes 0741 and 0742 See 40
CFR 250 14(b)(1)(iJ (proposed at 43 FR 58956
(December1 5 lgr S).
(2) Under I 123.3a States are authorized.
bat not required. to Issue special faciLly
permits In the same malvier and covering the
same facilitj s as those covered by EPA
under this section,)
(b) Experimental Specie! Permit. (13
The Director may grant an experimental
special permit to a person for the
treatment, storage, or disposal of
hazardous waste using advanced
technology where the Director
determine, that such technology will
significantly Improve the state-of-the-art
for hazardous waste treatment, storage
or disposaL
(2) An applicant for en experimental
special permit shall submit all of fire
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Federal Register I Vol. 44. No. 116 / Thursday. June 14, 1979 / Proposed Rules
34281
applicable Information specified in
* 122.23(c) and (d) and such other
Information as the Director may require
Including plans for the Immediate
terthinatfon of all activities If Intended
results are not achieved.
(3) In granting an experimental special
permit, the Director shall require the
submission of an evaluation of test
results and shall set a specific date for
Its termination which shall not exceed
one (1) year. An extension of no more
than one addItional year way be granted
by the Director upon written request
from the permittee, Including the
submission of such Information as the
Director may require, Including a full
evaluation of any teat results from the
facility for the period of operation.
(CommenL’ Under 123.39, States
authorized, but not required, to Issue
experimental special permits In the same
manner and covering the same facilities as
those covered by EPA under this section.)
122.26 PermIts by ivie.
(a) Permit by Rule for HWM Facility
Accepting Specie! Waste. A facility
which treats, stores, or disposes only
special wastes and does not comingle
different types of special wastes, as
listed in 40 CFR 25046 (proposed at 43
FR 59015 (December 18, 1978)), shall be
considered as having a permit for the
treatment, storage or disposal of such
wastes if the owner/operator of the
facility complies with all the applicable
requirements for control of special
wastes, as specified in 40 CFR 250.48.
including the notes thereunder,
(proposed at 43 FR 59015 (December 18,
1978)) and notifies EPA In accordance
with 40 CFR Part 250, Subpart G
(proposed at 43 FR 29908 (July 11. 1978)).
ComrnenZ Special wastes are’ Cement
Kiln Dust. Utility Waste (fly ash, bottom ash,
scrubber sludge), Phosphate Rock Mining,
Beneficistion. and Processing Waste.
Uranium Mining Waste. Other Mining Waste:
end Gas and Oil Drilling Muds and Oil
Production Brinee These wastes, typically,
are generated in large volumes and some
portions are expected to be classified as -
hazardous under the Section 3001 standards.
The Agency, however, has very little
information on the composition.
characteristics, and the degree of hazards
posed by these wastes. Therefore, the Agency
Is proposing to remove the provision
requiring facilities to obtain slte.specific
permits Moreover. EPA request. comments
on alternate approaches, such as the use of
either a general perref I (applicable to many
sites, rather than only one site), or of special
slte.specific permits of the type proposed In
I 12225 of this Subpart Finally, the Agency
requests comments on the applicability of
these approaches to assessing equivalency of
State programs as required under Part 123J
ICommenL’ Under 123.39. Slate. ale
authorized, but not required, to Issue permits
by rule In the same manner and covering the
same facilities or circumstances as those
covered by EPA under this section.)
(b) Permit by Rule for Ocean Disposal
Barges or Vessels. A barge or other
vessel which accepts hazardous waste
for ocean disposal shall be deemed to
have an HWM facility permit If the
following conditions are meti
(1) The owner or operator of the barge
or vessel Is authorized to ocean dump
such waste under an ocean dumping
permit Issued to him or her under 40
CFR Subchapter H
(2) The owner or operator of the barge
or vessel complies with the terms of his
or her ocean dumping permit and
(8) The owner or operator of the barge
or vessel complies with the following
hazardous waste treatment, storage and
disposal facility regulations, as
applicable:
(i) 40 CFR Part 250, Subpart C
(notification):
‘Ill) 40 CFR 250.43—5(a). (manIfest
system):
(lii) 40 CFR 250.43—
5(b)(8)(recordkeeping); and
(iv) 40 CFR 250.43—5(c)(5)(i}-{Iii)(A) —
(F). (H): and (c)(6) (reporting).
(Comments: (1) Sboreeide facilities of
ocean disposal operations which handle
hazardoua waetea will require gular RCRA,
permits However, disposal vessels wkich.
dump wastes Into the ocean are adequately
regulated by the Marine Protection, Research
and Sanctuaries Act, as amended. 33 U.S C.
1420 et seq. Even so. to assure the smooth
operation of the manifest system, such
facilities will have to comply with manifest,
recordkeeping and reporting requirements.
(2) Under 123 39, States are authorized,
but not required, to issue permits by rule in
the same manner and covering the same
facilities or circumstances as those covered
by EPA under this section.)
(c) Pennit by Rule for Pubi!cly Owned
Treatments WorAs (POTWsJ. A publicly
owned treatment works (POTW) which
accepts for treatment hazardous waste
shall be deemed to have a HWM facility
permit if the following conditions are
met:
(1) The PO1’W has an NPDES permit;
(2) The POTW complies with the
terms of its NPDES permit
(3) The waste meets all Federal. State
and local pretreatment requirements
which would be applicable to such
waste if it was being discharged into the
POTW through a sewer, pipe or similar
conveyances: and
(4) The owner/operat r of the POTW
complies with the following hazardous
waste treatment, storage and disposal
facility regulations, as applicable:
‘(l)4ocFRPartZ sO,SubpartG -
(notification):
(11)40 CFR 250.43—5(a) (manIfest
systems):
(111)40 CFR 250.43—5(b)(6)
(recordkeeping); and
(lv) 40 CFR 250.43—5(c)(5) (1)-WI) (A)—
(F). (H); and (c)(6) (reporting).
IComments (1) General pretreatment
regulations are found at Part 403 of this
Chapter and specific pretreatment
requirements for Industrial categories are
found generally in Subchapter N of this
Chapter (Effluent Guidelines and Standards).
An Industry generating hazardous waste and
shipping wsste to a POTW must provide all
the treatment which would be required If the
Industry were discharging the waste directly
Into the treatment system. POTWs which
receive wastes that may be classified as
“hazardous” but which are solid or dissolved
.materlels In domestic sewage do not come
wider these regulations because sections
1004(5) and 1004(27) of RCRA exclude these
materials from the definition of “hazardous
wastes - These POTWa are controlled wider
the NPDES system of the Clean Water Act.
However, for those POTWs which receive
hazardous waste for which a manifest or
other delivery document Is required.
complianc, with the manifest system,
recordkeeplng and reporting requirement. Is
necessary to assure the smooth operation of
the manifest system.
(2) Under I 123 39, States are authorized,
but not required, to Issue permits by rule in
the same manner and covering the same
facilities or circumstances as those covered
by EPA wider this section)
*122.27 Reporting requirements.
In addition to the reporting -
requirements of * 122.15, the Director
shall prepare the following reports:
(a) Quarterly international sh,pment
reports. The Director shall submit’two
copies of a report within four weeks of
the last day of March, June. September
and December. The report shall contain
a compilation of shipments which -
originated during the reporting quarter
and were sent from generators and
owners and operators of treatment,
storage, and disposal facilities within
the State to a location outside the
jurisdiction of the United States. Such
reports shall contain the generator or
HWM facility Identification code, name,
address, arid the information required
by 40 CFR 250.23(c) (2H7) (proposed at
43 FR 58978 (December 18, 1978))
(b) Annual program reports. The
Director shall prepare two copies of a
program report within four weeks of the
last day of September. The report shall
contain Information (in a manner and
form prescribed by the Administrator)
on generators, transporters, the permit
status of regulated facilities, and
summary information on the quantities
and types of hazardous wastes
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M282
Federal Register / Vol. 44, No. 118 / Thnrsday, June 14. 1979 / Proposed Roles
generated, transported, stored, treated
and disposed during the preceding year.
(cJ Reports required under this section
from the State Director shall be
submitted to the Regional
Administrator, and reports from the
Regional Mmini.lrator shall be
submitted to EPA Headquarters.
I 122.2S £....,scy aiViolIrsUon.
Notwithstanding any other provision
of this Part or Part 124, in the event of an
Immediate hazard to human health or
the environment (as detennined by EPA.
other Federal agencies or State or local
authorized officials) the Director may
Issue temporaty authorization to a
permitted HWM facility to allow
treatment, storage or disposal of
hazardous waste not covered by a
permit. Such authorization
(a) May be oral or written. If oral. It
shall befollowedwlthinsdaysby
written authormutioiu
(b) Shall nut exceed 90 day. In
duratlom
(c) SbaU clearly specify wastes to be
received, and the manner and location
of their treatment, storage or disposal
(d) May be revoked by the Director at
anytime ithe/shedetenmnre that
revocation Is appropriate to protect
human health and the environment; and
(e) Shall be accompanied by a public
notice published according to methods
provided in 0 1U.11(a)(2) and specifying
the
(1) Name and address of the office
granting the emergency authorization,
(2) Name and location of the
permitted HWM facthty
(3) Brief desa’iption of the wastes
lnvolved
(4) Brief description of the action
authorized and seasens for authorizing
It. and
(5) Duration of the authorization.
tCommeni Under 123.39. Slates are
authorized, but not required, to grant
temporary authorization In the same memier
and os sang the seme facilities or
circumstances as thcee covered by EPA
under this section,)
Subpart C—Additional Requirements
for UIC Program Under the SDWA
f lfl,31 Purpose and sespe.
(a) The regulations In this Subpart set
forth the specific requirements for the
UIC program. Additional general
requirements have been set forth in
Subpart A. In case of Inconsistencies
between this Subpart and Subpart A,
this Subpart I . controlling.
(b) SDWA provides for authorization
of underground injections In listed
States by permit or, where provided for
by these regulations, by rule. This
Subpart defines the types of activities
subject to authorization by permit or
rule, and sets forth the specific elements
applicable to either type of
authorization.
(Comment References to Pail Iss. the
tedinicat regulations (or the UIC program .
appear frequently In this Subpart These
technical eegulstlons won , .i, 1 ,u.u.d en Aplil
za. iera 44 PR 22738) 1
0122.32 Law aithollrlng tIC p,grsei .
(a) Section 1421 of SDWA requires the
Administrator to propose and
promulgate regulations establiahhig (1)
minimum requirements for UIC
programs and (2) a procedural
mechanism whereby States may obtain
EPA approval to operate such programs.
(b) Section 1422 of SDWA requires the
Administrator to list In the Federal
Register “each State (or which hi his
judgment a State underground In)ection
control program may be necessary Ip
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 cia Stale ugr m in a
listed State.
(c) Section 1423 of SD WA provides
procedures for EPA enforcement of UIC
requirements where the State Lsil, to
enforce those requiretnerds.
(d) Section 1445 of SD WA audiosizes
(1) such recordkeeping, reporting, and
monitoring requirements “as the
Administrator may reasonably require
by regulation to assist him In
establishing regulations under hi, title.”
and (2) a “right of entry and inspection
to determine compliance with this title,
including for this purpose, inspection, at
reasonable times, of records, files.
papers, processes, controls, and
facilities •
(e) Section 1450 of the SDWA
authorizes the Administrator ‘to
prescribe such regulations as are
necessary or appropriate to casey out his
functions” under SOWA.
0122.33 DesIgnation of imdorpround
drlnldng water oercsa
(a) The Director shall identify (by
narrative description. diustrations, maps
or other means) all aquifers or parts of
aquifers which are not underground
sources of drinking water, in eccordama
with the criteria contained ki 14&OL
The Director shall propos. this
designation and provide opportunity for
comment and a public hearing on It. All
aquifers not so Identified shaft be
designated underground sources of
drinking water.
(b) Aquifers identified under
paragraph (a) shall be described in
geographic and/or geometric terms
(such as vertical and lateral limits end
gradient) which are clear and definite.
(Comment Aquifers not Identified ardor
paragraph (a) of this section may be
described by use of maps. whore such
information Is available, or by narrative
description. IdentIficatIons of aquifers In
accordance with paregr .ph (a) should be
acesinpanied by narrative descriptions of
why those aquifers do ant qualify for
designation as underground memea of
drinking water.)
(c) Where a UIC program Is
administered by a State, designation
and IdentIfication by the State Director
under this section shall be subject to the
approval of the Administrator at the
time of program approval under Pail
123.
ommant. Designation end Identlflcalioa
subsequent to program approval shall be
treated as program modifications under
I 123M(b)(a).J
* 122,34 Ctes.slftcatlon of teJastlon sedis.
The Director shall classify lx4ection
wells as follows:
(a) Class I: Industrial end municipal
disposal wells and nuclear storage and
disposal wells which inject beneath the
lowermost stratum containing an
underground source of drinking water.
‘(b) Class U: Well injection of
produced water or other fluids Which
are brought to the surface In connection
with oil or natural gas production, well
Injection of fluids for enhanced recovery
of oil or natural gas and well Injection of
fluids for storage of hydrocarbons.
(c) Class UI: Well ir4ectioo of fluids
for special processes such as mining of
sulfur by the Frasch process, well
Injection for solution mining of uranium,
salt, potash, copper and other minerals,
and well injection for hi situ gasification
of oil shale, coal, lignite, tar sands and
other similar fuel sources, and weD
injection to recover gas thermal enez ,.
(d) Class ZV: Wells used by generators
of hazardous wastes and owners or
operators of hazardous waste
management facilities (as defined in
O 122.3(b)) to Inject into or above strata
containing underground dzinldng water
sources.
(e) Class V: Injection wells not
Included in Classes 1,11,111 or lv
(examples are recharge wells such as
subsidence control avails, air
conditioning or cooling water retina
flow wells, and drainage wetls and
waste disposal wells such as sand
backfill wells, non-residential septic
system wells, dry wells, and Industrial
and municipal waste disposal wells).
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Federal Resister / Vol. 44, No. 116 1 Thursday, June 14. 1979 / Proposed Rules
122.35 Authoetsatlan of undsvgreimd
injection by nde.
(a) 7)ipes of underground injections
which may be authorized by rule. The
Director may authorize underground
Injections by rule In the following
lnstanceL
(1) Underground Injection Into all
existing class L II (except existing
enhanced recovery and hydrocarbon
storage) and Ill wells may be authorized
by rule fore period up to 5 years from
the effective date of the UIC program.
All class I, II and Ill wells except
enhanced recovery and hydrocarbon
storage wells must be Issued permits
within five years In accordance with the
permitting schedule established by the
Director. All such authorizations by rule
shall require compliance with the
applicable monitoring, reporting and
abandonment requirements of Part 148
as soon as possible but no later than one
year after the authorization by rule.
(2) Underground injections Into
existing enhanced recovery and
hydrocarbon storage wells may be
authorized by rule, rather than by
permit, for the life of the welL All such
authorizations by rule shall require
compliance with the applicable
construction, abandonment, operating,
monitoring, reporting. and financial
responsibility requirements of Part 148
as soon as possible but no later than one
year after the authorization by rule.
(3) Underground Injections into
existing class IV wells which have
submitted the Information requIred
under 14842 shall be authorized by
rule ending at the time of their closure
under 146 43(a). Such authorization
shall require monitoring and reporting
as set forth in 14844 within 90 days of
the authorization.
(Comment The operation of new Class IV
wells shall be prohibited by rule. See
1122.45.1 -
14) Underground injections into class
V wells which have submitted the
Information required under 1148.52 may
be authorized by rule for a period
ending at the time when new
requirements promulgated by EPA
became applicable.
(b) Owners or operators of
underground injection facilities who
have not complied with applicable rules
are subject to enforcement action by the
State or, where appropriate. EPA.
I 122.35 AuthorizatIon of underground
injection by srndL
(a) Who must apply. All underground
Injections into Class L II (except existing
enhanced recovery and hydrocarbon
storage) or III wells In listed Stales must
be authorized by permit.
(b) Time to apply. Any person who
performs or proposes an underground
Injection for which a permit is required
shall submit an application to the
Director In accordance with the State
UIC program (Including the State permit
plan under part 123) as follows:
(1) For existing Injection wells, as
expeditiously as practicable and In
accordance with the schedule contained
In State permit plan, but no later than
four years from the effective date of the
State UIC program.
(2) For new injection walls, a
reasonable time before Injection Is
expected to begin. Injection may not
begin until the owner or operator has
received a permit.
(c) Conjents of UJC application.
Applicants for UIC permits shall submit
the following Information to the
Director
‘(1) All applicants must submit the
Identity of the owner or operator of the
Injection operation, the location or
proposed location of the Injection well,
and the purpose or function of the well,
(2) Applicants for State-Issued permits
for existing Injection wells shall submit.
In addition to the Information required
by subparagraph (1), such other
Information as the Director requires..
(Comment: In many States most or all of
the Information winch the Director must
consider In writing permit condition. Is -
already contained Ia State (lIes. Pail 146
Subparts B-D list the Information which the
Director must consider for various dau.ee of
wells. The Director may review the State files
upon receipt of en application and then
require the applicant to submit any
applicable Information which either Is not
contained In the State file oris Iii need ol
correction or updsting. Only new Information
submitted by the applicant that Is not already
contained In State files Is subject to the
signatory requirements of 1122.5.)
(3) Applicants for State-issued permits
for new injection wells shall submit. in
addition to the Information required by
subparagraph (1), all additional
Information which the Director will be
required under Part 146 to consider for
the applicable class of well. Certain
maps, sections, and tabulations of wells
within the area of review (see II 146.15.
148.25 and 146.36), may be Included in
the application by reference provided
they are available to the Director and
sufficiently identified to be retrieved.
(4) Applicants for EPA-issued permits
shall submit, In addition to the
Information required by subparagraph
(1), all additional information which the
Director will be required under Part 148
to consider for the applicable class of
well.
(d) Mechanical integrity. The Director
shall Issue no permit. to wells which
lack mechanical Integrity as determined
under 0 146.06.
1122.37 A ,.. permits.
(a) The Director may Issue permits on
a well-by-well basis or an area basis,
provided that all injection wells covered
by an area permit are:
(1) Within a single well field project.
or site In a single State;
(2) Covered by the application for the
permit
(3) Of the same type as determined
under 0 122.34:
(4) Injecting into the same aquifer or
zone; end
(5) Controlled by a single person.
(b) Area permits shall specify the
boundary within which underground
injections are authorized and shall
Identify by location each Injection well
covered by the area permit.
(c) A permittee may obtain
administrative authorization from the
Director for additional new Injection
wells within the permitted area Without
public notice and hearing:
(1)11 the permittee notifies the
Director of his/her Intent to place an
additional Injection well within the
permitted area and provides Information
on the location of the proposed well;
(2) If the permittee demonstrates to
the satisfaction of the Director that the
additional underground injection well is
similar In construction to wells already
covered by the area permits and will
meet the operation requirements of Part
140; and
(3) Where authorization under this
paragraph I. obtained orally, the
Information In (1) and (2) must be
provided in writing wIthin 30 days.
fComment Such authorization of additional
injection well, does not constItute s permit
modification subject to I lfl.9.J
I 122.3$ Corrective action.
(a) Where the Director’s review of en
application for a class L II (other than
existing) or Ill well indicates that the
proposed injection well’s area of review
contains wells which are improperly
completed and/or plugged or that the
remedial actions proposed by the
applicant are Inadequate, he/she shall
prescribe such steps or modifications as
are necessary to prevent fluid migration
(“corrective action”). In determining
uch steps or modifications, the Director
shall consider the factors set forth In
I 146.07.
(b) In the case of a new or existing
class U Injection well Iii an existing
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Injection field, the Director shall by rule
(or by permit) require that where a
source of leaking fluids may cause a
significant risk to public health, the leak
shall be corrected In the shortest
reasonabale period of time or the
operator shall cease injecting.
(c) In the case of an existing Injection
well which must be authorized by
permit, the Director shall Issue the
permit with a condition that If any
required corrective action Is not
accomplished within the shortest
reasonable time, the permit shall be
revoked.
(d) In the case of a new Injection well
authorized by permit, the operation shall
not begin unless all required corrective
action has been taken.
(a) In the case of a class 1, U or UI well
which is authorized by rule, If any
monitoring indicates the migration of
injection or formation fluids into
underground sources of drinking water.
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
migration.
IcommenL In the case of wells authorized
by perath. such additional requirements may
be Imposed by modifyu the permit In
accordance with 122.9
(I) If at any time the Director gains
knowledge of a Class V well which
presents a significant risk to the health
of persons, he/she shall prescribe such
action as necessary (includmg the
Immediate closure of the injection well)
to remove such hazard
I 122.39 General proh’bitlon against
movement of fluid into underground
sources of drinking water.
No class I, I I or Ill well shall cause or
allow movement of fluid into
underground sources of drinking water.
§ 122.40 Temporary authorization.
(a) Notwithstanding any other
provision of this Part, the Director may.
in the following circumstances,
temporarily authorize a specific
underground injection which has not
otherwise been authorized by rule or
permit:
(1) An Imminent and substantial
hazard to human health or the
environment will result unless
temporary authorization Is granted or
(2)1! a substantial and Irretrievable
loss of oil or gas resources will occur
unless temporary authorization Is
granted to a Class U well; and
(I) Timely application for a permit
could not have practicably been made;
and
(li) The temporary authorization will
not result In the movement of fluids into
underground sources of drinking water.
(b)(1) Any authorization under
paragraph (a)(1) shall be for no longer
than required to prevent the hazard or
loss of auth resources.
(2) An authorization under paragraph
(a)(2) 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 authorization
until the permit Is granted or denied.
(c) Notice of any authorization under
this paragraph shall..be published in
accordance with I 124.11 wIthin 10 days
of the authorization.
1122.42 EstablishIng UIC permit terms
and conditlonL
(a) Permit terms and conditions shall
at a minimum establish, In addition to
terms and conditions required under
4f 122.9 and 122.11, the following:
(1) Construction requirements as set
forth In Part 146;
(2) Corrective action as set forth In
I 122.38 and § 146.7;
(3) Operation requirements as set
forth in Part 146;
(4) Monitoring and reporting
requirements as set forth in I 122.12 and
Part 140;
(5) Schedules of compliance.
Schedules shall set forth dates wh --
are as early as possthle but no later than
three years after the dates of permit
Issuance. No later than 30 days
following each interim or final date, the
permlttee shall provide the Director with
written notice of compliance or
noncompliance with the Interm of final
requirements;
(6) Plugging and abandonment of
injection wells. Where a perznlttee
intends to cease underground injection,
the permittee shall immediately notify
the director and follow the procedures
prescribed by the director for plugging
and abandonment of the well; and
(7) Fiscal responsibility of permittees.
The permittee shall maintain fiscal
responsibility and resources, In the form
of performance bonds or other
appropriate form, to close, plug and
abandon the underground Injection
operation In a manner prescribed by the
Director.
(Comment: To sasure thst the well Is
constructed and operated In accordance with
the requirements of Pail 148, the permit
should set forth the spedflc date on which
the permit is based. For example, the permit
should establish Injection volumes and
pressures which will assure compliance with
the Part 148 operatIng requirements.
(b) The director may Impose
additional terms and conditions on a
case-by-case basis If necesaary to
prevent the migration of fluids into
underground sources of drinking water.
• 122.43 NoncomplIance reporting .
(a) The Director shall submit, as part
of the quarterly report required under
I 122.15( 5), information concerning
noncompliance by major underground
injector, with permit requirements or
the requirements of any applicable rule.
(b) The following shall be contained In
the noncompliance report:
(1) Failure to Complete Construction
Elements. Noncompliance shall be
reported in the following circumstances:
(I) When an injector has failed to
complete, by the date specified In the
permit or rule, an element of the
compliance schedule involving planning
for construction (e.g., award of contract,
preliminary plans, ets.) or a construction
step (e.g.. begin construction, attain
operation level); and
(Ii) The injector has not returned to
compliance within 30 days from the date
a report Is due under Part 146.
(2) Foilu.re to Complete/Provide
Compliance Schedule Reports.
Noncompliance shall be reported in the
following circumstances:
- (I) When an injector has failed to
complete or provide e report required In
the compliance schedule (e.g.. progress
reports, notification or compliance/
noncompliance etc ). and
(ii) The injector has not submitted a
complete report within 30 days from the
date the report is due.
(3) Noncompliance with Operotionol
Requirements. Noncompliance shall be
reported in the following circumstances;
(I) When a permittee or an injector
authorized by rule has violated an
operational requirement and has not
returned to compliance with applicable
requirements within 45 days from the
date notification of noncompliance
under Part 148 was due; or
(Ii) When the Director determines that
a pattern of noncompliance with
applicable operational requirements
exists for any injector over a period of
12 months prior to the end of the current
reporting period. This includes but is not
limited to:
(A) Any violation of the same
requirement in two consecutive
quarters; and
(B) Any violation of one or more
requirements In each of the four quarters
comprising th 12-month period.
(4) Failure to Report Data. The State
shall Include In Its report Instances
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34285
where reports are received or the
reports provided by the injector are so
deficien: as to cause misunderstanding
on the part of the Director and impede
the review of the status of comphance.
Icomment Noncompliance reported under
this par.gTaph shall be reported In succauive
reports until the noncompliance Is resolved.
This resolution of noncompliance shall also
be reported Once the noncompliance is
reported as resolved. Ii need not appear In
subsequent reports.]
(d) Where the State is the permit- -
issuing authority, the State Director
shall submit any reports required under
this section to the Regional
Administrator. Where EPA is the permit-
issuing authority, the Regional
Administrator shall submit any reports
required under this section to EPA
Headquarters.
* 122.44 Special Requirements for waits
managing hazardous wastes
a) The owner or operator of any well
that ia used to inject hazardous wastes
acoompanied by a manifest or delivery
document shall obtain authorization to
inject as specified in ff 122.35 and
122.36
(b) In addition to the applicable
requirements of this Part and Part 148
Subparts B-F. the Director shall, for each
facility meeting the requirements of
paragraph (a). require that the owner or
operator comply with:
(1) The notification requirements of
Part 250. Subpart C (proposed at 43 FR
29911 (July 11. 1978)): and
(2) The manifest system record-
keeping. and reporting requirement of
I 250 43 —5(a). (b)(6), (c)(5)(i), (c)(5)(ii) ,
(c)(S)(iii). (c)(5)(iii)(A)—{F) and
(c)(5)(iti)(H). and (c) (6) (proposed at 43
FR 59003 (December 18. 1978)).
lComn7e. : Wells which Inject hazardous
wastes qualify as hazardous waste
management facilities under the Resource
Conser ation and Recovery Act ( ‘RCRA”). 42
U.S C 6901 ci. seq This section Is designed to
Integrate regulatory coverage of these wells
under RCRA and SDWA to avoid Imposing
Inconsistent requirements I
1122.45 EliminatIon of all due IV wells.
(a) Existing class IV wells Existing
dass IV wells shall be inventoned and
closed by the Director as described in
fl 14642 and 146.43.
(b) New class IV wells. The Director
shall by rule prohibit all new class IV
wells Immediately upon the effective
date of the IflC program.
1122.46 Inventory of class V wells.
(a) The Thrector shall by rule require
the owner/operator of any class V well
to submit the Information required In
1146.52.
(b) The Director shall, within two
years of the effective date of the State
program: -
(1) Conduct an assessment of the
coninmination potential of class V
wells;
(2) Conduct an assessment of the
available corrective alternatives where
appropriate end their environmental and
economic consequences; and
(3) Submit a report to EPA containing
Items (1) and (2) as well as
recommendations for appropriate
regulatory approaches and remedial
actions.
Any underground injection for which.
the required information is not
submitted will not be atfthorized by
either rule or permit and will thus be
subject to appropriate enforcement
action.
(CommenL Based on the submitted
information. States shafl develop reports and
recommendations, which the Agency will use
as a basis for promulgating minimnm national
requirements to brIng class V wells under
regula tory control
The assessment mandated for class V wells
represents solely the recognition that
Insufficient Information is available to the
Agenry at this time. A ha. every intention
of continuing to seek the necessary
environmental amd economic data)
Subpart D—Addltional Requirements
for National Pollutant Discharge
Elimination System Programs Under
the Ctsan Water Act
1122.61 Purpoas and scope.
(a) This Subpart sets forth additional
requirements for the National Pollutant
Discharge Elimination System (NPDES)
program including permit programs
under sections 402, 310 and 405 of the
Act it applies to the program as
administered by EPA and, to the extent
Incorporated by reference in Part 123. by
approved NPDES States. -
(b) Section 402 of the Clean Water Act
(CWA. formerly referred to as the
Federal Water Pollution Control Act).
(Pub. L 92-500, as amended by Pub. L
95—217 and Pub. L 95-576) establishes
the NPDES program. The NPDES
program also includes permit program
requirements under sections 318 and 405
of the Act. This program regulates the
discharge of pollutants from point
sources and related activities into the
waters of the United States. All such
discharges or activities are unlawful
absent an NPDES permit. After a permit
Is obtained, a discharge not in
compliance with all permit terms and
conditions I . unlawful.
* 122.62 Law authorizing NPOES vnutLs
(a) Section 301(a) of CWA provides
that “Except as in compliance with this
section and sections 302.306.307.316.
402, and 404 of this Act, the discharge of
any pollutant by any person shall be
unlawful.”
(b) Section 402(a)(1) of CWA provides
in part that “the Administrator may.
after opportunity for public hearing.
issue a permit for the ‘discharge of any
pollutant, or combinatton of
pollutants. . . . upon condition that
such discharge will meet either all
applicable requirements under sections
301,302, 306. 307. 308. and 403 of (the)
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 (the) Act.”
(C) 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
State supervision pursuant to section
402 of this Ad”
(d) Section 405 of CWA provides, in
part, that ‘where th &sposal 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 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.”
(e) Sections 402(b). 318(b) and (c).and
405(c) of CWA authorize EPA sppro sl
of State permit programs for discharges
from point sources, discharges to
aquaculture projects, and disposal of
sewage sludge.
(I) Section 404 authorizes EPA
approval of State permit programs for
the discharge of dredged or fill material.
, (g) Section 304(i) of CWA provides
that the Administrator shall promulgate
guidelines estabhshing uniform
application forms and other minimum
requirements for the acquisitions of
information from dischargers in
approved States and establishing
minimum procedural and other element.
of approved State NPDES program.
(h) 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.”
(I) Section 101(e) of the Act provides
that “Public participation in the
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Federal Register / Vol. 44, No. 116 I Thursday June 14.1979/_Proposed Rules
development, revision, and enforcement
of any regulation. standard, 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.”
5122. 13 Eacluslons.
(a) The following discharges do not
require an NPDES permit:
(1) 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 matprials
discharged overboard; nor to other
discharges when the vessel is operating
In a capacity other than as a means of
transportation such as when a vessel is
being used as an energy or mining
facility, a storage facility, or a seafood
proceasing facility, or Is secured to
storage facility, or a seafood processing
facility, or is 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
(2) Discharges of dredged or fill
material into waters of the United States
and regulated under section 404 of
CWA.
(3) The Introduction of sewage,
industrial wastes or other pollutants into
publicly owned treatment works by
Indirect discbargers.
ICommenL The exclusion applies oniy to the
Introduction of pollutants Into publicly
owned treatment works Plans or
agreements to switch to this method of
disposal in the future do not relieve
discharger. of the obligation to apply for
and receive permit . until all discharges of
pollutants to waters of the United States
are eliminated. All applicable pretreatment
standards promulgated under section
307(b) of CWA must also be complied with,
and msy be Included In the permit to the
publicly owned treatment work..
This exclusion does not apply to the
Introduction of pollutants to pilvstely owned
treatment works or to other discharges
through pipes, sewers of other conveyances
owned by a State, municipality or other party
not leading to treatment works. (See
* 122.3(d)))
(4) Any Introduction of pollutant.
from agricultural and silvicultural
activities, includIng runoff from
orchards, cultivated crops, pastures,
range lands, and forest lands, except
that this exclusion shall not apply to:
(I) Discharges from concentrated
animal feeding operations as defined in
5 122.76;
(ii) Discharges from concentrated
aquatic animal production facilities as
defined in 5 122.77;
(lii) Discharges to aquaculture projects
as defined in I 122.7a and
( Iv) Discharges from silvicultural point
sources as defined in 5 122.80.
(b) The exemption of a discharge from
NPDES requirements In paragraph (a) of
this section does not preclude State
regulation of the exempted discharge
under State authority, in accordance
with section 510 of the CWA.
5122,64 Application fora psnnlt,
(a) Any person who discharges or
proposes to discharge pollutants, except
persons covered by general permits
under 5 122.82 or excluded under
5 122.63, shall complete, sign, and
submit an application (which Includes a
EMP program if necessary under
5125.102) to the Director In accordance
wIth Part 124.
(b) Persons currently discharging who
have:
(1) ExIsting permits shall submit a
new application under paragraph (c) of
this section where facility expansions,
production increases, or process
modifications will:
(I) Results In new or substantially
Increased discharges of pollutants or a
change in the nature of the discharge of
pollutants, or
(ii) Violate the terms and conditions of
the existing permit.
(2) Have expiring permits shall submit
new applications at least 180 days
before the expiration date of the existing
permit, unless permission for a later
date has been granted by the Director.
(c) A 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 regional Administrator.
ICornmenL’ Persons proposing anew
discharge are encouraged to submit their
applications well In advance of the 180 day
requirement to avoid delay.l
(d) Special pro visions for applications
from new sources. (1) The owner or
operator of any facility which may be a
new source as defined In 5 122.3(d) and
which Is located In a State without an
approved NPDES program must comply
wIth the provisions of this paragraph.
(2)(l) Before beginning any on-site
construction as defined In I 122.81, 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 subparagraph (2)(l) of
this paragraph.
(3) The Regional Administrator shall
Issue a public notice in accordance with
5 124.11 of the new source determination
under subparagraph (2)(1) of this
paragraph. The notice shall state that
the applicant. if determined to be a new
source must comply with the
environmental review requirements of
40 CFR Part 6.900 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 iua any hearing on the
permit.
(e) Applications for variances from
and modifications of effluent limitations
by non .POTWs. A discharger which is
not a publidy owned treatment works
may request a variance from or
modification of otherwise applicable
effluent limitations under any of the
following statutory or regulatory
provisions within the times specified in
this paragraph:
(1) 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 5 124.12. The
request shall explain how the
requirements of 5 124.15 and 40 CFR
Part 125, Subpart D have been met.
(2) 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, where those
requirements were based on effluent
limitation guidelines, must be made by:
(I) Submitting an initial application to
the Regional Administrator and the
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34287
State Director stating the name of the
applicant, the permit number, the outfall
number(s), the applicable effluent
guideline, and whether the applicant Is
applying for a section 301(c) or section
301(g) modification or both. This
application must have been filed not
later than:
(A) September 25. 1976, for a pollutant
which is controlled by a BAT effluent
limitation guideline promulgated befwe
December 27. 1977; or
(B) 270 days after promulgation-of an
applicable effluent limitation guideline
for guidelines promulgated after
December 27, 1977;
(ii) Submitting a completed request
demonstrating that the requirements of
124.15 and the applicable requirements
of Part 125 have been met no later than
the close of the public comment period
under 124 12.
(iii) Requests for variance of effluent
limitations based on other than effluent
limitation guidelines, shall comply only
with paragraph (ii) and need not submit
an initial application under paragraph
(i).
(3) An extension under CWA section
301(i)(2) of the statutory deadlines in
sections 301(b)(1)(A) or (b)(1)(C) of
CWA based on delay In completion of a
publicly owned treatment work into
which the source Is to discharge must
have been requested on or before June
26. 1978. or 180 days after the relevant
publicly owned treatment works
: quests an extension under paragraph
(fl(2) of this section, whichever is later.
The request shall explain how the
requirements of 40 CFR Part 125,
Subpart J have been met.
(4) An extension under CWA section
301(k) from the statutory deadline of
section 301(b)(2)(A) for best available
control technology based on the use of
innovati e technology may be requested
no later than the close of the public
comment period under 124.12 for the
discharger’s initial permit requiring
compliance with the best available
technology economically achievable.
The request shall demonstrate that the
requirements of 124.15 and Part 125.
Subpart C have been met.
(5) 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 124.12
on the permit from which the variance Is
sought. The request shall demonstrate
that the requirements of that section
have been met.
(6) 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. If thermal effluent limitations
are established under CWA section
402(a)(1) or are based on wdter quality
standards the application shall be filed
by the close of the public period under
124.12. A copy of the application as
required under 40 CFR Part 125, Subpart
H shall be sent simultaneously to the
appropriate State or interstate certifying
agency. (See 124.67 for special
procedures for section 316(a) thermal
variances.)
(f) Applications for variances from
and modifications of effluent lirnitaLions
by POTW’S. A discharger which is a
publicly owned treatment works
(POTW) may request a modification of
otherwise applicable emuent limitations
under any of the following statutory -
provisions as specified In this
paragraph:
(1) A preliminary application for a
modification under CWA section 301(h)
from requirements of CWA section
301(b)(1)(B) for discharges into marine
waters must have been submitted to the
Agency no later than September 25,
1978. A final application must be
submitted In accordance with the filing
requirements of 40 CFR Part 125,
Subpart C. after that Subpart Is
promulgated, and shall demonstrate on
Its face that all the requirements of 40
CFR Part 125. Subpart C have been met.
(See 0 124.66 for special rules for CWA
section 301(h) modifications.) -
(2) An extension under CWA section
301(I)(1)irom the statutory deadlines In
CWA sections 301 (blll)(B) or (blll)(C)
based on delay In the construction of
POTWe must have been requested on or
before June 26. 1978.
(3) A modifIcation under CWA section
302(b)(2) of the requirements under
section 302(a) for achieving water
quality based effluent limitations may
be requested no later than the dose of
the public comment period under
124.12 on the permit from which the
modification Is sought —-
(g)(1) Notwithstanding the time
requirements In paragraphs (e) and (I) .
the Director may notify the applicant
before a draft permit Is published
pursuant to § 124.6 that the draft permit
will likely contain limitations which are
eligible for variances or modifications.
In such notice the Director may require
the applicant as a condition of
consideration of any potential variance
request to submit an application
explaining how the requirements of 40
CFR Part 125 applicable to the variance
have been met and to require its
•ubmission within a specified
reasonable time before the draft permit
Is formulated. This notice can be sent
before the application under this section
has been submitted.
IComment: This paragraph Is Intended to
reduce the time for permit Issuance.
especially In those ca.es where It is clear that
aCWA variance or modification will be
applied for)
(2) A discharger who cannot file a
complete request required under
paragraphs (e)(2)(ii), (e)(2)(iii), (e)(3)(ii)
or fe)(3)(iii) may request an extension to
apply. Extensions shall be limited to the
time the Director determines is
necessary to satisfy the requirements of
the appropriate regulations. but shall be
no more than 6 months in duration. The
request may be granted or denied In the
discretion of the Director.
122.65 Effect of an NPDES permit
Compliance with a permit during its
term constitutes compliance, for
purposes of sections 309 and 505, wIth
applicable standards and limitations of
CWA. except for any standard imposed
under section 307 for a toxic pollutant
Injurious to human health. However, a
permit may be modified, revoked and
reissued, or terminated during Its term
for cause as described in 122.9 and
122.73.
- { 122.66 DuratIon of permits.
No NPDES permit issued to a
discharger within an industrial category
listed In Appendix A of this Part, prior
to the applicable permit expiration date
listed in Appendix A. may be issued to
expire after that date, unless:
(a) The permit incorporates effluent
limitations and standards applicable to
the discharger which are promulgated or
approved under sections 301(b)(2 (C)
and (I)). 304(b)(2). and 307(a)(2) of CWA
or
(Comment EPA I. presently reviewing end
revising effluent limitations for Industries
listed In Appendix A In some cases, EPA
may approve existing effluent limitation. or
choose not to develop new limitations. If EPA
decides not to develop new effluent
limitations It will publish notice In the
Federal Register that the limitation. are
“approved” for the purpose of this
regulation.)
(b)The permit incorporates:
(1) The “reopener clause” required by
I 122.69(b)(1);
(2) Effluent limitations to meet the
requirements of sections 301(b)(2) (A),
(C). (D), (B) and (F) of CWA.
(Comments: (1) NPDES States are urged to
Issue short term permits expiring on orbefore
the dates listed In Appendix A. This will
ensure that all appropriate provisions of
CWA, Including compliance with the’tffluent
limitations oy the statutory deadlines, are
met In permits Issued after the promulgation
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Federal Register I Vol. 44, No. 116 I Thursday, June 14, 1979 I Proposed Rules
of effluent guideline. under sections s01(bX2)
(C) and (0). 3O4(b)(2) and 307(a)(2). Even if
States Issue long term permits with latex
expiration dates (in accordance with
paragraph (b)(2). discharger. are legally
inquired to meet all applicable statutory
deadlines and requirements including
compliance with any promulgated EPA
affluent guidelines defining “best
conventional pollutant control technology”
(DCI ’) and “best available control technology
economically achievable” (BAT).
(2) A determination that a particular
discharger falls within a given Industrial
category for purposes of setting a permit
expiration date wider paragraph (b)ts 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 cliange that inclusion at the
time that a D ci i permit based on that
determination Is formulated.)
4 122.67 p,eltibltlons.
No NPDES permit shall be Issued in
the following circumstances:
(a) Where the terms or conditions of
the permit do not comply with the
applicable guidelines requirements of
CWA. or regulations.
(b) Where the applicant Is required to
obtain a State or other appropriate
certification under section 401 of CWA
and 4 124.53 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 * 123.99.
(d) Where the Imposition of conditions
cannot ensure compliance with the
applicable water quality requirements of
all affected States as required by section
401(a)(2) of CWA.
(e) Where, 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.
(I) For the discharge of any
radiological, chemical, or biological
warfare agent or high-level radioactive
waste.
(g) For any discharge from a point
- source 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) Prior to the promulgation of the
guidelines under section 403(c) of CWA.
unless the Director determines permit
issuance to be In the public interest or
(2) After promulgation of guidelines
under section 403(c) of CWA. where
insufficient infurmation exists to make a
reasonable judgment as to whether the
discharge complies with any such
guidelines.
(I) To a facility whIch Is.
ore new discharger. If the discharge
from the constraction or operation of the
facility wiTh
(A) Cause or contribute to the
violation of water quality standards if
the point of discharge I. located in a
segment that was an effluent limitation
segment (as defined in 40 CFR
I 130.2(o)(2)) prior to the introduction of
the discharge from the new source or
new discharger. or -
(B) Exceed the total pollutant load
allocation If the discharge Is into a
water quality segment as defined in 40
CFR I 130.2(o)(l).
The owner or operator of a facility
which Is a new source or new discharger
into a water quality segment must also
demonstrate, at the time of applying for
• permit that there are sufficient
- remaining pollutant load allocations to
allow the discharge and that the facility
is entitled to these allocations.
{ 122.66 Additional sendiulons p1IcabI.
to NPDES parenits.
The following conditions. in addition
to those set forth In 122.11, are
applicable to all NPDES permits. They
shall be either expressly Incorporated
Into the permit or incorporated by
reference.
(a) [ Reserved)
(CommenL’ This paragraph Is re.ervloed
pending publication of a revised NPDES’ -
application brat. This form, and
accompanying regulations. are being
proposed in today’s Faderal Register, as a
separate part of the Permit Consolidation
package When finally promulgated, the
regulation, appearing with the revised
NPDES form will be incorporated into the
text of this section The existing NPDES
application forms should be utilized until the
revised application form is available, except
as otherwise provided in these regulation..
See I 122.5.)
(b) If any applicable toxic effluent.
standard or prohibition (including any
schedule of compliance specified In such
effluent standard or prohibition) is
established under section 307(a) of
CWA for a toxic pollutant and that
standard or prohibition is more stringent
than any limitation upon such 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.
(Comment Effluent standards or
prohibitions esablished under CWA section
307(a) for toxic pollutant. injurious to human
health are effective within the time provided
in the Implementing regulations, even absent
permit modification.)
(c) Bypass. (1) Definitions.
(I) “Bypass” means the intentional
diversion of wastes from any portion of
a treatment facility.
(li) “Severe property damage” means
substantial damage to property d miige
to the treatment facilities which would
cause therm to become inoperable or
substantial and permanent loss of
natural resources which can reasonably
be expected to occur in the absence of a
bypaaa. severe property damage does
not mean economic loas caused by
delays In production.
(2) Conditions necessary for bypass
Bypass is prohibited unless the
following three conditions are met:
(I) Bypass is unavoidable to prevent
loss of life, personal Injury or severe
property damage;
(ii) Thdre are no feasible alternatives
to bypass, such as the use of auxiliary
treatment facilities, retention of
untreated waatea. or maintenance
during normal periods of equipment
down-time;
(Iii) The perinittee submits notice of
an unanticipated bypass to the Director
within 24 hours of becoming aware of
the bypass (If this information Is
provided orally, a written submission
must be provided within five days).
Where the permittee knows or should
have known IT’ advanre of the need for a
bypass. thir p::ir r ’ t:.ca ion shall be
submitted for approval to the Director, if
‘possible. at leest ten days before the
date of the bypass.
fCommenL’ Fully efficient operation of
Ire ’. meni pystems I, required a! all times
Although tnls generd. . -equ res the use of all
portions of an exiatirig treatment aystem. In
some cases maintenance necessary to ensure
efficient operation may require bypassing
portions of a system. Where such a bypass
will not cause applicable effluent Iimltation
or standards to be exceeded, It may be done
without notification of the permitting
authority. Where, however, a bypass is
undertaken for reasons other than essential
maintenance or where a bypass would cause
effluent limitations or standards to be
exceeded, it may be undertaken only In
accordance with the provisions of this
section.)
(3) Prohibition of bypass. The Director
may prohibit bypass in consideration of
the adverse effect of the bypass and the
conditions set forth in paragraph (c)(2)
of this section should bare been
provided by the treatment facility the
bypass will not be allowed. If there is
any doubt as to the necessity of the
bypass or the availability of methods to
reduce or eliminate the discharge.
appropriate enforcement action may be
taken.
(dJ Upset. (1) Definition. “Upset”
means an exceptional incident In which
there is unintentional and temporary
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34289
noncompliance with technology-based
permit effluent limitations because of
factors beyond the reasonable control of
the perinittee. An upset does not Include
noncompliance to the extent caused by
operational error. Improperly designed
treatment facilities. Inadequate
treatment facthtles, lack of preventive
maintenance, or careless or Improper
operation.
(2) Effecl of an upset. An upset shall
constitute an affirmative defense to en
action brought for noncompliance with
such technology-based permit effluent
limitations if the requirement. of
paragarph (d)(3) are met.
(3) Conditions necessoiy fore
demonstrc ion 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 spacth c
cause(s) of the upset
(II) The permitted facility was at the
time being operated in a prudent and
workman-like manner and In
compliance with applicable operation
and maintenance procedures;
(lii) The permittee submitted
Information within 24 hours of becoming
aware of the upset (if this information Is
provided orally, a written submission
must be provided within five days); and
(iv) The pernuttee complied with any
remedial measures required under
f 12211(i).
(4) Burden of proof In any
enforcement proceeding the permittee
seeking to establish the occurrence of an
upset shall have the burden of proof. -
lCommenL Although In the usual exercise
of prosecutorial discretion. Agency
enforcement personnel should review any
clsuu that noncompliance was caused by an
upset, no determinations made In the course
of the review constitute final Agency action
subject to judicial review. Permittees will
have the opportunity for a Judicial
determination on any claim of upset only In
an enforcement action brought for
noncompliance with technology-based permit
effluent limitations]
(e) The permittee, in order to maintain
compliance with Its permit, shall control
production and all discharges upon
reduction, loss, or failure of the
treatment facility until the facility Is
restored or an alternative method of -
treatment is provided. This requirement
applies In the situation where, among
other thinge, the primary source of
power of the treatment facility Is
reduced, lost or fails.
1122 19 Appilesbl. Imitations, standseds,
st can Uwi&
Each NPD permit shall provide for
and ensure compliance with all
applicable requirements of CWA and
regulations promulgated under CWA.
For the purposes of this section. an
applicable requirement Is a statutory or
regulatory requirement which takes
effect prior to final administrative
disposition of a permit Issued by a State
with an approved NPDES program, or, in
the case of a permit Issued by EPA,
which takes effect prior to the Issuance
of the permit except as provided In
124.86(c). PermIts shall ensure
compliance with the following as
applicable:
(a) Effluent limitations and standards
under sections 301.302.303.304,307,318
and 405 of CWA. Including any Interim
final limitations and standards.
(b) For a discharger within any
Industrial category listed in Appendix A
requirements under section 307(a)(2) of
CWA. as follows:
(1) Prior to the applicable permit
expiration date listed In Appendix A;
(i) If applicable standards or
limitations have not yet been Issued:
(A) The permit shall Include
conditions stating that, if an applicable
standard or limitation Is Issued or
approved under sections 301(b)(2) (C)
and ID). 3O4 b)(2) and 307(a)(2) and such
effluetit 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, alternatively,
revoked and reissued In accordance
with such effluent standard or limitation
and any other requirements of CWA
then applicable.
ICommenL’ The following language Is an
acceptable permit condition for the purposes
of this section:
“This permit shall be modified, or
alternatively, revoked and reissued, to
comply with any applicable standard or
limitation promulgated or approved under
sections 301(b)(2) (C) and (0), 364(b)(2), and
3O7(a)(2) of the Clean Water Act. If the
effluent standard or limitation so Issued or
approvadi
(I) Contains different conditions or Is
otherwise more stringent than any effluent
limitation in the permiL or
(II) Controls any pollutant not limited In the
permit.
The permit as modified or reissued under
this paragraph shall also contain any other
requirements of the Clean Water Act then
applicable.”] -
(B) The Director shall promptly
modify, or alternatively revoke and
reissue, the permit to incorporate an
applIcable effluent standard or
limitation under sections 301(b)(2) (C)
and (D), 304(b)(2), and 307(aJ(2) Is Issued
or approved If such effluent standard or
lImitatIon Is more stringent than any
effluent limitation In the permit. or
controls a pollutant not limited In the
permit.
(ComineziL The requirements of this section
are intended to assure compliance with the
1164 statutory deadline for the achievement
of best available technology economically
achievable for pollutants now listed under
section 307(a)(1) of CWA. When a permit Is
modified or revoked and reissued pursuant to
subparagraph (B). additional limitations may
be included In the permit to assure
achievement of applicable statutoly -
requirements (e.g.. best conventional
pollutant control technology for
“conventional” pollutants and best available
technology economically achievable for “non-
conventional” pollutants) by appropriate
statutory deadlines.)
(II] If applicable standards or
limitations have been issued, the permit
shall Include those standards or
limitations.
(2) Any permit Issued after the
applicable permit expiration date listed
In Appendix A. the permit 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. Such permits
need not incorporate the clause required
by subparagraph (A) of this paragraph.
(c) Standards of performance for new
sources under section 306 of CWA.
Including any promulgated interim final
effluent limitations and standards.
(d) If the permit Is for a discharge
from a publicly owned treatment works,
a condition requiring the permItt e to:
(1) Provide adequate notice to the
Director of the following:
(i) Any new introduction of pollutants
Into that POTW from an Indirect
discharger which would be subject to
sections 301 or 306 of CWA If It were
directly discharging those pollutants:
and
(II) Any substantial change In the
volume or character of pollutants being
Introduced into that POTW by a source
Introducing poilutants Into the POTW at
the time of issuance of the permit.
IComment’ For purposes of this paragraph,
adequate notice shall include Information on
(1) the quality and quantity of effluent to be
Introduced into such PO’I’W. and (2) any
anticipated Impact of such change In the
quantity or quality of effluent to be
discharged from such POTW.)
(2) Identify, In terms of character and
volume of pollutants, any significant
Indirect dischargers into the POTW
subject to pretreatment standards under
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Federal Register I VoL 44. No. 116 I Thursday. June 14. 1979 / Proposed Rules
sectIon 307(b) of CWA and 40 CFR Part
403.
(3) EstablIsh 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.
(4) Require any indirect discharger to
such P01W to comply with the
reporting requirements of sections
204(b). 307. and 308 of CWA. Including
any requirements established under 40
CFR Part 403.
(e) Any conditions Imposed In grants
made by the Administrator to P0TWa
under sections 201 and 204 of CWA
which are reasonably necessary for the
achievement of effluent IlmItaion
under section 301 of CWA.
(Contmenl Among other thing.. thu
paragraph contemplates permit oondltions
embod)ing measure. to protect the P01W
against overloading a nd schedules of
compliance which are consistent with. and
determined from. construction grant award
dates.]
(I) Any requirements In addition to or
more stringent than promulgated
effluent limitations guidelines or
standards under sections 301.304 306
307.318 and 405 where necessary to:
(1) Achieve water quality standards
established under section 303 of CWA
(2) Attain or maintain a specified
water quality through water quality
rela ted effluent limits established under
section 302 of CWA
(3) Conform to the conditions of a
State certification under section 401 of
CWA where EPA I . the permit issuing
autho r it
(4) Conform to applicable water
quality requirements under section
402(a)(2) of CVJA when the discharge
affects a State other than the certifying
State; -
(5) Incorporate any more stringent
limitations, treatment standards or
schedules of compliance requirements
established under Federal or State law
or regulations in accordance with
section 301 (b)(1)(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) aiteria
under Part 125. Subpart M for ocean
discharges;
(8) Incorporate alternative effluent
limitations or etandardp where
warranted by “fundamentally different
factors.” under 40 CFR Part 125 Subpart
(9) Incorporate other requirements, or
conditions, or limitations Into a new
source permit under the National
Environmental Policy Act 42 U.S.C. 4321
of seq. and section 511 of CWA. where
EPA Is the permit Issuing authority.
(10) Establish on a case-by.case basis
technology-based limitations controlling
a pollutant not Included In promulgated
effluent limitations guidelines or
standards In accordance with 40 R
125L
lCornmen Subparagraph (10) applies to sU
discharger. Including new soumas and new
discharger., even where covered by the
protection period In 1122.81.)
(g) Best management practices to
control or abate the discharge of
pollutants wherer
(1) Authorized under sectIon 304(e) of
the CWA for the control of toxic and
hazardous pollutants 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 intents of CWA.
(Comment. Examples of best management
practice. which may be Imposed under
subparagraph (g)(2) lndudr (a) proper
operator qualifications of beatment facility
personnel (see Decisioa of the Cemaral
Counsel No. 19). and Ib) sludge-handling
requirements (see Decision of General’
Counsel No. 33). Examples of best
management practices which may be
imposed under subparagraph (g)(3) include:
(a) coal mining operation’. diversion of water
from en active coal mining area topreveni
contact between water and Iron pyrites
which could react to form sulfuric arid sad
wastewater. with low pH valuer (b) the
construction of sheds over material storage
pile. to prevent rainfall from leaching
material, from these piles and creating a
.ource of pollution: (C) ditching and diversion
of rainfall runoff for treatment prior to
discharge: and (d) the use c i solid, ab.cebent
material, for cleaning up leaks and drip, as
opposed to washing these materials down a
floor drain creating additional sources of
pollution. Although these best management
practice. under subsection. (2) and (3) would
be required under the authority of NRDC v.
Coal!., (Runoff Point Sources) 508 P.zd 1309
(D.C. Cir. 1977) they are .lntllar to those In
subparagraph (gfll) and Subpart K of 40 CFR
Part 125 imposed for toxic and hazardous
materials under section 504(e).]
(h) Requirements under section 405 of
CWA governing the disposal of sewage
sludge from publicly owned treatment
works. In accordance with any
applicable regulations.
(I) Where a permIt Is renewed or
reissued, interim limitations, standards
or conditions which are at least as
stringent as the final (Imitations.
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
reluuance under §0 122.9 or 122,73.)
Where effluent limitations were
Imposed under section 402(a)(1) of CWA
ma previously Issued permit and these
limitations are more stringent than the
subsequently promulgated effluent
guidelines, this paragraph shall apply
unless:
(1) The discharger has Installed the
treatment facilities required to meet the
effluent limitations In the prevjous
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 reissued permit
may reflect the level of pollutant control
actually achieved (but shall not be less
stringent than required by the
subsequently promulgated effluent
guidelines):
(2) In the case of an approved State,
State law prohibits permit conditions
more stringent than an applicable
effluent guideline or
(3) The subsequently promulgated
effluent guidelines are based on best
conventional pollutant control
technology (section 3O1(b)(2)(E) of
CWA).
(j) In the case of a permit issued to a
facility that may operate at certain times
as a means of tranaportatlon over water,
a general condition that the discharge
shell comply with any applicable
regulations promulgated by the
Secretary of the Department In which
the Coast Guard Is operating
establishing specIfications for safe
transportation, handling, carriage, and
storage of pollutants.
(k) Any conditions that the Secretary
of the Army considers necessary to
ensure that navigation and anchorage
will not be substantially Impaired.
• 136.70 Calculation and sp.dflcation of
sffluent mitsilor,. and standards.
(a)(1) All NPDES permits shall Impose
final, and where necessary, interim
effluent limitations, standards and
prohibitions under 00122.11, 122.68 and
122.09 for each outfall or discharge point
of the permitted facility, except as
otherwise provided under I 122.6O(g)(2J
and paragraph (I) of this section.
(2) Except In the case of P01W.,
permit limitations, standards or
prohibitions snaIl be calculated based
on the actual production and not the
designed production capacity of the
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34291
facility where the promulgated effluent
guideline limitations and standards are
based on production.
lComme ’ Where design capacity Is not
representellue of actual productIon, permit
limitation, will be calculated to reflect a
reasonable measure of actual production
such as the high month during the previous
year, or the monthly average for the highest
year of the previous five years. for facilities
where such data is available. For new
sources, or new discharges, actual production
generally will be projected production based
on market data, and permit limitations may
require modification once actual production
figures are avallable.J
(3) In the ease of POTWs. permit
limitation., standards or prohibitions
shall be calculated based on design
flow.
(b) All interim and final permit
effluent limitations, standards or
prohibitions established under
122.11. 122.68 and 122.69 for a metal
shall be expressed in terms of the total
metal lie., the sum of the dissolved and
suspended fractions of the metal) unless:
(1) The promulgated effluent
limitation and standard under CWA
specifies the limitation for the metal in
the dissolved or valent form; or
(2) In establiehing permit limitations
on a case-by.case basis wider
§ 122.69(1). 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.
(c) For continuous discharges all
interim and final permit effluent
limitations, standards and prohibitions
established under 122.11. 122.68 and
§ 122 69, including those necessary to
achieve water quality standards, shall
be stated as:
(1) Maximum daily and average
monthly discharge limitations for all
discharger. other than publidy owned
treatment works; and
(2) Average weekly and average
monthly discharge limitations for
POTWs
A “continuous discharge” means a
discharge which occurs without
interruption, except for infrequent
shutdowns for maintenance, process
changes or other similar activities
throughout the operating hours of the
facility.
The “Maximum daily discharge” is the
total mass of a pollutant discharged
during the calendar day or. in the case
of a pollutant limited ua terms other than
mass pursuant to paragraph (d). the
average ooncentra lion or other
measurement of the pollutant specified
during the calendar day or any 24-hour
period that reasonably represents the
‘alendar day for the pw ’poses of
sampling. The maximum daily discharge
limitation may not be violated during
any calendar day.
The ‘average monthly discharge
limitation” Is the total mass, and
concentration in the case of POTWs, of
all daily discharges sampled andfor
measured during a calendar month on -
which daily discharges are sampled and
measured, divided by the number of
daily discharges sampled and/or
measured during such month. The
average monthly discharge limitation
may not be violated during any calendar
month.
The “average weekly discharge
limitation” is the total mass and
concentration of all daily POTW
discharges during any calendar week on
which daily discharges are sampled
and/or measured, divided by the
number of daily discharges sampled
and/or measured during such calendar
week. The average weekly discharge
limitation may not be violated during
any calendar week,
tCom,nent Calcul’atlon, for all such
limitations which require averaging of
measurements or of daily discharges. aliall
utthee an arithmetic mean average, unless
otherwise specified or approved by the
Director)
(d) Paragraph (c) is not applicable:
(1) For pH. temperature, radiation or
other pollutants which cannot be
appropriately expressed by mass: or
(2) Where applicable promulgated
effluent guideline limitations, standards
or prohibitions are expressed in
terms than mass, e.g.. as concentration
levels
(e) Except as provided in paragraph
(gJ. effluent limitations imposed in
permits shall not be adjusted for
pollutants in the Intake water.
(fl(i) Upon request of the discharger,
effluent limitations or standards
imposed in a permit will be calculated
on a “net” basis. La, adjusted to reflect
credit for pollutants in the discharger’.
Intake water, if the discharger
demonstrates that It. intake water Is
drawn from the same body of water Into
which tha discharge is made and It
(i)(A) The applicable effluent
limitations and standards contained in
Subchapter N of this Chapter
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 the permittee to conduct
additional monitoring (La., for flow and
concentration of pollutants) as
necessary to determined continued
eligibility for and compliance with any
such ad uatments
The discharger shalt notify the
Director if this monitoring indicates that
eligibility for an adjustment under this
section has been altered or no longer
exists. In such case, the permit shall be
modified or revoked and reissued under
H 1229cr 12273.
(2) Permit effuent limitations or
standards adjusted under this paragraph
shall be calculated on the basis of the
amount of pollutants present any
treatment steps have been performed on
the intake water by or for the
discharger. Adjustments u’ider this
paragraph shall be given only to the
extent that polluntants 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 shall not be adjusted when
the pollutants in the Intake water very
physically, chemically or biologically
from the pollutants limited by the
permit. Nor shall effluent limitations or
standards by adjusted when the
discharger significantly increases
concentrations of pollutants In the
intake water, even though the total
amount of pollutants might remain the
same.
(h) Discharges which are not
cont ”u us. as def.r.ed in paragraph (cJ.
shall be particuLi”lv described and
limited. considering the following
factors, as appropriate:
(1) Frequency (eg.. a batch discharge
shall not occur more than once every 3
weeks):
(2) Total mass (e.g.. not to exceed 100
kilograms of zinc and 200 kilograms of
chh,mium per butch discharge):
(3) Maximum rate of discharge of
pollutants during the discharge (e.g., not
to exceed 2 kilograms of zinc per
minute): and
(4) Prohibition or limitation of
specified pollutants by mass,
concentration, or other appropriate
measure (e.g.. shall not contain at any
time more than 0.1 mg/i zinc or more
than 250 grama (¼ kilogram) of zinc in
any discharge).
(i) Where permit emuent limitations
or standards imposed at the point of
discharge are impractical or infeasible,
effluent-limitations or standards of
discharges of pollutants may be imposed
on internal waste streams prior to
mixing with other streams or cooling
water streams. In such instances, the
monitoring required by Subpart C shall
also be applied to the internal waste
streams.
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Federal Register I Vol. 44 No. 116 I Thursday, June 14, 1979 I Proposed Rules
jCommen Limits on Internal waste
s esnis will only be imposed In exceptional
circumstances, such as where the final
discharge point Is Inacceulbte (e.g., under 10
meters of water). where the wastes at the
point of discharge aze so diluted as to make
monltorh impracticable, or wham the
interferences among pollutants at the point of
discharge would make detection and/or
analysis hnpractlcablej
I 122.71 NPDES rsqulrs,nsnts for
iscw ng and rsportlng of moaltoitig
npod&
(a) To assure compliance with permit
terms and conditions, all NPDES
permittees shall monitor as specified in
the permit:
(1) The amount, concentration or other
measurement specified in I 122.70 for
each pollutant specified In the permit;
(2) The volume of effluent discharged
from each point source; and
(3) According to test procedures for
the analysis of pollutants meeting the
respilrenienls of paragraph (b):
(4) As otherwise specifically required
In the permit, e.g.. as required under
$ 122.70(g)(2).
(bXl) Test procedures Identified 1n40
CFR Part 138 shall be utilized for
pollutant. or parameters listed in that
Pail, unless and alternative test
procedure has been approved under the
Part.
(2) Where no teat procedure under 40
CFR Part 136 has been approved, the
Director shall specifly a test method in
the permit.
(3) Notwithstanding paragraph (1), the
Director may specify in a permit the test
procedure used in developing the date
on which an effluent limitations
guideline was based, or specified by the
standards and guidelmea.
(4) Where a method approved under
40 CFR Part 138 for any pollutant or
parameter was used In developing the
applicable standards and limitations or
Is specified by the standards and
limitations, the same method shall be
specified in the permit.
(c) The sampling frequency and other
monitoring requirements specified by
the director under paragraph (b) shall, to
the extent applicable, be consistent with
monitoring requirements specified In a
standard or effluent guideline on which
the emuent limitations in the permit are
based.
(d) If the permittee believes that the
monitoring requirements specified by
the director under paragraph (b) in any
draft permit under { 124.31, are not
sufficient to yield dsta representative of
the volume of effluent flow and the
quantity of pollutants discharged, It
should request that additional
monitoring requirements sufficient to -
yield audi data be Included In the final
permit Compliance with effluent
limitations contained In the permit will
be determined In accordance with the
monitoring requirement. specified In the
permit which, when finally effective, are
deemed to yield data representative of
the volume of effluent flow and the
quantity of pollutants discharged.
(e) The CWAprovides that sny
person who falsifies, tampers with, or
knowingly renders Inaccurate any
monitoring device or method required to
be maintained under this section shall,
upon conviction, be punished by a fine
of not more than $10,000 per violation, or
by imprisonment for not more than 6
months per violation, or by both
(I) The CWA provides that any person
who knowingly makes any false
ataternent, representation, or
certification in any record or other
document required to be maintained -
under this section or $122.14 shall, upon
conviction, be punished by a fine of not
more than $10,000 per violation, or by
Imprisonment for not more than six
months per violation, or by both.
(g) If the permittee monitors any
pollutant more frequently than required
by the permit, using approved analytical
methods, the results of this monitoring
shall be reported and Induded In the
calculation and reporting of the data
submitted in the DMR. For purposes of
this paragraph. “approved analytical
methods” are those test procedures for
the analysis of pollutants which conform
to4OCFR 138 or as specjfied In the
permit.
(h) The CWA provides that any
person who knowingly makes any false
statement, representation, or -
certification In the monitoring report or
notice of compliance shall, upon
conviction, be piixiished by a fine of not
more than $10,000 per violation, or by
Imprisonment for not more than six
months per violation, or by both.
$122.72 NPDES noncompliance repelling
requirements.
(a) On the last working day of
February, May, August. and November,
the State director shall submit to the
Regional Administrator information
concerning noncompliance with NPDES
permit requirements by major
diachargers in the State In accordance
with the reporting schedule contained In
paragraph (g). The Regional
Administrator shall submit such
Information end shall also prepare and
•submit Inlormathrflior EPA-Issued
permit. to EPA Headquarters In
accordance with paragraph (g). -
(b) Quarterly Reports. The reports
required by paragraph (a) shall Include
the following Information:
(1) Failure So complete construction
elements. Noncompliance shall be
reportecli
(I) When the permlttee has failed to
complete by the date specified In the
permit, an element of the compliance
schedule (e.g., award of contract,
preliminary plans (e.g., begin
construction or attain operational
level)): and
(liJ The permlttee has not returned to
compliance by accomplishing the
requirements of the penull within 30
days from the date a report La due under
I 122.12(afl2).
(2) Failure to complete or provide
compliance schedule reports.
Noncompliance shall be reported In the
following circumstances:
(I) When the permittee fails to
complete or provide a report required In
the permit compliance schedule or under
I 122.14 (e.g., progress reports or
notification of compliance or
noncompliance): and
(Ii) The permittee has not returned to
compliance by submitting the report
within 30 day from the date It is due
under $ 122. 12(a)(2).
(3) Noncompliance with applicable
standards and/imitations.
Noncompliance shall be reported.
- (I) When the permittee has violated an
applicable standard or limitation and
has not returned to compliance with the
NPDES permit requirements withIn 45
days from the date that the DMR or
notification of noncompliance under
I 122.11(h) was due;
(Ill) When a pattern of noncompliance
with applicable standards or limitations
as determined by the Director exists for
any major discharger over a period of 12
months prior to the end of the current
reporting period. This pattern of
noncompliance Is based on violation of
monthly averages and excludes
parameters where there Is continuous
monitoring. A pattern of noncompliance
ihall be reported whenever there Is:
(A) Any violation of the same permit
or limitation or standard In two
consecutive quarters and
(B) Any violation of one or more
permit limitations or standards In each
of four consecutive quarters: or
(lii ) When, as determined by the
Director, a significant discharge of a
pollutantoccurs, such as a discharge of
a toxic or hazardous substance.
(4) Failure to report effluent data.
Noncompliance shall be reported where
the permittee has failed to provide a
DMR wIthin 30 days of the date It Is due
or where the permittee ha. exceeded
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34293
effluent limitation, and has failed to
report this noncompliance.
(5) Deficient reports. Noncompliance
sha.ll be reported where the required
report, provided by the permittee are so
deficient as to cause misunderstanding
by the permit issuing authority and thus
Impede the review of the status of
compliance.
(6) Modifications to schedules of
compliance under 122.12(o)(3).
Noncompliance resulting from or
constituting the basis for a modification
wider 122.12(a)(3) shall be reported.
ICommenl. Noncompliance reported wider
this paragraph shall be reported In successive
reports until the nonootuphance Is resolved.
The resolution of noncompliance shall be
reported. and when the noncompliance Is
reported as resolved. it will not appear In
subsequent reports.)
(C) The narrative information required
under paragraph (b) shall:
(1) Include the information required
under § 122.15(a):
(2) Provide separate lists for non-
POTWs. POTWe and Federal
permitlees;
(3) Combine information concerning
schedule and effluent noncompliance in
a single entry for each permittee; and
(4) Alphabetize all narrative listings
by permittee name. Where two or more
permittees have the same name, the
lowest permit number shall govern the
order of entry. i.e.. the lowest number
shall be entered first.
(d) Statistical Information shall be
rep 1 r :ed quarterly on au other instances
of noncompliance with permit
requirements by major dischargers not
set forth In paragraph (b). -
(ci Annual reports. For minor
dischargers whose compliance has been
reviei ed by the permitting authority.
statistical information on the types of
noncompliance listed under paragraph
(b] shall be reported annually. In
additional, a separate list of minor
dischargers which are one or more years
behind in construction phases of the
compliance schedule shall be submitted
annually In alphabetical order by name
and permit number.
(f) Reportin.g schedules. (1) The
schedule for reporting of noncompliance
by major discharger. under paragraph.
(b) (c) and (d) shall bees follows:
0 , 4 1 w. ,d by lw a re , . 1.
11w b ,w# dwgwa
_____________— M ’3I ’
--
—-.
8
(2) The annual reporting period for
noncompliance by minor dischargere
under paragraph (e) shall end at the end
of the Federal fiscal year (currently
September 30), with reports completed
and available to the public no more than
90 days later.
(g) All reports prepared under this
section shall be made available to the
public for Inspection and copying.
(Comment The distinction betweeu “major
and minor” dlschargeri I. established In
EPA. annual operating guidance for the EPA
Regional offices and the Statesi
122.73 ModIfications or revocation and
reissuance of NPDES psnatts .
In addition to the causes set forth In
f 122.9(e). NPDES permit may be
modified, or revoked and reissued for
the following causes:
(a) Where water quality standards or
EPA promulgated effluent limitations
guideline. (including interim final
effluent guidelines) are revised.
withdrawn or modified, but only when:
(1) The permit term or condition
requested to be modified or revoked
was based on a promulgated effluent
limitation guideline or a EPA approved
or promulgated water quality standard,
(21(1) EPA has revised. withdrawn or
mnodificd that portion of the effluent -
hmitation guideline on which the pei lt
term or condition was based: or
(ii) EPA has app’ oved a State action
.s;i tc ..ality standard
on which the permit term or condition
was based; and
(3) A request for modification or
revocation and reissuance is filed in
accordance with 124.5 (or applicable
State procedures meeting the
requirements of 124.5) within ninety
(90) days after Federal Register notice
of:
(I) Revision, withdrawal or
modification of that portion of the
effluent limitation guideline; or
(ii) EPA approval of a State action
regarding a water quality standard,
(b) Judicial remand of EPA
promulgated effluent limitations
guidelines, If the remand concerns that
portion of the guidelines on which the
______ permit term or condition was based and
the request Is filed within 90 days of the
judicial remand.
(c) Where any modification or
Aiç41 ii. revocation and zelssuance of permits Is
specifically authorized by CWA. e.g..
re’. sections 301(c), (g), (h), (I) or (k)
(d) As necessary under H 122.68(b).
‘steay W. 122.69(b) and 122. 1 2(a)(3)(i) and (II).
(e) Failure of an approved State to
notify another State whose waters may
be affected by the discharge from the
approved State. as required by section
402(b)(3 ) of CWA.
(1) The following additional minor
permit modifications for NPDES permits
shall not requite public notice and
opportunity for hearing under 124.50?
124.7 unless they would render the
permit less stringent. or unless contested
by the permittee:
(1) A change in the construction
schedule for a discharger which Is a new
source. No such change shall affect a
discharger. obligation to have all
pollution control equipment Installed
and In operation prior to discharge
under I 122.81: and
(2) Deletion of a point source outfall.
where the discharge from that outfall is
terminated and does not result in
discharge of pollutants from other
outfalls except in accordance with
permit limits.
122.74 TermInation f NPDES permits.
In addition to the causes for
termination set forth In 122.10, NPDES
permits may be terminated where 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
(e.g. plant closure, termrnatmon of
discnarge by conr ecuo to £ POTW, the
promulgation of any applicable effluent
standard or prohibition under section
307 of the Act, any change in State law
that requires the reduction or
elimination of the discharge. etc.
f 12275 Disposal of pollutants Into wels,
into publicly owned treatment waits or by
land applications.
(a) Where pail of a dlschargeTs
process waste water 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 limitations
and standard, for the discharge in an
NPDES permit shall be adjusted to
reflect the reduced raw waste resulting
from such disposal. Effluent limitations
and standard, 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
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Federal Register I Vol. 44, No. 116 I Thursday, June 14. 1979 I Proposed Rules
eliminated from calculation of permit
effluent limitations or standards:
(2) In all cases other than those
described in paragraph (1). effluent
limitations shall be adjusted by
multiplying the effluent limitation
derived by applying effluent limitation
guidelines to the total waste stream by
the imount 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 well..
publicly owned treatment works, or by
land appiiCBtIOfl change the character or
treatability of the pollutants being
discharged to receiving waters.
(Comment This method may be
algebraically eicpressed as:
P. ExN/T
where P is the permit effluent limitation, Eli
the limitation derived by applying effluent
guidelines to the total waste stream. N Is the
wastewater flow to be treated and
discharged to waters of the United States,
and T Is the total wastewater flow.j
(b) Paragraph (a) shall not apply
where 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 injecion
(c) Paragraph (a) does not alter a
discharger’s obligation to meet any more
stringent requirements established
under 122.11,122.68 and 122.69.
{ 122.76 Concentrated animal feeding
operations,
(a) Concentrated animal feeding
operations are point sources subject to
the NPDES permit program.
(b) Definitions. (1) “Animal feeding
operat ion” means a lot or facility (other
thin 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. -
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.
(2) “Concentrated animal feeding
operation” means an animal feeding
operation which meets the ciiterie set
forth In (b)(2J (i), (ii) or (Ill) below
(I) More than the numbers of animals
specified In any of the following
categories are confined:
(A) 1,000 slaughter and feeder cattle.
• (B) 700 mature dairy cattle (whether
milked or dry cows),
(C) 2,500 swine each weighing over 25
kilograms (approximately 55 pounds).
(D) 500 horses,
—(E) 10,000 sheep or lambs,
(F) 55.000 turkeys,
(C) 100,000 laying hens or broilers (if
the facility has a continuous overflow
watering),
(H) 30,000 laying hens or broilers (if
the facility has a liquid manure system),
(1) 5,000 ducks, or
(J) 1,000 anImal units: or
(ii) More than the following numbers
and types of animals are confined:
(A) 300 slaughter or feeder cattle,
(B) 200 mature dairy cattle (whether
milked or dry cows),
(C) 750 swine each weighing over 25
kilograms (approxImately 55 pounds)
(D) 150 horses,
(B) 3.000 sheep or lambs,
(F) 16,500 turkeys,
(G) 30.000 laying hens or broilers (if
the facility has continuous overflow
watering).
(H) 9,000 laying hens or broilers (if the
facility has a liquid manure handling
system),
(1) 1,500 ducks, or
(J) 300 animal units; -
and either one of the following
conditions are met: pollutants are
discharged into waters of the United
States through a man-made ditch,
flushing system or other similar man-
made device; or pollutants are
discharged directly into navigable
waters 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
(Iii) The Director determines that the
operation is a significant contributor of
pollution to waters of the United States,
in accordance with paragraph (c)
(3) 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.
(4) The term man-made” means
constructed by man and used for the
purpose of transporting wastes.
(c) Case-by-case designation of
concentrated animal feeding operotions.
41) Notwithstanding any other provision
of this section. any animal feeding
operation may be designated as a
concentrated animal feeding operation
where It Is determined to be 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 States:
(II) The location of the animal feedIng
operation relative to waters of the
United States;
(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 Stat s; and
(v) Other such factors relative to the
significance of the pollution problem
sought to be regulated.
(2) No animal feeding operation with
less than the numbers of animals set
forth in subparagraphs (b)(2) (i) and (ii)
above shall be designated as a
concentrated animal feeding operatián
unless:
(I) Pollutants are discharged into
waters of the United States through a
man-made ditch, flushing system or
other similar man-made device; or
(I I) Pollutants are discharged directly
into waters of the United States which
originate outside of the facility and
passover, across, through the facility or
otherwise come Into direct contact with
the animals confined in the operation.
(3) In no case shall a permit
application be required from a
concentrated animal feeding operation
designated under this paragraph until
there has been an onsite inspection of
the operation and a determination that
the operation should and could be
regulated under the permit program.
122.77 Concentrated aquatic animal
production facilities,
(a) Concentrated aquatic animal
production facilities, as defined in this
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Federal Register I Vol. 44. No. 118 I Thursday. June 14, 1979 I Proposed Rules
34295
section. are point sources subject to the
NPDES permit program.
(b) Definitions. (1) “Concentrated
aquatic animal production facility”
means a hatchery, fish farm, or other
facility which contains, grows or holds:
(I) 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’
(A) Facilities which produce less than
9,090 harvest weight kilograms
(approximately 20,000 pounds) of
aquatic anirna I. per year; and
(B) Facilities which feed less than
2,272 kilograms (approximately 5.000 -
pounds) of food during the calendar
month of maximum feeding.
(ii) 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:
(A) Closed ponds which discharge
only during periods of excess runoff, or
(B) Facilities which produce less than
45.454 harvest weight kilograms
(approximately 100,000 pounds) of
aquatic animals per year.
(2) “Cold water aquatic animals”
include, but are nol limited to, the
Saimonidoe family of fish. e.g.. trout and
salmon.
(3) “Warm water aquatic animals”
include, but are not limited to the
Ame,uride, Centrorchidae and
Cypnnidoe families of fish, e.g..
respectively, catfish, sunfish and
minnows.
(c) Case-by-case designation of
concentrated aquatic animal production
facilities. Any warm or cold water
aquatic animal production facility not
otherwise falling within the definitions
provided in paragraph (b) may be
designated as a concentrated aquatic
anirial production facility where the
facility is determined to be a significant
contributor of pollution to waters of the
United States. in making this
designation the Director shall consider
the following factors
(1) The location and quality of the
receiving waters of the United States;
(2) The holding. feeding and
production capacities of the facility;.
(3) The quantity and nature of the
pollutants reaching waters of the United
States: and
(4) Other such factors relating to.the
significance of the pollution problem
sought to be regulated.
In no case shall a permit application
be required from a concentrated aquatic
animal production facility designated
under this subparagraph until there has
been an on-site inspection of the facility
and a determination that the facility
should and could be regulated under the
permit program.
122.78 Aquiculture projscts.
(a) Discharges into aquaculture -
projects, as defined in this section. are
subject to the NPDES permit program
through section 318 of CWA, 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 applicant for a
permit plans to confine the cultivated
species. using a method or plan 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 permitted under this part, and
be harvested within a defined
geographic area.
12229 Separate storm sewers.
(a) Separate storm sewers, as deflne.d
In this section, are point sources subject
to the NPDES permit program. Separate
storm sewers may be covered either
under Individual NPDES permits or
under the general permit program (see
122.82).
(b) Definition. “Separate storm sewer”
means a conveyance or system of —
conveyances (including but not limited
to pipes, conduits, ditches, and
channels) primarily used for collecting
and conveying storm water runoff and
either
(1) Located in an urbanized area as
designed by the Bureau of Census
according to the criteria in 39 FR 15202
(May 1. 1974); or
(2) Not located In an urbanized area
but designated as a significant
contributor of pollution under paragraph
(c).
“Separate storm sewer” does not
Include any conveyance which
discharges 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. Such discharges are subject to
the general provisions of this Part.
IComnienL Whether or not a system of
conveyances is or Is not a separate storm
sewer for purposes of this Part shall have no
bearing on whether or not the system is
eligible for funding under Title II of CWA, see
40 CFR 35.925—21.)
(c) Case-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 wham
(1) A Water Quality Management plan
under section 208 of CWA, which
contains requirements applicable to
such point sources Is approved: or
(2) A storm sewer is determined to be
a significant contributor of pollution to
the waters of the United States. In
making this determination the following
factors shall be considered.
(I) The location of the storm sewer
with respect to waters of the United
States;
(ii) The size of the storm sewer;
(iii) The quantity and nature of the
pollutants reaching waters of the United
States; and
(Iv) Other such factors relating to the
significance of the pollution problems
sought to be regulated.
lCommenL An NPDES permit for
discharges into waters of the United States
from a separate storm sewer covers all
conveyances which are a part of that
separate storm sewer system, even though
there may be several owners-operators of
such conveyances. However, discharge. into
separate storm sewers from point sources
which are not part of the separate storm
sewer systems may also require a permutj
I 122.80 Silvlcuttural activities.
(a) Silvicultura! point sources, as
defined in this section. are point sources
subject to the NPDES permit program.
(b) Definitions. (1) “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 silvicuitural
activities and from which pollutants are
discharged into waters of the United
States.
ICommenL The term doe. not lndude non-
point source ailvic iitural acbvfties ,‘.ich as
nursery operations, site preparation,
reforestation and subsequent cultural
treatment, thinning, prescribed burning, pest
and fire control, harvesting operations.
surface drainage, and road construction and
maintenance from which there is runoff
during precipitation events However, some
of these activities (such as stream messing
for roads) may Involve point source
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Federal Register I Vol. 44. No. 116 / Thursday. June 14, 1979 I Proposed Rules
discharges of dredged or fill matenal which
may require sCW section 40 5 permit (see
33 Q’R ms.120).J
(2) ‘Rock crushing and gravel washing
facilities” means facilities which
process crushed and broken atone.
gravel and riprap (see 40 CFR Part 436
Subpart B. and the effluent limitations
guidelines pursuant thereto).
(3) “Log sorting and lag storage
facilities” means facilities whose
discharges result from the holding of
unprocessed wood. i.e. logs or
roundwood with bark or after removal
of bark 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 J, and the
effluent liimtations guidelines pursuant
thereto.)
• 122.81 Wewsourcesandnew
discharger..
(a) Definitions (1) “New source” and
“new discharger” are defined in
* 122.3(d)
(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 discbarger
(4) “Site” means the land or water
area upon which a source and its water
pollution control facilities are physicall)
located, including but not limited to
a erit land used for utility systems.
repair. storage, shipping or proceetin
areas, or other areas incident to the
industrial, manufacturing or water
pollution treatment processes,
(5) ‘Facilities or equipmer.t” means
buildings, structures, process or
production equipment or machinery
which fDrm a permanent part of the new
source and which will be used in its
operation, provided that such facilities
or equipment are of such value as to
represent a substantial commitment to
construct it does not indude facilities or
equipment used in connection with
feasib!lIl}. engIneering and design
studies regarding the source or water
pollution treatment for the source.
(b) Criteria and standards/or new
source determination. (1) The following
construction activities result lit a new
source as defined in § 122.3(d)’
(I) Construction of a source on a site
where another source(s) Is not located,
or
(ii) construction of a source on a site’
where another source is located, -
provided that the process or production
equipment which causes the discharge
of pollutants from the other source is
totally replaced by this construction or
the construction results In a new or
additional discharge.
(Comment: The fact that a source is
constructed on suite so that It shares or uses
common land or water areas of another
source for iithty systems, repair, storage, or
shipping does not prevent that source from
being considered a new scums.]
(2) The modification of an existing
source by changing existing process or
production equipment, replacing existing
process or production equipment (except
as provided in paragraph (b)(1)) or by
the addition of such equipment on the
site of the existing source which results
In a change in the nature or quantity of
pollutants discharged is not a new
source under this section. Modification.
of this nature are subject to the
provisions of § 122.9(e)(1).
(3) Construction of a new source as
defined under § 122.3(d) has commenced,
If the owner or operator has:
(I) Begun, or caused to begin as past of
a continuous On-site construction
program:
(A) Any placement, assembly, or
Installation of facilities or equipment;
(B) Significant site preparation work
including clearing, excavation or
removal of existing buildings, structures
or facilities which is necessary for the
placement. assembly. or installation of
new source facilities or equipment or
(ii) Entered a binding contractual
& aUon for the purchase of facilities
or eqtuprnent which are intended to be
usedmit o’ ..retionwjthjna
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 this
paragraph.
(c) Requirement of an Environmental
Impact Statement. (1) The issuance of an
NPDES peinut tea 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 INEPA), 33 U.S C.
4321 et seq. and is subject to the
environmental review provisions of
NEPA as set out in 40 CFR 6 Subpart I.
EPA will determine whether an
Environmental Impact Statement (EIS) is
required underj 124.64(d) and 40 CFR 6,
SubpartL -
(ii) By an NPDES approved State Is
not a Federal action and therefore does
not require EPA to conduct an
environmental review.
(21 The EIS shall Indude a
recommendation on whether the permit
Is to be Issued or denied.
(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 which the
permittee should take to prevent or
minimise any adverse environmental
Impacts;
(3) The Regional Administrator shall
issue 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.
(4)(i) No on.site constj’uctjon of a new
source for which an EIS is required shall
coninience before issuance of a final
permit incorporating appropriate EIS-
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
Adm 1 nistrator not to cause significant
adverse en ironmental impact
(ii) .o on-site construction of a new
source for which no ElS is required shall
commence before 15 days following
issuance of a negative declaration,
unless such construction is determined
by the Regional Administrator to not
cause significant adverse environmental
Impacts.
(5) The permit applicant must notify
the Regional Athninistrator of any on-
site construction which begins before
the times specified in subparagraph (4).
If on-site construction begins in
violation of this paragraph, the Regional
Administrator ahall 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. (1)
Except as provided in paragraph (d)(2),
any new discharger which commenced
construction after October 18. 1972, or
any new source which meets the
applicable promulgated new source
performance standards before the
commencement of discharge, shall not
be subject to any more stringent new
source performance standards or to any
more stringent technology-based
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Federal Register I Vol. 44. No. 116 / Thursday. June 14. 1979 / Proposed Rules
34297
standards tinder section 301(b)(2) of
CWA for the shortest of the following
periods:
(I) Ten years from the date that
construction is ct mpletedi
(II) Ten years from the date the source
begins to discharge process or other
non-construction related wastewaler or
(iii) The period of depreciation or
amortization of the facility for the
lmrposes of section 167 or 169 (or both]
of the Internal Revenue Code of 1954.
IComnvent’ The provisions of this
paragraph do not apply to existing sources
which modify their pollution control facUlties
or construct new pollution control facilities
and achieve performance standards, but
which are neither new sources or new
discharger. or otherwise do not meet the
requIrements of th u paragraph.]
(2) The protection from more stringent
standards of performance afforded by
paragraph Id)(1] of this section doe. not
applylo:
(I) Additional or more stringent permit
conditions which are not technology
based. e.g.. conditions based on water
quality standards, or effluent standard.
or prohibitions under section 307(a): and
(ii) Additional permit conditions
controlling pollutants not listed a. toxic
under section 307(a) of CWA or as
hazardous under section 311 of CWA
and which are not controlled by new
source performance standards. This
l’r t udes permit conditions controlling
pollutants other (her, those idezitif, -
toxic or hazardous where control of
those other pollutant. has been
specifically Identified as the method to
control the toxic or hazardous pollutant.
(3) Where an NPDES permit-issued to
a source enjoying a “protection period”
under paragraph (d)(1) will expire on or -
before the expiration of the protection
period, such permit shall require the
owner or operator of the source to be In
compliance 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 shall be allowed.
(4) The owner or operator of a new
source, a new discharger, a eource
recommencing discharge after
terminating operations, or a source
which had been an indirect discharger
which commences discharging into
navigable waters shall Install and have
In operating condition, and shall “start-
up” all pollution control equipment
required to meet the terms and
conditions outs permits before
beginning to discharge. Within the
shortest feasible time (not to exceed 90
days), the owner or operator must meet
all permit terms and conditions.
(5) After the effective date of new
.source performance standards, in
accordance with sectIon 300(e) of CWA.
It shall be unlawful for any owner or
operator of any new source to operate
such source in violation of those
standards applicable to such source.
1nJ2 — — pro,afiL
(a) DefiniLions. (1) The term “separate
storm sewer” Is defined In 0122.79.
(a) The term “general permit program
area” (‘GPPA”) means any area so
designated under paragraph (c) of this
section In which all owners or operators
o separate storm sewers or other
categories of point sources are subject
to the same general NPDES permit, other
than owners or operators of such
sources to whom Individual NPDES
permit. have been Issued.
(CommenL’ All draft general permits for
point sources other than separata storm
sewer. must be sent to the EPA Deputy
Assistant Administrator for Water
Enforcement during the public comment
peñod for 9O’day review. If the draft general
permit does not meet the altena of
9 122.aZ(b)(Z), the EPA Deputy Assistant
Administrator may object to the Issuance of
the general permit within those 90 days. See
ft 123.73(g) and 124.7(a)(2).J
(3) The term “general permir mean.
an authorization to discharge whiclu
(I) Where Issue by EPA. is published
L’i !l e ‘ 1 e -i.i K. . ... ,
- issues oy a State, Is
publishea in accordance with applicable
State procedures: and
(Ill) Is applicable to all owners and
operators of separate storm sewers or
other categories of point sources ma
designated GPPA. other than owners
and operators of such sources to whom
individual NPDES permits have been
issued.
(b) The Director may regulate the
following discharges under general
permits
(1) Separate storm sewers: and
(2) Such categories of point sources if
there are a number of minor point
sources pperatlng In a geographical area
that
(I) Involve the same or substantially
similar types of operation.;
(H) Discharge the same types of
wastes;
(ill) Would require the same effluent
limitations or operating conditions:
(lv) Would require the same
monitoring requirements and
(v) In the opinion of the Director
would be more appropriately controlled
under a general permit than under an
lndivdual NPDES permit.
(c) Each general permit shall be
applicable to a class or category of
discharger. meeting the criteria of
paragraph (b) within a GPPA designated
by the Director.
(11 The GPPA shall correspond with
existing geogrpahic or political
boundaries such as:
(I) Designated planning areas under
sections 808 end 803 of the Act
(ii) Sewer district. or sewer
authorities;
(lii) City, county or State political
boundaries:
( Iv) State highway systems:
(v) Standard metropolitan statistical
areas as defined by the Office of
Management and Budget
(vi) Urbanized areas as defined by the
Bureau of Census (see 0 122.79(b)(1)) or
(vii) Any other appropriate divisions
or combinations of the above
boundaries which will encompass the
sources subject to the same general
permit.
(2) Any designation of any GPPA Is
subject to review by the Director at the
expiration of the general permit for the
GPPA, or if Individual permits have
been Issued to all the owners and
operators of the classes of poInt sources
within the GPPA. or as necessary to
address water quality problems
effectively,
(3) NFD Ceneral permits shall be
issued In accordance with the applicable
requirements of Part 124.
(Commen The permit Issuing authority Is
encouraged to provide as much actual notice
of the draft general permit to the perinlttees
as possible. This notice would be In addition
to the public notice requirements In
9 124.11(1) and could Include notice In trade
associations’ Journals and newsletters]
(d) Scope of NDPES Cen era! Permits.
(1) Each NDPES general permit shall
cover all owners and operators of
separate storm sewers or other
designated categories of point sources In
the GPPA for which the general permit
Is Issued, except
(1) A. provided hi paragraph (ej: and
(II) For owners and operators of
separate storm sewers or other
categories of point sources who are
already subject to Individual NPDES
permits prior to the effective date of the
general permit
(2)(i) All sources aol excluded from
general permit coverage for these
reasons are perinittees subject to the
terms and condition, of the general
permit
(II) Sources excluded from NDPES
general permit coverage solely becauee
they already have an Individual NPDES
permit may request that the Individual
permit be revoked, and that they be
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34298
Federal Register / Vol. 44, No. 116 / Thursday. June 14, 1979 / Proposed Rules
covered by the general permit. upon
revocation of the Individual NPDES
permit, the general permit shall apply to
such point sources.
(e) Case-by-case designation. (1)
Under 124.70. the Director may revoke
a general permit as It applies to any
person and require such person to apply
for and obtain an Individual NPDES
permit. Interested persons may petition
the Director to take action under this
paragraph If one of the six cases hated
below occurs. Case. where lndMdual
NPDES permits may be required Include
the following:
(I) The covered discharge(s) isa
significant contributor of pollution:
(II) The discharger Is not In
compliance with the terms and
vonditions of the general NDPES permit
(lii) A change has occurred In the
- availability of demonstrated technology
or practices for the control or abatement
of pollutants from the covered point
source;
(iv) Effluent limitation guidelines are
subsequently promulgated for point
sources covered by the general NPDES
permit
(v) A Water Quality Management plan
containing requirements applicable to
such point sources Is approvedi or
(iv) The requirements of paragraph
(b)(2)(i) through (iv) are not met
(2) Where EPA is the permit Issuing
suthoiity, the Regional Administrator
may revoke a gene: a] permit as It
applies to any person and require such
person to apply for an individual NPDES
permit If: -
(I) There has been an on-site
Inspection of the facility and a
determination that the point source
should and could be regulated under an
Individual permit. and
(ii) The owner or operator has been
notified in writing of the revocation of
the general permit and that a permit
application is required. Thi . notice shall
Include an application form, a statement
that the owner or operator has sixty
days from receipt of notice to file the
application, and a statement that the
general permit no longer authorizes the
owner or operator to discharge
pollutants. .
(3) Any owner or operator subject to 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 such application,
with reasons supporting the request, to
the Director no later than nInety 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. All such
requests shall be granted by Issuance of
any Individual permit If the reasons
cited by the owner or operator are
adequate to support the request.
(4) Where an individual NPDES
permit Is issued to an owner or operator
otherwise subject tos general NPDES
permit, the general permit as ft applies
to the Individual NPD permittee Is
automatically revoked on the effective
date of the Individual permit
15) Any owner or operator applying
for an Individual NPDES permit under
this paragraph Is subject to the
procedures set forth In Part 124.
• 12313 eonlIJ.sauons un4sr
Fsdsral w.
Under section 301(b)(1)(C) of CWA.
permits shall be consistent with and
reflect requirements under applicable
Federal laws other than CWA and to the
extent authorized by law, requirements
under Executive Orders. For permits
issued by the Regional Administrator
such Federal requirements include but
are not limited to the following:
(a) Executive Order 12 flProtection
of Wetlands).
(b) Executive Order 11988
(Preservation of Floodplain,).
(c) Sections 3,4, and Sof the Wild and
Scenic Rivera Ac 16 U.S.C. 1273 et seq.
(dJ The Notiona) Historic
Preservation Act of 1966, 42 U.S.C. 4321
et seq. (and the related Executive Order
11593).
(e) The Land and Water Conservation
Act, 16 USC. 480, ci seq.
(I) Section 7 of the Endangered
Species AcL 10 USC. 1531 et seq.
(g) Section 307 of the Coastal Zone
Man ogement Act. 16 U.S.C. 1451 ci seq.
(Comment NPDES permits mast be
consistent with approved coastal acne
management plans by virtue of sections
307(c)(3XA) (Federally Issued permits) and
5O7(c)(1) (approval and oversight of State
permit pscgrams -
(h) The Solid Waste DisposalAct, as
amended by the Resource Conservation
and Recovery Act of 197d 42 U.S.C. 0901
St seq.
( ) The Safe Drinking WoterAct. 42
U.S.C. 300f ci seq.
(I) The Marine Protection, Research.
and Sanctuaries Act (the Ocean
Dumping Act), 33 U.S.C. 1401 at seq.
(k) The Surface Mining Control and
Redomotion Act of 1977, 30 U.S.C. 1201
c i seq.
(I ) The ?Tsh and Wildlife Coordination
Act. 10 U.S.C. 001 et seq.
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PART 123—STATE PROGRAM
flEQI RREMEI4TS
Subpert A—General Proç i ’ Rr’t’trement.
-see
123.1 Purpose and scope.
1232 DefinitIons.
123.3 Elements of a program sublmulon.
123.4 Program desortpban.
123.5 Attorney Generals Statement.
123.8 Memorandum of Agreement with the
Regional -“-‘frator.
1237 Requirement to obtain a permit
123.8 Operational requirements.
123.9 Compliance evaluation programs
123.10 iforcement authority.
123.11 Progress reports.
123.12 Approve] process.
123.13 Ptucedure for revision of State
programs.
123.14 Qiterta for withdrawal of State
123.15 Procedures for withdrawal of State
programs.
123.16 Sharing of Information.
123.17 CoordInation with other programs.
Subpart B—Additional Requirements tar
State Hazardous Waste Programs
123.31 Purpose and scope.
123.32 Interim authorization.
12333 AuthorizatIon.
123.34 Program description.
123.35 Attorney General’, statement for
interim authorization.
123.36 Pru 5 zcssreprt.
123.37 Memorandum of Agreement.
123.38 EPA review of State permits.
123.39 Operational requirements.
1 4O Approval process.
12341 Cntena for withdrawaL
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Federal Register I Vol. 44, No. 116 I Thursday. june 14, 1979 / Proposed Ittilee
Subpart C—AddltIO(ial PI,pil..m.flt for
Stats Underground Istjec (Ion Control
Programs
Purpose and sc w.
Program deacnptlon.
Attraney Generals Statement
Requirement to dbtaln a permit
Progress reports.
Annual report
Operational requirements.
Program approval ,.. .
Withdrawal process.
State UJC program revteioas
Subpart D— ddlthonol Reqi*in for
Stat. Progr.ms linderVis Il.” ’
— 81 —
123.71 Purpose and scope.
123.72 Memorandum of Agreement
1237) Operational requirements.
123.74 Control of di.p . ” of pollutants Into
wells.
123.75 InspectIons. monitoring. embyand
reporting
123.70 ReceIpt sad use of Federal
Information.
123.77 Tran of lofarmatlon to EPA.
123.78 Objections to proposed pPieriiI
123.79 ProhIbition.
123.80 Compliance evaluation programs
123.81 Coellmnagplemdng wese
123.82 Agency board nieaiberaliip.
123.83 #ip vval ,. .
Subpart E—AddIIIonaI Requirements for
State Programs Under Section 404 of me
Clean Water Act -
123.P1 Pwpose and scope.
1 3 9 Memorantham of Agreement
123.95 Memorandwn of Agreement with the
Secmiaq.
123.94 Attorney Ganeral. Statement.
123.95 Program descrIption.
123.94 Inspections. monitoring. enby and
reporting
123.97 Receipt and see of Federal
lnlonnatioi i.
123.58 Traammsston of Information to EPA.
123.59 ObjectIon, to permits.
123.100 Proltibttions.
123101 Enforcement authority.
123.182 Coobnulng planning process.
323 103 Agency board niembersblp
123.104 Approval pro . .
123 WI *pphc.ble condition. sad
requirements.
123.100 General permits.
123 107 AøtIvItaes not requiring permits.
123.108 PermIt application.
123 109 (Reserved]
123.110 Coordination vequbeinent,.
123.113 Emergency procedures.
123.112 ReportIltg.
Authsdt Resource Conservation and
Recovery Act. 42 U.S.C. 8001 ci aeq.. Safe
Dnnklng Water Ad. 42 U.S .C. SOOfal .eq.
Clean Water Ad. 33 U.S.C. 1801.
Subpart A—General Program
Requirements
f 123.1 Stipou ant s
(a) This part specifies procederal and
other sequirements whick must be
present In State programs In order to
obtain approval of the Adminiefratar
unden
(1) SectIon 3000 (hazardous waste) of
the Solid Waste Disposal Act 8
amended by the Reeoorve Coneervation
and Recovery Ad of 1976, (Pub. 1.94-
580, as amended by Pub. 1.95-609,
hereinafter called RCRA) -.
(2) SectIon 1422 (nndergr nwd
Injection conV l—4flC) of the Safe
Drinking Water Act 1PU 1.93-523, as
amended by Pub. L -i r. hereinafter
called SDWA).
(3) The National Pollutant Discharge
Elimination System (NPDES) (sections
318.402 and 405 of the Clean Water Act.
Pub. 1.92-800, as amended by Pub. 1.
95-217 and Pub. L 95-676, hereInafter
called CWA); end
(4) Section 404 (dredge and 1111)0!
CWA.
(Co,nmenL This Part should be read In
conjunction with Parts 122 and 124 whIch
providegeneral lequlrenienls of the Federal
program and, by the contained In
this Part to Slate ruia. (
(bJ A State program which conforms
to the applicable requirements of this
Part shall be approved by the
Adminiatrator.
(c) Upon approval of a State program
the Ailminielrator or the Secretaxy (in
the case of section 408 programs) shall
suspend the issuance c i Federal permit.
for those activities subject in the.
approved State program.
(d) Any State program approved by
the Administrator shall at all times be
conducted In accordance with the
reqiwexcents of this Pant
(e)ln many casesStates will lack
authority So regulate aCtivities on Indian
lands. This lack of authority to regulate
ecitivities en Indian lands. This lack of
authority does not impair a State’s
ability to obtain full program approval
in accordance with this Part. However,
States ate requited to exercise
jurisdiction over Indian lends to the
extent they ate authorized to do iø.
(Comment Partial State programs are not
allowed under RCRA. NPDES and section
404. However. injure if. State lorepiate
activities on Indian land, dee, not censtaale
a psrtial program. Szmularfy.a Stats em
aamime trtmaiy enIor t seaponalbllity
for the UICge azi. astwlths hng
$ 123.51(e). where thu Stale ç. ier.is
unable to replete activities on Indian land.
within the State Stales are advised to
contact the Untied States Depeitment of
lands. EPA or the S a,tary:ia the case .1
section 404 program., will admIms the
program on Indian Lends whenever the Stale
lacks authority.]
(f) Except as provided In I 12 3f c)
nothing In this Pitt precludes a Stale
from:
(1) Adopting or enforcing _____
requliweent. which are more alringent
or more extensive than those required
under this Part
(2) Operating a progi- m with a greater
scope of coverage than that required
under this Part.
(Comment: Where an appeased Stale
peugram has greater scope of coverage thou
required by Federal law the additional
coverage Is not part of the Federally
approved program. For example. where a
State requires permits for discharge. Into
publicly owned beatment wurics. these
permits me not NPDES permits.)
$123.2 Osfinitlons
The definitions In Part 122 apply 10
‘this Part.
• 123.3 Elements ofaprogrim
submusalon.
(a) EPA will not begin formal review
of a proposed State program until It
receives three copies of a complete
program submission. EPA will notify The
State withIn 30 days whether Its
submission Is complete. IT a submission
made by a State Is found to be
Incomplete, the statutory review period
(i.e., the period of time allotted for EPA
review under the appropriate Act) shall
not begin until all the requested
Information Is filed with EPA.
(b) 1! the State s submission Is.
materially changed during The statut
review period, the review period shafl
recommenoe.
(c) The State end EPA may extend the
- review period by agreement
(d) The snbmlaalon shall contain the
follo*ing elements:
A letter from The Governor olThe
State requesting program apprcval
(2) An Attorney General’s Statement
as required by I 123.5:
(3) A Memorandum of Agreement
with the Regional AdmInistrator aa
required by I 123.5
(4) A complete program description.
aa required by I 123.4. dewlblnghow
the State intends to carry out its
responsibilities under this Part
(5) Cople . of the following forms the
State intends to employ In Its program.
the permit formta); the application
form(s): standard reporting formjs) and
the manifest form. Except as provided in
Part 122, forms used by States need not
be identical to the forms used by EPA or
Sec
12351
223.52
123.53
123.54
123.55
123.m
12337
123.58
123.59
123.80
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Federal Register I Vol. 44. No. 116 1 Thursday, June 14, 1979 I Proposed Rule .
the Secretary but should require the
same basic information. The State need
not provide copie . of uniform national
forms It Intends to use but should note
Its Intention to use such forms.
(Common a States are encoveged to use
umiform national forms established by the
Administrator or the Secretary (In the case sf
section 404 programs). Uniform national
fornis may be modified I a Include the State
Agency’s name, sddreu, logo and other
similar Information, as eppropnaie, In piece
of EPA’s. NPDES States are required to uee
standard macbarge Monitoring Report.
(DMR).j
(0) Copies of all applicable State
statutes and regulations, Including those
governing State administrative
procedures:
(7) In the case of sectIon 404 programs
• Memorandum of Agreement with the
Secretary as required by 123.93: and
(8) The showing required by
123.40(d) (RCRA) and 123. 58 (b)
(UIC).
f 123.4 Program descrIption.
Any State that wishes to administer a
program shall submit to the
Administrator a complete description of
the program It proposes to establish and
administer under State law or under en
Interstate compact The program
description shall Include the Information
below, Additional requirements for
State program descriptions are detailed
in H 123.34 (RCRA), 123.32 (IJIC). and
123.95 (404).
(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
end 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, their
responsibilities must be delineated, their
procedures for coordination set forth,
and one of the agenices may be
designated a “lead agency” to facilitate
communication, between EPA and the
State agencies having 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 be engaged In cszi’ywg
out the State program. including the
number arid occupations of the
employees;
(Comment: Tb. State need not submit
complete job descriptions for every employee
srrgsged In cvr)4ag out the State program.)
(2) An Itemization of the proposed or
actual costs of establishing and
administering the program for the first
two ysars after approval, Including cost
of the personnel listed in subparagr.ph
(1). cost of vlrnlnlmtratlve support, and
cost of technical support.
(8) An Remization of the sources sad
amounts of funding. Including Federal -
grant money, available to the State
Director for the fret two yeare after
approval to meet the costs listed In
subparagraph (2) identifyIng any
restrictions or limitations upon this
funding.
(4) Information on the number, size
and character of the activities that will
be regulated under the approved State
program. (See U 123.84 (RCRA), 123.52
(UIC), and 123.95(404)).
(c) A description of applicable State
procedures, Including permitting
procedures and say State appellate
review procedures;
(d) A general description of the State’s
priorities for issuance of permits and for
enforcement, Including a complete
description of the State’s compliance
tracking and enforcement program.
(Comment: It Is anticipated that a more
specific Identification of priorities will be
contained In subaldiary State! EPA
agreements such as annual grant
agreements.) -
* 128.5 Attorney 0.nersrs Statement,
(a) Any State desiring to administer a
program covered by 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 Jaws of the State, or the Interstate
compact, provide adequate authority to
carry out the program described under
• 123.4 and to meet the requirements of
this Pert. This statement shall include
citations to specific statutes,
administrative regulations, and, where
appropriate, judicial decisions to
support the analysis. The authorities
cited by the State Attorney General or
other legal officer shall be In the form of
lawfully adopted State statutes end
regulations which shall be in full force
and effect at the time the statement Is
atgned.
(Comment: To qualify a, independent
legal counser 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.]
(b) Where jurisdiction can be -
exercised over activities on Indian
lands, the statement shall contain an
appropriate analysis of the State’s
authority.
I 123.5 Nemor su of A ..ma,u1 mISt
Ste Reglonat Administrator.
(a) Before the Administrator approves
any Stale program, the Stale Director
and the Regional Administrator shall
execute a Memorandum of Agreement
(MOAJ. which the Mmlnlstrator shell
approve before or at the time of program
approval. In addition to the
requirements of paragraph (b). the
Memorandum of-Agreement may
Include other terms, conditions, or
agreements relevant to the
administration and enforcement of the
State’s regulatory program which are not
Inconsistent with this Pail. No
Memorandum of Agreement shall be
approved which contains provisions
which restrict EPA’s statutory oversight
responsibility.
(Comment’ The Administrator may
delegate his or her authority to approve
modifications of MOA’s. In such cases,
however, the Regional MNI,d.tr ’ator’s
dedsiozi would be subject to review by EPA
Headquarters.)
(b) The Memorandum of Agreement
shall Include the followlngr
(1) Provisions for the prompt transfer
of any pending permit applications or
ny other relevant Information not
already In the possession of the State
Director (e.g., support files for permit
Issuance, compliance reports, etc.) from
EPA to the State. Where existing
permits are transferred to the State for
administration, the Memorandum of
Agreement shall contain provisions
specifying a procedure for transferring
responsibility for these permits.
Icomment In many Instances States will
lack the authority to directly administer
permits issued by the Federal government.
However, a procedure may be established to
transfer responsibility for these permits. For
example, a State could issue permits Identica]
to the outstanding Federal permits which
could be simultaneously revoked.]
- (2) ProvIsions specifying cleases and
categories of permit applications end
permits that the Regional Administrator
will receive from the State for review,
comment and, where applicable,
objection;
(Comment: The nature and basis of EPA
review of State permits and permit
applications differs between the programs
governed by this Part See 1*123.38 (RCRA),
123.?5 INPDES) and 223.99(404). In addition,
EPA will Issue guidance on the significant
types of permits thai will be subject to EPA
review pursuant to these Memoranda of
Agreement).
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Federal Register Vol. 44. No. 1161 Thursday. ¶une 14. 1979 1 Proposed Rules
34301
(3) PrOvIsiOns specifying the frequency
and content of reports (e.g.. see
I t23.11 . documents and other
Information which the State must submit
to EPA. and provisions nc program
evaluations. The State haU allow EPA
to routinely review State records,
reports and files relevant to the
administration and enforcement of the
State program. State reports may be
combined with grant reports where
appropriate;
(4) ProvIsions on the State.
enforcement program, Including:
(I) Comphance monitoring by the
State and by EPA. These may apenify
the basis on which the Regional
Administrator may select facilities or
activities within the State for EPA
Inspection. The Regional Administrator
will normally notify the State at least
seven (7) days before any such
Inspection;
(ii) Fiscal arragnemeat. for effective
litigation support for the State attorney
general or other appropriate legal
officere
(5) Where 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 wider different programs.
(CommreL To promote ffi(1ffl y and to
avoid duplication and Inconelsiency. State.
are encouraged to enter Into joint processing
agreements with EPA for permit Issuance
Ukewise, States are encouraged to conr,dr;
steps to coordinate or consolidate their own
permit programs and activities)
(6) Provisions for modification of the
Memorandum of Agreement.
(c) The Memorandum of Agreement
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 in accordance with the
procedures set forth in this Part. The
State/EPA Agreement may not override
the Memorandum of Agreement.
lcommenL 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 Where this is the cue 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 S late/EPA sgraemont I
4123.7 R.gutrsmsnt to obtain a psrmlL
Except where an activity may be
authorized by rule as provided In
44122.33.223.54 (UIC) and 123.39
(RCRA), State perinltprogrania must
have a statute or regulation. enforceable
In State coorts. which prohibit . the
activity requiring a permit under the
appropriate Act, except as authorized
by a permit In effect under the State
program. Wham in activity may be
authorized by rule there must be a
similar statuloiy prohibition against
such activities except as authorized by a
rule in effect under the State program.
4 1238 OperatIonal requirements.
State programs must have legal
authority to Implement each of the
following provisions and must be
administered in conformance with each
of the following provisionn
(a) 4 122.5 (Signatories);
(b) 4 122.7—(Permit Issuance):
(C) 4122.8(a) and (b)-.4Duration);
(d) * 122.9-4Pernilt review and
modiflcation)
(e) 4 122.1O—(Permlt temeinalion
(I) 4 122.11.—(Permit conditions):
is) 4 122.12 (a) and (d)—(Schedules of
compliance);
(h) I 122.i4—(Recoi Jkeeplng/
Reporting);
(i) I 122.15—(Noncoutpllanae
reporting);
U) 4 122.16(b)—(Confldenfial
Information):
(k) 4 124.0 (a) and (b)—(Draft permit)
except as provided In 4 123.98(c)(2) for
State section 404 programs: -
(3) 4 124 8.—(Stetement otbarir)
exrrp ‘ rovided u ::: ; _j f _
bta:e secuon 404 prograr s.
(in) 4 124 9—(Fact sheets), except as
provided in 4 123.98(c) [ 2) for SLate
section 404 programs;
(n) 4 124.11—(Public notice);
(o) 4 124.12—(Public comments and
requests for hearings);
(p) 4 124.19 (a) anti (c)—(Response to
comments)
(q) Such other provisions as are
specified in 44 123.39 (RCRA). 123.37
MC) and 123.73 (NPDES).
4123.9 Comp 5ance evaluation Jwo grsms .
(a) State programs shall have
procedures for receipt, evaluation.
recordkeepin.g and Investigation for
possible enforcement of all notices and
reports required of pernmitlees (or failure
to submit such notices and reports).
(b) State programs shall have
Inspection and surveillance procedures
to determine, Independent of
Information supplied by operators and
perinittees, compliance or
noncompliance with applicable program
requirements, standards and limitations.
filing requirement, and permit terms or
conditions, Including the followlng
(1) A program which Is capable of
making comprehensive surveys of all
waters and/or activities subject to the
State Director’s authority in order 10
Identify persons subject to regulation
who have failed to comply with permit
application or other filing requirements.
Any compilation. Index, or Inventory of
such activities shall be made available
to the Regional Adininletrator upon
request
(2) A program for periodic Inspections
of the activities subject to regulation.
These Inspections .halli
(I) Determine compliance or
noncompliance with issued permit terms
and conditions and other pruglim
requirements:
(ii) Verify the accuracy of Information
aubmitted by permiuees In reporting
forms and other forms supplying
monitoring data: and
(lii) Verify the adequacy of sampling.
monitoring and other methods used by
perinittees to develop that Information.
(3) A program for Investigating
evidence of violations of applicable
program and/or permit requirements.
which shall apply whether the evidence
Is Indicated In the reports and
notifications evaluated under paragraph
(eJ or by the survey. Inspection, and
surveillance activities provided In
paragraph (b): and
(4) The State’s enforcement program
shall include procedures for receiving
and ensuntg proper consideration of
evidr’: submi ;p± by th li a ,out
vIoIz. . s PubLcr :::’ :.
violations shall be encouragec a tae
State Director shall make available
Information on reporting procedures.
(c) The State officers engaged In
compliance evaluation activities shall
have authority to enter any site or
premises subject to regulation or In
which records are kept in order to
inspect, monitor or otherwise investigate
suspected violations of the State
program including suspected violations
of permit terms and conditions;
(CommenL’ State programs which require a
search warrant for mltiy conform with this
requirement.)
(d) Investigatory inspections shall be
conducted, samples shall be taken and
other information shall be gathered in a
(e.g.. using proper “chain of
custody” procedures) that will produce
evidence admissible In an enforcement
proceeding or In court.
412310 Enforcement suUiostty.
(a) Any State agency administering a
program shall have available the
following remedies for violations of the
appropriate A.ct
(1) To restrain Immediately and
effecth ely soy person by order orby
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Federal Register / Vol. 44. No. 116 / Thursday. June 14, 1979 / Proposed Rules
recalcitrance, definance, 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
(8) Art amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violators control (e.g.. floods, fires).
lCo,nment,- In addition to the above, the
State may have other enforcement remedies.
The following enforcement options, while not
mandatory. aie highly recommended:
(I) Procedures for assessmenl by the Slate
for the costs of an Investigation. Inspection.
or monitoring survey which led to the
establishment of the violatioc;
(II ) Procedures which enable the State to
asseu or to sue any persons responsible for
the unauthorized activities for any expenses
Incurred by the State In removing, correcting.
or terminating any adverse effects upon the
human health and the environment resulting
from the unauthorized activity, whether or
not accidental;
(UI) Procedures which enable the Slate to
sue for compensation for any loss or
destruction of wildlife, flab or aquatic life,
and for any other damages caused by
unauthonzed activity, either for the State for
any residents of the State who are directly
aggrieved by the unauthorized activity, or
both, and
- (iv) Procedures for the administrative
(c) Any civil penalty assessed, sought assessment of penalties by the Director)
or agreed upon by the State Director
under subparagraph (a)(3) of this section Progress reports.
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.
In the event that such a civil penalty.
together with the costs of expeditious
compliance, would be so severely u’_.i pç gg ,
disproportionate to the resources of the The process for EPA approval of State
violator as to jeopardize continuance in programs Is set out in § 123.40 (RCRA).
business, the payment of the penalty
may be deferred or the penalty may be 123.58 (UIC), 123.83 (NPDES) and 123.104
(404).
forgiven in whole or part, as
circumstances may warrant § 123.13 Procedure fer revision of State
For a violation resulting from failure pregrains.
to meet a statutory or final permit (a) Program revision may be initiated
compliance deadline. “appropriate to at the request of either EPA or the State.
the violation” as used In this paragraph, Program revision may be necessary
means a penally which is equal to: when the controlling Federal or State
(1) An amount appropriate to redress statutory or regulatory authority Is
the harm or risk to public health or the modified or supplemented. The State
environment plus shall keep EPA fully Informed of any
(2) An amount appropriate to remove proposed modifications to Its basic
the economic benefit gained or to be statutory or regulatory authority, Its
gained from delayed compliance plu. forms, procedures or priorities.
(3) An amount appropriate as a (b) Revision of a State program shall
penalty for the violator’s degree of be accomplished as follows
can be sought by the EPA under the
appropriate Act. The maximum civil
penalty or criminal fine 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.
(Comment: The Agency welcomes
comments on this requirement. In particular,
EPA i. interested in determining whether
there are any State statutes which meet all
the requirements of the Part except the above
subparagraph. Any State which believes this
to be the case should. in addition, notify EPA
of what. if any, alminal remedies are
provided for under State law.)
(2) The burden of proof and degree of
knowledge or intent required under state
law for establishing violations under
subparagraphs (a)(3), (4) and (5) 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 appro rlate Act:
(Comments: (1) For example, this
requirement Is not met If State law Includes
mental state as an element of proof for civil
violations.
(2) Under CWA the Agency must establish
that a violation was negligent or willful to
maintain a miminal action. Under RCRA the
degree of criminal Intent for EPA prosecution
Is “knowingly” and under UIC “willfuL”
Criminal prosecution under the Slate program
shall require no greater burden of proof than
that for EPA prosecution.)
suit in State court from engaging in any
unauthorized activity which Is
threatening or causing actual damage to
public health or the environment, or,
where EPA I . authorized to take
Immediate action, to Immediately notify
the Regional Administrator by telephone
of any unauthorized activity which Ia
threatening or causing actual damage to
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 terms and
conditinna, without the necessity of a
prior revocation of the permit:
(Comment: Subparagraph (a)(1) requires
that States have a mechanism (e.g.. en
administrative order ore temporary
restraining order) to atop any unauthorized
activity endangering public health or the
environment or, alternatively, to notify EPA
of the situation so it may act Where EPA
cannot act immediately, e.g.. ins State with a
fully approved UIC program. the second
alternative Is not acceptable. Subparagraph
(a)(2) merely requires that states have
authority to permanently enjoin unauthorized
activities) — -
(3) To assess or to sue to recover in
court civil penalties for the violation by
any person of any of the following:
( I) Any applicable permit term or
condition;
(ii) Any notice or reporting
requirement:
(iii] Any duty to allow Inspection.
entry, or other monitoring activites; or
(iv) Any rule, regulation, or order
Issued by the state.
(4) To seek criminal remedies,
including fines, for the violation by any
person of any applicable program
requirement, including violations of
permit terms or conditions.
(5) To seek criminal remedies,
Including fines, against any person who
knowingly make. any false statement,
representaUon or certification In any
program form or any notice or report.
including those required by the terms
and conditions of any Issued permit or
who knowingly renders inaccurate any
monitoring device or method required to
be maintained by the State Director
(Comment: In many States the State
Director will be represented In State courts
by the State Attorney General or other
appropriate legal officer. While the Slate
Director need not appear in court actions
under this Subpa .”t. be/she should have
power to request that any of the above
actions be brought.)
(b)(1) The maximum civil penalties
and criminal fines that can be sought by
the state under subparagraphs (a)(3), (4)
and (5) of this section shall be at least
the same as the maximum amounts that
States with interim authorization
under RCRA (see § 123.32) and States
listed as needing a UIC program (see
§ 123.51) shall submit Information every
six months in accordance with § 123.38
(RCRA) and § 123.55 (UIC) on the status
and progress of State efforts to obtain
approval.
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Federal Register I Vol.44 , No. 116 I Thursday, june 14. 1979 / Proposed Rules
34303
(1) The State shall submit a modified
program description, Attorney General’s
Statement, Memorandum of Agreement.
or such other documents as are
necessary under the circumstances.
(2) Whenever EPA determines that the
proposed program modification(s) is
substantial, the Agency 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 enough of the
largest newspapers in the State to
provide Statewide coverage. The public
notice shall summarize the proposed
modifications and provide for the
opportunity to request a public hearing.
Such a bearing will be held If there is
significant public interest.
(3) The program modification shall
become effective upon the approval of
the Administrator. Notice of any
substantial modification shall be
published in the Federal Register. Non-
substantial program modifications may
be approved by a lettter from the
Agency.
lCw’nmenL The Adminlitrator I. expected
to delegate hi. or bar authority in this regard
to the Regional Administrator. The Regional
Adzninistrstor’s action would, however, be
subject to review by A Headquarters]
(c) Approved State programs shall
notify EPA whenever the State proposes
to transfer all or part of any program
from the approved State agency to any
other agency. and shall identify any new
division of responsibilities among the
agencies Involved. If such change affects
the State’s ability to meet the
requirements of this Part, the new
agency is not authorized to administer
the program until approved by the
Administrator. Organizational charts
required under I 123.4(b) shall be
revised and zesubmitted.
(d) Whenever the Administrator has
reason to believe that circumstances
may have changed with respect to a
State program, he may request, and the
State shall provide a supplemental
Attorney General’s Statement, program
description, other document or
Information as necessary.
{ 123.14 CriterIa for withdrawal of Stat.
programs.
(a) The Administrator may withdraw
program approval where a State
program no longer complies with the
requirements of this Part and the State
fails to take corrective action. Such
circumstances include the foUowing
(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
necessarI, and
(Ii) Action by a State legislature or
appellate level court striking down or
limiting State authorities.
(2) Where the operation of the State
program falls to comply with the
requirements of this Part. Includln
(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 and
(iii) Failure to comply with the public
participation requirements of this Part.
(3) Where the State’s enforcement
program falls 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 and collect
adequate enforcement penalties; and
(lii) Failure to inspect and monitor
activities subject to regulation.
(4) Failure to comply with the terms of
the Memorandum of Agreement required
under 0 123.5: and
(5) Such other criteria as provided in
the applicable provisions of Subparts B-
1)
1123.15 Procedures for wlth*awalof
State programs.
(a) A State with a program approved
under this Part may voluntarily transfer
program responsibilities required by
Federal law to EPA (orto the Secretary
in the’case of 404 programs) 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 (and the Secretary in the
case of Section 404 programs) 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, etc.) which are
necessary for EPA (or the Secretary In
the case of section 404 programs) to
administer the program.
(2) Within 00 days of receiving the
notice and transfer plan, the
Administrator (and the Secretary In the
case of section 404 programs) 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 and other interested persons
on appropriate EPA a*tState 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, other than
a UIC program. The process for
withdrawing approval of State UIC
programs is set out in 123.59.
(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 reqwrements of
this Part or of the appropriate Act as set
forth in 0123.14. When the
Administrator receives a petition to
commence withdrawal proceedings he
may conduct an informal investigation
of the allegations tq determine whether
probable 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
bearing. 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 proceeding under this
paragraph.
(2) Definitions. For purposes of this
paragraph the definitions of 00 22.03 (a).
(b), (i), (j)’ and (p of this Chapter 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
or the proceeding;
(w Petitioner” means any person
whose petition for commencement of
withdrawal proceedings has been
granted by the Administrator.
(3) Procedures. The following
provisions of Part 22 of this Chapter are
applicable to proceedings under this
paragraph.
(i) Section 22.02—(uae of number!
gender):
(ii) Section 22.04(c)—(authorfties of
Presiding Officer):
(iii) Section 22.0O—{filing/service of
rulings and orders):
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Federal Register I Vol. 44, No. 118 I Thursday, June 14, 1979 Proposed Rules
(Iv) Section 22.07 (a) and (b)—
provided that the time for
commenceinext of the hearing shell not
be extended beyond the date set In the
MnthilctratoYs order Without approval
of the Miatrtor_(computation/
extension of time);
(v) Section 22.08.—however substitute
‘order commencing proceedings” for
“complaint”—(Ex Paste contacts);
(vi) Section 22 (.immltiofl of
filed documents).
(vii) Section 22.11 (a), (c) and (d),
provided, motions to intervene must be
filed within 15 days from the date the
notice of the AdniinistretWs order is
first pubhahed—(interventioo);
(viii) Section 22.16 provided service
shall be In accordance with
subparagraph (4) of this paragraph. and
provided fun her, the words
“recommended decision” shall be
substituted for the words “initial
decision, except as provided in 122.28”
In I 22,16(c).—(motions);
(ix) Section 22.19 (a). (b) and (c)—
(prehearing conference);
(x) Section 22.22—(evidesuce);
(ad) Section 22.23—(objectionsf offer,
of proof);
(xli) Section 22.25—(flling the
transcript), and -
(xii!) Section 22.26—(flndings/
conclusions).
(4) Record of proceedings. (I) The
hearng shall be either stenographically
reported verbatim or tape recorded, end
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 or other written
.niaterial of any kind submitted in the
hearing shall be a part of the record and
shefl be available for inspection or
copying, upon payment of costs, by the
parties or any other persons in the
Office of the Hearing Clerk. Inquiries
may be made at the office of the
Administrative Law Judges. Hearing
Clerk, 401 M Street, SW., Washington,
D.C. 20460;
(iii) Upon notice to all parties the
Presiding Officer may authorize
corrections to the transcript which
involve matters of substancs;
(iv) An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerks
(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 deliveiT
(vi) Every , i nt siiin shall be
accompanied by an acknowLe4gain iit
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 fomiab to any person upon request.
a list conthiniiig the name, service
address and telephone number of all
parties and their attorneys or duly
authorized representatives. -
(5) Partici’pa lion by a person note
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 position on the issues
Within such limits and on such
conditions as may be fixed by the
Presiding Officer, but he may not
otherwise participate in the proceeding
(6) P ghts of parties. (I) All parties to
the proceeding ma
(A) Appear by counsel or other
representative In all hearing and pre-
bearing proceedings;
(B) Agree to stipulations of facts
which shall be made a part of the
record.
( ) & ,w,,w,eipded decision. (I) Within
30 days after the filing of proposed
findings and conclusions, the Presiding
Officer shall evaluate the record before
him, 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 Adniini . .trator exceptions to
the recommended decision and a brief In
support thereoL
(8) Decision by Administrator. (i)
Within 60 days after thi 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 appropriate Act
and regulations his decision shall
constitute “final agency action” within
the meaning of 5 USC. 704.
(iii) if the Administrator condudes
that the State has not administered the
program In conformity wIth the
appropriate Act he shall hat the
deficiencies in the program and provide
the Slate a reasonable time, cot to
exceed 90 days. to take such appropriats
corrective action as the /.iln .inI tratos
determines necessary.
(Iv) Within the time prescribed by the
Administrator the Stste 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 such appropriate corrective
action has been taken.
(v) The Athninicfrator may require a
further ihowing 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 the
Administrator shall issue a
supplementary order withdrawing
approval of the State program. lithe
State takes such appropriate corrective
action, the Min’nietrator 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 $ U.S.C. 704.
(c) Withdrawal of authorization under
this section and the appropriate Act
does not relieve any person from
complying with the requirements of
State law.
O 123.16 Gusting of Inlormation.
(a) Any information obtained or used
pursuant to 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 submii
that claim to EPA when providing
Information under this Part. 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 may furnish information to
States In order to implement these
regulations. In the case of information
claimed as confidential by submitters,
State access will be subject to the rules
In 40 CFR Part 2, Subpart B.
f 123.17 Coor ristIon with other
prograsm .
(a) Initial Issuance of State permits
under this Part may be coordinated
whenever possible and appropriate in
timing and procedure with initial
Issuance of RCRA. NPDES, 404 and UIC
permits whether they are controlled by
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34305
the State or EPA. If steps are taken to
accomplish this coordination, they shall
be addressed Lu the Memorandum of
Agreement.
fbI The State director of any approved
program which may affect the plitnning
for and development of hazardous waste
management facilities and practices
shall consult and coordinate with
agencies designated under section
4006(b) of RCRA as responsible for the
development and implementation of
State solid waste management plane
under section 40002(b) of RCRA (40 CFR
Part 258, proposed at 43 FR 38534-38548,
August 28. 1978).
Subpart B—Additional Requirements
for State Hazardous Waste Programs
• 123.31 Pwpos.snd scope .
This subpart describes additional
substantive and procedural
requirements for State hazardous waste
programs under section 3006 of RCRA.
and additional features of EPA’s review
of State hazardous waste programs. In
case of any inconsistency between this
Subpart and Subpart A. this Subpart Is
controlling.
• 123.32 Interim suthoitsatlon.
(a) Interim authorization may be
granted only for the 24 months beginning
on the date six months after the date of
promulgation of regulations under
section 3001 of RCRA at 40 CFR 250,
Subpart A (proposed at 43 FR 58954.
December18, 1978). The Administator
ahall grant interim authorization under
section 3006(c) of RCRA If the State’s
program complies with the requirements
of Subparts A and B of this Part (except
as provided in paragraph (b)) and the
State:
(1) Controls by permit system at least
on-site or off-site hazardous waste
disposal facilities. The legislative
authority to meet this requirement shall
be effective no later than 96 days after
the date of promulgation of 40 CFR 250,
Subpart A. (proposed at 43 FR 58954—
58968. December 18 1978);
(2) Commits adequate resources, and
has the administrative capability to
process permits and conduct an
effective enforcement program,
including a program for compliance
evaluation.
(b)To obtain Interim authorization
States need to show compliance with
Subparts A and B of this Part, except
that they need only show substantial
compliance with 123.8,123.10 and
123.39(a). States need not comply with
II 123.33 and 123.39 (b), (ci and (d).
(Comment’ A program to control hazardous
waste treatuient or storage facilities is
desirable butts not required for interim
authorization. Note, however, that States
within interim authorization which have the
necessary authorities in existence to
implement a manifest system and/or control
of treatment and/or storage facilities must do
to.’
1133.33 Authorinatlon,
(a) The Administrator will not grant
authorization under section 3008(b) of
RCRA to any State hazardous waste
program until after the date of
promulgation of regulations under
section 3001 of RCRA at 40 CFR 250.
Subpart A (proposed at 43 FR 58954—
58968. Pecember 18 1978), or of this
Part, whichever Is later.
(b) No partial programs will be
approved. A State program must comply
with all the requirements of Subparts A
and B of this Part In order to obtain the
approval of the Administrator.
(c) in order to obtain approval, a State
program must be consistent with the
Federal program and State programs
applicable in other Slates. For purposes
of this paragraph, the phrase “State
programs ap licable in other States”
refers only to those hazardous waste
programs which have received
authorization under this Part. Any
aspect of the State program which
restricts, Impedes, or operates as a ban
on the free movement across the State
border of hazardous wastes from or to
other States for treatmen’ storage or
disposal at facilities having hazardous- -
waste permits under the Federal or an
approved State program may be deemed
Inconsistent for purposes of this
paragraph.
{123.34 Program description.
The State’s program description shall
meet the requirements of l 123.4 and
include the following’
(a) In the case of a submission for
Interim authorization the State’s
program description shall contain the
following:
(1) A general description and estimate
of:
(i) The number, types and relative
sizes of activities to be regulated by the
State during the Interim authorization
period; and
(ii) If available, the total quantity of
hazardous wastes expected to be
disposed of annually from both in-State
and out-of-State sources.
(2) An “authorization plan” which
shall describe the additions or
modifications necessary to the State
program to qualify for authorization
under this Part by the end of the Interim
authorization period. This plan shall
include a schedule which the State
proposes to achieve those additions or
modifications, and shall describe the
nature of and schedules for any changes
in State legal authority, resource levels.
the permit system and the surveillance
and enforcement program which will be
necessary during the Interim
authorization period in order to enable
the State to become eligible for
authorization.
(b) In the case of a submission for
authorization. the State’s program
description shall include:
(1) A description of the State manifest
system.
(2) A description, of the types and
relative sizes of regulated activities.
Including an estimate of the number of
the following:
(I) Generators:
(Ii) Transporters; and
- (iii) On- and off-site storage, treatment
and disposal facilities which must file
for or have been issued a State permit.
(3) If available, an estimate of the
annual quantities of hazardous wastes:
(I) Generated within the State: -
(ii) Transported into or out of the
State; and
(Ill) Stored, treated, or disposed of: (A)
on-site; and (B) off-site.
(c) Where more than one agency
within a State has responsibility for
administering the State program, an
Identification of a “lead agency” and a
description of how the State agencies
- will coordinate their activities.
(d) The State’s program description
may Include such other matters as the,
State deems relevant.
(Comment A State’s past performance in
responding to situations involving hazardous
waste which may present an endangerment
to health or the environment will be
considered by EPA in deciding whether to
approve Its hazardous waste programs)
1123.35 Attorney General’s statement for
Interim authorization,
In the case of a submission for interim
authorization, the Attorney General’s
Statement shall certify that the State has
legal authority to Implement the
program (see, I 123.32) and that the
authorization plan (see I 123.34(a)(2fl, If
carried out, would provide the State
with the legal authority to meet the
requirements for authorization.
• 123.36 Progress reports ,
In accordance with the reporting
requirement of I 123.11, the State
Director of a State with Interim
authorization shall submit a semi-annual
progress report to the EPA Regional
Administrator within four weeks of the
date six months after the date of
conferral of interim authorization statue ,
and at six month intervals thereafter
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Federal Register I Vol.44. No. 118 / Thursday. June 14, i 9 I Proposed Rules
until the expfration.of interim
authorization. Such reports shaFt briefly
sucimarane. in a mammr and form
prescribed by the Me in1etrstcr. the
Slate’s c ’i%pliance in meeting the
requirements of the anthorizaticut plan.
the asoes and proposed remedies for
any delay In meeting milestones, and the
anticipated problems and solution. for
the next reporting period.
5123.37 Usmerandimi of Agreumsnt.
In addition to the requirements of
• 123.6. the Memorandum of Agreement
shall include provisions on the
foIlowing
(a) The Regional Administrator or his
designee may conduct inspections of all
major HWM facilities In each Federal
fiscal year for which the State has
received Interim authorization or
authorization. The Regional
Administrator and the State Director
may agree to limitations regarding
Inspection. c i non-major HWM
facilities, generators and transporters.
(b) The State Director shall agree to
forward to the Regional Administrator
copies of draft permits and permit
apphcations for all major HWM
facilities for review and comment. The
Regional Administrator and the State
Director may agree to limitations
regarding review and comment of draft
permits and/or icrpiit applications
non-major I4WM facilities.
(c) No limitation onEPA inspection of
non-major HWM facilities, generators
and transporters under paragraph (a).
shall restrict EPAs right to inspect any
HWM facility, generator or transporter
It has catme to believe is not in
compliance uith RQ A however, before
conducting an inspection. EPA will
normally allow the State a reesemabfe
opportunity to conduct, compliance
evalutlon inspection.
(CommenL’ The Inspections
pursuant taparagraph (a) sre Intended to be
routine compliance evaluation survey..
Except for major HWM facilities. EPA may
agree to hmlt these routine Inspections.
However. paragraph (c) provides that EPA
may Inspect any facility. generator or
transporter which the Agency ha. cause to
believe is violating RCRA after affording the
State the opportunity to investigat, the
situsPon.]
5123.3$ EPA review of St .t. penitite.
(a) The Regional Administrator may
comment on permit applications and
draft permits within the time provided In
the Memorandum of Agreement.
(bJ Where a comment indicates that
EPA believes Issuance of the permit
would be Inconsistent with RCRA or
regulations promulgated thereunder, It
shall set forth:
(1) A statement of the reason. for he
comemt (lidiadhig the section ci RC .A
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 terms and
conditions which the permit would
Inchule If It were Issued by tim Regional
Adm aor).
(c) The Regional A ”4’ tr .tcr shafl
withdraw sash a comment If satisfied
that the State meter refuted Li, or her
con a.
5123.39 an uman
(a) In addition to ameting the
requirements of 5123.1 any State
bazardour waste permit program must
have legal authority to haplement each
of the following provisions and shall be
administered hi accordance with each of
the following provisions;
(1) Section 122.23—(Applicatlon for a
permit).
(2) Section 1ft20 (Estab1i.hlnll permit
terms and itiiiim ) .
(3) SectIon 122.V—(Repcu ’thig).
(b) Slate hazardous waste programs
must have legal authority to control the
facilities and activitee wvezstJ by
00122.25 (special HWM facility
permIts), 122.28 (permits by nile), end
122.28 (emergency authorizations).
Stale, may choose to regulate these
facilities and activities In the same
manner as EPA under 10122.25.122.26
and 122.28 or be a more stringent
manner.
IComment An example of more stringent
confrol would be the Issuance of an
individual permit anther than to authorize the
activity by rule.)
(C) Any State program shall provide a
degree of control over the generatIon
and transportation of hazardou, wastes
equivalent to 40 Q’R Part 250. Subparts
Rand C (proposed at 43 FR 59969.
December 18. 1978, and 43 FR 18500.
April28. 1978, respectively). and shall
Include the management of manifests
Involving both intrastate and interstate
transportation of hazardous waste.
States shall take such measures aa may
be appropriate to ensure that Interstate
shipments of haza,does wastes are sent
to and arrive at permitted HWM
facilities. Slates must use the manifest -
format published by the M’n 1 ’ frator
In the Federal Register (40 CFR
250.22 (h), proposed at 43 FR 58077 and
58980), but may supplement that format
as appropriate to meet specific
requirements or needs.
(d) The State process for Identification
and/or listing .1 hazardous waste and
the standards applicable to owner. and
operators of hazardous waste storage.
treatement and disposal facilities shall
provide a degree of control equivalent to
40 CFR 250. Subpart A and D (proposed
at 43 FR 58954—59988 and 58994-59022
respectively, December 18, 1978).
lCamiert Section 3XU(b) does sot ieq re
State , to be Identical to EPAa
program. bat only “equivalent.” 1 se
regulatkies Identity what I. necessary Ice a
program to be ‘.‘ 4—’ed equIvalent” to the
Federal program, and provide the State a
degree c i flexibility within the ba.ic
framework. The degree of flexibility accorded
to Stste ’haa been carefully set out In the
regulations thenselves. A program will be
considered “equivalent” only If it meets all
applicable requirements of Part 123.
To meet the requirements of this Pert.
States need not n .e the same language or
structure as RCRA and its regulations
However, where afloweble under State law.
EPA onmerage States to incorporate Federal
requirements by reference.
The p...,.weJ regulation, ci 40 CFR Pail
250 Indicate, to on ertent. certain
requirements for Stale program. which are
necessary In order to be deemed
“equivalent.” For . mpI . 40 CE’S 250.10(4
advise. States that In order to be deemed
equlvalont “their programs ImustI contain
etandards and procedure, which identify as
hazardous at least the same universe of
wastes dedned a. hazardous” by EPA. In
addition. the Agency le con.lde, several
altemative approaches for systematically
Ju g equivalency with the en CFR Part 250
requirements, including requIrIng States to
directly emidey 40 CFR Pert 250. For farther
Information mid discuselon sea the preamble
to this Part)
* 123.40 Approval proessa .
(a) These regulations identify the
procedures by which State Program
applications far authorization or interim
authorization will be developed and
process. Except as exresaly provided.
each of’ these requirements apply both to
requests for authorization and for
Interim authorization,
(b) Prior to submltti g an application
to EPA for approval of a State program,
the Slate shall Issue public notice of its
Intent to seek program approval from
EPA This public notice shall:
(1) Be circulated in a TM ITInET
calculated to attract the attention of
Interested person. lndudmg
(I) Publication In enough of the largest
newspapers in the State to attract
Statewide attention; and
(ii) Mailing to persons on the Slate
agency mailing list and to any other
persons whom the agency has reason to
believe ale Intere.ted
(2) Indicate when and where the
State’. proposed aubmission maybe
reviewed by the public or discussec’
with agency officials In such
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34307
Informational public meetings as the
agency may choose to bold.
(3) Indicate the cost of obfRtnhig a
copy of the submlulon
(4) ProvIde fora comment period of
not less than 30 days during which
interested members of the public can
express their views on the proposed
that a public hearing will
be held by the State or EPA If sufficient
public interest Is shown or.
alternatively, schedule such a public
bearing
(I) Any public bearing 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:
(II) The State I . not required to bold a
separate public hearing on Its
application for interim authorization. If
the State declines to hold a hearIng, the
State shall state in its notice of
application that a public hearing will be
held by EPA If sufficient public interest
is shown. The State shall participate in
any public hearing held by EPA In lieu
of a State hearing (see I 123.4 e) (1)
end (2));
(0) IndIcate what type of authorization
the State will seek and briefly outline
the fundamental aspects of the State
program and, where Interim
authorization Is sought. of the
authorization plan: and
(7) Indicate who an interested member
of the public should contact with any
questions.
(c) If the proposed State program Is
substantially modified after the public
comment period provided in paragraph
(b)(4) of this section. the State shall.
prior to submitting It. program to the
Administrator, provide the opportunity
for further public comment In
accordance with the procedures of
paragraph (b) 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.
(d) After complying with the
requirements of (b) and (c) above the
State may submit, in accordance with
f 123.3. a proposed program to EPA for
approval. The program submission shall
Include copies of all written comments
received by the State. a transcript or
recording of any public hearing which
was held by the State and a
responsiveness summary which
Identifies the public participation
activities conducted, describes the
matter presented to the public.
at nimarize. significant comments
rec , Ived and responds to these
comments. including explanations on
what the State has done to
accommodate these comments.
(e) Within ninety days from the date
of receipt of a complete p am
submission. the MmInI.trator shall:
(1) Make a tentative determination as
to whether or not he expects to grant
authorization to the Stale program or
issue notice, In accordance with the
procedures of paragraph (b) of this
section, of a public hearing on the
State’s application for Interim
authorization. If the Administrator
Indicates that he may not approve the
State program he shall include a general
statement of hi. areas of concern. The
Administrator shall give notice of this
tentative determination In the Federal
Register and in accordance with
subparagraph (b)(1) of this Section
(2) Schedule a public hearing to be
held by EPA no earlier than 30 days
after notice of the tentative
determination of authorization or of a
public hearing on interim authorization,
provided that If public interest in a
hearing Is not expressed, the hearing
may be cancelled ifs statement to this
effect is Included In the public notice;
(3) Afford the public 30 days after the
notice to comment on the State’s
submission and the tentative
determination. and
(4) Note the availability of the State - -
submission for Inspection and copying
by the public.
(I) Within nInety days of the notice
given pursuant to paragraph (e) of this
section, the Administrator shall make a
final detenninatlon whether or not to
approve the State’s program taking into
account any comments submitted. The
Administrator shall give notice of this
final determination in the Federal
Register and in accordance with
subparagraph (bXi) of this section. If the
Administrator determines not to
approve the State program, the
notification shall include a concise
statement of the reasons for this
determination.
• 12341 C.1tsilsforwWm hs aL
In addition to the criteria set forth km
I 123.14. any aspect of the State program
which restricts, Impedes or operates as
a ban on the free movement across the
State border of hazardous wastes from
orb other States for treatment, storage
or disposal at facilities having
hazardous waste permits under an
approved State or Federal prcgam
constitutes grounds for withdrawal of
authorization. -
Subpart C-Additional R.qulremsntl
for State Underground Injection
Con
I 12 51 Pwpoas ced seeps .
(a) Thi, Subpart describes additional
substantive and procedural
requirements for State UIC program.
authorized under sections 1421 and 1422
of SDWA. In case of any Inconsi ,tency
between this Subpart and Subpart A,
this Subpart is controlling.
(b) Each State listed in the Federal
Register under section 1422(a) of SWDA
shall submit to the Administrator a
proposed State UIC program complying
with 123.3 of this Part within 270 days
of the date of promidgatlon of these
regulations or within 270 days of the
date of listing under section 1422(a) of
SDWA. whichever Is later. The
Aih , .lnI.trator may, for good cause,
extend the date for submission of a
proposed State UIC program for up to an
addItional 270 days.
(c) EPA will establish e UIC program
In any State which does not comply with
paragraph (bJ 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 requirements of
this Part.
(d) Any State which desires to operate
a mc program but which Is not listed by
the Administrator und3r section 1422(a)
of the SDWA may, nonetheless, make a
submission for program approval In
accordance with the requirements of
this Part In addition to meeting the
requirements of I 123.3 of this Part, such
a submission shall contain. petition
from the Governor of the State
requesting that the State be listed. -
(Comment States which are authorized to
administer the NPDES permit program under
sectIon 402 of CWA are ensouraged to y
on existing statutory authority, to the extent
possible. in developing a State UIC program.
Section 402(b)(1)(D) of CWA requires that
NPDES States hav, the authority “to Issue
permits which. . . control the disposal of
pollutant. into wells.” In many instances,
therefore. NPDES States will have existing
statutory authority to regulate well disposal
which satisfies the requirement. of the UIC
program. Note, however, that CWA exclude.
certain types of well iniections from the
definition of “pollutant,” If the State’s
statutory authority contain, a similar
exclusion It may need to be modified to
qualify for UIC program approval.
Unlisted States are also encouraged to seek
UIC approval prior to liating. If EPA
determines that the State’s program Is fully
approvable the State will be listed and
approved at the same tlme.l
fe) Wimenever a State mc program Is ‘
fully approved by EPA. the State
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Federal Register I Vol. 44, No. 116 / Thursday. June 14. 1079 I Proposed Rules
assumes primaiy enforcement authority
wider section 1422(b)(3) of SDWA. EPA
retalits primary enforcement
responsibility whenever the State
program Is disapproved In whole or In
part.
lComment State. with fully a .., ,d
programs have authority to enforce any
violation of the underground Injection control
program. States which have partially
approved programs have authority to enforce
say violation of the approved portion. In
either case, EPA retains authority to enforce
violation. of a State underground injection
control program. 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.j.
(f)(i) If a State can demonstrate that
there are no underground injections
within the State for one or more types of
injection wells subject to SDWA. the
State need not submit a program to
regulate such injections. However, the
State shall demonstrate adequate legal
authority to initiate control over such
injections should they occur in the
future.
(2) State UIC programs may be
approved in part or In full within the
discretion of the Administration. (See
I 122.3, DefinItion of ‘Partial
Authorization”).
1123.52 Prograr descrtpOon.
(a) in addition to the requirements of
I 123.4, the State’s program description
shall include:
(1) A State permit plan in accordance
with paragraph (b) of this section. This
permit plan satisfies the requirements of
I 123.4(b)(4);
(2) A detailed description of how the
State will implement the authorization
of underground injection by rule in
accordance with 122.35, Including the
procedures which will be followed in
promulgating such rules.
(3) a brief description and schedule
for the State’s program to establish and
maintain a current inventory of Injection
wells which are required to be permitted
under State law’
(4) A description of aquifers or parts
thereof which the State has determined
are underground sources of drinking
water under 122.33, a detailed
description of the aquifers, or parts
thereof, not designated. and a summary
of the data upon which the exemptions
are based.
(5) A description and schedule for the
State’s program to establish an
Inventory of Class V wells, to prohibit
Class IV wells and to assess the need
for a program to regulate Class V wells.
(b) The State Director s) aU develop a
permit plan which assures that all
Injection wplls within the State. except
those authorized by rule, ale issued a
UIC permit as expeditiously as possible
but no later than S years after approval
of the State UIC program. The permit
plan shall:
(1) Describe the State’s priorities for
Issuing permits Including the number of
permits by class of injectors which will
be issued each year over the first five
years of operation of the program;
(2) Describe bow the State will
implement the mechanical integrity
testing requirements of I 146.08
Including the frequency of testing that
will be required and the number of tests
that will be reviewed by the State each
year; and
(3) Describe how the State will notify
injectors of the requirement for a permit
and when to file permit applications (i.e.
by individual notice, rule, regulation, or
statute). The notice required by this
paragraph shall dearly establish
application filing deadlines as soon as
possible but not later than 4 years after
program approval for each injection well
which must receive a permit.
(olin determining the priorities
required by subparagraphs (b)(1) and
(b)(2) the Director shall consider the
following faqors:
(1) Injection wells known to be
contaminating underground sources of
drinking water;
(2) injection wells known to be
Injecting fluids containing toxic or
hazardous contaminants;
(3) Likelthood of contamination of
underground sources of drinking water
(4) Potentially affected population;
(5) Injection wells violating existing
State requirements;
(6) Coordination with the issuance of
permits required by other State or
Federal permits programs;
(7) Age and depth of the injecion•
well; and
18) Expiration dates of existing State
permits, If any.
1123.53 Attorney Oesis,’sl’s Statement.
In addition to the requirements of
O 123.5, the State’s Attorney General’s
Statement shall include an analysis of
the legal authority for and enforceability
of any rule prohibiting or authorizing
well Injections without a permit
I 123.54 RequIrement In obtains permit.
The State may authorize certain well
Injections by rule rather than by permit
Any authorization by rule shall comply
with 0 122.35.
I 123.55 u mpoas .
In accordance with 123.11, each
- State listed by the Administrator as
needing a U]C program (see 123.51(b))
shall submit to the Mininlotrator six
months after the date of promulgation of
these regulations, or six months after the
date of listing, whichever Is later, a
report describing the State’s progress In
developing aUIC program. If the
Administrator extends the time for
submission of a UIC program an
additional 270 days, pursuant to
I 123.51(b), the State shall submit a
second report six months after the first
report is due. The report shall be in a
manner and form prescribed by the
Administrator,
1123.56 Armusl report.
(a) Each approved State shall submit
each year a written report to the
Administrator (in a manner and form
prescribed by the Administrator)
consisting of:
(1) The noncompliance information
required under I 122,15(b) including a
summary of violations during the
preceding year
(2) A summary of enforcement actions
taken by the State Director Including
actions taken to enforce the ban on
Class IV wells;
(3) A detailed description of the
State’s implementation of its program;
(4) Any necessary changes to the
‘ -_program description and the permit plan
which more accurately reflect the State’s
progress in issuing permits;
(5) A list of all permits issued where
an alternative for tubing and packer has
been approved by the State Director
under 40 CFR * 146.12;
(8) An updated Inventory of active
underground Injection operations in the
State; and
(7) A summary of all surface water
and ground water contamination cases
which may have been caused or affected
by underground injection.
(b) In addition to the requirements of
paragraph (a) of thia section the State
Director shall provide the Administrator
within three months of the completion of
the first year of State operation of the
UIC program a supplemental report
containing information on remedial
actions taken by operator, of Class II
wells based upon these regulations
(including information on the results of
mechanical Integrity testing and on
evaluations of construction of nearby
wells located within the area of review).
The supplemental report required by
this paragraph may be submitted along
with the annual report If the time for
reporting under this paragraph coincides
with that of paragraph (a). -
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Federal Register Vol. 44, No. 118 I Thursday, June 14. 1979 / Proposed Rules
(CommenL EPA will lu g . further guidance
on the preparation of the “mld .course
s ,’ ent required endue this paisgr .ph.J
*123.57 Opeesflend mq smen
In addition to the requirements of
I 123.8 State UIC programs shall have
legal authority to Implement each of the
following provisions and shall be
ath I.tered In accordance with each of
the following provisions:
(a) Section 12L33—(Designatlou of
aquifers):
(b) Section 122.35—(Authorlzation by
rule):
(c) Section 122.30—(Autborlzatlon by
permit);
(d) Section 122.37—(Area permits);
(e) Section 122.38—(Corrective
action);
(I) Section 122.39—(Ceneral
prohibition against movement of fluids
into underground sources of drinking
water):
(g) Section 122.42—(Permlt terms):
(h) Section 122.43—(Reporting);
(I) Section 122.44—(Speclal
requirements for wells managing
hazardous wastes);
) Section 122.45—(Elimlnatlon ci
Class IV); and
(k) Section 122.48—(Invento1y of Class
V I.
0123.58 Program sppruv pioosu
(a) Prior to submitting an application
to the Administrator for approval of a
State UIC program, the State shell 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 s 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:
(2) Indicate when and where the
State’s proposed program submission
may be reviewed by the public;
(3) Indicate the cost of obtaining a
copy of the submlssloa
(4) ProvIde for a comment period of
not less than 30 days during which
interested persons can 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 publishedi
(6) Briefly outline the fundamental
aspects of the State UIC program, and
(7) Indicate whom an Interested
member of the public should contact for
further information.
(b) After complying with the -
requirements of paragraph (a) above any
State may submit a proposed UIC
program under section 1422 of SDWA
and 0123.5 of this Part to EPA for
approval In accordance with
• 123.3(d)(8), such a submission shall
Include a showing of compliance with
paragraph (a) of this section IncludIng a
responsiveness summary which
identifies the public participation
activities conducted, des n1bes the
matters presented to the public.
summarizes significant comments
received and responds to these
comments.
(C) Upon deterivthilng that a State’s
submission for UIC program approval Is
complete the Administrator shall Issue
public notice of the submission, provide
an opportunity to comment, and
schedule a public hearing. This notice
may specify that a public hearing will
not be held unless sufficient public
interest Is expressed.
(d) Within 90 days of the receipt of e
complete submission (as provided In
O 123.3) or material amendment thereto,
the Administrator shall by rule, either
fully approve, disapprove, or approve in
part the State’s UIC program.
I 123.59 Wlththu. ,,J uQN&
Approval of a State UIC program may
be withdrawn and a Federal program
established in Its place where the
Administrator determines, after holding
a public hearing, that the State program
Is not In compliance with the
requirements of SDWA end this Part
(a) Notice to Stole of Public Hearing.
If the Administrator has cause to believe
that a State Is not adm1nI terlng 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.
(b) Public Hearing, If the State has
not demonstrated Its compliance to the
satisfaction of the Administrator, within
30 days after notification, the
Administrator shall Inform the State
Director and schedule a public hearing
to discuss withdrawal of the State
program. This hearing shall be convened
not less than 60 days nor more than 75
days following the publication of the
notice of the bearing. Notice of the
hearing shall Identify the
Administrator’s concerns. All interested
parties shall be given opportunity to
present written and oral testimony on
the State’s at the public
hearing.
(c) Notice to State of Findings. Where
the ?‘ln’lnlsfrator finds after the public
hearing that the State is not in
compliance. be or she shall notify the
State by registered mall of the specific
defidencles In the State program and of
necessary remedial actions. WithIn 90
days of receipt of the above letter, the
State shall either carry out the required
remedial action or the Ailminlitrator
shall withdraw program approval If the
State carries out the remedial action or,
as a result of the hearing Is found to be
in compliance, the Administrator shall
so notify the State by registered mail
and conclude the withdrawal
proceedings.
0123.80 State UIC progrwn rsvlions
WithIn 270 days of any amendment to
Parts 122.123,124 or 146 which revises
or adds any requirement respecting an
approved State UIC program, the State
shall submit such Information as Is
specified by EPA showing that the State
UIC program meets the revised or added
requirement. Failure by the State to
comply with this provision Is cause for
disapproval or partial disapproval of the
State program.
Subpart D—Addttlonai Requirements
for Stale Programs Under the National
Pollutant Discharge Elimination
0123.71 Purpose and scope.
(a) This subpart describes additional
requirements for State NPDES programs
under sections 318. 402 and 405 of CWA.
A State NPDES program will not be
approved by the Administrator under
section 402 of CWA unless It has
authority to control the discharges
specified In sections 318 and 405(a) of
CWA. PermIt programs under sections
318 and 405 will not be approved
Independent of a section 402 permIt
program.
(b) These regulations are promulgated
under the authority of sections 304(l)
end 101(e) of CWA. and Implement the
requirements of those sections.
(c) No partial NPDES programs will be
approved by EPA. The State program
must regulate (except as provided In
I 122.83) all point source discharges of
pollutants. discharges Into aquaculture
projects and 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. NPDES authority may be
shared by two or more State agencies
but each agency must have Statewide
Jurisdiction over a class of activities.
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Federal Register I Vol. 44. No. 116’I Thursday, June 14. 1979 / Proposed Rules
Where more than one agency Is
responsible for issuing permits, each
agency must make a submission meeting
the requirements of f 123.3 before
formal EPA review will commence.
tC mIsenL Although these regulations
requite States to administer complete
programs, A recoguizes that, as a matter of
Federal law, a State may lack authority to
exercise jurisdiction over discharge. from
facilities on Indian lends. The lack of such
authority does not constitute grounds for
refusal to authorize State sdmlnlstratlon of.
program. However, to the extent that States
have authority to exercise jurisdiction, they
are required to do so.)
(d) After program approval EPA shall
retain jurisdiction over any permit.
(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.!! any permit
appeal, modification request or variance
request is not finally resolved when the
Federally issued permit expires, EPA
may. when ageed to by the State.
continue to retain jurisdiction until the
matter is resolved.
(e) In case of any inconsistency
between this Subpart and Subpart A,
this Subpart is controlling.
§ 123.72 Memorandum of Agreement
(a) In addition to the requirements of
f 123.6, the Memorandum of Agreement
between the Regional Administrator and
the State Director shall contain
provisions specifying the extent to
which EPA review of State-Issued
permits will be waived under sections
402 (d)(3). (e) or (I) of CWA. While the
Regional Administrator and the State
may agree to waive EPA review of
certain “classes or categories” or
permits, no waiver of review may be
granted for the following discharges:
(1) Discharges into the territorial sea
or contiguous zone;
(2) Discharges which may affect the
waters of a State other than the one in
which the discharge originates;
(3) Proposed general permits (see
* 122.82):
(4) Discharges from publicly owned
treatment works with a daily average
discharge exceeding 1 mIllion gallons
per day:
(5) Discharges of uncontaminated
cooling water with a daily average
discharge exceeding 500 million gallons
per day;
(6) Discharges from any major
discharger or from any discharger within
any of the 21 Industrial categories listed
In the Appendix A to Part 122
(7) Discharge. 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 on non-process wastewater
may be waived, regardless of flow, with
the prior concurrence of the EPA Deputy
Assistant Administrator for Water
Enforcement
(b) Whenever a waiver Is granted
under paragraph (a). a statement that
the regional Administrator retains the
right to terminate the waiver, In whole
or In part, at any time by sending the
Director written notice of termination.
The waiver shall not affect the duty of
the State to supply EPA with copies of
all permit applications, public notices
and final permits.
• 123.73 OperatIonal requirements.
• In addition to the requirements of
I 123.8. State NPDES program, shall
have legal authority to implement each
of the following provisions and meat be
administered in conformance with each
of the following provisions:
(a) Section 122.64 (e) and (I)—.
(Variance applications):
(b) Section 122.68—(Duration of
permits);
(c) Section 122.87’—(Prohlbltions);
(d) Section 122.68—(Condltions
applicable to all permits);
(e) Section 122.89--(Applicable
limitations, standards, probibitions and
conditions):
(I) Section 122.70.-4Calculation and
specification of effluent limitations and
standards);
(g) Section 122.71—(Recording/
reporting of monitoring results);
(h) Section 122. 2 (Non compliance
reporting);
(I) Section 122.73—(Modlflcations)
(j) Section 122.74.—(Permlt
termination);
(k) Section 122.75—(Disposal into
wells, etc.);
(1) Section 122.76—(Concentrated
animal feeding operations);
(m) Section 122.77—(Aquatic animal
production facilities);
(n) Section 122.78—(Aquaculture
projects);
(o) Section 122.79—(Separate storm
sewer.); —
- .(p) Section 122.80—(Silvicultuie);
(q) Section 122.82—(General Permits),
provided States are not required to
implement the general permit program
under I 122.82.1! a State chooses to
issue general permits, such action is
subject to the following conditions:
(1) Any general permit shall be issued
in accordance with I 122 . 52
(2) Prior to. or at the time of proposal
of any general permit, the State
Attorney General (or other legal officer
as appropriate, see I 123.5) shall certify
that the State has adequate legal
authority to issue and enforce general
(3) EPA shall have 90 days to review
any proposed general permit and
- (4) All general permits, except those
for separate storm sewers. may be
objected to on EPA’s behalf by the EPA
Deputy Assistant Administrator for
Water Enforcement. The State shall
transmit a copy of any such proposed
general permit to the EPA Deputy
Assistant Administrator for Water
Enforcement at the same time the
proposed permit is transmitted to the
enforcement Division Dfrector
(r) Section 124.58—(Fact sheets);
(a) Section 124.58—(Public notice):
(t) Section 124.59-4Comments from
government agencies); -
(u) Subparts A, a c, D, H, 1. J, I C and L
of Part 125; and
(v) 40 CFR Parts 129, 133 and
Subchapter N.
112374 Control of disposal of pollutants
Into wells.
State NPPES permit programs must
-. bpve authority to Issue permits to
.oontrol the disposal of pollutants into
wells. Such authority shall enable the
State Director to protect the public
health and welfare and to prevent the
pollution of ground and surface waters
by prohibiting well discharges or by
issuing permit. for such discharges with
appropriate permit terms and
conditions.
lComment’ State. which are authorized to
administer the NPDES permit program under
section 402 of CWA axe encouraged to rely
on existing statutory authority, to the extent
possible, in developing a State UIC program
under section 1422 of SDWA. Section
402(b)(1)(D) of CWA require. that NPDES
States have the authority “to issue permits
which. . .control the dIsposal of pollutants
Into wells.” In many Instances, therefore,
NPDFS States will have existing statutory
authority to regulate well disposal which
setisfies the requirement. of the UIC
program. Note, however, that CWA excludes
certain types of well injections from the
definition of “pollutant” U the State’s
statutory authority contains a similar
exclusion It may need to be modified to
qualify for UIC program approvaL)
* 123.71 Inspections monitoring, entry
end reporting .
Any State NPDES permit program
shall provide adequate authority to
Inspect, monitor, enter, and requirn
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34311
reports to at least the same extent as
required In section 308 of CWA.
• 1278 aiidussofF.Jsr
Upon receiving EPA appiivaL the
State agency administering a permit
program shall be sent any relevant
information which was collected by
EPA The Memorandum of Agreement
under I 123.6 shall provide for the
following. In such manner as the State
Director and the Regional Administrator
shell agree:
(a) Prompt transmission to the State
Director from the Regional
Administrator of copies of any pending
permit applications or any other
relevant information collected before
the approval of the State permit p ugrem
and not already in the possession of the
State Director. Where existing permits
are transferred to the State Director
(e.g.. for purposes of compliance
monitoring, enforcement or reisausnos).
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 Minh frator which the
Regional Administrator Identifies as
incomplete or otherwise deficient until
the State Director receive. Information
sufficient to correct the deficiency.
• 123.77 TT.nsaiselon of Infoeniatlon 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 the Regional Administrator In the
Memorandum of Agreement and not
Inconsistent with this Part. The
Memorandum of Agreement shall
provide for the following:
(1) Prompt transmission to the
Regional Administrator of a copy of any
complete permit applications received
by the State Director,
(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, including a copy of
each proposed or draft permit and any
terms, conditions, requirements, or
documents which are related to the
proposed or draft permit or which affect
the authorization of the proposed
permit. For proposed permits the State
program shall provide a period of time
(up to 90 days) in which the Regional
M”I” 4 hator or. where appropriate, the
EPA Deputy Assistant Administrator for
Water Enforcement (see I 122.73(q)).
may comment upon, object to, or make
recommendations with respect to the
proposed permit A copy of any
comment, objection or recommendation
shall be sent to the permit applicant by
the Regional Administrator. In the case
of general permits. EPA shall have 90
days to comment upon, object to or
make recommendations with respect to
-the proposed permit.
(Commeni Normally EPA review time is
substantially lees than 90 days. However.
EPA reserve, the light to take a full 90 days
to supply specific grounds for objection
where a general objection Is filed within the
review period of the Memorandum of
AgresmeuLj -
(3) Transmission to the Regional
Administrator of a copy of every Issued
permit following Issuance, along with
any and all tenne. conditions.
requirements, or documents which are
related to or affect the authorization of
the permit.
(b) The State program shall provide
for transmission by the State Director to
EPA of:
(1) NotIces from publicly owned
treatment works wider 122.08 and 40
CFR Part 403. upon request of the
Regional Admlnistmtoi’
(2)Acopy of any significant - -
comments presented in writing pursuant
to the public notice and a summary of
any significant comments presented at
any hearing on any draft permit th
(I) The Regional Administrator
requests this Informailon or
(ii) The proposed permit contains
requirements significantly different from
those contained In the tentative
determination and draft permit or
(ill) Significant comments adverse to
the tentative determination and draft
permit have been presented at the
hearing or in writing pursuant to the
public notice; and
(3) A quarterly noncompliance report
hi accordance with 1122.72.
(c) Within the time period agreed
upon In the Memorandum of Agreement.
(or 90 days in the case of proposed
- general permits), the Regional
Administrator (or, where appropriate.
the EPA Deputy Assistant Administrator
for Water Enforcement) pursuant to the
right to object provided In CWA and
• 123.78 may comment upon, object to,
or make recommendations on any
proposed permit. —
(d) The Regional Ailmintatrator may.
by agreement with the State Director in
the Memorandum of Agreement (see
* 123.72) waive the right to review,
object to. or comment upon proposed
permits for classes, types or sizes of
discharges within any category of point
sources, Including the right to receive
Information wider paragraphs (eX2) and
(b)(2) of this section.
(e) Any State permit program shall
keep such records and submit to the
Administrator such information as the
A dndnl.tretor mey reasonably require
to ascertain whether the State prv ram
complies with the requirements of CWA
orof this Part.
I 123.78 otlIsulmIs to PS ?OISd psimfts.
(a)(1) Within the period of time
provided under the Memorandum of
Agreement, the Regional Administrator
shall notify the State Director of any
objection to issuance of a proposed
permit (except as provided in
‘subparagraph (2) of this paragraph for
proposed general permits). This
notification shall set forth In writing the
general nature of the objection.
(2) Within 90 days following receipt of
the proposed permit which has been
objected to under subparagraph (1). or in
the case of general permits wIthin 90
dsys after receipt of the proposed
general permit, the Regional - -
Adm1ni frator. or. In the cale of general
permits other then for separate storm
sewers, the EPA Deputy Assistant
Administrator for Water Enforcement
shall also set forth in writing and
transm1t to the State Director.
fi) 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 In order to eliminate
the objection (including the effluent
limitations and conditions which the
permit would Include If it were Issued
by the Regional Administrator).
lCommenL Ths paragraph. In effect.
modifies any existing agreement between
EPA and the State which provides less than
90 days for EPA to supply the specific
grounds for an objection. However. wheie an
agreement provides for an EPA review period
of less than 00 days. EPA must files general
objection. in accordance with subparagraph
(s)(1) within the time specified In the
agreement This general objection will be
followed by a specific objection within the
gOday statutory period. This modification to
the MOA’s is necessary since the Clean
Water Act of 1977 now require. EPA to
provide detailed information concerning
acceptable permit terms and conditions. To
avoid possible confusion, MOA’s should be
changed to reflect this.)
(b) The Regional Administrator may
object to the issuance of a proposed
permit as being outside the guidelines
and requirements of CWA Thia
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Federal Register I Vol. 44. No. 116 I Thursday, June 14, 1979 I Proposed Rules
objection 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
ICommens: Under the provisions of this
section. a permit not requiring the
achievement of required effluent limitations
by applicable statutory deadlines shall be
subject to objection by the Regional
Administrator.)
(2) In the case of any 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 end the Regional
Administrator finds the reasons for
rejecting the recommendations aie
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 Regi6nal 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
(Comment The provisions of this
subparagraph appiy to determinations msds
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.
308 307.311403 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.
(c) Prior to notifying the State Director
of snob jection 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 I 123.77;
(2) May. If the lnfdrmatlon 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
I 123.77. It shall constitute an Interim
objecfion to the Issuance of the permit.
and the full period of titne 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
every Interested person an opportunity
to comment on the basis for an
objection;
(d) 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.
Following a request, the Regional
Administrator shall provide public
notice and holds public hearing In
accordance with the procedures of
• § 124.11 and 124.13 If warranted by
significant public Interest. A hearing
shall be held whenever requested by the
State or the interstate agency which
proposed the permit.
(e) A public hearing held under
paragraph (d) shall be conducted by an
EPA panel In an orderly and expeditious
manner. Members of this panel shall
Include the Regional Administrator, the
Assistant Administrator for
Enforcement, the General Counsel, or
their respective representatives.
(I) At the conduslon of the public
tearing 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,
(g) Where the Regional Administrator
has objected to a proposed permit under
this section. he or she may Issue the
permit in accordance with Parts 121.122
and 124 and any other guidelines and
requirements of CWA In the following
circumstances:
(1) If no public hearing Is held under
paragraph (d) and the State does not
resubmit a permit revised to meet the
Regional Administrator’s objection
wIthin 90 days of receipt of the
objection. or
(2) if a public hearing Is held under
paragraph (d) and the State does not
resubmit a permit revised to meet the
Regional Ajlminisfrator’s objection or
modified objection within 30 days of the
date of the Regional Administrator’s
notification under paragraph (I) of this
section.
lCoinment Where the time set ’oul In this
paragraph expires without accepibble State
action. exclusive authority to Issue the permit
passes to EPA.)
(h) In the case of proposed general
permits for discharges other than from
separate storm sewers substitute “EPA
Deputy Assistant Administrator for
Water Enforcement” for “Regional
Administrator” whenever It appears In
paragraphs (b), (c), (d), (f) and (g).
* 123.71 ProlilbItlan,
Any State permit program shall
provide that no permit shall be Issued
when the Regional Administrator has
objected In writing under section 402(d)
of CWA.
- 1)23.80 ComplIance evaluation programs.
In addition to the requirements of
I 123.9, State compliance evaluation ’
programs shall:
(a) Have procedures and ability for
(1) The maintenance of a
comprehensive Inventory of all sources
covered by NPDES permits ends
forecast of all reporting requirements to
the State agency;
(2) InItial screening (I.e., pre-
enfoscement evaluation) of all permit or
grant-related compliance Information to
Identify violations and to establish the
priority for further substantive technical
evaluation.
(3) Where warranted, a substantive
technical evaluation following the Initial
screening of Ml permit or grant-related
compliance Information to determine the
appropriate agency response;
(4) The maintenance of a management
Information system which supports the
compliance evaluation activities of this
Part.
(b) Provide for inspections of the
facilities of all major dlscbargers (see
Comment to 122.72) at least annually.
* 123.81 Continuing planning process .
Any State permit program shall have
an approved continuing planning
process under 40 CFR Parts 130 and 131
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34313
and ahaU assure that Its approved
planning process is at all times
consistent with CWA.
• 123.52 A board m rs
(a) Each State permit program 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.
(b) For the purposes of this section:
(1) “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.
(2) “SignIficant portion of Income”
shall mean 10 percent or more of gross
personal income for a calendar year.
excepI that It shall mean 50 percent or
more of gross personal Income for a
calendar year If the recipient Is over 00
years of age and Is receiving that
portion under retirement, pension, or
similar arrangement.
(3) “Permit holders or applicants for a
permit” shall not Include any
department or agency of a State
government, such as a Department of
Parks or a Department of Fish and
Wildlife.
(4) “Income” Includes retirement
benefits, consultant fees, and stock
dividends.
(c) For the purposes of this section.
Income is not received “directly or
Indirectly from permit holders or
applicants for a permit” where It is
derived from mutual fund payments, or
from other diversified Inveetments over
which the recipient does not know the
Identity of the primary sources of
Income.
1123.13 Approval proosu .
(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 .11 people on appropriate State
and EPA mailing lists and all permit
holders and applicants within the State.
This notice shall:
(1) Provide a comment period of not
lees 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
Rs glsio
(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
(0) 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
1123,3 the Administrator shall approve
or disapprove the program based on the
requirements of this Part and of CWA
end 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
explain. the Agency’. response to these
comments.
(c) If the Administrator approves the
State’s program beer she shall notify
the State and publish notice In the
Federal Register. EPA shall suspend the
Issuance of permits as of the date of
program approval.
fd) 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.
Subpart E—Addltlonat Requirements
for State Programs Under Section 404
of the Clean Water act
1123.11 Purpose and seeps.
(a) This Subpart descrIbes additional
requirements, both procedural and
substantive, for State permit programs
under aection 404 of the Clean Water
Act (regulating discharges of dredged or
fill material). Since EPA does not
operate the eectlon 404 program, there Is
no Subpart B to Part 122. AdditIonal
permit application and processing
requirements applicable to Slate
programs are set out in thIs Subpart.
(b) These regulations are promulgated
under the authority of sectIons 101(e)
end 501(a) of CWA.
(c) No partial section 404 programs
will be approved by EPA. Except as
provided In I 123.107. the State program
must regulate all discharges of dredged
or fill material into waters of the United
States (as delineated In CWA section
404(g)(1)) within ihe State’s Jurisdiction.
(d) After program approval the
Secretary shall retain jurisdiction over
any permits (including general permits)
which he or she has Issued unless
arrangements have been made with the
State In the Memorandum of Agreement
under 123.93 for the State to assume
responsibility for these permits.
Retention of jurisdiction shall Include
the processing of any permit appeals, or
modification requests; the conduct of
Inspections, and the receipt and review
of self.monltorlng reports. If any 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 jw ’Iedictlon until the
matter is resolved.
(CommenL Under section 404fh)(5J of
CWA, States are entitled. after program
approval, to administer and enforce general
permiti Issued by the Secretary. lithe State
chooses not to administer end enforce these
permits, the Secretary retains jurisdiction
until they expire.)
(a) In case of any InconsIstency
between this Subpart and Subpart A,
Part 122 or Part 124 thIs Subpart Is
controlling.
(I) Compliance with a permit Issued
by a State approved under this Part
during its term, including any activity
conducted In compliance with a genera)
permit. constitutes compliance for
purposes of sections 309 and 505 of
CWA. with sections 310,307 and 403,
except for any standard Imposed under
section 307(alis) of CWA.
4123.92 Memorandum of Agreemsnl
(a) In addition to the requirements of
I 123.e the Memorandum of Agreement
between the regional Administrator and
the State Director shall contain
provisions on the scope of the waivers
available under sectIons 404(k) or (I) of
CWA. 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:
(1) Discharges which may effect the
waters of a State other than one In
which the discharge originates;
(2) Major dlschargers;
tCommenc EPA will formulate guidance
defining what discharges are “major” trader
thi, paragraph. Comments are welcome.)
(3) Discharges into critical areas
including fish end wildlife sanctuaries,
National and historical monumenta,
wilderness areas and preserves,
ft
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Faders! Register I Vol. 44, No. 116/ Thursday, June 14, 1979 / Proposed Rules
National med State parka sad the
deelgoated mitical habitat of threatened
or endangered speciaL
ta s k to
tia. list 0 1 willed .!W C’ —’ts ore
(4) Proposed general psrmib or
(5) Disthaiges known or suspected to
contain to,dc pollutants In toxic
amounts or hazardous substance. In
reportable quantities. -
(b) Whenever a waiver Is granted
under paragraph (a), the Memorandum
of Agreement shall contain a statement
that the Regional Mmlnlifrator retains
the r ht to terminate the waiver, In
whole or in part, at any time by sending
the Director written notice of
termination. Notwithstanding any
waiver, the State shall continue to
supply EPA with copies of permit
applications, public notices and final
permits when requested by EPA.
Nothing in this Section shall dimIntel
the Administrator’s authority under
sectIon 404 (c) or the State’s obligation
under section 404(hXIXF) of CWA
1123.93 smorosthim oIAga.a .. .al nith
Ura Sssiebly .
In the case of section 404 programs
the State shall enter into a
Memorandum of Agreement with the
Secretai , which shall include:
(a) An identification of those waters
In which the Secretary will suspend the
Issuance of section 404 permIts
(pursuant to sections 401(g)(1) and (bX2)
of CWA) upon approval of the State
program by the AdinInlstrator
(b) Where an agreement Is reached,
procedures for joint processing of
permits for activities which require both
a section 404 permIt from the Stat, and
a sectionS cr10 permit from the
Secretary under the Rivers and Harbors
Act of 1899..
(c) An identification of those
Individual and general permits, If any,
Issued by the Secretary, the terms and
conditions of which the State Intends to
administer and enforce (including
Inspection, monitoring, and surveillance
responsibIlitIes) upon receiving approval
of its program and a plan for
transferring responsibility for these
permits to the State.
(Conimei*h many Instances States will
lack the authority to directly administer
permits issued by the Federal government
Howevet procedures may be established to
transfer responsibility for these permits. For
example, a State could, in one action. Issue
permits Identical to the outstanding Federal
permits which could be siiniiltanecusly
“revoked. An Individual Corps’ permit any be
transferred toe State only wher, the State
has the authority to administer and enforce
all terms and en- ’ .1 the Federal
(d) Procedures whereby the Secretary
will transfer to the Stats pa.wHeg section
404 persiti applications and other
relevant Information. as specified in
6123 . 17,
(e) A provision stating that the State
shall not Issue any section i permit for
a discharge whlth In the jndgt ent of
the Secretary after consultation with the
Secretary of the Department In which
the Coast Guard Is operating. would
substantially Impair anchorage or
nav gadon .
(fj Those or categories”, If
any, of proposed Stat. permits for which
the Secretary waives the right to review.
Ig) Other matters not Inconsistent
with this Part that the Secretary and the
State deem appropriate.
(Corn enC Where a. Stats
p.rinft program techidas coverage 01 those
traditionally navigable waIsts Ia which only
the Secrstaiy may Issue section 404 permIts
(by vittie of section lO4(g)(1) o 1CWA). the
State Is strongly encouraged to establish in
this MO? ., procedures for joint processing of
Federal and State permila, tadudlag joint
public notices and public hearing..)
123.14 AUoms Oa....ls 8I. .I..... , .l .
In additipa to the requirements of
I 123.5, the State Atlotwey General’s
Statement shall coataler
(a) An analysis of the State’s law
prohibiting the taking of private
property without Just compenseUo ,
Including any applicable Judicial
Intei pretallons, and assurance that this
will not adversely affect the successful
luiplenientation of the State’s regulation
of the diechargeof dredged orfihl
material.
(b) A certification that upon program
approval, the State will have authority
to prohibit, deny, restrict, or withdraw
the specification of disposal sites for the
discharge of dredged or fill material In
any defined area of those waters for
which the State receives seplian 404
authority, Indudlog
(1) AuthorIty to apply the celterla.
contained In 40CM Part 2*
(2) AuthorIty ( similar to EPA’.
authority under sectIon 40 4(c)) to
prohibit the discharge of dredged or fill
materla] Into areas where audt
discharges would have an un.or eptahle
adverse effect on municipal water
supplies, shellfish beds and fishery
areas (Including spawning and breading
areas], wildlife orrea’eationa] arean
l( naiei* The above suthorftyioprchlbft,
deny, restrict, or ulibdiaw the speciflostian
of disposal sites should aol be limited to
slthations where en application for. 404
permit has been mad ,, but .hsuld also
Include th. authority to designate areas
which will not be available for dspo.. ’ site
specIficatIon. ssdswibed In 40 R 230.I’(d).
Nothing In subparagraph (bXZ) In Istended to
limit the Administrator’s authority to take
similar acth,us untie, . Uon4S c ) CICWA.J
f 123.15 Frogran 4bkI,.L ,. . -
In addition to therequiremeetsof
I 123.4, the State’. program description
shall:
(a) Designate one agency to be
responsible for leering sectIon 404
permits,
(b) Describe how the State section 404
agency will Interact with other State and
lend agencies.
(c) Describe tire categories and sizes
of discharges of dredged or fill material
for which the State Director propose, to
Issue permits. For each category, the
following Information shall be given:
(I) An estimate of the number of
facilities within each catelgory which
must file for a permit and
( 2) An estimate of the number and
p rucut of activitie, within eech
catelory for which the State has already
Issued a State permit or equivalent
document regulating the discharge.
(d) Describe the specific best
management practice, requirements
proposed to be used to sat1s1 the
exemption provisions of section
404C 1X1) (E) of CWA for construction or
‘maintenance of farm roads, forest roads,
ot temporary roads for moving mining
equipment In accordance with I 123.107.
(a) A description of how the State will
coordinate It. enforcement strategy with
that of the Carps of Engineers and EPA.
I 123.15_InspectIons, monitoring, entry
raid npw
Any State permit program shall
provide adequate authority to Inspect
monitor, enter, and require reports to at
least the same extent as required hi
section 308 of CWA.
1123.17 ReceIpt end vu atFitissut
Upon receiving A approval, the
State agency ailminleterlega permit
program shall be sent any ralevani
information which was collected by the
Secretary. The Memorandum of
Agreement under 1123.93 shall provide
for the following. In such manner as the
State Director and the Secretary shall
agree
(a) Prompt transmission to the State
Director from the Secretary 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. Where
existing permits are transferred to the’
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Federal Register I Vol. 44. No. 116 I Thursdaiy. June 14. 1979 / Proposed Rules
34315
State Director (e.g., for purposes of
compliance monitoring, enforcement er
reissuance), relevant Information
includes support files for permit
issuance, compliance report. 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 Secretary which the Secretary baa
identified as incomplete or otherwise
deficient until the State Director
receives information sufficient to correct
the deficiency.
123.18 Tlansmluien of Infoonallen to
EPA.
(a) Each State agency administering a
section 404 permit program shall
transmit by certified mail to the
Regional Administrator, the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service copies of permit
programs forms and any other relevant
information to the extent and in the
manner agreed to by the Director and
the Regional Administrator in the
Memorandum of Agreement under
• 123.8. The Memorandum of Agreement
shall provide for the following:
(1) Prompt transmission to the
Regional Administrator of a copy of any
complete permit applications received
by the State Director. Where State law
requires preparation of an
environmental impact statement (EIS) or
similar process, such EIS or other
document shall accompany the permit
application when transmitted to the
Regional Administrator.
(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, Including a copy of
each proposed permit and any terms.
conditions, requirements, or document.
which are related to the proposed permit
- or which affect the authorization of the
proposed permit. The State program
shall provide:
( I) A period of time (up to 90 days) in
which the Regional Administrator may
comment upon, object to, or make
recommendations with respect to the
permit application or the proposed
permit. A copy of any comment,
objection or recommendation shall be
sent to the permit applicant by the
Regional Administrator.
lCommenL Except as provided In
paragraph (c) EPA review Is usually
restricted to permit applications; however, in
some cases the Agency may request the State
to prepare a proposed permit.)
( Ii) Procedures for action by the State
agency following a written objection by
the Regional Administrator under
section 404(j) of CWA.
(ill) For the transmission to the
Regional Aih,II&Dtrator of a copy of
every issued permit following issuance,
along with any and all terms, conditions,
requirements, or documents which are
related to or affect the authorization of
the permit.
(b) Within the time period agreed
upon thq Memorandum of Agreement.
the Regional A 4mtnI.frator. pursuant to
the right to object provided In CWA and
• 123.99, may comment upon, object to,
or make recommendations with respect
to any permit application or proposed
permit. The Regional AdmlnI.trator
shall notify the State Director of his or
her Intent to comment upon or obtect to
a permit application or a proposed /
permit within 30 days of receipt.
however, If the State proposes to issue a
permit which differs from that desoribed
In the permit application such approved
permit shall be transmitted for review In
accordance with this section and
• 123.99 and 123.110. The Regional
Administrator may notify the State that
there is no comment but reserve the
right to object based on any new
information brought out by the public
during the comment period or at a
bearing.
(c)(1) For discharges listed in
I 123.92(a), State section 404 programs
shall comply with the draft permit
requirements of I * 124.8 (a) and (b). --
124.8 and 124.9, as provided in I 123.8.
(2) For discharges not listed in
I 123.92(a), EPA and public review shall
be based on the permit application
unless EPA requests the State to prepare
a proposed permit under 123.99(c)(2).
For these discharges States need not
comply wIth 1 1124. 6(a) and (b), 124.8
and 124.9.
p123.18 Objections to pu..J1. .
(aJ(1) Within the period of time
provided under the Memorandum of
Agreement, the Regional Administrator
shall notify the State Director of any
objection to issuance of a permit. This
notification shall set forth in writing the
general nature of the objection.
(2) Within 90 days following receipt of
a permit application or the proposed
permit which has been objected to under
subparagraph (1), the Regional
Administrator shall also set forth in
writing and transmit to the State
Director:
-(I) A statement of the reason(s) 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 in order to eliminate
the objection (including the conditions
which the permit wouldinclude If it
were Issued by the Regional
MmInI.frator).
(3) When the State Director ban
received an objection to a permit
application or proposed permit under
this section but has taken the steps
required by the Regional Administrator
to eliminate the objection, the revised
permit shall be 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.
(b) Any objection under this section
must be based upon one or more of the
following grounds:
(1) The permit falls to apply, or to
ensure compliance with, any applicable
requirement of this Part;
(2) In the case of any proposed permit
for which notification to the
Administrator Is required under section
404(h)(1)(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;
(3) The procedures followed In
connection with formulations of the
proposed permit failed In a material
respect to comply with procedures
required by CWA. regulations and
guidelines 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 permit
application or 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 water quality
standards, required by CWA, by Part
230 guIdelines Issued under CWA, or by
the proposed permit;
(6) In the case of any proposed permit
with respect to which applicable
standards and limitations 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 any
regulations issued under CWA
(7) The Information contained In the
permit application Is insufficient to
judge compliance with 40 CFR Part 230
or
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Federal Register I Vol. 44. No. 116 1 Thursday, June 14, 1979 I Proposed Rules
rn Issuance of a permit would In any
other respect be outside the
requirements of sectf on 404 of CWA. or
regulations Implementing sectIon 404 of
CWA.
(c) 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 MmI, lsfratoi
(1) Shall consider all data transmitted
pursuant to 11123.98 and 123.110.
(2) Shall, If the Information provided
Is inadequate to determine whether the
permit application or proposed permit
meets the guidelines and requirements
of CWA. request the State Director to
transmit to the Regional Mmlnlafrator
the complete record of the permit
proceedings before the State, or any
portions of the record or other
information that the Regional
MninI frator determines are necessary
for review. This request shall be made
within thirty days of receipt of the State
submittal under 1123.98 It shall
constitute sq Intenm objection to the
Issuance of the permit. and the full
period of time specified In the
Memorandum of Agreement for the
Regional Mi i , 1sfrator’s review shall
recommence when the Regional
AtImtnL trator has received such record
or portions. Alternatively, the Regional
Administrator, within thirty days of
receipt may request the State Director to
supplement the application with
specified new Information (which may
Include a proposed permit or other
Information) and resubmit such
amended application to EPA and the
other Federal agencies under I 123.98
Such amended application (and/or
proposed permit) shall be considered a
new application for the purposes of
Federal and public review procedures
(ComajenL I II. anticipated that prupuied
permits will be requested only In exceptional
and/or cornplas caees.j
(3) May, In his other discretion, and
to the extent feasible within the period
of time available under the
Memorandum of Agreement. afford to
every interested person an opportunity
to comment on the basis for an
objecion
(d) Within 90 days of receipt by the
State Director of an objection by the
Regional Adminlattator. the State or any
Interested person may request that a
public hearing be held by the Regional
Adm niafrator on the objection.
Following a request, the Regional
Administrator shall provide public
notice and hold a public hearing In
accordance with the procedures of
- *0124.12 and 124.13 If warranted by
significant public Interest. A hearing
shall be held whenever requested by the
State which proposed the permit
(e) A public bearing held under
paragraph (d) shall be conducted by en
EPA panel In an orderly and expeditious
maimer. Members of thi, panel shall
Include the Regional Ai4mh I.frator. the
Assistant Administrator for
Enforcement, the General CounseL the
Assistant Admhrlstralor for Water and
Waste Management, or their respective
representatives.
(flAt the conclusion ci the public
bearh the Regional Adminlatrator shall
reaffirm the original objection, modify
the terms of the objection, or withdraw
the objection, and shall notify the State
of thi, decision.
fg) Where the Regional Administrator
has objected to a proposed permit under
this section. the Secretary may Issue the
permit In accordance with the guidelines
and regulations of CWA in the following
drcomstancen
(1) If no public hearing Is held under
paragraph (d) and the State does not
resubmit a permit revised to meet the
Regional AdmlnIstrator a objection
withinSOdays of receipt of the
objecllthu or
(2) Ifs public bearing Is held under
paragraph (d) and the State does not
resubmit a permit revised to meet the
Regional AdmInlstrator s objection or
modified objection wIthin 30 days of the
date of the Regional Adrninlstrato?s
‘hotlflcation under paragraph (1) of this
section .
(Ii) Poe purposes of this section any
draft permit prepared under I 124.6 shall
be considered a proposed permit.
• 123 PIa aaha .
No permit shall be Issued by the
Director in the following circumstances
a) Where the terms or conditions of
the permit do not comply with the
requirements of CWA. or regulations
and guidelines Implementing CWA,
Including the section 404(bfll)
envL .nmeirtal guIdelines. (40 CFR Part
230).
(b) Where the Regional Administrator
has objected to Issuance of the permit
under section 404 (J) of CWA and where
such objection has not been satisfied or
resolved.
(c) Where. In the judgment of the
Secretary of the Army acting through the
Chief of Engineers, anchorage and
navigation hi or’ on any of the waters of
the United States would be substantially
Impaired by the discharge.
(d) Where 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
iectltm 601(c) c i CWA, or by the State
Director, and where such discharge
would fall to comply with the DlrectoVs
actions under those authorities.
• 123.101 £nlrcaaisatamurtlly .
In addition to the requirements of
* 123.10, State section 404 programs
shall Include procedures which aisible
the State Director Immediately and
effectively to belt or eliminate any
unauthorized discharges of dredged or
fill material. including the authority to
do each of the followingi
(a) Issue a cease end desist or an
Interim protective order to airy person
responsible for, or Involved In an
unauthorized discharge.
(b) Sue In the appropriate State court
to immediately restrain any person
responsible for, or involved in an
unauthorized dIscharge. and
(c) Lnmedlately notify the Regional
Administrator by telephone, and by
subsequent written confirmation, of any
actual or threatened endangerment to
the public health and welfare resulting
from any discharge of dredged or fill
material.
* 123.102 Coa nuIngpImnIng wocs...
Any State permit program shall have
an approved continuing planning
process under 40 ( ‘R Parts 130 and 131
and shall assure that Its approved
plthining process Is at all times
consistent with CWA.
• 123.103 Agency board mon arsllip .
(a) Each State permit program shall
ensure that any board or body which
approves allot 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:
(b) For the purposes of this sectIon’
(1) “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 an
appeal.
(2) “SignIficant portion of income”
shall mean 10 percent or more of gross
personal Income for a calendar year,
except that it shall mean 50 percent or
more of gross personal Income for a
calendar year If the recipient Is over go
years of age and Is receIving that
portion under retirement. pension, or
similar arrangement
(3) ‘Permit holders or applicants for a
permit” shall not Include any
department or agency of a State
government, such as a Department of
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Federal Register I Vol. 44, No. 116 1 Thursday. June 14, 1979 I Proposed Rules
34317
Parks or a Department of Fish and
wildlife.
(4) “Income” Includes retirement
benefits, consultant fees, and stock
dividends.
(c) For the purposes of this section.
income Is not received “directly or
indirectly from permit holders or
applicants for a permit” where it Is
derived from mutual fund payments, or
from other diversified investments
which the recipient does not know the
identity of the primary sources of
income.
1123,104 Approv procou .
(a) WithIn 10 days of receipt of a State
section 404 program submission under
I 123.3 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) Alter determining that a State
program submission is complete. EPA
shall publish notice of the State’.
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 people on appropriate
State, EPA and Corps of Engineers
mailing lists and .11 permit holders and
applicants within the State. 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 bra 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 obta1nii g 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 120 days of the receipt of a
complete program submission under
I 123.3, the Administrator shall approve
or disapprove the program based on the
requirements of this Pail 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
coftducted, describes the matters
presented to the public, suinm iines
significant comments received and
explains the Agency’s response to these
comments.
(d) If the Administrator approves the
State’s section 404 program he or she
shall notify the State and the Secretary
and publish 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)(1) of CWA as Identified in
the Memorandum of Agreement
between the State and the Secretary
(see I 123.93).
(e) lithe 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
I 123.105 Apploebl. conditions end
-L
In addition to the requirements of
I 122.11, each permit issued by the State
Director shall provide for and ensure:
(a) That the discharge will be
conducted in compliance with the
section 401(b)(1) environmental
guIdelines (40 CFR Part 230), induding
conditions to ensure that the discharge
will be conducted in a manner which
mlnlrni,ea adverse Impact upon the
physical, chemical, and biological
integrity of the waters of the United
States.
(b) That If a toxic effluent standard or
prohibition for dredged material
(including any echedule of compliance
specified in such effluent standard or
prohibition) is established under section
307(a) of CWA for a toxic pollutant
present in the permittee’s discharge and
that standard oy prohibition is more
stringent than any limitation upon such
pollutant in the permit, the State
Director shall modify the permit to
conform to the toxic effluent standard or
prohibition and so notify the permittee.
(c) That the permit (other than general
permits) shall includes detailed sketch,
specifying location and boundaries of
the proposed discharge site including a
limitation of the quantity and type of
dredged or fill material which may be
discharged at that site. In open water
sites, a dellnation of the disposal site
shall be included.
(4) The State Director shall
Incorporate approved BMPs developed
by a Statewide CWA section
208(b)(4)(B) regulatory agency Into
permits as provided in the agreement
described In I 123.flO(aJ(1). Where
EMP ’s were developed for application in
a specific geographic area they shall
only be incorporated into permits for
that area. Where BMP ’s we less
stringent than the conditions which are
necessary to assure compliance with the
40 CFR Pert 230. the BMP ’s shall be
supplemented with additional and/or
more stringent conditions incorporated
Into the 404 permit as necessary.
1123.106 Q.nr p.rmIts.
(a) General permits may be Issued for
activities which are similar in nature,
will cause only minimal adverse
environmental effects when performed
separately, and will have only minimal
cumulative adverse affects on the
environment. If several activities we
grouped in one general permit their
similarity should be established when
the general permit is proposed.
(b) In addition to the conditions in
I 122.11 each general permit issued by
the State Director shall Include, where
applicable, the following conditions:
(1) Conditions specified in 1123.105
(a) and (b):
(2) The maximum quantity and type of
material that maybe discharged and the
maximum extent that an wee may be
modified by a single operation:
(3) A specification of the activities
covered by the general permit with
emphasis on unique factors, if present;
(4) Geographic area to which the
general permit epplies, including a dear
description of the type(s) of water(s)
(with specific references to wetlands) in
which the sctivity(ies) we permitted;
(5) BMP’s necessary to assure that
environmental effects will be minimal:
(6) lImitations on construction of any
sinictures including the following
factors:
(i) Size and type of structure(s)
permittedi
(II) Specifications for conservation
end environmental protection. including.
to the maximum extent practicable.
minimizing impairments to the
biological, chemical and physical
integrity of the waters of the United
States;
(ill) Site restoration after the structure
is completed.
(iv) Depth of fill permitted.
(7) Any other conditions deemed
necessary by the State Director.
(c) The State Director shall require
advance notification by persons or
agencies intending to discharge dredged
or fill material under a general permit,
including the name of the discharger, the
location, netufe and duration of the
discharge. Advance notification is
required unless the Regional
AdmInistrator concurs in willing that it
is unnecessary.
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34318
Federal Register I Vol. 44. No. 116 / Thursday. June 14, 1979 1 Proposed Rules
- lCommenL A envisions that the
Information required can be submitted on a
postcard. Submiulon of Information should
be coasthied sea notification not as an
application for a permiL This Info iTnadon can
sad to monitor the Individual and
cumulative environmental effects of the
activities authorized by the general permit
and provide a basis for determining whether
Its modification or termination is necessary.)
(d) After a general permit has bean
Issued, activities falling within the scope
of the permit do not require an
Individual permit unless the State
Director determines, on a case-by-case
basis, (hat the concerns of the aquatic
environment as expressed in 40 CFR
Part 230 Indicate the need for an
Individual permit.
(e) In addition to grounds in ‘
and 122.10, the State Director ma
modify, revoke and reissue or terminate
a general permit on the following
grounds:
(1)11 be determines that the effects of
the activities authorized by It are having
or will have a more than minimal
individual or cumulative adverse affect
on the environment or
(2) If he determine, that the permitted
activities are more appropriately
permitted by individual permits.
(f) The State Director shall provide
public notice of amendment or
termination of a general permit.
(g) The public notice for proposed
general permits, including proposed
amendments to general permits, shall
Include:
(1) Applicable statutory authority or
regulations;
(2) A copy of the proposed permit.
describing the activities and waters to
be covered.
- (3) A description of the estimated
environmental effects of the permit;
(4) Name and water quality standards
classification, if applicable, of the
receiving waters into which the
discharge is proposed, and a general
description and location of the site of
each proposed discharge;
(5) Any other available information
which may assist the public In
evaluating the likely environmental
affects of the proposed activity, if any.
upon the Integrity of the receiving
waters;
(6) Address and telephone number of
the place where Interested persons may
obtain further information
(7) Name and address of person to
whom comments should be addressed,
deadline for aubmiasion of comments;
and
(8) A statement of the right to request
a public hearing, end that a hearing Will
be held If there Is significant public
Interest.
I 3.107 AcUvIUss not requiring peridis .
(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 sectiom -
(1) 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.
- The construction of any canal, ditch,
dike or other waterway or structure
which drains or otherwise significantly
modifies a stream, lake, swamp, marsh,
bay or any other wetland or aquatic
area lying within the waters of the
United States Is not considered minor
drainage, and any discharge of dredged
or fill material Into the waters of the
United States Incidental to the
co istruction of any such structure or
waterway requires a permit.
The discharge of dredged or fill
material incidental to the management
or rotation of crops on lands In current
active use for farming is a normal
farming practice not requiring a permit
However, a permit Is required for any
discharge of dredged or fill materiel
made for the purpose of converting
waters of the United States to farming,
Iàrestry, or ranching uses (e.g.. discharge
of dredged or fill material to erect a
dike, dam, levee or other structure to
divert, reduce or eliminate the flow of
water into or through a wetland.
(2) maintenance, including emergency
reconstruction of recently damaged
pane of currently serviceable structures
such as dikes, dams, levees, grions,
riprap, breakwaters, causeways, bridge
abutments or approaches, and
transportation structures. This
exemption does not include -
maintenance that changes the character,
scope, or size specific to 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 of drainage ditches.
This particular provision does not apply
to the construction of drainage ditches.
Any discharge of dredged or fill material
incidental to the modification of a
stream bank or other shoreline area
within a water of the United States to
connect any such water to a water
Intake structure or water discharge
structure shall be required to have a
section 404 permit.
(4) Construction of temporery
sedimentation basins on a construction
site which does not Include placement of
fill material into waters of the United
Stales. The term “construction site”
refers to any site involving the erection
of buildings, roads, and other discrete
structures and the Installation of support
facilities necessary for construction and
utilization of such structures. The term
also includes any other land areas
which involve land-disturbing and
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) Construction or maintenance of
farm roads,Jorest roads, or temporary
roads for moving mining equipment.
where such roads are constructed and
maintained, In accordance with best
management prectices, 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. These best management
practices which must be apphed to
satisfy this provision shall include those
detailed best management practices
‘described In the State’s approved
program description pursuant to the
requirements of f 123.95(d), and shall
also include the following baseline
provisions:
fi) Logging In streams is prohibited,
(ii) Permanent roads (for farming or
forestry activities), temporary access
roads (for mining. forestry, or farm
purposes) and skid trails (for logging)
shall be held to the minimum feasible
nwnber, width and total length
consistent with the purpose of specific
farming, silvicultural or mining
operations;
(I 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 avoid
significant Increases In sediment runoff;
(iv) The road fill shall be bridged or
culs’erted to prevent the restriction of
expected high flows;
(v) The discharge shall not disrupt the
migration or other movement of those
species of aquatic life Inhabiting the
water body;
(vi) Discharges Into breeding and
nesting areas for migratory waterfowl,
spawning areas, and wetlands shall be’
avoided If practical alternatives exiall
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Federal Register I Vol. 44. No. 110 I Thursday, June 14, 1579 I Proposed Rules
34319
(vii) The discharge shall consist of
suitable material free from toxic
pollutants In toxic amounts;
(viii) The discharge shall not take, or
jeopardize the continued existance of. a
threatened or endangered species as
defined under the Endangered Species
Act, or adversely modify or destroy the
critical habitat of such species;
( lx) The fill shall be properly
maintained during and following
construction to prevent erosion and
other non.polnt sources of pollution:
(x) Soil losses shall be held close to
geological rates through careful
selection of logging and farming
methods, and through professional
access route management
(x l) A selective uneven ’aged
management cutting method should be
employed on slopes, near streams, or in
other sensitive areas unless the use of
other forest management options would
result in the same or less alteration of
the chemical, physical and biological
integrity of affected waters, Including
less sedimentation;
(xii) Vegetative disturbance shall be
kept to minimum.
(xlii) Borrow material shell be taken
from upland sources wherever feasible,
and sufficient zones of vegetation
adjacent to water bodies shall be
preserved to filter out debris and
sediment transported by runoff from
nearby harvest sites and to prevent
thermal pollution by preserving shade
cover of water bodies.
(xiv) The discharge shall not occur In
a component of the National Wild and
Scenic River System;
(xv) Upon removal of temporary
roads, any area of the waters of the
United States whose bottom elevation
has been altered by discharge of the
road bed fill shall be restored to Its
original elevation;
(xvi) The use of pesticides and
herbicides shall be avoided where
possible and shall not be used In water
bodies, including wetlandn, in
conjunction with road construction:
(xvii) All operators electing to qualify
for the exemption must be familiar with
and shall apply as appropriate to
specific practices, professional
management methods that are available
from technical assistance, training and
advice provided by the U.S. Forest
Service. State Foresters, the Soil
Conservation Service, the office of
surface mining, or by similar recognized
public sources of technical Information
and guidance.
(0) Any activity with respect to which
State has an approved program under
section 208(b)(4)(B) of CWA which
meets the requirements of
subparagraph. (B) and (C) of thai
section.
(b) If any discharge of dredged or fill
material resulting from the activities
listed In paragraphs (a) (1HB) contains
any toxic pollutant such discharge shall
be subject to any effluent st*nI.rd or
prohibition established for such toxic
pollutants pursuant to provisions of
section 307 of CWA, arid 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) (IHO) or to
any other activity must have a permit if
its purpose Is to bring 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 United States may be Impaired or the
reach of such waters reduced.
(Comment 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, and the
activity shall be required to hive a section
404 permit. Any discharge which converts
any ares of the waters of the United States to
dry land or which connects any such waters
to d 7 land through dikes, levees or other fills
shell be deemed to thereby reduce the reach
of the waters of the United States and must
have a section 404 permit. For example, a
permit will be required for the conversion of
• cypress swamp to some other use or the
conversion of lands from silviculturel to - , -
agncultural use when s discharge of dredged
or fill materials Is made Into waters of the
United States In conjunction with
construction of dikes. drainage ditches or
other works or structures used to effect such
conversion. The reach of the waters of the
United States shall not, however, be deemed
to be reduced by a discharge which elevates
the bottom of waters of the United States
without convening it to dry land.j
(d) Federal projects which qualify
under the criteria contained In section
404(r) of CWA are exempt from State
section 404 permit requirements.
I 123.104 PermIt .pplIsaBon ,
(a) Publicity and Preopplicotion
Consultation. The State Director is
encouraged to establish and 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. As part of this program, the
State Director Is encouraged to include
pre-appflcatlon consultation to assist
applicants in understanding the
requirements of 40 CFR Part 230 and In
fulfilling permit application
requirements.
(b) Application/or ParmiL Except
where an activity is authorized by a
general permit or is exempt from the
- permit requirement under 1123.107. 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.
(Comment State application forms are
subject to EPA review and approvsl see
I 123.3.3
(c) Content of Application. A complete
application shall Include:
(1) A complete description of the
• proposed activity Including (I) neceuaiy
drawings. sketches or plans (In cross
section and plan view) showing the
general and specific site location
Including site address and character of
all proposed activities; (II) size
relationship of the proposed discharge
to the size of the affected waters and
depth of water In the area relative to the
ordinary high water mark: (ill) the
purpose and Intended use of the
proposed activity, scheduling of the
activity and the names and addresses of
property owners adjacent to the site
and, if appropriate, the location and
dimensions of adjacent structures;
(2) 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.
(3) The use of any specific structures
to be erected on the fill.
(4) Information about the dischare
area needed to evaluate compliance
wIthin 40 CFR Part 230, including
documentation concerning the following
factors:
(I) A discussion of alternatives to the
proposed discharge, including
alternative disposal site, construction
methods, and methods of discharge, and
also Including reasons for rejecting the
alternatives;
(I I) Physical and chemical
characteristics of the discharge site
including the bottom and the receiving.
waten
(lii) Plants, fish, shellfish and wildlife
in the discharge site which may be
dependent on water quality and
quantity;
(Iv) Site characteristics of the affected
and adjacent areas that may require
protection or preservation;
(v) Uses of the diepolal area which
might affect human health and welfare;
and
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Federal Register I Vol. 44, No. 116 / Thursday, June 14, 1979 I Proposed Rules
(5) A desaiption of technologies or
management practices by which the
applicant proposes to , nInIml,e adverse
environmental effects of the discharge.
(CommenL ’ Guidelines for mtaLn4v g the
adverse effects of discharge. of dredged or
fill material are found In 40 CFR Part 230.1
(6) A list of the approvals required by
other Federal, Interstate. State or local
agencies for the work. Including all
approvals received or denials already
made.
(7) One original set or one good
quality reproducible set of drawings and
maps, as specified below;
(I) A vicinity map Identifying the map
or chart from which the vicinity map
was taken and showing the following:
(A) Location of the activity site
Including latitude and 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 closegt practicable access to
the site;
(E) Graphic scale: and
(F) North arrow.
(ii) A plan vIew of the proposed
activity showing the following:
(A) Existing shorelines;
(B) North arrow;
(C) Graphic or numerical scale;
(D) Ordinary high water mark of the
body of the water;
(E) Location of known wetlands;
(F) Delineation of dispoasl site;
(G) Waler depths around the project
(H) Principal dimensions of the
structure or work and extent of
encroachment beyond the applicable
high water line:
(I) Waterward dimension from an
existing permanent fixed structure or
object;
U) Distances to nearby Federal
projects, if applicable;
(K) Number of cubic yards, type of
material, method of handling, and
location of fill or spoil disposal area If
applicable. If spoil material is to be
placed in approved dumping grounds, a
separate map showing the location of
the dumping grounds should be
attached. The drawing must indicate
proposed retention levees, welts, and/or
other devices for retaining dredge or fill
materials; and
(L) Location of structures, If any, In
waters of the United States immediately
adjacent to the proposed activity,
including permit numbers, If known.
Identify purposes of all structures.
(II I) An elevation and/or section vIew
of proposed project showing the
following:
(A) Same water elevations as In the
plan view;
(B) Depth at waterward face of
proposed work, or If dredging Is
proposed, show dredging grade;
(C) Dimensions from applicable
ordinary high water mark for proposed
fill, float or pile supported platform.
Identify any structure to be erected
thereon;
(D) Graphic or numerical scale;
(B) Cross-section of excavation or fill.
Including approximate side slopee;
(F) Elevation of spoil areas: -
(C) Location of wetlands; and
(H) Delineation of disposal site.
(iv) Notes on all maps or drawings
submitted, including:
(A) A list of names of adjacent
property owners whose property also
adjoins the water an are not shown on
plan view;
(B) A statement of the purpose of
proposed activity;
(C) A statement of datum used and
elevation views. (Use mean low water.
mean lower low water, National Ocean
Survey Datum or National Geodetic
Vertical Datum of 1929); and
(D) A title block for each sheet
submitted Identifying the proposed
activity and containing the name of the
body of water; river mile, if applicable;
name of county, and State; names of
applicant or agent: number of the sheet
and the total number of sheets In set;
and date the drawing was prepared.
I 123.109 (Reserved).
9 123.110 CoordIns on rsq heensnIs.
(a) General Coordination. (1) The
State Director shall develop an
agreement with the agency designated
to administer a Statewide CWA section
208(b)(4) regulatory program. Such an
agreement shall include:
(I) A definition of the activities to be
regulated by each program:
(Ii) Arrangements for the agencies
providing an opportunity to comment on
perspective permits, BMP’s and other
relevant actions; and
(lii) Arrangements for Incorporating
BMP’s developed by the section
208(b)(4) program into section 404
permits, where 8pproprlate.
(Comment Where such a CWA section
205(b](4) program has been approved, no
permit shall be required for activities for
which the Administrator has approve BMPs
under such approved program except u
provided In I 123.107. UntIl such Section
208(b)(4J program has been approved by the
Administrator under CWA section
208(b)(4)(C), a person proposing to discharge
must obtain an individual permit or comply
with a general permlLj
(2) States are encouraged to receive
and use Information developed by the
Fish and Wildlife Service as part of the
National Inventory as It becomes
‘available.
(bJ Coordination with Other Federal
and Federal-St ote Review Process. To
assure coordination of a permit wIth
Federal and Federal-State water related
planning and review processes, the
Stale Director shall take the following
actions:
(1) Assure that the Impact of the
proposed discharge will be consistent
with the Wild and Scenic Rivers Act
where the proposed discharge could
affect portions of rivers designated wild.
recreational, scenic or under
consideration for such designation.
(2) Assure that the proposed discharge
will be consisitent with State water
quality management planning under
sections 208 and 303 of CWA.
(3) Consult the State agency(ies) with
jurisdiction over fish and wildlife
resow’ceB.
(Comment Proposed discharges which are
determined to be consistent with these
authorities in (1)-(4) will nevertheless be
denied section 404 permIts If such discharge
does not comply with other provisions of this
Pail and 40 CFR 230.)
‘The State Director shall furnish copies
of the permit application to agencies
consulted under this subsection.
(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 ac epted 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 doing.
(d) Review by Corps of Engineers,
Fish and Wildlife Service, cad Notionol
Marine Fisheries Service, (1) All permit
applications transmitted to the District
Engineer, to the U.S. Fish and Wildlife
Service, and to the National Marine
Fisheries Service shall be accompanied
by a statement that the agencies have 20
days from the date fo the receipt of the
permit application to notify EPA
whether they wish to comment. Fa1lur
toso notify EPA withIn 20 days may
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Federal Register I Vol. 44, No. 116 I Thursday. June 14, 1979 1 Proposed Rulee
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constitute a waiver of the right to
comment.
(2) In cases where the agencies have
notified the Regional Administrator that
they wish to comment, they should
submit their evaluations and comments
to the Regional Administrator wIthin 50
days of receipt of the permit application.
The agencies may request additional
time. If the Regional Admh Iutrator finds
that more time should be allowed he
will advise the agencies of the new
deadline. Written comments should
normally be submitted within the Initial
20 day period, or as soon as practicable
thereafter.
(3) If any of these agencies feels that
additional time Is necessary to complete
evaluation of any permit application, It
shall notify the Regional Administrator.
who may request an extension from the
State Director. If the State Director
aflow& additional time, the Regional
Administrator shall notify the affected
agencies.
(4) All comments from the U.S. Army
Corps of Engineers, the U.S. Fish and
Wildlife Service, and the National
Marine Fisheries Service will be
considered by the Regional
Administrator In accordance with
provisions of this section. If the Regional
Administrator does not adopt an
objection of any such agency, be shall
consult with the objecting agency(s).
The final decision to object or to require
permit conditions will be made by the
Regional Mmlntstrator.
5123.111 Emergency procedures.
In an emergency situation the
requirements for public notice and full
Federal review may be waived with the
concurrence of the Regional
Administrator. An emergency Is a
situation which would result In an
unacceptable hazard to life or severe
loss of property If corrective action
requiring a permit Is not undetaken
within a lime period less than the
normal time needed to process the
epplica Lion under required procedures
of this Part. Emergency permits shell
include conditions for restoration of the
disposal site.
5123.112 R.porung .
In accordance with the requirements
of 5 122.15, the State Director shall:
(a) Submit to the Regional
Adminlstratora quarterly report on the
last day of January. April. July, and
October, which shall Include:
(1) Any unauthorized discharges of
dredged or fill material subject to the
State’s jurisdiction and a description of
enforcement actions taken or
conIe iplated,
(2) A description of investigations
conducted to determine compliance with
the conditions and limitations of any
permits subject to the States
Jurlsdiction Indudirig any enforcement
actions taken against violators of permit
terms or conditions.
(b) Submit to the Regional
Administrator an annual report
assessing the cumulative Impacts of the
States permit program on the Integrity
of State-regulated waters. This annual
report may be appended to the October
quarterly report described In paragraph
(a) as agreed In the Memorandum of
Agreement, and 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 (e.g..
wetland&, rivers, lakes, and any 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)(i)
which were filled during the year (either
by authorized or unauthorized
activitIes);
(3) The number of acres of each of the
categories of waters in paragraph (bj(l)
which were protected under the Stats’s
authorities to prohibit. deny, restrict. or
withdraw the specification of disposal
sites for receiving dredged or fill
material, as required by 5123.94.
(4) The number and nature of permits.
modified, revoked and reissued or
terminated during the year;
(5] The number and nature of permits
Issued under emergency conditions, as
provided In 5123.111;
(5) The approximate number of
Individuals in the State discharging
dredged or fill material under general.
permits and an estimation of the
cumulative impacts of these permitted
activities.
PART 124—PROCEDURES FOR
DECISION MAKING
Subpart A—General Prp9rsm Requhsaiunts
Sec.
124.1 Purpose and scope.
124.2 DefinitIons.
124.3 Application for, permit
124.4 Consolidation of applications.
124$ Requests for modification or
revocation and reissuance or termination
of permits.
124.8 Draft permit
124.7 Other draft permits.
124.6 Statement of Basis.
124.9 Fact Sheet
124.10 Administrative record for EPA-issued
permits.
124.11 Public notice of permits.
124.12 PublIc comments and requests for
hearing ..
124.13 PublIc hearings.
124.14 Cross-examInation sod other
supplementary procedures.
124.15 Obligation to raise points and
provide information during the 1mmna,.t
period.
124.16 ReopenIng of comment period.
124.17 Issuance and effective date of pererlL
124.18 Stay . of contested permit terms.
124.19 Response to comments.
1243) Administrative record for final
permit where EPA Is the permitting
authority.
124.21 Appeal of RCRA. UIC and PSD
—ta .
124.22 AdditIons] time sfter service by malL
— Speilfo
to RCRA Permits
124.31 Public notice of receipt of application
and availability of summary.
Subpart C—Specific Procedures Applicable
to PSO Psonits
124.41 Procedures for small sources.
Subpart D—Speclf Ic Procedures ALJil .
to NPDES Permits
124.51 Purpose and scope.
124.52 Permits required on a caee.by.case
basis.
124.53 Stats certification.
124.54 Special provisIons fur State
certification sird macurrence of
applications fur sectIon 301(b)
modifications.
124.55 ect of Slats certification.
124.50 Fact sheets.
124.57 Requirements for NPD draft
permits incorporating section 301(h)
modifications.
124.58 Public notice.
124.59 Terms requested by the Corps of
Engineers and other governmental
agencies.
124.00 Issuance and effective date of
NPDES permits.
124.01 FInal environmental Impact
statement.
12402 AdmInistrative Record.
124.03 DecIsion on VarIances and
Modifications.
124.84 Procedures for variances and
modifications where EPA Is the permit
Issuing authority.
124.05 Appeals of modifications and
vmiancas.
124.60 Special procedure, for discharge Into
marine waters under sectIon 301 (h).
124.67 SpecIal procedures for decisions on
thermal variances (Section 316(e )).
Subpart E—Evldentlary Hsark g for EPA
Icausd NPDES 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 bearIng.
124.70 OblIgation to raise Issues and submit
evidence before a final permit Is Issued.
12477 NotIce of hearing
124.78 Sxparte communications.
124.70 AddItional parties and Issues.
12410 FilIng end service.
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Federal RegIster / Vol. 44. No. 116 I Thursday. June 14, 1979 / Proposed Rules
124.81 Aulgement of I.n.trstlvs Law
Judge.
124.82 ConsolIdation and severance.
124.83 Prebeai4ng conferences
124.84 Summary determination.
124.85 HearIng procedure.
124.80 MotIons.
124.0? Record of bearings.
12418 Proposed Sudlap of fact and
concluslon brief.
124.89 DecisIons.
124.80 Interlocutory appeaL
124.101 Appeal to the Administrator.
124.102 ApplicabIlity of Subpart!.
124.103 EPA headquarters approval of
stipulation or consent agreement
Subpart F—Non-Adversary Procedures toe
NPOES Initial Useneing
124.111 ApplIcability.
124.112 Relation of other subparts.
124.113 Public notice regarding draft permits
and permit conditions.
124.114 Request for hearing; Request to
participate In a hearing.
124.115 Effect of denial of. or absence of.
request for hearing.
124.110 Notice of bearing.
124.117 Request to participate In hearing.
124.118 SubmIssion of written comments on
draft permit.
124.119 PresidIng Officer.
124.120 Panel hearing.
124.121 OpportunIty for oross.examlnation.
124.122 Record for final permit
124.263 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 Final decision.
124.12? Finsl decision If there Is no review.
124.128 Delegation of Authozity Time
Limitations.
124.129 EPA headquarters approval of
stipulation or consent agreement
Authority. Resource Conservation and
Recovery Act. 42 U.S.C. 6001 ci seq.. Clean
Air Act 42 U.S.C 185? et seq.: and Clean
Water Act. 33 USC 1251 ci seq.
Subpart A—General Program
Requirements
f 124.1 Purpose and seep..
(a) This Part specifies the procedures
EPA will follow in Issuing and modifying
NPDES RCRA and UIC permits, and
permits to Implement the “prevention of
significant deterioration” (PSD)
provisions of the Clean Air Act
(b) This Part Is designed so that
permits for a given facility under two or
more of the listed programs can be
processed either separately or in
combination at the choice of the
permitting authority. This will allow
EPA to combine the processing of
permits where greater efficiency Is likely
to result, but will not bind the Agency to
follow that course in all cases.
Consolidation of permits can take place
either when the permit applications are
submitted or when draft of final permits
are tuned even where permit
applications have been submitted
separately. Permit applications may
recommend whether or not their permit
applications should be consolidated in
any given case.
(c) Subpart A specifies procedures
applicable to all three permit programs.
Subparts B-E provide procedures
specific to the RCRA, PSD and NPDES
permit program.. Subpart F provides a
procedure based on the Initial
licensing” provisions of the APA that
can be used Instead of Subparts A-E in
appropriate cas s.
(d) State administration of each of
RCRA. UIC, NPDES and 404 permit
programs can be approved by EPA
under Part 123. Only selected portions of
this Part apply to these approved State
program.. as listed In I 123.8. (In the
case of PSD programs. none of the
provisions of Part 124 has been made
applicable to States.) However. therels
a need for coordination In making
decisions when two or more such
permits will be Issued to an activity by
both EPA and by a State. Accordingly,
the regulations provide that applications
may be jointly processed, joint comment
periods and bearing. may be held, and
final permits may be drafted on a
cooperative basis whenever EPA and a
State agree to take such step. either In
general or in an Individual case. Such -
joint processing agreements may be
provided in the Memorandum of
Agreement developed under 123.8.
•124.2 Definitions.
The definitions in Part 122 apply to
this Part.
• 124.2 Appllcatlonforapennlt.
(a) Any person who requires a permit
under the RCRA, UIC. l’SD or NPDES
program shall complete, sign, and
submit an application for each permit
required to the Director In accordance
with 122.1 122.23. 122.25 122.36, and
122.64 or 123.105, or the applicable
requirements of 40 CFR 52.21, except as
provided in I 124.82 for NPDES general
permits or for ECRA permits by rule
under I 122.26.
(b) No permit shall be Issued until the
applicant has fully complied with the
governing application filing
requirements of this Part and Pail 122. If
an applicant falls or refuses to correct
deficiendes In the application, the
permit shall be denied or appropriate
enforcement actions may be taken under
the provisions of the appropriate Act.
These provisions Include sections 301
309.402(h) and 402(k) of the CWA.
section 30(26 of RCRA and sections 1423
and 1424 of SDWA.
(c) Permit applications are designed
to fit the normal situation for most
applicants. However, if the Director
determines that further information of a
site visit Is necessary in order to
evaluate the application completely and
accurately, the applicant shall be
notified and a date shall be scheduled
-for receipt of the requested Information
or scheduling of any necessary site vIsit.
(d) Permit applications must comply
with the signature and certification
requirements of I 122.5.
(eJ(1) Any application submitted bye
new source, new HWM facility or new
Injection well, and any Part B
application for an existing HWM facility
for an EPA-Issued permit shall be
reviewed for completeness by the
Director withIn 30 days of Its receipt.
Upon completing this review, the
Director shall Inform the applicant in
writing whether or not the application Is
complete and bat any required
additional Information. The
requirements of this paragraph shall not
preclude a Director from requesting
additional Information from the
applicant at a later time for purposes of
clarification, modification or
supplementation of previously
submitted data.
(2) In the event of such a deficiency.
the date of receipt of the application
.ahall be, for the purposes of this section.
the date on which the Director received
all relevant information.
I 124.4 ConsolIdation of applications
(a) Except as provided for RCRA
permit applications (Part A only) under
1122.23, any facility or activity requiring
a permit under two or more of the
RCRA, UIC or NPDES programs which
will be Issued entirely by EPA may
postpone the filing date for any
application for such a permit to
consolidate It with another application
which has a later filing date:
(1) For up to 180 days, provided:
.(1) The other application legally must
be filed by the later filing date and It
will be timely filed; and
(II) The permit applicant notifies the
Regional Administrator, In writing of
hlslher intent to postpone the filing
date; or
(2) For up to two and one half years.
provided the permit applicant obtains
the written permission of the Regional
Administrator toso consolidate the
permits.
(b) Except as jirovided for RCRA
permits applications (Part A only) under
1122.23. If an agreement between EPA
and an approved State so provides. any
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34323
facility that requires two or more of an
RCRA permit, a U]C permit or an
NPDES permit, one or more of which
will be Issued by EPA and one or more
of which will be Issued by an approved
State. may postpone the filing date for
any application for such a permit:
(1) For up to 180 days. In order to
consolidate It with another permit
application which legally must be filed
within that period and which will be
timely flied. If such person notifies the
Regional Administrator and the State
Director In wrltln of his/her Intent to
postpone the filing date; or
(2) With the written permission of
both the Regional Administrator and the
State Director, for up to two and one
half years In order to so consolidate It.
(c) When permit applications are filed
together under this section. neither the
Regional Administrator nor the State
Director Is required to issue the
corresponding draft permits under
124.6 at the same time. Conversely.
draft permits for a given facility under
the RCRA. UIC and NPDES programs
may be Issued at the same time even
where the permit applications were filed
at different times.
ICom,nents: (1) State. are encouraged to
consolidate applications, where they have
been approved by EPA to administer two or
more of the RCRA . UIC or NPD programs.
However they are not required to do so.
(2) This section does not apply to Air PSD
permits.)
1124.5 Requests for modification or
revocation and rsissuance or termination
of permits.
(a) If a permittee believes that a
modification to or revocation and
reissuance of a RCRA. UIC, PSD or
NPDES permit Is justified under * 122.9
or 122.10, (or section 52.21 In the case of
a PSD permit) he/she may request a
modification or revocation and
reissuance or termination from the
Directorin writing. The request shall set
forth all facts or reasons known to the
permittee which may be relevant to a
decision on the request.
(b) If the Director agrees that the
modification or revocation and
reissuance request under paragraph (a)
appears justified, he/she shall prepare
and formulate a draft permit under
1124.8 Incorporating the changes. The
Director may request additional
Information or. in appropriate cases.
may require the submission of a new
permit application.
(c) If the Regional Administrator, or
where appropriate, the State Director
decides that the modification or
revocation and relasuance request under
par8graph (a) does not appear justified,
be/she shall reply to the permittee
briefly setting forth In writing the
reasons for that decision.
(dl When a request for a modification
under this section Is panted and a new
draft permit Is formulated, only those
terms dependent on the request will be
reopened. All other aspects of the permit
will remain In force until the expiration
of the permit. If the permit is revoked
and reissued. the draft permit Is subject
to the same procedures asif the permit
bad expired and was being reissued.
(e) In the case of a proposed
modification to an exIsting 404 permit
Initiated by the permittee which
Involves any change In applicable
conditions or requirements under
* 122.11 or 123.105. such proposed
modification shall be treated ass permit
application and shall be processed in
accordance with all requirements of
* 123.113.
• 124.6 Draft permit.
(a) If a permit has been properly
applied for, or the Director, after
analyzing the Information concerning a
permit furnished under that Part and
any other relev!nJ Information. shall
tentatively decide whether to Issue or
deny the permiL If the tentative decision
Is to Issue the permit, a draft permit
shall be prepared containing at a
minimum the following Informatiom
(1) All conditions or requirements
specified in * 122.11;
(2) Fon
(I) RCRA permits, standards for
treatment, storage or disposal and other
permit terms and conditions which meet
the requirements of * 122.24:
(II) UIC permits, permit terms and
conditions that meet the requirements of
1 122.42;
(Ill) PSD permits, permit terms and
conditions that meet the requirements of
40 CFR 52.21:
(Iv) NPDES permits, effluent
limitations, standards, prohibitions and
conditions required under * 122.69,
Including where applicable any
conditions certified by a State agency
under I 124.55, and all variances or
other modifications that are to be
Included under I 124.64. All effluent
limitations and standards shall be
calculated and specified as required
under * 122.70;
(v) 404 permIts, permit terms and
conditions that meet the requirements of
I 123.105;
(3) All compliance schedules required
by I 122.12; and
(4) All monitoring requirements
required by I 122.14.
- (b) All draft permits formulated under
this section and 1124.7 shall be
accompanied by a statement of basis or
fact sheet under 0*124.8 orlZ4.9. In
addition. EPA.formulated draft permits
shall be based on the a 4 n1n1.trative
record required by I 124.9.
fCamment MdItlonal requirement, for
draft NPDES permits incorporating CWA
section 30 1(h) modIfication, are et forth In
I 124.57.)
(c) If the Regional Administrator
determines under 40 CFR Part 6.900 that
an Environmental Impact Statement
shall be prepared for an NPDES new
source, the public notice of the draft
permit under this section shall not be
given until a draft environmental impact
statement is issued.
(d) Consolidation of dmfl peanita. (1)
If a facility or activity will require a
permit under two or more of the RCRA.
LJIC. PSD or NPDES programs the
Regional Administrator may Issue
consolidated draft permits whether or
not the permits were applied for at the
same time, provided the condition. for
Issuance of each separate permit have
been met. Whenever consolidated draft
permits are Issued the statements of
basis (see I 124.8) or fact sheets (see
I 124.9), administratIve records (see
I 124.10), public comment periods (see
I 124.11) and any public hearings for
those permits shall also be consolidated.
However, the final permits need not all
be issued together If in the judgment of
the Regional Administrator, joint
processing would result In unreasonable
delay In the Issuance of one or more
permits. -
(2) If a facility or activity will require
two or more of a RCRA, UIC. PSD or
NPDES permit, one or more of which Is
to be Issued by EPA and one or more of
which Is to be issued by an approved
State. the Regional Administrator and
the State Director(s) may agree to issue
the draft permits at the same time
whether or not they were applied for at
the same time. Whenever two or more
draft permits are Issued at the same
time, administrative records (for EPA-
Issued permits only) should be
consolidated for highly significant
permits and any public hearings for
those permits shall also be consolidated.
However, the final permits need not all
be Issued together If. In the judgment of
eIther the Regional Administrator or the
State Director, such consolIdation would
result In unreasonable delay In the
Issuance of one or more permits.
(3) The Director shall not, without the
written consent of the permit applicant.
consolidate Issuance of a PSD permit
with Issuance of any other permit under
this section when to do so would delay
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Federal Register I Vol. 44, No. 116 I Thursday, June 14, 1979 / Proposed Rules
Issuance of the PSD permit more than
one year from the date of application.
(4) Whenever draft permits Including
an NPDES permit are consolidated
under this subsection. and the Regional
Administrator elects to make the special
“Initial licensing” provisions of Subpart
F applicable to the NPDES permit, any
permit. with which that NPDES permit
was consolidated shall likewise be
processed under Subpart F.
(a) The decision to deny a permit
which has been applied for shall be
made through the same procedures as
any other decision on a permit. A draft
notice of Intent to deny will be Issued
and made available for public comment,
accompanied by a fact sheet or
statement of basis. A response to
comment. and final decision will then
be prepared. Appropriate appeals may
then be made under this Part.
• 124.7 Other *sf I permits.
(a) The Director may formulate a draft
permit or notice concerning a RCRA.
UIC. PSD or NPDES permit without
having receIved an application, as
provided In this section.
(1) If the Director decides that a
permit should be:
(i) Modified or revoked and reissued
under 122.8. the Director shall
formulate a draft permit containing the
provisions required under I 124.8.
(ii) Terminated under 122.10, the
Director shall Issue a notice of Intent to
terminate the permit.
(2) NPDES general permits under
• 122.82 shall be proposed In draft form.
shall contain the designation of the
General Permit Program Area (under
I 122.82(a)(2)), and, except for general
permits for storm sewers, shall be sent
to the EPA Deputy Assistant
Administrator for Water Enforcement
for concurrence or objection during the
public comment period. No final permit
shall be issued If the EPA Deputy
Assistant Administrator for Water
Enforcement objects to the general
permit. Such objections must be made
wIthin 80 days from the public notice for
the draft general permit under
* 124.58(b).
(b) Any draft permit formulated under
paragraph (a) shall be based on the
administrative record as defined In
I 124.10 and I 124.82 (for NPDES permits
only).
lConimene Public comment and hearings
under I 124.12 and 124.13 pertaIning to
permit modification. will be limited to the
terms of the proposed modification)
(c) In the case of a proposed
modification to an existing 404 permIt
Initiated by the State Director which
Involves any change In applicable
conditions or requirements coder
11122.11 or 123.105, such proposed
modification shall be treated as a permit
application and shall be processed In
accordance with all requirements of
* 123.123.
• 124.8 Slat.m SI 11.1..
A statement of basis shall be prepared
for every draft permit formulated under
I 124.6 for which. fact sheet Is not
required under 124J. The statement of
basis shall briefly descaibe the
derivation of the terms sad conditions of
• the permit and the reasons for them. The
statement of basis shall be part of the
administrative record and shall be sent
to the applicant and to interested State
and Federal agencies and to other
members of the public on request.
* 124.9 Fact Sliest
(a) A fact sheet shall be prepared for
every draft permit for a major HWM
facility. UIC facility, or NPD
discharger, for every NPDES general
permit under 1122.82 and NPDES draft
permit that Incorporates a variance or
modification, 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 major facts and the
significant factual, legal, methodological
and policy questions considered in
setting the terms of the draft permit. The
Director shall send this fact sheet to the
applicant, to Interested State and
Federal agencies, and to any other
person on request. Any of these persons
may waive their right to receive a fact
sheet for any classes and categories of
—5.
(b) The fact sheet shall Include, where
applicable:
(1) A brief description of the type of -
facility or activity which 1. proposed to
be permitted;
(2) The type and quantity of wastes.
pollutants or fluids which are proposed
to be treated, stored, disposed oL
discharged, emitted or injected;
(3) A brief summary of the basis for
the proposed permit condition.
Induding reference to applicable
statutory or regulatory provisions and.
for EPA permits, appropriate supporting
references to the administrative record
required by 1124.10, and I 124.62 (for
NPDES permits only);
(4) Reasons why any requested
variances, modifications, or alternatives
to required standards do or do not
appear justified;
(5) A description of the procedures for
deciding on the final permit Including:
(I) The beginning and “ “ding dates of
the comment period required under
1124.12 and the address where
comment. will be receIved;
(11) Procedures for requesting a
hearing and the nature of that hearing
and
(Ill) Any other procedures by which
the public may participate In th
formulation of the final permit.
(6) Name and telephone number of a
person to contact for additional
Information.
(C) “Major permit” means:
(1) In the case of an NPDES permit.
any permit for dischargers on the state-
by-state list of major diachargers;
(2) in the case of a UIC permit, any
permit to an underground Injection well
Identified as a major permit In EPA’s
annual operating guidance for EPA
Regional Offloes and States; and
(3) In the case of a RCRA permit, a
permit for a major HWM fadhty as
defined In *1 2 2.3 (b).
• 124,10 Adlethilsb’tlve rsco.d to, EPA-
tensed p e ,,.Jt. .
(a) Decisions by the Regional
Administrator to formulate a draft
permit under I 124.8 shall be made only
on the basis of the administrative record
defined In this section.
(bJ The record for formulating a draft
permit under I 124.6 shall consist of:
/ (1) The Initial application and any
‘supporting data furnished by the
applicant;
(2) The draft permit:
(3) The statement of basis under
O 124.8 or any fact sheet under I 124.9:
(4) All documents cited in the fact
sheet or statement of basis, unless they
are published materials which are
generally available, (in which case they
should be specifically referenced);
(5) Other documents contained In the
supporting file for the permit. including
correspondence, telephone and meeting
memoranda, compliance reports, etc.
(8) For NPDES permits only, any
environmental assessment,
Environmental Impact Statement,
negative declaration, or environmental
Impact appraisal that may have been
prepared.
(c) The record for formu1a ng a draft
permit under I 124.7 shall consist of the
draft permit, the statement of basis
required by I 124.8 or fact sheet
prepared under I 124.9 and all
documents cited in the fact sheet or the
statement of basis.
(d) Materiel readily available at the
Issuing Regional Office or published
material whIch l generally available,
and which is Included In the
administrative record under the
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34325
standards of paragraphs (b) and (c),
does not need to be physically Included
In the same file as the rest of the record
as long as It I . specifically referenced In
the statement of basis or the fact sheet.
ICommente: (1) The administreilve record
for draft permits under this section will
comprise the bulk of the material for the final
administrative record.
(2) See also 124.02 for additional NPDES
administrative record requlrsmsnt ..J
1124.11 Puaiicnoticsetpsrmits.
(a) Notices shall be circulated isa
manner designed to Inform Interested
persons of a hearing or determination
dealing with permit denial or Issuance.
Notice of a draft permit shall allow at
least 30 days for public comments and
notice of a bearing shall be given 30
days before the hearing.
(Comment In the discretion of the Director.
this could also Include press releases or the
use of sny other forum or medium to elicit
public participation.)
(b) Notice of the formulation of any
draft permit formulated under I 124.6
and notice of an Initial new source
determination under 124.81. notice of
receipt of a section 404 application and
notice of all hearings required by
I 124.13 shall be given by the Directon
(Comment’ Notice of receipt of a section
404 permIt application Is required only where
no draft permit Is formulated See I 123. 58(c).)
(1) By mailing a copy of the notice to:
(I) The applicant;
(Ii) Any other agency which has
Issued or will issue a RCRA. UIC. PSD
or NPDES permit to the activity In
question;
(ill) To any State agency responsible
for plan development under sections
208(b)(2) or 303(c) of the Clean Water
Act;
(Iv) For NPDES permits only, to the
U.S. Army Corps of Engineers, to
Federal and State agencies with
jurildiction over fish, shellfish and
- wildlife resources and to other
appropriate governmental authorities
Including any affected state;
(v) For 404 permits only:
(A) To 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;
(B) To any adjacent property owner
(C) To any State agency(ies)
responsible for administering water
quality, fish, shellfish and wildlife
resources and State Section 404
programs in the affected state. If the
proposed discharge may effect the
waters of any State(s) other than the
State In which the work Is to be done;
(2) Dy mailing a copy of the notice to
any person on a mailing list developed;
(I) From those who request to be In the
list
(II) By soliciting persons for “area
lists” from participants in past permit
proceedings In that area; and
(Ill) By notifying the public as to the
availability of such notices through
periodic press publication and notices In
such publications as Regional and State
funded newsletters, environmental
bulletins, or State Law Journals. The
mailing list may be updated from time to
time by requesting an Indication of
continued Interest In being on the
mailing list and
(3) By any of the following methods:
(I) By application of a notice meeting
the requirements of paragraph (c) In a
daily or weekly newsletter within the
area affected by the facility or activity:
(II) By posting a copy of the
Information required under paragraphs
(c) and (d) at the principal office of the
municipality or political subdivision
affected by the facility or activity, and
by posting a copy at the United States
Post Office serving those premise.;
(ill) By any other method reasonably
calculated to give actual notice of the
action In question to the persons
potentially affected by I L or
(iv) Where the program Is being
administered by an approved State, In
any other manner constituting legal
notice to the public under Stats law.
(4) Any person otherwise entitled to
receive notice under subparagraph (1) of
this paragraph may waive their right to
receive notice for any classes and
categories of permits.
(C) All public notices Issued under this
Part shall contain the following
Information:
(1) Name and address of the office
processing the application or conducting
the hearing;
(2) Name and location of the facility
or activity to be permitted, except In the
case of NPDES general permit. under
I 122.82;
(3) Name of the person, and address
and telephone number where Interested
persons may obtain further Information,
Including copies of the draft permit and
statement of basis or fact sheet or, for
section 404 permIts only, copies of the
application and proposed permit. If
required.
(4) For EPA.issued permits, the
location of the administrative recor4,
required by II 124.10 and 124.62 (for
NPDES permits only) and the times at
which It will be open for public
‘inspection:
(5) For NPDES permits only: (I) a
general description of the location of
each existing or proposed discharge
point. Including the receiving water.
(II) If the applicant has submitted data
and Information In accordance with
CWA section 316(a) for a thermal
variance, a statement to that effect. The
notice shall state that all data submitted
by the application are available as part
of the administrative record for public
Inspection during office hours. The
notice shall also state that any person
stay comment In writing under I 124.12
upon the applicant’s desired alternative
effluent limitations arid may also
request a hearing; and
(0) For 404 permits only, applicable
statutory authority and regulations;
(7) Any additional Information
considered necessary or proper.
(d) Public notice mailed to persons
Identified in paragraphs (b)(i) and (b)(2)
shall contain the information required
by paragraph (c) and the following
Information:
(1) A brief description of the
applicant’s activities or operations that
are involved In the facility or activity
described In the application and a
statement whether the application
pertains to a new or existing facility or
activity.
(2) A summary of major terms of the
draft permit
(3) Brief description of the comment
procedures required by I 124.12. and the
time and place of any public hearing
that will be held; and
(4) For NPDES permits only, If the
discharge is from a new source, a
statement of the Regional
Administrator’s decision as to whether
an Environmental Impact Statement will
be or has been prepared; and
(5) For 404 permIts only:
(i) The purpose of the proposed
activity and intended use, Including a
description of the type of structures, if
any, to be erected, and a description of
the type, composition and quantity of
materials to be changed and means oI
conveyance; and any proposed
conditions and limitations on the
discharge;
(II) Name and water quality standards
classification, If applicable, of the
receiving waters Into which the
discharge Is proposed, and a general
description and location of the site of
each proposed discharge.
(Iii) Any other available Information
which may assist the public In
evaluating the likely environmental
Impact of the proposed activity, If any,
upon the Integrity of the receiving
waters.
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Federal Register / Vol. 44 No. 110 / Thursday, tune 14. 1979 / Proposed Rules
(8) A statement of the light to request
a public bearing.
(7’) Any other procedures by which the
public may participate In the
formulation of the final permit.
(e) In addition to the Information
required wider paragraphs (c) and (d)
above, the public notice of a public
bearing held under f 124.13 shall contain
the following Information;
(1) Reference to the date of previous
public notice relating to the permits
(2) Date. time and place of the
hearing and
(3) hi the case of mailed public notice.
a brief description of the nature and ’
purpose of the hearing, Including the
applicable rules and procedures.
(4) For 404 permits only a summary of
major Issues raised to date during the
public comment period.
(f) Public notice Issued under this
section may describe more than one
permit and more than one permitted
activity. No public notice shall be given
In cases where a request for permit
“modification Is denied, but written
notice of that denial shall be given the
person requesting such modification.
Public notice of the draft permit may be
issued at the same lime public notice of
a hearing Is given.
• 124.12 Pitlc comments and requests
tar hearings.
(a) During the public comment period
provided under f 124.11(a). any
interested persons may submit written
comments and may request a public
heaiing A request for a public hearing
shall be In wilting and shall state the
nature of the Issues proposed to be
raised in the hearing All comments
shall be considered in preparing the
final permit and shall be responded to
as provided In f 124.19.
(b) Written comments may be
submittedi (I) For all permits except
those section 404 permIts for which no
draft permit is required (see * 123.98(c)).
on the draft permit and accompanying
statement of basis or fact sheet or other
portions of the admlnisfrative record;
(II) For 404 permIts for which no draft
permit is required (see § 123.98(c)). on
the permit application or amended
application (Including proposed permit
where required).
(c) Where the Director fli dss
significant degree of public Interest in a
draft permit or permits, he/she shall
hold a public hearing tp consider the
permit or permits. Public notice of that
hearing shall be given as specified in
• 124.11. Where a state authority other
than the Director Is required under State
law Ic hold hearings, on permits, it
rathee then the Director may bold
hearings wider this paragraph.
(d) Any person may sebmit oral or
written statements at hearings held
nuder this section. Reasonable limits
may be set upon the time allowed for
oral statements.
O 124.13 P, Sc lianbigs
(a)(1) When a public hearing will be
held under 124.13 and EPA Is the
permitting authority, the Regional
Administrator shell designate a
Presiding Officer for the hearing who
shall be respoasthie for Its scheduling
end orderly conduct The Regional
Administrator may also designate an
EPA panel to take pail in the hearing.
The membership of the panel In general
should consist of EPA employees having
special expertise In an area related to
the Issues to be addressed at the
hearing. For this reason, the membership
of the panel may change as different
Issues are presented for discussion. The
Regional MmtniRfrator may also
designate EPA employees who will not
or possibly will not serve on the healing
panel to provide staff support to the
panel as needed.
(2) Joint EPA-State hearings on
permits subject to this Part one or more
of which will be issued by EPA and one
or more of which will be Issued by an
approved state, may be held either as
provided In 124.4 or otherwise by
agreement In Individual cases. Where -
joint hearings are held with a State
agency, the Presiding Officer and the
panel members may be employees of
either EPA or the State. The Presiding
Officer, any panel members and any
panel support staff shall be chosen by
agreement of EPA and the State.
(bJ At any hearing under this section.
any person may submit oral or written
statements and data concerning the
proposed permit. Reasonable limits may
be set upon the time allowed for oral
statements, and the submission of
statements In wilting may be required
(c) The Presiding Officer and any
panel member may question any person
particIpating in the healing. Persons in
the hearing audience. Including other
hearing participants, may submit written
questions to the Presiding Officer for the
Presiding Officer to ask the participants.
and the Presiding Officer may, after
consultation with the panel, and at his!
her sole discretion, ask these questions,
or allow a member of the panel to asic
them.
(H Participants In the hearing shall
submit for the hearing record such
additional material as the hearing panel
may request withIn 10 days following
the close of the hearing, or such other
period of time as Is ordered bythe
Presiding Officer. Participants may also
submit additional Information for the
hearing record on their own accord
within lOdaygefter the closeof the
hearing.
(a) The hearing shall be either
stenographically reported verbatim or
tape recorded.
•124.14 osseaandnabon end other
supplementary procedures
(a) No cross’examlnatlon shall be
permitted at any bearing held under
• 124.13. However, any participant In
such a hearing may submit a request for
cross-examination after the hearing has
closed. The request shall be received by
EPA within one week after a full
transcript of the panel hearing becomes
available and shall specify:
(1) The disputed Issue(s) of material
fact regarding which crose.examinatioii
Is requested. 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 the light of
the record made thus far, and the extent
to which and why they can reasonably
be considered material to the decision
on the application for modification. and
(2) The person(s) a participant desired
to cross-examine, and an estimate of the
time necessary. This shall Include a
statement as to why the cross.
‘,examlnatton requested can be expected
to result In resolving the Issue of
material fact Involved.
(b) As expeditiously as practicable
after receipt of all requests for cross-
examination under paragraph (a) of this
section, the Presiding Officer, after
consultation with the hearing panel.
shall issue an order either granting or
denying each such request, which shall
be disseminated to all persons
requesting cross-examination and all
persons to be cross-examined. If any
request for cross-examination is
granted, the order shall specify:
(1) The Issues on which cross.
examination action Is granted;
(2) The persons to be cross-examined
on each issue;
(3) The persons allowed to conduct
cross-exa m ination
(4) TIme limits as appropriate for the
examination of witnesses by each cross.
examlner and
(5) The date, time and place of the
supplementary hearing where cross-
examination shall take place.
(c) No later than the time set for
requesting moss-examInatIon, a hearing
participant may request that alternative
methods of clarifying the record (such as
the submittal of additional wrItten -
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Federal Register I Vol. 44. No. 116 I Thursday, June 14, 1979 I Proposed Rules
in etlon)beu. lien of orbi
addition to cress-examination. The
Piesiding O cer shall Issue an eider
granting or denying such request at the
time be Issue. (or would have Issued) an
order under paragraph (b) of this
section. If the request Is granted. the
order shall specify the alternative
provided and any other relevant
Information (e.g.. the due date for
submitting written Information)
(d) In Issuing any order under
paragraph (b). the presiding officer
(1) May determine that one or more
participants have the same or similar
Interests and that to prevent unduly
repetitious oroe.-examlnatlon. they
should be required to choose a single
reprerentative for purpose. of croas•
examination. In such a case, the order
shall simply assign time for cross-
examination by that single
representative without Identifying the
representative further.
(2) Shall consider the extent to which
the Issues raised are likely to be the
subject of an evidentlary bearing under
Subpart E and shall deny cross-
examination with respect to any such
Issues. The presiding officer may grant
cross-examInation to the extent he/she
finds such a grant would be likely to
avoid the need for an evidentiary
hearing.
(3) May require, as a precondition to
ruling on the meriLs of such request.
alternative means of clarifying the
record to be used whether or not a
request to do so has been made under
paragraph (b). The person reqeesting
crossexamination shall have one week
to comment on the results of utilixing
such alternative means, following which
the Prending Officer, as soon as
practicable. shall issue an order grunting
or denying such person’s request for
cross-examination.
(e) The Presiding Officer and at least
one memberof the original bearing
panel .hall preside at the supplementary
hearing During the course of the
hearing, the Presiding Officer shall have
authority to modify any order issued
under paragraph (b) of this section. A
verbatim transcript shall be made of this
hearing
f 124.15 ObligatIon to raise points sad
provide kiformatlon during the comment
psdod
All persons. including applicants, who
believe any of the terms of a draft
permit is not appropriate, must raise all
reasonably ascertainable Issues and
submit all arguments and factual
grounds supporting their position.
tr.cluding all supporting material by the
dose of the public comment period
(Including any peblic k.imiug period)
required by 124iL
•124.16 Rsopeiilngofco.iwmotpuiiod.
If any information or argtmmets
submitted during the public comment
period. Including Information or
arguments whose submtw.m is required
under 1124.15, appears to raise
substantial new questions concerning a
permit. the Regional Adnitni frator may
conclude that one of the following
actions Is necessary for an Informed
decision:
(a) Formulation a new draft permit.
appropriately modified, under *124.6.
(b) Preparation a fact sheet or revised
fact sheet under I 124.9 and reopening
of the comment period under I 12L12 or
{c) Reopening of the comment period
under f 124.12 to give interested persona
an opportunity to comment on the
information ci arguments submitted.
In each case the notice required by
f 12411 shall be given.
* 124.1? Ismerse. d sttscews date of
permits.
(a) After the close of the public
comment period (Including any public
bearing period) required by 124.12 on a
draft permit, the Regional Mm+nistrator
shall prepare and Issue a final permit
and shall serve notice of that action on
the applicant. and on each person who
has submitted wrItten comments or
requested notice of the issuance of the
final permit. This notice shall Include
reference to the procedures available to
appeal a RCRA. UIC or PSD permit
determination or to contest an NPDES
permit determination.
(b) A permit shall become effective 30
days after the service of notice of the
decision under paragraph (a). unless;
(1) A later effective date is specified
in the decision; or
(2) Review Is requested under 1124.21
(RCRA. UIC and PSD permits) or a
request for an evidentlary hearing Is
granted under * 12425 (NPDES permits).
5124.15 Stays of contested permit terms.
(a) SLays. (1) If a request for review of
a RCRA or (MC permit nuder 1124.21 or
f 124.60 is grunted. the force and effect
of the contested permit terms shall be
stayed and shall not be subject so
judicial review pending final agency
ection
(2) Un tested terms which are aol
severable from those contested eball be
stayed together with the contested terms
under subsection (a). Stayed provisions
shall be designated by the Regional
Administrator. All other provision, of.
permit shall remain In full force and
efied. and the permittee shall be subject
to all these pruulsions.
(b) Stays based on Czusa .Lffects. (1)
No stay may be granted hosed on the
grounds that an appeal to the
Administrator under 1124.21 will likely
result In changes toe permit granted to
a facility or activity under one statute
that will in turn make changes to a
permit under sante other statute
advisable, unless seth of the permit.
Involved has been appealed to the
Administrator ai 1 belshe has accepted
the appeal.
(2) If terms and conditions of a RCRA
or UIC permit ale marked down for
reconsideration In an evldentiary
hearing on an NPDES permit under
I 124.82 then the affected terms and
conditions shall be stayed pending both
the presiding officer’s recommended
decision as to them and any action on
any recommended changes by the
Regional Administrator. Any decision
by the Regional Administrator on the
presiding officer s recommendation shall
be treated like the issuance of a permit
for purpose of 124.1?.
(3) No stay of an I’WDES. RCRA or
( MC permit issued by EPA shall be
granted based on the staying for any
reeson of any such permit Issued by a
State except at the discretion of the
Regional Administrator and upon
w1 tten request from the State Director
2’ (Comment’ NPDES slay provisions are
peovidedin IIZLeO.3
*124.19 Response to comments.
(a) At the time that any final permit is
lasued, the Director shall issue a
response to comments for that permit.
This response to comments shall
contain:
(1) A specific indication of which
provisions of the draft permit have been
changed In the final permit. and the
reasons for the change: and
42) A brief description of and response
to afl signIficant comments on the draft
permit of the permit application (for
sectIon 404 permIts only) raised during
the public comment period, or during
any hearing.
(b) For EPA-Issued permits, any
doenments cited in the response to
comments shall be included lit the
administrative record for the final
permit as defined In I 124.30.
(c) The response to comment. shall be
av U hlp to the public.
tCommer If mew points are raised or new
material supplied during lb. public comment
penod. EPA may document Its response to
those matters by adding new material to the
admlnisfr.tive record.l
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Federal Register F Vol. 44, No. 118 / Thursday. -June 14, 1979 I Proposed Rules
* 12420 Ad,nlnl*atlve record for flail
permit where EPA ths psm’sltflng
(a) Decisions of the Regional
Administrator to Issue a final permit
under 124.17 shall be made on the
basis of 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
124.12;
(2) The tape or transcript of any
hearing(s) held under 124.13.
(3) The response to comments
required by * 124*
(4) For NPDES new source permits
only, any final Environmental Impact
Statement:
(5) Other documents contained in the
supporting file for the permit, including
correspondence, telephone and meeting
memoranda, compliance reports, etc.:
and
(6) The final permit. --
(c) The additional documents required
under paragraph (b) shall be added to
the record as soon as feasible after their
receipt or publication by the Agency.
(d) This section applies to all final
RCRA, UIC, PSI) and NPDES permits
where the draft pernut was subject to
the administrative record requirements
of 124.10.
(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 124.19
(“Response to Comments”), do not need
to be physically Included in the same
file as the rest of the record as long as It
is specifically referenced In the
administrative record or in the response
to comments.
p12421 *ppeatotRcRA,UICandP$D
—S.
(a) Within 30 days after a RCRA. LJIC
or PSI) permit has been Issued under
§ 124.17, any person who filed
comments on that permit or participated
In the public hearing may petition the
Administrator to review any term or
condition of the permit. The thirty day
period within which a person may
request review under § 124.17 begins
with the postmark date of notice of the
Regional Administrator unless a later
date is specified In such notice. The
petition shall Include a statement of the
reasons supporting such review.
Including a demonstration that any
points being raised were raised during
the public comment period as required
by I 124.12 and where appropriate, a
showing that the term or 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 policy
which Is Important and which the
Administrator shoul in his discretion.
review.
(b) The Administrator may also
decide on his or her own Initiative to
review any term or condldfton of any
RCRA. UIC or PSD permit issued under
this Part.
(C) 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. To the extent review is denied,
the terms and conditions of the permit
become the final decison of the agency.
Public notice of any grant of review or a
decision by the Administrator to take
review under paragraph (b) shall be
given as provided in § 124.11. Any such
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 of review shall be
sent to the person(s) requesting review.
(d) The Administrator may defer
consideration of an appeal under this
section until the completion of
proceedings under Subpart E or F
relating to an NPDES permit issued to
the same source.
(e) A petition to the Administrator
under paragraph (a) of this section 1.,
under 5 U.S.C. 704, a prerequisite to the
seeking of Judicial review of the final
decision of the agency.
(f)(1) For purposes of judicial review
under the appropriate Act, final agency
action occurs when a final RCRA. UIC
or PSI) permit Is issued by EPA after
Agency review procedures are -
exhausted. A final permit shall be
prepared and Issued by the Regional
Administrator (I) when the
Administrator Issues notice to the
parties that review has been denied If
review Is denied; ( II) when the
Administrator Issues a decision If
review i not denied and the
Administrator does not remand the
proceedings or (iii) upon the completion
of remand proceedings if the
proceedings are remanded, unless the
Administrator’s Regional order
specifically provides that appeal of the
remand decision will be required In
order to exhaust administrative
remedies.
(2) Notice of any fins] action regarding
a PSI) permit shall promptly be
published In the Federal Register.
§124.22 AdditIonal time ofter service by
mis.
Whenever a party or Interested
person has the right or is required to do
some act or take some proceeding
within a prescribed period after the
service of notice or other paper upon
him or her by mall, three days shall be
added to the prescribed time.
Subpart B—Specific Procedurss
Applicable to RCRA Permits
§124.21 PublIc notice of receipt of
application id availability of summery.
(a) Upon receipt of a complete R RA
permit application, including both Pert A
and Part B, for major HWM facilities as
defind in § 122.3(b) . the Regional
Administrator shall issue a public notice
that an application has been received.
(b) This notice, as a minimum shall be
distributed to the following:
(1) The appropriate State agency in
the State where the proposed hazardous
waste management facility will be
located
(2) The chief executive or legislative
office of any county or municipality
within a 10 mile (16 km.) radius of the
proposed facility;
(3) The public library serving the
location of the facility;
(4) The applicant;
- - (5) Any person on the mailing list
referred to In Section 124.11, and
(6) Anyone else requesting it.
(c) The public notice shall Include the
following as a minimum:
(1) Name and address of the facility
seeking a permit;
(2) Where complete copies of the
application are available for inspection; -
(3) The name of a person In the EPA
Regional office who can be contacted
for Information or questions; and
(4) A statement that comments may be
submitted in writing to EPA on the
content of the application, the adequacy
of the Information submitted,
recommendations regarding approval or
disapproval of the permit, possible
permit conditions, and other related
matters during the period of permit —
review by EPA, and
(5) A statement whether or not a
summary of the application will be
prepared and when any such summary
will be made available to persons
requesting It.
(8) That after issuance of a draft
permit, all interested persons will be
given an opportunity to comment in
accordance with § 1Z4.fl.
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&th 4pad s
Applicable to P90 PermIts
{124.41 Procedures for iu s . .. .
(a) The rocedurea in Subpart A shall
not apply to a source whose Increased
allowable emissions are less than RI
tons a year. 1,000 pounds a day, or 100
pounds an hour. Instead, to the extent
practicable, the Regional Administrator
shall make every effort to observe the
following schedule:
(1) Completion of the isquired
analyses and notice orthe tentative
decision to Issue or deny the permit
within 30 days after receipt of a
complete application; and
(2) Completion of the public
participation process, to the extent
required by I 52.21(r)(3). wIthin 45 days
after receipt of a complete application
(b) At the time the Regional
Adminiahator gives notice of hislher
tentative decision. hefshe shall also
open the comment period. If necessary.
for 30 days. If no response is received
after 15 days, no public hearing shall be
held. If no supportable concerns are
received during the scheduled 30-day
public comment period (or the public
hearing. If one 1. held) the Regional
Administrator shall issue a final
decision.
Subpart D—Sp.clflc Procedure.
Applicable to NPDES Permits
I 124.51 Purpose mid scope.
(a) This Subpart sets forth additional
requirements and procedures for
decisiortmaking for the NPDES program.
(b) Decisions on NPDES variance
requests will ordinarily be made during
the permit issuance process. Permit
modifications and other changes In
permit terms will be made generally
through the same procedures that apply
in making decisions on initial permits.
Each such decision must move through
the saute procedures of notice-and.
comment and potential hearings as the
basic permit.
124.52 Ps. ,.Jl . required one ease-by.
Ca.. bnl..
(a) Various sections of Part 122,
Subpart D allow the Director to
determine, on a case-by-case basis, that
certain concentrated animal feeding
operations ( I 122.76), concentrated
aquatic animal production facilities
( 122.77). separate etornu sewers
( 122.79). and certain oilier facilities
covered by general permits (I 122.82)
that do not generally require an
ndvidual permit may be required to
o’b ln an Individual permit because of
theircontribution Ic water pollution.
(b) Whenever the Regional
Administrator decides that an Individual
permit should be required under this
e , the Reglocol Administrator
shall inform the discharger hi writing of
that decision, the reasons imderlylng It
and shall Include an application form in
such o&e. The discharger must then
apply for a permit under I 12204 wfthln
00 days ot such notice. The question
whether the Initial d aigaation wee
proper will remain open fox
conalderation during the public
n* period under 1124.11 and any
subsequent hearing.
• 124.53 Stats cortlIi iI .—. .
(a) Under section 401(5 11) of CWA.
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) When an application Is received
which does not include a State
certification, the Regional Administrator
shall forward the application to the
certifying State 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
(21 A statement that the EPA cannot
issue or deny the permit until the
certifying State agency has granted or
denied certification under I 124.55. or
waived Its right to certify and
(3) A statement that the right to certify
will be deemed watved wiles. exercised
within a specified reasonable time
which shall not exceed days from the
date the draft permit Is sent to the State
unless the Regional Administrator find.
that unusual circumstances require a
k,nger time.
(d) Any State certification shall be
Issued or denied within the reasonable
time specified wider I 124.53(c 13). The
State shall provide notice of its action,
including a copy of any certification, to
the applicant and the Regional
Administrator.
(e) A State certification shall be made
in writing and shall include:
(1) The terms and conditions which
will result in compliance with the
applicable provisions of sections 208(c),
301. 302.303,308, and 307 of CWA and
with appropriate requirements of State
law.
(2) Where the State certifies a draft
permit Instead of an application, any
conditions, more stringent than those in
the draft permit, which the State finds
necessary to comply with the
requirements listed In subparagraph ji).
For each such condition, the provision of
CWA or State law which form. the
basis for the condition shall be
Mi utffret Faihire to provide such a
statement shall be deemed a waiver of
the right to vr ftfy with respect to st4
conditioiz and
(3) A statement with respect to each
tenn and condition of the draft permit of
the extent to which such term or
condition can be made less stringent
without violating the requirements of
State law Including water quality
standards. Failure to provide such a
statement shall be deemed a waiver of
the right to certify with respect to any
such less stringent condition which may
be established during the EPA permit
issuance process.
lcommenc The requirement of paragraph
(e)(3) of this section Is necessary to enable
the certification to serve Its statutory fonction
without requiring continual resubmission to
the State For example, a Stats might certify
the? a draft permit containing a technology.
based limitation of 300 kg! day of BOD will
meet State water quality standards and other
State law requIrements. However. If during
the permit issuance process EPA decides that
400 kg!day is the appiopriete ledmology
seqeirentent. It is not clear .t present whether
the previous State certification inca , to
be valid. It would be impracticable and
would add to delay In permit issuance If EPA
resubmitted such permits to the State each
time the EPA considered setting a less
etitogent hniitstion than contained In the
draft permit. The requirement the Su .Ies
clearly identify what conditions are
necessary to meet State law will simplify the
permit Issuance process and make
certification more usefuL liowave,. States
may not require EPA to adopt lees stringent
requirements. See I 124.54.1
• 124.54 SpecIal provisions for Siat.
es,tfflcatlon and concurrence of
oppilcatlona for section 301(h)
modiUc.Uons.
(a) Where an application for a permit
incorporating a request under 301(h) of
CWA is submitted to the State, the
appropriate State official shall either
(1) Deny the request for the modified
permit under section 301(h) (and so
notify the applicant and EPA) and If the
State Is an approved NPDES State and
the permit is due for reissuance, proceed
to process the permit application under
normal procedures: or
(2) Forward a certification meeting the
requirements of this Subpart to the
Administrator or a person designated by
the Administrator.
(b) Where EPA Issues a tentative
determination on the request for
modification permit under CWA section
301(h), and no certification has been
received under paragraph (a), the
Administrator or a person designated by
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the Administrator shall forward the
tentative determination to the State In
accordance wIth 9124.53(b) specIfying a
reasonable time for State certification
and concurrence. U the State falls to
deny or grant certification and
concurrence under paragraph (a) within
such reasonable time, certification will
be deemed to be waived and the State
will be deemed to have concurred in the
Issuance of a modified permit under
CWA section 3 01(h ).
(c) Any certification provided by a
State under paragraph (a)(2) shall
constitute the State’s concurrence (as
required by section 301(h)) In the
Issuance of the section 301(h) modified
permit subject to any conditions
specified therein by the State.
ICwnment CWA section 301(h)
certification/concurrence under this section
will not be forwarded to the State by EPA for
recertIf cation after the permit Issuance
process. Accordingly, States must specify any
conditions required by State law including
water quality standard., in the certification.)
9124.55 Effect of St.ti cert iflc.tlon .
(a) Where certification Is required
under section 401(a)(1) of CWA, no final
permit shall be issued;
(1) If certification is denied, or
(2) Unless the final permit
Incorporates any requirements specified
in the certification under 9 1Z4.53(d)(1)
and (2).
(b) If the State law upon which a
certification Is based changes, orif a
State court stays, vacates or remands a
certification, a State which has Issued a
certification under * 124.53 may issue a
modified certification or notice of
waiver and forward It to EPA. If the
modified certification is received prior
to final Agency action on the permit, the
permit shall be issued consistent with
any more stringent conditions which are
based upon Stateiaw identified In such
certiflcation.1T the certification or notice
of waiver Is received after final Agency
action on the permit, the Regional
Administrator may modify the permit
only to the extent necessary to delete
any conditions based on a condition in a
certification found invalid by a State
court.
(ci A State may not condition a
certification or deny a certification on
the grounds that State law requires a
less stringent condition. The Regional
Administrator shall disregard any such
certification conditions, and will
consider such denials of certification to
constitute waivers of certification.
(Comment State certification rights
proceed from the authority of States under
secuon 510 of CWA to set more stringent
limitations than those required by CWA.
States may not require EPA to disregard or
downgrade Federal requirement..)
(di A permit may be modified during
Agency review in any manner consistent
with a certification meeting the
requirements of 9124.53(d). No such
modifications shall require EPA to
submit the permit to the State for
recertification.
(a) Review and appeals of conditions
specified by the State shall be made
through the applicable procedures of the
State and may not be made through the
procedures In this Part,
J124.56 Fact shuts .
(a) In addition to the requirements of
9 124.9, NPDES fact sheets shall contain
the following:
(1) Any calculations or other
necessary explanation of the derivation
of specific effluent limitations and
conditions, including a citation to the
applicable guideline or standard
provisions as required under 9122.60
and reasons why they are applicable or
an explanation of how the alternate
effluent limitations were developed;
(2) Where appropriate, a skatch or
detailed description of the location of
the discharge described In the
applicafion
(3) For EPA4ssued NPDES permits,
the results of any State certification
under 9 124.53.
(b)In addition to the requirements of
9124.9, the Director shall send all fact
sheets for NPDES permits to the District
Engineer of the Corps of Engineers, to
the Regional Director of the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service, to other
interested State and Federal agencies
(Including EPA wbere the draft permit is
prepared by the State), and to any other
person on requesL Any of these persons
may waive their right to receive notice
for any classes and categories of
permits.
9124.57 Requlr.m.nts for NPDES draft
permits Incorporating section 391(h)
modifications.
Sections 124.0,124.7,124.8, 124.9,
124.10 and 124.56 are applicable to draft
permits Incorporating section 301 (h)
modifications except that the terms
“Administrator or a person designated
by the Regional Administrator” shall be
substituted for the term Director, as
appropriate.
9124.58 PublIc notice.
(a) In addition to the Information
required under 9 124.11 (c) and (d),
mailed public notice of an NPDES draft
permit for a discharge where a CWA
section 316(a) application has been filed
under 9 122.64(e) shall include:
(1) A statement that the thermal
component of the discharge is subject to
effluent limitations under sections 301 or
$00 of CWA and a brief description
Including a quantitative statement of the
thermal effluent limitations proposed
under section. 301 or 300; and
(2) A statement that a section 316(a)
application has been filed and that
alternative less stringent effluent
limitations may be imposed on the
thermal component of the discharge
under section 310(a) and a brief
description Including a quantitative
statement of the alternative effluent
limitations, if any, Included in the
application,
(3) If the applicant has filed an early
screening application under 9 125.72 for
a section 310(a) variance, a statement
that the applicant has submitted such a
plan.
(b) Notice of the formulation of a draft
general permit under 9 122.82 shall
include:
(1) The requirements of 9 124.11 (c)
and (d), shall be concurrently published
In a daily or weekly newspaper within
the area affected by the discharge and
In the Federal Register for EPA ’iasued
permits in a manner constituting legal
notice under State law for State Issued
permits.
(2) The public notice for general
permits shall also include:
(I) A brief description of the types of
activities or operations to be covered by
the general permit
(ii) A map or description of the
General Permit Program Area; and
(ill) The basis for choosing the
General Permit Program Area.
(3) The Director shall use all other
reasonable means to notify affected
discharger. of the draft genelal permit.
(c) A public notice of an evidentlary
tearing under Subpart E shall contain
the Information required under
9 124.11(c), (e)(1) and (e)(3) and a mailed
public notice shall also Include:
(1) Reference to any public hearing
under 9 124.12 on the disputed permit:
(2) Name and address of the person(s)
requesting the evidentiary hearing;
(3) Brief description of the permit
terms and conditions which have been
contested and for which the evidentiary
hearing has been granted;
(4) Brief description of the nature and
purpose of the hearing Including the
following declaration.:
(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 this notice;
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(Ii) Any person seeking to be a party
may, subject to the xequirements of
I 124.76, propose material Issues of fact
or law not already raised by the original
requester or anot)ier party;
(lii) The terms and conditions of the
permit(s) at Issue may be amended after
the evtderttiary bearing 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
administrative determination.
(5) Names or organizational
description of the EPA employees who
shall constitute ‘Agency trial staff’ and
the “decisional body” under I 124.78
who are subject to the ex porte
communication rules.
(6) The name, address and office
telephone number of the Regional
Hearing Clerk.
(d) A public notice for a draft permit
that will be processed under Subpart F
shall include the informationin
paragraphs (c) and a statement that any
bearing will be held under the non-
adversary procedures for initial
licensing. In addition, a mailed public
notice shall include:
(1) The Information In paragraph (d)
except that a public bearing under
paragraph (d)(2) Is discretionary with
the Regional Administrator
(2) A statement that the permit will be
processed under the nonadversary
procedures for Initial licensing of
Subpart F, together with a brief
description of those procedures. This
description shall state explicitly the
manner and timing for any person to
request a hearing on the permit. If EPA
has decided on its own motion to hold a
hearing, the notice shall so state, and
shall also contain the Information
required by 124.41(f):
(3) A statement that written comments
on the draft permit and, In the case of a
section 301(h) application, the tentative
determination to grant or deny the
application submitted to EPA within
thirty (30) days of the date of the notice
will be considered by EPA In making
Real decision on the application. This
3O .day period may be extended up to 60
days aria sponle or on request of an
Interested party;
(4) In the case of the public notice of
the draft permit or denial of an
application fore modified permit under
section 301(h) shall include;
(I) A summary of the information
contained In the application, and
(Ii) A summary of the tentative
determination prepared under
124.114(f).
(e) A notice of a grant of a panel
hearing requested under Subpart F shall
Inriii,Ie the applicable Information from
paragraph (d). In addition, the mailed
public notices shall Include:
(1) 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;
(2) Names or organization description
of the EPA employees who shall
constitute the “decisional body” and the
“Agency trial staff,” under 1124.78 who
are subject to the exparte
communication rulen
(3) A statement whether the
recommended decision will be issued by
the Presiding Officer or by the Regional
Administrator.
(4) The due data for filing a written
request to participate In the hearing
under I 124.117;
(5) The due date for filing comments
under I 124.118; and
(6) The name, address, and office
telephone number of the Regional
Hearing Clerk.
• 124.59 Tsnns requested by the Corps of
Engineers and other govsmm.n I
(a) During the comment period for an
NPDES draft permit If 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
the District Engineer advises 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
condition. In the permit. Review or
appeal of denial of a permit or of
conditions speclfle6 by the District
Engineer shall be made through the
applicable procedures of the Corps of
Engineers. and may not be made through
the procedure. provided in this Part.
(b) If during the comment period the
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 lesourcea, the
Director may include the specified
conditions in the permit to the extent
they are determined necessary to carry
out the provisions of 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.
1124.60 Issuance and sffsc*Ivs dat. at
NPDES psrn ’Jt..
In addition to the requirements of
*124.17, the following provisions apply
to NPDES permits.
(a) If a request for an evidentiary
hearing is granted under II 124.75 or
124.111(a)(3) regarding the Initial permit
issued for a new source or a new
discharger, or If a petition for review-of
the denial of a request for an
evidentlary hearing wIth respect to such
a permit Is timely filed with the
Administrator under *124.101, the
applicant shall be without a permit for
the proposed new source or new
discharge, pending final Agency action
under I 124.101.
(b) Whether or not a draft NPDES
permit as formulated or final permit
was Issued, the Regional Administrator.
at any time prior to the rendering of an
Initial decision In an evidentlary hearing
on that permit, may withdraw the permit
In whole or In part and formulate a new
draft permit under I 124.7 addressing
the portions so withdrawn. The new
draft permit shall proceed through the
same process of public comment and
opportunity for a public hearing. etc. as
would apply to any other draft permit
iàbject to this Part. Any portions of the
permit which are not withdrawn and
which are not stayed under I 124.60
shall remain In effect.
(c)(1) If a request for a hearing is
granted In whole or in part under
II 124.75 or 124.111(a)(3) regarding a
permit for an exisiting source, or If a
petition for review of the denial of a
request for an evidentiary bearing with
respect to such a permit Is timely filed
wIth the Administrator under *124.101.
the force and effect of the contested
provisions of the final permit shall be
stayed and shall not be subject to
judicial review under section 509(b) of
CWA, pending final Agency action
under I 124.101. The Regional
Administrator shall serve notice. In
accordance with I 124.75, on the
discharger and all parties Identifying the
terms of the final permit which are not
contested and therefore are enforceable
obligations of the discharger.
(2) Whqre 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.
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Federal Regld er I Vol. 44, No. 116 1 Thursday, June 14. 1979 I Proposed Rules
(3) Where a combination of
technologies Is contested, but a portion
of the combination Is not contested,
such portion shall be Identified as
uncontested If compatible with the
combination of technologies proposed
by the requester.
(43 A term or condition, otherwise
uncontested, shall not be Identified as
uncontested If It Is Inseverable from a
contested term or condition.
(5) Uncontested terms and conditions
shall become enforceable 30 days after
the date of such notice, provided,
however, that If a request for an
evidentiary hearing on a term or
condition was denied and the denial is
appealed under 124.101, then such
term or condition shall become
enforceable upon the date of the notice
of the Aibnlnl atratcr ’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 evldentlary
hearing on such permit term.
(6) Uncontested terms and conditions
shall Include:
(1) PermIt requirements for which an
evidentiary hearing has been requested
but the hearing has been denied.
(ii) Pretimliinry design and
engineering studies or other
requirements necessary to achieve the
final permit term or conditions which do
not entail substantial expenditures;
(lii) Permit conditions which will have
to be met regardless of which party
prevails at the evidentiary hearing;
(lv) Where 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 such
less stringent level of treatment are
consistent with the measure required to
attain the limits proposed by the
Agency and
(v) Construction activities such as
segregation of waste streams or
installation of equipment which would
partially meet the final permit terms or
conditions and could also be used to
achieve the discharger’s proposed
alternatives terms and conditions.
(d) Where an evidentiary hearing is
granted under I 124.75 on an application
ror a renewal of an existing permit. all
provisions of the existing permit. as well
ts uncontested provisions of the new
permit, shall continue in full force and
tifect until final Agency action under
I 124.101. Upon written request from the
ipplicant. the Regional Administrator
nay modify the existing permit to delete
equirements which unnecessarily
duplicate uncontested provisions of the
new permit.
(CosimenL’ The following examples
demonstrate the application of paragraphs (c)
snd(4
Rxan pIe 2: The discharger requests and Is
granted an evldeetiiey besting on Its
contention that the VA’s proposed effluent
limitation for total suspended solids ( S) at
level XIs too stringent sad should be relaxed
to level Y.TIeatmenl h 4 ’. .lqlgr A attains
lovelY whereas technology Aplus B Is
necessary for level X. In this case, the
discharger’s obligation to instali technology
A I. effective 30 day. after servic, of the
notice under * 124.7 5(b) and this obligation Is
not stayed by virtue of the contest sit, the
used for additional tschnology a The
discharger would be required to sompty wIth
all portions of the compliance schedule
relating to design. construction sad
attainment of technology A, but would obtain
a stay of such previsions with respect to
technology B. This Is true even If the schedule
does not separate the two technologies. The
discharger must of course also perform all
basic work such as segregation of waste
streams, site preparation, monitoring.
reporting and Initial construdtiua because
this will be necessary regardless of the
outcome of the omtest The edditiousi
obligations .f tschnology Ba ,. stayed.
Example 2: The same facts as lii Example I
except that a public Interest group has also
requested end been granted participation In
the evtdantlary hearing. The group intends
that TSS level XIs too lenient and should be
tightened to level L 1 eatnieat technology C,
which Is Inconsistent with both A and B
technologies. Is required for level Z. In this
case the discharge?. obligation to Install -
technologies A, A and B or C are all stayed.
Th. discharger’s obligations to perform basic
work such a. segregation of waste streams,
site preparation, monitoring, reporting and
perhaps Initial consiniction are not stayed
because they are unaffected by the contest
ExampleS: The discharger requests an
evidentiary hearing on two Issues: that the
permits total suspended solida ( ‘ISS) limit
and pH limit are each too strict The Regional
Administrator grants the evidentlary hearing
on the TSS Issue but denies It on the pH
vlalm. The TSS and pH technologies are
independent and severable and the
thschaiger doe, not appeal the denial of
hearing on the pH control technology Is not
stayed end becomes effective 30 days after
service of the Regional Añmh4.trat r’s notice
under f 1 24. 7 5 (b), If the underlying
technology for the ISS limit Is at Issus. the
TSS limitation Is stayed. However, as
described In Example I and 2, th.
dlschargefs obligations to perform all work
unaffected by the stay (e.g. segregation of
waste streams, site preparation, Initia l
construction, etc.) are not stayed.
Example 4: The same facts as In Examples
that the equipment required for attaining the
pH lImit I. achieved by the Installation of the
TSS equipment. In this the Regional
Administrator may determine that the pH
permit term Is litserverable from the ISS
contest and thu, the limit, foe both
parameters would be stayed by virtue of the
hearing on lBS. although as noted In the
preceding examples, the discharge?.
obligations to perform all week unaffected by
the stay ste not stayed. Noted however, that
If the pH lImit Is achievable in an In . ’ pstiIve
and temporary altetnath,e such as additional
chemical treatment In the discharge?,
erdetlug equipment. then the Regional
M ,nmnIstrat r may determine that the ph
permit lurid ii severable and refuse to step
the pH term.
Example £The same fasts as In Examples
ancept that the discharger appeala (to the
Administrator) the Regional Administrators
denial of the euidentisry hearing on Issue No.
2 (the p11 lImit), In this case the pH limItation
Is also stayed (with the exceptions noted In
the preceding examples .1 Least until the
Admlnlstrato?s decision on such appeal. If
the Administrator affirms the denial of the
seldentlary bearing on the pH lImIt thee upon
service of notice under I 12425(b) the stay
terminates. If the MmlnlKtrator reverses and
thus giants the evldentlaiy bearing on the pH
term then the stay ccotlnues until final
Agency action.
(a) When Issuing a finally effective
permit under Subpart F, the Regional
Mrnlnlatrstor shall extend the permit
compliance schedule to the extent
required by a stay under this section:
provided that no such extension shall be
granted which woul&
(1) Result In the violation of an
applicable statutory desdlin or
(2) Cause the permit to expire more
- .than five years alter Issuance under
I 124.17(a).
ZCommenn Extensions of cowpll .q,e
schedules will not automatically be granted
for a period equal to the period the stay lain
effect for en effluent limitation. For example,
If both the Agency and the discharger agree
that a certain treatment technology Is
required by the Act where guideline, do not
apply, but a hearing I . granted to consider the
effluent limitations which the technology will
achieve, req ulrementa regarding Installation
of the underlying technology will not be
stayed during the hearing. Thus, unless the
beating extends beyond the final compliance
date in the permit. It will not ordinarily be -
aecessary to extend the compliance schedule
However where application of an underlying
technology I . challenged. the stay for
Installation requirement, relating to that
technology would extend lot the duration of
the besting.)
(I) For purposes ofJudiclal review
under section 509(b) of CWA. final
administrative action on a permit does
not occur unless and until a party has
requested and exhausted Its
Administrative remedies under Subparts
E and F and *124.101. Any party which
neglects or fail. to.seek review under
I 124.101 thereby waives Its opportunity
to exhaust available Agency remedies.
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* 124.61 P1st . L .naiint kapact
eta wnsnt
No final NPDES permit for a new
source ahall be Issued until at least 30
days after the date of Issuance of a final
Environmental Impact Statement If one
Is required under 40 CFR 6.616.
• 124.62 AdmWilstralivs Record.
Whether or not a draft or final permit
was prepared subject to these
regulations, the Regional Administrator,
In any case where It appears during the
course of an evidentiary hearing on a
permit that significant new factors
affecting that permit should be
considered. may withdraw the contested
terms subject to the hearing and issue a
new draft permit addressing those terms
under H 124.6 or 124.7. Uncontested
ternis shall remain In effect. The new
draft permit shall proceed through the
same process of public comment and
opportunity for a public hearing, etc., as
would any other draft permit.
• 124.63 DecisIon en Vwlsnces and
Nod lflcitlona.
(a) The Director may grant or deny the
following modifications or variances
(subject to EPA objection under f 123.78
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) The State Director may deny, or
forward to the Regional Administrator
with a written concurrence or submit to
EPA without recommendation a
completed application for
(1) A variance based on the presence
of “fundamentally different factors”
from those on.whlch an effluent
limitations guideline was based;
(2) A variance based on the economic
capability of the applicant under section
301(c) of CWA:
(3) A variance based upon certain
water quality factors under CWA
section 301(g): or
(4) A modification of CWA section
302(b)(2) requirements under section
302(a) (water quality related effluent
limitations).
(c) The Regional Administrator may
deny, or may forward to the EPA Deputy
Assistant Administrator for Water
Enforcement with recommendation for
approval, an application for a variance
listed In paragraph (b) which is
forwarded by the State Director, or
submitted to the Regional Administrator
by the applicant where EPA Is the
permitting authority.
(d) The EPA Deputy Auiatant
Administrator for Water Enforcement
may approve or deny any variance
application submitted under paragraph
(c) If the EPA Deputy Assistant
Administrator approves the variance,
the Director may formulate 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
determination under f 124.54.
* 124.64 Procedures for va,tmcu and
inodmsatlons where EPA is the permit
Issuing authotIt).
(a) In Stales where EPA in the permit
Issuing authority and an application for
• variance or modification is flied as
required by I 122.64, the application
shall be processed as follows:
(1) U at the time an application for a
variance or modification is submitted
the Regional Administrator has received
an application under f 124.3 for Issuance
or renewal of that permit but has not yet
formulated a draft permit under I 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 § 124.63. shall
set forth a tentative determination on
time request at the time the draft permit
Is formulated as specified in 124.6,
unless this would significantly delay the
processing of the permit. In that case the
processing of the variance or
modification request may be separated
from the permit in accordance with
paragraph (3). and the processing of the
permit shall proceed without delay.
(2) If at the lime an application for a
variance or modification Is filed the
Regional Administrator has formulated
a draft permit under I 124.6 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 formulate a new
draft permit including a tentative
determination on the request, and the
fact sheet required by I 124.9. However.
If this will significantly delay the
processing of the existing permit or the
Regional Administrator for other
reasons considers qpmblnlng the
variance request ai the existing permit
-4nadvisable, the request may be
separated from the permit In accordance
with paragraph (3), and the
administrative disposItion of the
existing permit shall proceed without
delay.
(3) U the permit has become final and
no application under *124.3 concernIng
It in pending or If the variance or
modification request has been separated
from a permit as described in
paragraphs (1) and (2), the Regional
Administrator shall formulate a new
draft permit under f 124.6. This permit
shall be accompanied by the fact sheet
required by H 124.9 and 124.56 except
that the only matter, considered shall
relate to the requested variance.
• 124,65 Appeals of modIficatIons and
(a) Normally, the appeals of permit
determinations are handled In one
proceeding either State or Federal.
When a State issues a permit In which
EPA has made a variance
determination, a separate appeal on that
determination Is possible. in such cases.
requests for appeal on the EPA permit
conditions must be filed under Subpart P
after the pubhc notice of the grant or
denial of the yariance. If the owner or
operator Is challenging Issues In e State
proceedings on the same permit, the
Regional Administrator will decide, in
consultation with State officials, which
case will be heard first.
(b) Appeals of modifications or
variance determinations shall be
governed by Subpart F unless the
Regional Administrator determines that
consolidation with an evidentiary
bearing under Subpart E will expedite
consideration of the issues presented.
lCoo,menL The panel proceedings of
Subpart F will generally be utilized when
there ts a State Issued permit and only the
variance Issues are In the Federal forum.)
(c) Stays for section 301(8) variances.
Under the authority of CWA section
3010)12), ifs request for an evidentiary
hearing is granted regarding a variance
under CWA section 301(g). or Ifs
petition for timely review of the denial
of a request for an evidentiary hearing Is
timely filed with the Administrator
under I 124.101 with respect to such a
variance, any otherwise applicable
standards and limitations under section
301 of CWA 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
pollutants In quantities which may
reasonably be anticipated to pose an
unacceptable risk to human health or
the environment because of
bloaccumulatlon, 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
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(3) The discharger files any bond or
other appropriate security which Is
required by the Regional Aitminlatrator
to assure timely contpllance with the
requirements from which a variance Is
sought In the event that the appeal Is
unsuccessful.
(d) Stays for variances or
modifications other than sectIon 301(g)
ais granted pursuant to 0124.60.
I 124.44 SpecIal prees ,ss for gsaIwgS
Iato marine wats,s sacUon 301(h)
(a) Where It I. clear on the face of a
section 301(h) application that the
discharge Is not entitled to a
modification, the application shall be
denied.
- (b) In the case of all other section
301(h) applications the AiIii lnhtrator. or
a person designated by the
Administrator may elthen
(1) Give written authorization to an
applicant to submit Information required
by Pa 125. Subpart C or the final
application by a date certain, not to
exceed 9 months. th
(I) The applicant proposes to submit
new or additional Information and the
applicant demonstrates that;
(A) The applicant made consistent
and diligent efforts to obtain such
Information prior to submitting the final
application:
(B) The fallurç to obtain such
Information was due to circumstances
beyond the control of the applicant; and
(C) Such Information can be submitted
promptly or
(H) The applicant proposes to submit
minor corrective Information and such
Information can be submitted promptly:
or -
(2) Make a written request of an
applicant to submit additional
Information by a date certain, not to
exceed 9 months. If such Information Is
necessary to issue a tentative
determination under 0 124.114(g).
All additional Information authorized
or requested under this paragraph which
Is timely received, shall be considered
part of the original application.
(c) Applications for modifications
under Section 301(h) shall be processed
Independently of any pending
application for the Issuance or -
reissuance of a permit requiring the
applicant to meet effluent limitations
based on secondary treatment under
section 301(b)(1J(B).
(d) No modified permit shall be Issued
granting a section 301(h) modIfication
unless the appropriate State officials
have concurred or waived concurrence
pursuant to 0 124.54. In the case of a
permit Issued to an applicant In an
approved State, the State Director may;
(1) Revoke any e,dsf lag permit as of
the effective date of the EPA-Issued
modified permit and
(2) Co-sIgn the modified t. If the
Director has Indicated an intent to do so
In the written concunence.
(a) Appeals of determinations under
sectIon 301(h) shall be governed by
Subpart F of this Part.
I 124.57 p.cW procedures
en thunnal varIances ( ction 314(a))
(a) Except as provIded In * 12416 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 *0124.17
ands 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). ApplIcants who wish an
early decision on these Issues should
request ft and furnish supporting
reasons at the time their applications
are filed under * 122.64. The RegIonal
Mmlnietrator will then decide whether
or not to grant It. If It Is granted, both the
early decision on CWA section 316(a)
or (b) issues and the pant 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 hearing.
(b) U the Regional Administrator, on
review of the administrative record,
determine, that the Information
necessary to decide whether or not an
alternative effluent limitation under
CWA section 316(a) should be panted
to a source Is not likely to be available
by the time a decision on permit
issuance must be made, the Regional
Administrator may Issue a permit under
*124.17 for a term of up to five years.
This permit shall require that the point
source achieve the effluent limitations
Initially proposed for the control of the
thermal component of the discharge no
later than the date otherwise required
by applicable legal requirements.
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.
(CommentS A New dl pha,ger may not
commence operation In lolatIcn of the
thermal effluent limitation which are Initially
proposed unles, and until the CWA section
316(a) variance request Is 6nafly approvsd.J
(b)Any hearing scheduled under
paragraph (a) shall be publicized as
required by I 124.11 and shall be held
enough In advance of the final
compliance date specified In the permit
to allow the permlttee to take necessary
measures to comply by that date In the
event Its request for modification of
thermal limits is eventually denied after
the hearing Is concluded.
(c) Whenever the Regional
Administrator defers the determination
under CWA section 316 (e). any
determination under section 316(b) may
be deferred.
Subpart E—Evldentlary Hearings for
EPA Issued NPDES Permits
I 124.7$ A ’ty .
The regulations In this Subpart govern
all evldentlaty hearings conducted by
“EPA under section 402 of CWA, except
as otherwise provided In Subpart F. An
evidentiary hearing Is available to
challenge any permit issued under
* 124.17 except for a general permit.
Persons affected by a general permit
may not challenge the terms and
conditions of a general permit; but may
Instead apply for a Individual NPDES
permit under 122.64 as authorized In
* 122.82 and then request an evidentlary
hearing on the Issuance or denial of an
Individual permit In certain cases,
evidentlary hearing. may also be held
on the terms of RCRA, UIC and PSD
permits that are very closely linked with
-ibi terms of NPDES permits as to which
a hearing has been granted. See
* 124.74(b)(2).
• 124.12 DefinItions.
For the purpose of this Subpart, the
following definition. are applicable:
(a) “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:
(1) A Judicial Officer shall be a
licensed attorney. A Judicial Officer
shall not be employed in the Office of
Enforcement or the 0111cc 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 prosecutorlal
functions.
(2) The Administrator may delegate
any authority to act in an appeal of a
given case under this Subpart to a
Judldal Officer who, In addition. may
perform other duties for EPA, provided
that the delegation shall not precludes
Judicial Officer from referring any
motion or case to the Administrator
when the Judicial Officer decides
referral would be appropriate. The
Administrator, In deciding a case, thay
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34335
consult with and assign the drafting of
prelisninaty findings of fact and
conclusions and/or a preliminary
decision to any Judicial Officer.
(b) Party” meana the EPA trial staff
under 0124.78 and any person whose
request for a hearing under 0124.74 or
whose request to be admitted as a party
or to intervene under 0*124.79 or
124.117 has been granted.
(c) “Presiding Officer” means an
Administrative Law Judge appointed
under 5 U.S.C. 3105 and designated to
preside at the hearing.
(d) “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
1124.73 flIhigwl.dmthinls.l ciiof
(a) All submissions authorized or
required to be filed with the Agency
under this Subpart shall be filed with
the Regional Hearing Clerk, unless the
regulations provide otherwise.
Submissions shall be considered filed on
the date on which they are mailed or
delivered In person to the Regional
Hearing Clerk.
(b) All such submissions shall be
signed by the person , n k1ng the
submission, or by an attorney or other
authorized agent or representative.
(c)(1) All data and Information
referred to or in any way relied upon In
any such submissions shall be included
In fuil and may not be Incorporated by
reference, unless previously submitted
as part of the administrative record in
the same proceeding. except for State or
Federal statutes and regulations, judicial
decisions published In a national
reporter system, officially Issued EPA
documents of general applicability, and
any other material which Is generally
available or of peripheral relevance, in
which case the party relying on it shall
file a written undertaking to make
copies available as directed by the
Regional Administrator or the Presiding
Officer.
(2)11 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
and only the relevant data or
Information shall be submitted or the
relevant portions shall be briefly
indicated.
(4) The failure to comply with the
requirements of this section or any other
requirement in this Subpart may result
In the exclusion from consideration of
any portion of the submission which
falls to comply. If the Regional
Administrator or the Presiding Officer,
on motion by any party or sue aponte,
determines that a submission falls to
meet any requirement of this Subpart
the Regional Administrator or Presiding
Officer shall direct the Hearing Clerk to
Teturn the submission with a copy of the
applicable regulations indicating those
provisions not complied with in the
submission. The party proposing to
submit any rejected materials shall have
14 days to correct the errors and
resubmit, unless the Regional
Administrator or the Presiding Officer
determines that there is good cause to
allow a longer time.
(d) The filing ola submission shall not
mean or imply that it in fact means 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 contlining factual material.
data, or other Information shall be
signed in ink end shall state the name,
address and the representative capacity
of the person making the submission.
The signing shall comply with the
signature and certification procedures of
* 122.5.
I 12&74 Requests for uvidentiaty hearing.
(a) Within 30 days following the
service of notice of the Regional
Administrator’s issuance of a final
permit under * 124.17, any interested
person may submit a request to the
Regional Administrator under paragraph
(b) for an evidentiary hearing to
reconsider or contest the terms of that
permit, 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)(1) In accordance wIth *124.76,
such requests shall state each legal or
factual question alleged to be at issue,
and their relevance to the permit
decision, together with a designation of
the specific factual areas lobe
adjudicated and the hearing time
estimated lobe necessary for that
adjudication. Information supporting the
request or other written document relied
upon to support the request shall be
submitted as required by I 124.73 unless
It is already In the administrative record
required by * 124.20.
lcomment This paragraph allows the
submission of requests for evtdeat1aI r
bearings 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, en review of the denial
the Administrator is authorized by
I 124.101(a)(1) to review policy or legal
conclusion, of the Regional Administrator.
EPA I. requiring an appeal to the
Adminie ator even of purely legal Issues
Involved In a permit decision to ensure that
the Adininistralor will have an opportunity to
review any permit before it will be final end
subject to judicial review.)
(2) Persons requesting an evidentiary
bearing on an NPDES permit under this
section may also request an evidentlary
bearing one RCRA. UlCer PSD permit
Such a request is subject to all the
requirements of paragraph (1) and In
addition will only be granted If each of
the following conditions Is met:
(I) Processing of the RCRA. UIC or
PSD permit at Issue was consolidated
with the processing of the NPDES permit
as provided in I 124.6(d);
(Ii) The standards for granting a
bearing on the NPDES permit are met
and
(iii) It Is likely that the Issues raised
concerning the NPDES permit will be
resolved In a way that makes
modification of the RCRA or UIC permit
appropriate.
(c) Such requests shall also contaln
(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, or SUC sponle
by the Presiding Officer and without
cost or expense to any other party, the
requester shall make available to appear
and testify, the following:
(1) The requester
(II) All persons represented by the
requester and
(ill) All officers, directors, employees,
consultants and agents of the requester
and the persons represented by the
requester.
(5) Specific references to the
contested permit terms and condltlon,
as well as suggested revised or
alternative permit terms and conditions
(not excluding permit denial) which, In
the judgment of the requester, would be
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Federal Register I Vol. 44, No. 110 I Thursday. June 14. 1979 I Proposed Rules
required to Implement the purposes and
policies of CWA.
(0) 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 CWA.
7) Specific Identification of each of
the discharger’s obligations which
should be stayed If the request Is
granted. If the request contests more
than one permit term or condition then
each obligation which Is proposed to be
stayed must be referenced to the
particular contested term warranting the
stay.
(d) 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.
p124.75 Decision on request for a
(a) Following the expiration of the
time allowed by * 12.4.74 for submitting
a request for an evidentiary hearing, the
Regional Administrator shall determine
whether the request shall be granted,
denied or granted In part and denied in
part. The Regional Administrator shall
grant a request either In whole or in part
only if the request conforms to the
requirements of 124.74, and sets forth
material Issues of fact relevant to the
Issuance of the permit.
(b) If the Regional Administrator
grants a request for an evidentiary
hearing, in whole or in part, the Regional
Administrator shall state and identify
the permit terms and conditions which
have been contested by the requester
and for which the evidentiary hearing
has been granted. Permit terms and
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 terms
and conditions in writing In accOrdance
with * 124.00(e).
(c) If the Regional Administrator
grants a request for an evidentiary
hearing in whole or In part, in regard to
a particular proposed permit, then any
other request for an evidentiary hearing
In regard to that permit shall be heated
as a request to be a party and the.
Regional Administrator shall grant any
such request which meets the
requirements of paragraph (a).
(d) If a request for a bearIng is denied
In whole or In part, the Regional
Administrator shall briefly state thern
reasons. That denial Is then subject to
review by the Administrator under
• 124.101.
• 124.76 ObligatIon to nsa ‘e sad
submit svtdsncs before a Ibial psrmlt is
No evidence shall be submitted by•
any party to a beasing under this
Subpart that was not submItted to the
administrative record required by
* 124.20 as part of the formulation 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 such party that were not submitted
to the administrative record required by
* 124.20 as part of the formulation 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.
• 12437 Notlcs of hearIng.
Public notice of the grant of an
evldentiary hearing regarding a permit
shall be given as provided in * 124.58(c)
and in addition by mailing a copy to all
persons who commented on the draft
permit or submitted a request for a
hearing. Before the Issuance of such
notice the Regional Administrator shall
designate the Agency trial staff and the
members of the decIsional body (as
defined in * 124.78).
• 124.7* Es part. ooininunhcstisns.
(a)(1) 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 exparte
communication relevant to 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,niember of-the Agency
trial staff an ex porte communication
relevant to the merits of the -
proceedings.
(3) A member of the decision body
who receives or who makes or
knowingly causes to be made a
communication prohibited by the
Regional Hearing Clerk, for the public
hearings, all such written
communications or memoranda stating
the substance of all such oral
communications together with all
written responses and memoranda
stating the substance of all oral
responses.
(b) Upon receipt by any members of
the decision making body of an ax porte
cominunlcalion knowingly made or
knowingly caused to be made by 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 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.
(c) The prohibitions of this section
begins 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.
(d) 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 124.110 as available to
Investigate, litigate and present the
evidence, arguments and position of the
Agency In the evidentiary hearing or
non-adversary Initial licensing hearing.
Appearance as a witness does not
necessarily require a person to be
designated as a member of the Agency
bial staff;
(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 does not
designate himself as a member of the
Agency trial staff) and any of their
direct support staff participating in the
decisional process. In the case of a
nonadversary Initial licensing
proceeding, the decisional body shall
also indude the panel members whether
or not permanently employed by the
Agency
(3) ‘ Exparte 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 where such
communication was not originally filed
or stated In the adminIstrative record or
In the hearing. Ax porte communications
do not Include:
(I) Communications between Agency
employees other than the Agency trial
staff and the members of the decisional
body.
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3q37
( I I ) Dismaslons between the
clslonaI body and either
)Inteiested persons outside the
4ncy or
(B) The Agency trial staff; If all parties
have received prior written notice of
such proposed communications and
have bean given the opportunity to be
present and participate thereL .
(4) interested person outside the
Agencf includes the permit applicant.
any person who filed written comments
tsr the proceeding. any person who
requested the hearing, any person who
requested to participate or intervene in
the hearing, any participant or party in
the heasing and any other Interested
person not employed by the Agency at
the time of the communications and the
attorney of record fo ouch persons
• 124.75 Ad om parSes and las
(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
videntlmy hearing, whichever ocrszrs
last The Presiding Officer shall grant
such requests as meet the requirements
of I I 124.74 and 1Z4. 6. Such request
must specifically Identify those issues
already raised which the requester ,
seeks to address at the hearing.
(b) After the expiration of the time
scribed In paragraph (a) any person
file a motion for leave to intervene
party. This motion must meet the
requirements of f 124.74 and 124.76
and set forth the grounds for the
proposed intervention provided.
however, that no factual or legal issues
In addition to those raised by timely
hearing requests may be proposed
except for good cause. Any motion 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 Regional
Administrator, or the Presiding Officer if
one has been assigned, shall grant such
motion only upon a n express finding on
the record that
(1) Extraordinary cfrcamstances
uslify granting the motion.
(2j l’he 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 riot cause undue
delay or prejudice the iights of the
existing parties.
Li24-v FlUng and service.
‘An original and one (1) copy of all
. nsubmisaiona relating to an
evldentlary having flied after the notice
of hearing Is published shall be filed
with the Regional Hearing Clerk.
(b) The party filing any submission
shall serve a copy of such submission
upon the Presiding Officer and each
party of record . Service shall be by mall
or personal delivery.
to) Every submission shall be
accompanied by an acknowledgment of
service by the p son served or proof of
service in the form of a statement of the
date, place, time, end manner of service
and the names of the persons served.
certified by the person who made
service.
(Co.mmen A signed statement that an
attached list of persons were mailed the
submission Is sufficient to meet the
requirements of lids paragraph. Certified mall
tsnct required.)
(d) The Regional Hearing Clerh shall
maintain and furnish to any person upon
request, a list contAining the n m .
service address and telephone number
of all parties and their attorneys or duly
authorized representatives.
• 124.51 *aulgnm.M ol a riU..Da law
No later than the date of mnhllTtg ,
publication or posting of the notice of a
grant of an evidentlary hearing.
whichever occurs last, the Regional
Administrator shall refer the proceeding
to the Chief Administrative Law Judge
who shall make an assignment of an
Administrative Law Judge to serve as
Presiding Officer for the hearing.
I 124.52 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
party or Issues may be severed and
heard separately.
• 124.83 Prst*aring cosders si.
(a) The Presiding Officer, su e spank.
or at the request of any party, may
direct the parties or their attorneys or
duly authozfaed representatives to
appear at a spedfled time and plane for
one or more conference, before or
during a hearing, or to submit written
proposals or correspond for the pwpo.e
of considering any of the atters set
forth In paragraph (c).
(b) The Presiding Officer shall allow a
reasonable period before the hearing
begins for the orderly completion of all
prehearzng procedures arid for the
submission and disposition of all
prehearing motions. Where the
circumstances warrant, the Presiding
Officer shall call a preheailag
conference, to Inquire Into the use of
evallable 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 beglnnin 6 the hearing.
(c) In conferences held, or In
suggestions submitted, under paragraph
(a). the following matters may be
consideredi
(1) The necessity or desirability of
simplification. dariflcation,
amplification or limitation of the Issues.
(2) The admla ion of facts and of the
genuineness of documents, and the
possibility of stipulations with respect to
facts.
(3) The consideration of and ruling
upon objections to the Introduction into
evidence at the hearing of any written
testimony. documents, papers, exhibits,
or other submissions proposed by.
party, except that the administrative
record required by I 12.4.m shall be
received in evidence subject to the
provisions of I 124.85(d)(2).
Notwithstanding the foregoing, at any
time before the end of the bearing any
party may makn, and the Presiding
Officer shall consider and rule upon,
motions to strike testimony or other
evidence other their the admim frative
record on the grounds of relevance.
competency or materiality.
(4) The identification of matters of
which official notice may be taken.
(5) The establishment of a schedule
which Includes definite or tentative
times for as many of the following as are
deemed necessary and proper by the
Presiding Officer
(I) The submission of narrative
statements of position on each factual
Issue in controversy
(ii) The submission of written
testimony and documentary evidence
(e.g., affidavits, data, studies, r orts
and any other type of written material)
In support of such statementr or
(Iii) The written requests to any party
for the production of additional
documentation, data, or other
Information relevant and material to the
facts In Issue.
(6) The grouping of participants with
substantially like Interests for purposes
of çllminatlng duplicative or repetitive
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Federal Register I Vol. 44, No. 116 / Thursday, June 14 1979 I Proposed Rules
development of the evidence and
making and arguing motions and
objections.
(7) Such other matters as may
expedite the hearing or aid In the
disposition of the matter.
(d) At a prehearing conference or
within some reasonable time setby 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 a antidpated 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
* 124.20, shall be marked for
identification as ordered by the
Presiding Officer. Witnesses, proposed -
written testimony and other evidence
may be added or amended only upon a
finding by the Presiding Officer that
good cause existed for failure to
Introduce the additional or amended
material within the time specified by the
Presiding Officer. 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)(1611.
(e) The Presiding Officer shall prepare
a written prehearing order reciting the
actions taken at the 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 shell control the subsequent
course of the hearing unless modified by
the Presiding Officer for good cause
shown.
1124.84 Summary determination.
(a) Any party to an evidentiary
hearing may move with or without
supporting affidavits and briefs for a
summary determination in his or her
favor upon all or any part of the issues
being adjudicated on the basis that there
Is not genuine issue of material fact for
determination. Any such motion shall be
filed at least 45 days before the date set
for the hearing, unless upon good cause
shown such motion may be filed at any
time before the close of the hearing.
(b) Any other party may. within 30
days after service of the motion, file and
serve a response to It or a
countermotion for aummar3r
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
afflant is competent to testify to the
matters stated therein.
(d) The Presiding Officer has the
discretion to 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 Issues of material fact are
decided on a motion for summary
determination, no hearing will be held
and the Presiding Officer shall
thereupon prepare an Initial decision
under * 124.89. If the motion for
summary determination Is denied or if
only a 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 I 124.90.
*124.85 HearIng procedure.
(a)(1) 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.
(2) The Agency has the burden of
going forward to present an affirmative
case In support of any challenged term
or condition of a final permit.
ICommenL’ 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.)
(3) Any hearing partidpant who, by
raising material issues of fact, contends:
(i) That particular terms, conditions or
requirements in the permit are improper
or invalid, and who desires either
(A) The Induslon of new or different
terms, conditions or requirements; or
(B) The deletion of such terms,
conditions or requirements; or
(ii) That the denial or Issuance of a
permit Is improper or Invalid, shall have
the burden of going forward to present
an affirmative case.
(b) The Presiding Officer shall have
the authority and duty to conduct a fair
and Impartial hearing, to take action to
avoid unnecessary delay In the
disposition of the proceedings, to
maintain order and all powers
necessary to these ends, including the
power to:
(1) Arrange and issue notice of the
date, time and place of hearings and
conferences and;
(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 heailng ’
(5) Administer oaths and affirmations;
(6) Regulate the course of the hearing
and govern the conduct of participant.;
(7) Examine witnesses;
(8) Identify and refer Issues for
interlocutory decision under I 1M.
- (9) Rule on, admit, exclude, or limit
evidence;
(10) Establish the time for filing
motion., 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 In cases where 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 confidential business
Information in accordance with § 122.16
bnd 40 CFR Part 2.
(16) Allow such cross-examination as
may be required far a full and true
disclosure of the facts. No cross-
examination shall be permitted on
questions of law or policy, or regarding’
matters (such as the validity of effluept
limitations guidelines) that are note
subject to challenge In an NP1iE
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34339
proceeding. No Ajency witnesses shall
be required to testify or be made
‘table for crose e,aii n ii lion on such
era. In determining whether cross
,cAamlnallon shall be permitted the
Presiding Offloer shall consider whether
It is not likely to result In clarifying or
resolving a disputed issue of fact
material to the decision, and whether
the Issue can be more economically
clarified In other ways. 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 hearing Issues.
Written testimony shall be prepared In
narrative form. To the extent that
testimomy is to be submitted in writing.
the Presiding Officer may set dates for
the filing of such evidence with the
Regional Hearing Clerk as follows:
(1) The participant with the burden of
going forward to present an affirmative
case upon an Issue (as defined in
124.85(a) of these regulations) shall file
his direct testimony first.
‘2) All participants other than
cipants specified In the preceding
jection shall file tbefr direct
Testimony on said issue not later than
twenty days after the date of the filing
of the testimony under the preceding
subsection.
(3) All rebuttal testimony shall be
filed no later than thirty days after the
date of the filing of the testimony under
paragraph (c)(l).
(d)(1J 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 0124.20 shall be admitted and
received in evidence. Any party may
move that a spoçaoring witness be
provided for a portion or portions of the
administrative record. The Presiding
OffIcer, upon finding that the standards
for cross-examination of 124.85(b) [ 3)
have been met and that the
administrative record taken as a whole
indicates legitimate doubt about such
‘inn of the record, shall grant such
)n and diict the appropriate party
to produce such witness. lie sponsoring
witness t A,mnt be provided. the
Presiding Officer may reduce the weight
afforded the appropriate portion of the
record as a factual statement
accordingly.
(Cwiwienfr Receiving the a ’I ’. .4.fraUve
record into evidence “fn ’ tically serves
several pwpoaes: (1) ft g4IW ’l.ftøntl the prior
courseofthepioce sd lng(2)itprov ldesa -
record of the views of affected persons for
consideration by the agency decislon-maket
and (3) It provide, factual material for use by
the decision-maker. &ib$ect to 124.V6,
parties tie flee to contest the factual pollion .
of the admInIstrative record In the hearing.
and to argue that portions si It should aol be
given weight unless sponsored by a witness
who will be available for arose-examinatIon.)
(3) Whenever any evidence or
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 qf proof, which shall
consist of a brief statement on the
record describing the testimony
excluded.
(4) Where two or more parties have
substantially similar Interest 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 such 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 0 124.90.
(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.
(a) Parties may at any time stipulate
to relevant facts or to settlement.
However, all setilements to which the
Agency is a party must be approved by
the Deputy Assistant Mmhiiatrator for
Water Enfornement In accordance with
0 124.103.
124.86 N . Uo ,.s ,
(a) Any party may make a motion,
(i;cluding a motion to dismiss a
particular claim en a contested issue), to
the Presiding Officer about any matter
relating to the proceeding. All motions
shall be filed 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 party 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 ten days by the Presiding
Officer for good cause shown.
(c) Notwithstanding 0122.59. any
party may file with the Presiding Officer
a motion seeking to apply to the permit
any regulatory or statutory requirement
Issued or made available after the
Issuance of the permit under 1 124.17.
The Presiding Officer shall grant any
motion to apply a new statutory
requirement unless he or she find. It
contrary to legislative Intent. The
Presiding Officer may grant a motion to
apply a new regulatory requirement
where appropriate to carry out the
purposes of CWA. and where no party
would be unduly prejudiced thereby.
0124.87 flscord of hearings.
(aJ All orders issued by the Presiding
Officer, transcripts of oral bearings 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
eubmitted In the proceeding shall be a
part of the record of the hearing, end
shall be available except as provided In
0 122.16 to the public in the office of the
Regional Hearing Clerk promptly upon
receipt in that office.
(b) Evidentiary hearings shall be
either stenographically reported
verbatim or tape recorded, and
thereupon transcribed. After the
hearing, the reporter shall file with the
Regional Hearing Clerk:
(I) The original of the transcript; and
(II) The exhibIts receIved or offered
Into evidence at the hearing.
(c) The Regional Hearing Clerk shall
promptly notify each of the partie, of
the filing of the certified transcript of
proceeding,. Any party who desires a
copy of the transcript of the hearing may
obtain a copy of tire hearing transcript
from the Regional Hearing Clerk and
upon payment of costs.
The Presiding Officer shall allow
wftnesses, parties, and their counsel an
opportunity to submit written proposed
corrections of the transcript of any oral
testimony taken at the hearing, pointing
out errors that may have been made In
transcribing the testimony, as are
required to make the transcript conform
to the testimony.
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Federal Register I Vol. 44, No. 110 I Thursday, June 14. 1979 / Proposed Rules
Except In unusual cases, no more than
thIrty days shall be allowed for
submitting uth corrections from the day
‘a complete transcript of the hearing
becomes available.
I 124.88 P,opoud findings of fact and
acnd ionL bdef.
Within 45 days the certified transcript
is flied, any party may file wfth the -
Regional Hearing Clerk proposed
findings of fact and conclusions and a
brief In support thereof, each containing -
appropriate reference to the record. A
copy of any such findings, conclusions
and brief shall be contemporaneously
served upon every other party 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 jhe
proposed findings and conclusionL any
briefs filed by the parties and any
interlocutory decisions pursuant to
I 124.90 and shall Issue and file his
initial decision with the Regional
Uearlng Clerk. The Regional Hearing
Clerk shall immediately serve copies of
the Initial decision upon all parties (or
their counsel of record) and the
Administrator.
(bJ The Initial decision of the
Presiding Officer shall automatically
become the final decision thirty (30)
days after Its service unless within such
time.
(I) A party files a petition for review
by the Administrator pursuant to
* 124.101; or
(ii) The Administrator suo sponte files
i notice that he or she will review the
decision pursuant to I 124.101: or
(c) If a hearing has been granted on
terms or conditions of a RCRA UIC or
PSD permit under the standards set
forth In 124.74(b)(2), the Initial
decision of the Presiding Officer to those
terms and conditions shall be in the
form of recommendations to the
Regional Administrator for changes to
the RCRA. UIC or PSD permit. The
Regional Adminlstratãr shall modify the
RCRA. UIC or PSD permit to the extent
he or she considers appropriate, and
explain his or her reasons for rejecting
any recommendations of the Presiding
Officer, within thIrty days of receipt of
the Presiding Officer’s
recommendations. The permit as
modified may be appealed to the
Administrator as provided in 124.21.
124.80 ints,Soautory appeaL
(a) Except as provided in this section.
appeals to the Administrator may be
taken only under 124.101. 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 ten days of service of notice of
the order, ruling, or decision and shall
state briefly the pounds relied on.
(b) The Presiding Officer may certify
an order or ruling for appeal to the
Admihistrator 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 preceeding,
or,
(ii) A review afte the final order Is
issued will be inadequate or Ineffective;
and.
(3) Such an appeal Is necessary to
prevent exceptional delay, expense or
prejudice to any party.
(c) To the extent an appeal under this
section involves issues of law, the
MvninI*trator shall refer those Issues to
the General Counsel for determination
subject to his or her approval.
(d) 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
80 days of their submission; If the
Administrator takes no action within
that time, the appeal shall be considered
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 In the public
interest. Such motion shall be made
within five days after receipt of
notification that the Presiding Officer
has refused to certify an order or ruling
for interlocutory appeal to the
Administrator. Ordinarily, the
interlocutory appeal will be decided on
the basis of the submissions rnade.to the
Presiding Officer. The Administrator
may, however, allow briefs and oral
argwnent
(e) 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. Only in exceptional
circumstances will proceedings be
stayed.
(f) The failure to request an
interlocutory appeal shall not foreclose
a party from taking exception to an
order or ruling In an appeal under
* 124.101.
• 124.101 Appeal to the AdmInIstrator.
(a)(1) Within 30 days after service of
en Initial decision. or the 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 such
initial decision or denial, 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. Proof of service
upon all parties shall accompany such
filing. The petition shall include a
statement of the supporting reasons for
such exceptions and, where 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
vhlch is Important and which the
.‘ Administrator should, In his discretion,
review.
(2) WithIn 15 days after service of a
petition for review under paragraph
(a)(1), any other party to the hearing in
question may file a responsIve petition.
(3) Policy or legal conclusions made, In
the course of denying a request for an
evldentiary 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 of an evidentiary
hearing the Administrator may, 9110
sponte, review such decision. Within
seven (7) days after the Administrator
has decided under this section to review
an Initial decision or the denial of an
evidentlary hearing, notIce of that
decision shall be served by mail upon
all affected parties and the Regional
Administrator.
(c) Within a reasonable time following
the filing of the petition for review, the
Administrator shall issue an order either
panting or denying the petition for
review. When the Administrator grants
a petition for review or determines
under paragraph (b) to review a
decision. the Administrator may notijij
the parties that only certain Issuershall
be briefed.
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34341
(dI Notwithstanding the grant of a
petition for review or a determination
under paragraph (b) to review a
minion, the Administrator may
ammarily affirm without opinion an
Initial decision or the denial of an
evidentiary hearing.
(a) To the extent an appeal under this
section involves issues of law, the
Administrator shall refer those Issues to
the General Counsel for determination
subject to his approval.
(I) A petition to the Administrator
under paragraph (a) for review of any
initial decision or the denial of an
evidentiary hearing is, under 5 U.s.c.
704.. prerequisIte to the seeking of
judicial ieyiew of the final decision of
the Agency.
(g)(1) If a party timely files a petition
for review or If the Administrator sue
spo.nte orders review, then. for purpose
of judicial review under section 509(b) of
CWA. final Agency action on an Issue
occurs after EPA review procedures are
exhausted and the Administrator’s
decision is Issued as follows:
(iJ If the Administrator denies review
or summarily affirms without opinion as
provided In 124.101(d), then the initial
decision or denial becomes the final
Agency action and occurs upon the
service or notice of such decision.
(ii) lithe Administrator iieues a
decision without remanding the
‘roceeding then the final permit.
drafted as required by the
.dministrators decision, shall be
reissued and served upon all parties to
such appeal in accordance with
paragraph (2). -
(iii) if the Administrator issues a
decision remanding the proceeding then
final Agency action occurs upon
completion of the remanded proceeding.
including any Administrator appeals
therefrom.
(21 For purposes of judicial review
under section 509(b) of CWA. final
agency action occurs 10 days after a
final permit is issued. After Agency
review procedures are exhausted a final
permit shall be prepared and Issued by
the Regional AdmInisfrator
(I) When the Administrator issues
notice-to the parties that review has
been denied If review is denied;
(ii) When the Administrator issues a
decision if review is not denied and the
Administrator does not remand the
proceedings; or
(iii) Upon the cothpletlon of remand
proceedings If the proceedings are
remanded unless the Administrator’s
‘remand order specifically provides that
appeal of the remand decision will be
requited in order to extend
‘ministrative remedies.
(h) 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 a brief In support of the -
petition. The petitioner may file a reply
b7ief within 14 days of service of the
responsive brief and any person may file
an o.micus brief for the consideration of
the Administrator. If the Administrator
determines, sue sponte, to review an
Initial Regional Administrator’s decision
or the denial of an evidenUam y hearing.
the Administrator shall notify the
parties of the briefing schedule.
(i) Review by the Administrator of an
Initial decision or the denial of an
evldentiary bearing shall be limited to
issues specified under paragraph (a) of
this section, except 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.
I 124.102 ApplicabilIty of subpart I.
(a) All the provisions of this subpart
except { 124.76, I 124.63(c)(3) and
I 1Z4.85(d)(1) concerning the automatic
receipt of the administrative record into
evidence shall apply to .11 hearings for
which the notice of hearing under
I 124.77 Is issued after the effective date
of these regulations, provided that the
Presiding Officer at any such proceeding
may vary or suspend any of the terms of -
these regulations during a aix-month
transitional period after their effective
date to avoid inconvenience or injustice.
(bJ Section 124.76 and the provisions
of I I 124.83(c)(3) and 124.85(d)(1) for
automatic receipt of the administrative
record into evidence shall apply to all
hearings regarding a permit which was
based on an atlvnlnatrative record under
U 124.20 and 124.62.
{ 124103 EPA headquarter, approval of
stipulation or consent agreement.
No evidentiary hearing under Subpart
B may be resolved, settled or decided, In
either whole or substantial part, by the
stipulation or consent of the parties
thereto, unless and until the stipulation
or consent is approved and signed by
the Deputy Assistant Administrator for
Water Enforcement.
No stipulation or consent without
such approval and signature shall bind
EPA or have any force or effect or be
filed in any proceeding.
Subpart F—Non-Adversary
Procedures for NPDES Initial Ucensing
1124.111 ApplicabilIty.
(a) Except as set forth In this Subpart,
this Subpart applies in lieu of, and to the
complete exclusion of. Subparts A
through B In the following cases:
(1) In all proceedings for the Issuance
of a modified permit under section
301(h) of the Clean Water Act, except
that In such proceedings:
(I) The terms “Administrator or a
person designated by the
Administrator” shall be substituted for
the term “Regional Admlnlatrator”; and
(2) In any proceedIngs for the issuance
of any other NPDES permit which
constitutes “Initial licensing” under the
Administrative Procedure Act, where
the Regional Administrator elects to
apply this Subpart and explicitly so
states In the public notice of the draft
permit. If an NPDES draft permit Is
processed under this Subpart, any other
draft permits which have been
consolidated with the NPDES draft
permit under 1 124.6(d) shall likewise be
processed under this Subpart.
(3) The parties to an evidentiary
hearing that would otherwise be held
under Subpart £ may agree to conduct
that hearing in accordance with this
Subpart. Any applicant for an NPDES
permit which is not an initial license
may request when requesting an
evidentiary hearing under 124.74 that
Its application be processed under the
procedures of this Subpart. If the
Regional Administrator agrees with this
request, and If a hearing is granted the
.notice of the hearing Issued under
1 124.110 shall Include a statement that
the permit will be processed under the
procedures set forth In this Subpart
unless a written objection is received
WithIn 30 days stating the reasons. If no
such objection is received, the
application shall be processed In
accordance with II 124.117—124.121 of
this Subpart, except that any reference
to a draft permit shall be taken as
referring to the final permit. If an
objection is received, Subpart £ shall be
applied instead.
(b) “Initial licensing” Includes both
the first grant of an NPDES permit to a
discharger that has not previously held a
NPDES permit and the first decision on
any variance applied for by a
discharger.
1124.112 Relatlontoothersubpert ..
The following provision, of Subparts
A through £ apply to procedures under
this Subpart
(a)(1) Sections 124.1 through 124.11.
(2) Section 124.16,
(3) SectIon 124.22.
(c)(1) Section 124.54 “Terms requested
by the Corps of Engineers and other
Government Agencies”,
(2) Section 124.61 “Final
environmental Impact statement”.
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Federal Register I Vol. 44, No. 116 I Thursday, June 14, 1979 I Proposed Rules
(3) SectIon 124k “Decision on
variances and modifications”.
(d)(1) SectIon 124.72 “DefinItions”.
(2.) Section 124.73 “Filing”.
(3) Section 124.78 “Ex pane
communications”.
(4) Section 124.80 “FIling and service”.
(5) Section 124.85(a) (Burden of proof):
(6) Section 124.88 “Motions”: and
(7) Section 124.87 “Record of
hearings”.
(8) SectIon 124.90 Interlocutory
appeal”.
124.113 PublIc notice rug.rdlng drift
permits and perm8 conditions.
Public notice of the formulation of a
draft permit under this Subpart shall be
given as provided In I 124.11 and
124.58. At the discretion of the Regional
Administrator, the comment period
specified In this notice may Include an
opportunity for a public hearing under
* 124.12.
I 124.114 Request far hearing; request to
participate in a ha.eL.g .
(a) By the close of the comment period
set forth In 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 such hearing; and
(4) Statements meeting the
requirements of 124.74(c)(1H5).
(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 suo aponle that a bearing
under thts Subpart is necessary or
appropriate, the Regional Administrator
shall serve written notice of the
determination on each person requesting
such hearing and the applicant, and
shall provide public notice of the
determination In accordance with
I 124.58(e). If the Regional
Administrator determines that a request
filed under paragraph (a) of this section
does not comply with the requirements
of paragraph (a) or does not present
genuine issues of fact, the Regional
Administrator may deny the request for
the hearing and shall serve written
notice of such determination on all
persons requesting the.hearing.
(c) The Regional Administrator may
also decide before a draft permit is
Issued that a hearing should be held
under this Part. At the discretion of the
Regional Administrator the notice may
provide for a hearing under I 124.13
before a panel hearing Is held, provided
that no cross-examination under
I 124.14 shall be permitted. When such a
hearing Is to be held, the notice of the
formulation of the draft permit under
1124.113 shall so state.
p124.115 EflsdofdenteIof,srst uswe
of, request for hwi g ,
If no request for a hearing Is made
under I 124.114, or If all such requests
are denied under that section, the draft
permit shall be treated procedurally as If
It were a recommended decision issued
under I 124.124 of this Subpart, except
that for purposes of 124.125 and
124.126 the term “hearing participant” or
“person who participated In the
hearing” shall be construed to mean the
applicant and any person who
submitted comments under 124.58(d).
* 124.1 16 Notice of hearing.
(a) Upon granting a request for a
hearing under I 124.114 the Regional
Administrator shall promptly publish a
-notice of)be hearing as requIred under
I 124581e). The mailed notice shall
Include a statement which Indicates
whether the Presiding Officer or the
Regional Administrator will Issue the
recommended decision.
*124,117 Request to participate in
(a) Each person desiring to participate
In any hearing noticed under this
section, shall file a motion to participate
with the Regional Hearing Clerk by the
deadline set forth In the notice of the
grant of the hearing. 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)(1)—
(5). .
(5) lIthe request Is submitted by an
organization, a non-binding list of the
persons to take part In the presentation.
As soon as practicable, but in no event
later than two 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
athnIn .tratI’re record and any other
Information which Is or reasonably
could have been available to that
person. All comments shall Include any
affidavits, studies, data, tests or other
materials relied upon for making any
factual statements in the comments,
(b)(1) Written comments filed under
paragraph (a) 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 participant believes can
be more effectively argued In the
hearing context.
(2) Notwithstanding the foregoing.
within two weeks prior to the deadline
specified In paragraph (a) for the filing
of main comments, any party who has
filed a request to participate in the
hearing 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 such person will be
prejudiced If required to submit such
comments In written form.
(c) Parties to any hearing may submit
written material in response to the
comments filed by other participants
under paragraph (a) at the time they
appear at the panel stage of the hearing
under § 124,120.
O 124.119 PresidIng officer.
(a)(1) Upon the granting of a request
for hearing the Regional Administrator
shall, as soon as practicable, request
that the Chief Administrative Law Judge
assign an AdmInistrative Law Judge as
Presiding Officer. The Chief
Athnini.trative Law Judge shall
thereupon make such assignment
(2) If all parties to the hearing waive
in writing their statutory right to have
the persons Identified In paragraph (a)
preside at the hearing, the Regional
Administrator shall name a lawyer
permanently or temporarily employed
by the Agency and without prior
connection with the proceeding to serve
as Presiding Officer.
(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 I 124.85(b)(1)—.
(15),* 124.83 (b) and (c), and;
(2) To receive relevant evidence
provided that all comments, under
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Federal Register f Vol. 44, No. 118 1 Thursday. June 14, 1879 I Proposed Rules
343
*124.118. the record of the panel hearing
under I 124.120. and the adminiitrative
record. as defined in * 124.10 (or In the’
case of voluntary use of these
procedures under I 124.l11(a)(3), the
administrative record for the final
permit under I 124.20 and 1 124.02) shall
be received In evidence.
*124.120 PIdI IML.g .
(a) A Presiding Officer shall preside at
each bearing 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 in
areas related to the hearing issue, at
least two of whom shall not have taken
part in preparing the draft permit. If
appropriate for the evaluation of new or
different issues presented at the hearing,
the panel membership may change or
may include persons not employed by
the EPA.
(b) At the lime of the hearing notice
pursuant to I 124.110. the Regional
Administrator shall designate the
persons who shall serve as panel
members for the hearing and the
Regional Administrator shall file with
the Regional Hearing Clerk the name,
address and area of expertise of each
person so designated. The Regional
Administrator may also designate EPA
employees who will provide staff
upport to the panel but who may or
ay not serve as panel members. Such
designated persons shall be subject to
the exparte roles in I 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 testily 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 where the Presiding Officer
determines, after consultation with the
panel, that such cross-examination
would expedite consideration of the
Issues. However, the parties may submit
written questions to the Presiding
Officer for the Presiding 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.
(eJ At any time before the close of the
aring. aiiy person may submit to the
Presiding Officer written questions
specifically directed to any person
appearing or testifying in the hearing.
The Presiding Office, after consultation
wIth the panel may, at his sole
discretion, ask the written question so -
submitted.
(f) Within ten days after the close of
the hearing, any of the participants shall
submit such additional written
testimony, affldavtt. Information or
material as such participant deems
relevant or which the panel may request
of such participant These additional
submissions shall be filed with the
Regional Hearing Clerk and shall be a
part of the hearing record.
1128.121 Opportunltyforcress-
ft
(a) Any participant ins panel hearing
may submit a written request to cross-
examine on 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 Issue(s) of material
fact regarding which cross-examination
is requested. 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
record made up to that stage of the
record, and the extent to which they are’
material to the decision on thr
application: and
(2) The person(s) a participant desires
to cross-examine, and an estimate of the
time necessary. This shall Include a
statement as to why the cross-
examination will result in resolving the
issue of material fact involved.
(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 such
request. if any request for cross-
examination Is granted, the order shall
be served on all hearing participants
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-exam lnatlon
(4) TIme limits for the examination of
witnesses by each cmss-examiner and
(5) The date. tune and place of the
supplementary hearing at which cross-
examination shall take place.
In issuing this ruling, the Presiding
Officer may determine that one or more
participants 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 such a case, the order
shall simply assign time for cross-
examination by that single
representative without identifying the
representative further. If said
participants with the same or similar
Interests shall fail to designate such
single representative, then the Presiding
Officer shall divide the assigned time
among the j’epresentatives of such
participants or Issue euch other order as
Justice may require.
(c) The Presiding Officer and to the
extent possible, the members of the
hearing panel shall be present at the
supplementary hearing. During the
course of the hearing, the Presiding
Officer shall have authority to modify
any order issued under paragraph (b) of
this section. A record will be made
under I 124.87.
(d)(1) No later than the time set for
requesting cross-examination, a hearing
participant 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 .lssue an order
granting or denying such request at the
time he Issues (or would have Issued) an
order under paragraph (b) of this
section. if the request is granted, the
order shall specify the alternative
provided and any other relevant
Information (e.g., 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 such request,
- require alternative means of clarifying
the record to be used whether or not a
request to do so has been made under
the Immediately preceding paragraph.
The person requesting cross.
examination shall have one week to
comment on the results of utilizIng such
alternative means, following which the
Presiding Officer, as soon as practicable.
shall Issue an order granting or denying
such person’s request for cross-
examination.
(e) The provisions of I 124.85(d)(2)
apply to proceedings under this Subpart.
I 124.122 Record for final permit.
(a) The record on which the final
permit shall be based in any proceeding
under this Subpart (other than a
proceeding by consent of the parties
under I 124.111(a)(3)) consists of:
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Federal Register Vol. 44, No. 118 I Thursday. June 14. 1979 1 Proposed Rules
(1) The administrative record
compiled under * 124.20;
(2) Any material submitted under
• 124.78 relatIng to ezc paiQ contracts.
(3) All notices Issued under * 124.113;
(4) All requests for hearings. and
rulings on those requests received or
issued under I 124.lIt
(5) Any notice of hearing issued under
I 124.116;
(8) Any request to participate In the
hearing received under 124.117;
(7) All comment ,, submitted under
O 124.118. any motions made under that
section and the rulings on them. and any
comments filed under O 124.113(b)(9);
(8) The full transcript and other
material received into the record of the
panel hearing under 0 124.12(
(9) Any motions for, or rulings. on
cross-examination flied or issued
• 124.121;
(10) Any motions for, orders for and
the results oL any alternatives to cross.
examination under I 124.121;
(11) The full transcript of any cross-
examination held; and
(b) In any proceedings under this
Subpart involving a permit which Is not
an initial license and which are
conducted under I 124.111(a)(3), the
record for decision shall consist of:
(1) The administrative record under
1124.20 or 0124.62;
(2) All requests for hearing submitted
under I 124.74, and all rulings on those
requests; and
(3) The items specified in
subparagraphs (a)(4) through (a)(11) of
this section.
4124.123 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-
examlnatibh are denied or after a
transcript of the full hearing Including
any cross-examination becomes
available, submit proposed findings of
fact; conduslons regarding material
Issues of law, fact, or discretion; a
proposed modified NPDES permit (if
such person is urging that the draft
permit should 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. Oral argument may be
held at the discretion of the Presiding
Officer on Motion of any party or sue
sponte.
• 124.124 Rsco’amenJid : yi
The person named to prepare the
decision shall, as soon as practicable
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 oripembers of it. This
decision shall contain findings of fact.
conclusions regarding all material I ssues
of law, and a recommendation as to
whether and In what respect the draft
permit shall be modified. After the
recommended decision ha. been flied.
the Regional Hearing Clerk shall serve a
- copy of such decision on each party and
upon the A.Imlnlnfrator.
$ 124.125 Appeal from or . ..iL.. . of
rsos ...e ..dsd deoisl’
(a)(1) WIthin 30 days after service of
the recommended decision, any party
may take exception to any matter set
forth in such decision or to any adverse
order or ruling of the Presiding Officer to
which such party objected, and may
appeal such exceptions to the
Administrator as provided In * 124.101.
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. Such final decision shall
Include findings of fact conduslons
regarding material issues of law, fact, or
discretion, as well as reasons therefoi-
and a modified NPDES 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 designee may
consult with the Presiding Officer.
members of the hearing panel or any
other EPA employee in preparing the
final decision. The Hearing and Record
Clerk shall file a copy of the decision on
all hearing participants.
1124.127 Fb%aldsdslonlftheieieno
review.
If no party appeals a recommended
decision to the Administrator, and If the
Administrator does not elect to review
It, the recommended decision is deemed
the final decision of the Agency upon
the expiration of the time for filing any
appeals.
1124.128 sis p.flwi of a.thwIIy n.
(a) The Administrator may delegate to
a Judicial Oflhcersny oral! of his orher
authority to act under this Subpart
(b) The failure of the Administrator,
Regional Administrator or Presiding
Officer to do any act within the time
periods specified herein shall not be
construed as a waiver or In derogation
of any rights, powers 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 herein, the
Administrator. Regional Administrator,
or Presiding Officer, as the case may be.
may grant such party such relief of a
procedural nature (including extension
of any time for compliance or other
action) as may be appropriate.
4124.129 EPA headquarters agpre .aI of
stipulation or consent agreement
No non-adversary Initial licensing
hearing under Subpart F may be
resolved, settled or decided, In either
.- rhole or substantial part, by the
stipulation or consent of the parties
thereto, unless and until the stipulation
or consent is approved and signed by
the Deputy Assistant Administrator for
Water Enforcement.
No stipulation or consent without
such approval and signature shall bind
EPA or have any force or effect or be
filed in any proceeding.
IPR Dcc. 7.-ism Plied -i54 OU J
OUJIQ COCE IMO.II-O
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6
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Monday
May 19, 1980
Environmental
Protection Agency
Consolidated Permit Regulations
Part X
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33290
Federal Regietet I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122, 123, 124, and 125
(FRL 1453—51
Consolidated Permit Regulations:
RCRA Hazardous Waste; SOWA
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 (EPA).
ACTION: Final rule.
SUMMARTI This rule establishes
consolidated permit program
requirements governing the Hazardous
Waste Management program under the
Resource Conservation and Recovery
Act (RCRA). the Underground Injection
tontrol (UIC) program under the Safe
Drinking Water Act (SDWA). the
National Pollutant Discharge
Elunination System (NPDES) program
and State Dredge or Fill (“404”)
programs under the Clean Water Act
(CWA), and the Prevention of
Significant Deterioration (PSD) program
under the Clean Air Act, for three
primary purposes:
(1) To tonsolidate program
requirements for the RCRA and UIC
programs with those already established
for the NPDES program.
(2) To establish requirements for State
programs under the RCRA. UIC. and
Section 404 programs.
(3) To consolidate permit Issuance
procedures for EPA-issued Prevention of
Significant Deterioration permits under
the Clean Air Act with those for the
RCRA. UIC, and NPDES programs.
paTEs: These regulations shall become
effective as follows: All regulations shall
become effective as to UIC permits and
programs July 18, 1980, but shall not be
Implemented until the effective date of
40 CFR Part 146. All regulations shall
become effective as to RCRA permits
and programs November 19, 1980. Part
124 shall become effective as specified
In 124.21. All other provisions of the
regulations shall become effective July
18, 1980. For purposes of judicial review
under the Clean Water Act, these
regulations will be considered issued at
1 p.m. eastern time on June 2. 1980: see
45 FR 26894, April 22. 1980. In order to
assist EPA to correct typographical
errors, incorrect cross-references, and
similar technical errors, comments of a
technical and nonsubstantive nature on
the final regulations may be submitted
on or before July 18, 1980. The effective
date will not be delayed by
consideration of such comments.
Comments on the scope and
applicability of Executive Order 11990
and Executive Order 11988 to RCRA.
UIC. and NPDES permits must be
submitted on or before July 18, 1980.
Comments on requirements for Class
N wells must be received by July 15,
1980.
There will be a hearing on the
requirements for Class N wells on July
8,1980, from 9 a.m. to 5p.m.
AD0RESSE Comments of a technical
and nonsubstantive nature, as well as
the comments concerning the scope and
applicability of Executive Order 11990
and Executive Order 11988, should be
addressed to: Edward A. Kramer, Office
of Water Enforcement (EN—336), U.S.
Environmental Protection Agency.
Washington, D.C. 20460.
Comments on requirements for Class
IV wells should be addressed to: Alan
Levin, Director, State Program Division
(WH—550), Office of Drinking Water,
Environmental Protection Agency,
Washington. D.C. 20460.
The Public Hearing on Class IV wells
will be held at: HEW Auditorium, 330
Independence Avenue, S.W.,
Washington, D.C.
FOR FURTHER INFORMATION CONTAC1
Edward A. Kramer, Office of Water
Enforcement (EN—336). U.S.
Environmental Protection Agency,
Washington, D.C. 20460. (202) 755-0750.
SUPPt.EMENTARY INFORMATION:
Background
These final regulations consolidate
requirements and procedures for five
EPA permit programs. These regulations
represent the major product of the
Agency’s permit consolidation initiative
that began in the fall of 1978. They are
based on the proposed consolidated
permit regulations that were published
In the Federal Register for comment on
June 14, 1979 (44 FR 32854).
EPA program requirements and State
program requirements are established
for three programs: -
• The Hazardous Waste Management
(HWM) 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
Elixninat.on System (NPDES) program
under the Clean Water Act (CWA); and
State program requirements only are
established fon
• State section 404 “Dredge or Fill”
programs under the CWA.
In addition, procedures for pe’
decisionmaking are establIshed
above four programs, and for
• The Prevention of Significant -
Deterioration (PSD) program und’
Clean Air Act, where this progra
operated by EPA or a delegated St ..
agency under 40 CFR 52.21(v): these
procedures do not apply to PSD permits
issued by States to whom
administration of the PSD program has
been transferred. (See preamble to Part
124, Subpart C.)
These regulations are an Important
element of an Agency-wide effort to
consolidate and unify procedures and
requirements applicable to EPA and
State-administered permit programs.
The Agency has also developed a
single set of permit application forme for
the programs covered by these
regulations. These consolidated
application forms are published
elsewhere in today’s Federal Register.
They consist of a single general Form to
collect basic information from all
applicants, followed by separate
program-specific forms which collect
additional information needed to issue
permits under each program. The
application forms in today’s Federal
Register include the general information
form and the additional forms for
certain water discharges under 1
and for hazardous waste permit.
RCRA.
When the draft consoUda ted
applcation forms were published
public comment, they appeared along
with a set of proposed NPDES
regulations which were closely related
to the contents of the application forms.
Those accompanying regulations have
now been integrated with the final
NPDES regulations which appear as part
of these consolidated permit regulations,
and are summarized in the proper places
in the preamble discussion. For a more
thorough discussion and response to
comments on those portions of the
NPDES regulations, see the preamble to
the consolidated application forms
published elsewhere in today’s Federal
Register. Because the draft application
forms and accompanying proposed
NPDES regulations were originally
published together, commented upon
together, and are closely related, the
detailed disbussion of both forms and
accompanying regulations has b :en
retained in one place.
Many of the requirements in these
regulations apply both to EPA programs
and to State programs that receive EPA
approval to operate In lieu of a Federal
program In a particular State. Th’
common requirements are inten’
ensure that State permit progran
satisfy minimum statutory and
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations
33291
environments! objectives, while at the
same time recognizing that State laws,
procedures. and management
philosophies differ. EPA also seeks In
these regulations to help States
rationalize their own regulatory
.programs by removing or avoiding
Federal obstacles to such efforts. These
regulations allow greater coordination
and cooperation In permit review and
Issuance between EPA and States with
approved RCRA. UIC. NPDES. 404. or
PSD programs In instances where a
single facility or acthity requires
permits from both EPA and one or more
State agencies.
Although nothing in these regulations
would require a State to reorganize Its
permitting procedures. EPA encourages
States to begin or continue efforts
toward “one-stop” permitting or other
forms of permit program consolidation.
The Agency anticipates a number of
benefits to the environment, the
regulated community, the general public.
and its own institutior.al efficiency from
permits consolidation:
• Environmental Benefits:
Consolidation of permit requirements
and processing procedures should result
In more comprehensive management
and control of wastes.
, Regulatory Benefils: More uniform
procedures and permit requirements
among EPA permit programs should -
result in more consistency and
predictability for the regulated
community, and in many instances this
should reduce the costs of compliance.
Consistent program requirements and a
single set of application forms for EPA-
issued permits should reduce paperwork
and increase efficiency In processing
permits.
Institutional Benefits: The Agency
has already experienced greeter
coordination, sharing of information.
and resolution of inconsistencies and
overlaps among the various programs
during the development of these
regulations. This high level of
coordination and awareness is expected
to continue.
• Public Participation Benefits:
Procedures and opportunities for public
participation in permit decisions and in
State program approvals are more
uniform and predictable under these
regulations.
• Resource Benefits: Consolidating
these permit programs should reduce the
resources EPA needs to administer them
over the next few years, compared with
what the expanding scope of EPA permit
programs would otherwise require.
Consistent program requirements and
use of the consolidated application
forms should be particularly helpful in
starting up and administerins the two
new programs (RCRA hazardous waste
and UIC) covered by these regulations.
If States adopt similar approaches,
resource benefits could also be realized
at the State level.
Orgoiizotion of Final Regulations
The final regulations replace 40 CFR
Parts 122, 123, and 124. which were
formerly used exclusively for NPDES
program regulations. These Parts of the
Code of Federal Regulations are being
used because they already provide the
skeleton for organizing permit
regulations, namely:
• PART 122—PERMIT REQUIREMENTS.
• PART 123.—STATE PROGRAM
REOumFMENT 5.
• PART 124—PROCEDURES FOR
DICISIONMAIcING.
Parts 122, 123. and 124 have been
organized Into Subparts. Subpart A of
each Part applies to each permit
program Included in that Part.
Subsequent subparts set forth additional
program-specific requirements for the
Individual programs.
Although the Agency has attempted to
unif)- these regulations, statutory and
programmatic considerations preclude
complete uniformity. Thus. to review the
regulations for a partIcular program, one
must read both the general Subpart A
plus any applicable program-specific -
subpart.
Summary of the Regulations
• Part 122—Establishes definitions
and basic permit requirements for EPA
administered RCRA. UIC, and NPDES
programs. Part 122.also provides certain
requirements applicable to Stale
programs. Including State 404 programs,
but only to the extent Part 123 explicitly
refers to Part 122 requirements. Part 122
spells 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.
• Pat-i 123—Establishes the
requirements for State programs
operated In lieu of EPA. after a program
has received the approval cf the
Administrator. In addition to the RCRA
hazardou& waste, UIC, and NPDES
programs, Part 123 governs State section
404 programs for discharges of dredged
or fill material into certain waters of the
United States. After receiving the
approval uf the Administrator a State
may issue section 404 permits, In lieu of
the United States Army Corps of
Engineers, in so-called “Phase U and Ill”
waters (sometimes referred to as
tradilionaily non-navigable waters). In’
addi (ion. Part 123 contains the
procedures for EPA approval, revision.
and withdrawal of a State program.
Part 124—Establishes the
procedures to be followed in making
permit decisions under the RCRA
- hazardous waste, UIC. PSD, and NPDES
programs. It includes 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 Requirements
Technical regulations containing
requirements and cnteila which apply to
decisionmaking under the RCRA. UIC.
NPDES. 404, and PSD programs have
been developed separately from Parts
122—124. These regulations set the
standards for the contents of permits
Issued under these programs and
provide some of the technical bases for
determining the adequacy of State
programs and individual permit
decisions.
The coverage anà format of the
consolidated permit regulations, and the
location of the technical regulations
which correspond to each program. are
summarized in the following chart
SLUNG COOS 15 10.01-N
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33292
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations
TPIBLE I: O ./ERAGE ND FO 1kT
Name
— I I nso1idated I
in Tethn.tca l
O verage 1122112311241 Act I uir nts’
I I I I
generation, trans- Yes JYesI Yes 1 Pesource 40 CFR
I portation, treat- I I Cbnservaticn 4 260-266
nent, storage, Pe iexy Act
Idisposalof ‘ ( A) I
hazardous weste I I I I 42 USC §6901
I uic I well injection! 1 YesIYes Yes 1 Safe Drinking I 40 CFR 146
Injection protection of 1 Water Act
I ntroi Program drinking ter I ‘ (S ) I
I uifers I I 42 USC §300f
jNationa l NPDES ‘discharge of IYes 1 Yes Yesi Clean Water I 40 CFR 125,
llutant westa ater into ?ict 129, 133, &
Discharge Ethni-I - weters of the U.S. i I (a ’ .) Subchapter NI
ration Systam I I I 33 USC §1251
Dr ge or Fill 404 discharge of Par Yes 1 ParJ Clean Water I 40 CFR 230
IProgra m dr iged or fill tiyl tly Act
I ‘net.erial into I I I (°‘)
weters of U.S. ‘ I 33 USC §1251 I
IPrevention of PSD anissicn of b b j Yes I Clean Air Act 40 CFR 52
significant I ‘pollutants fran I (C ) I
Deterioration i I oes in - l
I clean air areas I 42 USC §7401
I III — .
SILLJPIU CODE e5eo.oi.C
Part 122—Program Requirements
A. What Does This Part Do?
(1) Coverage. Subpart A of Part 122
deals with EPA administration of the
RCRA hazardous waste, UIC, and
NPDES programs. First, it provides
definitions for terms used in these
regulations. Second. Subpart A contains
basic program requirements applicable
to EPA administration of these three
programs. such as applidation
requirements, standard permit
conditions. and grounds for modification
and termination of permits. Subparts B
through D of Part 122 describe
additional program elements of these
three pregiams. Subpart B is specific to
RCRA hazardous waste, Subpart C to
UIC, and Subpart D to NPDES. The
reader must consult both the general
Subpart A and the appropriate program-
specific Subpart B, C, or D for a full
description of any one program.
Certain of the Part 122 program
requirements are applicable, as
Indicated in section headings and in Part
123, to State RCRA, UIC, NPDES. or 404
programs which obtain approval to
operate in lieu of EPA programs (or, in
the case of 404 programs, in lieu of the
U.S. Army Corps of Engineers). In
addition to the definitions for RCRA.
UIC. and NPDES. Subpart A of Part 122
contains definitions used in Part 123 for
State 404 programs, but no 404 Subpart
appears in Part 122 because EPA does
not Issue Federal 404 permits.
(2) Complexity. A large number of
commenters on proposed Part 122. and
the consolidated permitregulations in
general. stated that the regulations are
difficult to use because of their
complexity, length. and numerous crou-
references both to other sections of
these regulations and to the separate
technical regulations.
EPA agrees that the consolidated
regulations are complex. Much of this
complexity is due to the fact that the
regulations Include provisions under five
programs which regulate complex and
differing types of activities under four
different statutes. The consolidation of
regulations under these five permit
programs may not make the substantive
requirements of the five programs easier
to meet. However, we believe that these
regulations are less complex than they
would have been if issued In five sets of
regulations developed In Isolation from
eachother. By developing the permit
regulations as a set, contradictions,
gaps and overlaps among program
requirements have been detected and
more easily and completely dealt with.
In addition. consolidation has avoided
many differences in approach that are
not direct conflicts, but which still are
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Federal Register / Vol. 45, No. 98 I Monday. May 19, 1980 I Rules and Regulations
33293
unnecessary to carry out the objectives
of the program. The consolidated
regulations make the provisions more
uniform, and therefore easier to learn
and deal with conceptually, by favoring
consistency among programs where
differences are not required by statutory
objectives. In addition, these regulations
achieve some saving in total length
because provisions which are applicable
to all programs only have to be stated
once.
While EPA has retained the idea of
consolidation and the basic format of
the proposed regulations, we have taken
or will be taking a number of steps to try
to make the regulations easier to use
and less confusing.
First. EPA will conduct an extensive
program for public awareness after the
regulations are promulgated. One aspect
of this proram will be preparing and
distributing reprints of the regulations.
which will contain only the parts of
these consolidated regulations
applicable to each program individually.
This will make it possible for a reader
Interested in only one program to find
out about it without reading about other
programs. These individual program
reprints may be combined with the
separate “technical” regulations for a
program. such as the Part 146
regulations for UIC, in order to provide a
single package which contains the entire
universe of regulatory requirements for
one program and thereby ease the
burden of pursuing cross-references.
In addition. EPA will be preparing a
series of booklets on the regulations
written to address the concerns of
particular constituencies. For example.
one such booklet will be specifically
A reader might wish to determine the
treatment of a particular activity under
Part 122 in the following manner
(referring to Table II): First. If the
addressed to farmers, and another
addressed to permit applicants in
general. -
Second, the consolidated regulations
themselves have been redrafted with
particular attention to their organization
and their readability. Steps that EPA has
taken in this effort include the following:
• The sequence of sections within
each of the subparts of Part 122 has
been rearranged for logic and
consistency and to provide a discernible
“map” for proceeding through the
regulations. Each subpart of Part 122
includes three types of provisions: (1)
Orientation material such as the
purpose and scope of each program.
prohibitions, and the classification of
injection wells; (2) the ways In which
activities covered by the program! are
authorized, either through application
for a permit or by permit substitutes
such as interim authorization or
authorization by rule; and (3)
Information on how conditions are
Incorporated into permits—first, the
conditions that do vary from permit to
permit. and then information on how to
calculate or specify conditions which do
vary from permit to permit. In addition,
(4) Subpart A contains sections on the
effect of having a permit, such as the
extent of the protection a permit
provides. how it is reviewed, and when
it can be modified or terminated. The
regulations have been orgadized to
foUow this sequence, and we have
rewritten the section headings to clarify
the relations between provisions in
Subpart A and parallel provisions in the
program subparts. The organization of
the final regulations is displayed in
Table II.
activity Is within a State with an
approved program the individual is not
directly covered by Part 122, but rather
by State program statutes and
regulations approved under Part 123.
and the reader would consult those
State statutes and regulations. Because
some of the programs covered by these
regulations are new, and others may not
be approved in a particular State. the
reader might wish to consult Part 123 to
determine what the minimum
requirements for one of these programs
would be in the State. Otherwise, the
reader would first go to the “Orientation
Material,” which summarizes each
program sufficiently to give a quick idea
of whether further examination of the
regulations is warranted. If the activity
is covered, the reader would next turn to
the “Application” provisions to see what
procedures to follow in obtaining a
permit or other authorization. Beyond
this point an individual’s requirements
under these programs will be spelled out
in the permit document (except where
the activity is authorized by a “rule” or
other permit substitute). If the reader
wants to know what his or her permit
requirements would be. he or she could
go on to the provisions on “Establishing
Permit Conditions.” First. “standard
conditions” that will appear in all
permits can be looked up. Second. the
sections on establishing variable permit
conditions can be consulted: these will
refer to the location of the other sections
of these and other regulations that set
forth the requirements ror variable
permit conditions and how they are
derived. The specific conditions of these
permits for the most part will be derived
through the application of technical
regulations for each of the programs
which do not appear with these
regulations. Finally, the provisions in
Subpart A on the “Effect of a Permit”
will tell the reader what it means to
have a permit: the protection that it
offers, and how it may be reopened or
changed.
• Orientation sections have been
added to the beginning of each subpart
of Part 122. The first of these orientation
sections briefly introduces the
consolidated regulation as a whole
( 122.1). The second sets forth the
purpose and scope of Part 122 (I 122.2).
Finally, eacn of the program subparts of
Part 122 now contains an introductory
section setting out the basics of that
program’s permit system. These
introductory sections are designed both
to indicate at the beginning what
activities are regulated, and to make the
more detailed sections which follow
easier to comprehend. Much of this
material is explanatory and illustrative
rather than regulatory. EPA believes
that inclusion of this material will help
reduce the confusion created by the
complexity of the regulations. Because
Tabis lL—O’gan zabo.i of Pail 122
& .Oswl A(Gsnril) S , pan 5 Rc 4 Sui wt C (UICI Subpifl 0 (NPCES)
L On.i,taban i, tSna4
132110 122.2....... 13221 .,........ ,. ............ 1223 ...... . ... ......... *3251
eiaic u im pov .is wId wwc - 122.3 1223210122.36...... 132.52.
92e.
n. AppI uXI
P,sajØcason II sf,.si ,10 ._..._.__ 122.20... 122 37_......
purnit mai a3
Wl 1 0l p p Sst Ipu!ITh 1224 122.22..._......_ 1223$..___.. _._ 12253
Slid P10W? *225, and 122.6 122.24 Slid $22.25.. 122S4 1013252.
5pa I puni ._... .. — _________ 122.2 510 122.27..,... 122.3510 t22.4U . ..... 12259
U I EuiasidIwig punt
$tndi4pumnt ...__. 1227__.............. 122 .2L._............_ 1224 1_.......... 12260Slid12301.
Cilaa wig vurw010 w — 122.6 122.42................._ 122.5210122.59
122.510 I32 I2_ 132.2910122.30..... m is uin.4s. ... 122.0410120.1 1.
I V Elluct a ssmt...._ l I3 10132.19..... —- —
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33294
Federal Register I Vol 45. No. 98 I Monday, May 19, 1980 I Rules and Regulations
the Introductory sections are summaries
they can not substitute for the.full -
regulations which follow.
Those sections of Part 122 and Part
124 whIch are applicable to State.
programs (through reference In Part 123)
have been highlighted In the section (or,
where necessary, paragraph) headings.
Indication that a section is “applicable
to State programs” does not mean that
exactly the same provision will be
applicable to owners or operators who
receive their permits from a State.
Rather, “applicability” means that a
State program must have a similar
provision in its own statutes and
regulations In order to receive approval
to operate In lieu of EPA (or the Corps of
Engineers for 404). For the
corresponding State provision, these
statutes and regulations would have to
be consulted. This subject is discussed
at length in the preamble to Part 123.
• Some material has been shifted
from the program-specific subparts to
Subpart A when It makes sense to do so.
An example Is noncompliance reporting
( 122.18): moving all the requirements
Into Subpart A has eliminated many
sections and a large number of cross-
references, as well as many needless
inconsistencies.
• EPA has attempted whenever
possible to Indicate in italics at the
beginning of subparagraph. and
paragraphs when the material that
follows is applicable to one program
only, as occurs occasionally In the
general Subpart A.
• Paragraph and subparagraph
headings have been added to break up
long sections or to identify the material
which follows. However, it Is not always
possible to provide a heading for every
paragraph in a section.
• A large number of cross.references
between these permit regulations and
the technical regulations is unavoidable.
However, EPA has tried to organize
both sets of regulations to place the
permit material In the permit regulations
and technical material In the technical
regulations, to make these materials
consistent, to provide cross-references
when needed. and to make the cross-
references understandable. We have
added topical headings for many cross.
references to help readers determine the
nature of the requirement referred to.
• Some conunenters raised concerns
regarding the stanza of “comments’ in
the proposal, especially when they
contaIn regulatory material. We have
attempted to eliminate as many
comments as possible by moving
regulatory material Into the text and
purely explanatory material Into the
preamble or the “purpose and scope”
sections. However, we have retained
some comments to give examples or
Illuminate requirements contained in the
regulations. Following standard Federal
Register style, these comments have
been labeled as “Notes.”
B. How Does This Part Relate To The
June 14, 1979 Proposal?
Subpart A—General Program
Requirements
The following is a discussion of the
significant comments received and of
the basis for revisions made to Part 122
of the proposed regulations. Minor
editorial and stylistic changes (including
“(echnical amendments” solicited in the
preamble to the June 7, 1979 final
NPDES regulations) have been made In
all sections and are not discussed.
“Includes, but Is not limited to” or
“includes without limitation” have been
rewritten simply as “includes” In all
cases and wherever that term appears,
the provisions which follow are not
exclusive.
*122.2 What are the consolidated
permit regulations?
Much of this material appeared In
proposed I 122.1. “Purpose and scope,”
but It has been reorganized and
rewritten to logically set out the
coverage of the entire consolidated
permit regulations. Thus, there are now
separate paragraphs on (a) coverage, (b)
structure, (c) relation to other
regulations. (d) authority, (e) public
participation, and (f) State authorities.
State authorities was formerly I 122.4.
Because It Is generally true of these
regulations, and not just true of Part 122.
that they do not preempt more stringent
State requirements (except as provided
for RCRA In I 123.33), the proposed
sectc’n was moved to * 122.1 where It
appl!es to all of the regulations. It was -
reworded to clarify that these
regulations do not preempt more
stringent requirements whether or not
those requirements are part of an
approved State program.
122.2 Purpose and scope of Part 12&
This section Is completely new. It has
been added to make Part 122 easier to
read and to darlfy its organization.
Many comnienters noted that the
applicability of Part 122 to the PSD
progrim was unclear. The PSI) program
was not mentioned in proposed I 122.1,
“Purpose and scope.’ but some of the
definitions In Part 122 appeared to be
applicable to PSD. EPA has decided that
the best way to avoid confusion is to
exclude PSD from Part 122 entirely, and
this Is noted in the regulations. Instead,
PSI) definitions appear in Part 124.
Subpart C.
* 222.3 Definitions.
A number of commenters madL
general suggestions to cope with the
difficulty of finding the correct defir
In 122.3. The proposal organized t.
definitions into a paragraph contalniia .,
“general definitions” followed by
paragraphs containing definitions
applicable to each of the programs
Individually. EPA has followed a
suggestion that all the definitions be
organized Into one alphabetical list. If a
term applies to fewer than all of the
programs, a parenthesis is Inserted after
the term to indicate to which programs it
applies. However, because many
readers of this preamble are likely to be
particularly interested in the definitions
for a single program, the following
response to comments will continue to
follow the proposed format by
discussing first the “general definitions”
and then the definitions that apply to
Individual programs.
Frequently terms are defined in
reference to other terms which are also
defined. When a defined term appears
in a definition, the defined term appears
with quotation marks when this may be
helpful. Also, technical terms are
frequently used In these regulations In
their acronym form, such as “BlIP” c-
“best management practices.” Wr
expanded the definition section h
Include these acronyms. which are
placed In their alphabetical order an
all the other definitions.
(1) General definitions.
Administrator. Some commenters
pointed out the conflicts between the
proposed definition’s delegation
language (“his/her designee”), and those
in the definition of Regional
Administrator (“delegated
representative”), proposed I 122.11(e)
- (Director or an “authorized
representative”), and proposed § 123.37
(Regional Administrator or “his
designee”). For consistency, the term
has been made uniformly “or an
autorized representative.” Elsewhere In
the regulatIons, only Administrator,
Regional Administrator, or Director is
used, with the understanding that
authorized representatives and
designee. are Included In these terms
unless Indicated otherwise. For
example, the Regional Administrator
may be the authorized representative of
the Administrator.
Appropriate Act and regulations. For
the reasons discussed under I 122.2
above. EPA has deleted the reference to
the Clean Air Act.
Aquifer and underground sourc
thinking water. Some commenter,
objected to the fact that the propos . -.
effect set forth two definitions of
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
33295
“underground source of drinking water”
(USDW), one for use under RCRA and
one with “more latitude” for use In the.
UIC program. (The greater flex,ibility for
USDWe In the UIC program resulted
from the procedures for eliminating
certain aquifers, now called “exempted
aquifers,” from the coverage of the IJIC
program.)
Likewise, commenters noted that the
proposed definition of “aquifer”
(“capable of yielding useable quantities
of groundwater”) contradicted the
definition In proposed 250.41(5) for
RCRA (“useable quantities to wells or
springs”). The final definition applicable
to both RCRA and UIC which appears In
the consolidated regulations Is “a
geological formation, group of
formations, or part of a formaLion that Is
capable of yielding a significant amount
of water to a well or spring.” This Is
slighily different than the definition
which appears in Part 260 for RCRA,
which is the same as proposed
250.41(5).
In both instances EPA agrees that
these definitions should be the same for
both programs, and EPA will conform
them. They have not been conformed in
these regulations because the question
of the proper definition of “aquifer” and
“USDW” are closely related to the
scope and form of the section 3004
standards under RCRA and to the
manner in which Class IV wells will be
dealt with. Both those Issues are
scheduled for final resolution by EPA
next fall. The definitions of “aquifer”
and “USDW” will be changed at the
same time. The current definition of
“USOW” applies to the RCRA program
only Insofar as injection wells are
regulated under RCRA under § 122,26.
Best management practices. Several
commenters noted that It was confusing
to provide two separate definitions of
“best management practices” (BMPs):
one for NPDES and one for State 404
programs. The two definitions have
been combined so that they appear in
one place. The differing coverage under
two programs Is highlighted in the new
combined definition.
For 404, several commenters objected
to the requirement that BMPs “ensure
compliance with water quality
standards.” EPA agrees that the
proposed definition could be Interpreted
to place an unrealistic burden on
Individual DMPs, and therefore has
changed the ’defimtion to require that
BMPs facilitate compliance with
applicable water quaiity standards
Some commenters argued that there
should be no reference at all to water
quality standards because CWA section
404(hj(1)(A)(i) does not mention them,
The Agency disagrees, because that
section refers to the environmental
guidelines promulgated under CWA
section 404(b)(1) (the “section 404(b)(1)
guidelines,” 40 CFR Part 230) which do
require compliance with applicable
water quality standards.
Some commenters wanted the BMP
definition to require consideration of
practicability, feasibility, or economics.
The final regulation allows States to
Include such considerations In additions
to the minimum environmental
requirements. It should also be noted
that the section 404 BMPs contained In
I 123.92 are not absolute requirements;
anyone objecting to any of them may
apply for a permit and raise questions of
practicability In that context.
Facility or activity. In response to a
comment, EPA has clarified the
applicability of this definition to section
404 programs by adding a reference to
the 404 program. “Facility” and
“activity” frequently appear in Part 123,
Subpart E.
Hazardous waste. Two co ’ nmenters
stated that a full definition of
“hazardous waste” rather than a cross-
reference should be given. However, the
definitiOn in Part 261 Is too complex to
be set out in full. Several other
commenters stated that no reference
should be made to RCRA section 1004
because that definition Is not self.
implementing and the only hazafdous
wastes covered by Subtitle C of RCRA
are those which are identified or listed
under section 3001. EPA accepts this
comment and has changed the definition
of “hazardous waste” so that it reads
entirely In terms of the subsLantive
RCRA regulations.
Major facility. This is a new definition
added to the final regulations. It is
discussed in paragraph (2) of the
preamble to I 122.18.
Owner or operator. This definition
remains unchanged. Some commenters
sought clarification of what happens
when the owner and operator are not
the same, and expressed concern that
requirements of the permit program
might, by virtue of this definition, be
Imposed on landowners who have no
Involvement in operation of a permitted
activity. To address this concern, we
have amended 122.4, application for a
permit. to provide that the operator is
responsible for obtaining a permit and
complying with II when ownership and
operatlbn are split. However, RCRA
applications must be signed both b) the
owner and the operator. The
requirements of a RCR.A permit }‘ind
both the “owner” and the “operator” of
the permitted facility, while the
requirements of other permits subject to
this Part bind only the permit holder.
The reasons for this approach are
explained in the preamble to the
regulations Implementing section 30% of
RCRA. Briefly, this approach has been
chosen because there is at least one
provision of the 3004 regulations that
only the owner can comply with—the
one requiring insertion of a notation in
the deed to the property In question. It
also may be materially more difficult to
Implement and enforce the closure and
financial responsibility provisions of the
regulations LI the owner Is not bound.
since In at least some of those cases the
site may have been abandoned and the
“operator” may be difficult to determine.
Joint responsibility will also provide
more Incentive to comply with the
requirements of the RCRA program.
Finally, the legislative history suggests
that both owner and operator should be
bound,
To ensure that both the owner and the
operator understand their joint
responsibility, EPA is requiring both t it
owner and the operator to sign the
permit application. In adopting thie
approach, however, EPA has no
intention to require both owner and
operator to take all or even most
compliance actions in tandem. EPA wIll
regard compliance by either owner or
operator with any given obligation
under the permit as sufficient for both of
them. EPA anticipates that in most cases
the operator will take the lead role in
complying with all but the few
conditions that only the owner can
satisfy. The owner is free to make
arrangements with the operator by
contract or otherwise to assure itself
that the operator will take most actions
necessary for compliance activities
beyond that, Nonelheless, EPA
considers both parties responsible for
compliance with the regulations.
Permit, EPA has changed the
definition in response to comments.
First. commenters found obscure and
confusing the statement that “in Part
124, reference to ‘permit’ may include
permit modification, revocation or
denial,” EPA agrees. Part 124 has been
rewritten to specify the precise kinds of
permit actions to which its provisions
apply.
Second, we have clarified the scope c:
the definition by adding references to
other types of authorization or
documents, such as “general permit,’
“draft permit,” and “permit by rule.”
Similarly, § 122.4, application far a
permit, is now written to clarify which
of the several types of permits or other
authorizations under these regulations I
covered by the application requirern ’nt.
Finally, the procedures governing
issuance, administration, or termtrtatioe
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. 33296 Federal Register I Vol. 45, No. 98 1 Monday, May 19, 1980 I Rules and Regulations
of Interim status, authorization by rule.
permits by rule, and emergency permits
are segregated within their own
sections. As a result, provisions of Parts
122 and 124 (and discussions In this
preamble) which are generally
applicable to permits. permit
applications, and permittees are not
applicable to those types of
authorization, but are applicable to all
other permits, Including area permits
and general permits. The following chart
may be helpful In determining which
provisions of the regulations apply to
which kinds of authorlzatfons
1WNG 000€ U8O-O1-M
-------
Thble III , ‘WPFS C1 PERIIT PHD aflIER. NJfl1)RI7 TtCl1
Type of Aut] rizatLon I pplication Required? I Part 122 J pp1ies Part 124 Prooedures
, I Genera 1 y? A p1ica 1e?
Permittee Issued
Individual_ [ bctm nt?
“permit Yes, §122.4
Yes
!Yes
‘Yes
Part A, see lb. only §122.22
interim status, §122.22 I
§122.22
permit by rule. lb lb only §122.26
§122.26 I
1 Partly. l rmina-
I tion, see §122.23
(a)(3)
I lb /
I
lb
I
lb
I
anergency permit, Yea lb. only §122.27
§122.27 I I -
lb
I
Sometimes L”
I
UIC 1 lb tb, only §122.37
auth,riratian by
nile, §122.37
lb
1 lb
.
area permit, §122.381 Yea
emergency permit, I Yes
I
Yea -
lb. only §122.39
Yes
lb
I
I Yes
I Sosetimes
I’
I
NPDI I
general permit, lb I
§122.59 1
Yes
I
Yes
I
,
lb
404 I I
eral permit, lb Yes
I (Ibtice)
Yes
i
lb
emnergencypermit, ) yes lb
L22.59
I lb
i
I
iSometimes ‘ .
i.
SIUINO CODE eseo-oi-C
-
-
0.
eD
1
0
a ’
z
0
0
0.
I-a
(0
(D
0.
ID
—
0
CO
‘a
C e
-------
3298
Federal Register / Vol.45. No. 98 I Monday,_May 19, 1980 / Rules and Regulations
Person. The definition has been -
rewo ded to eliminate duplication.
State. One commenter suggested that
this definition be changed to include
Indian tribes so that they would be able
to administer programs under Part 123.
EPA has not accepted this suggestion
because 1LCRA, SDWA, and CWA all
explicitly define “State” and none
Includes Indian tribes. Indian tribes are
Included within the meaning of
“municipality” In these statutes.
State Director. The definition has
been changed from “a State agency” to
“any State agency” to reflect the fact
that a State may have more than one
agency administering the permit
programs.
(2) Definitions for RCRA.
Comments were received requesting
clarifications or revisions to definitions
applicable to the RCRA program
requirements. Many of the definitions
have been clarified or revised. All RCRA
definitions in these final regulations are
taken from 40 CFR Part 260. Part 260
provides the definitions for terms used In
40 CFR Parts 261 through 266. Using the
Part 260 definitions In these regulations
will ensure uniformity in all the
regulations promulgated under Subtitle
C of RCRA. Comments on the RCRA
definitions are addressed and responded
to as part of the rulemaking on 40 CFR
Part 260.
Existing HWM facility. This
definition is discussed in the preamble
to Part 122. Subpart B.
Major Hazardous Waste Management
Facility. In the proposal EPA defined
“major HWM facility” as one that
handled at least 5,000 tons of waste a
year. EPA received a number of
comments questioning this definition.
For the reasons discussed in the
preamble to § 122.18, EPA has
determined that major HWM facility
will be defined through guidance, and
consequently this definition has been
deleted. EPA intends that this guidance
will result in approximately 10 percent
of RCRA facilities being classified as
major.
(3) Definitions for UJC.
Well. Commenters requested that
sludge drying beds and treatment
lagoons which seep into groundwater
should not be considered wells. EPA
agrees and has added a definition of
“well.” Lagoons and drying beds do not
meet this definition of a well. However,
those facilities may be subject to
regulation under RCRA.
Additional definitions. Definitions for
the following UIC terms have been
added to clarify their use In the
consolidated permit regulations!
acidizing. exempted aquifer, fluid.
formation, formation fluid, and plugging.
These new terms and comments on
terms which appeared in the proposal
are discussed in the preamble to Part
122, Subpart C, or will be discussed in
the preamble to 40 CFR Part 146.
(4) Definitions for NPDES.
Navigable waters and waters of the
United States. Commenters noted that
the definitions for “navigable waters”
and “waters of the United States” were
circular. EPA agrees and has eliminated
the use of the term “navigable waters”
In favor of using “waters of the United
States” throughout these regulations and
providing a single definition. “Waters of
the United States” was chosen for the
same reaIon that It Is used in the Clean
Water Act: the Act covers much more
than waters which are traditionally
“navigable.”
The following changes have been
made in the proposed definition of
“navigable waters,” which now appears
as the definition of “Waters of the
United States:”
(1) “Wetlands” has been given its own
definition because it is sometimes used
Independently, and included Within the
scope of “waters of the United Slates”
by cross-reference.
(2) The proposal exempted “treatment
ponds or lagoons designed to meet the
requirements of the CWA” from the
definition of navigable waters. To
clezify that the scope of this exemption
Is not limited to treatment ponds or
lagoons, it is now written to cover
“waste treatment systems including
treatment ponds or lagoons....”
Because CWA was not intended to
license dischargers to freely use waters
of the United States as waste treatment
systems, the definition makes clear that
treatment systems created in these
waters or from their impoundment
remain waters of the United States.
Manmade waste treatment systems are
not waters of the United States.
however, solely because they are
created by Industries engaged in, or
affecting. Interstate or foreign
commerce. Finally, as in the proposal,
certain cooling ponds fall outside the
exemption. EPA has referred to the
definition of cooling ponds in 40 CFR
* 423.11(m) to Indicate the type of
cooling ponds intended.
New discharger. EPA has changed
this definition In two ways. First, EPA
has expanded the definition to include
an Indirect discharger which commences
discharging into waters of the United
States. This does not represent a change
in policy but Is merely a wording change
to simplify the regulatory language
regarding new dischargei%, former
indirect dischargers, and recommencing
dlschargers.
Second, the definition now
specifically includes a mobile .
source that begins dlscharginj at a new
location for which It does not ha’
existing permit. This clarifies ow
existing interpretation that a mobilL
source that moves to a new location.
unlike an existing source at that
location, creates a new environmental
insult and therefore should not be
allowed to begin discharging until final
Agency action granting a permit and
until installation of the necessary
pollution control equipment. Thus, these
sources are ineligible for stays of
contested permit conditions on the basis
of a request for an evidentiary hearing
which has been granted. These sources
are governed by § 124.59(a); If the
request for an evidentiary hearing Is
granted. “the applicant shall be without
a permit pending final Agency action
under § 124.91.”
This change also requires, under
§122.66 (proposed * 122.81(d)(4fl. that a
mobile point source start up control
equipment before beginning discharge
and meet its permit conditions within
the shortest feasible time. Under
I 122.10, ii is ineligible for schedules of
compliance, and under §122.53 It is
required to submit a new permit
application 180 days before
recommencing discharge at the
location, unless that requiremen 1
waived. Because a new permit is
required each time the source moveb,
the permit can be updated to
incorporate the appropriate’water
quality standards of the area and any
other appropriate permit requirements.
Privately owned treatment works. To
clarify the new provisions for treatment
works other than POTWs (I 122.62(m))
we bave added a definition of “privately
owned treatment works.” The definition
includes any treatment system which is
not a PO’flW and whose operator is not
the operator of the facility whose wastes
are being treated. Thus, the typical case
of a single operator of an industrial
facility providing its own treatment
would not be a privately owned
treatment works. Although termed a
“privately owned” treatment works the
definition does not exclude a treatment
works that is owned by a State or
municipality but which meets this
definition.
(4) Definitions for 404.
The proposal contained definitions for
“plowing,” “seeding.” “cultivating.”
“minor drainage,” and “harvesting.”
Because these terms are only use-’ -
In the § 123.92 (proposed § 123.’
of activities not requiring permi
has moved them to that section.
Responses to the many comments
-------
Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 / Rules and Regulations
33299
received on these terms appear in the
corresponding preamble.
Disdiw e of dredged materiaL One
commenter questioned the distinction. In
the definition of dredged material;
between discharges from on.boara
processing (Included In the definition)
and on-shore processing of dredged
material (not included). This distinction
comes from the Corps of Engineers
regulations. 33 CFR I 323.2(8).
Comments to the Corps suggested that
there were significant differences
between the two kinds of operations,
Justifying the distinction. However, to
clarify the distinction and to maintain
consistency In eliminating the “primary
purpose test” (see discussion of “fill
material”). EPA has changed the
definition to exclude all discharges
resulting from on-shore processing of
dredged material, regardless of the
purpose for which the material was
extracted. All such on-shore processing
discharges are subject to the NPDES
program. Extraction and subsequent
deposit of the dredged material may still
be subject to regulation by the Corps or
under a State section 404 program. and
are unaffected by this change.
One commenter argued that dredged
material returned “unaltered” to Its
original borrow site should not be a
discharge because there Is no “addition”
of a pollutant to waters of the United
States. EPA disagrees: the release of
dredged material into the water column
may add pollutants to the water column
or the downstream substrate. Also,
movement of material from one part of
the substrate to another may have
significant environmental effects before
the material Is ultimately returned to Its
original site.
Fill materiaL The proposal defined fill
material as material discharged for the
primary purpose of replacing an aquatic
area with dryland or of changing the
bottom elevation of a water body,
reserving to the NPDES program
discharges with the same effect which
are primarily for the purpose of
disposing of waste. Comments were
solicited on this distinction, referred to
as the primary purpose test. Two
comments were received, one favoring
retention of the test, one opposing the
test. EPA has decided to change the
definition of “fill material” to eliminate
the primary purpose test and to include
as fill material under the 404 program all
pollutants which have the effect of fill
(that Is, which replace part of the waters
of the United States with dryland or -
which change the bottom elevation of a
waterbody).
The Agency agreed with the
conunenter who said that the primary
purpose test was too subjective. It baa
been our experience that the primary
purpose test Is difficult to apply,
particularly where a project has two
purposes, or where the purpose changes
over time. In addition. the purpose of the
discharge Is Immaterial to Its effect on
the waters of the United States: a
landfill motivated by the need to
dispose of waste and a landfill intended
to oreate a building site both result in
the loss of waters of the United States
and pose a risk of contaminating the
surrounding area.
Moreover, the Agency disagreed with
the suggestion that all solid waste (for
example. garbage, trash, and sludge) be
regulated under section 402. There are
several reasons why EPA believes that
all discharges with the effect of fill
should be handled under the 404
program Instead of the 402 program. The
404 program Is better suited to
preventing the unnecessary destruction
of valuable wetland ecosystems. For
example, the section 404(b)(1) guidelines
require consideration of alternative
sites; the NPDES program does not
provide for a comparable alternatives
analysis. In addition, the section
404(b)(1) guidelines look at the
ecological Impact of the discharge; the
NPDES program uses technology-based
effluent limitations. Finally, Individual
section 404 permits specify sites.
whereas NPDES permits are Issued for
point sources, euch as a truck delivering
trash to a wetlands. Writing an NPDES
permit for a truck presents practical
problems apart from the difficulty of
devising technology-based limitations
for discharges from trucks.
For all these reasons, EPA believes
that the new definition of “fill material,”
eliminating the primary purpose test,
better carries out the goals of the Clean
Water Act.
lmpoundraenL A few commenters
objected to the definition of
“impoundment” as being too expansive.
too restrictive, or not necessary. We
agree that the definition is not
necessary, because Impoundments as
such are not treated differently from
other waters under these regulations.
Because the definition served no
purpose. EPA has deleted It to avoid
confusion.
I 122 4 Application for a permit.
(1) Comnienters suggested that the use
of the term “any person” In proposed
I 122.8(a) (now 122.4(a)) might require
more than one permit application for a
facility, where several “persons” are
making use of a facility. EPA intends the
person with operational control over the
facility to be the one required to submit
a permit application. Accordingly. EPA
has adopted a suggestion of the Utility
Solid Waste Activities Group that a
paragraph to this effect be added to the
sbction. However, for RCRA facilities.
both the owner and the operator must
sign the application: see discussion
under the definition of “owner and
operator.” The section has also been
redrafted, In response to a comment. to
reflect the three limited instances when
a “permit” Is required but an application
Is not (that Is. permits by rule under
RCRA. and NPDES and 404 general
permits). In addition, no “permit” is
required until notice is given by the
Director when a facility is authorized by
rule for UIC or regulated under Interim
status for RCRA. See preamble to
“permit” under I 122.3.
(2) Proposed 1122.7(c) required the
permittee to reapply if It wished to
continue regulated activities after
expIration of the permit. This
requirement has been merged with final
§ 122.4(a). One cominenter suggested
that a permlttee should be able to refer
to the application for its expired permit
rather than submit a new one if none of
the Information has changed. EPA
rejects this suggestion. It Is essential to
obtain an updated certification of the
accuracy of the Information before
Issuing a new permit. However, nothing
In these regulations precludes
resubmitting old Information so long as
the certification which accompanies It is
current. Resubmittal Is necessary to
prevent any confusion and to ensure
active awareness of the Information that
is being certified.
The requirement to submit a renewal
application prior to the expiration date
of the existing permit ha’j been restated
In the standard permit condi ior,s
(I 122.7). In addition, the program
subparts contain Information on how
early permittees must submit their
renewal applications fur EPA-issued
permits: 180 days for RCRA (1 122.23), a
reasonable time before construction is
expected to begin for U1C (I 122.37), and
180 days for NPDES (I 122.53). Because
these timing requirements are not
applicable to States, it was not possibile
to place them in the standard permit
conditions, which would have given
permittees the advance warning of the
duty to reapply which one commenter
requested However, these regulations
do not preclude placing such a
statement in permits or otherwise
notifying permittees when renewal
appllcaticris are due.
(3) One commenter read proposed
§ 122.7 (“Permit issuance.” now
1 122.4(c)) to mean that the permit
Issuance process necessarily cannot
begin until all permit applications for a
facility have been submitted. We have
-------
33300 Federal Register I Vol. 45, No. 98 I Monday. May 19. 1980 / Rules and Regulations
rewritten the section to clarify that It is.
possible for one permit to be processed
even if the Director has not yet received
a completed application for another
permit for the same facility. Similarly.
when a facility is required to have
several permits. the duty to submit a
renewal application operates
Independently for each permit. The
•ubject of consolidation of permit
applications and permit processing Is
further addressed in the preamble to
Pert 124.
Some commenters objected to the
vagueness of the term “completeness” or
requested that a notification of
completeness be requlre.d of the
Director. Section 124.3 contains
provisions for notifications of
completeness for all EPA permits for
RCRA. UIC and NPDES facilities; these
provisions are discussed in the
accompanying Part 124 preamble. A
sentence has been added to § 122.4(c) to
emphasize that the completeness of one
permit application does not depend on
the completeness of other permit
applications.
(4) New paragraph (d) of § 122.4 lists
the information which applicants for
permits under RCRA. UIC, or NPDES
must supply to the Director. A detailed
description of the purpose of these
permit Information requirements, and
responses to comments received on their
proposal, are contained in the detailed
discussion which appears In the
preamble to the consolidated
application forms, published elsewhere
in today’s Federal Register. The
requirements are quite basic and
generated relatively little comment. A
brief description of the requirements is
included here.
EPA has developed a set of
consolidated application forms to be
used by applicants for EPA-
administered RCRA. UIC and NPDES
permits. The structure of the
consolidated permit application forms Is
similar to that of the consolidated
permit regulations: questions applicable
to all programs are contained in a
generally applicable Form 1. which is
supplemented by additional forms
containing questions for each specific
program. Likewise, the Information in
* 122.5(d) comprises the essential
Information whièh Is submitted in Form
1, while § § 122.24 for RCRA. 122.37 for
UIC. and 122.53 for NPDES list essential
Information which is submitted in
additional forms for those specific
programs.
The draft consolidated permit
application forms appeared as Part fli of
the June 14, 1979 Federal Register along
with certain proposed NPDES
regulations which listed the information
requirements contained in Form I and
Form 2 (44 FR 34393, 34346). (The draft
Form I was to be applicable to all
programs even though its contents were
listed only in the proposed NPDES
regulations.) Proposed § § 122.23 and
122.38(c) of the consolidated permit
regulations also included RCRA Part A
and UIC permit application Information
requirements similar but not Identical to
those in draft Form 1. However, II was
clear in the draft consolidated
application forms that Form 1 covered
all applicants, and no confusion was
apparent in comments received.
The informational requirements in
paragraph (d) are also applicable to
States. Applicants for State permits will
use State application forms, which may
be different from EPA’s consolidated
application form. However, to provide a
minimum level of uniformity in the basic
data, § 123.7 requires State forms to
include at least the information listed
here and in the program subparts
§ 122.24 for RCR .A, 122.37 for UIC and
122.53 for NPDES) for EPA permit
applications. Because these sections are
applicable to States, only essential
Information is listed as a permit
application requirement; the information
required by these sections does not
include every detail which appears on
the application forms for EPA-issued
permits. -.
The applicability of these information
requirements to States does not reflect a
change from the proposal. The Form I
requirements were to be made
applicable to State NPDES programs
through a proposed amendment to
§ 123.73 (see 44 FR 34116), and
applicability to States of the permit
application requirements for RCRA and
UIC appeared in the proposed
consolidated permit regulations at
§ § 123.39 and 123.57 respectively.
(5) EPA has added a new paragraph
(e) to § 122.4 which requires applicants
to keep records for a period of three
years of the data used to complete all
applications. This requirement is also
listed In §123.8 (standard permit
conditions) requiring records of
background data for monitoring and
other reports required by the permit to
be kept for three years. The
recordkeeping requirements are
necessary to support any subsequent
EPA enforcement action for false
reporting.
§ 122.5 Continuation of expiiing
permits.
(1) Some cbanges have been made in
proposed I 122.8(c) (now I 122.5) in
response to comments. Proposed § 122.8
(c)(3)(iij (now § 122.5(c)(2)) created some
confusion as to what grounds were to be
considered by the birector In den’
permit renewal application wher
permittee Is out of compliance w
continued permit. In response to th...
comments. EPA has amended 1 122.
‘termirtafion of permits.” to state th.
any grounds for terminating an existlL .L
permit is grounds for denying a permit
renewal application. While termination
of a permit or denial of an application is
a harsh measure that will only be used
In extreme instances, EPA believes that
a provision for doing it is necessary and
that, In some Instances, such action will
be appropriate. If the Director were
required, as some conunenters
suggested, to base the decision of
whether or not to issue the permit solely
on the permit renewal opplication. he or
she would be in the position of having
authority to terminate the existing
permit for the grounds listed in § 122.18
but then being required to renew the
permit for the same facility because the
application did not reflect the
noncompliance. We have reworded
§ 124,8 to clarify that when the Director
seeks to deny a renewal application, he
or she must first issue a notice of intent
to deny which is treated as a form of
draft permit. subject to public notice and
the other procedures of Part 124. A
specific reference to § 124.6 Is now
provided in § 122.5(c)(2).
In addition, several readers
Interpreted this section to require t .
Director to either deny the renewal
application or take enforcement action
when a facility with a continued permit
is out of compliance. Comments stated
that under this reading the section
seems onerous and that more normal
options such as permit modifications
and compliance schedules ought to be
available. EPA has redrafted § 122.5(c)
to clarify that issuance of a new permit
with appropnate conditions remains an
option available to the Regional
Administrator in this situation,
(2) A large number of comsnenters
noted the possibility under proposed
§ 122.7(6) that a Federally-issued permit
might lapse after transfer of a program
to a State and expressed concern that a
permittee might be forced to close down
or operate illegally without a permit
through no fault of its own. Several
suggested that States ought to be
required to have some sort of automatic
reissuance authority or a provision for
extensions similar to Ih Federal
Administrative Procedure Act, perhaps
as a condition of program approval
under Part 123. EPA has rewritten the
section to emphasize that States ma”
contInue Federally-issued RCR.A. 7
or NPDES permits which expire w.
under State administration if adequi._
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33301
legal authority exists to do so. EPA
believes that It is Inappropriate to
require States to extend Federally
issued permits.
In evaluating whether Slates should
be required to have an automatic
continuation mechanism like the one
provided by the Federal Administrative
Procedure Act. EPA applied criteria
similar to those used in determining the
other requirements for authorization of
State programs: that is, whether the
requirement is necessary to provide (1)
equivalent environmental protection. (2)
consistency with Federal regulations. (3)
adequate enforceability, and (4) public
participation. Using these criteria EPA
determined that continuation of permits
by States should not be required for
program approval. In addition, it is
questionable whether EPA couldimFose
such a requirement in view of the fact
that failure to continue permits could be
considered a “more stringent” State
program feature.
Of course. States receiving program
authority are encouraged to coordinate
transfers of permits with EPA and to
expedite permit processing in situations
where the permit has been extended
under the Federal APA and the State
has no similar administrative extension
provision, it is anticipated that such
situations will be rare. The more
common situation covered by this
provision—namely, when a permit
which has not been Federally extended
Is transferred to a State and then
expires—can only be remedied by
timely processing of a renewal
application by the State or existence of
a State equivalent to the Federal
Administrative Procedure Act.
(31 One commenter argued that
automatic continuation under this
section should not insulate an NPDFS
discharger from violation of a statutory
deadline which intervenes prior to
permit renewal. EPA believes it lad s
legal authority to adopt this
Interpretation. Under section 402(k). the
statutory deadlines In the Clean Water
Act are not Independently enforceable
but must be embodied In the permit.
However, under II 122.62 (establishIng
NPDES permit conditions) and 122.10
(compliance schedules), NPDES permits
are required to be written to assure
compliance within the CWA statutory
deadlines. Consequently, any permlttee
whose permit is continued beyond the
deadline Is still subject to enforcement
for noncompliance with its continued
permit.
§ 122.6 Signatories to permit
opplicotions ond reports
(‘1) Some conimenters challenged
EPaVs legal authority to establish
sIgnatory and certification requirements
at all. Clearly, the Resource
Conservation and Recovery Act. the
Sale Drinking Water Act. and the Clean
Water Act each require programs for
issuing permits and give the
Administrator rulemaking authority to
prescribe regulations to establish them.
A mechanism requiring applications for
permits has been chosen in most
Instances, although not always (for
example, permits by rule, general
permits). because In most cases
applications are necessary to determine
appropriate permit conditions. In
addition, each of the above statutes
establishes authority for requiring
submission of Information in
applications or other reports. EPA
believes that this duty runs both to the
corporate or other business entity and to
the individual who submits the
application on its behalf. The
certification ensures that the signer of
the application will be aware of. and
will meet, the legal standard which
wo’jld be applicable to him or her and to
the corporation In any event.
(2) The majority of the comxnenters
who read proposed I 122.5 (now I 122.6)
objected to the requirement that
corporate vice presidents sign and
certify permit applications. Coinmenters
argued that a large corporation could
require numerous permits, and that the
position and responsibilities of a vice
president of a large corporation may
make It difficult and tUne consuming for
such a person to “become familiar” wIth
.the information in permit applications
and to personally make “inquiry of
those persons Immediately responsible
for obtaining the information.” The
proposed certification requlred,,these
acts.
Thesç objections received a great deal
of attention, and since the proposal EPA
has attempted to devise a number of
differing solutions through revisions to
the signatories section. In the end these
alternatives have all been found
wanting. and the final section retains
the principal features of the proposal,
with only some minor changes.
One alternative which EPA examined
was to adopt some commenters’
suggestions that a corporate official
immediately responsible for the
preparation of the application (such as a
plant manager), rather than a principal
executive officer, be allowed to certify
familiarity with the information
contained in the application. However,
EPA determined that a signature by a
principal executive officer will always
be necessary, both to ensure an
adequate level of corporate liability and
to ensure a high level of concern with
and responsibility for the corporation’s
compliance with environmental laws.
This necessity remains the same even if
the contents of the certification could be
changed somewhat to remove the
requirement to certify “familiarity.”
Therefore, the alternative would have
required a “dual signatory” scheme, one
signature by the preparer and one by the
principal executive officer. Because It
would be necessary to ensure the same
level of corporate liability, the
certifications would be altered very
little from the proposal. In adaizlon, to
avoid possibly making the requirements
more onerous rather than less, the dual
scheme would have to be optional.
Finally, It would have been available to
corporations only, and. as In the
proposal. would have applied only to
applications, because the proposed
“authorized representative” inechanlsn
for reports would still be available.
After drafting a signatories section
which adopted this approach, EPA
found that negligible improvemer.ts
were made at the expense of a great
deal of complexity which was not likely
to be received favorably. Some other
solutions which were atteDpted and
which suffered from similar defects
involved distinguishing corporations on
the basis of their corporate structure,
their geographic dispersion. or similar
factors. Consequently, EPA has retained
the requirement which appeared in the
proposal for a signature and
certification by one principal executive
officer as the simplest requirement that
Is adequate.
(3) Some coinnienters questioned wh
It should be necessary to c!istinguish
between applications and other
submissions and suggested that if
reports can be signed by an authorized
representative, applications should be
also. EPA feels that the distinction is a
valid one. A permit application is
needed to determine whether to issue a
“permit” which establishes the
privileges and duties of the permittee. In
the case of a corporation or other
business entity, the entity is the
“person” with the privileges and duties.
The permit application therefore needs
to be signed by an individual with the
capacity to speak for that corporet,on or
other entity. This Is also true because
the application in many cases contains
Information which Itself binds the
corporation once the permit is issued.
either through Incorpor tion In the
permit (as in the case of contingency,
closure or post-closure plans for RCRA
and for certain UIC facilities) or through
establishing predicted levels of use or
discharge of certain toxic pollutants (as
in the case of certain NPDES facilities).
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83302 Federal Register I Vol. 45, No. 98 I Monday. May 19! 1980 I Rules and Regulations
Reports on the other hand are usually
required by the permit and involve -
monitoring requirements or reporting of
Instances of noncompliance. Having
established the entity’s responsibility for
aubmitting these reports in the permit, it
is no longer necessary to require an
executive officer to sign them each time.
Furthermore, the reports usually require
familiarity with particular monitoring
instrumentation at particular points.
rather than an understanding and
famill ilty with the corporate enterprise
as a whole. Finally, this Information
generally does not involve the
complexity of many of the items
required in applications or require a
high level of corporate consultation and
commitment as in the case, for example,
of contingency plans or closure plans.
As In the proposal, however, EPA has
made an exception for Class II wells
applying for permits under the UIC
program. Class II well permit
applications may be signed by an•
authorized representative. The reason
for this exception Is that Class II wells
are large in number yet, as a group,
much less complex than, for example,
hazardous waste facilities or most point
source dlschargers. While EPA has
determined that Class U wells should be
reguleted under the UIC program.
several attempts have been made to
make sure that this regulation is no more
burdensome than needed to protect the
environment. For a further discussion of
regulation of Class II wells, see the
preambles to Subpart C and to Part 148.
For the reasons discussed In those
places, Class 11 wells have been
distinguished from Class ifi wells or
other wells, and for the same reasons
the exception to the signatory
requirement that applies to Class II
wells has not been extended to other
wells under the UIC program.
(4) EPA has made a number of
changes from the proposal to make the
authorized representative mechanism
work better. First, the section has been
re s orded slightly to emphasize that
delegation of the authonty to sign
Information reports and Class II weU
permit applications may be to a position
rather than to a specific Individual.
Some possible examples of positions
which can be authorized are given, but
any position authorized must be one
having “responsibility for the overall
operation of the facility.” The wording
clarificetion does not represent a change
from present NPDES policy.
Second, several commenters objected
to the need to submit new
authorizations every time there was a
change in the person who is the
authorized representative for signing
reports. Authorization of a position
should solve this problem in many
Instances. In addition, the section has
been rewritten to clarify its applicability
and to allow a new authorization to be
submitted concurrently with the next
report which requires a certification,
rather than immediately every time a
chance has occurred. Finally, contrary to
some cominenters’ reading. EPA does
not intend to preclude authorization of
more than one individual occupying
different positions, so long as each
position meets the requirement that the
representative In each instance occupy a
position of responsibility for the overall
operation of the facility. EPA does not
agree, however, that no authorization at
all should be required. A written
authorization submitted to the Director
Is necessary to ensure that the principal
executive officer or other high level
official maintains the same level of legal
accountability for the accuracy of the
Information submitted as he or she
would have had without exercising the
authorization. -
(5) Because EPA permit applications
will now consist of a general Form with
a number of attachments, with only one
certification, the certification statement
New 122.7 and the corresponding
subpart sections referred to above set
forth all conditions which do not vary
from permit to permiL The mechanism
for induding permit conditions which do
vary depending on the facility or activity
In question Is provided in § 122.8
(proposed 122.13), “Establishing permit
conditions.” Section 122.8 refers to
Subpart A sections on establishing
variable permit terms (for example,
establishing compliance schedules), and
to the sections of the program subparts
which indicate how variable terms are
calculated for each program. The
purpose of this organization is to
has been amended to require
examination of and familiarity w’
information submitted “in this an
attached documents.”
I
§ 122.7 Conditions applicable to a.
permits.
(1) Organization. Proposed 122.11
(now § 122.7) sets forth “standard” or
“boilerplate” conditions which are to
appear In all permits. In order to make
these conditions truly “standard”
conditions which can be inserted
without alteration In all permits for all
the programs, program-specific elements
which appeared in the proposal have
been separated and placed in the
individual program subparts.
Accordingly, the RCRA, UIC, NPDES’
and 404 Subparts now each have a
section setting forth “additional
conditions” applicable to all permits for
each respective program: see § § 122.28
(RCRA), 122.41 (UIC), 122.61 and 122.62
(NPDES), and 123.97(404). These
program-specific “boilerplate” sections
have been written to correspond to the
organization of new § 122.7 .so that they
can be easily incorporated by the permit
writer. See Table IV.
provide a clear roadmap to the permit
writer and is discussed more fully in
Table I and accompanying text of this
preamble. Because, as provided in final
§ 122.13. In most cases “compliance with
a permit Is compliance with the
appropriate Act’ it is important that all
requirements bir.ding upon permittees
be adequately referenced in the permit
document. The final regulations have
been drafted to help ensure this result.
(2) Incorporation by reference.
Several commenters stated that thr
standard permit conditions should
be “incorporated by reference” in a
Tubis IV.—Slandaid PemW cc, 1Aor s
Subs. ’! 5
&bs.I1 A IRCRA)
Subp . ’t8 Sub iv1O P ,
(UIC) INpacs) Subpr
(40.
‘e, c ” . ’iv
123.7 (i) 122. 2 3 ( s) 122 11(a) 12260 (s) 12397(s ). ( b
l2 7 ( b) ...-.—-
122.7( c) -- 12260(b)
1 2 2. 7 (d) —. . -— — - - —.——--- -
. 1 2 2.7 (i) —— . .._._ ... . ._ .. ...... -
1227 ( I) ._.. — . — ... — .. . —
122 7(9) . —. . ._. - ... ... ._ . -
1U7 (Ii) ._ —-.— .... . --
122.7 ( b — —— . .
122 7 5) 122280) 122.11(b) 12260 ( e)
1 2 3.7 ( k) . .__. 12260(d)
123.75) 12flS (c i, (d) 122 .4 1 (c). Id) 12260(1’. (I)
12261(i). 5))
1 2 3.2 9(e) 122.41( e) 122 60(g) 123eV (ci. (d)
122Sl(h)
Su1ytofs i ( pI7
tiLt .‘ ‘s ,as u60v ity
D2 t r gsto —
Piop raa i w,d ——
Psmst
scaa, _................ —— —
P,x.iy içti ..
Duly prowids .J.......h.n
b p.cb.,., wi sn , ..
Maiit w,g Wi) iIo O1
Sgnsi) ,y mq .un it. ._..
P’xd)ng s ss ..nti —-—--.—
,bo ,iL , ii)a ,d
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Federal Register I Vol. 45,No . 98 g’ Monday, May 19, 1980 I Rules and Regulations
33303
permit. Under final § 122.7, permIt
condlt one may still be incorporated by
reference. However. EPA has provided
protection to permittees by requiring
that, if conditions are incorporated by
reference, the reference must include a
specific citation to these regulations or
to the corresponding State regulations.
EPA does not believe that It is possible
to state all permit requirements in all
permits without using references in
some Instances. For example,
0 122.60(c)(1) requires as a standard
permit condition for all NPPES permits
that monitoring be conducted according
to the test procedures approved under
40 CFR Part 136 unless alternative test
procedures are specified in the permit.
Part 136 procedures are in many
instances quite detailed and requiring
these procedures to be restated In the
permit verbatim would not be Justified
in view of the increased paperwork
burden it would impose on permit
writers.
(3) Duty to comply. Section 122.7(a) is
essentially a restatement of proposed
§ 122.11(a). The duty of an NPDES
permittee to comply with newly
promulgated toxic effluent standards or
prohibitions under section 307(a) of
CWA, which appeared in the proposal
in § 122.69, has been moved to the
corresponding “duty to comply” NPDES
section, § 122.60(a), because it is
addressed to permlttees. Also, the
corresponding RCRA ( 122.28(a)) and
UIC ( 0122.41(e)) provisions reflect the
fact that emergency permits issued
under these programs may act as a
limited modification of existing permit
requirements.
(4) Duty to reoppiy. EPA has added
0 122.7(b) to make sure that permittees
are Informed of their duty to reapply for
a permit. State and EPA permits may
incorporate reapplication de.idlines at
this point if desired.
(5) Duty to halt or 1 reduce activilies.
Proposed 0 122.11(j) (now * 122.7(c))
requited the permittee to “halt or reduce
Its business activities whenever and to
the extent necessary to maintain
compliance with the terms of a permit?’
This requirement received many
adverse comments. In general,
conunenters argued that In many cases
noncomp’iance with permit condtions
may not be serious enough to justify
halting or reducing regulated activities.
and therefore that the requirement
should be: deleted, discretionary, limited
to imminent and substantial
endangerment of the environment.
deleted In favor of assessing
enforcement penalties, or should allow
for exemptions. Some commenters found
the requirement inconsistent with the
perforinance.based standards which are
the primary mechanism for protection of
the environment used by the programs
in these regulations, arguing that EPA
has no authority to enforce or require
anything but limits “at the end of the
pipe.”
EPA does not intend to enforce a duty
to halt or reduce regulated activities
every time any permit condition is
violated. Furthermore, EPA does not rule
Out the possibility that In some
instances halting activities could cause
more damage than to continue them,
that it may be necessary to continue
operations to locate the problem. that -
less drastic means for assuring permit
compliance may be appropriate in some
circumstances, or that for certain
Instances of trivial noncompliance it
might be inappropriate for a permittee to
halt its operations. However, EPA —
wishes to clearly establish for every
permlttee the principle that a permittee
has a duty to comply with its permit.
and that this duty requires reducing or
halting activities If no other means of
complying is possible. A permittee can
not “buy” a right to damage the
environment by violating the permit and
being assessed civil penalties as a
result.
EPA has rewritten the provision to
state that “it shall not be a defense for
the permit tee 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”. This
rewording of the duty emphasizes its
relevance to enforcement actions. and
eliminates the appearance of double
enforcement (once for the permit
violation, and again for not reducing
activity or shutting down). Of course,
permittees must use their Judgment In
determining how to respond to
noncompliance. They should consider
the potential seriousness of the
noncompliance, and the damage It Is
causing. U noncompliance with the
permit is serious enough to warrant
enforcement action, no permittee will be
allowed to argue that compliance would
have been unreasonable because it
would have recuired a halt or reduction
of the regulated activity.
Several corn enters noted that
proposed 1 122.11(j) was quite similar to
proposed 0 122.68(e), which applied to
NPDES. The NPDES provision now
appears at § 122.60(b) and is discussed
in the preamble accompanying that
section.
(8) Di.’ty to mitigate. Section 122.7(d)
restates proposed 0 122 .11(I). For the
reasons discussed under (5) above, EPA
rejt.cls the argument that it may not
require permittees to mitigate the
damage caused by noncompliance with
their permits. It should be noted that In
some circumstances noncompliance
with this permit condition may be used
to establish willfulness in an
enforcement action.
(7) Proper operation ond maintenance.
The first sentence of proposed
§ 122.11(g) (now § 122.7(e)) required the
permittee to “maintain in good working
order and operate efficiently all
facilities and systems of treatment or
control which are Installed or used by
the permittee to achieve compliance
with the terms and conditions of the
permit.” The second sentence further
defined “proper operation and
maintenance” as including “effective
performance based on designed facility
removals, adequate funding, effective
management. adequate operator staffing
and training, and adequate laboratory
and process controls including
appropriate quality assurance
procedures.” We have revised the first
sentence by substituting the phrase
“proper operation and maintenance” for
“maintain in good working order and
operate efficiently” in order to parallel
the second sentence, which gives
examples of proper operation and
maintenance.
Many commenters expressed doubt
whether EPA is legally authorized to
require proper operation and
maintenance of facilities. This
requirement is clearly authorized for
NPDES permittees by section 402(a)(2)
of CWA which requires the
Administrator to prescribe permit
conditions which will assure compliance
with the requirements of CWA section
402(a)(1). EPA similarly believes that a
proper operation and maintenance
requirement is authorized by section
1421(b) of SD WA to assure compliance
with requirements In UIC permits to
protect underground sources of drinking
water, and by section 3004(6) of RCRA
which requires EPA to establish
“maintenance” and “operation”
standards.
One comment or argued that if a
permittee can meet its permit
requirements by operating Its treatment
or control systems at less that optimum
,efflciency, rather than at “designed
facility removals” it should be allowed
to do so. EPA agrees and has deleted
that example from the second sentence.
Other commenters argued that the
phrase “effective management” as an
example of “proper operation arid
maintenance” was unnecessary,
overbroad, and mould result in an
intrusion Into internal plant
management. Although EPA still
believes effective management
requirements are authorized by CWA,
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33304 Federal Register I Vol. No. 98 I Monday, May 19, 1980 / Rules and Regulations
EPA agrees. in part that the term
“effective management” may be
overbroad as a generally applicable
permit condition and has deleted II from
the second sentence. In response to
comments fearing that proposed
122.11(g) would require operation of
backup or auxiliary facilities and
systems at all times, EPA has added a
new sentence to final 122.7(e) to
clarify that this paragraph requires the
operation of those facilities only when
necessary to achieve compliance with
the permit.
(8) Permit actions. Proposed
122.11(d) stated that “unless and until
a permit Is modified or revoked and
reissued. a permittee must comply with
the terms and conditions of the existing
permit whether or not the existing
permit would allow the permittee to
begin the activity described in
paragraph (c) of this section.” The
paragraph referred to required
notification of proposed activities which
could constitute grounds for
modification. Com.menters found this
provision vague and objected that it
appeared to prohibit activities otherwise
allowed in the permit.
EPA agrees that it can not prohibit
activities which are in compliance with
a permit. The Intent of the provision Is to
Inform permittees that simply because a
permit modification has been requested
or because information has been
reported which might require a change
• In the permit, the permit itself has not
been changed and must be complied
with. Because RCRA and UIC permits
contain construction as well as
operating requirements. permittees
ahould obtain approval before
physically modifying a RCRA or UIC
facility see 122.28 (RCRA) and 122.41
(UIC). (Similarly, for RCRA facilities
under Interim status, see § 122.23.) Final
I 122.7(d) clarifies the intent by statii g,
“The filing of a request by the permittee
for a permit modification, revocation
and reissuance, or termination does not
stay any permit condition.”
Several commenters argued that a
permittee should be able to change its
condict before approval of a permit
modification. So long as the change does
not violate the requirements of the
permit. EPA agrees. However, a
permittee runs the risk of enforcement
action whenever it does not comply with
Its permit (see * 122.7(a)): therefore, It Is
In the perinittee’s interest to notify the
Director sufficiently In advance for the
permit to be modified, If necessary, to
allow for anticipated changes in conduct
prior to their occurrence. The
notification could constitute “r.ew
Information” which is cause for
modifying a permit under § 122.15(a)(2).
The reporting requirements
summarized in paragraph (1) of the
standard conditions require advance
notice of (1) planned physical
alterations or additions to the permitted
facility, and (2) any planned changes in
the permitted facility or activity which
may result in permit noncompliance.
These duties are narrower than in the
proposal and are discussed below. EPA
recognizes that plans will not always be
formulated enough In advance for the
permit to be modified prior to a change.
When this Is the case and the change
does result In noncompliance, the
permittee will not be excused by the fact
that notice has been submitted or that a
permit modification is being processed.
Some commenters noted that
• proposed I 122.11(d) contradicted the
proposed provisions for emergency and
temporary authorizations under RCRA
and UIC. Sections 122.28 and 122.41 now
clarify that a permittee need not comply
with the conditions of Its existing permit
to the extent and for the duration
authorized In an emergency permit. One
effect of this statement Is that
emergency permits are processed
Independently of existing permits and
not as modifications of them, although
the end result Is similar.
(9) Property rights. SectIon 122.7(8)
repeats the statement In I 122.13(b)
(proposed I 122.7(b)) that a permit is not
a property right. For a discussion of
permit transfers, see the preamble to
I 122.14.
(10) Duty to provide information. Final
paragraph (h) states the duty of the
permittee to provide Information
necessaryin determining compliance or
In processing a permit modification or
termination. This roughly corresponds to
proposed § 122.13(f ). but has been
broadened to be coextensive with the
Director’s general authority to require
information under RCRA section 3004,
SDWA section 1445, and CWA section
30&
Proposed I 122.11(c), In addition to
requiring notification of any activity that
• might give rise to cause for modification,
stated that “the Director may require a
submission of a new application.” This
language no longer appears as a
standard permit condition. EPA has
amended I 124.5 to require submission
of a new application whenever a permit
Is being revoked and reissued. This is
necessary because in that case the
permit Is being reissued for a new term.
Section 124.5 also states that an updated
application may be requested by the
Director In the case of a permit
modification. An updated application
may be necessary when, for example, a
permit Is being extensively rewritten or
when a permit Is being modified
reflect a transfer in ownership.
However, It Is not EPA’. intent to
require a complete new application
when not all of the Information is
needed to process a permit modificati ..
Likewise, when information is needed to
determine compliance, it will be
requested through the general
information gathering authority and not
through a requirement to submit a
complete new permit application, which
contains questions which often are not
relevant to a. determination of
compliance.
(11) Inspection and entry. Final
paragraph (I) was proposed as
I 122.11(e). Proposed §122.11(e) set forth
requirements for allowing
representatives of the Director to enter
and inspect the facility, the records that
are required to be kept. and regulated
substances. Many commenters were
concerned that confidential Information
is not adequately protected when a
contractor rather than an officer or
employee of EPA or a State government
conducts an Inspection. All information
disclosed during an Inspection Is subject
to the business confidentiality provision
of 40 CFR Part 2. A company may assert
a claim of confidentiality and If EPA
proposes to disclose any informtio
• covered by such a claim, the Aget
gives prior notice to the submitter.
Agency’s procedures for disclosure t.
conti actors who are authorized
representatives are contained in 40 CFR
I 2.301(h) which is Incorporated by
reference in I § 2.302(h) (CWA), 2.304(h)
(UIC) and 2.30 5(h) (RCRA). Readers are
referred to these sections for their
specific provisions. In addition, 40 CFR
§ 2.211 provides that a contractor may
only use the information as provided by
the contract. Any violation of these
provisions Is grounds for debarment or
suspension: willful violation may result
in criminal prosecution. EPA believes
that these provisions fully protect
confidential Information obtained by a
contractor,
Several commenters stated that the
provision should incorporate the legal
principles set forth in Marshall v.
Barlow’s Inc., 436 U.S. 307 (1978).
relating to the necessity for presentation
of a warrant under appropriate
circumstances. Some coininenters feared
that by Including entry and inspection
requirements as a permit condition, EPA
might be requiring permittees to waive
certain rights under the Fourth
Amendment to the United States
Constitution. It Is not EPA’s Intent’
deprive any permittee of its Fourti
Amendment rights as interpreted b
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33305
Supreme Court decisions. However, we
have retained the general wording
requiring “presentation of credentials
and such other document as may be
required by law” because of the
complex2ty and the changing nature of
this area of the law, and the possibility
that any particular formulation or
citation could be inaccurate or
Inapplicable.
Seveal commenters argued that
proposed subparagraphs (e)(3). (4), and
(5)—concerning entry to Inspect
facilities, equipment and operations, and
to sample at the monitoring point
substances required to be monitored—
were not authorized by RCRA. EPA
disagrees. Congressional Intent was to
allow for monitoring of areas
surrounding the waste disposal sites,
and EPA Inspection of such sites and the
substances monitored, to ensure
reasonable protection of human health
and the environment. See H. Rep. 94—
1491.94th Cong., 2d Sess., page 28. EPA
has followed the suggestion of two
commenters and combined proposed
subparagraphs (e)(4) and (e)(5).
Some commenters suggested that
entry under proposed § 122.11(e)(1)
should also be at reasonable times, as
are access to copy, to inspect, or to
sample or monitor. EPA feels that such a
limitation should not be inserted
because ii might give rise to arguments
that EPA Is precluded from Inspecting
without notice or at unusual times when
In fact doing so is “reasonably”
necessary to determine compliance or
noncompliance.
(12) Monitoring and records. The
requirement for permittees to conduct
monitoring and keep records, contained
in §122.7(j). was proposed In § 122.11(k).
This standard permit condition has been
revised to include requirements which
appeared in the proposed section on
“Recording and reporting of monitoring
results” (proposed § 122.14, now
0 122 11J. The generally applicable
requirements that monitoring be
representative of the monitored activity.
that certain Information be recorded,
and that records be retained for at least
3 years. are appropriately addressed to
permlttees in the permit document,
The records retention requirements
have been revised slightly In response to
commenL Copies of all reports required
by the permit, not just the data used In
monitoring reports, must now be
retained for the 3 year period. In
addition, the requirement to retain
records for longer (han 3 years during
litigation will no longer apply
automatically. Commenters argued that
permittees must be given notice if
records are to be retained for longer
than 3 years. The Director will now have
to make a request before longer
retention of records during the course of
litigation Is required. This procedure will
give adequate notice to the permittee
durIng litigation to the extent
preservation of material evidence is not
already a requirement under common
law. Likewise, the Di ector can require
the permittee to retain records at any
other time for longer than 3 years upon
request. as In the proposal. EPA believes
that there are many instances when It
will be Important for records to be
retained for longer periods of time, up to
the life of a facility or the postclosure
period, and additional records retention
requirements are set forth in
corresponding paragraphs of § 0 122.28
and 122.41 for RCRA and UIC
respectively. Finally, EPA has amended
§122.4, as discussed In the preamble to
that section, to require retention of
information used in completing permit
applications, and this requirement is
repeated here.
(13) Signatories. Paragraph (k) simply
restates the requirement of § 122.8 that
reports to the Director be signed and
certified, to make sure that the
requirements of that section are permit
requirement.
(14) Reporting requirements. Final
paragraph (1) was proposed in § 122.11
(c) and (h). Many commenters expressed
concern over proposed paragraph (c),
which required the perinittee to report
any past or predicted activity which
might constitute cause for modification
or revocation and reissuance. The
general tenor of these comments was
that the provision was vague and -
burdensome, would lead to trivial and
duplicative reporting. and might violate
the Fifth Amendment. Examples were
given of Instances when this
requirement would apply even If there
were neither permit noncompliance nor
alteration to the facility, for example
upon promulgation of new standards or
regulations. Furthermore, the provision
would have required the permittee to
make a determination of “cause” and
might, for example, have required
reporting of trivial instances of
“Ineffective management.” FinaUy. It
was unclear how this reporting
requirement operated In relation to
several other reporting requirements
which also appeared In the proposed
section (reporting of noncompliance, In
emergencies. of monitoring) and
elsewhere in the regulations
(monitoring, proposed transfers.
noncompliance reporting). The same
event might have had to be reported two
or even three times under separate
proposed provisions.
Several commenters argued that
mandatpry reporting of noncompliance
raises questions of self-incriminatIon
under the Fifth Amendment. The
privilege against compulsory self-
Incrimination applies only In a criminal
- case. Moreover, corporations do not
have the privilege. Ceo, e Campbell
Painting Corporation v. Reid. 392 U.S.
288(1988). Finally, “records required to
be kept” by individuals are outside the
scope of the privilege. Shapiro v. United
Stoles, 335 U.S. 1 (1948). The reporting
requirements of § 12 2 .7(l) fit within this
“required records” exception to the
scope of the Fifth Amendment privilege
and, therefore, there Is no Constitutional
Infirmity In requiring reporting of
noncompliance as a condition of
receiving a permit.
EPA has extensively rewritten the
permittee’s reporting requirements to
make It as clear as possible to the
permittee what reports are required.
when they are to be submitted, and how
they relate to eachother and to other
sections of the regulations. All duties of
the permittee to submit reports to the
Director as part of the permit program
will now be explained In the permit, and
are summarized In one place, 0 122.7(1),
and corresponding sections of the
program subparts. These reporting
requirements are summarized under
eight headings In § 122.7(l) and are
discussed here as follows: (a) planned
changes and anticipated noncompliance
(b) transfers; (c) monitoring reports; (d)
compliance schedules; (e) 24-hour
reporting (I) other noncompliance; and
(g) other Information. See Table Ill.
These headings have been harmonized
to prevent duplicate reporting of the
same event where this would serve no
purpose. As noted In the table, the
corresponding program sections refer to
additional permit reporting requirements
that are not specifically related to
monitoring or compliance. These
requirements must also be incorporated
Into fixed-term permits to be
enforceable.
(a) Planned changes and anticipated
noncompliance. Proposed paragraphs (c)
and (h) combined reporting of both past
and future causes for modification or
noncompliance. Comnienters argued
that these paragraphs were confusing
and overbroad. In response, EPA has
separated the reporting requirements for
events contemplated in the future from
reporting requirements which arise after
the event, and has narrowed the scope
of both.
Planned changes. First, permittees
must report “planned physical
alterations or additions to the permitted
facility” (0 122.7(l)(1)). Except as
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Federal Register / Vol. 45, No. 98 ,‘ Monday, May 19, 1980 / Rules and Regulations
provided In 122.61(a) for NPDES: -
(expected use or manufacture of toxic
pollutants), this Is the only reportlng
duty which arises before the e’vent as a
matter of course regardless of whether
the permittee believes it might give rise
to a permit modification. (New RCRA
and UIC facilities are also required to
submit a statement before commencing
operations; see H 122.28(c) and
122.41(d).) in the proposal, the permittee
only reported changes after making a
determination of cause for modification.
However. EPA believes that It is
unreasonable to expect permittees to
distinguish those alterations to the
facility which may constitute cause for
permit modification from those which do
not; therefore, the Director shall make
this distinction. In addition, the nature
of the programs covered by this
provision favors the presumption that
physical changes In the facility will give
rise to cause for modification of the
permit. For NPDES, changes to the
facility Include any physical changes,
such as addition of a new process line,
that may affect the quality of the
discharge. It also Includes commencing
to discharge into a well, into a POTW,
or by land application, and the permit
may be modified or terminated
accordingly under § 122.10(a)(4), using
the criteria In § 122.65. When plans are
known sufficiently in advance, this
notice should be given In tune for the
Director to modify the permit prior to
the occurrence of the noted event. This
Is necessary so that, If modification of
the permit Is en appropriate response to
the change. the modification can be
made in time to prevent noncompliance
with the permit.
Anticipated noncompliance. The
“planned alterations-or additioni to the
facility” that are to be reported ux der
I 122.7(l)(1) are limited to physical
changes to the facility and exclude
changes in production or other activities
(except as provided in I 122.01(a) for
NPDES). In the. case of all other changes
to the facility or activily contemplated
by the permittee. advance reporting Is
required only where noncompliance Is
anticipated ( 122.7(l)(2)). Here EPA
presumes that changes are not likely to
cause noncompliance except in cases
where the potential violation Is clear
enough to allow reliance on self
policing. Consequently, EPA believes
that in most cases permittees may begin
new activities other than physical
alterations to the facility without the
fear of violating their permits if they
have no reason to believe that they will
result In noncompliance. However,
noncompliance with a permit is always
grounds for enforcement, and if there Is
any doubt in the permittee’s mind
whether a contemplated change to the
regulated activity may constitute
noncompliance, the permittee should
contact the permitting authority for
fvrther Information.
Distinguishing “planned changes”
from “anticipated noncompliance”
reflects a compromise between two
conflicting but valid considerations: the
need to give the permittee the maximum
achievable certainty as to what it is
necessary to report, and the need to
provide the Director with Information In
a timely manner. The final approach Is
significantly narrower than in the
proposal. The proposal required that
notice be given in advance of anything
which might constitute cause for
modification or revocation and
reissuance as well as notice of any
anticipated noncompliance. The final
notice requirements (1) elimInate
notification at any time based on
possible cause for niodificatioiz (2) only
require notice of anticipated
noncompliance without the elaborate
list of noncompliance information that
was required in the proposal; (3) triggers
advance notice only upon changes to the
facility or activity and (4] only requires
advance reporting of changes in
production without accompanying
process changes If the permittee has
reason to believe they might result in
permit noncompliance. For example: If
an NPDES perinittee Is reducing its
production and consequently Its
discharges, and therefore does not
violate the effluent limitations In the
permit, such changes normally need not
be’reported. This prevents the permittee
from feeling it must report Innumerable
instances of changed production just to
be on the safe side. (See, however,
I 122.15(a ](4), which allows an NPDES
permit to be modified In this situation
even If there Is no permit
noncompliance. This cause for
modification is statutory.) Fifth, changes
In the activity which are not limited In
the permit would not have to be
reported under this scheme. EPA
believes that for NPDES the requirement
to report expected use or manufacture of
toxic pollutants under I 122.61(a) takes
care of parameters not limited in the
permit in most instances: similarly
I 123.95 ensures that any change in an
activity regulated by a 404 permit is
noncompliance. As for RCRA and UIC.
experience with these programs may be
necessary before it can be determined
with more precision what activities—
other than changes to the physical
facility or those which may result in
noncompliance—need to be reported in
advance.
(b) Transfer-s. The provision on
transfers appeared in the proposal
I 122.8(e). These final regulatior
contain a separate section on ti
• 122.14. This standard permit cr .
reflects the requirements of that sec
see the preamble discussion thereu.
(c) Monitoring reports. The new
section of the permit listing reporting
re u1rements now refers to the duty to
submit monitoring reports so as to
provide one list of permit reporting
requirements. The frequency and
content of these reports, however, will
be specified elsewhere in the permit
because they are variable provisions
incorporated through I 122.11 and the
sections which It refers to.
(d) Compliance schedules. The
requirement for the submission of
reports on compliance or noncompliance
with requirements in a compliance
schedule appeared in proposed
§ 122.12(a)(2) (now I 122.1O(a)(2)).
Because this requirement is binding or.
all permittees with compliance
schedules, it Is referred to also in final
I 122.7(1)(4) to make sure that it will
appear In the permit
(a) Twenty-four hour reporting.
Proposed I 122.11(h) stated that all
Instances of noncompliance had to be
reported, that the Director “may”
require such report WIthin 24 hours “or”
five days In certain Inatancee, and c,t
the Director “shall” require such
WithIn 24 hours in the case of Ni
permittees subject to CWA sectio..
307(a) toxIc standards or.prohiblt lonb
Many ommenters objected that the
duty to report these instances of
noncompliance was vague,
wu’easonalbe. and duplicative. in
addition, application of the five-day or
24-hour requirement was unclear.
EPA believes that in certain instances
It Is important to receive prompt notice
of noncompliance, and the requirement
for 24-hour or flve.day reporting has
been retained. However, several
changes have been made to make this
requirement clearer.
EPA has retained the general duty to
report potential endangernients to
health and the environment as a 24-hour
reporting requirement applicable to all
programs. However, the general
requirement Is now triggered only by
noncompliance. EPA agrees that a duty
to independently report information that
“may” constitute an endangerment to
human health or the environment that is
not coupled with noncompliance should
not be imposed.
Second, each of the program subparts
Indicates more specific instances where
health and the environment reportin”’
likely to be applicable. While in r
cases the prompt reporting of mi
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33307
of noncompliance affecting human
health and the environment must
depend on the permittee’s good faith
estimation of Its Importance, It should
be clear, as these regulations now
provide, that In the case of a release of a
hazardous waste into public drinking
water supplies (RCRA), endangerment
of public drinking water supplies (UIC).
and noncompliance Involving a CWA
section 311 or 307 pollutant (NPDESJ. the
permittee must report immediately to
the Director.
Third. the program subparts also
indicate additional 24-hour reporting
requirements which are not necessarily
linked to possible endangerment to
human health and the environment or to
noncompliance, but which are readily
identifiable by the permittee and which
EPA has determined are sufficiently
important to warrant immediate
reporting. Thus, for NPDES, each permit
will include a list of those pollutants for
which the violation of a maximum daily
- discharge limitation must be reported
wIthin 24 hours. Similarly, for RCRA,
EPA ’requlres notification of any fire or
explosion at an HWM facility, as
required In each RCRA perrnittee’s
contingency plan, even though there
may be no specific permit condition
directly prohibiting fires or explosions
so as to render the event technically a
“noncompliance.”
Each event repoited’.under * 122.7(I)(6)
and the corresponding program sections
must be followed by a written
submission within 5 days. The list of
Infonnation that must be submitted in
the written report speaks in terms of
“noncompliance,” but where a report
must be submitted for an event which is
technically not noncompliance, this may
be read to Include the other events
required to be reported.
-Fourth, several inconsistencies have
bfen eliminated. The requirement for
oral reporting wIthin 24 hours Is now
uniform in all Instances covered by new
§ 122.7W(6) , The provision for RCRA
has been coordinated with the language
In the section 3004 regulations: see
§ 122.28(d) and 40 CFR § 264.58.
Fifth, the operation of the 24-hour
versus 5-day requirement has been
clarified. Now, in all instances, an oral
report must be supplied in 24 hours, to
be followed by a written report wIthin 5
days. There Is no-longer a “choice”
between 24 hour(or 5 days that the
permittee would have to be Informed of
somehow, and there Is rio possibility
that a written report could be required
wIthin 24 hours. In addition, some
commenters, including EPA Regional
Offices, argued against the Director’s
proposed authority to waive a written
report when the permittee has orally
reported within 24 hours. EPA agrees
that a written report is needed for
documentation of ll Instances of threats
to human health and the environment.
However, written reports concerning
other 24.hour reporting Instances remain
waivable If indicated in the program
subparts.
(g) Other noncompliance. Proposed
§ 122.11(h) required all instances of
noncompliance to be reported to the
Director, but was unclear as to how this
requirement related to other reporting
requirements. Final § 122.7(l)(7) states
that only those instances of
noncompliance not otherwise reported
in monitoring reports, compliance
schedules, or as 24-hour and 5-day
reports, must be independently reported
as noncompliance. Reports of
anticipated noncompliance must still be
reported under this heading if the
noncompliance actually occurs. Thus, if
noncompliance Is revealed In routine
submissions of monitoring reports, it is
not necessary for the permittee to
automatically submit a duplicate report
on the same Information. For NPDES,
and perhaps the other programs, reports
wider this heading will be rare.
The final provision also clarifies when
these noncompliance reports are to be
submitted—at the same time as the
monitoring reports are submitted under
the conditions of the permit. The - --
proposal referred to the section on
quarterly and annual noncompliance
reports. This was confusing because
these reports are prepared by the
Director, not the peimittee. The cross-
reference has been etiminated.
(hi Other Lnform at/or. This headin
which was only Implied in the proposal
through the duty to report causes for
modifica lion, requires perriuttees to
update Information submitted in their
apphcat ona or reports. U the permittee
learns that incorrect information Is
contained in its application or reports
that have been submitted, It shall
correct the information “promptly.”
The permlttee’s reporting
requirements are summarized in Table
V.
§ 122.8 Establishing permit conditions.
Final § 122.8 (proposed I 122.13) Is
essentially a cross-reference to other
sections of these regulations and other
regulations which set forth required
permit conditions that vary from permit
to permit and methods for setting those
conditions. This section has been
rewritten to provide a roadmap to all of
the sections of these regulations that
must be conmited by permit writers In
setting these variable permit conditl3ns
(see also Table U and preamble to
1 122.11). The section fIrst refers to
sections of Subpart A which set forth
permit conditions required for all
programs In certain instances, and then
refers to corresponding sections in each
of the program subparts on “establishing
permit conditions” for those programs.
The latter sections In turn refer to all
subsequent sections of the subpart
containing information on setting permit
conditions, and to relevant portions of
the technical regulations for the
program. -
Table V.—Penndtee R ig R.qidsenl.nb
Typ. of
Whas Ad l1o. .& o Im
m
I PIaiv .ad
Ii .anc. —— 122 28 1e) IRc AI.
of .angms.
1l22.41(cI IUIC).
II22 5O(gX3) )w
51 2 2 51 ( 5 ) -
IPIFOES)
2. Mbc’pst.d
In a ane -
—
Ir
S Plwwied
In ad .s,.c.
Pw IsrL
4 Mwstcmg
U 1 5.afedm 5.ma1 5t22eo(e)(NPOES
mxfl
SComøane.
Ildaysof
sciI. das
mpI ,.nCe daIs
2. Endanger-
24 loin’S days — 5122 26 (d) (flORA).
men lo ,
I1flh1(d )(UI
0 5 l o124
1 122U0(I )
I l oi nI5 day
INPOCS).
7. Othe,
Witti moiloo .m
fl ,__._ . -
rsPons
w l o
sOth e ,
Piompuy....................
We,meW
5 A X .da
Al epmeIl.d I 122 25( s) (flORA).
PiO am
1 12241(s )(UIC).
,s,_e-
5 l22J0(g).
aWit’
5122 60(h),
I I2L51 Ia ) . and
5 1 2 2 6 1( b)
PIPOES)
The fact that this section is the guide
to all permit conditions which do not
always apply in the same way, orm
every instance, to every permit, and that
these conditions therefore must be
applied on a case-by-case basis, as
appropriate, should not be taken to
mean that any of them are necessarily
optional. In many If not most cases, the
conditions referred to in this section are
mandatory if the circumstances which
invoke the condition are present. In
addition, this section now explicitly
states the general duty of the permit
writer to include conditions in the
permit which are necessary to ensure
compliance with the appropriate Act
and regulations. It also contains
guidance on when a statutory or
regulatory requirement becomes
effective for purposes of that duty. Some
of that material originally appeared in
§ 122.69 of the proposal for NPDES it Is
now applicable to all of the programs.
§122.9 Durotion of permits.
Proposed § 122.8 (now § 122.9)
provided that RCRA and IJIC permits
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33308 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
would be Issued for terms up to the life
of the facility. NPDES and 404 permits
would be issued for terms of up to 5
years. When a facility or activity has
permits under two or more programs,
proposed § 122.9 (now I 122.14)
provided that a “cross-review” of each
Issued permit would have been
conducted every time anotherpermit for
that facility or activity was issued,
modified, reissued, or terminated. This
review would have been conducted to
determine whether the other permits
should also be modified, revoked jnd
reissued. or terminated. Proposed
§ 122.9 on causes for modification (now
1122.15) provided that modification or
revocation and reissuance of a permit
could be based upon a related change to
another permit issued to the same
facility or activity. Also, all UIC and
RCRA permits were subject to
mandatory review every 5 years.
The proposal requested comments on
the permit duration and review scheme.
and a signficant number were received.
In general. industry favored lifetime
permits for RCRA and UIC, and
objected that the provisions for permit
review negated the advantages of
lifetime permits. Many felt that normal
reporting. inspection, and monitoring
already provided sufficient oversight.
and that reviews ought to be triggered
only when such methods themselves
revealed possible cause for a
modification, More fundamentally,
commenters cited the permittee’s need
to rely on the conditions of its permit,
particularly for siting and construction
requirements, and argued that financing
could be jeopardized without this
certainty. The proposal seemed to open
the prospect of an endless round of
reviews or “nonstop permitting” with
permit conditions continually being
adjusted. This fear was aggravated by
the fact that just what a “review”
entailed was not spelled out. Finally,
many commenters feared that reviews
would cause delays In processing
applications and modification requests,
because action would be held up while
all reviews of other permits for the same
facility were conducted. They especially
objected to the provision for “cross-
reviews” for facilities whh multiple
permits both for its potential for delay
and for appearing to “bootstrap” the
requirements of one permit onto other,
related permits.
On the other hand, a number of
comments were received from
environmental groups and some States -
favoring a fixed term approach,
partictiary for RCRA permits. Those
commenters felt that regular review and
updating ‘if permits is necessary for an
effective UIC or RCRA program, and
that the only way to be sure that such
reviews take place is to adopt a fixed-
term permit approach.
In response, and as a result of the
evolution of Its own thinking. EPA has
extensively redrafted the permit
duration, permit review (proposed
* 122.9, now deleted but discussed
below), permit termination (proposed
* 122.10, now 122.18), effect of a permit
(proposed 1 122.7, now § 122.13), and
consolidation of applications (proposed
* 124.4, now * 124.4) sections to provide
maximum certainty to permittees
consistent with adequate protection of
the environment and human health. The
discussion of permit durations should be
read along with the above sections and
accompanying preamble.
With the exception of certain UIC
wells, which may receive lifetime
permits. the final regulations replace the
mandatory 5 year reviews for RCRA and
UIC permits. and in all cases replace the
“cross-reviews” for facilities with more
than one permit, with a fixed-term
permit scheme for all of the programs.
Accordingly, permit reissuance at
regular five or ten year Intervals. instead
of permit modification at unpredictable
times, will be the primary mechanism
for adjusting permit requirements. In
addition, EPA has narrowed the grounds
upon which a permit may be modified or
teminated during each permit term In
order to provide a maximum amount of
security to permittees. Also, a provision
has been added stating that for all
permits that must be Issued for a fixed
term, compliance with a permit
constitutes compliance, for purposes of
enforcement, with the appropriate AcL
Finally, because of the fixed-term
approach, permits for the same facility
can be set to expire and be reissued at
the same time. In this way all relevant
aspects of a facility’s operations can be
reviewed together, which should result
In more comprehensive and consistent
requirements.
(1) Final I 122.9 now states that all
HWM facilities may be Issued permits
which are effective for a maximum of 10
years. Wells injecting industrial or
municipal wastes beneath the
lowermost formation containing an
underground source of drinking water
and certain wells Injecting hazardous
wastes (Class I wells) may be Issued
permits for up to 10 years. Wells for
enhanced recovery, hydrocarbon
storage, and special process mining
(Class II and Ill wells) will still receive
permits for up to the life of the facility.
A Class V well, if It Is required to obtain
a permit (see preamble to I 122.37)) may
receive a permit br up to 10 years.
EPA agrees with those comme
who believe that permit expirati
reissuance Is an important mecha .a
for providing regular scrutiny of pern”
compliance and updating of permit
conditions. When permits must be
reissued periodically, there is greater
assurance that the existing conditions of
the permit will be scrutinized to
determine whether any of them must be
modified or updated. In addition, a
limited-term permit provides protection
against human error by the permit
writer. This Is particularly important for
facilities which undergo construction to
comply with construction or
performance standards contained in the
permit such facilities could comply with
those standards and yet not comply with
other requirements designed to protect
human health and the environment.
Under the proposed scheme, the facility
could be subject to having Its permit
modified at any time. Under a fixed-
term permit scheme, this situation can
normally be addressed during permit
•reissuance (see discussion of permit
modification below).
Finally, periodic reissuance builds in a
mechanism for upgrading of permit
requirements to reflect changing
knowledge and advances in technology
for permit programs which are ne”
undergoing rapid evolution.
Accordingly. EPA has determin.
RCRA facilities and Class I wells un
the mc program will be issued perm
of a fixed duration of up to 10 years.
These facilities deal with hazardous and
municipal wastes which in many
Instances have great potential for harm
to human health and the environment. In
both instances the Federal regulatory
program covering these facilities is new.
which favors a short-term permit
approich, especially during the early
years while technical crueria for the
regulation of hazardous and m-.inic pal
waste are further developed.
A 10-year term (rather than 5 years as
with NPDES) was chosen for RCRA
facilities because of the especially
intense scrutiny such facilities
frequently receive during public
hearings (which are required during
permit reissuance) and the local
opposition which is frequently
engendered. EPA determix-.cd that for
this reason the entrepreneurial risk and
need for the security which is afforded
by a longer permit term is
correspondingly greater for RCRA
facilities as a class than for NPDES
point sources as a class, particularly in
view of widespread shortages of
capacity within approvable facilil
and the consequent lack of local
alternatives. In addition, a term of up to
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1-4 — 1 ) — I — — .7 — —
— : , j,jfr j VoE45, Nags . 9 Mondsy Ma It 1950 f Rules andReEulstions .33309
10 years may be nSied for toni RCRA (3) Ssveralcomnwrrters noted that elument of State and Regional pverslzht.
facilities becauM of thatraxperixnsntal both the lifetime and fl ed-terrn ermit In some cases delay in reportlnR could
nature and tht need for ader2uute tim e to pmvIeic ns pv c the Director disthetion result in damage to the environme.ntl
apalytetlif lering approaches to to issue perrnlti for In s than 1he fuli . Balanced agsinst this possibility, there
hazardous waits manassment Finally, allowable tern. EPA belisves that the ta little increased burden In requlring
10 yeare was chosen because it is a option of Issuing permits for less than prompt notice, because notice is,
multiple of five, which will make it . the maximum duration is necessary in required in any event, and the permittee
easier to coordinate the reissuance of both instances. For example. Cla s I I knows oc should know thst it is in
RCRA permits with NPDES and U1C and ill IJ 1C wells include a wide wadety noncoft plisna ori the dsts specified For
permits for the tame facility. liavirii of operations in various locationS with the requirement in the schedule. EPA
chosen maximum 10-yes.i’ terms for ,. differing environmental concem . More has Jherefore ctiisrmlned that ths.
RCRA facilities, EPA deterrnine.d that rigàrous oversight th.râu h • turn permit deadlins of 14 days after ths compliance
the maximum term for,Ciass I walls may be appropriate because of the-type date fpr notice should be retained as a
should likewise be 40 years. To provide of the well, it. past operating history, uniform requirement for all programs
otherwise would not comport with and ths risks to the environment w?flch and. In view of comments in favo ! of
EPA’sattempt.sthroughconsolidatlonto ilmuypresenLForthefixedter’m.. - . .*anlfqrmity,forSIç aaa..ss aJ 1 ..
achieve consistency between programs. pCrVBts. permits of lesi than t0y ar . . (b) Stating a maxjmum time between
particularly as Class I wall. include durations will be s normal occunence. .:.,11’ittrim compliance dates limits the. -.
thosetnJectlnghsnrdoupvastcs.: . .. .both .lrt considerat lonofvarying, ... :. D1rtctof.dIaaat1ontnwWngpe ll - - -:
ClavsLjandLIlwell.undertheUlC ,nvironmentalrlásanda.sperndt cond lt lonaTh.dstasheorshesetsfar - -
program, on the other hand, will retain jduratlons will be set to allow permits for compliance will datermine how soon ..
thu mIm ftfetime d Uon .. thu same f.cillty to expire and be information on noncompliance will be
which appuared In thu proposal. These reissued at thu aims Urns (see I use received. Ttrnsly receipt of Information ;
well., which are used for enhanced oil and accompanying preamblaL Another Is particularly lmpoytant for Stats .
end gas artain types of . example of short-turn permits Ia the adminliteredprogr*ma. where A will
hydrocarbon st and saveral kinds . “5hozt-tarrn permit policy”. for N’PDES be relying on sunnnarlaa of compliance
of special proca tefor mining of . . ‘ permits (see I 12 104hcoordlnatlrtj schedule violatlona ca talnqd In ’ .
minerals or In situ gasification of pemth durations so.as to Incorporate . quarterly or annual noncompll.nce. . .. . - -
hydrocarbon mouras, presant its. . BAT effluent llxnltatlqrns m.ndatsd by rep orts In the Interest of unllorrnlty,’
hazard lathe anvironmant. eo that the the NRDCv flwn ssttlamant EPA baa deteimlned that. ma.xlmc
tnasase In nermit i..± agreement. ‘- one-year interval between complianca
needed for tIxid-term permit. would not 4 :zzio Sch&dea ,fcoJr!p1Yancs , data. tsrctlcaL Beau e the rovl.kon,:
S L ,. . aat.s o ui.mavqwntmterva.-
(I)Pràposed 3122.12 (now 3122.10) btweendeadlinae,i]iaDlrectorla .
acluue5 nut tn flv,OWw fl517 S fl solicited comments on the possible need always free to set deadlines closer
as us tOjnneL . .. . • for uniformity In two requirements for . togeth rpkan more tigoious oversight is
/ (2) Sevetsi commentate stated that schedules of compliance: (a) the imporçant Normally viilestone evente
U1C permits should Ft S!i - -dsadlln. for permlttsee to give notl of—o xur et IntarvaltaKonh ltan ona yeas ’
of he facility rathar than the designed u pltsnraor noncampilance (l sdsye tinder 3 122.1c(a) [ 3)(li), Directors mutt’
life oa the grounds that for roan, .fmr the, ,compllsnce date for EPA - -nqulre p pssa nport.wbewlt 4.—
facilities Ihe-.4eitwd life Is hard to . . p ogramt but 30 days for IJIC programs Impractical to specify thmplisna:.’. -1
determine or arbitrary, and that a permit , .. k all State programaj and ( b) the IntervaliM.ontyaazorlass- . . - - .
__-_-renawalapp 1 ’catkmwotaitbnequlred UjJ j .-,. (2)Acominentfollowlngpioposed
tbe facility happened to last loner than 1- dates ( g’months for EPA programs,1 3 122.12(a) stied that HIVES new
originally ziputed. The purpoSe of - year for States). . . d,hargs acuras which recommence
. proylsion was to be sure that EPA and (j) Irthoth Instances, óomntenters heavilY (discharge altar terminating operations..
States would have adequata oversight of, juv ñed greater uniformity. Not a single and than souras which had been
the termInation of facility operations, . $Tite specifically corümented in fivor of. .‘t4lr.a discharger. which ccmuuence
pinlcu lartythecloaunandflnandal . (!j ’te greater latitude for States which /rdlscharglngtritbwstereofthstinlted
responsibility provl.ions set forth in . fiptared in the propesal. As for . .—‘ States, ito not qualify for compliance
3122.42. However, EPA agrees that’ unlforthlty among progra ps, almóii all achedt4es. ml. vtmment was taken
setting the permit tarip on tha basis of eomrnentere stated that they fsvoked it. from the lansuage of 3 122.17(f) of the -
an estimate of the operating life of th and then want on to lend support to the NPDESregul”atlons. Fln.aJ 3 122.10(a)
facility Is not the way to,do it, - less siringant requirements of & days reinstates this language aa part of the -
• particularly as the èsthmta could fall on and one year. -. .. text bf the regulatlcm rather than as a
- — - - either side of the actual date of closure. .. EPA agrees with commentere that comment to emphasize the regulatory
,Pather.EPAhas.mended l lz24lto timingre . . ssoclstedwlth ,.effectofthesection.
require .UIC pernittees to give notIce 180 - -compliance schedules an arts where - “Iu addition: th jrópósed comment to
days prior to closure so that the one of the poteatlal ben fits of ‘ 3 122.12 (a) failed to specify that NPDES_-__
financial reeponstbillty end closure . consolldetlon—elljntnatlon of arbItrary new sources are (nliglbte for schedules
provisions of the permit a.n be . differences In requtretnenta shared by of compliance. . . -
reviewed and modified If necessary, and several picgraths—can.be realized. ‘ The cqxnment was thus inconsistent’
the permitting agency can be assured of (a) The NPDES program which has with 4 122 .17(f) of the fInal June 7, 1979
adequate opportunity to ovaries thu had several years of experience In NPDES regulations and with section
termination of operations. This change monitoring permit compliance and Is the 308{e) of CWA. ThI, omission has been
has consuquently allowed EPA to only program covered in these corrected In the final regulations.
amend 3122.9 so that Class II and Ill regulations with Federal enforcement Some comxnenters quoatloned whether A
walls maybe permitted for up t the. experience has found that thu l4day the comment to proposed 3 122 . 1 2 (a)
actual operating life of the facility, notice requirement Is en important (and the corresponding provision in
— I
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3331U Federal Register I Vol. 45, No. 98/ Monday. May 19. 19th / Rulesand Regulations
• IZZJI(dfl4)) could be cbnstrued to 3804 requirements slier they have permit requirement. by assuring EPA
mean that discharger , subject to its obtained permits, as well us the need lo thQt It Is going to terminate operalions.
provisions are never eligible for an incentive for such facilities to begin but then chan es its mind either in good
schedules of compliance, even for upgradIng durirtg. :lnterim period in or in bad faith, and therefQre requires
permit. islued alter the first permit. EPA anticipation of strict permit conditions more time to mike up what was lost
did not Intend this Interpretation a.a_,d EPA agrees that apet’ . td la.. whik ;t: nptively on the road to
thu.s has clarified the section to Indicate l-I’WM facilities with I 3804 standards Is termination. To prevent this from
that these diichargiers will be inell ible’ lmjionañt.’ led hsa amended % 122.1o(a) - . happentn , tt Is naceasary h require the.
for sdteduln of comjllancs only for the to requIre cómpliaftca’”as Soon as permittea to cornnilfit.sslf to terminating
first permit -s Issued to them. poasibla” for all compliance schedules, flit Is to he pliced ens tsrmtnaiton
idd itiOfl hld _ i i1C I9. !2Wt!M.0f ,nqtjusithoseinNPDE spernths.S.e •scheduls,aslnpropdud$122. 12(c)for
final I into(s) (and a parallel change - - “ also % lnio(alllUhJ). Howévey, vi NIVFS. Stmllartwth. commitment has -
In 3 12247(dfl4). proposed as- bslleQs thst It would ha Imlstsketa to be a firm public cominitmant
I 12241(d)(4)) allows new dii hirgirI” “irnpiosiastrlct deadline for RCRA or_il!iailaiactoiyto thaDlrector7 However,
which commenced dlscharga before other program compliance, bacauaa It .‘ the requlrtmenithitiland he pàl edt& -
August 13197$ (tha effactiva data of the wimid ailminata any authority to shape back up thacornniltmant. which
Juna 7,197$ HIVES regulations), to .Lth. duration of compliance scbedules.as appeared In proposed I 1Z2,124c), has
: qualify fur schedules of wmplianct , . the circumstances wsnanttPA bean alitlinat.tC Several cmmmsnters
lleausaentm bnofnewiIThargen - ---t llenathalàrjsftmsastG\ha . srguedthatEPAkckadl.jelaiithor lty
had begun discharge before the August 1 luration of compliance schsdujea should for such a bond undsr tha dean Waler’’
data with flA’s consent pending ..‘ba made through tha permit-issuance . Act.’ind the find form bond has not yet
Agency actIon on thelt pennlt . ..“ process, where hare Is full opportunity “‘been daxnonatrat in qcasmofRCRA ”
applicat Ions , £PA believes It wouldb-s , Iorpub llcpa.rtldpstionsndfor - , orIJICAnaddItI cha nge from the
‘ unfai.rtoretro.sctlvelydsclaresuch .: lntarsctlonbetweentheDlrettorand-the’ propo laths stlvsschsdulesof’
dlschsrgars Inaliglbis for schedules 0 , , applicant or p,nnlttss. A requirement’S compli now svsllabls to RCRA
compliance. ‘ . for strict Interim comp!Js.nca deadlines rmlttses in addition to
(3) Several cornmsnters. Including the coupled with the, new flnd-terrn’permlt applicantt a, It was limited In the
Slats of New’ Mexico, stated that they requirements of$ 122.9 should haip . jro oaaL Alternative schsdulse for’- ‘
thought complisnca schedules are ‘ support quick upgrading of existing - applkanta-wtll. as with pennlttaei;te .
unnecssaary for tha U K progran Th ,. HWM facilities. . . datermined through tha psrmlt—issuancs
w u not utarupt L&MS 0 i.tt likewise ecommanter suggested that procesj : ‘‘ ‘ —
administered LJIC programs which havi l 1 unfair to require compliance as aooâ ,: The alternatIves schedules of
used complianos schedules Infrequently. as posaibis. beaus. this favors the’ ompllanca pr& 1 rislnn La written t allow
i u055 Utatas ontlx us UJ5IZ - company whoaa resources or , thtfinal termination data üi i schedule
F*Lh1 Oi sqULnug :r ” ° ‘ wherewithal make It Impossible to leading to termination to be somewhat
startup ;ujnwv5t, wtt#n..pr0f arn :‘.‘ ‘complya.ssoonsseomeotbercompany latarthantheflnalcunpliancedatetna
rm uT nnusnts w H. -with superior capabilities. It l.a Important schedule Ieadln$ to’compliancs. - . .. .
comaa uui i ‘ I ‘:TTto write a compliance schadula with ‘ H a. .. , tin schedule leading to-
eppn ynat* rot examp s. conalderetlon for the type of termination must still lead to “timely”
! Cfl req _.. 0 5Van ‘:.‘; rtqulra,pient st Issue and tha seriousness ‘ cessation of activities. It Snot ‘A’S ’
li?t ‘; totheanv lionmantofdtlaytnmatt lng I :Intentfnrthstrmlnatlonroatetnthis . :
a i 0 c _ m !L , If States do not It. Again, tba.parmlttlng poasa La tha s . c t 4 to be — ass means of und 1y
-‘--th thieae 1 it r i it a ‘ proper foru m forconelderstion of these .dalaylngrarqulrementsthatare , - -
wells rs at lent ‘ ire.’ to $TTT1551155.IIthtT Ths%tot’aXanlpl€ 1 app b lllffthiliduIty. Thu delay
scheduleifor Itaewith ‘ ‘‘. .ellmlnatlngalldlstlnctlonsbysilowtng muitbsfudgadonaase-by-czsabasta”
construction icbsdules to require , . - - ‘ - - . ,consldei4ng y psnnIt
a 1 ‘ ‘‘ ‘ , compliance merely by the skitutory , ‘ requIrement and tha harm or potential
‘41Fcme ‘ de dIine. I ‘ ‘ harm’to the awtsonmsnt that the
concern about ths’a lic of ‘ (6) Proposed I 122.13 (b) and (c I has ‘ noncxmipllanca or a dalaya l schedule — —
- - sch ulSo 1 mpllan c ew atu 404 .beencomblnad t hflnall z a l o (b)to “ will ceuse. nosnntshnuidtha’date ‘
rm,lta, Under S I in,iijs) - provide one “aitetnetive schedules of for ces.satlon greatly sxcsed what It -
- . - (now I t22i0(a)) permits wi li S [ )eClfY compliancC provision spplitabls to all - - would have been for com plIance. /
schedulea of compliance only “where RCR.A. UIC. and NPDES situations ‘‘ Nor is it tA’s Intant that a schatlule
appropriate.” Because CWA does not where a facility chooses to terminate olcornpllanca leading to cessation of
establish a seriaa of deadlines for the operations rather than meet permit activitiss reliava a permlttaa from
40.4 program comparabl. to the “rvr’ rcqu rements. The RCRA and U1C applicabla requirements any more thon
and ‘BAT’ schedules forthe NPDES alternative schedules of compliance any other schadula of compliance.
progrviu. and because 404 activities are now follow ha NPDES model. ‘ Obviously, If a permitter. will cease
narally nut contln4nq ones, asctlon A principal feature of tha RCRA and activities, many nnlt requlrenents
404 permIts will rarely specify achedul,s UIC proposal was that perm lttees could which apply only to operating facIlities
of compliance, switch back arid forth between lb. ‘ will not have to be complied with after
(5) Several .nvlronmantal groups a’nd scheduls laadlng to compliance and the cessstlort. Such requlramunts, to the ‘
other commentats advocated a t itus schedule leading to tannlnatlon. That ewtent that It would not cause harm to
limit, such as two years. for compliance provision waa subject to tha very abuses ths environment, many also be relaxed
with R(_ A rsqulr’sm,nta. They cits tha which all of the altarnativa scheduto of durIng tha period lasdlng up to c.ss.tion
Importance of bringing existing compliance provisions are designed to when the p.rmlltee Is firmly committed
hazardous ws.ata man.agemsnt facilities prevant namaly. whan a facility choose . to ha ceasatign course. To tho axtent ‘ ‘
Into full arrnpllance wii} RCRA section to terminate rather than comply with that requirement for operstin lacilitis.
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-Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
33311
are necessary to protection of human
health and the environment, compliance
may not be excused. At a minimum, a
RCRA (or UIC Injector of hazardous
waste] permittee on a closure schedule
should be required to meet RCRA
Interim status standards, Just as a
facillty.wlthout a permit would be.
Finally. RCRA (and certain UICJ
permit requirements which pertain to
closure and post-closure, including
financial responsibility, are applicable
to a closing facility, regardless of
whether it Is on a schedule leading to
cessation of activities, and the schedule_
must ensure compliance with these
requirements.
Several conunentere noted that the
proposal required the permittee or
applicant to decide to cease conducting
activities before the Director determines
what the compliance schedule would be
If that decision were reversed. They
suggested that the Director should be
required to determine the compliance
schedule first to help the permittee make
a decision. EPA has not accepted this
comment. However, where new permits
are at Issue. EPA encourages permittees
to contact their permitting agencies to
discuss compliance schedules and work
out co,mpllance or closure alternatives.
Wbere existing permits are concerned,
the paragraph is designed to give the
Director an optional mechanism for
modifying permits when the permittee
has made the decision to terminate.
Presumably such a permittee already
knows what its schedule leading to
compliance looks like.
EPA has not retained the language of
the proposal which coupled the
cessation schedule to compliance with
the closure requirements by the
“predicted closure date.” Instead, the
final provisign requires timely
compliance in general, thus eliminating
any implication that only the closure
requirements are of concern when a
facility Is on a closure schedule. Also.
several commenters suggested that the
“predicted closure date” should be
predicted by the pennittee or applicant
rather than the Director. As discussed
above, the end date of any schedule
leading to cessation is appropriately
determined through the permit-issuance
process.
Some comments expressed concern
that the schedule leading to closure of a
RCRA facility did not adequately
address the requirements which pertain
to closure Itself and post-closure. As the
provision Is now written, it refers to
“cessation of regulated activities.” For a
RCRA facility, this means ceasing to
accept hazardous waste which. under 40
CFR Part 284. Subpart G, triggers the
closure plan, which will contain its own
schedule for subsequent events.
4 12W Requirements for recording
end reporting of monitorin resuIts.
Several commentere noted the
inaccuracy of the comment that
“generally installation of monitoring
equipment Is not required under the UIC
program” in proposed 4 122.14 (now
4 122.11). EPA has deleted the
statement.
Several objections were received that
NPDES permittees should not have to
refer-in their discharge monitoring
reports to data on internal waste
streams and data collected by third
parties. The comment and the
requirement have been deleted.
Several of the provisions which
appeared in this section-of the proposal
have been relocated to follow the format
of the final regulations. The requirement
that monitoring data be “representative”
of the monitored activity now appears in
4 122.7(j); recordkeeping requirements
are also in § 122.7(j ). The requirement
that DMRa be used for NPDES reporting
now appears In 4 122.60. Finally,
proposed paragraph (a), which repeated
requirements for compliance schedule
reports, has been deleted.
One commenter expressed concern
that the recordkeeping and reporting
requirements for 404 perinlttees j
proposed §4122.14 and 122.12 (now
4 122.11) go beyond the intent of CWA.
particularly section 308(c). However,
under section 404(h)(1)(B) (and its
NPDES counterpart, section 402(b)(2) (A)
and (B)), one condition of State program
approval is the State’s authority to Issue
permits which apply. and assure
compliance with, all applicable -
requirements of section 308. Section 308
gives the Administrator authority to
require recordkeeping. monitoring,
reporting, and a right of entry. These
regulations comply with the statute by
establishing recordkeeping and
reporting requirements based on those
used by the EPA and State NPDES
programs. However, monitoring
requirements for 404 permittees may
vary in required frequency or extent as
appropriate to assure compliance with
40 CFR 230. Part 230 does not contain
specific monitoring requirements but
will be used to determine what
monitoring Is appropriate.
4 122J2 Considerations under Federal
low.
Proposed 4 122.83 (now deleted)
directed that EPA-issued NPDES permits
be consistent with the requirements of
several listed Federal laws and
Executive orders. Several commentera
objected to this section because It was
too broadly written. The section has
been rewritten (as 4 122.12) to etlmInRte
reference to those Federal laws that do
not require any particular action by the
Regional Administrator and to explain
the relevance of the remaining laws
listed. The provision is no longer limited
to NPDES permits because the
requirements of these laws may apply to
other Federally-issued permits. This
- section does not impose any legal
requirements beyond those imposed by
the terms of the laws themselves. The
purpose of the section is to Inform the
public and permit Issuers of the
requirements applicable to the permit
programs regulated under this Part.
EPA has under consideration inserting
a provision requiring permit writers to
comply with two Executive orders.
Executive Order 11990 (ProtectIon of
Wetlands), and Executive Order 11988
(Preservation of Floodplains). EPA
included these Executive Orders in
proposed § 122.83, “Special
considerations under Federal law.” As
proposed, the orders would only have
applied to NPDES permits. A number of
coinmenters objected to this proposal or.
the grounds that the Executive orders
were unrelated to specific statutory
requirements in the Clean Water Act.
EPA-wishes to reassess the
applicability of these Executive orders
in the context of not only the NPDES
program, but the UIC and RCRA
programs as well. Consequently. EPA
invites comment on the appropriate
scope and applicability of the
requirements of these two Executive
orders as applied to NPDES permits.
RCRA permits, and UIC permits. Any
such comments must be submitted to th.
address listed below on or before July
IL 1980.
Edward A. Kramer (EN-336), Office of
Water Enforcement, Environmental
Protection Agency. Washington, D.C.
4 122.23 Effect ofoperrnit.
(1) New 4 122,13(a) states, with some
limitations, that “compliance with a
permit during its term constitutes
compliance, for purposes of
enforcement, with” the appropriate Act.
This “shield” provision is one of the
central features of EPA’s attempt to
provide permittees with maximum
certainty during the fixed terms of their
permits. (For a discussion of permit
durations, see preamble to 4 122.9.) Thi
new provision gives a permittee the
security of knowing that. If It complies
with Its permit. it will not be enforced
against for violating some requirement
of the appropriate Act which was not a
requirement of the permit. (Of course,
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33312
Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 1 Rules and Regulations
compliance w,th a permit Is not a
defense to actions brought under the
emergency provisions of sections 7003 of
RCRA, 504 of CWAo; 1431 of SDWA.)
A similar provision already applied to
NPDES permits, as explicitly required by
section 402(k) of CWA. and appeared in
122.55 of the proposal. Because the
provision Is now generally applicable,
122.83 has been eliminated. For State
404 progruñis, new I 122.13(a) is
similarly required by the explicit
wording of section 40 4 (p) of CWA. The
Safe Drinking Water Act Is more
generally phrased, but there Is nothing
in It that speaks against applying the
“shield” to UIC permits as well.
However, the “shield” does not apply to
Class U or III well UIC permits, because
It Is Important to be able to upgrade
permit requirements for permits which
do not incorporate applicable
requirements during periodic reissuance.
Where RCRA Is concersed. authority
for the “shield” Is more complicated. As
the preamble to the section 3004
regulations points out, RCRA requires
compliance by persons subject to -
Subtitle C with all the requirements of
that Subtitle, and authorizes
- enforcement of all those requirements.
The requirement to obtain a permit Is
one of the section 3004 requirements, but
nothing in the statute states that
compliance with the permit is deemed
compliance with other provisions of
Subtitle C.
• Nevertheless, EPA believes that the
“shleld’ Is beneficial to the practical
working of the RCRA permit program, as
It Is to the other permit programs. EPA
•agrees that one of the most useful
purposes of issuing a permit is to
prescribe with specificity the
requirements that a facility will have to
meet, both so that the facility can plan -
and operate with knowledge of what
rules apply, and so that the permitting
authority can redirect Its standard.
setting efforts elsewhere. If all the
section 3004 standards were fully
enforceable against a permitted RCRA
facility even though they were not
reflected In the permit (or, perhaps, not
consistent with it), facilities would be
exposed to unavoidable uncertainty as
to the standing of their operations under
the aw. In addition, such a provision
wou o increase pressure on EPA and
States to keep the permit conditions
applicable to a given facility in a
perpetual state of re-examination.
resources will at most be barely
sufficient to Issue and renew RCRA
permits, and review State permits, at the
time of their Initial Issuance and
periodic renewal. EPA and States are
likely to make much better use of their
resources If they restrict examination of
permits between issuance and renewal
to monitoring compliance and taking
enforcement action where necessary.
Accordingly, in these regulations EPA
Is announcing a principle by which It
will bind Itself—that It will not take
enforcement action against any person
who has received a final UCRA permit
except for noncompliance with the
conditions of that permit. (For reasons
set out at length in the peramble to the
section 3004 regulatIons, Ibis self-
restriction does not apply to the Interim
status standards applicable to facilities
which have not received a final permit)
For all programs. the shield provision
applies to enforcement actions by EPA
or an approved State, as well u to
enforcement through dtlzen suits. EPA
recognizes that the RCRA “citizen suit”
provision allows private enforcement
actions against RCRA permittees
without limitation. However, because
EPA plans to specify all the regulatory
requirements applicable to an Individual
facility In the permit for that facility, a.
a practical matter there will be nothing
beyond the permit conditions for a
cititen suit to enforce, Indeed, If a
plaintiff in such a suit argued that
regulatory requirements outside the
conditions of the permit should be
applied and enforced, that would -
probably amount to an improper
collateral attack on the conditions of the
permit.
As required by CWA, the shield does
not apply to section 307 toxIc effluent
standards or prohibitions for NPDES
permits. In addition, although a permit
may specify monitoring and reporting
requirements, EPA believes that the
“shield” does not preclude It froñi
Invoking Its reporting and Information
gathering authority as specified in
sections 3004 of RCRA, 1445 or SDWA,
and 308 of CWA. which operate
Independently of the permit document.
Under these authorities, the Director
could require a report, or certain
monitoring, without modifying a permit
and regardless of whether the permittee
were complying with the monitoring or
reporting requirements of Its permiL
However, If the changed monitoring or
reporting duties were of a continuing
nature, so as In fact to amount to a
modification of the duties specified In
the permit. the Director would be
required to modity the permit
EPA believes this “shield” affords
RCRA and UIC permittees a significant
degree of added certainty. It now places
the burden on permit writers rather than
permittees to search through the
applicable regulations and corTectly
apply them to the permittee through Its
permit. This means that a permittee may
rely on Its EPA-Issued permit doc.
to know the extent of Its enforceab...
duties under the appropriate Act, or or
Its State Issued document to the extei
the State program has not adopted a
more stringent approach to enforcement.
This new “shield” provision does not
alter the fact that a permit may be
modified, revoked and reissued, or
terminated during Its term for
appropriate causes (see preamble to
I I 122.15 and 122.10). Most instances of
modification, revocation and reissuance.
or termination will be the result of
noncompliance with a requirement of
the permit, although some causes do not
require noncompliance. However,
“failure to apply any applicable
requirements” (proposed I 122.9(e)(6)) Is
not, as It was In the proposal, grounds
for modifying or revoking and reissuing
a fixed-term permit. Thus. if the permit
writer makes a mistake and does not
include a requirement of the appropriate
Act in the permit document, the
perinfttee will neither be enforced
against nor have its permit modified or
revoked and reissued as a result (unless.
perhaps, an endangerment to human
health or the environment can be
shown; see I 122_10(a)(3)). In addition,
EPA has the authority in certain
circumstances to “veto” a State-iss
RCRA permiL This provision is
discussed In the preamble to Part 123,
Subpart B.
This change has necessitated a careful
rewriting and reorganization of many
sections of the proposal. The proposal
contained language which was
addressed to permit writers as well as
permittees. without a coherent attempt
to distinguish one from the other.
Because requirements for permittees
were scattered through the regulations,
a conscientious permittee might have
felt obliged to read through all of the
regulations In order to be sure that it
was aware of all of Its duties. Similarly.
there was no mechanism for assuring
that the permit writer would pick up all
of the requirements and place them in
the permit. This Is no longer true. Rather
than stating that “the permittee shall,”
the regulations now In many instances
state In effect that, “the permit shall be
wtit en to require that the permittee
shalL” Likewise, the regulations have
been structured so that generally
applicable permit requirements appear
In all permits, and that permit
requirements which vary from permit to
permit can be tracked through the
regulations and applied as appropri-
see Table U and accompanying
preamble.
(2) Proposed I 122.7(b) (now
I 122.13(b)) provided (hat a permit does
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33313
not “Infringe” State or local law or
regulations or preempt any duty to
obtain State or local assent required by
law. EPA recleved several comments on
theee proposed provisions. particul r1y
for RCRA facilities. First, EPA has
reorganized the section so that no State
program will be required to ensure non-
preemption as a condition of program
approval by EPA. It Is quite possible for
a State to determine that In establishing,
for example, a hazardous waste program
to satisfy the requirements of the
Federal Resource Conservation and
Recovery Act, it Is preempting any local
authority to regulate hazardous waste;
see Rollins En vironmentol Services v.
Iber.’ile, 13 ERC 1260 (S.Ct. La., 1979).
The preemptive effect of State operation
of any of the programs In these
regulations is a matter for Federal or
State law which EPA does not address
one way or the other in these
regulations. Applicants and permittees
must find out for themselves If there are
local laws with which they must comply.
Second. the statement that a permit does
not Infringe State or local law or
regulations remains applicable to EPA
permits. EPA does not intend this
provision to mean that non-preemption
Is a precondition of Issuing an EPA
permit. EPA’s Intent Is that it has not
made a determination through these
regulations that in Issuing a permit It Is
preempting Stats or local requirements.
Review of permits (proposed § 122.9).
In the proposal. the provisions for permit
“reviews” were oLcentral importance,
and recteved an appropriately large
- volume of comment. because they were
a counterpart to the proposed lifetime
duration of RCRA and I nC permits.
Becaue of the fixed-term approach to
permit duration adopted In these final
regulations (see final § 122.9 and
accompanying preamble), permit
reviews are no longer a central feature
of Part 122. Although the mandatory
five-year review for Class llnnd UI UIC
permits (proposed § 122.9 (a)) remains In
O 122.9(c) (duration of UIC permits), the
other provisions concerning review that
appeared In proposed 00 122.9(a), (b)
and (c) either have been eliminated or
are adequately covered by Part 124.
First (proposed 1 122.9(a)), the other
five-year reviews have been eliminated
because all permits other than certain
UIC permits are now for a fixed term
and therefore will be reviewed
automatically as a part of permit
relssuance.
Second (proposed §122.9(b)), EPA has
eliminated mandatory “cross-reviews”
for facilities with more than one permit
and the corresponding provision
(proposed § 122.9(e)(5)) that would have
made modification of one permit
grounds in Itself for modifying any other
permit for the facility. The “cross-
review” provision Is no longer necessary
because of the fixed-term permit
approach, and the modification
provision has been eliminated both as
part of EPA’. attempt to narrow the
causes for modification of a permit and
because of commenters’ objections that
It involved “bootstrapping” the
programs onto eachother. SectIon 124.10
(public notice) provides, U It did in the
proposal, that mandatory notice of any
permit action will be sent to any agency
administering other permits under these.
regulations for the same facility. These
agencies would then be free to take
whatever permit actions would be
authorized, If any, under the statutes
and regulations governing the programs
they administer.
Third (first clause of proposed
0 122.9(c)). the provision that the -
Director may review a permit at any
time has been eliminated. The Director
always has authority to review a permit.
and the statement tended merely to
create confusion as to what EPA meant
by “review.”
Fourth (second clause of proposed
0 122.9(c)), It remains true that the
Director must review a permit when
presented with information which, If
valid, would constitute cause for a
modification. However, the concept Is
now taken care of in final 0124.5, which
EPA has broadened to state that any
Interested person, and not just the
permittee. may request a modification,
revocation and reissuance, or
termination of a permit. Section 124.5(b)
requires that denial of any such request
must be conveyed to the requester in
writing: this ensures that the “review”
“shall” take place.
Commenters expressed a great deal of
confusion and anxiety over what
constitutes a “review.” We have not
provided a definition of review because
EPA believes that the Director should
determine the appropriate level of
review. In conducting a review, the
Director may obtain Information in any
of the way. which are authorized under
the appropriate Acts anyway. such as
review of the files. inspection, or
Information requests. Thus, the
proposed review provisions added
nothing to statutory information-
gathering authority. “Review” duscribes
what the Director always could have
done at any time anyway. For this
reason. EPA has also eliminated the list
of sources of information upon which
the Director could base review
(proposed I 122.9(d)) as m aleadlng and
less accurate than relying on the full
range of statutory authorities. Review of
a permit does not mean that the permit
is automatically “reopened,” but only
that a search is conducted to determine
whether or not It should be.
Many commenters requested that
Information submitted by the public be
subjected to some evidentlary
requirement before review would be
triggered. Although, as discussed above.
review upon receipt of a valid public
request Is mandatory, the Director is
free to fashion the scope his or her
review according to the merits of the
information aubmitted. Only If cause is
found are permits opened. at which time
the draft permit and hearing provisions
of Part 124 gIve permittees an
opportunity to provide their views on
any contemplated action.
* 122.14 Tmnsfer of permits. -
The provision on transfers appeared
in the proposal in 0 122.8(e). The
proposal stated that permits could be
transferred only If written notice were
given to the Director containing a
specific date for transfer of permit
responsibility and if the Director failed
to object within 30 days to the transfer.
Tranfer of a facility was a cause for
modification or termination of the
permit (proposed 00 122.9(e)(4) and
122.10(b)(4)). Many commenters
objected that the grounds for
disapproving a transfer and requiring a
modified permit or terminating the
permit were vague, that the list of
grounds for modifying or terminating a
permit under all circumstances ought to
be sufficient, and that if there are
additional grounds that arise because of
permit transfers they ought to be spelled
out and included with the others.
The Implicit assumption of many of
these commenters Is that a permit is a
“vested” right which should be freely
and automatically transferable along
with ownership of the regulated facility.
EPA disagrees with this notion. Ills
EPA’. position as a matter of law that
the privileges associated with a permit
attach only to the person authorized to
conduct permitted activities and are not
Inherently assignable. Many States
preclude any permit tranfers and require
the new facility owner to apply for and
obtain a new permit in all instances.
As a practical matter, permits in many
Instances contain requirements which
are personal to the permittee through the
explicit conditions required to be
contained in the permit. This is most
significantly true for RCRA facilities and
UIC wells injecting hazardous wastes.
Consequently, for these facilities in
every case, and for other UIC facilities
and NPDES facilities as appropriate, a
modification of the permit Is necessary
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and_Regulations
to reflect the new ownership or
operational control of the facility,
although EPA has attempted to draft
these requirements to achieve the least
possible burden on property
transactions consistent with adequate
transfer of permit responsibilities.
First, EPA has retained the essential
features of the proposal for NPDES
facilities and UIC wells not Injecting
hazardous waste. Permits for these
facilities may be transferred
automatically, without requiring any
affirmative act by the Director, but only
If a written agreement for transfer of
permit responsibilities Is sent to the
Director. The agreement no longer
requires specific provisions as to
liability for events occurring before and
after the transfer, but only an agreement
as to liability between the parties. For
UIC facilities, the notice to the Director
must also demonstrate that the
requirements for financial responsibility
will be met by the new perinittee.
Finally, the director must have the
opportunity to require that the permit be
modified to reflect the change In
ownership or operation. In many cases
the Director may feel that it I. desirable
to require the prospective new permittee
to submit a permit application; see
preamble to 0 122.15(b).
For permits that are automatically
transferred under this provision, the
transfer-based cause for modification or
revocation and reissuance
(I 122.15(b)(2)) survives the transfer, so
that the Director can later modify the
permit to reflect the new realities of the
operation without holding up the
transfer. However, after an automatic
transfer is effective the permit will not
be reopened to revoke and reissue the
permit unless the permittee requests or
agrees. Otherwise, the new permittee
would be subject to having its entire
permit rewritten at any time regardless
of Its relevance to the change brought
about by the transfer. This Is contrary to
the certainty which these regulations
attempt to give permittees during their
fixed-term permits. Of course, the
transferred permit may also always be
terminated for cause, such as violation
of the financial responsibility
requirements.
Second. for RCRA facilities and UIC
wells injecting hazardous wastes, EPA
has determined that in all cases it will
be necessary to modify the permits upon
transfer of ownership or operational
control of a permitted facility or activity.
This provision is also applicable to 404
permits. This is necessary because these
permits, unlike NPDES permits or
certain UIC permits (other than the
provisions for financial responsibility),
contain conditions which are personal to
the permlttee and which nec ssarily
must change when the permittee
changes. These Include such conditions
of the permit as the closure and post-
closure plans, the contingency plan. and
provisions for financial responsibility. In
addition, because some of these
conditions are incorporated In the
permit on the basis of Information which
Is submitted as part of the permit
application, In most of these transfers a
new permit application will be
necessary as well. A new application
will always be required when the permit
Ii revoked and reissued. However, there
may be some instances, such as a
corporate-subsidiary transfer, where the
modification would require no
substantive changes In permit
conditions but merely an updating to
reflect the identity of the new owner or
operator. In these cases, the transfer
could be processed as a minor
modification under 122.17(d) If the
Director receives an agreement for
transfer of permit responsibilities. EPA
believes that such an agreement is
necessary even in these situations In
order to asure adequate continuity of
permit responsibilities.
This provision does not cover
transfers of facilities under RCRA
interim status. Provisions for such-
transfers may be found in 122.23.
Because permittees need to know
what provisions apply to permit
transfers, final S 122.7fl)(3) now states
that “this permit Is not transferable to
any person except after notice to the
Director.” The Director shall then
proceed under the provisions of 5 122.14.
Under this scheme, transfer In Itself
will no longer be a cause for termination
of a permit. Rather, the permit will either
be automatically fransferred transferred
after a required modification or
revocation and reissuance: or the permit
will not be transferred but will remain
with the prior owner or operator of the
facility, and the new owner or operator
of the facility will be subject to
enforcement for operating without a
permit
EPA believes that in some Instances
final 0 122.14 may be less burdensome
than would have been possible in the
proposal. For example, In the proposal
an agreement for transfer of permit
responsibilities was necessary in every
Instance of a transfer of a RCRA permit
In the final version, thIs is not necessary
unless the transfer Is to be handled as a
minor modification. Also, in the
proposed provision for automatic
transfers, a new application was
required whenever the Director objected
to the transfer. Under these final
regulations, a permit may be r’ d
without requiring a new appli
5 122.15 Modification or i v vocal’
and reissuance of permits.
EPA has rewritten the permit
modification section in two ways as par
of the effort (see also 55 122.9 and 122.1
and accompanying preamble) to provide
greater certainty to permittees during
the period when they hold permits and
thereby make It easier to make business
decisions and obtain financing. First,
EPA has narrowed the circumstances
under which a permit may be modified
during its fixed term. Second, EPA has
narrowed the scope of the changes that
can be made when a permit of fixed but
not lifetime duration Is reopened during
Its term.
(1) The causes for modification have
been narrowed. Normally, a permit will
not be modified during its term If the
facility is in compliance with the
conditions of the permit. The list of
causes for modifying a permit is narrow;
and absent cause from this list, the
permit cannot be modified. (However,
State programs may always be more
stringent than these requirements and
an approved State program could
provide additional causes.) hi addition,
certain “minor” modifications (5 122.17)
can be made, with the consent
permittee, absent cause from t.
0 122.15.
First (see * 122.15(a)(1). propose
5 l22.9(e)(1)L a permitted facility may
change Its operations in ways that were
not contemplated in the original permit
but which require regulation. This is one
Instance when compliance with a pernhi;
should not insulate the permit from
modification. While in many cases a
change in operations will violate the
permit (giving rise to cause for
modification under 5 122.15(b)(1)), in
other cases activities not limited in the
permit will arise after the permit was
Issued. If permits could not be modified
for such reasons then permits would
have to be written to prohibit all
activities not specifically limited In the
permit WIth such a requirement
perinittees would never be sure what the
scope of permissible activities is under
their permits. (State 404 permits,
however, authorize only a specific
activity for what is normally a short
period of time and activities not
authorized In the permit are prohibited:
see 5 122.97(b).) For NPDES, see the
related causes for modification
discussed below under
5 122.15(a)(5)(viii) and (ix). Permi t.-
have a duty to report all chari
physical facility, and all othe:
that may result In noncompliai. 4er
5122.7(l).
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33315
Second (see § 122.15(a)(2), proposed
* 122.9(eJ(2)). the Director may receive
new information which Justifies
applying conditions different from those
In the permit. However, except for Class
II and Ill UIC wells, this cause is limited
by requiring that the information must
not have been available at the time of
permit Issuance. Otherwise, this cause
would allow the permit writer to modify
a permit because a mistake was made at
the time of issuance by failing to
Incorporate applicable requirements Into
the permit. However, except for Class U
and UI UIC wells, EPA has rejected the
Idea that mistake should be a grounds
for modifying a permit (see also
preamble to *122.13). In addition, the
cause is limited by requiring that the
Information would have Justified the
application of different permit.
conditIoi s at the time of permit
issuance. Stating the date of issuance as
the reference point is necessary.to
prevent using this cause to modify a
permit because of changed regulations
or standards against the will of the
permittee (prohibited by §122.15 (a)(4),
discussed below) by citing information
used In setting a new standard or
regulation. The new information must
have justified the application of permit
conditions under the regulatory
requirements that were applicable at the
time of permit Issuance. (However, new
toxic standards or prohibitions under
section 307 of the CWA and new
conditions provided for by a reopener
clause are an exception for NPDES and
404.)
A special case of “hew information”
is information that cumulative effects of
activities authorized by a NPDES or 404
general permit or tUC area permit are
unacceptable. Thus, for example, any
new Information indicating that the
effects of a 404 general permit are more
than the “minimal adverse
environmental effects” allowed by CWA
section 404(e)(1) would be grounds for
modifying the permit.
Third (see § 122.15(a)(3), proposed
§ 122.12 (a), (b) and (cfl, provisions for
modifications of compliance schedules
which formerly appeared only In the
compliance schedule section are also
causes for modification of a permit
during Its term and consequently are
listed here.
Fourth (see § 122.15(a)(4J, proposed
§ 122.9(e)(3)), standards and regulations
covering the permitted activity may
have changed since issuance of the
permit. As part of Its attempt to provide
permittees with maximum certainty and
protection from regulatory change
during the terms of their permits, EPA
has limited this cause to instances when
modification Is requested by the
permittee. This limitation formerly
-applied only to NPDES permits; it Is now
applicable to all fixed term permits.
Because Class II and Class UI wells
under the UIC program may be issued
lifetime permits, it is necessary to retain
authority to reopen them on the basis of
regulatory changes during the life of the
permit therefore, the requirement for a
request does not apply to these wells.
Fifth (see * 122.15(a)(5), proposed
§ 122.73), several causes for
modification are unique to the NPDES
program and formerly appeared in the
NPDES subpart. They have been moved
to j Ji2.15(a)(5) and expanded to
include other causes for modification
scattered throughout the proposal, to
provide the reader with a complete list
of all causes for modification in one
place.
Two new optional causes for
modification which appear in the
NPDES list (* § 122.15(a)(5)(vtii) and (lx))
concern pollutants listed on the new
NPDES application form. These causes
are Included in the final regulations as
the result of a change in the Agency’s
approach toward controlling pollutants
not limited in permits. Under proposed
§ 122.68(a), which appeared in Part Ifl of
the June14, 1979 Federal Register (44 FR
34393). a permlttee was limited to flye
times the levels or the detection limit. of
all pollutants reported in the application
form but not otherwise limited in the
permit. Under the proposal, the Director
had the authority to modify the permit
when these “application-based limits”
were exceeded, because violation of a
permit limitation Is grounds for permit
modification. In response to a large
number of comments, EPA had modified
the proposal by using the levels of
pollutants reported in the permit
application as the basis for a
notification requirement only; see
§ 122,61(a). Therefore, the Director can
no longer modify (or revoke and reissue)
the permit In this case for
noncompliance. Rather, the first new
optional cause for modification was
established under * 122.15(a)(5)(viii).
This cause arises whenever the level of
discharge of any pollutant not limited in
the permit exceeds the level attainable
by the installation of Best Available
Technology (BAT) for treatment of
discharges. (‘When the level of discharge
of a pollutant exceeds five times the
level reported in the application form,
but does not exceed BAT-level
treatment, the Director may modify the
permit to establish a new “notification
level” under § 122.15(a)(5J(x).) The
Direttor is not required to modify the
permit unless he or she determines that
modification is necessary to control the
discharges of the pollutant. A more
detailed discussion of the new
regulations and the comments received
on the proposed application-based limit
appears in the preamble to the public
notice of the consolidated application
forms in today’s Federal Register.
The second new optional cause for
permit modification appears in
* 122,15(a)(5)(ix). It allows the Director
to modify the permit when the permittee
begins or expects to begin to use or
manufacture any toxic pollutant (listed
under section 307(a) of CWA) which it
did not report using or manufacturing In
its permit application. This provision
supports other new regulations requiring
NPDES permits to control any toxic
pollutant used or manufactured by the
permittee. Dischargers are required by
* 122.53(d) to report these pollutants In
their permit applications and by
§ 122.61(a)(2) to notify the Director of
any new pollutants used or
manufactured thereafter. The Director is
not required to modify the permit unless
he or she determines that modification is
necessary to control the discharges of
these pollutants. A more detailed
discussion appears in the preamble to
the public notice ol the consolidated
application form.
(2) To narrow the scope of changes
that can be made In the permit once
cause is found, the causes for
modification only (final § 122.15(a).
discussed In paragraph (1) above) have
been distinguished (except for Class II
and Ill UIC wells) from causes which
can give rise to either a modification or
a revocation and reissuance (final
* 122.15(b)). When a permit is modified,
only the permit conditions to be
modified may bi reopened (see § 124.5).
When a permit is revoked and reissued,
the entire permit must be reopened and
the reissued permit must Incorporate all
currently applicabie requirements (see
* 122.8). (“Revocation” is used in these
regulations only as part of this
“revocation and reissuance.”
“Revocation” of a permit under section
3006 of RCRA is a form of termination In
these regulations.) If the Director could
use any cause for modification as an
opportunity to open the entire pemut to
scrutiny and modification, it would
defeat the purpose of fixed-term permits
coupled with security during the term for
permittees. It would also defeat any
narrowing of the causes for
modification, because a modification not
otherwise authorized could be
bootstrapped onto one that is.
However, a permittee is always free
to request a revocation and reissuance
rather than a modification. See § 124.5.
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Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
When the permittee requests, the
Director is free to revoke and reissue the
permit for any cause In * 122.15(a) -
which Is otherwise limited to
modification. In many instances it may
be in the perinittee’s interest to request
revocation and reissuance. For example.
when the remaining term of the permit Is
short, the permittee may prefer the
certainty of a r ew 50? 10-year permit
over a limited modification to a permit
which may be extensively revised again
soon during the permit -relssuan.ce
process. -
Only two causes appear In * 122.15(b).
First, when cause for termination exists
the Director may determine to modify or,
alternatively, revoke and reissue a
permit during its term as a less drastic
alternative to termination.
Second. when ownership or
operational control of a facility is
transferred, the permit can also either be
modified, or revoked and reissued
(* 122.15(b)(2)J; see preamble discussion
of permit transfers under § 122.14. In
many cases a modification may be
adequate to reflect the name of the new
pennittee for example, a transfer of
control of a facility between
subsidiaries of the same corporation. In
other cases revocation and reissuance
will be more appropriate. For example.
for RCRA facilities, permittees are
required to submit a contingency plan as
part of their Part B applications. This
plan includes such matters as a list of
names, addresses and phone numbers of
all persons qualified to act as facility -
emergency coordinators. Once the
permit application is approved, this plan
becomes part of the permit. There are
several similar items which are
submitted as part of the RCRA permit
application. This information should be
provided by the new applicant. As a
result, a permit application followed by
issuance of a new permit with a full
term may be more appropriate than a
simple modification of the prior permlt.
Similarly, a new permit application to
assure an updated plugging and
abandonment plan (* 122.42(a)) may be
appropriate for any UIC facility.
Likewise, existing industrial NPDES
perrnlttees are required to predict in
their applications any expected levels of
pollutants In their effluents which may
over the next five years (the duration of
the permit) exceed the levels found
through the required testing, and to list
any toxic pollutants which they
presently use or manufacture or expect
that they will during the next five years.
Because these predictions should be
based on knowledge of what types of
operations are expected to be conducted
over the next five years, it may be
appropriate for the new permittee to be
required to provide this information in a
new permit application, and revoke and
reissue the permit.
(3) In order to further narrow the
scope of permissible permit
modifications, part of the preamble to
the proposal has been moved to the text
of the permit modification section,
which now states that for RCRA and
UIC, “facility siting will not be
considered at the time of permit
modification or revocation and
reissuance unless new information or
standards indicate an endangerment to
human health or the environment which
was unknown at the time of permit
Issuance.” This statement emphasizes
- that siting conditloni in a permit will not
normally be modified as a result of
permit review, and limits the
circumstances where the permit
termination cause of “endangerment to
human health or the environment” can
be used as a grounds for modifying
siting conditions. However, an
endangerment to human health or the
environment is still cause for
terminating a permit if that Is the only
way that the threat cia be dealt with.
§ 122.28 TerrninoLion of permils.
In general. commenters on proposed
I 122.10 (now § 122.16) sought greater
specificity regarding causes for -
termination and less breadth lit their
possible application, such as limiting
terminations to “wilifull and persistent”
violations of a permit or “intentional”
failure to disclose relevant facts. Many
thought abuses could result from
arbitrary application of the causes as
proposed. -
EPA believes that causes for
termination must be broadly worded so
that a basis for Initiating permit
termination proceedings Is available
when the riced is present. Most attempts
to narrowly define the boundaries of
cause are inadequate because they must
be invoked in a wide variety of
circumstances depending on the
exercise of enforcement discretion.
The proposed section neglected to
state that terminations are subject to the
same Part 124 (or applicable State)
provisions for notice and opportunity for
a hearing applicable to other permit
actions. This oversight has been
corrected. EPA believes that these
administrative provisions and.
ultimately, the possibility of judicial
review, should provide the protection
which commenters are seeking against
arbitrary application of broadly-worded
causes for termination. Thus. permittees
will have an opportunity to refute claims
such as that there Is an endangerment to
human health or the environment, or
that permit violations were sigr
The objective is not to try to de.
,,precisely the circumstances whica
provide grounds for termination. v
Is impossible. but to subject such
determinations to the procedural ‘
protections of Part 124 and judicial
review.
Several commenters discussed the
provisions of RCRA section 3008 as they
relate to terminations under this section.
EPA has concluded that the procedures
set forth in Part 124. Subpart E. satisfy
the requirements of section 3008 for a
formal evidentiary hearing in cases of
permit “suspension or revocation.” The
precedures of 4Q CFR Part 22 will no
longer apply to RCR.A permit
terminations.
As noted in the preamble to the
proposal, “termination is essentially an
enforcement mechanism.” The Director
of a permit program must carefully
exercise discretion in allocating scarce
“er forcement” resources. Because of
these limitations on resources, ft makes
no sense to enforce against trivial
Infractions when unremedied
substantial infractions exist. This alone
In most cases should prevent the
Director from reading the termination
causes too broadly. It should also be
clear that in most cases less dra’
actions, such as permit modifica
are available. Proposed § 122.9 Si..
that for NPDES and 404 permits. ca
for termination could also be causes
modification or revocation and
reissuance, thereby implying that this
was not so for RCRA or UIC. The
wording has been changed to include
RCRA and UIC. This does not mean.
however, that if termination is not
chosen, modification is mandatory. In
some cases neither termination nor
modification may be appropriate.
Some changes In the causes for
termination were necessary because
they also serve as causes for modifying
or vokIng and reissuing permits during
their terms (see §122.1S(b)(1)). Permits
may be terminated even though. as now
provided in § 122.13, “compliance with a
permit is compliance with the
appropriate Act.” However, If
noncompliance with the appropriate Act
could be grounds for termination absent
a permit condition which Incorporates a
specific requirement of the Act, the
“shield” provision of § 122.13 would
have limited effect. Consequently.
I 122.18(a)(1) (proposed § 122.10(b)(l))
has been narrowed to exclude violations
of the appropriate Act as an
Independent cause for terminatir
now reads “noncompliance by U
permittee with any condition of th
permit.”
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33317
Similarly, the proposal included
“other good cause” as a ground for
termination. Not only was this cause
vague and open-ended, but it could. In
serving as a caise for modification.
provide a means of circumventing the
limitations or. opportunities for
modifying permits during their terms
which the changes from the proposal are
Intended to p,’ovide. Consequently, this
cause has been eliminated. In addition,
as noted In the preamble to 122.14.
transfer of ownership has been deleted
as a cause for termination. The
remaining causes for termination
(misrepresentation and endangerment to
human health or the environment) have
been retained in their proposed form
both because they are sufficiently
serious to warrant possible permit
termination and because they may
warrant modifying a permit during its
term.
Several commenters noted the need to
clarify the effect that termination of one
permit has on other related permits. As
set forth In final § 124.10. termination of
one permit triggers a notification to any
agency administering a related permit
The related permit can then be modified.
revoked and reissued, or terminated if
cause exists for such action. The
reference In proposed paragraph (a) to
parthil termination seemed to Imply the
existence of one “umbrella” permit.
However, permits issued under these
regulations are completely severable
and an action on one has no automatic
effects on others. The concept of partial
termination has been deleted to avoid
any such implication.
Finally, as noted in the discussion of
fina’ § 122.5, any cause for termination
is also cause for denial of a permit
renewal application, and EPA has
amended the section to reflect this
determination.
* 122.17 Minor modifications of
permits.
Proposed § 122.9(3) (now 1 122.17)
contained several provisions fo minor
permit modifications whiâh could be
made without the draft permit and
public notice provisions applicable to all
other permit modifications. This feature
has been retained, with some
reorganization and revisions. In addition
to § 122.9 (g). the proposal contained
several minor modification provisions In
the subparts for RCRA. UIC and NPDES.
One source of confusion noted by many
coinmenters on the RC.RA provisions
was that the two sections appeared to
be contradictory. All program provisions
have now been moved to new § 122.17
so that readers will find a complete list
of provisions for minor modifications in
one place.
In the proposal, a modification could
not be treated as minor If It would
“render the permit less stringent” We
have deleted this limitation because It
was vague and contradicted by other
provisions in the proposal. Rather, any
minor modification on the list can be
made without public notice if both the
Director and the permittee agree to the
minor modification. U either disagrees,
the permit modification is not minor and
must be for cause and with public notice
as required under § 122.15.
— Several cominenters suggested that
the list of minor modifications should be
examples. rather then exclusive, EPA
rejects the notion that the permit
modifications which can be processed
without any notice to the public should
be open-ended. EPA continues to
believe that scrutiny by the interested
public should be available in most
instances, not only to lessen the
possibility of objectionable changes
being made without objection. but to
preserve public confidence in the permit
system. Several other comnienters
suggested that more flexibility should be
available to States in the scope of
permit actions which can be processed
as “minor modifications.” The final
minor modification provisions are not
applicable to States, as they were in the
proposal. Of coarse, as with any Part
122 requirement, a State is free to have
such provisions as a part of ija program.
However, the essential due process
requirements of Part 124 that were
applicable to States in the proposal are
still applicable in these final regulations.
This means that a State program may
provide for modifications to permits
without notice (i.e.. as minor
modifications) in any situation where to
do so would be “more stringent” (as
discussed in the preamble to Part 123)
than the applicable requirements of Part
124. For most of the items In § 122.17, a
State program could provide for more
flexible minor modification provisions
(if consistent with due process) because
eliminating notice and comment
provisions would result In greater State
control.
Some cominenters suggested that
minor modificatio s should be available
to decrease permit monitoring
frequency, rather than only to increase
frequency, as in the proposal. EPA
rejects this suggestion. Any permit
modification to require less frequent
monitoring should be made known to
the Interested public for comment.
Several comments were received on
the minor modification provison for
permit transfers (proposed I 122.9(g)(4)).
EPA has retained a provision for minor
modifications to reflect changes in
operational control or ownership of
facilities. Transfers are discussed In the
preamble to § 122.14.
The proposed regulations included
special provisions on “minor
modifications” of RCRA permits which
would have allowed modification of a
RCRA permit without notice and
comment to change the types and
quantities of wastes treated or to change
treatment, storage, or disposal methods
(proposed I I 122.9(g)(5) and (6) and
122.24(d)).
These RCRA provisions have been
deleted from the final regulations. They
were so broadly plu’ased that they could
have been used to completely change
the nature of the permitted activity
without putting the permitting agency
and the permittee to the discipline of
informing the public and considering its
views.
There may well be cases where
flexibility regarding these matters is
desirable In those cases. It will be
perfectly possible to write the initial
permit so that It covers the various
courses of action that may be
contemplated for the future. Where that
Is not done. the permit can still be
modified whenever the requirements of
* 122.15 are met.
However, for the present it would not
be responsible for EPA to specify certain
changes to the substance of RCRA
permits as “minor” ones that do not
require notice and comment. Because
there is no experience with the RCRA
pirmit program yet. EPA lacks the
Information necessary to determine
which changes in methods or hazardous
wastes would really be minor and which
would not be minor although they might
appear to be.
§ 122.18 Noncompliance and program
reporting by the Director.
(1) Proposed I 122.15 (now § 122.18)
has’been completely reorganized to
bring all of the provisions for quarterly
and annual noncompliance reports
tcgether in Subpart A. Minor changes
have been made to achieve this
reorganization,j,ut it was possible only
because the proposed RCRA and UIC
requirements were already modeled on
the NPDES scheme and were virtually
identical to it. The 404 noncompliance
reporting requirements, because of the
unique nature of that program (a large.
number of permits of very short
duration, In most cases issued without
monitoring or compliance schedule
requirements) are somewhat different
and have been placed In separate
paragraphs ((b) and (d)).
In the proposal there was some
coitfusion between “program reports”
and noncompliance reports. Because
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33318 Federal Register I Vol. 4 , No. 98 / Monday, May 19, 1980 I Rules and Regulations
both reports must be prepared by
permitting authorities (i.e., State
Directors or Regional Administrators) It
makes sense to put the provisions
governing them in one place so that
Directors can easily determine what
reports to prepare. The only exceptions
are the “progress reports” required of
States with Interim authorization under
RCRA and of States which have been
“listed” but not approved under UIC
(see 123.11). These changes have
eliminated a great number of cross-
references and have served to Increase
uniformity among programs. The
coverage and organization of the section
Is illustrated In Table VL
Ta Is VL—Noncomplianc. aiidpmgram Report,
.
—
A b
“
RCRA..._......
imis(ap
i i5(c) 122 1 5t,W3)
UIC — ._._
122 i8(s
lftiS4c) 122 iS(*4)
NPOES..._
122 Is(s)
¶ 2 2. 18 (c)
404._...._
¶22.1 5 (b)
1ftlS( ——
S
Several States commented that the
NPDES noncompliance reports are
burdensome to prepare or that similar
reports will be burdensome for the other
programs. Eliminating needlessly
differing requirements and formats can
alleviate this problem somewhat.
Likewise, the Natural Resources
Defense Council commented on the
difficulty It experienced In attempting to
work with information contained in
noncompliance reports, resulting In part
from a lack of uniformity as to the kinds
of information included. To the extent
that this problem can be addressed in
these regulations, EPA has attempted to
be responsive so that citizens’ groups
and others outside the permitting
agencies can also find noncomplianc
reports useful.
(2) The most frequent comment
received on this section was that EPA
should provide a definition of major
facility and manor facility. Ii i some cases
this concern stemmed from a
misapprehension that the permittee’s
reporting burden would depend on the
classification. We have changed the
heading of this section to emphasize that
the reports covered are written by the
program Directors, not by permittees.
Furthermore, although classification as
major or minor may have some effect on
a permittee in determining how much
scrutiny It receives.in noncompliance
summaries, through “fact sheets”
prepared under Part 124, or through
provisions for permit administration (for
example, EPA review of proposed State
permits), such classification does not
affect permit requirements. Permit
conditions are determined by the permit
writer according to the same regulatory
requirements and under the same
procedures regardless of whether a
facility is major or minor. Likewise,
preparation of fact sheets. EPA review
of State permits, and preparation of
quarterly summaries of noncomplying
facilities are actions which EPA has the
authority to take whether or not a
facility Is designated as major. They
simply state how EPA will allocate Its
own efforts in processing or reviewing
permits.
Consequently, EPA does not believe
that there is any legal requirement to
speclfy’this term more precisely,
although that would be desirable as a
matter of policy. However, ft is not
possible for EPA to determine in
advance precisely which facilities will
be classified as major. Flexibility is
needed so that the information gathered
in noncompliance reports can reflect
EPA’s changing enforcement and review
priorities and resources. It should be
emphasized that the use of the
categories “major” and “minor” does
not imply that one category is composed
of facilities which are bigger or have
greater capacity than those In the other
category, but only that one category is
distinguished from the other for
administrative purposes.
Fot these reasons, EPA has not
attempted to precisely define which
facilities will be classified as major.
Instead, a definition of “major facility”
has been added In 3 122.3 which refers
to the Director’s discretion. Major HWM
facilities also will be classified through
guidance; and the definition of “major
HWM facility” in proposed 3 122.3
which received a great deal of criticism,
has therefore been deleted.
(3) EPA rejects several suggestions
from industry that quarterly reports be
eliminated because noncompliance is
already reportod by permittees In a
number of ways. While It Is true that
permittees are required to report
noncompliance (3 122.7), thIs has no
bearing on the need for oversight
agencies and the public to have
summaries of Information on how the
programs are being enforced.
(4) Three basic informational Items for
quarterly noncompliance reports which
appeared in the final NPDES regultitloris
but which were inadvertently dropped
from the proposed consoLidated
regulations have been restored for all
programs. Reports will now include a
description of actions taken to ensure
compliance, status of the
noncompliance, and any details which
mitigate or explain the noncompliance.
(5) The opening paragraph of 3 122.18
and 3 122.18(a)(3) add a requ remer.t for
a quarterly report concerning
noncompliance by RCRA hazai
waste generators and transporte .. .. zd
all RCRA facilities having interim
While the proposed regulations d
only with permittees, EPA realize
needs similar information on generators.
transporters, and interim status
facilities, and therefore has added the
reporting requirement. The information
to be provided in the report will address
the kinds and numbers of compliance
monitoring and enforcement activities
the Director has undertaken during the
reporting period and the results of such
activities.
(6) The reporting year In final
3 122.18(e)(2) has been changed from the
fiscal year as it appeared In the proposal
for NPDES (3 122.72(1)) to the calendar
year for all programs. EPA made this
change to coincide with business
recardkeeping practices and to
coordinate reporting schedules with the
requirements for generators and
transporters under the RCRA program
as set forth in 40 CFR Parts 262 and 263.
3 122.19 Confidentiality of information.
Paragraph (a) of 3 122.19 (proposed
3 122.16) states that information claimed
as confidential will be treated according
to the EPA’s rules contained in 40 rt’g
Part 2 (as amended Sept. 8, 197?
3999). Commenters raised sevet
questions concerning 3 2.208 of t .
regulations. Section 2.208 sets fort}.
substantive criteria for use in business
confidentiality determinations.
First, commenters suggested that if
under 3 2.208(d) EPA determines that a
statute specifically requires disclosure
of Information claimed as confidential,
the submitter should be given notice.
EPA agrees with this comment;
however, no change in the regulations is
necessary. Notice is already provided to
the submitter under 3 2.205(1).
Second, cornmenters argued that
3 2.208(e) should be amended to
specifically prohibit releasing
Information which would violate 18
U.S.C. 31905. The commenters argued
that 18 U.S.C. 3 1905 is incorporated in
the third exemption to the Freedom of
Information Act (FOIA), 5 U.S.C.
I 552(b)(3). EPA does not agree that 16
U.S.C. § 1905 is incorporated in the third
exemption to the FOIA. Rather. EPA
believes that 18 U.S.C. 3 1905 limits th’
Agency. discretion to disdo e
Information. EPA recognizes this in i’.
definition of “reasons of business
confidentIality” in 40 CFR 3 2.201(e). s
a matter of policy, EPA does not
disclose Information covered by
3 552(b)(4) (see 40 CFR § 2.119).
interprets 18 U.S.C. 3 1905 to be %
the scope of 5 U.S.C. § 522(b)(4).
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Federal Register I Vol. 45. No. 98 I Monday, May 19, 1980 I Rules and Regulations
33319
Consequently. Information wIthin 18
U.S.C. 5 1905 would not be disclosed.
Therefore. as a practical matter, the
existing regulations adequately address
this comment.
Paragraph (b) of 5122.18 lists
Information specifically required by
statute to be disclosed even If the
Information would otherwise be exempt
from disclosure under the FOIA. Several
commenters argued that the proposed
section requIred disclosing categories of
Information not specifically required to
be disclosed. The information entitled to
confidential treatment varies under each
of the statutes covered by these
consolidated regulations. Generally,
Information concerning trade secrets or
secret processes is not to be disclosed.
However, under section 402 of the Clean
Water Act. NPDES permits and permit
applications must be available to the
public. Section 308 of the Clean Water
Act provides that effluent data related
to NPDES and 404 permits also are not
entitled to confidential treatment.
Section 1445(d)(2) of the Safe Drinking
Water Act provides that Information
related to UIC permits which deals with
the level of contaminants in drinking
water must be disclosed. Paragraph (b)
of 5 122.18 has been rewritten to
recognize these specific statutory
directives. EPA has deleted the
provision which would have
automatically required denying claims
of confidentiality for Information
contained in all draft permits:
statements of basis: fact sheets:
comments; and, in the case of all permits
other than NPDES permits. permit
applications and permits.
Data which are not specifically listed
In paragraph (bJ will be disclosed to the
public under the procedures discussed
in 5 122.18(a). 11 no claim of
confidentiality is asserted at the time of
submission. EPA may make the
Information available to the public
without further notice. If a claim of
confidentiality is asserted, the
Information will be disclosed only in
accordance with the procedures in 40
CFR Part 2. These procedures require
that If EPA proposes to disclose any
information claimed as confidential,
EPA must give prior notice to the
submitter. Therefore, if information is
claimed as confidential in. for example.
an application for a permit under RCRA
and EPA proposed to include the
Information in a fact sheet or draft
permit. EPA will give prior notice to the
submitter. Because of the Importance of
public participation In the permitting
process. EPA will make every effort to
prepare draft permits and fact sheets
which contain meaningful information
while still preserving a submitter’s valid
claims of confidentiality. if any. In the
case of NPDES permits, because the
permit application itself can not be
claimed confidential, Information
contained in the application may be
disclosed as part of a fact sheet or draft
permit, as appropriate. Moreover much
of the data In the permit application is
“effluent data” within the meaning of 40
CFR 5 2.302(a)(2) and therefore would
have to be disclosed under section 308
of CWA.
Under each of the statutes covered by
these consolidated regulations. EPA
may disclose confidential Information
when relevant in any proceeding under
the particular statute. 11 EPA determines
that It is necessary to disdose otherwise
confidential business Information In a
permit proceeding. EPA will follow the
procedures contained In 40 CFR
* 2.301(g) (Clean Air Act) as
incorporated by reference in 55 2.302(g)
(CWA). 2.304(g) (SDWA), and 2.305(g)
(RCRA). Questions concerning the
entitlement of data to confidentiality
will be addressed to the maximum
extent possible before Initiation of the
public participation procedures under
Part 124.
In the case of NPDES permit
applications, paragraph (c) provides that
no Information on the NPDES permit
application forms provided by the;
Director may be claimed confidential.
This includes Information submitted in
the forms themselves and In any
attachments required by the forms.
Under CWA section 402(j), Information
contained in NPDES permit applications
Is not entitled to confidential treatment
and EPA has made class determination
that any claim of confidentially for
Information contained in the NPDES
permit application forms will be denied.
Class Determination 1—78 dated March
22, 1978. Because by statute all the
Information contained In the NPDES
permit application forms must be
disclosed to the public, there is no
reason to allow persons to claim the
contents of the NPDES application form
as confidential. Such a provision would
only cause delay in the availability to
the public of the NPDES permit
application form In contravention of the
clear purpose of section 402(j) of the
CWA. Section 122.19(c) refers to the
requirement in 5* 122.3 and 122.53 that
the Director provide application forms.
Section 122.19(c) does not apply to any
Information submitted to EPA which
goes beyond that required under
55122.4 and 122.53 on the NPDES
application form: claims of
confidentiality may be asserted for such
Information and will be handled under
40 CFR Part 2. Claims of confidentiality
for “effluent data” will be denied.
In the case of RCRA permit
applications, paragraph (d) provides that
at the time an application is submitted.
the applicant must subsantlate all
claims of confidentiality. This is done by
answering the six questions In the
Instructions to the form. If an applicant
asserts a claim but fails to submit any
substantiation. It will be given an
opportunity to correct this mistake
before the Director releases the
Information. EPA or the State will
review claims of confidentiality and
deny any claim If it finds that disclosure
of the relevant materials would not
reveal confidential business
informatIon. Under the RCRA section
3010 procedures for the notification of
hazardous waste activity, owners and
operators were also required to
substantiate a claim of confidentiality at
the time of submitting the information.
(45 FR 12748, February 26, 1980.)
There are several policy and
administrative reasons for requiring
substantiation of a claim of
confidentiality at the time of submitting
the information. These include the need
to provide non confidential information
on the RCRA permit application to the
public, to provide the Director with
Information necesary to make
confidentiality determinations, and to
Inform the submitter of the criteria that
the permatting authority will use in
making lt.i determination.
Under RCRA and FCIA. EPA has an
affirmative duty to make non-
confider.tiat information available to the
public. Given the public interest In the
RCRA program, EPA expects a great
number of requests for information on
permit applications under RCRA.
Moreover, under the permit-issuance
procedures of Part 124. EPA must
prepare a draft permit and a statement
of basis or fact sheet. If EPA did not
require substantiation at the time a
RCRA permit application Is submitted.
EPA would have to contact the
submitter to request substantiation
every time a claim of confldentialit 3 i
was made. This would be a significant
administrative burden. Under the final
procedure, however, no additional
burden will be placed on permit
applications because EPA would have
requested substantiation of the claim in
any event. In fact. applicants will now
have as much as six months to prepare
their substantiation, instead of the 15
business days otherwise allowed by the
Agencys business confidentiality
regulations.
The final approach will provide the
Agency and States with all the
Information they need to make
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Federal Register I Vol. 45, No. 98 I Monday, May 19.1980 I Rules and Regulations
confidentiality determinations upon
receipt of a RCRA permit application..
Thus, If the Director wishes to make a
determination of confidentiality (either
on its own or, for EPA, In response to an
FOIA request), there will be significant
savings In time. In the case of permit
applications, it is especially important to
settle any confidentiality issues early
because permit procedures In Part 124
applicable both to States and EPA
anticipate public Involvement. That
process can not effectively proceed until
confldq tiality Issues, if any, are settled.
The final scheme also has the
advantage of directing the submitter’s
attention to the type of substantiation
the Director must have to grant
confidentiality claims. This should
reduce uncertainty for the submitter and
result in defensible rather than
unwarranted claims. The requirement to
submit substantiation at the t3me of
filing the permit does not change the
substantive criteria for determining
whether Information is entitled to
confidential treatment.
Subpart B—Additional Requirements for
Hazardous Waste Program
* 222.21 Purpose and scope of Subpart
B.
EPA has reorganized this section to
provide an orientation to the- RCRA
Subpart, similar to orientation sections
added to the other Subparts; to provide
a clearer picture of the relationship
between the consolidated regulations
and the technical RCRA regulations (40
CFR Parts 260 to 266): and to provide a
narrative of the basic requirements of
the RCRA permit program. A chart
showing the CFR number, date of
Federal Register publication, and
subject matter of each major portion of
the technical RCRA regulations has also
been Included. Detailed elements of the
permit program are specified in
subsequent sections. Proposed * 122.22,
(Authorization), has been incorporated
into the new 122.21(b). Section
122.21(c) provides a brief overview of
the RCRA permit process. The
application procedures for existing and
new facilities are explained.
(1) Inclusions and Exclusions.
Paragraph 122.21(d) (proposed
I 122.21(c)) lists some activities and
facilities which are included and
excluded from the RCRA permit
application requirement. The inclusions
are not an exhaustive list, but focus
attention on certain activities which
may also have permits under other EPA
programs. The exclusions list activities
exempted by the other RCRA
regulations.
A number of comments suggested
excluding from the RCRA permit
requirements treatment, storage and
disposal facilities handling various
types of wastes, such as petroleum
wastes, domestic sewage sludge,
Industrial sewage sludges, other
Industrial sludges. and small quantities
of wastes. They suggested that certain
wastes had a low degree of hazard, that
others were not covered by the RCRA
definition of solid waste, that certain
wastes were similar to other excluded
wastes, and that there would be adverse
economic impact If facilities for such
wastes had to comply with the RCRA
requirements. These are issues which
pertain to the RCRA section 3001
regulation for the lden ’tification of
hazardous wastes and the section 3004
regulation for standards for hazardous
waste management facilities, and will
be addressed in the rulemaking on those
sections. The one exception concerns
dissolved material In domestic sewages.
which is discussed below.
(2) Coverage of NPDF .S Surface -
Impoundinezus. Proposed I 122.21 would
have required a RCRA permit for any
surface impoundment associated with a
wastewater treatment plant other than a
POTW that treats or stores hazardous
waste. Virtually every aspect of this
proposal proved controversial.
Many comments were received stating
that such impoundments at facilities
- having NPDES permits should be
excluded from the RCRA permit
requirements. Some argued that there
was no basis for requiring NPDES
industrial surface impoundments but not
surface impoundments at POTWs to
obtain a RCRA permit Others argued
that NPDES surface impoundments
should be issued a permit-by-rule like
POT Wa.
The proposed exclusion of surface
impoundments at POTWs was based
upon the RCRA definition of solid waste
which excludes solid or dissolved
material in domestic sewage.
As the preamble to the section 3001
regulations explains In detail, EPA has
re-examined this question in the light of
comments received.
That re-examination has led EPA to
reaffirm its original conclusion that
material which is(ij mixed with
dowestic sewage ins sewer and then (2)
discharged from the sewer into a P01W,
Is exempted by the statute from
treatment as solid waste. This
conclusIon ii being promulgated in
interim final form. Additional comments
on It are Invited and will be considered.
That conclusion leaves open two
questions concerning the coverage of the
RCRA permit requirements.
The first concerns what happens
when hazardous wastes are disr
Into a P01W without losing the
hazardous character by being mL
with domestic sewage In a sewer.’ F
example, the hazardous wastes mit
dumped into the POTW from a truca.
tank car, or they might be discharged
into it from a pipe which carried only
industrial wastes and did not carry
domestic sewage.
In these cases the basic logic of the
argument for exempting “dissolved
material In domestic sewage” still holds.
The wastes will be placed in a facility
that Is subject to a pervasive set of
Federal regulatory and subsidy
provisions (including the pretreatment
program) that should be sufficient to
deal with any hazardous waste
problems by themselves. Accordingly, in
these cases the POTW receiving the
waste will be granted a permit by rule
(I 122.26(c)). The permit by rule is
necessary to ensure that any applicable
manifest is returned and the formal
requirements of RCRA are otherwise
satisfied.
The second question is whether a
hazardous waste which has come under
the manifest system may be deposited
Into a sewer, become mixed with
domestic sewage, and thereby lose Its
hazardous character.
The answer to this question is”
Manifested wastes may only be
delivered to an approved HWM fac
and sewer systems will not be appro
for that purpose. Sewer systems are
obviously not HWM facilities In any
normal sense of the word, and there is
no assurance that wastes deposited in
them would be treated, stored or
disposed of In a manner consistent with
the purposes of RCRA. Such disposal
would be significantly harder to regulate
under existing authorities than disposal
directly Into the POTW. Congress when
It created an exemption for dissolved
material In domestic sewage had in
mind avoiding disruption of the existing
patterns of funding and operation of
POTWa receiving waste from “indirect
discharger.,” not allowing additional
unregulated discharges by those not
currently making use of the treatment
system.
Comments also stated that NPDES
surface impoundments should not be
required to obtain a RCRA permit
because they pose no threat to human
‘A facility which Is note POTW that received
hazardous weste to any form, whether or not in. ed
with domestic sewage in a sewer. is subject to th.
foil inoge of R A’s regulatory requirements.
However. If such a facility receives only dor
sewage It Is of course exempt from RCRA
requfretnenta altogether because domestic
not cloasifled as a hazardous waste.
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33321
health and the environment or should
not have to obtain a permit where the
owner or operator can demonstrate that
no harm to groundwater will occur.
Others eta ted that requiring NPDES
surface Impoundments to obtain RCRA
permits would be very costly and force
major retrofitting or abandonment of
such facilities. These comments address
the need for and nature of the technical
standards for surface impoundments
and are In fact comments on the RCRA
section 3004 standards for treatment.
storage and disposal facilities, rather
than comments on the applicability of
the permit program.
As the preamble to those regulations
explains, EPA has significantly amended
these requirements to reduce to a
minimum the need for burdensome
retrofitting. However, as explained
below, these facilities cannot be
completely exempted from RCRA
coverage because of their potential for
causing air pollution or groundwater
pollution which cannot be remedied
under the NPDES permit.
Commenters also argued that NPDES
surface impoundments were adequately
controlled by various programs under
the Clean Water Act such as the NPDES
and B vW programs. Comments also
stated that the requirement for a RCP.A
permit was inconsfstent and duplicative
of the goals and regulations of the Clean
Water Act. EPA has considered all of
these arguments but believes that a
RCRA permit is necessary for these
facilities. Limitations imposed in NPDES
permits are directed toward the quality
of discharges to surface waters. The
technology to achieve the limitation may
require construction of surface
Impoundments, although the objective of
such construction is to assist in the
ultimate prevention of pollution of
surface waters. Improper containment of
wastes in surface impoundments may
result in pollution of groundwater and a•
series of other adverse human health
and envliorwiental impacts. These types
of problems are not directly addressed
through NPDES permits, but are directly
regulated under RCRA. The CWA does
not provide authority to set standards
for construction of impoundments to
prevent groundwater pollution but
standards for such construction are
specifically provided for in section
3004(4) of RCRA. Further, leaving
resolution to Bt s under CWA will not
solve the problem, as BMPs’are directed
toward controlling only designated
pollutants under sections 307 or 311 of
CWA and only so far as they may reach
a navigable water. Therefore both
NPDES and RCRA permits are
necessary for such facilities, because
each permit program is directed toward
control of different types of pollution.
Any potential Inconsistency and
duplication can be minimized if the
permit programs are consolidated as
provided for in these regulations.
Commenters suggested that coverage
of surface impoundments (proposed
§ 122.21(c)(3)) should be clarified to
state that RCRA permits should only be
required for surface impoundments If the
water is hazardous at the point of
discharge, regardles, of the condition at
the point of entrylo.the system. The
proposal stated that any surface
Impoundment that treats or stores
hazardous waste must obtain a RCRA
permit for that impoundment up to the
point of discharge. The reason for
requiring a RCRA permit up to the point
o discharge is to adequately protect
public health and the environment from
hazardous waste placed in the facility.
The discharge itself would be controlled
under CWA. The regulations have been
restructured for clarity and the proposed
language “up to the point of discharge’
is no longer contained in these
regulations but the concept remains the
same.
§ 122.22 Application fore permiL
Proposed §122.23 described permit
application requirements for existing
and new HWM facilities, set forth a two
part application process for existing
facilities, and described the information
to be included in Parts A and B of the
application. The contents of Part A and
Part B of the application are now
described in § § 122.24 and 122.25
respectively. The remainder of proposed
* 122.23 has been moved to § 122.22 and
rewritten to provide better continuity to
the regulation and to provide greater
information on the timing of applications
and to whom they should be made,
particularly in the light of the approach
to interim authorization now set Iorth in
Part 123.
The major topics covered by this
section—timing and address of
applications, the two part application
process, the requirement for a permit
prior to new facility construction, and
revocation of Interim status—will be
addressed in turn.
(1) Timing ondAddress of
Applications. For existing HWM
facilities, the permit process begins with
the publication of the RCRA program
regulations contained elsewhere in this
issue of the Federal Register. That event
triggers the obligation to file 3010
notification within 90 days and to file a
Part A permit application within six
months.’
All these notifications and
applications must be sent to the
Regional Administrator whose Region
covers the State In which the facility is
located. Only States with Phase I
interim authorization can receive 3010
notices and only States with Phase II
interim authorization can receive and
process permit applications. No State
programs in these categories will have
been approved by the dates set for
submission of these documents. (If a
State program Is approved thereafter,
the information in these categories will
be transferred to the State.)
Starting with the promulgation of the
remaining Part 264 regulations, in the
fall of 1980 Slates with approved Phase
U interim authorization or final
programs, and the Regional
Administrator where that approval does
not exist, will be able to require
submission of a Part B application and
proceed to final permit action. Since the
permitting authority must allow six
months for preparation of the
applicafio actual submission of the
Part B application cannot be required
before the spring of 1981.
For new sources, the regulations
prohibit construction without a permit.
For the reasons set forth later in this
preamble, EPA believes such a rule is
essential to carry out the purposes of
RCRA. Exactly how it operates in
practice, however, will be impossible to
determine until Congress takes final
action on the pending RCRA
amendments. That issue is also
discussed later in this preamble.
Finally, the regulations explain the
requirements for updating permit
applications. Briefly, Part A applications
must be updated as needed to account
for any ness hazardous wastes being
handled by the facility. A facility can
begin to handle a new hazardous waste
either because the waste was already
listed as hazardous and the facility has
just begun to handle it. or because the
facility was already handling a waste
newly listed or designated by EPA or by
the State as hazardous. Both situations -
require revision of the Part A
application or else the facility will not
obtain interim status for the wastes not
‘EPA Intends te promnI ete re utatIen , in lune .,f
1550 lI.tIn or deai 5 natui 5 additional wa ites be and
thoce liuted or deetgna(ed in Its initial proeiui ai on.
The wastes to a. liiad or d signst.d in wt. are .et
forth In an Appendix to the initial pronulgetion.
EPA encourages owner, or operator, apalying for
intenm status before that aecond aet of waIte, I I
aciually publiahed to list or designate any of th,
wastes in that set which they are tr,at.n . storing or
dlepoauig oL That will avoid the need in update the
Part A application extensively when pmmulgetiua
occurs.
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33322 Federal RegIster 1 Vol.45, No. 98 I Monday. May 19, 1980 I Rules and Regulations
listed. (As noted above, EPA iniendato
list or designate additional Wastes as
hazardous In June of this year.)
A more flexible rule applie for Part B
of the application. EPA will apply any
new requirements that become
applicable before a final permit Is
Issued, but no set procedures or fling
requirements are prescribed to be
followed in such a situation. The normal
notice and comment procedures. and
where necessary 124.14. provide
enough flexibility to cope with any
particular situations that may arise. For
example, If a significant number of new
wastes were listed and a facility with a
permit application under consideration
was treating, storing, or disposing of
there, EPA could require submission of
an updated permit application under
• 124.14.
(2) The Two Part Application Process.
Several commenters objected to the two
part application process. some claiming
that there was no authority for such a
process. Others felt that the Part A
application should obtain much more
Information such as hydrogeological,
geological and dlimatological data or
information to determine compliance
with the interim status standards.
Comnienters also stated that the
Information contained in Part A was not
sufficient to establish permitting
priorities.
Despite these comments EPA has
decided to maintain the two part
application process for existing
facilities. EPA believes this approach is
legally Justified and that the policy
arguments for it are conclusive.
Nothing in RCRA requires that all the
Information for a final decision be
submitted as part of the “application”
needed to trigger Interim status. In many
permit proceedings significant new
Information Is likely to come in during
the public comment period or at the
public hearing well after filing of the
application and thereby affect the final
conditions of the permit.
Indeed, the statute itself recognize.
that considerable supplementing of the
initial “application” may be required
before a final decision when It provides
for revoking interim status (which, of
course, can only be granted upon the
filing of an “application”) for failure to
“furnish (further] information
reasonably required or requested In
order to process the application.” RCRA
section 3005(d).
Beyond this, R RA contemplates that
facilities will be able to qualify for
“Interim status” by filing within six
months of issuance of the 3001
regulations, even though affirmative
EPA action on those permits may not
take place for an appreciable time
thereafter. EPA expects that In the light
of the magnitude of the regulatory
program now being started, many
facilities may not receive their final
permit for several years.
Accordingly, EPA has designed the
application requirements to fit the
overall structure of the program which
they serve. The Part A application Is
designed to enable facilities to qualify
for interim status within the six months
filing deadline, and to provide EPA with
information that will be useful to
determine In which instances to move
on to the next stage by requiring
submission of a Part B. The alternative
suggested by some commenters—.
requiring both parts to be submitted as a
condition of interim status—would make
It much more difficult and costly to
qualify for Interim status. In addition, It
would require all owners and operators
filing for interim status to furnish a great
deal of information that EPA would lack
the resources to review for several
years. By the time EPA did review that
Information, much of it would probably
have become outdated.
Part A of the permit application has
not been designed to determine
compliance with the interim status
standards as some comments suggested.
Combining compliance monitoring
information and permit application
Information on one form would result in
a complicated docwnent that would not
serve either purpose very well.
Monitoring of compliance with the
interim status standards will be carried
out through separate information
collection and facility inspection
activities.
The information contained in Part A
should allow EPA to establish initial
priorities for permitting of facilities. The
Part A applications will provide the type
of data needed for setting priorities
which is not presently available, such as
design capacities and types and
quantities of wastes handled at
individual facilities as well as proximity
to drinking water wells. The Initial
priorities can be further refined using
compliance monitoring reports, annual
reports and information from the Part B
applications.
Comments on proposed § 122.23(a)(2)
objected to waiting for a notice by the -
- Director before submitting Part B of the
permit application, stating that some
facility owners or operators may desire
to obtain permits as soon as possible.
Nothing in the regulation prevents the
submittal of Part B prior to request by
the Director. Six months notice for
submittal of Part B was established to -
allow applicants adequate time to
gather any necessary information for
submission of an ap’)licafion.’
submittals are always possibl
(2) Permit Prior to Constructh..
New Facilities. Many comnienter
objected to 122.23(b) whIch wo
require a permit prior to construct.
a new HWM facility. Many commenters
argued that this provision is Illegal
under section 3005(a) of RCRA. stating
that RCRA only requires permits for the
operation of facilities and only prohibits
the actual handling of hazardous waste
without a permit. Commenters also
stated that this provision will tie-up
capitaland aggravate existing and
future capacity problems, Some argued
that industry should be allowed to
proceed at their own risk during
construction and apply for a permit
during or after completion of
construction.
Once again, EPA believes that the
proposed approach should be adopted
for both legal and policy reasons.
Section 3004 of RCRA requires the
Agency to promulgate regulations
specifying, among other things, the
location, design and construction of
HWM facilities, Those regulations will
only take full effect and have full
meaning for a given facility when they
are applied to and incorporated into the
permit for that facility. Congress when it
incorporated a permit requirem
RCRA must have meant the tas
permitting to have independent
regulatory significance, and EPA ii.
in Its final Part 264 regulations to allow
flexibility in adapting the requirements
of those regulations to specific sites.
Given the variety of different situations
that these facilities may present, and the
newness of the program, the opposite
course—applying specific national
requirements automatically to any
facility whatever its circumstances—
would not be rational. Many industries
that commented on the proposed
regulations made this point.
if facilities were free to make
substantial commitments to a given
facility, location, design or construction
before receiving their RCRA permits, the
purpose of the statute could very readily
be undermined for no reason.
The overriding purpose of the section
3004 standards Is to “protect human
health and the environment.” There Is a
significantly greater likelihood that
permit writers will be able to set
“location, design, and construction”
permit terms that serve that purpose for
new facilities If they make the permit
decision before a substantial and
Irretrievable financial commitment Ig
made to the location, design, ar
construction which the apptica,
has chosen. Allowing such comt
to be made before assuring that the
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33323
will be In conformity with the best
application of the statute would force
the permitting agency to the
unjustifiable choice of either requiring a
lesser degree of health and
environmental protection than would
otherwise have applied, or forcing the
abandonment or devaluation of the
premature Investment.
The only significant argument made In
favor of allowing construction to begin
before receipt of a permit wee that It
would avoid delay in the construction of
HWM facilities. However, EPA believes
this argument Is flawed even on Its own
terms and that It lacks persuasive force
when compared with the arguments for
forbidding that construction. Nothing In
these regulations prevents owners or
operators from applying for a permit
early In their planning process. lithe
facility Is small, the application can
probably be processed quite quickly. If
the facility is large, then the permit
processing time will probably be a small
part of the total time needed for design.
financing, obtaining other approvals,
and the like. There is no reason in either
case for the permit Itself to become a
cntlcal path item. EPA has made
particular provisions In these
regulations for expediting consideration
of permits for new facilities.
Some commenters objected to the
requirement for submitting a permit
applicatio&for new facilities 180 days
before physical construction Is expected
to commence. They argued that this was
too long a period and that owners and
operators would not have the
information necessary to complete the
permit application that far in advance.
EPA believes that the 180 day period Is
necessary in order to provide adequate
time to provide for public notice and
comment, hold a public hearing if
necessary and complete an evaluation
of the application which In some
Instances may be quite lengthy and
complex. If on a case-by-case basis the
permitting process can be completed In
less than 180 days. It will be. However, a
180 cay period will be necessary for
many facilities and will be used as the
general rule. Facility owners and
operators should have all of the
necessary Information to submit an
application 180 days prior to physical
construction because they will need that
information in order to ensure that the
facility is located, designed and
constructed in compliance with the
section 3004 standards.
(3) Revocatipn of Inter im Status. The’
proposed regulation provided (at
122.23) that interim status could be
terminated without process for failure to
submit an adequate Part B application
when required. Cotnmenters felt this
provision was unduly harsh, not
sufficiently defined, possibly
detrimental to the environment, and In
violation of section 3008 of RCRA.
Although EPA believes the question Is
debatable, It has accepted In these final -
regulations the position of commenters
who claimed that “interim status”
cannot be terminated without providing
an opportunity for an evidentiary
hearing. Part 124 has been modified
accordingly. -.
In accordance with the plain language
of section 3005(d), the only grounds for
termination of interim status will be the
failure to furnish Information reasonably
required to process a permit application.
This provision of course includes failure
to respond on time to a request for a
Part B application, or failure to furnish
either Part A or Part B in an acceptable
form.’
Because of this limited test, In many
cases the facts relevant to the decision
will probably not be disputed.
Therefore, EPA anticipates that
termination of interim status will often
be a candidate for summary disposition
under 124.75(a)(1).
When questions about the conformity
of the site to the substantive standards
of Part 265 are at issue, Interim status
will not be terminated In this manner.
As the preamble to those regulations
explains, they are meant to be
enforceable apart from any permit
mechanism. Nor will separate
proceedings to revoke interim status be
required when a permit applying the
permanent status standards of Part 264
is being Issued or denied. The
mechanism provided by the statute for
broader-gauged decisions like that Is a
final decision on the permit application
as a whole. The preamble to Part 124
sets forth EPA’s position on the
procedures required for that.
* 122.23 Interim status.
RCRA states that during interim
status owners and operators of existing
HWM facilities shall be treated as
having been issued a permit until a final
decision Is made on the complete permit
application. Many comments were
received on this provision.
(1) Definition of Existing HI47Pf
Facility. The proposal defined an
existing HWM facility as a facility
which was In operation or under
construction on or before the date of
promulgation of the RCRA section 3001
regulations. Some commentera stated
that interim status should not apply to
.owners and operators of facilities under
‘Failure to furnIsh on acceptable Pert A. by
contrast, means that interim statue never starts.
construction but only to facilities in
operation. Others indicated that section
3005(e) refers to facilities in existence on
the date of enactment of RCR.A, not the
date of the section 3001 regulatIons.
EPA now agrees that the language of
the statute is clear and that the
approach proposed is not defensible.
Accordingly, It has changed the
definition of “existing facility” to mean
a facility that was In existence on the
date of enactment of RCRA, or October
Z1, 1978.
EPA regards It as all but-certain that
Congress will act to change this
definition before these regulations
become effective.
Amendments to RCRA are now In
conference. The House bill would
change the definition of “existing
facility” to mean one that Is In existence
on the effective date of the Initial RCRA
promulgation; the Senate bill would
change it to cover those in existence on
the date of promulgation. Indications are
that the conferees are considering
October 30. 1980 as the date for
determining when a facility Is an
existing facility. Both bills would
therefore provide relief from the
consequence of existing law.
Accordingly, EPA encourages every
facility which was built or under
physical construction as of the
promulgation date of these regulations
to file Part A of its permit application so
that It can be quickly processed for
Interim status when the change in the
law takes effect. A “Note” to this effect
has been inserted into the regulations.
Depending on what final action
Congress takes, other provisions of
these regulations may also require
amendment. EPA will issue any
necessary amendments and an
explanatory preamble as soon as
possible after final Congressional
action.
This final regulation also Interprets an
existing HWM facility to mean either “A
facility In operation, i.e.. receiving
hazardous waste for treatment, storage.
or disposal,” or “a facility for which
construction has commenced.” This
definition has been adopted because
EPA believes that owners and operators
who have commenced facility
construction In good faith prior to the
statutory date should be classified as
existing.
This final regulation further defines
the term “commence construction” to
take the meaning defined in EPA’ ,
Prevention of Significant Deterioration
(PSD) regulations issued under the
Clean Air Act. These regulations specify
that construction has commenced before
the cate In question if:
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Federal Register I Vol. .45, No. 98 I Monday. May 19. 1980 I Rules and Regulations
1. The owner and operator ha
obtained all necessary Federal. State,
and local preconstruction approvals or
permits; and
2a. A continuous on-site. physical
construction program has begun or
2b. The owner or operator has entered
into contractual obligations—which
cannot be cancelled or modified without
substantial loss—for construction of the
facility to be completed within a
reasonable time.
It Is intençied that the continuous on-
site, physical construction program
Include physical site preparation. Design
and other non-physical and non-site
specific preparatory activities alone
would not constitute on-site, physical
construction. Furthermore it Is intended
that structures or equipment constructed
from a permanent part of the facility
that are to be used in its own operation.
and represent a substantial commitment
to construction. -
In general if the amount an owner or
operator must pay to cancel
construction agreements or stop
construction exceeds 10% of the total
project cost, the loss would be deemed
“substantial”. Options to purchase or
contracts for feasibility, engineering.
and design studies would not constitute
contractual obligations.
EPA believes this provides an
equitable and reasonable approach to
facilities constructed prior to the
promulgation of the RCRA regulations.
A substantial commitment of resources
by owners and operators in a period of
uncertainty to provide for treatment,
storage. and disposal of hazardous
waste will not be penalized. All facility
construction commenced after
promulgation of the new RCRA
hazardous waste regulations would be
subject to the RCRA permit process.
(2) Changes in the Facility During
Inter/in Statur. A number of commenteri
raised questions as to whether a facility
could be modified during interim status.
Comments stated that facilities should
be able to make such modifications
during interim status as are: (1) needed.
to keep the facility in operations, (2)
necessary in order to meet the section
3004 standards or (3) needed to insure
full beneficial use of the facility. On the
other hand is the concern that allowing
such changes during interim status
would provide a loophole to avoid the
requirements for obtaining a permit (as
occur if the modification of an
existing HWM facility was tantamount
to construction of a new facility), or for
submitting less major, but significant
changes to a facility to the kind of
review and cross-check that a fully
effective permit would provide. In
response to these comments the final
regulation sets forth the following
approach to making changes In a facility
during the Interim status period.
Part A of the permit application
basically defines the process which will
be used for treatment, storage or
disposal of hazardous wastes and the
hazardous wastes to be handled at a
facility during Interim status. In order to
make any changes in such items the
owner or operator of the facility must
submit a revised Part A permit
application and in some instances such
changes must be approved by the
Director.
New hazardous wastes (not
previously specified on the Part A
permit applicationj may be handled if
the application is revised prior to such a
change. No approval of the Director is
required in this instance. Furthermore
additional quantities of hazardous
waste (already specified on the permit
application) may be handled at any time
within the design capacity of the facility
without revising the application.
Increases in design capacity or
changes in the processes used at the
facility may only be made upon
submittal of a revised application and
with Director approval The Director
may approve additional processes if he
or she finds that they (1) are necessary.
because of an emergency situation; or
(2) are necessary to comply with - -
Federal, State or local laws. The -
Director may approve increases in the
design capacity of the facility if he or
she finds that this Is necessary because
of lack of available capacity at other
facilities. In any of thece instances the
Director may inspect 3 facility prior to
or after such a change and may
disapprove a change that would result In
a violation of the interim status
standards.
Changes in ownerr.hip and operational
cuntrol of a facility may only occur
during the interim status period in
accordance with the requirements of 40
CFR § 285.150. A revised Part A permit
application Is requIred 90 days prior to
such a change so that the Director has
an opportunity to determine whether
such requirements are completed.
Finally, EPA will prohibit any changes
to an existing facility during interim
status which are so extensive as to
amount to the construction of a new
facility. Failure to do this would allow
avoidance of the requirement that all
sources which are in fact physically new
go through the full permitting process
before construction begins. For this
purpose EPA has adopted the practice
under the Clean Air Act of designating
as a new facility any change that when
completed would amount to more than
50% of the capital value of the facility.
The Agency believes that this
approach to changes in a facility
Interim status will allow reasons
modifications In existing facilities
without creating a situation in whi
requirements for obtaining a permit -
nullified.
EPA believes that this approach
represents a legally acceptable
resolution to a question which the
statute does not address.
Nothing in the statute provides that
applicants are bound by their Part A
application, and it has never been the
practice when Congress requires
existing facilities to come under permits
to freeze their present palterns of
operations until final agency action. Any
such rule could have drastic
consequences which Congress
presumably did not intend, particularly
since Congress explicitly recognized
that several years might be necessary to
process all RCRA permit applications. In
addition, those consequences would be
predominantly suffered by facilities
which, because they are small or well
operated. are low on the priority list of
the permitting authority. To require
affirmative action before such facilities
could change their operations would not
only be burdensome on them, but would
divert the resources of the permitting
agency toward such facilities and away
from more urgent tasks.
At the same time, EPA does no
believe that facilities which have no.
received a RCRA permit should be
completely free of specific regulatory
requirements. The existence of interim
status standards grounded in the statute
indicate that Congress Intended such
facilities to be subject to at least the
outlines of the general RCRA scheme. In
addition, the requirement to file a permit
appli atlon as the price of interim status
can only mean that the permitting
agency can require updating of that
application If It ceases to be accurate.
Where the updated application
indicated that the facility might cease to
conform to the general RCRA regulatory
scheme. EPA would be free to take
enforcement action as these regulations
provide.
(3) Commencement and Termination
of Interim Status. The proposal provided
that interim status began at the time the
Director advised the applicant that his
or her Part A application had been
received. Commenters pointed out that
under section 3005(e) of RCRA interim
status Is not granted by the Director, but
begins at the time an application is
submitted (and after notification under
section 3010). EPA agrees with this
Interpretation and did not intend’
different effect under these regulL
The acknowledgment was not an
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33325
attempt to place further restriction on or
delay Interim status. However, a method
Is necessary to Insure that the Director
and applicant know the required
information has been submitted,
EPA has revised the proposal at
12223(a) to require an applicant to
either submit notification and Part A of
the application by certified mail or to
hand deliver such information to
provide assurance to both the applicant
and EPA that the Informktlon has been
sent and received.
One cominenter suggested that EPA
consider adopting a definite date for
termination of all Interim status. When a
permit application Is complete EPA does
not have the authority to terminate
interim status short of the . -
administrative disposition of the permit
application. The time period necessary
to take final action on all permits Is
contingent upon the availability of
resources. Therefore a definite date for
termination of all interim status cannot
be established.
12224 Contents of Part A of the
RCR.4 permit application.
The comments received on this
section are discussed In the preamble to
the consolidated application forms.
published elsewhere in today’s Federal
Register.
§ 122.23 Contents of Part B of the
RCL4 permit application.
The proposed regulation Identified six
general Informational categories for
Inclusion in Part B of the permit
application. These Included a master
plan for the facility which combined all
of the plans required by the section 3004
fac:lity standards. Also included were
geological and hydrogeological data, a
description of the climate at the site, a
list of positions and job descriptions and
ellsting of the performance bonds and
other financial Instruments.
This general approad created some
cortfusior. because the relationship
between the proposed section 3004
regulation and the permit application
‘requirements was not clear. Many
commentere believed that they were
required to submit all the information
included In each category. They
suggested that the Information needs be
limited to the type of facility (e.g.
landfill, incinerator). EPA agreed with
these comments and restructured the’
Part B Informational requirements. The
Part B application requirements now
parallel the structure of the section 3004
standards promulgated In Part 204 of
this chapter.
Only Subparts B through E of Part 204
have been promulgated to date. This
covers requirements which generally
apply to all facilities. Subsequent
subparts of Part 264 includIng standards
for specific facility types (landfills.
incinerators. etc.) will be promulgated
later this year. The Part B permit
application requirements being
promulgated today essentially pertain to
Information which Is common to all
hazardous waste facilities as well as the
specific plans required of all facilities in
Subparts B through E of Part 264. The
Part B application requirements will be
amended to reflect additional planning
requirements and the technical
standards (e.g. equipment design, site
preparation and design) which will be
promulgated In Part 204 later this year.
Section 122.23 of the proposed rules
contained provisions for the Director to
walve.certain application requirements
In Part B If the Information was not
applicable to the facility and was not
needed to establish compliance with the
section 3004 standards. The Agency
received numerous comments on the use
of the waiver provision. While the
reorganization of the regulation may
eliminate the need for this waiver
provision, It is not possible to reach a
final decision on Its use until the full
Part 264 standards are promulgated.
§ 122.26 Permits by rule.
The proposed regulation provided for
a permit by rule for facilities accepting
special wastes, ocean disposal barges
and vessels, and certain POTWe. In
these instances application for a permit
was not required and an actual permit
would not be Issued. The owner and
operator of such a facility would be
deemed to have a RCRA permit If
certain specific conditions in the
regulation were complied wIth. Many
comments were received on this
provision.
Comments from industry generally
approved of this approach, though some
argued that limiting the permit by rule to
POTWs was arbitrary and that privately
owned treatment works and NPDES
Industrial surface impoundments should
be treated In a similar manner. However
some commenters stated that the permit
by rule Is illegal under RCRA. as section
3005 requires each HWM facility to have
a permit. These commenters objected to
the permit by rule approach as less
environmentally protective than site-
specific permits and argued that permit
by rule eliminates public notice and
public participation and that EPA and
the public lose the chance to gain
Information about such facilities.
Although the scope of the permit by
rule provisions has been cut bach
substantially, EPA continues to believe
that such an approach Is both legally
justified and appropriate in certam
cases. The courts have interpreted the
Clean Water Act to allow the Issuance
of “general” or “area” permits covering
point sources under that statute. Natural
Resouroes Defense Council v. Castle.
568 F.2d. 1389, 1381 (D.C. Cir. 1977). The
court recognized that use of such
approaches might be the only way to
fulfill the legislative intent in a setting of
limited resources. Yet the permit
provisions of the Clean Water Act
against which that case was decided are
stronger than those of RC .A, for not
only do they affirmatively require every
“point source” to have a permit, but
unlike RCRA. they underline the
Implication that source-by.source
examination Is required by limiting both
the time for which a permit application
will be acceptable Instead of a permit.
and the maximum term of the permit
once Issued. In addition, section 1006 of
RCRA directs the Administrator to
integrate the administration of that
statute “to the maximum extent
practicable” with the provisions of other
EPA statutes, including the Clean Water
Act, the Ocean Dumping Act, and the
Safe Drinking Water Act.
Against this background. EPA
believes that there can be little question
of its ability to Issue a permit by rule to
facilities where the activities that a
RCRA permit would regulate are for the
most part already regulated under
another EPA permit and the only purely
RCR.A-related provisions are those that
are not site-specific and do not need to
be particularized In an indivIdual
permit. The choice here is between
requiring a duplicate permit proceeding
and duplicate paperwork or simply
making the missing RCRA provisions
applicable through a general regulatory
statement. EPA has chosen the latter
course.
Despite criticism the permit by rule
approach has been retained for POTV ’s
for the reasons discussed above. This
provision caused considerable confusiot
In the proposed regulation. Permit by
rule was only to be applicable to the
rare situation where s POTW received
hazardous waste by rail or truck or by a
pipe that did not carry sewage since
sewer line Influent to a POTW would in
most Instances be exempted from the
RCRA definition of solid waste which
Includes dissolved or suspended
materials In domestic sewage. Many
commenters misunderstood this point
and argued for extending the permit by
rule approach to a wide variety of other
operations such as privately owned
treatment works and NPDES surface
impoundments.
As explained earlier and in the
section 3001 preamble, these facliities
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Federal Register / VoL 45, No. 98 / Monday. May 19, 1980/ Rules and Regulations
do not coiie under the special
Congressional intent applicable to
POTWa and there Is therefore no reason
to exempt them from otherwise
applicable RCRA requirements.
The remaining uses of permit by rule
are for 1) barges or other vessels for
ocean disposal of hazardous wastes
with a permit under the Marine
Protection. Research and Sanctuaries
Act and 2) underground Injection of
hazardous wastes with a permit under
the UIC program of the Safe Drinking
Water Act. Both of these situations meet
the criteria for permit by rule described
previously. In both of these cases the
owner or operator Is deemed to have a
RCRA permit if he or she has a valid
permit under the other program, Is in
compliance with that permit and also•
complies with the RCRA manifest.
recordkeeping and reporting
requirements. Shoreside facilities
related to o ean disposal activities and
surface storage and treatment prior to
underground injection are not covered
by permits under these other statutes
and the RCRA site-specific permit
requirements apply to the handling of
hazardous waste at such installations.
Owners and operators of facilities
with a permit by rule are not required to
submit a RCRA permit application.
However If an owner or operator of an
existing underground injection well does
not have a UIC permit he or she must
comply with the RCRA notification and
permit application requirements in order
to qualify for interim status.
Control of IJJC Wells Injecting
Hazardous Wastes. The RCRA
hazardous waste permit program
regulates the treatment, storage. and
disposal of hazardous wastes. The UIC
permit program, governed by Subpart C
of this Part and Part 123. governs State
programs regulating injection wells,
Including those which dispose of
hazardous wastes by underground
injection. The two programs therefore
potentially overlap, and could result in
duplicative regulation of the seine
practices. In order to avoid this, In the
proposed consolidated permit
regulations EPA sought to set clear
jurisdictional boundaries for the two
programs so that each would regulate
the practices it was specifically
designed to control, and duplication
could be eliminated. In the main, these
jurisdictional boundaries are retained In
these final regulations, and are
discussed below.
In general, UIC permits will be
required for the well itselt while RCRA
permits will be required for associated
above-ground facilities which require
permits under this Subpart—for
example, those which store hazardous
wastes prior to injection. A number of
commenters objected to this scheme,
and recommended that the UIC program
control all facilities associated with a
UIC well, even if such facilities might
meet RCRA permitting requirements.
EPA rejected this approach for two
reasons. First, there is no doubt that
EPA has authority to regulate surface
storage facilities under RCRA it is less
clear that such authority exists under
the SOWA. Even If authority is present
under the SDWA. the UIC provisions of
that statute are Ill-suited to control risks
associated with surface facilities,
including possible explosions, leakage of
hazardous waste into the atmosphere, or
spills.
The final regulations depart from the
proposal In that all UIC wells Injecting
hazardous waste will for an interim
period be subject to regulation under
RCRA. RCRA interim status standards
have been revised so that they can be
applied to wells. Thus, existing UIC
hazardous waste wells must notify
under RCRA section 3010 and file a Part
A application form. Such wells will
qualify for interim status, and will be
subject to Interim status standards like
any other HWM facility. Except as
noted below (in the discussion of new
122.30, interim RCRA Permits for
Class I Wells”). RCRA permits will not
be issued for UIC wells injecting
hazardous wastes. When UIC programs
become effective, all such wells will
either be issued UIC permits (in which
case they will qualify for the RCRA
permit by rule, § 122.25), or they will be
required to shut down (see, for example,
I 122.36).
There are several reasons why it is
necessary to require UIC wells to obtain
interim status and comply with RCRA
interim status standards during Ihis
period. Perhaps most important is that.
under section 3005 of RCRA, these
facilities will not be allowed to receive
hazardous wastes unless they have
Interim status, a RCRA permit. or a UIC
permit which in turn would qualify them
for a RCRA permit by rule. Mechanisms
for issuing the mc permits will not b in
place for some time. Thus, the only
practical alternative Is for .UIC wells to
qualify for interim status.
Moreover, under the SDWA.
substantive regulations do not become
enforceable until they are Incorporated
Into a UIC program adopted by a State
or promulgated by EPA. States are
allowed VU days after the promulgation
of UIC regulations to submit a program.
and the Administrator may extend this
period by as much as another 270 days,
lithe program submitted is
unacceptable. EPA must promulgate
one. This could take considerable
additional time, resulting lii delays
perhaps as much as two years afte
Issuance of UIC program regulations’
before effective regulation of injection
wells begins. EPA sees no reason why
wells cannot be regulated during this
period under interim status standards.
These standards are simple, basic, and
will provide some measure of control
The requirement that an application be
submitted will also enable EPA to
develop early a complete inventory of
injection wells disposing of hazardous
wastes, forming a basis for prompt and
effective regulation of the facilities
when UIC programs are in place.
Among other requirements 171C wells
with Interim status will be required to
comply with the manifest system under
40 CFR Part 265. Subpart E when they
receive hazardous wastes. Failure to
impose manifest requirements on these
facilities would create major obstacles
to carrying out one of the primary
functions of the manifest system: to
track the movement of hazardous
wastes from generation to disposal.
When a final UIC permit is Issued to a
mc hazardous waste injection well, the
well will become subject to the g’
RCRA permit by rule. Thus, they
be required to obtain individual I
facility permits. Sections 122.36 and
122.45 Identify the requirements for UIC
permits for these facilities. Many of the
requirements of analogous RCRA
regulations are incorporated In their
entirety. Others are modified so as to fit
wells, or are not applicable to wells. The
resulting regulatory scheme provides, in
EPA’s view, a degree of control which is
equivalent to that which would be
obtained if the facilities were required
to obtain individual permits under
RCRA. A more detailed discussion of
this Issue may be found elsewhere in the
preamble to I 122.36 and in the
preamble to 122.45. Thus, nothing
would be gained by dual permitting, and
a permit by rule carries out the purposes
of 1008(b) of RCRA, which obligates
EPA to “avoid duplication, to the
maximum extent practical, with the
appropriate provisions of’ ‘ ‘ the
Safe Drinking Water Act”’ •
* 52227 Emergency permits.
Several comments were received on
the proposed emergency authorization
provision. In general, commenters
supported EPA’s proposaL Some
commenters stated that the 90-da ’
for such authorization was too sh
while another cominenter stated ti
action should not be limited to permitted
facilities. Another comznenter stated
- that this provision was unnecessary as
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33327
- EPA had available to It Immediate relief
through court action.
‘EPA continues to believe this
provision Is fully Justified under the
statute. Though section 7003 does
authorize a court to grant emergency
relief, that requirement Is Independent
of permitting authority under section
3005 and Is probably better adapted to
forbidding certain acts than to
permitting disposaL The right of the
government to take summary
administrative action In response to an
emergency is well recognized In other
regulatory fields and In the law
generally. As the preamble to Part 124
explains. R RA specifies no explicit
requirements for issuing a permit. EPA
believes that reading the general RCRA
language to allow summary action In a
limited and urgent category of cases is
the interpretation that best carries out
the overall intent of the legislation to
protect public health and the
environment.
This provision has been extended to
include facilities that do not have a
permit: however EPA continues to be
conservative In defining the scope of
this exemption to prevent the possibility
of abuse, particularly while the frogram
Is still so new, and to restrict the
number of cases In which regulatory
action will be taken without an
opportunity fpr public comment.
122.28 Additional conditions
opplicable to oil RCRA permits.
Numerous comments were received
on the proposed RCRA permit
conditions (proposed § 122.24). Many of
the comments were in fact comments on
the cross-references to the RCRA
section 3004 regulations. These
comments were received after the close
of the comment period for that particular
regulation and are not germane to Part
122 Subpart B. To the extent those
comments were made during the
comment period for the section 3004
regulation, they were considered as part
of the rulemaking for that regulation.
Commenters interpreted the proposed
permit conditions, § 122.24(e). to mean
that an entire facility must be
constructed or modified before any
given part of that facility could be
operated, or that an entire facility must
be closed while part of the facility is
being modified. EPA’s Intent was that
only those portions of a facility affected
by modifications would be covered by
this requirement. The regulations have
been revised so that this Intent is
explicit (final § 122.28(c)). The provision
also allaws for phased construction and
operation of a facility over time, if the
existing parts can operate alone and in
compliance with the permit
requirements.
Several commenters objected to the
requirement that an engineer registered
In the State in which the facility Is
located certify that the facility has been
constructed or modified In compliance
with the permit. Some commenters
argued that this requirement is too
restrictive for Federal facilities. Other
conunenters argued this requirement Is
not necessary as mosi States have
reciprocity agreements for registered
engineers. EPA agrees that requiring an
engineer to be registered in the State In
which the facility Is located Is overly
restrictive and the regulation has been
changed. Certification by a “registered
professional engineer” is still required
because a certain level of expertise is
required to certify compliance with
permits.
Numerous commenters stated that a
time limit should be placed on the
Director to inspect a completed facility.
Suggestions of 10 days and 30 days were
offered. Mc.st comnienters expressed
concern that the Director could unduly
delay start-up of a facility by not acting
promptly In thIs regard. EPA has
restructured the regulation to help
alleviate this problem. If the Director
does not notify the applicant of his or
her intent to inspect within 15 days of
the receipt of certif ’icaticn, he orahe
waives the right to prior inspection, and
authorization to commence operations Is’
automatically granted.
Another cominenter stated that EPA
had not provided a standard to be
applied b) the Directcr to determine
whether operation should begin. The
regulation iow provides that the
Director shall authorize commencement
of operatian if he or she finds the facility
Is in compliance with the conditions of
the permit.
Several comrnenters aso object€d to
the prbposed requirement ( 122.24(b))
which allowed the Direc:or to establish
permit requirements as necessary to
protect human health and the
environment. Commenters thought this
provision allowed the Director tco much
discretion and would lead to imposition
of conditions unrelated to RCRA EPA
agrees that this provisior. is unnecessary
and has deleted it. However, as the
preamble to the section 3004 regulations
explains, in many cases the permit
writer will have to exercise
considerable dIscretion to adapt the
requirements of general regulatory
provisions to a specific permit. See also
* 122.8 and accompanying preamble.
Several State agencies commented
that In order to reduce paperworl
permits should incorporate specific
permit conditions by referencing
appropriate sections of Federal -
regulations rather than list each
condition in Its entirety. The regulations
accommodate this (see § 122.7).
§ 122.30 Interim RCRA permits for U!C
we/is.
There Is an additional respect in
which these regulations must be
harmonized with those for UIC permits.
RCRA prohibits the disposal of
hazardous wastes except In a RCRA-
permitted facility. This prohibition will
take effect this fall, when the second
phase of RCRA regulations, Including
technical standards for HWM facilities.
is published. UIC Class I and Class IV
wells with interim status may continue
o operate. New UIC Class I wells and
Class IV wells will be prohibited by
RCRA from accepting hazardous waste
for disposal because only existing
facilities qualify for interim status
(under section 3005(e) of RCRA). (See
§ 122.32 for a discussion of how
Injection wells are classified under UIC
If these wells are permitted under UIC.
they will be covered by a R RA perm.
by rule (* 122.26). However, many State
may require as much as a year after the
RCRA prohibition takes effect to
develop and submit a UIC program.
Until then, there will be no UIC progran-
and therefore no authority to perniit net-
class i wells (or Class IV wells. If EPA
decides to allow them to be permitted).
Thus, EPA could inadvertently create .
moratorium on the construction of new
Class I wells wiuch could last two or
more years. Because these wells are. i
some cases, the preferred method of
disposal of hazardous w ste. EPA
believes this result is undesirable.
Accordingly, EPA intends to issue
standards mder RCRA § 3004 which
would allcw EPA or approved States i
Issue RCP.A permits to new hazardous
waste injection wells. Such standards
would be patterned closely on 40 CFR
Part 148, so that wells would not be
subject to possible new or inconsister.’
construction and operation requiremen
us their RCRA permits expire and they
come under regulation under the UIC
program.
The actual issuance of the permits
involved can be dor.e either by EPA
Regional Administrators or by the
Slates. At their option. States may
assume, under section 3006 of RCR.A
and 40 CFR Part 123, permitting
authority for Class I wells during the
period after the RCRA permit
requirement goes into effect, but prior t
approval or promulgation of a UIC
program in the State. Accordingly.
States may apply to EPA for approval;
Issue permits under RCRA to Class I
wells, as part of their applications eni .
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Federal Register I Vol. 45, No. 98 f Monday, May 19, 1980 I Rules and Regulations
for interim or final authorization. The
technical standards for such permltà will
be Issued this fall at the same time as
the other RCRA technical standards,
and will be closely modeled upon 40
CFI Part 146, the technical standards
for UIC permits. Because EPA continues
to view the UIC program as the most
effective vehicle for regulation of
underground injection, the permits will
be limited in duration to not more than
two years. At the end of the two year
period, either theState will have an -
approved UIC program or EPA will have
promulgated one under the SDWA.
The Regional Administrator will have
authority to Issue RCRA permits to UIC
facilities under the same conditions In
the event that the State Director does
not seek authority to Issue them. EPA
does not anticipate that It will be asked
to Issue such permits except In a very
few cases. The total number of Class I
UIC wells Is small—about 400.—and has
grown at a slow rate.
Class N wells are continuing to be
studied in connection with the request
for comments on Class N UIC wells
(see preamble discussion of * * 122.36
•and 122.45). EPA will announce
treatment of these wells this fall at the
completion of consideration of
comments.
Proposed * 122.25( 0), Health Care
Facility Permits. The provisions for
special permits for health care facilities
have been deleted. The section 3001
regulations do not include Infectious
waste at present and the section 3004
regulation does not have specific
standards for the treatment, storage or
disposal of infectious waste. If future
versions of these regulatibns cover
infectious waste the permit
requirements can be revised if
necessary.
Proposed * 122.25(b), Experimental
Permits. As proposed, RCRA permits
were normally to be issued for the
designed life of the facility and
experimental special permits were to be
Issued for up to one year with a one
year maximum extension. Because EPA
will now Issue RCRA permits only for
up to ten years. and permits can be
limited to one year if necessary, the
experimental permits section has been
deleted.
Proposed 122.27, Reporting
r equirements. Comments suggested that
the reporting requirements under this
section be reviewed to determine if less
stringent requirements would suffice.
EPA has done this and has reduced the
requirements to the minimum it now
estimates are necessary to carry out the
RCRA program in an adequate and
responsible way. Since the program has
not started yet, any estimate of the
reporting needs La likely to require
revision in the light of experience, and
EPA will re-examine these requirements
once the program has a sufficient degree
of operating history behind It. All RCRA
reporting requirements for permitting
agencies are now contained In § 122.16.
Subpart C—Additional Requirements for
UK Program
These regulations in part establish
program requirements for State
Underground Injection Control programs
under the Safe Drinking Water Act.
However, not all the regulations called
for under section 1421 of that Act appear
in these consolidated permit regulations.
The technical requirements for State
UIC programs will appear separately as
Part 146. The Agency expects to publish
Part 148 regulations within a month.
The SDWA requires any State listed
under section 1422 of that Act to submit
a UIC program for approval within 270
days after ‘promulgation of any
regulation under section 1421. . . .“ The
Administrator may grant a 270 day
extension. EPA believas, however, that
It would be inappropriate for States to
be subject to a statutory deadline for
preparing and submitting programs
when many of the necessary
requirements for the programs have not
yet been issued. The statute does not -
specify when “promulgation” takes
place. Accordingly, to avoid confusion,
EPA Is fixing the date of “promulgation”
of Part 122, 123, and 124, to the extent
that they establish UJC program
requirements, to the effective date of the
40 CFR Part 146 regulations. This
effective date will be 30 days after the
publication in the Federal Register of
regulations under Part ‘148.
1122.32 Purpose and scope c/Subpart
C.
This Is Intended to be an introductory
or “roadmap” section corresponding to
sections which have been added to
Subparts A, B, and D. One goal of this
section is to clarify the connection
between the proposed process for
“Identification” and the regulatory -
requirements designed to protect
underground sources of drinking water
(USDWs). The section now emphasizes
the fact that USDW& are to be protected
regardless of ‘hether they have been
accurately mapped or otherwise
Identified. M?pping or otherwise
Identifying USDWs will aid the Director
In fulfilling this requirement
The Director may also Identify
“exempted aquifers” using criteria In
Part 146. 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 di
water sources. Exempted aquifers
treated as exempt only If they have b ”
affirmatively identified as “exemptr
aquifers” by the Director in the UIC
programior the State.
This section also contains a list of
“specific inclusions” and “specific
exclusions” parallel to similar lists in
the other Subparts of Part 122. These
lists are designed to give readers a quick
Indication of whether their facilities
come within the scope of the UIC
program. These inclusions and
exclusions are not exhaustive, but
illustrative. The language of the
regulations must be applied to
determine whether the program applies
to a particular activity.
Septic tanks or cesspools used to
dispose of hazardous wastes have been
specifically included within the
definition of an injection well. In House
Report No. 93—1185 (page 31) Congress
specifically expressed its intentions that
EPA include underground Injection
systems “other than individual
residential waste disposal systems”
when they are used to inject
contaminants, including hazardous
waste.”
Several commenters questioned
whether EPA should impose the se
monitoring, reporting, coristructioi
operating requirements for injectioi.
wells sited in areas without any tJSD
to be protected as it does in areas with
one or more USDW. One comznenter
questioned EPA ’s legal authority to
control wells located outside State
territorial waters. Several additional
comrnenters asked EPA to clarify the
scope of coverage. EPA agrees that the
UIC program Is a State program and is
not applicable to injection wells located
outside State territorial waters (i.e., to
injection wells at platforms located on
the outer continental shelf). A specific
provision to this effect has been added
to *122.31(d).
Section 122.43 has been added to
allow the Director discretion in reducing
regulatory requirements under certain
circumstances.
In the proposal. EPA exempted
drilling muds and cement from the
program, because the Agency did not
impose requirements prior to operation.
Since preconstruction permits are now
required, this exemption has been
deleted. When UIC permits are issued,
they should routinely authorize
emplacement of these materials.
* 222.32 Classification of injection
wells.
In response to several comments
definition of Class I wells (other than
hazardous waste wells) has been limited
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33329
to Indude only those wells injecting
beneath formations which contain
USDWs within one quarter mile of the
well site. Individual formations are often
identifiable for hundreds of miles and a
formation may be suitable in one area
as a source of drinking water yet not in
another. The limitation prevents a well
from being subjected to Class I
requirements simply because it injects
wider an aquifer whic¼ miles away.
contains drinking water. Such a well
would now be baa ted as Class V. Class
I will also now include all wells
injecting hazardous wastes other than
Class IV wells.
EPA proposed to classify wells
disposing of “nuclear” wastes in either
Class I or Class IV, but did not define
the term in the proposal. Few
commenters addressed this aspect of the
proposal. although some objected to
granting States authority over these
sources. The President on February 12.
1980. issued an Executive Order
outlining a program to arrive at a -
comprehensive radioactive waste
management program. Until this
program Is complete, and EPA has had
an opportunity for full consultations
with the Nuclear Regulatory
Commission, the Department of Energy,
and other agencies with responsibilities
potentially affecting radioactive wastes.
It would be premature for EPA to issue
regulations concerning the disposal of
radioactive wastes into Class I wells.
Moreover, EPA wishes to coordinate
any regulations governing sand backfill
wells with regulatory measures it may
undertake under the Uranium Mill
Tailings Act. Accordingly. EPA has
modified the classification of wells so
that wells disposing of radioactive
wastes below strata containing a USDW
will be Class V wells.
However, the disposal of radioactive
wastes into or above USDWS is an
environmentally undesirable practice.
Therefore. EPA has added a definition
of “radioactive waste” in I 122.3 which
clarifies that the term “nuclear” waste
used in the proposal was intended to
cover not only the radioactive wastes
which are hazardous wastes under
RCRA but also fission by-products and
similar wastes covered under the
Atomic Energy Act of 1954. The disposal
of all such wastes into or above USDWs
ii included In Class N and will be
regulated according to the scheme
promulgated here for Class IV wells:
those Class IV wells injecting into a
USDW are prohibited requirements for
other Class IV wells will be promulgated
In the fall of this year. (See the
discussion of Class IV requirements
below.)
A large number of cominenters
questioned the need for regulations
governing Class H oil and gas wells.
Many felt that existing State programs
are adequate and many questioned the
legality of Federal requirements citing
the SDWA’s prohibition against
interfering with or impeding oil or
natural gas production.
Class II wells still include all those
covered by the proposal except those
Injecting natural or synthetic gas.
However, there are many features of
these regulations which are designed to
prevent Inclusion in the UIC program
from being unduly burdensome. These
include permitting by rule for existing
Class II wells for the life of the well;
additional time (three years) for
compliance with construction
requirements: area permitting for entire
well fields and allowing for new
enhanced recovery wells covered by
existing area permits to be installed
prior to notice to the Dlrector and
elimination of the area of review and
corrective action requirements for
existing Class 11 wells. Those Part 146
requirements for Class II wells which
are potentially burdensome are written
with flexibility. Others, for example
monitoring and reporting. are not
burdensome enough to cause
Interference with oil and gas production.
The hydrocarbon storage industry
argued that: (1) the underground storage
of natural gas.does not meet the
statutory requirement for underground
injection because it is stored and not
disposed of; (2) Congress did not intend
for EPA to regulate the storage of
natural gas: and (3) natural gas Is not a
“contaminant.” hi both the SDWA and
the 1977 Amendment to the Act the terra
“underground injection” means the
“subsurface emplacement of fluids by
well injection.” Natural gas is a fluid
which is emplaced into an underground
formation or reservoir for the purpose of
storage by well Injection.
The House Committee Report (H.R.
Report 93—1185. page 31) indicates that
the Committee decided to include
natural gas under the definition of a
fluid. The term “fluid” is defined in both
this document and In the April 20, 1979
proposed Part 148 regulations (44 FR
34270) as a “material or substance
which flows or moves whether
semisolid, liquid, sludge or any other
form or state.”
The SDWA defines “contaminant”
broadly as “any physical, chemical,
biological, or radiological substance or
matter in water.” (SectIon 1401(0))
Even though EPA believes natural gas
Is clearly subject to the Act’s regulatory
scope, EPA believes that the
commenters are correct insofar as they
make a technical argument that
underground storage of natural gas
poses no threat to USDWs in the vast
majority of cases and that Inherent
economic reasons compel opera tore on
their own initiative to employ stringent
technical controls to prevent loss of an
extremely valuable resource. However,
the Agency does have some concern
that natural gas storage could displace
formation fluids Into a USDW.
Accordingly, this section has been
modified so as to dassify the
underground storage of natural gas and
other gaseous bydrocarbons within
Class V. As such they will be authorized
by rule and subject to assessment by the
Director and any further regulatory
requirements that may be fashioned in
the future. In the interim, the Director
will have authority to take action
against such wells, including requiring
them to get a permit. In those cases
where It is necessary, see I 122.37(c).
Underground storage of liquid
hydrocarbons (gasoline, crude
petroleum, and others) will remain In
Class II. These hydrocarbons have a
greater potential for contaminating
water than do gases, which would be
normally driven Into the atmosphere as
soon as the contaminated water was
drawn from the top.
The definition of Class II I injection
wells has remained unchanged.
The definition of Class IV wells has
been limited with regard to Its proximity
to a USDW. in the same way, and for
the same reason, as the definition for
Class I wells, In addition, the proposed
definition covered any well injection by
a HWM facility, which was overly
broad. Several commenters suggested
that Class IV wells should be limited to
those wells which inject hazardous
waste and not include any and all
Injection wells owned by a hazardous
waste generator or disposer. EPA
concurs and has redefined Class IV
wells as those, including non-residential
septic system wells, used by hazardous
waste management facilities to inject
hazardous material Into or above
formations that contain an underground
source of drinking water. Disposal wells
not associated with HWM facilities,
such as those on farms injecting water
containing pesticide residues, will be
classified as Class V.
Any injection well which is not
otherwise classified will be a Class V
well. Such wells are not free from
regulation (see § 122.34), but need not
comply wIth the technical design and
operation requirements prescribed for
otner classes of wells In Part 146.
Commenters said that sand backfill
operations using uranium mill tailings
which meet the hazardous waste criteria
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Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 1 Rules and Regulations
of RCRA might be injecting material.
termed hazardous. They pointed out that
the proposed regulations consider sand
backfill operations to be Class V wells
but, if they do inject hazardous waste.
the operations might be considered
Class IV wells.
In sand backfill operations waste
materials remaining from the milling
process are returned to abandoned
portions of the mine from which they
were originally removed. While some of
these materials may be defined as
hazardous they are waste from
processing operations that must be
disposed of in some manner. Even
though there are environmental risks
connected with the placement of certain
materials in sand backfill operationB. in
acme instances ft I- •b. most
i accepting nazardous wasie
1 because only existing idy Is
jalify for interim status an be
th- gC5(e) of RCRA). (See —
therefore be classified in t.iu ..
whether or not the tailings are
hazardous wastes. Keeping these
operations in Class V allows an
Inventory and assessment procedure to
determine the actual risk individual
sand backfill operations present.
Provision, are already contained in the
regulations for removal (Including
Immediate closure) of any Class V wells
which present a significant risk.
12Z33 Prohibition of unauthorized
injection
This new section has been added to
clarify the basic legal authority which
any State must have in order to carry
out a UIC program. A requirement that
the State prohibit construction of an
unauthorized well, as well as injection,
has been added. EPA believes that
permits must be issued and control
requirements applied before a well Is
constructed, not simply when it goes
Into operation. Among the technical
requirements of Part 148 are
construction requirements. It may not be
possible to assure compliance wilh
these requirements If a permit is not
Issued until after construction of the
well.
I 12234 Prohibition of movement of
fluid into undergrowid sources of
drinking water
We have moved proposed § 122.38,
the general prohibition against
movement of fluids into USDWs. up
front as new I 122.34. The technical
rationale for the prohibition, and
responses to comments, appear in the
preamble to Part 148. The provision has
been augmented to include the basic
provisions designed to achieve
protection of USDWs for all classes of
wells, not just Class I, U, and I lL
EPA believes that this reorganization
will serve to place the basic
requirements of the UIC program up
front, and dispel confusion about their
operation. For Classes 1.11, and III. no
Injection may be authorized by permit or
rule If It causes or allows the movement
of fluid into a USDW. If monitoring
indicates movement, the Director may
Impose additional requirerhents as
necessary. This standard for Classes I,
II. end ifi was selected because it is
operationally meanhigful (i.e.. It can be
measured or otherwise determined) and
because It can be achieved through the
use of available, good engineering
practices.
Because of the design of Class IV
wells, the use of good engineering
practices will not reliably Insure that
movement of fluids into USDWs will not
occur. Consequently, Class IV wells
Injecting directly Into a USDW are to be
closed. The regulation of other Class IV
wells is reserved.
Similarly, Class V embraces wells of
differing construction and design, many
of which inject non.hazardous fluids
Into and above USDWS. A “no
movement” standard would not make
sense for these wells. Therefore, the
prohibition relies on the language of the
SDWA. Class V wells are not to cause a
violation of primary drinking water
standards and they are not to affect the
health of persons adversely. While the
Class V wells are being assessed, the
Director is to take action with regard to
any well that violates either of these
prohibitions. Such action may be
accomplished through an order or by
requiring the injector to apply for a
permit
The permit mechanism may be a more
efficient one under some State laws to
prescribe controls. The regulation leaves
to the Director’s discretion what
technical requirements would be
imposed through such a permit
However, all the conditions In § § 122.7,
122.41, and 122.42 must be included in
such permits except for the plugging and
abandonment requirements and
mechanical integrity requirements of
I 122.42, which the Director may include
as a discretionary matter. By an
amendment to § 122.9 (duration of
permits), a Class V well may be
permitted for up to ten years.
A new provision has been included to
authorize the Director to take emergency
actions whenever EPA would be
authorized to do so under section 1431
of the SDWA. to prevent imminent and
substantial endangerment to the health
of persons.
12225 Identification of unde ,
sources of drink/rig water and e’
aquifers
Numerous conunenters noted the
apparent contradiction between Part 146
and Part 122 on aquifer designation and
noted that EPA used different
definitions for a USDW in the RCRA
and UIC programs. EPA has clarified its
intent and resolved the differences
between RCRA and UIC by Identifying
USDWs by definition. The Director may
designate aquifers as USDWs to
facilitate program administration and
put potential injectors on notice of
regulatory requirements.
EPA encourages State Directors to
designate aquifers as USDWS. and to
make the designation as thorough and
complete as possible. Even if an aquifer
is not designated. it is a USDW If It
meets the technical criteria of § 122.3
and has not been exempted. For this
reason, the burden will be on any owner
and operator planning to construct an
injection well to ascertain If the well is
likely to pass close enough to a USDW
to require a permit, or to determine if a
permit is otherwise required (if. for
example. the injector is injecting
hazardous wastes). Thus, for e
an Injector mIght commence d
well believing it was net going
hazardous wastes and that the wt.
would not intersect or pass close to a
USDW. Such a well might be authorized
by rule as a Class V well. If the drilling
operation intersects an aquifer,
however, the driller must sample the
water and test it to determine If it is a
USDW. and if so, must cease all further
drilling and construction until it has
obtained a permit as required by the
State program.
Some aquifers may not, as
commenters noted, be amenable to
description by geographic methods. The
Director may identify USDWB or
exempted aquifers In narrative terms or
a combination of narrative and
geographic terms.
The State Director may also Identify
“exempted aquifers.” A definition of
“exempted aquifer” has been added to
§ 122.3(c). This term takes the place of
the exceptions to USDW’s formerly
listed in proposed § 146.04. which also
appeared In the definition of USDW in
proposed I 122.3(a). The term and its
definition have been adopted by EPA
from several suggestions by
commenters. An exempted aquifer -
aquifer or portion which would
qualify a. a USDW but which
several specified reasons has a. 41
potential for providing drinking water
and which has been affirmatively
Identified as an exempted aquifer by the
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33331
State Director as part of the program
description required by 123.4(g). If a
State Director exempts an aquifer or
portion of an aquifer. it is not treated as
a USDW subject to the protections of
these regulations.
122.36 and 122.45 Requirements for
Class T I’ and other hazardous waste
wells.
In the final regulations, all wells
which are used to Inject “hazardous
waste,” as defined under RCR.A. are
grouped Into Classes I or N. Class IV
also covers the Injection of radioactive
wastes. Standards for Class I wells have
already been discussed above. Section
122.36 establishes, on an interim basis, a
prohibition, also required for approvabla
State administered programs. against
the Injection of hazardous waste directly
Into underground sources of drinking
water (USDWs). The prohibition Is
effective six months after the effective
date of a State program. Requirements
applicable to other Class IV weils—
those which Inject above, but not into,
USDWs—are reserved. Also reserved
are additional requirements (for
example. monitoring and retention of
records) for Class N wells injecting Into
USDWs.
Section 122.45 establishes additional
requirements for operators of wells
through which manifested hazardous
wastes are Injected. They apply to Class
I wells and will apply to Class IV wells
as final standards are established. This
section essentially requires that the
operators of these wells comply with
selected requirements established for
hazardous waste management facilities
under 40 CFR Part 122 Subpart C and 40
CFR Part 264.
The proposed standards for wells
used to Inject hazardous waste (f 122.45,
44 FR 34285. June 14, 1979) provided for
a ban on the construction and operation
of new Class IV wells, and a three-year
phase-cut of existing ones. The proposal
would also have required that wells
used to Inject hazardous waste comply
with the manliest and record.keeping
requirements of the hazardous waste
management regulations.
The definition of Class IV has been
narrowed. The proposal required only
that the well be owned or operated by
(1) a generator of hazardous waste; (2)
the owner or operator of a hazardous
waste management facility, and 13) that
the injection be Into or above a USDW
In order to be included In Class IV.
Conunenters correctly pointed out that
this definition could embrace wells that
were not In fact used to Inject hazardous
waste. A requirement that hazardous
wastes be Injected has now been added
to the definition of Class IV. The
definition also clarifies that the Injection
has to be “into or above a formation
which, within one-quarter mile of the
well, contains a USDW” (1 122.32).
A second major change has been
made with regard to the coordination of
regulatâry authorities under RCRA and
SDWA. Both Acts tnandate.regulatory
controls on these wells: RCRA because
hazardous wastes are disposed of, the
SDWA because fluid Is emplaced
beneath the surface. The draft
regulations proposed that all surface
facilities Involved in managing
hazardous waste be regulated under
RCRA. The well Itself, from the cut-off
valve at the weilbead was to be
regulated under SDWA. The rationale
for the proposal was that the different
technologies (surface management v.
Injection) could be grouped and
regulated by technical requirements
appropriate to each.
One commenter In particular objected.
arguing that the Injection of hazardous
waste be regulated under RCRA
because the regulations under RCRA
could afford a higher level of protection.
The Agency does not agree that the
SDWA is Inherently weaker In
preventing the potential Impacts of
Injection. Indeed, the SDWA provides
broader authority to regulate the
injection of materials (e.g.. oil and gas
related brines and fission by-products).
than RCRA.
However, because the SDWA allows
States up 1o18 months to develop UIC
programa, there could be Instances In
which no effective UIC program will
exist In a State for two years after the
effective date of these regulations. In
order to provide some level of
environmental protection during this
period. 1 122.45 now requires all
Injectors of hazardous waste to obtain
“Interim status” under the hazardous
waste management program. When the
applicable State UIC program become.
affective, such injectors will be
regulated under the UIC program.
However, I 122.26 provides for a permit
by rule under RCRA which will be
satisfied if the injector Is In compliance
with the applicable UIC standards. In
order to make control under SWDA
substantially equivalent to control under
- RCRA. I 122.45 has been expanded to
include appropriate standards from 40
CFR Part 284 in addition to the manifest
system.
The third major change from the
proposal Is that the requirements for
Class IV wells, other than those
injecting hazardous wastes into a
USDW. are reserved. There are several
reasons for this decision. While few
commenters questioned the basic
premise underlying the proposal, some
questioned whether, at least In some
cases, the migration of fluid into a
USDW would in fact cause any adverse
effects either on drinking water supplies
or human health. Other cominenters
suggested that a well should not be
banned if It overlie. a deep or remote
USDW which it Is not likely to
contaminate. As noted above.
commenters also indicated their belief
that the definition of Class IV was too
broadly drawn, and that, therefore, the
proposed standard was unnecessarily
protective. The Agency has reviewed
these comments and Is mindful of It.
obligation to proceed with extraordinary
care before imposing an absolute ban oa
any practice. The Agency’s concern in
fashioning the proposal was to afford
protection to drinking water sources.
Nor Is the Agency contemplating any
changes which would sacrifice or
endanger drinking water sources people
rely on. Furthermore, wells injecting
hazardous wastes are also subject to
R1 RA which mandates a broader set of
environmental concerns than drinking
water. Nevertheless, there may well be
portions of aquifers so deep or remote
that they may never serve as drinking
water sources, or conditions under
which a particular injection may not
have an impact on the quality of the
drinking water source.
A further reason for the proposed
approach Is that regulations under
RCRA and SDWA touch at several
points. Facilities under Class-I and Class
IV overlap the class of facilities
designated under RCRA as hazardous
waste management facilities. It is.
therefore, appropriate that technical
standards under RCRA and UIC be
consistent, to the extent allowable under
the governing statutes, for facilities
capable of causing a similar degree of
environmental risk.
EPA has decided to defer issuance of
permitting standards for HWM facilities
until fall 1980. Adoption of IJIC
standards now for Class IV wells could
prove misleading to the States and the
public, because EPA might decide this
fall to revise the standards to reflect
policy decisions made in connection
with RCRA standards. The best course
Is to defer the technical stanctards for
Class N wells which inject above
USDWs until fall 1980. Accordingly. we
now solicit further comment on
requirements for Class N wells.
EPA has under consideration several
options which would allow Class IV
wells to Inject, In certain circumstances.
In order to assist commenters. these
options are described below. In addition
to the SDWA. F.PA is considering
Invoking RCR.A authority to deal with
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980! Rules and Regulations
CIaas IV wells. Accordingly, after
consideration of comments, EPA will
publish regulations this fall amending 40
CFR Part 122, Subpart C, or Parts 146,
264, or 265. At that thne. EPA may
decide to prohibit all Class IV wells as
proposed under SDWA or RCRA or
both, adopt any of the options discussed
below, or adopt any combination or
modification of the options which
appears justified based upon the record,
Including comments received.
The language of the Act (section
1421(d)(2)) states that:
Underground injection endangers drinking
water sources If such injection may result in
the presence of underground water which
supplies or can reasonably be expected to
supply any public water system of any
contaminant, and If the presence of such
contaminant may result in such system’s not
complying with any national primary
drinking water regulations or may otherwise
adversely affect the health of persons.
For the proposed regulations, EPA
adopted a conservative approach to the
designation of USDWs. This approach
was based upon that suggested in the
House Committee Report on SDWA
(H.R. Rept. No. 93-1185, 92d Cong.. 2d
Sess. at p. 32). Thus, EPA proposed to
protect any aquifer or aquifer portion
already in use as a source of drinking
water. Aquifers or portions which could
potentially serve as drinking water
sources would also be protected if they
could yield useable quantities of water
conteining fewer than 10,000 mg/I of
TDS.
Potential drinking water sources
which met the technical definition could
be designated as “exempted aquifers” if
they are: (1) hydrocarbon, mineral or
geothermal energy producing: (2) so
contaminated as to make their use for
human consumption technically or
economically impractical; and (3)
located in such a fashion as to make
their use technically or economically
impractical.
Within this regulatory approach, two
alternative methods suggest themselves
for expandL’ig the range of aflowable
Class IV practices. The first is to
attempt a more precise distinction
between ground water In general and
ground water that serves or can
reasonably be expected to serve as a
source of drinkrng water. Option A takes
this approach.
A second possible approach is to
attempt a more precise definition of the
circumstances under which the presence
of contaminants in a USDW may or may
not cause a system to exceed national
primary drinking water (NPDWR)
standards or otherwise adversely affect
the health of persons. Option B takes the
latter approach.
Option A. This option would entail
modification of the definition of a
USDW to decline to protect USDWs In
areas adequately served by other
sources. EPA is aware of areas of the
country which are underlain by aquifers
containing Immense quantities of usable
fresh water, or where surface water
supplies are so plentiful that they could
reasonably be expected to pply all
foreseeable needs for drinking water. In
such cases, EPA Is willing to consider a
policy which would authorize injection
through Class IV wells.
In this approach, an additional basis
for exemption could be added to
• 146.04 that would allow the Director to
decline to protect an aquifer or Its
portion If It “otherwise cannot
reasonably be expected to serve as a
source of drinking water.” To justify
such an exemption, the Director could
be required to consider the following
factors:
• present and future availability of
alternative sources of drinking water
• future population growth and land
use patterns In the area: and
• the expected growth in the demand
for drinldng water.
In keeping with the revised definition
noted above, such wells would fall
under Class I because they would inject
into exempted aquifers (i.e.. not into or
above a USDW). Injectors would apply
for permits with a duration of up to ten
years as specified in 40 CFR 146 Subpart
B. with one exception. The applicant
would be required Ia make a showing
that the injection would not Impact
aquifers or portions of aquifers
protected as USDWs. Such a showing
would involve a demonstration that the
Injection zone Is not in hydraulic
connection with or that the natural flow
from the injection zone is away from
protected USDWs.
The application would be processed
as any other Class I permit application.
Under 122.43, the Director would have
the discretion to require such permit
conditions as he believes necessary to
protect USDWs.
Option B This option would recognize
that the injection or presence of
contaminants ins USDW may not
necessarily lead to drinking water
supplies exceeding the NPDW standards
or adverse effects on the health of
persons. Based on this rationaL a more
liberal approach could be taken to
regulating Class IV wells if the applicant
could demonstrate that the injectios: (1)
Is environmentally the most acceptable
method of disposal; and (2) would not
contaminate the portion of the aquifer
from which water is drawn for drink:ng.
Under such an approach, thea rd
that the applicant would have to
demonstrate would be that:
• technology for safe disposal Is
available, taking Into account the cosis;
• Injecting fluid willbe less harmful
than use of other available means: and
‘technology and other means will be
employed to reduce volume and toxicity
of waters.
The applicant would be required to:
• demonstrate that the proposed
injection Is the most environmentally
acceptable alternative available
considering technology and the cost of
Trucking to an approved site.
Pretreatment prior to injection.
Construction of a Class I well.
Incineration.
Segregation of streams and/or
reduction in flow,
• demonstrate anticipated ground
water impact will not adversely affect
the health of persons or violate NPDWR
based on the following information:
Injection volume and pressure.
Life of operation..
Direction of ground water flow.
Proximity to use.
Monitoring up gradient and down-
gradient.
Geological and hydrological data-
Closure plan.
There would be certain commc
elements under both options. Injeci.
would be required to obtain a permit
operate a Class IV well Within one year
of the effective date of the State
program or close. Permits could be for a
duration of 10 years, and new wells
would be subject to the requirement in
• 122.33 that a permit be obtained prior
to the construction of a new well.
Similarly, there are certain common
questions with regard to implementation
under either option. The Agency solicits
specific, detailed comments on these
questions: First, do factual
circumstances exist In hith EPA
should allow Injection of hazardous
waste Into or above an underground
source of drinking water? Second. if so.
what Information should be required of
the applicant to show that the injection
will not endanger dtlnking water
sources. and what criteria should the
Director use in granting or dcnymg
permits? Third, should new and existing
Class IV wells be treated differently or
alike? Fourth. should the decision to
allow the use of a Class N well be made
as part of a statewide or regional plan
(e.g., section 208, land use, RCB.A
section 4007 soLid waste plan, UIC
program application) or as part ci
individual permit decision? Fifth,
factors should be considered in
subdividing aquifers into relatively
confIned exempted areas and USDWs?
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33333
Sixth, what procedures should be -
Imposed to ensure full public
participation In decisions to allow
injection through Class IV wells?
Seventh, what kinds of post-closure care
requirements (monitoring, third-party
liability, use restrictions) should be
imposed an Class IV well operators?
Eighth. are the authorities under SDWA
and CWA sufficient to prevent the
potential Impacts of such Injections or
should RCRA authorities be Invoked to
meet non-human health related
environmental concerns such as aquifers
discharging to streams and surface
Impact on vegetation?
These final regulations prohibit new
Class IV wells Injecting directly Into
IJSDWs as of the effective date of these
regulations. Existing such Class IV
facilities are allowed only six months
from the effective date of the State
program In which to dose, which wifi In
many cases, be more than two years
after the dale of these national
regulations. Even though requirements
for these wells are reserved under the
UIC program, all Class IV wells must
meet interim status standards under
RCRA.
* 122.37 Authorization of underground
injection by rule.
Only minor changes have been made
from the proposal. First the section has
been written to clarify when
construction requirements must be
complied with. Second. the rules are
limited to exclude wells which have not
responded to inventories generally, not
merely Class IV and TInventorles.
A number of commenters noted that
this section as proposed did not
explicitly specify what operational
requirements were applicable to
Injectors authorized by rule, as opposed
toby permit. This section has been
ievised to Incorporate the appliqable
requirements of 122.41 and 122.42.
Moat of these requirements are as
necessary for rules as they are for
permits. The exceptions (for example.
the requirement that the injector apply
for a renewal permit) are explicitly
noted here.
In response to comments, this section
has been revised to allow a rule to
continue (even beyond its termination
date) to authorize injection where the
injector has applied for a permit and the
Director has not yet acted on the
application.
A new paragraph (c) has been added
to this section to authorize the Director
to require an ln ector authorized by rule
to apply for a permit. EPA believes that
this authority may be necessary in some
cases to provide a means of promptly
imposing cleanup measures on problem
wells, or of allowing the Director to
phase In the permitting of wells In an
orderly way.
EPA rejects the claim by one Industry
that the authorization of existing Class
II wells by rule will result In loss of oil
reserves. Existing wells are allowed to
continue current operations with the
exception that they must start
monitoring and reporting, at small cost.
Tb. estimated costs for this monitoring
and reporting are given In the preamble
to 40 CFR Part 146.
I 12Z39 Authorization of underground
injection bypenniL
As proposed, the section referred to a
echedule for submitting permit
applications which was to be part of a
State Director’s program submission
under Part 123. However, no mention
was made of what happens when EPA Is
the permitting authority. When EPA
promulgates any UIC program for a
State, It will specify the schedule for
applications to be submitted. For States.
the program description under 123.4
will establish the schedule.
Proposed paragraph (d), mechanical
Integrity, has been relocated as a permit
condition In 122.42. A very large
number of commenters objected that the
prohibition against permitting wells
which lacked mechanical integrity was
Illogical since permits are Issued pilor to
construction and mechanical Integrity
cannot be shown until after
construction. Relocation and rephrasing
of this requirement Is responsive to this
concern.
A commenter objected to the
proposed provision authorizing a State
to allow an applicant to submit an
application as much as four years after
program approval. The commenter
pointed out that this schedule conflicted
wIth the three-year schedule set out in
section 1421(b) of the SDWA. EPA has
retained the four-year phase-Ic. All
injectors must be authorized either by
permit or rule under a State program, as
required by section 1421. However. EPA
believes that a reasonable phase-in
periqd Is necessary for States to Issue
permits In an orderly way, and finds a
four-year period to be reasonable.
Moreover, the States will have inventory
information under 122,37 well before
the expiration of the four-year period
and can take action under I 122.37(b) to
require an early application If
necessary.
A commenter asked EPA to specify
how long In advance of operation a
permit application Is required. Since a
permit will be needed for construction,
each owner or operator should submit a
complete (under 122.5(c)) application
for a permit as early as possible to allow
time for the Director to process the
application. Since the time needed to
process a permit will vary with
complexity, available State resources,
controversial situations, and other
factors, EPA has chosen not to require a
fixed time for submission prior to
starting construction. Instead, EPA has
retained the requirement that the
application be submitted to the Director
a reasonable time before construction is
expected to begin. EPA suggests that en
applicant submit applications at least
six months In advance of planned
construction.
I 12239 Area permits.
This section has been extensively
rewritten for logic and clarity. The only
substantive change Is to allow for new
Injection wells within the area without
requiring prior administrative
authorization. Many commenters noted
that without such a requirement It would
be Impossible for some Class 111
operations, such as frasch process or
solution mining operations to continue.
The rewritten section should eliminate
any possibility that the need for
authorization will hold up the drilling c i’
additional wells within the area.
However, additional wells are carefully
regulated under the terms of the area
permit and the permit can be modified
or revoked If its terms are violated.
Additional wells will constitute grounds
for minor modifications of the area
permit which, If necessary, can be made
without requiring public notice and
opportunity for a hearing.
Comxnenters pointed out that many
Class II well fields are cut by faults,
even though the field Is a distinct unit.
These comznenters contended it was
unreasonable to limit area permits to
fields Injecting Into the same aquifer. In
response, EPA has eliminated the
requirement that all wells Inject Into the
same aquifer. They need only be within
the same well field, facility site.
reservoir, project, or similar unit In the
same State. The final rule also adopts a
commenter’s suggestion that control by
a single “owner or operator,” rather
than a single “person.” be required for
area permita.
Comments objected to the
authorization of new wells within an
area covered by an area permit where
the Director has not considered the
cumulative impact of the new wells,
when added to those existing at the tim ”
of permit issuance. EPA agrees, and has
added a requirement that the Director
consider these cumulative impacts
before Issuing an area permit which
auLhonzes new wells to be drilled
without specific approval by the
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Director. The final rules do not require
that the location of every well that might
be drilled under an area permit be
Identified In advance of permit insuance.
However, there must be sufficient
Information on potential new wells In
order for the Director to consider
cumulative Impact. If there Is not, the
Director may issue an area permit
covering only existing wells if he or she
wishes to. but new wells will be
required to obtain individual permits.
O 222.40 Emergency permits.
EPA proposed this section as 0122.40,
“Temporary authorization.” It has been
renamed “Temporary permits” to
correspond to its actual function, and to
the scheme of the SDWA. which
requires UIC programs to prohibit any
Injection not authorized either by a rule
or a permit EPA does not view this
section as unlawful or as an attempt to
depart from the statutory scheme, as
contended by one commenter. A
temporary permit is a permit. The
procedures for its Issuance, while
different from those for other permits
under this Part, in no way contravene
the SDWA. EPA believes, moreover,
that the stringent and narrow conditions
under which temporary permits can be
granted not only fill a real need, but will
assure that the injection does not
endanger drinking water sources.
The issuance of these permits is. of
course, optional with the State Director.
No State which does not wish to Issue
temporary permits is required to do so
by these regulations.
Numerous commenters expressed
concern that the EPA permitting
procedures have the potential for
creating or contributing to major delays
In issuing permits. Several stated that
Issuance of draft permits Is an
unnecessary step in the UIC permitting
process. Others claimed that the
detailed procedures in Part 124 appear
to be excessive in that they provide for
unwarranted delays In the permitting
process for oil and gas wells.
EPA evaluated these comments and
found that the permitting time delays
arising from these regulations would not
cause an unwarranted delay except
where new field (wildcat) wells were
Involved. If a wildcat operator found oil
be or she might have to delay Initial
production in order to secure a UIC
permit to drill an injection well which
conforms with these regulations.
To avoid any unnecessary delay In
production for new field wildcat wells,
122.40 has been expanded to permit
the Director to Issue an emergency
authorization for a new Class II
injection well where a substantial delay
In production of oil or gas resources will
occur unless Itis granted. Such
authorization must not result in the
movement of fluids into a USDW. The
authorization is valid only during the
time the permit application is being
processed, provided the application is
submitted within 90 days. a period EPA
considers more than ample.
*222.42 Additional conditions
applicable to all UIC permits.
One commenter noted that the
sequence of permitting steps and
construction for new wells was
confusing In the proposal. EPA agrees
and has moved a paragraph covering
construction requirements into this
section from * * 146.12,146.22.148.32
and 146.42. Permits are issued prior to
construction and contain requirements
which govern the construction of the
well. Wells must be In compliance with
these requirements before injection
begins. Changes in construction plans
during construction may be approved by
the Director as minor modifications. To
avoid any unnecessary delay In
production for new field wildcat wells.
0122.40 has been expanded to permit
the Director to issue a temporary permit
for an injection well where a substantial
delay In production of oil or gas -
resources will occur unless temporary
authorization Is granted to new Class II
wells. Such permit must not result In the
movement of fluids into a USDW. The
temporary permit is valid only during
the time the permit application is being
processed.
The plugging and abandonment
condition has been rewritten to cover
the possiblity of conversions of wells to
new uses rather than abandonment.
Injectors must notify the Director 180
days In advance of plans to convert or
abandon a well so that the Director may
review the plugging and abandonment
procedures or otherwise act to prevent
contamination.
A new requirement has been added
that the permittee retain records on the
nature and composition of injected
fluids until at least five years after
plugging and abandonment, at which
time the Director may require the
permittee to turn over the records. This
provision is necessary In order to assure
that If contamination of a USDW is
discovered, the Director .will have ready
access to records of Injected fluids
which might be necessary to-trace the
origin and direction of flow of the
contaminating fluids. EPA encourages
the States to establish a system to retain
these records for as long as possible.
0222.42 Establishing UlCpenn
conditions.
While 0 122.41 Itself prescribes r
conditions. this section prescribes.
manner in which certain types of permit
conditions must be established by the
Director when Issuing permits. The
section Is also intended to serve as a
complete cross-reference to the
applicable requirements of 40 CFR Pan
146, as well as other requirements of
Part 122. Subpart C. which must be
applied through UIC permit issuance.
Most of the requirements referenced In
this section are actually established
elsewhere, and comments on those
requirements are dealt with in
connection with the sections which
establish them. However, several
requirements established by this section
do not appear elsewhere, and are
discussed below.
Construction requirements and
plugging and abandonment procedures
are handled the same way. The permit
applicant must develop and submit for
the Director’s approval permit
conditions necessary to assure adequate
plugging and abandonment, or testing.
drilling, and construction. The Director
may adopt the proposed conditions or
prescribe other appropriate ones. 7I .
injector is presumably in the best
position to know how these
construction-related requirements c
best be tailored to the individual well
site. This provision will enable the
Director to take advantage of that
expertise, as well as giving the applicant
an opportunity to suggest optimally
efficient permit requirements.
This section also includes financial
responsibility requirements. These were
proposed as 0 122.42(a)(7). The proposal
did not specify a dollar amount for the
performance bond or other instrument.
but each well would have been required
to be covered by a financial
responsIbility Instrument A number of
comments were received. Many of these
comments addressed the dollar amounts
of financial responsibility Instruments
already required under some State laws.
and suggested that applying these
amounts to each well would shut down
many marginal well operations. In
consideration of these comments, EPA
has revised the regulations to give the
Director dear discretion to approve any
form of financial responsibility which Is
equivalent to a performance bond to
close, plug, and abandon the well in a
manner prescribed by the Director.
The Director might conclude, for
example. that the applicant’s fine
statement showing large assets
sufficiently proves the applicant’s
financial stability and reliability. A
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33335
State Director might require an
applicant to set up an escrow account
where authorized by State law Ibecause
of Federal statutes, this alternative Is
not open to a Regional Administrator).
Similarly. If the Director requires a
performance bond, he or she may
authorize an owner or operator
controlling a large number of wells to
post a single Instrument of financial
responsibility covering all wells within a
State. EPA considered establishing a
minimum dollar amount for performance
bonds covering all wells within a State.
This did not appear practicable,
however, for two reasons. First, such a
fixed requirement seemed Inconsistent
with the broad discretion granted to the
Director to approve alternative methods
of establishing financial responsibility.
Second, no dollar amount coula be
defined which EPA would be confident
would be adequate for all wells under
all circumstances, without being
prohibitively high for most cases. The
costs of plugging and abandonment
range from $1500 for some Class 11 wells
to as much as $30.000—540.000 or more
for some Class I wells. In most
situations, EPA believes that a $60,000
bond would be sufficient for an
otherwise financially stable owner or
operator to post for a number of wells
within a State. However, this figure is
only guidance, and the Director is free to
establish a higher or lower figure as
circumstances dictate.
Some commenters contended that a
bond requirement would shut down
marginal and stripper wells. Such wells
are often operated by large multi-
national corporations which should
have no difficulty establishing financial
responsibility absent a bond. For
smaller operators, the Director will be
ab!e to employ a single instrument for.
all wells under the operator’s control.
This authority is expected to reduce the
economic burden to the lowest possible
point consistent with effective
regulation.
122.43 Waiver of requirements by
Director.
Some commenters suggested that
some of the technical requirements of
these regulations are not necessary
v.hen Injection takes place far from any
potential drinking water source and
where the fluids are not likely to migrate
into a USDW. EPA agrees and has
added limited authority to allow the
Director to waive the technical
requirements for operation, monitoring,
and reporting in cases where the radius
of the zone of endangering influence is a
negative number. In cases where
injection does not take place into.
through or above a USDW, the Director
may also waive requirements for area of
review, construction and mechanical
integrity. The Director’s fact sheet under
paragraph (c) should explain not only
the technical basis for the waiver under
this section, but also why compliance
with the requirements would not be
feasible.
Proposed 122.43 Noncompliance
reporting.
This section has been moved to
Subpart A, I 122.17,
122.44 Corrective action.
This section has been extensively
rewritten both for clarity and substance.
Several commenters objected to the
provision in the proposal that the
Director shell prescribe steps for
corrective action by noting that the
Improperly completed wells may be on
property not owned by the permittee.
EPA has determined that no exception
shall be made for situations when
corrective action on a third party’s land
Is necessary. The Director may still
prescribe such steps, although of course
he or she can not require that a third
party’s property rights be violated.
Rather, if an Injector can not work out
an agreement with a neighboring
landowner, then the permit may be
terminated or the injection will not be
authorized. However, an additional
option available to the Director in
setting corrective action requirements
has been emphasized. This consists of
limiting Injection pressure, and may
avoid shutting some wells down in
situations where other corrective
actions are impossible because of
conflicting property interests.
The burden and roles of the applicant
or permittee and the Director in
proposing corrective actior. have been
clarified. The applicant must ldentif
wells within the area of review. The
applicant may, but is not requ [ ”ed to,
Include a plan for corrective action in.
the application. If no such plan is
Included, or If the plan is inadequate,
the Dire:tor may request one, or require
further inforznatlor.. The Director then
places corrective action requirements In
the permit.
Several of the parographs in the
proposal covered the handling of
migration of fluids Into USDWs
generally rather than covering only
corrective action. These provisions have
been moved Into the expanded general
prohibition against movement of fluids
Into USDWs, new § 122.34.
Some conunenters suggested that
Frasch wells should be exempted from
corrective action requirements because
economics preclude leaks in such wells.
If ihese commantero are correct, and no
leaks are found, then corrective action
would of course not be required for
existing wells (See 40 CFR Part 148
Subpart D).
§ 122.45 Requirements for wells
managing hazardous waste.
This section Is intended to integrate
the requirements of these regulations
with those Issued under RCRA for
hazardous waste management facilities.
R RA prohibits disposal of hazardous
wastes except at facilities which are
permitted under RCRA. In order to avoid
needless duplicative regulation of the
same disposal actions under two
statutes, Subpart B of this Part
establishes under RCRA a permit by
rule for UIC wells which hold final
permits under an approved State UIC
program, or a federal program. The two
programs should be consistent, however.
Accordingly, this section establIshes
requirements similar to those under
RCRA, but adapts those requirements to
the particular circumstances of injection
wells,
The manifest system has been
adopted without change. However.
financial responsibility for IJIC facilities
differs from that for RCRA.permitted
facilities. EPA believes that the
circumstances are fundamentally
different. A properly sited, designed and
operated Class I disposal well offers
little risk of leakage ar.d contamination
during the period of injection. Thus the
primary purpose of financial
responsibility is to ensure proper
plugging and abandonment. EPA
believes this can be done more simply
for IJ1C vells than for RCRA facilities
and has according’y left the Director
broad flexibility. Similarly, plugging and
abandonment for a UIC well is
dissimilar to closure for a RCRA facility.
Plugging arid abandonment is as dose
as can be obtained to assurance that
fluids will not migrate and contaminate
drinking water sources. For a UIC Class
I well, observance of proper operatin3
and pressure monitoring practices
provide assurance against migration snd
contamination of USDWs. After the well
Is plugged, the plugging operation leaves
an Impermeable barrier between the
Injection zone and any USDW. Thus
post-closure monitoring wells and other
post-closure maintenance required
under RCRA are unnecessary. For a
HWM facility, closure Is only the
beginning of necessary extensive post-
dosure monitoring and protection. Thus
plugging and abandonment Is all that
these regulations require of wells
Injecting hazardous waste. However.
completion of required procedures must
be certified by ar independent
registered professional engineer. RCRA
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Federal Register F Vol. 45, No. 98 I Monday, May 19, 1980 1 Rules and Regulations
notification and training requirements
apply without change to UIC wells.
Other UIC program requirements are
equivalent to their RCRA counterparts.
For example. owners or operators of
Class I wells are required to analyze
Injected fluids often enough to yield
representative data on Its
characteristics (t 148.13(b)(lfl. They
must regularly monitor and report to the
Director injection pressure, flow rate
and volume, annular pressure. and any
other information which might Indicate
movement of fluids but of the Injection
zone ( 148.13(c)). If the well leaks or
otherwise causes movement of fluids
Into USDWS, it must be repa1red To the
extent that these wells present the
hazards of explosion or other sudden
incidents requiring emergency
equipment or contingency plans under
RCR.A. these hazards will be associated
with surface facilities, which cor.tinue to
be subject to RCRA even though they
are at the site of an injection well.
In order to assure prompt application
of controls under the UIC program.
owners and operators of UIC wells
injecting hazardous wastes must apply
for a permit within six months of
program approval.
Subpart D—Additlonal Requirements for
NPDES Program
Subpart D of Part 122 contains
requirements which are for the most
part identical to those in Part 122 of the
final NPDES regulations, published on
June 7, 1979 (44 FR 32854). Subpart D
also contains the deadlines for request
for variances from effluent limitations
(previously in § 124.51 of the NPDES
regulations). The Agency received a
large volume of comments on these
provisions. Many of these comments
either repeated or incorporated by
reference the comments previously
made on the NPDES regulations which -
became final on June 7, 1979. EPA feels
that Comments that were made during
the comment period for the June 7, 1979
regulation have been adequately
considered and addressed in the
preamble to those regulations. EPA has
considered only those comments on the
NPDES regulations which raised new
Issues. Some changes have been made
as a result of comments and of
consolidation, as discussed below.
Subpart D now incorporates
regulations proposed separately on June
14,1979 (44 FR 34393). The incorporated
regulations accompanied the draft
consolidation application forms (44 FR
34346) and are intended to improve
control of toxic pollutant discharges
under the NPDES program. Changes
from the proposal include specification
of the contentiof the new NPDES
application form, new duties to report -
certain pollutants, and accompanying
requirements for establishing permit
conditions. The regulations appear now
In § § 122.53,122.62. 122,63, and
Appendix I), and are discussed In detail
hi the preamble to the final consolidated
application forms published elsewhere
In today’s Federal Register. The major
changes from the proposal are
summarized in this preamble in the
appropriate sections.
122.51 Purpose and scope.
EPA has expanded I 122.51, Purpose
and scope, to include proposed I 122.62
(Law authorizing NPDES permits) and
122.63 (Exclusions). The new section, in
line with other subparts, contains a
paragraph outlining the scope of the
NPDES permit program. The “specific
Inclusions” list discharges that require
NPDES permits. although the list is not
exclusive.
EPA has added a new “specific
exclusion,” § 122.51(c)(2)(iv). which -
deals with the need to discharge
chemicals and other materials to counter
the effects of sudden hazardous
discharge.. The provision exempts any
discharge made in compliance with the
instructions of an On-Scene
Coordinator. The Coordinator is a
Federal official designated by EPA or
the U.S. Coast Gaard to direct Federal
discharge removal efforts at the scene of
an oil or hazardous substance discharge
according to Regional Contingency
Plwi . The exemption Is necessary
beca ise the NPDES permit process is
Inoppropriate for discharges required by
a Federal olficial in this context.
Another new exclusion.
§ 122.51(c)(vi) , lists return flows from
irrigated agriculture as exempt from the
NPDES permit requirement This does
not represent a change in policy;
Irrigation return flows are also excluded
from the definition of point source In
these and the prior final NPDES
regulations as required by section
502(14) of CWA. It is added here for
clarity.
1 122.52 Prohibitions.
Proposed I 122.67(i) (now § 122.52(1))
included the terms “effluent limitation
segment” and “water quality segment,”
which were defined in 40 CFR I 130.2
(a)(1) and (a)(2). Because those
regulations have been superseded, we
have deleted the two terms. The
provision now Implements section
303(d) and 303(e) of CWA by prohibiting
permits for a new source or new
discharger If its discharge will cause or
contribute to the violation of a water
quality standard. A new source or new
discharger proposing to discharge into a
water segment that does not no’.
water quality standards otis not
expected to meet those standards even
after the application of the effluent
limitations required by section
301(b)(1J(A) and 301(b)(1)(B) of C’i6VA.
and for which a pollutant load
allocation has been performed. may
receive a permit if it shows that
sufficient pollutant load allocations to
allow for the discharge remain and that
existing discharger. into the segment are
subject to compliance schedules
designed to eliminate the segment’s
noncompliance with water quality
standards.
Many commenters observed that no
criteria were provided by the Agency for
determining “entitlement” to pollutant
load allocations. Upon reconsideration.
we agree that It would be almost
Impossible to prove “entitlement;” thus.
we have deleted the requirement that
the applicant demonstrate the facility’s
entitlement to the remaining pollutant
load allocatIon. In addition, the
requirement that a discharger
demonstrate, at the time of applying for
a permit, that there are sufficient
remaining pollutant load allocations to
allow for the discharge has been
changed to allow the demonstration to
be made at any tune before the cIo -
the public comment period. This’
was made in response to commel.
compliance with the proposed regui.
would be unduly burdensome and thi
the information necessary to make the
required demonstration, in many cases,
would not be readily available to the
‘discharger at the time of application.
§ 1fl 53 Application for a permil.
(1) New application requirement.
Proposed 1 122.64(b) required existing
perinittees to submit a new application
automatically when certain facility
changes would either result in new or
substantially Increased discharges or a
change in the nature of the discharge. or
violate the conditions of the permit.
Comnienters argued that this would be
unduly burdensome because of the
detailed testing requirements which are
likely to be a part of the new
consolidated application forms. EPA
agrees that this subparagraph is
unnecessary for three reasons: (1) the
regulations now require the permittee to
notify the Director of planned
alterations or additions to the permitted
facility as soon as possible
(I 122.7(l)(1)); (2) application-based
notification requirements have been
established for toxic pollutants
( 122.61(a)); and (3) § 124.5 gives
Director authority to request an u
application from the permittee, if
necessary, where cause exists to modify
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33337
or revoke and reissue a permit. Thus,
this subparagraph has been deleted.
(2) FInal 122.53(c) phases in the new
application requirements which have
been promulgated today. (see
§ 122.4(d). 122.53(d) end 122.53(e)) for
existing dischargers other than PO’l ’Ws.
These new requirements apply to (1) any
such discharger whose existing permit
expires after November 30, 1980 and (2)
any such discharger whose permit
expires on or before November 30, 1980
but who has not submitted an
application prior to April 30. 1980, the
approximate date these regulations
become public. The reason for
distinguishing between these two groups
is diacussed below:
The schedule for phasing in the new
application requirements has been set
after consideration of several factors.
On one hand, It is desirable to make the
requirements effective as early as
possible so that the newly-required
Information on toxic discharges is made
available to permit writers. On the other
hand, as some comnienters have noted,
applicants must have ample time to
sample and analyze their waste streams
for toxic pollutants. A further
consideration Is the effect of * 122.10(b)
of the final NPDES regulations (now
incorporated, with changes, into
122.53(c)). The regulation (proposed in
the consclidated permit regulations as
I 122.64(b)) required applicants for EPA.
issued permits to reapply at least 180
days prior to permit expiration. (Many
NPDES States have similar rules.) Thus
permittees whose permits are due to
expire before November 30. 1980 had to
submit applications o EPA by June 3,
1980. It would be unfair to require
dischargers in this group who have
already applied to apply once again for
the same permit.
Based upon the above considerations,
EPA decided to phase in the new
application requirements beginning with
those dischargers whose permits expire
after approximately six months from
when these regulations are promulgated,
I.e.. after November 30, 1980. Applicants
whose permits expire before that date
will In most cases hove already applied
under the old requirements. They need
not reapply except that those whose
permits expire before November 30,
1980. but who have not yet applied by
April 30. 1980 are required to apply
under the new requirements.
Diachargers whose permits expire
after November 30, 1980 must comply
with the new application requirements,
even If they have already applied for
permit renewal, it would be
Inappropriate to exclude these
applicants from the new requirements
simply because they have submitted
applications unusually early.
To allow applicants sufficient time to
apply under the new requirements, EPA
1. temporarily relaxing its general
requirements that applicants submit
applications at least 180 days before
permit expiration. The rule will initially
be waived and then gradually phased
back in accordance with the table in
* l22.53(c).
EPA recognizes that In some
situations, despife the relaxation of the
180-day rule, some applicants may not
be able to sample and analyze their
waste streams and submit the results by
the application deadlines. Therefore,
applicants whose permits expire before
June 1, 1981 may apply for time
extensions to submit that data.
However, the extension must be limited
to a maximum of six months and must
not go beyond June 30. 1981. These
limitations are necessary to ensure that
permit Issuance and compliance will
meet the statutory July 1.1984 deadline
of CWA section 301(b).
(2] Information requirements. Section
122.53(d) lists the Information which
existing Industrial NPDES permit
applicants must supply to the Director in
addition to the information listed in
I 122.4(d). Dischargers applying to EPA
for their permits will supply this
Information on Form 2c of the
consolidated application forms.
Dischargers applying to States for
permits will use State application forms,
which may be different from EPA’s form:
however. I 123.7(d) equires State forms
to include at least the information listed
in I 122.53(d).
Additions to § 122.53 were proposed
along with a public notice of the draft
consolidated permit application forms
as Part Ill of the June 14, 19?9 Federal
Register (44 FR 34393. 34346). A detailed
discussion of the significant comments
received on the proposal and EPA’s
responses appears in the preambe to
the public notice of the consolidated
application forms published elsewhere
In today’s Federal Register. The major
changes from the proposal are
summarized as follows:
(i) The sections of the regulations
listing Information to be provided by all
applicants have been moved to Subpart
A of Part 122, dIscussed above at
I 122.4(d).
(ii) A new paragraph has been added
(I 122.53(d)(1)) which requires
applicants to list the latitude and
longitude of each outfall and the name
of the receiving water.
(iii) The requirement for submission of
a line drawing with a water balance
(I 122.53(d)(2), proposed as
I 122.64(d)(9)) has been modified to
Indicate that flows may be estimated
and that multiple operations may be
Indicated as a single unit. Also. when a
water balance cannot be determined,
applicants may provide a pictorial
description of the source, use, and
treatment of water.
(iv) The requirement to describe flow.
processes contributing waslewater, and
treatment units (I 122.53(d)(3). proposed
as a 122.64(d)(10) and (14)) has been
simplified by deleting the requirement
for reporting maximum flows for types
of wastewater. Including storm runoff.
The new subparagraph also states
processes may be described In general
terms. Two requirements have also been
added: applicants must list the average
flow of wastewater contributed by each
process, arid privately-owned treatment
works must lder .tlfy all users (see
further discussion contained in the
preamble to the consolidated
application form in today’s Federal
Register).
(v) The requirement to list the
production or other measure of
operation (e.g.. raw materials consumed.
products manufactured) used in any
applicable effluent guideline.
(I 122.53(d)(5), proposed § 122.64(d)(8)).
has been modlied to require listing of
only a maximum measure of actual
production as required by § 122.83(d)(2).
(vi) The analytical testing
requirements have been modified in a
number of ways (I 122.53(d)(7),
proposed § 122.64(d)(16)):
1. The list of pollutants
(I 122.53(d)(7)(i)) for which all
applicants must test now includes
ammonia, and no longer includes
cyanide, total phenols. and total
Kjeldahl nitrogen.
2. The list of organic toxic pollutants
for which primary industries must test in
crocus wastewater has been specified
for each of the 34 primary categories
(see Table I I in Appendix D to Part 122.
Subpart D). (In the case of 2,3.7.8
tetrachlorodibenzo-p-dioxin, (TCDD).
the testing requirement depends on the
app.icant’s use or production of a
specific list of chemicals potentially
contaminated with TCDD.) The organic
toxic polutants are specified by the four
fractions tested by the Gas
Chromotography/Mass Spectrometry
analytical method. All primary
applicants must test for c)anide. total
phenols, and the metals on the toxics
list. Also, all applicants must test for
any toxic pollutant they expect to be
present
3. The list of pollutants for which
applicants must indicate expected
presence or absence now includes total
organic nitrogen, and no longer includes
ammonia, asbestos, or additional
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Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 1 Rules and Regulations
pesticides (see Table W In Appendix D
to Part 122. Subpart D). Also applicants
who Indicate that a pollutant on this list
(which Includes all of the toxic
pollutants except asbestos) Is present
must now test for that pollutant, while
the proposal allowed an estimate.
4. A list has been added of pollutants
for which applicants must indicate the
reasons for the presence of any
expected pollutants (see Table V In
Appendix D to Part 122, Subpart D). This
list Includes asbestos and 73 hazardous
substances.
(vii) A paragraph has been added
9 122.53(d)(8)) which exempts
applicants qualifying as small -
businesses from submitting analyses for
any organic toxic pollutants.
(viii) A paragraph has been added
9 122.53(d)(9) and (10)) requiring
applicants to: (1) list any toxic
pollutants which they use or
manufacture; and (2) describe any
discharges of pollutants they expect to
exceed the maximum values reported
through testing.
(ix) The requirements concerning Best
Management Practices (BMP) plans and
potential discharges of toxic pollutants
or hazardous substances not through
outfalls has been deleted (proposed
122.64(d)(12) and (13)).
(x) The paragraph requiring reporting
of additional chemical testing results
has been deleted (proposed
122.64(d)(18)).
(x l) The paragraph allowing
applicants the option of reporting
information to obtain exclusions from
the requirements arid penalties of
section 311 of CWA has been deleted
(proposed I 122.64(d)(19)).
(xii) The requirement to report any
previous biological toxicity tests
(proposed § 122.64(d)(18), now
§ 122 ,53(d)(11)) has been modified to
delete the requirement to report the
results of the test.
(xiii) The requirement to report the
identity of laboratories performing any
reported analyses (I 122.53(d)(12)), has
been added, and modified to require
ldentificatidn of which pollutants were
analyzed by the laboratories. -
(xiv) The paragraph allowing the
Director to require additional
Information from an applicant (proposed
§ 122.84(d)(20J, now § 122.53(d)(13)) has
been modified by adding the word
“reasonably.”
Section 122.53(e) deals with
concentrated animal feeding operations
and aquatic animal production facilities.
It lists the information which permit
applicants must supply to the Director In
addition to the information listed In
§ 122.4(d). Applicants applying tc EPA
for their permits will supply this
Information on Form 2b of the
consolidated application forms.
Applicants applying to States for
permits will use State application forms,
which may be different from EPA’s form:
however, I 123.7(d) requires State forms
to Include at least the Information listed
In § 122.53(e).
Form 2b was published as a part of
the public notice of the draft
consolidated permit application forms,
In Part III of the June 14, 1979 Federal
Register (44 FR 34346). However, the
corresponding regulations were
Inadvertently omitted from the proposed
application regulations (44 FR 39393.
June 14, 1979). Tne final regulations
correspond to the final Form 2b, which
Is published elsewhere In today’s
Federal RegIster the comments received
and the changes made are discussed as
a part of that preamble. The regulations
require applicants to provide the
following information:
(i) For concentrated animal feeding
operations, a description of the size of
the operation and of the waste control
system.
(ii) For concentrated aquatic animal
production facilities, a description of the
water use and of the size of the
operation. - - . -
Two paragraphs have been added to
1 122.53, but are now reserved for future
publication of the application
requirements for POTWs and for new
sources. This material will be proposed
during the summe’ of 198& (I 122.53( 1)
and (g)).
(4) New sourt.’e applications and
vorionce requests. Certain ?equIrements
from Part 124 of the final NPDES
regulations for applications from new
sources and requests for variances ware
moved to the application 3ection of Part
122. Subpart D in the proposal. Final
ft 122.53(h), (1), (i and (k) include these
requirements with some rewcrding, but
no substantive changes. Also. the
definition of variance in § 122.3 has
bern’. amended to include all
modifications and variances specifically
authonzed by the Clean Water Act.
Therefore, the term “variance” can be
used for all permit conditions based on
these CWA provisions. and the term
“modifica lion” reserved for permit
mcdiflcations under § 124.5.
Final § 122.53(k) now specifically
allows the draft or final permit to
contain, along with the applicable
limitation, the alternative limitations
which may become effective
automatically upon grant ci the
variance.
* 122.54 end § 122.55 Conceal
anim ci feeding operations and -
concentrated aquatic animal produ”oa
facilities.
The detailed criteria for determ.
whether facilities are “concentrated
animal feeding operations,” 9 122,54,
proposed § 122.76). or “concentrated
aquatic animal production facilities,”
(I 122.55, proposed § 122.77) required to
obtain permits, have been moved from
the text and placed In Appendices B and
C, respectively, to allow smoother
reading of the regulations.
* 122.57 Separate storm sewers.
Section 122.57(b) (proposed
I 122.79(b)) defines a “separate storm
sewer” as a conveyance used primarily
for collecting storm water runoff, which
Is either located in an urbanized area or
designated (normally because it Is a
significant contributor of pollution) as a
separate storm sewer. EPA does not
consider storm sewers which do not Fall
under this definition (i.e.. rural storm
sewers or those not designated) to be
point sources subject to NPDES permit
requirements unless the storm water
runoff is contaminated (see
I 122.57(b)(3)). The former NPDES
regulations had a comment to th
effect, see 40 CFR I 125.52(a)(1)
Because we did not repeat the h.
of the comment in the June 7. 1979
revised NPDES regulations or in thL
14. 1979 proposed conolidated
regulations, cominenters asked whether
EPA was changing Its policy. To make
clear that we are not changing our
policy, a sentence has been added
(I 122.57(b)(2)) stating that such storm
sewers ire not point sources.
§ 122.59 General permits.
EPA has rewritten and reorganized
the general permits section (proposed
I 122.82) for clarity and to make minor
changes. First, the “General Perm:t
Program Area (GPPA)” has been
eliminated because this entity, along
with its procedural trappings, served no
purpose which could not be served
equally well simply by the area
described In the permit, Second. the
proposal stated that the general permit
program area could be “reviewed” if
necessary to address water quality
problems. The general permit cars be
modified for any of the causes listed in
I 122.15 that apply to all pervuts.
Information Indicating unacceptable
cumulative impacts now appears ar an
example of Information which is’
for modifying a permit under
§ 122.15(a)(2) and applies as wel.
general and area permits under the State
404 programs and UIC programs.
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33339
Third. the procedure for EPA
Headquarters review of EPA issued
draft general permits. proposed In -
* 124.7(a)(2) and the comment following
§ 122.82(a), has been shortened to allow
EPA 30 days rather than 90 to review
and raise objections to the draft permit
(final * 124.58).
Fourth. the proposal (* 122.83(efl2))
stated that the Director could revoke a
general permit as It applied to an
Individual discharger and require that
discharger to obtain an Individual
permit, but EPA could do this only after
an on-site Inspection. The requirement
for an on-site inspection has been
deleted because the causes for requiring
an individual permit (examples are
listed in * 122.59(b)(2)(i)) can be
adequately determined without an
Inspection.
Fifth, the sources other than separate
storm sewers that may be covered by a
general permit are rio longer limited to
“minor” sources, so long as the category
specified In the permit meets the
requirements of * 122.59(a)(2).
..Flnaliy, * 122.59(b)(2)(iv) clarifies that
the general permit automatically
terminaLes on the effective date of an
Individual permit.
§ 722.80 Additional conditions
applicable to all NPDES permits,
§ 122.60(a)(1) states the duty of the
permittee to comply with toxic effluent
standards or prohibitions regardless of
whether they appear in the permit. This
requirement formerly appeared as a
comment to proposed § 122.68(b).
Section 122.60(b) (proposed
§ 122.68(e)): The proposal required a
permittee to control production and all
discharges upon reduction, loss, or
failure of the treatment facility, until the
facility Is restored or an alternate
method of treatment provided. Some
commenters argued that this
requirement to control both production
and discharges was burdensome and
that some flexibility should be allowed
based on the degree of noncompliance,
EPA agrees in part and has revised
§ 122.60(b) to require a permittee to
control either production or all
discharges rather than both. However, If
the circumstances warrant the permittee
may still be required to control both
production and all discharges.
Portions of paragraphs (d) through (h)
of proposed § 122.71 have been moved
to § 122.60. These monitoring
requirements are mandatory for all
perinlttees and as such properly appear
in the standard NPDES permit
conditions. They are discussed under
§ 122.62( 1) below.
SectIon 122.60( 1) contains the 24-hour
reporting requirements for NPDES. ‘rats
paragraph Is intended to coordinate
with the reporting requirements under
I 122.7(1). The proposal required 24-hour
reporting of unanticipated bypasses If
the permittee wished for the bypass not
to be “prohibited.” This requirement has
been coordinated with the 24-hour
reporting duties and therefore now
applies in all Instances regardless of
whether the bypass will be “prohibited.”
Similarly, In the proposal upsets only
had to be reported If the permittee
wished to establish an affirmative
defense to an enforcement action for
noncompliance. This 24-hour reporting
duty has now also been coordinated
with the other 24-hour reporting duties
and Is mandatory In all Instances where
the upset causes any effluent limitation
In the permit to be violated. Finally, the
Director may now specify In the permit
any other pollutant which he or she
wishes to be reported within 24 hours if
a maximum daily discharge limitation is
violated.
Section 122,80(j) contains provisions
covering bypass. The paragraph has
been extensively redrafted for clarity. In
general. the paragraph now clarifies that
bypass whichpauses violation of
effluent limitations is prohibited: the
proposal appeared topla the
presumption In favor of approval of a
bypass. Consequently, ten day advunce
notice of any anticipated bypass which
may violate effluent limitations Is now a
requirement in all cases, and not simply
an optional mechanism for obtaining
“approval” of an otherwise prohibited
bypass. Similarly, EPA has deleted the
statement in proposed I 122,68(c)(3) that
“If there Is any doubt” as to the
necessity for the discharge. enforcement
action may be taken. Finally, the
reorganized section clarifies the
applicability of the requirement that
backup equipment be available to
prevent bypass. In general, bypass will
not be excused except In extreme
situations, and the lack of adequate
backup equipment for downtime periods
will not be a defense unless the
permittee could not have anticipated the
need for such equipment at the time the
facility was constructed. Similarly,
although in general bypass which does
not exceed effluent limitations Is not
prohibited, this Is true only If the bypass
also was necessary for essential
maintenance.
§ 122 O1 Additional conditions
applicable to specified cotego,’ies of
NPDES perm its.
(1) Section 1 2 2.81(a) requires existing
industrial permittees to notify the
Director when some activity has
occurred or will occur, causing them to
discharge toxic pollutants at a level
exceeding five times the level reported
in the permit application. Permittees
must also notify the Director if they
begin to use or manufacture a toxic -
pollutant which they did not report in
the permit application. This requirement
has been changed from the proposal
(I 122.68(a) in Part Ill of the June 14,
1979 Federal RegIster (44 FR 34393))
which established permit limits at five
times the reported level or detection
limit. In response to a large number of
comments on this section, EPA has
changed its approach towards
controlling pollutants not limited In
permits. A detailed discussion of the
new section and the comments received
on the proposal appears elsewhere In
today’s Federal Register in the preamble
to the public notice of the consolidated
application forms.
(2) Section 122.01(b) specifies
conditions applicable to all POTWs.
They were proposed as I 122.69(d)(1), In
the section titled “Applicable
limitations, standards, prohibitions, and
conditions,” Rather than leaving them as
requirements for permit writers to
specify on a case-by-case basis, they
were moved. without substantive
change, to this section because they are
applicable to all POTWs.
* 222.82 Establishing NPDES permit
conditions.
(1) We have divided proposed
I 122.69(a), whIch listed required
limitations, into two paragraphs.
* 122.62(a) and (b). Section 122.62(a)
contains requirements for technology-
based limitations, to be imposed either
on the basis of guidelines or case-by.
case under * 125.3. It also specifies
requirements concerning new source
performance standards which were
proposed as § 122.09(c).
(2) Section 122.82(c) modifies the
proposed § 122.89(b) by deleting the four
dates In proposed Appendix A
(September 30 and December 31, 1980
and March31 and June 30,1981) and
replacing them by a single date
Identified in the text of * 122.62(c),
which Is June 30. 1981. Any permit
issued on or before June 30. 1981 to any
dischargere In an Industrial category
listed in Appendix A must contain a
reopener clause as provided in this
section. This will ensure incorporation
of the requirements of effluent
guidelines Into permits Issued to these
dlschargers. Any permit issued after
June 30, 1981 to these dischargers.must
meet the requirements of sections
301(b)(2) (A), (C), (D), (E), and (F) of the
Clean Water Act, whether or not
applicable effluent limitation guidelines
have been promulgated for those
industries.
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Federal Reglstez I ’ Vol. 45, No. 98 f Monday, May 19: 1980 / Rules and Regulations
The effect of the revision from (he
proposal Is to extend the time during
which permit writers may wait for
promulgation of guidelines before
writing permits requiring BAT and ncr.
This change has been made for several
reasons.
First, many commenters expressed
concern that In the absence of
guidelines, permit writers would begin
setting BAT limits on a case-by-case
basis, resulting In a lack of uniformity.
jij a solution, two commenters
supported allowing the permitting
authority to extend expired permits until
applicable guidelines are promulgated.
The dates In proposed Appendix A
were derived by adding 18 months to the
effluent guideline promulgation dates set
in the original NRDC Consent Decree.
Due to the enormity of the task, It
became evident that EPA would not be
able to meet that ambitious schedule.
Therefore, the promulgation dates were
delayed substantially In the modified
Consent Decree on March 9, 1979.
Furthermore, a moderate slippage
beyond the new deadlines is likely for
some Industries. As a result, some
guidelines will be promulgated alter the
applicable dates in proposed Appendix
A.
To maximize the usage of effluent
guidelines by permit writers, the
September 30 and December 31, 1980
and March 31, 1981 dates In proposed
Appendix A have all been extended to
June 30, 1981 In the final regulations.
Due to the statutory deadline of July 1,
1984, the June 30, 1981 date is the latest
dat ,y which It would be reasonable to
wait for promulgation of guidelines.
After that date, permits must require
compliance with sections 301(b)(2) (A),
(C), (D), (E), and (F) of CWA, whether or
not guidelines have been promulgated.
In conjunction with revising the
expiration dates for short-term BPT
permits, EPA is revising one other
aspect of Its second round permits
policy. On page 25 of “Policies and
Guidance for Issuing the Second Round
of NPDES Permits to Industrial
Dischargers” Uuly 1978), EPA directed
EPA Regional offices to issue only short-
term permits to primary industries
unless BAT guidelines for toxics were
promulgated. (States were allowed to
Issue long-term permits with reopener
clauses, provided that the permits
required BAT and BCT, based upon best
engineering judgment). EPA Is now
rescinding this directive.
As of today. EPA permit writers may
issue long-term permits to primary
Industries even If guidelines have not
yet been promulgated, provided that the
permits require BAT and BCI and
contain reopener clauses. The reason for
this change Is that the July 1, 1984
deadline for compliance with BAT and
BC!’ is two years closer than It was
when the Second Round Permit Policy
was written. In some situations (for
example. when the applicable guideline
Is not likely to be promulgated by July
1981) It may be appropriate to issue a
long-term BAT permit, rather than to
issue a short-term permit for a very
short period of time and then issue a
long-term permit soon afterwards.
In general. EPA continues to
encourage EPA (as well as State) permit
writers to Issue short-term permits (or,
where necessary, extend them
admlnlsfratlvely under section 558(c) of
the Administrative Procedures Act or
analogous State law) to primary
Industry dischargers until BAT
guidelines are promulgated or until July
1, 1981 (see 1?2.53(c)). However, EPA
permit writers are now being given the
same flexibility as State permit writers
have had to issue long-term BAT and
BC!’ permits, based on best engineering
Judgment, in appropriate circumstances.
The proposal also required the
reopened permit to be modified to
Indude ‘any other requirements of
CWA then applicable,” and stated that
the reopened permit could be “modified
or, alternatively, revoked and reissued.”
These provisions are Inconsistent’ with
the provisions of 122.15 end, because
they are not required by paragraph 10 of
the NRDC v. Trvisi settlement
agreement, they have been deleted. The
reopener clause now requires that “the
permit shall be modified or revoked and
reissued to conform to that effluent
standard or limitation.”
(3) Section 122,62(d) (proposed
I 122.69( 1)) lists water quality standards
and State requirements in addition to or
more stringent than technology-based
standards or limitations. Proposed
122.69(fl(10), which included
_technology-based limitations on
pollutants not limited in guidelines, has
been deleted from this paragraph,
because such limitations are now
covered by expanded 1 122.62(a).
In response to a comment that
proposed 122.89(fl(3) was overbroad,
EPA has amended I 122.62(d)(3) to
provide that an NPDES permit will not
Include more stringent conditions of a
State certification which has been
stayed by a court of competent
jurisdiction or by an appropriate State
agency. EPA will indude In the permit,
however, any more stringent conditions
necessary to meet EPA’s obligation
under 301(b)(1)(C) of CWA.
(4) Section 122.62(e) requires permIts
to contain limits controlling all toxic
pollutants which either are reported at
levels exceeding BAT or are used or
manufactured at the facility. U
be placed directly on these toxi
pollutants, or Indirectly on other,
pollutants if those limits will resu
equivalent treatment of the toxic
pollutants. This provision is included in
the final regulations as a result of a
change In the Agency’s approach toward
controlling pollutants not limited In
permits. In the preamble to the
regulations proposed in Part Ill of the
June 14, 1979 Federal Register (44 FR
34393), EPA expressed the policy that
permits should control all significant
pollutants, and that the proposed
application-based limit (proposed
122.66(a)) was designed only to control
unexpected pollutants. In response to a
large number of comments, EPA now
distinguishes between pollutants that
should be controlled by the permit and
all other pollutants, which are regulated
only by the requirement that permittees
notify the Director when their discharge
does or will exceed five times the
reported level or detection limit of toxic
pollutants (I 122.61(a)). A more detailed
discussion of these regulations appears
elsewhere In today’s Federal Register, In
the preamble to the public notice of the
consolidated application forms.
(5) Section 122.62(g) Is a new
provision which requires permi’
to specify which pollutants will
24-hour notice under § 122.60(fl(i,
Director when their maximum daily
discharge limitations are violated. This
Is a change from the proposal
(I 122.11(h)) which required 24-hour
reporting for toxic pollutants and
hazardous substances. Because In some
cases toxic pollutants and hazardous
substances will be controlled by limits
on other pollutants, permit writers must
be able to require 24-hour reporting for
these other pollutants. In addition, the
Director may specify any other pollutant
as one which must be reported If a
maximum daily discharge limitation Is
exceeded.
(8) Section 122.62(h) specifies that
NPDES permit durations must comply
with 122.64. All provisions of Subpart
D which contain requirements for how
permits must be written are cross.
referenced in section 122.82.
(7) Monitoring. Section 122.82(i)
(proposed I 122.71) specifies the
monitoring requirements that must be
placed in NPDES permits. Proposed
I 122.71, “NPDES requirements for
recording and reporting of monitoring
reports” (sic) has been deleted and its
provisions placed in this section -
§ § 122.7 and 122.60 to conform I
organization of the consolidated
regulations. The requirement to report
all monitoring and the statements of the
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33341
potential liability for falsifying
monitoring results under the Clean
Water Act have been moved to fln l
§ 122.60 (condItions applicable td all
NPDES permits). with only minor
wording changes.
Proposed § 122.71(d) Is deleted from
the final regulations. This provision
encouraged permittees to request that
additional monitoring requirements be
placed In their permits when they felt
that the conditions In their draft permits
were not sufficient to yield
representative data, It was deleted
because section (g) of proposed § 122,71
(retained with minor wording changes
as 122.60(f)(2)) required that
permittees use all monitoring results in
calculating ccmpliance with permit
limits, including any results from-
monitoring more frequently than
required by the permit. Therefore,
permittees may undertake additional
monitoring to yield more representative
results without requesting permit
modifications. (The generbl requirement
that monitoring be representative now
appears in 122.7. applicable to all
programs).
Other provisions of proposed § 122.71
appear in final § 122.62(1). CertaIn ,
changes have been made in this
paragraph to correspond to the Agency’s
policy concerning the use of test
methods which are approved under 40
CFR Part 136 and which are used in the
development of effluent standards and
limitations. Specifically, the final
regulations state that permits must
require monitoring using test methods
approved under 40 CFR Part 136. for all
pollutants having approved test
methods, and that permits must specify
a test method to be used In monitoring
for pollutants not having approved test
methods. (Approved test methods
include any alternate test method
approved by the procedures In 40 CFR
Part 136: therefore the additional
language in proposed § 122.71(b)(1) Is
unnecessary and is deleted.) The major
change from the proposal Is the deletion
of the requirement that the Director
specify monitoring test methods to
correspond to the test methods used In
developing effluent limitations.
proposed § 122.71(b)(3) and (4). This
requirement hasbeen deleted because It
Is not always appropriate to constrain
the choice of monitoring methods to
those used In developing effluent
guidelines. Additional provisions in the
proposal which required the permit to
specify any test methods and sampling
frequency required by standards or
guidelines (proposed H 122.71(b)(3), (4),
and 122.71(c)) have been deleted
because the general requirements of
O 122.62 that permits correspond to
standards and guidelines will ensure
that these requirements (which are
unusual In standards and guidelines)
wilFbe incorporated into the permit.
The final regulations retain the
proposed provision allowing the
Director to specify monitoring
requirements for pollutants reported in
the application form but not limited in
the permit The proposal appeared in
Part Ill of the June 14. 1979 Federal
Register (44 FR 34393) as a part of the
proposed consolidated application
forms. Final 0 122.62(I)(1)(lll) retains the
provision as one example of additional
monitoring requirements the Director
may specify in the permit.
The requirement for specifying in
permits a schedule for submitting
monitoring results, alluded to in
proposed § 122.14(d) but inadvertently
dropped from proposed Subart D, now
appears In 0 122.62(i)(2) and follows the
requirement that the minimum frequency
be once per year, with certain
discharges requiring more frequent
reporting, as in the final NPDES
regulations published on June 7, 1979
(0 122.23(a), 44 FR 32910).
(8) Section 122.62(j) contains the
requirement for permits to require a
pretreatment program from POTWs.
Minor wording changes have been made
from proposed § 122.69(d). Other parts
of proposed 0 122.69(d) are incorporated
In § 122.61(b). -
• (9) Best management practices. The
comment following the requirement for
permits to contain management
practices (proposed § 122.89(g). now
§ 122.62(k)) has been deleted as
unnecessary however, the examples of
management practices are still
applicable, it should be noted that
separate requirements for developing a
Best Management Practices program are
contained in Part 125. Subpart IC.
(10) “A nfl-backsliding. “Proposed
0 122.88(I) (now 0 122.62(1)) reflects
EPA’s “antl.backslldlng policy” as
initially modified In the NPDES
regulations. This policy prohibits the
renewal or reissuance of NPDES permits
containing interim effluent limitations
less stringent than those imposed in the
previous permit. The three exception.
applied only when both (1) the previous
permit limitations were made on a case.
by-case basis under section 402(a)(1) of
CWA in the absence of promulgated
effluent guidelines, and when (2) the
subsequently promulgated effluent
guidelines were less stringent
Numerous comments were received
asserting that the provision was unduly
restrictive. One cornmenter noted that
the proposed regulation could be
construed to “lock” dischargers into
maintaining a fixed treatment effldency
even when maintenance of that
efficiency level was not necessary to
comply with applicable effluent
guidelines. EPA reconsidered the “anti-
backsliding” rule and has added two
new exceptions. The first. § 122.82(l)(4).
explicitly states what was implicit
before: less stringent limitations may be
appropriate when there has been a
material and substantial change in the
circumstances on which the previous
permit was based which would
constitute grounds for permit
modification or revocation and
reissuance. The second new exception
to the rule, § 122.62(l)(5), allows
reducing permit limitations to
correspond to subsequently-
promulgated guideline limitations when
Increased production significantly
reduces treatment efficiency. This
exception will. In effect, allow
dischargers that have constructed
treatment facilities which are capable of
treating increased discharges resulting
from a substantial increase in
production to take advantage of this
“banked” treatment efficiency as long as
doing so will still allow them to meet
permit limits based on subsequently
promulgated effluent guidelines.
(11) Privately owned treatment works.
Discharges of pollutants are within the
jurisdiction of CWA whether they are
made directly or indirectly into
navigable waters. See United States v.
Granite State Packing Co., 343 F. Supp.
57 (D.N.H. 1 72), off’d. 470 F.2d 303 (1st
Cir. 1972). Some dischargers. however,
arrange for other private companies to
treat their wastes before discharge into
navigable waters. Although all these -
dischargers technically require NPDES
permits under CWA. controls usually
are most appropriately applied at the
point of freiitment. In recognition of this
fact and in response to comments
critical of a requirement that users of
privately owned treatment works obtain
NPDES permits. EPA has made several
changes that affect these users. We have
added a new subparagraph (m) to
authorize the permit writer to include in
the permit issued to a privately owned
treatment works any conditions
expressly applicable to any user, as a
limited co-p srmittee. that may
reasonably be necessary to ensure
compliance with applicable
requirements of the NPDES program. For
example. a permit issued to a treatment
works might require each user to notify
the Director if it begins or expects to
begin to use or manufacture a toxic
pollutant not reported ‘in the permit
application. The permit writer
alternatively may issue separate permits
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Federal Registez / Vol. 45. No. 98 / Monday, May 19, 1980 / Rules and Regulations
to the treatment works and to the users,
or may require any user to submit Its
- own permit application. The Director’s
decision to (1) Impose no conditions
applicable to the users. (2) Impose
conditions on one or more users. (3)
Issue separate permits, or (4) require
separate permits. and the basis for the
decision, must be Included In the fact
sheet prepared for the draft permit. This
disa eUonary authority should provide
the Director sufficient flexibility both to
ensure compliance with applicable
standards and limitations and to
minimize any administrative burdens.
Proposed § 122.64 has been amended by
adding a new provision (now
122.53(d)(3)) that requires the privately
owned treatment works to Identify In Its
permit application all users of the
treatment works. Sections
122.51(c)(2)(b)(ii) (amending proposed
122.63(a)) and 122.53(a) (proposed
122.64(a)) exclude users from having to
apply For and obtain a permit, except as
the Director otherwise may require
under 122.62. Finally. EPA has
amended proposed § 124.ll(b)(1) to add
a new subparagraph (now
§ 124.10(c)(2)(v)) to require that public
notice of permits be sent to users
identified in the permit application
submitted by the privately owned
treatment works. These requirements
apply prospectively, so that only after
the effective date of these regulations
will privately owned treatment works
have to identify their users in their
permit applications and permit writers
be required to choose whether to impose
permit conditions or application
requirements on such users under
§ 122.63(m). (Of course, permit writers,
in appropriate cases. may determine
that It is unnecessary to impose any
permit requirements on the users of the
treatment works.) Existing permits held
by privately owned treatment works.
however. may contain conditions
applicable to their users (whether or not
the users are Identified in the permit).
Permitting authorities will continue to
enforce those conditions. See the
Decision of the General Counsel No.43
(Friendswood Development Company).
§ 122.83 Calculating NPDES permit
conditions.
(1) Section 122.63(b) sets requirements
for calculating permit limits on the basis
of the actual production of the facility,
The regulation has been reworded with
no substantive change from the
proposed 122.70(a)(2), Including the
comment Additionally EPA has now
specified that the time period for the
production must correspond to the time
period for the permit limit. For example.
permit limits usually are written for a
maximum daily discharge. and an
average monthly discharge which I.
usually lower by a factor of 1.5 or 2.
Therefore, a one.month production
figure should be used to calculate the
average monthly discharge limitation, or
a one-day production to calculate the
maximum daily limitation.
(2) Paragraphs (c), (d). and (e). have
been reworded from the proposal with
no substantive change. The definitions
In proposed 122.70(c) have been
rewordedsomewhat and moved to the
definitions section.
The definitions of “average monthly
discharge limitation.” “average weekly
discharge limitation.” and “maxImum
daily discharge limitation” all use the
terra “daily discharge.” which Is also
defined. This has allowed the
elimination of duplicate wording In the
definitions and has made the terms more
nearly parallel.
(2) Paragraph 122.63( l ) (proposed
* 122.70(c) and (d)) now provides permit
Issuers greater flexibility In using
concentration limits. Whenever
appropriate, permits may Include a
concentration limit in addition to a mas
limit. Limitations expressed exclusively
In terms other than mass may be used
(1) when applicable effluent guideline
limitations are expressed other than in
mass: (2) when on a case.by.case-basls
the mass of the discharge cannot be
related to production or other measures
of operation, and dilution will not be
used as a substitute for treatment: or (3)
for pH or other pollutants which cannot
appropriately be expressed as mass. For
example, total suspended solids
discharges from certain mining
operations may be unrelated to
measures of operation. Finally, a permit
can always contain a non-mass limit in
addition to a mass limit, and the
perinittee must comply with both.
(3) § 122.63(i) (proposed 122.70(i))
concerns requirements for placing
limitatIons on internal waste streams.
The provision now requires the permit
writer to include in the fact sheet under
* 124.56 the unusual circumstances
which require the imposition of such
limits. This requirement will ensure that
the permittee and other interested
persons will be able to Judge the reasons
why such limitations, which are to be
imposed only In exceptional
circumstances, are being used in each
case.
I 12264 Duration of certain NPDES
penniEs.
This requirements section has been
modified bydeleting the dates in
proposed Appendix A and replacing
them In the body of the regulation with
the single date of June 30. 1981. The
reasons for this change are disc
the preamble to § 122.62(c).
In
1 12286 New sources and new
dischaiyers.
(1) Paragraph 122.66(d)(2) (propos ’.-
I 122.81(d)) governing exclusions from
the protection period has been modified
slightly to clarify that the Director may
Impose any permit limit in conformance
with 125.3 on a toxic pollutant or
hazardous substance not controlled by
new source performance standards
during the protection period, thus
Including limits Imposed on a case-by-
case basis as well as those required by
effluent guidelines.
(2) Proposed 122.81(d)(3) (now
§ 122.66(d)(3)) required that permittees
with a 10 year “protection period”
pursuant to § 122.81(d)(1) be In
compliance with all applicable
requirements immediately upon the
expiration of the protection period.
Some commenters were concerned that
when new requirements were
promulgated a short time before the
expiration of the protection period this
section could force dischargers to shut
down pending construction of treatment
facilities necessary to achieve
immediate compliance. EPA recognizes
this concern and has revised fine’
I 122.66(d)(3) to allow additlone
for compliance, but only when
necessary to comply with requireit
promulgated less than 3 years befor -
expiration of the protection period. This
three-year period parallels the
- requirements of sections 301(b)(2)(D)
and (F) of CWA. which allow
dischargersup to three years to comply
with certain newly promulgated effluent
limitations.
(3) An additional change to proposed
* 122.81(d)(4) (now I 122.66(d)(4)) allows
new dischargers which commenced
discharge before August 13, 1979 (the
effective date of the June 7, 1979. NPDES
regulations) to qualify for schedules of
compliance. (See further discussion In
the preamble to I 122.10(a).)
(4) Some commenters seemed
confused about the distinction in
proposed I 122.81(b) (now § 122.68(b))
between construction that creates a new
source at the site of an existing source
and construction that only modifies the
existing source. Therefore, we have
clarified paragraphs (b)(1) and (b)(2) to
emphasize that construction of a new
source requires construction of a new
building, structure, facility, or
installation. Construction that alters,
replaces, or adds to existing proc’- -
production equipment without c
these separate. physical entities
merely a modification subject to
I 122.15. For example, the construction
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Federal Register / Vol.45 , No. 98 / Monday. May 19 , 1980 I Rules and Regulations
33343
of an additional digester within an
existing building at a pulp mill to
Increase plant capacity would be a
modification, whereas the construction
of a separate building to produce
Inorganic chemicals kt the site of an
existing organic chemicals plant would
create a new source.
(5) Section 122.66(c) (proposed
122.81(c)) contains several minor
changes to conform to the Council on
Environmental Quality’s regulations for
Implementing the procedural provisions
of NEPA, 40 CFR Parts 1500-1508. Those
regulations Include a requirement that
agencies prepare a finding of no
significant impact. rather than issuing a
“negative declaration” where an
environmental assessment has been
prepared which Indicates that an
environmental Impact statement (EIS) Is
not needed. Thus the final section
substitute. the phrase “finding of no
significant Impact” where the proposal
required a “negative declaration.”
Section 122.66(c)(4)(ii) (proposed
I 12Z.81(c)(4)(ll)) barred on-site
conitruction for new sources for which
an EIS was not required until 15 days
after issuance of a negative declaration.
This paragraph has been changed to
state that on-site construction shall not
commence until 30 days after issuance
of a finding of no significant Impact, to
allow for public comment in line with
CEQ’e NEPA regulaticns at 40 CFR
1 1501.4(e), and EPA’s regulations
Implementing CEQ’s regulations at 40
CFR 18.400(d). CEQ’s regulatIon ., 40
CFR I 1501.4(e). provide in certain
circumstances that no action shall be
taken until 30 days following the
issuance of a finding of no significant
impact to allow for public review. EPA
baa decided that this rule shall apply in
all cases where a finding of no
significant impact has been issued, in
line with the public review procedures
for final environmental Impact
statements. -
Proposed *222.72.
Proposed I 12222, which contained
NPDES noncompliance reporting
requirements, has been moved to
1 122.ia The substance of the proposed
section has not changed. All of the
noncompliance reporting requirements
for each program have been
consolidated In I 122.18.
Proposed I 122.83.
EPA has deleted § 122.83 of the
proposal, “Special considerations under
Federal law.” However, EPA-Issued
NPDES permits must still reflect
requirements of other applicable Federal
laws or regulations under section
301(b)(1)(C) of CWA. as incorporated In
, 122J1(g)(5). In addition, all EPA-
issued permits must reflect requirements
of other Federal laws or regulations, as
listed In I 122.12 and as further
discussed In the accompaning preamble
discussion.
Appendices
New appendices have been added
(and modifications have been made to
Appendix A, discussed in the preamble
to I 122,62(c)). Appendix B lists criteria
for concentrated animal feeding
operations under I 122.54 and Appendix
C lists criteria for concentrated aquatic
animal production facilities under
- I 122.55. Appendix D lists several tables
of pollutants required to be tested by
existing Industrial disahargers under
I 122.53(4), discussed in the preamble to
the consolidated application forms
elsewhere In today’s Federal Register.
Table Vfl.—Relationshlp of June 7 Part
122 to Today’s Regulations
Summary of Changes from Port 122 of
the June 7 Regulations -
EPA has developed the Table VII for
use by readers who are familiar with
Part 122 of the final NPDES regulations
published on June 7, 1979 (44 FR 32854).
The table shows the new numbering of
each section of Part 122 of the June 7
regulations, and shows what chaftges,
additions, and deletions have been
made to the paragraphs and
subparagraphs of each section. We hope
that this table will provide a guide to a
more detailed examination of the
changed regulations themselves. The
table Is organized as follows:
• The first column lists each
paragraph or subparagraph of the June 7
regulations In order.
• The middle column, in the first
phrase, gives the subject of the June 7
paragraph or subparagraph In a few
words. The second phrase gives a
summaiy indication of changes from the
June 7 regulations.
• The lost column lists the paragraphs
or subparagraph. of today’s regulations
corresponding to the contents of the
paragraph or subparagraph of the June 7
regulations In the first column.
• Each June 7 section heading (for
example, Purpose and scope) Is listed
separately and italicized. At the end of
each June 7 section, any additional
paragraphs In the corresponding section
of today’s regulations are listed. A blank
in the first column Indicates that the
paragraph is competely new, A
bracketed reference to a paragraph of
the June 7 regulations In the first column
Indicates thai the paragraph has been
moved Into the corresponding section of
today’s regulations from some other
section of the June 7 regulations. In both
instances no explanation appears In the
second column. This is because the
bracketed June 7 paragraph is also
listed, and explained, In the place where
It originally appeared, and because
completely new material Is fully
addressed In this preamble. These two
devices ensure that all additional
changes and reorganizations pertaining
to a section of the June 7 regulatIons are
noted at th e end of the section.
siu.nia coos isis-ct—n
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Federal Register I Vol. 45, No. 98 I Monday May 19, 1980 I Rules and Regulations
TABLE VI I
REEATICNSHIP OF JUNE 7 PAgr 122 ‘10 10D Y’S REZU1ATIQ S
June 7 Paragraph ‘ 1bday’ a Paragraph
Nuther Subject and Any thanes Nuirber(s )
S122.1 Purpose and scope S122.l, S122.2,
S122.5] .
S 122.l(a) Coverage of NPrES. S122.l(a)(iii)
rded, no substahtive
change
§122.1(b) Coverage of 122, 123, 124. S122.1(b)
Reworded, no substantive
change
S122.l(b)(3) Coverage of 125 by States. S123.7(d)
Moved to Part 123
S122.l(c) Permits 1i p1eient the law.
Deleted, duplicates other
provisions
S122.l(d) Permits issued by RA or State
Director.
Deleted, duplicates
definitions
S122.1(d) R and State Director include
[ Caist nt] delegees.
Deleted, duplicates
definitions
§122.2 Law authorizing NPDES permits. S122.51.
Minor wording changes
S122.2(a) 301(a) of CWA. 5122.5 1(b)(i)
Minor wording changes
S122.2(b) 402(a)(l) of CWA. S122.51(b)(2)
Minor wording changes
S122.2(c) 318(a) of §122.51(b) (3)
Minor wording changes
S122.2(d) 405 of cw . S122.51(b)(4)
Minor wording changes
S122.2(e) 402(b), 318(b) & (C), 405(c) of CWA. S122.5l(b)(5)
Minor wording changes
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Federal Register I Vol. 45. No. 98 / Monday. May 19, 1980 / Rules and Regulations 33345
TABLE VII
REL fl 1SRIP OF JUNE 7 PA1 122 TO 1OE Y’S REGULATI AS
(Continued)
June 7 Paragraph Today’s Paragraph
t&inter Subject and Any thanges Mmiber(s )
S]22.2(f) 404 of CWA. §123.1
Moved to Part 123
§122.2(g) 304(i) of CWA. S122.51(b)(6)
Minor wording changes
S 122.2(h) 501(a) of CWA. S 122.51(b)(7)
Minor wording changes
§122.2(i) 101(e) of CWA. S122.51(b)(8),
Minor wording changes S 122.1(e)
S122.3 Definitions §122.3, No longer with
paragraph numbers
S122.3 Other ter defined in O A. S122.3
(Ca ent] Minor wording changes; oa ent
in rporated
S122.3Ca) “Act” CWA used instead
Deleted, CWPt used instead
§122.3(b) “Administrator” 5122.3
Added: “or an authorized
representative”
§122.3(c) “Application” S]22.3
Minor wording changes
S122.3(d) “Applicable standards and S 122.3
limitations”
Minor wording changes
5122.3(e) “Approved State program” $122.3
Most of definition deleted
S122.3(f) “BMPs ” . 5122.3
Minor sording changes;
cai ined with 404
5122.3(h) “Direct discharge” $122.3
Minor wording changes
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33346 Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations
TABLE ‘111
RELATI 1SHIP OF JUNE 7 PAR!’ 122 ‘10 TODP X ‘S REZUL TIC} S
(Continued)
June 7 Paragraph TOday’s Paragraph
Nuirber Subject and Any thanqes Nuitter(s )
S122.3(i) ‘Director’ S122.3
C nt incorporated into text
§122.3(j) ‘Discharge” S 122.3
Minor wording changes
§122.3(k) ‘Discharge of a pollutant” S 122.3
Minor wording changes
§122.3(1) ‘UIR ” §122.3
Minor wording changes
§122.3(m) ‘Effluent limitation” S122.3
Minor wording changes
§122.3(n) ‘Enforcement Division Director”
leted as duplicative
S 122.3(p) “Indirect discharger” S122.3
Minor wording changes
§122.3(q) ‘Interstate agency’ S122.3
Minor wording changes
§122.3(s) ‘NPDES ” S 122.3
Added: ‘pretreatnent”
§122.3(t) ‘Navigable waters”
Term is-deleted: minor wording
changes for definition of “waters
of the United States”
§122.3(u) ‘New discharger’ S 122.3
Includes indirect discharger
switching to direct discharge, and
nobile point sQirces which nove
(e.g., drilling rigs)
S122.3(v) ‘New source” S 122.3
Minor wording changes; caiment
deleted
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- Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33347
TABLE ‘/11
REIATIQ SHIP CF JUNE 7 PA 122 TO 1IODAY S RFXIJLMIQ4S
(Continued)
June 7 Paragraph ‘Dx3ay’s Paragraph
Minter Subject arx Any thanges Number(s )
S]22.3(w) ‘Permit’ 5122.3
Reworded; includes general permit;
excludes draft arxI pr osed permits
S]22.3(x) i42.3
Reworded, no substantive change
S]22.3(z) Po llutant ’ S122.3
Minor wording changes; eciTuent
in r rated into note
S122.3(aa) ‘Process wastewater’ S122.3
Saiie
s122.3bb) ‘P01W’ 5122.3
Reworded, no substantive change
S122.3(cc) ‘Regional Administrator’ 5122.3
Minor wording changes
S122.3(dd) ‘Schedule of p1iance ’ S 122.3
Minor wording changes
S122.3(hh) ‘State’ 5122.3
Minor wording changes
5122.3(u) ‘State Director’ 5122.3
Minor wording changes
5122.3(jj) ‘Variance’ S122.3
Added: n includes nodifica—
tions of tine deadlines
5122.3(kk) ‘Waters of the United States’ 5122.3
N defined; wording changes,
clarifying treath nt pon
exclusions
(S122. 16(c)(3)J ‘Average nonthly discharge Sl22.3
limitation’
(S122.16(c)(4)J ‘Average weekly discharge 5122.3
limitation’
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33348 Federal Register I Vol. 45. No. 98 I Monday, May 19, 1980 / Rules and Regulations
TABLE VII
RET.ATICZ SHIP OF JUNE 7 PARE 122 ¶0 !IODAY’S R UrJ TIQ S
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject and My thanges Number ( s )
(S122.16(c) (1)] “Continuous discharge” S122.3
“Daily discharge” S122.3
“Draft permit” S122.3
“Effluent limitations guideline” S 122.3
“Facility or activity” S122.3
“General permit” 5122.3
“Hazardous subetance” S122.3
“Major facility” S122.3
[ 5122.16(c)(2)] “Maximum daily discharge limitation” 5122.3
“Owner or operator” §122.3
“Primary industry” S122.3
“Privately owned treath nt ii rks” §122.3
“Proposed permit” §122.3
“Rec iu ncing discharger” §122.3
“Se ndary industry” §122.3
“Site” 5122.3
“State/EPA Agre ient” Sl22.3
“Toxic pollutant” §122.3
[ 5122.3(t)(6)J “Wetlands” S 122.3
§122.4 Exclusions §122.51(c) (2)
5122.4(a) (1) Sewage fran vessels. Sl22.51(c)(2)(i)
Added: when secured to a storage
or seafood facility
5 122.4(a)(2) 404. S122.51(c)(2)(ii)
Sane
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Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 f Rules and Regulations 33349
TABLE VII
RELATIQ4SHIP OF JUNE 7 PAJ r 122 TO TODAY’S R ULATIQ4S
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject and Any Changes Number(s )
5122.4(a) (3) Indirect dischargers. S122.5 1(c)(2)(iii)
Part of ii nt inaxporated
S]22.4(a) (4) Silvicultural. S122.51(c) (2) Cv)
Minor wording changes
S 122.4(b) State regulation not precluded. S122.l(f)
Minor wording changes
Inclusions — a specific list. S122.51(c)(1)
Exclusions — ordered—by on—scene S122.5l(c)(iv)
coordinator.
Exclusions — irrigation return flows. 5122.5l(c)(vi)
S122.5 Signatories 5122.6
5122.5(a) Permit applications. 5122.6(a)
Sane
S122.5(b) Reports; authorization. Sl22.6(b)
dded: a position can be S
authorized
S122.5(c) Changes to authorization. 5122.6(c)
Reworded: submitted prior to or
together with reports
S 122.5(d) Certification. S 122.6(d)
Same; ca!ment deleted
S122.5(e) Applicable to States.
Still applicable to States; ney
adopt equivalent language, taken
care of in general provisions of
Part 123
§122.10 Application for a permit S122.4, §122.53
5122.10(a) Who Imast apply. . S122.4(a), §122.53(a)
Minor wording changes
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33350 Federal Register f Vol. 45. No. 98 / Monday. May 19, 1980 f Rules and Regulations
TABLE VII
PELATI 4SHIP OF JUNE 7 PA1 r 122 ‘10 ‘ 1ODAY’S RD ULM’IC S
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject az Any thanges Number(s )
S 122.1O(b)(l) Reapplication when increase discharge.
Deleted — n i grciinds for
nodification, Director may require
new application, see §124.5
Sl22.1O(b)(2) Expiring permits — 180 day rule. S122.53(c)
Sane for PO’1 S; reworded:
phasing—in for new application
forns
§122.10(c) New discharger. §122.53(b)
Minor wording changes
Who applies? §122.4(b)
Operators must apply
[ S122.11(a)i Cat pleteness. S 122.4(c)
Permit can’t be issued until
application is ccxnplete, to
Director’s satisfaction
Information requirenents. Sl22.4(d)
-Lists information required in
Form 1
Re r keep1ng. §122.4(e)
Requires applicants to keep data
used for applications for three
years
Information requirenents for §122.53(d)
existing industrials.
Lists information required in
Form2c
Information fran animal feedlots & §122.53(e)
fishfarms.
Lists information in Form 2b
Information fran PoiWs JReserved]. Sl22.53(f)
Will list information in Form 2a
Information fran new industrials §122.53(g)
[ Reserved].
will list information in Form 2d
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Federal Register 1 Vol. 45. No. 98 I Monday. May 19, 1980 / Rules and’Reguia :ions 33351
TABLE VII
RELATIQ4SHIP OP JUNE 7 PART 122 TO 1VD Y’S RD3UL.ATIQ JS
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject and Any thanges Number(s )
tS124.12] Special provisions for new sQlrces. S122.53(h)
Minor wording changes
(S 124.51(a),(b)) Variance requests by non—POIWs. S122.53(i)
Reworded, no sul:stantive change
(S124.51(a),(c)] Variance requests by POIWs. 5122.53(i)
Reworded, no substantive change
(5124.51(d)] Expedited variance procedures. S 122.53(k)
Reworded, tliie specified after
notice is received (instead of
before draft permit is formulate&)
added: draft or final permit may
contain alternative limitations;
cum nt deleted
5122.11 Permit issuance, effect of a permit 5122.13
S122.11(a) Application pleteness. S122.4(c)
Reworded, no substantive change
5122.11(b) Final EPA action. S124.19
Incorporated into 124
5122.11(c) Cavpliance is oxipliance with CWA. S122.13(a)
Minor wording changes
S122.ll(d)(l) Issuance does not convey rightsor 5122.13(b)
privileges. -
5 122.1l(d)(2) Issuance does not authorize injury. 5122.13(c)
Reworded 1 no substantive change
S122.1l(d)(3) Issuance does not preempt State law.
Deleted as redundant
S122.12 D.iration, continuation, transfer 5122.5, 5122.9,
S122.14, S122.64
5122.12(a) I iration. S122.9(a)
Reworded; unodification etc.
deleted as redundant
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33352 Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations
TABLE VU
REIATIQ4SHIP OF JUNE 7 PARE 122 TO WD1 Y’S RUL 1 ArICVS
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject and Any thanges Number Cs )
S122.12Cb)(]) Continuation by EPA. §122.5(a)
Minor wording changes
S 122. 12(b)(2) Effectiveness of continued permits. §122.5(b)
Minor wording changes
S 122.12(b)(3) forcexrent of continued permits. 5122.5(c)
Reorganized, no major
changes
S 122.12(b)(4) Continuation by States. §122.5(d)
Minor wording changes
S 122. 12(c) Short—term permits. S122.64
All dates in Appendix A are
June 30, 1981; rearrang nt and
wording changes; parts of cc nts
deleted or noved to S122.62(c); no
BAT permits without toxi data.
Sl22. l2Cd) Transfer. 5122.14, 5]22.7(1)(3)
Reworded: autamatic transfers
under conditions similar to
§1.22.12(d); otherwise, permit must
be nodified to transfer
5122.13 Prohibitions §122.52
§122.13(a) Non 1iance with CWA. §122.52(a)
Minor wording changes
§122.13(b) No State c. rtification. S122.52(b)
Minor wording changes
§122.13(c) Regional Administrator objects. S122.52(c)
§122.13(d) Nonattainment of water quality of S122.52(d)
States.
Mi ior wording changes
5122.13(e) Impairing navigation. S122.52( )
Same
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Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 I Rules and Regulations 33353
TABLE VU
RELATIC 4SHIP OF JUNE 7 PARE 122 TO TODAY’S R ULATIQ’JS
(Continued)
June 7 Paragraph ‘Today’s Paragraph
Number Subject and Arty Changes Number(s )
S 122. 13(f) Radiological waste. S122.52(f)
Sane
5122.13(g) Inconsistent with 208 plan. 5122.52(g)
Minor wording changes
§122. 13(h) Ocean discharqe. S122.52(h)
Minor wording changes
§122.13(i) Violation of water quality. S122.52(i) and (j)
Change to prchibit any discharge
violating water quality standards;
new sa.irce must demonstrate
sufficient allocation before close
of public period, need not
‘prove uentitlenentu
S 122. 14 Conditions applicable to all permits 5122.7, 5122,60,
Incorporation by reference 5122.61.
requires specific cite.
S 122.14(a) (Application—based limits]. 5122.61(a)
(Reservedj Existing dischargers must notify
Director if they exceed five—tis es
levels reported in the application
5122.14(b) lAity to ply. §122.7(a)
Reworded, no substantive change
5122.14(c) Permit may be modified. S122.7(a), §122.7(f)
Added: filing of a modification
request does not stay conditions
§122.14(d) TOxic standards or prchibitions 5122.60(a)(l),
Cc*rinent into standard permit ter s, S122.15(a)(5)(ii),
S122.60(a)(l); requirenent to S122.62(b)
modify into modification 5122.15
and into S122.62
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83354
Federal Register F Vol. 45, No. 98 1 Monday, May 19. 1980 / Rules and Regulations
TABLE VII
RELATI 1SHIP OF JUNE 7 PA1 r 122 TO TODAY’S REGULATIC1 S
(Continued)
June 7 Paragraph
Number
Subject and Arty thanges
Today’s Paragraph
Number(s)
Reporting requireTents.
No longer tied to causes for
ncdification; causes spelled out
individually; Director’s right to
request application in nodification
CS124.5)
ccçying, etc.
changes
Operate efficiently.
Added: requires badcup equi Tent
only to uuply with permit; minor
wording changes
Non Tpliance reporting.
Extensively rearranged, sate
substantive changes.
Added: permits must specify
24-hr. pollutants, others not
reported; planned changes and
anticipated non-caitpliance in
advance
§122.7(l)(2), (l)(6),
(l)(7),
5122.60(f) (3),
5122.62(g)
§122.14(i)
S122.]4(j)
S122. 14(k)
Dity to minimize impact of
ncri xiapliance.
Minor wording changes
IXity to halt activities.
In 5122.7; not a defense against
enforcenent, §122.60; minor
wording changes
Bypass.
Rearranged, no substantive change
§122.7(c), 5122.60(b)
S 122.14(l)
Upset.
Ccawent partially in rporated,
no substantive change
S122.60(h)
§122.14(e)
§122.14(f)
5122.14(g)
5122.14(h)
Right of entry,
Minor wording
S122.7(1)
S122.7(i)
5122.7(e)
5122.7(d)
5122.60(g)
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Federal Register / Vol. 45. No. 98 / Monday, May 19. 1980 / Rules and Regulations
33355
TABLE VII
RELATIa4SHIP OF JUNE 7 PARE 122 WIOD Y’S REXUIATICt 1S
(Continued)
June 7 Paragraph
N .miber
Subject and Any thanges
day’s Paragraph
Number (s)
tS122.l0(a) 1
(5122.11(d)]
1S 122.20(b)12)]
(5122.21(b)]
1S122.5(a)J
(S122.31(e) (1)]
15122.12(d) (1)]
(S122.22(a)J
(5122.22(c)]
1S122.31(d) (2)]
5122.7(b)
5122.7(g)
S122.7(h)
5122.7(j) (1)
S122.7(j) (2)
§122.7(k)
5122.7(1) (1)
5122.7(1) (3)
5122.7(1) (4)
5122.7(1) (5)
5122.7(1) (7)
5122.60(a) (2)
§122.60(c) (1)
§122.60(c) (2)
5122. 60(d)
5122.60(e)
§122.60(f)
S122.61(a)
S122.61(b)
Ility to reapply.
,Permit does not convey property
rights.
Ility to provide information to the
Director.
Monitoring must be representative.
Retaining records of mnitoring.
Signatory requiremants.
Reporting planned changes.
Reporting transfers,
Reporting ntnitoring results.
Reporting cxxpliance with
construction schedule.
Reporting other information
previously reported falsely.
Listing of civil & criminal
penalities.
Monitor using 40 CFR 136.
Penalties for falsifying mnitoring.
Penalties for false statenents.
Monitorihg reports.
24—hr. reporting for upset’ & bypass.
Application—based notification.
Ned users reporting by PO’Ihs.
(5122.20(c))
(5122.20(f) ]
15122.2 1(c),
S122.22(d) I
(5122.22(a), (b);
122.16(c)]
15l22.14(k)(2) (iii),
S122.14(1)(3)(iii)]
(5122.15(d) (1)]
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33356 Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations
TA& E VII
RELhTICI SHIP OF JUNE 7 PAI 122 TO WDY’S R ULATI S
(Continued)
June 7 Paragraph lt,day’s Paragraph
? &nther Subject and Any thanges I&imber(s )
S122.15 Applicable limitations and S122.8, $122.62
standards
$122.15 App1icab1e requirenent. S 122.8(b)
Minor rding changes
§122.15(a) Effluent limitations and standards. S122.62(a),(b)
Clarifications, separation of
technology-based a i x ] other
standards; including new sources;
no substantive changes
S122.15(b) Short—tecn permits; re ener clause. S122.62(c)
All dates in Appendix A are June 30,
1980, conforming changes here; -
recpener clause r only rewens
permit to include guidelins, not
all requirenents of O A
§122.15(c) New source performance standards. S 122.62(a)
Wording cnanges, incorporated
into technology—based standards
section, no subs .antive changes
§122.15(d) (1) LW notice of new users. S 122.61(b)
Moved to standard permit
conditions, o ent incorporated
Sl22.15(d)(2) IW pretreat nt program. S122.62(j)
Minor wor]ing changes
S122.15(e) P01W grant requirenents. S 122.62(n)
Canient deleted
S 122.l5(f)(l)—(9) Additional water quality standards. $]22.62(d)(l)—(9)
Minor wording changes
S122.15(f)(10) T chnology—based case-by—case limits. S122.62(a)
Incorporated into 5122.62(a)
S122.15(f)(3) State certification. S122.62(d)(3)
Added: if certification is
stayed, conditions under O A
section 301(b) (1) (C)
-------
Federal RegI8ter I VoL 45. No. 98 I Monday. May 19. 1980 f Rules and Regu! tions 33357
TABLE VII
RELATICNSHIP OF JUNE 7 PA1 2 122 TO TODAY’S R ULNrI(2 S
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject and Any thanges NLmtber ( s )
S122.15(g) Best management practices. S122.62(k)
Cceuient deleted
S 122.15(h) Sewage sludge. §122.62(0)
SaTe
S122.15(i) Reissued permits with no less §122.62(1)
stringent limits.
?à3ed: changes in circumetances
allows less stringent limits;
increased production leading to
reduced treatment efficiency
§122.15(j) Vessels — Coast Guard regulations. §122.62(p)
Minor wording changes
S122.15(k) Conditions for navigation. 5122.62(q)
SaTe
Incorporation of conditions by 5122.8(c)
reference.
Limits on toxic pollutants. S122.62(e)
Higher notification level. S122.62(f)
Indicators for 24—hr. reporting. 5122.62(g)
ES122.12(a)J Permit durations. 5122.62(h)
(5122.20(a)) Monitoring requirements. 5122.62(i)
Privately owned treabTent works. S122.62(m)
5122.16 Calculation of effluent limits §122.63
S122.16(a)(l) L,imits for each outfall. §122.63(a)
Reworded, no substantive change
S122.16(a)(2) Actual production limits for S122.63(b)(2)
non—POIWs.
Re jorded, ca Tent incorporated;
tine period for production sa as
t ir period for limits
5122.16(a)(3) Design flow limits for PYIWs. S122.63(b)(l)
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33358 Federal Register / Vol. 45..No. 98 I Monday. May 19. 1980 I Rules and Regulations
TABLE VI I
RELX ICt SHIP OF JUNE 7 PARI’ 122 TO ¶LO Y’S REZULATIC} S
(Conti ed)
June 7 Paragraph Today’s Paragraph
Number Subject and Any thanges Number(s )
S122.16(b) ToEal metals. 5122.63(c)
- Reworded, no subatantive change
S122.16(c) Maximum daily etc. limits. 5122.63(d)
Added: ‘unless Impracticable’
Canment added to §122.60(e)(3)
$122. 16(c)(1)—(4) t finitions. 5122.3
Put into definitions section,
scae rewording, no substantive
change
5122.16(d) Mass limits. §122.63(f)
Added: (1) mass—based limits
not reguired when case-by—case
production can’t be used; (2)
concentration-based limits all ed
in addition to mass—based 1imit ,
ar permittee must carply with
both
5122.16(e) Gross limits. S122.63(g)
Same
Sl22.16(f) Net limits. S122.63(h);
Reworded, no substantive 5122.15(a)(5)(iv)
change, also added to causes for and (a) (5) (v)
nodification (S122.15)
5122.16(g) Noncontinuous discharges. 1122.63(e)
§122.16(h) Limits on internal wastestreams. S122.63(i)
Added: the fact sheet must include
an explanation of why the limits are
necessary; ccnm nt incorporated
[ 5122.41] Disposal into wells, etc. 5122.63(j)
§122.17 Schedules of ccinpliance 5122.10
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Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 / Rules andRegulations 333 .
TABLE VII
REIATICZ ISHIP OF JUNE 7 PAI 122 W WD Y ‘S REGULNrIQ S
(Continued)
June 7 Paragraph Today’s Paragraph
N .m ber Subject and P ny thanges Number(s )
S122.17(a) Require azipliance ASAP and no later S122.l0(a) (11
than O A deadline.
Rearranged, no substantive change
S 122.17(b) Interim requir nents. S122.10(a) (3),
Interim dates required if S122.lO(a)(3)(Notel
canpliance is nore than 1 year
(instead of 9 nonths) away;
examples put in Note
S122. 17(b)(l) Tine between dates. S122.lO(a)(3)(i)
Tine between interim dates may be
up to 1 year (instead of
9 nonths)
5122.17(b)(2) Divide into stages; submit reports. Sl22.1O(a)(3)(ii)
Again, tine between interim dates
may be 1 year; no other change
S122. 17(c) Alternative schedules of ntpliance. S122.1O(b)
Re iorded, any termiriat ion
of discharge
S122. 17(c).(l) Termination after permit is issued. S122.1O(b)(1)
Minor wording changes
5122 ,]7(c)(])(i) Modification to include termination. S122.lO(b)(l)(i)
Reworded, no substantive change
S122.l7(c)(1)(ii) Terminate before miss any interim 5 122.1O(b)(l)(ii)
date.
Sate
5122.17(c)(2) Dacision before permit is issued. S122.1O(b)(2)
Reworded, no substantive change
S122.l7(c)(3) Alternative schedules. S122.lO(b) (3)
Added: .Djrector may nodify a
permit to include two schedules
(as well as issue a permit)
S122.17(c)(3)(i) Date for final decision. S122.lO(b)(3)(i)
Reworded, no substantive change
S122. 17(c)(3)(ii) Schedule leading to termination. S 122.l0(b)(3)(iii)
Reworded, no substantive change
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33360 Federal Regster / Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations
TABLE ‘111
RELATIaISHIP OF JUNE 7 PARE 122 ‘10 ‘ 10l Y’S. REGUIATIC1 S
(Continued)
June 7 Paragraph ‘1 day’s Paragraph
Number Subject and Any thanges Number(s )
-S 122.17(c)(3)(iii) Schedule leading to oonpliance. 5122.l0(b)(3)(ii)
Reworded, caiçliance must be
achieved as soon as possible
S122.-17(c)(3)(iv) Follow apprcpriate schedule after 5122.lO(b)(3)(iv)
decision.
Reworded, no substantive change
S122. 17(c)(4) Requirerrent to post a bond.
DEIE ED
S122.17(c)(5) Firm public cc4unitment. S122.1O(b)(4)
Reworded, cunm nt deleted; no
substantive change
§122.17(d) Director may ncdify caTipliance §122.15(a) (4)
schedule.
Reworded, noved to causes for
m3dification, no substantive
change
§122.17(e) iW innovative technology grants. 5122.15(a)(5)(xi)
Reworded, noved to causes for
nodification, no substantive
change
5122.17(f) No calTpliance schedule for new l22.1O(a)(2)
sources, etc.
Reworded, noved to first paragraph,
no major change
§122.20 Monitoring §122.7(j), S122.7(1)(4),
§122.11, §122.60(c),
S122.60(j ) (1),
§122.62(i) (1)
§122.20(a) Permits must oontath nonitoring §122.62(i)(l)
requireraents.
Reworded, no substantive change
§122.20(a)(1) Monitor for each pollutant limited. 5122.62(i)(1)(i)
Reworded, no substantive change
§122.20(a) (2) Monitor volune. Sl22.62(i)(l)(ii)
Reworded, no substantive change
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Federal Regiiter I Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations 333
TABLE VI I
RELATI SHIP OF JU 7 PARE 122 ‘ Lv ‘ LOD Y’S R UtATI 4S
(Continued)
June 7 Paragraph Today’s Paragraph
Ntmiber. Subject and Any thanges Number(s )
S 122.20(a)(3) Monitor otherwise. S122.62(i)(1).(iii)
R .’orded, added example of requir-
ing nonitoring for pollutants
reported in application, internal
wastestreams, and net limits
5122.20(b)(1) Permits must specify ntnitoring §122.11(a)
equipTent.
Minor wording changes
§122.20(b)(2) Monitoring frequency must be §122.11(b),
sufficiently representative. S122.7(j)(l)
Added: may require continuous
nonitoring; deleted specific
requirenent for Tiore frequent
nonitoring of variable effluents
(representativeness requirexrent
remains) other rewording; in
standard permit conditions, permittees
must take representative saiçles
S122.20(b)(3) Permits must specify nonitoring
methods.
Deleted as redundant
S122.20(c)(l) 40 CFR Part 136 listed or alternate S122.62(i)(iv),
approved methods must be used. S122.60(c)C1)
Pezinittees must use 40 CFR Part 136
methods or a method specified in
the permit
§122.20(c) (2) Director specifies a method in permit Sl22.62(i)(1)(iv)
- where no 136.
Minor wording changes
$122.20(c)(3) Director may specify guideline method.
DELETED -
5122.20(c)(4) Director must specify guideline method
if 40 CFR 136.
DELETED
§122.20(d) Sampling frequency shall be consistent
with guideline.
DELETED
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33362 Federal Register I Vol. 45, No. 98 I Monday. May 19. 1980 / Rules and Regulations
TABLE VII
RELATIQ SHIP OF JUNE 7 PARE 122 TO WD Y’S R UL TICVS
(Continued)
June 7 Paragraph !lbday’ s Paragraph
N nuber Subject and Any thanges Number(s )
§122.20(e) Permittee should request nore
frequent nonitoring.
DELZ ED
5122.20(f) Penalties for falsifying noñitoring. S122.60(c)(2)
Same, noved to standard permit
conditions
[ S122.22(a)J Reporting frequency. §122.11(c)
S122.2 1 Recording of nonitoring results 5122.7(j)(2),(j)(3);
§122.60(d)
§122.21(a) Records of Ilonitoring information. S122.7 )(3)
Deleted sand nonitoring activities
S122.21(a)(1) Date, place, and time of sampling. S122.7(j)(3)(i)
§122.21(a) (2) Samplers. 5122.7(j) (3) (ii)
Minor wording changes.
S] .22.21(a)(3) Date of analyses. 5122.7(j)(3)(iii)
Same
S122.21(a)(4) Analyzers. S122.7(j)(3)(iv)
Minor wording changes.
5122.21(a)(5) Analytical techniques. S122.7(j)(3)(v)
Same
§122.21(a) (6) Results. §122.7(j) (3) (vi)
Same
§122.21(b) Records and results kept for 3 years. S122.7(j)(2)
Added: all reports required by
the permit and application data;
at least 3 years fran the date
of the sample, measur ent,
or report; minor wording changes
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Federal Register I Vol. 45. No. 98 1 Monday, Ma 19, 1980 I Rules and Regulations
TABLE V I I
RELA IQ SHIP OF JUNE 7 PAI r 122 TO TODhY’S RD ULATIC1 S
(continued)
June 7 Paragraph Today’s Paragraph
NInT ber Subject and Any thanges Nimiber(s )
5122.21(b)(l) Three years autanatically extended § 122.7(j)(2)
during litigation.
Now Director must request extension
S122.21(b)(2) Three years extended by Director’s S122.7(j)(2)
request.
Minor wording changes
§122.21(c) Penalties for false stat nents. 5122.60(d)
Minor wording changes
§122.22 Reporting of n nitoring results by S122.7(1)(5),
§122.60(e),
§122.60(1) (5),
5122.60(d),
S122.62(i),
S122.10(a) (4)
§122.22(a) Permittees must use ttIR. §122.60(e)(1)
Minor wording changes
Sl22.22(a) ‘Reports at least once per year. S122.62(i)(2),
Now is duty of Director to specify §122.11(c)
in permit
S122.22(a) Permittee must report other data not
required by permit.
DEL FED
§122.22(a) Examples of reporting frequency. S122.62(i)(2)
(Cam nt) Most of ouiui nt deleted
§122.22(b) Perm ttee must report nore frequent S122.60(e)(2)
mnitoring.
Reworded, no substantive change
5122.22(c) Permittee must report mp1iance S122.7(1)(5),
with interim dates. 5122.10(a) (4)
orded, put in th standard
permit nditions and schedules of
o)Tpliance; no substantive change
5122.22(d) Penalities for false statenent. §122.60(d)
CQrbined with 5122.21(c) in
standard permit nditions
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33364 Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 / Rules and Regulations
TABLE VII
RELATIQ4SHIP OF JUNE 7 PAR2 122 W 1Ol) Y’S REGULATICX S
(Continued)
June 7 Paragraph Oday’s Paragraph
N .nnber Subject and Any thariges Number(s )
$122.23 lbnccsipliance reporting by the S122.18
Director
S122.23(a) State reports to Region; Regional $122.18, §122.18(e)
reports to HQ.
thanges: reports subritted to RA
(instead of Enforcemant Division
Director), Regional reports sub-
mitted by RA to EPA Headquarters
(instead of by Enforc nent Division
Director to EPA CWE)
S122.23(b) Reports of noncczipliance by majors. §122.18(a)
Reworded, no substantive change
S122.23(b)(l) Report failure to neet.. nstruction §122.l8(a)(2)
date.
Reworded, no substantive change
S122.23(b)(2) Failure to subsdt schedule reports. 5122.18(a)(2)(iii)
Cathined with failure to subTlit
ronitoring reports; minor wording
changes
5122.23(b)(3)(i) Non rp1iance with applicable S122.18(a)(2)(v)(A)
1L,u tations.
Keyed on violation of permit
(instead of applicable standards);
unless returned to cxxpliance
before 45 days after reporting
noncatpliance was due (instead of
or date when was dues)
S122.23(b)(3)(ii) Patten of non xmpliance. S122.18(a)(2) Cv) (B)
iorded, no substantive change
S122.23(b)(3) (iii) Significant non xip1iance. S 122. 18(a)(2)(v)(C)
Reworded, no substantive change
S 122.23(b)(4) Failure to report . Sl22.l (a)(2)(iii)
Crinbined with failure to submit
progress reports, minor wording
changes
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Federal Register / Vol. 45. No. 98 / Monday, May 19. 1980 I Rules and Regulations 33365
TABLE VII
RELPITIQ4SHIP OF’ JUNE 7 PAI 122 TO TODAY’S RFZUI) TICt S
(Continued)
June 7 Paragraph Today’s Paragraph
Number Subject and Any thanges Number(s )
S122.23(b)(4) Failure to report non liance.
Deleted as duplicative
S 122.23(b)(5) Deficient reports. S122.i.8(a)(2)(iv)
Reworded, no substantive change
S 122.23(b)(6) Modification of ca 1iarice schedule. S122.18(a)(2)(ii)
Reworded, reporting required when
schedule is ncdified
S122.23(b)(6) All nonoxnpliance reported until 5122. 18(a)(2)
(Cam nt] resolved.
Reworded, no substantive change
Sl22.23(c)(l) Information required in report. S122.18(a)(l)(iv)
Rearranged, no substantive change
S 122.23(c)(l)(i) Nama, location, permit number. S122. 18(a)(l)(iv)(A)
Same
S 122.23(c)(l)(ii) Date and description of noncompliance. S122.18(a)(l)(iv)(B)
Combined with requirement for a
single entry per permittee
(Sl22.23(c) 3)); minor wording
changes
S 122.23(c)(])Ciii) Date and description of Director’s S 122.]8(a)(l)(iv)(C)
actions.
S122.23(c)(l)(iv) Status of noncompliance. 5l22. 18(a)(l)(iv)(D)
Status as of date of review
(instead of date of action)
5 122.23(c)(l)(v) Mitigating factors. Si22.18(a)(l) (iv) CE)
S e
S 122.23(c)(2) Separate lists for W, non— lW, 5 122.l8(a)(l)(i)
Federal.
Minor wording changes
S 122.23(c)(3) Single entry per permittee. S 122. 18(a)(l)(iv)(B)
Combined with date and
description require1 nt; minor
wording changes
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33386 Federal Register I Vol. 45; No. 98 I- Monday. May 19.1980 / Rules and Regulations
TABLE VII
RELATICNS}IIP OF JUNE 7 PARr 122 TO ‘!1OD Y’S RECUEATICt S
(Continued)
June 7 Paragraph Today’s Paragraph
NLnnber Subject and Any thanges Numter(s )
5122.23(c) (4) Alphabetized, 5122.18(a) (1) (iii)
Minor wording changes
5122.23(d) Statistical information. S122.18(a) (2) (vi)
Minor wording changes
5122.23(e) Annual reports for non—majors. S122.18(c)(l)
Reports must include number
reviewed, number mncczi lying,
number of enforcement actions, and
number of ncdifications extending
deadlines
5122.23(e) Separate list of non—majors behind 5122.18(c)
in oonstruction.
$ .22.23(f)(1) Reporting schedule for quarterly S122.l8(e)(1)
reports.
S122.23(f)(2) Reporting schedule for annual S 122.18(e)(2)
rep rts.
Reports uuiutted at end
of calendar yea: (December 31)
(instead of fiscal year)
5122.23(g) Reports available to the public. S122.18(e)(2)
No longer specified separately footnote
§122.23(g) Designation of majors. 122.3
(Conment] Majors are defined in S122.3
Separate list for facilities with 5122.18(a)(l)(ii)
b , or nore permits.
§122.30 General no ification, evocation,
termination .
No longer a separate section
5122.31 Nodification, revocation and S122.15, S122.16,
reissuance, and termination $122.17
§122.31(a) Any permit may be nodified, etc. Sl22.13(a),
for cause. S122.] .5
Same
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Federal Register I Vol. 45. No. 98 I Monday, May19. 1980 / Rules and Regulations 33367
TABLE VII
P.EIATIa SHIP OF JUNE 7 PARE 122 TO TODAY’S R ULATICflS
(Continued)
June 7 Paragraph. day’s Paragraph
Nu rber Subject and Any thanges Nt.unber(s )
S122.3 1(b) Modification can’t give longer S122.9(d)
than 5—year term.
Put into duration section
S122.31(c) Director may initiate. S122.15
Director may revoke and reissue
only for separate cause or at
peunittee’s request; may initiate
nodification if cause exists
S122.3l(c) Any interested person may request. S124.5(a)
Inccrporated into 124 - -
S122.3l(d) Causes for ncdification, 5122.15(a)
revocation and reissuance, and
termination.
Separated causes for revocation
and reissuance or termination,
fran irodification; usdificatioris
only of ccndition giving cause
S122.3l(d)(l) Nona i 1iance with permit. Sl22.l6(a)(l)
Nc cause for termination,
‘nonaxipliance” (instead of
“violation”)
S122.31(d)(2) Misrepresentation of facts. 5 122.l6(a)(2)
Now cause ‘for termination;
reworded: failure to disclose
fully “at any tine ”
S122.3Ud)(3) Peduction or elim.i ’naticn of S122.16(a)(4)
discharge.
Now cause for termination; last
o examples deleted
S122.31(d)(4) Threat to human health. 5122.16(a) (3)
Na, cause for termination;
reworded: determination
(instead of ‘information’);
“husian health or the environment”
(instead of ‘human health or
welfare’); added: whith can
only be regulated to acceptable
levels by permit ncdification
or termination.”
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33368 Federal Register I Vol. 45. No. 98 1 Monday. May 19. 1980 I Rules and Regulations
TABLE VII
RELATIC 4SHIP OF JUNE 7 PARr 122 TO 1IOD Y,S REGULATICtIS
(Continued)
June 7 Paragraph Ibday’s Paragraph
Number Subject and Any thanges Number (s )
S122.31(d) (5) Transfer. s122.l5Cb) (2)
Cause for a revocation and
reissuance; continues to be
cause for nodification hit not
revocation and reissuance after
•auta1 tic transfer.
5122.31(e) Cause for nodification or revocation S122.15(a)
- and reissuance.
?tdification only, unless permittee
requests; nodification only q ens
up condition giving cause
S 122.31(e)(l) Substantial alterations. $ 122.15(a)(l)
Reworded: uwhich justify the
application of permit conditions
that are different or al:sent in
the existing permitu (instead of
which were not covered in the.
effective permit); examples -deleted;
cai nt partially inco porated, with
less discussion of new sources
S122.3 1(e)(2) New information. S122.15(a)(2)
Reworded, clarified, information
not factors; other changes
S] .22.31(e)(3) New regulations. S 122.15(a)(3)
Canbir d with judical ramand
(S122.31(e) (4))
S 122.31Ce)(3)(i) Permit condition based on revised S122.15(a)(3)(i)(A)
regulation.
Minor wording changes
S1.22.3 1(e)(3)(ii) EPA action has revised.’ S122.15(a)(3)(i)(à)
Minor wording changes
S 122.31(e)(3)(iii) Request filed within 90 days. S 122.15(a)(3)(i)(C)
Reworded, no substantive change
S 122.3 1(e)(4) Judicial renand or stay. 5 122.15(a)(3)(ii)
Rananded by a court of
c çetent jurisdiction;
‘renand or stay (instead of
renand )
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Federal Register I Vol. 45. No. 98 •/ Monday.May 19. 1980 / Rules and Regulations 3336
TABLE V I I
I EL#iTIC?4SHIP OF ? 122 TO TODAY’S R ULATICt S
(Continued)
June 7 Paragraph 1 day ‘S Paragraph
Number Subject and Any thanges Number(s )
S122.3 1(e)(5) As authorized by CWA. . S 122. 15(a)C5)(ii)
Requiren nts listed separately
in S122.15(a)(5)(ii)
S122.31(e)(6) Cross references. S 122. 15(a)
Separated
S122.31(e)(6) Required by toxic standard or S 122.] .5(a)(5)(ii)
prthibition.
Written cut
S 122.3 1(e)(6) Required by toxics re ener clause. S122.l5(a)(5)(iii)
Written ait -
S 122.31(e)(6) ‘10 ncdify capliance schedule. S 122.l5(a)(4)
Written cut, transferred fran
S 122. 17(d)
S 122.31(e)(6) Innovative waste treatment grant S122.15(a)(5)(xi)
to IW.
Written cut, transferred
fran S122.17(e)
S 122.31(e)(7) Failure to notify affected State.— S 122.15(a)(5)(vii)
S Te
S 122.3l(f) Minor nodification. Sl2217
Added: Consent of pernittee
required; deleted: unless
would niake petmit less stringent
S 122.31(f)(l) Minor nodification, Correction S122.17(a)
of typos. -
Sa
Sl22.3 1(f)(2) More frequent nonitoring. Sl22.17(b)
Minor wording changes
S122.3 1(f)(3) thange in i pliance schedule. S].22 .17(c)
Minor wording changes
S122.31(f)(4) Transfer. S122.17(d)
Reworded, requirement for
agreement included (instead
of referenced), no substantive
change
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33370 Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 I Rules and Regulations
TABLE VII
REIATIQ SMIP OF JUNE 7 PARI’ 122 TO IOD Y’S REGULATIGS
(Continued)
June 7 Paragraph Ibday ‘s Paragraph
Number Subject and Any Changes Number(s )
S].22.31(f)(5) Change in ocnstruct on for new S 122.17(g)(l)
source.
Sa
S122.31(f)(6) l 1ete outfall. S1.22. 17(g)(2)
Minor wording changes
[ S 122.lO(b)(l) Director may request an application. §122.15
S122.14(e)J
Modification when State Sl22.15(a)(3)(iii)
certification changes.
(S 122.16(f)(1)1 lb inarporate net limits. S122.15(a)(5)(iv)
[ S122.16(f)(1) (ii)] 10 ve net limits. 5122.15(a)(5)(v)
When recçener for pretrea nt S 122.15(a)C5) (iii)
is triggered.
lb re en pretreatment x!pliance S 122.] .5(a)(5)(vi).
schedule.
When discharge exceeds S125.3 levels. S122.15(a)(5)(viii)
When permittee begins to use or S122.15(a)(5)(ix)
manufacture toxica.
lb establish a higher 5122.15(a)(5)(x)
notificaton level.
[ S122.3 1(d)] Any cause for termination is §122.15(b) (1)
cause for revocation.
(S122.30] Director follows Part 124 S122.16(b)
procedures for termination.
S122.40 General—Special NPDES p ogranis
No longer a separate section
S 122.41 Disposal into wells, etc . S122.65
S 122.41(a) When to make adjustments. S122.65(a)
Sa
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Federal Register / Vol. 45. No. 98 / Monday. May 19, 1980 / Rules and Regulations 333
TABLE VII
REIATI( SHIP OF JUNE 7 PA 122 TO 1O Y ‘S R U!ATIQ S
(Continued)
June 7 Paragraph TOday’s Paragraph
Number Subject and Any thanqes Number(s )
S122.41(a)(l) If no waste discharged. §122.65(a)(1)
S e
$1.22.41(a)(2) Calculation for partial discharges. S122.G5(a)(2)
Minor wording changes, caiu nt
in rporated
§122.41(b) Not applicable for concentration 5122.65(b)
- guidelines.
Minor wording changes
5122.41(c) May be nore stringent. 5122.65(c)
Increased i umber of cross-
references
S122.42 Concentrated animal feeding §122.54
§122.42(a) Permit requirements. §122.54(a)
5122.42(b) (1) Definition of animal feeding §122.54(b)(l)
cperat ion.
Same
§122.42(b) (2) Definition of concentrated. 5122.54(b)(2),
Moved to Appendix B, no Appendix B
substantive change
§122.42(c) Case—by—case designation.- §122.54(c)
Minor wording changes
5122.43 Concentrated aquatic animal S122.55
production facilities
§122.43(a) Permit required. S122.55(a)
Same
122.43(b) Definition of concentrated. 5122.55(b),
Moved to Appendix C, no Appendix C
substantive changes
§122.43(c) Case-by—case designation. §122.55(c)
Minor wording changes
§122.44 uaculture projects §122.56
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Federal Register I Vol. 45. No. 98 / Monday. May 19, 1980 / Rules and Regulations
TABLE VII
RELATIC SHIP OF JUNE 7 PART 122 TO TODPY’S R UIATIQ4S
(continued)
June 7 Paragraph 1 day ‘s Paragraph
Number Subject and Any thanges Number(s )
S122.44(a) Permit requirements. S122.56(a)
S122.44(b) Definitions. S122.56(b)
Sase
5i .45 Separate storm sewers §122 .57
5122.45(a) Permit required. S122.57(a)
Added: verage of permit fran
cciiment at end of S122.45,
minor wording changes
S122.45(b) Definitions. S122.57(b)
I worded, clarified
5122.45(c) Case—by--case designation. S122.57(c)
Minor wording changes
$122.46 Silvicultural activities S122.58
S122.46(a) Permit required. 5122.58(a)
S122.46(b) Definitions. S122.58(b)
Minor wording changes
S122.47 New sources and new dischargers $122.66
S122.47(a) Definitions. 5122.66(a)
Sate, siteu mved to $122.3
Si.22.47(b)(1)(i) Construction on a new site. S122.66(b) (1) Ci)
Sane
S122.47(b)(1)Cii) Construction on an existing site. S122.66(b)(1)(ii)
Reworded, totally . replaces or
causes change in discharge;
ociivnent deleted
S 122.47(b)(2) Modification of existing source. 5122.66(b) (2)
iorded — construction nust
create new building
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Federal Register / Vol. 45, No. 98 / Monday. M y 19, 1980 / Rules and Regulations 33373
TABLE VII
REEATIQ4SHXP OF JUNE 7 PARE 122 TO !IOD i’S P. ULATIQ S
(Continued)
June 7 Paragraph - TOday’s Paragraph
Number Subject and My thanges Number(s )
S 122.47(b)(3) Caim nc nent of construction. S122.66(b)(3)
S122.47(c)(l) Requirenent for an EIS. S122.66(c)(1)
Sane
S122.47(c)(2) EIS includes re xsruiendation. S122.66(c)(2)
Minor wording changes
S 122.47(c)(3) RA review. S 122.66(c)(3)
Added: issue, condition, or
der ; TM or a finding of no
significant ithpactu
S 122.47(c)(4)(i) No on—site construction with EIS. sL22.66(c)(4)(i)
Added: RA must find no irreversible
iiipact; provisions of agree nent
shall be put into permit
Sl22.47(c)(4)(ii) No on—site construction with no S122.66(c)(4)(ii)
EIS.
Must wait 30 days (instead
of 15), RA must make no
significant impact determination
of construction (instead of the
probable need for EIS)
S122.47(c)(5) Notification of on—site construction. Si22.66(c)(5)
§122.47(d) Effect of NSPS. S 122.66(d)
Added: paragraph clarifying that
existing sources are not covered
fran ocirinent at end of S122.47
S122.47(d)(l) Protection period. Sl22.66(d)(l)
Sama
S122.47(d)(2) I esn’t apply to toxics. S122.66(d)(2)
Mded 1 es not apply to any
§125.3 limit on toxics or
hazardous suketances
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33374 Federal Register / Vol. 45, No. Oa I Monday. May 19. 1980 I Rules and Regulations
TABLE VII
REIATIQ4SHIP OF JUNE 7 PA1 r 122 TO WD Y’S REGUIATIG S
-(Continued)
June 7 Paragraph 1 day ‘S Paragraph
N ber Subject and Any thanges NLmiber Cs )
Sl22.47(d)(3) Ccepliance schedules. sl22.66(d)(3)
Added: ipliance schedules
allowed to fleet conditions
pranulgated within 3 years of
permit expiration
S122.47(d)(4) Start—up control equipnent. S 122.66(d)(4)
Sane
Sl22.47(d)(5) Effectiveness of NSPS. S 122.66(d)(5)
Same
Sl22.48 General permits $122.59
S 122.48(a)(2) Definition of !GPPA. M Sl22.59(a)Cl)
No longer separately defined,
no substantive change
S 122.48(a)(2) jection by EPA. $124.57,
[ C ment] Moved to 123 and 124 S123.76
S122.48(a)(3) Definition of general permit. S122.3, $124.57,
Definition shortened, regulatory $123.76,
reguirenents elsewhere; no S 122.59(a)(l)
substantive change
§122.48(b)(l) Coverage of separate storm sewers. S122.59(a)(2)(i)
Saie
S 122.48(b)(2) Coverage of other sources. S].22.59(a)(2)(ii)
Minor wording changes
S].22.48(c) Covers a category within area. S122.59(a)(1)
No longer a separate requirement
S 122.48(c)(l) Area. Sl22.59(a)(1)
Minor wording changes
S122.48(c)(2) Designation subject to review.
DELETED -
S122.48Cc)(3) Procedures follow Part 124. 5122.59(b) (1)
Reworded, no substantive change
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Federal Register I Vol. 45. No. 98 / Monday. May 19. 1980 / Rules and Regulations 33375
TABLE V II
RE!ATI ISHIP CF JUNE 7 PARr 122 W WD Y S R UL ICT S
(Continued)
June 7 Paragraph
Number
5122.48(c) (3)
[ canment]
§122.48(d) (1)
S122.48(d) (2) Ci)
§122.48(d) (2) (ii)
S]22.48(e) (1)
5122.48(e) (2)
§122.48(e) (3)
§122.48(e) (4)
§122.48(e) (5)
S122. 49
S122.49(a)
S122.49(b)
Sl22 .49(c)
S122.49(d)
S122.49(e)
Subject and Any thanges
Providing notice.
Added to 5124.57
Excluded sources.
Reworded, no substantive change
Permit applies to all not excluded.
Reworded, no substantive change
Request for coverage.
Minor wording changes
Requirement for individual permit.
Reworded, no substantive change
EPA revocation.
Reworded, requirement for ons ite
inspection deleted; a11a iance for
additional time added
Request for individual permit.
Reworded, no substantive change
Effect of individual permit.
Incorporated with S122.48(e)(5)
Processing under Part 124.
Incorporated with §122.48(e)(4)
Special considerations under
Federal law .
EO 11990 (Wetlands).
Reserved in today ‘s regulations
EX) 11988 (Floodplains).
Reserved in today’s regulations
Wild and Scenic Rivers.
Narrative added
National Historic Preservation.
Narrative added
Lard and Water Conservation Act.
DELE
Ibday ‘s Paragraph
Number(s)
S124.57
5122.59(a) (1),
5122.59(b) (2)
5 1 .22.59(a) (1.)
S122.59(b) (2) (v)
Sl22.59(b) (2) (i)
5122. 59(b) (2) (ii)
5122.59(b) (2) (iii)
§122.59(b) (2) (iv)
S122.59(b) (2) (iv)
§122.12
S122.l2(f)
(Reserved)
5122.12(f)
(Reserved)
5122.12(a)
S122.12(b)
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33376 Federal Register / Vol. 45. No. 98 / Monday. May 19. 1980 / Rules and Regulations
TABLE ‘111
RELATI( SHIP OF JUNE 7 PA 122 TO TODAY’S REGUIATICt4S
(Continued)
June 7 Paragraph - day’s Paragraph
Number Subject and Any thanges Number(s )
S122.49(f) Endangered Species. S122.12(c)
Narrative added
5122.49(g) Coastal Zone Managenent. 5122.12(d)
Narrative added, c i m nt deleted
S122.49(h) A.
DELETED
S122.49(i) S1 qA.
DELETED
S 122.49(j) Ocean Dunping.
DELETED
§122.49(k) Surface Mining.
DELETED
S122.49(l) Fish and Wildlife Coordination. S122 ..12(e)
Minor word changes -
(122.47(c)] NEPA. S122.12(f)
Coverage specified
S122.60 1egation of Authority
DELE’rED
Confidentiality of Information 5122.19
SILUNO COQ€ S5IO-O -C
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations
33377
PART 123—STATE PROGRAM
REQ REMENTS
A. What Does This Part Do?
This Part establishes the requirements
for State RCRA, IJIC. NPDES. and 404
programs and the process for approval.
revision, and withdrawal of these State
programs. It also establishes guidelines
for EPA overview of these programs,
including the requirement for a
Memorandum of Agreement between
EPA and the State. Although State
programs are established and operated
under State law, approved State RCRA.
UIC. NPDES. and 404 programs also
Implement Federal law and operate in
lieu of Federally administered programs.
A permit Issued by a State under State
law after Its program has been approved
satisfies the Federal permit requirement.
Under the CWA. EPA retains the right to
object to (“veto”) NPDES and 404
permits proposed to be Issued by
approved States. Part 123 contains the
procedures for EPA objection to these
permits.
Part 123 Is divided Into a general
subpart (Subpart A) and five program
specific subparts (Subparts B-F). Unless
expressly indicated, the requirements of
Subpart A are generally applicable to all
of the State Programs covered by this
Part, except State RCRA programs under
Interim authorization; their requirements
are contained solely In Subpart F.
Subparts B. C, D and E provide program-
specific requirements additional to those
of Subpart A for the RCRA final
authorization. UIC, NPDES, and 404
programs, respectively.
The procedures for Issuing permits, as
well as the minimum technical
requirements for such permits. are
incorporated into the requirements for
State programs by cross-references to
other provisions of EPA regulations. For
example, many of the permit
requirements contained In Part 122.
which is applicable In full to EPA.
administered permit programs, are
applicable to State programs through
cross-references in Part 123. Because
EPA does not issue Section 404 permits
(these are issued by the Corps of
Engineers In the absence of an approved
State program). Part 122 does not
contain a subpart devoted solely to 404
permitting. Instead. Part 123. Subpart E
contains the additional permit
processing requirements applicable to
State 404 programs.
With one major exception, the
requirements of Part 123 represent the
minimum requirements which States
must meet to qualify for approval. States
are allowed some flexibility In how they
Implement these requirements and are
free to Impose more stringent coritrola
pursuant to State law. (The exception.
liscussed below, concerns the statutory
equirement under RCRA that State
hazardous waste programs be
“consistent” wIth other approved State
programs end with the Federal
program.)
Many of the comments EPA received
on proposed Part 123 objected to this
scheme of setting minimum
requirements for State programs and
allowing States flexibility to Implement
those requirements. Some commenters
felt that the requirements for State
programs were too detailed and
Inflexible and that EPA should simply
approve “effective” State programs. On
the other hand, many national
companies favored nationally uniform
requirements and raised objections to
allowing flexibility among the States.
After careful consideration, EPA rejects
both the suggestion that State program
requirements should be totally flexible
and the suggestion that they be much
more rigid.
EPA believes that numerous problems
would occur if It were to simply approve
“effective” State programs without
setting minimum requirements. First.
since many States are presently working
on developing programs. setting specific
minimum requirements enables these
States to know with certainty whether
their program will be approvable. For
example. State A Is working on a -.
hazardous waste statute. A
controversial aspect of this legislation Is
the level of penalties and fines for
program violations. By specifically
establishing the minimum levels of fines
for State programs In Part 123, EPA has
given clear guidance. A requirement
only of “effectiveness.” which is subject
tc multiple Interpretations, would
subject the State to the risk of
disapproval by EPA unless It enacted
legislation Identical to the Federal law.
II would be most difficult for the
Agency to approve programs based on
“effectiveness.” To generate a record
that a State program Is “effective”
which would withstand judicial
scrutiny. EPA would have to look much
beyond the States submission for
approvaL Moreover. uniess EPA
established standards on which to judge
whether the program was effective, It
would be difficult to justify approving
one State’s program and denyir.g
acothers. These regulations establish
the specific criteria which are needed In
order to make and justify these approval
decisions.
In addition, because decle lonmaldng
based on effectiveness relies primarily
on the past performance of a program, It
would be particularly difficult to judge
State programs which are new or
substantially modified since these
programs would have no “track-record.”
Moreover, past performance Is not as
Important to EPA as expected future
performance. The Agency does not
intend to disapprove all State programs
which have had problems in the past. It
views the decision whether or not to
approve a State program as being
forward looking: the Agency Is primarily
concerned that the program be effective
In the future. 4
Finally, all three of the statutes
authorizing the State programs covered
by this Part contemplate specific criteria
for State programs (see CWA section
101(e). 402(b), 404(h), and 304(l); RCRA
sections 3006(a) and 7004(b). and SDWA
section 1421). There Is a growing body of
case law which suggests that In the
absence of specific requirements EPA
would not be able to deny a State’s
request for approval.
On the other hand. EPA rejects the
sugges ion that State programs be
nationally uniform (I.e., that they should
meet oil the requirements of Parts 122
and 124). The Agency hoe carefully
analyzed each of the Part 122 and Part
124 requirements to determine which are
essential to State programs. In
evaluating which requirements the State
should ado i, EPA employed the’
following criteria:
(1) Is the requirement necessary to
protect public health and the
environment?:
(2) Is there a need for national
uniformity with respect to the
requirement?:
(3) Is the requirement necessary to
promote a programmatic goal? (e.g.. to
promote public participation): and
(4) Is the requirement necessary under
Federal law for State programs? (e.g.. 5-
year permit terms for NPDES and 404
permits).
Mary of the procedures of Parts 122
end 124 do not meet these criteria, and
therefore have not been made
applicable to State programs. For
example, while the Agency believes that
fact sheets, draft permits. and 30 day
public comment periods are necessary
to ensure the opportunity for public
participaion (an explicit goal of Federal
envlronmer.tal ;rograms), it does not
‘In this regard, there wee one place In the
proposed regulattone where the Agency suggested
that past performance In enforcement would be a
factor In evaluatIng State RQ A programs see the
C.our.eet after proposed S 123.34(d)). ThIs prvviaioa
wee strongly ci ci,ed by a large comber of
commenteis who felt that past performance Is not a
relivanl factor in evaluating. State program. While
A be!l.v.a that past performance can be
considered. It agrees with the commentate that the
decision whether or not to approve a State program
Is forward looking and that past performance
should not be the only or pnme decision factor.
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33378
Federal Register /Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations
believe that the process for
administrative appeals of permits-need
to be uniform. Indeed, most States have
their own administrative procedures
acts and there were no comments
suggesting that these were inadequate.
B. How Does This Port Relate to the
June 14, 1979 Proposal?
The following is a discussion of the
significant comments received and
changes made to the June 14.1979
‘proposal. Editorial and stylistic changes
have been made to all sections and are
not discussed. -
Subpart A—General Program
Requirements
A frequent complaint about the
proposed consolidated permit
regulations was that they were too
complex and confusing. Some of the
comments noted that there were a great
number of cross-references In Part 123
and a general bifurcation of’
requirements between Subpart A and
the program-specific subparts. Indeed,
this bifurcation generated many of the
cross-references.
To mitigate this problem EPA has
further consolidated requirements by
moving some of the material found in
the program-specific subparts into the
general subpart. For example, the
criteria for withdrawal of State
programs are found in § 123.14. In the
proposal, one additional ground for
withdrawal was included for State
RCRA programs in Subpart B at § 123.41.
In these regulations. EPA has moved
proposed § 123.41 Into the same section
which contains the other grounds for
withdrawal but, to avoid confusion, has
clearly labeled it as being applicable
only to State RCRA programs. While
this approach means that some of the
program-specific requirements are
contained in Subpart A. it has resulted
In the elimination of many cress-
references and sections.
Subpart A Is not applicable to State
RCRA programs under interim
authorization..
I 123.1 Purpose and scope.
Some comnienters questioned whether
a State authorized to administer one of
the programs under this Part would be
required to seek authority to administer
the others. The answer Is no. EPA has
never intended these regulations to act
In such a manner. While EPA strongly
encourages States to seek authorit) to
administer all programs under this Part.
end has promulgated these regulations
In order to simplify the States’ task In
administering multiple programs, no
affirmative duty to develop such
programs is established by these
regulations. It should by noted, however,
that section 1422 of SDWA does require
States listed by the Administrator to
develop UIC programs. (All States have
now been so listed.) In answer to a
similiar comment concerning the
requirement to consolidate, States are
not being forced to consolidate when
they administer multiple programs.
These regulations, however, provide the
framework for consolidation for those
States that wish to do so. EPA
encourages such consolidation.
Many commenters expressed concern
about § 123.1(g) (proposed § 123.1(c)),
Ing the transition from an EPA (or
Corps of Engineers In the case of the 404
program) to a State administered
program. and wanted EPA to retain
permit Issuance authority over permits
being processed at the time of transfer.
Potential permittees indicated It would
be unfair to make an applicant whose
application had been processed by EPA
start over again with the State. While
the Agency is sympathetic to these
concerns, the statutes preclude retention
of permit Issuance authority after State
program approval. For example. the
- Clean Water Act mandates that the
Administrator (or the Secretary in the
case of 404 programs) ‘ suspend the
issuance of permits” upon approval of a
State program (see CWA sections 402(c)
and 404(h)). Upon approval the State has
the sole permit issuing authority. EPA
cannot preclude States from
reconsidering decisions made by EPA
(or the Corps) during the processing of a
permit application, as some commenters
requested. EPA (or the Corps) will.
however, transfer all pending permit
applications and other relevant
Information, including the record of any
proceedings, to the State at the time of
program approval, and will work closely
with the State to avoid unnecessary
repetition. EPA (or the Corps) may
maintain jurisdiction over permits
Issued prior to the transfer.
Arrangements for the orderly
administration of these permits are
usually Induded in the Memorandum of
Agreement.
Moat of what was a Comment to
proposed § 123.1(e) has now been
included in the body of the regulation In
I 123.10). The question of who has
responsibility for program
administration over activities on Indian
lands drew many comments. Objections
were raised to the requirement that
States must administer the program over
activities on Indian lands to the extent
they are authorized to do so, coupled
with the requirement of proposed I 123.5
that the State Attorney General analyze
the State’s authority over Indian lands.
Because States will lack jurisdiction, in
most Instances, to control activities on
Indian lands, and since many of t
comments suggested that requirl
State to take a position on the isi
could generate significant political
controversies, EPA has modified th
requirement of the proposal. EPA
assume that a State lacks authority
unless the State affirmatively asserts
authority and supports its assertion with
an analysis from the State Attorney
General. Thus, the State will not be
forced to take a position unless it
chooses to assert jurisdiction.
The provisions in § 123.1(k) (proposed
1 123.1(f )) clarIfy that, except in regard
to certain aspects of State RCRA
programs, States may provide more
stringent controls than do the
comparable Federal programs.
Provisions applicable under an EPA-
admlnlsteçed program need not be
adopted or may be modified by a State
if their omission or modification would
make the State program more stringent
than the Federal program. For example,
a State NPDES or 404 program need not
provide for the Issuance of general
permits, but could instead require all
dischargers to receive an individual
permit. Likewise, NPDES States need
not adopt upset or bypass provisions
since more stringent control can be
achieved without them.
Most of the Comment included fr
proposed I 123.1( 1) regarding Sta
programs with a greater scope of
coverage then required by Federal I
has been Incorporated into the
regulation, 123.1(k)(2J.
§ 123.2 Definitions.
Although the definitions of Part 122
apply to the terms used in Part 123.
States are not required to adopt the
same definitions. For example, although
a State NPDES program must cover all
“discharges of pollutants” into
“navigable waters,” It need not adopt
the same language in defining the scope
of coverage of the Slate program. For
example, many NPDES States tie the
permit requirement to the discharge of
“waste,” or use a different definition of
waters. This is acceptable as long as the
State does not adopt language which
reduces the scope of coverage of the
State program below the scope of
coverage of the Federal program.
1:23.3 £‘ements ofaprognzni
submission.
This section establishes the
documentation and information which a
State must submit to EPA before
program review can begin. Since the
time allowed for EPA review of a 5’-
program submission Is quite limit
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Federal Register / Vat. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations
33379
essential that all the necessary
documents be submitted before the
statutory review period starts. The
Agency views each element of a
8ubmlssion as essential to review In
making its approval decision. Program.
specific additions have been added in
the list of required elements so that all
the elements are contained in one
section.
Apparently, many commenters
misconstrued the language of proposed
paragraph (a). These comxnenters
thought that EPA’s 30-day review for
completeness of the submission
occurred before the commencement of
the statutory-review period and pointed
out that to do so would not be legal.
EPA recognizes that the statutory.
review period commences on the date of
receipt of a complete submission and
not on the date the Agency determines
the submission Is complete. 123.3(b)
has been revised to clarify this.
Proposed § 123.3(b)(5), which required
that a State submit copies of the forms It
Intends to use In Its program, has been
shifted to 123.4. Submission of these
forms Is more appropriate as a
component of the program description
than as a separate requirement.
§ 123.4 Program description.
All the program-specific additional
requirements for the program
description (i.e., proposed § § 123.34
(RCR.A). 123.52 (UIC), and 123.95 (404J)
have been Incorporated into this section
and clearly Identified.
The 404 requIrement for a single
agency has been dropped so as not to
preclude States from using a “one-stop’
permitting body for certain types of
facilities, e.g.. energy facilities.
However. EPA believes that the use of a
single State 404 agency Is a preferable
approach, offering more administrative
simplicity and substantive consistency.
and avoiding much potential confusion.
Where more than one agency has
responsibility for administering a State
404 program. the program submission
must specifically address this division of
authority, and discuss how the program
will be administered and enforced by
the State. Each responsible State agency
must have full authority In the category
of Its jurisdiction. § I 123.4(h)(7) and (8)
have been added to establish these
requirements.
Some commenters suggested that
States be required to demonstrate that
the staff designated to administer the
program Is adequate. Indeed, this is the
purpose of § 123.4(b). Also, to avoid
confusion, § 123.4(b) has been clarified
to explicitly provide that any agency
administering a program m’ust have
state-wide jurisdiction. A series of
regional boards cannot administer a
program unless they are sufficiently
under the control of a State agency. The
purpose of this requirement is to avoid
Inconsistent program administration
within a State.
States with more than one agency
responsible for administering a program
are encouraged to designate a lead
agency to facilitate communications
between EPA and the State agencies
having program responsibility. State
RCRA programs must designate a lead
agency. The lead agency need not be
one of the agencies administering the
program.
The requirement for submission by
States of the forms they will use in their
programs (proposed I 123.3(d)(5)) has
been retained, but is now included as a
part of the program description
(I 123.4(d)). Some conunenters pointed
out that program-specific requirements
for State forms were not identified In the
proposal. EPA has tried to clarify this.
Other commenters suggested that States
be required to use uniform national
forms. EPA believes that States should
have the flexibility to develop their own
forms as long as they require the same
basic information as EPA. Only in the
case of the NPDES Dischargd Monitoring
Report Is an identical fQrm required.
§ 123.5 Attorney General’s statement.
The Attorney General’s statement is a
contral part of any State application for
program approval. The Attorney
General’s statement is heavily relied
upon by EPA In determining what
authorities exist in a State. and thus
whether these authorities can —
adequately operate in lieu of Federal
requirements. While EPA will review a
States legal authorities, a complete
evaluation is not possible without the
Attorney General’s interpretation of
vc.rious provisions of State law. The
Attorney General’s certification can also
be valuable where a State program is
challenged for failure to conform with
Federal requirements. The Agency will
develop model Attorney General’s
statement formats for use in meeting the
requirement of this section.
The proposal (I 123.5(a)) requIred that
the authorities cited by the Attorney
General be in full force and effect at the
time the statement is signed. This
provision has been changed so as to
prevent unnecessary delays in the
approval process. The Attorney General
may now sign the statement before the
authorities are fully effective as long as
the statutes and regulations cited by the
Attorney General have been lawfully
adopted prior to signing, and will be
fully effective when the program is
approved. For example. the provision
now allows the Attorney General to sign
the statement at the time of
promulgation of a necessary regulations.
iven though Its effectiveness is to be
delayed.
In response to comments that States
not be forced to assert jurisdiction over
activities on Indian lands, § 123.5(b) has
been changed to provide that the
Attorney General need analyze the
State’s authority over activities on
Indian lands only when the State asserts
such jurisdiction.
One commenter suggested that the
showing required under proposed
• 123.94(b) for State section 404
programs regarding specification of
disposal sites be deleted for lack of
statutory basis. EPA concurs and has
deleted this requirement
§ 123.5 Memorandum of ogreemenL.
The program.specific requirements for
the Memorandum of Agreement (i.e..
proposed § § 123.37 (RCRA), 123.72
(NPDES), and 123.92 (404)) have been
moved into this section for convenience.
One commenter suggested that MOM
be submitted to rulemaking. public
notice, comment and hearing procedures
before execution by the State Director.
All MOM will be subject to public
scrutiny prior to program approval
(when they become effective) If not prior
to their signing by the State Director. In
the case of RCRA and UIC programs.
,States are required to issue public notice
of. and provide opportunity for public
comment and hearings on their
programs. a part of which Is the MOA.
prior to submittal to EPA. States are not
required to provide similar procedures
for NPDES and 404 programs. althou ).
some may do so. However, under all
four programs. EPA will provide public
notice of the receipt of State program
submissions, including MOM, provide a
public comment period, and schedule a
public hearing.
§ 123.6(b)—This paragraph identifies
the basic requirements of the MOA. The
Note under § 123.6(b)(2) points out that
the nature and basis of EPA review of
State permits varies among the
programs. Under the CWA programs.
EPA has a statutory duty to review State
NPDES and 404 permits, and may object
to permits proposed to be Issued by a
State. EPA Is authorized to issue the
NPDES permit, or the Corps of Engineers
the 404 permit. If the State does not
modify the permit within a specified
period to satisfy EPA’s objections.
Under RCRA, EPA may not veto a
proposed State permit to which It
objects, but may terminate a permit
Issued by a State to the extent the
permit does not reflect comments made
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
by EPA which It stated were necessary
to implement State program
requirements. Under the UIC program.
EPA has neither a statutory right of
revi!w nor the ability to veto a State
permit but may make arrangements
with the State through the MOA to
review and comment upon State
permits. Under all four programs, the
MOA should be the vehicle for
specifying the details of EPA’s review of
State programs. -
Comments were received on proposed
I 123.8(b)(4)(i) staling that EPA should
always notify States before conducting
inspections of facilities or activities
within a State and that the section
should be modified accordingly. EPA
will, under most circumstances, provide
advance noufication. However, for
cases of emergency and when otherwise
necessary, EPA must retain the right to
dispense with advance notification of
inspections. I 123.6(b){4)(i) has therefore
been retained in its proposed form.
Proposed § 123.8(b)(4)(ii) concerning
“fiscal arrangements for effective
litigation support” has been dropped.
Commenters indicated that they did not
understand the nature of the
requirement. The proposal Included this
as a means to ensure that enforcement
activities are adequately funded,
particularly when enforcement is
conducted by an office outside the
approved State agency (e.g.. an Attcrney
General’s office). Although EPA remains
concerned about ensuring adequate
funding for enforcement, It decided that
this Is appropriately handled in the
context of a State/EPA agreement rather
than through the MOA.
A new provision has been added to
I 123.fl(b)(4) requiring that the MOA
include arrangements for the
coordination of enforcement activities
by EPA and the Stafe.
Some comznenters were concerned
that I 123.6(b)(5). r. garding the joint
processing of permits required by EPA
and a State under different programs.
could lead to delays in permit issuance.
They believed that approval of one
permit would hinge on compliance with
another. The intent of this paragraph
has been misinterpreted. First. joint
processing of permits is not required by
the regulations, but rather is at the
option of EPA and the State. It is
Intended to promote efficiency and
avoid duplication and inconsistency.
Where joint processing is chosen, the
agreement could provide for separating
out troublesome permits to avoid delays
in issuing the others. I 124.4 provides for
this separation. Further, the public
would have an opportunity to comment
on any provision regarding joint
processing before program approval.
* 123.8(b)(5) has been retained.
One commenter suggested that where
more than one agency In a State• -
administers a given program the MOA
should require intra-State coordination.
Such coordination has not been made an
MOA requirement While procedures for
intra-State coordination may be referred
to In the MOA, they are better discussed
in the program description than in the
MOA. I 123.4(b) requires a description
of these Infra-State procedures for
coordination. In the case of State 404
programs a memorandum of
understanding between the responsible
State agencies wiU need to be Included
in the program description when more
than one agency seeks to administer the
program, and the responsible agencies
will all need to be parties to the MOA
under this section.
I 123.8(f)—Several comments were
received on this paragraph (proposed
I 123.92(a)). which pertains to the scope
of waivers of permit review available to
the Regional Administrator under State
404 programs. These comments
expressed two opposite viewpoints;
some suggested that virtually no
waivers be granted, while others
suggested that the State be given a
blanket waiver of EPA permit review
upon program approval. EPA continues
to take an intermediate position based
on the express language of sections’
40 4 (j) and (k) of CWA. which provides
EPA authority to review State permits,
but allows waivers for specific classes
and categories of activities.
Certain types of activities are likely to
have substantial environmental effects,
and EPA feels that it should always
have an opportunity to review permit
applications and draft permits for these
activities. One such category is “major
discharges.” A commenter suggested
that a definition for “major discharger”
be formulated and applied nationwide.
EPA believes that development of a
nationwide definition Is unrealistic
given the variety of discharge and
aquatic resource combinations WithIn
each State, and has therefore decided
that such a definition is better placed in
individual State MOA’s with the
Regional Administrator.
Another commenter requested an
escalation procedure for resolving
disagreements among Federal agencies
on the scope of waivers. EPA disagrees.
The waiver provision under section
4041k) does not require the concurrence
of other Federal agencies. EPA has.
through these regulations, provided
other Federal agencies with an
opportunity to comment on waivers by
providing for consultation with the
Corps of Engineers, Fish and Wildlife
Service, and National Marine Fisheries
Service on the scope of the waiver
be contained in the State/EPA Mt
Since the MOA is part of the State
program submittal, these agencies w
have an opportunity to comment on
waivers during the official review
process required by sections 404(g)(2)
and (3). Furthermore, EPA has required
that procedures for MOA modification
be consistent with those for MOA
development Thus, consultation with
these other involved Federal agencies
will also take place before any further
waivers are implemented.
One commenter felt that the term
“discharge which may affect the waters
of another State” in I 123.6(f)(1)(i)(A)
needed further definition to establish a
reasonable basis for its use as a
criterion. Although the term has not-
been further defined because it derives
directly from the requirements of CWA
section 404(h)(1). it is meant to apply to
discharges which may cause or
contribute to the likelihood of a long or
short term chemical, physical, or
biological change in the other State’s
waters, or which may violate the other
State’s water quality standards. In
response to a number of comments, EPA
has expanded the list of critical areas
not subject to waiver in
I 123.6(fl(1)(i)(C).
EPA agrees with one commenter
felt that if no problems are encoun.
with permits that are waived, the
Agency should consider expanding th..
types of discharges for which review is
waived. However, when EPA finds that
Individual permit review is needed to
implement the goals of section 404. the
Agency reserves the right to withdraw
the waiver under I 123.6(g)(1). The only
way the Agency has of determining this
is by monitoring permit applications
within waived categories when needed.
Proposed I 123.7 Requirement to
obtoin opermiL
This proposed section has been
dropped because It was too vague and
generalized. Program-specific language
has been developed instead. Generally
speaking. State law must provide for
regulation of all activities regulated by
the Federal program
I 123.7 Requiremenis for permitting.
This section was proposed as I 123.8.
It lists the provisions of Parts 122 and
124 with which State programs must
comply. The program-specific additional
permit requirements proposed II 123.3p
(RCRA), 123.57 (UIC), and 123.73
(NPDES)) have been moved into this
section for convenience. In additior
cross-referenced section of Parts 1
and 124 now specify, In their headinb
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Federal Register/Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations
33381
that they are applicable to State
programs. It should be noted that States
are not precluded from adopting any of
the other provisions of Parts 122 and
124. However, only the provisions listed
in § 123.7 are specifically required of
State programs.
Many comments suggested that the
requirements applicable to States were
too detailed and inflexible. In response.
EPA reanalyzed the sections listed in
the proposal (I 123.8) which were
applicable to all programs to determine
If any sections could be eliminated as
State requirements, or made applicable
to States In a manner that would
provide the States with greater
flexibility. As a result of this analysis.
certaur sections and subsections of Parts
122 and 124 are no longer applicable to
States (i.e., the requirement for a
statement of basis and selected
provisions regarding permit issuance.
draft permits. and public notice).
EPA considered the idea of separating
the remaining general State program
requirements so as to establish two
levels of applicability, one of which
would allow States greater flexibility In
how they could Implement selected
requirements. The idea was rejected.
however, because of the confusion this
bifurcation would cause among States
seeking to determine what authorities
would satisfy the requirements of
provisions placed at varying levels and
because of the difficulty of justifying the
placement of a requirement at a given
level. -
The requirement that State prbgrams
have legal authority to Implement and
be administered In conformance with
the listed provisions has been retained.
This requirement does not mean that
States must Implement provisions
Identical to the listed provisions; only
that they establish requirements which
are at least as stringent as the
corresponding listed provisions.
Assistance will be made available to
States by EPA on how they can satisfy
this section.
Comments were also received
expressing the be’ief that all of the
provisions of Parts 122 and 124 should
be made applicable to States. As
discussed earlier in this Preamble, that
notion was rejected. Comments were
received, as well, regarding the failure of
* 123.7 to apply specific provisions of
Parts 122 and 124 to States. One
commenter recommended that the
transfer provisions of Part 122 should
apply to States. This recommendation
has been adopted. Transfer
requirements were made applicable to
NPDES States in the Agency’s June 7,
1979, NPDES regulation (44 FR 32854)
and are now made applicable to the
other programs under this Part to assure
that the State Director Is given notice of
a transfer of ownership and may react to
It. Other commenters suggested that
States be required to protect
confidential Information to the same
extent as EPA. This suggestion has been
rejected. § 123.7(a)(13) requires Slates to
Implement § § 122.19(b)—(d). This means
that States must grant public access to
at least the same type of Information as
does EPA. EPA will not, however,
dictate how a State must treat other.
information submitted to It. § 122.19(a)
(proposed § 122.18(a)), therefore, has not
been made applicable to States. Finally,
a commenter requested that State notice
and hearing procedures for RCRA
permits be the same as EPA procedures.
The provisions of Part 124 regarding
notice and hearing were, In the proposal.
and remain, in these final regulations,
applicable to States to the extent
necessary to assure adequate public
participation. EPA believes that beyond
these minimum requirements, States
should have flexibility to establish their
own administrative procedures.
The list of applicable requirements in
§ 123.7(a) has been adjusted to reflect
the transfer of those permit application
requirement provisions common to all
programs from the individual program
subparts of Part 122 to the general
Subpart, § 122.4. It Imposes no
additional requirements on the States.
This change appears at § 123.7(a)(1). The
corresponding provision of Part 124,
§ 124.3(a). has also been made
applicable. Also, an addition has been
made to the list of applicable
requirements, § 123.7(a)(15), to clarify
that a draft permit must be prepared and
circulated by approved States before a
permit Is modified or revoked and
reissued as required by § 124.5. This
requirement Is not applicable to State
404 permits when no draft permit is
prepared prior to initial permit Issuance.
The language In proposed I 123.8 has
been amended, in response to
commenters’ concern that the section
limited State authority to Impose
requirements more stringent than
Federal reqwreinents. to make dear that
the applicability of the lived sections to
State programs does not infringe on a
State’s right to be more stringent. For
example. State NPDES programs need
not adopt the provisions for bypass and
upset In I 122.80. However, when States
Include provisions on bypass and upset,
these may nut be less stringent than
those allowed by EPA regulations.
I 123.8 Require.’nents for compliance
evaluation programs.
This section was proposed as § 123.9.
The additional requirements for State
NPDES compliance evaluation programs
(proposed I 123.80) have been included
In this section for convenience.
- A comment was received suggesting
that States not be required to make the
information gathered under § 123.8(b)(1)
available to EPA If It Is prepared in
anticipation of or is in any way
associated with litigation. EPA cannot
accept this suggestion. EPA does not
lntend to interfere with State litigation.
However, the information coUected by a
State regarding persons subject to
regulation who have failed to comply
with permit application or other program
requirements must be available to EPA
in order for EPA to perform its statutory
responsibilities to oversee approved
State programs. The information which
this commenter seeks withheld from
EPA Is Information vital to EPA’s
oversight of State enforcement
activIties. § 122.8(b)(1) has been
retained.
One commenter requested that
I 123.8(b)(2) indicate how often periodic
inspections should be made. EPA agrees
that the establishment of such schedules
is desirable, but feels that it is better
handled on a State by State and year by
year basis because of the continually
changing nature of State permit activity.
Schedules for periodic inspections.
therefore, will continue to be
established in annual State/EPA
agreements.
* 123.9 Requirements for enforcement
authority.
This section was proposed as * 123.10.
‘The requirements for State enforcement
programs generated more comments
than any other sectionof Subpart A. The
proposal generalfzed the requirements
to a degree which made them confusing
and vague. Therefore, EPA has chosen
to set some of the requirements on a
program-specific basis closely tracking
the EPA enforcement authority In each
of the programs.
Most of the controversy on this
section centered on the amounts of civil
and criminal penalties or fines
recoverable under State law and the
types of violations to which they apply.
EPA’s proposal would have required
Slates to have essentially the same
enforcement capabilities as EPA,
including the ability to collect the same
maximum fines and penalties. The final
regulation adopts a similar approach,
but affords a greater degree of flexibility
on the amounts recoverable. All Stale
programs must have both civil penalties
and criminal sanctions. Fines and
penalties must be recoverable under
State law’, a State program cannot rely
on the levying of Federal fines, as one
commenter suggested. since the State,
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33382 Federal Register / Vol. 45, No. 98 1 Monday, May 19, 1980 / Rules and Regulations
not EPA. Is to have primary enforcement
responsibility upon program approval.
l’he violations for which these fines and
penalties must be recoverabis, which
some comxnenters claimed were set out
too broadly In the proposal, are now
clearly set out and coincide with EPA’s
authority under each statute.
The Agency has determined that It Is
necessary to set specific minimum levels
of fines and penalties which States must
have the authority to recover in order to
ensure effective Slate enforcement
programs. Without such minimum levels,
EPA . would often be forced to take its
own enforcement action In approved
States because the State action lmposed
Inadequate penalties. Such EPA action.
while available as a backup, Is not
Intended to be relied upon as the prime
enforcement mechanism in approved
States. Accordingly, the Agency has set
minimum levels of fines and penalties.
However, It baa reduced the levels
below those available to EPA based on
the large volume of comments from
States requesting such relief.
in the area of State RCRA programs.
the minimum levels of fines and
penalties are set at 810.000 per day at
the auggeàtion of the National
Governors Association. Also,
Imprisonment for at least six months
must be available. These are the
minimums which must be present in a
State program before it can be
considered to “provide adequate
enforcement” under section 3008(b) of
RCRA. The violations for which criminal
remedies must be obtainable was
changed from “any program violation”
because many commenters pointed out
that EPA cannot obtain criminal
remedies for any program vtolation. The
situations where criminal remedies must
be available now closely parallels the
langua e of section 3008 of RCRA.
The ievels of fines and penalties for
State NPDES programs has been
adjusted to the same level reflected in
past Agency policy. All currently
approved NPDES States meet the final
regulation.
The levels of civil penalties and
criminal fines for Slate UIC programs
have been similarly reduced below
Federal amounts. The minimum civil
penalties and criminal fines have been
set at $2,510 and $5,111 per day,
respectively. However, in the case of
Class II weli , States need only have the
authority to recover a civil penalty of
$1,000 per day, and may substibite the
authority for pipeline (or production)
severance for cr4mlnnl fines. Several
commenters noted that they had this
anthority for pipeline severance
available to them, and that It proved to
be more effective than monetary fines.
EPA agrees that this may be preferable
and has, therefore, allowed States to
choose between pipeline severance and
criminal fines for Class U wells.
One commenter suggested that the
requirement of 123.9(a)(1) (proposed
I 123.10(a)(1))—that States have the
authority to restrain immediately
unauthorized activities endangering
public health or the environment—was
too broad for purposes of the UIC
program. and that endangerment of the
environment should be eliminated as a
cause for Immediate action. This
commenter cited section 1431 of SUWA
which allows Immediate action only
when there Is an 9inmlnent and
substantial endangerment to the health
of persons.” Section 1431 Is not
applicable to State UIC programs.
Further, section 1421(a)(1) is intended to
assure effective programs. Reference to
endangerment of (threatening) the
environment has been retained in
123.9(a)(1) because It Is a necessary
element of State enforcement programs.
The alternative in proposed
• 123.1O(a)(1) which allowed States to
choose having available either the
remedy of immediately notifying the
Regional Administrator by telephone of
unauthorized activities or the remedy of
Immediately and effectively restraining
such activities by order or by suit has
been dropped. The latter remedy Is now
required of all State programs. The.
remedy of telephone notification was
dropped as an option since It Is an
obvious ability of all States. The more
important authority of being able to
immediately restrain an unauthorized
activity Is one which can be satisfied
either wIth an administrative cease and
desist order or with the ability to seek in
court a temporary restraining order, an
ability which few, If any, States lack.
States are still required to have the
same array of enforcement tools as EPA,
except that Imprisonment Is only
required for State RCRA programs. State
programs may not impose a greater
burden of proof for establishing
violations than Is required of EPA under
the appropriate Acts. A State could not.
for example, require a showing “beyond
a reasonable doubt” to establish a civil
vioLation. If a greater burden of proof
were allowed, enforcement actions
would be less often successful and State
programs, therefore, less effective.
The penalty policy provision In the
proposal ( 123.10(c)) has been retained
unchanged despite numerous objections
that It not be applied to States. EPA
believes that It is entirely reasonable to
expect States to assess penalties which
are “appropriate to the violation.” The
additional criteria for assessing
penalties apply only to ‘!deadllne”
violations and are Inherently flexible so
as to provide States with a wide
of discretion in their application
Some commenters argued that
penalty policy could not be appliec
States administering RCRA progran’
because under section 3008(c) of R(
the Administrator may only consideA
seriousness of the violation and good
faIth efforts to comply with applicable
requirements in assessing a penalty. The
Agency believes that the factors
contained In I 123.9(c) fit within these
broad statutory standards. Moreover.
EPA interprets section 3008(c) of RCRA
to allow adoption of a penalty policy by
States which Is not strictly within the
standards of section 3008(c), since the
listing In section 3008(c) is not exclusive.
In addition, section 3008 covers only
Federal enforcement and Is not directly
applicable to the States.
I 123.9(d)—This section establishes
minimum guidelines to ensure that the
public has an adequate opportunity to
participate in the enforcement process
Itself. This regulation is promulgated. in
part, pursuant to the provisions of
section 101(e) of the CWA and section
7004(b) of RCRA which require EPA, in
cooperation with States, to publish
minimum guidelines which provide for
such public participation, Additionally,
this regulation is promulgated in
response to the opinion of the Ser
Circuit in Citizens fore Better
Environment v. EPA (598 F. 2d 27L
Petition for rehearing denied, 13 ER’
1095. 7th CIr. 1979). It was proposed
I 123.10(d) on August 22. 1979 (44 FR
49275).
The August 22, 1979 proposal required
all States wishing to receive or maintain
programs covered by the con olidated
permit program to provide citizen
intervention as of right. Additionally.
EPA suggested several other
mechanisms for public participation.
After reviewing the public comments on
this proposaL the Agency has
established requirements which ensure
the benefits of public participation.
while Intruding less Into the States’
management of their judicial and
administrative systems.
Many commenters objected to the
proposed requirement of intervention as
of right In State enforcement action.
Various reasons were advanced
Including that the Agency lacks
statutory and constitutional authority to
Impose such a requirement and that
under section 101(b) of CWA States
have the primary responsibility to
control pollution. Additionally, many
States pointed to the possible disruption
or loss of existing programs If State
legislatures were asked to enact
statutory changes. Although the 1
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Federal Register p’ Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations
33383
does not agree with all of the arguments
advanced by commenters. intervention
as of right Is not now mandatory but Is
one of two options to be adopted by
States.
The first option allows States to
provide for Intervention as of right by
citizens who have an Interest which Is
or may be adversely affected by a
violation. This coverage is comparable
to existing rights In Federal court.
Alternatively. States may provide
assurance that they will not oppose
Intervention by dtlzens when such
Intervention may be permissibly
authorized under State law. States
employing this option are also required
to ensure that citizen complaints of
potential violations are received and
responded to. and that any proposed
settlement of an enforcement action Is
published for public comment.
Commenters also objected to the
application of these requirements to
RCRA and UK programs. Many pointed
out that CBS v. EPA, supro. In which the
Seventh Circuit invalidated the
Administrator’s approval of the illinois
NPDES program. was based only on the
requirements of section 101(e) of the
CWA. EPA believes that the application
of these requlrements.to programs under
RCRA and SDWA. in addition to CWA.
Is warranted. Section 7004(b) of RCRA Is
virtually Identical to section 101(e) of
CWA, and contains the same obligation
to promulgate regulations dealing with
public participation. Although SDWA
contains no such specific requirements.
eection 1450(a)(1) authorizes the
Administrator to prescribe regulations
which are necessary or appropriate to
carry out his functions under the Act.
The Agency believes that these
w .A nimum public participation
requirements are both necessary and
appropriate for an adequate State UIC
program. The requirements of 123.9(d).
therefore, remain applicable to all
programs covered by Subpart A of these
regulations.
N,unerous coznmenters urged the
Agency to adopt all the mechanisms for
public participation suggested in the
proposaL Some stated that the right of
participation in State court should be
equivalent to that available in Federal -
Court. Although these regulations
require that States provide a meaningful
opportunity for public participation in
enforcement, they represent minimum
guidelines and do allow States some
flexibility in developing these
provisions. Nothing in the Act or Its
legislative history Indicates that
Congress intended that States be
required to provide identical rights to
those Congress specified for citizens In
Federal court.
Some coinmenters objected to the
suggestion, adopted as part of the
second alternative, that States be
required to publish proposed settlements
for public comment They claimed that
this could disrupt a process which
requires that settlements be negotiated
In private and adopted quickly.
However, It Is just such a situation, with
Its potential for abuse, which public
participation Is designed to avoid.
Experience by the Federal government
Indicates that noticing proposed
settlements for public comment does not
make It appreciably harder to settle
cases. Thus, notice of settlement must
be published although the settlement
Itself needn’t bepublished. Interested
persons will be allowed to view the
settlement If they wish. This process Is
similar to that now employed by the
Department of JustIce (28 CFR I 50.7).
Some commenters stated that the
Agency should define “citizen.” Many
pointed to section 505(d) of CWA which
defines clt1zen as persons who have an
interest which Is or may be adversely
affected. The Agency has adopted a
similar definition in this rule. However.
It should be noted that the legislative
history of section 505 IndIcates
Congress’ Intention to give citizens the
broadest right of participation permitted
by the requirement of “standing” -
contained In the U.S. Constitution. -
Similar breadth would be required of
States choosing to provide intervention
as of right.
It was also suggested that the Agency
require States to provide their citizens a-
right to compel State officials to perform
non-disaetlonary duties. EPA does not
believe that such a right need be
specified In these minimum guidelines.
When States are not performing
necessary duties, citizens have the right
to petition EPA to withcraw the State’s
authority to administer the program.
Some commenters objected to the
length of time which States are given to
comply with these requirements.
However, this period Is the same given
for compliance with all new
requirements contained In these
consolidated permit regulations.
Some commentera asserted that EPA
ha. not developed these regulations “In
cooperation with the States” as required
by RCRA and SDWA. Due to the time
constraints Imposed by the court in CBS
v EPA. supra. the proposal was
developed by EPA. However. States
were fully Informed and their views on
the proposal were actively sought.
Comments were received from agencies
In over 30 States. These comments were
carefully and fully considered in
developing this regulation.
§ 123.10 Sharing of information.
This section was proposed as 123.16.
Paragraph (a) requires approved States
to share information with EPA. Many
States indicated that under State law
they may not be able to make
confidential information available to
EPA upon request However, since EPA
cannot exercise Its statutory oversight
and enforcement responsibilities
without access to all the Information It
needs. Including confidential
inform tion, the paragraph has not been
changed.
A commenter stated that If EPA
receives confidential information from a
State. the Agency should preserve the
confidentiality of the information. When
the Agency receives Information from a
State which Is claimed as confidential
by the submitter EPA will treat this
Information in accordance with its
business confidentiality regulations at
40 CFR Part 2. These regulations treat all
Information dalined confidential by the
submitter as confidential until an
explicit determination is made that it is
not entitled to confidential treatment A
submitter gets prior notice of this
determination under 40 CFR I 2.205.
If a State operates a broader program
than Is required by Federal law, this
Informat ion sharing requirement applies
only to the Federally required portion.
Under I 223.10(b), EPA will provide
States with information from Its files
when the State requires the Information
to administer a Federal program. If the
Information has been claimed
confidential by its submitter. EPA will
disclose the Information to a State in
accordance with the procedures of 40
CFR Part 2. In partIcular, 40 CFR
* 2.301(b)(3). which is incorporated by
reference in § 2.302(h)(3) (NPDES/404
permits). I 2.304(h)(3) (UIC Permits), and
§ 2.305(h)(3) (RCRA permits), provides
that EPA will disclose information
claimed confidential to a State if the
State has the authority to compel that
Information or. lilt does not have such
authority, If EPA determines that the
State will provide adequate protection
to The interests of the affected business.
One commenter stated that a
submitter should get notice before
confidential Information it submitted to
EPA Is disclosed to a State. Under the
Part 2 regulations, EPA will give notice
to the submitter before disclosure to the
State If the State agency does not have
the authority to directly compel
submission of the lnforjnation. If the
State does have the authority to compel
submissIon of the Information, notice Is
not required. EPA’s disclosure of
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33384 Federal Register I Vol 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations
Information to an approved State under
* 123.10(b) is essentially the same as
disclosure to EPA employees or other
Federal agencies who perform a
function on behalf of EPA. Notice Is not
required prior to disclosure In either of
these Instances. See 40 CFR
I I 2.209(c)(3) and (e).
Proposed I 123.21 Progress reports.
This proposed section has been
dropped because it was duplicative of
other provisions In this Part. The
requirement that States with Interfm
authorization under RCRA, and those
listed as needing a UIC program submit
progress reports Is found In Subparts F
and C, respectively.
* 223.13 Procedure for revision of Stole
programs.
This section was proposed as 123.13.
The procedures for revising State
programs are designed to be flexible
enough to cover both minor and major
modifications. The Agency will issue
public notice and provide opportunity
for public comment on substantial
proposed program modifications, and
will Indicate Its approval by notice in
the Federal Register. In most Instances
of minor modifications, EPA will not
Issue public notice and will Indicate Its
approval by letter.
One commenter requested that there
be no formal EPA review of nominal
changes In the structure and
responsibilities of State agencies
administering an approved program. It
was not the intent of the proposal nor is
It of these final regulations to require
EPA review in such cases. Only when
the controlling Federal or State statutory
or regulatory authority is modified or
supplemented, or when the State
pro .oses to transfer all or part of a
propam from an approved State agency
- to another agency may EPA approval be
necessary. Changes solely In the
Internal structure of an approved State
agency, with no changes In the overall
authority of the agency, do not require
EPA approval.
A new provision (I 123.13(g)) has been
added to reinstate the time periods for
compliance with revised NPDES
requirements by approved State NPDES
programs. Those compliance deadlines
had been suspended on March 13, 1980
(45 FR 16182) to allow NPDES States to
await promulgation of these
consolidated regulations before
modifying their programs.
- 1123.13(g) also requires NPDES States
to Implement the new NPDES
application requirements for existing
diechargers other than POTW’s
contained In § § 122.4(d) and 122.53(d)
and (e), for all discbargers whose
permits expire after November30, 1980
or whose permits expire before
November 30, 1980 but who have not
reapplied prior to AprIl 30. 1980. This is
necessary to assure that the Imminent
round of BAT permit Issuances are
written with adequate knowledge of the
toxic pollutants being discharged. (See
the preamble to the consolidated
application form, published elsewhere In
today’s Federal Register, nd the
preamble to § § 122.53 and 122.62 for
detailed discussion of the new
application, its use in the NPDES
program, and the considerations
Involved in phasing In the use of the
new application.)
While these application requirements
will have to be Implemented more
rapidly by States than other new NPDES
requirements, EPA anticipates that
States should have no difficulty
Implementing them in a timely manner.
EPA is not requiring that States
Immediately develop new forms to
secure the Information required under
§ I 122.4(d) and 122.53(d) and (e). Until
such time as they develop new forms
they may either receive the required
Information without the use of any form.
or they may use EPA’s new consolidated
Forms 1, 2b and 2c (see separate
publicatiân In today’s Federal Register
of EPA consolidated application forms).
EPA will provide adequate supplies of
these forms to States wishinglo use
them. States which develop new
application forms consistent with
* I 122.4(d) and 122.53(d) and (e) will
receive expedited approvaL EPA will
consider these new forms to be
nonsubstantial program modifications
under I 123.13(b)(2).
I 123.14 Criterlo for withdrawal of
Slate programs.
This section was proposed as I 123.14.
One commenter thought that program
withdrawal should be mandatory for
any violation by a State of the
requirements of this Part. Such a
requirement would be draconian and
has been rejected by the Agency and the
Courts. See Love the Boyv.
Administrator, 556 F.2d 1282(5th Cir.
1977).
§123.15 Procedures for withdrawal of
State programs.
This section was proposed as * 123.15.
A commenter suggested that EPA give a
written response to any petition for
wIthdrawal of a State program. This
suggestion has been adopted. Also.
language has been added to clarify that
actions taken by a State prior to
wIthdrawal are valid and are not
affected by withdrawal. Thus, a permit
Issued by a State prior to program
withdrawal would remain valid afte
withdrawaL This provisior ars
§ 123.15(c).
Subpart B—Additional R nt
State Hazardous Waste Prog
Subpart F—Requirements fo
Authorization of State Hazardous W
Programs
RCRA Is unique among the statute
covered by these consolidated
regulations In that it provides for tw.
different types of EPA approval of S
programs—interim authorization,”
which may extend f r only 24 month
after the full Federal program has be
established—and “final authorizatio
which is the same type of permanen
approval authorized by the other
statutes Implemented by this Part.
EPA originally proposed guideline
both Interim and final authorization
State hazardous waste programs urn
section 3006 of RCRA on February 1.
1978 (43 FR 4365). On June 14, 1979, F
reproposed the guidelines as part of
these consolidated permit regulation
Because of the public Interest In the
Federal hazardous waste regulatory
program and because of the particul.
need for States to know early In 198(
what EPA would require for Interim
authorization, the Agency, on Januai
29, 1980, published In the Federal
RegIster (45 FR 8752) Adv
what today’s regulations
requirements for both lnte
authorization of State hazar& .
programs. The Agency did not accep
comments on this Advance Notice, r.
did It respond in the Advance Notici
comments made on the June 14, 1979
proposal.
In the June 14. 1979 proposal. EPA
responded to comments received
concerning the February 1. 1978
proposal and discussed certain prog!
decisions. These will not be reiterati
fully here. However, EPA strongly
solicited comments on many aspects
the proposal pertaining to Interim
authorization. Comments on these
aspects and the basis for this final
regulation for Interim authorization
appears today are addressed balow.
Jn the June 14, 1979 proposal of Pa:
123. requirements for both Interim
authorization and final authorization
were contained In Subparts A and B.
This caused confusion among many
comznentere as to which recuiremen
pertained to which type of authoriza
In order to make the final regulationt
easier to read and work with, EPA h
now separated the RCRA provisi
this Part Into two Subparts—
final authorization and on,
authorization. EPA believt
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Federal Register I Vol.45, No. 98 / Monday. May 19, 1980 I Rules and Regulations
33385
requirements for Interim authorization
are most comprehensible when Bet forth
as a discreet, autonomous subpart of
Part 123.
Thus, new Subpart F Includes all of
e requirements for Interim
duthori2atlon. having explicitly adopted
the applicable portions of Subpart A.
Accordingly. Subpart F can be read as a
unit by those interested In Interim
authorization only. This system will also
allow Subpart F to be dropped from the
Code of Federal Regulations when the
interim authorization period Is over.
Subpart B now Inclades the
requirements for final authorization
additional to those contained in Subpart
A. Although this separation causes some
duplication of requirements which
pertain to both interim and final
authorization. EPA believes this
reorganization will remedy the -
unclearness of the proposal concerning
requirements for Interim authorization.-
Because final and interim
authorization are so closely related, they
are discussed together in this section of
the Preamble. The discussion first
covers two general issues relevant to
both programs. Interim authorization Is
discussed next, since it comes first in
time and is expected to provide the
foundation for final authorization.
Finally, Subpart B concerning final
authorization is discussed.
Equivalence and consistency. One of
he most frequently discussed issues In
the comments on the RCRA portions of
the proposed Part 123 regulations
concerned the extent to which State
programs should be required to be
substantive and procedural duplicates of
the Federal program before they could
be approved for either interim or final
authorization. Many industries argued
for requiring nearly identical State
programs, out of an understandable and
legitimate concern about the burden of
adhering to many dissimilar State
programs, while many States argued for
a more lenient test. for equally
understandable reasons. The basic legal
framework of the problem is laid out
here; EPA’s detailed resolution of the
issue Is explained later In the program.
specific discussion.
RCRA expresses a concern for
national consistency of State programs
during final authorization, but backs-off
from that goal of consistency during
Interim authorization. The statute
requires States with final authorization
to have programs both “equivalent to”
and “consistent with” the full Federal
program. However, during the period of
interim authorization States must have
programs that are only “substantially
equivalent” to the Federal program.
Although these provisions taken
together evidence a clear concern to
avoid duplicative and overlapping
regulations and to make State hazardous
waste control programs relatively equal
to each other and to the Federal
program. particularly during final
authorization, they must be considered
In light of section 3009 of RCRA. Section
3009 of RCRA states that after the
Federal RCRA program becomes
effective, no State may administer a
program less stringent than the Federal
program. The statutory language does
not directly address the question
whether more stringent State
requirements are preempted, though
EPA believes In certain circumstances,
discussed later in the preamble, they
well might be. However, the section
taken as a whole does suggest by
negative implication that RCRA was not
Intended to have sweeping preemptive
effect. Thus States may Impose
requirements under th ir own laws
which are more stringent than the
Federal requirements, but section 3008
forbids EPA from approving these
requirements as part of a State final
authorization program if they are
“Inconsistent” with the Federal program.
Accordingly, establishing very tight
standards for EPA approval of State
programs would not necessarily
advance some of the basic goals of the
statute—to establish Federal minimum
standards, but not abruptly halt the
- development of State programs. and to
reduce the existence of overlapping or
duplicative Slate regulatory programs.
Indeed, setting a very high threshold
might produce the reverse effect by
removing an Incentive for States to take
moderate steps to make their program
more similar to the Federal program. but
not Identical to it.
Though EPA has tightened a number
of the requirements for approval of State
• programs, It has not accepted the
comments calling for the programs to be
Identical, Instead, as discussed below, II
has adhered to a more flexible
approach, particularly where interim
authorization is concerned. Final Slate
RCRA programs though may not be less
stringent than the Federal program.
Review of State permits. Section
3008(a)(3) of RCRA authorizes the
Administrator, after gwing notice, to
revoke any R A permit whose holder
is in violation of any of the requirements
of Subtitle C, or State requirements
established under that Subtitle, aid to
assess a civil penalty against that
person. The statute explicitly allows this
whether the permit concerned was
Issued by EPA or by a State with an
approved program.
The proposed regulations did not
specify any restrictions on this
authority, and thus by Implication
allowed It to be used at any time. (This
Implication was reinforced by the very
broad grounds for modification of RCRA
permits set forth in proposed § 122.9.)
In these final regulations, EPA has
made more explicit and narrowed the
grounds on which It will move to revoke
State-Issued permits or enforce against
their holders. First, EPA may take such
actions at any time, after giving notice to
the State, If the holder of a State-issued
permit has not complied with Its terms.
EPA intends that States should have
primary enforcement responsibility, but
the Agency retains independent
enforcement authority in an approved
State and will use It to the extent a State
fails to take necessary enforcement
action. Beyond that, the regulations
state that EPA will only revoke Stale-
Issued permits or enforce against their
holders to the extent permittees do not
comply with conditions included in
comments made by EPA during the
period for review of State permits
required by § § 123.8, 123.38, and 123.134
and which EPA stated were necessary
to Implement approved program
requirements. EPA comments on the
proposed State permit would only
address whether the permit properly
implemented the approved State
requirements, not whether it
implemented the Federal requirements
that were not effective In the State. EPA
does not intend to take enforcement
action against a State permit holder who
Is in compliance with a condition
commented upon by EPA during its
review period and recommended for
Inclusion In the permit. even though the
condition Is not inc’uded In the permit.
This Is clearly not a result EPA intended
In establishing these permit review
procedures. Permit applicants will be on
notice as to comments made by EPA
during the review period as these
comments will be sent to the permit
applicant before the permit is issued.
This approach means that in cases
where EPA has no comments on a State
permit or where the comments are
successfully accommodated, compliance
with the State permit will be deemed
compliance with the requirements of the
State program and Subtitle C, for
Federal enforcement purposes, apart
form an “imminent hazard” action wider
section 7003. However, it also reserves
to EPA the authority to prevent a State-
Issued permit from shielding owners and
operators from Federal enforcement to
the extent that EPA has timely
expressed its views that the permit in
question Li not adequate to carry out the
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33386 Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations
purposes of RCRA. This will allow EPA
a measure of control over State RCRA
programs short of the drastic and often
impractical step of withdrawing
program approval. The language of
section 3008(a)(3) indicates that
Congress had such an oversight role in
mind when State-issued RCRA permits
were concerned.
EPA will follow this approach both in
States with final authorization and In
States which are issuing permits under
Phase II of interim authorization. During
Phase I of interim authorization.
‘Interim status standards” or their State
equivalents apply to facilities which
have not received a full RCRA permit.
Some States with Phase I interim
authorization may elect to enforce their
version of the interim status standards
by granting permits containing those
conditions. This appronch is perfectly
acceptable. However, a permit
containing those standards has no status
as a RCRA permit and does not relieve
the facility holding it of the obligation to
apply for and receive a full RCRA
permit when the Director requests.
Interim Authorization
123.121 Purpose and scope.
As noted above. RCRA is unique
among the programs covered by these
consolidated regulations in providing
not just for full and permanent
authorization to States to administer a
permit program instead of EPA. but also
for a preliminary transitional stage
called “interim authorization.” Section
3006 (c) of RCRA provides tha!
Any State which has in existence a
hazardous waste program pursuant to State
law befure the dale 90 day. after the date of
promulgation of regulations under sections
2002. 3003, 3004. and 3005. ,tay submit to the
Administrator evidence ci such existing
program and may request a temporary
authorization to carry out such program
wider this subtitle. The Administrator shall. if
the evidence submitted shows the existing
Slate program to be substantially equivalent
to the Federal program under this subtitle,
want an interim authorization to the State to
carry out such program In lieu of the Federal
program pursuant to this subtitle for a 24-
month peried beginning cn the date 8 months
after the date of promulgation of regulations
under sections 3002 through 3005.
Unlike final authorization programs,
which toust be “equivalent” to the
Federal program. “00nsistent” with the
Federal program and programs in other
States, and provide adequate
enforcement assurances, the State
Interim authorization program must only
be “substantially equivalent” to the
Federal program. The legislative history
emphasizes Congress’ Intent that interim
ai ’ borization be granted in a relatively
liberal manner so as not to disrupt on-
going State efforts and to encourage
States to continue their efforts so that
they will be ready to take over
responsibility for the full program when
interim authorization is over.
Thetimlng and conditions for interim
authorization, and the relationship
between various State programs and
between the Federal program and State
programs under interim authorization,
have been among the most difficult
questions to be addressed in these
consolidated regulations.
In the proposal, EPA specified a single
starting date for-interim authorization,
namely “the date 6 months after the
promulgation of regulations under
section 3001 of RCR.A.” The proposed
requirements for obtaining Interim
authorization were relatively loose. A
Stale was not required to have a
program for listing and designating
hazardous wastes or for implementing
the manifest system in order to obtain
Interim authorization. Instead it was
only required to control by permit either
on-site or off-site hazardous waste —
disposal facilities and to conduct an
effective enforcement program.
The final regulations significantly
change the approach taken lxi the
proposal. First, the interim authorization
program will be implemented in two
“phases” corresponding to the two
stages in which the underlying Federal
program will itself take effect: The
reasons for and mechanics of this
approach are discussed immediately
below. Second, the requirements for
approval of interim authorization have
been tightened significantly. A much
greater degree of similarily to the
corresponding requirements of the
Federal program will now be required.
As the preamble to the RCRA section
3004 regulatIons sets forth. EPA will
establish the regulations setting up the
RCRA program In its initial form in two
stages. The first set of regulations (or
“Phase 1”), which will become effective
6 months from the date of their
promulgation, will accomplish the initial
identification of characteristics of
hazardous waste and listing of
hazardous wastes (Part 261), establish
the standards applicable to generators
and transporters of hazardous wastes,
including establishing the manifest
system (Parts 282 and 283). erect
“interim statue” standards applicable to
existing HWM facilities before they
receive permits (Part 265) and set out
permitting procedures (Part 122).
The’second set of regulations (or
“Phase II”). to be promulgated In the fall
of 1980. will complete the job of
establishing the initial set of standards
that govern the operation of HWM
facilities. Full permitting of these
facilities will be able to proceed on
effective date of these rep-
two-stage approach has
only practical way, given, of
regulatory task involved, of p
program in motion expeditio
As far as the Federal progr .
concerned, the only concrete operat:
difference that will flow from this t’
stage approach. as opposed to one ir
which the regulations were all
promulgated at once, will be that a
period of 6 months will be created
during which existing HWM facilitie
will be subject to interim status
standards but no permits will be issL
However, as the preamble to the sec
3 (304 regulations explains, the statuti
explicitly foresees that many faciliti’
will not be permitted for years after
program starts and provides for “mt
status” for these facilities. The two-
stage approach operates within that
basin understanding.
It would be Inconsistent and conti
to Congressional intent to establish
interim authorization in one stage or
when the basic Federal program is b
established in two stages. As a pract
matter, a one stage Interim authoriza
program could only have been done
postponing the beginning of interim
authorization until after both stages
the Federal program were ‘Igat
That would have meant c - *
period of 6 months in whiq
run a purely Federal progran
any possibility of a State form.... ,
It over. This would have been contrd
to the Congressional desire that Stat
take formal responsibility for the
program as soon as possible.
For these reasons. EPA has electe
allow interim authorization for the ii
phase of the Federal program as wei
for the second. EPA believes this
approach is legal under the statute.
Section 3006(c) of RCRA consists
two sentences embodying somewhat
different policies. The second senten
requires EPA. upon finding that a St;
program is “substantially equivalent
the Federal program, to
grant an Interim authorization to the Stat
carry out such program in lieu of the Fedi
program for a 24-month period beginning
the dateS months after the date of
promulgation of regulations under sectior
3002 through 3005.
This sentence allows States 2 year
from the effective date of the regulat
establishing the full Federal program
Its Initial form to come into compliar
with the Federal program and. dir
that grace period, allows Fe-’
approval of State program
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Federal Register I Vol. 45, No. 98 /. Monday. May 19. 1980 I Rules and Regulations
33387
yet meet the equivalency test required
for final authorization.
The approach EPA has adopted
carries out that policy by limiting
Interim authorization to 2 years from the
ifective date of the full initial RCRA
program regulations, which Includes the
Phase U regulations to be promulgated
next fall. It would have been consistent
with the literal language of this second
sentence to have limited interim
authorization to a two year period
beginning on the effective date of the
Phase I regulations, and EPA considered
that approach.
However, that approach would have
failed bntfrely to carry out the policies In
the first senter.ce of section 3008(c).
That sentence reads:
Any State which has In existence a
hanardous waite manaijement progra’n
pursuant to State law before the date 90 days
after promulgation of regulations undur
secttons 3002 3003. 3004. and 3005 may
submit to the Administrator evidence of such
existing program and may request a
temporary authorization to carry out such
program under this subtitle.
This sentence expresses and the
legislative history unde’lir.es, an Intent
that States be able to apply for interim
authorization and get It promptly after
promulgation of regulations setting up a
meaningful regulatory program under
Subtitle C. To forbid application until
after promulgation of next fall’s
regulations would not have been
consistent with that purpose.
Accordingly. EPA has elected to allow
interim authorization for this stage
(Phase I) of the program as well. Though
this technically will result in interim
authorization in some cases extending
for more than the 24 months specified by
the second sentence of section 3008(c).
the purpose behind that 24-month ceiling
will be preserved, and EPA feels the
extension is necessary to carry out the
purposes of the section as a whole.
Preconditions to applying. Section
3006(c) of RCRA provides that interim
authorization may only-be granted to
States which have “In e,dster.ce a
hazardous waste program pursuant to
State law’ no more than 90 days after
promulgation of the RCRA program
regulations.
EPA Interpreti the word “program” as
used above to mean enabling legislation
only. EPA believes this interpretation is
In keeping with Congress’ desire to give
States which have begun developing
hazardous waste programs enough time
to bring these programs into conformity
with Federal requirements. Ninet!’ days
from the date of promulgation of the
substantive Federal regulations—when
their final terms become known for the
first time—would be an extraordinarily
short time In which to require States to
react to them and bring their regulatory
programs as a whole into “substantial
equivalence” with them. Given the
statements favoring use of interim
authorization In the legislative history of
RCR.A. we do not believe that Congress
intended such a strict reading. Although
EPA will not require States to have more
than legislative authority In place to
meet the 90-day cutoff, it will require all
aspects of the State program to be
“substantlafly equivalent” to the Federal
program by the time interim
authorization Is actually granted.
For these reasons EPA Interprets the
relevant statutory provisions as
requiring States to have the necessary
legislative authority In place 90 days
after promulgation of the Federal
regulations. Since there will be two
phases of Federal regulations and
Interim authorization for each phase, the
requirement for legislative authority will
be applied to each phase separately.
States that wish to apply for Phase I
interim authorization must have
legislative authority for Phase I within
90 days from today. States that wish to
apply for Phase H interim authorization
to administer a program in lieu of the
full Federal program as it will exist after
next Fall must have the legislative
- authority necessary for Phase II in
exIstence 90 days after promulgation of
the Phase U regulations.
§ 123.122 Schedule.
With the issuance of these
regulations, events and possibilities
surrounding State assumption of the
RCRA program will begin to unfold as
follows:
Phase! application. A State may
apply for interim authorization for Phase
I of the Federal program, without an
accompanying application for Phase II.
during the period between the
promulgation of requirements for Phase
L today. and the effective date of the
Phase II regulations, which will be 8
months after their promulgation, or
some time In the Spring of 1981.
This application window,
approximately 1 year In length. will
divide roughly into a first half.
consisting of the estimated 0 months
between promulgation of Phase I and.
promulgation of Phase U and a second
half, consisting of the 8 months between
promulgation of the Phase II regulations
and their effective date.
During the first half of the “window.”
before Phase U is promulgated. only
applIcations for Phase I will be
possible. Although an argument can be
‘flu, issue of the Fedesal Regists, contain,
EPA’s Initial let of wastes under section 3005 of -
RCRA. In June, EPA expect, to list additional
made that after the Phase II
requirements are known, only
applications for complete interim
authorizalio induding both Phase I
and Phase II, should be permitted. EPA
has not accepted that argument In these
regulations. To be approved for interim
authorization, a State program must
show “substantial equivalence” to the
Federal program. As discussed later In
this preamble. EPA has significantly
tightened the standards for making that
showing over those set forth In the
roposal, and It can be expected that In
some cases States will have to make
quite a few changes In their existing
programs to conform them to the
“substantial equivalence” requirement.
Six months may often be too short a
time for that, and so a year has been
allowed. Letting this year overlap the
promulgation date of the Phase U
regulations will mean that there will not
be any abrupt Interruptions In filing and
processing of State applications for
interim authorization. By contrast.
forbidding State applications that did
not include Phase II as of the
promulgation date of Phase II would
create a period when no interim
authorization applications could be filed
because States would be adjusting their
programs to the newly prcmulgated
Phase U requirements. A discontinuity
of this nature would be contrary to the
Congressional intent that interim
authorizations not be subject to
avoidable obstacles.
Phase II application. A State may
apply for interim authorization for Phase
U of the Federal program (and Phase I.
at the same time, (fit has not already
been approved for Phase I). any time
between the time the requirements
establishing Phase U are promulgated.
sometime next fall, and 6 months after
the effective date of those regulations.
which is expected to be approximately
October of 1981.
Relationship between Phase I
authorization and Phase I!
authorization. As noted above, forO
months after promulgation of the Phase
.11 regulations, a State may apply for
Phase I interim authorization or for both
Phase I and II or for Phase U Interim
authorization, if It already has Phase I
authorization (or for final authorization).
A State may never obtain only Phase (I
interim authorizaUo Starting with the
effective date of thu Phase U regulations
wastes and the candidate. for that Il.tin have e zo
been published today. EPA encourage. States
applying for intenes authorization before the Jwio
promulgation to include the wastea set forth today
sa candidates foe listing lb June in their Phase I
submissions. That will avoid lie need to supplemeci
the application later and wiU reduce c.Mluaion and
paperwork.
-------
33383 Federal Register I Vol. 45, No. 98 I Monday May 19,1980 I Rules and Regulations
in approximately April of 1981, only
applications for Phase IL or for Phase I
and II combined, will be accepted.
All Phase I interim authorizations will
expire automatically 6 months after the
effective date of the Phase II regulations,
or approximately October 1981 if a
Phase II application has not been filed
by that date. In other words, any State
with Phase I interim authorization must
apply for Phase II approximately by
October1981. or lose the program. EPA
established this requrement to mini,nI .
• the time during which States would be
operating Interim authorization
programs that did not correspond to the
then effective Federal program. and to -
keep States moving toward final
authorization. The dates adopted allow
States approximately 12 months after
promulgation of the Phase U regulations
to apply for Phase 11 interim
authorization. This is the same length of
time allowed to States to file Phase I
applications, and was set for the same
reasons. It allows a period of 6 months
(approximately April 1981 to October
1981) when States could be operating
Phase I programs even though the Phase
II program was effective. Although such
a phase-in time is inevitable if the
Interim authorization process Is to be
kept operating without avoidable
interruption u Congress intended, It has
obvious potential for creating confusion
and Inconsistency and its duration
should be minimized. Finally. cutting off
Phase I is desirable as a means of
making sure that States are moving
toward final authorization at least to the
extent of adopting the requirements
necessary for Phase II.
Relationship between interim
authorization and final outhorizotion. A
State may apply for final authorization
at any time after the Phase II regulations
are promulgated. Final authorization. if
granted, automatically ends Interim
authorization in that State and the
applicability of Subpart F.
No applications for Interim
authorization of any sort will be
accepted more than 6 months after the
Phase U regulations become effective. In
other words, no applications will be
accepted after approximately October of
1981. EPA has established this
requirement because applications made
after this date, taking into account the -
necessary period for processing and
approving a State submission, would
result in conferring interim authorization
that would at most, last only slightly
more than a year before It would
automatically terminate. This Is too
short a time to justify the administrative
effort required to draw up and approve
the application, particularly when an
application for final authorization would
have to be drawn up. reviewed, and
approved within that same year.
Finally, as the statute requires, any
State with Interim authorization that has
not received final authorization 2 years
after the effective date of the Phase IL
regulations (about April 1983) will
automatically lose interim authorization
and the program will revert to EPA. (See
Schedule of Events.)
SIL&DIS coca 1 51041-M
-------
Federal Register i’ Vol. 45. No. 98 / Monday. May 19. 1980 / RñIes and Regulations 33389
SCEEDULE OP EVENTS
Federal
Proaran
Phase I co=ences
Phase I
pro ul atedI 6 months I
I leffective
Phase Ilcomnences
Phase II
próaulgatedl 6wonths I
I leffective
Stare
Pro razs
Interin
Authorization
I 24 nos I Expire
I 6 os I 6 os 16 I 18 os
I I I I
Application
for Phase I ________________________________I
without I
Phase II
A plication
for Phase ti _________________________
for Prograns I
with Phase I
Application
icr Phase I
and _________________________
Pha:;e II - I
(si u.taneous)
Application
f r Final
Authorization
LuI O coos 551o,,I-c
-------
33390 Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations
Manifest system. In general. as•Iater
portions of this preamble discuss. State
programs approved for Phase I or Phase
II must be substantially equivalent to
each part of the corresponding Federal
program. For reasons also discussed
later. EPA has made an exception for
the manifest system and associated
generator and transporter requirements
promulgated as part of the Phase I
program. State programs that do not
contain provisions corresponding to
these standards may still be approved
for Interim authorization. More
precisely, a State will have three choices
In deciding how to deal with these
requirements:
1. It may apply for Interim
authorization for these requirements
along with the rest of its Phase I
application. This would have been the
required course If EPA had not made
special provision for this part of the
program, and It may still be the option
chosen by a State.
2. A State may apply for interim
authorization to run the manifest system
as part of Its Phase II application, even
though the corresponding Federal
requirements were promulgated in
Phase L EPA will operate the manifest In
that State during Phase I. The only
restriction placed on this application
that will not be placed on Phase II
applications for other parts of the
program Is that the legal authority for
the manifest system must have been in
place no later than 90 days after the
promulgation of Phase I. Since the
manifest system is part of Phase I of the
Federal program, this requirement is
necessary to satisfy the requirement of
RCRA that States only be granted
Interim authorization if they have a
program “in existence” 90 days after the
promulgation of the Federal program.
3. FInally, a State may apply for and
receive both Phase I and Phase II of
interim authorization without being
authorized to run the manifest system.
In that case, EPA will operate the
manifest system In that State throughout
Its interim authorization. Assumption of
the manifest system will still be required
in these States before final
authorization.
§ 123.123 Elements ofaprogram
submission.
This section lists the elements a State
must submit to EPA in Its application for
jnterim authorization. It Is largely
derived from relevant portions of
* 123.3. the corresponding provision
governing final authorization. Due to the
phased nature of interim authorization,
a State will have to amend all or some
of the elements in its Phase I application
when It applies for Phase IL
* 123.124 Program description.
This section lists the required
components of a complete program
description, which is one element of the
program submission. It Is largely derived
from * 123.4, the corresponding
provision governing final authorization.’
In the June 14, 1979 proposal. only the
RCRA program mandated Statel to
Identify a lead agency for State
hazardous waste program approval.
EPA received several comments noting
this fact. One commenter stated that by
this requirement EPA was Improperly
dictating a State’s internal organization.
The Intent of the requirement was only
to facilitate communication between
EPA and the State. due to the
multimedia nature of the RCRA
program. The term “lead” means only
“the principal point of contact with
- EPA.” and does not refer to overall
program responsibility.
§ 123.125 Attorney General’s
statement.
In accordance with the provisions
described above, the Attorney General’s
statement must attest to the enactment
of any necessary legislation within 90
days of promulgation of the phase of the
Federal program for which interim
authorization Is sought.
As with the other program elements.
Attorney Generals’ statements
submitted for Phase I authorization will
probably have to be amended to ke
acceptable for Phase U.
§ 223.128 Memorandum of agreement.
This section contains the required
components of the Memorandum of
Agreement (MOA). The MOA is also a
part of the program submission under
§ 123.123. It largely derives from § 123.6,
the corresponding provision governing
final authorization. Those components
of the MOA which concern only
permitting procedures and which are not
relevant until the commencement of
Phase II. have been distinguished and
put In a separate paragraph and need
not be included In MOM which are pail
of a Phase I application. Any MOA
negotiated during Phase I must be
amended at the time of the Phase U
application to incorporate required
Phase II components.
EPA’s authority to inspect has been
modified slightly in the final rule, in that
* 123.126(b)(8) has been added to clarify
that the MOA cannot limit EPA’s right to
Inspect generators, transporters, or non-
major facilities when there is cause to
believe a facility is not in compliance.
One commenter stated that EPA’s
Inspections should be limited to only
“problem sites.” This implies that EPA
should become involved only after an
activity has been identified as a
TM problein.” This would negate a
significant aspect of the oversigi
which is to ensure that problem a.. -“
not arise or are Identified in the first
place.
An additional comment on EPA’s
Inspection authority was that only EPri
employees can perform inspection, not
Agency contractors. This is correct as
the Act now stands. However, EPA
believes the statute permits EPA
employees to be accompanied by
contract personnel who will assist them
In their work. The extra personnel add
little to the degree of intrusiveness
which would result A Federal employe.
will be in charge and will be required to
obtain any necessary warrant. The
assistance of contract personnel Is likely
to mean, however, that the substantive
goals of the Act will be better served.
§ 123.127 Authorization plan.
This is a provision of the Subpart F
regulations that does not have any
counterpart In Subparts A or B. It
requires States which apply for interim
authorization to set out in some detail
how they will use the time of interim
authorization to qualify for final
authorization.
The statute obviously intends interim
authorization to be a stepping-stone to
final authorization. Beyond this. r
disruption would occur if a large
of States with interim authorfzatk.
not qualify for final authorization w
Interim authorization was over. The
• program would then revert In full to EPA
and would have to be redelegated over
the ensuing years as States pulled the
necessary authorities together. For these
reasons. EPA has required States to
assess and document in advance the
actions needed to establish the final
program.
As the regulation explicitly provides
States must submit their authorization
plan with the Phase I application and
update It with their Phase II applicatior:.
Of course, the authorization plan with
the Phase I application only needs to
address the portions of the final program
that are Included in Phase I. The final
requirements contained In Phase II—
basically the detailed technical
standards for treatment, storage, and
disposal of hazardous wastes—can be
addressed for the first tune In the Ph.ise
II application.
The Attorney General’s statemen:
required under § 123.125 must certify
that the authorization plan, if carried
out, would meet the requirements of
final authorization.
EPA does not agree with the co-
that EPA should make the decisli
-------
Federal Register / Vol. 45, No. 98 I Monday. May 19, 1980 I Rules and Regulations
33391
what modifications are necessary for
final authorization. Although EPA will
provide guidance and assistance to the
State In developing Its authorization
ilan, it is the Slate which Is in the best
1 ,os ltlon to identify required revisions
and modificaticns and to determine how
best to accomplish them.
H 123128 ondl23.129 Program
requirements for interim authorization
for phase I and for phase Ii.
These sections set forth the
substantive requirements for an
approvable State interim authorizatian
program. They have been entirely
rewritten because EPA’s position on
program requirements for interim
authorization has changed significantly
since the June 14. 1979 proposal. There
EPA stated that eligibility for interim
authorization “would require the Stites
to implement (i.e.. regulate and enfcrce)
controls over at least either on-site or
off-site disposal of hazardous wastes.”
EPA agrees with the numerous
commenters that argued that a State
should have a fundamentally complete
hazardous waste management program
as compared with the Federal program
In order to receive interim authorization.
In addition, this final regulation Is
much more specific than the proposal In
describing what a State program must
do to receive interim authorization. This
specificity should alleviate the lack of
clarity in the proposed regulations
which numerous cornmenters pointed
out.
in rewriting these provisions EPA had
to deal with the question of the degree
of similarity to the Federal program It
should require of State programs before
approving them for interim
authorization, and the question of
whether Slate programs including less
than all the requirements of the
corresponding phase of the Federal
program should be approved.
Degree of similarity. In establishing
the substantive requirements for interim
authorization. EPA has had to balance
two competing inter ts evident In
PCRA, Ite leg slatIve history, and the
public comments on EPA’s proposed
guidelines for State programs. These two
Interests are (1) assuring that at least a
minimum level of protection of the
human health and the environment is
established nationwide: and (2)
encouraging continued development of
States’ own programs without
disruption. so that as many States as
possible can assume responsibility for
the program.
The legislative history indicates that
Congress created interim authorization
to reconcIle these two interests. Inierixn
authoriza lion allows State programs
time to achieve the desired level of
control (complete equivalence with the
Federal program). but also requires such
programs to provide an adequate degree
of protection to human health and the
environment. Congress specified in
section 3006(c) that a State could receive
interim authorization if its program was
“substantially equivalent” to the Federal
program, leaving It up to EPA to define
“substantial equivalenceS
There were several public comments
on the need for a working definition of
this term, in order to remedy its
vagueness. EPA now defines substantial
equivalence as “to a large degree, or in
the main, equal in effect.” “Effect,” of
course, could mean either effect in
protecting health and the environment
or effect in the sense of requirements
Imposed on regulated Industries and
others. EPA has and intends to keep
both these meanings in mind, as well as
ccncerns about State autonomy, in
judging the substantial equivalence of
State programs. So. for example,
variations in the manifest system, which
calls for eventually creating a single
accounting system to track wastes from
State of origin to State of deposition,
could be extremely burdensome to the
companies that would have to cope with
the incop.sistenciea, and to the
governments that would have to
regulate taking the differences in the -.
manifest systems into accounL Here,
both concern for the envircnnient and
concern for avoiding regulatory burden
argue for a relatively high degree of
similarity. Permitting standards, by
contrast, will be applied in local
decisions, and the initial Federal
standards will leave a good deal of
discretion to permit-writers. Here the
a.”guments for uniformit) are weaker.
though EPA sets nilr.lmum standards to
assure protection of human health and
the environment.
EPA believes this general working
definition, and the specIfic requirements
found In these sec’ions, represent a
middle ground between the approaches
advocated in the public comments. The
common:s ger.erally fe!l into two groups.
Sonic comm enters wanted EPA to
require States to regulate all fac litles
that the Federal program would, and
wanted State standards to be very
similar ‘o the Federal standards. Others
thought that States should only require
minimal coverage of either on-site or off-
site disposal during interim
authorization, and thought EPA need not
examine the substance of State
requirements or compare them to
Federal requhements, but only examine
the effectiveness of the State program.
At least one commenter suggested
that the regulations should explicitly
state that a State program may be less
stringent than the Federal program for
Interim authorizaUo The Agency
believes that while section 3009
disallows imposition by a State of “any
requirements less stringent than those
authorized under this subtitle respecting
the same matter as governed by (EPA)
regulations. . .,“ section 3009 was
clearly not intended to mandate
application of a “no less stringent”
standard to State programs which seek
interim authorization. Application of
section 3009 to such State programs is in
direct contradiction to the “substantially
equivalent” standard for interim
authorization mandated In section
3006(c).
- Thus, EPA will not apply the mandate
of section 3009 to States seeking interim
authorization. This position Is
unchanged from the Agency’s position in
the June 14. 1979 proposal. EPA will,
however, apply the mandate of section
3009 to State programs seeking final
authorization and all State programs
will be required to satisfy section 3009
to receive final authorization.
EPA also believes that States that
have not received interim authorization
are subject to the “no less stringent”
requirement of section 3009. However,
as a practical matter, It Is unlikely that
EPA in the early years of the program
would treat this as a matter of high
priority and take enforcement actions.
Portia/programs. Because hazardous
waste management is generally a new
activity for State governments. it Is
inevitable that many States will not. by
the effective date of the Federal -
program, have in place programs which
control all of the same aspects as the
Federal program controls, especially
since many State regulations will be
patterned after the Federal regulations
which are Just now being promulgated.
This situation raised a major policy
decision for EPA. The Agency had two
options:
(1) To authorize immediately those
parts of a State program that are
substantially equivalent to the Federal
program. or
(2) To postpone authorization in a
State until the entire State program is
substantially equivalent.
In the June 14, 1979 proposal the
Agency rejected partial programs for
final authorization. The Agency,
however, solicited comments on the
possible alternatives to EPA regulation
of activities that are not regulated by the
State during interim authorization.
Comments ranged from endorsement of
interim authorization of parts of State
programs which meet Federal
-------
33392 Federal Register I VoL 45,. No. 98 I Monday, May 19, 1980 / Rules and Regulations
requirements, to rejection of State
regulation of certain activities and EPA
regulation of others. Conunenters -
strongly urged clarification of this point.
With one major exception, EPA has
chosen to postpone interim
authorization In a State until the entire
State program for the relevant Phase of
the Federal program Is substantially
equivalent to the relevant Phase of the
Federal program. The exception.
covering the manifest system and other
generator and transporter requirements,
Is discussed below. 3
In all other areas, the Stale program
must be substantially equivalent to the
relevant phase of the Federal program.
Further fragmentation of the program
with a variety of program parts divided
between the State and EPA would result
in excessive complexity for regulated
parties. -
§ 123.228(o) (IdentificatIon and listing
of hazardous wastes). This paragraph
provides that States seeking Interim
authorization must demonstrate control
over a “a universe of hazardous wastes
generated. transported. treated, stored.
and disposed of in the State which is
nearly Identical to that which would be
controlled by the Federal
program. ‘
The definition of substantial
equivalence for the identification and -
listing of hazardous wastes is one of the
keys to control of hazardous waste by
States during interim authorization. This
definition will necessarily determine
what wastes will become part of the
hazardous waste management program
required by RCRA. thus assuring their
proper management. W stes outside of
the definition will not receive the
attention RCR.A affords. Thus, It is
Important that during interim
authorization States be required to
control as many hazardous wastes as
possible without detracting from the
basic concepts of substantial
equivalence and interim authorization.
In setting the appropriate level of
control EPA had to balance arguments
that States be required to control
exactly the same wastes as controlled
under the Federal program, that differing
definitions and lists would create
Intolerable inconsistencies and that
States only control a universe of wastes
“substantially equivalent” to the Federal
program.
EPA cannot accept the suggestion that
interim authorization be granted only to
States that define hazardous wastes In
the same manner as EPA defines
hazardous wastes. Present State laws
and regulations define hazardous
wastes in ways which make It likely
that few if any States now cover exactly
the same wastes as Identified in the
section 3001 regulation. Time will be
needed to bring the State definitions
into conformance with the Federal
definition.
It Is true, however, that al )owing
different States to have definitions or
lists of hazardous wastes which are
different from each other or from the
Federal definition or list has the
potential for creating considerable
confusion. When a waste moves from a
State In which It Is defined or listed as
hazardous into one where It Is not, or
the reverse, questions of how to deal
with the waste and how to treat the
manifest documents will arise and must
be dealt with. EPA’s answers to those
questions are given below, but the
problem will not arise at all to the
extent the “universe” of wastes Is the
same from State to State.
The burdens created by these
inconsistencies will vary, of course, with
their extent. In an attempt to minimize
them without forcing all State programs
into the same mold immediately, EPA
has adopted a somewhat tighter
formulation of the basic test of
“substantial equivalence” here than for
other elements of interim authorization
due to the greater potential for berm
from wastes not defined or listed as
hazardous and not properly managed
even during interim authorization.
I 123.128(bHd) (Generator,
transporter, and related manifest
requirements). The one area where EPA
will allow an exception to a complete,
substantially equivalent State program
is the manifest system and the
associated generator and transporter
requirements. It appears to EPA that
these are the parts of the Federal
program for which States would have
the most difficulty In meeting the
substantial equivalence test by the
effective date of Phase L In particular,
many States probably will not have a
manifest system in place that
adequately controls interstate shipments
of hazardous wastes consistent with the
Federal manifest system. EPA does not
believe that the lack of authority f” this
program part should cause Stat
denied Interim authorization. ‘I
approach could result in a great —
States being denied interim
authorization contrary to basic
Congressional intent.
123.128(d) therefore allows EPA to
administer and enforce the Federal
nationwide manifest system and
generator and transporter requirements
in a State without depriving the State of
Interim authorization for the rest of its
program. This specific option Is new,
though in the proposal EPA did discuss
the alternative of an entirely Federal
manifest system. In the June 14, 1979
proposal EPA suggested that States must
Implement all statutory and regulatory
hazardous waste management
authorities they possess. EPA received
comments on this point, and now
believes that this consideration must
yield to the concern for consistency and
uniformity in the manifest system, which
Is the heart of the “cradle.to.grave”
control system of RCRA, and has
significant consequences on interstate
commerce. States not authorized to run
the manifest system during Interim
authorization should work to develop a
manifest system and associated
generator and transporter standards
equivalent to and consistent wit -
Federal system as required for’
authorization.
In order to obtain inter.m
authorization, States are not requirea to
have statutory or regulatory authority
over certain aspects regulated under the
Hazardous Materials Transportation
Act by the Department of
Transportation (DOT). However, this
authority will be required for final
authorization. These aspects include
requirements for accumulation of
wastes in containers meeting DOT
standards prior to shipment; packaging.
labeling, marking and placarding of
wastes; the forwarding of the manifest
or shipping document for shipments
solely by railroad or solely by water
(bulk shipments only): and provision of
the DOT proper shipping name.
This approach to interim authorization
was taken in order to avoid the potential
disruption of existing State programs
which could occur if adoption of these
DOT provisions necessitated hasty
legislative and/or regulatory char.gos.
For interstate transportation of
hazardous waste these DOT
requirements operate independcntiy of
the requirements that are contained in a
State hazardous waste program. mi ”
degree of control of hazardous v
and protection of human health
fle phasing of Interim authoi zation can also be
seen as the authOrization of past of a Slate propa
and thus as another excepuon to the ieqwremenl
for a ceinpicte State program EPA does not view It
this Way, however for two re.isons. First, the two
phases at Interim authorization are necessitated by
the tw phases of the Fedar.il regulatioos. and the
State program for Phase I oi Phase II will be
substantially equtvalent to the Federal psogrem for
Phase land Pbaee O end second, EPA does not
intend to authorize a State for only one phase of the
progrem (evidenced by the suto.i iattc reversion of
Phase Ito EPA if a Stats doe. not apply for, or Is
d. nhed.PtiaaeU).
For example. since EPA will not enforce the
Federal requirements for those elemei,i . of. Slate
program which It baa authorized, further
fragmentetion of program approval would siiblect
the reguleted coinnunity toe patcht ’ork of Suite
and Federal regulations.
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Federal Register I. Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations
3393
environment substantially equivalent to
the Federal program Is afforded in other
States without the need for a State with
interim authorization to include in its
program the authority to administer (and
enforce) these requirements. In other
words, the aspects of DOT’s program
listed above must be complied with for
the interstate transportation of
hazardous waste in a State with interim
authorization authorized to operate the
manifest system. In such a case, the
universe of wastes subject to these
requirements Is the Federal universe, as
defined by 40 CFR Part 261. Any
generator or transporter proposing to
ship a waste Interstate which Is
hazardous under Part 261 must comply
with DOT’s requirements.
Shipments of hazardous waste by
Intrastate motor carriers are not subject
to DOT requirements during interim
authorization, although the majority of
States have adopted DOT requirements
in their motor vehicle codes or by other
means. For the reasons stated above,
EPA has chosen not to set minimum
requirements respecting these standards
as a condition for interim authorization.
However, since the transportation of
hazardous waste by interstate carriers
will be subject to DOT regulations, EPA
encourages States to adopt
transportation requirements which are
consistent with DOT’s regulations.
In addition. EPA will continue to
require reports directly to It of
international shipments of hazardous
wastes. This is uniquely an issue that
concerns the National Government, and
requiring reports directly to EPA Is the
simplest procedural mechanism for
ensuring that there is a central national
repository of information about those
shipments.
§ 123.128(e) and 123.1Z9 (Hazardous
waste treatment, storage. and disposal
facilities). During interim authorization a
State must have authority to regulate all
types of hazardous waste treatment,
storage and disposal facilities except
those that do not exist in the State on
the date of interim authorization. This is
a significantly stricter requirement than
the one that appeared in the June 14.
1979 proposal.
When Phase U Is concerned, a State
must have in effect a permit program
substantially equivalent to the Federal
hazardous waste permit program,
including substantially equivalent public
participation provisions.
EPA cannot accept the suggestion that
a system of permits by rule more
extensive than the one in the Federal
system be accepted for purposes of
Interim authorization. The safety and
control of HWM facilities, particularly
In the early years of the program. ill be
to a great extent a matter of site.specilic
judgment requiring site-specific
examination.
As discussed In more detail earlier in
this preamble (Part 122, Subpart B—
Additional requirements for Hazardous
Waste programs), the Agency has
integrated the overlapping requirements
of RCRA and SDWA relative to the
underground Injection of hazardous
waste into wells. Briefly, the approach is
as follows: Existing wells that receive
hazardous waste will be considered to
be “hazardous waste management
facilities.” During the “interim status”
period their owners or operators will be
required to comply with certain
requirements of 40 CFR Parts 122 and
265, Including such requirements as
filing of notifications and Part A permit
applications, and compliance with the
manifest system and interim status
standards. As discussed In the preamble
to Part 22, Subpart B. EPA also will
make provisions for Issuing interim
RCRA permits to class I wells handling
hazardous waste.
Because this regulation under RCRA
of wells Injecling hazardous waste is
somewhat different than what EPA
proposed, EPA will give a State the
option of whether to cover such wells
under Phases I and II of Its State
hazardous waste program until the State
has an approved UIC program
( 123.128(e)(8)). If a State chooses-not
to regulate wells injecting hazardous
waste under its RCRA program. EPA
will enforce the interim status standards
for such wells, and will, once the
permitting standards for Class I wells
Injecting hazardous waste are in place,
issue permits to owners and operators
requesting them.
Relationship of State programs to
each other and to the Federoiprogrvm
under interim authorization. As noted
above, EPA has significantly revised Its
approach to interim authorization since
the time of proposal, tightened the test
for determining “substantial
equivalence” and forbidden partial
programs. These changes should greatly
reduce the cases in which differences
between State programs, and between
State programs and the Federal
program, lead to inconsistencies which
require resolution. However, EPA has
Identified seve’al types of
Incons;stencles which may still arise.
The independent application of DOT
regulations respecting Interstate
shipments (including requirements for
the Ident ification of waste and use of
the manifest) should help mitigate the
impacts of the first three potential
problems discussed below.
1. Inconsistencies due to differences in
the “universe” of wastes from State to
State. Two types of inconsistencies cart
arise here. First, a waste could move
from a State where It is not designated
or listed as hazardous into one where it
is designated or listed. Both under
section 3009 of RCRA and under the
general State police power, each State
has the right to control the movement
and disposal within its boundaries of
wastes which It considers hazardous.
Accordingly, under new § 123.130(b).
when wastes move front a State where
they are not listed or designated to one
In which they are, they become subject
to the treatment, storage and disposal
requirements and the transporter
requirements of that second State.
Also, a waste could move from a State
where it is listed into one where it is not
designated or listed. This is by far the
most troubling of the four types of
inconaistencies. EPA intends to -
administer the program so as to
minimize the chances that this situation
will in fact occur. Specifically, EPA wtil
not approve State programs which
affirmatively appear to include a smal!er
“universe” of wastes than the Federal
program covers. However, since during
Interim authorization EPA will allow
State programs to vary from the Federal
program in their listing characteristics
and test methods, It may be that a State
program will turn out to be
underinclusive even though that was act
clear at the time of approval. By the
same reasoning used above, the wastes
become unregulated (except as general
State law may provide) upon moving
Into the second State and, under
§ 123.130(a), may be managed as
permitted by the laws of the State into
which Ithas been transported. In
addition. § 123.128(b)(6) requires State
manifest systems to insurf that all
interstate shipments of hazardous waste
be designated for delivery to facilities
authorized to operate under an
approved State program.
Clearly, under this approach States
could become preferred “dumping
grounds” for wastes which they did not
regulate, but neIghboring States did.
However, the possibility of that
occurring eannot be avoided under a y
approach whicfr gives effect to the
“substantial equivalence” language of
RCRA.’
‘EPA will .1w pennlt State, to obtain lotenn
authorization even If they lack regulatory euthorit.
ove, certain types of etorege, treatment. er dii osa1
facilities as long as those facilities do rot exit in
the State ii the time Intezun authorization in
granted. This provision rai.ee the poeeibdlnj viii
such a facility could be opened In the Slate dunag
the Urns of Interim authorization and operate
uniegulated. However. EPA believes that thi, will
not prove to be a practical problem. It will be
difficult to consauct sod open large or conrntex
Footnotes continued on next pzge
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33394 Federal Register I Vol. 45. No. 98 I Monday, May_19.1980 I Rules and Regulations
2. The State has Interim authorization
but EPA is running the manifest system.
In this case, the Federal manifest system
and Federal standards for generators
and transporters will be enforced in the
State. The universe of wastes subject to
these Federal requirements, however,
will be the universe of wastes covered
by the State program. It will not be the
Federal universe as defined in 40 CFR
Part 261. However, DOT’s requirements
are applicable to Interstate shipments of
hazardous wastes in the Federal
universe as defined In 40 CFR Part 261.
3. A State has Phase I authorization
during Phase 11. This state of affairs, as
explained above, can only last for 6
months. During this period. EPA could
administer and enforce the Federal
permit program in the State. However, it
is most unlikely that EPA would operate
an active permit program that would
duplicate State regulation of existing
facilities. Instead, EPA would almost
certainly confine itself to issuing permits
to new facilities which need them to
begin construction.
* § 123.128(1) ond(g) (Enforcement and
compliance evaluation). The proposal
provided that States applying for interim
authorization had to show. in their
application, substantial compliance with
proposed § 123.10, the enforcement
requirements of Subpart A, and
compliance with the rest of Subpart A,
Including the compliance evaluation
requirements of proposed § 123.9.
Requirements for enforcement authority
and compliance evaluation programs for
interim authorization are now contained
In § 123.128(f) and (g).
For compliance evaluation, the
requirements for interim authorization
are substantively the same as those
found in § 123.8. requirements for final
authorization, including requirements
for public participation.
For enforcement action authority,
substantial equivalence has been
defined with specificity. A State can
qualify for interim authorization with
lesser amounts of fines than required for
final authorization or under the Federal
program. A State must have the
authority to impose civil or criminal
sanctions, but need not have authority
to imprison. Upon review of existing
State legislation. EPA found that a
significant riwnber of State programs
would not qualify for interim
authorization if required to have the
Footnotes continued from last page
facilities during the 2 year, allowed lot utterim
rnitboriutioii, and anyon, who does build such a
facility will do so in the knowledge that he or she
will be subject to RCRA’s full permit requirements
when Interim authorization expires, end may lose
hi. or her Investment It he or she does not qualify
under them,
same eniorcement provisions as the
Federal program. In keeping with the
Congressional intent that the Interim
authorization period provide time for
States with less stringent programs to
reach equivalence rather than have the
program halted in Its development, EPA
has determined that an adequate degree
of protection of human health and the
environment will be provided by these
requirements, while allowing as many
States as possible to operate the
program.
Once a State receives interim
authorization. EPA retains oversight
authority (section 3008) concerning the
activities regulated by the State. The
language in section 3006(c) that a State
program with Interim authorization
“operates in lieu of the Federal
program”.does not mean, as suggested
by one commenter, that EPA has no
authority to enforce the State’s program
either in conjunction with or through the
State. Section 3008(a)(2) specifically
authorizes Federal enforcement of such
a State program.
Section 3008(a) provides that EPA
may enforce “any requirement of this
subtitle” after, as one commenter noted,
EPA has given notice to tl e authorized
State. The preamble to the’June 14, 1979
proposal at page 34259 stated that in an
authorized State EPA might “enforce
directly against any facility or activity
violating the Federal standards” under
the authority of section 3008(a)(2).it
should be understood that in a State
with interim or final authorization, the
“requirements of the subtitle” which
EPA will enforce under section 3008 are
the State program requirements.
§ 223.232 Shoring of information.
This section is the same as § 123.10
and is discussed in the preamble to that
section.
1 123.133 Coordination with other
programs.
This section Is self-explanatory. The
question of coordination is fully
discussed in the preamble to Part 124.
I 123.134 EPA review of Stole permits.
The major issue raised by this
section—when EPA vill use its
authority to revoke a State permit—has
been discussed earlier.
Beyond this, quite a number of
comments were received on the
definition of “major” facility permit and
how EPA will review State permits. As
the preamble to Part 122 explains, a
precise definition of a “major” facility is
not possible at this stage of the program.
Instead, the definition will be
established year by year and State by
State in guidance. However, EPA does
expect that the numbers chosen will
result In review of approximately t -
percent of the permit application:
State.
One commenter suggested that E i%.
limit its review of permits to receivi
“summaries” and that it review the
actual application only upon specific
request. There may be cases where such
an approach would be appropriate.
However, a “summary” (which the
regulations may re4uire in any event in
the form of a fact sheet) would not be
enough for a thorough review of an
important permit. Accordingly EPA
believes that transmittal of more
documents for certain types of permits
should be provided for in the MOA.
§ 123.135 Appro vol process.
In the June 14, 1979 proposal, the
approval process for interim
authorization was identical to the
approval process for final authorization
In this final regulation EPA has
shortened the approval process for
Interim authorization. There are two
reasons for this change. First, section
3006(b) explicitly mandates, for final
authorization, specific procedures which
a State seeking final authorization and
EPA granting authorization must follow
Section 3008(c), the provision for Interim
authorization, contains none of these
procedural requirements.
Second. extensive procedural
requirements for interim authoriza
approvals would be Inappropriate gi
the short duration of interim
authorization, and would contravene the
Agency’s desire to minimize the
potential for duplicate Federal and State
hazardous waste programs. Protracted
approval procedures enhance the
potential for duplicate State and Federal
programs while an application is being
processed.
The Agency is, however, comm4tted to
extensive public participation in the
Interim authorization process and is
mindful of the need for reasoned
decisionmaking in granting Interim
authorization. Therefore, the approval
process for Interim authorization will
contain all the elements of the approval
process for final authorization except for
the requirement that the State publish
Its notice of intent to apply for Interim
authorization and the requirement that
the Administrator make a tentative
determination to approve the State
program.
Unlike section 3006(b), section 3006(c)
does not Include a statutory review
period (I.e., a period of time allotted to
EPA for review of a complete program
submission). In light of the Agency’
desire to minimize the possibility’
duplicate State and Federal progr
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Federal Register / Vol. 45, No. 98 I Monday. May 19. 1980 / Rules and Regulations
33395
the Agency is committed to expedited
review of State submissions Em’ interim
authorization. Thus, the Administrator
will Issue notice In the Federal Register
of a hearing on the State’s submission
and will make a final determination
whether or not to approve a State
program as quickly as possible, but in
no case later than 120 days after receipt
of a complete program submission.
123.138 Withdrawal of state
programs.
This section Is derived from 1 123.14.
It Includes as an additional criterion for-
withdrawal of interim authorization
State failure to meet the schedule for or
accomplish the additions or revisions to
Its program set forth In its authorization
plan. This criterion is required because
Interim authorization was specifically
established to facilitate State
assumption of a fully equivalent
hazardous waste program.
The intent of Congress was clearly to
grant Interim authorization to States
which would strive to achieve the
requirements for final authorization In
the twenty-four month period provided
In section 3006(c). The authorization
plan sets forth the necessary steps the
State must take to achieve these
requirements in this period. liii appears
that a State will not achieve these
requirements and clearly will not
receive final authorization, it may be
less disruptive to withdraw the program
than to wait for it to lapse
automatically. Hence, this added
criterion for program withdrawaL
I 123.237 Reversion of State programs.
This section Is new. It provides that a
State program shall terminate and revert
to EPA If either the State falls to submit
the amended application required for
Phase II interim authorization as
required by § 122.122(cJ(4) or the
Regional Administrator determines, in
accordance with procedures set forth at
I 123.130, that the amended State
program submission does not meet the
requirements for interim authorization
corresponding to Phase II. There are no
similar provisions In other subparts of
this Part.
This automatic termination end
reversion provision is necessary here
because as described above, the two
phases of interim authorization are
Integral parts of a State hazardous
waste program. EPA does not intend to
provide authorization for only one
phase. Therefore. States with interim
authorization for Phase I will be
expected to seek Interim authorization
for Phase 11; and States which received
Phase I interim authorization but do not
app 1 y for interim authorization for Phase
II shall not retain Phase I interim
authorization beyond the B month period
following the effective date of Phase II.
This rulemaking does not set forth
detailed specifications for how the
reversion of a State program to EPA will
actually occur. EPA will address that
subject in a future rulemaking if that
appears necessary. If such a reversion
takes place, It Is EPA’s intention to
assure that facilities which had received
Interim status under the Federal
program before a State received interim
authorization, retain interim status if the
program reverts to EPA and the State
has not Issued the facility a RCRA
permit during interim authorization.
Facilities which have received State-
Issued RCRA permits during Phase II of
Interim authorization will retain their
permitted status until that State permit
expires or is terminated. It is also EPA ’s
intention to assure that facilities which
had the equivalent of interim status
under the State program will be eligible
for Federal Interim status.
Final Authorization.
By the time of final authorization
under Subpart B of this Part, the
national program for controlling
hazardous wastes ahould be
substantially more settled than it will be
during Interim authorization. In addition.
the statutory scheme governing final
authorization is more clear .cut. For both
these reasons, this Subpart Is
significantly less intricate than Subpart
F4nd requires less preamble discussion.
§ 123 31 Purpose and scope.
This Is an introductory section. This
section points out that interim
authorization Is not a precondition to
final authorization. States may apply for
final authorization at any time after
promulgation of the Phase II regulations
whether or not they have applied for or
received interim authorization.
§ 122.32 Consistency.
As the discussion earlier In this
Preamble states, Ccngresa mtended for
State programs receiving final
authorization to become fully part of an
Integrated national program to control
hazardous wastes. Section 3006(b) of
RCRA provides that State programs can
only be approved if they are “equIvalent
to” and “consistent with” the Federal
program. EPA has therefore tightened
considerably the requirements for
approval of final programs over those
for approval of interim programs,
although, as the earlier discussion also
states, it has not gone as far as some
commenters suggested.
This section provides that any aspect
of a State program which operates as a
ban on the interstate movement of
hazardous waste Is automatically
Inconsistent. A recent court decision,
City of Philadelphia v. New Jersey. 437
U.S. 617(1978), has held that such
statutes are unconstitutional because
they violate the Interstate commerce
clause, and EPA believes that decision
is correct. However, since the text of
RCR.A speaks only to the
“inconsistency” of State program
submissions, not of State laws generally.
this provision Is restricted to the same
extent.
EPA believes that State requiremer.ts
which forbid the construction or
operation of hazardous waste disposal
facilities could be subject to attack by
the same reasoning adopted by the
courts that have struck down
transportation bans. A State that refuses
entirely to allow a necessary part of
national commerce—the disposal of
hazardous wastes—to take place withia
its boundaries is impeding the flow of
Interstate commerce just as much as a
State that refuses to allow the
transportation of those wastes. The
Interstate commerce concerns involved
here are underlined by the
establishment through RCRA of a
national regulatory scheme, ,even though
that scheme is not on its face
preemptive. Accordingly, State
programs which contain provisions that
prohibit treatment, storage or disposal
of hazardous waste within the State,
will be deemed inconsistent if the
prohibition has no basis in human
health or environmental protection.
Finally, the section provides that if the
manifest system does not meet the
requirements of Part 123, the State
program will be deemed inconsistent.
Since the manifest is a document that
may actually travel from State to State,
Ills important that the various States be
very similar in this re3ard.
A number of comments raised as a
sconslstencyN issue that State programs
might be too lax In some respect so t a!
a State would become a “waste ha’.en”
for a region. Though the terms
“consistent” and ‘equivalent” do have a
certain degree of overlapping content. in
general EPA, during final authorizalior .
Will deal with problems of State
programs that conflict with each other
or impose unnecessary procedural
burdens, as a “consistency” lsaue.
Questions as to whether the programs
are strong enough will be dealt with as a
matter of “equivalence.” Those matters
are discussed below. To summarize,
EPA has not required States to adopt
EPA’s precise regulations, but has
req iired them to achieve the same
effect, and has been particularly careful
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33396
Federal RegWer I Vol. 45, No. .98 I Monday, May 19, 1980 I Rules and Regulations
to require very close similarity where-
problems of dissimilar State
requirements might arise.
123.33 Identification and listing of
wastes.
This section requires States to control
the same “universe” of wastes as the
Federal program. This requirement will
avoid the problems of differing lists
pointed out earlier. Of course, a State Is
free’to control additional wastes if it
desires but, as explained earlier, this
control will not extend beyond the State
boundaries. In other words, unless other
States have equally more Inclusive
programs, the extra wastes listed will
not be considered hazardous in other
States.
I 123.34 Requirements/or generotors
of hazardous waste.
As explained ab ove, EPA places
particular weight or. consistency
between the manifest systems in
different States. The June 14. 1979.
proposal provided that States must use
the manifest format published by EPA
and this requirement remains in the final
rule. This means that a State’s manifest
form or format must contain the same
Information as required for the Federal
manifest format. EPA has decided to
retain a flexible approach to the
manifest system and has not published a
manifest form, for reasons explained in
the preamble to the section 3002
regulations (45 FR 12728—29 (February
26,1980)).
While EPA decided to minimize
burdensome paperwork by only
requiring exceptions reports by
generators (40 CFR I 262.42). the Agency
recognizes that several States view
tracking of individual manifests as an
Integral and necessary part of their
enforcement program. Indeed, several
States have such a tracking system
whlcji typically requires generators and
facility operators to send copies of all
manifests to the State. The Agency
views the continuation of such a
tracking system by a State as allowable
under Section 3009 of RCRA. provided
the State adheres to all Federal manifest
system requirements (e.g.. the generator
remains responsible for exception
reporting).
As stated in the Preamble to
I 123.128(b)—(d), certain aspects of the
DOT hazardous materials program.
though not required to be part of a
State’s Interim authorization program,
must be regulated as part of a State’s
final authorization program. These
aspects include requirements fon
accumulation of wastes in containers
meeting DOT standards prior to
shipment; packaging, labeling, marking
and placarding of wastes; the
forwarding of the manifest or shipping
document for shipments solely by
railroad or solely by water (bulk
shipments only); and provision of the
DOT proper shipping name. The Agency
believes that, for final authorization, a
State must incorporate these DOT
requirements Into Its program, as EPA
has in 40 CFR Part 262.
The overriding concern behind this
requirement Is the need for regulatory
simplicity and ellmination of confusion
by split administration, I.e., generators
and transporters will be able to look
solely to the State hazardous waste
management agency for all requirements
with which they must comply.
123.38 Requirements for hazardous
waste management facilities.
This section contains standards for
facilities that will be incorporated in
permits for these facilities. Most of these
requirements will be promulgated in
Phase II and thus this section may well
need revision at that time to fill in
details.
123.37 Requirements with respect to
permits and pennit applications.
This section requires the State
Director, after a State has received final
authorization, to review and change as
necessary any permits Issued by the
State under Phase II of interim
authorization. Where such permits are
Issued under Phase II. the Director
should consider giving them a shorter
term than the 10-year maximum now
specified In order to make this re-
examination easier.
O 123.38 EPA review of St ate perm its.
The significant Issues raised by this
section have been discussed earlier in
this preamble.
0123.39 Appre vol process.
RCRA specifically provides the
approval process for final authorization
of State RCRA programs, which Is
different from that for interim
authorization. The approval process has
been simplified for Interim, but remains
virtually Identical to the proposal for
final authorization. One change, In
response to a public comment, is that
the final iiale does not require the State
to provide a copy of the actual transcript
of the public hearing, but can Instead
provide a summary of the proceedings,
Subpart C—Additional Requirements for
State UIC Programs
Many of the requirements of this
subpart have been moved into Subpart
A for the reasons explained above.
Proposed II 123.52, 123.57, and 123.60
have been moved into § 123.4,
and 123.13, respectIvely. In addi
requirements for State programs h.
In § 123.7 are changed to the exter
changes have been made In Parts
and 124. All States must ban certain’ -
Class N wells as provided in 0 122.36.
Treatment of other Class IV wells has
been reserved as discussed in the
preamble to that section.
0123.51 Purpose and scope.
* 123.51(d)—This paragraph (proposed
0 123.51(0(1)) generated a certain
amount of confusion. EPA does not want
a State to develop a detailed program
covering classes of wells which do not
exist In the State and which are not
likely to come into being (except that the
State must have a program to ban Class
IV wells). However, the Agency Is
concerned that State programs control
all types of injections and not
inadvertently authorize new injections
not previously found in the State.
Therefore, States with no wells in a
certain class (other than Class IV) have
the following options:
(1) Without distinguishing between
classes of wells, treat all injections as
though they fall into EPA’s Class 1.
(2) ProhibIt injections in non-existent
classes explicitly.
(3) When the State can demons
that injections are not authorized l&.
absence of rules, and no rules are
established over a particular class of
well. EPA will accept this as an implicit
prohibition. A certification to this effect
from the State Attorney General is
necessary, however. The State must
control Class IV wells to the extent
required by 00 122.36 and 122.45 even
though the State may not currently have
any Class IV wells.
I 223.52 Requirement to obtain a
permit.
This section was proposed as 0 123.54.
State law must prohibit all well
injections which are not authorized
either by rule or by permit, and must
provide the authority to regulate all well
injections currently in place in theState.
either by rule or by permit. Before any
type of well injection not currently in
place can be authorized, the State
progam must be amended to cover that
type of injection.
•Pmposed § 123.53 Attorney General’s
statement,
The specific requirement In this
section has been dropped. The State’,
authority to prohibit or authorize v
injections without a permit must b
discussed, however, in the Attorne3,
General’s statement under 123.5.
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33397
Proposed § 123.58 Annual report.
This section has been moved to
S 122.i&
S 12.t54 Appro vol process.
Some commeriters suggested that EPA
was too stringent In Its public notice
requirements In proposed 5 123.58(a).
now 5 123.54( 5). They suggested that
States should be given greater flexibility
to handle public notice of their program.
prior to submission. EPA strongly
encourages public Involvement in all of
Its programs and has not reduced these
requirements below what was proposed.
However. § 123.54(c) has been rewritten
to clarify the circumstances under which
the Regional Administrator may decline
to hold a public hearing on a program
approval.
Subpart D—Additional Requirements for
State NPDES Programs
This Subpart reflects the requirements
of EPA’s revised NPDES regulations. (44
FR 32854. June 7, 1979). No substantive
changes have been made. Sections
123.74 and 123.75 (proposed 51 123.77
and 123.78) have been reorganized for
greater clarity.
Proposed 5 123.75 has been dropped
because the requirements of that section
that States have adequate authority to
Inspect, monitor, enter, and require
reports, are duplicative of other
requirements of these regulations. See
5 § 122.7 (applicable permit conditions),
122.11 (monitoring requirements), and
123.8 (requirements for compliance
evaluation programs).
Subpart E—Additlonal Requirements for
State Programs Under Section 404 of the
Clean Water Act
This Subpart has been reorganized to
be more comprehensible.
5-123.91 Purpose and scope.
One commenter suggested that
5 123.91(c) be modified to allow EPA
approval of State 404 programs lacking
jurisdiction over all the waters within
the State falling under the definition of
“State regulated w3ters.” EPA has
thoroughly studied both the express
language of CWA and the legislative
history of the Act regarding the breadth
of State section 404 programs. Both
dearly indicate that State section 404
prcgrams must regulate discharges of
dredged or fill materials into all waters
of the United States except those
expressly reserved to the Corps of
Engineer, under section 404(g)(1) of
CWA. For this reason, partial programs
cannot be approved.
One commenter argued that
5 123.91(d) limited the scope of State
programs to regulation of only those
activities permitted by the State after
program approval. EPA disagrees.
5 123.91(d) dearly allows approved
States to assume responsibility over
e,dstlng general permits Issued by the
Corps of Engineers. The Memorandum
of Agreement between the State and the
Secretary, under 5 123.99, will be the
vehicle for establishing which Corps
Issued permits the State will administer
and enforce.
* 123.92 Activities not requiring
permits.
This section was proposed as
5 123.107.
A number of commenters objected to
the description of activities exempt from
the requirement of having to obtain a
permit, on the grounds that the
exemptions have been drawn so
narrowly that the 404 program intrudes
illegally into activities reserved to the
208 program. EPA believes these
objections are based on a
misunderstanding of the relationship
between sections 404 and 208. 11 is clear
from the statutory scheme and
legislative history that sections 402 and
404 must reach all point source
discharges except those explicitly
exempted In sections 404(f), 404(r). or
402(/). Section 208 was intended to
supplement those programs by covering
major non-point sources of pollution, by
ensuring coordination between point
and non-point source controls, by
coordinating treatment facilities, and by
preventing pollution as well as
controlling it. Thus. It Is not correct to
assume that merely because an activity
is identified in section 208 it is a
nonpoint source: similarly, the ShiPs In
section 404(fl(1)(E) are not invalid
merely because they reach point some
problems which the 208 plans also
address. Sections 404 and 208 sImply do
not define distinct spheres of influence.
S 123. (o)(J)— .Several commenters
objected to the restrictive language of
S 123.92(a)(1). This subparagraph has
been rewritten to more clearly specify
the activities which are exempted from
.the section 404 permit requirement
instead of focusing on those activities
which do require permits, as the purpose
of this section Is to Identify those
activities which do not require permits.
The definitions of “plowing,”
“seeding.” “cultivating,” “minor
draInage” and ‘harvesting” (proposed
I 122.3(e)) have been moved into this
paragraph for convenience. The terms
appear only in this paragraph.
Comments received on the definitions of
cultivating, harvesting, minor drainage,
and plowing are as follows:
Cultivating
EPA agrees with the cominenter who
recommended the deletion of the word
“planted” In the definition of
“cultivating,” and has changed the
definition accordingly to make It clear
that cultivating naturally occurring
crops, such as salt hay. may be exempt
as long as the other requirements are
met.
Harvesting
The Agency has included established
ranch lands In the definition of
“harvesting” to better coincide with
statutory language.
Minor Drainage
A large number of comnmenters
objected to the definition of “minor
drainage.” Most complained that, by
limiting minor drainage to upland drains
(and connections of such drains to
waters of the United States), the
regulation “exempted” only those
activities which were already outside
the scope of section 404. These
cornmenters cited several passages In
the legislative history to support their
argument that some drainage within
wetlands was also meant to be
exempted. These commenters noted that
the “recapture” provision In section
404(f)(2) would serve as assurance that
the e, empted drainage would have only
minimal effects. The commenters also
observed that the proposed definition
would require a drainage proponent to
determine the presence or absence of
wedands before he or she would Imow
whether a permit Is needed. A few
comrnenters, citing the potential for
abuse from wetlands drainage.
recommended that the proposed
definition be retained.
The definition of minor drainage in nc:
en easy problem to solve, The )egi5lativ
history contains numerous, Inconsistent
references to minor drainage and to
other section 404(f)(1) exemptions. Some
portions of the legislative history dearly
support the position taken in the
proposal. such as the statement that the
provision for minor drainage merely
recognizes that upland drainage does
not involve the discharge of dredged an
fill material In waters of the United
States, and therefore does not ever need
a permit. However, other passages in th .
legislative history suggest that the minoi
drainage provision is Intended to aid
farmers and foresters who are actively
farming an area which may technically
be waters of the United States, at least
where these activities will not have a
significant Impact on the aquatic
ecosystem.
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After a careful review of the euth’e
legislative history and consideration of
the numerous comments, EPA has
concluded that it would be approprlat
to define “minor drainage” to Include
certain clearly defined drainage
acthities in wetlands which are part of
on-going agricultural and silvicultural
operations and which have minimal
adverse effects, where permits are an
unnecessary burden. Subparagraphs (ii),
(in), and (iv) of the new definition reflect
this reylsion. It should be stressed that
each of these provisions applies to
activities that are part of an on-going
farming or forestry operations they do
not exempt activities which convert
wetlands to non-wetlands or which
bring wetlands into farming use. The
listed activities will have minimal
adverse effects partly because they
involve limited, reversible alterations to
the hydrological regime.
Subparagraph (ii) refers to activities
incidental to the planting, cultivating,
protecting, or harvesting of rice.
cranberries of other wetland crop
species, in farm or forest areas in
established use for such wetland crop
production. This will allow a farmer to
temporarily dewater the area for a
particular step, such as planting. as long
as the area is kept in wetland plant -
production (with or witL out rotation
with other crops where such rotation is
a normal practice). The phrase “wetland
crop species,” in the definition of minor
- drainage, must be read in connection
with the phrase “food, fiber. and forest
products” in 123.92(a)(1)(i). Thus, it
does not include peat and similar
materials extracted or mined from the
wetland substrate, even if such
materials are derived from plants which
also yield food or fiber or tree products.
Subparagraph (iii) also recognizes the
particular siluation of rice and cranberry
(and possibly other farm or forest crop)
growers, whose manipulation of water
le els may Involve the discharge of fill
material.
Subparagraph (lv) responds to the
concerns of farmers and foresters who
pointed out that storms and floods
occasionally deposit silt bars in pre
existing drainage channels in
established crop lands;these bars block
the normal drainage and often threaten
crops Which are not adapted to the new
flooding regime. Such blockages may be
due to storms floods, beaver dams, and
other such “events.” We have included
a requirement that such blockages be
removed Within one year of placement
• to be eligible for the exemption, This
should ensure that this exemption will
not be used to drain wetlands which
happen to have been created by fluvial
action over a period of time.
EPA co idered adding a provision to
exempt drainage f small, isolated,
occasionally wet areas where such wet
areas are surrounded by lands in
established farming use. EPA concluded
for a number of reasons that it would be
unnecessary or unwise to include this
provision in the definition of minor
drainage.
First, many of these small, isolated
wet areas may not be waters of the
United States either because they are
not wet enough to be “wetlands” under
122,3 or because, even If wetlands,
their destruction or degradation would
not have any effect on interstate
commerce. Including an “exemption” for
such areas might create the erroneous
Impression that, but for the excep don
and subject to the recapture provisions
of section 404(f)(2), each puddle and
damp spot would need a permit. There
is, of course, no such requirement unless
there is a discharge Into waters of the
United States.
Second, in the case where waters of
the United States are involved, such’
drainage would generally be covered by
an existing nationwide general permit
issued by the Corps of Engineers. States
may arrange with the Secretary of the
Array to take over the administration of
such general permits. for State regulated
waters, upon program approval. (See.
§ 1.23.91(d)). Under one current
nationwide permit (33 CFR § 323.4-2)
discharges of dredged and fill material
are authorized, subject to certain
conditions not likely to affect farmers,
In: (1) Nan-tIdal rivers, streams arid their
impoundments includir.g adlacent
wetlands that are located above the
headwaters (2) Natural lakes, including
their adjacent wetlands, that are less
than 10 acres in surface area and that
are fed or drained by a river or stream
above the headwaters. In the absence of
adjacent wetlands the surface area of a
lake shall be determined at the ordinary
high water mark; (3) Natural lakes,
Including their adjacent wetlands, that
are less than 10 acres In surface area
and that are isolated and not a part of a
surface river or stream. In the absence
of adjacent wetlands, the surface area of
a lake shall be determined at the
ordinary high water mark; and (4) Other
non-tidal waters of the United States
other than Isolated likes larger thai 10
acres (see (3) above) that are not part of
a surface tributary system to interstate
waters or navigable waters of the
United States (see 33 CFR § 323.2(a)(5)).
These small Isolated wetlands would be
covered by this nationwide permiL
There are strong policy grounds for
continuing to rely on the general permit
approach for regulating small, isolated.
wetlands itt region, where agric& -
and ailvicultural activities predo:
For example, the general permit
approach allows a certain flexibility.-’
the event that the cumulative inWa
such drainage should become mcre
significant in the future. This r.ex;. ila ,
arises in two ways. First, under t e
Corps’ regulations and under State
programs, the permitting authority has
the discretion to require an indivd ial
permit In a particular case where
required by concerns for the aquatic
environment (as expressed in the
section 404(b)(1) guidelines). For
example, the permitting authority may
conclude that in a particular area
Individual scrutiny is needed for the
drainage of Isolated wetlands (e.g..
prairie potholes) of a certain size or
type. Second, general permits are issued
for fixed terms, not exceeding 5 years.
and must be renewed upon expiration in
order to continue in effect. The
opportunity for public hearing required
for such renewal will give State
administrators, farmers, and other
interested citizens an opportunity to
assess the continued need for the
general perm9 and its conditions, based
on environmental conditions, and other
relevant matters. For instance, in the
previous example, the State Director
may conclude that the loss of prair
potholes has had such an impact
migratory waterfowl thet future
discharges into any prairie pothole
should have individual permits.
EPA believes that this approach
complies with the direction of Congress
to give the States a role in the
implementation of the 404 program.
recognizing that some States may
choose a mor protective ap?roach than
the minimum standards set by the
Federal program. At the same time, this
definition assures thai the iegitim:ie
Interests of farmers and other g ou’s, as
reflected in section 404(1 ), are also
protected.
Plowing
Several commenters pointed o t t! at
plowing is a normal forestry as weil as
farming activity. We have arnsrded the
definitloa of plowing to refie : this.
Others objected to the exciue:on from
plowing of redistribution o suface
materials by g-adtng. on the grounds
that filling in dcpressioria in irrigated
fields may actua.iy be a BMP.
Plowing. as defined, is not a point
source and, under § 123.92, wi1 not
require a section 404 permit However,
other activities which involve the
redistribution of soil or other surfe
materials to fill in waters of the U..
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33399
not lzicluded in this definition and may
require a section 404 permit.
Several commenters questioned the
requirement that plowing take place on
“established” farm or forest lands. This
requirement has been deleted. However,
it Is still necessary to distinguish
ongoing farming and forestry activities.
which are exempt under section 404(0(1)
of CWA. from activities which convert
waters of the United States to a new
use, which, under section 404(f)(2), are
not exempt.
EPA believes that redistribution of
material should be subject to the
scrutiny of the permit process when It
results In the conversion of waters of the
United Slates to dry land. In appropriate
circumstances, with appropriate
conditions, such redistribution may be
permitted us provided in the section
404(b)(1) guidelines.
§ 123.92(o)(2)—Sorne comznenters felt
that § 123.92(il(2) was too vague or too
inflexible for all emergency situations.
EPA disagrees, and has retained this
paragraph with only minor revisions.
§ 123.92(a)(3)—A number of
cominenters objected to the language
defining the exemptidn for the
connection of irrigation ditches to
waters of the U.S. as being too
restrictive. The revised language —
clarifies that a permit is required only
for those connections that involve
construction of a water intake structure
which results in significant discernable
alterations to the flow or circulation of
waters of the United States. It is not the
intent of EPA that simple connections
fall under the permit requirement.
Furthermore, construction of bank
protecticn features for ditches which do
not reach into waters of the U.S. do not
need a permit in any case. —
§ 123.92j’oj(6j—Numerous reviewers
objfcted to the baseline best
management practices proposed in
§ 123.107(a)(5) on which the road
construction exemption Is based.
Objections centered on two issues: (1)
whether it Is appropriate, or indeed
legal, for EPA to prescribe by regulation
a set of nationwide BMPs for State 404
programs; and, (2) whether the baseline
BMPs In the proposal improperly control
activities that do not relate to road
constructioi Involving the discharge of
dredged and fill material.
As to the first of these objections, the
Agency, after review of the legislative
history of CWA section 404(f)(1)(E),
finds no direct or implicit guidance as to
the means by which Congress intended
the best management practices
requirement to be implemenied. Our
Intent in specifying baseline best
management practices was, and is, to
Identify basic measures which ore
natioially applicable and which can
form a core or framework to which
States may add more detailed and
locally applicable BMPs which they
believe are needed to assure that the
environmental protection objectives of
section 404(fl(1)(E) are met. We also
believe that an explicit statement of
minimum standards will aid Slates in
preparing program submissions for
approval. For this reason, we have
retained the approach of baseline BMFs
in § 123.92(a)(8).
EPA has carefully considered the
second objection, relative to the scope
of the specific BMPs, In light of the
legislative history of section 404(f)(1)(E),
and has concluded that in some cases
the proposed BMPs were too broad. The
Agency has, therefore, revised the list of
EMPs in order to focus upon
environmentally protective measures
which are directly linked to the
methodology and location of discharges
for rond construction. Proposed (i), (x),
(xl), (xvi) and (xvii) have been deleted,
and other proposed BMPs have been
revised accordingly. Revisions have also
been made to maintain consistency with
the Corps of Engineers. Consistent with
these other changes. we have also
added several new BMPs,
§ § 123.92(a)(6)(v), (xi), and (xii). New (v)
emphasizes the Importance of -
minimizing disturbance within the
waters of the United Slates lying
adjacent to road corridors. This BMP is
designed to reduce the adverse Impacts
of road construction ‘in waters of the
United States by encouraging the
widespread use of procedures which
restrict road construction to the actual
corridor to be occupied by the finished
road. New (xi) and (xii) are both
Included to maintain consistency with
the BMPs applied by the Corps qf
Engineers. New (xi) requires thc.t the
public health and welfare be protected.
New (xli) requires that health and
economic concerns be protected by the
protection of shellfish production areas
Below Is a BMP by BMP analysis of
comments received and changes made
In each of the proposed baseline BI s.
Most of the comments on proposed (i)
were not favorable, expressing concerns
that this BMP was outside EPA’s
authority, that the absolute nature of the
prohibition made it impracticable, and
that it might even result In the need for
additional road construction. Although
the Agency agrees with the comments
favorable to proposed (I) that logging In
streams may be environmentally
harmful, proposed (i) has been deleted
as not being within the proper scope of
this section.
Although many commenters approved
of proposed (ii) (now (i)), others felt that
it was already covered under section
208 or that It was too inflexible. In
response to this latter comment, the
Agency has included more factors to be
used in determining what restrictions
are feasible In any given case.
Proposed (iii) (now (ii)) has been
revised to require the minimization of
discharges of dredged or fill material
only. This responds to those comments
which stated that the BMP, as proposed,
was not limited to dredged or fill
material, and was impractical.
Many commenters agreed with
proposed (lv) (now (iii)), and so it has
been retained and only slightly revised.
The Agency does not agree with those
commenters who felt that allowances
for certain types of discharges or for
extreme flows should be included in this
BMP. The phrase “high” flows has been
changed to “flood” flows for clarity.
Comments on proposed (v) (now (vii))
ware generally favorable, and so this
UMP was retained with minor revisions.
The revisions specify that the affected
activities are related to road crossings.
The Agency does not feel that It is
impractical, as two comments stated.
Almost all commenters agreed with
proposed (vi) (now (x)) and proposed
(vii) (now (xiv)), and they have been
retained unchanged.
Alhough a few commenlers felt that
proposed (viii) (now (ix)) needed more
definition or explanation, EPA has
retained this BMP unchanged in light of
the predominance of favorable
comments and the availability of
information compiled under the
Endangered Species Act for
implementing this requirement.
Most commenters agree with
proposed (ix) (new (iv) ), and it has been
retained, although limited to ercsion
prevention. Several comme iters
suggested that the word “prevent” bc
replaced with “minimize” or “control,”
but the Agency and the greater number
of commenters felt that the original
language Is both preferable and
practicable.
All comments on proposed (x) were
negative, with the primary objections
being that it exceeded EPA’s authority.
was too restrictive, was covered under
section 208 and was inappropriately
regulated under section 404. and was not
practicable. In response to these
comments, proposed (x) has been
deleted.
Almost all of the comments on
proposed (xi) were negative. Primary
concerns were that It exceeded EPA’s
scope of authority, was covered under
section 203 and was inappropriately
regulaled wider section 404, was
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unrelated to farm or forest road
construction, was not practicable. and
would not always lead to
environmentally protective practices.
Only one commenter favored retaining
this BJ . In response to these
comments, proposed (xi) has been
deleted.
Many commenters agreed with
proposed (xii) (now (vi)) which, in
response to comments, has been slightly
revised to relate specifically to road
crossings. The Agency disagrees with
the many commenters who felt that this
BMP was not adequately specific to
section 404 and that it was best
regulated under sectIon 208 only, since It
is clearly concerned with potential
discharges Into waters of the U.S.
Proposed (xi ) (now (viii)) has been
revised In response to a number of
comments which criticized the zone of
vegetation and Thermal pollution
requirements as being Ineffective or not
necessarily protective of the
environment. The other major point of
criticism in the comments was that this
Is not adequately related to section 404
and is properly regulated under section
208. The Agency disagrees with this
point of view, and feels that this BMP
may be appropriate to both sections 404
and 208. A number of ctnzmenters
agreed with this position. and so
proposed (xiii) has been revised and
retained.
A large number of commenters agreed
with proposed (xlv) (now (xiii)). whIch
has been retained unchanged. Critical
comments generally stated that this
BMP was not adequately related to
section 404 or that it exceeds EPA ’s
authority. EPA feels that neither
criticism is well-founded since the
requirement applies to discharges
regulated under section 404 and assures
compliance with two related Federal
laws.
Almost all of the commenters agreed
with proposed (xv) (now (xv)) and it has
been retained substantially as proposed.
EPA feels that there is no basis for the
comments that this requireineut is
impractical or that it might result in
environmentally harmful activities.
No favorable comments we’e received
regarding proposed (xvi). The general
criticisms were that this EMP was not
adequately related to section 404 and
was more appropriately regulated under
section 208 and/or FWRA. that it was
not practicable, that it was beyond the
scope of EPA ’s authority, and that the
language was not adequately defined or
specific. In response to these comments
proposed (xvi) has been deleted.
No favorable comments were received
regarding proposed (xvii). Objections to
this BMP were generally that it was
covered under section 208 and
regulation under section 404 was not
appropriate, that It was not practicable
or not necessary, that It exceeded EPA’s
authority. and that It was unrelated to
farm or forest road construction, in
response to these comments proposed
(xvii) has been deleted.
In addition to these revisions and
deletions EPA has included in these
regulations three other baseline liMPs.
As explained above, new liMP (v) is
Intended to restrict the adverse impacts
of road fill construction on waters of the
U.S. to the specific site of the fill. It
specifically affects the manner in which
dredged or fill material Is discharged for
road construction. and so Is clearly
appropriate in this section.
New (xi) and (xii) are both designed
to protect the public health and welfare
by protecting waler supply and food
production areas from contamination
resulting from discharges allowed under
this paragraph.
I 123.92(d) —One cominenter
exp-essed concern that proposed
§ 123.107(d), which exempts Federal
projects qualifying under section 404(r)
of CWA from State sectIon 404 permit
reqinrements, is contraly to the
provisions of section 404(t) of CWA.
Section 404(t) preserves for the States
the right to regulate discharges of
dredged or fill material in the navigable
waters of the State. To clarify the’
distinction between section 404(r) and
section 404(t). the paragraph has been
changed to specify that projects
qualifying under section 404(r) are
exempt from regulation under the
Federal or State section 404 program,
but may be regulated under other State
or Federal programs.
§ 123.94 Permit application.
This section was proposed as.
* 123.108. -
Several commenters suggested that
the permit application content
requirement8 of proposed § 123.108(c) be
simplified and reduced. The Agency
agrees. and In revising those
requirements has attempted to clarify
what is required in the application.
reduce duplication, and limit application
req airernents to the information which is
normally required for evaluation of
proposed projects.
A number of commenters objected to
what they considered the unreasonable
economic costs of providing the
application information required by the
proposal. We believe the simplification
and reduction of those requirements will
result in commensurate reduction In
costs to the applicant. The Note under
§ 123.94(c)(ZXv) also seeks to ensure
that the level of information required
will be appropriate to the necessaw
review, pursuant to the section
guidelines, 40 CFR 1 230.4(c) (a
proposed In 44 FR 54222, Septum.
1979).
I 123.96 Emergency permits.
EPA has revised the section on
emergencies (proposed § 123.111) to
ensure that procedures and
requirements relating to discharges of
dredged and fill material will be waived
only to the extent necessary to meet
emergencies. The provision still allows
the Director the necessary flexibility to
respond to situations which would result
In an unacceptable hazard to life or
severe loss of property if corrective
action Is not undertaken during the
usual processing period. At the same
time, the revised language assures the
public’s right to participate at the
earliest feasible opportunity.
* 123.97 Additionoi co,djtions
applicable So cl i 404 permits.
This section contains the standard
permit conditions which the State
Director shall include in all State 404
permits. The permittee now must be
required to maintain the authorized
work area as described in the permit in
order to prevent subsequent violations
of CWA standards due to previously
authorized activities. In additior
permit must specify tha: only ac
specifically identified and autho
the permit are authorized activities.
maintains consistency with Corps
permits, and alerts the perniittee to thi.
fact that the permit allows him/her to
perform only work specifically
described by the permit. Any other
activities which require a permit bui are
not specifically identified and
authorized in the permit cannot be
performed unless the permit is modified
or a new permit is obtained.
I 123.98 Establishing 404 permit
conditions.
This section also Includes permit
conditions which the State Director shall
Include in State 404 permits. These
conditions may vary in their wording
from permit to permit, but must be
applied, to the extent appropriate, in
every permit.
The permit must now include
descriptions of the geographic ared.
specific s:te, type, size, and purpose of
any authorized discharge. as well as the
water quality standards, effluent
limitations, and toxic effluent standards
with which the discharge must comply.
These requirements are Intended to
avoid any confusion as to what i
authorized by the permit and wi
limitations are imposed on the
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Federal Register / Vol.45 , No. 98/Monday, May 19. 1980 / Rules and Regulations
33401
authorized discharge. The permit must
• also Include a specific date by which
work must commence.iliis will ensure
that the permittee knows exactly when
the discharge Is authorized and when it
is not.
123.99 Memorandum of agreement
with the Secretary.
This section was proposed as 123.9a
One commenter suggested that the
requirement for the State and the
Secretary to enter Into an agreement
was unnecessary. EPA disagrees. The
MOA with the Secretary Is the primary
means of implementing the requirements
of sections 404(g) and (h) of CWA. It is
necessary to coordinate the transfer of
the Federal program applicable to State-
regulated waters to the State. and to
clearly establish where the jurisdiction
of the Corps ends and that of the State
begins. The Corps will identify for the
State those waters within the State over
which the Corps will retain jurisdiction.
The MOA with the Secretary will
describe this division of jurisdiction, and
confirm the Stat&s understanding of its
jurisdiction as set out in the program
description under § 123.4(h)(1).
Two comnienters felt that § 123.99(f).
which prohibits the State from issuing a
section 404 permit If in the judgement of
tha Secretary the discharge would
substantially Impair anchorage or
navigation, should be struck. EPA
cannot incorporate these comments
since to do so would conflict with the
express language of section 404(g](1)(F)
of CWA.
§ 123.100 Transmission of information
to EPA and other Federal agencies.
This section was proposed as § 123.98.
Several commenters objected to any
application of the draft permit
requirements of § 124.6 to State section
404 programs. As in the proposal, draft
State section 404 permits will continue
to be required in certain cases. In most
cases draft permits will not be required.
However, for those activities for which
EPA may never waive permit review.
such as major projects or projects in
particularly sensitive areas, and for
other activities when EPA deems it
necessary, the State will be required to
prepare and circulate a draft permit.
(See the discussion under § 124.8 of this
preamble for a general justif ication of
the draft permit requirement.) As
discussed in the preamble to § 123.6(f).
the categories of discharges for which a
draft State section 404 permIt is required
have been more clearly defined.
§ 123.101 EPA review of and objections
to Stole permits.
Two industry cominenters and one
State agency objected to EPA review of
State permits in general and the 90-day
review period in particular. No changes
were made because the provisions of
this section follow from the express
language of section 404(j) of CWA. If the
Regional Administrator is going to
comment upon a permit application or
draft permit, he or she shall notify the
State Director within 30 days of receipt.
If such notification Is made in time, the
Regional Administrator shall have an
-additional 60 dayito respond.
Responses will normally be given in less
than the full 90-day period.
The following chart should darify the
entire State section 404 permit
application review process.
SIWNU CODE ilSG-OI-M
-------
STATE 404 PROGRAMS— PERMIT APPLICATION REVIEW PROCESS
1 20 30 50 90 days
Receipt of comptete permit application (draft permit where required) by E.P.A.
(also sent to F.W.S.. C.O.E.. N.M F.S.).
• a
Deadline for C.O.E.. F.W.S.. N M.F.S., notice to E P A. of intent to
comment.
Notice from E.P A. ta State of intent to comment, or of reservation .
of right to object. (Request tor preparation of draft permit or additional information).
Deadline for C.O.E.. F.W.S.. N.M.F.S.. to submit
written comments to E.P.A. . (may be a 30 day extension).
I
U
Deadline for E P.A. to submit wrItten
comments to Stale. State reviews
E.P.A. comments.
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 334C3
§ 123.103 Enforcement authority.
This section was proposed as
§ 123.101. It has been shortened in order
to avoid duplication with § 123.9 and
eliminate unnecessary provisions. These
changes do not In any way weaken the
State enforcement authority
requirements; expectations of diligent
and effective State enforcement have
not been altered. The complete
requirements for State 404 program
enforcement authority can be
ascertained by reading both § 123.9 and
§123.103.
§ 123.104 Approval process.
This section (proposed § 123.104) has
been retained largely in its proposed
form. The following chart should clarify
the entire State 404 program submission
and program approval process.
BILUNG CODE 6560-01-U
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33404 Federal Register I Vol. 45. No. 98 I Monday. May 19. 1980 I Rules and Regulations
404 PROGRAM SUBMISSION AND APPROVAL PROCESS
RECEIPT OF STATE SECTION
404 PROGRAM SUBMISSION
SUBMISSION MUST CONTAIN 3 COPIES OF THE FOLLOWING
A LETTER FROM THE GOVERNOR REQUESTING PROGRAM APPROVAL
A COMPLETE PROGRAM DESCRIPTION
ATTORNEY GENERALS STATEMENT
A MEMORANDUM OF AGREEMENT WITH THE REGIONAL ADMINISTRATOR
- A MEMORANDUM OF AGREEMENT WITH THE SECRETARY
COPIES OF STATE STATUTES AND REGULATIONS
ADMINISTRATOR PROVIDES COPIES OF STATES
SUBMISSION TO CO E.. F.WS.. N.MF.S.
WITHIN 10 DAYS OF RECEIPT
E.P.A. NOTIFIES STATE WITHIN 30 DAYS OF RECEIPT
WHETHER SUBMISSION IS COMPLETE
ONCE COMPLETED SUBMISSION IS RECEIVED E.P.A.
PUBLISHES PUBLIC NOTICE OF STATES APPLICATION
NOTICE MUST INCLUDE
COST OF OBTAINING A COPY OF STATES SUBMISSION
- WHEN AND WHERE STATE S SUBMISSION MAY BE REVIEWED
BY THE PUBLIC
WHO THE PUBLIC SHOULD CONTACT WITH QUESTIONS
OUTLINE OF FUNDAMENTAL AS ECTS OF STATES PROPOSED
PROGRAM A’ D E.P.A. i REVIEW AND DECISION PROCESS
NOTICE OF PUBLIC HEARING. AND 45 DAY COMMENT PERIOD
PUBLIC HEARING
- HELD NO LESSTHAN
30 DAYS AFTER NOTICE
______________________ I CO 4ENT PERIOD OF NO LESS THAN
IF STATE SUBMISSION IS I 45 DAYS AFTER NOTICE
CHANGED. REVIEWPERIOD £
BEGINS UPON RECEIPT ________________________________________ STATE AND E.P.A. MAY
OF REVISED SUBMISSION ADMINISTRATOR APPROVES OR EXTEND REVIEW PERIOD
DISAPPROVES OF PROGRAM WITHIN 120 DAYS
OF RECEIPT OF COMPLETE PROGRAM SUBMISSION
DISAPPROVES AFrKQVES
NOTIFY STATE OF REASONS FOR ADMINISTRATOR NOTIFIES STATE AND
DISAPPROVAL AND ANY MODIFICATIONS PUBUSHES NOTICE IN THE FEDERAL REGISTV
OR CHANGES NECESSARY FOR APPROVAL
SIWNO CODE S560 -C1-C
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Federal Register / Vol. 45, No. 98 I Monday, May 19. 1980 / Rules and Regulations
33405
I. Part 124—Procedures for
Decisionmaldng.
A. What Does This Part Do?
Part 124 establishes the procedures for
Issuing, denying, modifying, revoking
and reissuing. or terminating EPA-Issued
RCRA, UIC, PSD. and NPDES permits. It
also establishes procedures applicable
to certain State administered permit
programs. -
This framework gives EPA the
discretion to process RCRA, UIC. PSD,
or NPDES permits separately or In
comb nation. While consolidating permit
procedures Is not mandatory, It is
encouraged whenever a facility or
activity requires permits under more
than one statute. Without consolidation.
a facility needing multiple permits
would repeat the entire permit process
foi each permit. But with the opportunity
for joint issuance of draft permits. joint
comment periods, and joint public
hearings under Part 124. a Facility would
go through the process only once.
When EPA issues all the permits
required by a facility, the process may
be consolidated at any time. When
responsibility is divided between EPA
and a State. the regulat ons encourage
joint proceedings.
Part 124 includes procedures for
Issuing permits under regulations
implementing the “prevention of
significant deterioration’ (PS!))
provisions of the Clean Air Act. These
procedures are similar to 40 CFR
I 52.21( r). No parallel requirements have
been included in Parts 122 and 123
because the mechanism for approving
State programs under the Clean Air Act
dffers from that for other permit
programs. EPA will explore the
porsibility of more comprehensive
consolidation in the future.
B. Hcw Does This Part Work?
Under these proceduies, a facility
must aptly for a permit under the
requirements In Part 122 (RCRA , UIC,
NPDES) or 40 CFR I 52.21 (PSD). The
Director reviews the application and
notifies the applicant when the
application Is complete (I 124.3). The
Director then decides whether to deny
the application or prepare a draft
permit. lithe former, the Director Issues
a notice of Intent to deny if the latter, be
or she prepares a draft permit under
I 124.8. Both decisions are accompanied
by a “statement of basis” (I 124.7) or a
“fact sheet” (1 124.8) that becomes part
of the “administrative record”
assembled for all EPA-Issued permits
(I 124.9). Because of practical limits on
EPA’s ability to explain in
comprehensive dc:ail each of the
permits it Issues, the depth of discussion
in the fact sheet or statement of basis
will be related to the importance of the
Issues involved and their controversial
nature.
Decisions to modify, revoke and
reissue, or terminate a permit (I 124.5)
also require the Director to deny the
request or prepare a draft permit, The
Director may take any of these actions
either on his or her initiative or by
acting on a request submitted by any
interested person. Denials of requests
for modification, revocation and
reissuance, or termination, unlike
denials of applications, are not subject
to public notice, public comment or
public hearings. If the Director decides
to deny the request, he or she sends the
requester a notice briefly stating reasons
for the denial. This notice is not
accompanied by a “statement of basis”
or a “fact sheet.” And an
“administrative record” is not
assembled. Denials of requests for
modification, revocation and reissuance,
or termination cannot be formally
appealed to the Administrator under
§ 124.19 but only Informally under
I 124.5(b). All draft permits prepared
under § § 124.5 and 124.0 are subject to
public notice ( 124.10), public comment
(I 124.11) and. In suitable cases, public
hearings ( 124.12). This process allows
any interested person to bring forward
any comments or questions concerning
the draft permit or its supporting
materials. Alter the comment period
(including any public hearing) has
closed, EPA issues a final decision on a
permit (I 124.15). The final permit
decision is accompanied by a response
to all significant comments (1 124.17)
which, together with additional
supporting material, completes the final
administrative record ( 124.18).
Whenever comxnenters on a draft
permit ask that changes be made, the
final permit will not become effective
until 30 days after notice Is 5 0t% ed under
§ 124.15(a). ThIs gap between the date of
issuance and the effective date of a final
permit allows interested persons time to
appeal a decision on a RcRA, UIC, or
PSD permit to the Administrator under
I 124.19 or request an evidentiary
hearing for an NPDES permit under
* 124.74. II no such comments are
received, the final permit Is Issued and
effective the same day,
When an approved State program is
the permitting authority, the State
Director must prepare a draft permit,
provide public notice and opportunity
for a hearing and allow the public at
least 30 days to comment on the draft
permit before a final permit is issued. A
fact sheet for all major permits is also
required. (These regulations do not
include requirements for processing
State-issued PS!) permits.) Section
headings (or when necessary. paragraph
headings) have been highlighted to make
It easier to identify which Part 124
.requirements apply to approved State
programs.
C. What Kinds of Hearings Are
Available Under This Part?
There are three kinds of hearings
available under Part 124: the public
hearing, the evidentiary hearing and the
non-adversary panel hearing.
(1) The Public Hearing. Section 124.12
describes a public hearing that Is purely
legislative in nature. Public hearings are
granted in two situations: (1) upon
written request, if the Director finds “a
significant degree of public interest” In a
RCRA. UIC, PSD, or NPDES draft permit
or (2) without request at the Director’s
discretion. At such a hearing, oral or
written statements and data concerning
the draft permit can be submitted by
any interested person. In genera!. this is
the only type of hearing that will be held
on RCRA, UIC, or PSD permits. Limited
exceptions to this rule are described
below.
(2) The Evidenticry Hearing.
Evidentiary hearings are provided for in
Subpart E, These hearings are available
whenever NPDES permits are contested,
if a written request is flied within 30
days after a decision on the final permii.
Evidentiary hearings also are available
whenever RCRA permits are terminated.
Under certain circumstances (outlined in
* 124.74(b)(2fl. persons requesting an
evidentiary hearing on an NPDES permtt
also may request that the erider.tiary
hearing include closely related
conditions of a RCRA or UIC permit.
PS!) permits can never be made subject
to a Subpart E hearing.
(3) The Non-Adversary Pcne! Hearing.
Subpart F contains procedures for
conducting a non-adversary panel
bearing. These new procedures
primarily apply to specific kinds of
NPDES permits. Panel hearings may he
held for first decisons on any CWA
variance and For the Issuance of any
other NPDES permit which constitutea
“initial licensing” under the
Administrative Procedure Act. The
Regional Administrator also may use
these procedures when making RCRAor
IJIC permit decisions, or when prepar.ng
a draft NPDES general permit under
I 122.59. Finally, the parties to an
evidenliary hearing under Subpeit E
may agree to use Subpart F procedures
instead. Whenever a Subpart F hearing
Is held on one permit and other permits
subject to this Part have been
consolidated ‘lth that first permit, all
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33406 Federal Register / VoL 45, Nm. 98’ P Monday. May’ 19 1980 f Rules and Regulations
the permits are processed together under
Subpart F.
In a panel hearing the Presiding
Officer sits with a panel of other EPA
employees. Together they question the
participants, rule on requests for cross-
examination, and schedule
supplemental hearings for cross
examination A recommended decision.
Is Issued and becomes final if not
appealed to the Administrator withIn 30
daye (The Presiding Officer will
generally be an Administrative Law
Judge. Persons other than
Administrative Law Judges may serve as
Presiding Officers if no NPDES permit
other than.a general permit Is involved
or by agreement of the parties i f an
NPDES permit other than a general
permit Is Involved.)
To clarify the different types of
hearings available, EPA has adopted the
following terminology:
A “public hearing” is a hearing under
section 124.12.
An “evidentiary hearing” Is a hearing
under Subpart E.of Part 124.
A “panel hearing” is a hearing under
Subpart F of Part 124.
A “formal hearing” is either a hearing
under Subpart E or a hearing under
Subpart F, since both types of hearings
conform to the formal hearing
requirements of the Administrative
Procedure Act
These terms can be found in the
“definitions” section ( 124.2).
D. How Does This Part Relate to the
June 14. 1979, Proposed Regulations?
The following is a discussion of
significant comments received and the
basis for revisions made to Part 124 of
the proposed regulations. Minor
editorial changes have been made In
most sections and are not discussed,
EPA has attempted to address all
significant comments received on this
Part during this rulemaking. However,
the procedures in Part 124 are a direct
outgrowth of the procedures in the final
NPDES regulations published June 7,
1979. See 44 PR 32854. Many comments
addressed l it the preamble to those
regulations apparently were answered
satisfactorily and were not raised again.
As they still may be relevant to a full
understanding of these procedures, the
reader may find It helpful to read the
preamble to the final NPDES regulations
as well as this preamble.
124.1 Purpose and scope.
A number of commenters questioned
the value of the entire consolidation
effort. Several points were made,
(1) ConsolidatIon will be too
cumbersome, -
Severa’ commenters argued that
consolidation would slow down the
permitting process to the pace of the
slowest permit. They provided graphic
examples of how confusion would result
when decisionmaking on one permit
Interacted with decisionmaking on
another. These commenters also argued
far the efficiency of a facility getting its
permits i i i. sequence, as they are needed,
rather than all at once. Accordingly, the
comments suggested that consolidation
ought to be at the option of the permit
applicant
While Issuing several permits together
often may take longer than issuing the
first of a sequence of permits, this is not
the whole picture. FiraL RCRA,UIC,
PSD, and new source NPDES permits
are construction permits, A new’ facility
or activity which requires a permit
under more than one statute must obtain
all required permits before construction
can begm..Thus, It Is the granting of the
last permit, not the first, that completes
the Job of specifying the environmental
requirements applicable to a plant.
Planning and financing often cannot
proceed until those administrative
requirements are fixed. Consolidating
the procedures, in. almost all cuses. will
accelerate the granting of that last and
most important permit.
Second, and more important, the very
procerd of issuing permits to a major
source in sequence, rather than at the
same time, leads to problemr. of its own.
The issuance of an earlier permit may
have been based cii assumption3 about
what a later permit would require.
When the later permit imposes
unanticipated requirements, the first
permit then may need to be re
examined. Moreover, evidence
introduced at a later permit proceeding
may affect the evidence at an earlier
proceeding and call into question an
earlier decision. Whenever such
situations arise, the Agency (and the
applicant) are faced with either trying to
patch up the earlier permit, which is
slow and cumbersome, or moving
toward final action and judicial review
with questlorw of consistency
unresolved. Consolidation at least
provides a mechanism by which such
problems can be identified and resolved.
before the final permits are issued.
For these reasoas EPA has rejected
the suggestion not to proceed further
with consolidation at this tlme.
One commenter ax ued that these ru ulabone
eliould be delayed because of poutble
taconsietency with the Ener , Mobilization Board
peoposais. In fact, thus re 5ulatlone are entirely
Osnailteat with that le i,laijon. Both the House and
Saute versions of the bill place their mept
emphasis os coordinsting, end where poisible.
consolidatIng deci.;onmaking for a f.cali’y. This Is
also th. aim of these regulat.ona.
EPA also has rejected the sugg’
that consolidation should be the
of the permit applicant only. The
regulations provide that the permit
applicant may request consolidatloi
and In most cases considerable weig)ir
will be given to that request. There may
be some cases when staggering the
Issuance of permits fits a project
construction schedule better than
Issuing all the permits together. and
when the dangers Inherent in Issuing
permits In sequence are worth risking.
However, both the States’ and EPA’s
Interests In handling their own workload
and the public interest in effective
environmental regulation also must be
considered. Since both of these interests
could be served by consolidating
permits in a particular case, the
suggestion to give the permit applicant
veto power over consolidation has not
been accepted.
(2) New programs should not be
consolidated with older ones.
One commenter argued that because
the RCRA and UIC programs are new.
untested. and subject to change, they
should not be consolidated with the
NPDES and PSD programs.
We agree that these programs are new
and that consolidation is an untestad
effort It is quite likely that iii a few
years, these consolidated regulati’
might be comprehens;veiy rewrit
account for what we will have leai
Just as the I.’PDES regu!a Lions had to i...
revised in light of practical experience
However, this is no reason for
avoiding consolidation. From the very
beginning of these new programs.
questions about their relationship to
each other and to older permit programs
were inevitable. These conrolida ted
regulations are simply ar. effort to
address in advance some of those
questions explimtly rather than to
improvise solutions latir on a case’.b ,-
case basis,
(3) ConsolidatIon will snake NF.PA
more broadly applicable,
When these regulations were
proposed, the preamble stated EPAs
position that the National
Environmental Policy Act INEPA) does
not require preparation f an
enviruumer,tal impact s;a ement (E S)
when permits are issuc,d i nder ti’e
RCP.A. UIC, or PSD programs, or w n
non-new source NPOES permits are
issued. 44 FR 34247. (June 14, 1979)
No comments opposing this positiur.
were received, and a number of
comments supported it, either directly or
by necessary implication. Accordingi’
the same position has been adopt’
the final regulations. See 124.9.
Several commenters were concL
that consolidating permits would make
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations
33407
NEPA more broadly applicable. One
commenter argued that even though PSD
permits are exempt from NEPA by
statutç. If a PSD permit were
consolidated with a new source NPDES
permit for the same plant. PSD Issues
might have to be discussed in the EIS on
the NPDES permit. The result would
make NEPA applicable to the PSD
permit despite the explicit language of
the Clean Air Act.
EPA agrees that this Is an anomalous
result, but It is hard to see how to avoid
It. Given the explicit language of many
NEPA cases that all the reasonably
foreseeable major Impacts of a project
must be discussed In an EIS, a strong
argument can be made th t the kind of
comprehensive balancing analysis
NEPA contemplates would be -
Impossible if air quality impacts were
totally excluded. This argument,
however, does not rise or fall on
whether the permits are consolidated. It
applies just as strongly to an NPDES
permit Issued to a source after or before
a PSD permit. Indeed, in one recent case
EPA has been challenged for Its failure
to adequately consider air Issues in an
EIS on an NPDES permit issued after the
source’s PSD permit. Save the Valley.
Inc v. EPA. Civil No. 79 —3058(8th Cir.
1979). In such a case, issuing peimits in
sequence rather than together will likely
lead to confusion of the NEPA issues. if
the EIS is prepared for one permit before
another permit is issued, any new
information provided in subsequent
permit proceedings may lead to charges
that the EIS Is inadequate for not
considering II. If the EIS is prepared
after some of the permits are Issued, any
new Information in the EIS, conversely,
may lead to charges that the
consideration of the earlier permits was
inadequate.
CorisoUduting permit proceedings
offers e procedural vehicie for avoiding
these results and ensures that work on
the EIS does cc l have to be re-ixamined
In the context of an individual permit
decision.
124.2 Definitions.
A few commcntere stated that the
regulations did not ularify whether
permit modificatiur.. revocation and
reissuance, and termination would be
processed thrcugh the same procedures
as permit issuance and denial. To make
this clear, the regulations identify, on a
section-by-section basis, which kinds of
permit actions are concerned.
This section has also been rewritten
to specify more precisely the definitions
that appJy to the PSD program, and to
_help make deer that. or PSD, the
general provisions of Part 122 do not
apply.
I 124.3 Application for a perraiL
(1) A number of comznenters urged
EPA to specify a date by which an
application should be considered
complete. One commenter suggested
that this date should be the date of a
complete response to the Director’s
request for additional information. EPA
has accepted this suggestion, but has not
accepted a second suggestion to limit
the Director’s authority to request
Information that will make the
application complete. Without the
power to require such Information, the
Director will not be able to make
responsible decisions. If the Director
believes an application is incomplete
and needs to be supplemented. this
section now requires him or her to list,’
In a notice of deficiency, all the
information needed to make an
application complete. The limiting factor
is that not more than one deficiency
notice may be issued in any given
permit proceeding.
(2) Beyond this, many coinmenters
urged that EPA set legally binding
deadlines for its own actions under this
Part. These comments have not been
fully accepted for the reasons set forth
in the preamble to the final NPDES
regulations. See 44 R 32892 (June 7.
1979).
But. EPA has partially accepted the
comments where major new facilities or
activities are concerned. EPA will now
set and make public a schedule for
decisionmaking for each new project.
The schedule is not legally binding.
although EPA expects schedules to be
followed in most cases. If schedules
were set so that they could be met In all
cases, they would not be of much use as
a management tool. Accordingly, EPA
expects to set schedules tiaht enough to
pose some risk of not meeting them, and
it expects some schedules will not be
met. This provision does not apply to
PSD permits as they are already subject
to a one-year, statutorily Imposed.
timetable for decision.
(3) Some commenters recommended
that 124.3(a) explicitly exempt LJIC
activities authorized by rule under
I 122.37 from the application
requirement. This section does not apply
to them because UIC activities
authorized by rule do not “require a
permit.” An exemption has been added
to the final regulations to make this
explicit.
(4) 40 CFR § 52.21(r)(3) provides that
certain sources requiring a PSD permit
need not go through EPA permitting
procedures if the relevant State has
already provided an equivalent
opportunity for public comment. These
provisions have been included in Part
124 as * 124.3(b).
I 124.4 Consolidation of permit
processing.
(1) EPA has redrafted proposed
I 124.4 in its entirety. The proposal
covered both existing and new facilities
and allowed applicants to delay filing
RCRA and UIC permit applications for
up to 180 days in order to, consolidate
them with applications for new NPDES
permits or with reapplications for
expiring NPDES permits.
These elaborate provisions were
included in the proposal because RCRA
and UIC permits were to be granted for
the life of the facility. Thus, it was
necessary to provide a special
mechanism to coordinate issuing these
permits with rene wals of five-year
NPDES permits. Now that RCRA permits
and UIC permits for Class I wells also
will be issued for fixed terms, it will be
much simpler to coordinate by allowing
the Director to set permits to expire
simultaneously; the regulations have
been rewritten to provide for that.
A special provision for coordinating
applications is unnecessary for new
facilities. Since all permits subject to
this Part will be required at the same
early stage of the project’s planning,
there will be a natural incentive to file
corresponding applications even earlier
and at about the same time.
(2) A number of commenters
(including some who opposed the
concept of consolidation) urged that
States should be required to consolidate
permit proceedings with EPA whenever
EPA and a State share permitting
authority for a given facility or activity.
EPA believes It would be unwise to start
the consolidation effort by compelling
the States to act in parallel with the
Federal government whenever the
Federal government saw fit. Because the
efficiency of the consolidation effort Wti
partially depend on State cooperation,
the comment has not been accepted. The
regulations have beer . amended to
reflect EPA’s position that approved
States are encouraged to consolidate
applications, but are not required to do
so.
(3) The sections relating to
consolidation of draft permits were
originally part of proposed § 124.6.
Proposed I 124.6(d) has been combined
with the new § 124.4 to make clear that
consolidation can occur at different
stages in the permitting process.
Comments addressing proposed
124.6(d) are answered here.
Several comznenters objected to the
potential consolidation of PSD permits
with other permits. They argued that
consolidation of PSD permits would
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations
cause unreasonably delay, and might
even breach the one-year statutory
deadline Imposed by CAA section
165(c).
EPA disagrees. Compliance with the
statutory deadline has not been a
problem with the vast majority of PSD
permits. The applicant’s right to a
- speedy decision is explicitly preserved
by 124.4(e) which provides that
consolidation leading to a breach of the
deadline will not occur without the
applicant’s consent One year Is short
compared to the time generally needed
by the private sector to plan and
construct a facility without regard to
any Federal regulation: large facilities
often require more than a decade.
Taking longer to process the PSI) permit
alone due to consolidation is likely to be
more than offset by the shorter time
needed to process other permits for the
same facility and by gains from
considering applications together
instead of sequentially. Because it is the
application date which fixes the right to
available PSD increments, consolidation
will not affect a facility’s “place In line”
for available Increments.
§ 124.5 Modification, revocation and
reissuonce. or termination c/permits.
This section combines proposed
U 124.5 and 124.7 under a single
heading in order to eliminate an
unnecessary- distinction between actions
arising out of requests by interested
persons (including the permittee) and
actions undertaken by the Director
without any preceding request. Whether
a modification, revocation and
reissuance, or termination is based on a
request or on an independent decision
by the Director, the action must be
supported by cause under U 122.15 or
122.16. This section has been amended
to allow the Director to request the
submission cit an up iaIed application
whenever a permit is being modified
and o require the submission of a new
application whenever a permit Ie. being
revoked and reissued. A draft permit
must be prepared for any modification
or ‘evccation and reissuance unless the
permit modification qualifies as a minor
modiiicatioa under § 122.17. A “notice of
intent to terminate’ is a type of draft
permit and is Issued for all proposed
terminations. These drafts, whether In
permit or notice form, are processed the.
same as any draft permit prepared
under 124.6. They are accompanied by
a statement of basis (I 124.7) or a fact
sheet ( 124.8), based on the
adnthtistratlve record [ 124.9), subject
t o public notice ( 124.10). and public
comment ( 124.11) and public hearings
( 124.12). Terminations of RCRA and
NPDES permits are eligible for
evideritiary hearings under 12424.
(1) EPA has kept this section separate
front the section on draft permits
( 124.6) for two reasons. First, EPA
wants to distinguish permit actions that
can be Initiated only by the permittee
(permit issuance based upon an
application under § 124.6) from permit
actions that can be Initiated by the
Director (124.5).
We emphasize this distinction In
response to one comnienter who asked
whether the Director could prepare a
draft permit for a facility that had not
even applied for one. The Director’s
authority to take permit actions without
having received an application Is limited
to the situations specified in § 124.5 and
to general permits and permits by rule.
Second, EPA wants to distinguish a
denial of a request for modification,
revocation and reissuance, or
termination under § 124.5 from a
tentative decision to deny a permit
application under § 124.6.The former is
not subject to the same procedures as a
denial of an application for a permit.
Notice of a denial of a request for
modification, revocation and reissuance
or termination is not a draft permit and
there is no opportunity for public
comment, a public hearing or a formal
administrative appeal. These denials are
subject only to an informal appeal wider
& 124.5(b).
In adopting this position. EPA rejected
comments urging that modification
denials be appealable through the same
agency procedures as permit issuance or
denial. Departures from the cycle of
permit issuance and periodic
ree mination shoula not be encouraged
In such a manner. If encouraged. they
coulcikeep many permits in a state of
perpetual reexamination thus impeding
the controL progranr being implemented.
(2 Othercommenters urged that the
Director should be required to consult
with the permlttee before he or she
modifIes, revokes and reissues, or
terminates a permit. In most cases,
modifications by the Director will be
triggered by Information submitted by
the permittee, and the Director may
determine whether “cause” exists under
§ 122.15. Therefore, “surprise”
modification actions will be rare.
Although EPA agrees that consultation
may e advisable In many cases, there
may be other cases where it is not
advisable. Accordingly, the comment
has not been accepted.
(3) The Natural Resources Defense
Council asked that Interested persons
besides the permittee be allowed to
request permit modification, revocation
and reissuance, or ternilnatior,. EPA
agrees with this comment and hr
rewritten 1 124.5 to reflect this.
(4) ThIs section does not contain
special procedures for modifying P’
permits. EPA will decide whether
procedures are necessary when it
promulgates rules based on its
September 5, 1979 Notice of Proposec!
Rulemaking and may amend this section
at that time. This section, however, does
contain procedures based on 40 CFR
1 52.21(w) for terminating PSI) permits.
Since the purpose of § 52.21(w) Is to
quickly adjust permits granted under an
erroneous interpretation of the law to
the clear standards of the Alabama
Power decision, no procedures are
provided for those decisions. They
simply will be granted or denied by the
Regional Administrator upon written
application.
I 724.6 Dreft permits.
(1) A number 3f commenters objected
to the use of draft permits. These
commenters would perfer to comment
on the permit application before the
agency takes a tentative position
instead of after such a position has been
taken and prepared in the form of a
draft permit. These cornmenters feel that
preparing a draft permit creates the
impression that the agency alrer
prejudged the case. EPA disagri
this view. A draft per:ni t functio.
as a tentative decision on the issua.
modification, revocation and reissuariLv,
or termination of a permit. It is a mere
proposal. subject to change based upon
comments received during the public
comment (including the public hearingj
period. Moreover, there is a major
advantage to the public in commenting
on the draft permit rather than on the
application alone. Comments on the
application are invariably restricted to
the content of the application, reflecting
only the applicant’s analysis and policy
choices. The draft permit, on the other
hand, embodies the tentative views and
analysis of the decisionmaker who the
comments are, ultimately, designed to
influence. Therefore comments on a
draft permit can be written in a more
focused and informed way.
(21 This section also has been
amended to make clear that the
standard permit provisions of Part 122
do not apply to PSD permits.
* 124.7 Statement of basis
1124.0 Fact sheet.
(1) EPA has rejected comments urging
that the discussion requirements i—’
these sections be expanded. As
explained in the preamble to ER
Final NPDES Regulations (see 44 J
32881 Uune 7, 1979)), the statement of
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33409
basis Is supposed to be a brief summary
that meets minimum requirements. If the
Director needs to provide more detail.
be or she always may prepare a fact
sheet, which Is more comprehensive
than a statement of basis.
(2) EPA also has reected comments
urging that the statement of basis
requirement be eliminated for UIC
permits for Class U wells. Preparing a
statement of basis should not be
burdensome even for Individual wells.
and the burden under the UIC program
will be eliminated for Injections
authorized by rule ( 122.37) and
reduced for injections within area
permits ( 122.36).
(3) Commenters suggested that EPA
define “mator permits” more precisely.
Though this would be desii able. the
comment cannot be accepted now. Such
a definition is a function both of EPA ’s
knowledge of the Impact of the pollution
invclved and of its resources to address
this aspect of permit issuance. Both are
too uncertain right now to justify
departing from the present approach of
year.by.year designation of “major”
permits. which is desc ibed in 122.3.
I 124.9 Administrative record for draft
permits w1 en EPA is the permitting
authority.
(1) Several commenters urged EPA to
include supporting as well as
nonsupporting documents in the
administrative record. Because the
documents for draft permits under this
section will generally comprise most of
the material In the final edministrative
record, EPA agrees that the record
should include both kinds of documents.
Fact sheets (and, to the extent
discussion is needed. statements of
basis] aLso should be objective
statementeof the issues faced by EPA
and should cite documents on both sides
of controversial issues. No change has
been made because the e.visting text Is
consistent with this Interpretation.
(2) Another comnienter suggested that
all matedal In the administrative record
be stamped with the date of submission.
This approach, or a variation of it, might
be advisable in some cases (or for some
documents). However, right now EPA
does not know enough about handling
these administrative records to specify a
particular approach on questions of
detail in this regulation.
124.10 Public notice of permit actions
and public comment period. -
(1) Several cothrnenters stated that
thie section sounded as if public
bearings could cot be scheduled when a
permit is issued and would only be held
in response to requests received during
- the public comment period. The
commentera assumed. and EPA agrees.
that hearings often will be scheduled at
the same time the public notice is
Issued. A sentence has been added to
124.10(a) to make this clear.
(2) One cotumenter questioned the
provision for giving notice of 404 permit
action to adjacent property owners,
arguing that the identity of such owners
iii some cases, might be very hard to
determine. Although EPA. believes such
cases will be rare, the language has
been changed to require notice to be
given to “any reasonably ascertainable”
property owner.
(3) Another commenter objected to the
“comment” in the proposal that gave the
Director the discretion to use press
releases as a method of public notice.
Although EPA eliminated that
“comment.” the Agency recognizes that
the use of press releases for public
notice is both customary and often
essential for any organization that
wants to communicate with the public.
(4) Finally, one commenter objected to
the inclusion under 124.10(d) of a
“summary of major conditions” In the
notice of draft permits. It argued that
this would either lead to long notices or
to litigation for failure to provide an
adecuate ‘summary.”
EPA agrees and has eliminated
summaries from the public notice
requirements. Not only would -
summaries result in long public notices,
they would also impose an Increased
burden on the Director by requiring the
preparation of an additional document.
Since summaries repeat essentially the
same Information contained In the
permit application. draft permit and
statement of basis or fact sheet. EPA
has decided to require copies of the
latter documents to be sent to certain
persons instead. This requirement would
spare Directors from an additional
burden without sacrificing public
paritcipation. Other interested persons
may request copies of these documents.
§ 124.22 Public hearings.
Several commentere argued that the
ground forgrantlng a hearing—
“Bignificant degree of public interest”—
was vague. and that it did not take
account of the permit applicant’s
Interest (or someone elee’a interest) in
using the. hearing to explore issues
further.
EPA has not changed this
requirement One of the purposes of
having a public hearing Is to respond to
public interest, which is not subject to
precise measurement EPA. however.
has added a second ground for holding a
public hearing which allows the Dlrectpr
to hold a public hearing at his or her
discretion.
Since a public hearing is not required
by any of the statutes covered by this
Part,’EPA does not believe that a
refusal to hold a hearing by itself.
should ever lead to invalidation of a
permit. The question on judicial review
should be whether the record EPA
generated adequately supports the
decisions involved, not whether some
other record might have been better.
L Adjudicatory hearings orpubllc
hearings. In the preamble to the
- proposed regulations. EPA stated its
opinion that a formal evidentlary
hearing under 1 554 of the
Administrative Procedure Act (APA) is
not required for Issuance of RCRA UIC.
or PSD permits. Supporting reasons
were given. See 44 FR 34 64-65. (June
14, 1979)
This conclusion proved
uncontroversal where the UIC and PSD
programs were concerned. EPA did not
receive any comments challenging its
conclusion that formal hearings were
not required for PSD permits. and
received only one dissenting comment
as to UIC permits.’
The question of the proper procedures
for RCRA permits. however, proved to
be the single most controversial issue in
Part 124. Several major industrial groups
argued that Formal hearings were
required. Others were equally forceful in
their arguments that no such hearing
was mandated and that the procedures
proposed b EPA were more elaborate
than justified. Because of its :mportance
this issue will be discussed in detail.
A. Arguments In Favor of a Formal
Hearing
(1) Due Process Arguments Sone
comnienters urged that due process
required a formal APA hearing before
the Initial decision on a RCRA permit. It
Is well tettled by now, however, thut the
requirements of due process are rexible.
and that the procedures used cnn be
adapted to the nature of the problem
being addressed. Vermo::t Yankee
A’uciear Power Corp. v. NRDC ’. €15 U.S.
517,524(1978), Mathews v. E!dridge. 41
U.S. 319 (1976). Goss v. Lopez. 419 U.S
‘Excapi for tha P 50 pro r m. whai e
apportunity ‘or e heiiring ii required be taiu e. Se ,
CAA eecmen IbstaJ(ZJ EPA believe.. Itar his
ivquwemol should be rued ir. the light ref the
provtuions of CAA eectwr. 337id 1( 5I cuncmmz
prn thiraI .arore.
‘One comment., ar uted thai beennait tha
Nctton 1424(b)(2) requited. Cormel hearing for
certain Interim permits tuned by the Adimnuetratot.
Congreet nuui id o have intended in impose inch
requtremanh. where the statute Ii quest, as it 5 in
section 1425. However. ai the preamble Ic the
proposal ceplainet the norewl approich in
statutory teutructlcn ii the Opposite of that
advocated by the comment (See 44 F Sims (June
141Pm) ,) Dlf1enin language gene?aIIy lnd,cat s
differing ine.nmg,. teth.r than the same meaning.
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
565 (1975). Although some of the
commenters on this point cited earlier.
editions of Professor Davis’ Treatise on -
Administrative Law, the latest edition of
the treatise strongly favors this flexible
approach. K. Davis, Administrative Low
Treatise, Chs. 10,12 (Zd ed 1979).)
EPA believes It has fully met
whatever due proces’s tests may apply.
It has provided for notice of what the
Agency proposes to do, an opportunity
to challenge that proposal both through
written comments and at an informal
.hearing, a response to comments and a
decision based on the administrative
record.
It has done all this in the context of
decisions aimed, not at punishing past
misconduct in any way, but at
implementing an entirely new field of
regulatory policy. Decisions will be
based on choices among policy
approaches; not on judgments of legal
violation. Moreover, the facts at issue
will be the types of technical questions
‘that trial procedures are not particularly
well suited to address.
Indeed, due to the similarity among
RCRA, UIC and PSD issues, a decision
that due process requires a formal APA
hearing for RCR.A permits certainly
would lead to the conclusion that such a
hearing Is requited, on both the Federal
and State levels, for PSD and UIC
perufits. This conclusion probably would
result in a decision that formal hearings
are required for many other types of
State and Federal land use permits
currently granted or denied by less
cumbersome methods.
(2) The Legislative lntenL Most
comrnenters did not emphasize the due
process argument. Instead, they looked
io RCRA itself, and made two
arguments; one based on the text of the
statute and one on its legislative history.
(a) The Language of the Statute. No
comnienter denied that the permitting
section of RCRA, section 3005. contains
nc reference to a “hearing” of any sort
in connecticn with the Initial grant or
denial of a permit. Instead, the
commenters fixed on section 3 (ii,).
which provides for a “public hearing” on
“any order or any suspension or
revocation of a permit”. They argued
that “order” here has the meaning given
in the definitions section of the
Adminis:ratjve Procedure Act, namely:
“the whoe or a part of a Final
disposition, whether affirmative,
negative, injunctive, or declaratory in
form, of an agency in a matter other
than rulemajdr.g but including
licensing.” SIJ.S.C. 551(6). If this
argument is accepted, the initial granting
or denaying of a license falls within the
APA definition of “order” and a formal
hearing is required. But there are three
problems In accepting this argument.
First, it is an extremely strained
overall reading of the statute. If
Congress had meant to require a formal
hearing on the issuance of RCRA
permits, it would have stated that intent
in the section specifically concerned
with permit Issuance (section 3005), not
by Inserting it via the back door by the
use of “order” in section 3008.
Indeed, the very sentence In section
3008 referred to by proponents of formal
hearings requires such hearings for the
“suspension” or “revocation” of a
permit as well as for any “order.” This
shows that Congress was perfectly
capable of describing procedures for
permit action in detail wben it chose to,
rather than leaving such proèedures to
be Inferred from the use of the word
“order.” As a matter of sentence
construction, it casts doubt on whether
“order” can properly be read to include
permit actions; if It did Include permit
actions, the reference in the same
sentence to permit revocations and
suspensions would be redundant, since
they are just as much “orders” Within
the APA definition as decisions on
issuance.
Second, though the term “order” as
used in this sentence is not explicitly
defined anywhere in RCRA. its meaning
as derived from the text of section 3008
as a whole leads to the conclusion th’at
“order” does not have the APA meaning.
Section 3008 is entitled “Federal
Enforcement,” which in itself leads to
the inference that the exclusive subject
matter of that section 1. enforcement. iS
Subsection 3008(a) is entitled
“Compliance Orders”. The three
references to “orders” in that subsection
obviously apply only to “compliance
orders”. Similarly, subsection (c) is
entitled “Requirements of Compliance
Orders,” and the one reference to an
“order” in the subsection text obvi3usly
refers to a compliance order. The
reference tq, “order” in the text of
subsection (b) is the fifth and last
reference to an “order” in the text of
section 3008 as a whole. It is clear that
the other four references mean only
compliance orders. Yet the argument for
formal hearings depends on giving this
particular use of the word a completely
different reading from the other four,
though there Is nothing to indicate that
different reading was intended. It seems
much more logical to assume that the
drafters of this section simply referred
to “Compliance Orders” in subsection
headings, and then used “order”
“By contrast, sectton 3005 is entitled “Permits for
Treatment. Storage, or Di possi of Hazardous
Ws.te.”
throughout the body of the text a’
shorthand form of reference.
Third, to adopt the APA deflnlt 1 .
“order” here would lead to absurd
Impractical results. It would requlr
formal hearing for all actions unde
RCRA that fit the APA definition of’
“order.” a definition that is very broad
and includes much more than simple
permit Issuance. It would include, for
example, all final decisions to award or
deny grants under sections 2004, 4007.
4008, 7007, 8001 and 8006 of the statute,
as well as decisions to purchase or not
to purchase given recycled materials or
waste disposal services under section
6002. It might also Include the denial of a
petition under section 3001 or section
7004(a).
(b) The Legislative History. The
Senate version of RCRA provided that
permits could only be issued or denied
after “opportunity for a public hearing.”
The House version contained no such
provision. The text of the final statute
follows the House version.
Nevertheless, some commenters
argued that because Senator Randolph,
who addressed the Senate before final
passage and summarized the changes
made between the Senate and the final
version did not refer to dropping the
hearing requirement, it must not h
been dropped.
First, this argument overlooks tk..
that the final version tracked the Hc
bill, not the Senate bill. Sccond, the
House debates are equally free from any
mention of a change of approach. Thus,
a counter-argument can be made that if
the Senate’s hearing requirement hod
beer. inserted, the House would
certainly have mentioned it. Finally, it is
not at all inconceivable to EPA that, in
the brief floor debates on the final
passage of RCRA, any refcrence to
permit issuance procedure would simply
have been omitted.
B. Arguments Against Formality
Other commenters argued that the
proposed EPA permit procedures which
provided for a “hybrid” public hearing
and potential for cross-examination
were.too formal. They also argued that
EPA had no legal authority to impose
procedures more elaborate than
Congress has explicitly required.
Although EPA disagrees with this
argument, EPA has eliminated both the
hybrid public hearing and the
opportunity to cross-examine from the
public hearing stage. As previously
discussed, there are now only three
kinds of hearings under Part 124: a
legislative.type public hearing, an
evldentlary hearing and a non-
adversary panel hearing.
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33411
EPA recognizes that some RCRA and
UIC permits may raise issues better
suited to a more formalized mechanism
for diacuss on thanthat.provided by the
traditional public hearing and has••
an.ended the final regulations to allow
the Director to use the “non-adversary
panel hearing” procedures In Subpart F.
even if those permits were not
consolidated with permits requiring a
paneL hearing. No comparable provision
has been made for PSD permits because
of the potential for delay.
As noted above, RCRA and SOWA do
not require any hearing bef’jre permits
are Issued. Accordingly, in poviding the
Director with a range of choices under
these regulations. EPA takes the
position that no pat ticular form of
hearing is re-iuirad for these permits.
The Director Is given discretion to
choose the procedures that appear likely
to result in the best dec,sior. under the
circumstances of the case.
C. Other Considerations
EPA has previously said that a formal
AM hearing is required under section
3008 for termination of a RCRA permit.
See 43 34730 (August 4, 1078).
Termination of a permit is very likely to
rest on an “accusatory” determination
that standards established in the past
have, not been met, rather than on a
judgment of what the goals of the statute
require by way of control requirements,
which Is likely to be the case for Initial
permit decisions.
EPA previously had proposed
procedures for terminating RCRA
permits as part of EPA’s consolidated
rules for assessing civil penalties and
revoking or suspending permits. See 43
Ffl 34730 (Aug. 4. 1976).” EPA has new
decided that these procedures should
instead be consolidated with the formal
hearings in Part 124 for NPDES permits.
This will provide a greater measure of
procedural consolidation among
dl ferent EPA permit programs than the
approach originally proposed. In
addition, the NPDES procedures are
somewhat better adapted than the
others to handle complicated factual
r’acords of the sort that may well be
involved in a RCRA permit termination.
As the preamble to Part 122 states, these
procedures also apply when “interim
status” is terminated for failure to
furnish Information necessary to make a
final decision.
EPA believes that RCRA permit
modifications under § 122.15 and
revocation and reissuanca (which
amounts in effect to a modification)
should be handled by the procedures
‘ These raise were premulgeted Iii final form oa
Ap 1l 9. tosa 45 R i 24360.
used for permit issuance, rather then
those used for permit termination.
Although the statute is net explicit on
this point, the only reference to
“modification” is In section 3005 and not
In section 3008.
In addition, the general scheme of the
statute is to provide for regulatory
activities (where no hearing Is required)
In sectIon 3005 and activities of a purely
enforcement nature (where a formal
hearing is required) In section 3008.
Thus, section 3005 allows the complete
denial of a RCRA permit, resulting in
site closing, without any statutory
hearing requirement. SectIon 3008, on.
the other hand, is entitled “Federal
Enforcement” and covers criminal and
civil penalties as well as permit actions.
The permit actions covered are
“suspension” and “revocation,” both of
which describe the complete removal of
a permit.
Against this background, EPA
believes that changes in regulatory
requirements which do not result in
removal of the permit should be handled
under sectIon 3005 procedures instead of
section 3008 procedures. The decision
will not involve judgments of wrong-
doing and punishment for which section
3308 was designed rather It will involve
Imposing the regulatory requirements
best adapted to carry out the statutory
Intent for which section 3005 was -
designed.
For these reasons EPA has rejected
comments arguing that any permit
modification was in effect a
“revocation” of the superseded
conditions and therefore had to be
sub;ect to section 3008. Section 3008
speaks in terms of “revocation” and
“suspension” of whole permits, not of
individual conditions. EPA interprets
this to refer to the permit as a whole,
- namely the authorization to operate. A
con ary conclusion would lead to the
result that even permit,modlficatlons
which make the permit more lenient
must be eated as “revocations” under
the statute, sincii the condition. which
were no longer binding would, after all,
have been “revoked.”
* 124.13 Obligation to raise issues and
provide information during the public
comment period.
(1) Many commenters argued that It
would be impossible to provide all the
Information and arguments this section
calls for withIn 30 days If a permit were
controversial or complicated. EPA
agrees. The 30 days Is Intended to be the
minimum comment period for all
permits. This section has been changed
to state that longer comment periods
should be freely established In
complicated cases.”
(2) Other comntenters urged that this
section be amended to limit the extent
to which points must be raised and
Information provIded during the public
comment period.
These comments have been rejected.
As applied to the NPDES program. the
reasons for rejecting these comments
are set forth In the preamble to EPA’s
final NPDES regulations. 44 Ri 3884—85
(June 7, 1979). It would be illogical to
accept this comment with reepect to
RCRA. UIC, or PSD permits because the
public comment on.draft RCRA. UIC. or
PSD permits Is the exclusive mechanism
for gathering facts and arguments
relating to such draft permits. The later
stages are appellate In nature and new
issues shculd not be raised on appeal.
* 124.15 Issuance and effective date of
permit.
(1) Several commenters pointed Out
that the provision which makes a permit
effective 30 days after Its Issuance
would leave the facility without a valid
permit during that period. This potentIal
problem would be aggravated, so the
argument goes, by the provision
allowing the Regional Administrator to
extend beyond 30 days the date on
which the permit became effective.
EPA has not accepted this comment. if
the permit in question is a renewal
permit under § 122.9. the original permit
remains in effect until it Is superseded
in whole or in part. by a new permit. See
also * 124.60. A new permit may become
effective Immediately where no adverse
comments are received. Any delay i a
necessary part of a party’s right to
request an evidentary hearing.
(2) This section has been chanjed to
eliminate the possibiltty, ncted in some
comments, that an NPDES permit might
become “effective” after 30 days, and
then become “ineffective” upon tiie
granting of a request for eviderttary
heanng.
I 124.18 Sloys of contested perm it
conditions.
(1) One cominenter urged tha’ t s
provision be amended to allow sta
while requests for further prccncdiigs
were pending. The way the “effective
date” of the permit is handled under
section 124.15 accomplishes this “esult
automatically.
“One coinmecter ur ued thai the provision iii
proposed I 1 54.11(a) lots wumwn 30 day sauce of
a public hesiing eonflictsd with thu requirement in
40 CFR I .5 for a mlrninwa 45 dey notice period.
liowever, I 122 .1( 0 ) provIdes that thus, repuisnone
supersede Part 55 as it applies to action. covered be
Pans 122 through 124.
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 ! Rules and Regulations
(2) Several cominenters argued.
galnst the provision In proposed
124.18(b) for stay. based on cross-
effects. But because no commenter
offered any alternative way to deal with
the problems at which the section is
aimed, the provision remains
unchanged.
(3) Other cominenters urged that
permits (particularly permits for new
facilities) should not be stayed pending
Agency appeal proceedings. This
comment has not been accepted for th(
reasons stated in the final NPDES
regulations. See 44 ft 32883—32884 (June
7,1979).
In addition, under 5 U.S.C. § 704. If the
permit Is not stayed, It becomes
judicially reviewable Immediately. This
result makes little sense If an appeal
within the Agency I . pending. since both
the court and the Agency would be
reviewing the same permit
simultaneously. However, in cases
where an evidentiary hearing is granted
on an NPDES permit (or on RCRA or
UIC permit conditions which are
associated with an NPDES permit), EPA,
In recognition of the time it takes to
conduct these hearings, has provided a
mechanism (I 124.60) by which the
Presiding Officer at the hearing can
authorize operations to begin before the
date of final agency action If certain
conditions are met. These conditions are
based on those normally required for
Issuance of a preliminary injunction.
I 124.17 Response to comments.
One commenter attacked the
statement in the “comment” in proposed
I 129.19 (now a part of the regulations)
that EPA could document Its response to
comments by adding new material to the
administrative record. The cominenter
argued that this would violate the
standards set out in Portland Cement
Ass’n v. Ruciceishous, 488 F. 2d 375, 393—
94 (D.C. Cir. 1973). EPA disagrees. That
case addressed only the disclosure of
data on which a proposed rule Is based.
Of course, there is no reason why the
Agency cannot document in advance the
course of action which It Itself is
proposing. What is involved here is a
response to comments; not a proposal.
The substance of those comments will
not be known to EPA In advance since
one of the major purposes of a comment
period Is to bring new material to the
Agency’s attention. Accordingly, it may
often be Impossible for the Agency to
respond without making use of new
materiaL
Many cases hold that an agency need
not repropose an action If changes are
made from the proposaL See, e.g.,
International Harvester Co.v.
Ruckelslious, 478 F. 2d 815, 832 n. 51
(D.C. CIr. 1973), whIch notes that
rulemaking might never end if every
change from the proposal required
reproposal.
Similarly. If all new material In a
response to comments required
reproposaL the agency would be put to
the unacceptable choice of either
providing an inadequate response or
embarking on the same kind of endless
cycle of reproposals which the courts
have already rejected.
I 124.18 Administrative record for final
permit where EPA is the permitting
authority.
One commenter urged that thern
administrative record should be
complete wIthin 20 days after a final
permit Is Issued, so that those who might
wish to request further proceedings
could make an Informed decision on
whether to go forward.
In response, EPA has changed this
section to provide that the
administrative record shall be coinrlete
on the date the permit Is Issued. By
requiring the record to be assembled
before the permit Is issued, EPA has
ensured that the Regional Administrator
can base final decisions on the
administrative record as a whole.
I 124.19 Appeal of RCRA. UIC, and
PSD permits. -
(1) A number of commenters objected
to the substantisl showing required to
Justify an appeal to the Administrator.
We agree with those comxnenters who
stated that the Administrator has a
broad power to review decisions under
these programs. However. EPA ’s intent
in promulgating these regulations is that
(1) this power of review should be only
sparingly exerclsed (2) most permit
conditions should be finally determined
at the Regional level: and (3) review by
the Administrator should be confined to
cases which are Important for the
program as a whole, or are especially
Important In their own right. The
proposed threshold showing Is intended
to further that purpose and has been
retained.
(2) EPA rejects the suggestion for a 43-
day time limit on sue sponte review by
the Administrator. The 30.day time limit
under this section parallels the 30-day
period between the date the permit is
Issued and the date It becomes effective
under § 124.15.
(3) One commenter suggested that the
regulations explicitly require the
Administrator to make findings when
deciding an appeal. However, because
this requirement Is Implicit in the
establishment of a mechanism of
appellate review Itseli. no change In the
regulations is necessary.
(4) One commenter objectec
appeals on the grounds of dela
believes that an appeal mechanisr .
necessary to ensure consistency
national program and to provide
policy guidance. The best evidence
the ongoing Informal appeal of PSD
permits within EPA taking place without
explicit regulatory provisions.
(5) Another commenter suggested that
a permittee be allowed to appeal a
permit on which It had not commented
In order to address the possibility that
the draft permit might have been
acceptable to the permlttee while the
final permit contained unfavorable
changes. This comment has been
accepted and expanded to allow an
eppeal of the final permit by persons
who failed to comment on the draft
permit. The scope of such an appeal.
however, Is limited to whatever changes
occurred between the draft and the final
permit.
§ 124.20 Computotion of time.
This section has been amended to
Include methods for computing time that
conform with the Federal Rules of Civil
Procedure. -
Subpart U—Special Procedures
Applicable to RCRA Permits (Rr d)
§ 124.31 Public notice of rece
application and availability of
summary.
EPA has deleted proposed § 124.3i
from the final consolidated regulations.
Although the preamble to the proposal
stated that this section would ensure full
public participation in the RCRA permit
decision process, see 44 FR 34266. EPA
has decided that this function is served
equally well for all the permit programs
at the general public notice stage under
4 124.10 and that dual notification for
RCRA applications Is. therefore,
unnecessary. The methods of public
notice contained In 4 124.10 have been
specifically designed to encourage
public participatIon In the permit
decision process no matter what kind of
permit Is Involved. EPA recognizes that
RCRA permitting might be controversial
and expects to conduct public hearings
under § 124.12 where any Interested
person may submit oral or written
statements and data on the RCRA
Issues.
Subpart C—Special Procedures
Applicable to PSD Permits
A. Should PSD be Included?
Many cominenters, beside ge
opposing the notion of consolid.
particularly criticized the inclusi€ ..
PSD In the consolidation effort. These
commenters argued that as PSD is a
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Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rul es and Regulations
preconstruction review program, the
time for considering PSD issues will not
be the same as the time for consfdering
issues involving other permits. They also
argued that EPA has made the
procedures for Issuing PSD permits more
complicated end time-consuming,
leading to confusion in the allocation of
Increments.
EPA has not accepted these
comments. First, PSD does not differ
from the other programs Included In this
Part In being a preconsu ’uctlon
requirement. As explained earlier, EPA’.
position Is that new HWM facilities,
NPDES new sources and underground
Injection wells also must have their
permit In hand before construction can
begin. Inclusion of PSD, therefore,
should not strain permit processing
schedules.
Second, the procedures for Issuing a
PSD permit by itself have not been made
more complicated. The only significant
change (* 124.19) and the only one
stressed In comments, Is the provision of
a fo maI opportunity to appeal a PSD
permit to the Administrator. Such
appeals are already made (usually at
industry’s lnititative) and considered,
even though the rules do not provide for
them.
Some new procedures have been
added to enable a single proceeding to
handle more than one permit. As
explained in detail above. althougi’this
may slow down issuance of the first
permit, it Is very likely to produce better
decisions and to speed up issuance of
the last permit, thereby reducing delay
in reaching the actual on-line date for
the facility.
EPA has no reason to expect,
therefore, that including P 50 in the
consolidated permit regulations will
make any great difference In the EPA.
administered P50 permit program. It
follows that EPA has no reason to
expect any adverse effect on processing
of permit applications and allocating
Increments on a first-in, first-out basis.
B. Changes Made to Better Incorporate
the P 50 Program -
Although the P50 program is still part
of these regulations, EPA has made a
considerable number of changes to
accommodate it. The major changes
follow.
1. Proposed § 124.41 established
special procedures for permitting “small
sources.” The Aloboma Power decision
In effect has eliminated that category of
sources from mandatory P50 coverage,
and so the section as proposed has been
dropped.
2. Proposed 124.41 has been changed
to clarify the status of a State agency to
which EPA has delegated or may
delegate authority to administer these
regulations. (Although regulatory
authority for State delegations is
presently found In 40 CFR 0 52.21(v), this
provision may be changed as a result of
the pending amendments to the P50
regulations.) For the purposes of Part
124, a delegate State stands In the shoes
of the Regional Administrator. Like the
Regional Administrator, the delegate
must follow the procedural requirements
of Part 124. Any person aggrieved by a
PSD permit issued by a delegate may
appeal to the Administrator under
* 124.19. Delegation under 0 52.21(v) (or
any successor provision) Is distinct from
transfer of the PSD program to a State
by revisions to a State implementation
plan under CAA sectIon 110. A permit
Issued by a delegate Is still an “EPA-
Issued permit”; a permit Issued by a
transferee State Is a “State-Issued
permit.” Part 124 does not apply to
State-issued P50 permits. See * 124.1(d).
3. Proposed * 124.41 contains
definitions designed to clarify the
relationship between Part 124 and the
P50 program, and to help ensure that
portions of Part 122 are not
Inadvertently made applicable to P50.
4. Section 165(d)(2) (C) and (D) of the
Clean Air Act, and 40 CFR 052.21(q)
provide a complicated series of -
variances and exemptions which may be
applied to the P50 permit for a source
that will effect a Class I area. Section
124.42 relates these provisions to the
Part 124 procedures. it provides that
permit conditions that EPA may grant or
deny must. Like any other permit
condition, be requested and documented
before the close of the public comment
period. Permit provisions which follow
from a decision by the Governor of the
State In question, or by the President.
will be made outside the framework of
Part 124 and automatically reflected In
the permit.
6. Section 124.74 has been amended so
that Issues concerning a P50 permit may
never be consolidated with a formal
evtdentiary hearing under Subpart E,
though they may continue to be
consolidated in non-adversary panel
hearings under Subpart F. EPA accepted
comments whicS argued that the
potential for exceeding the one-year
deadline under Subpart E proceedings
was too great to risk.
6. As noted above, changes to better
incorporate the PSD program have been
made In 00 124.3, 124.5 and 124.6.
7. l x i addition to these changes,
complementary changes will be made to
40 CFR 52.2110 clarify its relationship
with Part 124. In particular, EPA expects
to repeal 0 52.21(r), which has been
supplanted by this Part, and to Insert
33413
appropriate cross-references to this Part
In 52.21.
C. Other
1. A number of commenters argued
that the provision in section 3071 d) of
the Clean Air Act allowIng 80 days to
seek judicial review of a P50 permit
should be reflected in the effective date
of permits issued under these
regulations. EPA has not accepted this
comment Accepting it would result In
an automatic 60 day delay of the
effective date of every permit. even
those that were uncontroversial.
Although the Administrative Procedure
Act, 5 U.S.C. 0 704, forbids making a
permit effective before Judicial review is
available, judicial review of a PSD
permit could come at any time between
the date of final agency action and the
closing of the section 307(d) period.
2. In the preamble to the proposal,
EPA stated its position on whether
“threshold” determinations that a given
source would have to apply for a P50
permit should be regarded as final
agency action. EPA has changed that
position. instead, the Agency supports
the policy, announced in the September
1, 1979, Memorandum from the Assistant
Administrator for Enforcement and the
General Counsel In Federal Register
Publication of Significant Final Activify
under Title I of the Clean Air Act, that
requires PS)) applicability determination
to be published in the Federal Register
as final agency actions. Because of the
consequences of applicability
determinations for a source (for
example, the triggering of a one-year
monitoring requirement under CAA
section 105(e)(2)) and the inftequency of
factual questions, EPA has decided that
for reasons of fairness and efficiency
these determinations should be treated
as final agency action.
Subpart 0—Specific Procedures
Applicable to NPDES Permits
Many of the comment on this Subpart
and Subparts E and F essentially
repeated points made during the
rulemaking on EPA’s NPDES program
revisions. Those comments were
addressed in the preamble to the final
regulation., issued June 7, 1979, 44 FR
32854, and cross-references to that
preamble are Included here.
* 124.53 Slate certification.
Comments received here questioned
both the requirement for States to
supply a complete certification within GO
days, and the statement that conditions
properly certificated would be
automatically accepted In almost all
cases. However, no new arguments
were raised, so the reasons given for
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Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Ru)es and Regulations
these provisions in the June 7 -
regulations remain applicable. 44 FR
32880.
I 124.56 Fact sheets.
A new paragraph has been added to
this section listing what must be
included In the fact sheet. If a permit
Includes any of three types of
conditions, the fact sheet must include
an explanation of how those conditions
were developed. (Section 124.8 also
requires that a fact sheet, rather than a
statement of basis, be developed.) The
regulations governing how these three
conditions are developed also require
that an explanation be included in the
fact sheet See § * 122.82(e) 122.83(i) and
125.3(g).
O 124.59 Conditions requested by the
Corps of Engineer, and other
government entities.
(1) Some commenters objected to the
requirement that conditions requested
by the Corps of Engineers would be
automatically included In NPDES
permits. It remains EPA ’s position that
such a provision Is legally required for
the reasons stated In the June 7 -
preamble. 44 FR 32881-82.
L2) One commenter also questioned
the provision In 124.59(c) for informal
consultation with other agencies before
Issuing a draft permit Consultation
before a draft parmit is prepared does
not violate any rules against ‘ex parts”
contacts established even by the courts
that have taken the most extreme
positions on this issue. Such
consultation could result in more
Informed and expeditious processing of
permit applications. Hence, the
comment has been rejected.
(3) One commenter attacked the
provisions requiring permit conditions
required by the Corps of Engineers to be
appealed through the procedures of the
Corps and not through EPA procedures.
This comment has been rejected for the
reasons stated In the final NPOES
regulations. See 44 JR 32881 Uune 7,
1979).
1 124.59 Issoonce and effective dote of
NPDES permits.
(1) Commenters again objected to the
provision that an NPDES permit to a
new discharger or new source would not
taLe effect until final Agency action. As
stated In the June preamble. EPA
believes that such a position is entirely
defensible as a matter of law. 44 FR
32883-32884. The Clean Water Act
states that permits can only be issued
following an opportunity for a “public
hearing.” Courts have interpreted this
provision co mean a formal hearing.
Thus, until the formal hearing stage of
the proceedings is finished, the statutory
preconditions to permit issuance have
not been met. Even after an initial
decision by an Administrative Law
Judge or the Regional Administrator. 5
U.S.C. 0704 requires a permit to be
stayed if judicial review is to be
avoided. Since it makes little sense to
judicially review a permit that is
undergoing Agency review. EPA. Instead
of staying the control requirements In
the permit. stays the status of having a
permit and treats the new source or new
discharger as being without a permit
pending final Agency action.
EPA, however, has amended
I 124.80(a) to give the Presiding Officer
at an evidentlary hearing the power to
authorize the source to commence
operations before final agency action if
the source complies with all the
conditions of the contested permit. The
Presiding Officer may issue such an
order if the source requests and if no
party objects. lEa party objects, the
order cannot be Issued unless the source
can meet the requirements listed in
* 124.80(a)(2).
(2) One commenter asserted that
although 1 124.80(d) would prevent the
lapse of an NPDES permit that was
being reissued at the expiration of Its
term. It would not prevent the lapse of
an NPDES permit which was being
modified or revoked and reissued. This
does not correspond to EPA’s
interpretation. In revocation and
reissuance. the existing permit is
revoked simultaneously with the
establishment of the new permit
conditions, leaving no gap uncovered by
a permit. Similarly, when a permit is
modified, the conditions change. but
there is no interruption of the permit’s
coverage.
§ 124.62 Decisions an variances.
Several commenters opposed the
provision In this section allowing EPA to
retain Jurisdiction over certain variances
even in a State which had been
approved to administer the basic NPDES
program. However, as the June preamble
explained, these provisions reflect the
explicit language and intent of the
CWA. 44 FR 32882—83.
I 124.64 Appeals of variances,
A number of commenters objected to
the teat set forth In this section and
I 124.117 for stays of permit conditions
subject to requests for section 301(g)
variances. This provision, however,
simply reflects the explicit language of
section 3010)(2) of the CWA.
I 224.85 Special procedures for
discharge into marine watere una .
section 301(h).
In these final regulations EPA he
decided to make section 30 1 (h) dec.
subject to the same procedural options
as other types of variance decisions.
This section and 0 124.111 have been
revised to eliminate the requirement that
301(h) variances be automatically
processed through a panel hearing.
Independent of other pending permit
‘actions. Giving the Regional
Admlnbitrator discretion on the
procedures to use and whether to
consolidate 301(h) decisions with other
decisions on the same permit should
result In decisions that can be made
more efficiently and economically.
1 124.68 Special procedures for
decisions on thermal variances.
One comxnenter urged that other types
of variances should be made subject to
the “early decision” provisions of this
section. The comrner.t pointed out that
in these cases a decision on veilance
conditions might be necessary to allow
States to make a decision. EPA believes,
however, that only variances of
extraordinary importance (e.g. section
316(a)) should be afforded this tyj?
fragmented procedure, and theref
not enlarged the “early decision”
provision.
Subpart E—Evldentlary Hearing for
EPA-Issued NPDES Permits and EPA-
Terminated RCRA Permits
O 124.71 Applicability.
One commenter questioned the
statement In EPA’s prior preambles that
evidentiary hearings would not be held
on general permits. 43 FR 37087; 44 FR
32884, Ii stated that although applicatioi
for an individual permit. followed by
individual proceedings on that permit,
might be the best way to handle
discharger-specific problems wIth a
general permit. an evidentiary hearing
should be available for challenges to the
conditions of the permit in their general
application.
EPA disagrees. As the preamble to the
proposal stated, general permits are.
functionally, rules. EvidentIary hearings
today are almost never required before
Issuing such rules, and It is EPA’s
conclusion that Congress did not intend
them in this context either. The notice
and comment procedures provided here,
together with the opportunity for F
review, afford Interested persons
procedural protection. However.
Regional Administrator decides to
employ a more formal mechanism,
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334ib’
Subpart F panel hearings are available
for this purpose.
EPA has added a sentence stating that
termination and suspension of RCRA
permits are goverued by this Subpart.
§ 124.74 Requests for eviden:io y
hearing.
(1) Some commenters questioned the
consequences of raising both legal and
factual issues In a request for an
evidentiary hearing. This section allows
ihe submission of requests for
evidentiary hearings even though both
legal and factual issues may be raised.
or only ligal 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)(1) 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 becomes
final and subject to judicial review.
(2) One commenter suggested that
only persons who had commented on
the draft permit should be allowed to
request an evidentiary hearing on that
permit.
EPA believes that persons should
make as much of their case as possible
during the notice and comment period
before moving to an evidentlary hearing.
but believes this comment goes further
than appears necessary.
Section 124.78 provideS that, generally
speaking, the material and argument for
an evideritiary hearing must have been
presented during the notice and
comment stage. Given this restriction.
little benefit would result from
restricting the participants at the hearing
to those who took part at the preceding
stages.
(3) Other commentérs contended that
the provision requiring the requester to
produce documents and witnesses was
too broad. This provision is rio broader
than the Agency subpoena power for
which it substitutes. See 44 ? 32884.
* 124.75 Decision on request for a
hearing.
One commenler suggested that a time
limit should be Imposed on the Regional
Administrator for either granting or
denying a request for an evidentiary
hearing. EPA has accepted this comment
and has Imposed a 30-day time limit for
the granting or denying of an evidentiary
hearing request.
124.76 Obligation to submit evidence
end raise issues before a fin a! permit is
issued. -
A number of commenters thought this
provision was too restrictive. Because
no significant new points were raised.
EPA continues to adhere to the position
articulated in the final NPDES revision.
See 44 32884-32885. However, EPA
does wish to emphasize the value of the
good cause provision. This provision -
functions as a safety valve to prevent
124.78 from being as restrictive as
feared by the commenters. Good cause
allows the Presiding Officer to exercise
his or her discretion to admit issues and
evidence not raised during the public
comment period or at any public
hearing. What is “good cause” will vary
from case to case. Although suggestions
of what can constitute good cause are
included in the regulation itself, this list
is not exhaustive. The provision has
been slightly redrafted to darify that
point. These standards should be
applied differently depending upon the
procedural setting. When deciding
whether to grant or deny a request for a
hearing, the Regional Administrator
should apply these standards in a
relatively unresthctive manner. Request
should be rejected only if they are
frivolous or cl ariy without merit. After
a hearing has been granted and an’
Administrative Law Judge begins to
structure the proceedings, he or she
should apply those standards strictly In
conformity with the principle of
developing the record as much as
possible during the notice and comment
stages.
§ 124.78 Er pane communications.
(1) One commenter objected to the
statement that appearance as a witness
is not autornatical)} the same as the
performance of “investigative or
prosecuting functions’ so as to invoke
the cx porte rule. This, however, is the
conclusioi’ of Professor Davis, with
which EPA concurs and which it has
adopted. IC. Davis. Administrative Law
Treatise, * 11.17 (1958j.
(2) Another commenter questioned
why witnesses from EPA were not
automatically subject to the “ax parte
rule,” while witnesses from outside the
Agency were. The answer is that
different legal tests apply to the two
classes of witnesses. Witnesses from
within EPA are subject only to the
“separation of functions” provisions of
the EPA If they have performed
“investigative or prosecuting” functions.
See 5 USC, I 554(d).
However, the “ex paste provisions,”
added to the APA by the Government in
the Sunshine Act. 90 Stat. 1241 et. seq..
apply to all contacts with any
“interested person outside the Agency.”
See 5 U.S.C. section 544(d). The
legislative history Is clear that this
definition includes any person whose
interest in the case is greater than the
Interest of an ordinary member of the
public. H.R. Rep. No.94—880.94th. Cong
2d. Sess. at 19—20(1978); S. Rep. No. 94—
354.94th. Cong., let. Seas. at 38(19751.
I 124.83 Prehearing conference.
(1) One comxnenter argued, without
éupportlng reasons, that the discovery
provisions in this section were illegal
However, the Administrative
Conference of the United States has
recommended that all Agencies,
Including those lacking formal subpoena
authority adopt “discovery” procedures
The report accompanying
Recommendation No. 21 asserts that
such procedures would be legal.
Tomlinson, “Report of the Committee or
Compliance and Enforcement
Proceedings in support of
Recommendation No. 21.”
Recommendation and Reports of the
Administrative Conference of the
United States. Vol 1. 577,583.
(2) This same commenter urged that
discovery be safeguarded against abuse
Any request for discovery is explicitly
made subject, by I 124.83(c) (5). to the
approval of the Presiding Officer.
.Accordingly, no change in the proposed
regulation Is necessary.
(3) Another conunenter asked whether
furnishing the names of witnesses under
O 124.83(d) meant only the names of
direct testimony witnesses. EPA agrees
that, as a practical matter, such a limit
will probably be set. But the Presiding
Officer, in an appropriate case, could
schedule a second conference to deal
with rebuttal submissions. See
* 124.83(a ).
* 124.84 Summary det rnzznot,on.
(a) One comxnenter urged that motions
for summary determination should stay
the hearing. This Ia not the practice in
Federal District Courts with respect to
motions for summary judgment, and the
comment has not been accepted. (A
similar suggestion regarding
interlocutory appeals under I 124.90 has
also been rejected.)
(2) EPA has accepted another
coinmenter’s suggestion that this
provision be amended to include
language patterned on Rule 58(f) of the
Federal Rules of Civil Procedure.
* 124.85 Hearing procedure.
(1) Several commentera questioned
EPA’s conclusion that the burden of
persuasion for permit issuance always
rests with the permit applicant. The only
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Federal Register F Vol. 45, No. 98 F Monday, May 19, 1980 F Rules and Regulations
new point, however, was that It made
little sense to allocate the burden of
persuasion differently from the burden
of going forward, since a party not
having the burden of persuaston. but
having the butden of going forward.
might hold back Information
unfavorable to Its case. If this argument
were valid, there would be no need for
two concepts of “burden of proof”, since
the burden of going fârward could
always be derived from the burden of
persuasion. However, not only are both
concepts well established; It Ii settled
that the question of who has the better
access to Information affects the burden
of going forward far more easily than
the burden of persuasion, and Is often
not dispositive even where the burden
of going forward is concerned. See
McCormick. Handbook on the Low of
Evidence, at 675 (1954). See also,
Wigmore, Treatise on the Law of
Evidence, § 2488.
(2) One commenter objected to the
provision in 124.85(b)(14) for hearing
opposing witnesses simultaneously or
for asldng them to confer outside the
hearing. It claimed that this would
convert an adversary hearing into a
bargaining session or a scientific forum.
EPA disagrees with the apparent
premise of this comment that hearing
procedures should be chosen to preserve
and protect adversary conduct. Hearing
procedures instead should be chosen to
produce the most accurate and
comprehensive record for decision.
When a complicated technical matter Is
under discussion, there may be real
value in having the experts from all
aides listening to each other and
responding to or answering individual
points, it is EPA’s experience that
excessively formal hearing procedures
often obscure, rather than clarify,
differences In methodology and points of
agreement and disagreement among
experts. In such cases It might be
appropriate for the Presiding Officer to
request the witnesses to discuss the
matter lnformally not to bargfn a
consensus solution, but simply to clarify
their assumptions. Both approaches.
after all, are widely used by technically
trained persons to clarify Issues in the
course of their own professional
activities, and there seems no reason to
bar their use simply because a legal
decision depends on that clarification.
(3) Proposed * 124.85(b)(i6) prohibited
cioss-exanunahon on questions of law
.and policy, or regarding matters (such as
the validity of effluent limitations
guidelines) that are not subject to
challenge hi a NPDES proceeding.
Numerous comments were received on
this provision, contending that it was
unduly restrictive. One commenter
- suggested that this provision should be
changed to allow Agency employees to
be questioned on the basis for an
Agency action relating to contested
provisions in a final permit. EPA agrees
that cross-examination may be proper
on questions of policy to the extent -
required to disclose the factual basis for
permit requirements and § 124.85(b)(16)
has been revised accordingly.
(4) Other commentere objected to the
automatic receipt of the administrative
record into evidence under
* 124.85(d)(2). The reasons for thIs
approach were explained in the June
preamble at 44Th 32885. The only new
argument raised was that such
Introduction could be prejudicial.
However, in NPDES proceedings there is
no jury to prejudice. Accordingly, the
likelihood of prejudice in this less
restrictive approach appears minimal.
and it seems unlikely to outweigh the
benefits of having the administrative
record available.
- (5) Another commenter objected to the
requirement that a request for a witness
to sponsor the administrative record on
a showing meet a “legitmate doubt” test
as well as the standards for cross-
examination.
EPA partially agrees with this - -
• comment and has deleted the
“legitimate doubt” test. The
admfnisfrative record can be viewed as
direct testimony Introduced in writing.
and so a sponsorIng witness may be
needed to allow a’ossexamination of
the written direct Accordingly, there Is
no need for an additional “legitimate
doubt” lest. EPA believes that the
substance of this test Is included in the
requirement that the Presiding Officer
find, before granting cross-examination.
that cross-examination would be likely
to clarify or resolve a relevant disputed
Issue of material fact. See
* 124.85(d)(lo).
(6) Coiwnenters also argued that this
section restricted cross-examination too
much. Those comments have been
rejected for the reasons stated in the
June 7 preamble. See 44 FR 32888. -
(7) The requirement contained In the
proposal of this section and 124.129
that hearings could only be settled with
the approval of the Deputy Assistant
Administrator for Water Enforcement
has been deleted.
§ 124W Motions.
Comments opposed the provision of
this section allowing new regulatory
requirements to be made applicable.
They have not been accepted for the
reasons stated in the June preamble at
44Th 32886—87.
§ 124.&9 Decisions.
The provision In the proposal for
treating the decisions of Administ
Law Judge. simply as recommend.
to the Regional Administrator when’
RCRA or UIC permit conditions are
concerned has been deleted as causing
unnecessary procedural complexity.
Instead, the ALT s decision regarding
these permit conditions will be subject
to appeal to the Administrator like any
other decision after an evldentiary
hearing.
§ 124W Interlocutory appeal.
(1) One cominenter argued that the
test for interlocutory appeal stated In
I 124.90(a)(3) was unnecessary and that
the function of screening out unqualified
requests for interlocutory relief could be
performed by two tests set forth in
§ 124.90(a)(2). This comment has been
accepted.
(2) This cominenter also challer.ged
the provision in section 124.90(d) that
interlocutory relief Is extraordinary
relleL This provision has been retained
to ensure that Interlocutory appeals do
not become an administrative burden.
(3) The provision in this section and
I 124.91 for mandatory consultation of
the General Counsel on matters’
has been deleted. Of course, the
Administrator or the Judicial OfL
still be free to consult any member
the General Counsel’s Office on suci
matters, and request them to draft
portions of the final decision to the
extent that the persons consulted are
not part of the trial staff designated
under § 124.78.
§ 224.91 Appeal to the Administrator.
One comxnenter on this sectIon asked
that a provision be included for stays of
final agency action. No such provision
has been included because EPA believes
questions concerning such stays are besl
addressed case-by-case.
Subpart F—Nonadversary Panel
Procedures
Many comments were received on this
Subpart. However, no new points were
made that would necessitate revision of
the discussion in the June 14. 1979
preamble at 44Th 32887—32891.
A major feature of these procedures is
the merging of the notlce’and-comn,ent
procedures under Subpart A and the
bearing under Subpart E into one
proceeding. Accordingly. EPA believes
that the full benefit of these procer 1 --.
will be felt only If they are used
beginning with the draft permit.
However, cases may arise In wn,,.,..
becomes apparent during or after
Subpart A proceedings, that use of this
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Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules• and Regulations
33417
Subpart might be advisable.
Accordingly, ehnnges have been made
to 124.15.124.74.124.75. and various
pruvislons of this Subpart to malce it
easier to switch a permit into this
Subpart In cases where It was not
placed under this Subpart from the
beginning.
§ 124.211 Applicobiiily.
This section has been changed to
clarify that. though EPA considers
variances and modifIcations to be
eligible for “Initial licensing”
procedures, these procedures should not
be i eed where they would result in
duplicate hearings being held by EPA on
the same permit This could happen
when a permit was being renewed and a
variance application was made at the
same time. The variance standing alone
would be eligible for processing under
Subpart F. while the other permit terms
would be subject to an evidentiary
hearing under Subpart E.
In such a case Subpart F could still be
used If all parties agreed. However,
without such agreement. the variance
proceedings should be consolidated
with the evidentiary hearing under
Subpart E.
This principle applies to 301(h)
variances as well as other types of
variances.
I 221.118 Submission of wz*ten
comcsenls on draft permiL
One comznenter argued that this
provision violated the APA by failing to
provide for rebuttal testimony. Rebuttal
rlghts however, are adequately
conferred in §1 124.120 and 124.121.
1124.119 Presiding offlcer
This section has been amended to
make clear that the Chief
Adsnimstrative Law Judge has no
obligation to assign an Administrative
Law fudge to preside at hearings not
subject by statute to the formal hearing
requirements of the Administrative
Procedures Act when to do so would
impair his or her ability to stall bearings
that are subject to those requirements.
This section also has been amended
to give the Presiding Officer greater
control over the scheduling of the panel
hearing. For example, if new evidence
comes in. or if the evidence takes longer
than expected to analyze. the Presiding
Officer will be able to reschedule the
start of the hearing or to recess it for a
time after it has started.
* 724.128 Finoi decision.
One commenter took the title of this
section as the occasion to ask when the
final permit was issued in proceedings
under this Part.
It i EPA’. position that the final
permit Is Issued at the same time as the
final “decision” described in this
section.
Appendix—Cube to Lledslonsnaldng
Under Past 224
During the public comment period on
the proposed Consolidated Regulations.
the American Petrolaum Institute (API)
submitted their version of a flow chart
of the Part 124 Procedures for
Decisionmaking. It was seven feet long.
Clearly, the API flow chart exaggerated
the complexity of these regulations. To
give the reader a better and more
accurate understanding of bow Part 124
works. EPA has attached Its flow chart
of these procedures as an Appendix to
Part 124.
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
EUMINATION SYSTEM
This rulemaking contains a series of
revisions and technical amendments to
Part 125, Criteria and Standards for the
National Pollutant Discharge
Elimination System. The technical
amendments correct cross-references to
40 CFR Parts 122.123 and 124, rendered
incorrect, due to publicath,n of the
consolidated permit regulations where
the NPDES regulations previously
appeared. Two cross-references have
been corrected in § 125.104(c), which is
part of Subpart K. the Btst Management
Practices ‘B bS ’) regulation. The effective
date for Subpart K has been deferred
until completion of the technical -
guidance, document for the BMP
program. See 44 FR 47063 (Aug. 10, 1979)
end 45 FR 17997 (March 20. 1980). In
addItion. §125.3 ha, been revised. These
revision, were proposed along with the
draft consolidated appl catlon forms in
the Jime 4, 1979 Federal Register (44 PP.
3431 13).
Subpart A—Criteria and Standards for
Tedmology-Based Treatment
Requirements Under SectIons 301(b)
and 402 of the Act
§ 125.3(c)(4)—Thia section allows
permit limits to be written in terms of
toxicity to a particular xpecies. This
regulation was proposed in Part UI of
the June 14, 1979 Federal RegIster (44 FR
34393). Only minor wording changes
have been made from the proposaL A
detailed discussion of comments
received on thi, regulation appears
elsewhere In today’, Federal-Register, in
the preamble to the public notice of the
consolidated application form.
§ 125.3(g)—This section authorizes the
Director to use indicator pollutants to
control toxic pollutants and hazardous
substances by setting limits on
Indicators as If the indicators were toxic
or hazardous. Limits on indicators (for
toxic pollutants and for hazardous
subulances) which are conventional
pollutants may be set at a level more
stringent than the best conventional
pollution control technology (BC’r): and
limits on Indicators (for toxic pollutants
only) which are nonconventional
pollutants may be set at a Level which is
not subject to economic or water-quality
modifications under section 301 (c) or (g)
of CWA. The Director must show that
the Indicator provides control equivalent
to a direct limitation of the toxic
pollutant or hazardous schstance and
that a direct limitation is technically or
economically infeasible.
This section. insofar as It applies to
toxic pollutants, was proposed in Part Ill
of the June 14, 1979 Federal Register (44
P.R 34393), and a proposal to extend it to
indude hazardous substances was
published on August 29. 1979 (44 FR
50780). A detailed discussion of the new
section and the comments received on
these proposals appears elsewhere in
today’s Federal Register. in the
preamble to the public notice of the
consolidated application form. One
change has been made from the
proposak the safeguards against
inappropriate use of indicators have
been strengthened by adding a
prohibition against setting more
stringent limits on indicators where the
permittee would be prevented from
using a method of treatment which
would assure compliance with a direct
limltat on on a toxic pollutant or
hazardous substance.
Nots —The F.nvironmental Protection
Agency has determined that this docuznrnt
- does not constitute a major regulation
requiring preparation of an econoaiic impact
statement under Executive Order 12044. Ia
accordax ce with Zxecutlve Order 12044, EPA
will review the effectivenes, and continued
need for the provisions contained in these
regulations no more than 5 year, after
promulgation. As part of thi. evaluation we
will consider comments from the public.
permit applicant,. Regional and State permit
writer,, and other affected parties with
regard to the financial and administrative
costs incurred as a result of these regulations.
and ways In which these costs can be
rsduce
As explained in (he portion of the
preamble discussing II 122.36 and
122.45, EPA by this notice is inviting
comment on all requirements for Class
IV well,. Such comments must be
received by July 15, 1980. Submit
comments to: Alan Levin. Dimctor, State
Program Division (WH-550J, Office of
Drinking Water, Environmental
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Federal Register f Vol. 45. No. 98 I Monday, May 19. 1980 / Rules and Regulations
Protection Agency. Washington, D.C.
204
EPA Is also scheduling a hearing In
Washington. D.C. on Tuesday, July 8.
1980. The hearing will be held at the
HEW AudItorium. 330 Independence
Ave., S.W., Washington, D.C., and will
las! from 9a.m. to 5p.m.. unless
concluded earlier.
Authonty These regulations are Issued
under authority of the Resource Conservation
and Recoveiy Act. 42 USC * 6901 ci seq.:
the Safe Drinking Water Act. 42 USC.
I 300(1) 51 seq.: the Clean Water Act. 33
USC I 1251 ci seq.: and the Clean Air Act.
42 U.S.C. I 185751 seq.
Dated May 2. 1980.
Douglas 54. Costle,
Admirilsi rotor.
1.40 CFR Is amended by revising
Parts 122. 123 and 124 to read as follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: ThE NATIONAL
POLLUTANT DISCHARGE
EUMINATION SYSTEM; ThE
HAZARDOUS WASTE PERMIT
PROGRAM; AND ThE UNDERGROUND
INJECTION CONTROL PROGRAM
Subpart A—Definitions and General
Program Requirements
Sec.
122.1 What are the consolidated permit
regulations?
122.2 Purpose and scope of Part 122.
122.3 Definitions.
122.4 Application for a permit.
122.5 Continuation of expiring permits.
122.6 Signatories to permit applications and
reports.
122.7 Conditions applicable to all permits.
122.8 Establishing permit conditions.
122.9 Duration of permits.
122.10 Schedules cf compliance.
122.11 Requirements for recording and
reporting of monitoring results.
122.12 Considerations under Federal law.
122.13 Effect of a permit.
122.14 Transfer of permits.
122.15 Modification or revocation and
reissuance of permits.
122.10 Termination of permits.
122.17 Minor modifications of permits.
122.18 NoncomplIance and program
reporting by the Director.
122.19 ConfidentialIty of information.
Subpart B—Additional Requirements for
Hazardous Waste Programs Under the
Resource Conservation and Recovery Act
122.21 Purpose and scope of Subpart B.
122.22 Application for a permit.
122.23 Interim status.
122.24 Contents of Part A of the RCRA
permit application.
122.25 Contents of Part B of the RCRN
permit application.
122.26 PermIts by rule.
122.27 Emergency permits.
122.28 Additional conditions applicable to
all RCRA permits.
122.29 Eatablisbing RCRA permit
conditions.
122.30 Interim permits for UIC wells.
Subpart C—Additional Requirements for
Underground injection Control Programs
Under the Safe Drinking Water Act
8ec. -
122.31 Purpose and scope of Subpart C.
122.32 ClassificatIon of Injection wells.
122.33 Prohibition of unauthorized injection.
122.34 ProhibitIon of movement of fluid into
underground sources of drinking water.
122.35 IdentIfication of underground sources
of drinking water and exempted aquifers.
122.30 Elimination of certain Class IV wells.
122.37 AuthorIzation of underground
Injection by rule.
122.38 ApplicatIon fore permit
authorization by permit.
122.39 Area permits.
12140 Emergency permit..
122.41 AddItional conditions applicable to
all UIC permits.
122.42 EstablishIng UIC permit conditions.
122.43 WaIver of requirements by Director.
122.44 CorrectIve action.
122.45 Requirements for wells Injecting
hazardous waste.
Subpart D—Addltional Requiremerts for
National Pollutant Discharge Elimination
System Programs Under the Clean Water
Act
122.51 Purpose and scope of Subpart D.
122.52 ProhibitIons.
122.53 ApplIcation for a permit.
122.54 Concentrated animal feeding
operations.
122.55 Concentrated aquatic animal
production facilities.
122.56 Aquaculture projects.
122.57 Separate storm sewers.
122.58 Silvlcultural activities.
122.59 General permits.
122.60 Additional conditions applicable to
all NPDES permits.
122.61 AddItional conditions applicable to
specified categories of NPDES permits.
122.62 Establishing NPDES permit
conditions.
122.63 CalculatIng NPDES permit
conditions.
122.84 Duration of certain NPDES permits.
122.65 Disposal of pollutants into wells, into
publicly owned treatment works or by
land application.
122.88 New sources and new dlschargers. -
Appendix A to Part I’22—NPDES Primaiy
Industry Categories.
Appendix B to Part 122—NPDES Criteria for
Determining a Concentrated Animal
Feeding Operation (I 122.54).
Appendix C to Part 122—NPDES Criteria for
Determining a Concentrated Aquatic
Animal Production Facility (I 122.55).
Appendix D to Part 122—NPDES Permit
Application Testing Requirements
12153).
Authority. Resource Conservation and
Recovery Act. 42 U.S.C. * 0901 et seq. Safe
Drinking Water Act. 42 U.S.C I 300f ci seq.:
and Clean Water Act 33 U.S.C 125351 seq.
Subpart A—Definitions and General
Program Requirements
* 122.1 What are the consolidated permit
regulations?
(a) Coverage. (1) These consolidated
permit regulations include provisions for
five permit programs:
(I) The Hazardous Waste
Management (HWM) Program un”
Subtitle C of the Solid Waste Di
Act, as amended by the Resourv&. -
Conservation and Recoveiy Act 0) To; 8
(RCRA) (Pub. L 94—580, as amended by
Pub. L 95-609:42 U.S.C. § 6901 ci seq.);
(ii) The Underground Injection Contrci
(UIC) Program under Part C of the Safe
Dririidng Water Act (SDWA) (Pub. L.
95-523. as amended by Pub. L 95-19i .W
U.S.C. * 300f ci seq.):
(lii) The Notional Poll utant Discharge
Elimination System (NPDES) Program
under sections 318, 402. and 405(u) of the
Clean Waler Act (CWA) (Pub. L. 92—500.
as amended by Pub. L 95—217 and Pub.
L 95—576; 33 U.S.C. I 1251 ci seq.);
(Iv) The Dredge or Fill (404) Program
under section 404 of the Clean Water
Act and
(v) The Prevention a/Significant
Deterioration (PSD) Program und rr
regulations implementing section 185 of
the Clean Air Act (CAA). as amended.
(Pub. L. 88-206 as amended; 42 U.S.C.
* 7401 ci seq.)
(2) For the RCRA. UIC, and NPDES
programs, these regulations cover basic
EPA perriutting requirements (Part 122).
what a State must do to obtain —— ov
to operate its program in lieu.
Federal program and mininiun
requirements for administering t.
approved State program (P. rt 12
procedures for EPA processing of p . .i:i
applications and appeals (Fart 124). F . r
the 404 program, these regulations
include only the requirements which
must be met for a Slate to administer R
own program in lieu of the U.S. Army
Corps of Engineers in “State regulated
waters.” and provisions for EPA vetoea
of State issued 404 permits. For the Pi D
program, these regulations cover only
procedures for EPA processing of PSI)
permits In Part 124.
(b) Structure. (1) Coverage of Ports.
These consolidated permit regulations
are incorporated into three Parts of T::k
40 of the Code of Federal Regulations:
(I) Port 122. This Part contains
definitions for all of the programs excep’
PSD. It also contains basic permittir.g
requirements for EPA-administered
RCRA. UIC. and NPDES programs. such
as application requirements, star.da’d
permit conditions and moi:itoring .icu
reporting requirements
(Ii) Port 123. This Part describes what
States must do to obtain EPA approvul
of their RCRA. UIC. NPDES, or 434
programs. It also sets forth the m 1 ”mum
requirements for adrninisteriny -
permit programs after approva
(Iii) Part 124. This Part establib.. -
procedures for EPA Issuance of RCRA.
UIC, NPDES. and PSD permits. It also
establishes the procedures for
administrative appeals of EPA permit
decisions.
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Federal Register. I Vol. 45. No. 98 / Monday, May 19, 1980 / Rules and Regulations
33419
(2) &ibparts. Parts 122. 123. and 124
are each organized into subparts. Each
Part has a general Subpart A which
contains requirements that apply.to all
the programs covered by that Part.
Additional subparts supplement these
general provisiocs with requirements
which apply to one or more specified
programs. in case of any inconslutency
between Subpart A and any program.
specific subpart, the program-specific
subpart is controlling.
(3) Certain requirem nts set forth in
Parts 122 and 124 are made apph able to
approvea State programs. Including
State 404 programs, by reference in Part
123. These references are set forth In
§ 123.7. If a section or paragraph of Parts
122 or 124 is applicable to States.
through reference in § 123.7, that fact Is
(c) Relotion to other reqx. irements. (1)
Consoiidoiedpennif cpp!icotion forms.
Applicants for EPA-issued RCRA Part
A. UIC. NPDES. or PSD permits aid
persons seeking interim status under
RCRA must submit their applications on
EPA ’s consolidated permit application
forms when available. (There will be no
form for RCRA Part B applications and
therefore EPA application fcrm is
used. See 122.25.) These forms, like
these consolidated regulations, contain
a general form covering nil programs
several program-specific forms.
.klthc ,ugli application forms have been
consolidated, they. like permit.s. have
been coordinated without losing their
separate legal identities. There is no
“consoliduted perxnit.’ Eacn permit and
application wider a program is a
separate document. Most of the
information requested art these
appiication Ianris (other than Farm S for
PSD) is required by these regulations.
The essential information required in
Cie general form (Form 1) Is Listed In
1122.4. The additional information
required for RCRA Part A applir.ailons
(Form 5) is listed in 122,24, for TJIC
applications (Form 4) in § 122.37. and for
NPDES applications (Forms 2a-d) in
{ 122.33. Applicants for State-Issued
pcrmits must use State forms which
must require at a minimum the
Information listed in these sections. All
minimum information requirements for
State 404 permit applications appear in
I 123.94.
(2) Technical regu!olions. The five
permit programs which are covered in
signaled by the following words at the
end of the section or paragraph heading
(appIi ibIe to St ate prugroms. see
{ 123.7).!! these words are absent the
section (or paragraph) applies only to
EPA-administered permits.
(4) The structure and coverage of
these regulations by program is
Indicated in the following chart. A
permIt applicant or permittee that Is
interested In finding out about only one
of the programs covered by these
regulations can use this chart to
determine which regulations to read. If a
.State Is the permitting authority, the
applicaht or permittee should read the
State laws and program regulations
which implement the requirements of
Part 123 for theYelevant program.
these consolidated permit regulations
each have separate additional
regulations that contain technical
requirements for those programs. These
separate regulations are used by permit.
Issuing authorities to determine what
requirements niust be placed in permits
I ! they are Issued. These separate
regulations are located as follows:
PonA. .. - ILl M PUll 260-264
UC......... 40 WPSt14 5
NPO€S...... 40 CFR Pv 5 125. 129, im. 3 5
IC R S tctjp a , N (Pwi 400-Ilat
—. 40 PUl230
P 50,,..... 40 RPa15Z
(d) Authority. The consolidation of
these permit programs into one set of
regulations Is authorized by sections
101 (l) and 501(a) of CWA. sections 1006
end 2002 of RCRA. section 1450 of the
SDW.- , and section 301 of the CAA.
(e) Public participation. This rule
establishes the requirements for public
par.lcipatian Lu EPA end State permit
issuance. enfar ent, and ielatnd
variance proceedings and hi the
approval of State RCRA. in c. NPDES,
and 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 sppiy to actions covered under
Parts 122,123 and 124.
(I) 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,
except as provided for the RCRA
program In 1 123.33 (requirement that
State RCRA programs under final
authorization be consistent with the
Federal program and other State
programs).
f 122.2 Purpose and scope of Part 122.
(a] Subpart A of Part 122 contaIns
definitions (I 122.3) and basic permitting
requirements ( 122.4 through 122.19).
Definitions are given for the RCRA, UIC.
NPDES, and State 404 programs.
Definitions for EPA processing of PSI)
permits are in Part 124, Subpart C. The
permitting requirements apply to EPA
administered RCRA. inC. and NPDES
programs. (Permit program requirements
for the Federal 404 program
administered by the Corps of Engineers
do not appear in these regulations but
are found in 33 CFR Parts 320-327.) In
addition, the permitting requirements
apply to State-administered RCRA. inC.
NPDES. and 404 programs to the extent
specified by cross-reference in f 123.7.
(bJ Subparts B. C, ondD contain
additional requirements for RCRA, UIC
and NPDES permitting, respectively.
They apply to EPA, and to approved
States to the extent specified by cross-
reference in 1 123.7.
I 122.3 Definltlon&
The following definitions apply to
Parts 122, 123, and 124. except Part 124
coverage of the PSI) program (see
1124.2). 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. When a
definition applies primarily to one or
more programs, those programs appear
in parentheses after the defined term.
Acidizing (UIC) means the injection of
acid through the borehole or “well” into
a “formation” to increase permeability
and porosity by dissolving the acid-
soluble portion of the rock constituents.
Athninistrotor means the
Administrator of the United States
Environmental Protection Agency, or an
authorized representative.
Applicable standards and limitations
(NPD ) means all Slate. interstate, and
Federal standards and l imitations 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 perrnst.
including any additions, revisions or
modifications to the forms; or forms
approved by EPA for use in “approved
States,” including any approved
-
ffi
Pviim Pata3 P1 ,1121
C A_. .__ . .._ S, srt lAindD__..._ 5i CUl1&LIi F_.. 5ubpwts B,5.r .dF
UIC. ..._. _. Sutp.rll A ‘d C. 5 n A C. A ir F
NFDES 5 ,apstts A s, D__ S , a A aad O_................ 5 a1Ill’ , 5. Ind F
Sub siiA._. ._S,tpwsAr .dE Subpa lA .
____ _______ N on .,, .. St*C U1 .A IMF.
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33420
Federal Register I Vol. 45, No. 98 I Monday, May 19. 1980 I Rules and Regulations
modifications or revisions. For RCRA.
application also Includes the
Information required by the Director
under 122.25 (contents of Part B of the
RCRA application).
Appropriate Act and regulations
means the Clean Water Act (CWA); the
Solid Waste Disposal Act, a. 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. In the
case of an ‘approved State program”
appropriate Act and regulations
Includes State program requirements.
Approved progrwn or appro ved State
means a State or interstate program
which has been approved or authorized
by EPA under Part 123.
Aquifer (RCRA and UIC) 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 reviw (UIC) means the area
surrounding an “injection well”
described according to the criteria set
forth In § 146.06.
Average monthly discharge limitation
(NPDESJ means the highest allowable
average of “daily discharges” over a
calendar month, calculated as the sum
of all daily discharges measured during
a calendar month divided by the number
of daily discharges measured during that
month.
Average weekly discharge limitation
(NPDES) 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 (“B!Ws”)
(NPDES and 404) 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.” For NPDES, 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. For
State 404 programs. BhWs also include
methods. measures, practices, or design
and performance standards, which
facilitate compliance with section
404(b](i) environmental guidelines (40
CFR Part 2303, effluent limitations or
prohibitions under section 307(a). and
applicable water quality standards.
BMPs (NPDES and 404) means “best
management practices.”
Closure (RCRA) means the act of
securing a “Hazardous Waste
Management facility” pursuant to the
requirements of 40 CFR Part 284.
Contominant (UIC) means any
physical, chemical, biological, or
radiological substance or matter in
water.
Contiguous zone (NPDES) 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 (NPDES) means
a Ndischarge 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 and Pub. L
95—578: 33 U.S.C. 1251 et seq.
Daily discharge (NPDS) means the
“discharge of a pollutant” meansured
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 (NPDES) 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 jurisdidtlon over that permit after
program approval: see I 123.71.) In such
cases, the term “Director” means the
Regional Administrator and not the
State Director.
Discharge (NPDES) when used
without qualification means the
“discharge of a pollutant”
Discharge of a pollutant (NPDES)
means:
(a)(1) Any addition of any “pollutant”
or combination of pollutants to “waters
of the United States”irom any “
source.” or
(2) Any addition of any poL r
combination of pollutants to tht rs
of the “contiguous zone” or the
from any point source other the.
vessel or other floating crart whit...
being used as a means of transportatior
(b) 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 private!.
owned treatment works.
This term does not include an additic
of pollutants by any “indirect
discharger.”
Discharge Monitoring Report
(“DMR”) (NPDES) means the EPA
uriform national form, including an
subsequent odditions, revisions, or
modifications, for the reporting of self-
monitoring results by permitees. 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, I , of
EPA’s.
Dischorge of dredged materia 1
means any addition from any “poi .
source” of “dredged material” into
“waters of the United States.” The tern,
Includes the addition of dredged
material into waters of the United States
and the runoff or overflow frcm a
contained land or water dredged
material disposal area. Dscharges 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 (404) 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:
placement of fill that is necessary for thc
construction of any structure; the
building of any structure or
Impoundment requiring rock, sand. dirt,
or other materials for Its construction;
site-development fills for recreational,
Industrial, commercial, residenli-’
other uses; causeway, or roae
dams and dikes: artificial Isla
property protection and/or reca....dtion
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Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 1 Rules and Regulations
33421
devices such as riprap, groins, sdawalls,
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 (RCRA) 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 (RCRA) 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.
Disposal site (404) 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 “wetland” 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. -
DMA (NPDES) means “Discharge
Monitoring Report.”
Draft permit means a document
prepared under I 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 1 124.5, 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.”
Drilling mud (UIC) means a heavy
suspension used in drilling an “Injection
well,” introduced down the drill pipe
and through the drill bit
Dredged material (404) means
material that is excavated or dredged
from “waters of the United States.”
Effluent limitation (NPDES) mesas
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
(NPDES) means a regulation published
by th Administrator under section
304(b) of CWA to adopt or revise
“effluent limitations,”
Effluents (404) means “dredged
material” or “fill material,” including
return flow from confined sites.
Em ergency permit means a RCRA.
UIC, or State 404 “permit” issued In
accordance with § § 122.27, 122.40 or
123.98. respectively.
Environmental Protection Agency
(“EPA”) means the United States
Environmental Protection Agency.
EPA means the United States
“Environmental Protection Agency.”
F .’xempted aquifer (UIC) means an
“aquifer” or its portion that meets the
criteria In the definition of “underground
source of drinldng water” but which has
been exempted according to the
procedures in I 122.35(b). —
Existing HWM facility (RCRA) means
a facility which was In operation or for
which construction had commenced, on
or before October 21, 1976. Construction
had commenced if:
(a) The owner or operator had
obtained all necessary Federal, State,
and local preconstruction approvals or
permits; and
(bill) A continuous physical, on•site
construction program had begun, or
(2) The owner or operator had entered
into contractual obligations—which
cannot be cancelled or modified without
substantial loss—.for construction of the
facility to be completed within a
reasonable time.
(Not..—This definition reflects the literal
language of the statute. However. EPA
believes that amendments to RCRA now in
conference will shortly be enacted and will
change the date for determining when a
facility is an “existing facility” to one no
earlier than May of 1980; indications are that
the conferees are considering October 30.
iasa Accordingly. EPA encourages every
owner or operator of a facility which was
built or under physical construction as of the
promulgation date of these regulations to file
Part A of Its permit application so that It can
be quickly processed for interim status when
the change In the law takes effect. When
those amendments are enacted, EPA will
amend this dsfinltlon.J
Existing injection well (UIC) means
an “injection well” other than a “new
injection well.”
Facility or activity means any “HWM
facility,” IJIC “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.
Fill material (404) means any
“pollutant” 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,
Final authorization (RCRA) means
approval by EPA of a State program
which has met the requirements of
I 3006(b) of RCRA and the applicable
requirements of Part 123, Subparts A
and B.
Fluid (UIC) means any material or
substance which flows or moves
whether In a semisolid, liquid, sludge,
gas, or any other form or state.
Formation MC) means a body of 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 (UIC) means “fluid”
present In a “formation” under natural
conditions as opposed to introduced
fluids, such as “drilling mud.”
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 § 122.59.
For 404, a general permit means a permit
Issued under § 123.95.
Generator (RCRA) means any person,
by site location, whose act or process
produces “hazardous waste” Identified
or listed in 40 CFR Part 261.
Ground water (RCRA and LflC) means
water below the land surface in a zone
of saturation.
Hazardous substance (NPDES) means
any substance designated under 40 CFR
Part 116 pursuant to section 311 of
CWA.
Hazardous waste (RCRA and UIC)
means a hazardous waste as defined in
40 CFR 1 261.3.
Hazardou 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 (RCRA) means
“Hazardous Waste Management
facility.”
Indirect discharger (NPDES) means a
nondomestic discharger Introducing
“pollutants” to a “publicly owned
treatment works.”
Injection well (RCRA and l .RC) means
a “well” Into which “fluids” are being
Injected.
Injection zone (IRC) means a
geological “formation,” group of
formations, or part of a formation
receiving fluids through a “well.”
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Federal Register I VoL 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations
In operation (RCRA) means a facility
which Is treating, storing or disposing of
“hazardous waste.”
interim anthozization (RCRA) means
approval by EPA of a State hazardous -
waste program which has met the
requirements of 3006(c) of RCRA and
applicable requirements of Part 123,
Subpart F.
interstate agency means a i 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 byjhe Administrator
under the “appropriate Act and
regulations.”
Mo/or 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. -
Manifest (RCRA and UIC) means the
shipping document originated and
signed by the “generator” which
contains the Information required by
Subpart B of 40 CFR Part 282.
Maxinwxn doily discharge limitation
(NPDES) means the highest allowable
“daily discharge.”
Municipality (NPDES) meant a city,
town, borough, county, parish, district,
association, or other public body
created by or under State law and
having jui’lsdiction over disposal or
sewage, industrial wastes, or other
wastes, or an Indian tribe or an
authorized Indian tribal organization, or
a designated and approved management
agency under section 208 of CWA.
Notional Pollutant Discharge
Elirathadon System means the national
program for Issuing. niodif)ing, revoking
and reissuing, terminating, monitoring
and enforcing permits, and Imposing and
enforcing pretreatment requirements,
wider sections 307,402,318, and 405 of
CWA. The term Includes an “approved
program.”
New discharger (NPDES) means any
building. structure, facility, or
installation:
(a)(1J From which there is or may be a
new or additional “discharge of
pollutants” at a “site” at which on
October18, 1972 It had never discharged
pollutants; and
(2) Which has never received a finally
effective NPDES “permit” for discharges
at that site; and
(3) Which Is not a “new source.”
(b) This definition includes an
“indirect discharger” which commences
discharging nto “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.
New HWM facility (RCRA) means a
“Hazardous Waste Management
facility” which began operation or for
which construction commenced after
October 21, 1978.
New injection well (UIC) means a
“well” which began Injection after a UIC
program for the State applicable to the
well Is approved. -
New source (NPDES) 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.”
Off-site (RCRA) means any site which
Is not “on-site.”
On-site (RCRA) means on the same or
geographically contiguous property
which may be divided by public or
private rfght(s).of.way, provided the
entrance and exit between the
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 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 123 and 124. “Permit” includes
RCRA “permit by rule” (I 122,26), UIC
area permit (I 122.39), NPDES or 404
“general permit” (H 122.59 and 123.95),
and RCRA. UIC, or 404 “emergency
permit” (H 122.27,122.40, and 12396).
Permit does nbt include RCRA interim
status ( 1 ’-%) , UIC authorization by
rule (* 122.37), 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 rule (RCRA) meat
provision of these regulations statii ,g
that a “facility or activity” Is dee- i
have a RCRA permit If It meets I
requirements of the provision.
Person means an individual,
association, partnership. corpcration.
municipality, State or Federal agency, or
an agent or employee thereof.
Phase! (RCRA) means that phase of
- the Federal hazardous waste
management program commencing on
the effective date of the last of the
following to be initially promulgatedi to
CFR Parts 122, 123, 260,261, 262, 263,
and 265. PromulgatIon of Phase I refers
to promulgation of the regulations
necessary for Phase Ito begin.
Phase!! (RCRA) 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 II
refers to promulgation of the regulations
necessary for Phase U to begin.
Physical construction (RCRA) means
excavation, movement of earth, erection
of forms or structures, or similar activity
to prepare an “HWM facility” to accept
“hazardous waste.”
Plugging (UIC) means the act
process of stopping the flow of
oil.or gas In “formations” pene
a borehole or “well.”
Point source (NPDES and 404) ir.
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 craf:.
from which pollutants are or may be
discharged. This term does not include
return flows from irrigated agriculture.
Pollutant (NPDES and 404) 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 et
seqfl, 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 -
the well used either to facilitatr
production or for disposal purp,
approved by authority of the Statu .n
which the well is located, and If the
State determines that the injection or
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Federal Register Vol.45, No. 98 1 Monday, May 19, 1980 I Rules and Regulations
33423
disposal will not result in the -
degradation of ground or surface water
resources.
(Note.—Radloactlve 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. Lnc . 428 U.S I (1978).]
POTW means “publicly owned
treatment works.”
Primary industry category (NPDES)
means any Industry category listed In
the NRDC settlement agreement
(Natural Resources Defense Council et
a!. v. Train, 8 E.R.C. 2120 (D.D.C. 1976),
modified 12 E.R.C. 1833 (DD.C. 1979):
also listed in Appendix A of Part 122.
Privately owned treatment works
(NPDES) 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 wastewoter (NPDES) 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 (NPDES) 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
(“PO’TW”) 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 ‘ 8tate” or
“municipality.” This definition includes
sewers, pipes, or other conveyances
only if they convey wastewater to a.
POTW providing treatment.
Radioactive waste (UIC) means any
waste which contains radioactive
material in concentrations which exceed
those listed in 10 CTR Part 20, Appendix
B. Table U, Column 2. or exceed the
“Criteria for Identifying and Applying
Characteristics of Hazardous Waste and
for Listing Hazardous Waste” in 40 CVR
Part 261. whichever is applicable.
RCJL4 means the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976 (Pub. 1., 94-580, as amended
by Pub. L, 95-609,42 U.S.C 6901 ct
seq.).
Recommencing discharger (NPDES)
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 “appropriate Act and
regulations.”
SDWA means the Safe Drinking
Water Act (Pub. L, 95—523, as amended
by Pub. 1.95-1900:42 U.S.C. § 300f ct
seq.).
Secondary lndustiy category (NPDES)
means any Industry category which Is
not a “primary industry category.”
Secretory (NPDES and 404) 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.”
Sewage from vessels (NPDES) 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 (NPDES) 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 definitron 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.
Slate 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.
Slate/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 RCRA. SDWA. and
CWA programs.
Slate regulated waters (404) 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
program by the Administrator under
section 404(h). These waters shall be
identified in the program description as
required by I 123.4(h)(1). The Secretary
shall retain jurisdiction over the
following waters (see CWA section
404(g)(I)):
(a) Waters which are subject to the
ebb and flow 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
(a) and (b).
Storage (RCRA) means the holding of
“hazardous waste” for a temporary
period, at the end of which the
hazardous waste is treated, disposed. or
stored elsewhere.
Stratum (plural strata) (UIC) means a
single sedimentary bed or layer,
regardless of thickness, that consists of
generally the same kind of rock
material.
Total dissolved solids (UIC and
NPDES) means the total dissolved
(filterable) solids as determined by use
of the method specified In 40 CFR Part
136.
Toxic pollutant (NPDES and 404)
means any pollutant listed as toxic
under section 307(a)(1) of CWA.
Transporter (RCRA) means a person
engaged in the off-site transportation of
“hazardous waste” by air, rail, highway
or water.
Treatment (RCRA) 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-
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hazardous, or less hazardous: safer to
transport. store or dispose of; or
amenable for recovery, amenable for
storage, or reduced In volume.
UlCineans.the Underground Injection
Control program under Part C of the
Safe Drinking Water Act, including an
“approved program.”
Underground injection (UIC) means a
“well Injection.”
Underground source of drirsicing water
(‘USDW’) (RCRA and UIC) means an
“aquifer” or Its portion:
(a)(1) Which supplies drinking water
for human consumption; r
(2) In which the ground water
contains fewer than 10,000 mg/I “total
dissolved solids;” and
(b) Which is not an “exempted
aquifer.”
USDW(RCP.A and UICJ means
“underground source of drinldng water.”
Variance (NPDES) means aoy
mechanism or provision wider sections
301 or 316 of CWA or under 40 CFR Part
125. or in the applicable “effluent
limitations guidelines” which allows
modification toor 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
dlfferenj 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.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 flow of the
tide,
(b) All interstate waters, including
Interstate “wetlands;”
(c) All other waters such as intrastate
lakes, rivers. streams (including
Intermittent streams), mudilats,
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;
(a] Tributaries of waters Identified In
para phs (1H4) of this definition;
(I) The territorial sea: and
(g) “Wetlands” adjacent to waters
(other than waters that are themselves
wetlands) Identified In paragraphs (a)-.
(1) 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
I 423.11(m) which also meet the criteria
of this definition) are not waters of the
United States. This exclusion applies
only to manmade bodies of water which
neither were originally created in waters
of the United State. (such as a disposal
area In wetlands) nor resulted from the
Impoundment of waters of the United
States.
Well (UIC) means a bored, drilled or
driven shaft, or a dug hole, whose depth
Is greater than the largest surface
dimension.
Well injection (UIC) 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.
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.
g 122.4 ApplicatIon for a permit.
(Applicable to State programs, see
I 123.7.)
(a) Permit application. Any person
who Is required to have a permit
(Including new applicants and
permittees with expiring permits) shall
complete, sign, and submit an
application to the Director as described
in this section and in H 122.23 (RCRA),
122.38 (UIC), 122.53 (NPDES), and 123.94
(404). Persons currently authorIzed with
Interim status under RCRA (1122.23) or
UIC authorization by rule (4 122.37)
ehall apply for permits when required by
the Director. Persons covered by RCRA
permits by rule (4 122.26). and NPDES or
404 dIscharger. covered by general
permits under I 122.59 or 123.97,
respectively, need not apply. Procedures
for applications, Issuance and
adjT ,inlstration of emergency permits are
found exclusively In II 122.V (RCRA),
122 40 (UIC), and 123.96(404).
(b) Who applies? When a facility or
activity Is owned by one p son but Is
operated by another person, It Is the
operator’s duty to obtain a permit,
except that for RCRA only, the owner
must also sign the permit application.
(c) Completeness. The Direc
not Issue a permit under a program
before receiving a complete appliqpj pi.
for a permit wider that program
for NPDES and 404 general peru.
RCRA permits by rule, or emerge-
permits. An application for a permit
under a program Is comilete 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 RCP.A, UIC, and NPDES
programs, an application which Is
reviewed under * 124.3 Is complete
when the Director receives either a
complete application or the Information
listed In a notice of deficiency.
(d) infonnation requirements. All
applicants for RCRA. UIC, or NPDES
permits (for State 404 permits see
I 123.94) shall provide the following
Information to the Director, using the
application form provided by the
Director (additional Information
required of applicants is set forth In
II 122.24 and 122.25 (RCRA). 122.38
(UIC). and 122.53 (NPDES)).
(.1) The activities conducted
applicant which require It to ob
permits under RCRA, UIC. NPDU
PSD.
(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
programsr
(i) Hazardous Waste Management
program under RCRA.
(11) UIC program under SDWA.
(Iii) NPDES program under CWA.
(lv) Prevention of Significant
Deterioration (PSD) program under the
Clean Air Act.
(vi Nonattalnment program under the
Clean Air Act.
(vi) National EmissIon Standards for
Hazardous Pollutants (NESHAPS1
preconstruction approval under
Clean Air Act.
(vii) Ocean dumping permits n..
Marine Protection Research and
Sanctuaries Act.
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33425
(viii) Dredge or fill permits under
section 404 of CWA.
(lx) 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 facthties 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.
(a) Recozdkeeping. Applicants shall
keep records of all data used to
complete permit applications and any
supplemental information submitted
under § § 122.4(d), 122.24, and 122.25
(RCRA); 122.38 (UIC); 122.53 (NPDES);
and 123.94 (404) for a period of at least 3
years from the date the application is
signed.
§ 122.5 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 L.S.C. § 558(c) until the effective
date of a new permit (see 1 124.15) if
(1) The permittee has submitted a
timely application under § I 122.25
(RCRA). 122.38 (UIC), or 122.53 (NPDES)
which Is a complete (under § 122.4(c))
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 § 124.1$ on or before the
expiration date of the previous permit
(for example, when issuance is
Impracticable due to tine or resource
constraints).
(b) Effect. Permits continued under
this section remaIn fully effective and
enforceable.
(c) Enforcement. When the perinittee
is not in compliance with the conditions
of the expiring or expired permit the
Regional Admir.istrator 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.& 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) Slate continuation.
(1) An EPA 1 (or, in the case of 404,
Corps of Engineers) Issued permit does
not continue In force beyond its
expiration date under Federal law if at
that time a State I. the permitting
authority. States authorized to
administer the RCRA. UIC, NPDES or
404 programs may continue either EPA
(or Corps of Engineer.) 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
* 122.8 Signatories to permit appilcations
and reports.
(Applicable to State programs, see
I 123.7.)
(1) Applications. All permit
applications, except those submitted for
Class IL wells under the UIC program
(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 general parther or
the proprietor, respectively-, or
(3) For a municipoiity, Slate. Federal,
or other public agency; by either a
principal executive officer 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
I 122.38 for the UIC program 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 posiUonj and
(3) The written authorization is
submitted to the Director.
(c) Changer to authorization. If an
authorization under paragraph (b) of this
section Ia no longer accurate because a
different individual or position has
responsibility for the overall operation
of the facility, a new authorization
satisfying the requirement. 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 paragraphs (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
Information, Including the possibility of
fine and imprisonment.”
I 122,7 CondItions applicable to all
—L
(Applicable to State programs, see
I 123.7.)
The following conditions apply to all
RCRA. UIC. NPDES. and 404 permits.
For additional conditions applicable to
all permits for each of the programs
Individually, see sections 122.28 (RCRA).
122.41 (UIC), 122.0 and 122.61 (NPDES)
and 123.9i’ (404). All conditions
applicable to all permits, and all
additional conditions applicable to all
permits for Individual programs, 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 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 apply. 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 permitter in
an enforcement action that it would
have been necessary to halt or reduce
the permitted activity in order to
maintain compliance with the conditione
of this permit.
(d) Duty to mitigate. The permfttee
shall take all reasonable steps to
minimize or correct any adverse impact
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Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 I Rules and Regulations
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 ate
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 fr ln1ng .
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 perinittee 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. 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’e
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 appropriate Act, any
substances or parameters at any
location.
(I) 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;
(lii) The date(s) analyses were
performed;
(lv) The individual(s) who performed
the analyses:
(v) The analytical techniques or
methods used; and
(vi) The results of such analyses.
(k) Sign atoiy requirernenL All
applications, reports, or Information
submitted to the Director shall be signed
and certified. (See * 122.6.)
(I) Reporting requirements. (1)
Planned changes. The permittee shall
give notice to the Director as soon as
possible of any planned physical
alternations 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.
(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 appropriate Act.
(See § 122.14; 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 in any
compliance schedule of this permit shall
be submitted no later than 14 days
following each schedule date.
(0) Twenty-fourhourreporting.’
permittee shall report any
noncompliance which may endangt.
health or the environment Any
Information shall be provided orall:
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 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
(7) Other noncompliance. The
permittee shall report all instances of
noncompliance not reported under
paragraphs (1)(4), (5). and (0) of this
section, at the time monitoring reports
are submitted. The reports shall contain
the Information listed in paragraph (I)(b)
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 o’ rn
any report to the Director, It shall
promptly submit such facts or
Information.
• 122.8 Estabflshlng permit conditions.
(Applicable to State programs. see
*122.7.)
(a) All programs. In addition to
condillons required in all permits for all
prngrams (* 122.7). the Director shall
establish conditions, as required on a
case-by-case basis, in permits for all
programs under * * 122.9 (duration of
permits), 122.10(a) (schedules of
complIance), 122.11 (monitoring), and for
EPA permits only 122.10(b) (alternate
schedules of compliance) and 122.12
(considerations under Federal law).
(b) individual programs.
(1) In addition to conditions required
In all permits for a particular program
(** 122.28 for RCRA, 122.41 for UIC,
122.60 and 122.01 for NPDES, and 123.97
for 404). the Director shall establish
conditions In permits for the individual
programs, as required on a case-by-case
basis, to provide for and assure
csimp iance with all applicable
reciuirements of the appropriate Act and
nguiadrm
(2) For a State Issued permit, an
applicable requirement is a State
statutory or regulatory requiremer
which takes effect prior to final
admini tratfve disposition of a peim..
For a permit issued by EPA, an
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33427
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 124.88(c) fbr
RCRA. UIC and NPDES permits beng
processed under Subparts E or F of Part
124). SectIon 124.14 (reopenIng of
comment period) provides a means
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
preceedings 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 122.15.
(3) New or reissued permits. and to
the extent allowed under 122.15
modified or revoked and reissued
permits, shall incorporate each of the
applicable requirements referenced in
122.’9 (RCRA). 122.42 (UIC), 122.62
and 122.63 (NPDES). and 123.98(404).
(cJ Incorporation. All permit
conditions shall be incorporated either
expressly or by reference. If
Incorporated by reference, a specific
citajion to the applicable regulaticns or
requirements must be given in the
permit.
122.9 Duration of permits.
(Applicable to State programs. see
123.7.)
(a) NPDF.S and section 401. NPDES
and section 404 permits shall be
effective for a fixed term not to exceed 5
years.
(b) RCRA. RCRA permits shall be
effective for a fixed term not to exceed
10 yPars. (See also § 122.30 (interim
permits for UIC wells)).
(c) LIIC UIC permits for Class I and
Class V wells shall be effective for a
fixed term not to exceed 10 year .. UIC
permits for Class U and III wells shall be
Issued for a pen.,d up to the operating
Life of the facility. The Director sl’all
review each issued Class II or 111 veU
UIC permit at least once every 5 years to
determine whether it should be
modified. revoi.ed and reissued.
terminated, or a minor modification
made as provided In U 122.15, 122.16,
and 1.22.17.
(d) Except as provided In § 122.5, the
term of a permit shall not be extended
by modification beyond the maximum
duration spedfled In this section.
(e) The Director may issue any pcrmit
for a duration that is less than the full
allowable term under this section.
§ 122.10 Schedules of compliance.
(a) Cenerai (applicable to State
programs, see § 123.7). The permit may,
when appropriate, specify a schedule of
compliance leading to compliance with
the appropriate Act and regulations.
(1) Time for compliance. Any
schedules of compliance under this
section shall require compliance as soon
as possible.
(i) For NPDE& In addition, schedules
of compliance shall require compliance
not later than the applicable statutory
deadline under the CWA.
(IL) For UJC, In addition, schedules of
compliance shall require compliance not
later than 3 years after the effective date
of the permit.
(2) For l’JPDF.S only. The first NPDES
permit Issued to a new source, a new
discharger which commenced discharge
after August 13, 1979, or a recommencing
discharger shall not contain a schedule
of compliance under this section. See
also § 122.66(d)(4).
(3) Interim date& Except as provided
In paragraph (b)(lliui) 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.
(1) ‘hue 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 requirementa
Include: (1) submit a complete Step I
construction grant (for POTWsJ (2) let a
contract for construction of required
facilItleE (3) commence construction of,
required facilitlen (4) 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)(1)(li) of this section is
applicable.
(b) Alternative schedules of
compliance. A RCRA. UIC, or IWDES
permit applicant or permittee may cease
conducting regulated activities (by
receiving a terminal volume of
hazardous waste for HWM facilities,
plugging and abandonment for UIC
wells, or termination of direct discharge
for NPDES sources) 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 lssueth
(i) The permit may be modified to
contain a new or additional schedule
leading to timely cessation of activities;
or
(li) 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 timely
compliance with applicable
requirements. or for NPDES, compliance
no later than the statutory deadline.
(3) If the permittee Is undecided
whether to ceasq 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 to time!::
compliance with applicable
requirements. and for NPDES,
compliance 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, or for NPDES, compliance
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.
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Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 ‘ Rules and Regulations
5122.11 RequIrements for recor ng and
reporting of monitoring results.
(Applicable to Stftte programs, see
1123.7.)
All permits shell 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
and 266 (RCRA), Part 146 (UIC). 1 122.62
(NPDES), and, when applicable, 40 CFR
Part 230(404). Reporting shall be no less
frequent than specified in the above
regulations.
• 122.12 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 Notional Historic
Preser’vaticn 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, 15
U.S.C. 1531 el 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 Ii 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, 10 U,.S.C. 061 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.
(I) Executive orders. (Reserved.)
(g) For NPDES only, the National
Environmental Policy Act. 33 U.S.C. 4321
et seq., may require preparation of an
Environmental Impact Statement and
the inclusibn of EIS.related permit
conditions, as provided in I 122.67(e).
* 122.13 Elf set ole permit - -.
(a) (Applicable to SLate programs. see
I 123.7(a)). Except for Class II and Ill
wells under UIC, and except for any
toxic effluent standards and
prohibitions Imposed under section 307
of the CWA for NPDES, compliance
with a permit during its term constitutes
compliance, for purposes of
enforcement, with Subtitle C of RCRA.
Part C of SWDA, sections 301, 302, 306,
307, 318, 403, and 405 of CWA for
NPDES, and sections 301, 307; and 403 of
CWA for 404. However, a permit may be
modified, revoked and reissued, or
terminated during Its term for cause as
set forth In II 122.15 and 122.10.
(b) (Applicable to State programs, see
I 123.7(o)j 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.
*122.14 Transfer of permits.
(Applicable to State programs, see
*122.7.)
(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
* 122.15(b)(2)), or a minor modlfi
made (under * 122.17(d)), to Identity the
new pernuttee and incorporate suc’
other requirements as may be nect
under the appropriate Act.
(b) Automatic transfers. As an
alternative to transfers under paragraph
(a) of this section, any NPDES permit or
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 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, In the case of UIC permits. the
notice demonstrates that the financial
responsibility requirements of
* 122.42(g) 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 subparagraph
may also be a minor modification under
* 122.17. If this notice is not recei”
the transfer Is effective on the da
specified In the agreement mentio.
paragraph (b)(2) of this section.
5122.15 ModIfication or revocation end
reluuance of permit..
(Applicable to State programs, see
* 123.7).
When the Director receives any
information (for example, inspects the
facility, receives information submitted
by the permittee as required in the
permit (see 5 122.7). 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, Ifs 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 no’
under this section or * 122.17, thr
Director shall not modify or revo
reissue the permit. If a permit
modification satisfies the criteria in
* 122.17 for “minor modifications” the
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33429
• permit may be modified without a draft
permit or public review. Otherwise, a
draft permit must be prepared and other
proced.ures In Part 124 (or procedures of
an approved State program) followed.
(a) Causes for modification. The
foilowing are causes for modification
but not revocation and reissuance of
permits. However, for Class II or III
welli under UIC. the following may be
causes for revocation and reissuance as
well as modification: and the following
may be causes for revocation and
reissuance as well as modification under
any program when the permittee
requests or agrees.
(1) Aiterotfons. There are material and
substantial alterations or additions to
the permitted facility or acilvlty which
occurred after permit Issuance which
justify the application of permit
conditions that are different or absent in
the existing permit.
(Note—For IIPDES. certain reconstruction
activities may cause the new source
provisions of 122.87 to be applicable.
(2) Information. The Director has
received information. Permits other than
for UIC Class II and 111 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 LYIC area permits
( 122.39), NPDES general permits
• (I 122.59) and 404 general permits
( 123.95) 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 UIC Class II or UI 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 e
promulgated Part 280-286 (RCRA) or
Part 146 (UIC) regulation, or a
promulgated effluent limitation guideline
or EPA approved or promulgated water
quality standard (NPDES ; 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 permlttee 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) Forjudicial 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.
(ill) For changes based upon modified
.Stata 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 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.
However, in no case shall an NPDES
compliance schedule be modified to
extend beyond an applicable CWA
statutory deadline. See also * 122.17(c)
(minor modifications) and paragraph
(a)(5)(xI) of this section (NPDES
innovative technology).
(5) For NPDES only, the Director may
modify a permit:
(I) When the pertnlttee has filed a
request for a variance under CWA
sections 301(c). 301(g), 301(h). 301(i),
3Olflc), or 316(a), or for “fundamentally
different factors” within the time
specified in 122.53, and the Director
processes the request under the
applicable provisions of § 124.61,
124.82, and 124.64.
(ii) When required to Incorporate an
applicable 307(a) toxic effluent standard
or prohibition (see § 122.82(b)).
(Iii) When required by the “reopener”
conditions in a permit, which are
establrshed in the permit under
§ 122.82(b) (for CWA toxic effluent
limitations) or 40 CFR * 403.10(e)
(pretreatment program).
(iv) Upon request of a perniittee who
qualifies for effluent limitations on a net
basis under 122.63(h).
(v) When a discharger is no longer
eligible for net limitations, as provided
In § 122.63(h)(1)(il)(B).
(vi) As necessary under 40 CFR
403.8(e) (compliance schedule for
development of pretreatment program).
(vii) 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.
(viii) When the level of discharge of
any pollutant which 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).
(lx) 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 122.53(d)(9).
(x) To establish a “notification level”
as provided in 122.62(1).
(xl) 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 schi dule be modified to
extend beyond an applicable CWA
statutory deadline for compliance.
(8) For 404 only, the Director shall
modify a permit to reflect toxic effluent
standards or prohibitions or water
quality standards, under the “reopener”
condition of § 123.97(g).
( h)Causes for modification or
revocation and reissuence. The
following are causes to modify or,
alternatively, revoke and reissue a
permit:
(1) Cause’exists for termination under
I 122.16, and the Director determines
that modification or revocation and
reissuance Is appropriate.
(2) The Director has received
notification (as required in the permit.
see § 122.17(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
(I 122.14(b)) but will not be revoked and
reissued after the efkctive date of the
transfer except upon the request of the
new permittee.
(c) Facility siting. For RCRA and UIC,
suitability of the facility location will
not be considered at the time of permit
modification or revocation and
reissuitnce 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.
5122.16 TermInation of Its.
(Applicable to State programs, see
1 122.7.)
(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;
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Federal Register / VoL 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations
(2) The permittee’s failure in thern
*ppllcetlon 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) For NPDES and 404 only. permits
may be modified or terminated when
there is a change In any condition that
requires either a temporary or a
permanent reduction or PliTIthiatlon 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
RCRA. UIC, NPDES. or 404 permit under
this section.
0122.17 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
§ 122.15. Minor modiflcatipns may only:
(a) Correct typographical e.’vors
(b) Require more frequent monitoring
or reporting by the pe m1ttee:
(c) Change an intern 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 ownersh!p
or operational control of a facility where
the Director determii . .. that no other
change in the permit Is necessary,
provided that a itten agreement
containing a specific date for transfer of
permit responsibility, coverage, and
liability between the current and new
permittees ha.. been submitted to the
Director.
(e) For RCR.4 only, change the lets of
facility emergency coordinators or
equipment in the permit’, contingency
plan.
(f) For UIC only,
(1) Change q’iantitiee or types of
fluids injected which are within the
capacity of the facility as permitted and.
in the judgment of the Director, after
reviewing information required under
§0 146.16. 146.26 and 146.36, would not
Interfere with the operation of the
facility or Its ability to meet conditions
prescribed In the permit, and would not
change Its classification.
(2) Change construction requirements
approved by the Director pursuant to
0 122.42(a) (establishing UIC permit
conditions), provided that any such
alteration shall comply with the
requirements of this Part and Pan 146.
(g) Fat NPDES only,
(1) Change the construction schedule
for a diacharger’whith 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 § 122.86.
(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
permitlimita.
(h) For 404 only, extend the term of a
State section 404 perni t, so long as the
modification does not extend the term of
the permit beyond 5 years from its
original effective date.
o 122.18 Noncompliance and program
reporting by the Director. -
(Applicable to State programs, Iee
§ 123.7.)
The Director shall prepare quarterly
and annual reports as detailed below.
When the State is the permit-issuing
authority, the State Director shall Bubolit
any reports required under this section
to the Regional Mministrator. 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. RCR.A permittees shall
include R A interim status facilities,
when appropriate.
(a) QuoIQrly reports for RCRA, VIC
and NPDES The Director shall submit
quarterly narrative reports for major
facilities as follows:
(1) Format. The report shall use the
following format
(I) Provide separate lists for RCRA.
UIC. and NPDES permittees; the NPDES
permittees shall be further
subcategorlzed as non-POTWa. POTWa.
and Federal penoittes;
(H) For facilities or activities with
permits under more than one program.
provide an additional list combining
information on noncompliance for each
mach Iac1Jlty
(Ill) Alphabetize each list by peinuttee
name. When two or more permittees
have the same n ivip , the lowest permit
number shall be entered first.
( l v) Foreach entry on a list, ln
the following information in the
following order
(A) Name, location, and. permit
number of the noncomplying permitte6
(B) A brief description and date of
each instance of noncompliance for that
permittee. Instances of noncompliance
may indude one or more of the kinds set
forth In paragraph (a)(2) of this section.
When a permlttee has noncompliance of
more than one kind under a single
program, combine the information into a
Ah%gj . entry for each such permittee.
(C) The date(s) and a brief description
of the action(s) taken by the Director to
ensure compliance.
(B) 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 b
reported. Any instances of
nonccmpllance 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 .n
subsequent reports.
(I) Failure to complete construc.
elements. When the permittee has f
to complete, by the date specified in L.
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 le’:el); and
the perrnitlec has not returncd o
compliance by accomplishing the
required element of the ache uule with:ri
- 30 days from the date a compliance
schedule report is due under the permit.
(Ii) Modificotions to schedules of
compliance. When a schedule of
compliance in the permit has been
modified under § § 122.15 or 122.17
because of the permittee’s
noncompliance.
(lii) Failure to complete or provide
cornalionce 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 pernuttee has
not submitted the complete report
within 30 days from the date It Is due
under the permit for cônipliance
schedules, or from the date specif
the permit for monitoring reports.
(iv) Deficient reports. When the
required reports provided by the
permittee are so deficient as to cause
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Federal Registe I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
33431
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 paragraphs (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. (For NPDES only this pattern
of noncompliance is based on violations
of monthly averages and excludes
parameters where 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, a fire or explosion at an RCRA
facility, or 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.
(3) For RCRA only, the Director shall
submit. in a manner and form prescribed
by the Administrator, qu.srterly reports
concerning noncompliance by
transporters (for example.
recordkeeping requirements). and by
generators that send their wastes to off-
site treatment, storage or disposal
facilities.
(b) Quarterly reports for State 404
programs. The Director shall submit
noncompliance reports for section 404
discharges specified under
123.6(f)(1)(i) (A)— E) containing the
following information.
(1) Name, locatloc.. and permit number
of each noncomplying pemnuttee:
(2) A brief description and date of
each Instance of noncompliance, which
should include the following:
(I) Any unauthorized discharges of
dredged or fi ll material subject to the
State’s jurisdiction or any
noncompliance with permit conditiona;
and
(ii) A description of investigations
conducted and of any enforcement
actions taken or contemplated.
(c) Annual reports for RCRA, UIC.
and iVPDE S
(13 Annual noncompliance report
Statistical reports shall be submitted by
the Director on nonmajor RCRA. UIC,
and 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) For NPDES only, a separate list of
nonmajor discharges which are one or
more years behind In construction
phases of the compliance schedule shall
also be submitted in alphabetical order
by name and permit number.
(3) For RCRA only, 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 charecteristics and
lists of hazardous wastes at 40 CFR Part
261.
(4) For Siate.administered (JIC
programs only, In addition to the annual
noncompliance report, the State Director
shall:
(H Submit each year a program report
- to the Administrator (in a manner and
form prescribed by the Administrator)
consisting of
(A) A detailed description of the
State’s Implementation of Its program:
(B) Suggested changes If any to the
program description (see § 123.4(fl)
which are necessary to more accurately
reflect 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 (c)(4)(i) of
this section the State Director shall
provide the Administrator wIthin 3
months of the completion of the second
full year of State operation of the UIC
program a supplemental report
containing the Information required In 40
CFR Part 146 on corrective actions taken
by operators of new Class U wells based
upon these regulations.
(d) Annual reports for State 404
programs. The State Director shall
submit to the Regional Admlniatrator 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 (d)(1)
of this section which were filled or
which received any discharge or
dredged material during the year (either
by authorized or known 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 I 123.66:
(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.
(e) 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, UIC,
NPDES, and State 404 permit
requirements by major dischargers (or
for 404. other dischargers specified
under § 123.6(f)(1)(i)(A)—(E)) 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 Coversd by Reports on Nencompflai co
by Majo, Otsct arg.rs
lDst. orr O ls l 1 of
Jam ry, Fs .us,y. vof . _.. —. . . May 2’
?91 . May. andj ,a%. ...___ ....___.___ Au 5 31’
P lo ’ 30’
Oclob . No,aiW . ard Oscmte, — Feb 2G’
‘Repors im l bs nhads availibI. io the p c I cr ,opo .
loll W CO9pVI9 Cn 5.5 dat.
(2) For all annual reports. The period
for annual reports shall be for the
calendar year ending December 31, with
reports completed and available io the
public no more than 60 days later,
I 122.11 ConfIdentIalIty of Information.
(a) In accordance with 40 CFR Part 2,
any Information submitted to EPA
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33432 . Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980
I Rules and Regulations
pursuant to these regulations may be
claimed as confidential by the submitter.
Any such claim must be asserted at the
thne 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
wijhout 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
123.7.) Claim, of confidentiality for the
following Information will be denied:
(1) The name and address of any
permit applicant or perinittee;
(2) For UIC permits, information
which dea!s with the existence, absence.
or level of contaminants in drinking
watei-
(3) For NPDES permits, permit
applications and permits: and
(4) For NPDES and 404 permits.
effiueit data.
(c) (Applicable to State programs, see
• 123.7) For NPDES oniy, information
required by NPDES application forms
provided by the Director under § § 122.4
and 122.53 may not be claimed
confidential. This includes information
submitted on the forms themselves and
any attachments used to supply
Information required by the forms.
(d) (Applicable to State programs, see
§ 122.7.) For RCRA only,
(1) Claims or confidentiality for permit
application information must be
substantiated at the time the application
Is submitted and in the manner
prescribed in the application
Instructions.
12) If a submitter does not provide
substantiation, the Director will notify it
by certified mail of the requirement to
do so. If the Director does not receive
the substantiation within 10 days after
the submitter receives the notice, the
Director shall place the unsubstantiated
Information in the public file.
Subpart B—Add!tlonaI Requirements
for Hazardous Waste Programs Under
the Resource Conservation and
Recovery Act
§ 122.21 Pirpose and scope of Subpart B.
(a) Content of Subpart B. The
regulations In this Subpart set forth the
specific requirements for the RCRA
permit program. They apply to EPA. and
to approved States to the extent set
forth in Part 123. Sections of this
Subpart which are applicable to States
are Indicated at the section headings as
follows: (Applicable to State RCRA
programs, see § 123.7). The regulations
In this Subpart supplement the
requirements In Part 122. Subpart A.
which contains requirements for all
programs.
(b) Aathority for this Subpart and
other RCRA Subtitle C Regulations,
(1) Section 3001 of RCRA requires
EPA (I) to establish criteria for
Identifying the characteristics of
hazardous waste and for listing
hazardous waste, end (ii) using those
criteria to Identify the characteristics of
hazardous waste and list particular
wastes considered to be hazardous.
(2) SectIon 3002 of RCRA requires
EPA to establish standards applicable to
generators of hazardous waste. Section
3002 also requires establishment of a
-manifest system to assure that
hazardous waste which is transported
off.site goes to a permitted treatment.
•storage, or disposal facility.
(3) Section 3003 of RCRA requires
EPA to establish standards applicable to
transporters of hazardous waste.
(4) Section 3004 of RCRA requires
EPA to establish standards for the
location, design. construction.
monitoring, and operation of hazardous
6, ItlS C _ On.,v.ew end d&bsI ,ani.
flSlsrdou s waste
3002 ._.. ....:......... .._ Geniestors 01 Itawxsi .
eta ,.
Tmn ortecs of hsZardø s
tulle
5ta, dwd. to, HWM 1 1cm,..
3003 ________
3004 •
3005 .. . _...._.__.. .... .__ __...... Pirmut us o, ,u.nis
HWM ‘lcthies
Guadslines tar State
o,wr.s
3010 . .___....__....._ PielwwynoluflceluorofHW
s—self
(c) Overview of the RCRA Permit
Progrvm. Not later than 90 days after the
promulgation or revision of regulations
In 40 CFR Part 281 (identifying end
listing kazardous wastes) all generators
and transporters of hazardous waste,
and all owners or operators of
hazardous waste treatment. storage, or
disposal facilities must file a notification
of that activity under section 3010. Sb
months after the Initial promulgation of
- the Part 281 regulations, treatment,
storage, or disposal of hazardous waste
by any person who has not applied for
or received a RCR.A permit I. prohibited.
A RCRA permit application consists of
two parts. Part A (see § 122.24) and Part
B (see I ‘2-25) . For “existing HWM
facilities,” the requirement to submit an
application is satisfied by submitting
only Part A of the permit application
3006. ____
waste treatment. storage. and d
facilities.
(5) Section 3005 of RCRA requir..
EPA to publish regulations requirhv
each person owning or operating a
hazardous waste treatment, storage..
disposal facility to obtain a RCRA
permit.
(8) Section 3006 of RCR.A requires
EPA to publish guidelines to assist
States in developing hazardous waste
management programs.
(7) Section 3010 of RCRA requires any
person who generates or transports
hazardous waste, or who owns or
operates a facility for the treatment.
storage. or disposal of hazardous waste.
to notify EPA (or States having
approved hazardous waste programs
under section 3006 of RCRA) of such
activity within 90 days of the
promulgation or revision of regulations
under section 3001 of RCRA. Section
3010 provides that no hazardous waste
subject to regulations under Subtitle C
of RCRA may be transported, treated.
stored, or disposed of unless the
required notification has been given.
(8) The following chart indicates
where the regulations for sections 3001
through 3008 and the public notice for
sectIon 3010 appear In the Federal
Register.
40CFRP SII2 ..... .._.._ 45FR 12724, Fib 26.1980
IOCFRP,t263 . 45FR 12737.Fib 26 1980
4OCFRO., 11294.26 5 and (—FR — — ]
286
40 CFR Pwls 122 end 124 These nigu1atu 1n
40 CFR P 5,1 122 _. - . . These rugulatons
(Pt,.luc Noiicut __. - — 45 FR ‘2746 Feb 25. 1900
until the date the Director sets for
submitting PartB of the application.
(Part A consists of Forms I and 3of the
Consolidated Permit Application
Forms.) Timely submission of both
notification under section 3010 and Part
A qualifies owners and operators of
existing HWM fucili ies for interim
status under section 3005(e) of RCRA.
Facility owners and operators wi:h
lnte ixn status are treated as havir.g
been issued a permit until EPA or a
State with interim authorizat!on !c
Phase II or final authorization unier
Part 123 makes a final determin on on
the permit application. Facility ow”- g
and operators with interim statu
comply with interim status stan
set forth at 40 CFR Part 265 or WIth —-
equivalent provisions of a State prograr.
which has received interim or final
S.cbo , of P M Cau,.g - Fi,sl re jsbarl
4OCFF.Psr t2 S O ... 45FR1 fl4F 3 5
and (45 FR—]
4 OCFRPe ’t2 51.... _ . .._... C—FR—I
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Federal Register / Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Rngula lions
33433
authorization wider Part 123. 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 subpiission of Part B
of the application. There is no form for
Part B of the application; rather, Part B
must be submitted In narrative form and
contain the Information set forth at
§ 122.25. Owners or operators of new
HWM facilities must submit Part A end
Part B of the permit application at least
180 days before physical construction Is
expected to commence.
(d) Scope of the RCM permit
requirement. RCRA requires a permit for
the “treatment,” “storage,” or “disposal”
of any “hazardous waste” as Identified
or listed In 40 CFR Part 281. ‘Ihe terms
“treatment.” “storage,” “disposal,” and
“hazardous waste” are defined In
§ 122.3.
(1) Specific inclusions (applicable to
Stole RCR .4 programs, see § 123.7),
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 for:
(i) injection wells that dispose of
hazardous saste, and associated
surface facilities that treat, store, or
dispose of hazardous wasLe. (See
I 122.30.) 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
I 122.26(b) (permit by rule for injection
wells).
(ii) Treatment storage, or disposal of
hazardous waste at facitities requiring
an NPDES permit. However, the owner
and operator of a publicly owned.
treatment works receiving hazardous
waste will be deemed to have a RCRA
perIni for that waste if they comply
with the requirements of § 122.26(c)
(permtt by rule for POTWs).
(iii) Barges or vessels that dispose of
hazardous waste by ocean disposal and
onshore hazardous waste treatment or
stora$e facilities associated with an
ocean disposal opera lion. However, the
owner and opera to? will be deemed to
have a R RA permit for ocean disposal
from the barge or vessel Itself If they
comply with the requirements of
I 122.26(a) (permit by rule for ocean
disposal barges and vessels).
(2) Specific exclusions. The following
parsons are among those who are not
required to obtain a RCRA permit
(i) Generators who accumulate
huzardous waste on.site for less than 90
days, as provided In 40 CFR § 262.34.
(n) Farmers who dispose of hazardous
waste pesticides from their own use as
provided in 40 CPR § 282.51.
(Ill) Persons who own or operate
facilities solely for the treatment,
storage. or disposal of hazardous waste
excluded from regulations under this
Part by 40 CFR § 261.4 or § 261.5 (small
generator exemption).
(lv ) Owners or operators of totally
enclosed treatment facilities as defined
in 40 CFR I 280.10.
(v) Owners or operators of totally
enclosed treatment facilities as defined
In 40 CFR § 260.10.’
§122.22 Application for a permit.
(Applicable to Slate RCRA programs,
see § 123.7.)
(a) £icisting h’WM facilities. (1) Not
later than six months after the first
promulgation of regulations In 40 CFR
Part 281 listIng and identifying
hazardous wastes, all owners and
operators of existing hazardous waste
treatment, storage, or disposal facilities
must submit Part A of their permit
application with the Regional
Administrator.
(2) At any time after promulgation of
Phase I I the owner and operator of an
existing HWM facility may be required
to submit Part B of their permit
application. The State Director may
require submission of Part B (or
equivalent completion of the State -
RCRA application process) If the State
in which the facility is located has
received Interim authorization for Phase
U or final authorization; If not, the
Regional Administrator may require
submission of Part B. Any owner or
operator shall be allowed at least six
months from the date of request to
submit Part B of the application. Any
owner or operator of an existing HWM
facility may voluntarily submit Part B of
the application at any time.
(3) 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.
(b) New HWMFccthties. (1) No
person shall begin physical construction
on a new HWM facility without having
submitted Part A and Part B of its permit
application and 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 Phase U. The
application shall be filed with the
Regional Administrator if at the time of
application the State In which the new
HWM facility is proposed to be located
has not received interim authorization
(or Phase II or final authorization;
otherwise it shall be filed with the State
Director. All applications must be
submitted at least 180 days before
physical construction is expected to
commence:.
(c) 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 fi!e 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 U or final authorization, within
six months after the promulgation of
revised regulations wider Part 281 listing
or identifying additional hazardous
wastes. if the facility is treating, storing.
or disposing of any of those newly listed
or identified wastes.
(Note—EPA intends to promulgate
regulations In June of 19110 listing or
designating additional wastes beyond those
listed or designated in Its initial promuIgauic
of Part 261. The wastes to be lis:ed or
designated in June are set forth in an
Appendix to the initial promulgation. EPA
encourages facilities applying for Interim
status before that second set of wastes is
actually published to list or designate any cf
- the wastes in that set which they are Ireanng.
storing, or disposing of. That will avoid the
need to extensively update the Part A
application when the June 1960 promu!gatioza
occurs.)
(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, ii
the facility is treating, storing, or
disposing of any of those newly lfsted or
designated wastes; or
(iii) As necessary to comply w:th
provisions of § 122.23 for changes during
interim status or the analogous
provisions of a State program approved
• for final authorization or interim
author.zaton for Phase II. Revised Part
A applications necessary to comply t i
the provisions of § 122.23 shall be IiJe
with the Regional Administrator if the
State in which the facility in question is
located does not have Phase U icler ,m
authorization or final authorization;
otherwise it shall be filed with the State
Director.
(2) The owner or operator of a facl;:v
who fails to comply with the updating
requirements of paragraph (c)(1) of this
section does not receive inteuc, status
as to the wastes not covered by duly
filed Part A applications.
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33434 Federal Register / Vol. 45, No. 98 1 Monday, May 19, 1980 I Rules and Regulations
(d) Reapplicotions. Any HWM facthiy
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 the expiration date of the existing
permit.)
122.23 InterIm status.
(a) Quail ! ying for interim status. 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) Notified the Administrator within
90 days from the promulgation or
revision of Part 281 as required In
Section 3010 of RCRA (this may be
done by. completing EPA form 8700 .12);
and
(2) ComplIed with the requirements of
§ 122.22 (a) and (c) governing
submission of Part A applications;
(3) When EPA determines on
examination or reexamination of a Part
A application that it fails to meet the
standards of these regulations, 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.
(b) Coverage. During the intethn
status period the facility shall not:
(1J 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
applica Lion.
(c) Changes during interim status. (1)
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 owner or
operator submits a revised Part A permit
application prior to such a change:
(2) 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 change (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;
(3) 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
(Ii) It is necessary to comply with
Federal regulations (including the
interim status standards at 40 CFR Part
265) or State or local laws.
(4) 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.
(5) 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.
(d) Interim status standards. During
Interim status, owners or operators shall
comply with the interim status
standards at 40 CFR Part 265.
(e) Grounds for termination of interim
status. Interim status terminates when:
(1) Final administrative disposition of
a permit application is made; or
(2) Interim status is terminated as
provided in § 122.22(a)(3).
§ 122.24 Contents of Part A.
(Applicable to State RCRA programs,
see § 123.7.)
In addition to the Information in
O 122.4(d), Part A of the RCRA
application shall include the following
Information:
(a) The latitude and longitude of the
facility.
(bJ The name, address, and telephone
number of the owner of the facility.
(c) An indication of whether th
facility Is new or existing and whi t
Is a first or revised application.
(d) For existing facilities, a scale
drawing of the facility showing the
location of all past, present. and futi
treatment, storage, and disposal areas.
(e) For existing facilities, 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
capacity of these Items.
(g) A specification of the hazardous
wastes Listed or designated under 40
CFR Part 281 to be treated, stored. or
disposed at the facility, an estimate of
the quantity of such wastes to be
treated, stored, or disposed annually.
and a general description of the
processes to be used for such wastes.
§ 122.25 Contents of Part B.
lApplicable to State RCRA programs.
see § 123.7.)
Part B of the RCRA application
includes the following:
(a) General inforrnctian requircme. n
The following information is requi
all facilities:
(1) A general description of the
facility.
(2) Chemical and physical analyses
the hazardous wastes to be handled at
the facility. At a minimum, these
analyses shall contain all the
information which must be known to
treat, store. or dispose of the wastes 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
§ 254.14, or a justification demonstratins
‘the reasons for requesting a waiver of
this requirement.
(5) A copy of the general inspection
schedule required by § 284.15(b).
(8) A justification of any request for a
waiver(s) of the preparedness and
prevention requirements of § 264.30.
(7) A copy of the contingency plan
required by Part 264. Subpart D.
(8) A description of procedures,
structures, or equipment used at the
facility to,
(i) Prevent uncontrolled reaction of
Incompatible wastes (for example,
procedures to avoid fires, explosfr
toxic gases).
(ii) Prevent hazards In unloadir
operations (for example, ramps, sped,,.
forklifts).
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Federal Register / Vol. 45. No. 98 / Monday, May 19, 1980 / Rules and Regulations
33435
( l ii) Prevent runoff from hazardous
waste handling areas to other areas of
the facility or environment, or to prevent
flooding (for example. berms, dikes,
benches).
(lv) Prevent contamination of water
supplies.
(v) Mitigate effects of equipment
failure and power outages.
(vi) Prevent undue exposure of
personnel to hazardous waste (for
example. protective clothing).
(9) Traffic pattern, volume and control
(for example, show tunis across traffic
lanes, and stacking lanes (If
appropriate): provide access road
surfacing and load bearing capacity
show traffic control signals; provide
estimates of traffic volume (number.
types of vehicles)).
b. [ Reserved.]
(Note—The lequireinenis set forth In
I 122.2 (a) reflect thoae permit application
requirements rele’ed to the Initial
promulgation of Part 264. Add:tlonal permit
application requirements Including specific
design and operating data, financial plans.
and site engineering Information will be
promulgated when the remaining portions of
Part 264 are promulgated.)
§ 122.26 PermIts by rule.
(Applicable to State RCRA programs.
see § 123.7.)
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
operaton
(1) Has a permit for ocean dumping
issued under 40 CFR Part 220 (Ocean
Dumping, authorized the Marine
Protection. Research. and Sanctuaries
Act, as amended, 33 U.S.C. f 1420
et seq.):
(2) Complies with the conditions of
that permit; and
(3) Complies with the following
hazardous waste regulations:
(1) 40 CFP. * 264.11, Identification
number;
(ii) 40 CFR § 264.71. Use of manifest
system:
(iii) 40 CFR 1 264.72. Manifest
discrepancies;
( lv) 40 CFR I 204.73(a) and (b)(1),
Operating record;
(v) 40 CFR 1 264.75. Annual report;
and
(vi) 40 CTR § 264.76, Unmaniiested
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 122, Subpart
C or Part 123, Subpart Q and
(2) ComplIes with the conditions of
that permit and the requirements of
I 122.45 (requirements for wells
managing hazardous waste).
(c) Publicly owned Lreofrnent works.
The owner or operator of a POTW
which accepts for treatment hazardous
waste, if the owner or operaton
(1) Has an NPDES permit
(2) Complies with the conditions of
that permit and
(3) Complies with the following
regulations:
(1) 40 CFR I 264.11, IdentIfication
number
(11)40 CFR I 264.71. Use of manifest
system:
(111)40 CFR I 264.72, Manifest
discrepancies;
(iv) 40 CFR 1 264.73 (a) and (b)(i).
Operating record;
(v) 40 CFR 1 264.75. Annual report;
(vi) 40 CFR I 264.76 Unmanifested
waste report and
(4)1! 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.
I 122.27 Emergency permits.
(Applicable to State RCRA programs.
see § 123.7.)
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 to a facility to allow treatment,
storage, or disposal of hazardous waste
for a non-permitted facility or not
covered by the permit for a facility with
an effective permit. This emergency
permit:
(a) May be oral or written. If oral. It
shall be followed within five days by a
written emergency permiL
(b) Shall not exceed 90 days in
duration: -
(c) Shall clearly specify the hazardous
wastes to be received, and the manner
and location of their treatment, storage.
or disposal;
(d) 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
(e) Shall be accompanied by a public
notice published under § 124.11(b)
Including:
(1) Name and address of the office
granting the emergency authorization:
(2) Name and location of the
permitted HWM facility;
(3) A brief description of the wastes
Involved;
(4) A brief description of the action
authorized and reasons for author.zu’.g
It and
(5) Duration of the emergency pernht;
and
- (f) 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.
• 122.26 AdditIonal condItIons applicable
to all RCRA permits.
(Applicable to State RCRA programs.
see § 122.7.)
The following conditions, in addition
to those set forth in § 122.7, apply to all
RCRA permits:
(a) In addition to § 122.7(a) (duty to
comply): the permittee need not corrI?ly
with the conditions of this permit to the
extent and for the duration such
noncompliance is authorized in an
emergency permit. (See § 122.27.)
(b) In addition to § 122.7(j)
.(monitoring): the permittee shall
maintain records from all ground
monitoring wells and associated
groundwater surface elevations, for &.e
active life of the facility, and for
disposal facilities for the post-closure
care period as well.
(c) In addition to § 122.7(l)(1) (notice
of planned changes): for a new HW
facility, the permittee may not
commence treatment, storage, or
disposal of hazardous waste; and fcr a
facility being modified the permittec
may not treat, store, or dispose oi
hazardous waste in the modified pcz. n
of the facility, until:
(1) The permittee has subc ’i: ed to :e
Director by certified mail or hand
delivery a letter signed by the pernut e
and a registered professional engfnee
stating that the facility has been
constructed or modified in compliaflce
with the permit; and
(2)(i) The Director has inspected the
modified or newly constructec facility
and finds it is in compliance wi.h the
conditions of the permit; or
(ii) Within 15 days of the date of
submission of the letter in paragraph
(c)(1) of this section, the permittee has
not received notice from the Di;ec.or of
his or her intent to inspect, prior
Inspection Is waived and the perm.tIee
may commence treatment, Eorage. or
disposal of hazardous waste.
(d) The following shall be included as
information which must be reported
orally wIthin 24 hours under § 122.7(lJ 6):
(1) Information concerning release of
any hazardous waste that may cause an
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1 ederal Register f VoL 45, No. 98 I Monday, May 19, 1980 ‘I Rules and Regulations
endangerment to public drinking water
supplies.
(2) Any Information of a release or
discharge of hazardous waste, or of a
fire or explosion from a HWM facility,
which could threaten the environment or
human health outside the facility. The
description of the occurrence and Its
cause shall Include:
(I) Name, address, and telephone
number or the owner or operator
(II) Name. address, and telephone
number of the fadlity
(ill) Date, time, and type of Incldent
(lv) Name and quantity of material(s)
Involved,
(v) The extent of Injuries, If any;
(vi) An assessment of actual or
potential hazards to the environment
and human health outside the facility,
where this Is applicable; and
(vil) Estimated quantity and
disposition of recovered material that
resulted from the Incident.
The Director may waive the five day
written notice requirement In favor of a
written report within fifteen days.
(e) The following reports required by
Part 264 shall be submitted In addition
to those required by § 122.7(1) (reporting
requirements):
(1) Manifest discrepancy 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 I 284.72.)
(2) Unmanifested waste report must
be submitted to the Director within 15
days of receipt of unmanifested waste.
(See § 264.76.)
(3) Annual report an annual report
must be submitted covering facility
activitIes during the previous calendar
year. (See 40 CFR I 264.75.)
(4) (Reserved.]
(Note—The above report. are required In
Part 264 as Initially promulgated. Additional
reports will be required and added to this
section when ranalning portion, of Part 264
are promulgated.]
1122.29 EstablishIng RCRA pennft
Conditions.
(Applicable to State RCRA programs,
see § 123.7.)
In addition to the conditions
established under § 122.8(a), each RCRA
permit shall Include each of the
applicable requirements specified In 40
CYR Parts 264 and 268.
* 122.30 Interim permits for UIC wiNs.
(Applicable to State programs, see
S 123.7.)
The Director may Issue a permit under
this Part to any Class I UIC well (see
5 122.32) 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 yeaii. 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 actlon’by the Director under a
UIC program to Issue or deny a UIC
permit for the facility.
Subpart C—Additional Requirement.
for UIC Programs Under the Safe
Drinking Water Act
*122.31 Purpose and scope of Subpart C,
(a) Content of Subport C. The
regulations in this Subpart set forth the
specific requirements for the UIC
program. They apply to EPA, and to
approved States to the extent set forth
In Part 123. Sections of this Subpart
which are applicable to States are
Indicated at the section headIng as
follows: (Applicable to State UIC
programs, see 5 123.7). The regulations
- In this Subpart are supplemental to the
requirements in Part 122, Subpart A,
which contains requirements for all -
programs.
(b) Authority. (1) Section 1421 of
SDWA requires the Administrator to
promulgate regulations establishing
minimum requirements for effective UIC
programs.
(2) SectIon 1422 of SDWA 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 thai underground injection will
not endanger drinking water sources”
and to establish by regulation a program
for EPA administration of mc program.
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 where the State fails to
enforce those 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
requirement. “as the Administrator may
reasonably require. . . to assist him In
establishing regulations under this title,”
and a “right of entry and lnspectf
determine compliance with this t.
Including for this purpose, Inspection, at
reasonable times, of 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) Overiiew of the UIC program. A
UIC program Is necessary in any State
listed by EPA under section 1422 of
SDWA. Because all States have been
listed, all States must submit a UIC
program wIthin 270 days after the
effective date of these rules and 40 CFR
Part 146, 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 Subpart sets forth the requirements
governing authorizations by permit or
rule and prohibits authorization of
certain types of injection. The technical
regulations governing these
authorizations appear in 40 CFR 1
148.
(d) Scope of the permit or rule
requiremenL The UIC permit progra.
regulates underground injections by five
classes of wells (see definition of “well
injection ,” § 122.3). The five classes of
wells are set forth In § 122.32. 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 Class I, I I,
or 111 well shall be authorized by permit
or nile If it results in movement of fluid
into underground sources of drinking
water (USDWs) (5 122.34). The technical
requirements of Part 146 are designed to
Insure that such movement will not
occur. No Class V well shall be
authorized by permit or rule If it results’
In the presence of any contaminant in
USDW , which may adversely affect the
health of persons (I 122.34). 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 (5 122.36). Class V wells will
be Inventoried and assessed and
regulatory action will be eetablie
a later date. In the meantime, if ra
action appears necessary, an indivu.
permit may be required ( 122.37) or the
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Federal Register / Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
33437
Director must require remedial action or
closure by order (4 122.34(c)). DurIng
UIC program development, the Director
may Identify aquifers and portions of
aquifers which ire actual or potential
sources of drinking water (see 4 123.4(g)
for State programs). 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 Part 146. 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
USDWa. No aquifer Is an “exempted
aquifer” until It has been affirmatively
designated wider the procedures In
4 122.35. 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 indusions. The following
wells are included among those types of
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 a 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.
(lv) Any septic tank, cesspool, or other
well used by a multiple dwelling.
community. or Regional system for the
Injection of wastes.
(2) Specific exclusion,. The following
are not covered by these regulations:
(i) Injection wells located on a drilling
platform or other site that Is beyond a
State’s territorial waters.
(ii) Individual or single family
residential waste disposal systems such
as domestic cesspools or septic systems.
(iii) Any dug hole which Is not used
for emplacement of fluids underground.
4122.32 ClassificatIon of Injection wells,
(Applicable to State UIC programs,
see 4 123.?.)
Injection wells are classified as
follows: -
(a) Class I.
(1) Wells used by generators of
hazardous wastes or owners or
operators of hazardous waste
management facilities to inject
hazardous waste, other than Class IV
wells.
(2) Other Industrial and municipal
disposal wells which inject fluids
beneath the lowermost formation
containing, within one quarter mile of
the well bore, en underground source of
drinking water.
(b) Ci ass II. Wells which inject fluids:
(1) Which are brought to the surface In
connection with conventional oil or
natural gas production:
(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 ill. Wells which inject for
extraction of minerals or energy.
Including:
(1) Mining of sulfur by the Frasch
process:
(2) SolutIon mining of minerals;
(3) In situ combustion of fossil fuel:
and
(4) Recovery of geothermal energy.
(d) Class IV. Wells used by generators
of hazardous wastes or of radioactive
wastes, by owners or operators of
hazardous waste management facilities,
or by owners or operators of radioactive
waste disposal sites to dispose of
hazardous wastes or radioactive wastes
into or above a formation which within
one quarter mile of the well contains an
underground source of drinking water.
(e) Class V. Injection wells not
included In Classes I, I I, Ill, or N.
4122.33 ProhibItion of unauthorized
Injection.
(Applicable to State programs, see
4 123.7.)
Any UIC program shall prohibit.
effective no later than the date of
approval (for Stale programs) or the
effective data of regulations establishing
the program (for EPA.admlnistered
programs) any underground injection,
except as authorized by permit or rule
Issued wider this Part and Part 123. as
applicable. Any UIC program shall also
prohibit the construction of any well
required to have a permit under this Part.
until the permit has been Issued.
4122,34 ProhibItion of movement of fluId
Into underground sources of thinking
Watar.
(Applicable to State UIC programs,
see 4 123.7.)
(a) No LflC authorization by permit or
rule shall be allowed In the following
circumstances:
(1) Where a Class 1,11, or III well
causes or allows movement of fluid Into
4lnderground sources of drinking water.
(2) Where a Class IV or V well causes
or allows movement of fluid containing
any contaminant Into underground
sources of drinking water, and the
presence of that contaminant may cause
a violation of any primary drinking
water regulation under 40 CFR Part 142
or which may adversely affect the
health of persons.
(b) For Class, I, I I, and m wells, If any
monitoring indicates the movement of
injection or formation fluids into
underground sources of drinldng water,
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
4 122.15, or the permit may be
terminated under § 122.16 if cause
exists, or appropriate enforcement
action may be token if the permit has
been violated. In the case of wells
authorized by rule, see 4 122.37(a).
(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 CFP.
Part 142, he or she shall:
(1) Require the injector to obtain an
individual permit;
(2) Order th e Injector to take such
actions (including where required
closure of the injection well) as may be
necessary to prevent the v1olation 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, tha 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.
4122.35 IdentIfIcatIon of underground
sources of drinking water and exempted
quIfer
(Applicable to State UIC programs.
see 4 123.7.)
(a) The Director may lder.tify (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
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33438
Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules and Regulations
source of drinking water” in I 122.3.
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 I 122.3.
(b) After notice and opportunity for a
public hearing the Director may identify
(by narrative description, illustrations.
maps, or other means) and describe Ip
geographic and/or geometric terms
(such as vertical and lateral limits and
gradient) which are clear and definite,
all aquifers or parts thereof which the
Director proposes to designate as
exempted aquifers using the criteria In
40 CFR I 148.04. For State UIC
programs, no such designation shall be
final until approved by the
Administrator as part of the State
program. Subsequent to program
approval Identification of additional
exemçted aquifers shall be treated as -
program modifications under
* 123.6(b)(8).
a 122.38 ElImination of certain Class IV
wells.
(Applicable to State UIC programs.
see *123.7.)
(a) In addition to the requirement of
I 122.45, any UIC program shall prohibit:
(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 the
effective date of this Part;
(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
ln)ectlr.g hazardous waste directly into a
USDW after 6 months following
approval or promulgation of any UIC
program for a State.
122.37 AuthorIzation of underground
injection by ruls.
(Applicable to State UIC programs
ee 123.7.)
(a) Types of underground injection
which may be authorized by rule. The
Director may authorize underground
Injections by rule as outlined In this
paragraph. Underground injections not
authorized by rule or by permit are
prohibited (see I 122.33).
(1) Injection into existing Class I, U
(except existing enhanced recovery and
hydrocarbon storage), and Ill wells may
be authorized by rule for periods up to
five years from the date of approval or
promulgation of the UIC program. (AU
wells must be Issued permits within the
five year period or close down at Its
end, unles, the rule Is continued under
I 122.38(a).) The rule shall require
compliance with applicable
requirements of 40 CFR Part 146 as soon
as possible but no later than one year
after the authorization. Rules
authorizing existing Class II and Class
HI facilities may allow them to continue
normal operations until permitted.
Including construction and operation of
new injection wells at the facility site.
provided the owner or operator
maintains compliance with all
applicable requirements.
(2) Injection Into existing Class II
enhanced recovery and hydrocarbon
storage wells may be authorized for the
life of the well. The rule shall include
compliance sthedulei for achievthg
applicable requirements of 40 CFR 148
no later than one year, and with the
construction requirements of 40 CFR
Part 146 no later than three years, after
the promulgation of the rule.
(3) Injection into existing Class IV
wells Injecting directly into a USDW
may be authorized for a period of not
more than six months after approval or
promulgation of the UIC program. The
rule shall require monitoring and
reporting as set forth In 40 CFR I 146.44
wIthin 00 days of the authorization..
(4) Injections Into Class V wells may
be authorized Indefinitely, subject to the
requirement of paragraphs (b) and (d) of
this section and 40 CFR I 146.53.
However, the Director must have
authority to withdraw the authorization
If required under this Part.
(b) Requirements of rules. Any rule
promulgated by the Director shall apply,
and ensure compliance with, the
foliowing requirements applicable to
permittees, except that the terms
“permit” and “permittee” shall be read
to include rules and those authorized by
rule:
(1) I 122.41(a)—(exemption from rule
where authorized by temporary
permits):
(2) 122.41(b)—(retentlon of records)
(3) I 122.41(d)—(reportlng within 24
hours);
(4) I 122.41(e)—(180 days notice of
abandonment);
(5) Construction requirements under
I 148.12 (Class I), a 148.22 (Class II), and
I 148.32 (Class HI);
(6) For Class 1,11. or II I wells.
corrective action under a 146.07;
(7) OperatIng, monitorIng, and
reporting requirements under *148.13
(Class I), I 146.23 (Class II ), and * 146.33
(Class ill):
(8) * 122.42(g)—(Finaaclal
responsibility):
(9) MechanIcal Integrity requirements
under I 146.08.
(c) Requiring a permit. (1) The
Director may require any Class I. U. ill.
or V Injection well authorized by a -
to apply for and obtain an IndIvtd
area UIC permit Cases where Indh..
or area UIC permits may be required
Include: -
(I) The Injection well Is not In
compliance with any requirement of the
rule;
(Note.—Any underground Injection which
violate, any rule wider this section Is subject
to appropriate enforcement actlon.j
(II) The injection well Is not or no
longer is within the category of wells
and types of well operations authorized
In the rule:
(iii) 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 n
the rule.
(2) For EPA administered programs.
the Regional Administrator may require
the owner or operator authorized by a
nile 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’
statement of the reasons for this
decision, an application form, a
statement setting a thne for the owi
-operator to file Die application, and..
statement that upon the effective date o .
the UIC permit the rule no longer applies
to the activities regulated under the UIC
programs.
(3) Any owner or operator authorized
by a rule may request to be excluded
from (he coverage of the rule by
applying for an individual or area UIC
permit. The owner or operator shall
submit an application under I 122.38
with reasons supporting the request. to
the Director. The Director may grant any
such request
(d) L ventory requirements. All
Injection wells covered by rule shall
submit Inventory Information to the
Director. Any rule under this section
- shall provide for the automatic
termination of authorization for any well
which falls to comply within the Dine
specified in paragraph (c)(3J of this
section.
(1) Contents. The Director shall
require at least the information listed in
* 148,52 as part of the inventory.
(2) Notice. Upon appràval of the UIC.
program in a State, the Director she”
notify owners or operators of Injer
wells of their duty to submit Inven,
Information. The method of notilicaL...
selected by the Director must assure
that the owners or operators will be
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Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations
33439
made aware of the inventory
requirement.
(3) Deadlines. Owners or operators of.
injection wells must submit Inventory
information no later than one yeaz after
the authorization by rule. The Director
need not require Inventory information
from any facility with Interim status
under RCRA.
(e) Assessment of Class V WeL’s. 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).
122.38 ApplicatIon fore permit;
authorization by permit.
(Applicable to State UIC programs,
see I 123.7.)
(a) Permit application. Except as
provided in 122.37 (authorization by
rule). all underground injections into
Class 1, II, or ill wells in listed States
shall be prohibited unless authorized by
permit. Those authorized by a rule under
122.37 must still apply for a permit
under this section unless authorization
by rule was for the life of the well. Rules
authorizing well injections for which
permit applications have been submitted
shall lapse for a particular well injection
only upon the effective date of the
permit or permit denial for that well
injection.
(b) 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 wflh the
State UIC program as follows:
(1) For existing injection wells, as
expeditiously as practicable and in
accordance with the schedule contained
in any program description under
I 123.4(g ). but no later than 4 years from
the approval of the UIC program. or as
r quired under § 122.45 1 b) for wells
injecting hazardous wa3te.
(2) For new injection wells, except
new wells covered by an existing area
permit under § 122.39(c), a reasonable
time before constr.iction is expected to
begin. (See also § 122.41(b)).
(c) Contents of UIC application.
(Reserved.]
123.39 Ares permits.
(Applicable to State UIC programs,
see § 123.7.)
(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 application(s). if they
are existing wells,
(2) Within the same well field, facility
site, reservoir, project, or similar unit in
che same Slate;
(3) Of similar construction;
(4) Of the same dais as determined
under § 122.32; and
(5) Operated by a single owner or
operator.
(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 new
injection wells within the permit area
provided:
(1) The permittee notifies the Director
no later than the date on which
monitoring reports are required to be
submitted under § 122.7(l)(4), pursuant
to a procedure which shall be specified
ir, the permit, when and where the new
well has been or will be drilled;
(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
s ctlon; 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)(1)
and (c)(2) of this section the Director
may modify the permit under § 122.15,
terminate under { 122.16, or take
enforcement action. If the Director
determthes that cumulative effects are
unacceptable, the permit may be
modified under § 122.1$.
§ 122.40 Emergency permits.
(a) Coverage. Notwithstanding any
other provision of this Part or Part 124.
the Director may temporarily permit a
specific underground infection which
has not otherwise b en authorized by
rule or permit If:
(1) An imminent and substantial
endangerment to the health of persons
will 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
(I) Timely application for a permit
could not practicably have been made:
and
(ii) The injection will not result in the
movement of fluids into undergound
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 U 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)(1)
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 sectfon shall be
for no longer then 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.
§ 122.41 AdditIonal conditloni appllcab!e
to all UIC permits.
(Applicable to State UIC programs,
see § 123.7.)
The following conditions, in addition
to those set forth in § 122.7, apply to all
LflC permits and shall be incorporated
into all permits either expressly or by
reference. If incorporated by reference,
i specific citation to these regulations
(or approved State regulations) must be
given in the permit,
(a) In addition to § 122.7(a) (duty to
comply): the pernhittee need not comply
with the provisions of this permit to the
extent and for the duration such
noncompliance is authorized in a
temporary emergency permit under
I 122.40.
(b) In addition to § 122.7(j)(2)
(monitoring and records): the perraittee
shall retain all records concerning the
nature and composition of injected
fluids until five years after completion of
any plugging and abandonment
procedures specified under § 122.42( 1).
The Director may require the owner or
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33440 Federal Register I VoL 45, No. 98/Monday. May 19, 1980 f Rules and Regulations
operator to deliver the records to the
Director at the conclusion of the
retention period.
(c) In addition to 122.7(l)(1) (notice
of planned changes): 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)(1) The Director has inspected or
otherwise reviewed thq new injection
well and finds it is In compliance with
the conditions of the permit or
(ii) The permittee has not received
notice from 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 (c)(1) of
this section, in which case prior
Inspection or review is waived and the
permittee may commence Injection.
(d) The following shall be included as
information which must be reported
wIthin 24 hours under I 122.7(l)(5):
(1) Any monitoring or other
Information which indicates that any
contaminant may cause an
endangerment to a USDW.
(2) Any noncompliance with a permit
condition or malfunction of the injection
system which may cause fluid migration
into or between USDWs.
(e) The permittee shall notify the
Director at least 180 days before
conversion or abandonment of the well.
§ 122.42 EstablishIng UIC permit
conditions. -
(Applicable to State programs. see
§ 123.7.) -
In addition to the conditions
established under § 122.8(a). each UIC
permit shall include conditions meeting
the following requirements, when
applicable:
(a) Construction requirements as set
forth In Part 148. 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 construction may
comnience until a perrwt has been
issued containing construction
requirements (see I 122.33). New wells
shall be in compliance with these
requirements prior to cor:utencing
injection operations. Changes in
construcUon plans during construction
may be approved by the Director as
minor modifications (I 122.17). No such
changes may be physically incorporated
into construction of the well prior to
approval of the modification by the
Director.
(b) Corrective action as set forth In
1122.44 and * 148.7.
(ci Operation requirements as set
forth In 40 CFR Part 148; the permit shall
establish any maximum injection
volumes and/or pressures necessary to
assure that fractures are not Initiated in
the confin g 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
148 operating requirements.
(d) Requirements for wells managing
hazardous waste, as set forth In
§ 122.45.
(e) Monitoring and reporting
requirements as set forth In 40 CFR Part
148. The permittee shall be required to
Identify types of tests and methods used
to generate the monitoring data.
(I) Plugging and abandonment. Any
Class L 11 or LU 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. Any
applicant for a UIC permit shall be
required to 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 p rposes of this
paragraph, temporary Intermittent
cessation of injection operations is not
abandonment.
(g) Financial responsibility. The
permit shall require the perniittee to
maintain financial responsibility and
resources, in the form of performance
bonds or other equivalent form of
financial assurance approved by the
Director, to close, plug, and abandon the
underground injection operation in a
manner prescribed by the Director. In
lieu of indIvidual performance bonds,
operators may furnish a bond or other
equivalent form of financial guarantee
approved by the Director covering all
injection wells m any one State.
(hJ Mechanical integrity. A permit for
any Class I, II, or III well or injection
project which lack. 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 r ‘ r
under § 148.08 that the well has
mechanical integrity.
(I) Additional conditions. The Director
shall impose on a case-by-case bar
such additional conditions as arc
necessary to prevent the migration
fluids into underground sources of
drinking water.
* 122.43 Waiver of requirements by
Director.
(a) When injection does not occur
into, through. or above an underground
source of d.rinkirsg water, the Director
may authorize a well with less stringent
requirements for area of review,
construction, mechanical integrity.
operation, monitonng. and reporting
than required in 40 CFR 146 or § 122.42
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.
(bj When injection occurs into.
through, or above on underground
source of drinithig water, but the radius
of endangering influence when
computed under § 146.06(c) is a negative
number. the Director may authorize a
well with less stringent requirements for
operation, monitoring. ai d reporting
than required in 40 CFR 146 or §
to the extent that the ruduction ir
requirements will not rcsult in an
Increased risk of movement of fluid
into an underground source of drink.
water.
(c) When reducing requirements under
paragraph (a) or (b) of this section. the
Director shall prepare a fact sheet under
§ 124.9 (or equivalent document undo-
State procedures) explaining thu reasons
for the action.
§ 122.44 Corrective action.
(Applicable to State UIC programs.
see § 123.7.1
(a) Coverage. Applicante for Class I. II
(other than existing), or Ill injection WV!i
permits shall identify the location of all
known wells within the injection weIi s
area of review shich pene’.rate the
Injection zone. For such wells which a.e
Improperly sealed, completed, or
abandoned, the applicant shall also
submit a plan CoflsistLng of such steps or
modiflcations as are necessary to
prevent movemer.t of fluid into
underground sources of ir.nldng water
(“corrective ectioa’i. Where the p!u. .:
adequate. the Director shall in orpc.
it intc the permit as a : ndiUon. Wier2
the Director’s review of an application
indicates that the permittee’s plait’
inadequate (based on the factors
§ 146.07) the Director shal require
applicant to revise the plan, prescribe
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 8O I Rules and Regulations
33441
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
I 148.06 (area of review) and § 146.07
(corrective action) when reviewing an
application to permit an existing Class U
well
(b) Requfreinents—(1) Existing
in/ection 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.in ectiov wails. No permit lot
a new in;ccL.on we.il may aLthorize
injection until all required corrective
action has been taken.
(3) injection pressure Jim ftation. The
Director may require as a permit
condition that injection pressure be so
limitec 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
shell satisfy the corrective action
requirement. Alternatively, such
injecticm pressure limitation can be part
of a compliance schedule and last until
afl other required corrective action has
been taken.
f 122.4S Requirements for wells Injecting
hazardous waste.
(Applicable to State UIC programs.
see §122.7.)
(a) Applicability. The regulations in
this section apply to all generators of
hazardous waste, and to tt e owners or
operators of all hazardous waste
management facilities, using any class
of well to inject hazardous wastes
accompanied by a manifest. (See also
§ 122,36.)
(b) Authorization. The owner or
uperdtor of any well that is used to
inject hazardous wastes accompanied
by a manifest or delivery document
shall apply for authorization to inject as
specified in § 122.38 within 5 months
alter the approval of an applicable State
program.
(c) Requirements. In a& tion to
requiring compliance with the
appiicable requirements of this Part and
40 CFR Part 148, Subparts B—F, the
Director shall, for each factiity meeting
the requirements of paragraph (b) of this
section. require that the owner or
operator comply with the following:
(1) Noilficol ion. 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 am’
operator shall comply with the
applicable recordkeeping and reporting
requirements for manifested wastes in
40 CFR I 264.71.
(4) Manifest discrepancies. The owner
or operator shall comply with 40 CFR
§264.72.
(5) Operating record. The owner or
operator shall comply with 40 CFR
§ 264.73(a), (b)(1), and (b)(2).
(6) AnnuoireporL The owner or
operator shall comply with 40 CF.R
§264.7 5
(7) Unman/Jested waste repo.rL The
owner or operator shall comply with 40
CFR I 264.75.
18) Personnel Lrci.aing. 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 § 122.42(f).
(dJ Addition al requirements for Class
IV wells. (ReserredJ.
Subpart D—Additlonal Requiremei’its
for National Pollutant Discharge
Elimination System Programs Under
the Clean Water Act
§ 122.51 Purpose and scope of Subpart 0.
(a) Content of Subpart D. The
regulations In this Subpart contain the
specific requirements for the NPDES
permit program. They apply to EPA. and
to approved States to the extent set
forth in Part 123. Sections of this
Subpart which are applicable to Ste tea
are indicated at the section heading as
follows: (applicable to State NPDES
programs, see § 123.7). The regulations
In this Subpart are supplemental to the
requirements in Part 122. Subpart A.
which apply to all programs.
(b) .4uthority. (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
uriawfbl”
(2) Section 402(a)(1) of CWA provides
In part that ‘he 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 01, 302,
308, 307. 308. and 403 of this Act, or prior
I a 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 specific pollutant or
pollutants under controlled conditions
associated with an approved
aquaculture project under Federal or
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 resdil
in any pollutant from such sewage
sludge entering the navigable waters,
such disposal is prohibited except in
accordance with a permit issued b the
Administrator under section 402 of this
Act.”
(5) Sections 402(b), 318(b) and (c), and
405(c) of CWA authorize EPA approval
of State permit programs for discharges
from point sources, discharges to
aqcaculture projects, and disposal of
sewage sludge.
(6) Section 304(i) of CWA 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 enforcemort
of any regulation, standard, effluent
limitation, plan. or program estab he.
by the Administrator or any State un .cr
this Act shall be provid d for,
encouraged. and assisted by t e
Administrator and the States. The
Aciministra tar, in cooperation with Le
States, shall develop and publish
regulations specifying mir.irnum
guidelines for public participation in
such processes.”
(c) Scope of the NPDESpe it
requiremenL 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
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33442 Federal Register I Vole 45. No. 98 1 Monday. May 19. 1980 I Rules and Regulations
“waters of the United States” are
defined in § 122.3.
(1) Specific inclusions. The follo*ing
are point sources requiring NPDES
permits for discharges:
(I) Concentrated animal feeding
operations as defined In 122.54:
(ii) Concentrated aquatic animal
production facilities as defined in
122.55:
(iii) Discharges Into aquiculture
projects as set forth in § 122.56;
( Iv) Discharges from separate storm
sewers as set forth in 122.57; and
(v) Silvicultural point sources as
defined in 122.58 .
- (2) Specific exclusions. The following
discharges do not require NPDES
permits:
(I) 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 facihty, 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.
(I I) Discharges of dredged or fill
material into waters of the United States
which are regulated under sectiçn 404 of
CWA.
(iii) 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
122.10(c).) This ex uslon does not
apply to the Introduction of pollutants to
privately owned treatment works or to
other discharges throngh pipes, sewers,
or other conveyances owned by a State.
municipality, or other party not leading
to treatment works.
(lv) Any discharge in compliance with
the Instructions of an On-Scene
Coordinator pursuant to 40 CFR 1510
(The National Oil and Hazardous
Substances Pollution Plan) or 33 CFR
153.10 (e) (Pollution by Oil and.
Hazardous Substances).
(v) Any introduction of pollutants
from non-point-source agricultural and
silvicultural activities, Including runoff
from orchards, cultivated crops,
pastures. range lands. and forest lands,
but not discharges from concentrated
animal feeding operations as defined In
122.54, discharges from concentrated
aquatic animal production facilities as
defined in * 122.55, discharges to
aquiculture projects as defined In
a 122.56, and discharges from
ailvicuitural point sources as defined in
a 122.58.
(vi) Return flows from Irrigated
agriculture.
(vii) Discharges Into a privately
owned treatment works, except as the
Director may otherwise require under
I 122.82(m).
I 122.52 ProhIbitions.
(Applicable to State NPDES programs.
see I 123.7.)
No permit may be Issued:
(a) 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 I 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 123.76
(d) When the Imposition of conditions
cannot ensure compliance with the
applicable water quality requirements of
all affected States:
(a) When, in the judgment of the
Secretary, anchorage and navigation in
or on any of the waters of the United
States would be substantially imceired
by the discharge:
(I) 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:
( ) 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
insuffictent Information exists to made 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 car
contribute to the violation of wa
quality standards. The owner or
operator of a new source or new
discharger proposing to discharge’
water segment which does not met
applicable water quality standards ofiS
not expected to meet those standards
even after the application of the effluent
limitations required by section
301(b)(1)(A) and 301 (b)(1)(B) of CWA,
and for which the State or interstate
agency has performed a pollutant load
allocation for the pollutants to be
discharged, must demonstrate, before
the close of the public comment period,
that:
(1) There are sufficient remaining
pollutant load allocations to allow [ or
the discharge: and
(2) The existing diechargers into that
segment are subject to compliance
schedules designed to bring the segment
into compliance with applicable’water
quality standards.
* 122.53 ApplicatIon tots permit.
(Applicable to State NPDES programs
except for paragraphs (b), (c) and (h);
see 123.7.)
(a) Duty to apply. Any person who
discharges or proposes to discharge
pollutants and who does not have an
effective permit, except persons c’
by general permits under I 122.5€
excluded under 122.51. or a user
privately owned treatment works u.
the Director requires otherwise unde.
I 122.02(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 122.4. paragraphs (b) through (h)
of this section, and Part 124.
(b) Time to oppiy. 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 (h).
(c) Duly toreapply. (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 cur”
effective permita shall submit a ri
application In accordance with th.
be1ow
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3 43
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N
- Dss
S
I w t n — 150 i bulais
— —
(d) AppiicoLion requirements for
existing manufacturing, commercial.
mining, and siMculturoi dischorgers.
Existing manufacturing, commercial.
mining, and silvicultural diachargers
applying for NPDES permits shall
provide the following Information to the
Director. using application fonts
provided by the Directon
(1) Outfall location. The latitude and
loigitude 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 (d)(3) of
this section. The water balance must
show approximate average flaws at
intake and discharge points and
between units, including treatment units.
Ifs water balance cannot be determined
gor example. for certain inming
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) Average flows and treatmenL 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
storm water runoff the average flow
which each process contrlbutes 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 (dJ(3)
of ds section are Intermittent or
seasonal, a description of the frequency,
duration and flow rate of each discharge
occurrense (except for storm water
runoff, spillage, or leaks).
(5) Maximum production. If an
effluent guidelinp promulgated under
sectIon 304 of CWA applies to the
app!k.ant and is expressed in terms of
production (or other measure of
operation), a reasonable measure of the
applicant’s actual production reported hi
the units used in the applicable effluent
guideline. The reported meaiiure must
reflect the actual production of the
facility as required by I 122.5 (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
subparagraph. When “quantitative
data” for a pollutant Is req ,nred. the
applicant must collect a sample of
effluent and analyze it for the pollutant
in ac.or dance 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 as’
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 outfalis. The requirements In
paragraphs (d)(7) (lii] and (iv) of this
secticn 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 coliforni. 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 (acuity.)
(l)(A) Every applicant must report
quantitative data for every outfall for
the followng pollutants:
(I) Biochemical Oxygen Demand
(BOD 1 )
(2) ChemIcal Oxygen Demand
(3) Total Organic Carbon
(4) Total Suspended Solids
(5) AmmonIa (as N)
(6) Temperature (both winter and
summer)
17) pH
(B) At the applicant’s request, the
Director may waive the reporting
requirements for one or more of the
pollutants listed In paragraph (d)(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
pothttants in euch outfall containing
process wastewa ter.
(A) The organic toxic pollutants in the
fractions designated in Table I of
Appendix D for the applicant’s
industrial category or categories unless
the applicant qualifies as a small
business under paragraph (d(8) of this
section. Table I I of Appendix D lists the
organic toxic pollutants in each fraction.
The fractions result from the sample
preparation required by the analytical
procedure which uses gas
chromotograph jmass 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’. Inclusion in that category for
any other purposes.
(B) The pollutants listed in Table lii of
Appendix D (the toxic metals, cyanide.
and total phenols).
(I ii) 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 U or
Table Ill of Appendix D (the toxic
poLlutants) for which quantitative data
is not otherwise required under
paragraph (d)(711h1) of this section except
that an applicant qualifying as a small
business under paragraph (d)(8) of this
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33444 Federal RegIster / Vol. 45. No. 98 / Monday. May 19, 1980 / Rules and Regulations
section Is not required to analyze for the
pollutants listed in Table II of Appendix
I) (the organic toxic pollutants).
(B) All pollutants In Table IV of
Appendix D (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 (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 expected to be
discharged, and report any quantitative
data It has for any pollutanL
(v) Each applicant must report
qualitative data, generated using a
screening procedure not calibrated with
analytical standards, for 2.3,7,8-
tetrachlorodlbenzo-p-dloxln (TCDD) If
It;
(A) Uaes or manufactures 2.4.5-
trichiorophenoxy acetic acid (2.4.5.T): 2—
(2,4.5-trichiorophenoxy) propanoic acid
(Silvex. Z.4.5.TP); 2-(2.4,5-
trichlorophenoxy) ethyl 2.2-
dichloroproplonate (Erbon):
O,O-diznethyl O-(2,4,5-trichlorophenyl)
phosphorothloate (Ronnel); 2,4.5-tn.
chiorophenol (TCP); or hexachlorophene
(Ht P); or
(B) Knows or has reason to believe
that TODD 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 (d)(7)(ii)(A) or
(d)(7)(iii)(A) of this section to submit
quantitative data for the pollutants
listed In Table U of Appendix D (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
$100,000 per year (in second quarter
1980 dollars).
(9) Used or manufactured toxics. A
listing of any toxic pnllutant 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) Potezi tb! 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
(d)(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 year. on any of the
applicant’s discharges or on a receiving
water In relation to a discharge.
(12) Contract o.nolyses. If a contract
laboratory or consulting firm performed
any of the analyses required by
paragraph (d)(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
bloaaeays’to assess the relative toxicity
of discharges to aquatic life and
requirements to determine the cause of
the toxicity.
(e) Application requirements for new
and existing concentrated animal
feeding operations and aquatic animal
production facilities. New and e istlng
concentrated animal feeding operations
(defined In 122.54) and concentrated
aquatic animal production facilities
(defined In * 122.55) shall provide the
following Information to the Director, -
using the application form provided by
the Directon -
(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.
(Lii) 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, raceway.,
and sImilar structures.
(lii) The name of the receiving water
and the source of Intake water.
(lv) For each species of aquatic
animals, the total yearly and maximum
harvestable weight.
(v) Thc calendar month of maximum
feeding and the total mass of food fed
during that month.
(I) Application requirements for new
and existing POTWs. (Reserved.)
fg) Application requirements for new
8OUfCS5 and new diuchargers.
(Reserved.) -
(h) Special provisions for applications
from new sources.
(1) The owner or operator of
facility which may be a new so a
defined In 122.3) and which Is located
In a State without an approved NP’
program must comply with the
provisions of this paragraph.
(2)(I) Before beginning any on-sit 1
construction as defined in 122.86. 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 Adminstrator 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 fadlity Is a new source within 30
days of receiving all necessary
information under paragraph (h)(2)(I) of
this section.
(3) The Regional Administrator shall
issue a public notice in accordance with
0 124.10 of the new source determination
under paragraph (h)(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 Part 8.600 et seq.
(4) Any Interested person may
challenge the Regional Adminis
initial new source determination b
requesting an evidentiary hearing
Subpart E of Part 124 within 30 da, a
issuance of the public notice of the
Initial determination. The Regional
Administrator may defer the evident ary
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.
(I) Variance requests by non -POTWs.
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”lroin those on which the
effluent limitations guideline was based
shall be made by the close of the pu .ic
comment period under 124.10. T a
request shall explain how the
requirements of * 124.13 and 40 CFR
Part 125, Subpart D have been met.
(2) Non-con ventionol pollutants. A
request for a variance from the P
requirements for CWA section
301(b)(2)(F) pollutants (commonly ... -
“non-conventional” pollutants) pursuant
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Federal Register I Vol. 45. No. 98 I Monday, May 19, 1980 / Rules and Regulations
33445
to section 301(c) of CWA because oi 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 discharger, the permit
number, the outfall number(s), 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:
(A) September 25. 1978, for a pollutant
wh3ch 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)(li) of this section
and need not be preceded by an initial
request under paragraph (i)(2)(i) of this
section.-
(3) Delay in construction of P07W.
An extension under CWA section
301(l)(2) of the statutory deadlines in
sections 301(b)(1)(A) or (b)(1)(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 U)(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 requrements of 40 CFR
Part 125, Subpart J have been met.
(4) Innovative technology. An
extension under CWA section 30 1(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
limftotions. A modification under
section 302(l,)(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)(1) or are based on water quality
standards the request for a variance
may be filed by the close of the public
comment period under § 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.)
(1) Variance requests by POTWs. 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
preliminary request for a modification
under CWA section 301(h) of
rpquirenrents of CWA section -
301(b)(1)(B) for discharges into marine
vaters must have been submitted to the
Agency no later than September 25,
1978. A final request must be submitted
In accordance with the filing
requirements of 40 CFR Part 125.
Subpart C, after that Subpart is
promulgated, and shall demonstrate that
all the requirements of 40 CFR Part 125,
Subpart C have been met. (See § 124.64
for special rules for CWA section 301(h)
modifications.)
(2) Delay in construction. An
extension under CWA section 301(i)(1)
of the statutory deadlines in CWA
sections 301(b)(1)(B) or (b)(1)(C) based
on delay in the construction of the
POTW must have been requested on or
before June 28, 1978.
(3) Water qudily based effluent
limitation. A modificatIon under CWA
section 302(b)(2) of the requirements
under section 302( 8) for achieving water
quality based effluent limitations shall
be requested no later than the close of
the public comment period under
§ 124.10 on the permit from which the
modification is sought.
- (k) Expedited variance procedures
and time extensions. (1)
Notwithstanding the time requirements
In paragraphs (I) and (j) of this section,
the Director may notify a permit
applicant before a draft permit s Issued
under I 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
paragraphs (l)(2)(ii) or (i)(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.
§ 122.54 Concentrated animal feeding
eperatlons.
(Applicable to State NPDES programs,
see § 123.7.)
(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 cf the lot or facility.
(2) Two or more animal feeding
operations under common ownership
are considered, for the purposes of these
regulation., 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, or which the Director
designates under paragraph (c) of this
section.
(c) Cose-by.cose designation of
concentrated animolfeeding 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
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!3446 -- Federal Register I Vol. 45, No. 98 1 Monday, May 19, 1980 / Rules and Regulations
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 States:
(H) The location of the animal feeding
operation relative to waters of the
United States:
(iii) The means of conveyance of
anim I wastes and process waste
waters into waters of the United States:
( lv) 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 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.
O 122.55 Concentrated aquatic animal
production faculties.
(Applicable to State NPDES programs.
see 0 123.7.)
(a) Permit requirement Cuncenfrated
aquatic animal production facilities, as
defined in this section. are point sources
subject to the NPDES permit program.
(b) Definition. “Concentra ted aquatic
animal production facility” means a
hatchery, fish farm, or other facility
which meets the criteria in Appendix C,
or which the Director designa’es under
paragraph (c) of this section.
(c) Case-by-case designation of
concentmted 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:
( I) The location and quality of the
receiving waters of the United States;
(ii) The holding, feeding, and
production capacities of the facility
( II I) 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
baa conducted on-site Inspection of the
facility and has determined that the
facility should and could be regulated
wider the permit program.
• 122.58 Aquiculture projects.
(Applicable to State NPDES programs,
see § 123.7.
(a) Permit requirement Discharges
Into aquaculture projects, as defined In
this section, are subject to the NPDES
permit program through section 318 of
CWA. and In accordance with 40 CFR
Part 125, Subpart B.
(b) Definitions. (1) “Aquacultuje
project” means a defined managed
water area which uses discharges of
pollutants into that designated area for
the maintenance or production of
harvestable freshwater, estuarini, 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-
plan 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 aquiculture crop will enjoy increased
growth attributable to the discharge of
pollutants, and be harvested within a
defined geographic area.
0122.57 Separate storm sewers.
(Applicable to State NPDES programs,
see § 123.7.)
(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 0 122.59). An
NPDES permit for discharges into
waters of the United States from a
separate storm sewer covers all
conveyances 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 char.nels)
primarily used for collecting and
conveying storm water runoff am. A
Is either
(I) Located In an urbanized areas
designated by the Bureau of the Ce
according to the criteria in 39 PR 15
(May 1, 1974); or
(H) Not located in an urbanized area
but designated under paragraph (c) of
this section.
(2) Except as provided in paragraph
(b)(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 cogtaminated 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 pannits but are not
separate storm sewers.
K) Whether a system of conveyances
is or is not a separate storm sewer
purposes of this section shall hoyt
bearing on whether the system is
eligible for funding under Title II of
- CWA see 40 CFR § 35.925-21.
(c) Case-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 efflue L
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 contrlbe!cr
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;
(u) The size of the discharge;
(iii) The quantity and nature of the
pollutants reaching waters of the Uni:ed
States: and
(lv) Other relevant factors.
*122.58 SlMculturai activities.
(Applicable to State NPDES pro
see 0 123.7.)
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FederalS Register / Vol.
45. No. 98 / Monday. May 19, 1980 / Rules and Regulations
33447
(a)Perrnit requirement. Silvicultural
point sources, as defined in this section.
are point sources subject to the NPDF.S
permit program.
(b) Definitions. (1) “Silvicuitural 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 strean crossing for roads) may
involve point source discharges of
dredged or fill material which may
require a CWA section 404 permit (see
33 CFR V 209.120 and Part 123, Subpart
E).
(2) “Rock crushing and gravel washing
facilities” means facilties which process
crushed and broken stone, gravel, and
riprap Ieee 40 CFR Part 436, Subpart B.
including the effluent limitations
guidelines).
(3) “Log sorting and log storage
facilit 1 es” 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 J, -
including the effluent limitations
guidelines).
V 122.59 General permits.
(Applicable to State NPDES programs,
see V 123.7.)
(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:
(lii) city, county, or State political
boundaries;
(iv) State highway systems;
(v) Standard metropolitan statistical
areas as defined by the Office of
Management and Budget
(vi) Urbanized areas as designated by
the Bureau of the Census according to
criteria in 30 FR 15202 (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 (s)(1) of this
section, either.
(I) Separate storm sewers: or
(ii) A category of point sources other
than separate storm sewers If the
sources all:
(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) Adrninistrotion.—(1) 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-
V 123:76 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 subparagraph. 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 V 122.57(c)(2):
(B) The discharger is not in
- compliance with the conditions of the
ge.neral 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 point
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) Fos’ EPA issued general permits
only, the Regional Administrator may
require any owner or 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 that 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.
(II I) 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 V 122.53, 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 sn 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.
{ 122.60 AddItional conditions applicable
te all P1POES Permits.
(Applicable to State NPDES programs.
see V 123.7.)
The following conditions, In addition
to those set forth in V 122.7, apply to all
NPDES permits:
(a) In addition to V 122.7(a) (duty to
comply):
(1) The permittee shall comply with
effluent standards or prohibitions
established under section 307(a) of the
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 to
Incorporate the requirement.
(2) The Clean Water Act provides that
any person who violates a permit
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Federal Register I Vol . 45, No. 98 / Monday, May 19, 1.980 I Rules and Regulations
condition Implementing sectIons 301,
302,308,307,301318, or 408 of the Clean
Water Act Ii subject to a civil penalty
not to exceed $100,000 per day of such
violation. Any person who willfully or
negligently iolates permit conditions
Implementing sections 301,302,306, 307,
or 308 of the Clean Water Act Is subject
to a line of not less than $2,500 nor more
than $25,000 per day of violation, or by
Imprisonment for not more than 1 year,
or both.
(b) In addition to § 1223(c) (duty to
halt or reduce activity), upon reduction,
loss, or failure of the treatment facility,
the ermlttee 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.
(c) In addition to § 122.7(j)
(monitoring):
(1) Monitoring must be conducted
according to test procedures approved
under 40 CFR Part 138, unless other test
procedures have been specified In this
permit.
(2) 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 a
months per violation, or by both.
(d) In addition to § 122.7(k)
(signatories): the Clean Water Act
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
$10,000 per violation, or by
Imprisonment for not more than 8.
months per violation, or by both.
(e) In addition to I 122.70X3)
(monitoring reports):
(1) Monitoring results must be
reported on a Discharge Monitoring
Report (DMR).
(2) If the permute. monitors any
pollutant more frequently than required
by the permit, using test procedures
approved under 40 CFR 138 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.
(3) CalculatIons for all limitations
which require averaging of
measurements shall utilize an arithmetic
mean unless otherwise specified by the
Director In the permit.
(f)(1) The following shall be included
as Information which must be reported
within 24 hours under § 122.7(l)(5) (24-
hour reporting):
(I) Any unanticipated bypass which
exceeds any effluent limitation in the
permit. (See 122.60(g) below.)
(Ii) Any upset which exceeds any
effluent limitation in the permit.
(Ill) 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 I 122.62(g).)
(2) The Director may waive the
written report on a case-by-case basis If
the oral report has been received Within
24 hours.
(g) Bypass—(1) Definitions. (I)
“Bypass” means the Intentional
diversion of waste streams from any
portion of a tràtment facility.
(11) ‘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 Byposs not exceedi. .g 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 (g)(3) and (g)(4)
of this section.
(3) Notice.—(i) An Sicipoled bypass. If
the pernlittee knows In advance of the
need for. bypass, It shall submit prior
notice. If possible at least ten days
before the date of the bypass.
(II) Unaoticipatedb oss The
permittee shall submit notice of an
unanticipated bypass as required in
paragraph (1) 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 feasihL
alternatives to the bypass, such as the
use of auxiliary treatn ent facilities.
retention of untreated wastes, or
maintenance during normal periods of
equipment downtime. This conditior. is
not satisfied If the permittee could have
installed adequate backup equipment to
prevent a bypass which occurre
normal periods of equipment do
or preventive maintenance: and
(C) The permittee submitted noti
as required under paragraph (g)(3)
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
(g)(4)(I) of this section.
(h) UpseL—(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 upseL An upset
constitutes an affirmative defense to an
action brought for noncompliance with
such technology-based permit effluent
limitations If the requirements of
paragraph (b)(3) of this section are met.
No determination made during
administrative review of claims t’
noncompliance was caused by ur.
and before an action for noncompli
Is final administrative action subjec.
judicial review.
(3) Conditions necessary for ci
demonstration of upset. A permittee
who wishes to establish the aflirmative
defense of upset shall demonstra:e.
through properly signed,
contemporaneous operating logs, or
other relevant evidence that:
(I) An upset occurred and that the
permittee can identify the speciflc
cause(s) of the upset:
(II) The permitted facility was at the
time being properly operated; and
(ill) The perniittee submitted notice cf
the upset as required in paragraph (I) of
this section (24-hour notice).
(iv) The permittee complied with any
remedial measures required under
I 122.7(d).
(4) Burden of proof In any
enforcement proceeding the permittee
seeking to establish the occurrence of an
upset has the burden of proof.
f 122.61 AddItional conditions applicable
to sp.clfl.d categories of NPOES pemuts.
(Applicable to state NPDES programs.
see § 123.7.)
The following conditions, in ath
to those set forth in § 122.7 and §
apply to all NPDES permits within the
categories specified below:
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33449
(a) Existing manufacturing.
commerciaL mining, and elf viculfuroi
dischargers. In addition to the reporting
requirements under 122.7(l) and
122.60, all aststlng manufacturing.
commercial. mining, and slivicultural
dlschargers must notify the Director as
soon as they know or have reason to
believe:
(1) That any actlvãty has occurred or
will occur which would result In the
discharge of any to,dc 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 pg/I);
(ii) Two hundred micrograms per liter
(200 pg/i) for acrolein and acrylonitrile:
five hundred micrograms per liter (500
pg/i) for 2.4 -dinitrophenol and for 2.
e iethyl4.5-dinitrophenol; and one
milligram per liter (1 mg/i) for
antimony.
(W) Five (5) times the maximum
concentration value reported for that
pollutant In the permit application in
accordance with §122.53(d)(7) or
122.53(d)(iO): or
(lv) The level established by the -
Director In accordance with 122.82(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 122.53(d)(9).
(b) Pubiidy owned treatment works.
All POTWs must provide adequate
notice to the Director of the following:
(1) Any new Introduction of pollutants
into that POTW from an indirect
discharger which would be subject to
sections 301 or 306 of CWA If it were
dlrectl3r 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 (ii) any anticipated impact.
of the change on the quantity or quality
of effluent to be discharged from the
pOTw.
122.62 EstablIshing NPDES permit
cond itions.
(Applicable fo State NPDES programs,
see 1.23.7.)
In additicn to the conditions
established under 122.8(a), each
Nrua. permit shall Include conditions
meeting the following requirements
when applicable.
(SJ £ WUUKY-UU U eyjiuwi
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)(i) of
CWA. or on a combination of the two, In
accordance with 125.3. For new
sour es or new dlschargers, these
technology based limitations and
standards are subject to the provisions
oIl 122.67(d) (protection period).
(li) Other effluent limitations and
standards nuder sectIons 301,302.303,
307.3* 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 122.60(a).
(a) Reopener douse: 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, 2981: (1) U
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
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)(1) of this section.
(3) The Director shall promptly modify
or revoke and Teiuue any permit.
containing the clause required under
paragraph (c)(1) of this section to
Incorporate an applicable effluent
standard or limitation under sections
$01(b)(2) (C) and (0), 304(bJ(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
I 124.53 when EPA Is the permit Issuing
euthority however, If a State
certification is stayed by a court of
competent Jurisdiction or appropriate
State board or agency. EPA shall include
conditions in the permit which may be
necemary 10 meet EPA’s obligation
under section 301(b)(1)(C) of CWA
(4) Conform to applicable waier
quality requirements under section
401(a)(2) of CWA when the discharge
affects a State other than the ertifymg
State;
(5) lncorpora 4 e any more ,ithngcnt
limitations, treatment standavds. or
schedule of compliance requirements
establii.hed under Federal or State law
or regulations in accordance with
secti n301(b)(1)(C) of CWA:
(6) Ensure canals ter cy with the
requirements of a Water Qu 1ity
Managenent plan approved by EPA
under section 208(b) of CWA
(7) Incorporate section 403(c) criteria
under Part 1.25, Subpart M. for ocean
discharges:
(6) Incorporate alternative effluent
limitations or standards whrre
warranted by “fundamentally different
factors.” under 40 CFR Part 125. Sub1 Lrt
(0) Incorporate any other
requirements. conditions, or limitations
Into a new source permit under the
National Environmental Policy Act 4:
U.S.C. I I 4321 et seq. and section 511 of
CWA, when EPA is the permit issuing
authority (see I 122.66).
(e) Toxic pollutanta limitations
established under paragraphs (a). (b), or
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33450
Federal Register / Vol. 45, No. 98 I Monday; May 19 , 1980 I Rules and Regulations
(d) of this section, to control pollutants
meeting the criteria listed In paragraph
(e)(1) 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
sheet under I 122.56(b)(1)(i)
(1) Limitations must control all toxic
pollutants which:
(I) The Director determines (based on
Information reported In a permit
application under I 122.53(d) (7) or (10)
or in a notification under I 122.61 (a)(1)
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
permlttee under § 125.3(c); or
(I I) The discharger does or may use or
manufacture as an Intermediate or final
product or byproduct.
(2) The requirement that the
limitations control the pollutants
meeting the criteria of paragraph (e)(1)
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)(1) of this section to
the levels required by I 125.3(c).
(I) Notification level: a “notification
level” which exceeds the notification
level of I 122.61(a)(1) (I), (ii), Ot (ill).
upon a petition from the permittee or 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 5 125.3(c).
(g) Twenty-four hour reporting:
Pollutants for which the permittee must -
report violations of maximum daily
discharge limitations under 5 122.60(f)(3)
(24-hour reporting) shall be listed as
such 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 55 122,9(a) and 122.54. -
(I) Monitoring requirements: In
addition to 5 122.11, the fdllowtng
monitoring requirements:
(1) To assure compliance with permit
limitations, requirements to monitor
(I) The mass (or other measurement
specified in the permit) for each
pollutant limited in the permit;
(II) The volume of effluent discharged
from each outfall;
(lii) Other measurements as
appropriate; Including pollutants In
Internal waste streams under 5 122.63( 1);
pollutants in intake water for net
limitations under 5 122.63(f); frequency,
rate of discharge, etc., for noncontinuous
discharges under 5 122.63(e); and
pollutants subject to notification
requirements under 5122.61(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.
U) Pretreatment pa gram for POTWa.
Requirements for POTWs to:
(1) Identify, In terms of character and
volume of pollutants, any significant
Indirect diachargers into the POTW
subject to pretreatment 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
andllary 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
(l)(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
reissuance under I 122.15).
(2) When effluent limitations were
imposed under section 402(a)(1) 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 e
effluent limitations In the prey
permit and hae properly operat
maintained the facilities but has,
nevertheless been unable to achi
previous effluent limitations. In thlà -tfse
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 rohlblts permit conditions
more stringent than an applicable
effluent limitations 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 I 122.15: or
(v) There Is Increased production at
the facility which results In significant
reduction In treatment efficiency. In
which case the permit limitations will be
adjusted to reflect any decreased
efficiency resulting from Increas’
production and raw waste loadi
no event shall permit limitations
stringent than those required by
subsequently promulgated standards
and limitations.
(in) 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 per:riit issued tc
the treatment works to ensure
compliance with applicable
requirements 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 i.n
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 CW
(o) Sewage sludge. Requlreme
under section 405 of CWA gove
disposal of sewage sludge from,
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Federal Register ! Vol. 45, No. 98 1 Monday, May ‘19, ‘1980 1 Rules and Regulations
24S1
• owned treatment works, iii accordance
with any applicable regulations.
( J 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 witn 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.
• 122.63 CalculatIng NPOES permit
Conditions.
(Applicable to State NPDES programs.
see * 723.7.)
(a) Outfall: cnd discharge po ints. 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 122.82(k)(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.
(2J 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 far the highest of the previous 5
yearr. For new sources or new
dlschargers. 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 prohibLtions
for a metal shall be expressed in 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 lii 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
discbargers other than publicly owned
treatment works; and
12) Average weekly and average
monthly discharge limitations for
POTWa.
le) Non -continooris discharges.
Discharges which are not continuous, as
defined In 122.3, 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];
12) Total mass (for example, not to
exceed 100 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 ldlograins of
zinc per minute): and
(4) Th ohibition or limitation of ‘ -
specified pollutants by mass.
concentration, or other appropriate
measure (for example, shall not contain
at any time more than 0.1 nigh zinc or
more than 250 grams (114 Idlogram) of
zir.c In any discharge).
(I) Moss J.irnibalians. (1) All pollutants
limited in permits shall have limitetinns.
standards. or prchibitinns expressed in
terms of mass except
(i) For pli. temperature, radir.tion. or
other pollutants which cannot
appropriately be expressed by meen
(H) When applicable standards and
limitations are expressed In terms of
other units of measurement or
(lii) 11 In establishing permit
limitations on a case-by-case basis
under I 125.3, limitations expressed In
terms of mass are Infeasible because the
mass of the pollutant discharged cannot
be related to a measure of cperatbn (for
example. discharges of ISS 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 texs of
other units of measurement. and the
permit shall require the pennitlee to
comply with both limitations,
(g) Poll otan r in intake water. Except
as provided In paragraph (h) of this
section, effluent limitations imposed IS
permits shall not be adjusted lot
pollutants In the inta]ce water.
(h) Net limitations. (1) Upon request
of the discharger, effluent limitations or
standards lmposedjn 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 ifi
(1)(A) The applicable effluent
limitations and standards contained in
40 CFR Subchapter b 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 -
(H) The permit contains conditions
requiring:
(A) The permittee to conduct
cidditional monitoring (for example. icr
flow and concentration of pollutants) as
necessary to determine ccntlnued
eligibility for and compliance with any
euch adjustments; and
(B) The permittee to notify the
Director if eligibility for an adjustment
under this section has been altered or no
longer exists. lu that case, the permit
may be modified accordingly under
*122.15.
(2 Permit effluent limitations or
standards adjusted under this paragraph
shall be calculated on the basis of the
ameunt of pollutants present after any
treatment steps have been performed an
the intake hater by or for the
discharger. Adjustments under this
paragraph shall be given only to the
extent that yollutants 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 shall not be adjusted to the
extent that the pollutants In the intake
water vary physically. chemically, or
blological]y from the pollutants limited
In the permiL Nor shall effluent
lmitatiens cr standards be adjusted to
the e, tenc that the discharger
sigr.if.cantly Increases concentrations of
pcllutants In the intake water, even
t u h 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. In those instances, the
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33452
Federal Register I VoL 45. No. 98 / Monday. May 19. 1980 / Rules and Regulations
monitoring required by * 122.82(i) shall
also be applied to the internal waste
streams.
12) LImits on internal waste streams
will be imposed only when the fact
sheet under I 124.58 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 dlluted 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 wells,
into POTWs, or by land application.
Permit limitations and standards shall
be calculated as provided in { 122.65.
122.64 Duration f certain NPDES
permits. -
(Applicable to State NPDES programs,
see 123.7.)
(a) On or before June 30, 1981, any
permit issued to a discharger in a
primary industry category (see
Appendix A):
(1) Shall meet one of the following
conditions:
(I) Expire on June 30. 1981:
(II) Incorporate effluent standards and
limitations applicable to the disch.arger
which have been promulgated or
approved under sections 301(b)(2) (C)
and (D), 304(b)(2), and 307(aJ(2) of CWA
or
(Iii) incorporate the “reopener clause”
required by I 122.62(c)(1), and effluent
limitations to meet the requirements of
sections 301(b)(2) (A), (C), (I)), (E), and
(F) of CWA.
(2) Shall not be written to expire after
June 30, 1981 unless the discharger has
submitted to the Director the
Information requirud by
§ 122.53(d)(7)(ii).
(b) 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.
(c) A determination that a particular
discharger falls within a gIven industrial
category for purposes of setting a permit
expiration date under paragraph (b) 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.
f 122.65 DIsposal of pollutants Into wells,
Into publicly owned treatment works, or by
Innd application.
(Applicable to State NPDES programs,
sac § 123.7.)
(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
M’DES 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)(1) 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 lilitations
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:
P—ExN/T
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 of the
United States, and T Is the total
wastewater flow.
(b) Paragraph (a) of this section shall
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 dispoaal into
POTWs.
(c) Paragraph (a) of this sec a
not alter a discharger’s obllgat
meet any more stringent requlrern ji s
established under * 122.7, * 122’
* 122.60, 0 122.81, and I 122.62.
*122.66 New sources and new
dlschargers.
(a) Definitions. (1) “New source” and
“new discharger” are defined in * 122.3.
(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 source or a new
discharger.
(4) ‘Site” Is defined in I 122.3;
(5) “Facilities or equipment” means
buildings, structures, process or
production equipment or machinery
which form a permanent part of the ne
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
feasibility, engineering, and design
studies regarding the source or water
pollution treatment for the source.
(b) Criteria for new source
determination. (1) The followlnr
construction activities result in
source:
(I) Construction of a source on
at which no other source Is locate
(ii) Construction on a site at whicti
another source Is located of a building.
structure, facility,’or installation from
which there is or may be a discharge oi
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, replaccs.
or adds to existing process or
production equipment.
(3) Construction of a new source as
defined under I 122.3 has commenced if
the owner or operator has: (I) Begun. or
caused to begin as part of a continous
on-site construction program:
(A) Any placement, assembly,
installation of Facilities or equipi
(B) Significant site preparation
including clearing, excavation, or
removal of existing buildings, structures.
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Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations
33453-
or 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 facilities
or equipment which are intended to be
used in 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.
(c] Requirern ant 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 (NEPAl, 33 U.S.C.
4321 et seq. and is subject to the
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 § 122.53(h)
(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 changedi
(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 EIS-related requirements, or
before execution by the applicant of a
legally.blndlng 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
h pacL The provisions of any agreement
entered into under this paragraph shall
be incorporated as conditjons 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
determineJ by the Regional
Administrator not to cause significant
adverse environmental impacts.
(5) The permit applicant must notify
the Regional Administrator of any on-
site construction which begins before
the times specified In paragraph (c)(4) of
this section. 11 onsite 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(bJ(2) of CWA for the soonest
ending of the following periods:
(I) Ten years from the date that
construction Is completedi
(ii) Ten years from the date the source
begins to discharge process or other
nonconstruction-related wastewater or
(iii) The period of depreciation or
amortization of the facility for the
purposes of section 187 or 169 (or both)
of the Internal Revenue Code of 1954.
(2) The protection from more stringent
standards of performance afforded by
paragraph (d)(1) of this section does not
apply to:
(i) Additional or more stringent permit
conditions which an 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 permjt conditions in
accordance with § 125.3 controlling
toxic pollutants or hazardous
substances which are not controlled b ’
new source performance staddards. 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)(1) 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 shall be allowed except
when necessary to 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 permit 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.
Appendix A to Part 122—NPOES Pthua,y
Industzy Categories
Any permit Issued after June 30.198110
dlschargers in the following categories shall
include effluent limitations and a compliance
schedule to meet the requirements of section
mUb)(2) (A), (C). (D). (E) and (F) of CWA.
whether or not applicable effluent limitations
guidelines have been promulgated. See
122.62 and 122.64.
Industvy Calegozy
Adhesives and Sealants
Aluminum Forming
Auto and Other Laundries
Battety Manufacturing
Coal Mining
Coil Coaling
Copper Forming
Electrical and Electronic Components
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p454
Federal Register I Vol. 45. No. 98 / Monday. May 19, 1980 I Rules and Regulations
Electroplating
Explosive. Manufacturing
Foundries
Gum and Wood Chemicals
Inorganic chemicals Manufacturing
Iron and Steel Manufacturing
Leather Tanning and Finishing
Mecharti ’-ai Products Manufacturing
Nonferrous Metals Manufactunng
Ore ?.Uning
Organic Chemicals Manufacturing
Paint and Ink Formulation
Pesticide.
Petroleum Refining
Pbsrmaceullcal 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 Eta Part 122—Criteria fat
Determining a Concentrated Animal Feeding
Operation ( 122.54)
An animal feeding operation is a
concentrated animal feeding operation for
purposes of 122.54 if either of the following
criteria are met.
(a) More than the numbers of animals
specified in any of the following categories
are confinedi
(1) 1.000 slaughter and feeder cattle,
(2) 700 mature dairy cattle (whether milked
or dry cows), -
(3)2.300 swine each weighing over 25
kilograms (approximately 55 pounds).
(4) horses,
(5)10.000 sheep or lambs.
(0)55,000 turkeys.
‘(7) 100.000 laying liens or broilers (if the
facility has con nuous overflow watering).
(8) 30.000 laying hens or broilers (if the
facility has a liquid manure hondling 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 iwine each weighing over 25
kilograms (approximately 55 pounds),
(4) 150 horses,
(5) 3Q00 sheep or lambs.
(6)18,500 turkey,.
(7) 30,000 layIng hens or broilers (11 the
facility ha. continuous overflow watering),
(8)9.000 laying hens or broilers (if the
facility has a liquid manure handling system).
(9) 1.5w ducks, or
(10) 300 L’thnal 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 manmade 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 suck animal
feeding operation discharges only in the
event of eEl year. 24-hour storm event.
The term anlmal imir means a imit of
measurement for any animal feeding
operation caldulated 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 th . number of horse, multiplied by 2.0.
The Ier “manmade’ means constructed
by man end used for the purpose of
transporting wastes.
Appendix C to Part 122—Criteria for
Determining a Concentrated Aquatic Animal
Pvoductiea Facility (* 322.53)
A hatchery, fish farm, or other facility is a
concentrated aquatic animal production
facility for purposes of 12255 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. raceweys. or
other similar structures which discharge at
least 30 days per year but does not include:
(1) Facilities which produce less than 9.
harvest weight kilograms (approximately
20,000 pounds) of aquatic animals per year
and
(2) Facilities which feed less than 2,272
iuiograms (approxnr.ately 3,000 pounds) of
fond during the calendar month of maximum
feeding.
(b) Warm water fish species or other warm
waler aquatic animals in ponds. racsways, 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 surioff. or
(2) Facilities which produce less than
45.454 harvest weight kilograms
(approximately 100.000 pounds) of aquatic
animals per year.
“Cold waler aquatic animals” include, but
are not limited to. the So/mon ,doe family of
lids e.g., trout and salmon.
Wsrm water aquatic animals” include, but
aie not limIted to, the Ameiw’ide.
Ce.iIzarchidae and Cyprinidae familie, of
fish. e.g., respectively, catfish, sunfish and
minnows.
Appendix 0 to Part 122— ’i ’vPDES Purinil
Application Testing Requinnenzs ( 27253
table L—Tes ig Aeqiaemene Oyai* T
u&v sby 5i usvmI CcMpcvy E uei
Iid nd osagey
‘
an
ac .’
-
eusF p .
ni
imioc
s
Table L—Tes ,g R. iweco ’O’
ite7e
GC1MS freeI
Vda- Acd Semi Paul’
U. rm#al cc.
Bsceaples.g_._.,,,_____,,
ri r
i’)
— — Ii
I’) -‘
Fawimas . —
r rt
I’, —-- -
Ow. ai Wood Qum . ,_.
(‘) n
ri I ’)
c.
Msm .lecssmg
(1 II
n ii
( ‘I ‘)
II.——..
II
I.) I )
W Stud Mem sceflç. ,
Leae.w Tsivwj a F hmg
t u
WIWI.c 5drç,..
(‘) rt
l ) - .-- -
tu,J_._. Mutitu
wudsctiairg.
(‘) ri
r)
0’. Uew.g..
Ogeuc 0w.eeds
(‘) r
t’) I—)
Msnidecbsuig
l) Ii
I ’) rt
Pm dodW*Fovs tan
(‘j rt
i ri
Pusm i_____. _.. ,
r) r
ri i
RuOwig__
Ptlanfiscsuic.J Pr.parauons.,,
I’) ri
(‘) I’)
ii
ft —
Pto .,.h,.. Equemas end
Ls’r ’ —— . —.
I ’) ft
ft c— i
Ptuitc aid S tiViiec
Mutinale MaifadsewO
PIosc Pranaumg .
t’ ‘
‘ — - .-
I’) “I
- .__ -
,i,,fl En.sn,
C’ )
r ui
mlvçvdP _
eWPwr Wo.,_
ft et
ft ft
ri ri
Ii I’ )
ri ci
ci
Søi .W —
U an Sac Sng ,. —
Stem Buclic Pawur Plantu,.,
(‘) (‘
f) fi
ft — --
I’)
Tiude
namn
(‘) c i
(‘1 t’
c i ii
i
‘The our xfluwels in sure ft.ctor vs tau
• Tsumg Iu3irsd.
Table II Organic Toxic P llutonts in Ec.
Pour Fractions in Ana!ys:s by Cos
C/aroinotogmp/iy/Moss Speciroscopy (Gd
MS).
Vclath’es
acrolein
acrylonz irule
bez izene
bus (chioromethyl) ether
bromoforin
carbon tetrachloride
d ilorobenzene
chiorodibromomethane
chioruethane
2.cltloroethylvtnyl ether
chloroform
dlchlorobromomethane
dichlorodifluorornethane
1,1—dichioroethane
U ’dich loroethane
1,2-dichloroeth ’lene
1.2 -d ichloropropane
l,Z ’dichloropropylene
ethylbenrene
methyl brom’de
methyl chioride
methylene chloride
l.1,2,2-tetrachloruethane
tetrachioroethylene
toluene
l34rans’dichloroethy lene
1,1.1-trichloroethane
l,1,2.trichloroeihane
trichloroethylene
frichlorofluoromethane
vinyl chloride
lv
2V
3V
4V
5v
IV
7V
gv
by
liv
12V
i SV
14V
ISV
16V
17V
l iv
IOV
by
liv
22V
Ely
l i v
25V
Ely
vv
30V
SlY
A wauss ard SieI.n - —
A*swr , Fcnre .
A tu wd 0W tawwiiaa_
Eett.ry Uvudartj, —
Cad • - -
C c i Coavig
OXOin - ‘_
EIscoc ud E w.c
rt c i
C’) fi
ci c i
C’)
ci ci
C’) I’)
I ’) 1’)
c i—
c i —
I’) C’)
C I —
ci ci
I ’ ) —
I ’) —
1 ’ ) ’ 1’) I’) ci
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Federal Register IVoL 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations
33455
Acid Compounds
IA z.chlorophenol
2A 2,4-dlchlorophenol
3A 2.4.dimethyjphenol
4.O -dnlfroo-cresol
2.4-dlnltrophenol
oA Z.nltzophenol
IA 4-nitrophenol
BA p .chloro-m-creeol
BA pentacklorophenol
1OA phenol
hA 2.4.B4richlorophenol
Bose/Neutral
18 acenaphthene
23 acenaphthylene
3B anthrocene
48 benzldine
58 benzo(a)anthracene
68 bena(a)pyrene
78 3.4-benzofluoranthene
88 benzo(ghi)perylene
98 benzo(k)fluoranthene
103 bls [ 2-chloroethoxy)methane
118 bla(2.chloroethyl)ether
123 bia(2.chloroi.opropyi)ether
.138 bie(2.ethylhexyl)phthalate
148 4-bromophenyl phenyl ether
15B butylbenzyl phthalate
16B 2 .chloronapbthalene
178 4-chlorophenyl phenyl ether
188 chrysene
198 dlbenzo(a.b)anthracene
208 1.2-dlchlorobenzene
213
228
23B
243
25B
268
278
288
29B
308 ..2 -dipheny lhydrazine
318 fluoranthene
323 fluorene
338 hezachlorobenzene
34B hexachlorobutadiene
358 hexachlorocyclopentadiene
SBB bexachioroethane
378 Lndeno(1.2.3-cd)pyrene
$ BB - leophorone
398 naphthalene
408 nltrobenzene
418 N-nitrosodimethylamine
423 N-nitroaodl.n.nronvlaminp
438
448
453
468
- - _rosodiphnylmlne
phenanthrene
pyrene
1,2.4-trichlorobenzene
Pesticides
IP aidrin
21’ a-BHC
3p $.3I1
4
SP 6-81-IC
BP chiordane
VP 4.4-DDT
8? 4.4 -DDE
OP 4.4 ’-DDD
lOP dleldrin
liP a-endosulfan
lap $-endosulfan
13P endosulfan sulfate
UP endrin
15? andrin eldehyde
lOP heptachior
IVP heptachlor epoxide
8P PCB -1242
lOP PcB-1254
20? PCB.1221
21? P B-1232
22P PCB -1248
23P PcB-1260
UP PCB-lOiO
25? toxaphene
Table Ill Other Toxic Pollutants: Metals.
Cyanide, and Total Phenols.
Antimony, Total
-Arsenic, Total
Beryliluni. 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 Nonconrentional
Pollutants Required to be Tested by Existing
Dischaigen if Expected to be Present.
Bromide
Chlorine, Total Residual
Color
Fecal Coliforni
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 Hazor4ous
Substances Required to be Identified by
Existing Dischar ers if Expected to be
Present.
Toxic Pollutants
Asbestos
Hazardous Substances
Acetaldehyde
Allyl alcohol
Allyl chloride
Amy! acetate
Benzonltrlle
Benzyl chloride
Butyl acetate
Butylamine
Captan
Carbaryl
Carbofuran
Carbon disulfide
Chlorpyrifoa
Cownaphos
Cresol
Crotortaldehyde
Cyclohexane
2.4-D (2.4.Dichlorophenoxy acetic acid)
Diazinon
Dicaniba
Dich loben il
Dlchlone
2.2-Dichloropropionlc acid
Dlchlorvoa
Diethyl amine
Dimethyl amine
Dintz -obenzene
Diquat
Disulfoton
Diuron
Eplchlorohydrin
Ethanolamine
Ethion
Ethylene diamine
Ethylene dibromide
Formaldehyde
Furfural
Cuthion
Isoprene
Isopropanolamine
ICe lthane
Kepone
Malathion
Mercaptodimethur
Methoxychlor
Methyl mercaptan
Methyl niethacrylate
-Methyl parathion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl amine
Naled
Napthenic acid
Nitrotoluene
Parathion
Phenolsulfanate
Phosgene
Propargite
Propylene oxide
Pyrethnns
Qwnoline
Resorcinol
Strontium
Strychnine
Styrene
2,4,5-T (2.4,5-Trlchlorophenoxy acetic acid)
TDE (Tetrachlorodlphenyletharie)
2.4.5.TP (2-(2.4.5.Trichlorophenoxy)
propanoic acid)
Tr -ichlorofon
Triethylamine
Tzunethyiamine
Uranium
Vanadium
VInyl Acetate
Xylene
Xylenol
Zirconium
1.3 -d lchlorobenzene
1.4-dlcl iloroben zene
3,V-d lchlorobenzidine
diethyl phthalate
dimethyl phthalate
dl-n-butyl phthalate
2.4-dlnitrotoluene
2,6-din ltrotoluene
dl-n-octyl phthalate
(as azobenzene)
I .nutI
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33456
Federal Register I VoL 45. No. 98 / Monday, May 19, 1980 / Rules and Regulations
PART 123—STATE PROGRAM
• REQUIREMENTS
Subpart A—General Program Requirements
123.1 Purpose and scope.
123.2 Definitions. -
123.3 Elementa of a program submission.
123.4 Program description.
123.5 Attorney Genera1 s statement.
123.0 Memorandum of Agreement with
Regional Administrator.
123.7 RequIrements for permitting.
123.8 RequIrements for compliance
evaluation programs.
123.9 RequIrements for enforcement
authority.
123.10 Sharing of Information.
123.11 Coordination with other programs.
123.12 Approval process.
123.13 Procedures fot revision of State
programs.
123.14 Criteria for withdrawal of State
programs.
123.15 Procedures for withdrawal of State
programs.
Subpart B—AdditIonal Requlremcnts for
State Hazardous Waste Programs
123.31 Purpose and scope.
123.32 Consistency.
123.33 Requirements for Identification and
listing of hazardous wastes.
123.34 Reqwrements for generators of
hazardous wastes.
123.35 Requirements for transporters of
hazardous wastes.
123.30 RequIrements for hazardous waste
management facilities.
123.37 Requirements with respect to permits
and permit applications.
123.38 EPA review of State permits.
123.39 Approval process.
Subpart C—Additional Requirements for
State UIC Programs
123.51 Purpose and scope.
123.52 Requirement to obtain a permit.
123.53 Progress reports.
123.34 Approval process.
123.55 Procedures for withdrawal of State
UIC programs.
Subpart D—Addltlonai Requirements for
State Programs Under the National
Poflutant Discharge Efiminatlon System
123.71 Purpose and scupe.
123.72 Control of disposal of pollutant, into
wells.
123.73 Receipt and use of Federal
Information.
123.74 Transmission of information to EPA.
123.75 EPA review of and objections to
State permits.
123.70 Prohibition.
123.77 Approval prucess.
Subpart E—Add ltlonal RequIrements for
State Programs Under Section 404 of the
Clean Water Act
123.91
123.92
123.93
123.94
123.95
12396
Purpose and scope.
Activities not requlnog permits.
Prohibitions.
Perm.t application.
General permits.
Emr’rgency permits.
123.97 Additional conditions applicable to
all 404 permIts.
123.88 EstablIshing 404 permit conditions.
123.99 Memorandum of Agreement with the
Secretary.
123.100 TransmIssion of Information to EPA
and other Federal agencies.
123.101 EPA review of and objections to
State permits.
123.102 CoordInation requirements.
123.103 Enforcement authority.
123.104 Approval process.
Subpart F—Requirements for Interim
AuthorizatIon of State Hazardous Waste
Programs
123.121 Purpose and scope.
123.122 Schedule.
123.123 Elements of a program submission.
123.124 Program description.
123.125 Attorney General’s statement
123.128 Memorandum of agreement..
123.127 Authorization plan.
123.128 Program requirements for Interim
authorization for Phase L
123.129 Additional program requirements
for Interim authorization far Phase IL
123.130 Interstate movement of hazardous
waste. -
123.131 Progress reports.
123.132 SharIng of Information.
123.133 Coordination with other programs.
123.134 EPA review of State permits.
123.135 Approval process.
123.136 .Withdrawal of State programs.
123.137 ReversIon of State programs.
Authority: Resource Conservation and
Recovery Act, 42 U.S.C 6901 ci seq.; Safe
Drinking Water Act, 42 U.s.C. 300(t) et seq.
Clean Water Act. 33 U.S.C 1251 ci seq.
Subpart A—General Program
Requirements
§123.1 Purposeand scope.
(a) This part specifies the procedures
EPA will follow in approving, revising.
and withdrawing State programs under
the following statutes and the
requirements State programs must meet
to be approved by the Administrator
widen
(1) Section 3006(b) (hazardous waste-
final authorization) and sectIon 3006(c)
(hazardous waste-Interim authorization)
of RCRA
(2) Section 1422 (underground
injection control—UIC) of SDWA.
(3) SectIons 318,402, and 405
(National Pollutant Discharge
Elimination System—NPDES) of CWA;
and
(4) Section 404 (dredged or fill
material) of CWA.
(b) Subpart A contains requirements
applicable ‘o all programs listed in
paragraph (a) except hazardous waste
programs operating under interim
authorization. All requirements
applicable to hazardous waste programs
operating under Interim authorization
are contained in Subpart F. (References
in this subpart to “programs under this
Part” do not refer to hazardour
programs operating under lets
authorization.) Subpart A Inclu..
elements which must be part of
submissions to EPA for prograw
approval, the substantive provls .
which must be present In State programs
for them to be approved. and the
procedures EPA will follow in
approving, revising, and withdrawing
State programs. Subpart B contains
additional requirements for States
seeking final authorization under RCRA.
Subpart C contains additional
requirements for State UIC programs.
Subpart D specifies additional
requirements for State NPDES programs
Subpart E specifies additional
requirements for State section 404
programs.
(c) State submissions for program
approval must be made In accordance
with the procedures set out In Subpart A
and, In the case of State 404 programs
with the )rocedures set out in Subpart E.
(Submissions for interim authorization
shall be made In accordance with
Subpart F.) This Includes developing
and submitting to EPA a program
description ( 123.4). an Attorney
General’s atatement ( 123.5). a
Memorandum of Agreement with the
Regional Administrator ( 123.8) ‘—
with the Secretary In the case o’ n
404 programs ( 123.99).
(d) The substantive provisions
must be included in State progranl
them to be approved include
requirements for permitting. compliance
evaluation, enforcement, public
participation, and sharing of
Information. The requirements are found
both In Subpart A (1* 123.7 to 123.11)
and in the program specific subparts.
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 122 and 124 are made
applicable to States by the references
contained In I 123.7.
(e) Upon submission of a complete
program, EPA will conduct a public
bearing, If interest Is shown, and
determine whether to approve or
disapprove the program taking into
conalderatlon the requirements of this
Part, the appropriate Act and any
comments received.
(f) The Administrator shall approve
State programs which conform to the
applicable requirements of this Part.
(g) Upon approval of a State program,
the Administrator (or the Secretary in
the case of section 404 programs’
suspend the issuance of Federal
for those activities subject to the
approved State program.
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Federal Register I Vol. 45, No. 98 I Monday. May 19, 1980 I Rules and Regulations
33457
- (h) Any Statq program approved by
the Administrator shall at all times be
conducted In accordance with tha
requirements of this Part.
(I) Slates are encouraged to
consolidate their permitting activities.
While approval of State programs under
this Part will facilitate such
consolidation, these regulations do not
require consolidation. Each of the four
programs under this Part may be applied
for and approved separately.
Ii) Partial State programs arc not
allowed under NPDES, 404, or RCRA
(for programs operating under 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 Part, i.e..
inability of a State to regulate activities
on Indian lands does not constitute a
partial program. Similarly, a State can
assume primary enforcement
responsibility for the UIC program,
notwithstanding § 123.51(e), when the
State program is unable to regulate
activities on Indian lands within the
State. EPA. or In the case of section 404
programs the Secretary, will administer
the program on Indian lands if the SLate
does not seek this authority.
- (Note—States are advised to contact the
United States Department of the Interior,
Bureas of Indian Affairs, concerning
authority over indian lands.]
(k) Except as provided in 123.32,
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 Pai’t;
(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. —
lNote.—For example, when a Stale requires
permits for discharge, into pubildy owned
treatment works, these permits are not
NPDES permits. Also. State assumprion of the
sectIon 404 program I . limited to certain
waters, as provided in 123.91(c). The
Federal program operated by the Corp. of
L’iglneers continues to apply to the remaining
waters in the State even after program
approval. However, thu does not restrict
State. from regulating discharge. of dredged
or 1111 material. Into those waters over winch
the Secretary retain. sectIon 404 jurisdIction.]
{ 123,2 DefInitions.
The definitions in Part 122 apply to all
subparts of this Part. Including Subpart
§ 123.3 Elements ala 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. ‘l ’he
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 * 123.4, describing how
the State Intends to carry out Its
responsibilities under this Part;
(3) An Attorney General’s statement
as required by * 123.5;
(4) A Memorandum of Agreement
with the Regional Administrator as
required by * 123.8, and, in the case of
State section 404 programs, a
Memorandum of Agreement with the
Secretary as required by 1 123.99;
(5) Copies of all applicable State
statutes and regulations, including those
governing State administrative
procedures;
(0) The showing required by
§ 123.39(c) (RCRA programs only) and
I 123.54(b) (UIC programs only) 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 Stain whether its submission
Is complete. If EPA finds that a State’s
submission is Lomplete, the statutory
review period (I.e., the period of imé
allotted for formal EPA review of a
proposed State program under the
appropriate 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 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.
123.4 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 aiagency
may be designated as a “lead agency” to
facilitate communications between EPA
and the State agencies having program
responsibility. In the case of State
RCRA programs, such a designation is
mandatory (see paragraph (f)(4) of this
section). 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)(1) 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
cr limitations upon this funding.
(c) A description of app lir.able State
procedures, including permitting
procedures and any State administra ’e
or judicial re iew 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 forus
used by EPA but should require the
same basic Information, except that
Slate NPDES programs are required to
use standard Discharge Monitoring
Reports (Divifi), The State need not
provide copies of uniform national forms
it Intends to use but should note its
intention to use such forms. State
sectIon 404 application forms must
Indude the Information required by
1 123.94 and State section 404 permit
forms must Include the Information and
conditions required by * 123.97,
jNot. .—States are encouraged to use
umlormnetional forms estabdshed by the
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33458
Federal Register I Vol. 45, No. 98 / Monday. May 19. 1980 I Rules and Regulations
Administrator. If uniform national forms are
used, they may be modified to Include the
State Agency’s name, address. logn. end
other similar Information, as appropriate. In
place of EPA’s.I
(e) A complete description of the
State’s compliance tracking and
enforcement program.
(I) State RCRA programs only. In the
case of State RCRA programs. the
program description shall also Include:
(1) A description of the State manifest
tracking 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
ehipments.
(2) An estimate of the number of the
fotlowing
(I) Generators:
(Ii) Transporters: and
(lii) 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 faclijtles.
(3) If available, an estimate of the
annual quantities of hazardous wastes:
(I) Generated within the State;
(II) Transporters: and
State; and
( Iii) Stored, treated, or disposed of
within the State:
(A) on-site: and
(B) off-site.
(4) When more than one agency
within a $tate has responsibility for
administering the State program. an
Identification of a “lead agency” and a
description of how the State agencies
will coordinate their activities.
(g) State UlCprograrns only. In the
case of a submission for approval of a
State UIC program the SLate’s program
description shall also include:
(1) 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 122
(2) The priorities (according to criteria
,set forth In 40 CFR 148.09) 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 yeac
(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 permit. The 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;
(0) For any e,dsting 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 applicable monitoring, reporting,
construction, and financial
responsibility requirements of § 122.41
and 122.42; and 40 CFR Part 146;
(7) A description of and schedule for
the State’s program to establish and
maintains current inventory of injection
wells which must be permitted under
State law
(8) Where the Director has designated
underground sources of drinking water
In accordance with § 122.35(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 122.35(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 122.36; and
(11) A description of and schedule for
the State’s program to establl3h an
inventory of Class V wells and to assess
the need for a program to regulate Class
V wells.
(h) Stale 404 programs only. In the
case of a submission for approval of a
section 404 program the State’s program
description shall’ also include:
(1) A description of State regulated
waters.
(Note.—States should obtain from the
Secretary an Identification of those waters of
the U.& within the State over which the
Corps of Engineers retains authority under
section 404(g) of CWA.)
(2) A categorization, by type and
quantity, of discharges within the State,
and an estimate of the number of
dfscbarges within each category for
which the discharger must file for a
permit.
(3) An estimate of the number and
percent of activities within each
category for which the State he. already
Issued a State permit regulating the
discharge.
(4) In accordance with 123.92(a)(6), a
description of the specific best
management practices requirements
proposed to be used to satisfy the
exemption provisions of section
404(f)(1)(E) of CWA for construction or
maintenance of farm roads, for
or temporary roads for moving r..
equipment.
(5) A description of how the Ste
section 404 agency(ies) will intern
other State and local agencies.
(6) A description of how Life State will
coordinate its enforcement strategy with
that of the Corp. of Engineers and EPA.
(7) .Where more than one agency
within a State has responsibility for
administering the State program:
(i) A memorandum of understanding
among all the responsible State agencies
which establishes:
(A) 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;
(B) Common reporting requirements;
and
(C) Any other appropriate procedures
not Inconsistent with section 404 of
CWA or these regulations;
jIi) 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.
(8) Where several State 404 pe
are required for a single project,
description of procedures fon
(i) Ensuring that all the necessar
State 404 permits are Issued before .
of the permits go into effect: and
(Ii) Concurrent processing and, where
appropriate, joint processing of all of the
necessary State 404 permIts.
§ 123.5 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 atto . ’ney for those State
or interstate agencies which have
independent legal counsel) that the laws
of the State, or an interstate comp ct,
provide adequate authority to carry out
the program described under § 123.4 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 “indeper
legal counsel” the attorney signi
statement required by this sectio .
have full authority to Independently
represent the State agency In court on
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Federal Register I Vol 45, No. 98 / Monday, Mdy 19. 1980 I Rules and Regulations
33459
all matters pertaining to the State
program. -
lNots.—EPA will supply States with a
ttorney 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.
(c]-State M’DES programs only. In the
case.of State NPIDES programs, 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
122.59.
(d) State section 40f programs only.
(1) In the case of State section 404
programs the State Attorney General’s
statement shall ccntaln an analysis of
Slate law regarding the prohibition on
taking p ’ivate property without just
compensation. including any applicable
judicial interpretations, and an
assessment of the effect such law will
have on the successful implementation
of the State’s regulation of the discharge
of dredged or fill material.
(2) In the case of State section 404
programs, where more than one agency
has responsibility for administering the
State program, the Attorney General’s
Statement shall Include certification that
each agency has full authority to
administer the program within its
category of jurisdiction and that the
State as a whole has full authority to
administer a complete State section 404
program.
- f 123.6 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 StaLe 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 admiist ation end
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
reepaneibllPy.
(b) The Memorandum of Agreement
shall Include the foHowing
(1) Provlslcns for the prompt transfer
from EPA to the State of pending permit
applic.atlór.s 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. etç).
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 maybe
established to transfer responsibility for
these permits.
lNote.—For example. EPA and the State
and the permittee could.agree that the Slate
would Issue a permit(s) Identical to the
outstanzllng 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.
(Nole.—The nature and basis of EPA
review of State permits and permit
applications differs among the programs
governed by this Part. See U 123.38 (RQIA),
123.75 1PDES) and 123.101 (404).)
(3) Prwisinns 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 flies 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
§ 123.74 (NPDES programs only) and
§ 123.100(404 programs only).
(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 Stale for EPA
inspection. The Regional Administrator
Will normally notify the State at least 7
days before any such lnspeclion and
(I I) 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.
1Not. .-.To promote efficiency and to avoid
duplication and Incons istency. 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
Stale/EPA Agreement may not override
the Memorandum of Agreement.
INote,—Detalled program prionties and
specific arrangements for EPA support of the
State program will change and are therefore
more apprupriateiy negotiated In the context
of annual agreements rather than in the
MOA.Bowever, It may still be eppropr.ate to
specify In the MDA the basis for such
detailed agreements. e.g.. a provision is the
- MOA specifyiig that EPA will select facilities
in the Slam For mspection ennuai!y as part of
the Stale/EPA agreement.)
(d) State RCRA prorgrams only. Li the
case of State RCRA programs the
Memorandum of Agreement shall also
provide that: -
(‘I) EPA may 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. -
(2) No limitations on EPA compliance
inspections of generators, transporters,
or non-major HWM facilities under
paragraph (d)(1) 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.
(3) The Slate Director shall promptly
forward tc 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.
(4) The Regional Administrator shall
promptly forward to the State Director
Information obtained prior to program
approval in notifications provided under
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Federal Register I Vol. 45, No. 98 1 Monday, May 19. 1980 t Rules and Regulations
section 3010(a) of RCRA. The Regional
Ath ,iInh.frator and the State Director
shall agree on procedures for the
assignment of EPA Identification
numbers for new generators.
transporters, treatment, storage, and
disposal facilities.
(5) The State Director shall 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 Part. The Regional
AaImlnf.trator and the State Director
shall establish a time within which this
review must take place.
(e) State NPDESprograzns only. In the
case of State NPDES programs the
Memorandum of Agreement shall also
specify the extent to which EPA will
waive Its right to review, object to. or
comment upon State-Issued permits
under sections 402(d)(3). (e) or (I) 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
I 122.59); -
(4) Discharges from publicly owned
treatment works with a daily average
discharge exceeding I million gallons
per day:
(5) Discharges of uncontaminated
cooling water with a daily average
discharge exceeding 500 million gallons
per day;
(6) 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-hall) million gallons per day.
except that EPA review of permits for
discharges of non-process wastewater
may be waived regardless of flow.
(1) Slate section 404 progrums only. (1).
In the case of State section 404
programs. 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 draft
general permits. While the Regional
Administrators 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 Stati 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) Discharges proposed to be
regulated by general permits; or
(B) Discharges known or suspected to
contain toxic pollutants in toxic
amounts under section 307(a)(1) of CWA
or hazardous substances in reportable
quantities under section 311 of CWA.
(II) A definition of major discharges.
(2) In the case of State section 404
programs. 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.
(g) State NPDES and Section 404
programs only. Whenever a waiver Is
granted under paragraphs (e) or (fl(1) 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 and, in the case of State
section 404 programs. the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Servcle (unless receipt is
waived In writing), with copies of final
permits.
122.7 RequIrements far permitting.
(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) I 122.4.—(Application for a permit),
except in the case of * 122.4(d) for State
section 404 programs;
(2) § 122.B—(Signatories);
(3) I 122.7—(Appllcable permit
conditions);
(4) 1 122.&—(Establishlng pr
conditions); -
(5) I 122.9—(Duretion):
(6) I 122.I0(a)—(Schedules of
compliance):
(7) § 122.11—(Monltorlng
requirements);
(8) * 122.13 (a) and (b)—(Effect of
permit);
(9) I 122.14—(Permlt transfer);
(10) I 122.15—(Permlt modification);
(11) * i22.iG—(Permit termination):
(12) I 122.18—(Noncompliance
reporting);
(13) I 122.19 (bHd)—(Confldentlal
Information);
(14) I 124.3(a)—(Appllcation for a
permit);
(15) I 124.5 (a), (c), (d), and (f)—
(Modification of permits). except as
provided In * 123.100(bJ(2) for State
section 404 programs:
(16) I 124.8 (a), (c) ’, (d), and (e)—(Draf ’
permit), except as provided in
§ 123.100(b)(2) for State section 404
programs;
(17) § 124.8.—(Fact sheets), except as
provided In I 123.100(b)(2) for State
section 404 programs:
(18) I 124.10 (a)(1)(ii). (a)(1)(iii),
(a)(1)(v), (b), (c), (d), and (e)—(Public
notice);
(19) § 124.11—(Public comzne- “d
requests for hearings):
(20) I 124.12(a)—(Public hea.
and
(21) I 124.17 (a) and (c)—(RespL.. . io
comments).
lNote.—State. need not implement
provisions identical to the above listed
provision. or the provisions listed in 123.7
(bHd). Implemented provisious must.
however, establish requirements at least as
stringent as the corresponding listed
provision.. 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 beheld 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. I 123.5(d) (contInuation of permits)
and 1 124.4 (consolidation of permit
processing).
(b) State RCRA programs only. Any
State hazardous waste program shall
have legal authority to implement cach
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 strinr
requirements:
(1] I 122.21(d)(2}—(Specific
inclusions);
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33461
(2) 122.22—(Appllcatlon for a
permit);
(3) 122.24—(Contents of Part A);
(4) 1 122.25—(Contents of Part B):
(Note.—Sts tea need not use a two part
permit application process. The State
application process must, however, require
Information In sufficient detail to satisfy the
requirements of § 122.24 and 122.25.)
(5) I 122.26—(Permlt by rule);
(6) I 12Z.27—(Emergency permits);
(7) * 122.28—(Additional permit
conditions);
(8) § 122.29—(Establishing permit
conditions); and
(9) I 122.30— .(Interim permits for UIC
wells).
(c) Stale 1.IJC programs only. State
UIC programs shall 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) 122.32—(Classiflcation of
injection wells);
(2) 122.33—(Prohibition of
unauthorized injection);
(3 I 122.34—(Prohibitiort of
movement of fluids into underground
sources of drinking water);
(4) § 122.35—(Identification of
underground sources of drinking water
and exempted aquifers);
(5) I 122.36.—(Elimination of Class W
wells);
(6) § 122.37-. -(Authorization by rule);
(7) I 122.38—(Authorization by
p rrnit);
(8) § 122.39—(Area permits);
(0) § 122.41.— (Additional permit
conditions):
(10) § 122.42—(Establishing permit
conditions):
(11) I 122.44—(Correctlve action); and
(12) § 122.45—(Requirements for wells
managing hazardous wastes).
(d) Slate NPDES programs only. State
NPDES programs shall have legal
authority to Implement each of the
fcllowing provisions and must be
administered in conformance with each
except that States are not precluded
from omittir.g or modifying any
provisions to impose more stringent
requirements:
(1) I 122.52—(Prohibitions);
(2) § 122.53 (a). (d)-.(g) and (lHk)—.
(Application for a permit);
(3) § 122.54—(Concentrated animal
feeding operations):
(4) § 1ZZ.55—(Concentrated aquatic
animal production facilities];
(5) § l22.58—(Aquaculture projects);
(6) § 122.57—..(Separate storm sewers);
(7) § 122.58— .(Silviculture);
(8) * 122.59—(General permits),
provided that States which do not seek
to implement the general permit program
ñnder 122.59 need not do so:
(9) S 122.60—(Conditlons applicable to
all permits);
(10) 5 122.61—(Conditlons applicable
to specified categories of permits);
(11) I 122.62—(Establishing permit
conditions);
(12) I 122.63—(Calculating NPDES
conditions);
(13) 5 122.64—(Duratlon of permit);
(14) 5 122.65-.—(Disposal Into wells);
(15) 5 124.50—(Fact sheets);
(16) 5 124.57(a)—(Public notice);
(17) § 124.59—(Comments from
government agencies);
(18) Subparts A. B. C. D, H, I. J. K and
L of Part 125: and
(19) 40 CFR Parts 129, 133, and
Subchapter N.
(Note—For example, a State may Impose
more stringent requirements In an NPDES
program by omittIng the upset provision of
§ 122.60 or by requiring more prompt notice
of an upset.)
(e) Slate NPDRS and 404 programs
only. (1) State NPDES and 404 permIt
programs shall have an approved
continuing planning process under 40
CFR 5 35.1500 and shall assure that the
approved planning process Is at all
times consistent with CWA.
(2) State NPDES and 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 2 years received, a
significant portion of income directly or
Indirectly from permit holders or
applicants for a permit.
(I) For the purposes of this paragraph:
(A) “Board or body” Includes any
indlvidual, lncluding 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 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 80 years of
age and Is receiving that portion under
retirement, pension, or similar
arrangement
(C) “Permit holders or applicants fore
permit” does not Include any
department or agency of a State
government, such as a Departutent of
Parks or a Department of Fish and
Wildlife.
(D) “Income” Includes retIrement
benefits, consultant fees, and stock
dividends.
(U) 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 fund payments.
or from other diversified Investments for
which the recipient does not know the
Identity of the primary sources of
income.
* 123.8 RequIrements for compliance
evaluatlen 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 j ermit
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
(Ill) 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 uf
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
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33462
Federal Register I Vot. 45. No. 98 / Monday. May 19. 1980 f Rules and Regulations
regulation or In which records relevant
to program operation are kept In order
to copy any records . mspect, monitor or
otherwise investigate compliance with
the State program induding 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.
(e) Stale NPDES programs onlij; 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 subrnittsd by
permittees to the State agency;
(2) Initial screening (i.e.. pee-
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.relate.d 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 all major
dischargers at least annually.
1123.9 RequIrements for enforcement
authority.
(a) Any State agency administcring 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.-.Thia paragraph requires tha: States
have a mechanism (e.g.. an adminlstrs’ive
cease and desi.t order or the ablilt’: to seek a
temporary restraining order) to stop &u&y
unauthorized activity endangering public
health or the environment.J
(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 assem or sue to recover in court
civil penalties and to seek cnmical
remedies, Including fines, as followr.
(i) State RCRA programs only. (A)
Civil penaltie. shall be recoverable Sir
any program violation in at least the
amount of $10,000 per day.
(B) 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 $10,000 per da3 for each
violation, and imprisonment for at least
six months shall be available.
(it) State UIC programs wily. (A) For
all wells except Class U wails, civil
penal thee shall be recoverable for any
program violation in at least the amount
of $2500 per day. For Class II wells, civil
penalties shall be recoverable for any
program violation hi at least the amount
of $1,000 per day.
(B) Criminal fines shaU be recoverable
in at Least the amount of $5000 pe day
against any person who willfully
violates any program requirement, or,
for Class U wells, pipeline (production)
veverance shall be iinposable against
any person wha willfully violates any
program requirement.
(ilil Slate NPDES and section 404
programs only. (A) Civil penalties shall
be recoverable for the violation of any
NPDES or section 404 permit condition;
any NPDES or section 404 filing
reçuii’ezent any duty to allow or carry
out inspection. enty or monitoring
activities; or any regulation or orders
lssaad by the State Director. Such
penalties shall be assessable in at least
the amount of $5.000 per d y for each
violation,
(B) Criminal fines shall be recoverable
against any pemon who wilh t ully or
negligently v,olates any applicable
standards arlmnntatioon any NPDESor
section 404 permit conditioi; or any
NPDES or section 404 filing requirement.
Such fines shall be assessable in at least
the amount of $10,000 per day for each
violation,
INole.—States which provide caminel
remedies based on “a’iminal negligence.”
“gross negligence” or strict liability satisfy
the requirement of paragrapi’ (aJ(3)(lilJ(B) of
th;s section.)
(C) Criminal fines shall be recoverable
against any person who knowingly
makes any false statement,
representation or certification in any
NPDES or section 404 form, In any
notice or report required by an NP ’
or section 404 permit, or who kno
renders inaccurate any moitoring
or method required to be maintained by
the Director. Such fines shall be
recoverable in at least the amount of
$5,000 for each instance of violation.
lNote.—In many Stales the State Di eL!Jr
will be represented In State courts by the
State Attorney Ceneral or other appropriate
legal officer. Although the Stale Director need
not appear hi cowl actions he or she should
have power to request that any of the above
actions be brought.)
(b)(1) 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
Stale 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
tNote.—For esample. this requiren
not met If State law includes mental su.
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 SLate
Director in settlement of administr,iti e
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
case of a penalty for a failure to meet a
statutory or final permit compliance
deadiine, “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
er.vironment plus
(2) An amount appropriate to remove
the economic benefit gained or tc
gained from delayed compliance;
(3) An amount appropriate as a
penalty for the violator’s degree of
recalcitrance, defiance, or indifference
to requirements of the law plus
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33463
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costa thrust upon the publlc minus
(5) An amount. If any, appropriale 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).
(Nots.—ln addition to the requirement, of
this paragraph, the State may have other
enforcement remedies. The following
enforcement options, while aol mandatory,
are highly recommende&
Procedures for auesament 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
eases. or to sue any persona responsible for
unauthorized activities for any expenses
incurred by the State in removing, correcting.
or terminating any adverse effect. 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 be, or destruction
of wildlife, fish or aquatic life, or their
habitat. and for any other damages caused by
unauthorized activity, either to the.5tate or to
any resident. 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 or
administrative 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:
(1) Investigate and provide written
responses to all citizen complaints
submitted pursuant to the procedures
specified in I 123.8(b)(4);
(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.
123.10 Sharing of Information.
(a) Any Information obtained or used
In the administration of a State program
shell 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 2.11 EPA
obtains from a Slate 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 It. 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,
123.11 CoordinatIon with other
programs.
(a) 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.
(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 258).
f 123.12 Approval process.
The process for EPA approval of State
programs is set out In 123.39 (RCRA).
123.54 MC), 123.77 (NPDES]. and
123.104 (404).
1123.13 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
modificabons 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 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
appropriate 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 § 123.4(b) shall be
revised and resubmitted.
(d) Whenever the Adminisirator has
reason to believe that circumstances
h.sve changed with respect to a State
program, he may request, and the Slate
shall provide, a supplemental Attorney
General’s statement, program
description, or such other documents or
information as are necessary.
(e) Store RCR.4 programs only. All
new programs must comply with these
regulations immediately upon approval.
Any approved program which requires
revision because of a modification to
this Part or to 40 CFR Parts 122, 124, 260,
261, 282, 283, 284. 285 or 288 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.
(f) Stole WCprogroms only. The State
shall submit the Information required
under paragraph (b)(1J of this section
within Va days of any amendment to
this Part or 40 CFR Parts 122, 124. or 146
which revises or adds any requirement
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Federal Register I Vol. 45. No. 98 I Monday, May 19, 1980 / Rules and Regulations
• respecting an approved State UIC
program.
(g) Stat. NPD ES programs oirly. All
new programs must comply with these
regulations Immediately upon approval.
Any approved State semi on 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
6tatute In order to wake the required
revision In which case such revision
shall take place wIthin 2 years, except
that revision of State programs to
Implement the requirements of 40 CFR
Part 403 (pretreatment) shall be
accomplished as provided In 40 CFR
I 403.10. In addition, approved States
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 sxpire
after November30, 1980 or (2) whose
permits expire before November 30, 1980
end who have not reapplied for a permit
prior to April 30. 1980. submit, as part of
their application, the Information
required under 1*122.4(d) and 122.53 (d)
or (c) as appropriate.
• (h) State section 404 programs only.
The Regional Administrator shall
consult with the Corps olEngineers. 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.
§ 123.14 CriterIa lot withdrawal of State
PTOgFaIT’ 5.
(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 lncludlng
(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) 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
(ill) Fallureto comply with the public
participation requirement, of thu Part.
(3) When the State’s enforcement
program fails to comply with the
requirements of this Part. lncludhig
(I) Failure to act on violations of
permits or other program requirements
(I I) Failure to seek adequate
enforcement penalties or to collect
administratIve fines when Imposed or
(Ill) Failure to Inspect and monitor
activitie, subject to regulation.
(4) When the State falls to
complyw lththetermsof the
Meniorandwn of Agreement required
under *123.5.
§122.15 Proes jrs, far withdrawal of
State prugvwue .
(a) A State wI k a program approved
under this Part may voluntarily transfer
program responsibilities required by
Federal law to EPA (or to the Secretary
In the case of 404 programs) by taking
the following actions, or in such other
manner as may be agreed upon with the
Adin ,ni tfrator.
(1) The State shall give the
Administrator (and the Secretary in the
case of section 404 programs) 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 (or the Secretary
in the case of section 404 programs)
(such as permits, permit files,
compliance files, reports, permit
applications] which are necessary for
EPA (or the Secretary in the case of
section 404 programs) to administer the
program.
(2) Within 80 days of receiving the
notice and transfer plan, the
Administrator (and the Secretary In the
case of section 404 programs) 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 day. before the transfer
Is to occur the Mmtalstrator 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, other than
a UIC program. The process for
withdrawing approval of State mc
programs Is set out In * 123.55.
(1) Order. The Administratot
order the commencement of wIL
proceedings on his or her own Initip tine
or In response to a petition from r
Interested person alleging failure
State to comply with the requiremehi
this Part as set forth In * 123.14. 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
withdrawaLof 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 petitions
State, the Agency, and any other
whose request to participate as a
Is granted.
(I I) “Person” means the Agency, the
State and any Individual or or3anization
having an Interest in the subject matter
of the proceeding.
(Iii) “Petitioner” means any perscn
whose petition for commencement oi
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
paragraphi
(I) * 22.02—(use of number/gender):
(II) I 22.04(c)—(authorltles of
Presiding Officer):
(III) * 22.06—(flllngf service of rulings
and orders):
(lv) I 22.07(a) and (b)— .except thoL
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 lime);
(v) * 22.08—however, substitute
“order commencing proceedings” for
“complaint”—(Ex Parte contacts);
(vi) I 22.09—(examlnation of 8’
documents):
(vU) I 22.11(a), (c) and (d), how,
motions to Intervene must be filed
wIthin 15 days from the date the notice
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_!ederal Register I var. 45 , No. 98 / Monday. May 19, 1980 / Rules and Regulations
33465
of the Administrator’s order Is first -
publlshed—(interventlon):
(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);
(lx) § 22.191a), (b) and (c)—(prehearuig
conference):
• (x) § 22.22—(evldence):
(x l) § 22.23—(objections/offers of
proof);
(xli) I 22.25—(filing the transcript);
and
(xlii) § 22.28—(flndlngs/conduslons).
(4) Record of proceedings. (I) The
hearing shall be either stenographically
reported verbatim or tape recorded, and
thcreupon 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
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 toasty 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 note
party. A person who is not a party may,
at 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. 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 deéision. (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 filixjg 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. (iJ
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 condudes 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
program in conformity with the
appropriate Act and regulations be shall
list the deficiencies In the progam and
provide the State a reasonable tune. not
to exceed 90 days, to take such
appropriate corrective action as the
Administrator determines necessary.
(lv) Within the time prescribed by the
Administrator the State shaji take such
appropriate corrective action as
required by the Administrator a d 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
fuziher 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 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.
Subpart B—Additional Requirements
for State Hazardous Waste Programs
§123.31 Purpose and scope.
(a) This Subpart specifies additional
requirements a State program must meet
in order to obtain final authorization
under section 3008(b) of RCRA. All of
the requirements a State program must
meet In order to obtain interim
authorization under sectIon 3006(c) of
RCRA are specified In Subpart F.
(b) States approved under this
Subpart are authorized to administer
and enforce their hazardous waste
program in lieu of the Federal program.
(c) States may apply for final
authorization at any time after the initial
promulgation of Phase II. State prograns
under final authorization may not take
effect until the effective date of Phase 11.
(d) States operating under interim
authorIzation may apply for and receive
final authorization as specified in
paragraph (c) of this section.
Notwithstanding approval under
Subpart F. such States must meet all the
requirements of Subpart A and this
subpart in order to qualify for final
authorization.
(e) States need not have been
approved under Subpart F in order to
qualify for final authorization.
§123.32 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 provisions 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 frpe
movement across the State border of
hazardous wastes front or to other
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Federal Register-I VoL 45, No. 98/Monday, May 19, 1980 / Rules and Regulations
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 h1cb 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.
I 123.33 RequIrements for Identification
Md 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 a set of
characteristics for Identifying hazardous
wastes equivalent to those under 40 CFR
Part 281.
g 123.34 RequIrements for generators of
hazardous wastes.
(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
identification 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 I I 262.40 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 prior to shipment off-site do so in
containers meeting DOT shipping
requirements under 49 CFR Parts 173,
178 arid 179 or accumulate such wastes
In tanks In accordance with State
storage standards authorized by EPA
under the approved State program.
(d) The State program must require
that generators comply with
requirements that are equivalent to the
requirements for the packaging, labeling.
marking, arid placazding of hazardous
waste wider 40 CFR U 262.30 to 262.33.
and are consistent with relevant DOT
regulations under 49 CFR Parts 172.173,
178 end 179.
(a) The State program shall provide
requirements respecting international
shipments which are equivalent to those
at 40 CFR 282.50. except that advance
notification of international shipments,
as required by 40 CFR I 262.50(b)(1),
shall be filed with the ihnlnIstrator,
The State may require that a copy of
such advance notice be filed with the
State Director, or may require -
equivalent reporting procedures.
(Not..—Such notice, shall be mailed to
Hazardous Waste Export. Division for
Oceans and Regulatory Affair. (A-Icr). U.S.
Environmental Protection Agency.
Washington. D.C. 20460.)
(I) 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, insthe case of Intrastate
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
transport are accompanied by the
manifest, except In the case of
shipments by rail or water specified In
40 CFR I I 282.23(c) and 263.20(e). The
State program shall provide
requirements for shipments by rail or
water equivalent to those under 40 CFR
H 282.23(c) and 283.20(e).
(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 I 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 at seq.).
• 123.35 RequIrement. 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 thçy accept hazardous waste for
transport
(b) The State shall have the authority
to require and shall require all
transporters to comply with
tecordkeeping requirements eqv
tothosefoundat40 RI283.2. is
must require that records be kept at
least 3 years.
(c) The State must requfre the
transporter to carry the manifest during
transport, except In the case of
shipments by rail or water specified In
40 CFR I 283.20(e), and to deliver
wastes-only to the facility designated or.
the manifest The State program shall
provide requirements for shipments by
rail or water equivalent to those under
40 CFR I 263.20(e).
(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 ft 263.30 and
263.31.
I 123.36 RequIrements for hazardous
waste management facilities.
The State shall have standards for
hazardous waste management facilities
which are equivalent to 40 CFR Parts
284 and 268. These standards shall
include:
(a) Technical standards for tat
containers, waste piles, incineratit
chemical, physical and biological
treatment facilities, surface
Impoundments. landfills, and land
treatment facilities:
(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) Groundwater monitoring;
(f) Security to prevent unauthorized
access to the facility;
(g) Facility personnel training:
(h) Inspectior.s, monitoring.
recordkeepIng. and reporting;
(i) Compliance with the manifest
system. Including the requirement that
facility owners or operators return a
signed copy of the manifest to the
generator to certify delivery of the
hazardous waste shlpment
U) Other requirements to the e.
that they are included In 40 CFR Paris
284 and 266.
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Federal Register I Vol. 45. No. 98 I Monday, May 19, 1280 / Rules. and Regulations
33467
§123.37 RequIrements with respect to
pannils and permit applications.
(a) State law must requ1r permits for
owners and operators of all hazan ous
waste management facilities required to
obtain a permit under 40 CFR Part 122
and prohibit the operation of any
hazardous waste management facility
without such a permit, except that
States may, If adequate legal authority.
exists, authorize owners and operators
of any facility which would qualify for
-interim statue under the Federal
program to remain in operation until a
final decision I. mane on the permit
application. Where State law authorize.
such continued operation it shall reqinre
compliance by owners and operators of
such facilities with standards at least as
stringent as EPA ’. Interim status
standards at 40 CFP. Part 265. -
(b) The Stain must require all new
HWM facilities to contact the State and
obtain an EPA identification number
before commencing treatment, storage,
or disposal of hazardous waste.
(c) All permits issued by the Stale
shall require compliance with the
standards adopted by the State under
§ 123.38.
(d) All permits issued under State law
prior to the date of approval of final
authorization shall be reviewed by the
State Director and modified or revoked
and reissued to require compliance with
the requirements of this Part.
§ 123.38 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
§ 123.8.
(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
comment:
(I) 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 commeirts (Induding 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 bar 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 violatlonof
.a State program requirement. In
exercising these authorities, EPA will
observe the following conditions:
(1) The Regional Administrator may
take action under section 3008(aJ(3) of
RCRA against a holder of a State-issued
permit at any time on the ground that
th 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 grounds that
the permlttee 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
permittae 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 that
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.
§ 123.39 Approval process.
(a) Prior to submitting an application
to EPA for approval of a State program.
the State shall issue public notice of its
Litent to seek program approval from
EPA. This public notice shalk
(‘1) Be circulated in a manner -
calculated to attract the attention of -
interested persona including
(1) 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
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, -
-alternitively, 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 piragraph
(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 § 123.3. a proposed
program to EPA for approval. Such
formal submission may only be made
after the date of promulgation of Phase
IL 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.
(dJ 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)(1J of this section. Notice
of the tentative determination of
authorization shall also:
(1) Indicate that a public hearing will
beheld 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
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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 will grant final
authorization only after the effective
date of Phase II. The Administrator shall
give notice of this final determination In
the Federal Register and In acccordance
with paragraph (a)(1) of this section. The
notification shall Include a concise
statement of the reasons for this
determination, and a response to
significant comments received.
Subpart C—Additional Requirements
for State UIC Programs
123.51 Purpose and scope.’
(a) This Subpart describes additional
substantive and procedural
requirements for State UIC programs
- authorized under section 1422 of SDWA.
(b) States shall submit to the
Administrator a proposed State UIC
program complying with 123.3 of this
Part within 270 days of the date of
promulgation of these regulations. The
Administrator may. for good cause.
extend the date for submission of a
proposed tate UIC program for up to an
additional 270 days.
(c) EPA will establish a UIC program
In any State which does not comply with
paragraph (b) 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 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 402(b)(1J(D] of CWA requires that
NPDES States have the authority “to luue
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
mrtaln 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.l
(d) If a State can demonstrate to
EPA’. satisfaction that there are no
underground injections within the State
for one or more classes of injection
wells (other than Class IV well.) s ibject
to SDWA and that such injections
cannot legally occur In the State until
the State haq 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 programs
have authority to enforce any violation
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.
0123.52 RequIrement to obtain a permit.
States may authorize certain well
Injections by rule rather than by permit
Any authorization by rule shall comply
with I 122.37.
1123.53 Progreu rapo
States shall submit to the
Administrator B months after the date of
promulgation of these regulations a
report describing the State’s progress in
developing a UIC program. If the
Administrator extends the time for
submission of a UIC program an
addItional 270 days, pursuant to
* 123.51(b). 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.
§ 123.54 Approval procass .
(a) Prior to submitting an application
to the Administrator for approval of.
State UIC program, the State shall Issue
public notice of its Intent to ad ‘ IC
prcgrainandtoseekprogram Al
from EPA. This public notice shan.
(1)Becirculatedlnam anner -
calculated to attract the attentlo
interested persons. Circulation of.
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 where the
State’. 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:
(B) 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 r
proposed UIC program under a
1422 of SDWA and § 123.3 of thi..
EPA for approval. Such a submist
shall Include a showing of compliaL.....
with paragraph (a) of this section. copi__
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 pub,lic pniuiclpation
activIties conducted, describes the
matters presented to the 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 0- -
Regional Administrator, who r
cancel the public hearing if sin
public Interest In a hearing is no
expressed;
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33469
(2) Afford the public 30 diys after the
notice to comment on the State’.
submissloru and -.
(3) Note the availability of the State
submission for Inspection and copying
by the ubIic.
(d) WIthin 90 days of the receipt of a
complete submission (as provided In
§ 123.3) or material amendment thereto,
the Administrator shall by rule either
fully approve. disapprove, or approve In
part the State’s UIC program taking Into
account any comments submitted. The
Administrator shall give notice of this
rule In the Federal Register and In
accoroance with paragraph (a)(1) 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
§123.55 Procedures for withdrawal of
State (ftC programs.
Approval of a State UIC program may
be withdrawn and a Federal program
established In its place where the
Administrator determines, after holding
a public hearing, that the State program
is not In compliance with the
requirements of SD’NA and this Part.
(a) Notice to State of Public Ha ’oring.
If the Administrator has cause to believe
that a State Is not 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.
(b) Public Hearing. If the State has not
demonstrated Its compliance to the
satisfaction of the Administrator within
30 days after notification, the
Administrator shall Inform the State
Director and schedule a public hearing
to discuss withdrawal of 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 atract
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 presentations on
the State’s program at the public
hearing.
(ci Notice to State of Findings.
Wherein the Administrator findi 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
State 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 of the hearing Is found to be -
In compliance, the Administrator shall
so notify the State by registered mail
and conclude the withdrawal
proceedings. -
Subpart D—Addltlonal Requirements
for State NPDES Programs
1123.71 Pwpose and scope.
(a) This subpart describes additional
requirements for State NPDES programs
under sections 318, 402 and 40$ of CWA.
A State NPDES program will not be
approved by the Administrator under
section 402 of CWA unless It has
authority to control the discharges
specified In sections 318 and 405(a) of
CWA. Permit programs under sections
318 and 405 will not be approved
independent of a section 402 permit
program. - -
(b) These regulations are promulgated
under the authority of sections 304(l)
and 101(e) of CWA, and Implement the
requirements of those sections.
(c) No partial NPDES programs will be
approved by EPA. The State program
must prohibit (except as provided In
I 122.51(c)(2)) 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
activitlea or discharges. When more
than one agency Is responsible for
Issuing permits, each agency must make
a submission meeting the requirements
of 1 123.3 before EPA will begin formal
review.
(d) 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.
§ 123.72 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 conditions. A
program approved under section 1422 of
SDWA satisfies the requirements of this
section.
(Nota.—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 s Slate UIC program
under section 1422 or SDWA. Section
402(b)(1)(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 UJC
program. Note, however, that CWA excludes
certain types of wefl injections from the
definition of ‘poilutant.” If the State’s
statutory authority contains a similar
exclusion It may need to be modified to
qualify for UIC program approval.)
§123.73 ReceIpt and use of Federal
Information.
Upon approving a State permit
program, EPA shall send to the State
agency administering the peimit
program any relevant Information which
was collected by EPA. The
Memorandum of Agreement under
§ 123.6 shall provide for the following, In
such manner as the State Director and
the Regional Administrator shall agree:
(a) Prompt transmission to the State
Director from the Regional
Administrator of copies of any pending
permit applications or any other
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relevant information collected before
the approval of the Slate permit program
and not already in the possession of the
Slate Director. When existing permits
are transferred to the State Director
(e.g.. for purposes of compliance
monitoring, enforcement or reissuance).
relevant Information indudes support
DIes for permit issuance, compliance
reports and records of enforcement
actions.
(b) Procedures to eniure 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.
123.74 TransmissIon of Information to
EPA .
(aJ 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 the 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
123.75(j). The Memorandum of
Agreement shall provide for the
following:
(1) Prompt-transmission to the
Regional Administratçr of a copy of all
complete permit applications received
by the State Director, except those for
w iich permit review has been waived
under § 123.6(e). 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 Slate 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
1 123.8(e). 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 Deputy
Assistant Administrator for Water
Enforcement 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 § 122.61(b) and
40 Q ’R 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 cemments
presented at any hearing on any draft
permit. except those comments
regarding permits for which permit
review has been waived under § 123.6(e)
and for which EPA has not otherwise
requested receipt, th
(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
(lii) Significant comments objecting to
the tentative determination and drait
permit have been presented at the -
hearing or In writing pursuant to the
public notice.
(d) Any Slate 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
complies with the requirements of CWA
or of this Part.
* 123.75 EPA review of and objections to
Stats permits.
(a)(1) The Memorandum of Agreement
shall provide a period of time tup to SO
days from receipt of proposed permits)
in which the Regional Administrator
may make general comments upon,
objection, to, or recommendations with
respect to propcoed 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
field 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
proposed general permit. a d Is
bound by any shorter time limit.
the Memorandum of Agreement for
general comments. objections or
recommendations. The EPA Depu..
Assistant Administrator for Water
Enforcement 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)(1) 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 pernut (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 objections.
(2) Within 90 days following receipt of
a proposed permit to which he or she
has objected under paragraph (b)(i) of
this section, or in the case of general
permits within 9osdays after receipt of
the proposed general permit, the
Regional Administrator, or in the case of
general permits other than for separate
storm sewers, the Regional
Administrator or the EPA Deput
Assistant Administrator for Wat
Enforcement, shall set forth in writ
and transmit to the State Director
- (I) A statement of the reasons for the
objection (including the section of CWA
or regulations thereunder 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 then 90 da a for EPA to supply
the specific grounds for an obiection.
Howr,er. when an agreement provides for an
EPA review period of less then 90 days. EPA
must file a generat objection. In accordance
with paragraph (b)(1) 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 10
provide detailed information concerning
acceptable permit conditions, as required by
section 402(d) of CWA. To avoid possible
confusion, MOA’s should be changed to
reflect this arrangementl
(c) The Regional Administrator’
objection to the Issuance of a pr
permit must be based upon one
of the following grounds:
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(1) The permit falls to apply, or to•
ensure compliance with, any applicable
requirement of this Part
(Nota.—For example, the Regional
Administrator may object to a permit itot
requirir.g the achievement of required effluent
limitation, 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
(8) In the case of any proposed permit
with respect to which applicable
effluent standards and limitations under
sections 301, 302, 308, 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
f 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 l 123.74;
(2) May, If the Information provided Is
jnadequate 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
123.74, 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;
(a) 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 p bllc
hearing in accordance with the
procedures of II 124.12 (c) and (d) shall
be held, and public notice provided in
accordance with I 124.10. whenever
requested by the State or the interstate
agency which proposed the permit or if
warranted by significant public interest
based on requests received.
(I) 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)(1) If no public hearing Is held
under paragraph (e) of this section and
theState 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 (a) 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 Deputy Assistant Administrator for
Waler Enforcement” after “Regional
Administrator” whenever it appears in
paragraphs (cHh) of this section.
(j) The Regional Administrator may
agree, in the Memorandum of
Agreement under 123.8, 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.
* 123.76 ProhibItion.
State permit programs shall provide
that no permit shall be issued when the
Regional Administrator has objected in
writing under 123.75. -
123.77. Approval pr eess.
(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 mall 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
Slate, The notice shalk
(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:
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33472
Federal Reglster.i VoL 45, No. 98 I Monday, May 19, 1980 1 Rules and Regulations
(4) IndIcate where and when the
State’s submission may be reviewed by
the pubhc
(5) IndIcate whom en Interested
member of the public should contact
with any questions; and
(8) Briefly outline the fundamental
aspects of the States proposed program,
and the process for EPA review and
decision.
(b) WithIn 90 days of the receipt of a
complete program submission under
* 123.3 the Athnln4atrator shall approve
or disapprove the program based on the
requirements of this Part and of CWA
and t 1Ihkg into consideration all
co”. ts 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 Adminisfrator 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.
Subpart E—Additlonal Requirements
for State Programs Under Section 404
of the Clean Water Act
0123.91 Purpose and scope.
(a) This Subpart describes additional
requirements, both prodedural and
substantive, for State permit programs
under section 404 of CWA (regulating
discharges of dredged or fill niatunal).
Because EPA does not operate the
section 404 program, the permit
requirements in Parts 122 and 124 are
relevant to section 404 programs only to
the extent they are made applicable to
State section 404 programs in § 123.7(a).
Additional permit application and
processing requirements applicable to
State 404 programs are set out In this
Subpart.
(b) The requirements for State section
404 programs are promulgated under the
authority of sections 101(e) and 501(a) of
CWA .
(c)’No partial section 404 programs
will be approved by EPA. Except as
provided in 123.92, 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)(1) of CWA
to coverage of such State regulated
waters. See the definition of”State
regulated waters” in I 122.3.
(d) Under section 404(h)(5) oFCWA,
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.
* 123.92 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:
(1)(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)(1)(iliJ of this
section.
(LI) To fall under this exemption, the
activities specified in paragraph (a)(1)(i)
of this section must be part of an
established (La., on-going) farming,
ailviculture, 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
farming, silvicuiture, 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 coverted 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
established farming. silviculture, or
ranching operation.
(ili)(A) CultivoLing means physical
methods of soil !rea nent employed
within established farming, ranching
and ailviculture Lands on farm, ranch, or
forest crops to aid and improve their
growth quality or yield.
(B) Hor.’esting means physical
measures employed directly upon farm,
forest. or ranch crops within established
agricultural and silvicultural lands to
bring about their removal from farm.
forest or ranch land, but does n
Include the construction of farm,.
or ranch roads.
(C)(1) Minor Drainage means:
(i) The discharge or dredged or
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 (diyland)
facilities, such as ditching and tiling,
incidental to the planting, cultivating.
protecting, or harvesting of crops,
involve no discharge of dredged or fill
material Into waters of the United
States, and as such never require a
sectIon 404 periniL):
(ii) The discharge of dredged or fill
material for the purpose of installing
ditching or other such water control
facilities L’ cidental to planting,
cultivating. protecting. or harvesting of
rice, cranberries or other wetland 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
(wl The discharge of dredged or fill
material for the purpose of manipulating
the water levels of, or regulating t’
flow or distribution of water witT
existing Impoundment3 which ha
constructed in accordance with
applicable requirements of CWA. ar..
which are in-established use for the
production of rice, cranberries, or other
wetland crcp species:
(Note—The provisions of partigrapha
(a)(1)(ii iJ(C)(i)(j/) and (iii) of this section
apply to areas that are in established use
exclusively for wetland crop production as
well a. areas in established use for
conventional wetland/non-wetland crop
rotation (e.g.. the rotations of rice and
soybeans whese such rotsion results in the
cyclical or wtermitteiu telnporaiy dewateririg
of such areas.J
(iv) The discharge of dredged or fill
material incidental to the emergency
removal of sandbars, gravel bars, or
other almilar 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 or would impair or
prevent the plowing, seeding, harvesting
or cultivating of 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
affected drainageway as It exists
to the formation of the blockage.
Removal must be accomplished within
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33473
one year of formation of such blockages
In order to be eligible for exemption.
(2J Minor drainage In waters of the
US. Is limited to drainage within areas
that ate part of an established farming
or silviculture operation. It does not
include drainage associated with the
Immediate or gradual conversion of a
wetland to a non.wetland (e.g.. wetland
species to upland species itot typically
adopted 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 tiliage. including moldboard.
chisel. or wlde.blade. plowing. discing.
harrowing. and similar phycical 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 spoiL rock.
sand, or other surflcial materials in a
manner which changes any area of the
waters of the United States tc dry land.
For example, the redistribution of
surface materials by blading. grading. or
other means to fill in wetland areas is
not plowing. Rock crushing activttles
which result in the loss of natural
drainage characteristics, the reduction
of water 3torage 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 pla. ement of soil beds for seeds or
seedlings on established farm and forest
lands.
(2) Mainteuance. including emergency
reconstruction of recently damaged
parts, of currently serviceable structures
such as dikes, dams, levees, groins.
riprap, breahvaters, 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 within this exemption. Where a
trap. weir, groin, wall, jetty or other
structure within waters of the U.S..
which will result In significant
discarnable 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 buildings.
roads, and other discrete structures and
the installation of support facilities
necensary for construction and
utilization of such structures. The term
also includes any other land areas
which involve land-disturbing
excavation activitieq. 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 progran under
section 208(b)(4) of CWA which meets
the requirements of sections 208(b)(4)
(B) and (C).
(6) ConstructIon or maintenance of
farm roads, forest roads, or temporary
roads for moving mining equipment.
where such roads are constructed and
maintained 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. These 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 123.4(h)(4). and shall also include
the following baseline provisions:
(i) Permanent roads (for farming or
forestry activities), temporary access
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 d!edged or fill material
into waters of the US.
(iii) The road fill shall be bridged.
culverted, or otherwise designed to
prevent the restriction of expected flood
flows
(iv) The fill ahall be properly
stabilized and maintained during and
following construction to prevent
erosion
(vJ Discharges of 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
it.celf,
(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 ol aquatic
life inhabiting the water body’.
(viii) Borrow material shall be taken
from upland sources whenever feasible;
(ix) The discharge shall not take, or
jedpardize the continued existence of. s
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 areas 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 sippiy
intake;
(xli) The discharge shall not occur in
areas of concentrated shellfish
production;
(xlii) The discharge shall not occ-. r 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 o.lglnai elevation.
(b) If any discharge of dredged or fill
material resulting from the activities
listed in paragraphs (a) (1)—(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
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33474 1ed Register f VoL
45, No. 98 / M&idey, May 19, 1980 / Rules and Regulations
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) (1)-(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.
(NoteeFor example. a permit will be
required for the conversion of a cypress...._.
swamp to some other use or the conversion of
a wetlsnd from silvicultural to agricultural
use when there isa discharge of dredged or
fill materials Into waters of the United States
In conjunction with consnctloc of dikes.
drainage ditches or other works or stuctures
used to effect such conversion. A dischaip
which elevates the bottom of waters of the
Valued Stales without converting It to dry
land does not thereby reduce the reach ot
but may alter the flow or circulation of.
waters a! the United Ststes.J
(d) Federal projects which qualify
under the criteria contained in section
404(r) of CWA (Federal projects
suthorized by Congress when 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.
•123.93 Prohibitions.
No permit shall be Issued by the State
Director in the following clrcumstancet
(a) When the conditions of the permit
do not comply with the requirements of
CWA. or regulations and guidelines
Implamenting CWA. IncludIng the
section 404(b)(1) environmental
guidelInes (4.0 CFR Part 230).
(b) When the Regional Administrator
has objected to Issuance of the permit
under section 404(1) of CWA and the
objection has not been resolved.
(c) When. In the judgment of the
Secretaq 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.
912334 PermIt applloadon.
(a) Rib//city and precpplicot/on
corsultotioit 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 prespplication
consultation as part of this program to
assist applicants In understanding the
requirements of the environmental
guidelines Issued under section 404(b)(ll
of CWA (40 C It Part 230) and I tt
fulfilling permit application
requirements.
(b) Application for permit Except
when an activity Is authorized by a-
general permit under 1 123.95 or Is
exempt from the requirement to obtain a
permit under 9 123.92. any person who
proposes to discharge dredged or fill
material into State regulated waters
shall complete, sign and submit an
application to the Slate Director. Stats
application forms are subject Ic EPA
review and approval. -
(c) Content of Application. A complete
applica lion shall Include the following
lnformation
(1) A complete description of theY
proposed activity Including:
(iJ Name, address, and phone number
of the applicant the names, addresses,
- end phone numbers of owners of
properties adjacent to the site and, If
appropriate, fife location and
dimensions of adjacent struchjres
(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 qunntity of
the materlak the proposed method of
transportation and disposal of the
material, Including the type of
equipment to be used; and the extent (In
sores) 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 flub and a schedule for the
proposed activity;
( Iv) A list of the approvals required by
other Federal, Interstate. State and local
egenclea 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 Pert 230. including the followinw
(1) A description of known -
alternatives to the proposed died.
Including alternative disposal sites,
construction methods, methods of
discharge, and reasons for rejecting
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 apecial protection or
pneervadon
(ill) Plants, fish, shellfish. and wildlife
In the dlspoaal site which may be
dependent on water quality and
quantity;
(lv) 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 mpoaes to minimize adverse
environmental effects of the discharge.
Guidelines for minimizing the adverse
effects of diachergea of dredged or fill
material are found In 40 CIt Part 230.
lNota.—The State shall provide permit
applicants with guidance. either through the
application form or en 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 4
size of dlschargt proximity to critical
likelihood of presence of long-lived to
chemical substances, and degree of
environmental degradation.)
(3) One original set of drawings and
maps. or one set of drawings end maps
otreproducible 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 waterwar
(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 cloaest practicable access
to the alte;
(E)Nonb arrow;
(F) Arrows showing flow and
circuletlon patternL
(G) E tieting ahoroli.nes or ordinary
high watermark;
(H) l,ocstlon of known wetlands;
(I) Water depths and bottom
configuration around the project
if) Delineation of disposal site;
(IC) Size-relationship between the
proposed disposal site and affected
waters (e a ¼ acre fill Inal s-acre
wetland);
(L) Location of previously used
dredged material disposal altos wit..
remaining capacity In the vicinity of th
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Federal Register I Vol. 45, No. 98 f Monday, May 19. 1980 / Rules and Regulations
33475
project. The map must indicate retention
levees, weirs. and any other devices for
retaining dredged or fill materials: and
(M) Location of structures, if any, In
waters of the United States immediately
adjacent to the proposed activity,
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 of adjacent
property owners whose property also
adjoins the water and who are not
8h3wn in the plan view;
(B) A title block for each sheet
submitted identifying the proposed
activity and containing the name of the
body of watei- river mile, if applicable;
name of county, State and nearest
Incorporated municipality name of
applicant number of the sheet and the
total number of sheets in set: and date
the drawing was prepared: and
(C) Graphic or numerical scale.
§ 123.95 General permits.
(a) Coverage. The State Director may
issue a general permit for similar
activities as specified in paragraph
(b)(1) 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 § 122.7
and 223.97. and the applicable
requirements of § 123.98, each general
permit shall contain conditions as
follows:
(1) Activities: A specific description of
the type(s) 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:
(lii) The depth of fill permitted:
(lv) The maximum extent to which an
area may be modified: and
(v) The size and type of structures 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 of
waters or wetlands where operations
may be conducted, to ensure that the
requirements of paragraph (a) of this
section are satisfied.
(3) Notice: The permit shall contain a
requirement that no activity is
authorized wider 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. I
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.
(c) Requiring an indMduolperraiL
(1) Upon receiving notice under
paragraph (b)(3) of this section. the State
Director may require, at his discretion,
that the owner or operator apply for an
individual permit. Cases where an
Individual permit may be required
Include:
(I) 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 (b)(3)
of this section that an individual permit
application is required for tha t activity.
the acti lty 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.
§ 123.98 Emergency permits.
(a) Coverage. Notwithstanding any
other provision of this Part or Part 124.
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:’ar d
(2) The anticipated threat or loss may
occur before a permit can be issued or
modified under the procedures
otherwise required by this Part and Part
12t
(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 § § 122.7.
123.97 and 123.98.
(2) Any emergency permit shall be
limited In duration to the time required
to 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.cornplete 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.
(8) 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.
§ 123.97 Additional conditions applicable
to all 404 permits.
The following conditions, in addition
to those set forth in § 122.7, apply to all
404 permits:
(a) The permittee need not comply
with the conditions of this permit to the
extent and for the duration that such
noncompliance is authorized in an
emergency permit. (See * 123.98.)
(b) Activities are not conducted under
the authority of this permit if they are
not specifically identified and
authorized in this permit.
‘(c) The permittee shall maintain the
authorized work area in good condition
and hi accordance with the
requirements contained in this permit.
(d) 11 any applicable water quality
standards are revised or modified. or I!
a toxic effluent standard or prohibition
under CWA section 307(a) is establisb.ed
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 :o the
standard, limitation or prohibition.
§ 123.99 EstablishIng 404 pennit
conditions.
In addition to the conditions
established wider § 122.8(a), each 404
permit shall include conditions meeting
the following requirements, when
applicable:
(a) Identification. A specific
identification and description of the
authorized activity. Including:
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Federal Register g’ Vol. 45, No. 98 I Monday. May 19, 1980 / Rules and Regulations
(1) The name and address of the
permittee and the permit application
identification number
(2) The use or purpose of the
discharge;
(3) The type and quantity of the
materials to be discharged;
(4) Any structures proposed to be
erected on fill materiab and
(5) The location and boundaries of the
discharge site(s). including a detailed
sketch and the name and a descriptiot ,
of affected State regulated-waters.
• (b) L.a vfrorzmental guidelines.
Provisions ensuring that the discharge
will be conducted in compliance with
the environmental guidelines Issued
under section 404(b)(1) of CWA (40 CFR
Part 230). 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.
(c) 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
shall be modified as provided in
* 123.97(d).
(d) 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
* 123.97(d).
(e) Best Management Practices.
Applicable Brvws approved by a
Statewide CWA section 208(b)(4)
agency as provided in the agreement
described in § 123.102(a)(1).
(I) General permits. Any conditions
necessary for general permits as
required under * 123.95.
(g) Commencement of work. A
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.
§ 123.99 Memorandum of Agreement with
the Sscretar
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 Rivers and Harbors
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 Issued 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 any application 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.
(I) 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 only
the Secretary may Issue section 404 permits
(by virtue of section 4 OS(gJ(1j of CWAJ. the
Slate Is strongly encouraged to establish in
this MOA procedure. for joint processing of
Federal and State permits. including joint
public notices and public hearlngs.J
123.100 TransmissIon of informal
EPA sad other Federal ageadis
(a) The Memorandum of Agreeme
under 123.6 shall provide for the
following:
(1) Prompt transmission to the
Regional Administrator (by certified
mail) and to ihe Corps of Engineers, the
U.S. Fish and Wildlife Service, and the
Notional Marine Fisheries Service of a
copy of all complete permit applications
received by the State Director, except
those for which permit review has been
waived under 123.6(f)(1)(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 reivew
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, an
National Marine Fisheries Servic
notice of every action taken by the.
agency related to the consideration
any permit application, including a c
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 Lime of transmission of the
complete permit application, for
discharges listed in § 123.6(fl{1)(i)(A)—
(E);
(Ii) Upon request of EPA in
accordance with 123.101(e)(3), for
discharges not listed in
I 123.6(f)(1)(i)(A)—(E). unless EPA has
waived review under I 123.6(fl(1)(i).
(3) Prompt transmission to the
Regional Administrator, the Corps of
Engineer., 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 Engine-
the U.S. Fish and Wildlife Servjc,
the National Marine Fisheries Set
a copy of every issued permit fo l lowi,. 0
issuance, along with any and all
conditions and requirements.
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Federal Register I VoL .45, No. 98 I Monday, May 19. 1980 I Rules and Regulations
33477
(b)(1) State section 404 programs shall
comply wfth the draft permit
requirements of 00 124.6 (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 * 123.101, 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 123.8(f)(1)(I), shall be based on
the permit application. For these
discharges, States need not comply with
124.0 (a), (c), (d), and (e) or 124.8.
I 123.101 EPA review of and objections to
Stats 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 0123.100), or
draft general permits within 90 days of
receipt. If the Regional Administrator v
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.
(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 Dlrecton
(1) A statement of the reason(s) for
the objection (Including the section of
CWA or regulations thereunder that
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 haa
received an objection to a permit
application. draft permit, or draft
general permit under this section and
has taken the steps required by the
Regional 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 baeed upon one or more of the
following grounds:
(1) The permit application, draft
permit. or draft general permit falls to
apply, or to ensure compliance with, any
applicable requirement of this Part;
(2) In the case of any permit
application for which notification to the
Administrator I. required under section
404(b)(1)(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 * 123.102(c));
(3) The procedures followed in
connection with processing the permit
failed In a material respect to comply
with i,rocedures required by CWA. by
this Part by other regulationf and.
guidelines thereunder, or by the
Memorandum of Agreemeiit
(4) Any finding made by the State
Director in connection with the draft
permit or draft general pe’rmit
misinterprets CWA or any guidelines on
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,
mpnltoring. 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 water quality standards,
required by CWA, by 40 R Part 230,
or by the draft permit or draft general
permit;
(8) The Information contained In the
permit application Is Insufficient to
Judge compliance with 40 O ’R Part 230
or
(7) Issuance of a permit would In any
other respect be 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
section, the Regional AdminIstrator
(1) Shall consider all data transmitted
pursuant to * * 123.100 and 123.102.
(2) Shall, If the Information provided
Is Inadequate to deteruzlne’whethar 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
AiImlnI.trator 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 § 123.100. It shall
constitute an Interim objection to 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 other Information requested.
(3) May. In the case of discharges for
which a draft permit Is not
automatically required under
O 123.100(a)(2)(i), request within 30 days
of receipt of the permit application that
the State Director prepare a draft permit
under * 123.100(a)(2)(ii). The draft
permit shall be submitted to EPA and
other Federal agencies, as required
under I 123.100(a)(2). When a draft
permit Is prepared under this
subparagraph. Federal and public
review shall recommence under
O 123.100(b)(1). The Regional
Administrator’s period for review shall
begin upon receipt of the draft permit.
(Note.—lt is anticipated that draft permits
will be requested only In exceptIonal end/or
complex cases.l
(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 objection.
(f) WIthin 90 days of receipt 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
Ad rthIstrator on the objection. A public
bearing In accordance with the
procedures of §0 124.12 (c) and (d) shall
be held. and public notice provided in
accordance wIth 0 124.10, 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
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33478 Federal Register I Vol. 45. No. 98 I Monday. May 19, 198 I Rules and Regulations
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.
(h) Following the public hearing the
ReglonatAdministrator shall reaffirm
the original objection. modify the terms
of the objection, or withdraw the
objection, and shall notify the State of
this decision. -
(lJ(T) If no public hearing is held under
paragraph (I) of this seciion.and. the
State does not resubmit a permit revised
to meet thekeglona l 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 acdordance with
the guidelines and 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 Its intent to deny the permit
withIn 30 days of the date of the
Regional Administrator’s notification
under paragraph (h) of this section, the
Secretary may Issue the permit in
accordance with the guidelines and
regulations of CWA..
123.102 CoordInation requirements.
(a) Canary.) coardination. (1).If the
State has a Statewide CWA section
208(b)(4) regulatory program, the State
Director shall develop an agreement
with the agency designated to
administer such program. The agreements
shall include:
(I) A definition of the activities to be
regulated by each program:
(ii) Arrangements providing the
agencies an opportunity to comment on
prospective permits, BMPs. and other
relevant actions; and
( Iii) Arrangements incorporating SMPs
developed by the section 208(b)(4)
program into section 404 permits, where
appropriate.
(Z) Where a CWA section 208(bX4)
program has been approved under
section 208(b)(4)(C), no permit shall be
required for activities for which the
Administrator has approved BMPs
under such approved program except as
provided In 123.92 (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(les) with
Jurisdiction over fish and wildlife
?‘esources.
(b) Coordination with other Federvi
and Federal-State review processes.
State sectlon .404 programs shall assure
coordination. otState. sectlon404 permits
with Federal and. Federal-State water
related.plannlng and review processes.
(1) The StateDirector shall assure that
the Impact of proposed discharges will
be consistent wIth the Wild and Scenic
Riven Act when th&proposed discharge
could affect portions of rivers
designated wild, recreational, scenic, or
un ’der 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 andcomm nts to the
Regional Administrator within 50 days
of receipt by the Regional Administrator
of the permitapplication, draft permit.
or draft general permit. The Regional
Administrator may allow any such
agency up to an additional 30 days (0.
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 sucfl 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 doing.
(Nots.—States are encouraged to receive
and use information developed by the’
Fish and Wildlife Service as part of Ui
National Wetlands Inventory as it beci.
avai lab le.j
§ 123.103 Enforcement authority.
In addition to meeting the
requirements of § 123.9, State section
404 programs shall include procedures
which enable the State Director 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 protective order, or
restoration order to any person
responsible for, or Involved in, an
unauthorized discharge.
§ 123.104 Approval process.
(a) Within 10 days of receipt of a
complete State section 404 program
submission under § 123.3, the
Administrator shall provide copies of
the State’s submission to the Corps of
Engineers, the U.S. Fish and Wildlife
Servtce, 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 atten”
and shall mail notice to persons ki
to be interested in such matters,
Including all persons on appropriate
State, EPA. Corps of Engineers, U.S. F .
and Wildlife Service, and National
Marine Fisheries Service mailing lists
and all permit holders and applicants
within the State. This notice ghall:
(1) Provide a comment period of not
less than 45 days during which
interested members of the public may
express their views on the Slate
program:
(2) Provide for s_public hearing within
the State to be held no less than 30 days
after notIce of the hearing is published
In the Federal Reglster
(3) Indicate the cost of obtaining a
copy of the State’s submissiotu
(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 questianm and
(6) Briefly ‘utline the fundamental
aspects of the State’s proposed pro -’
and the process for EPA review and
decision.
(c) WIthin 90 days of receipt of a
complete program submission under
§ 123.3, the Corps of Engineers, the
Fish and Wildlife Service, and the
National Marine Fisheries Service.
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33474
submit any comments on the State
program.
(d) Within 120 days of the recqlpt of a
complete program submission under
§ 123.3. 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. The Administrator shall
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 Slate and the Secretary
and publish 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)(1) of CWA and not
Identified in the program description
under § 123.4(h)(1) as State re3ula ted
waters.
(I) 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 Slate program
which are necessary to obtain approval.
Subpart F—Requirements for Interim
Authorization of State Hazardous
Waste Programs
t 123.121 Purpose and scope.
(a) This subpart specifies all of the
requirements a State program must meet
In order to obtain interim author .zation
under section 3006(c) of RCRA. The
requirements a State program must meet
itt order to obtain final authorization
under section 3006(b) of RCRA are
specified In Subparts A and B.
(b) Interim authorization of State
programs under this Subpart may occur
in two phases. The first 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 261). generators (40
CFR Part 262) and transporters (40 CFR
Part 263) of hazardous wastes, and
establishes preliminary (Interim status)
standards for hazardous waste
reatment. storage and disposal facilities
(40 CFR Part 253). The second phase
(Phase U) allows States with Interim
authority for Phase Ito establish a
permit program for hazardous waste
freabnent, storage and dl posal facilities
In lieu of and corresponding to the
Federal hazardbus waste permit
program (40 CFR Parts 264 and 266).
States may apply for interim
authorization either sequentially
(application for interim authorization for
Phase I followed by an amendment of
that application for Phase II) or all at
once (application for interim
authorization for both Phases I and II at
the same time) as long as they adhere to
the schedule In § 123.122.
(c) The Administrator shall approve a
State program which meets the
applicable requirements of this Subpart.
(d) Upon approval of a State program
for Phase II, the Administrator shall
suspend the Issuance a? Federal permits
for those activities subject to the.
approved State program.
(e) Any State program approved by
the Administrator under this Subpart
shall at all times be conducted in
accordance with this Subpart.
(I) 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.
INote.—States are advised to contact The
United States Department of Interior, Bureau
of Indian Affairs, concerning authority over
Indian lands.)
(g) Nothing is 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
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.
§ 123.122 Schedule. -
(a) Interim authorization for Phase I
shall not take effect until Phase l
commences. Interim authorization for
Phase II shall not take effect until Phase
II commences.
(b) Interim authorization may extend
for a 24-month period from the
commencement of Phase II. 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) A State may apply fof Interim
authorization at any time prior to
expiration of the 0th month of the 24-
month period beginning with the
commencement of Phase II.
(1) States applying for Interim
authorization prior to the promulgation
of Phase II shall apply only for interim
authorizatIon for Phase I.
(2) States applying for Interim
authorization after the promulgation of
Phase II but before the commencement
of Phase II may apply either for interim
authorization for both Phase I and Phase
II or only for interim authorization for -
Phase I.
(3) States applying for interim
authorization after the commencement
of Phape U shall apply for Interim
authorization for both Phase I and Phase
11, unless they have already applied for
Interim authorization for Phase I.
[ 4) States which have received interim
authorization for Phase I shall amend
their original submission to meet the
requirements for interim authorization
for Phase II not later than 6 months after
the effective date of Phase II.
(d) No State may apply for interim
authorization for Phase I I unless It has
received interim authorization for Phase
I or is simultaneously applying for
Interim authorization for both Phase!
and Phase II.
§ 123.123 Elements ota program
submission.
(a) States applying for interim
authorization shall submit at least three
copies of a program submission to EPA
containing the following:
(1) A letter from the Governor of the
State requesting State program
approval:
(2) A complete program description,
as required by § 123.124. describing how
the State intends to carry out its
responsibilities under this subpazt
(3) An Attorney General’s statement
as required by § 123.125:
(4) A Memorandum of Agreement
with the Regional Administrator as
required by § 123.126:
(5) An authorization plan as required
by § 123.127;
(6) 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 Its submission
Is complete. If a State’s submission is
found to be complete, EPA’s formal
review of the proposed State program
shall be deemed to have begun on the
datj of receipt of the State’s submisaion.
See § 123.135. If a State’s submission is
found to be incomplete, formal review
shall not begin until all the necessary
Information is received by EPA.
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33480
Federal Register I Vol. 45 No. 98 / Monday. May 19. 1980 I Rules and Regulations
(c) If the State’s submission is -
materially changed during the formal
review period, the formal review period
shall recommence upon receipt of the
revised-submission.
(d) States simultaneously applying for
intCrim authorization for both Phase I
and Phase II shall prepare a single
submission.
(e) States applying for interim
authorization for Phase II shall amend
their submission for interim
authorization for Phase I as specified in
*1 123.124 to 123.127.
g 123.124 Program description.
Any State that wishes to administer a
program under this Subpart shall submit
to the Regional Administrator a
complete description nf the program it
proposes to administer in lieu of the
Federal program under State law. A
State applying only for interim
authorization for Phase 11 shall amend
Its program description for interim
authorization for Phase I as necessary to
reflect the program it proposes to
administer to meet the requirements for
interim authorization for Phase II. 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 administenng the program including
the informat ion listed below. If more
than one agency is responsible for
- administration of the 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 one of the
agencies must be designated a “lead
agency” to facilitate communications
between EPA and the State agencies
having 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 section
shall indicate the resources dedic.ated to
administering the Federally required
portion of the program.
(1) A description of the State agency
staff who will be engaged in carrying
out the State program, including the
number, occupations, and general duties
of the employees. The State need not
submit a mplete job descriptions for
every employee engaged in carrying out
the State program.
(2) An itemization of the proposed or
actual costs of establishing and
administering the program. including
cost of the personnel listed in paragraph
(b)(1) 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 limitations upon this funding.
(c) A description of applicable State
procedures, including permitting
procedures, and any State appellate
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 substantialiy equivalent to 40 CFR
Part 266.1
(d) Copies of th forms and the
manifest format the State intends to use
in its program. Forms used by the State
need not be identical to the [ onus used
by EPA. but should require the same
basic information. If the State chooses
to use uniform national’ forms it should
so note.
(e) Acomplete description of the
State’s compliance monitoring and
enforcement program.
(f) A description of the State manifest
system if the Slate has such a system
and of the procedures the State will use
to coordinate information with othei
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 treatment, storage
and disposal facilities including a br 1 ef
description of the types of facilities and
an indication, if applicable, of the permit
status of these faciiitics.
§ 123.125 Attorney General’s statement.
(a) Arty State seeking to administer a
program.under this Subpart shall submit
a statement from the State Attorney
General (or the attorney for those State
or interstate agencies which have
independent legal ccunsei). that the
laws of the State, or the interstate
compact, provide adequate authority to
carry out the program described under
§ 123.124 and to meet the applicable
requirements of this Subpart. This
statement shall include citations to the
specific-statutes, administrative
regulations. and, where appropriate,
judicial decisions nhicb demonstrate
adequate authority. Except as provided
in § 123.128(dl, the State Attorney
General or in4ependent legal counsel
must certify that the enabling legislation
for the program for Phase I was in
existence within 90 days of the
promulgation of Phase I. In the . a
State applying for interim authorizatto
for Phase II, the State Attorney Ger
or independent legal counsel must
certify that the enabling legislation I o
the program for Phase H was in
existence within 90 days of the
promulgption of Phase II. State statutes
and regulations cited by the State
Attorney General or independent legal
counsel shall be lawfully adopted 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 Slate
program. In the case of a State applying
only for interim authorization for Phase
II, the Attorney General’s statement
submitted for interim authorization for
Phase I shall be amended and recertified
to demonstrate adequate authority to
carry out all the requirements of this
Subpart.
(b)(1) In the case of a State applying
only for interim authorization for Phase
I, the Attorney General’s statement shall
certify that the authorization plan ‘-
§ 123.127(a), if carried out, woulc
provide the State with enabling
authority and regulations adequate
meet the requirements for Final
authorization contained in Phase I.
(2) In the case of a State applying for
interim authoriza Lion for Phase II, the
Attorney General’s statement shall
certify that the authorization plan under
* 123.127(b), if carried Out, would
provide the State with enabling
authority and regulations adequate ;o
meet all the requirements for final
authorizatwa.
(c) Where a State seeks authority o er
activities on Indian lands, the statement
shall contain an appropriate analysis of
the State’s authority.
§ 123,126 Memorandum of Agreement.
(a) The State Director and the
Regional Administrator shall execute .i
Memorandum of Agreement (MOA). in
addition to meeting the requirements oi
paragraph (b) of this section, and, if
applicable, paragraph (c) of this sect:on,
the Memorandum of Agreement may
include other terms, conditions, or
agreements relevant to the
administration and enforcement of 1’
State’s regulatory program which are oi
inconsistent with this subpart. No
Memorandum of Agreement shall
approved which contains provisit.
which restrict EPA’s statutory overb
responsibility. In the case of a State
applying for interim authorization for
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- rederal Register I VoL 45. No. 98 / Monday, May 19, 1980 I Rules and Regulations
33481
Phase U, the Memorandum of
Agreement shall be amended and re-
executed to Include the requirements of
paragraph (c) of this section and any
revisions to the requirements of
paragraph (b) of this section.
(b) The Memorandum of Agreement
shall ipclude the following:
(13 ProvisIons for the prompt transfer
from EPA to the State of Information
obtained In noliflcatlon.s made pursuant
to section 3010 of RCRA and received by
EPA prior to the approval of the State
program. EPA Identification numbers for
new generators. transporters. and
treatment, storage, and disposal
facililies. and any other information
relevant to effective program operation
not already in the possession of the
State Director (e.g., pending permit
appl;catlons , compliance reports. etc.).
(2) ProvIsions specifying the frequency
and content of reports, documents, and
other Information which the State is
requu’ed to submit to EPA. The State
shall allow EPA to routinely review
State records, reports, and files relevant
to the adininistratiun and enforcement
of the approved program. State reports
may be combined with grant reports
when appropriate.
• (3) Provisions on the Slate’s
compliance monitoring arm enforcement
program. Including:
(i) Provisions for coordination of
compliance monitoring activities by the
State and EPA. These may specify the
basis on which the Regional
Administrator will select facilities or
actirities within the State for EPA
tnspecion. The Regional Administrator
will normally notify the State at least 7
days before any such Inspection: and
(ii ) Procedure3 to assure coordination
of enfor:ement activities.
(4) Pruvinior.s for modification of the
Memorandum of Agreement in
accordance with tide Part.
(5) A ;rovlsion allowing EPA to
condu t compliance Inspections of all
generators, transporters, and HWM
facilities during interim authorization.
The Regional Administrator and the
State Director may agree to limitations
regarding compliance inspections of
nnerators, transporters, and non-major
HW? l facilities.
(6) A provision that no limitations on
EPA compliance L’ispectlons of
generators, transporters, and non-major
HWM facilities under paragraph (b)(5)
of this section shall restrict EPA’s right
to inspect any HWM facility, generator,
or transporter 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.
(7) A provision delineating respective
State and EPA responsibilities during
the Interim authorization period.
(c) In the case of a State applying for
Interim authorization for Phase II. the
Memorandum of Agreement shall also
Include the following:
(1) ProvIsions for prompt transfer from
EPA to the State of pending permit
applications and support files for permit
Issuance. Where existing permits are
transferred to the State for
athninf fraUon. the Memorandum of
Agreement shall contain provisions
specifying a procedure for transferring
responsibility for 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 arid
categories of permit applications and
draft permits that the State Director will
send to the Regional A 4 mii i frator for
review and comment. The Slate Director
shall promptly forward to EPA copies of
permit applications and draft permits for
all major HWM facilities. The Regional
Administrator and the State Director
may agree to limitations regarding
review of and comment on permit
applications and draft permits for ncIn-
ma jot HVtrM facilities. The State
Director shall supply EPA copies of final
permits for all major HWM facilities.
(3) Where appropriate, provisions for
Joint processing of permits by the State
and EPA for facilities or activities which
require permits wider different
programs, from both EPA and the State.
123.12? 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 than the end of
the interim authorization period. This
plan shall Include the nature of and
schedules for any changes In State
legislation and regulations: resource
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 final authorization.
(a) In the case of a State applying only
for Interim authorization for Phase I, the
authorization plan shall describe the
additions end modifications necessary
for the State program to meet the
requirements for final authorization
contained In Phase L
(b) In the case of a State applying for
Interim authorization for Phase II, the
authorization plan under paragraph (a)
of this section shall be amended to
describe the further additions and
modifications necessary for the State
program to meet all the requirements for
final authorization.
123.121 Program requirements for
Interim authorization for Phase I.
The following requirements are
applicable to Slates applying for interim
authorization for Phase I. If a State does
not have legislative authority or
regulatory control over certain activities
that do nut occur in the State. the State
may be granted interim authorization for
Phase I provided the State authorization
plan wider 123.IV provides for the
development of a complete program as
soon as practicable after receiving
Interim authorization.
(a) Requirements for identification
and listing of hczordous waste. The
State program must control a universe of
hazardous wastes generated.
transported, treated, stored, and
disposed of In the State which is nearly
Identical to that which would be
controlled by the Federal program under
40 CFR Part 261.
(b) Requirements for generviors 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 wastes
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 § 1 282.40 and 262.41.
(4) The State program must require
that generators who accumulate
hazardous wastes for short periods of
time pr.or to shipment 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 1 282.50.
except that advance notification of
International shipment. as required by
40 CFR I 282.50(b)(1), shall be filed with
the Administrator. The State may
require that a copy of such advance
notice be filed with the Stale Director, or
may require equivalent reporting
procedures.
lNote.—Such notices shall be mailed to
Hazardous Waste Export, Duision for
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33482 Federal Register I Vol.
45, No. 98 I Monday. May 19, 1980- / Rules and Regulations
Oceans and Regulatory Affairs (A-lW), U.S.
Environmental Protection Agency.
Washington. D.C. 20480.3 -
(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
manifest system 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
specified In § 282.23(c) and 283.20(e);
and
(lii) 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 State 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 I 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 transporters carry the manifest with
all shipments, except in the case of
shipments by rail or water specified In
40 CFR I 283.20(e).
(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
I 283.30 and 263.31.
(d) limited exceptions from generator.
transporter, and related manifest
requirements. A State applying (or
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 interim authorization, If the
State authorization plan under § 123.127
delineates the necessary steps for
obtaining this authority no later than the
end of the Interim authorization period
under I 123.122(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 promulgation of Phase L If such
application Is made, It shall be made as
part pf the State’s submission for interim
authorization for Phase II. 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
traatmen6 storage, and disposal
facilities. States must have standards
applicable to HWM facilities which are
substantially equlvr!ent 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
requirements;
(3) Groundwater monltorfng
(4) Security to prevent unknowi.
unauthorized access to the facility
(5) FacIlity personnel training:
(6) Inspection, monitoring,
recordkeeplng, 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
(8J 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
public health or the environment;
(ii) To sue In courts of competeri
jurisdiction to enjoin any threateneu - -
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 $1000
per day or to seek criminal fines in at
least the amount of $1000 per day.
(2) Any State agency 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 or
administrative action to obtain remedies
specified In paragraph (fl(i) of this
section by any citizen having an interest
which Is or may be adversely affected:
or
(I.) Assurance that the State agency or
enforcement authority will:
(A) Investigate and provide written
responses to all citizen complaints
submitted pursuant to the procedures
specified In paragraph (g)(2)(iv) c”
section:
(B) Not oppose Intervention by
citizen where permissive intervention
may be authorized by statute, rule, or
regulation; and
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Federal Register / VoL 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
(C) Publish and provide at least 30
days for public comment on any
proposed settlement of a State
enforcement action.
(g) Requfremenls for compliance
ev’oiuaion 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.
(2) A State program shall have
Independent lns ection and surveillance
authority and procedures to determine
compliance or noncompliance with
applicable program requirements. This
shall 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 haxe failed to comply
with program requirements:
(ii) A program for periodic Inspections
of the activities subject to regulation:
(ill) The capability to Investigate
evidence of violations of applicable
program and permit requirements; and
(iv) Procedures for receiving and
ensuring proper consideration of
lriformaion 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.
(3) The State officers engaged in
compliance evaluation activities shall
have 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. monitor, or otherwise
Investigate compliance with the Slate
program. States whose law requires a
search walTant prior to entry conform
with this requirement
(4) 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.
I 123.129 AddItional program
requirements for Interim authorization for
Phau IL
In addition to the requirements of
123.128, the following requirements are
applicable to States applying for Interim
authorization for Phase IL
(a) State programs must have
standards applicable to hazardous
waste management facilities that
provid, substantially the same degree of
human health and environmental
protectica as the standards promulgated
under 40 CFR Parts 264 and £66.
(b) State programs shall require a
permit for owners and operators of
those hazardous waste treatment.
storage, and disposal facilities which
handle any waste controlled by the
State under 123.128(a) and for which a
permit Is required under 40 CFR Part
122. 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 operation
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 permit. Issued by the Stile
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 ha e
requirements for permitting which are
substantially equivalent to the
provisions listed In I I 123.7(a) and (b).
(e) No permit may be issued by a
Slate with Interim authorization for
Phase U with a term greater than ten
years.
• 123.130 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 trested, 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
requirement. In 49 O R Parts 172,178,
178, and 179 (e.g., for shipping paper,
packaging, labeling. marking. and
placarding).
•123.131 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 end
proposed remedies for any delay In
meeting milestones, and the anticipated
problems and sok.tions for the next
reporting period.
1123.132 Sharing I Information.
(a) Any information obtained or used
In the adininistrat’on of a State program
shall be avaIlable to EPA upon request
without restriction. U 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 2.11 EPA obtains from a State
Information that Is not cla.med 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 in
order to Lmp ement Its approved
program. EPA shall furnish to Stales
with approved programs information
submitted to EPA under a claim of
confidentiality, which the State need in
order to implement its approved
program. subject to the conditions in 40
QR Part 2.
I 123.133 CoordInation with other
programs. -
(a) Issuance of SLa e permits under
this Part may be coordinated, as
provided in Part 124. wIth issuance of
NPDES, 404. and UIC permit. whether
they are controlled by the State, EPA, or
the Corps of Engineers.
(b) The State Director of any
appro-,ed program which may affect the
pliinulng 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
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
State solid waste management plans
under section 4002(b) of RCRA (4C CFR
Part 250).
123.134 EPA review of State permits.
(a) The Regional Admlnistratcr may
comment on permit applications and
draft permits as provided In the
Memorandum of Agreement under
* 123.126.
(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 the
Regional Administrator.
(d) The Regional Administrator shall
withdraw such 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)(3J 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)(3j of
R RA 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
Administrat9r In commenting on the
perm.t application or draft permit stated
was necessary to Implement approved
Slate 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
permlttee 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 that
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 the permit conditions.
§ 123.135 Approval process.
(a) Within 30 days of receipt of a
complete program submission for
Interim authorization, the Regiondi
Administrator shall:
(1) Issue notice In the Federal Register
and In accordance with § 123.39(a)(1) of
a public hearing on the State’s
application for interim authorization.
Such public hearing will be held by EPA
no earlier than 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
submisalon and
(3) Note the availability of the State’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)(11 of this section, the Administrator
shcll 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 thu final
determination in the Federal Register
and in acccrdance with § 123.39(a)(1).
The notification shall lnc!ude 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 the same
procedures required in paragraphs (a)
and (b) of this section shall be used in
determining whether this amended
program submission meets the
requirements of the Federal program.
§123.136 WIthdrawal of Stat. programs,
(a) The criteria and procedures for
withdrawal set forth In § 123.14 and 15
apply to this section.
(b) In addition to the criteria in
§ 123.14, a State program may be
withdrawn If a Stats which has obtained
interim authorization fails to meet the
schedule for or accomplish the additions
or revisions of Its program set forth in its
authorization plan.
§123.137 Reversion of State pror—
- (a) A State program approved
Interim authorization for Phase I
terminate on the last day of the 0th,
month after the effective date of P
and EPA shall administer and enf
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
I 1Z3.122(c)(4).
(b) A State program approved for
Interim authorization for Phase I shall
terminate and EPA shall administer and
enforce the Federal program in the Sta’e
If the Regional Administrator
determines pursuant to I 123.135(c) that
a program submission amended
pursuant to § 123.12:!(c)(4) does not meet
the requireq ents of the Federal program.
PART 124—PROCEDURES F01
DECISIONMAKINO
Subpart A—General Program Requirements
se
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 di i
permits when EPA is the permitt.
authority.
124.10 Public notice of permit actions.
public comment period.
124.11 Public comments and requests for
public hearings.
124.12 Public hearings.
124.13 Obligation to raise Issues and
provide information during the publa
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 I. the permitting
authority.
124.19 Appeal of ECRA, UIC and PSD
permit..
124.20 ComputatIon of time.
124.21 Effective date of Part 124.
Subpart B—Specific Procedures Applicable
to ACM Permits (reserved]
Subpart C—Specific Procedures Applicable
to PSD Permits
124.41 DefInitions applicable to PSD
permits.
124.42 AdditIonal procedures for PSD
permit. affecting Class I areas.
Subpart D—Spsciflc Procedures Applicable
to NPDES Permits
124.51 Purpose and scope.
124.52 Permit, required on a ca.e-b
basis.
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Federal Register / Vol. 45, No. 98 I Monday. May 19.1980 / Rules and Regulations
124.53 State certification.
124.54 SpecIal provisions for State
certification and concurrence on
applications for sectIon 301(h) v ilance..
124.55 Effect of Slate certification.
124.58 •Fact sheets.
124.57 Public notice.
124.58 Special procedures for EPA-issued
general permits for point sources other
than separate storm sewers.
124.59 Conditions requested by the Corps of
Engineer. and other government
qencies.
124.00 Issuance and effective date and stay.
of NPDES permits. -
124.61 Final environmental impact
statement.
124.82 Decision on variances.
124.03 Procedures for variances when EPA
is the permitting authority.
124.64 Appeals 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—Evidentlary Hearing for EPA-
lasued NPDES PermIts and EPA-Terminated
RCRA Permlta
124.71. Applicability.
124.72 Definitions.
124.73 Filing and submission of documents.
124.74 Requests for evidentiary hearing.
124.7$ Decision on request for a hearing.
124.70 Obligation to submit evidence and
raise issues before a final permit is
Issued.
124.77 Notice of hearing.
124.70 Lx porte communications.
124.79 Additional parties and issues.
124.80 Filing and service.
124.81 Asslgiunent of Administrative Law
Judge.
124.82 ConsolIdation and severance.
124.83 Prehearing conferences.
12464 Summary determination.
124.05 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.
• .l v,rn.1v.Ia.y r..,.
Procedures
124.111 ApplIcability.
124.112 Relation to other Subparts.
124.113 PublIc notice of draft permit. 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.
124.118 SubmissIon of written comments on
draft permit
124.119 PresIding Officer.
124.120 Panel hearing.
124.121 OpportunIty for cross-examination.
124.122 Record for final permit.
124.123 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 Final decision.
124.127 Final decision If there is no review.
124.128 DelegatIon of authority; time
limitations.
Appendix A to Part 124—Guide to
Decisionmaklng under Part 124.
Authorlt3r Resource Conservation and
Recovery Act. 42 US.C. 6901 es :eq; Safe
Drinking Water Act. 42 US.C. 300(fl et seq;
Clean Water Act. 33 U.S.C. § 1251 el seq: and
Clean Air Act. 42 U.S.C. 1857 et seq.
Subpart A—General Program
Requirements
124.1 Purpose and scope.
(a) This Part contains EPA proce lures
for issuing. modifying. revoking and
reissuing. or terminating all RCRA, UIC,
PSD and NPDES “permits” other than
RCRA and UIC “emergency permits”
(see I I 122.27 and 122.40) and RCR.A
“permits by rule” (I 122.26). The latter
kinds of permits are governed by
Subpart A of Part 122. RCRA interim
status and LflC authorization by rule are
not “permits” and are colrezed by
specific provisions in Subpart A of Part
122. This Part also does not apply to
permits Issued, modifIed, revoked and
reissued or terminated by the Corps of
Engineers. Those procedures are
specified In 33 CFR Parts 320-327.
(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 P
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
administrative record, responding to
conunents, 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
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.
- .
Hesririgs Available Under This Pert
Pl eVam. (*1
Sutp.l
(2)
(7)
- , PIthSG hisluig
Evielialery hewe.g
Pen,i hw ig
RCnA ........ - ___ On *aft pen’ . it Ou.ciors cecet n er on ie (I) Penftt terme liMn (ncRA sect,on 3008) .._ (‘) 4) RAs wetion II Mu of sclic hearing
oisa*U ¶24 12) (2) With NPOESevalsnt ,wyhsarm(J 12474(bg2)) (1112412 and 124 ltllaK3))
— 121 When CerlIOhdit.d e,Vi NPO€S *85
p’ocaiud onder S.*8i,t ca ia I11(4)(l) ) .
On *85 71n 114. sl 04, • cruIoo on .e- Wel P470 55 einduitwy Ma mq (1124 74(b)(2))_ (1) At hA’s eweeer, ii Mu of
Oius l( 1I2412 1 (30124 12in0 1241l 1 )s 1 13 5
- When ccn,oMuIsd ..m P170 (5 *eft
oee,ud hider S, M P (f 124 I1I (s)(I)44
PSD.. On *ift SumS. it OrecWu dboixn er en ta. Not enulIuble (I1Z4.71( )) -— When weo ai.o m r470(S can ponmI .
08ca (I 2412). usaso er S,thpai Pd hA di... ., e
she yes dsa*ns rid not be vadeud
P470 (5 (other Slit, gunsraj On *841 punel. it Deuclosi dlaauuor er en iu (1) On ,s ieet to *isuungu my penlit 00ndesi S (II N AAi ellen r,It dunes, on pu ,w
peri lS) qi,s i t ( 1124 12) vcanes( 512474). i triuieno ,ruqi ,sal(f 12411 1).
Al hA’s duouSon Is atp 301(h) re u.st (21 Al hA’s 08on rihun IsSaut Is
- ( 112404(0)). huwu S tSd “ 1124 75(s) (2)
( II 2475 124111(13(2))
I S) At hAs dussitn Is my 301 ( 7,.) ri aer
(I ¶2 . 1 4 (b ))
NPOES (general penny ... _ On aiR print at Directs’s ómsetion er on is. Not svsd lu (p124 7IXu). _. N RAe encrenon m hue SI pia umig
oju i t( 1124 12) ( 1 124 111 1ak3))
404 —— On *8 11 psinut S 08 erøcsoon uteri no *sII Not avaisbIs (512471) — Not .v laotS (5 )24
pesInt it ec1ora duseSon S 08 re ,sst
(1124 12).
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Federal Register I Vol. 45, No. 98 I Monday. May 19. 1980 I Rules and Regulations
(d) This Part is designed to allow
permits for a given facility wider 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 wider
I 124.12. a single evidentiary hearing
under I 124.75, or a single non-
adversary panel hearing wider § 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, NPDES. and 404
permit programs. These requirements
are listed in 1233 and signaled by the
following words at the end of the
appropriate Part 124 section or
paragraph heading (applicable to State
programs, see 123.7). Part 124 does not
apply to PSD permits issued by an
approved State.
(f) To coordinate decisionniaking
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 I 123.6.
I 124.2 DefInitions.
(a) The definitions in Part 122 apply to
this Part except for PSI) permits which
are governed by the definitions in
§ 124.41.
(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 wider I 1233. The term
“Regional Administrator” is used when
the accompanying provision applies
exdusively to EPA-Issued permits and is
not applicable to Slate programs wider
§ 123.7. 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 hearing” means
any evidentiary hearing under Subpart E
or any panel hearing under S bpart F
but does not mean a public ll aring
conducted under § 124.12,
1124.3 ApplIcation for a permit
(a) (Applicable to State programs, see
I 123.2’). (1) Any person ‘who requires a
permit under the RCRA, UIC, NPDES, or
PSI) programs shall complete, sign, and
submit to the Dfrector an application for
each permit required under § 1 122.21
(RCRA). 122,31 (UIC). 40 CFR 52.21
(PSD), and 122.51 (NPDES). Applications
are not required for RCRA permits by
rule (I 122.26). underground injections
authorized by- rule (I 122.37). NPDES
general permits (0 122.59) and 404
general permits (0 123.95).
(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 00 122.4, 122.22 (RCRA). 122.38
(UIC), 40 CFR 52.21 (PSD). and 122.53
(NPDES). -
(3) Permit applications (except for
PSD permits) must comply with the
signature and certification requirements
of § 122.6.
- (b) In the case of a PSI) permit issued
to a facility or activity which 40 CFR
§ 52.21(k) exempts from the
requirements of I 52.21 (1), (a), and (p),
no proceedings wider this Part shall be
held to the extebt that the Regional
Administrator determines that
proceedings providing the public with at
least as much participation as this PartS
In the material determinations involved
have already been held in the process of
granting construction appro uI under the
applicable State ixnplementa t ioO plan.
The Regional Admlnis:rator shall briefly
document that finding and make it
available to any member of the public
upon request. The Regional
Administrator shall prepare a draft
permit under I 124.6 and follow the
applicable procedures wider this
the extent he or she I. unable to make
finding under this subparagraph.
(c) The Regional Administrator
review for completeness every
application for an EPA-issued perm t.
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 en 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 -, -Il
specify in the notice of deficienc
for submitting the necessary
information. The Regional Adminis’
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) U 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.
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Federal Register I Vol. 45, No. 98 I Monday,- May 19, 1980 / Rules and Regulations
33487
(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.
1124.4 ConsolidatIon of permit
processing.
(a)(1) 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 Lime, the
statements of basis (required under
I 124.7 for EPA-issued permits only) or
fact sheets (1 124.8), administrative
records (required under I 124.9 for EPA.
Issued permits only), public comment
perIods (1 124.10), and any public
hearings (I 124.12) on those permits
should also be consolidated. The final
permits may be issued together. They
need not be issued together ii in the
Judgment of the Regional Administrator
or State Director(s), joint processing
would result In unreasonable delay in
the issuance of one or more permits.
- (b) Whenever an exisiting 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 paragraphs (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 P for an
- NPDES. RCRA, or UIC permit, any
permit(s) with which that NPDES. RCRA
or 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
I 124.3(f).
l24.5 Modification, revocation and
reissuanee, or termination of permits.
(a) (Applicable to Slate programs, see
1123.7). 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, permits
may only be modified, revoked and
reissued. or terminated for the reasons
specified in I I 122.15 or 122.16. 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
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
I 123.7). (1) If the Director tentatively
decides to modify or revoke and reissue
a permit under I 122.15, 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 permit
application. In the case of revoked and
reissued pennits. 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
relssuance 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 I 122.17 are not subject to the
requirements of this section.
(d) (Applicable to Stale progrwns. see
I 123.7). If the Director tentatively
decides to terminate a permit under
O 122.16. 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 0 124.6. In
the case of EPA-Issued permits. a notice
of intent to terminate shall not be issued
if the Regional Administrator and the
pernuttee agree to termination In the
course of transferring permit
responsibility to an approved State
under 0 123.6(bj(1).
(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
* 124.9.
(fl (Applicable to St ate programs, see
0 723.7). Any request by the perinittee
for modification to an existing 404
permit (other than a request for a minor
modification as defined in I 122.17) ahaU
be treated s a permit applIcation and
shall be processed In accordance with
all requirements of 0 124.3.
(g)(1) (Reserved for PSD Modification
Provisions)
(2) PSD permits maybe terminated
only by rescission under 0 52.21(w) or
by automatic expiration under 0 52.21(s).
Applications for rescission shall be
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Federal Register I Vol. 45, No. 98 / Monday. May 19, 1980 I Rules and Regulations
processed under § 52.21(w) and are not
subject to this Part.
ji24.6 Draft permits.
(a) (Applicable Ia Stole programs, see
I 123.;). 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 nc draft permit Is
required under § 123.100) 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 I 124.6 (e). If the Director’s
final decision (I 124.15) is that the
tentative decision to deny the permit
application wes incorrect, he or she
shall withdraw the notice of intent to
deny and proceed to prepare a dr ft
permit under paragraph (d) of this
section.
(c) (Applicable to Slate programs, see
I 123.7). If the DL-ector tentatively
decides to issue an NPDES or 404
general permit, he or a te shall prepare a
draft general permit under paragraph (d)
of this section.
(d) (Applicable to State programs, see
I 123.2). Il 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 II 122.7 and
122.8 (except for PSD permits);
(2) All compliance scheddes under
0 122.10 (except for PSD permits):
(3) All monitoring requirements under
0 122.11 (except for PSD permits); and
(4) Fan
-(i) RCRA permits, standards for
treatment, storage, and/or disposal and
other permit conditions under { 122.28;
(Ii) UIC permits, permit conditions
under I 122.42;
(Iii) PSI) permits, permit cor.dftlons
under 40 CFR I 52.21;
(Iv) 404 permits, permit conditions
under § { 123.97 and 123.98:
(v) NPDES permits, effluent
limitations, standards. prohibitions and
conditions under { 122.60 and 122.81,
Including when applicable any
conditions certfled by a Stare agency
under 0124.55, and all variances that
are to be included under I 124.63.
(e) (Applicable to State programs, see
I 1237). All draft permits prepared by
A under this section shall be
accompanied by a statement of basis
(0 124.7) or fact sheet (I 124.8), and shall
be based on the administrative record
(0 124.9). publicly noticed (I 124.lOj and
made available for public comment
(I 124.11). The Regional Administrator
shall give notice of opportunity for a
public hearng (I 124.12), Issue a final
decision (0 124.15) and respond to
comments (1124.17). For RCRA, UIC or
PSD permits, an appeal may be taken
under I 124.19 and, for NPDES permits,
an appeal may be taken under § 124.74.
Draft permits prepared by a State shall
be accompanied by a fact sheet if
required under *124.8;
* 124.7 Statement of aaIs.
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 tentatlvs decision. The statement of
basis shall be sent to the applicant and.
on request, to any other person.
1124.8 Fact.h.et.
(Applicable to State programs, see
* 123.7.)
(a) A fact sheet shall be prepared for
every draft permit for a major HWM.
UIC, 404, orNPDFS facility or activity,
for every 404 and NPDES generalpeimit
(II 123.95 and 122.59), for everyNPDES
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
widesproad 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 PSI) 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.isaued permits);
(5) Reasons why any request.
variances or alternatives to requlre .
standards do or do not appear jut
(B) A description of the proced
reaching a final decision on the dr
permit including:
(I) The beginning and ending dates of
the comment period under 1 124.10 end
the address where comments will be
recelvedi
(ii) Procedures for requesting a
hearing and the nature of that hearthg
and
(UI) 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.
(B) For NPDES permits, provisions
satisfying the requirements of § 124.58.
§ 124.9 AdminIstrative record for draft
permits when EPA lithe permitting
authority.
(a) The provisions of a draft permit
prepared by EPA under I 124.6 shall be
based on the administrative record
defined In this section.
(b) For preparing a draft permit under
I 124.8, the record shall consist of:
(1) The application, if require.
any supporting data furnished I
applicant;
(2) The draft permit or notice of
to deny the application or to terming
the permit
(3) The statement of basis (1 124.7) or
fact sheet (I 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.
(B) 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 E1S
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 1O2(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 i i included in the administrative
record under paragraphs (b) and (c) of
this sectlon,’need not be physicaJ’
Included with the rest of the eec
long as It is specifically referred
statement of basi. or the fact sheer.
(d) This section applies to all draft
permits when public notice was given
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33489
after the effective date of these
regulations.
1124.10 PublIc notIce of permit actions
and pi&biic comment period.
(a) Scope.
(1) The Director shall give public
notice that the following actions have
occurred:
(I) A permit application has been
tentatively denied under I 124.6(b);
(IL) (Applicable to State pragroins, see
• 223.7). A draft permit has been
prepared under 1 124.0(d);
(lii) (Applicable to State programs, see
I 123.7). A hearing has been scheduled
under I 124.12, Subpart E, or Subpart F;
* (lv) An appeal has been granted under
§ 224.19(c):
(v) (Applicable to State p -ogroms, see
I 123.7). A State section 404 application
has been received in cases when no
draft permit will be prepared (see
* 123.100); or
(vi) An NPDES new source
determination has been made under
I 122.88.
(2) No publienotice Is required when
a request for permit modification.
revocation and reissuance, or
termination Is denied under 1 124.5(b).
Written notice of that denial shall be
given to the requester and to the
perTnittee.
(3) Public notices may describe more
than one permit or permit action.
(b) Timing (applicable to State
programs, see § 223.7). (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
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 bearing
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 § 123i i Public notice of
activities described in paragraph (a)(1)
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
eutitled 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 applicant):
(U) Any other agency which the
Director knows has issued or is required
to issue a RCRA, UIC, P 50, 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
development under CWA section
208(b)(2), 208(b)(4) or 303(e) and the US.
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 lands 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
joumal& (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 tc 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 activlty 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 or 404 draft general permit to the
facilities or activities to be covered by the
general permit.j
(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) Content.s (applicable to State
programs. see § 123.7). (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 forwhlch
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
§ 1 122.59 and 123.95;
(lii) 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 whcm
interested pers ns may obtain further
information, including copies cf 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 I I 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 I 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 -
water. For draft general permits, this
requirement will be satisfied by a map
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or description of the permit area. Foy
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 and 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 propbsed, and a general
description 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;
(DJ 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)(1) 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, lime, and place of the
-hearing
(lii) A brief description of the nature
and purpose of the hearing, including the
applicable rules and procedures; and
(lv) For 404 permits only, a summary
of major Issues raised to date during the
public comment period.
(eJ (Applicable to State programs, see
§ 123.7). In addition to the general public
notice described in paragraph (d)(l) of
this section. all persons identified In
paragraphs (c)(1) (i), (ii). (HI), and liv) of
this sectionshall 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.
(Applicable to State pr’ogrnms. see
I 123.7.)
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 I 123.ICX))
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
I 124.17.
• 124.12 Pubflc hearings.
(a) (Applicable to State programs, see
* 12a7j 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). The
Director also may 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. Public notice of the
hearing shall be given as specified in
I 124.10.
(b) Whenever a public hearing will be
held and EPA is the permitting authority,
the Regional Administrator shall
designate a Pi esiding 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
I 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.
(a) At his or her discretion, the
Regional Administrator may specify that
RCRA and UIC permits be processed
under the procedures in Subpart F.
• 124.13 ObligatIon to ralsa Issues and
provide information during the public
comment period.
All persons, including applicants, who
believe any condition of a draft permit Is
Ina propriate or that the Director’s
tetuative 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 mc!
full and may not be incorporated .
reference, unless they are already g
of the administrative record In the
proceeding, or consist of State or
Federal statutes and regulations, EP&
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 reasonble
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 § i
(2) Prepare a revised statement of
basis under I 124.7, a fact sheet or
revised fact sheet under § 124.8 and
reopen the comment period under
I 124.14; or
(3) Reopen or extend the comment
period uI)der I 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. ir .
the circumstances described 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 shaH be Issued under § 124.10.
§124.15 Issuance and effective date of
(a) After the dose of the public
comment period under § 124.10 or
draft permit. the Regional Admin
shall Issue a final permit decision.
Regional Administrator shall notify the
applicant and each person who has
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
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,1.JIC. 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.
f 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
I 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
I I 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 recominencing
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.
(2) Uncontested conditioas which are
not severable from those contested shall
be stayed together with the contesLed
conditions. Stayed provisions of permits
for existing facilities, injection wells,
and sources shall be identified by the
Regional A nfstrator. All other
provisions of the permit for the existing
facility. bi jection well, or source shall
remain fully effective and enforceable.
(b) Slays 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
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 from the State 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 L124.5; 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
* 123.7). Al 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 (be response to
comments shall be Included In the
administrative record for the final
permit decision as defined In § 124.18. U
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
* 123.7). The response to comments shall
be available to the public.
I 124.16 AdmInistrativ, record for final
permit when EPA lithe permitting
authority.
(a) The Regional Administrator shall
base final permit decisions under
I 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 andi
(1) All comments received during the
public comment period provided under
I 124.10 (includIng any extension or
reopening under I 124.14) -
(2) The tape or transcript of any
hearing(s) held under § 124.1
(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 sour permits
only, any final environmental impact
statement and any supplement to the
final EIS:
(8) Other documents contained In the
supporting file for the permit and
(7) 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 induded 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 § 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.
§ 124.16 Appeal of RCRA, UIC, and PSO
permits.
(a) Within 30 days after a RCRA. UIC.
or PSD final permit decision has been
Issued under § 124.15, any person who
filed comments on that draft permit or
participated In (he public hearing may
petitIon the Administrator to review any
condition of the permit decision. Any
person who failed to file commenis 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
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Issues being raised were raised during
the public comment period (Including
&ny public hearing) to the extent
required by these regulations and when
appropriate, a showing 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 his or her
discretion, review.
(b) The Administrator may also
decide on his or her initiative to review
any condition of any RCRA, UIC, or PSD
permit Issued under this Part. The
Administrator must act under this
paragraph within 30 days of the service
date of notice of the Regional
Administrator’s action.
(c) Within a reasonable time following
the filing of the petiucn for review, the
Administrator 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 amlcus
brief. Notice of denial of 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 materiaUy 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. t 704. a prerequisite to
the seeking of judicial review of the final
agency action.
• (f)(1) For purposes of judicial review
under the appropriate Act, final agency
action occurs when a final RCRA. UICI
or PSI) permit Is Issued or denied by
EPA and agency review procedures are
exhausted. A final permit decision shall
be Issued by the Regional
Administratoc (I) When the
Administrator issues notice to the
parties that review has been denied: (11)
when the Administrator issues a
decision on the merits of the appeal and
the decision does not include a remand
of the proceedings: or (lii) 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.
(2) NotIce of any final agency action
regarding a PSI) permit shall promptly
be published in the Federal Register.
I 124.20 ComputatIon of tkne.
(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.
(c) 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 presq ibed time.
I 124.21 EffectIv, date of Part 124.
(a) Except for paragraphs (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
ECRA and UIC permits.
(b) All provisions of Part 124 -
pertaining to the RCRA program will
become effective on November 19. 1980.
(c) AU 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 R Part 148.
(d) This Part does not significantly
change the way In which NPDES permits
are processed. Since Octobei 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
3294& 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
PSI) permits are processed. For the most
part, these regulations will also apply to
PSI) proceedings in progress on J
1980. However, because It would
disruptive to require retroactively a
formal administrative record for P S ’
permits issued without one, 00 124
124.18 will apply to PSD permits for
which draft.permlts 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
I 124.41 DefInitions applicable to P80
permits.
Whenever PSI) 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 122.3. except
when EPA has delegated authority to
administer those regulations to another
agency under the applicable subsection
of 40 CFR 0 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 applica”
for a PSI) permit.
“Appropriate Act and Regulatio.
means the Clean Air Act and appllc
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” as
used in I 124.4 means the person(s)
responsible for issuing PSD permits
under an approved program, or that
person’s delegated representative.
“Construction” baa the meaning given
In 40 CFR 052.21.
“Director” means the Regional
Administrator.
“Draft permit” shall have the meaning
set forth In 0 122.3.
“Facility or activity” means a “major
PSD stationary source” or “major PSD
modification.”
“Federal Land Manager” has the
meaning given in 40 CFR f 52.21.
“Indian Governing Body” has the
meaning given in 40 CFR 052.21.
“Major PSI) modification” means a
“major modification” as defined In 40
CFR Ln.
“Major PSI) stationary source” r
a “major stationary source” as de
In 40 CFR I 52.21(b)(1).
“Owner or operator” means the owne
or operator of any facility or activity
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33493
subject to regulation under 40 CFR
I 52.21 or by an approved State.
“Permit” or ‘PSD permit” means a
permit issued under 40 CFR 5 52.21 or by
an approved State.
“Person” Indudes an individuaL
corporation, partnership. association.
State. municipality, political subdivision
of a State. and any agency. department.
or instrumentality of the United States
and any officer, agent or employee
thereof.
“Regulated activity” or “activity
subject to regulation” means a “major
PSD stationary source” or “major PSD
modification.”
“Site” means the land or water area
upon which a “major PSD stationary
source” or “major PSD modification” Is
physically located or conducted,
including but not limited to adjacent
land used for utility systems; as repair.
storage, shipping or processing areas; or
otherwise In connection with the “major
PSD stationary source” or “major PSD
modification,”
“State” means a State, the District of
Columbia, the Commonwealth of Puerto
Rico. the Virgin Islands. Guam. and
American Samoa and includes the
Commonw ealth of the Northern Mariana
Islands. - -
5124.42 AddItional procedures for P80
permits affecting Class I areas.
(a) The Regional Administrator shall
provide notice of any permit application
for a proposed major P 50 stationary
source or major PSD modification the
emissions from which would affect a
Class I area to the Federal Land
Manager, and the Federal official
charged with direct responsibility for
management of any lands within such
-area. The Regional Administrator shall
provide such notice promptly after
receiving the application.
(b) Any demonstration which the
Federal Land Manager wishes to present
under 40 CFR I 52.21(q)(3). and any
variances sought by an owner or
operator under I 52.21(q)(4) shall be
requested in writing, together with any
necessary supporting analysis, by the
end of the public comment period under
H 124.10 or 124.118. (40 CFR
I 52.21(q)(3) provides for denial of a P50
permit to a facility or activity when the
Federal Land Manager demonstrates
that its emissions would adversely
affect a Class I area even though the
applicable increments would not be
exceeded. 40 CFR 5 52.21(q)(4)
conversely authorizes 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
I 52.21(q)(5) through (qJ(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—Speciflc Procedures
Applicable to PIPOES Permits
5124.51 Purpos, and scope. -
(a) This Subpart sets forth additional
requirements and procedures for
decisionmaking for the NP1DES 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 permiL
5124.52 PermIts required on a caae .by.
case basis.
(a) Various sections of Part 122. -
Subpart D allow the Director to’
determine, an a case-by-case basis, that
certain concentrated animal feeding
operations (5122.54), concentrated
aquatic animal production facilities
(5 122.55). separate storm sewers,
(5 122.57), and certain other facilities
covered by general permits (5 122.59)
that do not generally require an
individual permit may be required to
obtain an individual permit because of
their contribution 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 IL and shall send en
application form with the notice. The
distharger must aoply for a permit under
5 122.53 within 60 days of notice. The
question whether the initial designation
was proper will remain open for
consideration during the public
comment period under 5 124.11 or
5 124.118 and iii any subsequent hearing.
5124.53 Stats certification.
(a) Under CWA section 401(a)(1), EPA
may not issue a permit until a
certification Is granted or waived in
accordance with that section by the
Stale In which the discharge originates
or will originate.
(b) Applications received without a
State certification 3hall be forwarded by
the Regional Administrator to the
certifying State 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 Stale 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 5 124.55, or waived
its right to certify; and
(3) A statement that the Slate 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 Slate 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 and shall include:
(1) CondItions which are necessary to
assure compliance with the applicable
provisions of CWA sections 208(c), 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 stringer.t than
those in the draft permit which the State
finds necessary to meet the
requirements listed in paragraph (e)(1)
of this section. For each more 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.
5124.54 Sp.cfal provisions far State
certification and concurrence on
s Iicadons for section 301(h) varIances.
(a) When an application for a permit
Incorporating a variance request under
CWA section 301(b) Is submitted to a
State. the appropriate State official shall
either
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Federal Register I Vol. 45. No. 98 / Monday. May 19, 1980 / Ruins and Regulations
(1) Deny the request for the CWA
sectign 301(h) variance (and so notify
the ipplicant and EPA) and. If the State
Is an approved NPDES State and The
permit is due for reissuance. process the
permit applicati3n 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 ee:tion 301(h)
variance.
(c) Any certification provided by a
State under paragraph (a)L2) 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
.ubject to any conditions specified
therein by the State. CWA section 301(h)
certlficatiqp 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 conditIoi s reçuired by State
law, including water quality standards.
in the initial certification.
124.55 Effect of State certitleatlor..
(a) When certification is required
under CWA section 401(a)(1) an final
permit shall be issued:
(1) If certification Is denied, or
(2) Unless the final permit
Incorporates the requiremeutb specified
In the certification under 124.53 (d)(1)
and (2).
(b) If there is a change in the State
law or regulation upon which a
certification is based, or f a court of
competer.t jurisdiction or appropriate
State board or agency stays. vacates, or
reinands a certification, a State which
has issued a certification under § 124.53
may Issue a modified certification or
notice of waiver and forward it to EPA.
U the modified certification Is received
before final agency action on the permit.
the permit shall be consistent with the
more stringent condicions which are
based upon State law identified in such
certification. 11 the certification or notice
of waiver is received after final agency
action i iie permit, the Regional
Administrator may modify the permit on
request of the peruiittee 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 pehnit
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
recertification. -
(e) 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.
(I) Nothing in this section shall affect
EPA’. obligation to comply with
§ 122.12. See CWA section 301(b)(1)(C).
g 124.56 Fact sheets, . . -
(Applicable to State programs. see
123.7.)
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 122.52 and reasons
why they are applicable or an
explanation of how the alternate
effluent limitations were developed:
(b)(1) 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 I 122.82(e):
(ii) Limitations on Internal
wastestreains under I 122.63(i); or
(iii) Limitations on indicator
pollutants under I 125.3(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 * 122.62(m).
(c) When appropriate, a sketch or
detailed description of the location of
the discharge described In the
applicatiom and
(d) For EPA-issued NPDES perr._,......
the requirements of any State
certification under 124.53.
§ 124.57 PublIc notice.
(a) Section 316(a) requests (applicable
to State programs. see * 123.7). In
addition to the informatIon required
under * 124.10(d)(1), public notice of an
NPDES draft permit for a discharge
where a CWA section 316(a) request has
been filed under 122.53(I) 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 308; 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 sectiàn 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 stateme ‘I
the applicant has submitted such
(b) Evidentiary hearings under
Subpart S. In addition to the inform
- required under I 1 4.10(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:
(2) Name and address of the person(s)
requesting the evidentiary hearing:
(3) A statement of the following
procedures:
(I) Any person seeldng 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;
(ill) 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 tight to appeal or
otherwiss contest the final
administrative decision.
(c) Non-adversary panel procedures
under Subpart F. (1) In addition to the
Information required under
* 124.1O(d)(2). mailed public noti
draft permit to be processed und..
Subpart F shall include a statement m
any hearing shall be held under Subpart
F (panel hearing).
r
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33495
(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
(lv) The due date for filing comments
under § 124.118.
I 124.58 SpecIal procedures far 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 shell 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 br Water Enforcement
objects to a draft general permit within
the period specified In paragraph (b) of
this section, the Regional Administrator
shall not issue the final 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 Stole progi’arns. see
1123.7.) -
(a) If during the comment period for
an NPDES draft permit, the District
Engineer advises the Director in writing
that anchorage and navigaticn 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
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 considered stayed
in the NPDES permit for the duration of
that stay.
(b) If during the comment period the
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 indude the specified
conditions In the permit to the extent
they are determined necessary to carry
out the provisions of § 122.12 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.
1124.60 Issuance and effective date .nd
stays of NPDES permits.
In addition to the requirements of
I 124.15. the following provisions apply
to NPDES permits and to RCRA or UIC
permits to the extent those permits may
have been consolidated with an NPDES
permit in a formal hearing:
(a)(1) If a request for a formal hearing
is granted under §124.75 or § 124.114
regarding the initial permit issued for a
new source, a new discharger, or a
recoinmencing discharger, or If a
petition for review of the denial of a
request for a formal hearing with reepoct
to such a permit Is timely filed with the
Administrator under § 124.91. the
applicant shall be without a permit
pending f rial Agency action under
I 124.91.
(2) Wherever a source subject to this
paragraph has received a final pcrmit
under § 124.15 which Is the subject of a
hearing request under § 124.74 or a
formal hearing under § 124.75. 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 cotditions
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 ptevail 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 I 124.5
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)(1) If a request for a formal hearing
Is granted In whole or in part under
l 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 I 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 underrying 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. thgt
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 sha!l
become enforceable 30 days after the
date of notice under paragraph (c)(1) 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, :hen
that condition shall become enforcenble
upon the date of the notice of the
Administrators decision on the appeal if
the denial Is affirmed, or shall be stayed,
in a.cordance with this section, if the
Adinlnistra’or reverses the denial and -
grants the evidentiary hearing.
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Federal Register / Vol. 45, No. 98 / Monday. May 19. 1980 / Rules and Regulations
(0] Uncontested conditions shall
include:
- ( 1 Prelirn1naz ’ design and engineering
studies or other requirements necessary
to achieve the final permit conditions
which do not entaU substantial
expenditures;
(H) Permit conditions which will have
to be met xegazdleu of which party
prevails at the evidentiary hearlng
(Ill) 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 meat the final permitS
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 Ragional
Administrator’s notice under paragraph
(CXI) 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.
(a) When a formal hearing is granted
under 0124.75 on art application for a
renewal of an existng permit. all
provisions of the existing permit as well
as uncontested provisions of the new
permit. shall continue fuly enforceable
and effective until flr al agency action
under § 124.91. (See § 122.5) Upon
written request from the applicant, the
Regional Administrator may delete
requirements from the existing permit
which unnecessarily duplicate
uncontested pro visions of the now
permit.
(F) When issuing a finally effective
• NPDES permit the conditions cf which
were the subject of a formal hearing
under Subparts E or F. the Regional
Administrator siali exte,d the permit
compliance schtrdule to the extent
required by a stay under this section
provided that no suiih extension shall be
granted which would:
(1) Result in the violation of an
applicable statutory deadline: or
(2) Cause the permit to expire mere
than 5 years alter ssuance under
I 124.15(a).
lNots.—Extensians of compliacce
schedules under 124.6O I)(Z) will ol
automatically be granted for a period equal to
the period the stay lain effect for an effluent
lImItatIon. For example. If both theAgency
and the discharger agree that a certain
treatment technology is required by the CWA
wbsre guidelines do not apply, but a bearing
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
th. permit. It will not ordinarily be necessary
to ixtend 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 th. 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 baa exhausted Its
administrative remedies under Subparts
E and F and 0 124.91. Any party which
neglects or fells to seek review under
124.91 thereby waives its opportunity
to exhaust available agency remedies.
0 124.61 FInal en*onmental knpact
statement.
No final NPDES permit for a new
source shafl be Issued until at least 30
days after the date of issuance of a final
environmental Impact statement if one
Is required under 40 CFR. I 8.805.
O 124.62 DecisIon on variances. - - -
(Applicable to State programs, see
0723.7.)
(a) The Director may grant or deny
requests for the following variances
(subject to EPA objection under * 123.75
for State permits):
(1) Extensions under CWA section
301(1) based on delay in completion c ia
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
318(a) for thermal pollution.
(b)The 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
llmitatiàrts guideline was base
(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
deny, forward, or submit to the!
Deputy Assistant Administrator
Water Enforcement with a
recommendation for approvaL a is
for a variance listed In paragraph (,
this section that Is forwarded by the
State Director, or that Is submitted k
the Regional Administrator by the
requester where EPA Is the permitting
authority.
(dJ The EPA Deputy Assistant
Administrator for Water Enforcement
may approve or deny any variance
request submitted under paragraph (c)
of this sectIon. lithe Deputy Assistant
Administrator approves the variance.
the Director may prepare a dra ft 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.
1124.63 Procethrree for verlances when
EPA Is the permitting authority.
(a) In States where EPA is the permit
Issuing authority and a request for a
variance is filed as required by 0 122.53.
the request shall be processed as
Follow .:
(I) If at the time that a request for a
variance is submitted the Regione
Adxnlzilstrator has received en
application under 0 124.3 for issu
renewal of that permit but has not
prepared a draft permit under 0 124..
covering the discharge in question, the
Regional Administrator, after obtainIn8
any necessary concurrence of the EPA
Deputy Assistant Administrator for
Water Enforcement under § 124.62. shall
give notice of a tentative decision on the
request at the time the notice of the draft
permit is prepared as specified itt
§ 124.10, unless this would significantI
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
variance Is filed the Regional
Administrator has given notice under
I 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 drait
permit Including a tentative decision on
the request, and the fact sheet required
by I 124.8. However, If this will
significantly delay the proceasiri
existing draft permit or the Regio.
Administrator, for other reasons.
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consider, 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 disposition of the
existing draft permit shall proceed
without delay.
(3) If the permit has become final and
no application under 0 124.3 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
0 124.10. 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
£ or F. provided the requirements of th e
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
‘relating to both the basic permit
decision and the variance decision shall
be considered In the Subpart £
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 301(g) variances.
If a request for an evidentiary hearing is
granted on a variance requested under
CWA section 301(g) or Ifs petition for
review ol the denial of a request for the
hearin Is filed under 0 124.91. 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
pollutants in quantities which may
reasonably be anticipated to pose an
unacceptable risk to human health or
the environment because of
bioaccuznulatlon, 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 • 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 0124.60.
124.65 SpecIal procedures for discharge
into marine waters section 301(h ).
(a) Where it I. clear on 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:
(1) 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 I 124.82(a)(1).
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 301(h) 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” vs
appropri te.
(d) No permit subject to a 301(b)
variance shall be Issued unless the
appropriate SLate officials have
concurred or waived concurrence
pursuant to 0 124.54. In the case of a
permit Issued to a requester in ar.
approved State, the State Director may
33497
(1) Revoke any existing permit as of
the effective date of the EPA-issued -
permit subject to a 301(h) variancrc 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
0124.66 SpecIal procedures for decIsions
on thermal variances under section 316 (a).
(a) Except as provided in 124.65, 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 0 122.53.
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
C%VA section 316(a) Issue is not likely to
be available in time for a decision on
permit issuance, the Regional
Administrator may issue a permit under
0 124.15 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
initlallj proposed unless and until its
CWA section 316(a) variance request is
finally approved.
(c) Any proceeding held under
paragraph (a) of this 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
mjdification of thermal limits is denied.
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Fd’deral Register I Vol. 45, No. 98 I Monday, May 19, 1980 / Rules• and Regulations
(d) Whenever the Regional
Administrator defers the decision under
CWA sectIon 316(a), any decision under
section 316(b) may be deferred.
Subpart E—Evidentlary Hearings for
EPA”issued NPDES Permits and EPA-
Terminated RCRA Permits
* 124.71 AppilcabUlty.
(a) The regulations in this Subpart
govern all formal hearings conducted by
EPA under CWA section 402, except for
those conducted under Subpart F. They
also govern all evidentlary 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 made 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 § 122.53 as authorized in
§ 122.59 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 certsin cases, evidentlary
bearings 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 NPDES 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
§ 122.66.
(c) PSD permits may never be subject
to an evidentiary hearing under this
Subpart. Section 124.74(bj(2) iv)
provides only for consolidation of PSD
permits with other permits subject to a
panel hearing under Subpart F.
* 124.72 DefinitIons.
For the purpose of this Subpart. the
following definitions are applicable:
“Hearing Clerk” means The Hearing
Clerk. U.I Environmental Protection
Agency. 401 M Street S.W..
Washington. D.C. 20480.
“Judicial Officer” means a permanent
or temporary employee of the Agency
appointed as a Judicial Officer by the
Mministrator under these regulations
and subject to the following condltlonm
(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 prosecutorlal
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.
I 124.73 FIling and submission of
Øocuments.
(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) All submissions shall be signed by
the person making the submission, or by
an attorney or other authorized agent or
representative.
(c)(1) 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 requift
does not apply to State or Federal
statutes and regulations. judicial
decisions published In a national
reporter system. officially Issued EP,t—
documents of general applicability, and
any other generally available reference
material which may be incorporated 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 tl
subqiission being exduded from
consideration. If the Regional
Administrator or the Presiding Offic
on motion by any party or sue spon .
determines that a submission fails to
meet any requirement of this Subpart.
the Regional Administrator or Presiding
Officer shall direct the Regional Hearing
Clerk to return the submission, together
with a reference to the applicable
regulations. A party whose materials
have bean 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 capa 2ity
of the person making the submissicivi
* 124.74 Requests for evidentlary hearing.
(a) Within 30 days following the
service of notice of the Regional
Administrator’s final permit deci
under § 124.15, any interested per.
may submit a request to the Regional
Administrator under paragraph (b) of
this section for an evidentiary hearing to
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Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
reconsider or contest that decislon.if
such a request Is submitted by a person
other than the perinittee, the person
shall simultaneously serve a copy of the
request on the permittee.
(b)(1) In accordance with 124.76,
such requests shall state each legal or
factual question alleged to 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
0 124.18.
(Note—This paragraph allows the
submission of requests for eviden iary
bearings 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 ware raised, the Regional
Admlnlsfrator would be required to deny the
request. However, on review of the denial the
Administrator I. authorized by 124.91(a)(1)
to review policy or legal conclusions of the
Regional Administrator. EPA is reqt iring an
appeal to the Administrator even of purely
legal Issues Involved in a permit decision to
ensure jhat the Administrator will have an
opportunity to review any permit before it
will be final and subject to judicial review.)
(2) Persons requesting an evidentlary
hearing on an NPDF.S permit under this
section may also request an evidentiary
hearing on a RCRA orLTIC permit. PSD
permits may never be made part of an
evidentiary hearing under Subpart E.
This request is subject to all the
requirements of paragraph (b)(1) of this
section and In addition will be granted
only LI
(1) Processing of the RCRA or LIIC
permit at issue was consolidated with
the processing of the NPDES permit as
provided In § 124.4:
(II) The standards for granting a
hearing on the NPDES permit are met
(lii) The resolution of the NPDES
permit lsaues Is likely to make necessary
or appropriatl modification of the RCRA
or I.IIC permit; and
( Iv) If a PSD permit is involved, a
permittee who is eligible for an
evidentlary hearing under Subpart Eon
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 unlikely 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 sue sponte without
cost or expense to any other party, the
requester shall make available to appear
and testify, the following:
(I) The requester:
(I I) All persons represented by the
requester, and
(lii) 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.
(0) In the case of challenges to the
application of control or treatm nt
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 evidentlary hearing 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 evidentlary bearing.
The Regional Administrator shall
specify these conditions in writing in
accordance with * 124.00(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.
0124.75 DecIsion on request fore
hearing.
(a)(1J Within 30 days following the
expiration of the time allowed by
* 124.74 for submitting an evidentlary
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
0 124.74, and Bets 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
0 124.111, 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 § 124.118. All subsequent
proceedings shall then be governed by
0* 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 0 124.74(c)(8) for a formal hearing
under Subpart F on an NPDES permit
that does not constitute an initial license
under 0 124.111, the Regional
Administrator shall issue a notice of
hearing under 0 124.110 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
*0 124.117 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) U 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 0 124.91.
O124.73 Obligation to submit evidence
end raIse Issues befars a final permit Is
No evidence shall be submitted by
any party to a hearing under this
Subpart that was not submitted to the
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Federal Register I VoL 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations
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 1124.15; 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).
1124.77 NoUns of hearing.
Public notice of the grant of an
evidentlary 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
8 124.78). - -
* 124.78 Experts 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 I 124.118 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;
(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 non.
adversary panel hearing, the decisional
body shall also Include the panel
members, whether or not permanently
employed by the Agenc)”,
(3) ‘ Ex porte 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 orin the hearing.
Lx porte 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 eithen
(A) Interested persons outside the
Agency, or
(B) The Agency trial staff, if 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)(1) 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 porte
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 porte 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 respcnses and memoranda
stating the substance of all oral
responses.
(c) Whenever any member of the
decisionmaking body receives an ex
porte 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
require the party to show cause
claim or interest In the proceedinb
should not be dismissed. denied.
disregarded, or otherwise adverse
affected on account of such violatlo.
(d) The prohibitions of this sectior.
begin to apply upon issuance of the
notice of the grant of a hearing under
* 124.77 or * 124.118. 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
evidentiaiy 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
I I 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 show
good cause for the failure to file a
request to be admitted as a party.
Presiding Officer shall grant the mo.
only upon an express 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
evidentlary hearing filed alter 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. Serv;ce shall
be by mail or personal delivery.
(c) Every submission shall be
accompanied by an acknowledgeme”
of service by the person served o
certificate of service citing the di
place. time, and manner of service
the names of the persons served.
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33501
(d) The Regional Hearing Clerk s all
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.
0124.82 ConsolidatIon and ssver.nce.
(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
party or issues may be severed and
heard in a separate proceeding.
§ 124.83 Prehearlng conferences.
(a) The Presiding Officer, suo 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 bearing, 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
preheanng proiedures and for the
submission and dispositicn of all
prehearing motions. Where the
circumstances warrant, the Presiding
Officer may call a prehearing 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 begrtnlng the hearing.
(c) In conferences held, or in
suggestions submitted, under paragraph
(a) of this section, the following matters
may be considered:
(1) SImplification, clarification,
amplification, or limitation of the Issues.
(2) AdmIssion of facts and of the
genuinesa 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 Officen
(I) Submi sion 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
(III) Requests by any party for tl e
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 prehearing 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
wntten 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(bJ(16)j
(a) The Presiding Officer shall prepare
a written prehearing order reciting the
actions taken at each prehearlng
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.
0124.84 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.
(b) Any other party may, wIthin 30
days after service of the motion, file and
serve a response to It or a
counterniotion 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
afflant 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 rmdings,
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. U summary determination Is
denied or If partial summary
determination is granted, the Presidin—
Officer shall Issue a memorandum
opinion and order, Interlocutory In
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Federal Register j Vol. 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations
character. and the hearing will proceed
on the remaining issues. Appeals from
Interlocutory rulings are governed by
124.80.
(I) 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 tnake
such other order as is Just and proper.
§ 124.85 Hearing procedure.
(a)(1) 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.
(Noteu—ln many cases the documents
contained hr the administrative reccrd. in
particular the fact sheet or statement of basis
and the response to comments, should
adequateiy 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 in the permit are Improper
or invalid, and who desires eithen
(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:
(13 Arrange and issue notice of the
dale, 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) Annilnister oaths and affirmations;
(6) Regulate the course of the hearing
and govern the conduct of participants:
(7) Examine witnesses;
(8) Identify and refer issues for
Interlocutory decision under § 124.90;
(9) Rule on, admit, exclude, or limit
evidence;
(10) Establish the time for filing
motions, testimäny, 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 § 124.8
(12) Order that the hearing be
conducted in stages whenever the
number of parties I. 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 pf 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 § 122.19
end 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 shell 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 cE material
fact compared to other available
methods. The party seeking cross.
examination has the burden of
demonstrating that this standard has
been met.
(c) All cirect and rebuttal evidence at
an evldentiaq 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)(1) The Presiding Officer sh
admit all relevant, competent. ant.
material evidence, except evidence th,t
is unduly repetitious. Evidence ma’
received at any hearing even thou
inadmissible under the rules of evideiiCe
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.
Not..—Receiving the administrative
record into evidence automatically serves
several purpcses: (1) It documents the prior
course of the proceeding (2) It provides a
record of the views of affected persons for
consideration by the agency decislonmaker.
and (3) ft provides factual material for use by
the decislotunaker.]
(3) Whenever any evidence or
testimony is excluded by the Presh
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 § 124.96.
(6) All objections shall be made
promptly or be deemed waived. P
shall be presumed to have taken
exception to an adverse ruling. N
objection shall be deemed waived by
further participation in the hearing.
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I Rules and Regulations 33503
0124.80 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’ntatter
relating to the proceeding. All motions
shall be In writing and served as
provided i tt 0 124.80 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
additlonal’10 days by the Presiding
Officer for good cause shown.
(c) Notwithstanding § 122.52. 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 ii
contrary to legislative Intent. The
Presiding Officer may gfant a motion to
apply a new regulatory requirement
when appropriate to carry out the
purposi of CWA. and when no party
would be unduly prejudiced thereby.
§ 124.87 R.cord of hearinga.
(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 § 122.19. 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
thereupon tranecrlbed. 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 desirLs 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.
polntlffg out errors that may have 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
eonctu&ons brief.
Within 45 days after the certified
transcript Is filed, any party may fllç
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 0 124.90
and shall issue and file his initial.
decision with the Regional Hearing
Clerk. The Regional Hearing Cleric shall
immediately serve cdpiea 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 pthuent to
O 124.91: or
(2) The Administrator suc sponte files
a nodce thaf he or she will review the
decision pursuant to 0 124.91.
0124.00 lntertocutory appeaL
(a) Except as provided In this section.
appeals to the Administrator may be
taken only under 0 124.91. Appeals from
srde:s 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 rer.ord. Requests to the
Presiding Officer for certification must
be filed in writing wIthin 10 days of
âervice of notice of the order, ruling, or
decision and shall stale 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) lithe 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 decisicn of
the Presiding Officer, except s hen the
Administrator determines, upon motion
of a party and in exceptional
circumstances, that to delay review
would not be in 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
appeal to the Administrator. Ordinarily.
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.
(d) In exceptional circumstances. the
Presiding Officer may stay the
proceeding pending a decision by the
Administrator upon an order or riilir.
certified by the Presiding Officer for an
interlocutory appeal. or upon the denial
of such certification by the residL
Officer.
(e) The failure to request an
interlocutory appeal shall not prevent
taking exception to an order or rul ’ng in
an appeal under 0 124.91.
§124.91 Appeal to the Admtnlstrato .
(a)(1) Within 30 days after service c.f
an initial decision, or a denial in whu!e
or in part of a request for an evidentiary
hearing, any party or recues er. as the
case may be. may appeal an 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 c-f the
supporting reasons and, when
appropriate, a showing that the initial
decision contains;
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(I) A finding of fact or conclusioi of
Law which is clearly erroneous, or
(ll) 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
(a)(1) 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
donying a request for an evidentlary
hearing may be reviewed and changed
by the Administrator in an ippeal under
this section.
(b) Within 30 days of an Initial
decision or denial of a request for an
evidentlary hearing the Administrator
may, sua sponle, 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)(1) 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.
the Administrator 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
an Initial decision or the denial of a
requeit for an evidentiary hearing.
(e) A petition to the Administrator
under paragraph (a) of this section for
review of any initial decision or the
aenial of an evidentiary hearln3 is,
under 5 U.S.C. § 704. a prerequisite to
the seeking of i’.adicial review of the final
decision of the Agency.
(f) If a party timely files a petition for
review or If the Administrator sue
sponte orders review, then, for purposes
of judicial ‘eview. 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 briet The
petitioner then may file a reply brief
WIthin 14 days of service of the
responsive brief, Any person may file an
arnicus brief for the consideration of the
Administrator within the same time
periods that govern reply briefs, If the
Administrator determines, sue 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.
(Ii) 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 be
or she considers material on the basis of
the record.
Subpart F—Non
Procedures
y Panel
§ 124.111 Appilcabulty,
(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:
(1)(l) In any proceedings for the
Issuance of any NPDES permit which
constitutes “initial licensing” under the
Administrative Pro adure 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 wider 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.
PSD permit under the CAA.
(II) “Initial licensing” Includes botI
the first decision on an NPDES pr
applied for by a discharger that ha
previously held one and the first
decision on any variance requested by a
discharger.
(iii) To the extent this Subpart is used
to process a fequest for a variance
under CWA section 301(h). the term
‘Admlnstrator 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 reqcest for a
formal hearing under § 124.74. See
I I 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 varionce
where Subpart E proceedings are
simultar.eously pendin2 on the oti’-
conditions of the permit. See I
§ 124,112 RelatIon to otI er subpartb
The following provisions of Subp
A through E apply to proceedings unia
this Subpart:
(a)(l) II 124.1 through 124.10
(2) 1 124 14 “Reopening of comment
period.
(3) * 124.16 “Stays of contested permi’
conditions.”
(4) * 12420 “Computation of time’S
(b)(1J § 124.41 “Definitions applicabl. ’
to PSD permits.”
(2) § 124.42 “Additional procedures For
PSD permits affecting Class I Areas.’
(c)(1) I § 124.51 through 124.56.
(2) § 12437 (c) “Public notice.”
(3) § 0 124.58 through 124.66.
(d)(1) § 124.72 “Definitions,” except
for the definition of “Presiding Office .’
see § 124.119.
(2) 0 124.73 “Filing.”
(3) § 124.78 “Ex porte
communications.”
(41 I 124.80 “F,ling and service.”
(5) I 124.85(a) (Burden cf proof).
(6) 124.88 “MotIons.”
(7) § 124.87 “Record of hearings.”
(8) § 124.90 “Interlocutory appeal.”
(e) In the case of permits to which this
Subpart Is mane applicable alter
permit has been issued under I I
either by the grant under I 124.75
hearing request under § 124.74, or by
notice of supplemental proceedings
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under 1124.14. * 124.13 and 124.76
shall also apply.
I 124.1 13 PublIc notice of drift permits
and public comment period.
Public notice of a draft permit under
this Subpart shall be given as provided
In II 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 l 124.12.
J 124.1 14 Request for hearing.
(a) By the close of the comment period
under I 124.113. any person may request
the Regional Administrator to hold a
panel hearing on thedrait 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 * 124.74(c)(1H5).
(b) Whenever (1) a written request
satisfying the requirements of paragraph
(a) of this section has been received and
presents genuine issues of material fa:t,
or (2) the Regional Administrator
determines sue 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 1 124.57(c).
If the Regional Adzn.ims trator
determines that a request does not meet
the requireiner.ts 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 en all
persons requesting the hearing.
(c) The Regional Administrator may
also decide before a draft permit is
prepared under I 124.6 that a hearing
should be held i nder this section. In
such cases, the public notice of th draft
permit shall explicitly so state and shall
contain the information required by
I 124.57(c). This notice may also provide
for a hearing undir 124.12 before a
hearing is conducted under this section.
1124.115 £ffect of denial of or absence of
request for hearing.
If no request fur a hearing is made
under § 124.114, or If all such request are
denied under that section. the Regional
Administrator shall then prepare a.
recommended decision under 12.1.124.
Any person whose hearing recuest has
been denied may then appeal thut
recommended decision to the
M’nlnl tra1er 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
I 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 I 124.118.
(bJ The Regional Administrator may
also give notice of a hearing under this
section at the seine time as notice of a
draft permit under § 124.113. In that case
the comment periods under 5 124.113
and 124.118 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 I 124.75.
*124.117 Request to participate In
hearing.
(a) Persons desiring to participate In
any hearing noticed under this section,
shall file 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 outhne of the points to be
addressed;
(3) An estimate of the time required;
and
(4) The requirements of 124.74(c)(1)—
(5).
(5) If the request is submitted by an
organization, a nonbInding list 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.
0124,116 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 o( bearing), each party shall file
all of its comments on the draft permit,
based on Inforinatien 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)(1) Written comments flied under
paragraph (a) of this section shall
constitute the bulk of the evidence
submitted at the hearing. Oral
statements at the hearing s iould 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 * 124.120
I 124.119 Presldtng Officer.
(a)(1)(i) Before giving rotice of a
hearing under this Subpart in a
proceeding involving an NPDES permit
the Regional Administrator shall request
that the Chief Adnunistrat n Law Judg?
assign an Administrative Law ludge as
the Presiding Officer. The Chief
Administrative Law Judge shall then
make the assignment.
(II) If all parties to such a heuring
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 AdmInis rator may name a
Presiding Officer under paragrapn
(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 shall eit’
(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
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Federal Register I VoL 45, No. 98 / Monday, May 19, 1980 I Rules and Regulations
(Ii) Name a lawyer permanently or -
temporarily employed by the Agency
and without prior connection with the
proceeding to serve as Presiding Officer.
(Ill) If the Chief Administrative Law
Judge declines to name an
Administrative Law Judge as Presiding
Officer upon receiving a request under
subparagraph (2)(I) of this section. the
Regional Administrator shall name a
Presiding Officer under paragraph
(a)(2Uii) 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;
(I) Conferred by § 124.85(b)(1)—(15),
124.83(b) and (c). and;
(2) To receive relevant evidence,
provided that all comments under
I 124.113 and 124.118. the record of the
panel hearing under § 124.120. and the
administrative record, as defined In
I 124.9 or In § 124.18 as the case may be
shall be received in evidence, and
(3) Either upon motion or suc sponle.
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 or 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
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 pane 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.examlnation would
expedite consideration of the issues.
However, the parties may submit
written questions to the Presiding
Officer for the Presiding 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.
(f) 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 Regional Hearing
Clerk and shall be a part of the hearing
record.
§ 124.121 OpportunIty for cross-
examination.
(a) Any party to a panal hearing mniiy
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 Issue(s) of material
fact. This shall include an e,’rlenation
of why the questions at issue are factual
rajher 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 hearln
panel, shall promptly issue an oz ’d
either granting or denying each request. -
Orders granting requests for cross-
examination shall be served on all
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.
(c) In Issuing this order, the Presiding
Officer may determine thai two or more
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.
Id) The Presiding Officer and. to
extent possible, the members of the
hearing panel shall be present at the
supplementary hearing. During the
course of the hearing, the Presidi:’.g
Officer shall have authority to modify
any order issued under paragraph (b) of
this section. A record will be made
under § 124.87.
(e)(1] No later than the time set for
requesting cross-examine ticri, a party
may request that alternative methods of
clarifying the record (suc!i as the
submission of additional written
Information) be used in lieu of cr 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
raquest 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 relevar t
Inf rmation (such as the due date For
suom ittIng written :nformution).
(2) in passing on any request for
cross-examination submitted u idcr
paragraph (a) of this section, the
Presiding Officer may, as a precondition
to ruling on the merits of the reques’
require-alternative means of darif 3
the record to be used whether or nc
request to do so has been made. The
aartv renuestine cross-pxam!nnh,,n .iin!i
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33507
have one week to comment on the
results of using the alternative method.
Alter considering these comments the
Presiding Officer shall issue an order
granting or denying the request for
cross-examination.
(0 The provisionI of 124.85(d)(2J
apply to proceedings under this Subpart.
I 124.122 Record for final permit.
The record on which the final permit
ehall be based in any pr ceeding under
this Subpart consists of
(a) The administrative record
compiled under I I 124.9 or 124.18 as the
case may be:
(b) Any material submitted under
I 124.78 relating to ex porte contacts:
(c) All notices issued under I 124.113;
- Id) All requests for hearings, and
rulings on those requests, received or
Issued under § 124.114:
(e) Any notice of hearing Issued under
I .14.118;
(I) 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;
(ii) The full transcript and other
material received into the record of the
panel hear.ng 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-
examnation held.
f 124.123 Flung of brief, proposed
ftnd.nga 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
transcrint of the full hearing Including
any cross-examine lion becomes
available, submit proposed findings of
fact: conclusions regarding material
issues of law, fact, or 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
discretior. 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 sue spouts.
• 124.124 Recommended decision.
The person named to prepare the
decision shall, as soon as practicable
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.recomnmende lion 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)(1) 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 oblected, 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.
I 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 parson 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
I 124.78 in preparing the final decision.
The Hearing Clerk shall file a copy of
the decision on all parties.
1124.127 Final decision If there la 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
iimitat lons.
(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
Decisiawnaklng Under Part 124
This Appendix ii 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 under this Part.
It outlines how a permit will be applied for.
howe 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, as specified both In Subpart A
(for RcRA, UIC. or PSD permits), or Subpart
E orF (far NPDES çermlLs). The first flow
chart also briefly outlines which permit
decisions are eliglbe for which types of
appeal.
Part 124 also contains special “non-
adversary panel hearing’ procedures based
on the “Initial licensing” provisions of the
Adminis atlve Procedure Act. These
procedures are set forth in Subpart F. In some
cases. EPA may only decide to make those
procedure. applicable after it ha. gone
through the normal Subpart A procedures on
a draft permit. This process is also
diagrammed In Figure 1.
Figure 2 sets forth the ger.eraI 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
lhrth elements of the permit procesr and the
diamonds Indicate key deciaionmaklng points
In the permit process.
The charts are discussed in more detail
below.
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33508
Figure i —Con ventionol EPA Permitting
Procedures
This chart outlines the procedures for
Issuing permits whenever EPA does not make
use of the special “panel hearing” p”ocedures
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
parson applies for a permit under § 122.4
and 124.3.
b. In other cases, EPA may decide to take
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
* 124.5.
• c. In addition, the permlttee or any
interested person (other than for PSD
permits) may request modification,
revocation and reissuance or termination of a
permit under ff122.15, 122.18 and 124.5.
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. U 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 (f 124.7). a fact sheet
(f 124.8) or, compilation of an “administrative
, record” (* 124.9), and public notice (f 124.10).
3. The next stage Is the pubi comment
period (f 124.11). A public hearing uncier
* 124.12 may be requested before the close of
the public comment period.
EPA has the discretion to hold a public
bearing, 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
(f 124.13).
4. SectIon 124.14 states that EPA. at any
time before issuing a final permit decision
may decide to either reopen or extend the
comment period, prepare anew draft permit
and begin the process again from tI at point.
or for RCRA and UIC permits. r for NPDES
permits that constitute “Initial licensing”, to
begin “panel hearing” proceedir,gs under
Subpart F. These various results are shown
schematically. -
5. The public coment 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 (I 124.17) and be
based on the administrative record (*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 f 124.19.
b. NPDES permits which do not Involve
Initial licensing” may be appealed In an
evidentiary hearing under Subpart E. The
regulations provide (I 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 dosely
related conditions of those RCRA or UIC
permits may be reexamined In an evidentlary
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 f 124.19 are self-
explanatcry Subpart F procedures are
diagrammed in Figure it and Subpart E
procedures are basically the same that would
apply in any evldentiary hearing.
However, the chart at this stage does
refler. the provisions of I 124.80(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 Pruce’dores
This chart outlines the procedures for
processing permits under the special “panel
bearing” procedures of Subpart F. These
procedures were designed lot making
decisions that involve “Initial licensing”
NPDES per’n.ts Those permits include the
first decsions on en NPDES pic mit applied
for by ar discharger that has not previously
held one md the first decision on any
statulor) variance. In addition. these
procedures will be used for any RCR#I. UIC,
or PSD permit which has been consolidated
with suca an NPDES permit, and may be
used. If the Regional Adminidrator so
chooses, for the issuance of ‘ndividual RCR,A
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 en 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 F’gure 1. The
Regional Administrator has the opportunity
to schedule an informal public hearing under
f 124i2 during ibis period.
4. Requests for a panel hearing must be
received by the end of the public comment
period under f 14.113. See f 124.114.
If a hearing request is denied, or if no
hearing requests are received, a
recommended decision wIll be Issued based
on the ccinments received. The recommended
decision may then be appealed to the
Administrator. See f 124.115.
5. If a hearing Is granted. notice of
hearing will be published In accords
f 124.118 and will be followed by a a
comment period during which requests
participate end the bulk of the remain
evidence for the final decision will be
received (H 124.117 and 124.118).
The regulations also allow EPA to move
directly to this stage by scheduling a hearing
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 f 124.118 would occur at the
eame 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
diagrammed 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 * 124.14 or in response to a request for a
formal hearing under * 124.74.
8. After the close of the comment period, u
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
* 124.125. A final decision will be issued after
appeal proceedings, If any, are concluded.
SIWNO COC 1510-01-U
-------
Figure I-Conventional
EPA P.rmitting Procedures
-------
EPA Appeal Procedures J
I *pp. IS
I &duuIuS*SIrMSV
— isc *. u.c a
I PID p.ruuD.I
• 124.IS
c m
cm
cm
-------
[ Figure 2-Non.Adv.rsary Panel Procedures
0
0
0
c i ’
z
0
to
0
0 -
0
0
p.’
to
SILLINO COI 5U0.Ii.C
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33512
Federal Register / Vol. 45, No. 98 1 Monday, May 19, 1980 I Rules and Regulations
2. 40 CFRPart 125 is amended as
follows:
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
A. Section 125.2 is revised to read as
follows:
* 125.2 Defkdtlona.
For the purposes of this Part, any
reference to “the Act” shall mean the
Clean Water Act of 1977 (CWA). Unless
otherwise noted, the definitions in Parts
122, 123 and 124 apply to this Part.
B. Section 125.3 is amended by
1. Revising the Introductory text of
paragraphs (a). (a)(2), (b)(1) and (b)(2),
and revising paragraph (c](1).
2. Adding paragraphs (c)(4) and (g).
5125.3 Technology-based treatment
requirements In permfts.
(a) General. Technology.based
treatment requirements under section
301(b) of the Act represent the minirewn
level of control that must be imposed In
a permit issued under section 402 of the
Act. (See *5 122.60, 122.61 and 122.62 for
a-discussion of additional or more
stringent effluent limitations and
conditions.) Permits shall contain the
following technology-based treatment
requirements in accordance with the
following statutory deadlines;
(2) For dischargers other than POTW’s
except as provided In § 122.67(d),
effluent limitations requiring:
(b)Stotutory variances an
extensions. (1) The following variances
from technology-based treatment
requirements are authorized by the Act
and may be applied for under 5 122.53;
(2) The following extensions of
deadlines for compliance with
technology.based treatment
requirements are authorized by the Act
and may be applied for under 5 122.53:
• I I • •
(c ) *
(1) Application of EPA-promulgated
effluent limitations developed under
section 304 of the Act to dischsrgers by
category or subcategory. These effluent
limitations are not applicable to the
extent that they have been remanded or
withdrawn. However, in the case of a
court remand, determinations
underlying effluent limitations shall be
binding in permit Issuance proceedings
where those determinations are not
required to be reexamined by a court
remandir.g the regulations. In addition.
diechargers may seek fundamentally
different factors variances from these
- effluent limitations under 5 122.53 and
Subpart D of this Part.
• * • • S
(4) Limitations developed under
paragraph (c)(2) of this section may be
expressed, where appropriate, In terms
of toxicity (e.g., “The LC 50 for fat head
minnow of the effluent from outfall 001
shall be greater than 25%”), provided
that Is shown that the limits reflect the
appropriate requirements (for example,
technology.based or water-quality-
based standards) of the Act.
• S S S S
(g)(1) The Director may set a permit
limit for a conventional pollutant at a
level more stringent than the best
conventional pollution control
technology (BCT), or a limit for a
nonconventlonal pollutant which shall
not be subject to modification under
section 301 (c) or (g) of the Act where:
(I) Effluent limitations guidelines
specify the pollutant as an indicator for
a toxic pollutant, or
(li)(A) The limitation reflects BAT-
level control of discharges of one or
more toxic pollutants which are present
In the waste stream, and a specific BAT
limitation upon the toxic pollutant(s) Is
not feasible for economic or technical
reasons;
(B) The permit identifies which toxic
pollutants are intended to be controlled
by use of the limitation; and
(C) The fact sheet required by 5 124;58
sets forth the basis for the limitation,
including a finding that compliance with
the limitation will result in BAT-level
control of the toxic pollutant discharges
Identified in paragraph (g)(1)(ii)(B) of
• this section, and a finding that it would
be economically or :echnically
Infeasible to directly limit the toxic
pollutant(s).
(2) The Director may set a permit limit
for a conventional pollutant at a level
more stringent than BCT when:
(I) Effluent limitations guidelines
specify the pollutant as an indicator for
a hazardous substance, or
(Ii)(AJ The limitation reflects BAT-
level control of discharges (or an
approuriate level determined under
section 301(cJ or (g) of the Act) of one or
more hazardous substance(s) which are
present in the waste stream, and a
specific BAT (or other appropriate)
limitation upon the hazardous
substance(s) is not feasible for economic
or technical reasons;
(B) The permit identifies which
hazardous substances are intended to
be controlled by use of the limitation:
and
(C) The fact sheet required by 5 124.56
sets forth the basis for the limitation,
including a finding that compliar
the limitations will result in BA
(or other appropriate level) conb
the hazardous substances discharp
4dentlfled in paragraph (g)(2)(il)(B
this section, and a finding that It woL_
be economically or technically
infeasible to directly limit the hazardous
substance(s).
(lii) Hazardous substances which are
also toxic pollutants are subject to
paragraph (gJ(1) of this section.
(3) The Director may not set a more
stringent limit under the preceding
paragraphs if the method of treatment
required td comply with the limit differs
from that which would be required If the
toxic pollutant(s) or hazardous
substance(s) controlled by the limit
were limited directly.
(4) Toxic pollutants Identified under
paragraph (g)(1) of this section remain
subject to the requirements of
5122.61(a)(1) (notification of increased
discharges of toxic pollutants above
levels reported in the application form).
ç. Section 12530 is amended by
revising paragraph (b) to read as
follows:
5 125.30 Purpose and scope.
• * % • • •
(b) In establishing national limits, EPA
takes into account all the informs’
can collect, develop and solicit
regarding the factors hsted in secti..
304(b), 304(g) and 307(b) of the Act. a.
some cases, however, data which could
affect these national limits as they apply
to a particular discharge may not be
available or may not be considered
during their development. As a result, it
may be necessary on a case-by-case
basis to adjust the national limits, and
make them either more ür less stringent
as they apply to certain dischargers
within an industrial category or
subcategory. This will only be done if
data specific to that discharger indicates
It presents factors fundamentally
different from those considered by EPA
In developing the limit at issue. Any
Interested person believing that factors
relating to a discharger’s facilities,
equipment, processes or other facilities
related to the discharger are
fundamentally different from the factors
considered during development of the
national limits may request a
fundamentally different factors variance
under § 122.53 (i)(1). In addition, such a
variance may be proposed by the
Director in the draft permit.
D. Section 125.72 is amended by
revising paragraph (1) to read as foil’-’
* 125.72 Early screening of applica
for sectIon 316(a) variances.
• S * S •
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Federal Register I Vol. 45, No. 98 / Monday, May 19. 1980 / Rules- and Regulations
33513
(I) U an applicant desires a ruling on a
section 316(a) a plIcatlon before the
ruling on any other necessary permit
terms and conditions. (as provided by
124.65). It shall so request upon filing
115 application under paragraph (a) of
this section. This request shall be
granted or denied at the discretion of the
Director.
(Nots.—At the expiration of the permit, any
discharger holding a section 316(a) variance
should be prepared to support the
continuation of the variance with studies
based on the discharger’s actual operation
exper lence.l
• • • • •
E. Section 125.92 is revised to read as
follows:
125.92 Requests for permit modification
and Issuance under section 301(IXI) of the
Act
Any owner or operator of a publicly
owned treatment works (POTW) that
requires construction to achieve
limitations under sections 301(b)(1)(B) or
301(b)(1)(C) of the Act may request
modification or issuance of a permit
extending the date for compliance with
these limitations in accordance with the
provisions of § 122.53(J).
F. Section 125.95 is revised to read as
follows:
.12S.95 Requests for permit modification
or issuance under section 301(i)(2) of the
Act.
Any owner or operator of a point
source other than a POTW that will not
achieve the requirements of sections
301(b)(1)(A) and 301(b)(1)(C) of the Act
because it was scheduled to discharge
Into a POTW that is presently unable to
accept the discharge without
construction, may request modification
or issuance of a permit extending the
date of compliance with these
limitations in accordance with the
provisions of § 122.53(1).
G. Section 125,104 is amended by
revising paragraph (c) to read as
follows:
§ 125.104 Best management practices
program&
• • S S S
(c)(1) The BMP program must be
clearly described and submitted as part
of the permit application. An application
which does not contain a BMP program
shall be considered incomplete. Upon
receipt of the application, the Director
shall approve or modify the program in
accordance with the requirements of
this Subpart. The BMP program as
approved or modified shall be included
in the draft permit (* 124.6). The BMP
program shall be subject to the
applicable permit issuance requirements
of Part 124, resulting in the incorporation
of the program (including any
modifications of the program resulting
from the permit Issuance procedures)
Into the final permit.
(2) Proposed modifications to the SMP
program which affect the discharger’s
permit obligations shall be submitted to
the Director for approvaL If the Director
approves the proposed BMP program
modification, the permit shall be
modified in accordance with § 122.15,
provided that the Director may waive
the requirements for public notice and
opportunity for hearing on such
modification if he or she determines that
the modification is not significant. The
BMP program. or modification thereof.
shall be fully implemented as soon as
possible but not later than one year after
permit Issuance, modification, or
revocation and reissuahce unless the
Director specifies a later date in the
permit. -
(Note—A later date may be specified in
the permit, for example, to enable
coordinated prepiratlon of the BMP program
required under these regulations and the
SPCC plan required under 40 CFR Part 151 or
to allow for the completion of construction
projects related to the fecility’s BMP or SPCC
program.)
• S S S S
IFR Dsc —14312 Filsd S.IB. 845 amI
sawNa coos ,seo.o
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7
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Tuesday
June 24, 1980
Part II
Environmental
Protection Agency
Water Programs; Consolidated Permit
Regulations and Technical Criteria and
Standards; State Underground Injection
Control Programs
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42472
Federal Register / Vol. 45, No. 123 / Tuesday. June 24, 1980 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
.40 CFR Parts l22and 146
(FRL 1482—11
Water Programs; Consolidated Permit
I Regulations and Technical Criteria and
Standards; State Underground
Injection Control Programs
AOENCY: Exwironinental Protection
Agency.
ACTION Final Rule for Part 148 and
Amendments to Part 122.
SUMMARY’ The Safe Drinking Water Act
requires the Environmental Protection
Agency (EPA) to develop minimum
requirements for State programs to
protect underground drinking water
sow ces from endangerment by the
subsurface emplacement of fluids
through well Injection. Such regulations
have been established in the recently
published Consolidated Permit
regulations. The regulations
promulgated here today establish the
technical criteria and standards for use
by States and EPA in the development
and implementation of such State LJJC
programs. Neither these regulations nor
the Consolidated Permit regulations
establish requirements for owners or
operators of Injection wells at this time.
with one exception. They establish
requirements for S ate or EPA officials
to be used in developing State UIC
programs which, when they become
effective, will In turn establish
enforceable requirements for owners or
operators of Injection wells.
The one exception concerns owners or
operators of wells which inject
hazardous waste within the meaning of
the Resource Conservation and
Recovery Act (RCRA). Owners or
operators of such wells must achieve
interim status under the Hazardous
Waste Management program, even
though such injection practices will
ultimately be controlled under the Safe
Drinking Water Act once a State UIC
program becomes effective.
Subpart A of these regulations spells
out certain general provisions with
respect to underground sources of
drinking water, the classification of
injection wells, the use of the area of
review concept. corrective action
requirements, mecliaricat integrity.
criteria for establishing permitting
priorities, and requirements for the
abandonment of Class 1, II and UI wells.
Subparts B through F of these
regulations establish technical
requirements and criteria that the
Director is to apply in regulating the
construction, operation, monitoring and
reporting of wells in Classes I through V.
In the case of wells In Classes I through
UI, Subparts B through I) also detail the
information that the Director Is to
consider prior to the issuance of a
permit. -
During the final drafting of these Part
140 regulations, it became apparent that
some changes to the Consolidated
Permit Regulations were necessary. Six
.amendments Involving four sections are
included in this publication and are
discussed hi this preamble.
DATES: The regulations in this
promulgation shall become effective on
July 18. 1980 or thirty (30) days after
their publication in the Federal Register
(July 24, 1980). whichever is later. That
date shall also be the implementation
date for those portions of 40 CFR Parts
122, 123 and 124 which relate to
Underground Injection Control (UIC)
permits and programs (see 45 FR 33290).
The Safe Drinking Water Act allows
States 270 days from the effective date
of these regulations to develop programs
which meet the regulatory requirements
of 40 CFR Parts 122, 123, 124 and 146,
and to submit such programs to EPA for
approval. This period may be extended
by another 270 days for good cause.
In order to assist EPA to correct
typographical errors, incorrect cross-
references, and similar technical errors,
comments of a technical and non-
substantive nature on the final
regulations may be submitted until July
24. 1980. The effective date will not be
delayed by consideration of such
comments.
AooRaSSas: Comments of a technical
and non-substantive nature should be
addressed to, Thomas Belk. Chief,
Ground Water Protection Branch. EPA.
Office of Drinking Water (WH—550),
Washington. D.C. 20480 (202) 426—3985.
FOR FURTHER INFORMATION CONTACT:
Thomas Belk, Chief, Ground Water
Protection Branch, Environmental
Protection Agency. (202)426-3985.
SUPPLEMENTARY INFORMATION:
Legal Authority
Gonerol
These regulations are being proposed
under the authority of the Safe Drinking
Water Act (the “Act” or “SDWA”), Pub.
L 93—523, December 16, 1974, as
amended by Pub. L 95—190, November
16. 1977. The Act is designed to protect
the quality of drinking water in the
United States.
Part A of the Act (section 1401)
contains definitions. Part B (sections
1411—1418) addresses the quality of
water proylded by public water
supptie. EPA regulations Implementing
Part B of the Act are codified at 40 CFR
Parts 141 and 142.
The regulations below relate to Par
of the Act (sections 1421—1424). entItled
“Protection of Underground Sources of
Drinking Water.”
Basis for Concern
The legislative history of the Act
reflects the basic Congressional
concerns In enacting part C of the Act:
underground Inlection of
contaminants Is clearly an increasing
problem. Municipalities are Increasingly
engaging in underground Irilection of sewage.
sludge, and other wastes. Industries are
injecting chemicals. by’products, and wastes.
Energy production companies are using
Injection techniques to increase production
and dispose of unwanted brines brought to
the surface during production. Even
government agencies, including the military,
are getting rid of difficult to manage waste
problems by underground disposal methods.
Part C Is intended to deal with all the
foregoing situations insofar as they may
endanger underground drinking water
sources.” (HR Report No. 93—1185, July 10,
1974. p. 29).
The potentially dangerous practices
which Congress sought to control In 197
continue at an ever increasing rate. EPA
estimates that there are in excess of
400,000 munIcipal, industrial,
commercial, agricultural, and domesi’
wells currently Injecting fluids belo
surface, and that there are at least s, ..
new wells of these types each year. Thr
pur ose of Part C of the Act. and of the
Underground Injection Control (UIC)
program, is to establish a Federal-State
system of controls which will Insure thai
such underground Injection practices do
not endanger drinking water sources,
Relevant Stat utoiyPro visions
A detailed discussion of the relevant
statutory provisions and legislative
history appears In earlier proposals of
these regulations (41 FR 36730 et seq.,
August 31, 1970 and 44 FR 23738 et seq.,
April 20, 1979). Those details need not
be repeated here, but it is useful to
summarize the basic scheme of Part C of
the Act,
1. Section 1421: Minimum
Requirements for State Prvgrnms—
Section 1421 requires EPA to propose
and promulgate regulations specifying
“minimum requirements” for State
programs to prevent underground
Injections which endanger drinking
water sources. Such minimum
requirements must provide for at least
the following:
A program prohibiting any
underground injection which is not
authorized by a State permit. EPA m ,
at its diecretion, however, allow eomr
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Federal Register I Vol. 45, No. 123 1 Tuesday, June 24, 1980 / Rules and Regulations
42473
all underground injections to be
authorized by rules without case-by-
case permits (section 1421(b)(1)(A)).
• Protection of underground drinking
water sources.
• Inspection, monitoring, record
keeping. and reporting requirements
(section 1421(b)(1)(C)).
•. Coverage of underground injections
by Federal Agencies and underground
Injections by any person on property
owned or leased by the United States
(section 1421(b)(1)(D)).
2. Section 1422(o): List of States—
Section 1422(a) requires EPA to list In
the Federal Register each State for
which an underground Injection control
program “may be necessary” to ensure
that underground injections will not
endanger drinldng water sources. With
the recent listing of the remaIning 18
jurisdictions (45 FR 17632). EPA has now
listed all 50 States, the District of
Columbia, and the Territories and
Possessions of-the United States
(hereafter “States”). Such listings are
hereby confirmed.
One major consideration in listing all
of the States and other jurisdictions as
needing UIC programs is that in the next
few years the Agency will embark on a
broad effort to protect ground water
throughout the United States. EPA
wishes to avoid instances where the
surface disposal of hazardous wastes Is
controlled or prohibited wider the
Hazardous Waste Management (HIAIM)
program mandated by the Resource
Conservation and Recovery Act
(RCRA). Pub. L 94-580, October 21,
1976w while the underground injection of
the same hazardous waste is not
regulated by effective State programs.
EPA Is concerned that such a situation
would create undesirable incentives to
avoid regulations under the Hazardous
Waste Management program by
disposing of those regulated wastes
below the surface. By listing all the
States the Agency intends to bring the
disposal of hazardous waste through
well Injection under regulatory control
In a comparable time period with the
control of surface disposal of hazardous
wasle under the Resource Conservation
and Recovery Act.
3. Section 1422(b)(d): Development of
Underground Injection Control
Pmgmms—Once EPA has promulgated
the “minimum requirements”
regulations, each State will have the
opportunity to develop an enforceable
underground Injection control program.
The UIC program must be adopted after
reasonable notice and public hearings,
and must comply with the minimum
requirements.
Each State will have 270 days from
the effective date of these regulations to
develop Its UIC program and submit It to
EPA for review. EPA may, for a good
cause, extend this deadline for any State
by up to an additional 270 days. The.
Agency does not Intend to follow a
liberal policy in granting extensions.
“Good cause” will be limited to the need
to obtain legal authority from the
legislature and similar reasons.
If EPA determines that a State UIC
program meets the minimum
requirements of Parts 123 and 146, EPA
will approve the program. The State will
then be deemed to have ‘pthnary
enforcement responsibility” under Part
C of the Act and there will be no Federal
UIC enforcement actions in that State so
long as the State continues to meet its
responsibilities.
If a State fails to adopt and submit a
UIC program in a timely fashion, or If
EPA finds that a State’s UIC program
fails In part or in whole to meet the
minimwn requirements of Parts 123 and
146, EPA Is required to propose and
promulgate UIC regulations to be
effective in that State. In such an event,
a State will not be deemed to have
“primary enforcement responsibility,”
(“primacy”) and direct Federal
enforcement of the UIC program will
result (section 1422 (b), (c), 1423). In
addition, a State which fails to achicve
full primacy within 2 years of the award
of Its first UIC grant loses eligibility for
further Federal grants.
4. The 1977 Amendments—Although
they do not vary the operating scheme
of Part C of the Act, the 1977
amendments *0 the Act. Pub. L 95-190,
should be noted. In addition to allowing
the 270 day extension for State
submission of requests for approyal of
State programs (see above), they
emphasize that es have urisdiction
over injection by Federa gqncieso op
Fë 5 flns within the State . Federal
Agencieifall under State regutations as
would any other “person” (section
1447(a)). ith res ect in
on Indian an s, owever, urisdiction
remains section 1 iifl.
1 w Section 14Z1(bJt3)1liit ucts EPA
to allow consideration of varying
geologic, hydrologic, and historic
conditions among States. The Section
further cautions EPA against fashioning
minimum requirements regulations
which would “unnecessarily disrupt”
existing State underground injection
control programs now being enforced.
These considerations however. may not
be used to compromise the overall
statutory requirement to prevent
endangerment tounderground sources
of drinking water (section 1421(b)(3)(cJ).
EPA believes that these regulations
amply serve these interests: the
regulations offer States discretion to
tailor local programs to meet specific
needs and to consider geologic,
hydrologic, and historic conditions In
fashioning rules and permit -
requirements.
History of Rule Making
EPA originally proposed regulations to
implement Part C of the Safe Drinking
Water Act on August 31, 1976 (41 FR
36730-45). That proposal included the
program regulations. the technical
criteria and standards, and the related
grant regulations. Four hundred twenty
nine (429) written sets of comments -
were filed and many persons
commented at public hearings In Dallas,
Denver, and Washington, D.C.
After careful review of those public
comments, EPA determined that there
were many ways that the initial
proposal could be made generally more
flexible and less burdensome without
sacrificing the resulting environmental
protection to any significant degree.
Further, In the fall of 1978, the Agency
decided to consolidate the regulations
for its major permit programs: the
Hazardous Waste Management program
under the Resource Conser afion and
Recovery Act (RCRA); the UIC program
under the Safe Drinking Water Act
(SDWA): and the National Pollutant
Discharge Elimination System (NPDES)
under the Clean Water Act (CWA).
As a consequence of these events, the
Agency took the following series of
actions In 1978 and 1979. The grant
regulations related to the UIC program
were promulgated in final form on
October 12, 1978 (43 FR 47130, et seq.).
The initial group of 22 States needing an
UIC program were listed on September
25, 1978 (43 FR 43420). In addition the
20 and
C 9 1i2 reproposed the
regulatory framework for the UIC
program.
• 40 CFR Part 123 described the
elements of an approvable State
program and proposed the process for
EPA appro’iial of State participation in
the UIC program.
• 40 CFR Part 124 described the
procedures for permit application and
Issuance which EPA intends to follow
when It has primacy. Certain provisions
of 40 CFR Part 124 would also be -
applicable to State U IC programs.
• 40 CFR Part 146 (being promulgated
here) proposed the technical criteria and
standards to be used by EPA or the
State in implementing the UIC program.
Numerous written comments were
received and five public hearings were
held in Dallas, Washington, D.C.,
Chicago, Seattle, and Denver on the
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42474 Federal Registei I Vol. 45, No. 123 / Tuesday, June 24, 1980 / Rules and Regulations
Consolidated Permit regulations and
Part 148. The preamble to the
Consolidated Permit regulations
responds to both the written and oral
comments addressed to Parts 122.123.
and 124. Two hundred sets of written
comments were received addressed to
Part 148. These together with the oral
comments received will be responded to
In this preamble.
As noted In the preamble to the
reproposed Part 146(44 FR 23742), an
effort has been made in the process of
promulgating these regulations to reduce
duplication by retaining only technical
criteria and standards In Part 146 and
transferring all programmatic
requirements to Parts 122,123 and 124.
Ills not necessary to repeat here the
requirements established and explained
In the Consolidated Permit regulations.
The reader Is referred to 45 FR 33290. It
Is. however, Important to emphasize
., that, In contrast to the 1979 proposal, the
final Part 122 regulation requires owners
or operators of wells used to inject
I hazardous waste to achieve Interim
status under RCRA until the controlllng
‘State UIC program becomes effective.
- Therefore. the totality of requirements
applicable to State LJIC programs are to
be found In six sets of regulations.
• The UIC program grant regulations
(43 FR 47130).
• 40 CFR Part 122(45 FR 33418).
• 40 CFR Part 123(45 FR 33456).
4048 b edh
to sy).
40 CFR Part 205 (45 FR 33
Response mesents
The preamble to the 1979 reproposal
of Part 146 requested comments from the
public in more than 20 instances.
Additional comments were requested in
the preamble to the Consolidated Permit
regulations as well. Even though the
programmatic requirements for the
Underground Injection Control program
are properly dealt with in the preamble
to the Consolidated Permit regulations.
It is desirable to discuss them at least in
part here since the ter.hnical criteria and
standards are an integral portion of the
Underground Injection Control program.
In addition. It Is appropriate to err on
the side of completeness even at the
risk of repetition, for the sake of a
comprehensible discussion of the Issues
involved.
I. Regulatory Framework
A. Coverage of the Regulations—i.
Wells not near widergroundsourves of
drinking water. In the preamble to the
1979 reproposal of Part 146. EPA
explained that, at one point in
developing these regulations, EPA
considered not applying these —
gnJatfons to wells that do not inject
• Into, through. or above drlnldng water
sources (44. FR 23740-1). The preamble
went on to explain the Agency’s concern
that such a provision could leave an
injector uncertain about whether he Is or
Is not covered by these regulations.
Furthermore, although a particular well
may not be injected Into, through or
above a drinking water source. It could
still be a potential cause of
endangerment by displacing formation
fluids, through a hydraulic connection,
into an underground source of drinking
water.
In view of these concerns, the
proposal suggested applying the
regulations to all injection wells
regardless of their location. The
preamble went on to note that one result
of this decision was that off-shore
injection operations would be subjected
to UIC regulations. In response, a
number of commenters urged that off-
shore operations be excluded from the
coverage of the UIC program and that
wells that do not inject into, through or
above a drinking water source should be
given recognition In some form. EPA
agrees and the final Part 122 includes
two sections intended to resolve this
question.
First, 122.31(d)(2)(l) excludes
Injection wells located on a drilling
platform or other site beyond a State’s - .
territorial waters. The rationale behind
this decision is that the-Safe Drinking
Water Act intended the underground
Injection control program lobe a State
program. Therefore. only injection wells
that fall within the boundaries of a State
are Included and off-shore wellS which
fall beyond State boundaries are
excluded.
Second, a new 0 122.43(a) has been
added. This section states that If a well
does not inject Into, through or above a
drinking water source, the Director has
discretion to ease the area of review.
construction, mechanical Integrity.
monitoring, operating and reporting
requirements applicable to such wells.
In this regard EPA contemplated
excluding such wells entirely from these
regulations. However, It Is only prudent
that as long as an injection facility has
some potential to contaminate
underground sources of drinking water
through lateral displacement, some
minimal control should be exercised
over it. At a minimum, the Director
should have the opportunity to assess
the potential for contamination. Thus.
wells that do not inject into, through or
above underground source of drinking
water are still covered by the UIC
program, so that they can be inventoried
and their potential for endangerment
reviewed. However, discretion Is given
to the Director to determine whether any
additional requirements need be applie
In particular Instances.
2. The Inclusion of Class!! Wells.
The overwhelming majority of people
commenting on the regulations on behalf
of the oil and gas industry and the State
regulatory agencies suggested that EPA
should not bring Class II wells (those
injection wells associated with the oil
and gas Industry) under the UIC
regulations. Commenters advanced
three reasons In support of this
suggestion. First of all, they contended
that EPA has failed to prove extensive
damage to underground sources of
drinking water from Class II injection
practices. Second, the commenters
maintlined that existing State programs
have done an effective job of preventing
the contamination of underground
sources of drinking water through Class
II practices. Third, the comnienters
pointed out that Section 1422(c) of the
SDWA instructs EPA not to include any
requirements In Its UIC regulations
which Interfere with or Impede the
disposal of brine or other fluids which
are brought to the surface In connection
with oil or natural gas production, or
any underground Injection for the
secondary or tertiary recovery of oil or
natural gas. pnless such requirements
are essential to assure that undergrounr
sources of drinking water will not be -
endangered by such injection.
- A number of commentera also argued
that natural gas storage facilities should
be excluded from the regulations for
reasons similar to the ones cited above,
and because natural gas Is neither a
fluid nor a contaminant within the
meaning of the SDWA.
EPA has carefully reviewed these
comments and concludes that injection
wells involved In natural gas storage
operations do constitute underground
injection within the meaning of the Act.
and should be subject to these
regulations. Section 1421(b)(i)(A) of the
SDWA states that a State program, In
order to be approved under Section
1422; -
—. ‘ ‘shall prohibit, effective three years
after the date of the enactment of this Title
any underground Injection In such State
which s not authorized by a permit issued by
the State to authorize underground injection
by rule);”
The term “underground injection” is
defined in Section 1421(d) of the Act as
the subsurface emplacement of fluids by
well injection. In scientific usage. the
term “fluids” is defined to Include not
only liquids that flow but also gases.
Thus, reading these two provisions of
the Act together, there seems to be little
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Fede a1 Register F Vol. 45, No. 123 I Tuesday, .June 24, 1980 I Rules and Regulations
42475
question that EPA does have the
authority to bring both natural gas
storage wells and other Injection well.
related to oil and gas production under
the control of the Act. A more precise
statement of the Issue then would seem
to be the appropriate level of regulation
to which such practices should be
sub Jected.
After a careful review of the
comments on this point, the Agency has
decided that further easing of the
requirements for gas storage wells I.
appropriate for several reasons. First, -.
EPA agrees with the comments that
pointed out that unlilce the Injection of
other substances, gas Is highly unlikely
to result in the chemical contamination
of dxln]dng water, even If It migrates
from the injection zone. Second. the
Agency Is persuaded by the arguments
that these facilities are used to store a
valuable commodity and that, therefore,
the operator has a strong Incentive to be
able to recover the stored gas with
minimal losses to the environment.
However, after a further review of the
pathways of possible contamination, the
Agency has conduded that the major
concern Is any possible contamination
of underground sources of drinking
water from the displacement of
formation fluids when gas is stored In
aquifers.
The Agency’s final decision is to
dassify gas storage operations In Class
V. As such they will be authorized by
rule In satisfaction of the requirement In
Section 1421(b)(1)(A) of the Act, and be
subject to further study. If States, based
on their assessment, recommend further
regulatory controls for gas storage wells,
appropriate requirements may be
established in the future.
With regard to the argument
concerning existing effective State
programs. the Act does not set any
procedures or standards for EPA to
follow In deciding which States to list.
The Committee Report. on the other
hand (H.R. Report 93-1185, page 32),
states that It was anticipated by the
Committee that EPA will list all 50
States but perhaps not the District of
Cblumbla and various territories and
possessions.
• Furthermore, EPA has deliberately
chosen to avoid any evaluation of the
quality of existing State programs or the
preparation of a “report card” as the
basis for the Administrator’s decision to
list or not to list. There are several
persuasive reasons for this course of
action. First of all, a significant amount
of EPA resources would be consumed in
the process of doing careful evaluations
of all of the 50 States UIC programs as
they exist today. Such a nationwide
evaluation process would require years
to complete, involve hundreds of EPA
personnel, and cost millions of dollars of
contract support funds. Secondly, such
an essentially adversary relationship
could eaelly lead to embarrassment and
resentment between States and EPA.it
Is not likely to be conducive to the long
term objective of an effective State!
Federal partnership in the
Implementation of UIC programs.
At one point In the development of the
UIC program, It was the intention of the
Agency to stagger the workload by
phasing in the listing of States. It was to
carry outthephas lng thItEPA
developed the system of prioritieS to
select the States which should be llsted
first. Factors to be considered In
establishing such priorities Included
those approximating the potential threat
(such as the number of wells In each
State) and those approximating the
Importance of the ground water
resources (such as the percent and
absolute number of people relying on
ground water). The basis for
establishing priorities is given tfuller
explanation In the Preamble to the
Initial listing of 22 States (43 FR 43420).
It should be emphasized that the
Agency has always intended to list all
States in keeping with the congressional
guidance. The priority system discussed
above was always intended as a basis
for Identifying the States to be listed
first, not as a basis for deciding which
States did or did not need a program.
In the process of consolidating the
Agency’s major permit program,
however, It became apparent that the
UIC program and the Hazardous Waste
Management program are related at a
number of points. The Agency,
therefore, accelerated the listing of
States in order to apply regulatory
controls under UIC and HWM in a
coordinited and orderly manner.
It Is Inevitable that the establishment
of a Federal program necessarily carries.
with It certain uniform monitoring,
reporting and other administrative
requirements. This, however, is not to
iay that the Agency has made the
judgment that all currently existing State
programs would have to change
radically in order to achieve EPA
approval for delegation. Indeed, mindful
of the instructions of the SWDA to
• minimize the disruption of existing
effective State programs. EPA has gone
- ‘to some lengths to avoid any
rdqulrement which would force any
-State to seek new legislation or to seek
changes in existing regulations. While it
Is clear that there are variations in
existing State programs to control
underground injection, and that these
regulations will have the effect of
upgrading some of the State programs. It
Is EPA’s expectation that many If not
most State programs will be able to win
EPA approval with only minimal
changes. The Agency looks forward to
working with State staffs to develop
approvable programs as expeditiously
as possible.
The House Committee Report also
spoke to the congressional intent In
adopting the amendments instructing
EPA not to set requirements which
would Interfere with or Impede oil and
gas production (H.R. Report *93-1185, p.
31):
‘7hIs amendment prohibits regulations for
State UIC programs from prescnbing
requirements which would interfere with
production of oil or natural gas or disposal of
by-products associated with such production.
except that such requirements are authorized
to be prescribed If essential to assure that
underground sources of drinking water will
not be endangered by iuch activity.
The Committee’s Intent in adopting this
amendment was not to require EPA to bear
an impossible burden of proof as a condition
of promulgation of any such regulation.
Rather, the Committee sought to assure that
constraints on energy production activities
would be kept as limited In scope as possible
while still assuring the safety of present and
potential sources of drinking water. Similar
provisions were adopted with respect to EPA
regulations which are to be promulgated
when a State fails to adopt an approvsble
underground injection control program.
In deciding what is an “essential”
requirement, the Committee Intends that the
types of measures referred to in the
Administrator’s Decision Statement Number
land those referred to In this report be
considered to be “essential” unless the
contrery could be demonstrated with respect
to a specific well or injection. Moreover. in
usL’tg the works “interfere with or impede”
the Committee did not intend to include every
regulatory requirement which would
necessitate the expenditures of time, money,
ror effort. Rather, the Committee intended to
refer to those requirements which could stop
or substantially delay production of oil or
Lpatural gas.”
Thus, while these UIC regulations.
may create additional requirements and
Impose additional economic costs on oil
and gas producers, and while they may
result in the closure of certain marginal
wells, the Agency Is not persuaded that
these regulotions would result in a
substantial delay of oil or natural gas
production In the meaning of the
Congressional intent.
Finally, the Agency finds little merit in
the arguments that It has failed to
demonstrate the necessary for the UIC
regulations because it has not cited
numerous instances of damage to
underground sources of drinking water.
It should be noted that In the basis for
concern expressed in the House
Committee Report (quoted earlier In this
Preamble) Congress had clearly
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42476 Federal Register I Vol. 45. No. 123 / Tuesday, June 24, 1980 / Rules and Regulations
concluded that the underground
Injection of contaminants is an -
Increasing problem. Numerous
- ‘ I ncy in the House
eport No. 93—1185 uld seem to
- e Congress was fully
aware that it was enacting a preventive
statute which was aimed at preventing
the contamination of the Nations
ground water resources, rather than at
cleaning up after the damage had
occurred. As one example of this, It is
Interesting to note the discussion of the
definition of endangering drinking water
sources (H.P.. Report 93—1185. page 32):
“‘r t 1 ie Commltiee was concerned that its
definition of ‘endangering drinking water
sources’ also be ccnstrued liberally The
definition would be met If the Injected
matenarwere not completely contained
within the well, if it may entar either a
presentpr potential drinking water source.
and if 1 (or some form into which It might be
converted) may pose a threat to huqian
health or render the water unfit for human
consump•ion. In this connection, It Is
important to note that actual contamination
of drinking water Is not a prerequisite either
for the establishment of the regulations or for
the enforcement thereof.”
Furthermore, the Agency is mindful of
the fact that Section 1421 (bfll)(Aj of the
SDWA specifies that once a State UIC
program becomes established all
underground injection is considered
unlawful unless authorized by the
State’s UIC program.
Thus, the Agency did not conduct
field work to document a national file of
every case of contamination by a Class
[ I Injection practice. Nor did it try to
establish the percentage of the Nation’s
ground water which has been
contaminated by specific types of
injection well practices. The Agency
does acknowledge a responsibility.
however, not to regulate needlessly or to
force the expenditure of national
rersources for frivolous purposes.
Therefore, the Agency did review court
cases and other available material to
establish that the injection practices In
Class 11 and the other classes do have a
potential for contaminating underground
sources ol drinking water. We believe
that documenting the potential for
contamination does satisfy the legal
standard imposed upon the Agency by
the SDWA.
B. Test of EndongerrnenL The
definition of the term ‘endangerment”
has been one of the more commented
upon sections of the L’IC regulations.
The original 1978 proposal of the UIC
regulaltions followed the language of the
SOWA. Section 1421(d)(2) of the Act
states:
“Underground injmtion endangers drinking
water sources if such injection may result in
the presence In underground water which
supplies or can reasonably be expected to
• supply any public water system of any
contaminant, and if the presence of such
• contaminant may result in such system’s not
complying with any national primary
drinking water regulation or may otherwise
adversely affect the health of persons.”
The term “contaminant” is defined In
section 1401(6) as “any physical.
chemical, biological or radiological
substance or matter in water.”
The 1976 proposal, therefore, offered
the following definition:
“Underground injection endangers
underground drinking water sources if (1)
such Injection may make it necessary for a
public water system using an underground
drinking water source to increase treatment
of the water, or (2)11 such injection might
make It necessary for a public water system
which uses the source in the future to use
more extensive treatm nt of the water than
would otherwise have been necessary, or (3)
if such injection may otherwise adversely
affect the health of persons such as by adding
a substance that would make water from the
source unfit for human consumption.”
(Section 146.1 (x), 41 FR 36737).
Numerous adverse comments were
received on this suggested definition.
Many believed the definition to be
confusing and vague, especially the third
element relating to adverse effects on
the health of persons. Other commenters
held that EPA haa simply restated the - -
law in different words, and that the
regulations should either use the
statutory definition or one that could be
applied with operational precision.
In response, the 1979 reproposal
avoided a formal definition of
‘endangerment.” Rather, it attempted an
operational test that could be used with
some operational significance. As the
Preamble discussion pointed out (44 FR
23740):
“The teat in these reproposed regulations is
whether injection operations will cause the
migration of injected or formation fluids into
an underground source of drinking water, If
injection into a well can cause such
migration, the owner/operator must take
appropriate action to eliminate the fluid
migration. ”
The “no migration” standard was
applicable to wells in Classes I—Ill,
which were to achieve It through the use
of sound engineering practices. The
proposed ban/phase out for Class W
wells was also consistent with this
standard. Since no technological
requirements could ensure the absence
of migration from wells designed to
inject into or above USDWS, this
practice was to be discontinued.
The proposal recognized two
exceptions to the standard. One was in
the case of Class V wells. EPA had
determined (and still believes) that too
little Is known about the practices
grouped in this class to make them ripe
for regulatory controls At the same
time, the Agency did want to emjihasiz .
the responsibility of the Director to take
action In cases where Class V wells did
pose a real problem.
The Agency believed that a more
selective standard than “no migration”
was appropriate to define such
situations because many Class V wells,
even beneficial practices such as aquifer
recharge wells, are designed to Inject
into potential USDWs. As a
consequence, § 148.53 (44 FR 23766)
required the Director to act when he
gained “knowledge of a Class V well
which presents a significant risk to the
health of persons
The other exception appeared in
§ 148.22(c) (33 FR 23782) which gave the
Director discretion to relieve Class II
wells in existing injection fields of the
jpplicable casing and cementing
requirements. One condition of granting
relief was that the well injection “will
not result In the migration of fluids into
an underground source of drinking
water so as to create a significant risk to
the health of persons using the source of
drinking water.” This formulation was
chosen because the Agency wanted to
recognize the special nature of
construction requirements for wells in
existing Injection fields. While the
Agency did not believe it appropriate to
grant an unconditional license to
endanger USDWS. It did believe It
appropriate to allow additional scope in.
this instance In keeping with the proviso
of the SDWA to avoid interfering with
or impeding oil or gas production.
Commenters agreed that the proposed
scheme was less vague than the earlier
definition. However, several
cominenters tiow argued that the
definition was too broad and that the
term “migration” must be restricted In
some fashion. Others were concerned
because the definition seems to include
displacement through underground
hydraulic connections and argued that
such migratioft was hard to anticipate.
monitor, and, in some cases, control.
Some commenters sugges’ed that the
term “migration” should be modified to
some term such as “harmful migration”.
or “migration In harmful quantities.”
Others urged the use of such terms as
“detectable migration” or suggested the
use of ambient water quality standards
broader than the purameters controlled
in the National Interim Primary Drinking
Water Standards. Still others question’
the appropriateness of departing from
the language of suction 142fld)(2) to
establish less restrictive standards for
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- Federal Register I Vol. 45, No. 123 I Tuesday, June 24. 1980 I Rules and Regulations
42477
Class V and the casing and cementing
requirement In Class II.
EPA appreciates these suggestions but
does not believe that they would
improve the usefulness of the test. The
use of a broader set of water quality
standards or such modifiers as
“harmful” would reintroduce the
unworkability of the definition that was
offered In the original proposal. The use
of the term ‘detectable’ would be
redundant because, by definition, a
‘migration mb underground sources of
drinking water could only be
ascertained If It can be measured or
detected. Finally, the lateral
displacement of formation fluids is one
of the pathways of contamination of
concern in these regulations and EPA
fully Intended to bring it within the
scope of this definition. -
Consequently, the final regulations
retain the “no migration” standard for
Classes I—UI, although It is now stated
as “movement of fluids” or “movement
of injection or formation fluids.” (40 CFR
122.34). The Agency intends no
substantive change through the
substitution of “movement’ for
“migration.” The two terms are
considered synonymous and are used
interchangeably in these regulations.
The Agency does not believe that it Is
an overly protective standard. It does
not require total containment; only that
any leak or displacement not reach any
USDW. It has the merit of being
measurable and can be achieved
through the use of readily available
engineering technology which many
Injectors already apply.
Similarly, the “significant risk”
standard has been retained in
j 148.22(c). The Agency still believes
that this Is an appropriate condition for
granting relief from the Class U casing
and cementing requirements.
The Agency has decided to review the
baniphase out for some Class IV wells,
whllei’etalnlng this approach for those
injecting Into USDWS. The applicable
itandard is one of the questions In the
further consideration of certain Class N
requirements. This subject Is discussed
more fully below.
In the case of Class V wells, the
Agency has decided to establish a
itandard more closely in conformance
with the statutory language. 40 CFR
122.34(c) and (d) now require the
Director to act if he learns that a Class
V well “may cause a violation of
primary drinking water regulations” or
“may be otherwise adversely affecting
the health of persons.” These are not
deemed to be more stringent or more
Inclusive standards. The Agency has not
reconsidered Its judgment that Class V
wells are not ripe for regulatory
controls, and enforcemnt action by the
Director Is not expected to become the
rule rather than the exception It was
intended to be under the Class V
regulatory scheme. The Agency has
decided that the use of statutory
language Is more appropriate in this
case than a standard based on
“significant risk.”
The explicit authollb’ to apply permits
to Class V wells Is new. Again, this Is
not intended to make the Class V
requirements more stringent. The
Agency, however, realized that the
reproposed regulations had failed to
provide the Director with any
mechanism for applying controls in the
cases where action needs to be taken
with regard to a Class V injector to
apply for a permit Is intended to remedy
this oversight.
C. Aquifer Restoration vs. Protective
Action. A number of commenters urged
the Agency to establish explicit
requirements In the regulations that
would force owners or operators of
wells to take action to restore the
quality of an aquifer under appropriate
circumstances. The Agency has
carefully considered these suggestions
and has chosen not to establish explicit
requirements for the following reasons.
Aquifer restoration has been tried on
a pilot scale in shallow aquifers in
connection with certain solution mining
operations. Our review of the outcome
of these pilot projects persuaded the
Agency that full scale attempts at
aquifer restoration could be very
expensive with uncertain outcomes.
Certainly in cases where solution mining
Is accompanied by an expected
subsidence or catastrophic collapse In
the overlying strata, the potential
benefits of an aquifer resoration attempt
are questionable.
The Agency also hesitates to impose
restoration requirements because It
interprets tbe mandate of the SDWA to
be a preventive one. We believe that the
main thrust of these regulations should
be the prevention of further
contamination rather than the
restoration of aquifers that may already
be damaged. The Agency is very much
concerned that such requirements may
divert scarce resources, both Federal
and State, from the task of controlling
underground Injection which Is the
mandate under the Act.
At the same time it Is not the intention
of these regulations to preclude the
Director from requiring the restoration
of aquifer, If such action Is appropriate
In particular cases. In establishing their
UIC programs, the States are free to set
more stringent requirements than the
n in1mum requirements in these
regulations. In addition, new 140.10(d)
requires the owner or operator of a
Class Ill well to submit a plan of
abandonment which must demonstrate
that no migration from the mining zone
into underground sources of drinking
water will occur after abandonment. ,In
setting abandonment requirements, the
Director Is given the discretion to set
such aquifer clean up and monitoring
requirements as he deems necessary to
Insure that the abandonment plan will
be effective. The Agency will continue
to assess the development of technology
In this area and may establish
additional appropriate requirements In
the future.
D. Performance Standards vs.
Technical Requirements. Many
commenters criticized EPA for over-
regulating by attempting to set technical
requirements. They urged that EPA
establish the objectives that it wants to
achieve and allow discretion to the
State Director and the injector in
achieving those objectives. At the same
time, many of the requirements were
critized as being too vague and allowing
too much undirected discretion to the
permitting authority. Such commenters
urged EPA to specify more clearly
precisely what the standards are.
As these conflicting comments
demonstrate, the tension between
performance standards and technical
requirements is an Inherent problem In
attempting to write national regulations
In a highly technical area. Supporters of
performance standards prgued that they
are an efficient means of regulating
because they allow the owner or
operator to choose how he will come
Into compliance. This, it is argued, tends
to foster the development of new
technology rather than stifling It and
allows the most efficient means of
coming into compliance to be applied in
a particular instance.
Supporters of technical requirements
argue that performance standards
become almost Impossible to enforce.
Determining compliance or lack of
compliance with the objectives of the
regulations becomes a matter of long,
drawn-out, highly technical arguments
among technical experts. Further, It Is
argued that both In fairness to the
regulated community, and In order to
make the regulations enforceable, the
regulations have a responsibility to spell
out clear-cut requirements that the
owner or operator understands and
against which compliance or the lack of
It can be measured.
Precisely because a great deal Is still
unknown about the movement of fluids
below the surface, and because the
monitoring of interactions Is both
difficult and uncertain, the approach of
the UIC regulations has been to
-------
42478 Federal Register / Vol. 45, No. 123 / Tuesday, June 24, 1980 I Rules and Regulations’
straight forward “good engineering”
practices such as mechanical Integrity of
the tubular goods and the absence of
man-mide communication between the
Injection zone and higher strata. The
presumption of the regulations Is that as
long as an owner or operator is in
compliance with the technical
requirements of “good engineering”
practices, endangerment of nearby
underground sources of drinking water
will have been avoided. In cases where
migration Into underground sources of
drinking water still occurs, even though
the technical requirements have been
complied with, the Director may impose
additional requirements. In general.
discretion in these regulations has been
allówed where it seemed appropriate
and possible to do so. On balance, this
still seems the best approach to the
Agency and It has been retained in the
regulations.
E. Permitting Sequence. Many
cominenters pointed out an
Inconsistency between proposed 40 1 FR
Part 122 and 40 CFR Part 148 with
respect to just when in the life cycle of a
well a permit had to be obtained. A
more important point of confusion was
that the regulations seemed to require
that the Director, prior to issuing the
permit, review certain information
which, at least in some cases, could not
be produced without injecting into the
well, even though the regulations
seemed to prohibit injection without a
permit.
The Agency agrees that the proposed
regulations were not clear on this point
ar.d has now clarified the permitting
sequence. The regulations now make
clear that the requirement is for a single
multi-phase permit similar to the current
practice in a number of States, e.g.,
Michigan. In the case of a new well, the
owner or operator must apply for a
permit, which may be issued to him after
appropriate public comment and
hearings 1 before any work to drill or
convert a well begins (see 40 CFR 122.33
and 122.38(b)). The permit is to have
three phases: construction, testing and
stimulation: operation: and
abandonment. The applicant’s plans for
the cor.struction and preparation of the
well, as approved by the Director, will
be incorporated into the permit as -
permit conditions. Should the plans
change In any material way, the
perinittee must notify the Director and
obtain his concurrence to the changes.
Such modifications are considered to be
minor modifications and can be
approved administratively without the
requirement for public hearing and
comment.
these parallel statutory sections could
subject the operator of an injection well
used to dispose of hazardous waste to
duplicative and possibry conflicting
requirements. In keeping with its
intention of reducing administrative
burdens on the regulated community,
the Agency offered the following
resolution in the 1979 proposal of the
Consolidated Permit regulations. The
surface management of hazardous waste
would be regulated under RCRA while
injection wells would be regulated under
the SDWA. The separation point would
be at the cut-off valve at the well-head.
A facility would have to obtain
authorization under SDWA to operate
the well itself. Any attendant surface
facilities used to manage hazardous
whte would.have to be permitted under
RCRA. The rationale for this proposed
method of regulation was twofold: First.
the technical differences between
surface disposal techniques and well
injection argue that the two sets of
practices are appropriately regulated
through differing technical requirements;
second, the proposal avoided the
imposition of duplicative procedural
requirements on the operator of the well.
Three major comments were received
on this proposed course of action. Two
of them agreed in general with EPA’s
decision as long as the owner or
operator of the well would have to
complete the manifest-keeping
require nents under RCRA. This was. o
course, one of the conditions specified in
proposed 40 CFR 122.44 and 40 CFR
146.09. The third cominenter objected
strongly arguing that: (1) The language
of Section 3005(a) of RCRA does ot
allow the disposal of hazardous waste
in any facility that is not permitted
wider RCRA; and (2) the disposal of
hazardous waste should be regulated
under RCR.A because that Act provides
a greater level of protection to the
environment.
EPA has reviewed these comments
with great care and rejects the general
argument that the level of protection
afforded the environment from the
potential effects of underground
injection would necessarily be greater
under RCRA than under SDWA. While
it is true that RCRA authorizes the
Agency to protect human health and the
environment from the impacts of
hazardous waste disposal, the scope of
this mandate Is not directly relevant to
well injection. The major concern from
the injection of fluids is the potential
danger to underground sources of
drinking water, and the Agency believes
It has adequate authority under SDWA
to protect such sources from the effect’
of well injection. Futhermore, because
translate the mandate of IhWSDWA into . It Is the responsibility of the owner or
operator to notify the Director of the
completion of each phase and to obtain
‘the Director’s written or oral permission
to proceed with the next phase (see 40
CFR 122.41(c), 122.42 (a) and (I), and
148.10). The permlttee must provide the
Director a 13 day opportunity to conduct
a physical inspection of the well before
putting the well into operation.
Conditions for the operation of the well
will be e ablished by the Director as
part of his notification to the owner or
operator that he may proceed with the
next phase. The Sections of Part 146
specifying the information to be
submitted by the applicant and to be
considered by the Director have been
modified to reflect this clarified scheme.
The owner or operator of an existing
well must submit his application at the
time he is required to do so by the
Director in accordance with the
Director’s plan for re-issuing permits
submitted as part of the State program
to EPA for approval. The permit will
apply to the operating and abandonment
phases of the well’s life, but may
incorporate compliance schedules
according to which the injector must
perform such corrective actions as the
Director may require.
The Agency believes there are several
advantages to this approach, not the
least of which is that it will minimize thtt
changes required in the current
procedures of most States. By placing
the permitting decision at the beginning
of the process, It assures the applicant of
a dacision before any major investment
has been made. Since the approval to
proceed to the next phase can be
handled administratively, it avoids any
major delays once the project has been
initiated. Finally, it provides a greater
degree of environmental protection by
clarifying the authority of the Director to
supervise the construction and testing of
the well in addition to its operation and
abandonment.
P. Coordination of Authorities Under -
SDWA, RCRA end CWA. One of the
questions addressed in the
consolidation of the Agency’s major
permit programs was the coordination of
overlapping authorities over well
injection. Section 3005 of RCRA states
that once the Hazardous Waste
Management program Is established,
hazardous waste may only be disposed
of (including injected) In a site approved
under the authority of RCRA. i t the
same time, Section 1421 of SDWA states
that once a UIC program is established
for a State, any well Injection in the
State Is prohibited unless authorized
under Its UIC program. Since there are
differences between SDWA and RCRA,
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Federal Register I Vol. 45. No. 123 / Tuesday, June 24, 1980 / Rules and Regulations
42479
• technical differences In th’e practices.
the requirements which are appropriate
to surface disposal methods are not in
many cases, appropriate for well
injection. Indeed, the Agency would
promulgate essentially the same
technical requirements to regulate the
well injection of hazardous wastes
whether It did so under SDWA or
RCRA.
Ii. Major Prog.ams Concepts
A. Well Classification. In the
proposed 40 CFR Parts 122 and 146.05.
the Agency proposed a revised scheme
for classifying Injection wells and
requested comments on Its
appropriateness. In general. commenters
agreed that this .waa a workable
classification system. A number of
commentere. however, suggested the
need for further clarification. Section
146.05 of these regulations attempts to
resolve the points that were raised.
First, a number of commenters pointed
out that in the case of Class I and Class
IV wells, part of the definition of the
well involved the relationship of the
well to the nearest drinking water
source, without, however, specifying any
distance or other limitation. The
applicable definitions now specify that
Class I wells must inject below the
deepest formation which, within a
quarter of a mile of the well bore.
contains an underground source of
drinking water. Conversely, Class IV
wells are those that inject into or above
a stratum which, within a quarter of a
mile of the well, contains an
underground source of drinking water.
As a basis for this clarification, the
Agency relied on the concept of the area
of review and conformed these
definitions to the minimum of one-
quarter mile to be used when the area is
established by the use of a fixed radius.
Second. many commenters were
concerned about sand backfill wells and
the possibility that, because of the
nature of the injected materials, these
wells could come under the
classification of hazardous wastes under
Class IV. This was not the result
Intended by the Agency. The final
regulations now specify that sand
backfill wells are to be considered Class
V. They are to be assessed for their
environmental impact and future
regulations may be applied to them.
Third. some coinmenters suggested
that the proposed regulations left some
confusion over the status of non.
residential septic systems. Single-family
domestic sewage disposal systems are
not covered under the UIC program.
Multiple dwelling and industrial sewage
disposal systems are generally included
In Class V. Those that are used to
dispose of hazardous waste fall under
Class IV.
Fourth. a number of commenters
suggested that disposal wells handling
blowdown water discharges from gas
refinery plants and similar wastes be
treated not as Class I but as Class II
wells. Given the nature of these
operations and the chemical compositon
of the injection fluids, the Agency has
decided that these operations would be
more appropriately regulated under
Class L
Fifth, some cominenters expressed
confusion over the status of injection
wells used to store fluids which are used
in the recovery of stored hydrocarbons.
Section 146.05 clarifies that such wells
are now to be treated not as salt water
disposal wells, but as Class II
hydrocarbon storage wells.
Sixth, during the comment period.
EPA was made aware that hazardous
waste may in some cases be injected in
A final point concerns the delegation
of interim status authority to States.
States will be given the option to choose
whether to assume interim control over
hazardous waste injection wells under
RCRA and then convert to control under
SDWA. Alternatively, they may leave
Interim regulation of such wells with
EPA and accept delegation only at the
time their UIC program becomes
In response to comments, however, effective. If a State chooses the former
the Agency has changed its approach to method, It will be required to assume
coordinating RCRA and SDWA responsibility under RCRA through the
authorities in three ways. First, under same agency that will ultimately
SDWA no enforceable requirements will exercise the responsibility under the
apply to operators of injection wells in a SDWA_
State until the UIC program for. that Other changes have also been made
State is effective. Because of the Jn the regulatory scheme for Class IV
statutory scheme of SDWA. State wells. They are discussed later in this
programs will not be established until preamble.
one to two years after the minimum Injection wells, with the exception oI
requirements In 40 CFR Part 122 have Class II. could also be regujated either
been promulgated. EPA agrees that, under the Clean Water Act (CWA) or
under the proposed regulatory approach, the SDWA. More specifically the CWA
the SDWA would, therefore, not have requires that in cases where the
National Pollutants Discharge
provided a level of control equivalent to Elimination permitting system (NPDES)
RCRA over wells used to inject
hazardous waste during the Interim is delegated to States, the States must
have the legal authority to also control
period. Consequently. the final 40 CFR the disposal of pollutants into injection
122.23 requires that owners or operators wells. The proposed Consolidated
of Class I andW wells obtain interim
status under RCR.A. Certain standards Permit regulations in 123.74 required
for interim status are contained in 40 State NPDES permit programs to have
the authority to issue permits to control
CFR Part 265 Subpart R which has been the disposal of pollutants into wells. -
made applicable to such injectors. Such a requirement could conceivably
Additional standards have been have some undesirable results. To the
proposed (see 45 FR 33280) for future extent that there are differences
inclusion In Part 265. Injectors of between the CWA and the SDWA. such
hazardous waste will ultimately be
regulated under the SDWA. However, a requirement could, for example.
prior to the time a State UIC program is require a State to develop a UIC
program which meets the requirements
effective, hazardous waste Injection of the SD%VA and then to develop
wells may be permitted under RCRA separate authorities to control well
(see 40 CFR 122.30) for a period not to injection that meet the requirements of
exceed two years. — the CWA. In addition, this section could
Second, in contrast to the proposal, be read to imply that the mc program
Injection wells will now be authorized and the NPDES program could only be
under both RCRA and SDWA once the delegated in concert.
applicable State UIC program becomes b In order to resolve these difficulties,
effective. A permit b nile under RCEA L ’ final Section 40 CFR 123.72 now requires I
(see 40QEE12J.26) will authorize the 1 that State law provide authority to issue I
disposal of hazardous waste Into an the permits in question and specifies
injection well if the well has been that an approved UIC program satisfies
properly-authorized under SDWA. This this requirement for the NPDES program
final resolution was adopted because it
Batisfies the statutory language of both
_Acts. At the sam* time, the goal of
minimizing procedural burdens on the I
regulated community will be
maintained. As a practical matter the I
owner or operator of a well used to
• inject hazardous waste will still only I
have to obtain authorization and comply
with requirements applicable to him I
under the mc program. Compliance
with applicable UIC requirements w1l J
be deemed to satisfy RCRA
requirements as well.
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42480 Federal Register I Vol. 45, No. 123 I Tuesday. June 24. 1980 I Rules and Regulations
situations other than into, through or
above an USDW. Because of the
definition of Class IV, these injections
would, under the proposed regulations,
have fallen into Class V. Commenters
argued that the injection of hazardous
waste merits stricter regulation than the
requirements of Class V even if ii is not
into, through or above an USDW. The
Agency agrees with this view, especially
because it seeks to make the control of
hazardous waste disposal under RCRA
and SDWA comparable. Therefore, the
injection of hazardous waste other than
through Class IV.wells is now included
in Class I (see 40 CFR 122.32(a)).
Seventh, the proposed regulations
included “nuclear” storage and disposal
wells in Class I (see proposed 40 CFR
122.34.44 FR 34282). The definition of
the term “solid waste” (and therefore
“hazardous waste”) under RCRA may
Include certain kinds of radioactive
waste, but specifically excludes source.
special nuclear or by-product material
as defined by the Atomic Energy Act of
1954. as amended. Since the SDWA does
not contain a similar limitation, the
Agency proposed to include the
injection of such material in Class I. Few
commenters addressed this aspect of the
proposal, although some objected to
granting States authority over these
sources. The President on February 12.
1980. issued an Executive Order
outlining a program to arrive at a
comprehensive radioactive waste
management program. Until this
program is complete, and EPA has had
an oppcrtunity for full consultations
with the Nuclear Regula tory
Commission, the Department of Energy,
ar.d other agencies with responsibilities
potentially affecting radioactive wastes,
it wculd be premature for EPA to issue
regulations concerning the disposal of
radioactive wastes into Class I wells.
Moreover, EPA wishes to coordinate
any regulations governing sand backfill
wells with regulatory measures it may
undertake under the Uranium Mill
Tailings Act. Accordingly, EPA has
modified the classification of wdls so
that wells disposing of radioactive
wastes belcw strata containing a USDW
will be Class V wells.
However, the disposal of radioactive
wastes into or above USDWs is an
environmentally undesirable practice.
Therefore. EPA has added a definition
of “radioactive waste” in 122.3 which
clarifies that the term “nuclear” waste
used in the proposal was intended to
cover not only the radioactive wastes
which are hazardous wastes under
RCRA but also fission by-products and
similar wastes covered under the
Atomic Energy Act of 1954. The disposal
of all such wastes into or above USDWs
is included in Class N and will be
regulated according to the scheme
promulgated.for Class IV wells: those
Class N wells injecting Into a USDW
are prohibited; requirements for other
Class N wells will be promulgated in
the fall of this year. (See the discussion
of Class N requirements below.)
- Section 122.31(d) now includes
specific inclusions and exclusions from
the coverage of the UIC program. Notes
have also been added to 146.05 for the
convenience of the reader.
B. Underground Sources of Drinking
Water. Since the original proposal of the
UIC regulations In 1976. an underground
source of drinking water has been
defined as an aquifer or Its portion
which either currently provides water
for human consumption or is capable of
yielding water containing fewer than
10,000 mg/i of total dissolved solids
(TDS). A number of commenters again
objected to the reproposal of 1979
setting the siandard at 10,000 mg/i of
TDS, and offered a number of
alternative concentration levels. EPA
has carefully reviewed these alternative
suggestions and has once more decided
to retain the standard of 10.000 mg/i of
TDS. None of the alternative
concentrations have any superior
justif Ication in terms of current State
practice, human health, or technological -.
considerations. In the absence of any
overriding argument to the contrary, the
Agency will follow the standard in the
House Committee Report accompanying
the SDWA.
A number of other comments were
offered on the scheme for designating
underground sources of drinking water.
Some pointed out an apparent conflict
between Part 122 and Part 146, In that
the former seemed to require the State
Director to designate underground
sources of drinking water while the
latter seemed to require him to
designate aquifers which were
exempted from protection. Others urged
the Agency to clarify the procedure for
making the initial designation and the
procedures whereby designation could
be changed in the future. Still others
pointed out that the use in the
exemptions of such terms as
“economically or technologically
Impractical” were imprecise and ought
to b defined further. Finally, some
argued that the exemption provided for
“oil or mineral producing” aquifers
seemed to Imply that only, areas actively
being worked could receive such an
exemption. They argued that the future
development of mining sites could be
hampered because of the uncertainty of
whether or not the mining site could
receive an exemption from the definillon
of underground source of drinking
water. Therefore, they urged the use of
the term “bearing” so that prospective
mining sites would be assured of
receiving a permit to operate, and
• thereby enhance their ability to obtain
financing.
EPA agrees with some of these
comments and disagrees with others.
The final regulations attempt to clarify
the definition of “underground source of
drinking water” as well as the process
for designation in the following way.
The terms “underground source of
drinking water” and “exempted aquifer”
are defined in § 122.3. “Underground
sources of drinking water” are aquifers
or their portions which currently provide
water for humar consumption or which
are capable of yielding water containing
fewer than 10,000 mg/I of TDS. Under
§ 122.35, the Director, as part of the
State program he submits for approval
to EPA. may identify those aquifers or
aquifer portions which will be
considered as underground sources of
drinking water. This identification may
be done by definition, description.
illustration, or other means. The reason
for’this Is to relieve the Director of the
requirement for extensive underground
exploration and mapping, or of
supplying a level of detail with his State
program submission which will force a
modificaion of the State program for
every minor modification in the depth or
extent of the fresh water zone. As stated
in § 122.31(d), an aquifer is an USDW if
It fits the definition even if it has not
been affirmati ely identified by the
Director.
An “exempted aquifer” is an aquifer
or its portion which would otherwise
meet the standard for an USDW but has
keen designated as “exempted” by the
Director in conformance with § 146.04.
Section 146.04 states thnt a Director may
designate as an exempted aquifer an
aquifer or aquifer portion which does
not already provide water for human
consumption but Is capable of yielding
water with a concentration of fewer
than 10,000 mg/i of TDS, if the aquifer
or its portion is:
(1) Mineral, hydrocarbon, or
geothermal energy producing.
(2) Situated at a depth of location
which makes recovery of water for
drinking water purposes economically
or technologically impractical;
(3) So contaminated that it would be
economically or technologically
impractical to render it fit for human
consumption: or
(4) Located over a Class III mining
area subject to subsidence or
catastrophic collapse.
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Federal Register / Vol. 45, No. 123 / Tuesday, June 24, 1980 / Rules ahd Regulations
The first three of these conditions
have changed only in substituting the
broader term ‘hydrocarbon” for “oil” in
the first proposed criterion. The Agency
has declined to change the term
‘producing” to “bearing” in the first
condition because it did not want to
open the possibility of wholesale
exemption of aquifers, over large, areas
of the country, which become Identified
as being capable of producing one or
another mineral. Similarly, the Agency
has chosen not to define further the term
“economically or technologically
Impractical.” After considering the
alternatives, the Agency decided It was
more appropriate to leave the
determination of what is or is not
economically or technologically
Impractical to the discretion of the
Director in the particular case.
The fourth exemption is new. It is an
attempt to respond to those commenters
who correctly pointed out that certain
Class Ill mining operations necessarily
Involve the subsidence or collapse of
strata above the injection zone. In such
cases, the probability of harm to the
overlying aquifers is substantial once
operations are underway. The decision
to protect these aquifers is more
appropriately made at the time the
mining operation Is permitted.
In cases where the Director chooses to
exempt an aquifer, he is required to
submit not only detailed maps, but also
sufficient justification in support of the
exemption.
The Director may exempt aquifers as
part of the State program he submits to
EPA for approval. Therefore, the
designations, by the nature of the
process. are subject to public hearing
and comment as well as the review and
approval of EPA. The Director is free to
change the designations or add to them
at a later date. Such a change, however.
would constitute a major modification of
the approved State program and, as a
major modification, is subject to public
hearing and comment, as well as EPA
review and approval.
C. Area of Review and Corrective
Action. Most of the comments received
on the revised area of review/corrective
action concept contained in the
reproposed 40 CFR Part 148 were
generally supportive, although a number
of specific suggestions were made. First.
a number of commenters pointed out
that the equation provided, in the
proposed 146.06 was applicable only
In certain circumstances. EPA agrees.
but notes that In proposed * 146.06(c),
the alternative calls only for the
computation of the zone of endangering
Influence based upon certain
parameterj. The modified form of the
equation provided in that section was
illustrative and for the convenience of
the reader. It was not intended to
represent the only acceptable equation
to be used in all cases.
Second, a number of commenters -
suggested that the applicant for a permit
be given a voice in the decision of how
the area of review would be determined
icr his well or field. EPA agrees and has
added to the regulations giving the
Director discretion to consult the
applicantin this regard (* 146.06). Third.
some cominenters suggested that the
one-quarter mile radius be made an
absolute minimum regardless of whether
the zone of endangering influence was
determined as fixed distance or through
computation. EPA disagrees with this
suggestion. In cases where the zone of
endangering Influence is actually less
than a quarter of a mile, such a
requirement would force the applicant to
expend resources and do work which
may not be justified by the expecteçl
benefits. Finally, some cominenters
suggested that the area of review be -
drawn from the edge of a field or project
rather than the Individual well. EPA
agrees. The concept was included in the
language of the proposed § 146.06(c) and
has been retained In the final
requirement.
Two comments were made with
regard to the proposed corrective action
requirement. The first suggestion was-
that the text of the proposed regulations
seems to imply that it is up to the
applicant to collect the In.formatiop on
the number of wells penetrating the
injection zone within the area of review.
The argument is that such Information is
kept by the State and, therefore, the
requirement should be for the State,
rather than for the applicant, to gather
this information. The Agency agrees
only in part. While it is correct that in
many cases this information is in the
files of the State. and, therefore,
simplicity would suggest that the State
should make use of this information in
the review of the permit application, the
Agency believes It important that the
ultimate burden for providing the
Information necessary for an adequate
review of a permit application should
rest with the applicant and should not
be transferred to the permitting
authority. Therefore, the language of the
final regulations makes it possible for
the State to supply this information
when, in the judgment of the Director. It
is appropriate to do so. However, the
final regulations do not explicitly relieve
the applicant of the responsibility for
making such information available when
the Director deems It appropriate.
Another area of comment concerned
the possible interpretation that in
42481
requiring corrective action on wells that
penetrate the injection zone within the
area of review, the Director may be put
in a position of requiring the applicant to
go onto the property of others, or to take
corrective action on the property of
others in order to meet the permit
conditions. EPA agrees that it is
inappropriate for these regulations to
require an applicant to perform actions
which may not be within his legal
ability, as a condition or precondition of
obtaining a permit. As a consequence,
the corrective action requirement has
been revised (* 122.44) to provide the
Director and the applicant with three
options.
First. If he can arrange it with the
neighboring owners and operators, the
applicant may, before he begins to
_lnject. take the corrective action
prescribed by the Director and then
Inject at his intended injection pressure.
Second. the Director may issue a
permit with a reduced injection pressure
calculated so that the potential zone of
endangering influence will be no bigger
than the area under the control of the
applicant in which the applicant can
take the appropriate corrective action.
Third, the permit can be issued with
the requested injection pressure but
with the condition that the owner or
operator must operate at a lesser
pressure until such a time that he takes
the corrective action required to allow a
more extensive zone of endangering
Influence. In arriving at this resolution,
EPA did not agree with suggestions that
the State use its authority to force the
owner or operator of the “bad” well to
repair it. The Agency believes that it is
not appropriate to use the authority of
the State to force one individual.
without his agreement, to incur
expenses and effort which benefit
another party. In addition, abandoned
wells in the area of review also may
have4o be fixed. In many cases, it may
not be possible to locate a responsible
party.
D. Mechanical Integrity. Proposed
* 146.08 defined mechanical integrity as
having two parts:(1) The absence of a
significant leak in the casing. tubing or
packer and (2) the absence of
significant fluid movement into an
underground source of drinking water
through vertical channels adjacent to
the injection well bore. The proposal
specified that the absence of significant
leaks was to be established through the
use of eight listed tests. The .absence of
significant fluid movement could be
demonstrated either through well
records demonstrating the presence of
adequate cement or the result of a
cement bond log, sonic log, temperature
log, density log, or dual neutron log. The
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42482 Federal Register 1 Vol. 45, No. 123 / Tuesday. June 24, 1980 / Rules and Regulations
proposed section further specified that
the Director may allow the use of a test
other than those liBled upon the written
approval of the Administator of EPA.
The owner or operator of the well was
to demonstrate the mechanical integrit
of his injection well as a condition of
authorization and at least every 5 years
thereafter.
Virtually aU aspects of this
requirement received public comment.
However, there does not appear to be a
clear consensus in the thrust of the
suggestions offered the Agency. Some
commenters argued that a
demonstration of mechanical integrity
every 5 years is too frequent. Others
argued that it is not frequent enough.
Some questioned the reliability of
cementing records, while others
supported the use of such records and
urged the Agency to go beyond its
proposal by allowing the demonstration
of mechanical integrity through the
historical absence of contamination.
Some conunenters urged the Agency to
rely on annular pressure tests: others
disagreed. Some argued that the
Director be given the discretion to
specify which test he’found acceptable
as a demonstration of mechanical
integrity. Some objected to the proviso
that the Administrator approve the use
of tests other than those listed in
§ 146.08. Others urged that such
additional tests as the Director approves
should be listed in the Federal Register
for the use of others. -
The majority of coinmenters did seem
to agree in three areas. Most
commenters urged the elimination of the
words which seemed to require the use
of more than one test to demonstrate the
absence of significant leaks. Many
commenters also found some fault with
one or more of the tests specified by
EPA in this section. Finally, in response
to a request for comments in the
preamble, many commenters supported
the idea of a sampling approach to
mechanical integrity rather than a
requirement for universal
demonstration. -
EPA haê carefully considered these
comments and requested its consultant
to conduct further technical analyses.
Based on this work, EPA has decided to
make the following changes in the final
version of * 146.08.
FirsI EPA agrees that in order to
demonstrate the absence of significant
leaks In the casing, tubing, or packer of
a well. any one of the specified tests is
sufficient and has, therefore, eliminated
the term “some co nbination.”
Second. the analysis performed for us
by Geraghty and Miller, Inc. suggested
that the eight tests proposed as methods
for demonstrating the absence of
significant leaks were either incorrectly
cited, redundant, or not particularly
reliable in demonstrating the absence of
leaks. Consequently, the final -
regulations retain only two of the eight
tests listed in paragraph (b) of the
proposed § 146.08. These are the
monitoring of annulus pressure and -
pressure tests with fluid or gas.
Third. with regard to the listed tests to
establish the absence of significant fluid
movement in the well bore, the àement
bond log, sonic log, density log, and dual
neutron log have been eliminated,
leaving temperature log or noise log as
the specified tests. The basis for this
decision is again the analysis conducted
by the Agency’s consultant.
Fc urth, the requirement that the
Administrator approve the use of tests
other than those specified in § 148.08
has been retained, but in a different
form. The use of alternative tests to
demonstrate mechanical integrity is
considered to be a major modification of
the State program and must be treated
as such under § 123.13. Two further
points are worth discussing regarding
mechanical integrity. The public
comments and the work of our own
consultant have raised some questions
with regard to the reliability of historical
well records to demonstrate the absence
of fluid movement in the well bore. As a
result, well records are no longer
considered an acceptable method of
demonstrating this aspect of mechanical
integrity in the case of Class I and III
wells. Thei se of well records has been
retained for Class II wells because of
the large number of wells in the Class
and the statutory provision not to
unduly interfere with or impede oil or
natural gas production. However, the
requirements for Class U wells will be
subject to a mid-course evaluation. As
one part of this evaluation, a sample of
Class U wells, for which well records
were used to demonstrate the absence
of significant fluid movement in the well
bore, will be required to perform the
specified tests as well. This procedure
will provide a comprehensive
assessment of the reliability of well
records and will provide a factual basis
for future Agency decisions on whether
to expand or eliminate the acceptability
of well records to demonstrate
mechanical integrity. -
Finally, the preamble to the
reproposed Part 148(44 FR 23743-4)
solicited comment on the possibility of.
requiring only a sample of wells, rather
than all, to demonstrate mechanical
integrity. Although many commenters
supported this concept, the final
regulations do not include any sampling
approaches to the demonstration of
mechanical integrity. Rather, the Agency
decided to combine a test of the
effectiveness of sampling with its
decision to accept well records as a
method for demonstrating the
mechanical integrity only of Class U
wells.
H. Area Permits. The 1979 version of
the regulations proposed an area permit
which would allow a number of wells of
a similar purpose and construction
under the control of a single owner or
operator to be authorized by one permit.
While most commenters approved this
concept, they pointed out thLat the
manner in which several sections of the
proposal were worded seemed to imply
that requirements would still have to be
fulfilled on a well-by-well basis. One
example of this was the information to
be submitted in support of a permit
application.
EPA agrees with this criticism and has
clarified Part 146 throughout to make
clear that a single permit for a number
of wells can be applied for and obtained
on an area basis. Section 122.39, dealing
with area permits, has also been
expanded to clarify the regulatory intent
in this regard.
F. Logging and Testing Requirements.
The sections of th 1979 proposal that
received the most extensively adverse
comments were the parallel
requirements for Classes I II, and III to
conduct certain tests during the drilling
and construction of wells and to report
the information to the Director. Almost
all commenters felt that specifying the
actual logs and tests to be used was
inappropriate, arid, in most cases, overly
inflexible. Upon consideration, the
Agency agrees. These parallel sectiops
for Classes I, II, and III have been
changed. Final Part 148 requires
deviation checks, but only for wells
constructed with the use of pilot holes
and reaming techniques. The Director is
given discretion to specify the other logs
and tests that may be required based
upon the a -ailabllity 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.
C. Control of Injection Pressures. The
proposed regulations required the
Director to establish limits on the
injection pressure at the welihead for
Classes 1, II. and Ill. In the case of Class
I. the surface pressure was to be
calculated so that the bottom hole
pressure during injection did not
propagate fractures in the injection zone
and did not initiate fractures In the
confining strata. For Class II. the surfa’
pressure was to be calculated only so
that the bottom hole pressure did not
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Yedera] Register / VoL 45. No. 123 / Tuesday, June 24. 1980 / Rules and ‘Regulations
42483
Initiate fracturesin the confining strata.
Because of the special nature of Class II I
operations, the Injection pleasure at the
welihead was to be controlled so as to
prevent the migration of fluids Into
underground sources of drinking water.
Several commenters suggested that
there be no restrictions on injection
pressure. Others offered specific
alternatives as to how Injection pressure
should be controlled and what It should
be designed to prevent, in particular,
representatives of the oil and gas
industry argued that the wording of this
requirement could cause the loss of oil
reserves valued at approximately $60
billion nationwide.
Upon further consideration of this
requirement, the Agency finds that the
original intent of these requirements
was appropriate. However, two points
of clarification are appropriate to
resolve the problem pointed out by the
commnenters. First, in the finalPart 146
the terms Injection zone’ and
“confining zone” are defined to Include
a single formation, part of a formation.
or a group of formations. The regulatory
concern of the Agency Is that between
the underground source of drinking
water tobe protected and the Injection
zone, there be a relatively Impermeable
barrier which Is not breathed by the
injection pressure. This barrier may be
composed of a single formation or a
group of formations. Secondly, the
proposed regulations used the term
‘boftom hole pressure” inappropriately.
Becaãse the friction loss across the
perforations of the casing, the Injection
pressure in the formation is not equal to
the bottom hole pressure within the
casing. The concern of the Agency is
with the pressure in the formation, and
the final regulations have been changed
to require the calculation of pressure at
the well-head so as to produce an
acceptable pressure In the Injection
formation as opposed to the casing at
the bottom of the hole.
III. Changes in Individual Well Class
Requirements
A. Class! In the original 1976
proposal. the Agency had suggested a 5-
year leon permit for all classes of wells
regulated under the UIC program. In
response to extensive comments, the
1979 reproposal substituted lifetime
permits for all classes to be regulated by
permits. To balance the authorization of
these practices for their entire life. Part
.122 established extensive review,
modification, and revocation and
reissuance requirements. Most
commenters found these requirements to
be confusing and believed them to be
Inappropriately extensive.
In the final Consolidated Permft
regulations, the Agency decided to move
In the direction of term permits.
Hazardous Waste Management program
permits under RCRA as well as Class I
permits under UIC will be islued for a
period not to exceed 10 years. There are
several reasons for this decision. The
fluids injected into Class I wells, in
many cases. are expected to pose a high
degree of risk for the environment.
Therefore, a greater degree of regulation
Is considered appropriate. Furthermore,
Class I wells are more likely to be the
group of facilities that will isqufre
multiple EPA permits since many of
them are used at Industrial sites where
hazardous waste may be generated and
surface discharge of waste also occurs.
Term permits for Class I wells will ease
the difficulty of consolidating and
Integrating various EPA permits to the
same owner or operator.
To balance the shorter ‘permit term.
the consolidated permit regulations now
provide the permit holder greater
security during the term of the permit by
restricting the reasons for which the
permit may be reviewed, modified or
revoked.
B. Class I I. In addition to the changes
affecting Class II wells discussed above,
several additional changes for Class fl
wells are reflected in the final Part 146
regulations. The first of these is a
change in the casing and cementing
requirements for existing wells. In the
originkl proposal of 1976. the Agency
had required that all injection wells
must be cased and cemented to protect
drinking water sources containing up to
3000 mg/I of TDS. A number of
commenters pointed out to the Agency
that such a requirement was Impractical
and onerous. Since there is a rough
correlation between depth and the
concentration of TDS in ground water, a
requirement for casing and cementing to
protect levels oLTDS higher than
previously protected essentially means
that an injection well will have to be
cased and cemented to a greeter depth.
Based on analysis undertaken after
the 1978 proposal the Agency agreed
with the commenters that in many, if not
most cases, It Is impossible to extend
the casing in an existing well. While it Is
possible to add cement to a well. EPA’s
consultants estimated that the cost of
such a requirement In existing Class II
wells could run upwards of $20 billion.
However, in existing injection fields,
there was some question as In the
environmental benefit of protecting
aquifers which had not been protected
‘previously.
As a consequence, In the 1979
reproposal, EPA included § 148.22(c).
This section granted the Director the
dlscretlownot toapplyihe Class II
casing and cementing requirements to
new or existing wells In existing
Injection fields under three conditions:
(1) That State regulations for the
construction of injection wells existed
prior to the State UIC programs: (2) that
such requirements had been applied to
the Injection wells In question: and, (3)
that the injection wells did not cause a
significant risk to the health of persons
using the impacted USDW.
‘EPA ’s Intention In this section was to
alleviate the casing and cementing
burden for existing Class U injection
wells. The Agency believed, however,
that some restrictions on the discretion
of the Director were appropriate. For
example, the Agency did not want to
condone every casing and cementing
practice, regardless of its potential for
contamination, or to force the Director
to authorize every injection well even if
It posed a significant risk to the health
of persons.
Commenter on the 1979 reproposal
maintained that such a grant of
discretion to the Director, with its
limitations, did not really solve the
problem. A major concern seemed to be
that a number of States do not-or did not
have applicable casing and cementing
requirements which would satisfy the
conditions of proposed § 146.22(c).
These final regulations have been
changed to clarify the relief that the
Agency Intended to grant. Final
14&22(c) states that the Director need
not apply the casing and cementing
requirements of Class II ifi (1) An
existing or newly converted injection
well in an existing field is in compliance
with whatever State requirements were
applicable 10 that field at the time the
well was constructed, and (2) the
Injection will not cause the movement of
fluid into an USDW so as to create a
significant risk to the health of persons.
Newly drilled injection wells in
existing fields are to comply with the
requirements the State applied to that
field plior to the effective date of the
UIC program (* 146.22(d)), and may not
create a significant risk to the health of
persons. ifs State had no requirements
for casing and cementing, the Director,
in accordance with § 146.22(e), Is to file
a plan as part of his State program
application which describes the casing
and cementing requirements he
proposeito set for wells In existing
fields. if EPA approves, the State
program becomes effective, and those
will be the requirements to which
injection wells In existing fields must
conform.
Class II Injection wells In existing
fields will, however, have to
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42484
‘Wdemonstrate the integrity of such casinj
‘l\ n4 cementing as they have.
The second change in Class II
requirements concerns the conversion of
wells. I.e., the practice of creating a new
injection well by converting a well that
had been drilled for other purposes.
Many commenters pointed out that
newly converted wells woqid have the
same problems in meeting more
extensive casing and cementing
requirements as existing Injection wells.
- Consequently, the application of the full
Class 11 construction requirements to all
new wells, including newly converted
wells, was equivalent to prohibiting the
practice.
The Agency agrees with these
c comments, and does not intend to
prohibit the practice of converting
existing wells. Consequently, newly
converted wells have been included in
‘ final § 146.22(c) and (e). Whereas the
proposed § 146.22(c) was limited to
existing injection fields, the final relief
applies to all existing fiel4s. including
those being converted to injection. Thus,
the intended relief has been made
available to converted wells also. -
A third change concerns Class II
reporting and monitoring requirements.
A number of commenters pointed out
that in many cases (particularly In the
case of unitized enhanced recovery
injection fields) monitoring is now
conducted, but not on a well-by-well
basis. The Agency has reviewed this
question and has decided that no
particular benefit is to be served by
insisting on monitoring and reporting on
an individual well basis, particularly
since In many cases. such wells will be
regulated under an area permit.
Consequently, the final regulations now
allow enhanced recovery injection wells
to be monitored on a field basis, and the
results of monitoring to be reported to
the Director on Ihe same basis.
Finally, in reviewing these regulations
for promulgation, the Agency became
aware of a potential problem resulting
from the estimated time which might be
consumed in processing permits for new
wells. In many cases, the ability to
produce from a new well may be
contingent upon the availability of an
injection well for disposing of the brine
produced with the oil or gas. In existing
fields, this is not expected to be a
serious problem because disposal
alternatives are expected to be
available. However, in the case of
wildcat explorations in new areas,
fewer alternatives for disposal are
expected to be available. Therefore, the
production from a new well may have to
be delayed until a permit for the
construction and operation of a salt
water disposal Injection well is
obtained. Based on our analysis, such
delays could represent significant costs
in terms of delayed oil and gas
production.
To resolve this problem, § 122.40 of
the consolidated permit regulation has
been expanded. In addition to cases
where imminent and substantial
endangerment to human health exists, or
cases In which a substantial and
Irretrievable loss of oil or ga. resources
will occur, a temporary authorization to
construct and operate a salt water
disposal well may be granted to avoid a
substantial delay in oil or gas
production. In such cases, an application
for a permit must be filed, ahd the
emergency authorization may be given
until the Director acts upon the
application.
C. Class III. In-the preambib to the
1979 proposal of Part 146. the Agency
gave notice that it had received
extensive comments on the Class III
requirements originally proposed in
1976. As the preamble noted, a number
of the suggestions offered In response to
the original proposals had been
Incorporated In the reproposal.
However, as the preamble went on to
state, (44 FR 23746) the Agency was
continuing to evaluate alternatives for
subcategorizing Class III requirements
and was soliciting public comment on
some additional fundamental changes.
The public comments received on the
1979 reproposal urged the Agency to
make some of these changes. The
Agency agrees and has extensively
revised the requirements for Class UI.
Some of the following changes have
already been discussed earlier In this
preamble, but their impact on Class II] is
worth reviewing here. First of all.
§ 122.31(d)(2) of the final Consolidated
Permit regulations lists as a specific
exclusion, those wells which fall outside
of the territorial waters of States. The
rationale for this exclusion is that the
Safe Drinking Water Act intended the
UIC program to be a State and not a
Federal program. When EPA
promulgates and administers an UIC
program, It does so in lieu of the State.
Therefore, the Agency has judged It
Inappropriate to assert original Federal
jurisdiction over offshore wells that
operate beyond the territories of States.
This exclusion exempts certain Class III
operations from the coverage of these
regulations.
A second important change Is that the
final § 146.04 now allows the Director to
exempt from protection as underground
sources of drinking water, those aquifers
overlying the site of a Class UI operation
subject to subsidence or catastrophic
collapse. This provision for exempting
aquifers should be read together with
final § 122.43 which states, that In cases
where an injection well is not into,
through, or above an underground
source of drinking water, the Director
may ease the conditions that he applies
to a particular Injection well or
operation, provided that such eased
requirements do not increase the risk of
migration of fluids Into underground
sources of drinking water. This
combination of provisions should make
It possible to ease the burdens for Class
Ill operations in a number of cases.
Third, one of the concerns of the
comments on Class UI was that the
requirement that no new wells could
begin to operate until they had been
authorized by permit, could lead to a
temporary disruptiqn of operations
while the permit was being processed.
As In the reproposal, final § 122.37(a)(1)
provides that existing Class UI
operations may be authorized under a
rule until a permit is applied for and
granted. However, the Section now also
specifies that a Class Ill operator may
continue normal operation, including the
construction and operation of new
wells, under the rule as long as he is in
compliance with all applicable
requirements.
Fourth, cqmmentera were also
concerned about the requirement that
even under an area permit the prior
approval of the Director had to be
obtained before a new well could be
placed into operation. As discussed
above, the conditions for an area permi’
have been clarified in general. In
addition. final § 122.39(c) now specifies
that new wells may be constructed and
operated under an area permit Without
prior approval as long as the new wells
are In compliance with permit
conditions, the owner or operator
notifies the Director according to
procedures established In the permit,
and the cumulative effect of new well
construction has been evaluated by the
Director previously. The Agency
believes that the four changes listed
above should help to resolve many of
the problems pointed out in the public
comments.
One of the major areas on which
public comment was requested In the
preamble to the 1979 reproposal. was
whether or not the technical
requirements for Class III wells should
be subcategorized. The commenters on
the regulations overwhelmingly favored
this course of action. However, the
comments were less helpful in
suggesting practical ways in which this
could be done. To resolve this probleni
the Agency has done considerable
additional analysis to review Class I A
Injection facilities from the perspectlv’
Federal Register I Vol. 45, No. 123 I Tuesday, June 24,’ 1980 I Rules and Regulations
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lederal Register / Vol.. 45, No. 123 / Thesday, June .24. 1980 / Rules and Regulations
42485
of current prevailing practice, existing
regulatory requirements and potential
environmental consequences. (See
report of Ceraghty and Miller.)
Our review looked at 9 Class III
practices: Frasch sulfur mining; the
• solution mining of uranium, salt. and
- copper in-situ combustion of oil shale.
coal, lignite, and tar iands; and the
extraction of geothermal energy. The
similarities and differences of these nine
groups of wells were compared with
respect to a number of parameters. With
regard to potential environmental
Impact, for example, 6 of the 9 practices
Inject into zones that may contain
aquifers that would qualify as potential
underground sources of drinking water
wider the UIC definition. In 8 of the 9
practices, injection normally occurs
through overlying aquifers which would
also meet the definition. With the
exception of geothermal energy wells.
Injection pressures tend to be relatively
high, and, with the exception of the
Frasch process. the produced fluids
could be considered hazardous In that
they contain at least heavy metals. In 7
of the 9 cases, subsidence or
catastrophic collapse is expected to
accompany the operation.
The review of existing State controls
and turrent practice also revealed more
consistent similarities than consistent
differences among these 9 types of
practices. Based on this analysis, EPA
has chosen not to establish requirements
by subcategory of Class ilL
The following changes have, however;
been made In the requirements for Class
III. With regard to construction
requirements, the new casing and
cementing standard to protect
underground drinking water is applied
only to new wells since a requirement -
for additional casing and cementing for
an existing well with a life expectancy
of a few months would make little
sense. Existing Injection wells used in
the solution mining of salt and the
recovery of geothermal energy, which
tend to have a longer useful life, would,
however, have to demonstrate
mechanical integrity. The requirement
for the use of corrosion resistant
materials has been retained. However, It
should be noted that this does not
necessarily mean fiberglass, 318
stainless steel, or other exotic materials.
It only means that the material used In
the well must be adequate to meet the
design life of the well. The performance
history of the material under field
conditions would be an adequate basis
upon which to decide the -
appropriateness of construction
materials. Logging and other testing
requirements have already been
discussed above. Deviation checks are
required only In cases where
construction Involves a pilot bole with
reaming. Other appropriate logging and
testing is to be specified by the Director.
With regard to operating
requirements. all new wells would have
to demonstrate mechanical integrity
before injection is begun. In the case of
existing injection wells, only those with
a longer useful life, such as the injection
wells involved in the solution mining of
salt and the production of geothermal
energy would have to make an Initial
demonstration of mechanical integrity.
Similarly, the peilodic demonstration of
mechanical Integrity will apply only to
the wells with longer life. i.e., salt and
geothermal wells. The requirement for 5
monitoring wells has been removed, and
monitoring requirements are now stated
In terms of the objectives to be
achieved. In the case of operations
which Inject into a formation which
contains water with less than 10,000 mg/
1 TDS. the requirement is that
monitoring wells shall be completed Into
the injection zone and into any
overlying USDWs. The monitoring wells
shall be located in such a fashion as to
detect arty excursion of injection fluid
outside the mining area. If the operation
may be affected by subsidence, the
monitoring wells shall be located so:
they Will not be physically affected by
the subsidence, In addition, in the case
of injection wells which p netrate an
underground source of drinking water in
an area subject to subsidence, an
appropriate number of monitoring wells
Is required to be completed into the
underground source of drinking water to
detect any migration of fluids. Again, the
wells shall be located In such a fashion
as to detect any migration and to be
outside the physical Influence of
subsidence.
As noted above, the requirements
have been clarified In a number of
places to make them consistent with the
use of area permits. For example, the
Information to be submitted to the
Director specifies that this must be done
only to the extent of establishing an
adequate picture of the orebody and the
subsurface geology In the mining site.
but Is not necessarily required in the
case of each and every well.
The area of review requirement has
been retained as proposed. This
requirement, however, is not expected to
place any undue burdens on the owner
or operator. it is expected that the
Injector already has sufficient economic
Incentive to minimize the unintended
leak of Injection or produced fluids from
the mining site. Furthermore, It should
be noted that corrective action In the
area of review is required only to
preclude migration into drinking water
sources. In cases for example, where the
aquifers overlying the ore body have
been designated to be exempted
aquifers no corrective action may be
required.
Finally, the final regulations have
chosen to apply only limited aquifier
restoration requirements on Class III as
discussed earlier in this preamble.
D. Class IV. The coordination of
RCRA and SDWA authorities in-the
regulation of Class I arid Class N wells
used to inject hazardous wastes has
been discussed earlier in this preamble.
As stated there, the Agency has decided
to require the operators of such wells to
obtain interim status and to comply with
the standards in 4OCFR Part 265 until
the applicable State UIC program
becomes effective.
In the fl.nal.regulations, all wells
which are used to inject “hazardous
wastes,” as defined under RCR.A. are
grouped into Classes I or IV. Standards
for Class I wells have already been
discussed above. Section 122.36
establishes, on an interim basis, a
prohibition, also required for approvable
State-administered programs, against
the injectlofl.of hazardous waste directly
into underground sources of drinking
water. The pràhibition Is effective six
months after the effective date of a State
UIC program. Requirements applicable
to other Class N wells—those which
Inject above, but not Into. USDW ’s—are
reserved. Also reserved are additional
requirements (for example. monitoring
and retention of records) for Class IV
wells injecting into USDW’s.
Section 122.45 establishes additional
requirements for operators of wells
through which manifested hazardous
wastes are Injected. They apply to Class
I wells and will apply to Class IV wells
as final standards are established. This
section essentially requires that the
operator of such well comply with
selected i equirements established for
hazardous waste management facilities
under 40 O ’R PartlZ2 Subpart C and 40
CFR Part 264.
The proposed standards for wells
used to inject hazardous waste (122.45.
44 FR 34285, June 14, 1979) provided for
a ban on the construction and operation
of new Class IV wells, and a three-year
phase-out of existing ones. The proposal
would also have required that wells
used to inject hazardous waste, comply
with the manifest and record-keeping
requirements of the hazardous waste
management regulations.
The final regulations reflect several
changes from the proposal. FirsS the
definition of Class l v has been
narrowed. The proposal required only
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42486 Federal Register I Vol. 45. No. 123 I Tuesday, June 24, 1980 I Rules and Regulations
that (1) The well be owned or operated
by a generator of hazardous waste, or
the owner/operator of. hazardous
waste management facility, and. (2) that
the lnjectlon.be Into or above an USDW
In order to be included in Class IV.
Conunenters correctly pointed out that
this definition could embrace wells that
were not In fact used to Inject hazardous
waste. This condition has now been
added to the definition of Class N. The
definition also clarifies that the Injection
has to be “into or above a formation
which, within one-quarter mile of the
well, contains an USDW’ ( 122.32).
Conversely, the injection of radioactive
waste has been added. (See discussion
above.)
The second major change from the
proposal is that the requirements for
• Class IV wells, other than those
- V injecting hazardous wastes into an
USDW, are reserved. There are several
for this decision. While few
raters questioned the basic
premise underlying the proposal, some
questioned whether, at least in some
cases, the migration of fluid into an -.
USDW would In fact cause any adverse
effects either on drinking water supplies
or human health. Other com enters
suggested that a well should not be
aimed if it overlies a deep or remote
USDW which It is not likely to
contaminate. As noted above,
‘ ommenters also indicated their belief
that the definition of Class N was too
broadly drawn, and that, therefore, the
proposed standard was unnecessarily
protective. The Agency has reviewed
these comments and is mindful of its
obligation to proceed with extraordinary
care before Imposing an absolute ban on
any practice. The Agency’s concern In
fashioning the proposal was to afford
protection to drinking water sources.
The Agency Is not contemplating any
changes which would sacrifice or
endanger drinking wqter sources people
rely on. Furthermore, wells injecting
hazardous wastes are also subject to
RCRA which mandates a broader set of
environmental concerns than drinking
water. Nevertheless, there may well be
portions of aquifers so deep or remote
that they may never serve as drinking
water sources, or conditions under
which a particular injection may not
have en impact on the quality of the
drinking water source.
A further reason for the current
approach is that regulation under RCRA
and SDWA touch at several points.
Facilities under Class I and Class IV
overlap the class of facilities designated
under RCRA as hazardous waste
management facilities. It Is. therefore.
appropriate that technical standards
under RCRA and UIC be consistent, to
the extent allowable under the
governing statutes, for facilities capable
of causing a similar degree of
environmental risk.
EPA has decided to defer Issuance of
permitting standards for HWM facilities
until the Fall of 1980. Adoption of UIC
standards now for Class IV wells could
prove misleading to the States and the
public because EPA might decide later
this year to revise the standards to
reflect policy decisions made In
connection with RCRA standards. The
best course is to defer the technical
standards for Class IV wells which
inject above USDWs until this Fall.
Accordingly, we now solicit further
comment on requirements for Class N
wells.
EPA has under consideration several
options which would allow Class N
wells to Inject, In certain circumstances.
In order to assist commenters, these
options are described below. After
consideration of comments, EPA will
publish regulations In the Fall of 1980
amending either 40 CFR Part 122,
Subpart C, or 40 CFR Part 146. or both.
At that time. EPA may decide to prohibit
all Class N wells as proposed, adopt
any of the options discussed below, or
any combination or modification
of the options which appears justified
based upon the record, Including
comments received.
The definitions of an USDW and the
term “endangerment” are discussed
above In detail. For the proposed
regulations. EFA adopted a conservative
approach to the designation of USDW5.
Within this regulatory approach, two
alternative methods suggest themselves
for expanding the range of allowable
Class IV practices. The first is to
attempt a more precise distinction
between ground water In general and
ground water that serves or can
reasonably be expeitted to serve as a
source of drlnldng water. Option A takes
this approach.
A second possible approach Is to
attempt a more precise definition of the
circumstances under which the presence
of contaminants in an USDW may or
may not cause a system to exceed
national primary drinking water
(NPDWJ standards or otherwise
adversely affect the health of persons.
Option B takes the latter approach.
Option A. This option would entail
modification of the definition of a
USDW to decline to protect USDWs in
areas adequately served by other
sources. EPA Is aware of areas of the
country whlch are underlain by squlfers
containing Immense quantities of
useable fresh water, or where surface
water supplies are so plentiful that they
could reasonably be expected to supply
all foreseeable needs for drinking water.
In such cases, EPA is willing to consld
a policy which would authorize lnjectIc
through Class IV wells.
In this approach, an additional basis
for exemption could be added to
§ 148.04 that would allow th Director to
decline to protect an aquifer or Its
portion If it “otherwise cannot
reasonably be expected to serve as a
source of drinking water.” To justify
such an exemption. the Director could
be required to consider the following
factors:
• Present and future availability of
alternative sources of drinking water
• Future population growth and land
use patterns in the area; and
• The expected growth In the demand
for drinking water.
In keeping with the revised definition
noted above, such wells would fall
under Class I because they would inject
into exempted aquifers (i.e., not Into.
through or above an USDW). Injectors
would apply for permits with a duration
of up to ten years as specified in 40 CFR
Part 146 Subpart B. with one exception.
The applicant would be required to
make a showing that the injection would
not Impact aquifers or portions of
aquifers protected as USDWs. Such a
showing would involve a demonstration
that the injection zone is not in
hydraulic connection with or that the
natural flow from the injection zone is
away from protected USDWs.
The application would be processed
as any other Class 1 permIt application.
Under 122.43. the Director would have
the discretion to require such permit
conditions as he believes necessary to
protect USDWs.
Option B. This option would recognize
that the injection or presence of
contaminants In an USDW may not
necessarily lead to drinking water
supplies exceeding the NPDW standards
or adverse effects on the health of
persons. Based on this rationale, a more
liberal approach could be taken to
regulating Class IV wells If the applicant
could demonstrate that the injection: [ 1)
Is environmentally the most acceptable
method of disposal; and (2) would not
contaminate the portion of the aquifer
from which water Is drawn for drinking.
Under such an approach, the standard
that the applicant would have to
demonstrate would be that:
• Technology for safe disposal is not
available, taking costs into account
• Disposal by Injection will be less
harmful than use of other available
means: and
• Technology and other means will!
employed to reduce the volume and
toxicity of wastes.
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Federal Register I Vol. 45, No. 123 / Tuesday, Juni 24, 1980 I RÜ1 i and Regulations
42487
The applicant would be required to
demonstrate that the proposed injection
is the most environmentally acceptable
alternative available considering
technology and the cost of;
Truddng to approved site:
• Pretreatment prior to Injection;
• Treatment and surface dhcharge:
• Pretreatment and discharge Into
POTW;
• Construction of a Class 1 well;
• Incineration; and
• Segregation of streams and/or
reduction In flow.
He would also have to demonstrate
that anticipated ground water impact
will not adversely affect the health of
persons or violate NPDWs based on the
following Information:
• Inlectlon volume and pressure;
• Life of operation:
e Depth of well:
• Direction of ground-water flow;
• Proximity to use;
• Monitoring up-gradient and down-
gradient:
• Geological and hydrological data;
and
• Closure plan.
There would be certain common
elements under both options. Injectors
would be required to obtain a permit to
operate a Class N well within one year
of the effective date of the State
program or close. Permits could be for a
duration of 10 years, and new wells
would be subject to the requirement in -
122.33 that a permit be obtained prior
to the construction of a new well.
Similarly, there are certain common
questions with regard to Implementation
under either option. The Agency solicits
specific, detailed comments on these
questions: First. do factual
circumstances exist in which EPA
should allow injection of hazardous
waste into or above an underground
source of drinldng water? Second, if so,
what Information should be required of
the applicant to show that the injection
will not endanger drinking water
sources, and what criteria should the
Director use in granting or denying
permits? Third, should new and existing
Class N wells be treated differently or
alike? Fourth. should the decision to
allow the use of a Class N well be made
as part of a statewide or regional plan
(e.g., Sec. 208, land use, RCRA Sec. 4007
solid waste plan, UIC program
application) or as part of the individual
permit decision? Fifth, what factors
should be considered in subdividing
aquifers into relatively confined
exempted areas and USDWs? Sixth,
what procedures should be Imposed to
snsure full public participation in
decisions to allow injection through
Class IV wells? Seventh, what kinds of
• post-closure care requirements
(monitoring, third-party liability, use
restrictions) should be imposed on Class
IV well operators? £Aghth are the
authorities under SDWA and CWA
sufficient to prevent the potential
Impacts of such injections or should
RCRA authorities be invoked to meet
environmental concerns such as aquifers
discharging to streams and surface
Impacts on vegetation?
£ Class V. EPA received a number of
comments with respect to Class V,
suggesting that the two years allowed
for the completion of an assessment and
submission of State recommendations to
EPA was insufficient. The Agency
agrees with these comments.
Consequently, these final regulations
now allow the State three years instead
of two years to complete the assessment
of Class V wells and to submit
recommendations lot further regulation
to EPA.
Amendments to Part 1.22
In the process of preparing the final
Part 148 regulations, It became apparent
that certain portions of the final
consolidated permit regulations (45 FR
33290, May 19, 1980) would have to be
amended to conform to the Agency’s
final decisions with regard to the UIC
program. Four sections of Part 122 are
amended as a part of this promWgation
This procedure Is Intended to avoid
major Inconsistencies between Parts 122
and 148. It is not intended to preclude
further amendments that may be
necessary, or to substitute for technical
corrections (e.g., faulty cross references)
of the consolidated permit regulations
which the Agency still plans to make in
the near future.
Section 122,18(c)(4)(ii). This
paragraph in the final consolidated
regulations required the Director to
provide the Administrator with the
necessary information to conduct a mid-.
course evaluation of the corrective
action requirement as It applied to Class
II wells. The Agency has decided to
expand the mid-course evaluation in
three ways: (1) It Is to apply to Classes I
and III as well as Class II: (2) It is to
cover mechanical integrity in addition to
corrective action: and (3) States are to
provide the information every six
- months during the first two years of
program operation rather than once at
the end of two years. The amendment
conforms the reporting requirement with
this decision.
The Agency decided upon this course
of action because we anticipate that an
expanded mid-course evaluation will
yield reliable information earlier than
the promulgated scheme as a basis for
any refinements in the UIC program
requirements. This decision lsdlscussed
mon fully as part of the evaluation plan
described later in this preamble.
Section 122.37. This section detaIled
the requirements applicable to the
authorization of injection wells by rule.
ft is revised to clear up some possible
ambiguities with regard to the
requirements applicable to certain types
of rules. Specifically, paragraph (b) of
the section may have raised questions
with regard to the responsibilities of.
Class V Injectors. Paragraphs (a) and (b)
of’the section have been revised
extensively to clarify the Agency’s
Intent. Paragraph (d)(1), relating to the
contents of the injection well inventory
is also amended. The current text
Inappropriately references § 146.52
which is a requirement for Class V. The
revised text enumerates the information
required on the national form for the
Inventory of injection wells (0MB #158-
R0170), but does not change the
substance of what is required.
Section 12241(e). Paragraph 122.42(0
requires applicants for permits to submit
a plan for plugging and abandonment,
and specifies that the Director shall
incorporate the approved plugging and
abandonment requirements as
conditions of the permit. The Agency
chose this course of action because its
concern for the proper abandonment of
wells led It to establish such
requirements as enforceable permit
conditions. However, the permit terms
for the UIC program may be long: up to
ten years for Class I and up to the life of
the well or facility for Classes II and III.
Abandonment plans filed with the
permit applications may easily be out of
date by the time an injector is ready to
close his well or facility. For the
protection of both the injector and the
environment, therefore, this requirement
Is amended by requiring the permittee I,
submit an updated abandment plan
along with his 180-day notice. The
Director is to review the updated plan,
revise the relevant permit conditions as
appropriate, and grant approval for the
permittee to proceed with plugging and
abandonment (see § § 148.10, 148.14(c),
148.24(c) and 148.34(c)). Section 122.17(f)
is amended to allow the permit to be
modified to reflect this new plan as a
minor modification.
Regulatory Analysis
The regulatory analysis consists of
five basic sections: economic and
finanèial profiles: alternatives
considered; costs to industry and the
States; impacts on the production of oil;
and economic Impacts on firms, regions
and the economy. The cost section was
entitled “Economic Impact” in the
preamble to the proposed regulations. It
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42483 Federal Register I Vol. 45 No. 123 I Tuesday, June 24, 1980 I Rules and Re’gulations
has been revised to show current
estimates as well as to describe the
reasons for change from the earlier
analysis which appeared in the
preamble. EPA’s consultant did not
include the cost associated with wells
producing only gas because the
percentage of injection wells associated
with such wells is small in comparison
with Injection wells related to oil
production.’ Although the cost estimate
is somewhat lower than would have
resulted, had gas wells been included.
EPA notes that other conventions which
were adopted in the cosi analysis tend
to introduce possible overestimates In
the overall cost of the progrant.To
illustrate, ris a result of the mid-course
evaluation, changes might be made to
the Regulations which would
substantially reduce the cost to
operators of determining the mechanical
integrity of wells and performing
remedial action.
Nevertheless the cost of the
Regulations have been estimated as if
there would be no relaxation of these
requirements. In addition the -
Regulations allow, in 40 R
122.221b)(3). the relevant authority to
accept limited Injection pressure In Lieu
of corrective action. if it can be’
demonstrated that the pressure of the
injection zone does net exceed
hydrostatic pressure at the site of any
in properl completed or abandoned
well within the area of review.
Nevertheless, in estimating the cost of
compliance. it was assumed. In all
cases, that corrective action entailed
physical repairs rather than pressure
limitation. This assumption leads to an
overestimate In the cost of the program.
Economic and Fuiandal Profile
Overview. This section examines the
impact of the regulations on operators of
Class U and Ill wells. The relatively
large number and dispersion of Class I.
IV, and V wells among different
Industries precluded investigation of the
economic impacts of regulation of these
classes of wells’ However, the
aggregate cost to operators and States
have been included in the cost estimate.
On the whole, the impact of the
Regulations on operators of Class II
wells is expected to be relatively minor.
It is estimated that a loss of crude
production of about 13.000 barrels per
day will result, which represents less
than half of one percent of U.S.
‘Arthur 0. Little. liiC,, CcsI of Cc.r,pl,oaice
Pmpoaa’dUnde, mundInjecuoo ConizolFrogiwn
Oil and Gas Well (Jane. 1979). p.19.
‘Boon. Allen and Hamilton. Inc.. Undergmtand
In/echosr Contivi Program. hwJustr Aizalym of
C/au II oni’ C/au Ill IVaN Repilailori. (April 10.
1080) p. 1—2.
production at 1977 price and profit
levels. 3 On a regional and producer level
Impacts will be more variable.
depending upon the relative proportion
of stripper wells, average stripper well
production, company size and past
construction practices. It is anticipated
that operators in Illinois and the Mid-
continent and Appalachian areas will be
affected to a greater extent than other
operators because these areas are
characterized by poor completion
practices and a large number of
abandoned wells. Since production
from stripper wells in these regions is
relatively low, the net effect of the
regulations may be the closure of those
wells which produce very small
amounts of oil but are likely to be the
ones having potentially the greatest
adverse Impact on underground sources
of drinking water.
Similarly the regulations will have no
significant Impact on Class II I operators
because compliance costs are relatively
small, and the firms which engage in
these practices are generally diversified
and in sound financial condition. 4
Oil and ga&’Dne oil and gas
producing industry is comprised of a
large number of firms but is dominated
by a handful of vertically integrated
corporations commonly known as the
“majors”. The majors engage In a full
spectrum of activities including
exploration, development, production,
refining, transportation and marketing.
The balance of firms in the industry,
commonly known as “independents”,
are more diverse in structure. Although
some independents engage in the same
array of activities as the majors, they
generally tend to focus on exploration.
especially “wild catting”.
Concentration in the petroleum
Industry Is moderately high compared to
other manufacturing industries. As
indicated in table 1 the eight largest.
firms account for approximately half of
industry revenues, which were 532.5
billion In 1977. Between 1973 and 1977
revenues have more than doubled. Net
Income, as a percent of net worth, was
substantially higher in the fri a year
period since the Arab oil embargo than.
the previous five year period. Despite
the fluctuations in the net Income/net
worth ratio during the early part of the
era ushered in by the embargo. it
appears that the events of 1973 have
reversed a general decline in this
measure of profitability. Profitability
appears to be increasing and the current
Increase In off prices made possible by
decontrol suggests that the trend will
continue. (Table 2).
Fmsch sulfur produclion. There are
— three major sources of domestically
produced .ulfur (1) Recovered
elemental, in which sulfur Is produced
as a by-product of natural’ gas
processing and petroh.um reflning (2
recovered sulfuric acid. In which sulfur
is produced as a by-product of copper.
iii lead, and zinc roasting and smelling;
and (3) the Frascb process Production
1 by the Prascb process has declined
117 between 1974 and 1977 while demand
and prices have Increased (Table 3).
130 This decline Is largely due to increases
In the cost of heating water used to melt
,s. the sulfur, due to sharp increases in the
price of natural gas. By the year 2000
is possible that production by the Frat
‘Ibid., p. 1 11-4.5.
lb,d.. p. IV -4.4.
‘bid., p.111-34. 1 5.
‘For l i ii e ” ,oa aon ib d. pp. l I-I to u-li.
Table l.— ’ t*a80n. l and Gas saws
on
1973
1014 1075
1976
1977
R .
ium
Ro,ona
Ro ,snut ,
PonSiW
biio ,n Prce,2 tilhors PcscsM
titona
P.,c ,,
bdb.,ns
Psrcnl
.
-No ’e
lto$ (dolla ’s)
114 51 120 56
4doIW
( do8em)
Lgute .
78
08
136
46
15.0
46
NeetI-32 ..
3.3
20
60 27 66 21
7.5
20
17
21
AllOiher.___
Toto .__
3.0
21
2.3 20 60 23
7.3
29
U
27
144
100
I S a iso 25.1 100
29.4
109
32.5
100
Sonar laos. Alan ate I*ntton. Undorg we kiecws nboI Pvcpam - .,P 9-12.
N u mneaoscuivaue
ont wv2i
9rcdocI ’ T trade
said
196?....,...... ——
19 68—-----.--—.---
—
1971 .___ ——
1912.......... .__.
19,3 ..
1974_.........
1975
1976.... — - —
197 ... ______._ — —
1019 . - -
12$
13.1
11 9
l ’ s
112
10I
13$
1 9 5
13.9
14S
14.0
142
boise, Boat Alan id Han*on. pme d & ecfan
ntiufP o ve .
-------
— Federal Register I Vol. 45, No. 123 I Tuesday. June 24. 1980 I Rules and Regulations
42489
process will be.phased out, with
expected Increases in demand satisfied
from present competing sources.
The production of sulfur by the Frasch
process is highly concentrated. In 1978
only five companies operating at ten
sites produced sulfur by this method.’
These companies have complete control
over all phases of the production of
sulfur. With one exception they are
divisions of diversified companies
whose sulfur sales represent. in most
cases. a small portion of their total
eales. These companies are financially
secure, and their earnings outlook has
Improved owing to the growing demand
br fertilizer, which they also produce
and market
Tsbts I—&,bI Dy 38
.ITh,a.lds music ansI
1074 1975 1976 1977 1979
7501 7211 9.264 9.532 5.648
mSrt1l 2.932 2.999 3,135 5.857 4.088
686 1.079 1.306 1.169 1.439
icc. 1. — 2.150 1.697 1.727 1.977 2.177
E,so.u.. 2.693 1,352 1,270 1.173 666
OsmeuX Omiwid 10.906 11504 11.154 11.357 12.486
— pno.
P M66icTon_ $2542 $449114672144.38 $4517
Sowee Boos. Men end Henuscr Lhid pcisW b pcton
I
Solution Mining of SoiL’ About 80% of
domestic sa,lt production is by the
Injection process. Most of the solution
mining wells are located on the Gulf
Coast. primarily In Texas. Louisiana,
and Mississippi. The major demand for
salt Is by the chemical Industry, which
uses about half of all salt produced in
the U.S. for the production of chlorine
and soda ash. Consequently, demand
fluctuates with the demand by the
chemical industry. Abouj thirty
companies produced salt by Injection
method In 1978. These companies
generally employ other methods as well.
namely, conventional mining and
evaporation of brines.
In general companies producing salt
are vertically end horizontally
Integrated. They tend to be involved In
the production of chemicals, oil and gas,
minerals, metals and pharmaceuticals. It
appears that salt production is of
relatively minor importance to these
flrm&
Solution Mining of Uranium. In 1978,
there were ten firma mining uranium by
the In-situ process. In general these
‘Ibid.. p n-rn
‘Ibid ..p.Il-21.
‘For this discussion see ibid.. pp. U-2&-25.
firms are large conglomerates with
holdings In other minerals, as well as oil
and gas production. EPA could not
obtain financial information on uranium
mining firms because such information
Is not available. Furthermore,
production information Is confidential.
which makes It impossible to ascertain
mine or company output with any
degree of precision.’ Consequently, It is
not possible to provide descriptive
economic and financial information on
the uranium mining industry In general.
or the solution mining component. in..
particular.
Soluiwn Mining of Po t a sh . ’ ° Potash Is
used primarily In fertilizer as the source
of potassium. Overall domestic demand
for potash has been relatively stable
sInce 1974, but domestic production has
been falling at a proportion of total use.
In 1985, domestic production
represented 93% of demand, but in 1978,
only 37%.
There are ten companies which
produce potash, but only the Texas Gulf
Company uses the solution mining
technique. The remaining firms employ
conventional mining or recovery from
surface brines. As a proportion of total
domestic production, the amount
represented by the solution mining of
potash is minor—1.25%.
Solution Mining of Copper.” The
solution method Is used to recover --
copper from low grade deposits.
Presently, there are no commercial in—
situ sites. Three marginally profitable
solution sites and one experimental site
were dosed in 1978 due to depressed
copper prices. Despite rapid price
Increases recently these sites have not
been reopened. -
in-Situ Oil Shale Combustion.’ There
are four projects in various stages of
development, but none have progressed
to full commercial use. Two of them—
the Geokinetics, Inc. site in Utah, and
the Equity Oil Co. site in the Piceance
Creek Basin, Colorado—are still In the
research and development stage. The
others—the Rio Blanco Oil Shale
Project, and Federal Lease Tract C both
In the Piceance Creek Basin—are In the
development stage. with burns
scheduled for 1980. Even under
favorable conditions the latter project,
which is the most advanced of all the
sites, is not expected to produce any
alzeable amount of oil until 1988.
‘Ibid., p 11—30.
mGen.rally. ibid. pp.11-ag to 11-32.
“Generelly. Ibid., pp.11—32to 11—36
“Gee.rsfly, ibid. pp.11-38 to n-ag.
Gasification of CoaL” The Federal
Government has sponsored research
designed to demonstrate this technology
since 1973, and three privately funded
ventures have been organized since
1975. At this time none has progressed
to commercial production. The most
advanced sites are at the field test stage.
The Department of Energy does not
anticipate the commercialization of
either of the sites it supports before
1987.
In-Situ Tot Sands Recovery.’.Tar
sands are heavy petroleum (bitumen)
which will not flow into a well bore
without stimulation. Ninety-eight
percent of domestic resources are
located in Utah. At this time, the
technical feasibility of in-situ tar sands
recovery is uncertain due to the lack of
geologic and reservoir data.
Geothermal Eneayy.’ 3 The major use
of geothermal energy Is in the
production of electricity. Such
production, amounting to an Installed
capacity of 863 megawatts. is -
Insignificant as a proportion of total U.S.
production. Expansion of the use of this
source of energy is hampered by high
costs of development. long delays in
obtaining permits and relatively high
cost compared to generation by use of
oil or gas. By 1985 this source may be
price-competitive with oil and gas.
However, at this time; only a small
number of lease holders and owners of
geothermal resources have undertaken
Its development.
Alternatives Considered
The Safe Drinking Water Act requires
EPA to develop minimum requirements
for effective state programs to protect
underground sources of drinking water
from the subsurface emplacement of
fluids through well injection. The Act.
however, also requires the Agency not
to prescribe requirements which
interfere with or impede the
underground injection of brine or other
fluids which are brought to the surface
In connection with oil or natural gas
production or any underground injection
for the secondary or tertiary recovery of
oil or natural gas unless such
requirements are essential to assure that
underground sources of drinking water
will not be etidangered by such
Injection.
In recognition of these requirements
EPA considered numerous alternatives,
“GeneruiUy. ibid. pp.11-SO to 11-41.
“Cenersily, ibid., pp.11-41.
“Cen i Uy. ibid. pp.11-4210 1I-50
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42490 Federal Register J VoL 45, No. 123 I Tuesday, June 24, 1980 / Rules and Regulations
spanning the range from no regulation at.
all to stringent levels of protection
which would cost industry tens of
billions of dollars. The following
discussion will provide an
understanding of the alternatives which
received serious consideration but were
eventually rejected.
Through an understanding of the
nature of the alternatives and reasons
for theiE rejection EPA hopes to Instill an
appreciation for the complexity of the
problem it faced and for the balancq it
believes was achieved In the
promulgated regulations.
L Alternatives to Regulation
The promulgated regulations are
based on the concept of prevention.
which EPA believes reflects the intent of
Congress in enacting the Safe Drinking
Water Act. Through controls on the
siting. construction, operation and
abandonment of injection facilities
underground sources of drinking water
will be protected from endangerment.
An alternative to this concept Is an
approach which might be termed the
“restitution” approach. It entails the
‘creation of a fund, either through
insurance premiums or other sources
such as general tax revenues, which
would be used to rectify any damage to
an aquifer. The restitution alternative
was not adopted for three reasons. First.
it is inconsistent with the preventive
nattre of the Safe Drinking Water Act
v .bich requires EPA to promulgate
regulations which contain minimum
requirements for effective State
programs to protect underground
sources of drinking water. Second. the
size of such a fund would have to be
based upon an estimate of risk of
contamination and the future value of
the aquifer, both of which are unknown.
And finally, even If such estimates were
available there Is no known technology
by which a contaminated aquifer can bi
economically restored.
II Alternative Rçgulotory Provisions
A. Class L—.1. Treatment of nuclear
wastes. in the 1979 proposed regulations
Class I was defined as “industrial and
municipal disposal wells and nuclear
storage and disposal wells that inject
below all underground sources of
drinking water”.li The final regulations
include nuclear storage and disposal
wells hlch inject below underground
sources of drinking water In Class V. —
EPA still considers such wells to require
careful control. However, It believes
that thern control of such wells should be
determined as part of the overall review
of the disposal of nuclear wastes
“44 FR 23740. Apr I 20.1979.
1nItiated under the President’s Program
of Radioactive Waste management. as
described in the Message sent to
Congress on February 12,1980.
Therefore, rather than prescribe specific
construction requirements which may
require modification in the near future.
EPA concluded that It would be
preferable to assess such wells and
fashion appropriate regulatory
requirements. in keeping with the
President’s program. in the future.
-(Wells which inject nuclear wastes
directly Into underground sources of
drinking water are regulated under
Class IV, however).
B. Class 11.—I. Casing cemented to
the surface. The regulations require that
* all new drilled Class II injection
wells shall be cased and cemented to
prevent migration of fluids into or
between underground sources of
drinking water” with the specific
requirements left to the discretion of the
State Director upon consideration of
several factors as detailed In 146.22(b).
An alternative considered would have
required the cementing of surface casing
from the injection zone completely to
the surface as a way of ensuring that
there would be no fluid migration along
the exterior of the casing. or
communication between water bearing
strata. This alternative was not adopted
because such a requiremer.t. In EPA’s
view, far exceeds that which is - -
necessary to prevent fluid movement
EPA believes that such a requirement
would have interfered with or impeded -
the underground injection of brine or
other fluids which are brought to the
surface in connection with oil or natural
gas producti n or underground injection
for the secondary or tertiary recovery of
oil or natural gas without being essential
to assure that underground sources of
drinking water will not be endangered
by such injection. To Illustrate, If the
Agency had required full cementing to
protect underground sources of drinking
water containing 3,000 ppm or less total
dissolved solids. EPA estimates the cost
to operators would have been roughly
$20 billion over the first five years of the
UIC program in 1977 prices.
2. Interstate Oil Compact Commission
(10CC) proposal. The promulgated
Regulations do not differentiate between
Injection, producing and abandoned
wells, based upon their age. The 10CC
proposed that such a distinction be
made as follows:
a. New wells and wells drilled or
completed prior to 1947 would receive
new permits based on mechanical
integrity, area of review and remedial
action:
b. Wells completed between 1962 and
the thne the State program goes into
eff t would continue under existing
permits
c.’Permits for wells drilled or
completed between 1947 and 1962 wo
be reviewed for compliance with
standards prevailing since the early
1960’s. Permits for wells that generally
met the standards would be revalidated.
Wells that clearly fall short of the
standards would be re-permitted.
Many of the features of this proposal
were adopted. New wells may not be
constructed and operated without a
permit; existing enhanced recovery
wells may be operated under rule
(although mechanical integrity tests are
required to ensure that they remain
sound): wells injecting in an existing
field need only comply with standards
for casing and cementing in existence at
the time of drilling of such wells. Hence
some of the major features of the 10CC
proposal were adopted. It was not
adopted in toto because under (b) it
would have allowed wells completed
between 1962 and the time the IJIC
program went into effect to be operated
even If they were not mechanically
sound. While EPA agrees that older
wells may be more likely to fail owing to
corrosion and other problems, It also
believes that many newer wells may be
subject to leakage and fluid migration
due to the use of cement of insufficient
quality, poor workmanship, a corrosive
environment, human error, or other
factors.
3. Area of review alternatives.
Because of the high concentration of
producing and abandoned wells in
existing oil fields the overall cost to
operators of the UIC program is largely
determined by the extent of the urea of
review and nature of testing and
remedial action required on wells within
It. EPA devoted considerable effort to
the identification and evaluation of
alternative apprngcbes. In its
deliberations, EPA considered
a. Applying It to all Injection wells,
both enhanced recovery and disposal,
new and existing;
b. Applying It to new Injection and
existing disposal wells:
c. Requiring the radius to be a
minimum of Yr mile of a new enhanced
recovery or disposal well if the zone of
endangering influence Is not determined
by the use of the Theis or similar
equation;
d. An ad-hoc area of review, as
practiced In Texas and Louisiana, and;
e. ElimInating the area of review
requirement entirely.
Had alternative (a) been selected it
would have required that virtually every
Injection, producing, and abandoned
well of record in the United States be
examined and, If necessary, either
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Federal Register I Vol. 45, No. 123 I Tuesday, June 24, 1980 I Rules and Regulations
42491
repaired, abandoned, or reabandoned
within five years of the date the progrem
became effective. Considering that there
were about 1.2 million abandoned wells
of record, 505,000 producing and 119.000
injection wells at the end of 1978, plus a
net Increase of some 25,000 new
• Injection wells during the first five years
of the program, EPA concluded that so
comprehensive a requirement would
have unduly Impeded oil and gas
production.
Option (b) was discarded for the same
reason. Although fewer wells would
have been reviewed within the first five
years EPA believed that It would have
unduly Interfered with or Impeded oil
and gas production without being
essential to assure that underground
sources of drinking water will not be
endangered. Similarly alternative (c)
was rejected for the same reason. Had
the one half mile radius for the area of
review been adopted. 171.000 producing
wells and 302,000 abandoned wells
would have been evaluated, and 20.000
repaired. At the one fourth mile radius
there Is a reduction of some 77,000
producing and abandoned wells In the
area of review. At the smaller radius,
the number of producing and abandoned
wells needing remedial action is
approximately 17,000 compared to about
20.000 at the ½ mile radius.
The ad-hoc alternative (d) would
require the testing and appropriate
remedial action to wells in the area of
review of a new diposal well only if the
regulatory authority received a
complaint within the ten days of the
filing of a permit application. While Its
low cost makes It appealing, this option
was rejected because it would have
provided for remedial action to faulty
wells only after environmental damage
had become visible.
Alternative (e) was rejected because
even though the injection well was
sound, other nearby wells could still
serve as pathways for potential
endangerment
Radii less than ¾ mile were not
considered because actual computations
by EPA of the zone of endangering
Influence indicate that, in most
Instances, the appropriate distance Is
less than ¼ mile. Setting the radius at ¼
mile thereby ensures that all wells
within the zone of endangering influence
will be examined.
4. Other alternatives to reduce or
spread out program costs. a. Sampling a
small portion of wells for mechanical
Integrity. Teiting and reporting the
results of mechanical integrity tests on
Injection wells accounts for
approximately $96 million of total
program costs. EPA considered random
sampling as-an alternative to testing of
- all wells. This approach was not
adopted because data essential to the
design of the sample, e.g., the different
sampling strata to sample and expected
failure rates, are not available. A
random sample would provide an
estimate of failure rates but would fail
to locate all defective wells.
b. Assessment/PostponemenL This
option would postpone the date by
which permits are required by about
three years while the States planned -
and conducted an assessment of
Injection practices. The data base
resulting from this approach would then
be used to formulate a regulatory
program. This alternative was rejected
for two reasons. First, the assessment
would have required an expensive
survey In each state and would not
provide a valid teat of the area-of-
review concept. Second.the program
would have been delayed three years,
which was judged by EPA to be
unacceptable.
c. Exempting stripper-mlatedinjedlion
wells. Approximately three-quarters of
all producing wells are strippers, which
are wells producing ten or fewer barrels
of oil per day. It appeared that
exempting from regulation injection
wells associated with strippers would
achieve the dual objective of reducing
program costs substantially while
sparing the least productive wells the -
burden of the cost of compliance. -
Unfortunately, the very reason that
enables the savings In program costs
also weighs against the adoption of this
alternative. To exclude three-quarters of
all producing wells from any kind of
review would undermine the
effectiveness of the program for two
reasons. First, strippers number among
them some of the oldest wells drilled in
the U.S. Old stripper wells are not
drilled to current standards and are the
ones most likely to endanger
underground sources of drinking water.
Second, because of their numbers and
widespread distribution entire regions of
the country will be left unprotected if
injection wells associated with strippers
are exempted. -
d. Exempting injection wells with an
open ann u/us fron pressure testing. The
promulgated regulations require
pressure testing of all injection wells for
casing leaks. Where the annulus Is
enclosed, the cost of such a test Is
estimated to be thirty dollars.’ 7
However, if a well does not have an
‘ Boox. Alien end Hamilton. A Study of
Sampling Procedum as Applied to th. Mechanical
li’tegnty T.sang 0/injection Wulls. (April 30. 1990).
Ejiecutive Summary. pp. 1.2.
“Mhur D. Uttle, Inc., Cost of Compliance.
Piupored Underground injection ConrolProg.ivr&
Oil and Gas Wells. (Junu. 1979), p 96
enclosed annulus the cost of testing Is
estimated to be $1500. ‘ 7 Over the first
five years of the program the cost of
testing wells with an open annu]us is
estimated to be $65 million, and affects
about 43,000 wells. EPA considered
eliminating the testing requirement, but
decided to retain it because of the large
number of such wells and their potential
for widespread contamination.
5. Other, more stringent alternatives.
As discussed under (1) and (3) above,
more stringent alternatives rejected
were: Continuous cementing from the
injection zone to the surface; area of
review for all injection wells, and a half-
mile, rather than quarter mile, area of
review. Following are three additional
alternatives which were considered by
EPA. Each would have imposed more
usmonitoring of injection
ftr ssure, volume and flow rate. Unlike )
thb aar inuous monitoring required f —”
Class 1 rid.W N 1a. aiirhmonitorlng
was considered bülfajncted for Class II
because the Injected fluid, being less
toxic and corrosive than that of Class I
and Ill wells, does not require constant
surveillance. In addition, the Agency
believes that the cost of continuous
monitoring would have been excessive
in view of the potential for harm to
human health.
b. Absolute construction ban without
opermiL In the case of a non-
controversial application EPA estimates
that the process will require about 105
days over and above current State
permit processing times. For wildcat
operations EPA believes that such a
delay would be particularly expensive
and would have unduly Interfered with
or impeded oil and gas production.
Consequently, the promulgated
regulations allowed the Issuance of
temporary emergency permits if it can
be demonstrated that “a substantial
delay in production of oil or gas
resources will occur unless temporary
emergency permit Is granted to a new
Class U well and the temporary
authorization will not result in the
movement of fluids into an underground
source of drinking water.”
c. Extending coverage to wells storing
hydrocarbons in a gaseous state. The
April, 1979 proposed regulations
Included all forms of hydrocarbon
storage under the definition of Class IL”
Wells storing hydrocarbons which are a -
gas at standard temperature and
pressure have been excluded from Class
II In the promulgated regulations
“40 CFR 122.40(afl3) -
‘44 FR 23756 April 20. 1979 and 44 FR 122.34(b).
june 14.1979.
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42492 Federal Register I Vol 45. No.123 I Tuesday, June 24, 1980/ Rules and Regulations
because gas is highly unlikely to result
In the chemical contamination of
drinking water even if It migrates from
the injection zone. In addition such
wells may be properly maintained
owing to strong economic incentives to
prevent loss of the stored gas. These
welts have been transferred to Class V
for further study.
C In rcsponse to comments that Class
111 wells were too diverse to be covered
by corelnon requirements, EPA
undertook a detailed evaluation of their
physical characteristics and potential
for contamination of underground
sources of drinking water in order to
determine If subclassification of Class
UI wells was approprlate.
The review looked at 9 Class ill
practices: Frasch sulfur mining; the
solution mining of uranium, salt, and
copper, in-situ combustion of oil shale,
coal, lignite, and tar sands and the
extraction of geothermal energy. The
similarities and differences of these nine
groups of w&Js were compared with
respect to a number of parameters.
With regard to potential environmental
Impact. for example. 8 of the 9 practices
Inject in zones that may contain
aquifiers that would qualify as potential
underground sources of drinking water
under the UIC definition. In 8 of the 9
practices, injection normally occurs
through overlying aquifiers which would
also meet the definition, With d e
exception cf gnotherma energy wells.
ln ’ection p:essures tend to be relatively
high, and, with the exception of the
Frasch process, the produced fluids
could be considered hazardous in that
they contain at le.ist heavy metals. In 7
of the 9 r.ases, rubsidence or
catastrophic collapse is expected to
accompany the oparation.
The review of existing State controls
and eurreat practite also revealed more
consistent similarities than consistent
differences among these 9 types of
practices. In addition, the theoretically
preferable crterion cannot be translated
Into operational terms. According to
EPA’s consultant. “perhaps the most
logical way to subclassify the Class III
wells, would bc in terms of the relative
threats to the ground-water environment
posed by different practices.” i2
Howe trer the Agenc3 ‘6 consultant also
concluded that the”• • overall threat
to the ground-water environment that
might be posed by a particular type of
Injection well in Class Ill depends to a
large degree on the site-specific
•Ceraqhty and Miller. Inc., Development of
Prt’cedums for Subclassificot,aa of Class m
Inject:o., Well.. (ApiI * 1950).
“Ibid.. p. 5.
NIbid. p. VI
hydrogeologic situation.” 5 agency
cannot develop consistent National
Standards based upon diverse, local.
bydrogeologic factors. Therefore, EPA
has chosen not to subclassIf Class ill.
However, In recognition of the relatively
short service life of wells other than salt
solution and geothermal,” EPA
concluded that the mechanical integrity
testing requirements for certain existing
wells In Class UI should be relaxed.
Consequently, prior to granting
approval for the operation of a Class UI
well, the operator is required to
demonstrate mechanical Integrity only
for all new Class UI wells and existing
salt and geothermal wells. In addition,
only the operators of salt solution
mining and geothermal wells are
required to demonstrate mechanical
Integrity every five years. -
Two, more stringent alternatives were
considered for the abandonment of
Class III wells, notably those relating to
uranium mining: Aquifer restoration.
and containment of injected fluids. The
restoration alternative was not ad , pted
because the technology Is still In the
experimental stage. Since EPA cannot
evaluate the effectiveness of this
technology It concluded that it was
premature to require it now as a
National minimum requirement
However the Director is given the
discretion to require aquifer restoration
on a case-by-case basis . ’ As for the
containment alternative, the Agency
concluded that because of the long
decay time of radioactive substances.
containment would require monitoring
and testing of water quality for
hundreds of years. which the Agency
does not believe to be administratively
feasible at this time.
D. C!osses IV and V. Four alternative
approaches were formulated for
regulation of wells which inject directly
into or above underground sources of
drinking waten”
1. Within the mc regulations, require
a permit program for at least some of
these practices;
2. WithIn the mc regulations. require
the states to assess the threat of
contamination from these wells and
submit a detailed state plan to EPA:
3. WIthdraw consideration of these
wells from the UIC regulations and
study them in a separate national
assessment: and
bed.. p. V I I.
Ibid.. p. 5.
N 40 14&34(b)(2) and 40 CFR 145.33(bX3).
N 40 CFR 14&u d).
a full dianaselon of these alterneUvca, an,
Tempts. Batker and Sloane. Inc.. Analysis of Cost.
Unde, rowid Injection Control Regtrlativrss. Close I
and Class III Walls. Class I V and Close V Wells.
(May. 1979). Part 5. Appendix B.
4. WIthin the UIC regulations, requirq
state assessment of these wells coupled
with regulatory control over the most
potentially harmful practices. The main
features of alternative number I are:
• The Director would have the
discretion to ban Immediately those
categories of practices which present an
unreasonable risk to health and to ban,
after an appropriate period of thne, all
categories of practices for which
economically feasible alternatives exist;
• The Director would determine, for
those practices not banned, which
practices in the state should be
regulated by permit rather than by rule;
• Exemptions would be allowed
based upon criteria such as toxicity
and/or volume, hydrogeologic
characteristics, and population in the
area relying on the affected underground
sources of drinking water
• The Director would impose
monitoring, record-keeping and
reporting requirements for each permit.
In addition, the director would require
public notification for each permit
before its Issuance, and require that the
Injector periodically show that the well
continues to be the best environmental
means of disposing of the waste.
This approach would have provided
maximum protection of underground
drinking water souces within the
shortest time frame, and would have
been consistent with other Subparts of
the IJIC regulations. It was not adopted
because a substantial effort would have
been required to locate Individual wells
that are typically hidden from view. In
addition, it is impossible to argue with
certainty that technological alternatives
to current practices are economically
feasible for all shallow disposal and
recharge well practices. Considering the
absence of a complete characterization
of wells, It is possible that some permit
requirements would be established
without a thorough understanding of all
elements of operations such as volume
and toxicity, of injected fluids, costs and
alternatives.
The main features of alternative
number 2 are:
• The Director would compile an
inventory, Including number, location,
and use of these wells and determine
the toxicity and volume of the injected
fluids;
• The Director would develop and
compile hydrogeologic data such as
location of the aquifers, aquifer yield.
ground-water quality, ground-water
movement and ground-water use:
• The Director would develop data on
present and future population and
industrialization, emphasizing the
dependence upon ground-water and th
protection of public health;
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Federal Register I Vol. 45, No. 123 I Tuesday, june 24, 1980 1 Rules and Regulations
42493
• The Director would consider the
technological alternatives available to -
existing practices: and
• The Director would assess the risk
to underground sources of drinking
water and would submit a State plan to
cover new and existing Injection wells.
The advantages of this alternative are,
the study would be mandatory, being
required by regulation: provision could
be made for the Director to take action
In the event cases of endangerment are
•uncovered during the course of the study
and there would be a greater degree of
uniformity in several important aspects
of the study, such as scope;
methodology; and data quality. The
major disadvantages to this approach.
which led to its rejection by the Agency.
Is that It is time consuming and would -
allow extremely dangerous practices to
continue on a widespread basis while
the problem was studied further.
The third alternative is similar to the
second, except that the study would be
voluntary. The same type of information
would be collected: however, the
alternative would suffer from the same
disadvantages as the former alternative.
In addition, the Director might not have
the authority to ban dangerous practices
which are uncovered. Consequently. the
Agency rejected this approach as well.
The fourth alternative was selected by
EPA. It combines regulation of the most
dangerous practices (Class IV) with
further study of those believed to be of
less Immediate concern (generally, those
wells In Class V). Under alternative
number four, the injection of hazardous
wastes directly Into an underground
source of drinking water after six
months following approval or
promulgation of any UIC program for a
State, Is prohibited. The control of
injection of hazardous wastes above
USDWs Is reserved until the Fall.
Cost of Compliance
Most States already regulate the
underground injection of fluids in some
manner or to some degree. State
personnel are already assigned to work
on the control of injection wells, and
owners and operators of injection wells
must meet existing State requirements.
Nevertheless, the UIC regulations will
cause both States and industry to
commit resources to the protection of
underground sources of drinking water
In addition to their current level of
effort.
EPA’s best estimate Is that these
regulations will result in Incremental
costs of approximately $775 million,
expressed In 1977 prices, to all 57 States
and Territories and the regulated
community In the first five years of
program operation (Table 4 provides a
summary). This estimate Includes costs
only for developing and conducting the
assessment of Class V wells and does
not try to guess the Impact of immediate
closures or the eventual regulatory
requirements. In addition, no attempt
was made to anticipate the changed
requirements that may result from the
mid-course evaluation of the area of
review requirement, or from the review
of a sample of wells which were
permitted on the basis of cementing
records. This is because EPA does not
have a sufficient basis for projecting the
number of wells which will require
remedial action.
Tabis t— S omsyofFJve4’earhk m&ts!Coab
oIUIC Regulation
Ilne andao119flda1wsl
Nan.
m
RsuaTvig
Tat
—
OauL. _________
Oms II ._
Oau I II
Class IV.___ ..._
5 , to tal.
Stale
C lau s t_...___________
Ow II ..__..___
Ow lii
Class I V
Class V. ...........
S , taIal_
To IiL_. ...................
5.025
585,094
5.698
1.100
483
4.000
880
1 12.300
6.448
589.100
0.258
183.400
818.917
575
LeSS
709
359
7.200
107329
3.535
7.560
1230
eS8
744246
3.410
17.415
1,039
1.247
7.200
19,028
595,945
12,183
179,512
31211
775,457
In this study price levels which
existed in 1977 were used to estimate
the cost of the UIC program. The use of
“constant” prices Is a commonly used
convention which enables one to
ascertain the physical amount of goods
and services, or “real” resources,
devoted to compliance bec ’ause it
eliminates the influence of changes In
prices. For other types of analysis, such
as projecting expenditures and revenues
In a given year, It would be appropriate
to use prices expected to prevail during
the time period of Interest, if It Is desired
to express the cost estimates In terms of
“current” prices It would be necessary
either to project the level cf each unit
price, otto construct a price index
which would be used to convert the
aggregate cost estimates from 1977 to
other price levele. Such an endeavor Is
beyond the scope of this analysis.
However, In the judgment of EPA’s
consultant, increases in costs suggest
that the annual rate of price level
increase for activities associated with
oil drilling and production Is roughly on
the order of 20% per year. 30
1n Geroghty and Miller. Mo.. Development of
P ocedwea and Costs for PivperAbandonment and
Plugging of Injection Wells (April 30.1980). p. ri—s.
the coat or abandoning a 3.000 foot well used either
for oil and gas storage or production is $8000. In
Consequently a rough estimate of the
cost of the UIC program In general, and
Class II in particular, in 1980 prices, may
be obtained by adjusting costs upward
by 50%. The total cost of the Regulations
In 1980 prices would be on the order of
$1.2 billion, or about $230 million per
year.
It should be emphasized that the
estimate Is largely a function of the size
of the environmental problem. The cost
to industry, In 1977 prices, of carrying
out the fixed requirements—permit
application, permit Issuance, inspection,
surveillance, monitoring, testing.
reporting, etc.’ —is estimated to be $191
million, or $38 million annually for the
first five years. This is. in a sense, the
fixed cost of the regulations. The
remainder, $553 million, Is the estimated
cost, In the first five years, of repairing
leaky injection wells, replugging wells
improperly abandoned In the first place.
and re-cementing improperly completed
producing wells in the area of review.
For Class N, these costs Include the
pretr abnent of hazardous waste and
shipment to approved hazardous waste
management facilities. These are the
variable costs which directly depend
upon the number of problem wells, If the
- environmental problem is more or less
extensive than estimated by EPA in this
analysis. this portion of the cost would
vary accordingly and potentially widely.
Of the total $775 million estimated
cost, about $744’ million falls on
Industry. The total Incremental State
burden Is estimated to be about $31
million over five years or about $8
million annually.
The cost of regulating Class II
injection wells, $589 million to Industry
over ve years, clearly dominates both
State and industry costs. However, this
class also has the largest number of
wells (2 million) potentially affected by
the replatlons.
The following discussion provides
details of the cost estimates by class of
well. The sections are organized into
industry estimates and State estimates.
They also discuss nonrecurring and
recurring costs. Nonrecurring costs
Include such one-time activities as
inventorying wells in the area of review,
taking appropriate remedial action, and
reperniltting existing wells.
Demonstrations of mechanical integrity
are also treated as one-time costs
because the second round of tests will
not take place In the first five year
order to estimate the coat of abandonment in 1971
prices. VA’. consultant. Booz, Allen and Hamilton,
reduced this to $5.00I which Indicates. growth rate
of approximately 00% per year (Underground
Znjecs,o.i Control Program Close II Well
jncremenia! Compliance Coat Refinement,, p Is),
•40 CVR 122.41
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42494 Federal Register I Vol. 45, No. 123 I Tuesday, June 24, 1980 / Rules and Regulations
period. Recurring costs Include such
periodically required activities as
monitoring. reporting. and enforcement.
Class I Wells. 1. Industry Costs. A
demonstration of mechanical integrity
will be required of operators but
flexibility Is provided In the choice of
test for demonstrating it. Unit costs can
range from $5,000 to $35,000 ‘° test.
The total cost of mechanical Integrity
testing for the UIC program is estimated
to be in the range of $675,000 to $4.5
m illion. ’ 1
Appropriate remedial work is
prescribed for defective wells and may
vary from $17,500 to $100,000. “Total
Incremental repair costs for the class are
estimated to range from $53,000 to
$300,000.” -
The average number of new wells
being constructed each year is estimated
at twenty.”Since all States now have
permitting requirements at least as
stringent as the UIC i equirements. new
construction will incorporate the new
design criteria contained in these
regulations and no incremental
construction costs are expected to
result.”
Additional reporting requirements
have been estimated to cost $300 per
well per year for new and existing deep
disposal wells. ”Total recurring costs
are estimated to be $463000 over five
years.”
2. State Costs. The regulations require
collection and review of data on a
quarterly basis for each site subject to
the regulations. Six work&hours per
submission per site has been employed
in the estimation of costs for this
activity.”EPA estimates that the
submission of reports to the Agency will
require one hour of preparation per site
per quarter.
The total costs of the requirements In
Class I appear in Table 5. The increase
in Industry and state costs since the
proposed regulations is due to a revision
in the number of existing wells, based -
upon a new survey of the well
population.”
Class!! Wells. Class II wells include
injection wells associated with oil and
gas production, and hydrocarbon
“Temple. Barker and Sloane. op.cil.. Part I. p.11-.
io.
“Gemghly and Millcr, Inc.. Economic Analysis,
Class IAehaoal,lotaoe. tAprll 30. 1900).
UTempIe. Barker and Sloane. O PaL. Patti p.11 -
11.
1 Geragbty and Miller. op Cit. Pert L p.11—5.
“Temple. Barker. and Sloane. ep.ciL. Part 1. p.11-
U lbld ..PaytLp.fl.. 12.
Part 11.42.
“Geraghty and Miller. op.c:L. p. 14.
“ Temple. Barker and Sloane. op. oiL. Part I. p.
111-8.
“Geraghty end Miller. op. cit.. p.9.
.sf.orage, except gaseous natural gas
storage wells. The conceptual scheme
- for estimating incremental costs
ãnvolves the Identification of unit costs
for the activities required by the
proposed regulations and multiplying
those by the estimated number of wells
requiring each kind of action. Several
changes have been made to the cost of
compliance based upon comments
1. Sampling for fluid migration (+$4.5
million). The proposed regulations
permitted the submission of cementing
records as a demonstration of
mechanical integrity. However, EPA’s
contractor advised the Agency that
“existing well records have hmi led use
in determining the adequacy of the
cement sheath outlide of a well
casing”.”For certain existing Class II
wells, the absence of fluid migration will
be based on well records. A sample of
these wells will be tested in order to
ascertain If reliance upon well records
was adequate as an indicator of the
mechanical integrity of the well. The
costs of this requirement are based upon
a sample of 3 (100 injection wells
nationwide.
2. Initial reporting of test results—
existing enhanced recovery wells
(+$Z5 million). In the case of new
Injection wells and existing disposal
wells test results are reported in the
permit application. However, existing
enhanced recovery injection wells may
be covered by rule, but no provision was
made for reporting test results to the
State Director. This omission has been
corrected by atthb uting to operators of
wells covered by rule, a coat of $25 per
report.
3. Financial responsibilily(4 $5 O
million). The April 1979 reproposal did
not Include the cost, to operators of
“Geraghty and Miller. Inc.. Mechanical tategrity
Testing of Injection Wells. 1Apr11 30. 1990). p. s.
received and further analysis performed
by EPA. On net balance cost to
operators Is lower than the previous
estimate, primarily due to lower costs of
remedial action. This results from the
recognition that certain wells will be
abandoned rather than reparied. A
reconciliation of changes in costs from
those appearing in the April 20, 1979.
Preamble followSl
existing enhanced recovery wells, of
securing a well closure bond. Costs for
such wells were estimated in the same
fashion as costs for existing ditposal
well operators.
4. Unit permitting cost (+$2.2
million). In EPA’s earlier analysis the
unit cost of permit application used in
table XIV—i 11 to calculate the five-year
cost to industry was inconsistent with
the unit cost which should have been
used, as calculated in Chapter XI. ”
Previously the cost for permitting new
salt water disposal (SWD). new
enhanced recovery and existing SWD
wells was $620 $387 and $240.
respectively. The correct unit costs are
$675; $422 and $262. respectively.
5. Chqngos accruing to well closure
and injection wells not put in service
($—92.8 million). In EPA’s earlier
estimate It was assumed that wells
would either be repaired, or abandoned
and redrilled. depending on the type of
well. In the current analysis the results
of the production impact analysis have
been Integrated into the cost analysis ”
The cost model now recognizes that the
predicted number of new enhanced
recovery (ER) wells will be reduced by
2,470 as a result of the evaluation of the
area of review. it is estimated that the
“Arthur D. UtIle. Inc.. Cost of Compliance.
Proposed Uadeigrowidlnjecoon Control Prcgmm.
Oil cnd Gas Wells. (/wis. i979 p. 190
“Ibid. p.159.
“Boo,. Allen and Hamilton. op cfl.. pp. 18ff.
Tabis 5—fr italFivs YaW PT09?Sm Css Class I Wells
(In thouaands of IOn dilate]
Noteaarlog Re atIng
Total
I n
Metharacal Integilty Teat 975-4. 725
53400 ..
— 483
87 5-4.725
53400
&ttota l -— 7234025 483
5 t a
52-127
Program 11 _ ’v ’ - . — 39 —
Patrod Emating Woes. .....__.. 290—593 ...__. .
Patrol Il.arnga lie
Quarterly Review ............. ... . . ... - ._. ._ .._ .. — — — 545
Quattei$p Report — — 130
A,vsjaI Ripen .____ ___ .____. - 80-245
- 839-1.615
l.I91-S 488
52-127
30
299—593
iie
545
130
50-245
830—1,615
— 505-875 1,555-2.535
2.060-3.4 10
Total .. .._.._._... 1.233-5.900 2.018-2.918
3.251.9,898
Serene Teriple, Saner and Sloane, Inc. Ihjd.poistd h on Qurteot Repi sIsv Ana5 ’ns of Pet. Pfupim Costs
,l Wil, (May 15. 1O80)p 8 -
-------
Federal Register I Vol. 45, No. 123 I Tuesday, June 24, 1980 / Rules and Regulations
G ind W -
Pomut O . iasaI Wuib ____
Puimt Nom With -. _____
42495’
Table a—R& ,ofW,wtaMP e,*i
Qs DI by sts
Table le
P c.* Quell WWk
(Thctasi it 1977 dOlIcrIl
1. ApiS, ISle TiIte’
2.Meui ,a.
5 647.000
+700
3 bitit it hit mstdts fo r us ER
weSs — -.--_________
+2.500
4 Plugging bone outing ER usba
+5.000
5 Co..U. .... t OW t it p. ..dU
+2.200
I Random ewiçbag for ftiad n abon... . ........._
+4.500
—150500
7 Plvacxn anN -
- ‘
569.000
S. cOW sOW
—
N ON.REcuRR IN G
Evalustion of Coiweuction
ftsndout With __
Prc iorçW.Oa
b ecXi Wiffa’______
1a
26.200
50 5.000
14 5,200
Phosiosehy Abandoiwd WeIls_._______ 25 5105
Pfodoomg Wells 3 5.500
PqucOWi Wells s 5
Abandon u ucbon wells and ssaoosatud po.
auig sills_____________ 53 . 000
PineS AgtiooXn — . 3 3.100
5I toWL iion4i inV .._ .___
RECURRING.
— and Rupolang -—___ 4.000
ToeS — ., .___ 569.005
evaluation will show (1) a producing
well needing remedial action (2) an
abandoned well requiring
reabandonment or (3) both (1) and (2). It
is judged that the anticipated production
will not warrant the required
expenditures to repair an estimated
2.220 abandoned wells and 88 producing
wells. The operator will therefore
choose not to place the new ER wells Lu
service, thereby avoiding the cost of
remedial action to wells In the area of
review. Savings, relative to EPA’s earlier
costs estimate, amount to $70.8 million.
Similarly, forty new (Le.. converted) ER
wells will require remedial sctlon but
will be abandoned rather than repaired.
This reduces EPA’s earlier cost
estimated by $1.0 million.
EPA esthnatee that fifteen new salt
water disposal wells will not be placed
in service due to the need to repair both
a producing and abandoned well In the
area of review. Fifteen abandoned wells
and a like number of producing wells
will not be repaired, resulting in a
reduction of $750 thousand from EPA’s
earlier estimate.
In addition, (a) 590 existing ER and -
500 existing SWD wells will be
abandoned rather than repaired. When
the cost of abandoning the injection and
associated producing wells is taken into
account, the “savings” over EPA’s
earlier cost estimate is estimated to be
$18.9 million: and (b) seventy five
existing SWD wells will be abandoned
rather than repaired, at a net “savings”
of $150,000.
Finally, the abandonment of wells and
decision not to put new injection wells
into service results in savings In the cost
of permitting. reporting the results of
mechanical integrity tests and obtasning
plugging bonds. These “indirect” savings
total $1.2 million.
Table 6 shows a reconciliation of the
earlier Class II cost estimate and the
current one. In all eases where a well
was abandoned rather than repaired.
the cost of Its abandonment was -
properly considered in the calculation of
the “savings” over EPA’s prior cost
estimate.
1. Industry Costs—Incremental non-
recurring costs 0! compliance to
operators are estimated to be $565
million over the first five year period. Of
this total $20 million are for the
preparation of permit applications, and
$149 million are the cost associated with
determining the nature and extent of
corrective action. The bulk of these
costs, $396 million, Is the estimated cost
of the corrective work Itself.
‘kee, 0 LIWS Inc., Cost ci CcnWtiWic. Proposal Under.
— * CcrtODi 1flL ait G s a W I b is ..
1970) po 196-200 Includes mwrbsg cosa ____
Scteo Boos. A 5on erel NwriIto Inc. L4ide ’pci,it b$c
p i2W Th w ,p Clue U Wel h , .., .. . ,I.1 vçdOt
A.dOamini (Ap I 30, 1060). p 33.
In estimating the cost of corrective
action the unit cost of reabandoning a
well was taken as $20,000. EPA _______
reviewed the validity of this estimate
since the proposal by surveying costs of
reabandonment experienced by lncludss plugging bond for outing uiSianood
operators and state regulatory agencies
between 1975 and 1979 in Louisiana, N ta —Coos nct add to total doe to rounóng
Michigan and Texas. After adjusting for 2. State Cosis—The estimate of the
changes in price levels EPA’s consultant Incremental costs to States, of
conduded that $20,000 represented a implementing the proposed UIC control
reasonable average of the considerable program for Class II, is based on an
range of unit costs uncovered by the estimate of the total effort that will be
survey.” required in oil-producing States to
On the average, industry will enforce the proposed Federal
experience one-time costs of some $113 - regulations. The amount currently spent
million per year over a five-year period. on UIC programs by these States was
These estimates assume the current then subtracted from the total, yielding
requirements for Class II and do not the incremental costs.”
to anticipate the outcome of the mid- It Is estimated that oil-producing
course evaluation regardlngthe area of states will incur total costs of $38
review requirement. million over a five year period. Of this,
In addition to the one-time costs $16 million will be one-time costs to re-
associated with existing wells, there are permit existing disposal wells and other
incremental costs which producers will start-up costs. The remaining $22 million
incur each year to collect and report will cover the permitting of new wells,
monitoring data. The total recurring monitoring and enforcement, and
costs attributable to the regulation are J general overhead. Since current State
estimated at $4 million over five years spending projected for five years equals
or about $800,000 per year. (Table 7). $20.7 million, incremental costs over five
A note of caution is warranted years are $17 million or $3.5 million
regarding the correct interpretation of annually (Table 8).
the costs to Class II operators. First, it Class III Wells. Special process
was assumed In the estimating - miningis. In most Instances, a
methodology that the area of review developing technology already operating
would be ¼ mile in all cases. EPA under some State controls. There are
believes that this assumption results In about 8,000 wells but a relatively small
an overstatement of industry costs number of sites at the present time.”
because the area of review, when Consequently, thecosts of compliance
calculated by a matbematical formula as are estimated to be small and the impact
permitted by the regulations, will on the industry to be negligible.
probably be substantially less than ¼ TabI. t—la JalFy ,C s
mile In most cases. This means that the Quell Wells
number of producing and abandoned IThOwer cl 1077 dolarSi
wells subject to testing, correction and
reporting requirements is substantially -— uw r i._-. 2.174
less ian the number ascertained 7.010
4.50 5
throughtheuseofthevemile 2.072
assumption. . . is ,s eo
M 5 005 , Allen and Hamilton, op. cit., p. 11.
“Arthu D. Little, Inc.. op. cit.. p. 163.
Cereghty and Miller. op. cit., p.4.
-------
42496 Federal Register I Vol. 45, No. 123 I Tuesday, June 24, 1980 I Rules and Regulations
To Stats Cset._......_____ — 35155
(ass ars 4 Slat. Spen ng_._ ._ —20,40
Tc iiail.l Stat. 17 .418
_________- 7.600
9155
Swct M I s , 0. L 8ls, hlc. atO9Qw.. . J
L4Mir ’mnd 5 t.W Prcpint Qf and Gsa Web .
( M Is. 1979). 9. 193, wis U & Eiwwoiwnental PicleC I
Aguncy, I la t (May. 1950).
1. lndustvy Costs—The total
Incremental cost to Industry of
complying with Class W requirements Is
estimated to be $6.3 million for the first
five years or about $1.3 million
annually. Of thjs, about $5.7 million are
nonrecurring costs mainly associated
with the test for mechanical integrity
and repair of faulty wells. The remaining
half-mIllion dollars are the cost of
monitoring and reporting.”
The States of.Texas and Louisiana
account for all current Frasch process
sulfur mining. There are ten mine fields
with approximately 500 wells in the 1*0
States. The average useful life of a
Fraech well Is about one year. Since this
practice was started eIghty years ago,
approximately 35,000 wells have been
drilled.”
The total one-time permitting
expenses for the ten fields will be
approximately 534.000, and reporting
costs, $15,000 over five years.
There are eighty operating salt
solution mining sites in the United
States, principally in Texas, Louisiana,
Michigan, New York, Ohio. and Kansas.
containing approximately one thousand
wells. Permit applie tIons expenses for
the thirty fields are estimated to total
$204,000 and incremental annual
reporting requirement expenses are
estimated at $165,000 over five years.
The total one-lime cost of mechanical
Integrity testing Is estimated to be one-
hail million dollars.
One operating field with 18 wells (17
injection and one extraction) for the
solution mh lng of potash exists in
Moab, Utah.’ 9 Permit application
requirements for the site will involve a
one-time cost of $30,000.’° There will be
no costa for Integrity testing f the
injection wells, as all abandoned wells
in the field are thought to be adequately
4t Envfronmental Protsctlo Agency. Class III
Cost Analysis (May. 1980).
U Temple. Barker and Sloane. op. cit.. Part L p.!)—
“IbiJ.. Part I. p 0—27.
‘lh;a.. Part L p. !1l-6
plugged.” Therefore no cost will be
Incurred by the operator for reviewing
nearby wells. There will be recurring
incremental casts of $100,000 for
reporting overa five year period.
Summaries of the one-time costs and
annual recurring costs to industry are
presented In Table 9.
2. State Costs—The regulations
require collection and review of data on
The State program costs for all States
to comply with this Subpart of the
regulations are estimated to be $1.9
million over five years as shown in
Table 10.
Class IV Wells. Until an underground
Injection facility receives an UIC permit
Issued pursuant to the Safe Drinking
Water Act It is subject to the Interim
status requirements of the Resource
Conservation and Recovery Act.” The
Agency adopted this approach because
the UIC program does not have the
equivalent of an interim status period
when owners or operators who dispose
of hazardous waste by underground
injection are subject to Federally
en.forceable standards. Enforcement of
environmental contole under the UIC
program must await: the development
by states of programs for primary
enforcement responsibility the approval
or disapproval of those programs by
EPA; and the development of UIC
programs by EPA In States which fail to
develop and implement adequate
programs for primary enforcement
“Ibid.. Part I. p. W-8 .
“s s FR 3317$
a quarterly basis for each site subject to
the regulations. Seven hours per
submission per site has been employed
in estimating state costs. The
submission of an annual report to EPA
will require 3 to 35 work days per State
to comply with the regulations.
depending on the number of permits
Issued, quarterly reports reviewed, and
other regulatory activities.
responsibility. EPA does not believe that
UIC primary enforcement programs will
be In place in all States on the effective
date of these interim status regulations.
Therefore, In order to provide control
over underground injection of hazardous
waste during the interim status period.
as contemplated by RCRA, it is
necessary to regulate underground
injection under 40 CFR 265, Subpart R.
Tebl. I0 .—h nent.l RN. Veer Costs States
Case III Wells
lmelcuwI cl 197’ dalIcs )
—
0svelcçu g sut. . . -
hewt79a -. . . .. .....
s.-.aIh. .sist.ig at,... .
PerMI,w,I . . .. . .. . ._. . .. . . . . . ._.. . ._.._. , ..._.._.. . ...
S _.__ __..
c
Oi Is1y Ran.,
MvMiRay c 1.... .
- - ..*-.-.. - . ._ .. ..
72
23
536
75
709
285
130
615
.. .
23O
Tatat .._...
tv
libIs $.—4na’e’rssriwJFi e-Year i osts toState*
Case!! (SW IS —CcNwsd
rT )miaw ol1971dc sl
5.590
Ei ilctcamert .. . 13102
— - - --- --- -. . .. 2203
____________— 21. 195
TabIs 9.—fr wnantalR .v.Yw Costs to In Dy (2535 III
It. Ilcatliats at IS?? 609w .!
MN.a
Mat
wet.
Rwn
acSc ,i
Tcl&
N
M . g.aScaScn - — ..............................
10 0
50 0
- IS 0
SI — 0
34 0
204 519
30 0
0
0
0
300
0
3,000
0
0
0
0
0
0
1500
0
10
60
10
331
34
3,933
30
LflseimIsaclw i ._
.__.
bats ns si Mactwig —
•
Fried, . iat , uiww lg .
Sclutian fl wi of sell . — — - ---
Sclu 9 cnnww ig olpcta a l l_
&tlot aI -
379 519
3,300
1,500
3,600
MseltcMg Reportng
.
.
bs itugsiiftca t an . . . . . . . . . . . .. .
Ui wwt nIsecIm —
0.,.U ,ajni.l .._.. ——
0 11
0 53
0 9
,
11
53
9
IS 9
27
Fried, can ,, nwwlg —
0 15
150 165
0 100
15
345
100
- Solution n,*ig of salt, . ,.__... . ___
Solution nwwig of potaah —. - —
8 , IcW ___.
195 302
NIA NM
560
$258
Tc l .I ..._.... ...._.
NIA.Nnt AX 5 ls
Scans CiwUu,an...taI Prot.c4on Agency. a C .4na ss (Miy 1080).
T ct I
Scud Enu , ..&.hI Protection Agency 0,35 III 0,
— (May 1950)
-------
Federal Re iater I Vol. 45. No. 123 I Tuesday, June 24, 1980 / Rules end Regulations
42497
• Once an UIC program I. promulgated
by a state. Class IV wells which l ject -
hazardous waste directly into an
underground source of drinking water
will be proh iblted.U This prohibition Is
effective six months after the effective
date of the program. Requirements for
Class IV wells which inject above an
underground source of drinkL’ig water
are reserved.
Preliminary analysis, based on limited
field work. suggests that there are
between 5.000-10,000 wells that will
meet the definition of Class IV. The
“best estimate” Is 7.5(10 wells.
In estimating costs EPA. consultant
based Its analysis on the expectation
that large disposers—those injecting
more than one thousand gallons per
day—will pretreat their waste stream to
remove the hazardous components, then
transport the sludge to an off-site
facility. Small disposere It I. assumed.
will transport the entire waste stream
without prior ire abnent. In revising the
cost estimate to conform with the
promulgated regulations EPA followed
this convention. ‘ In addition, EPA
Included costs for monitoring of
Injection fluids and quarterly reporting
to the Director In order to present the
costs of a comprehensive regulatory
program. Such monitoring and reporting
Is not now required, but under
consideration. To illustrate, one of the
options for which the Agency has
requested comments. in connection with
perndtting standards for hazardous
waste management facilities, would
require a demonstration that the
anticipated .mpact upon groundwater”
will not idversely affect the
health of persons or violate NPDWR
based on the following irJormatlon:
Injection volume and pressure’
Direction of ground water flow’ ‘ ‘ —
Monitoring up-gradient and down-
gradiont”’
Ills expected that the cost to industry
In the first five years of program
operation will total $163 million. State
costs are estimated at $1.2 million over
this period. 5 ’
C/ass V Wells Generally, wells
falling into this class inject
nonhazardous fluids into or above
formations that cant-sin underground
sources of drinking water. Owners or
operators of such wells are to notify the
Director of the existence of any well
under his control meeting the definition
of Class V. and submit certain
information within one year of the
effective date of the L C program.
Within three years of such effective date
OCFRIZZ3 O .
“Ibid. IL D. W-6.
N $ Eovfronnieatel Protect Ion Agency. Class IV
Cost Analysis (May 1960).
N45 FR 33332.
“EpvI,cnmanlst Protection Agency. Class IV
Coat Anclvi,, lMay 1960).
the Director Is to: submit certain
Informatiom assess the contamination
potential of Class V wells: assess the
available corrective alternatives and
‘their environmental and economic
consequences and make
recommendations for the most
appropriate regulatory approaches and
for remedial actions, where
appropriate.M
Nonrecurring State costs for Class V
wells are related to establishing the
assessment program while annual costs
relate to compiling, categorizing and “
analyzing the information collected. It is
estimated that this effort will cost $5.2 to
$7.2 million over a five year period.
Production Impact
Class!!
EPA followed a seven step approach
to the estimate of the impact of the
Regulations on oil productlor,.ss
1. Determine the cost of compliance
for each event combination.
2. Calculate the break-even point for
each event combination. -
3. Calculate the probability for each
event combination.
4. Determine the expected value of
fraction of wells shut down or
unrealized. I.e.. those producing below
break-even point. -
5. Determine the expected value of
fraction of production lost due to shut
down/unrealized wells.
6. Number of wells shut down total -
number of wells under regulation x
(sum of expected values of fraction of
wells shut down/unrealized.
7. Lost production’ . total production
from wells under regulation x (sum of
expected value of fraction of lost
production).
Previously. EPA estimated that
approximately 12,000 barrels of oil per
day would not be produced as a result
of the i-egula lions. 60 In the interim EPA’s
contractor reviewed the analysis and
made several important changes.’ First,
N4O p 3 4 5, 51 4OCVR 110,52
“Booz. Alien and Hamilton. tnc.. Rr,-ssiuratgon
of Irnp cl, of Proposed Underground Jn ecfion
Control Reg -uiorions on Cn,d , 0’! Piuducl.on (April
* 1960). Aitathicent a p ,1
O 4 FR 237* April 2 igni
“Genszeiy, Booz. Mien end Hampl ,an. Re-
astan,auon of Impacts. .. p. Ill—S.
the profit per barrel was revised from
four to sIx dollars because the rapidly
Increasing price of crude oil rendered
the earlier profit figure obsolete. Second.
the capital recovery period was revised
from ten years for all wells, to one and
one-half years for new ones, and three
for existing wells, to more accurately
reflect current industry practice. This
change represents a substantially more
stringent assumption regarding the
required profitability of associated
producing wells when evaluated against
the cost incurred in compliance with the
Regulations. Third. the discount rate
used in the calculation of the present
value of future profits was increased
from 10% to 13%. Again, this represents
.a more stringent criterion for
determining whether the expenditure of
funds in compliance with the
Regulations is justified on the basis of
future profits. All of the changes except
that relating to profits tended to
increase the Impact on production
compared to EPA’s previous estimate.
The combined effect of those changes
was to Increase the estimate of -
production loss from 12,000 to 13.300
barrels per day (BPD).’ 1 The impact
- associated with each category of
injection well is presented in Table 11. It
is to be noted that the estimate of lost
production is closely tied to profit rates,
the tribution of profit per barrel
among wells, and payback period, if
profits are assumed to increase from six
Lolen dollars per barrel which EPA
believes to be a reasonable assumption.
the estimated loss In production
attributable to the regulations declines
from thirteen thousand to five thousand
BPD. If, instead of plying a uniform
profit of $6 per barrel, it is assumed that
one-third of all wells earn $4 per barrel
and two-thirds earn $10 per barrel. the
loss in oil production increases from
thirteen thousand to twenty thousand
BPD.’ 4 if the required payback period is
decreased from one and one-half to one
year for new wells, and from three to
two years for existing wells, the loss in
production amounts to 29.000 BPD. 60
r,b,d p.111-S.
lbid. p. tn-S
lbjd.. p.11-A
lhid.. p. 111—3
2.4
4
io.a
.2
133
Table II.— cecq, Less Rotated Tj e of cbon W £a4 ect ta Regutabo,,
T ps
Aesocund pn .i Aasoast10 o,a rnr be.
I s (Sleenands SF0)
NO t ENwned
n ,M , Itot — eo,as.d to Sian -in rscoae,y no t Tecu
len sinens N will porn
E .IenIOenoaro.dmcovsiy... — -. — —- 1J60_... 1. 0 5 0 - -. 2.4
______ 75 —__ —— 4
New m..... i m ac amy —- ______- 40 2.470 — -— 2. 510 __... 103
New s i lw .twdsposa Is -— -- 60 - . - .2
T cndi — - - .---—- .205 2.405 1.260 2.570 2.2 105
Srntcs Doe., ASen S l id ttorWt n, 60sDoadsn P ac$ of Lh ipruimd b icO W Regt* w as
Oim O mos,ccct (A pI 30, lNQ). H I-I
-------
42498 Federal Register I Vol. 45, No. 123 / Tuesday, June 24, 1980 I Rules and Regulations
In the aggregate the regulations are
expected to have little effect on profits.
prices. production, or employment
Imported oil prices are determined by
the Organization of Petroleum Exporting
Countries (OPEC), an4 domestic “new”
oil is priced accordingly. With the
expiration of controls on “old” oil in
1981, all domestically produced oil will
be priced according to OPEC levels.
Therefore it is reasonable to expect that
the cost of compliance will be absorbed
by oil firms.” In 1977 revenues of the oil
industry were $32.5 billion.” The
average annual cost of $113 million
attributable to the regulations represents
about one third of one percent of total
revenues. -
Based upon overall output per
employee productivity figures, the loss
of 13.300 barrels per day suggests a
maximum potential reduction In
employment of 600 employees. In
practice the number of positions
actually eliminated may approach zero,
for two reasons: First, almost all of the
lost production accrues to future wells
not put into service. Since they are not
yet in existence there are no existing
jobs eliminated. Second, the remaining
lost production of 2,700 BPD is
distributed among fifteen hundred
producing wells. Considering the widely
dispersed impact it appears that few, if
any. current jobs will be lost.”
On a regional level the impact will be
more variable. In general. regions with
(1) a higher proportion of stripper wells,
(2) wells producing at a relatively low
output, (3) a large number of
abandonments, and (4) poor completion
and abandonment practices, will be
affected .ore than regions not so
characterized. Based upon these types of
considerations it appears that the
impact of the regulations will be felt to a
greater extent in the Illinois and
Appalachian Basins. The least likely
regions to experience an impact are the
Rocky Mountain and the Gulf Coast.
Between these extremes will fall
California, East Texas and the Permian
Basin.”
Class 1I1’°
The potential impact of the
regulations is not expected to be
significant, for the following reasons:
Alico and Hamilton. Unde.7round
Injection Control Fm ram Industry Analysis of
Class Hand Class III Well Re louon. (April 30.
1900). p. 111—3
‘lbid.. p.11-12.
• Booz, Alicia and Hamilton. Unde, ,vund
Injection Control P vgrorn lndu8tz -y Analysis..
(p. IV—2 .
—mid.. p 1V. -
°lbsd p. 111—1411.
(1) For most industries the production
.from the sites subject to the regulations
account for only a small proportion of
dumestic supply;
(2) For salt and Frasch sulfur
production, compliance costs are
relatively small: and
(3) Firms engaging in solution mining
are diversified.
No loss of employment is expected to
be caused by compliance with the
regulations.
Reporting Impacts
Reporting requirements apply to all
permit holders under Classes I a d Ill.
and to owners or operators of wells
authorized by permit or rule under Class
II. Owners or operators of Class II wells
are to report once eich year. while
owners or operators of Class I and III
wells are to report quarterly. Although
not presently required. reporting costs
have also been estimated for Class IV
operators, as discussed earlier.
Total annual costs to owners and
operators of Class I, II, and III wells are
estimated to be $468,000. Owners and
operators of Class N wells are
estimated to incur costs in the first year
only of approximately $600,000 in
submitting monitoring reports. They will
not incur reporting costs beyond the first
year because these wells are banned
after six months from the time the UIC
progr m becomes effective.
The State Will review these reports. It
will, in turn, make three types of reports
to EPA: (1) Quarterly reports on the
compliance status of major facilities
(Classes I and IV) once the State
program is effective: (2) annual reports
on the operation of its program; and (3)
“mid-course correction” reports, as
described in the following section on
program evaluation.
Annual State costs for the review of
monitoring data for Classes I, II, and III,
and for the submission of the quarterly
and annual reports to EPA, are
estimated to be about $1.0 million per
year. These are recurring annual costs
and do not include a cost of $221,000
incurred by the StateB during the first
year only, to review Class N monitoring
reports. It Is expected that the mid-
course correction reports will require an
insignificant amount of time to prepare,
and no cost has been Included for them.
EPA will review the quarterly and
annual reports from the 57 jurisdictions
at an estimated cost of $18,000 per year.
In summary, reporting costs during the
first five years of program operation
total $8.2 million, as follows:
• Owner/operators, $2.9 million.
• States, S5.2 million.
• EPA, $90 thousand.
Reporting costs are presented in
additional detail In Table 12.
Evaluation Plan
In the preamble to the reproposed
regulations,” EPA summarized its plan
for evaluation of the UIC program and
indicated It would provide a more
detailed plan on promulgation. The
discussion below summarizes the
Agency’s plan in this area.
EPA would like to be able to target
the UIC requirements to those well types
and geologic, geographic or hydrologic
conditions. that have the greatest
potential for groundwater
contamination. EPA will evaluate the
program and, based on its findings. may
adjust the requirements of the UIC
program.
“44 FR 23752, Ap i -il 20,1979
Table 12.—Aeportng Costs
. Wetc Ico ,
-
I II
II N
Walt owneIiaper ,tcr
Repoiting ‘noietoflng data
Repoiwig bequency per pew .._..._ .. . -
Lint tons (how,) _....
Lint coat (50101).. - .. . .. __
NumbUr c i WSIto/II%S$ .. ...... . . . -. -.. _ -- .
Total coal per yew (S thda)._. .
4 t 4
S I 5-16
75 11-iS 7 6-ISO
‘ma 25.200 i
30 370 67
S
4
4
40
‘7.500
‘ma
tsate.
R mw ma.Jto,.. rupoito.
lainas — psi peer
umooat (doarl) .. . _ - .
Total coal psi yew (S tociewads)
Ousleily rsccit to EPA or ccirçtiw u atotia
N ,sr50r autinetisd per pew
( hal I—- --
Total coat per yew (S thcueands). . - -
Miusi rapo t to EPA on pic am oa.aUo.
that tone fluue) -
Lint cost (doaaru)_..._...... . ...
30-140
409-2.000
Taco coat psi pear (I lltctaands l........ -.
10-49
1.236 25.200 068 ‘is.ma
6 1 7 1
DO II 105 15
109 454 50 ‘221
N as. ii. .. 114
15 Al. Al. 40
270 l.a Al. 680
‘.26 ILl. I Ll. 65
tIC 108 18
2.400 1,625 2.40
77 26 13?
-------
Federal Register / Vol. 45, No. 123 / Tuesday , June 24. 1980 I Rules and Regulations
42499
n.& .
The Agency evaluated two
approaches for directly measuring the
improvement in ground-water quality
that would result from implementation
of the UIC program and concluded that
neither was a viable method of
evaluating the program. The first
approach was based on the drilling of
monitoring wells in the immediate
vicinity of a random sample of injection
wells to determine the ambient ground-
water quality. Because the expected
failure rates (i.e.. the fraction of wells
expected to fail a mechanical integrity
test) are small (estimated at 2—3% for
Class I I wells, for example) large sample
sizes would be needed to measure the
effect reliably, It was estimated that the
Agency would need to sample 200
Injection wells to measure the failure
rates and a much larger sample. perhaps
1.000, to make inferences about what
categories of wells are most likely to
fail. Using the conservative assumption
that at least two monitoring wells would
generally be needed for each injection
well, and that the cost of drilling a
monitoring well would be on the order
of $20,000. the total costs for the well
drilling alone would be $8 million to
sample 200 injection wells and $40
million to sample 1.000 wells. In addition
to Its extremely high cost, this approach
has two other serious drawbacks. It
provides no information on the effect of
nearby wells in the area of review on
groundwater or on the effectiveness of
the UIC program In abating pollution
from these wells. It also would not
provide valid data on the effectiveness
of the UIC program in ensuring that
leaking injection wells are repaired. To
obtain data on ground-water quality
before and after program
Implementation, the sample on which
the evaluation would be based would
have to be drawn and known to the
program managers before the program
takes effect There would, therefore, be
no way to ensure that the treatment of
the sampled injection wells was
representative of the State programs as
a whole. For these reasons, this
approach was rejected. -
The second direct approach that EPA
evaluated is based on analysis of water
from existing water wells (or other
wells, such as existing monitoring wells)
that happen to be located near in)ection
wells. If a sample of such wells showed
a significantly h:gher rate of
contamination, for example by salinity,
than a sample of wells further from
injection wells, one could conclude that
the injections wells were 1il ely to be a
cause of contamination. Similarly, if the
rate of contamination were reduced
after implementation of the UIC
program, one could conclude that it had
been effective. This approach would
avoid the necessity of drilling -
monitoring wefls. but it suffers from a
number of serious drawbacks which
have led EPA to reject it as well. First, It
would be necessary in each case to
perform a ground-water modeling
exercise to determine whether
contamination, if it existed, would have
reached a given water well. Methods
and data to do this routinely with
sample sizes of hundreds or thousands
do not exist. Second, we would not
know when the contamination might
have begun, so we would not know how
far the plume of contamination would
have traveled even If we have an
adequate ground-water flow model for
the area. Third, existing water wells
would in many cases not be drawing
from the depths and strata which may
have been contaminated. Fourth, where
contamination has in fact reached a
water well. the well might well have
been closed down without an adequate
record. introducing an inherent bias.
Fifth. it would be Impossible to
distinguish between contamination froni
an injection well and contamination
from a nearby brine pit (perhaps
abandoned). Sixth, it la.not clear
whether the population of injection
wells with water wells located nearby is
statistically representative of injection
wells as a whole.
EPA also evaluated the possibility of
using surface resistivity methods as part
of an evaluation scheme to determine
from the surface whether contamination
had occurrecL The evaluation Included a
field test of the method In an area where
contamination by a Class II well had
been alleged. EPA coni,;iuded that, at Its
present stage of development, the
results of the method are not dear
enough for routine use in a broad scale
evaluation.
Because of the lack of valid and.
feasible means of evaluating the effect
of the UIC program directly on ground-
water quality. EPA has been forced In
its evaluation plans to rely on an
indirect set of measures of the need for
and the effectiveness of the program.
EPA will use the observed failure rates
as its major evaluation tool. EPA will
evaluate these failure rates and, based
on its findings, make appropriate
changes in the regulations.
Any such changes would be
accomplished through amendments of
these regulations and would involve full
opportunity for public comment. EPA
also would expect that the
implementation of the UIC program
would lead to an increased public
awareness of the potential impacts of
well injection on groundwater and
hence to an increase In the number of
reported cases of alleged contamination
and to investigation and resolution of
these incidents, thus improving the
available data base on the direct
Impacts of injection wells on ground-
water quality.
In addition to analysis of failure rates.
EPA will also evaluate the
administrative effectiveness of the
program—whether permits are being
issued as required. whether corrective
action is in fact occurring when
problems are discovered, and so forth.
The mechanisms which EPA will use
to carry out these evaluations are the
following:
For Classes L ii. III , fV and V.
Quarterly or annual reporting is required
of both the owners and operators of
wells and the States with primary
enforcement responsibility for the
program. This periodic reporting will
allow the periodic assessment of the
efficiency of the program in terms of
whether the permits are being issued on
such schedule, what the rate of permit
violations are and whether the rates are
increasing or decreasing, and whether
State programs are performing
adequately as measured by the
conditions of State primacy.
In addition, the following will be
required for specific categories of wells:
For injection wells in Classes I. II, end
certain Class III wells, the regulations’
IL—R w s —coat1nu.d
WaS a.s - -
i
u a
Envucnmontst PvOtection Aaencr
R ,sw at quwleity rapolt os oa.v nae stan
Nw,ib received — .... ... -. . ..
Urdt 10eis (ha ste) .____... —.
Unit cost (doSars). ......... . .. — .. . ..
SO
4
40
it.a.
I1.&
na.
na
ft&
na.
114
4
40
Toast cost p w (5 thasasands) .. . - -- -
4
,
lL ,
S
Ra 4sw at Aresial Rup 1 as Plcçem Opetsitan -
t iterrssiewea . . - -
Ledi rs (hOstel - —— --— —- .___ .— —. . -—
cost - - - . -- ..
24
4
is
32
10
iso
IS
4
io
51
4
40
TctaI cost per year (S Iheistands) . .__ —
I
5
I
2
The evers u ,sss10 of woOs n State. which do not p’eaanSy ‘ew. re,M114
‘Only two rupolts will be sijbMted S S 5555055 5 51 elI of lei ard wests ceases atSeil 55 mcndei
Hence. 5u e we noOse. IV 005510 qeators slier the fret year
-------
42500 Federal Register I Vol. 45, No. 123 I Tuesday. June 24. 1980 / Rules and Regulations
major requirements are periodic
mechanical integrity tests and
evaluation of wells in the area of
review. EPA will conduct a “mid-
course” evaluation of these two
requirements on an ongoing basis as the
Agency collects data from the States
based on the first two years otprogram
operations. The evaluation will provide
information on the potential -
environmental problem posed by
Injection wells lacking mechanical
integrity and by abandoned and
producing wells that penetrate the zone
of endangering influence associated
with injection wells. It will also yield
Information on the costs and benefits of
corrective action and analyze
alternatives to the current requirement.
For other categories of Class 1!! wells,
the scheme presented above is not
appropriate because the applicable
regulatory requirements are quite
different; these will be evaluated on a
case-by-case basis.
For Class IV wells. EPA’s evaluation
will center on whether such wells are in
fact identified and phased out when this
Is required by the regulations.
Evaluation of the UIC program’s -
effectiveness with respect to Class V
wells Is premature at this time.
EPA considered several alternatives
on the timing of the data submission and
for “mid-course” evaluation of the
requirement for mechanical integrity
testing and for the area of review. The
considerations that were balanced
included the burden on the States in
supplying the data, the desire to make
any needed corrections in the
regulations as quickly as possible, and
the need for a sufficiently large and
representative sample of data. The
roproposal provided for submission of
data after the first year of operation of
tile State programs. Concern developed.
however; that one year’s operation
might be an arbitrary limit. It would be
unrepresentative because it is too short
for two reasons: (1 Practical experience
with program implementation Indicates
that an Initial period of time is required
during which both program staff and the
regulated community gains experience
with the new procedures and
requirements; and (2) because five years
are allowed for mechanical Integrity
tests for existing injection wells (where
required), It is likely that relatively few
of these actions will occur in the first
year. Conversely, one year’s operation
may not provide enough data with
which to conduct a statistically valid
evaluation of the area of review and
mechanical Integrity portions of the
regulation.
The Agency, therefore, selected an
alternative which it believes Is an
appropriate compromise. The
requirements for the evaluation of the
major provisions applicable to Classes I,
II, and certain Class UI wells are
specified in 40 CFR 122.18(c)(4)(ii) and
148.
The State Director is to submit this
data during the first two full years of
operation of the State program, at six-
month Intervals. The data is to include
Information on the hydrogeological
environment, the numbers and types of
wells in the area of review and any
remedial action required by the Director,
and the results of mechanclal Integrity
tests conducted pursuant to the
regulations.
Thin alternative ensures the data will
cover a representative period of
program operation and also enable EPA
to begin to develop data analysis
procedures and to draw appropriate
conclusions about program effectiveness
as soon as it gets a large enough sample
of data.
The Agency originally proposed to
apply the evaluation of mechancial
Integrity and area of review
requirements solely to Class U wells
because it was here that major
questions about the requirements had
been raised, After further consideration,
the Agency decided to evaluate the
requirements for Class I and certain
Class III wells for which the
requirements are similar.
0MB Review
The sections of these regulations
pertaining to recordkeeping and
reporting will be submitted to the Office
of Management and Budget for review in
light of the requirements of the Federal
Reports Act, 44 U.S.C. Sec. 3501 et seq.
(Sec .. 1421, 1422. 1423, 1431, 1445, 1447, 1450,
Safe Drinking Water Act, as amended. 42
U.S.C. 300(I) et seq.)
Douglas M. Coetle,
Adminislrator.
June 17, 1980.
Part 146 is added to Title 40 to read as
set forth below:
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
Subpart A—General Provisions
Sec. -
148.01 ApplicabilIty and scope.
146.02 Law authorizing these regulations.
146.03 DefinitIons.
146.04 CriterIa for exempted aquifers.
146.05 Classlftcation of Injection wells.
146.00 Area of review.
148.07 CorrectIve action. - -
146.08 Mechanical integrity.
146.09 CriterIa for establishing permitting
priorities.
See.
148.10 Plugging and abandoning Class I —fl!
wells.
Subpart B—Criteria and Standards
Applicable to Class I Wells
148.11 ApplicabIlity.
148.12 Construction requirements.
140.13 Operating, monitoring and reporting
requirements.
148.14 Information to be considered by the
Director.
148.15 Mid course evaluation requirements.
Subpart C—Criteria and Standards
ApplIcable to Class II Wefls
146.21 ApplicabIlity.
146.22. ConstructIon requirements.
148.23 Operating. monltonng. and reporting
requirements.
140.24 Information to be considered by the
director.
146.23 Mid course evaluation requirements.
Subpart D—Crlterla and Standards
ApplIcable to Class Ill Walls
146.31 Applicability.
148.32 Construction requirements.
146.33 Operating, monitoring and reporting
requirements.
140.34 Information to be considered by the
Director.
140.35 Mid course evaluation requirements.
Subpart E—Ctlteila and Standards
Applicabl, to Class IV Injection Wells
Subpart F—CriterIa and Standards
Applicabl, to Class V Injection Wells
146.51 ApplIcability.
- 146.52 Inventory and Assessment.
Anthorlt Sec.. 1421, 1422, 1423, 1431. 1445,
1447, and 1450 of the Safe Drinking Water
• Act, as amended. 42 US.C. 300(f) et. seq.
Subpart A—General Provisions
• 146.01 ApplicabilIty and sonpe.
(a) This Part sets forth technical
criteria and standards for the
Underground Injection Control Program.
This part should be read In conjunction
with 40 CFR Parts 122, 123, and 124
which also apply to UIC programs. 40
CFR Part 122 defines the regulatory
framework of EPA administered permit
programs. 40 CFR Part 123 describes the
elements of an approvable State
program and procedures for EPA
approval of State participation In the
permit programs. 40 CFR Part 124
describes the procedures the Agency
will use for issuing permits under the
covered programs. Certain of these
procedures will also apply to State-
administered programs as specified in 40
CFR Part 123.
(b) Upon the approval, partIal
approval or promulgation of a State UIC
program by the Administrator, any
underground Injection which is not
- authorized by the Director by rule or by
- permit Is unlawful.
-------
! !dLe 1 Register I Vol. 45, No. 123 I Tuesday. June 24. 1980 I Rules and Regulations
42501
* 146.02 Law authorizing these
-
The laws authorizing these regulations
and all other UIC program regulations
are referenced In 40 CFR part 122. They
include Sections 1421. 1422. 1423. 1431,
1445, 1447 and 1450 of the Public Health
Service Act as amended by the Safe
Drinking Water Act (“SDWA”) (Pub. L
93-523) and by the SDWA Amendments
of 1977 (Pub. L 95—190).
* 146.03 DefinitIons.
The followfng definitions apply to the
underground Injection control program.
Abandoned well means a well whose
use has been permanently discontinued
or which is In a state of disrepair such
that it cannot be used for Its intended
purpose or for observation purposes.
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. For RCRA,
application also Includes the
Information required by the Director
under * 122.25 (contents of Part B of the
RCRA application).
Aquifer means a geologlcal.formation,
group of formations, or part of a
formation that Is capable of yielding a
significant amount of water to a well or ...
spnng,
Area of review means the area
surrounding an “injection well”
described according to the criteria set
forth In § 146.06.
Casing means a heavy metal (steel or
iron) pipe or tubing of v.arying diameter
and weight. lowered into a borehole
during or after drilling in order to
support the sides of the hole and thus
prevent the walls from caving, to
prevent loss of drilling mud into porous
ground. or to prevent water, gas, or
other fluid from entering the hole.
Catastrophic collapse means the
eudden and utter failure of overlying
“strata” caused by removal of
underlying materials.
Cementing means the operation
whereby a cement slurry is pumped Into
a drilled hole and/or forced behind the
casing.
Confining bedmeans a body of
Impermeable or distinctly less
permeable material stratigraphically
adjacent to one or more aquifers.
Confining zone means a geological
formation, group of formations, or partS
of a formation that is capable of limiting
fluid movement above an Injection zone.
Contaminant means any physical.
chemical. biological, or radiological
substance or matter in water. -
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 where there is
an approved State program. (For
example, when EPA 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
Director.
Disposal well means a well used for
the disposal of waste into a subsurface
stratum.
Effective date of a U!Cprogram
means the date that a State UIC
program is approved or established b
the Administrator.
Environmental Protection Agency
(“EPA”) means the United States
Environmental Protection Agency.
EPA means the United States
“Environmental Protection Agency.”
Exempted acqw ’fer 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 20 the procedures of
§ 122.35(b).
Existing injection well means an
“injection well” other then a “new
Injection well.”
Facility or activity means any “HINM
facility,” UIC “injection well.” NPDES
“point source,” or State 404 dredge and
fill activity, or any other facility or
activity (Including land or
appurtenance. thereto) that Is subject to
regulation under the RCRA. UIC,
NPDES, or 404 programs.
Fault means a surface or zone of rock
fracture along which there has been
displacement.
Flow rote means the volume per time
unit given to the flow of gases or other
fluid substance which emerges from an
orifice, pump, turbine or passes along a
conduit or cnannel.
Fluid means 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 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 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 ibore landfills,
surface impoundments. or combination
of them).
HWMfocilily means “Hazardous
Waste Management facility.”
Infection 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.
Lithology means the description of
rocks on the basis of their physical and
chemical characteristics.
Owner or operator means the owner
or operator of any facility or activity
subject to regulation under the RCRA,
UIC, NPDES, or 404 programs..
Packer means a device lowered into a
well which can be expanded to produce
a water-tight seal.
Permit means en authorization,
-- license, or equivalent control document
issued by EPA or an “approved State” to
implement the requirements of this part
• and Paris 122, 123 and 124, PermIt does
not Include RCRA Interim status
(I 122.23). UIC authorization by rule
( 122.37). or any permit which has not
yet been the subject of final agency
- action, such as a “draft permit” or a
“proposed permit”
Plugging means the act or process of
stopping the flow of water, oil, or gas in
“forrr itions” penetrated by a borehole
or “well.”
P:ugging record means a systematic
listing of permanent or temporary
abandonment of water, oil, gas, test,
exploration and waste injection wells,
and may contain a well log, description
of amounts and types of plugging
material used, the method employed for
plugging, a description of formations
which are sealed and a graphic log of
the well showing formation location,
-------
42502 Federal Register / Vol. 45, No.123! Tuesday, June 24, 1980 / Rules and Regulations
formation thickness, and location of
pluggmg structures.
Pressure means the total load or force
per unit area acting on a surface.
Radioactive Waste means any waste
which contains radioactive material In
concentrations which exceed those
listed in 10 CFR Part 20, Appendix B,
Table II, Column 2, or exceed the
“Criteria for Identifying and Applying
Characteristics of Hazardous Waste and
for Listing Hazardous Waste” In 40 CFR
Part 201. whichever is applicable.
RCJL4 means the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1978 (Pub. L 94—58o, as amended
by Pub. L 95-609.42 U.S.C. 6901 et seq.).
SDWA means the Safe Drinking
Water Act (Pub. L 95—523, as amended
by Pub. L. 95-190,42 U.S.C. 300(1) 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.
Jole orprmczpal source acquifer
means an aquifer which has been
designated by the Administrator
pursuant to sections 1424 (a) or (e) of the
SDWA.
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.
Slratum (plural strata) means a single
sedimentary bed or layer, regardless of
thickness, that consists of generally the
same kind of rock materia!.
Subsidence means the lowering of the
natural land surface in response to:
Earth movements; lowering of fluid
pressure; removal of underlying
supporting material by mining or
solution of solids, either artificially or
from natural causes: compaction due to
wetting (}iydrocompaction); oxidation of
organic matter in soils: or added load on
the land surface.
Surface casing means the first string
of well casing to be Installed In the well,
Total dissolved solids ( “TDS”) means
the total dissolved (filterable) solids as
determined by use of the method
specified in 40 CFR Part 136.
UIC 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 dririidng water
(“USDWJ means an “aquifer” or its
portion:
(1)(l) Which supplies drinking water
for human consumption: or
(II) In which the ground water
contains fewer than 10,000 mg/i “total
dissolved solids;” and
(2) 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.
Well log means a log obtained from a
well, showing such information as
resistivity, radioactivity, spontaneous
potentIaL and acoustic velocity as a
function of depth.
Well plug means a watertight and
gaslight seal Installed in a borehole or
well to prevent movement of fluids.
Well record means a concise
statement of the available data
regarding a well, such as a scout ticket;
a full history or day-by-day account of a
well, from the day the well was
surveyed to the day production ceased.
Well stimulation means several
processes used to clean the well bore.
enlarge channels, and increase pore
space in the Interval to be injected thus
making It possible for wastewater to
move more readily Into the formation,
and includes (1) surging, (2) jetting, (3)
blasting, (4) acidizing. (5) hydraulic
fracturing.
Well monitoring means the
measurement by on-site Instruments or
laboratory methods, of the quality of
water in a well. -
§ 141.04 CriterIa for exempted aquifer,.
An aquifer or a portion thereof which
meets the criteria for an “underground
source of drinking water” In § 146.03
may be determined under 40 CFR 122.35
to be an “exempted aquifer” if It meets
the following criteria:
(a) It does not currently serve as a
source of drinking water and
(b) It cannot now and will not in the
future serve as a source of drinking
water because: /
(1) It Is mineral, hydrocarbon or
geothermal energy producing
(2) It is situated at a depth or location
which makes recovery of water for
drinking water purposes economically
or technologically impractical;
(3) It Is so contaminated that It would
be economically ot technologically
Impractical to render that water fit for
human consumption; or
(4) It Is located over a Class III well
mining area subject to subsidence or
catastrophic collapse.
1148.05 ClassIfication of Injection wells.
Injection wells are classified as
follows:
(a) Class I. (1) Wells used by
generators of hazardous wastes or
owners or operators of hazardous waste
management facilities to inject
hazardous waste, other than Class N
wells.
(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 H. Wells which inject fluids:
(1) Which are brought to the surface in
connection with conventional oil or
natural gas production;
(2) For enhanced recovery of oil or
natural gas; and
(3) For storage of hydrocarbons which
are liquid at standard temperature and
pressure.
(cJ Class III. Wells which Inject for
extraction of minerals or energy,
Including:
(1) Mining of sulfur by the Frasch
process;
(2) SolutIon mining of minerals;
- Note.—Solutlon mining of minerals
includes sodium chloride, potash, phosphate.
copper, uranium and any other mineral which
can be mined by this process.
(3) in-situ combustion of fossil fuel:
and
Note.—Fossil fuels includes coal, tar sands,
oil shale and any other fossil fuel which can
be mined by this process.
(4) recovery of geothermal energy to
produce electric power.
Not..—Class Ill wells include the recovery
àf geothermal energy to produce electric
power but do not Include wells used in
heating or aquaculture which fall under Class
V.
(d) Class IV. Wells used by generators
of hazardous wastes or of radioactive
wastes, by owners or operators of -
hazardous waste management facilities,
or by owners or operators of radioactive
waste disposal sites to dispose of
hazardous wastes or radioactive wastes
into or above a formation which within
one quarter mile of the well contains an
underground source of drinking water.
(e) Class V. Injection wells not
Included In Class I. II, II I. or IV.
Note.—Class V wells Includes:
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Federal Register I Vol. 45, No. 123 I Tuesday, June 24 1980 I Rules and Regulations 42503
(1) AIr conditioning return flow wells used equation illustrates one form which the
to return to the supply aquifer the water used mathematical model may take.
for heating or cooling in a heat pump: cooe sseo-oi-
(2) Cesspool. or other devices that receive
wastes, which have an open bottom and
sometimes have perforated sides. The U!C
requirements do not apply to single family
residential cesspool.;
(3) CoolIng water return flow wells used to
Inject water previously used for cooling;
(4) DraInage wells used to drain surface
fluid, primarily storm runoff, into a
subsurface formation:
(5) Dry veils used for the Injection of
wastes into a subsurface formation:
(6) Recharge wells used to replenish the
water in an aqulfen
(7) Salt water Intrusion barrier wells used
to inject water into a fresh water aquifer to
prevent the Intrusion of salt water Into the
fresh water
(8) Sand backfill wells used to Inject a
mixture of water and sand, mill tailings or
other solids Into mined out portions of
subsurface mines:
(9) SeptIc system wells used:
(i) To inject the waste or effluent from a
multiple dwelling, business establishment.
community or regional business
establishment septic tank: or
(ii) For a multiple dwelling, community or
regional cesspool. The UIC requirements do
not apply to single family residential waste
disposal systems;
(10) Subsidence control wells (not used for
the purpose of oil or natural gas production)
used to inject fluids into a non.oil or gas
producing zone to reduce or eliminate
subsidence associated with the overdraft of
fresh waler.
(11) Wells used for the storage of
hydrocarbons which are gases at standard
temperature and pressure;
(12) Geothermal wells used in heating and
aquaculture;
(13) Nuclear disposal wells.
• 146.06 Area of Review.
The area of review for each injection
well or each field, project or area of the
State shall be determined according to
either paragraph (a) or (b) of this
section. The Director may solicit input
from the owners or operators of
Injection wells within the State as to
which method is moat appropriate for
each geographic area or field.
(a) Zone of endangering influence.
The zone of endangering influence shall
be that area the radius of which is the
lateral distance from an injection well.
field or project In which the pressures In
the injection zone may cause the
migration of the injection and/or
formation fluid Into an underground
source of drinking water. Computation
of the zone of endangering influence
may be based upon the parameters
listed below and should be calculated
for an injection time period equal to the
expected life of the Injection well or
pattern. The following modified Theis
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42504 Federa’ Register 1 Vol.45, No. 123 I Tuesday, June 24, 1980 / Rules and Regulations
/ - l/2
4 2.25 K H t
r= I
lox
where:
411 KH ( hw - b 0 x SpGb )
2.3Q
I 1
r = Radius of endangering influence frc,ii injection we!].
(length)
K = Hydraulic conductivity of the injection zone
(leng th/time)
H Thickness of the injection zone (length)
t = Time of injection (time)
S = Storage coefficient (dimensionless)
Q = Injection rate (volume/.ime)
hb 0 Observed original hydrostatic head of injection
zone (length) measured from the base of the lowest
underground source of drinking water
Hydrostatic head of underground source of
drinking water (length) measured from the
base of the ‘lowest underground source of drinking
water
SpGb = Specific gravity of fluid in the injection zone
(dimensionless)
‘fl = 3.142 (dimensionless).
BIWNG CODE $uO-oi-C
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Fed ral Regist!r I Vol. 45, No. 123 I Tuesday, June 24, 1980 I Rules and Regulations
The above equation is based on the
following assumptions:
(1) The Injection zone is homogenous
and isotropic;
(2) The injection zone has infinite
areal extent;
(3) The Injection well penetrates the
entire thickness of the injection zone:
(4) The well diameter is Infinitesimal
compared to ‘i” when injection time is
longer than a few minutes; and
(5) The emplacement of fluid into the
lnjec,tion zone createS instantaneous
Increase in pressure.
Other models may be used as
appropriate for different situations
encountered’ in the field or where the
model assumptions match more closelS’
those situations.
.(b) Fixed Radius. A fixed radius
around the well, field or project of not
less than one-fourth (¼) mile may be
used. In determining the fixed radius.
the following factors shall be taken into
consideration: Chemistry of Injected and
formation fluids: hydrogeology:
population and ground-water use and
dependence; and historical practices In
the area.
(c) If the area of review is determined
by a mathematical model pursuant to
paragraph (a) of this section. the
permissible radius Is the result of such
calculation even If it is less than one-
fourth (¼) mile.
§ 148.07 CorrectIve Action.
In determining the adequacy of
corrective action proposed by the
applicant under 40 CFR 122.44 and in
determining the additional steps needed
to prevent fluid movement into
underground sources of drinking water,
the following criteria and factors shall
be considered by the Director.
(a] Toxicity and volume of the
injected fluid:
(b) Toxicity of native fluids or by-
products of injection;
(c) Potentially affected population:
(d) Geology;
(e) Hydrology;
(f) History of the injection opera tlon
(g) Completion and plugging records;
(h) Abandonment procedures in effect
at the time the well was abandoned and
(i) Hydraulic connections with
underground sources of drinking water.
* 148.08 Mechanical hflegrtty
(a) An injection well has mechanical
Integlity If:
(1) There is no significant leak in the
casing, tubing or packer; and
(2) There is no significant fluid
movement into an underground source
of drinking water through vertical
channels adjacent to the injection well
bore.
.(b) One of the following tests must be
used to evaluate the absence of
significant leaks under paragraph (a)(1)
of this section.
(1) Monitoring of annulus pressure; or
(2) Pressure test with liquid or gas.
(c) One of the following methods must
be used to determine the absence of
significant fluid movement under
paragraph (a)(2) of this section:
(1) For Class II only, well records
demonstrating the presence of.adequate
cement to prevent such migration: or
(2) The results of a temperature or
noise log.
(d) The Director may allow the use of
a test to demonstrate mechanical
integrity other than those listed in
paragraphs (b) and (c)(2) of this section
with the written approval of the
Administrator. To obtain approval, the
Director shall submit a written request
to the Administrator, which shall set
forth the proposed test and all technical
data supporting its use. The
Administrator shall approve the request
If It will reliably demonstrate the
mechanical integrity of wells for which
its use Is proposed. Any alternate
method approved by the Administrator
shall be published in the Federal
Register and may be used In all Statefl
unless Its use Is restricted at the time of
approval by the Administrator.
(e) In conducting and evaluating the
tests enumerated in this section or
others to be allowed by the Director, the
owner or operator and the Director shall
apply methods and standards generally
accepted in the industry. When the
owner or operator reports the results of
mechanical integrity tests to the
Director, he shall Include a description
of the test(s) and the method(s) used. In
making his/her evaluation, the Director
shall review monitoring and other test
data submitted since the previous
evaluation.
§146.09 CrIteria for Establishing
Permitting Pilormec.
In determining priorities for setting
times for owners or operators to submit
appilcat1ons for authorization to inject
under the procedures of § 122.38 or
§ 123.4(g), the Director shall base these
priorities upon conside afion of the
following factors: -
(a) Injection wells known or suspected
to be contaminating underground
sources of drinking water,
(b) Injection wells known to be
Injecting fluids containing hazardous
contaminants;
(c) Likelihood of contamination of
underground sources of drinking water,
(d) Potentially affected population;
(e) Injection wells violating existing
State requirements;
(f) Coordination with the Issuance of
permits required by other State or
Federal permil programs:
(g) Age and depth of the injection
well: and
(h) Expiration dates of existing State
permits, if any.
§ 148.10 PluggIng and Abandoning Class
I-Ill Wails.
(a) Prior to abandoning Class I—ID
wells the well shall be plugged with
cement in a manner which will not
allow the movement of fluids either Into
or between underground sources of
drinking water.
(b) Placement of the cement plugs
shall be accomplished by one of the
following:
(1) The Balance Method;
(2) The Dump Bailer Method: or
(3) The Two-Plug Method.
(c) The well to be abandoned 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).
(d) The plugging and abandonment
plan required in 40 CFR 122.42(f) and
122.41(e) shall, in the case of a Class ID
well field which underlies or is in an
aquifer which has been exempted under
40 CFR 148.04, also demonstrate that no
movement of contaminants from the
mined zone into an underground source
of drinking water ‘will occur. The
Director shall prescribe aquifer cleanup
and monitoring where he deems It
necessary and feasible to insure that no
migration of contaminants from the
mined zone into an underground source
of drinking water will occur.
Subpart B—Criteria and Standards
Applicabl, to Class I Wells
§ 146.11 ApplIcability.
This subpartffistablishes criteria and
‘standards for underground Injection
control programs to regulate Class I
wells.
§146.12 Construction Requirements.
(a) All Class I wells shall be sited in
such a fashion that they inject into a
formation which is beneath the
bwermost formation containing, within
one quarter mile of the well bore, an
underground source of drinking water.
(b) All Class I wells shall be cased
and cemented to prevent the movement
of fluids Into or between underground
sources of drinkipg water. The casing
and cement used In the construction of
each newly drilled well shall be
designed for the Life expectancy of the
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42506 Federal Register I Vol 45; Na. 123 I Tuesday, June 24, 1980 I Rules and Regulations
well. In determining and specifying
casing and cementing requirements, the
following factors shall be considered:
(1) Depth to the Injection zone;
(2) Injection pressure. external
pressure, Internal presspre, and axial
loading
(3) Hole size;
(4) Size and grade of all casing strings
(wall thickness, diameter, nominal
weight, length, joint specification, and
construction material);
(5) Corrosiveness of injected fluid,
formation fluids, and temperatures;
(6) Lithology of injection and confining
intervals; and -
(7) Type or grade of cement.
(c) All Class I inlection wells except
those municipal wells Injecting non-
corrosive wastes, shall inject fluids
through tubing with a packer set
Immediately above the lnectlon zone, or
tubing with an approved fluid seal as an
alternative. The tubing. packer. and fluid
seal BhaIl be designed for the expected
service.
(1) The use of other alternatives to a
packer may be allowed with the written
approval of the Director. To obtain
approval, the operator shall submit a
written request to the Director, which
shall set forth the proposed alternative
and all technical data supporting its use.
The Director shall approve the request if
the alternative method will reliably
provide a comparable level of protection
to underground sources of drinking
water. The Director may approve an
alternative method solely for an
Individual well or for general use.
(2) In determining and specifying
requirements for tubing, packer, or
alternafiver the following factors shall
be cons.dered:
(i) Depth oi aettthg
(ii) Characteristics of Injection fluid
(chemical content corrosiveness, and
density).
(iii) Injection pressure;
- (Iv) Annular pressure;
(‘v) Rate, temperature and voiwne of
injected fluid; and
(vi) Size of casing. -
(d) Appropriate iogs and other tests
shall be conducted during the drilling
and construction of new Class I wells. A
descriptivi report Interpreting the
results of such logs and tests shall be
prepared by a qualified log analyst and
submitted to the Director. At a
minimum, such logs and tests shall
Include:
(1] Deviation checks on all holes
constructed by first drilling a pilot hole,
and then enlarging the p!lot bole by
reaming or another method. Such checks
shall be at sufficiently frequent intervals
to assure that vertical avenues for fluid
migration In the form of diverging holes
are not created during drilling.
(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. In
determining which logs and tests shall
be required. the following logs shall be
considered for use In the following
situatlcms:
(I) For surface casing Intended to
protect underground sources of drinking
water
(A) Resistivity, spontaneous potential,
and caliper logs before the casing Is
installed; and
(B) A cement bond, temperature. or
density log aftei the casing is set and
cemented.
(ii) For intermediate and long strings
of casing intended to facilitate injectioru
(A) Resistivity, spontaneous potentiaL
porosity, and gamma ray logs before the
casing is Installed;
(B) Fracture finder logs; and
(C) A cement bond, temperature, or
density log after the casing is set and
cemented.
(e) At a minimum, the following
Information concerning the injection
formation shall be determined or
calculated for new Clasi I wells:
(1) Fluid pressure:
(2) Temperature;
(3) Fracture pressure;
(4) Other physical and’chemical
characteristics of the injection matrix;
and
(5) Physical and chemical
characteristics of the formation fluids.
* 146.13 OperatIng, Monitoring and
Reporting Requirements.
(a) Opervting Requirements.
Operating requirements shall, at a
minimum, specify that:
(1) Injection pressure at the wellhead
shall 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, initiate fractures in the
confining zone or cause the movement
of injection or formation fluids into an
underground source of drinking water.
(2) Injection between the outermost
casing protecting underground sources
of drinking waterand the well bore Is
prohibited.
(3) Unless an alternative to a packer
has bean approved under § 146.12(c), the
annulus between the tubing and the long
string of casings shall be filled with a
fluid approved by the Director and a
pressure, also approved by the Director,
shall be maintained on the annulus.
(b) Monitoring Requirements.
Monitoring requirements shall, at a
minimum, indude:
(1) The analysis of the injected fluids
with sufficient frequency to yield
representative data of their
characteristics;
(2) Installation and use of continuous
recording devices to monitor injection
pressure, flow rate and volume, and the
pressure on the annulus between the
tubing and the long string of casing;
-(3) A demonstration of mechanical
Integrity pursuant to I 146.08 at least
once every five years during the life of
the well; and
(4) The type, number and location of
wells within the area of review to be
used to monitor any migration of fluids
into and pressure in the underground
sources of drinking water, the
parameters to be measured and the
frequency of monitoring.
(c) Reporting Requirements. Reporting
requirements shall, at a minimum,
Include:
(1) Quarterly reports to the Director
on:
(I) The physical, chemical and other
relevant characteristics of injection
fluids;
(ii) Monthly average, maximum and
minimum values for injection pressure.
flow rate and volume, and annular
pressure; and
(lii) The results of monitoring
prescribed under subparagraph (b)(4) of
this section.
(2) Reporting the results, with the first
quarterly report after the completion, of:
(I) Periodic tests of mechanical
integrity;
(ii) Any other test of the injection well
conducted by the permittee if required
by the Director and
- (Iii) Any well work over.
* 146.14 InformatIon to be Considered by
the Director.
This section sets forth the information
which must be considered by the
Director In authorizing Class I wells. For
an existing or converted new Class I
well the Director may rely on the
existing permit file for those Items of
information listed below which are
current and accurate in the file. For a
newly drilled Class I well, the Director
shall require the submission of all the
Information listed below. For both
existing and new Class I 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, readily available to the
Director (for example. In the permitting
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Federal Register I Vol. 45, No. 123-/ Tuesday, June 24, 1980 / Rules and Regulations
42507
agency’s files) and sufficiently identifl d
to be retrieved. In cases where EPA
issues the permit all the information in
this Section must be submitted to the
Administrator.
(a) Prior to the issuance of a permit for
an existing Class I well to operate or the
construction or conversion of a new
Class I well the Director shall consider
the following:
(1) Information required in 40 CFR
122.4 and 122.38(c); -
(2) A map showing the injection
well(s) 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 feattfres
including residences and roads. The
map should also show faults. if known
or suspected. Only information of public
record is required to be included on this
map;
(3) A tabulation of data on all wells
within the area of review which
penetrate into the proposed injection
zone. Such data shall include a
description of each well’s type,
construction, date drilled, location.
depth. recordof plugging and/or
completion, and any additional
Information the Director may require;
(4) 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:
(5) Maps and cross sections detailing
the geologic structure of the local area;
(6) Generalized maps and cross
sections illustrating the regional geologic
setting: -
(7) Proposed operating data:
(i) Average and maximum daily rate
and volume of the fluid to be injected:
(ii) Average and maximum injection
pressure and
(iii) Source and an analysis of the
chemical, physical, radiological and
biological characteristics of injection
fluids;
(8) Proposed formation testing
program to obtain an analysis of the
chemical, physical and radiological
characteristics of and other information
on the receiving formation:
(9) Proposed stimulation program:
(10) Proposed injection procedure:
(11) Engineering drawings of the
surface and subsurface construction
details of the system;
(12) Contingency plans to cope with
all shut-ins or well failures so as to
prevent migration of fluids into any
underground source of drinking water
(13) Plans (including maps) for
meeting the monitoring requirements in
146.13(b):
(14) For wells within the area of
review which penetrate the injection
zone but are not properly completed or
plugged. the corrective action proposed
to be taken under 40 CFR 122.44;
(15) Construction procedures
including a cementing and casing
program, logging procedures, deviation
checks, and-a drilling, testing. and
coring program; and
(16) A certificate that the applicant
has assured, through a performance
bond or other appropriate means, the
resources necessary to close, plug or
abandon the well as required by 40 CFR
122.42 (a).
(b) Prior to granting approval for the
operation of a Class I well the Director
shall consider the following information:
(1) All available logging and testing
program data on the well:
(2) A demonstration of mechanical
integrity pursuant to § 146.08;
(3) The actual operating data;
(4) The results of the formation testmTg
program:
(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
(7) The status of corrective action on
defective vells in the area of review.
(c) Prior to granting approval for the
plugging and abandonment of a Class I
well the Director shall consider the
following information:
(1) The type and number of plugs to be
used;
(2) The placement of each plug
including the elevation of the top and
bottom;
(3) The type and grade and quantity of
cement to be used;
(4) The method for placement of the
plugs: and
(5) The procedure to be used to meet
the requirements of 146.10(c),
146.15 Mid .courss valuatton
requirements.
In compliance with 40 CFR
122.18(c)(4)(c)(ii) the data to be
aubmitted on each Class I permit at six
month intervals during the first two
years of operation of the State program
shall at a minimum4nclude the
following:
(a) The data required in § 148.14(a)(1);
(b) The data required in § 146.14(a)(3)
including, under location, the distance
and direction from the injection well;
(c) The depth to the top and bottom of
any USDW;
(d) The distance to the nearest down-
gradient water supply well;
(e) A description of the geology and
hydrology of the area;
(I) The construction characteristics of
the well:
(g) The corrective action proposed as
well as th t performed;
(h) The type and, results of all
mechanical integrity tests reported to
the Director: and
(i) Any reporting to the Director under
I 122.41(d).
Subpart C—Criteria and Standards
Applicable to Class I I Wells
I 146.21 ApplIcability.
This subpart establishes criteria and
standards for underground injection
control programs to regulate Class II
wells.
I 146.22 ConstructIon requIrements.
(a) All new Class II wells shall be
sited in such a fashion that they inject
into a formation which has confining
zones that are free of known open faults
or fractures within the area of review.
(b) All Class II injection wells shall be
cased and cemented to prevent
movement of fluids into or between
underground sources of drinking water.
The casing and cement used in the
construction of each newly drilled well
shall be designed for the life expectancy
of the well In determining and
specifying casing and cementing
requirements the following factors shall
be considered:
(1) Depth to the injection zone;
(2) Injection pressure, external -
pressure, internal pressure. and axial
loading:
(3) Hole size;
(4j Size and grade of all casing strings
(wall thickness, diameter, nominal
weight, length. joint specification, and
construction materiall;
(5) Corrosiveness of uijected fluid and
formation fluids;
(6) Litbology of Injection and confining
zones; and
(7) Type and grade of cement.
(c) The requirements in paragraph (b)
of this section need not apply to existing
or newly converted Class II wells
located in existing fields if
(1) Regulatory controls for casing and
cementing existed for those wells at the
time of drilling and those wells are in
compliance with those controls; and
(2) Well injection will not result in the
movement of fluids into an underground
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42508 Federal Register / Vol. 45, No. 123 I Tuesday, June 24, 1980 I Rules and Regulations
source of drinking water so as to create
a significant risk to the health of
persons.
(d) The requirements in paragraph (b)
of this section need not apply to newly
drilled wells in existing fields if:
(1) They meet the requirements of the
State for casing and cementing
applicable to that field at the time of
submission of the State program :o the
Administrator, and
(2) Well injection will not result In the
movement of fluids into an underground
source of drinking water so as to create
a significant risk to the health of
persons.
(e) Where a State did not have
regulatory controls for casing and
cementing prior to the time of the
submission of the State program to the
Administrator, the Director need not
apply the casing and cementing
requirements in paragraph (b) of this
section If he submits as a part of his
application for primacy, an appropriate
plan for casing and cementing of
existing, newly converted, and newly
drilled wells In existing fields, and the
Administrator approves the plan.
(I) Appropriate logs and other tests
shall be conducted during the drilling
and construction of new Class B wells.
A descriptive report interpreting the
results of these logs and tests shall be
prepared by a qualified log analyst and
submitted to the Director. At a
minimum, these logs and tests shall
include:
(1) Deviation checks on all holes
constructed by first drilling a pilot hole
and then enlarging the pilot hcle, by
reaming or another method. Such checks
8hall be at sufficiently frequent intervals
to assure that vertical avenues for fluid
movement In the form of diverging holes
are not created during drilling.
(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
constrtction of the well progresses. In
determining which logs and tests shall
be required the following shall be
considered by the Director in setting
logg .r4 and testing requirements:
(i) For surfade casing Intended to
protect undergrcund sources of drinldng
waten
(A) Resistivity, spontaneous potential,
and caliper logs before the casing is
Installed; and -
(B) A cement bond, temperature, or
density log after the casing is set and
cemerted.
(Ii) For Intermediate and long strings
of casing intended to facilitate injection:
(A) Resistivity, spontaneous potential,
porosity, and gamma ray logs before the
casing is installed;
(B) Fracture finder logs; and
(C) A cement bond, temperature, or
density log after the casing is set and
cemented.
(g) At a minimum, the following
Information concerning the injection
formation shall be determined or
calculated for new Class II wells:
(1) Fluid pressure;
(2) Temperature;
(3) Fracture pressure:
(4) Other physical and chemical
characteristics of the injection zone; and
(5) Physical and chemical
characteristics of the formation fluids.
146.23 OperatIng, monitoring, and
reporting requirements.
(a) Operating Requirements.
Operating requirements shall, at a
minimum, specify that:
(1) Except during well stimulation for
enhanced recovery wells, Injection
pressure at the wellhead shall 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. In no case, shall injection
pressure initiate fractures In the
confining zone or cause the movement
of injection or formation fluids Into an
underground source of drinking water.
(2) Injection between the outermost
casing protecting underground sources
of drinking water and the well bore shall
be prohibited.
(b) Monitoring Requirements.
Monitoring requirements shall, at a
minimum, include:
(1) Monitoring of the nature of
injected fluids at time intervals
sufficiently frequent to yield data
representative of their characteristics;
(2) Monitoring of injection pressure,
flow rate, and cumulative volume at
least with the following frequencies:
(i) Weekly for produced fluid disposal
operations; -
(ii) Monthly for enhanced recovery
operations:
(iii) Daily during the injection of liquid
hydrocarbons and injection for
withdrawal of stored hydrocarbons: and
(iv) Daily during the injection phase of
cyclic steam operations:
(3) A demonstration of mechanical
Integrity pursuant to 146.08 at least
once every five years during the life of
the injection well:
(4) Maintenance of the results of all
monitoring until the next permit review
(see 40 CFR 122.42(e)); and
(5) Hydrocarbon storage and
enhanced recovery may be monitored
on a field or project basis rather than on
an individual well basis by manifold
monitoring. Manifold monitoring may be
used In cases of facilities consisting of
more than one Injection well, operating
with a common manifold. Separate
monitoring systems for each well are not
required provided the owner/operator
demonstrates that manifold monitoring
is comparable to individual well
monitoring.
(c) Reporting Requirements.
(1) Reporting requirements shall, at a
minimum include an annual report to the
Director summarizing the results of the
monitoring required under paragraph (b)
of this section. Previously submitted
Information may be included by
reference. —
(2) Owners or operators of
hydrocarbon storage and enhanced
recovery projects may report on a field
or project basis rather than an
individual well basis where manifold
monitoring Is used.
146.24 informatIon to be considered by
the director.
‘1 his section sets forth the information
which must be considered by the
Dti%ctor in authorizing Class II 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, readily available to if
Director (for example, In the permIttin
agency’s files) and sufficiently Identifieca
to be retrieved. In cases where EPA
Issues the permit, all the information In
this Section Is to be submitted to the
Administrator.
(a) Prior to the Issuance of a permit for
an existing Class II well to operate or
the construction or conversion of a new
Class II well the Director shall consider
the following:
(1) InformatIon required in 40 CFR
122.4 and 122.38(c);
(2) A map showing the injection
well(s) 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 and water
wells. The map should also show faults,
If known or suspected. Only wells of
public record are required to be
included or. this map. This requirement
does not apply to existing Class II wells;
and
(3) A tabulation of data on all wells
within the area of review which
penetrate the proposed injection 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
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Federal Register I Vol. 45, No. 123 1 Tuesday, June 24, 1980 I Rules and Regulations
4 5u9
additional Information the Director may
require. This requirement does not apply.
to existing Class U wells.
(4) Proposed operating data:
(I) Average and maximum daily rate
and volume of fluids to be injected;
(Ii) Average and maXimum injection
pressure; and
(lii) Source, end an analysis of the
chemical, physical, radiological and
biological characteristics of the injection
fluid;
15) Appropriate geological data on the
pjectlon zone and confining zones
Including lithologic description.
geological name, thickness, depth and
lateral extent;
(6) Geologic name, lateral extent and
depth to top and bottom of all
underground sources of drinking water
which may be affected by the Injection;
(7) Engineering drawings of the
surface and subsurface construction
details of the system:
(8) Proposed formation testing
program;
(9) Proposed stimulation program;
(10) Proposed injection procedure:
(11) Contingency plans to cope with
all shut-ins or well failures so as to
prevenl migration of contaminating
fluids Into any underground source of
drinking water;
(12) Plans for meeting the monitoring
requirements of § 140.23(b);
(13) In the case of new Injection wells,
the corrective action proposed to be
taken by the applicant under 40 CFR
122.44:
(14) A certificate thai the applicant
has assured, through a performance
bond or other appropriate means, the
resources necessary to close, plug or
abandon the well as required by 40 CFR
122.42(g).
(b) Prior to granting approval for the
operation of a Class II well the Director
shall coisider the following information:
(1) All available logging and testing
program data on the well;
(2) A demonatration of mechanical
integrity pursuant to § 146.08:
(3) The actual operating data;
(4) The results of the formation testing
program:
(5) The actual injection procedure;
and
(6) For new wells the status of
corrective action on defective wells in
the area of review.
(c) Prior to granting approval for the
plugging and abandonment of a Class U
well the Director shall consider the
following Informatloru
(1) The type, and number of plugs to
be used;
(2) The placement of each plug
icluding the elevation of top and
oottom;
(3) The type, grade. and quantity of
cement to be used
(4) The method of placement of the
plugs: and
(5) The procedure to be used to meet
the requirements of § 148.lOLc).
§ 146.25 Mid-course evaluation
requirements.
(a) In compliance with 40 CFR
122.18(c)(4)(C)(ii) the data to be
submitted on each new Class H permit
atsix months Intervals during the first
two years of operation of the State
program shall at a minimum include the -
following
(1) The data required in § 148.24(a)(1):
(2) The data required hi § 146.24(a)(3)
‘Including, under location, the distance
and direction from the Injection well:
(3) The depth to the top and bottom of
any USDW:
(4) The distance to the nearest down-
gradient water upply well;
(5) A description of the geology and
hydrology of the area:
(6) The construction characteristics of
the weth
(7) The corrective action proposed as
well as that performed; and
(8) Any reporting to the Director under
§ 122.41(d).
(b) The Director shall also submit the
type and results of all Mechanical
Integrity tests reported on existing wells
and new (conversion only) wells during.
the first two years of operation.
(c) The Director shall require a
temperature log or noise log, on a -
sample of Class II wells in cases where
operators submitted cementing records
to meet the requirement of § 146.08(c).
The wells to be tested shall be chosen
by a formal random selection procedure.
The sampling shall be done on a field or
pool basis and be statistically
representative of the wells in that field
or pool. At a minimum, the sample size
for each State shall be 100 wells or 5
percent of the number of Class II
injection wells In the State whichever is
smaller. At least half of the wells tested
must be existing wells.
Subpart D—Crlterla and Standards
Applicable to Class Ill Wells
§ 146.31 Appilcablilty.
This subpart establishes criteria and
standards for underground Injection
control programs to regulate Class UI
wells.
* 146.32 Construction requirements.
(a) All new Class UI wells shall be
cased and cemented to prevent the
migration of fluids into or between
underground sources of drinking water.
The casing and cement used in the
construction of each newly drilled well
shall be designed for the life expectancy
of the well. In determining and
specifying casing and cementing
requirements, the following factors shall
be considered:
(1) Depth to the injection zona:
(2) Injection pressure, external
pressure, intei ial pressure, axial
loading. etc.;
(3) Hole size;
(4) Size and grade of all casing strings
(wall thickness, diameter, nominal
weight, length, joint specification. and
construction material):
(5) Corrosiveness of injected fluids
and formation fluids;
(6) Lithology of injection and confining
zones; and
(7) Type and grade of cement.
(b) Appropriate logs and other tests
shall be conducted during the drilling
and construction of new Class Ill wells.
A descriptive report interpreting the
results of such logs and tests shall be
prepared by a qualified log analyst and
submitted to the Director. The logs and
tests appropriate to each type of Class
Ill well shall be determined based on
the intended function, depth,
construction and other characteristics of
the well, availability of similar data in
the area of the drilling site and the need
for additional information that may
arise from time to time as the
construction of the well progresses. At a
minimum, such loss and tests shall
include deviation checks conducted on
all holes where pilot holes and reaming
are used, at sufficiently frequent -
intervals to assure that vertical avenues
for fluid migration in the form of
diverging holes are not created 4uring
drilling.
(c) Where the injection zone Is a
water bearing formation, the following
information concerning the Injection
zone shall be determined or calculated
for new Class UI wells:
(1) Fluid pressure;
(2) Temperature:
(3) Fracture pressure:
(4) Other physical and chemical
characteristics of the injection zone:
(5) Physical and chemical
characteristics of the fOrmation fluids;
and
(6) Compatibility of injected fluids
with formation fluids.
(d) Where the iniection formation is
not a water bearing formatic.n, the
Information in paragraph (c)(3) of this
section must be submitted.
(e) Where injection is into a formation
which contains water with less than
10,000 mg/I TDS monitoring wells shall
be completed Into the injection zone and
into ny underground sources of
drinking water above the injection zone
which could be affected by the mining
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operation. These wells shall be located
in such a fashion as to detect any
excursion of injection fluids, process by-
products. or formation fluids outside the
- mining area or-zone. If the operation
may be affected by subsidence or
catestroph:c collapse the monitoring
wells shall be located so that they will
not be physically affected.
(f) Where injection is into a formation
which does not contain water with less -
than 10,000 mg/I TDS, no monitoring
wells are necessary in the injection
stratum.
(g) Where the Injection wells
penetrate an USDW in an area subject
to subsidence or catastrophic collapse
an adequate number of monitoring wells
shall be completed into the USDW to
detect any movement of injected fluids.
process by-products or formation fluids
Into the USDW. The monitoring wells
shall be located outside the physical
Influence of the subsidence or
catastrophic collapse.
(h) In determining the number,
location, construction and frequency of
monitoring of the monitoring wells the
following criteria shall be considered:
(1) The population relying on the
USDW affected or potentially effected
by the injection operation;
(2) The proximity of the injection
operation to points of withdrawal of
drinking water:
(3) The local geology and hydrology;
(4) The operating pressures and
whether a negative pressure gradient Is
being maintained;
(5) The toxicity and volume of the
Injected fluid, the formation water, and
the process by-products; and
(6) The injection well density.
146.33 Operating, monitoring, and
reporting requirements.
(a) Opera! L’tg Requirements.
Operating requirements prescribed
shall, at a minimum, specify that:
(1) Injection pressure at the welihead
shall 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, initiate fractures in the
confining zone or cause the migration of
injection or formation fluids into an
underground source of drinking vater’
and
(2) Injection between the outermost
casing protecting underground sources
of drinking water and the well bore is
prohibited.
(b) Monitoring Requirements.
Monitoring requirements shall, at a
minimum, specify:
(1) The analyses of the physical and
chemical characteristics of the injected
fluid with sufficient frequency to yield
representative data on its
characteristics;
(2) Installation and use of continuous
recording devices to monitor the
injection pressure, flow rate and volume;
(3) Demonstration of mechanical
Integrity pursuant to § 146.08 at least
once every five years during the life of
the well for salt solution mining and
geothermal wells only;
(4) Weekly monitoring of fluid level
and the parameters chosen to measure
water quality In the injection zone; and
(5) Quarterly monitoring of wells
adjacent to the Injection site to detect
any migration from the injection zone
Into an USDW.
(6) All Class ill wells may be
monitored on a field or project basis
rather than an Individual well basis by
manifold monitoring. Manifold
monitoring may be used in cases of
facilities consisting of more than one
injection well, operating with a common
manifold. Separate monitoring systems
for each well are not required provided
the owner/operator demonstrates that
manifold monitoring is comparable to
individual well monitoring.
(c) Reporting Requirements. Reporting
requirements shall, at a minimum.
Include:
(1) Quarterly reporting to the Director
on required monitoring’,
(2) Results of mechanical Integrity and
any other periodic test required by the
Director reported with the first regular
quarterly report after the completion of
the test; and
(3) Monitoring may be reported on a
project or field basis rather than
individual well basis where manifold
monitoring Is used.
148.34 Information to be considered by -
the Director.
This section sets forth the Information
which must be considered by the
Director in authorizing Class ill 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, readily available to the
Director (for examj,le, in the permitting
agency’s files) and sufficiently identified
to be retrieved. In cases where EPA
issues the permit, all the information In
this section must be submitted to the
Administrator.
(a) Prior to the issuance of a permit for
an existing Class III well or area to
operate or the construction of a new
Class III well the Director shall consider
the following:
(1) Information required In 40 CFR
122.4 and 122.38(c);
(2) A map showing the Injection
well(s) for which the permit is sought
and the applicable area of review.
Within the area of review, the map mus’
show the number, or name, and locatior
of all producing wells. Injection wells,
abandoned wells, dry holes, surface
bodies of water, mines (surface and
subsurface), quarries, public water
systems, water wells and other pertinent
surface features including residences
end roads. The map should also show -
faults If known or suspected. Only
Information of public record is required
to be included on this map;
(3] A tabulation of data on all wells
within the area of review which
penetrate the proposed injection zone.
Such data shall include a description of
each well’s type, construction, date
drilled, location, depth, record of
plugging and completion, and any
additional information the Director may
require;
(4) Maps and cross sections indicating
the 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 every underground source of
drinking water which may be affected
by the proposed injection;
(5) Maps and cross sections detailing
the geologic structure of the local area;
(6) Generalized map and cross
sections illustrating the regiona’ geolo ,
setting;
(7) Proposed operating data:
(I) Average and maximum daily rate
and volume of fluid to be injected:
(ii) Average and maximum Injection
pressur and -
(lii) Source and an analysis of the
chemical. physical, biological and
radiological characteristics of the
injection fluid.
(8) Proposed formation testing
program to obtain an analysis of the
physical, chemical and radiological
characteristics of the receiving
formation;
(9) Proposed-stimulation program;
(10) Proposed injection procedure;
(11) Engineering drawings of the
surface and subsurface construction
details of the system;
(12) Plans (Including maps) for
meeting the monitoring requirements of
I 146.33(b);
(13) Expected changes In pressure,
native fluid displacement, direction of
movement of injection fluid;
(14) Contingency plans to cope with
all shut-Ins or well faijures so as to
prevent the migration of contaminath’-
fluids into underground sources of
drinking water:
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Federal Register I Vol. 45, No. 123 I Tuesday, June 24, 1980 I Rules and Regulations
42511
(15) A certificate that the applicant
has assured, through a performance
bond or other appropriate means, the
resources necessary to close, plug or
abandon the well as required by 40 CFR
122.42(9); and
(16) The corrective action proposed to
be taken under 40 CFR 122.44.
(b) Prior to granting approval for the
operation of a Class Ill well the Director
shall consider the following information:
(1) All available logging and testing
data on the well;
(2) A satisfactory demonstration of
mechanical integrity for all new wells
and for all existing salt solution and
geothermal wells pursuant to § 146.08.
(3) The actual operating data;
• (4) The results of the formation testing
program:
(5) The actual injection procedures:
and
(6) The status of corrective action on
defective wells in the area of review.
(c) Prior to granting approval for the
plugging and abandonment of a Class Ill
well the Director shall consider the
following information:
(1) The type and number of plugs to be
used;
(2) The placement of each plug
Including the elevation of the top and
bottom:
(3) The type, grade and quantity of
cement to be usedr
(4) The method of placement of the
plugs, and
(5) The procedure to be used to meet
the requirements of § 146.10(c).
§ 146.35 Mid-course evaluation
requirements.
In compliance with 40 CFR
122.18(c)(4)(C)(ii) the data to be
submitted on each Class III permit at six
month intervals during the first two
years of operation of the State program
shall at a minimum include the
following:
(a) The data requited In § 146.14(a)(i):
(b) The data required in § 146.34(a)(3)
including, under location, the distance
and direction from the injection well;
(c) The depth to the top and bottom of
any USDW;
(d) The distance to the nearest down-
gradient water supply well:
(e A description of the geology and
hydrology of the area:
(f) The construction characteristics of
the well;
(g) The type and results of all
mechanical irnegrlty tests reported to
the Director during the first two years of
the program: and
(h) Any reporting to the Director
under § 122.41(d).
Subpart E—Criterla and Standardi
- Applicable to Class IV Injection Wells
[ Reserved]
Subpart F—Criteria and Standards
ApplIcable to Class V Injection Wells
§ 146.51 ApplIcabIlIty.
This subpart sets forth Criteria and
Standards for underground injection
control programs to regulate all injection
not regulated In Subparts B, C, D, and E.
(a) Generally, wells covered by this
Subpart inject non-hazardous fluids into
or above formations that contain
underground sources of drinking water.
It includes all wells listed In § 146,05(e)
but is not limited to those types of
injection wells.
(b) It also Includes wells not covered
in Class N that inject radioactive
materials listed In 10 CFR Part 20.
Appendix B. Table II, Column 2. and
injection wells used to store
hydrocarbons which are gases at
• standard temperature and pressure.
§ 146.52 Inventory and Assessment.
(a) The owner or operator of any
Class V well shall, within one year of
the effective date of an underground
injection control program, notify the
Director of the existence of’ any well
meeting the definitions of Class V under
his control, and submit the inventory
Information required in 40 CFR
122.37(c)(1).
(b) Within three (3) years of approval
of the State program the Director shall
complete and submit to EPA a report
containing:
(1) The information on the
construction features of Class V wells,
and the nature and volume of the
injected fluids;
(2) An assessment of the
contamination potential of the Class V
wells using hydrogeological data
available to the State;
(3) An assessment of the available
corrective alternatives where
appropriate and their environmental and
economic consequences; and
(4) Recommendations both for the
most appropriate regulatory approaches
and for remedial actions where
appropriate.
PART 122—MARINE SANITATION
DEVICE STANDARD
2.40 CFR is amended by revising Part
122 as follows:
§ 122.18 (Amended I
a. Section 122.18 Is amended by
deleting paragraph (c)(4)(ii) and
substituting in lieu thereof the following:
(c) ‘
(4) •
‘(Ii) In addition to complyingwith the
requirements of paragraph (c)(4)(i) of
this section. the Director shall provide
the Administrator, ott 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.
§ 122.37 [ Amended]
b. Section 122.37 is amended by
deleting paragraph (a) and substituting
in lieu therefore the following:
(a) Types of underground injection
which may be authorized by nile. The
Director may authorize underground
injection by rule as outlined in this
paragraph.
(1) Injection into exisiting Class I, II
(except existing enhanced recovery and
hydrocarbon storage), and III wells may
be authorized by rule for periods up to
five years from the date of approval or
promulgation of the UIC program. All
such wells must be issued permits
within the five year period.
(i) Rules under paragraph (a)(1) of this
section shall specify that the
authorization to inject shall exprire:
(A) Upon the effective date of the
permit or permit denial, If a permit
application has been filed In a timely
manner as specified in § 122.38(b)(1);
(B) If a permit application has not
been filed In a timely manner as
specified in § 122.38(b)(1): or
(C) Unless a complete permit
application is pending. not later than
five years after the approval or
promulgation of the UIC program.
(ii) Nctwithstanding the prohibition in
§ 122.33, rules under paragraph (a)(1) of
this section authorizing Class II and
Class III operations or projects in
existing injection fields may allow them
to continue normal operations until
permitted, Including construction and
operation of new Injection wells as part
of the operation, provided the owner or
operator maintains compliance with all
applicable requirements.
(iii) Rules under paragraph (a)(1) of
this section shall apply, and ensure
compliance no later than one year after
authorization by such rules, with the
following requirements applicable to
permlttees, except the terms “permit”
and “permittee” shall be read to include
rules and those authorized by rule:
(A) Section 122.41(a}—(exemption
from ruin where authorized by
temporary permits):
(B) Section 122.41(b)—(retention of
records):
(C) Section 122.41(d)—(reportlng
wIthin 24 hours):
(D) Section 122.41(e)—(180 days
notice of abandonment);
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42512 Federal RegIster I Vol. 45, No. 123 / Tuesday, June 24. 1980 I Rules and Regulattons
(E) Sections 122.42(f) and 148.10—
(plugging and abandonment);
(F) Operating, monitoring, and
reporting requirements (except
mechanical Integrity) under § 146.13
(Class I), § 146.23 (Class II) and § 146.33
(Class Ill);
(C) Section 122.42Cg)—(financial
responsibility); and
(H) Section 122.45(c)—(requlrements
for wells injecting hazardous waste)
applicable to class I wells injecting
hazardous waste only.
(2) Injection into existing Class II
enhanced recovery and hydrocarbon
storage wells may be authorized by rule
for the life of the well or project.
(I) Such rules promulgated by the
Director ehal apply the following
requirements applicable to Class II
permittees, except that the terms
“permit” and “permfttee” shall be read
to include rules and those authorized by
rule:
(A) Section 122.41(a)—(exexnption
from rule where authorized by
temporary permit);
(B) Section 122.41(b)—(retentlon of
recordr);
(C) Section 122.41 (d)—(reportfng
within 24 hours);
(D) Section 122.41(e)—(180 days
notice of abandonment);
(E) Sections 122.42(f) and 146.10—
(plugging and abandonment);
(F) Section 122.42(g)—(financial
responsibility);
(C) Section 148.08—(mechanical
Integrity);
(H) Section 146.22—(construction
requirements); and
(1) Seclion 148.23—(operating,
monitoring and reporting requirements).
(ii) Such rules shall establish
compliance schedules for achieving the
construction requirements no later than
three years and other requirements no
later than one year after authorization.
(31 Injection into existing Class IV
wells injecting directly into USDWs may
be authorized for a period not to exceed
aix months after approval or
promulgation of the UIC program. Such
rules shall apply the requirements of
§ 122.45(c). . - -
(4) Injection into Class V wells may be
authorized by rule until requirements
under future regulations become
applicable.
C. Section 122.37 is further amended
by deleting paragraph (b) and ie-
lettering paragraphs (c). (d) and (e) as
paragraphs (b), (c) and (d).
d Section. 122.27 is further amended
by deleting new paragraph (c)(1) and
substituting in lieu thereof the following:
(1) Contents. As-part of the inventory,
the Director shall require at least the
following information:
(I) Facility name and location
(ii) Name and address of legal contact;
(iii) Ownership of facility:
(iv) Nature and .type of in ection wells:
and
(v) Operating status of injection wells.
(Note.—This information is requested on
national form “Inventory of Injection Wells,”
0MB No. 158-R0170).
I 122.41 [ Amended]
e. Section 122.41 Is amended by
adding a new sentence at the end of
paragraph (e) as follows:
(e)’ • Withthe notice, the
permittee shall submit a revised
plugging and abandonment plan
updated as appropriate in compliance
with * 122.42(1) and § 148.10.
§ 122.11 (Amended]
f. Section 122.17(f) is amended by
adding a new paragraph (3) as follows:
(f)* • I
(3) Amend a plugging and
abandonment plan which has been
updated under § 122.41(e).
FR D -I Flied e-3-1 U amJ
WNQ cON 555041-N
(c) *
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8
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Thursday
February 5, 1981
Part II
Environmenta
Protection Agency
Hazardous Waste Management System;
Standards Applicable to Owners and
Operators of Treatment, Storage, and
Disposal Facilities; and Permit Program
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I
.1 1 &
Federal Register I Vol. 46. No. 24 / Thursday. February 5. 1981 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122, 200 and 264
RL 1724-al’
h 0 ardous Waste Management
System; Standards Applicable to
Owners and Operators of Hazardous
Waste Treatment, Storage and
Disposal Facilities and EPA
Administered Permit Programs
AGENCY: Environmental Protection
,Agency.
ACTION: Reproposal of Proposed Rule
and Proposed Amendments to Rule
SUMMARY: EPA is required by the
Resource Conservation and Recovery
Act (RCRA) to issue standards
applicable to owners and operators of
hazardous waste management facilities.
These standards are to be used in
issuing permits for facilities used to
store, treat, or dispose of hazardous
waste. EPA has issued many of its
permitting standards, but has not yet
promulgated permitting standards for
land disposal facilities. It has proposed
such standards and has subsequently
published a supplemental notice of
proposed rulemaking. Based on its own
analysis and review of public comments
received on these previous rulemaking
proposals, EPA has reached a
‘usion about the type and form of
•isposal facility permitting
ards that are necessary but
beneves these standards need to be
reproposed.
Therefore. EPA is today reproposlng
permitting standards applicable to
owners and operators of hazardous
waste land disposal facilities, and is
proposing companion informational and
procedural requirements for permit
applications and other related rules.
DATES: Comments are due on or before
[ 100 days afterpublicationj. Four public
hearings, one in Washington, D.C. and
one in each of three other major cities,
will be held during June 1981. A notice
giving the date, time, place and other
particulars will be published In the
Federal Register 90 days prior to the first
of these hearings.
Comments are also due on certain
related draft Technical Resource
Documents on or before 190 days after
publication) in accordance with the
announced availability of the3e
documents in 45 FR 82964—02965,
December 17. 1930.
ADDRESSES:.COrnmcnts should be
addressed to Deborah Vi!lari, Docket
Clerk, Office of Solid Waste (WH—562),
Environmontal Pro ectic:i Agency.
401 M Street SW., Washington. D C.
2 460. Telephone (202) 755—9173.
Comments on today’s proposed rule
should identify the regulatory docket as
follows: “Section 3004 Permitting
Standards for Land Disposal Facilities.”
Comments on the Technical Resource
Documents should be submitted
separately and should identify the
document title.
The public docket for this rulemaking
is available at Room 2711B. U.S.
Environmental Protection Agency. 401 M
St reet SW.. Washington, D C. 20460 and
is available for reviewing from 9:00 a.m.
to 4:00 p.m., Monday through Friday,
excluding holidays.
FOR FURThER INFORMATION CONTACT:
Robert B. Taylor, Acting Branch Chief,
Land Disposal Branch, Office of Solid
Waste [ WH—564]. U S. Environmental
Protection Agency, 401 M Street SW..
Washington. D.C. 20460, Telephone (202)
755—9120.
SUPPLEMENTARY INFORMATION:
1. Authority
These regulations are issued under the
authority of Sections 1006, 2002(a), 3001
through 3007, 3010, and 7004 of the Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976, as amended, 42 U.S.C. 6901
et seq., sections 6905. 6912(a). 6924. and
6925: and, with respect to “well
injection,” under the authority of
Sections 1421, 1422, 1423. and 1424 of the
Safe Drinking Water Act, as amended
by the Safe Drinking Water Act
Amendments of 1977, 42 U.S.C. 300f et
seq. sections 300h, 300h—1. 300h—2 and
300h—3.
II. Introduction
- Under Subtitle C of the Resource
Conservation and Recovery Act
(RCRA). as amended, EPA is required to
issue regulctions setting forth a
complete “cradle-to-grave” system for
the management of hazardous waste.
These regulations must include (1) a
regulation to identify hazardous wastes
that are to be regulated, (2) standards
applicable to generators and
transporters of hazardous waste, (3)
standards applicable to owners and
operators of hazardous waste treatment,
storage and disposal facilities. (4)
regulations governing the issuance of
permits to owners and operators of
hazardous waste treatment, storage and
disposal facilities, and (5) guidelines
governing the authorizing of States to
implement and enforce a State
hazardous waste management program
in lieu of the Federal program. Because
of the enormity and compk’xity of th:s
t,4sk. EPA h.ts ek.ted to issue the,i’
regulations in phases (see 45 FR 33086
and 45 FR 33156, May 19, 1980). On
February 26. 1900. EPA promulgated
standards for generators and
transporters of hazardous wastes in 40
CFR Parts 262 and 263. These standards
were re-published with technical
amendments on May 19, 1980 (see 45 FR
33140-33152). On May 19. 1980, EPA
promulgated several regulations: a
general regulation relating to the several
resulations herein discussed [ 40 CFR
Part 260), a regulation identifying
hazardous waste (40 CFR Part 261);
regulations governing the issuance of
permits and the authorization of States
to implement a hazardous waste
program (40 CFR Parts -122 through 124):
interim status standards applicable to
owners and operators of “existing”
hazardous waste treatment, storage and
disposal facilities (40 CFR Part 265); and
administrative, non-technical standards
that are to be used in issuing permits to
owners and operators of treatment.
storage and disposal facilities (40 CFR
Part 264)—see 45 FR 33066—33588.
Together with the February 20, 1980
regulations, these regulations
constituted “Phase I” of EPA’s phased
development of RCRA Subtitle C
regulations. Several proposed
amendments were also published on
May 19, 1980 and a number of final,
interim final and proposed amendments
to the above cited regulations have been
promulgated or published since May 19.
1980.
The Phase I regulations promulgated
on February 26 and May 19, 1980
became effective on November 19, 1980
and put into operaticn major elements of
the hazardous waste management
system authorized and mandated by
Subtitle C of RCRA. Among other things.
on and since November 19, 1980.
generators have been r quired to
identify the hazardous wastes that they
produce and to comply with specified
requirements, particularly with respect
to hazardous wastes that they ship off-
siti’for treatment, storage or disposal;
transporters have been required to meet
specified requirements pertaining to the
off-site shipment of hazardous wastes.
and owners and operators of “existing”
hazardous waste treatment, storage and
disposal facilities have been required to
comply with the interim status
standards of Part 265. In addition, the
process of authorizing States to
implement Phase I hazardous waste
programs—programs covering those
activities governed by the February 20
and May 19 regulations—has been
initiated and has already resulted in
several interim authorizations and
substantial progress toward many more.
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11127
The principal standards missing in the
May 19. 1980 regulations were the
technical standards In Part 284 to be
used in issuing pemilta to hazardous
waste management facilities and the
companion requirements in Part 122
pertaining to Part B permit applicatic ’ns.
in the preamble to the Part 264 and 285
standards promulgated on May 19, 1980
(see 45 FR 33150). the Agency indicated
that these “Phase II ” standards would
be promulgated by the end of 1980.
Toward this commitment, EPA
promulgated a portion of these Phase II
standards on January 12, 1981 (see 46 FR
2802—2892). That promulgation included
additional general facility si ., ds
(principally location stan’ itrdsj in
Subpart B of Part 264; clizture and post-
closure standards in Suhpart C;
financial responsibility :tandards in
Subpart H; permitting siandards for
storing hazardous wastes in containers
in Subpart 1; and permitting standards
for storing or treating hazardous wastes
in tanks, surface impoundments, and
waste piles in Subparts J, 1< and L In
addition, conforming changes to Part
122, principally the related information
requirements for Part B permit
applications, were promulgated at that
publication. EPA has also promulgated
permitting standards for incinerators in
Subpart 0 of Part 264 and related Part B
permit application requirements in Part
122 (it also has proposed addftonal
rules for incinerators).
The effect of issuing these two sets of
permitting standards is to supply major
elements missing from the M: . , 19, 1980
regulations and to enable EPA to begin
processing permits for facilities or
portions of facilities that store
hazardous wastes in containers, treat or
store hazardous wastes in tanks, surface
impoundments or piles or treat
hazardous wastes iii incinaratcbrs. This
leaves standards fot land disposal
facilities—surface impoundmc.nts and
waste piles which dispose of h zardous
wastes in lieu of or in addition to storing
or treating of such wastes (Subparts K
and U. land treatment facilities (Subpart
M). landfills (Subpart N). under rcund
injc’r.tian facibties (Subpart R), and
undergi ound seepage facilities (Subpart
S)—.-tngcther with ground water
monitoring standards for land chsposul
far.ilities (Subpart F) and ridated bind
disposal standards in Su ;parts B and T
as the principal parts of Part 264 that
renmin to be promulgated.’ As
‘A itt, pu inittaip stan,ijrd’. Fur chi,,: i
‘t .,t and b :olv7Ica! trcatm. ’rt cod for t ’I,’im.I t
tlc,,tm,’nt [ other than incinrTutlnnt ne ’i’ to
pro .i ,ui 5 .tied. but issuance of perni ts i i , th, ’ .L.
facilities cm, be based on the st.ind,urt1 of S,it ,p..rts
I I C aiict I. of Part 264 until the’,e qi,,nd.um;”i .ar ,’
pr ,.miilgnIc ,t -
explained herein, EPA is not ready to
promulgate these standards and instead,
believes it is necessary to re-propose
these standards before promulgating
them. This action provides this
reproposo I.
The development of permitting
standards for land disposal facilities has
been a difficult task for the Agency. On
December 18. 1078, it proposed land
disposal standards together with other
standards (see 43 FR 58948) and invited
public comments. Since that time and
through September1980, the Agency
assessed the comments received and.
more importantly, fully re-examined the
basis and purpose of such standards.
this effort resulted in the publication of
Supplemental Notice of Proposed
Rulemaking on October 8, 1980 (see 45
FR 68816—68823). In that notice, EPA
explained that it has examined four
alternative types of land disposal
standards and was inclined to develop
standards that combined various
elements of all four alternatives but
which primarily would be based on non-
numerical health and environmental
standards—standards which the Agency
often has called “BEJ” (best engineering
judgment) standards. The Agency
invited and received public comments
on the October 8, 1980 notice.
This action reflects a consideration of
the comments received on the October 8,
1980 notice together with a
considcruti.z ’n of the comments received
on the proposed rules of December 18,
1978. Based on these and other
considerations. EPA concluded that the
public interest would be better served
and more workable standards would be
developed if it took the extra tiir.e to re-
propose its permitting standards for land
disposal Iricilities. The proposed
standards that the Agency is publishing
today are substantially different than
those proposed in December 1978.
Additionally, these proposed standards
wore not delineated in full detail in the
October notice: rather only a broad
outline of these standards was
presented in that notice Thus, the public
has not had the opportunity to comment
on the specifics of today’s proposed
standards and EPA has not had the
benefit of such comments For these
reasons the Agency believes a re-
proposrll is justified and imperative
In re-proposing these standards. EPA
full recognizes that permanent
regulation of hazardous waste land
dtsposal faulitics. using RCRA Subtitle
C pernilts, will necessarily be delayed
for perhaps a year. Although it takes this
action with great reluctance, the Agency
firmly behe es that the very difficult
policy and technical issues
encompassed in developing workable
and adequately protective land disposal
standards require a very careful and
deliberate development of these
standards. As will be discussed herein,
these standards govern the ultimate
disposition of hazardous wastes and.
therefore, these standards will have
long-term consequences (e.g.. whether
these wastes will present human health
and environmental hazards many years
after their disposal such as occurred at
Love Canal and other land disposal
sites). To err in the standards that are
promulga ted for hazardous waste land
disposal facilities could have serious.
long-term consequences. Thus, the
Agency deems it necessary to take
additional time to develop appropriate
land disposal standards.
Pending the effective date of final or
Interim final land disposal standards,
(about 18 months from now). EPA will
be precluded from issuing RCRA
Subtitle C permits for land disposal
facilities or portions of facilities engaged
in land disposal (as noted above, with
the promulgation of standards on and
since January 12, 1981, EPA will be able
to proceed with the issuance of permits
for storage, incineration and other
treatment facilities or portions thereof).
Moreover, because EPA’s Part 122
regulations prohibit construction and
operation of new hazardous waste land
disposal facilities without a permit, this
would prevent new hazardous waste
land disposal facilities from being built
for at least 18 months. 2 To deal with this
problem. EPA will soon promulgate
temporary permjtting standards for new
land disposal facilities which essentially
will allow permitting of such lacilities to
proceed until permanent standards can
be promulgated and can take effect
With respect to existing land disposal
facilities, EPA will have to await final or
interim final rules to proceed with
per mitting. However, the interim status
standards of Part 285 will apply to these
facilities and in many cases, more
stringent St.t standards, including
standards for issuing State permits, will
epply. Additionally, where any existing
facility is causing an imminent and
substantial hazard, the Agency will be
able to lake appropriate enforcement or
clean-up action under other authorities
inclndir.g Sect’ci ’ 7003 of RCRA ard the
recently enacted “Superfund” statute.
lii. The Problem Being Addressed
Land disposal of hazurdous w tste
constttutes placen’cnt of hazardous
g A rece,i arnandr. ,un’ to P.at i z r,:l.i ’ced the
puohihution of the coI,5t , ,.cIIun. without ii permit, of
net’. hazardous wuuIe nuinlguniL’r.I Fat uiutie other
than land duspus.it 1.uut ,ti,’s— i’u 4b lIt 2344,
Juunuu ,ry 0. ititul
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Federal Register / Vol. 46, No. 24 I Thursda Febru iry 5. 1981 / Proposed Rules
constituents in or on the land where
they are intended to remain forever. 5 A5
such, hazardous waste land dispusal
constitutes deliberate and direct
placement of hazardous was’e in the
‘ronment (e g.. in a landfill, a surface
undment or a land treatment
.ty). albeit in a confined segment of
the environment. This presents two
problems: (1) The waste and its
hazardous constituents may remain
hazardous for a long period of time (up
to hundreds of years) and, in some
cases, forever (e.g., toxic heavy metal
constituents) and (2) the waste or its
constituents and byproducts may
migrate from the confines of the land
disposal facility into the broader
environment.
Many hazardous wastes placed in
land disposal facilities will not degrade
to a point where they are no longer
hazardous, or will do so only very
slowly. Toxic heavy metals, for
example, will not degrade; although, in
certain cases, their ionic state may be
altered to make them more or less toxic
(e.g. converting the hexavalent form of
chromium to the trivalent). Toxic
organic constituents may degrade in the
anaerobic condition of a landfill, but this
degradation is usually slow (taking
ar.ywhere from a few years to 100 years
or more) and may not be complete.
leaving toxic degradation products.
Moreover, current scientific knowledge
about the degradation of hazardous
wastes placed in land disposal facilities
‘nperfect. For these two reasons, It is
assary to assume, at this time at
- 4st, that hazardous wastes and
hazardous constituents placed in a land
thsposal facility will remain hazardous
fur very long periods of time and
therefore vill remain a potential hazard
to human health and the environment
for very lor.g periods of time.
There is good thecratical and
empirir.al evidence that the hazardous
constituents which are placed in land
d.sposa! facilities very likely will
migrate from the facility into the broader
environment. This may occur several
years, even many decades, after
placement of the waste in the facility,
but data end scientific prediction
indicate that, in most cases, even with
the application of best available land
disposal technology, it will occur
eventually.
Natural water, frofn precipitation or
from other soirces (e.g.. groundwater)
t ill inevitably infiltrate into the facility
unless a water-tight containment system
Ptaccment of e ’:ch w aste Into OT on the land for
a finiie prnod with liutent to remove It for
h”hscquPr.I storegr ’. treatmrnt or da poiuaI wrndd be
coziaudrwd and re eIa rd eq ha,ardoiu waste
(e g.. landfill cover) is constructed and
perpewally maintained to pre ant such
intrusion. In addition, there inevitably
will be liquids within the wastes placed
in the facility (this is particularly true for
surface impnundmerts but also will be
true for landfill even with the
prohibition of disposal of bulk and
containerized liquid wastes) .Qnc n
the facility. sucI , water or liquid
generates leachate. princi Ijy_ y
s liibilizirig azar ous constituents in
the waste. Such leachate inevitably
leaks out of the facility and migrates
into the underlying soils and
groundwater. unless a containment
system (e.g.. a landfill or surface
impoundment liner and/or leachate
collection system) is constructed and
perpetually maintained. This process of
natural water infiltration or liquid
inclusion, leachate generation and
leachate migration into the environment
results in the discharge of hazardous
constituents into the broader
environment.
Although it is technically possible to
design and construct a land disposal
coz.tainment system consisting of an
impermeable liner and cover and a
leuchate collection system to interrupt
this process; EPA seriously questioned
whether such systems can be
maintained and made to operate
effectively and efficiently for long
periods of time, or perpetually where
this is required. Natural materials such
as very low permeability clay soils that
might be used for liners or covers are
not impermeable. They possess some
degree of prerneabihty that allows
infiltrating water or exfiltrating leachate
to slowly but inevitably migrate through
the material. Manmade impermeable
materials that might be used for liners or
covers (e g., membrane liners or other
materials) are subject to eventual
deterioration and although this might
not occur for 10, 20 or more years, it
eventually occurs and, when it does.
leachate will migrate out of the facility.
Additionally, these manmade
Impervious materials are subject to
physical rupture during both placement
and operation. When ruptured, they
obviously allow leakage of leachate
Finally, leachate collection systems
have some collection efficiency less
than 100 percent even when newly
constructed and, over time. may lose
efficiency by plugging and deterioration.
More important, however, to be
effective, they must be maintained and
operated and the leachate collected
must be treated or otherwise managed
as a hazardous waste. If leachate is
produced for a long period of time, then
the leachate collection and management
system must be operated fc,r ,i I
period of time. Therefore,
leaLbate collection is an essei t I
of a land disposal contuin en, s
then long-term maintenance a cI
operation of the collection s stt.:’, .. I
long-term management of thc’ ic, ’’
collected is imperative.
As discussed, man’s ability to p- .
generation and containment of L. ’.
has technical limitations. How ,-.
perhaps the more important lImitj .
are institutional limitations. Ci ‘i
hazardous wastes and hazardous
constituents may not degrade or
only degrade slowly—an assumptir’n
that must be made in most cesns—t .
potential to generate hazardous Ic.ir.)’,’,.
continues for very long periods of t.:r,
Given further that the technical
wherewithal to prevent leachate
generation and contain and treat any
leachate that is generated depends rnor
on maintenance and operation of
containment and treatment systems
than on the satisfactory design and
construction of such systems. the
institutional arrangements for long-term
maintenance arid operation of such
systems become extremely important
There is considerable doubt about
whether the owners and operators of
land disposal facilities can provide the
long-term maintenance and operation of
containment systems required to control
leachate generation and migrat :on and
confine hazardous wastes and
hazardous constituents to the cor.fineb
of the land disposal facility. The
requirements of Subparts C in both
Parts 284 and 265, require post-closure
care and maintenance of land disposal
ftcilities for at least 30 years. Although.
the regulations allow EPA to require
post-closure care and maintenance
required for periods greater than 30
years where necessary to protect humai
health and tbe environment, there will
clearly be some finite limit to the
extended time periods that can
reasonably and practicably be required
and complied with. 1130 years or some
longer required time period is not
sufficiently long to exceed the potential
for leachate generation and migration.
then only two options are available:
providing for some public body or other
institutional mechanism to assume
responsibility for continuing post-
closure care and maintenance, or
predicting and expecting control of
leachate generation and containment fc
only a finite period and basing the
issuance of land disposal permits on tht
eventual cessation of post-closure care
and maintenance and the inevitable
migration of leachate from the facility
into the broader environment. At the
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Federal Rc iamr I VoL 46, No. .4 I T mrsdny, l’i’bruarv , ii 81 / Propuseil hutes
11129
pivsi’nI tiiiie. few. if any, iflStiLLltIflflaI -
mechanisms exist for public assumption
of post closure care. ‘fhiis. F.PA believes
that the problem of inevitab’e leuchate
generation and migration .ind
concommitant finite ability to
technically and institutionally prevent
or control such leachate generation and
migration should be squarely faced and
dealt with in the development of lend
disposal standards
The potential for leachate generation
and migration into the broader
environment is not tho only long-term
problem associated with the land
disposal of hazardous wastes. Migration
of volatile hazardous constituents out of
the land disposal facility and into the
atmosphere also is possible in many
cases (e.g., the migration of volatile
carcinogenic constituents into the
basements of homes in the Love Canal
area). Generation arid migration of toxic
or explosive gases (e.g.. methane frem
the anaerobic biodegradation of organic
wastes) over a long period of time also
can be a problem. land disposal of
ignitdble or reactive wastes which have
not been pretreated can present a long-
term fire ur explosion potential, unless
or until such wastes degrade into non-
ignitable or non-reactive forms or are
other isa rendered non-ignitable or
non-reactive by leaching or other
actions. Finally, the mere existence of
hanardous wastes arid hazardous
constituents in or on the land can pose a
tong-term hazard in the event that future
land-use activities serve to expose these
hazardous wastes where humans can
come into direct and harmful contact
with them (as occurred also at Love
Canul) or where they are even more
readily transported into the broader
environment. As with leachate
generation and migration. man’s ability
to technically and institutionally
manage and control these long-term
problems is limited.
As discussed, the essence of the
problems faced in the regulation of the
land disposal of hazardous waste is the
inevitable long-term potential for the
wastes or their hazardous constitutents
to leak out of the facility. If it were
technically and institutionally possible
to contdin wastes and their constituents
in l.ind disDosal facilities forever or until
degradation mechanisms rendered them
no i.harardous. then the problem of
regulating such land disposal would be
comparatively simple and straight
foi urd It would entail development of
reasonably specific (but flexible) design
ird operating standards or.
alternatively. contairment performance
s:andardc specifying total containment
of harardous wastes and their
constituents withm the land disposal
facility forever or until degradation
niecha nisnis rendered them non-
hazardous, as the case may be.
Unfortunately, at the present time, it is
not technologically and institutionally
possible to contain wastes and
constituents forever or for the long time
periods that may be necessary to allow
adequate degradation to be achieved.
Moreover, if degradation of the
hazardousness of waste does, In tact.
occur, current state-of-knowledge does
not know what the degradation periods
are for most, if not all, hazardous wastes
and, therefore, does not know what
containment time periods to specify.
Consequently, the regulation of
hazardous waste land disposal must
proceed from the assumption that
migration of hazardous wastes and their
constituents and by-products from a
land disposal facility will inevitably
occur.
IV. Alternative Standards Considered
As discussed in the October 8, 1980
Supplemental Notice of Proposed
Rulemaking (see 45 FR 66816-66823),
EPA considered four fundamentally
different alternative land disposal
standards: (1) Facility design and
operating standards. (2) containment
standards, (3) specific (numerical) health
and environmental performance -
standards, and (4) non-specific (non-
numerical) health and environmental
performance standards. These same four
alternative standards, together with the
pu’ lic comments received on them (as
invited by the October 1980 notice) were
considered in developing today’s
proposed rule. Also considered were the
proposed land disposal standards of
Dece:nber 18. 1978, and the public
comments received on those proposed
standards.
A. Facility Design and Operating
Standards
The land disposal standards proposed
on December 18, 1978 (see § § 250.45—2,
250 45—3 and 250.45—5 at 43 FR 59005—
59014) were basically design and
operating standards (however,
§ § 250.42—1 250 42—2 end 250.42—3 of the
proposed rule, which provided
overriding standards to be used where
they were deemed necessary by the
permit writer, were basically non-
specific health and environmer.tal
performance standards). By specifying.
for example, detailed requirements for
liners. leachate collection systems and
final covers tor landfills. these desgn
and operating standards implicitly
specified a containment s steni capable
of minimizing leachate generation and
containing any leachate generated for a
finite time period. As pointed out in the
October 1980 notice, a major advantage
of these standards or ones like them is
that they give the regulated community
and the regulating agencies a clear idea
of what is required of’ hazardous waste
land disposal facilities. This advantage,
however, carries with it a major
drawback: such standards tend to be
rigid and inflexible making it difficult to
construct facilities to meet site-specific,
waste-specific conditions. They also
tend to inhibit application of emerging
technology or more efficient but equally
effective designs or operating
procedures. ‘I’his inflexibility was
criticized by many of the commenters on
the December 1976 proposed rule.
However, the more important negative
feature of design and operating
standards, which axe based on
containment, such as those proposed. is
that they only guarantee human health
and environmental protection for a finite
time period. Whereas this may be
aufficient for some hazardous wastes, it
may not be sufficient for many others
and may only serve to defer the day
when contaminated leachate migrates
from the facilities or when any of the
other environmental consequences of
land disposal occur. In light of the
discussion presented in Section 111.
above, EPA believes that. as basic
standards, design and operating
standards cannot assure health and
environmental protection in perpetuity.
Consequently, the AgencY is not today
proposing or reproposing design and
operating standards as the basic
standards for land disposal facilities. It
is, however, proposing certain design
and, particularly, certain operating
standards in Subparts F, K, L , M N, R, S
and T of Part 264. These standards.
which are discussed later in this -.
preamble, are those that the Agency
believes are necessary under any set of
alternative land disposal standards
because they are prerequisite to any
long-term control of land disposed
hazardous wastes.
B. ontoinment Standards
Because of public comments -
criticizing the ir.flexibility of the
December 1978 proposed design and
operating standards. EPA seriously
considered containment standards for
land disposal facilities. The standards
considered were essentially
performance standards which specified
that hazardous wastes and hazardous
consl!tucnts had to be contained for
some specified time (e.g., 100 years)
within the land disposal facility or
within a larger defined area (e.g., the
area under the property of the land
disposal facility) Although similar in
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Federal Register I Vol. 46, No. 24 f ThursdLiy. February 5, 1981 I Proposed Rules
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ultimate effect to the proposed design
and operating standards—both would
require containment for a finite period of
time—these containment standards
different in that they would have
fled the ultimate performance to be
cived rather than specific facility
designs and operating procedures. Thus.
the permit applicant would have had the
flexibility of selecting and tailoring the
design of his facility and his operating
methods of site-specific and waste-
specific conditions and, therefore, would
not be tied to rigid design and operating
standards.
As explained in the October 1980
notice, two types of containment
standards were considered (sec 45 FR
66817—66818). The essential element of
both types of standards, however, was
that they were based on achieving
containment of hazardous wastes and
hazardous constituents within a
confined area for a finite time. Like
design and operating standards they
provided human health and
environmental protection for a finite
tune period but did not guarantee
protection beyond that time period. The
Agency found this lack of protection
beyond a specified containment period
to be a serious problem with
containment standards and, therefore, is
not today re-proposing such standards.
C. Scecif Ic Health and Environmental
Performance Standards
1 e Agency considered the very
rent alternative, as compared to
_. se described above, of specific health
and environmental standards. As
described in the October 1980 notice,
this approach involved establishing
specific, often numerical ambient quality
standards for ground and surface waters
and eventually for other parts of the
environment (e.g., air end soils) which
could not be exceeded as a result of
hazardous waste or hazardous
constitutenta which migrate out of the
land disposal facility. Such standards
would apply at points of current or
potential environmental use (e.g.,
current or potential points of ground
water withdrawal for various uses).
These standards would allow the permit
applicant wide flexibility in designing
and operating a land disposal facility,
provided only that he could meet the
ambient standards specified.
These standards would protect human
health and the environment by clearly
and specifically defining what ambient
quality levels constitute health and
environmental protection. Application of
these standards would require a
considerable amount of site study and
nrediction by the permit applicant to
onstrate that the migration of
hazardous waste and hazardous
constituents into the environment would
never cause the establishment ambient
standards to be exceeded. This would,
for ekample, require the permit
applicant to assess and predict thi
amount and quality of leachate
generated in the land disposal facility;
the migration, dispersion and
attenuation of the leachate after it
leaves the facility and moves into and
through the environment; and the
concentrations and types of
contaminants that would occur at actual
and potential points of use of ground
waters and hydraulically-connected
surface waters. This study would be far
more detailed and extensive than than
that necessary to show compliance with
design and operating standards or
containment standards, but the results
would be much more valuable and
positive from an environmental
protection standpoint because they
would show, within the accuracy of
prediction, what are the future health
end environmental effects of the facility
and whether or not they are effects that
can be accepted (i.e., whether or not the
ambient standards will be met).
Although this specificity makes this
alternative very attractive, ambient
quality standards have not yet been
established for most of the hazardous
constituents regulated by EPA’s
hazardous waste management
regulations (see Appendix VIII of Part
281 at 45 FR 33132—33133 and
amendments thereto at 45 FR 47834, 45
FR 74889 and 45 FR 78544 for the current
list of these constituents). Consequently,
the Agency is not able, at this time, to
exclusively use this approach to assure
adequate health and environmental
protection. However, it is possible to
employ this approach where ambient
standards or criteria are available and,
therefore, today’s proposed standards
(see those standards proposed f;.r
Subpart B of Part 284) incorporate
specific health ançl environmental
performance standards with respect to
hazardous constituents for which the
Agency has or can establish ambient
quality standards. With respect to other
hazardous constituents, non-specific
health and environmental performance
standards are being proposed.
D. Non-Specific Health and
Environmental Performance Standards
The fourth and final alternative
standards considered were non-specific
health and environmental performance
standards. As described in the October
1980 notice, these standards set forth
both (1) the type of assessments and
predictions that a permit applicant
would have to perform to show the
environmental effects of his land
disposal facility and (2) the broad
environmental objectives that would be
used in the permit Issuance process to
ludge the acceptability of these effects.
With respect to the assessments,
predictions and demonstrations that the
permit applicant would have to perform,
these standards are not different from
the specific health and environmental
standards discussed above. They do
differ, however, in that broad narrative
environmental objectives (e.g.. the
concentration of contaminants will not
adversely effect human health or the
environment) substitute for ambient
quality levels as the bases for judging -
the acceptability of the environmental
effects caused by a land disposal
facility.
V. Consideration of Comments and
Development of Today’s Proposed Rule
A. Consideration of Comments
Commenters on the December 1978
proposed design and operating
standards for land disposal facilities (as
well as other types of facilities)
criticized the rigidity and inflexibility of
these standards. They argued that such
requirements were incapable of
accommodating the wide variety of site-
specific and waste-specific conditions
that would be encountered in the real
world and, therefore, would serve to
both over-regulate and under-regulate
land disposal facilities. They further
argued that such standards could inhibit
the use of more efficient, less costly but
equally protective designs and operating
procedures. Finally, they contended that
such standards would stifle
technological innovations. These same
concerns were expressed by many
commenters on the October 1980 notice.
By-in-large, these commenters did not
object to design and operating standards
as basic standards but objec ted to the
rigidity with which they were stated and
the lack of variance provisions attached
to them. Many of these commenters
therefore suggested that a performance
standard be incorporated within each
design and operating standard to
indicate the performance objective being
sought and to provide the basis for
varying the design and operating
standard to meet the peculiarities of
site-specific or waste-specific conditions
encountered at a particular facility or to
accommodate more efficient or
Innovative designs and operating
procedures.
EPA agrees that greater flexibility In
design and operating standards is
desirable in cases where the Agency can
describe its desired goals in terms of
specific performance objectives.
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roder 4 il Register I Vol. 40, No 24 I ‘fliut sday. February 5, 19111 / Proposed Rules
11131
Accordingly, today’s proposed
stunduids in Subparts F. K, L, M. N. It S
und T attempt to achieve this purpose.
Comments received on the October
1980 Supplemental Notice of Proposed
Rulemaking were quite varied in their
preference for and criticism of the four
alternative types of standards presented
in that notice. Generally, the comments
found attributes and deficiencies in each
of the four approaches. When taken
altogether, however, no clear concensus
was expressed on which approach was
best. Many commenters felt that the
fourth alternative—non-specific health
and environmental performance
standards—and, to some extent the
third alternative—specific health and
en ironmerital performance standards—
requiied studies, demonstrations and
burdens of proof of permit applicants
that were too costly and otherwise too
great to bear. These commenters tended
to express a preference for design and
operating or containment standards or
some combination thereof, particularly
in the short term until the States
developed ground water use
designations and until EPA established
ground water quality criteria and more
reliable methodologies for performing
the studies and demonstrations required
by the third and fourth alternatives.
Even so, several commenters found
merit in the third and fourth alternatives
or in some of the elements of these
alternatives, particularly in the sense
that these alternatives provided
considerable flexibility in the design
and operation of facilities. In summary,
the Agency received many useful and
helpful comments on the October 1980
notice, but these comments did not
decidedly point toward any one of the
four alternative standards as the
standards that EPA should develop and
promulgate for land disposal facilities.
One area where there was concensus
among the commenters on the October
1980 notice was that the notice was
insufficient for proposed rulemaking
leading to a final or interim final rule.
They argued (1) that the notice
presented some very different
approaches to regulating land disposal
facilities than were proposed in
Decemher 1978, (2) specific regulatory
requirements were not presented in the
notice and (3) the 30 day public
comment period was too short to
provide reasonable opportunity for
meaningful public comment. The Agency
agrees tith these arguments and.
therefore, as previously stated, is today
re-proposing its permitting standards
and related permit application
requirements for land disposal facilities
Many pf the commer .ters on th
October 1980 notice recognL cd that the
third and fourth alternative standards
depend on determiniiig the Uses of
ground water and hydraulically-
connected surface water to be protected.
In the third alternative, these uses (and
points of use) need to be determined so
that specific ambient quality standards
established in EPA’s regulation could he
applied and used to judge the
acceptability of the land disposal
facility from the standpoint of the
“plume” of contaminants migrating from
the facility and reaching the points of
water use. In the fourth alternative, the
same process would apply except that
acceptability of the facility would be
based on broad narrative environmental
objectives rather than specific ambient
quality standards applied to the
designated uses. The commenters
argued that the State and local
governments rather than the Federal
government, were the proper authorities
to designate uses of ground and surface
waters. EPA does not disagree with
these comments and, in fact, has
proposed such an approach in its
Proposed Ground Water Protection
Strategy, for which an executive
summary and notice of public hearings
was published in 45 FR 77514 on
November 24, 1980. -
Several comrnenters further
contended, however, that the Agency
should not proceed with either its third
or fourth approaches until State or local
jurisdictions have designated uses for
their ground and surface waters. They
argued that, to do otherwise, would
place an unreasonable burden on land
disposal permit applicants to determine
and predict present and potential water
uses and demonstrate the correcthess of
their determinations. EPA disagrees
with this recommendation. The Agency
believes that State or local designations
of water uses should be used by permit
applicants as and when they are
adopted. It recognizes, however, that
çlesignation of water use by these public
bodies may take several years to
accomplish. It does not believe that
proper regulation of land disposal
facilities should be sacrificed or delayed
until such designations are made. Unless
or until State or local watcr use
designations are adopted, it believes
that permit applicants and the RCRA
permit process, with input from State
and local go ernment agencies, niust
proceed with the best determination of
actual and potential uses of affected
ground and surface waters that can be
made and that permits should be
fashioned and issued to protect the
water uses so determined.
Many commenters expressed concern
shout the “prosumption against any
degradation” delineated in the October
1980 notice. These concerns ranged from
confusion about what this concept
would mean in terms of its real-world
application to arguments contending
that this presumption is not authorized
by RCRA.
Put very simply. EPA proposed in the
October 1980 notice and is proposing
today that the environment should not
be degraded at any existing or potential
point of use unless or until the degree of
degradation is determined or predicted,
evaluated and found to be acceptable.
To do otherwise, would be to blindly
allow degradation without knowing its
consequences. In practical application,
with respect to ground and surface
waters, this concept woutd mean that
hazardous contaminants migrating from
a land disposal facility would not be
allowed to reach and degrade such
waters at points of current or potential
use unless the effects of these
contaminants on the use of the water
are determined, assessed and deemed
acceptable in the permit issuance
process. Given that not all points within
ground and surface waters are used or
potentially used, degradation of these
points (i.e., portions of ground and
surface waters) would not be precluded.
In this respect, the concept is not an
absolute non-degradation concept.
Further, given that different ground and
surface water uses require different
water quality and therefore, permit
different degrees of degradation, this
concept can allow degradation even at
points of use—provided, however, that
such degradation does not interfere with
the use and is found acceptable. In this
sense, as ve1l, the concept also is not an
absolute non-degradation concept. The
Agency recognizes that many ground
water and surface water bodies or
portions thereof are used at so many
closely located pouts that degradation
of non-use points .ould be greatly
limited. It further recognizes that many
ground and surface water bodies are
used for purposes requiring very high
quality (e.g., drinking water uses) so that
acceptable degradation is quite limited.
For these water bodies, the concept
approaches an absolute non-
degradation policy and properly so. EPA
contends, however, that other water
bodies or portions thereof are not so
highly used or used for high-quality-
demanding purposes and therefore cnn
accommodate reasonable levels of
degradation.
Clearly, the Agency has shied away
from the position of prohibiting any and
all degradation of the environment by
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Federal R gI.tsr / ‘Vol. 46, No.’ 24 / Thursday. Februery 5. 1981 .1 Proposed Rule. ,‘ -• ‘. c
land disposal facilities It does not occur, particularly or an extended ground w ters’or underlain with deep
believethatth lst ,possibleor “ -.pei1odoftImeoraft.rth,ortginally . i’ ,fonnatlonsoflowP.rm,abLlltyclay
reasonableEven In cases where all ‘ : established and funded post-closure soils will anible the permit applicant to
feasible treatment of hazardous wastea :: period. In short. EPA believes that ‘ readily demonstrat. that containinsnts
Is accomplished. there likely will be relying on containment during th. will not migrate to pothis of water usi
h.zsrdous ‘reilduals (principally toxic ,::“ .: operating end post-closurejare periods. thus lessening the requirements thai
heavy metals) That Inevitably will have: and on spjlioation of remedial measures otherwise would apply. Pre.treatlng
to be disposed of In or On the land and,’ thereafter will. in many cases, fuil to ‘, ‘ hazardous wastes so that they do not
as discussed in Section 111. InevItably provide long-term human health and contain the more toxic or garcinogenfo
- ‘‘ •‘ will migrate Into and degrade the - environmental protection. ‘ ‘ ‘:- hazardous constituents also will lessen..
‘environment. TheA ency, however, h.i :, With respect to EPA’s Intended ‘: these requirements. Likewise, tailoring.
not shied away from prohibiting :2-, ‘ ‘“.- ,Approa’ch in the October 1 8O notice ,. . the disposal facility to (he types of -
unacceptable degradation or prohibiting and the delineation of the Information ‘ wastes disposed of so that, for example;
degradation before there Is the ‘ ‘‘ •:and demonstrations that would be ‘ 2- solubilizatlon of-hazardous constituent.
opportunity to judge its acceptability. - I required of permit applicant, under this 2- reduced will ls.ssn the requIrements. 2 . , -
• ‘ ‘. Several comznenters argued for Ieslgn •I’appro.ch commentere .xpress.d ‘ - The Agency has tried to provide, In the
- and operating standards (Including ‘ ‘several concerns. First, they contended ‘standard. proposed today. provisions
performance standards as discussed: ‘ ‘ that the required Information and 2- that require more or less nwrmstlon
I..bove). They suggested that these .:‘ ‘ .‘ demonstration, were extensive. , -‘, and demonstration based on site- ,‘ , ,
standards be based on a “containment’ :• extremely costly and beyond the ‘ ‘ - - - ipeclfic, wastespecific conditiona
objective: contalnmint of hazardous • ‘reasonable capacity of most permit ‘ - - For thos. permit applicants (hat Ins!st
wastes and hazardous constituents applicants to provide Secondly, they on locating a land disposal facility over
wlthm the land disposal facility during felt that not .11 of the Information and .. a shallow. higE quality highly used
the operating life of the fidlity (c. !, W’ ‘ - demonstrsilons delineated wer. needed : Jound watfr aquifer or 1n 1.t on placing
-‘years) and contslunent of hazardous - “ T ’ in many cases (e.g.. land disposal : ‘ nlghly toxic wastes In. land disposal - -
‘‘ 2- constituents Within a broader .r*a(.g., facIlities undirlain by Ieep, tight clay ‘I facility without pre-treatment or Insist
the area underlying the property on soils and located over deep non uuble on otherwise locatIn . desIgn1n j and
which th. facility Is located) for a longer ground water aquifer.). Thirdly, thay \. p j a syst.m inst Is captol. f —
period (e.g. the 30 or more year. of the claimed that some of the demonstrations “ ‘W’ 1 C flt flIflIflt 5 that will
poet-closur, care and maintenance (e.g. prediction of the human health ULUJ .USCt watN Oils. It ww
period) One cornmenter .uggested this risk. posad by contaminants that be t ,d1l Icu t,and exps sI . to
as n bte m or short-term approach 2-, ’ I te to point. of water use) were far , tmmw e . n= orm.ilab
- : uñtilSt.teorbc.Jground.ndsurface ‘beyondthecapabiliUesofp.rm1t ,,“;-thademonstrstionarequlred,fov ‘‘-‘:
water use desIgnations, ambient ground applicant. If not the state-of P, enn!tt rIS dsdslonJ. H wJvsr,Jn A s
water quality alterla and more FInally. thsy argued that some of the cost a
extensive methods for making requirements (e.g.. health and risk DSC*mJ 1 to assure st uIu LauIut7 w i
bydrogeological and other st’itdles thuld assessments) placed burdens on the no. cause uniccep...e
be developed to more readily Implement , permit applicants that properly should uI tuuOn -.
- : :elther or both of the third or fourth ,- . rest 0! 0 ,rgnvernmsnt • , .‘ 2- detailed elements of th. October 1OiO -
alternative standards In all case. aanc l.. — notice These .re addzeued In the
however these comments were based EPA egrets that the Information and appronriate narti of this nr ’eambl.
‘2-, on the assumption that. If groundwater - ‘ demonstrations requirements may be ‘whlcb ” fol lovs. - ‘ ‘ ‘-, -. ,“- - • •‘ 2- 2-
corntamlnstion was discovered or quite costly and burdensom. for some -.
predicted to occur before or after the ‘permit ap l1cant, and, for others, will B Development of Today’s Proposed
containment period, remedial measures, not be insignificant. Given the long-term Ru!.
such as Interceptor wells or trenches, bawd potential of tan4 disposal of EPA 1. ode proposing permitting
would then be required. For several hazardous wastes ds.aibed In Section standard, for .nd disposal facilities
reasons, EPA ii reluctant to accept these’ :111, howsi er. It believes that such •-.‘ - ( . ii ndments to Subpart,’A and Rot -•
recomrnendatlons (except perhaps’,..’ , requirements are essential to making :,- - p fl 4 and to Part 122 In today’s • - ‘ ‘:2-
interim, transitional requirements sound environmental judgment. about proposed nilesi that are drawn from lb.
applicable to existing facilities as these disposal activities Th. costa and third and foui4 alternative standard,—
discussed In Section Vi) First, as , efforts of meeting these requirements specific and non specific health and
discussed In Section 111. EPA Is are justified costs of doing business—of envIronmental performanc, standard.—
reasonably certain that hazardous. -: , ‘having th. privilege of depositing ‘ ‘‘ presented In the October 1a80 notloe. ’
constituents and by-products will - I 2-hazardous constituents In or on the land These proposed standards ‘ ‘
migrate out of moat facilIties and ‘ 2-- ‘ , where they might adversely affect •supplemented with certain proposed
migrate beyond either of the suggested “people’s health and welfare for m.ny design and operating standards (a..
containment areas at some time alter - - decades. ‘ -‘ “ - . ‘ ‘ ‘ Subparts F, K, L 14, N, H. Sandlot
the containment periods. Second. EPA I . -‘ Furthermore, EPA b.lleves(... - u... ..,’s proposed he ‘ -
not certain that, once thess hazardous siting of land disposal facilities, proper ‘, Agency deems that thea. more specIfI 1 ” ,
- - contaminants migrate out of the facility, -,,pie-treatment of certain hazardous ‘ -‘ standards can be fashioned.
they can be readily and effectively ‘ ‘ . wautes and tailored design of facilItIes The Subpart. A and B standards
Intercepted and removed so that they do for dijferent types of wastes will reduc. proposed In thIs action essentially ‘ ‘ -
not migrate to points of water ui, ‘ th. ir iTormation and demonstration ‘ require a thorough and deliberate - -
FinsIly. EPA doubts whether It can ;, requirements and, thereby, will alleviate assessment of the long-term health and 2-
assure that the facIlity owneror - “- their costs and burdens. For example, environmental Impact of land disposal
operator will Implement effective - ‘: , -“ . locoting facilities In areas underlain ‘. facilities. The Agency recognizes that,: :- ‘1’’.
remedial measures whenever r.le ses ‘1: With deep gr und waters or non-usable •, ‘this. assessments will require permit ,, “
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Federal Regist r / Vol. 4b, No. 24 / Thursday, Febtuary 5, 1961 I Proposed Rules
11133
applicants to gather and submit
considerable detailed information and
perform difficult and complex
demonstrations. It also recognizes that
the required information and
demonstrations will be difficult and time
consuming to review by EPA and State
permitting officials and very likely will
require more time In processing and
issuing permits than might otherwise be
required if design and operating
standards or containment standards
were employed. However, EPA
concludes that these consequences must
be accepted in order to provide for full
consideration of the serious implications
that the facility might have for the
public’s health and welfare for decades
to come.
The Agency also realizes that the
extensive information and
demonstration requirements of today’s
proposed rule will be sufficiently great
to deter land disposal permit
applications for many locations, for
some wastes and from some persons. As
such, today’s proposed rule, if
promulgated, will probably reduce the
number of land disposal facilities,
significantly limit the location of these
facilities, limit the types of hazardous
wastes placed in these facilities,
promote the use of alternative methods
of managing hazardous wastes (e.g.,
incineration, treatment, recycling) and
preclude potential permit applicants
who lack the resources or the technical
capability to meet the information and
demonstration requirements. In the
Agency’s view, these are not
undesirable results. Because it
frer’.ucntly poses long-term hazards to
human health and the environment, EPA
views land disposal as the least
desirable method of hazardous waste
management and believes it should be
used only in those situations where,
because of the location of the site,
nature of the waste and adequacy of he
management technologies and opera ag
practices used, it can be carried out in a
manner which will assure long-term
protection of human health and the
environment. Clearly, today’s proposed
standards and permit application
requirements vill create economic and
feasibility constraints thai will limit
land disposal practices. The Agency.
however, does not belicve these
standards and requirements will
preclude land disposal as a necessary
hazardous waste management practice.
It contends that there are suitable land
disposal sites, adequate land disposal
facility designs and practices arid
competent persons and firms to operate
land disposal facilities necessary to
manage hazardous wastes than c,annot
be handled by other alternatives.
Finally, the Agency recognizes that
the techniques for making the
hydrogeological investigations and other
studies necessary to meet the
information and demonstration
requirements of today’s proposed rule
are not fully developed and need to be
improved and extended. It also
recognizes that the technical expertise
of undertaking these investigations and
studies is limited. It believes, however,
that the techniques and expertise exist
to perform, in some degree, each of
investigatory tasks that would be
required of today’s proposed rule.
Certainly, advancements in the state-of-
the-art and capabilities, which will
result from the implementation of
today’s proposed requirements, will
improve performance in the future. EPA
believes that the requirement proposed
today will encourage such
advancements.
EPA does not intend to underestimate
any of the several consequences of
taday’s proposed rule delineated above.
It may be that these consequences are
more severe than the Agency now
estimates. Therefore, EPA invites
comments on this matter and seriously
solicits facts and data about the above
consequences. Certainly, the public
interest or the RCRA Subtitle C
objectives are not well served by rules
that do not work or produce unintended
results. Consequently, EPA is anxious to
know how and where and why today’s
proposed rules are sufficiently deficient
in this regard to warrant a different
approach.
As indicated above, EPA has rejected
design and operating standards and
containment standards as the basic
standards to be used for permitting
hazardous waste land disposal
facilities—at least new facilities. It fully
recognizes the virtues of these types of
standards: Their specificity and
certainty and their easier
implementability. As discussed above,
however, the Agency is concerned that
they only guarantee health and
environmental protection for a finite
period. This is not to say that the
Agency believes that these standards do
not have a place in its land disposal
regulations. As mentioned previously,
today’s proposal includes certain design
and operating standards fur hazardous
waste land disposal facilities in
Subparts F, K, L M, N, R, S and T. Also.
as discussed in Section VI which
follows, EPA is considering and inviting
comments on applying these types of
standards as interim permit standards
(not to be confused with interim statua
standards) to be used in certain
situations in issuing interim permits to
“existing” land disposal facilities.
Beyond this, the Agency intends to look
for opportunities where these standards
might be used to improve the
implementability of the program.
Conceptually, the Agency believes there
may be situations where sufficient
information Is known about a particular
hazardous waste, its characteristics of
persistence and degradation in a land
disposal facility and its potential to
retain hazardous constitunnts from
release and migration, and where
sufficient information is known about
the hydrogeological features of sites
where these wastes may be disposed of
to enable the Agency to develop a
specialized design and operating
standard. Where these situations are
found, EPA would consider developing
such standards. hi this respect and in
possible other respects, EPA is open to-
suggestions and solicits comments about
where it might effectively incorporate
design and operating or containment
standards in the rule proposed today or
subsequent amendments thereto.
VI. Application of Proposed Rule to
New and Existing Facilities
EPA is proposing that today’s
proposed standards and permit
application requirements be applicable
to both new and existing hazardous
waste land disposal facilities (see
definition of these facilities in § 260.10
and 122.3). It feels quite certain about
the appropriateness of these standards
for new facilities, believing Ibat it is
essential that a thorough and deliberate
evaluation of new facilities should be
made before they are allowed to come
into existence. With respect to existing
facilities, it also believes that it is
essential that such an evaluation be
made before allowing these facilities to
continue operation under a full RCRA
permit. However, the Agency has some
concerns about the consequences of
applying the proposed rules to existing
facilities.
First, the Agency recognizes that it
will take five or more years for it and
authorized States to issue permits to all
existing hazardous waste management
facilities, including land disposal
facilities. During this time, existing
facilities will only have to meet the
interim status standards of Part 265. For
land disposal facilities, the interim
status standards do not contain many of
the requirements necessary to assure
environmental protection from the long-
term hazards discussed in Section lii.
‘For Ihe purposas of this discussion. e,iiaiing
fnrulities ihut have intcnm status
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Federal Register I Vol. 46, No. 24 / Thursday, February 5, 1981 I Proposed Rules
Consequently, for the next one to five
years or more, many existing land
disposal facilities will not be required
Iw EPA’s hazardous waste regulations
‘eet permit conditions that today’s
osed rules would otherwise
centually impose. This is a concern to
the Agency because most of the existing
land disposal facilities are capable of
presenting the potential environmental
hazards descnbed in Section II.
Secondly, and perhaps more
importantly, the appikation of today’s
proposed standards and permit
requirements to existing land disposal
facilities will take time, once the permit
issuance process is initiated (i.e., once
submission of the Part B permit
application is requested). Section 122.22
allows the permit applicant six months
to prepare and submit a Part B permit
application, but be ause of the extent
and complexity of the information and
demonstrations that would be required
under these proposed rules, additional
time may have to be allowed
submission of the Part B. the review and
processing necessary to issue or deny a
permit will take additional Lime. Again,
because of the complexity of the
information and demonstrations that
would be required, the review of the
Part B may well take several months
and may also lead to time consuming
hearings, if they are requested. In
summary, it is quite likely that as many
24 months or more could elapse
.ween initiation and conclusion of the
rmitting proceeding. During this time,
the existing land disposal facility would
continue under interim status to receive
and dispose of hazardous wastes
without full permit controls. This is of
concern to the Agency for the same
reason stated above
Where the issuance or denial of full
permits for existing land disposal
Fdcilities are going to be unavoidably
delayed. EPA believes there is need and
justification for some type of interim
requirements that are more extensive
than the current ipterim status
standards of Part 265. However, such
requirements would have to be
expeditiously applied if they are to
serve their interim purpose.
To address this need, EPA is
considering employing an interim permit
process and using a combination of
design and operating standards and
containment performance standards as
interim permit standards. The purpose
of these standards would be to require
full containment for a finite time for
those hazardous wastes that are
‘Tod.iv proposed ,inwniInicnt to Port 122
mid give the p000Itting offu m l .autho;it, in
lend the limP peiiod
received and disposed of in a facility
during the interim permit period
preceding the issuance or denial of a full
RCRA permit. Although. as discussed
above, the Agency does not believe that
containment-type standards are
necessarily satisfactory for long-term
control of hazardous waste land
disposal facilities, it believes they do
have merit as standards for interim
application. In this application, they
would serve almost as storage
standards, requiring the confinement of
wastes received by the facility in “new
cells” designed to contain for a specified
finite period. If the review for issuing a
full permit for the facility reveals that
such confinement is grnssly inadequate
(e.g., hazardous waste constituents from
the new calls very likely will eventually
migrate to points of ground water use
and produce unacceptable degradation
at those points of use) then the full
permitting of the facility can require
exhuming and proper re-disposal of the
wastes or other appropriate remedial
measures. This could readily and safely
be accomplished because the wastes
would be contained in the new cells,
catalogued as to where they were
placed in these cells, and segregated to
keep incompatible wastes apart. If, on
the other hand, the results of applying
today’s proposed standards in the
issuance of a full permit reveal that the
interim permit standards are sufficiently
protective or even more protective of the
environment than the terms of the full
permit would otherwise have required.
then a head start on adequately
managing the wastes received by the
facility during the interim permit period
will have been achieved.
For this approach to work effectively,
the interim permit standards would have
to be quite specific and readily applied
through an issuance of an interim
permit—a process that could be initiated
and completed within a few months.
EPA believes that a combination of
design and operating standards (with
built in performance standards as
recommended by commenters) and
confainment standards would provide
such specificity and implementability.
When submission of a Part B
application for an existing facility is
requested, the applicant would be asked
to supply information necessary to
consider issuance of an interim permit
as well as information and
demonstrations necessary to consider
issuance of a full permit. The
information requested for the interim
permit would have to be submitted in
six months. Basically, this infurmation
would consist of a debcrlption of the
design and operation m.,f the f ciIity and
a showing that the containment
performance standard and’ the design
and operating standards will be met.
The information and demonstrations for
the full permit (as delineated in this
proposed rule) also would be required to
be submitted within six months but
could be extended for good cause. EPA
or the State (where the State is
authorized) would first consider and
issue or deny an interim permit.
hopefully within a few months of
receiving the Part B application. It then
would consider the issuance or denial of
the full permit (actually, review of the
permit application for an interim and
full permit would proceed concurrently
but preference would be given to
processing the interim permit first.
leaving better opportunity to thorougly
and carefully processing the full permit).
It is anticipated that most applications
for permits for existing land disposal
facilities would result in the issuance of
an interim permit under which the
facility would operate until a full permit
is issued or denied. However, where the
permitting official has good cause (e.g.,
the facility is already contaminating
ground water and the operation of a
successful containment system for
continuing disposal of hazardous wastes
is doubtful), the official could deny an
interim permit. This would preclude
continued operation of the facility until
a full permit is issued. The Agency
b lieves that interim permits would only
be denied for a relatively few facilities
where allowing continuance of disposal
activities until a full and thorough
review of the facility could be made
would present a substantial risk to
human health or the environment.
The foregoing approach would only
apply to existing landfills where it is
possible to implement a containment
system for the new cells that could and
would be used to receive wastes during
the pendency of the interim permit. This
approach simply cannot work for
existing surface impoundments which
are continuing to operate and cannot be
readily retrofitted without severe
disruption and expense to provide
containment for wastes received during
the pendency of processing of a full
permit. For these facilities, the Agency
and the States will have to depend on
expeditious review and processing of
full permit applications to minimize the
possible environmental insults that
could occur during the full permit
process. For similar reasons, this
approach does not work well for and
would not be applicable to land
treatment facilities.
The Agency did consider application
of the above concept of containing
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Federal Register I Vol. 46, No. 24 I Thursday, February 5, 1981 I Proposed Rules
standard would apply when design and
operating standards alone would not
achieve the objective of the Act. In the
design and operating standards Included
the December 18. 1978 proposed
ilations, the Agency sought to
tect ground water by requiring
containment of hazardous wastes.
Based on comments and its own
analysis. the Agency now recognizes
that containment of wastes disposed of
into or on the land is achievable for only
some limited period of time. Moreover.
in many cases containment does not
represent the most effici rit, protective.
and effective control achievable.
Ultimately, containment designs act
only as a control on the initiation of
release of wastes to the environment or
as a control on the rate of release. To
fulfill the statutory mandate of RCRA—
the protection of human health and the
environment—a temporary solution such
as containment simply is not adequate.
As a result, the Agency published on
October 8, 1980. a Supplemental Notice
of Proposed Rulemaking, outlining the
regulatory approach embodied in these
proposed regulations. This approach
will be implemented by a combination
of design, operating, and locational
standards. Primary reliance is place on
maintaining a physical separation of the
ground water affected by dispoal or
discharge and any subsequent use of or
exposure to the affected ground water.
paration. and the control of
sequent use, are both possible
ause not all ground water is used,
usable, or needed for any use and
because ground water returns to the
surface environment in a definable way.
The basic goal embodied in these
regulations for the protection of human
health and the em ironment is to
rigorously protect aU ground water
which is now or will in the future be
used for any purpose from the harmful
effects which can result from hazardous
waste disposal. Further, these
regulations will ensure that the natural
re-entry of affected ground water into
the surface environment does not cause
unacceptable effects.
A variance may be authorized where
an absolute separation from ground
water use can not be achieved, however,
the permit applicant carries a heavy
burden of proof to show that the effects
which will result from his disposal or
discharge activities will not adversely
affect human health or the t•.ivironmcnt.
The comments received in response to
the October 8. 1980 Federal Register
Notice displayed a wide diversity of
views as to the preferred regulatory
approach. The comments ranged from
‘hose who supported the total flexibility
a general performance standards, to
those who felt the technical design
requirements are needed to supplement
a non-numerical health and
environmental standard, to. those
commenters who supported total
reliance on specific performance
standards, design standards, or a
combination of the two.
The Agency recognizes the
advantages and disadvantages to each
of these approaches. Facility design
standards have the advantage of being
specific, leaving no question to the
permit applicant or the permit issuing
authority as to what is required. Such an
approach would clearly simplify the
permitting process by removing any
discretion from the permitting authority.
However, design standards are also
very rigid and it is impossible under
such an approach to consider the almost
infinite variety of site specific factors
which may occur. Likewise, the rigidity
of this approach discourages the
development of innovative technologies
for the protection of ground water. Most
importantly, it is simply not feasible at
this time for EPA to develop the full
range of technical design standards
which would be required to fully protect
ground water from all adverse health
and environmental effects.
Specific ambient health and
environmental performance standards
also share the advantage of being
straightforward in terms of notifying the
permittee as to what he must achieve.
The major drawback of this approach is
that a full range of specific performance
standards has not yet been established
to cover all of the possible adverse
effects of hazardous waste disposal.
A non-numerical health and
environmental standard has the
advantage of being flexible—allowing
for and even encouraging the
development of new technologies aimed
at the protection of ground water. This
approach also enables the Agency and/
or the permit issuing authority to
respond to new information generated -
from a variety of sources including the
permitting process, monitoring data and
scientific research. The use of a non-
numerical performance standard will
also assure Immediate fulfillment of the
statutory mandate of RCRA without the
long delay that would be required to
promulgate adequate specific
performance or design standards.
Concerns were expressed by
commenters on several aspects of a
regulatory approach based on a non-
numerical performance standard. Many
commenters felt that such an approach
does not give adequate guidance to the
permittee or the permit issuing authority
as to what Is necessary to achieve the
standard and qualify for a permit. The
Agency believes that the regulations
being proposed today will clarify to a
large extent those areas that
comnmenter5 felt were vague in the
October 8, 1980 Notir.e. These propcsed
regulations specify in greater detail the
requirements for permit issuance and
the showing required for a variance.
Others felt that the proposed approach
will complicate and lengthen the
permitting process. In the opinion of the
Agency, in many cases the data reqwrec l
of permit applicants will be readily
available and the permitting process
will be able to proceed without delay.
Where this is not the case, the Agency
believes that the impact on the
permitting process is justified in light uf
the potential impact of hazardous waste
disposal, the magnitude of the potential
harm, and public concern over
protection from the risks of disposal of
hazardous wastes.
B. Subpart B—General Facility
Standards
1. Location—i 264.10. Section 264.10 is
being amended in these regulations to
ensure the applicability of the location
standards in § 264.18(b) to land disposal
facilities. Locational considerations
other than those to be considered in
§ 264.18(b) are contained elsewhere in
the regulations. Such other locational
considerations are specifically
applicable to land disposal facilities and
the characteristic which distinguishes
such facilities from other types of
opertional units, i.e.: discharge into the
land and ground water.
2. Land disposal facihtles—I 25q.1.9.
Section 264.19(a) lists the types of
facilities that are land disposal facilities
and therefore subject to the
informational and demonstration
requirements necessary to establish
compliance with the ground water
protection standard.
Section 264.19(b) limits land disposal
facilities eligible for permitting to the
types of facilities defined in § 264.19(a).
subject to exceptions granted through
the petition process described in
§ 260.23. This petition process is
intended to protect the owner or
operator of a successful treatment,
storage or disposal facilitity from the
potential oversight of the Agency in
promulgating minimum requirements.
The Agency does not intend to
invalidate successful facilities by its
regulations or to limit future faciltities to
the types with which it Is presently
familiar and for which it has prescribed
technical requirements.
Section 264.19(c) sets forth five
classes of land disposal facilities. These
clanies are established by the present or
future use of ground waters into which a
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facility does or will discharge. The
purpose of catcgoiizing facililies by
class is to facilitate descriptions of the
varying amounts of information and
levels of demonstration required to
pursue a permit.
Many customers felt that the ground
water protection approach outlined in
the October 8, i980 Federal Register
notice failed to consider the concept of
multiple uses of ground water and failed
to take into account existing
conLamination or uses of ground water.
The facility classification scheme
provides a mechanism by which these
factors are given relevance in the
permitting process. For example, ground
water which is currently contaminated
at a level which precludes its present or
future use for drinking purposes, if that
is recognized and acknowledged as a
tact, will be subject to reduced
informational and demonstration
requirements.
a. Types of faciIi1,es-.- 264.19(a).
Sect 1 on 264.19(a) lists six major types of
laud disposal facilities: (1) Surface
impoundments; (2) wr.ste piles; (3) land
t ’atment facilities; (4) landfills; (5)
e ’page facilities; and (6) injection
.vt’lls. Type (5)-seepage facilities can be
urther subdivided into at least four
c ltegories: (A) seepage lagoons; (B)
duy ng beds; (C) seepage pits; and (D)
ariepage beds The types of facilities
n’.av be described as follows:
(1) Surface impoundments, as the
naive implies, are facilities at which
i uid wastes or oth ’r liquids are
impounded or held. In § 260.10 a surface
impoundment is defined as an earthen
structure designed to hold an
accumulation of liquids or wa tLs
containing free liquids. Wastes placed in
surface impoundments are usually in a
liquid cr semi.liquud state. The purpose
of a surface impoundment as described
in the applicability section of Subpart K
is for storage or treatment rather than
disposal. Discharge to the groi id water,
when it occurs constitutes di 3sal
however, and disposal often occurs as
leachate from facilities which are
commonly called surface
impoundments. When such disposal
occurs, i.e.. when a surface
impoundment is not designed to prevent
virtually alt discharge, or is to be closed
with waste left in place, it is considered
a disposal facility. A 8urface
impoundment can be designed to
achieve the objective of no discharge, in
which case it is referred to in this
section as being used “solely for storage
or storage and treatment”. Such a
surface impoundment is not considered
a land disposal facility in Part 264. The
term seepage facility is used in these
regulations to describe a facility which
is designed with the objective of
discharging (i.e.. disposing of) liquids
into the land. Surface impoundments are
often used as part of a flow through
treatment system that disposes of
treated liquids through a piped
discharge to surface waters. Discharge
to the atmopshere normally occurs as
diffuse gaseous emissions. Wastes are
usually removed at closure, but may be
left in place.
(2) Waste piles are faciliLies at which
wastes, usually in a solid state, are
placed on the land for the purpose of
storage or treatment. Discharge to the
ground water normally occurs as
leachate. Discharge to the surface
waters normally occurs both by erosion
and as leachate mixed with ground
water. Discharge to the atmosphere
normally can occur through wind
erosion or as diffuse gaseous emissions.
Wastes are usually removed at closure,
but may be left in place. A waste pile
can also be designed to prevent virtually
all discharge into the land in which case
they are also referred to as being used
“solely for storage or storage and
treatment” and are not considered land
disposal facilities provided the wastes
are removed at closure.
(3) Land treatment facilities are
faculuiies at whic.h waste; usually in
solid, semi-solid, semi-liquid, or liquid
state; are spread on the surface of the
ground for the purpose of treatment.
Discharge to the ground water normally
occurs as leachate. Discharge to the
surface waters normally occurs both by
erosion and as leechate mixed with
ground water. Discharge to the
atmosphere normally occurs as diffuse
gaseous emiss ons. Wastes are nearly
always left in place at closure.
(4) Landftlls are facilities at hich
wastes, usually in a solid or semi.solid
state, are placud into oi on the land for
the purpose of permanent disposal.
Discharge from the facility to the ground
water normally occurs as leacha.e.
Discharge to the surface waters urn
occur by erosion, but ncrmally occurs as
leachat ’ mixed with ground water.
discharge to the atmosphere normally
occurs as diffuse gaseous emissions.
Wastes are nearly always left in place
at closure.
(5) Seepage facilities are facilities at
which wastes; usually in a liquid, semi-
liqt,id, or semi.solid state: are placed
into or on the land for the purposes of
storage. treatment, or di posal. Four
types of seepage facilities are described
in this section, all of which are defined
as injection wells in Part 146 (the UIC
Program) when the depth is greater than
the largest surface dimension.
(A) Seepage lagoons are facilities at
which wastes; usually in a liquid, semi-
liquid, or semi-solid state; are placed
into the land for the purpose of
treatment, storage, and disposal. The
essential difference between a seepage
lagoon (which normally has a free liquid
surface) and a surface impoundment is,
as mentioned above, Is the objective of
the design. impoundments which are
designed with the objective of seepage
(i.e., discharge into the land) re seepage
lagoons. Discharge to the ground water
normally occurs as leachate. Discharge
to the surface waters normally occurs as
leachate mixed with ground water.
Discharge to the atmosphere normally
occurs as diffuse gaseous emissions.
Wastes are usually removed at closure,
but may be left in place. -
(B) Drying beds are facilities at which
wastes, usually in a semi-Solid state, are
placed on tne land for the purpose of
treatment drying) and storage.
Discharge to the ground water normally
occurs as leachate. Discharge to the
surface wateus normally occurs as
leachate mixed with ground water
unless leachate is collected in which
case it may be directed through a piped
outlet. Discharge to the atmosphere
normally occurs as d ffuse gaseous
emissions. Wastes are usually removed
at closure, but may be left in place.
(C) Seepage i. i s are factltties at which
wastes, usually in a liquid state, are
placed into the land for the purpose ‘f
disposal Discharge to the grn:’rid wdtu!r
is by direct seepage of tha wastes, also
teimei leachatc fe the purpose of this
regulation thschaf9e to the surface
%%ateri normally occurs as iecchate
m. cr with gro’:nd ‘ . r r. Disuharge to
the atmor sure cay be by direct
enI rg c,r diffuse errL ,ssions. If solid
rcsidu ls remain a:ter closure, they are
u ualIy left in place but they may be
remo ed.
(D) Seepage beds are facilities at
which wastes, usually in a liquid state,
are placed into the land for the purpose
of disposal. Discharge o the ground
water is by direct seepage of leachate.
Discharge to the surface waters
normally occurs as leachato mixed with
grcund water. Discharge to the
atmosphere may be by direct venting, if
the seepage bed is co ered, or by diffuse
em ssioas. If sold residuals remain after
closuic, they are usually left in place but
they may be removed.
(6) Injection wells are facilities at
which wastes, in a fluid (usually liquid)
state, are injected into the land under a
pressure head greater than the pressure
head of the ground water into or above
which they are injected for the purpose
of disposal. Discharge to the ground
water is either direct or by direct
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Federal Register / Vol. 46. No. 24 / Thursday. February 5, 1981 1 Proposed Rules
seepage of leachate from the well outlet.
Discharge to the surface waters
normally occurs as leachate mixed with
ground water. Discharge to the
‘mosphere may be by direct venting up
well, or by diffuse emissions through
d from the soil. Wastes are always
left in place after closure.
b. Classes of land disposal facilities—
§ 284.19(c) Five classes of facilities
(designated by capital letters) are
established in this section. With respect
to present or future uses of ground
water, three distinctions are drawn:
ground water which is not and will not
in the future be a source of water supply
for any use: ground water which is or
may in the future be a source of water
supply for uses other than drinking; and
ground water which is or may in the
future be a source of drinking water
sppply. A further distinction is drawn
between facilities which do or will
discharge into ground water which is or
may be used as a source of drinking
water, depending upon whether the
facility affects a public or private water
supply. Greater protection is afforded to
private drinking water sources because
often those dependent on private
supplies have no alternative source of
drinking water or do not have a feasible
option of treating water to make it
suitable for drinking The distinction
between Class A, which is related to
ntire aquifers, and Class B, which is
lated to portions of aquifers, is
imarily administrative. Both entire
aquifers and portions thereof are
commonly described in reference
literature (e.g., USGS reports).
3. Minimum standards applicable to a
variance from the ground-water
protection standard for ground water
used for drinking—i 264.20. The
numerical criteria established in § 264.20
are minimum requirements for
permitting land disposal facilities which
require a variance because they
discharge to ground water which is or
may in the future be used for drinking.
The criteria should ensure that
subsequent use of ground water effected
by discharge will be acceptable as
drinking water with respect to its listed
contaminants (hazardous constituents
and decomposition and reaction
byproducts). The requirements are
based on the National Drinking Water
Standards but are established as
percentages of those standards to
maintain “optimum’ water quality for
drinking rather than allowing
degradation to the maximum acceptable
contaminant levels for use represented
by the National Standards. The
i’rcentages applied are based on the
-background document to the National
Secondary Drinking Water Standards.
The particular contaminants listed in
§ 264.20(a) are included in the National
Primary Drinking Water Regulations,
and are health related. The 80% factor is
simply a margin for error intended to
avoid “brinksmanship” in the permitting
process with respect to the standard for
judging water unacceptable for drinking.
Comment is requested as to the
reasonableness of using such a factor
rather than the standard itself.
The numerical standards of the
Primary Drinking Water Regulations are
established at maximum concentration
levels of: metals and inorganics -
indigenous to ground water, several
pesticides and bacteria, above which
water is considered not properly usable
for drinking. Also of significance are the
contaminants which are not listed in the
Primary Drinking Water Standards, but
are likely to be found in discharges of
liquid hazardous wastes and leachate.
Many of these contaminants (especially
hazardous constituents) if present in a
discharge, would make the water
unusable for drinking. Some of these
potential contaminants are covered in
§ 284.20(b).
The contaminants listed in § 264.20(b),
which include the pesticides in the
Interim Primary Drinking Water
Regulations, cannot be safely
discharged into drinking water. They are
generally known or suspected
carcinogens, highly toxic, or are
produced and marketed as systemic
poisons. Use and spillage account for
the primary hi,iman and environmental
exposure. The criteria, which are
minimum standards, do not preclude
discharge of these substances to the
ground water but do restrict the
intentional disposal of such substances
to ground water used or not precluded
from use as human drinking water.
4. Performance standards and
associated demonstrations of
performance—I 284.21. Section 264.21
establishes both performance standards
and demonstrations of performance
required in the permitting process. The
demonstration requirements include the
showing which must be made by permit
applicants seeking a variance as
described in § 264.2(a)(2). Some of the
requirements of this section vary
according to the class of disposal
facility (see § 204.19(c)) for which permit
authorization is sought. These
distinctions recognize that not all
ground water requires the same high
level of protection as ground water
which is now or will in the future be
used for drinking purposes. -
Section 264.21 forms the basis for
determinations of acceptability (i.e.
permit approval or denial). The rnaclni.r
of consideration in the permit process
also described in this section.
Section 264.21(a) requires that surface
water quality standards not be violated
Many people do not perceive the ground
water and surface water systems to be
part of the same flow system and
thereby fail to recognize their
interdependence. This provision will
force a coordinated analysis based on
the fact that these systems are not
disLinct. in most areas of the country,
the low flows to which surface water
quality standards apply are supported
entirely by the discharge of ground
water.
Section 204.21(a)(2)(iv) requires
owners or operators of land disposal
facilities requiring a variance (see
§ 264.21a)(2)) to demonstrate the social
and economic need for the facility and
that no pract cal options for waste
reduction exist. The Agency believes
that these issues are implicit in the
permitting process and that they will be
of particular relevance in the public
participation aspects of that process.
This requirement ensures that these
issues will be addressed by owners and
operators in a manner that allows
adequate scrutiny by the public and the
permit issuing authority.
The factors which must be considered
when a variance is required are
enumerated in § 261.21(a)(2)(v) for
st’rface waters and 204.21(d) for gi ound
waters. It is from the analysis of these
factors that conclusions can be drawn to
determine whether or not a permit
should be issued. For many
contaminants, the Agency has data
which can serve as a basis for drawing
conclusions, but for others, data is
unavailable or limited. The data base for
formulated and decomposition
inorganics is sufficiently documented
and referenced. However, with respect
to natural and synthetic organics. the
data base is less precise. This is due, in
part, to the fact that the technology
required to identify, measure, and
correlate these compounds with
observed health and environmental
effects has only recently been
developed. In the past, most discussion
of the effects of organics in water were
merely categorized as ‘ taste and odor”
problems. Most of the factors are
physical or chemical factors which are
available or determinate. Other factors,
especially those associated with the risk
of exposure to complex organic
chemicals, are associated with data
from which differing conclusions may be
drawn by reasonable people and
represent the frontiers of knowledge.
The Agency does not underestimate the
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11139
difficulty which might be involved in
making a successful demonstration iii
adverse locational circumstances, but
nonetheless feels that permitting
decisions that allow exposure to
hazardous waste cannot be juatif ed
because of a lack of knowledge.
Technical discussions of those factors
arc included in the Background
Document.
It cannot be too strongly stressed that
locations which do not expose the
public to human risks are of paramount
importance in hazardous waste land
disposal. The need for good sites is even
more acute for hazardous wastes which
have only a very limited data base. The
primary means of ensuring that
e .posure does not occur through ground
water are the requirements of
§ 264.21(b).
Several commenters expressed
concern that the ground water
protection strategy set forth in the
October 8. 1980 Federal Register notice
failed to give proper deference to State
or local designation of ground water
uses. Section 284.21(b)(1) provides that if
a government entity has the authority to
control ground water exposure by
restricting activities that might result in
exposure, and such entity exercises that
authority in favor of the type of activity
proposed to be carried on or being
carried on by the owner of operator land
disposal facility, then the permit process
can recognize those determinations.
In many States, individual ownership
of ground water is not possible; rather
the State maintains ownership and
control. The rights of individuals to the
ground water are limited to reasonable
use, provided that such use does not
interfere with the similar rights of
others. Rights to use are usually
ancillary to land ownership but may
othei wise be acquued through the
purchase of rights of others, or granted
or withheld through the legis1ati e
process. Rights may also be held by
other levels of government. For example,
in the West, the Federal government has
not surrendered it rights to materials
beneath the ground surface, including
ground water, to State ownership.
although some rights may hdve been
surrendered to individuc.ls.
Municipalities or counties ma also hold
rights to ground watei, espeUally
jurisdictions that have been awarded
the power of eminent domain.
Section 264.21(b)(2) provides that if a
permit applicant can, by virtue of his
vested rights, control exposure to effects
caused (or to be caused) b the disposal
of the waste into or on the land by
restricting activities that could result in
exposure, the permitting process can
recognize those rights. Rights to land or
ground water are only recognized; not
granted by the permitting process. With
respect to ground water, the manner in
which such rights are held varies
markedly in different aieas of the
country according to applicable law. By
recognizing the rights that are held and
exercised by individuals or government
entities in the regulation, the permitting
obligation of the Agency does not
interfere with existing and variable
federal, state, local or private control
over ground water.
A permit applicant who cannot realize
control over the vested interests his
activities will affect, or when that
control is not provided by a duly
authorized government entity, is not
precluded from pursuing a permit
application. Such an application may be
granted if it is established that the
effects resulting from the land disposal
activity are acceptable with respect to
the remainder of the performance
standards. This includes the opportunity
to show that affected ground waters
cannot reasonably be used as provided
in § 264.21(d)(3). Specific criteria are
established for such a showing under
the TJIC program as referenced in
§ 264.21(d)(4). The limitation on the
“exempt aquifer’ criteria expressed in
the paragraph is due to the character of
the exemption associated with those
particular criteria. They are criteria
associated with the use of the land and
ground water for purposes which are not
consistent with the maintenance of high
quality drinking water. They are not
appropriate for application to allow
hazardous waste disposal. It should be
noted that this paragraph also limits the
practice of disposing of hazardous waste
by ‘well injection’ directly into an
“underg:ound source of drinking water”.
The Agency has initiated a ban of such
practices under the authority of the
SDWA. If a showing that ground water
use is not possible can be made in any
given location, it would be appropriate
that the vested rights to such affected
ground waters be assigned or acquired
and then dedicated.
There are currently a limited number
of state planning documents which
could, because they are required under
federal lRw and subject to the appro al
of the Administrator, be rccogiizcd by
the Agency in its administration of the
permit program under Subtitle C of the
RCRA. Those with the greatest potential
relevance are the State Solid Waste
Management Plans—section 4007(a) of
the RCRA; Slate ide Waste Treatment
Management Plans—section 303(a) of
the CWA; and Areawide Waste
Treatment Management Plans—section
208 of the CWA. Compliance with
statewide or ureawide planning is
required by § 204.2fla)(2)(A). Further, it
has been suggested by some that State-
Federal Water Quality Standards could
be adopted by states for ground water,
approved by the Administrator, and
they receive similar status as those
established for surface waters—sections
303(c) and 303(d) of the Clean Water Act
(CWA). The Proposed Ground Water
Protection Strategy, discussed below
represents the most significant effort to
achieve a State Federal relationship for
the protection of ground water.
5. Ground Water Protection Strategy.
On November18, 1980, EPA published
the Proposed Ground Water Protection
Strategy. This Strategy, when
promulgated in final form, will serve as
EPA’s policy framework in the area of
ground water protection. Public input on
the issue of ground water protection was
solicited at recent National Ground
Water Strategy meetings sponsored by
EPA. with participants from State and
local government and business,
environmental, academic and public
interest groups. The consensus of the
workshop participants, as reflected in
the proposed Strategy, was a recognition
that the ground water system should be
segmented with respect to all its
legitimate uses, v hiIe continuing to
recognize the priority of its use for
drinking and irrigation to support life.
The proposed Strategy contemplates
that the major responsibility for ground
water protection, evaluation and
segmentation will be at the State and
local level. The approach outlined in the
Strategy involves the development by
the States, of State ground water
protection strategies to be implemented
through a classification scheme. This
cIass fication scheme would prioritize
ground water areas for high levels of
protection and identify those areas most
suited for potentially polluting activities,
such as the future siting of waste
disposal facilities. The federal role
under the proposed Strategy includes
assisting the States in their ground-
water monitoring effoi ts, in the
development of State ground-water
protection strategies, and through
research and technical assistance
Additionally, the federal government is
to develop minimum national
requirements for high priority problems
through established vehicles such as
hazardous waste regulations under
RCRA.
Several commenters suggested that
promulgation of ground-water protection
standards under Subtitle C of RCRA is
premature prior to the finalization of the
National Ground Water Protection
Strategy. The Strategy as proposed.
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Federal Register I Vol. 46, No. 24 / Thursday, February 5. 1981 I Proposccl Rules
however, directs the Agenr.y to continue
with the implementation of federal
regulatory programs which affect ground
water. Moreover. the permitting process
‘tablished by these regulations
‘vides a functional parallel to the
•proach set forth in the proposed
strategy. Classification schemes
established by the States can be
recognized by the federally
administered permit program. However.
as stated in the proposed Strategy, until
a classification scheme is adopted. EPA
will maintain a policy that where ground
water is currently of drinking water
quality or better, it will be provided
protection to ensure that its utility for
this use is not impaired.
C. Subpart F—Ground-water and Air
Emission Monitoring
The proposed requirements of this
Subpart apply to owners and operators
of land diapoal facilities used to treat,
store and dispose of hazardous waste
which have received a permit to operate.
These requirements are intended to
provide information on the impact of the
facility on ambient air and ground-water
quality.
In the case of ground-water
monitoring, the regulations proposed on
December 18, 1978 included ground-
water monitoring requirements for
landfills, surface impoundments and
land treatment facilities; and the
requirements for interim status facilities
omulgated on May 19, 1980 included
und-water monitoring requirements.
.Iso on May 19, 1980 ground-water
monitoring requirements were proposed
for certain underground injection
facilities.
In the case of air quality monitoring,
no such requirements for hazardous
waste facilities have been previously
proposed or promulgated under RCRA.
This proposal to implement an air
monitoring requirement for land
disposal facilities is discussed in detail
starting with item 6.—Air Emission
Monitoring, of this section of the
preamble.
1. Applicabiity— 264. ?. The ground-
water monitoring requirements proposed
tuday apply to all hazardous waste
management facilities where the
storage, treatment, or disposal of
hazardous waste could cause discharge
to the ground water, as did both the
originally proposed requirements and
those promulgated for interim status
facilities (Part 285). The Part 265 ground.
water monitoring requirements Involve
monitoring of indicator parameters to
detect discharges to ground water and
subsequent assessment of ground water
quality following detection of a
isthargr. These proposed regulations
are similar. New facilities and facilities
which had operated under interim status
but had not detected a discharge to
ground water are required to monitor
indicator parameters until a discharge is
detected. Following detection of a
discharge to ground water these
facilities and those facilities which had
previously detected a discharge to
ground water during interim status are
required in these proposed regulations
to monitor the quality of the
contaminated ground water as it
migrates from the facility. The results of
this ground-water quality monitoring are
then to be compared with the ground-
water quality provisions of the facility
permit. Although the Part 265
requirements include a waiver
provision, no similar provision is
included in these proposed
requirements. The specific aspects of the
facility ground-water monitoring system
will be defined in the facility permit.
2. Ground-water monitoring system—
§ 264.97. As in the Part 265 regulations
the minimum Indicator monitoring
system is specified as at least one
monitoring well located upgradient of
the waste management area and at least
three wells located at the downgradient
limit of the waste management area. The
proposed requirements also specify that
if the described system is inappropriate
at a given facility then a different
system for detecting discharges to
ground water must be installed and will
be specified in the facility permit.
Facilities monitoring the quality of the
ground water following detection of a
discharge to ground water are required
to install ground water following
monitoring wells at the downgradient
limit of the waste management area to
provide samples of contaminated ground
water at that point and additional
monitoring wells further downgradient.
By requiring two downgradient groups
of monitoring wells, facility owners and
operators can measure changes in
ground-water quality over distance and
time. The facility permit will contain
prediction of the quality of ground water
and the information obtained from these
wells will be compared against those
predictions.
3. Sampling and anolysis —4 264.92.
The Agency has published a
“Procedures Manual for Ground-Water
Monitoring At Solid Waste DispoBal
Facilities.” EPA—530/SW-.611, August
1977 and a manual on “Method for
Chemical Analysis of Water and
Wastes,” EPA—600(4—78-O2O, March
1979. These manuals discuss sampling
and analysis procedures and are
applicable to the requirements of this
section.
Similar to the Part 265 requ,ii. ,
the proposal requirements idi t,f. ‘
preferred four indicator puramLt 5
specific conductance, total orgar.tc
carbon and total organic halogen i
other suitable indicator pararnetf.r
to be used they will be specified in
facility permit. Unlike the Part 2Q5
requirements. the ground water p ; -
be analyzed for NPDW standards ne
selected ground-water quality
parameters. This type of ground-w
quality information will be avail, bl 1 ’
from previous monitoring or the fdnl’l,
permit application. As in Part 265.
background indicator parameter
concentrations are to be established ft:r
one year and used for future
comparisons. Also different from the
Part 265 requirements. ground-water
monitoring is to be performed on a wlI
by well basis since the indicator
monitoring will only be performed at
new (uncontaminated) facilities or
interim status facilities which have flOt
detected discharges to ground water.
Sampling and analysis requirements for
ground-water quality assessments and
predictions will be specified in the
permit for the particular facility.
Ground-water elevation determinations
are required at all facilities to maintain
a check on the water table gradient and
direction.
4. Preparation, evaluation, and
response—s 264.93. These proposed
regulations require that owners and
operators evaluate the indicator
monitoring data to detect dischargcs
utilizing the techniques included in the
Part 265 requirements, the student’s
t-statistic is recommended but other
suitable techniques are acceptable.
Once a discharge to ground water has
been detected and confirmed an owner
or operator must implement a ground-
water contamination assessment
program. Under this program the extent.
rate, and predicted migration of ground-
water contamination must be
determined and compared to the
predicted allowable ground-water
contamination specified in the facility
permit. Once the ground-water
contamination program has been
implemented at a facility, annual
comparisons between predicted and
measured ground-water quality must be
performed. On a tn-annual basis the
anticipated impact of the facility on
downgradient ground-water quality
must be repredicted and reported to the
Regional Administrator. The report on
the reprediction of the Impact on
downgradlent ground-water quality may
cause the Regional Administrator to
review the facility permit.
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11141
5. Recordkeep,ng and r* ’porl lug—
§ 264.94. As in the Part 265 regulations,
records of ground-water monitoring
must be maintained throughout the
operating period and the post-closure
period. In addition to the report of
ground-waler monitoring included in the
annual report, reports of evaluations are
to be submitted in accordance with
specific requirements of tbese proposed
regulations.
6. Air emission monitoring. On
December 18, 1978, the Agency proposed
air emission standards for tree tnient and
disposal of hazardous wastes (43 FR
59008). Based on a number of comments
and the Agency’s own analysis, the
Agency expressed concern about (he
proposal which included definition of
volatile waste solely in terms of its
vapor pressure and use of the OSHA
levels for allowing variances. The
Agency discussed some aspects of the
comments and the reasons for such
concern in the Preamble to the Interim
Statkis Standards for volatile waste on
May 19, 1980 (45 FR 33166). The Agency
is continuing its investigations of
alternatives to the problem of hazardous
air emissions from land disposal
facilities.
The Agency recognizes that the
potential of hazardous air emissions at a
land disposal Facility should be
evaluated prior to the issuance of
permits. The evaluation will consist of
long-term and short-term effects upon
human health and the environment
based on the ambient air analysis.
Information relating to the quantity of
hazardous air quality air emissions and
the toxicity of volatile compounds, and
cons .4eration of control measures will
be required. Ambient air monitoring
data which will provide the basis for
evaluating the impact of hazardous air
emissions from a land disposal facility
to the downwind public will also be
required. The Agency believes that a
mechanism should be established to
confirm and updata the evaluation
which is performed based on the state of
the art methodolegv, and that the
ambient air mor.itor ng data can be
sufficiently used for this purposc.
Withn this framework, the Agency
prc’pnses to require the owr’er or
Operator of a land disposal facility to
monitor the upwind and downwind
ambient air qualay at or beyond the
waste management area, and to
L’ aluate the potential of hazardous air
emissions at his facilitv.Tbe proposed
icquircrneflts will provide a flexibility
fur making a case-by-case determination
of the Facility impact based on the best
engineering judgement of the permitting
ofiie,al This v ll render a higher degree
of control in the area of high background
concentrations, and vice versa.
The cost of the ambient air monitoring
will vary depending upon frequency of
monitoring and the number of specific
constituents to be analyzed. The owner
or operator may select the monitoring
technique and procedure (including the
type of contaminants to be analyzed)
suitable to his applications, subject to
review by the Regional Administrator. A
summary description of, and support for.
the recommended evaluation procedure
for assessing the downwind impact can
be found in “Land Disposal Toxic Air
Emissions Evaluation Guideline.” -
The wa8te management area will be
defined in the permit. Migration of
hazardous waste constituents and
byproducts from this area may violate
the requirements of the permit and
necessitate the reevaluation of the
original assei sment of the risk to human
health and the environment from air
emissions. The owner or operator will
develop a plan to detect the location of
a gaseous release migrated from the
waste management area. The Regional
Administrator will review the adequacy
of the plan during the permitting
process. If monitoring detects the
release of total hydrocarbons or
halogenated compounds (which are used
as an indicator for toxic chemicals)
further analysis for each constituent of
the hazardous air emissions at the
location will be required.
7. Applicabiity—4 264.90. Improperly
designed and operated facilities treating,
storing, or disposing of hazardous waste
could result in significant emissions of
hazardous waste constituents or
decomposition byproducts into the
atmosphere. The general approach in the
proposed regulation is to require the
owner or operator of a facility from
which hazardous waste constituents or
decomposition byproducts are emitted
mb the atmosphere to establish an air
monitoring system to measure the effect
of the facility on ambient air quality.
Gaseous releases may occur where the
waste is placed or could be released by
leachate from another location based on
leachate migration and volatilization,
leachate decomposition byproducts. or
dissolved gases in the leachate. Gases
may also migrate in the unsaturated
zone or via ground water in the
saturated zone. Ground water
monitoring will effectively indicate
leachate migration and the possibility of
gaseous emissions and migiation via
leachate and ground water. Maintaining
the unsaturated zone as required in the
air emissions section will detect gas
migration from the waste. Both
saturated and unsaturated zone
migration of gaseous emissions can
result in releases to the atmosphere or
confined spaces (e.g., basements.
sewers) posing a potential threat to
human health and the environment.
8. Air emission monitoring system—
§ 264.95. This section contains
requirements for a system to monitor
ambient air quality and gaseous
emissions. The ambient air monitoring
system will consist of ambient air
samplers at upwmd and downwind
locations, and instruments to gather
meteorological data. The ambient air
monitors must be installed at or beyond
the limit of the waste management area
as specified in the facility permit.
Sinultaneous monitoring of the
upwind and downwind ambient air
quality, taking wind direction and speed
into consideration, will yield
information on the site-specific
background and downwind
concentrations, to enable evaluation of
the net impact of the facility on the
atmosphere. Two monitors at the
upwind and downwind locations would
constitute the bare minimum number:
The installation may be permanent.
portable, or a combination of these. The.
number and location of the monitors will
be dependent upon the size of a facility.
meteorological conditIons, prevalent
winds, and the surrounding population
density and distribution. Since the
ambient monitoring data will ultimately
play a major role in assessing the impact
of the facility emissions of the
downwind pubhc, it is important to have
a sufficient number of monitors in the
direction of the population.
Meteorological data are needed to
facilitate the interpretation of the
ambient monitoring data. The major part
of this interpretation should include the
background concentration, validation of
prediction. and the assessment of
ambient air quality impacting public
health and the environment. For most of
facilities or a reasonable size, one wind
direction and speed indicator would
provide data sufficient for indication of
wind direction and speed. Such
meteorological data are also available
from the National Climatic Center in
Asheville, North Carolina. Other
meteorological information such as
stabilit} class necessary in the
evaluation may be monitored or
collected to increase the accuracy of the
meteorological parameters.
When a number of facilities are
located in the same waste management
urea, the facilities affected by the
proposed regulation may be monitored
individually or as a whole. In either case
the number and location of monitoring
sites must provide the kind of data that
can be used for subsequent analyses
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Federal Register / Vol. 46. No. 24 I Thursday. ! ebruary 5. 1931/Proposed Rules
and evaluations. It Is important that the
background concentration be
established for each upwind monitoring
site to derive a net effect of a facility.
The apparatus used for ambient air
npling of hazardous waste
.istituents and byproducts is available
commercially and can be purchased as a
package unit. If the owner or operator
owns or operates some other kind of
ambient air sampler, he should
investigate the possibility of using the
unit by adapting a sample collecticn
device for collection of hazardous waste
constituents. Although the analysis for
the purpose of this regulation will be
primarily directed towards individual
constituents, indicators such as total
hydrocarbons may have to be purchased
for on-site usage, or the samples may
have to be analyzed by an analytical
contractor.
The portable hydrocarbon analyzers
for use in detection of the location of the
migrated air missions as required by
paragraph (c) of this section are also
commercially available. Depending upon
the particular requirements, the owner
operator may utilize the detector for
total hydrocarbons or total halogenated
compounds. The former apparatus
operates on the principles of analyzing
carbon compounds, the later operates on
the principles of photoionization of
halogenated compounds.
9. Air emzss!on sampling and
anaI;’sis— 264.06. This section
Idresses requirenients for developing a
an to monitor ambient air quality. The
.tan shall include proceduies and
techniques for sample collection, sample
preservation and shipment, analytical
procedures. type of contaminants or
hazardous constituents to be analyzed.
meteorological data, and the chain of
custody control. The description of the
eppatatue and the type of adsorbent if
used shall also be contained in the plan.
The analytical procedures shall not
only address the methods of analysis,
but also the subject of quality control
and assurance to increase its accuracy
and precision. Although the ambient air
sampler will be able to collect most or
all of hazardous waste constituents or
decomposition byproducts in the waste,
it may be unreasonable to analyze for
all of the collected hazardous
components. The owner or operator will
consider the quantity of a constituent in
the waste, its volatility, and toxicity in
z-.rriving at the type and number of
constituents to be monitored. The type
and number of hazardous components
analyzed may require periodic
adjustment depending upon the change
of operational modes at a later date. In
addition to monitoring of specific
unstituents, monhtorir.g of indicators
may be necessary to quantify the
emissions and ambient air qu ility
relating to other adverse health effects.
- Paragraph (b)(2) of this section
requires, as a minimum, four sets of
ambient data to be obtained during a
period of three months. Since the
samples at the upwind and downwind
locations will be taken simultaneously.
this corresponds to a sampling
frequency equivalent of four times a
quarter. The length of each sampling
will be of such duration that the
concentration can be accurately
measured at the detection limit of the
instrument. The importance of sampling
at theoretical upwind and downwind
conditions is to simplify the subsequent
analysis and to alleviate any Inaccuracy
in ascribi ; the net contribution. The
wind con ition will invariably be a
factor in the alignment of the monitors.
The measurements should preferably be
performed on an equal interva during a
quarter period. This contrasts to an
extreme situation where all
measurements can be completed in a
matter cf a day, for instance. The
measurements need not be done at the
time of a maximum emission rate but it
should reasonably reflect a
representative case of emissions, and
should not result in ambiguity in
ascribing the net air quality effect of a
facility.
If the owner or operator wishes, he
ma Institute ambient air monitoring at
a frequency greater than that required in
paragraph (b)(2) of this section. The
advantage would be improvement in the
statistical significance of the results.
since the sample sizes are increased.
The substance of paragraph (c) of this
section has been discussed previously.
The requirement includes detection of
the location of migrated gaseous
emissions using portable deteclers, but
does not include additional
quantification of ambient air samples.
This aspect of quantification is
addressed in a later section Because the
response signaling such detection would
be dependent upon the wind condition,
the wind condition must be monitored
any time the monitoring for the
detection is carried out. The owner or
operator may develop a strategy for the
monitoring that will make it
unnecessary to walk through the vast
area on the outskirt of the waste
management area. The hydraulic and
geologic consideration in leachate
migration and groundwater transport
may provide a basis for deriving a
scheme of investigation. The
investigation of migration by hazardous
gas itself may require consideration of
pressure gradient in the soil. In cases
such as capped acUities ,
necessary to walk throu th -
area on the outskirt of th 0
management area. -
The frequency of the
detection of gaseous release ii•.
year. Generally one person °
the sniffer for detectioh and
person will accompany him tr
the area of investigation, the
background reading, ident 1 j 1 , 11 1
location and object, and respnii 51
indicatng such detection The - .
monitoring will depend upun U’ .. .,- ;.
Investigation and the efIicienc c’
performing the planned strate . ..
should not require more than a . ,
period for each monitoring effort
10. Air emission evaluation c i .ol
response—a 264.97. Under the
requirement of paragraph (a) of th,c
section, the owner or operator of a
treatment, storage, or disposal IdC ,i,’ 1
must evaluate the extent of emissiar.,,
hazardous waste, its constituents cr
decomposition byproducts, and pr j
the ambient air concentrations at the
downwind monitoring sites based an ii ..
rate of emissions from the facility arj
the background ambient air
concentration. The guidance manual
explains the recommended methods f r
estimating the emission rates from
surface impoundments, landfills, and
land treatment facilities, and for
predicting the ambient air concentration
impinging on the monitoring receptor.
The estimated rate of hazardous air
emissions can be further yerified
experimentally, but it Is not required for
the purpose of prediction. The screening
technique described in the manual is
considered sufficient for such prediction.
More sophisticated dispersion models
are available. Reference to a
computerized model can be found in the
guid.,nce manual.
The data obtained from the ambient
air monitoring system in accordance
with the previous sections can be used
in several ways. Since the predictcd
value on ambient air quality at the
monitoring site should be compared
with the ambient air monitoring data,
the values of the parameters used in the
prediction should be consistent with the
conditions prevailing at the time when
the ambient air sampling was
performed. The comparison between the
predicted and monitored values shall be
included in the annual report. If there is
a significant difference between the two
values, the evaluation should be
reviewed as to its correctness especially
with respect to the estimated emission
rates used in the prediction. The manual
describes the quantitative relationship
ol the emission rates and other
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• . ._ - 7 2 . t .V .r..
parameters with the downwind ambient
air concentration.
The requirement for estinmting the
impact of a facility on public health and
the environment is addressed in
paragi aph (c) of this section. The
comparison to be made in accordance
with paragraph (b) of this section is
tantamount to a scheme to calibrate the
predictive models and to take corrective
measures if necessary. Such models will
be used to predict the anticipated effect
on the downwind public. The prediction
shall be repeated annually and must
include at a minimum The worst
condition, quarterly, and annual effects.
The recommended procedure for the
prediction is described in the guidance
manual.
Corrective action to reduce the rate or
quantity of hazardous air emissions
should be required to the extent
necessary to protect human health and
the environment based on the ambient
air quality monitoring and analysis. In
addition to carcinogenic evidence, other
health effects of hazardous constituents.
including acute toxicity, mutagenicity,
teratogenicity, bioaccwnulativeness,
persistency, and formation of
photochemical oxidants must be
considered in the impact assessment. In
the aica where the ambient air quality
of photochemical smog is not presently
acceptable, the air quality evaluation
should also address the need for control
of total hydrocarbons to the extent
possible to prevent further deterioration
of (hr oxidant level.
The consideration of these factors will
lead to an allowable ambient air
concentration impacting the downwind
public and environment. The guidance
manual explains the method of
evaluation and th’ factors to be
considered. The allowable ambient air
concentration specified in the facility
permit will be compared with the
antic’ip. ted effect. Such comparison will
be m ide available to the Regional
Adm riistrator in the annual report as
required in paragiaph (dJ of this section.
If the eumparison shows a non-
compliance of the predicted impact on
the amb.enl air quality with permit
provisions, the owner or operator must
determine whether Ow hazardous air
cmms ioni, can be reduced and include in
the annual report the proposed
modifications to the facility to bring it
into compliance with allo % able ambient
air conc.entrations
Paragraph (1) of this sectioa addresses
reqtmmremen s for a plan to institute a
detection s\stcm in accordance iih
§ 264 97(.) and § 2t4 93(cl. and capable
of assc si-ig the efiact on ambieni air
qimalit when the detection of migration
ocitirs. Once such a location is drtectcd.
the indicators can no longer be used for
quantification of hazardous wasic
constituents. The plan must mi-Jude
techniques and procedures for sample
collection, frequency of sampling.
sample preservation and shipment,
analytical procedures, quality control
and assurance measures, and chain of
custody control. The plan must also
address the remedial measures to
respond to short-term or long-term
contamination and health effects. The
anticipated effect of migrated emissions
on the nearby population must be fully
assessed when detection occurs.
The air and area contamination
assessment programs is in essence a
collection of the plans which will be
used for the implementation of the
detections system, and which will fully
assess the air and area contaminn ion if
and when gaseous migration from the
waste management area occurs. If a
gaseous release is detected the
assessment plan must be implemented,
•as required in paragraph (g) of this
section. The owner or operator must
pursue further evaluation of the
contamination regarding quantification
waste constituents and prediction of its
lmpacL The results of the assessment
along with the comparison with the
provisions of the facility permit must,be
provided to the Regional Administrator.
11. Air emission recordkeeping and
repor1ing— 264.98. This Section
addresses requirements for keeping
records and reporting the results of the
ambient air monitoring, the system for
dctecti3n of migrated emissions, and the
evaluations. Such requirements are
addressed in discussing each applicable
section. This section represents a
summary of the requirements.
D. Subpart K—Surface lmpoundrneiits
Today’s publication of regulations for
surface impoundments under Subpart K
of Part 264 is applicable to all facilities
which are defined as surface
impoundments in § 260.10. These
facilities may be cc’ !gorized as follows:
(1) Those aurfaci impoundments
which arc used solely to treat or store
hazardous waste and which use a
double liner containment system
designed and operated in accordar’co
with § 264 221(f ), 264.222(c) and 264 223
(b). (c) and (d):
(t) ‘ [ ‘hose surface impoundments
which tieat or store hazardous waste
and use a single liner system: and
(3) Those surface impoundments
which treat or store hazaidous waste
end then dispose by not remo ing all
hazardous waste ci hazardous waste
residue ui by leaving time waste in phice
at closure
These facilities are designed to
prevent discharge into the land and
ground water, and to surface waters
(except discharges authorized by an
NPDES permit). Facilities which are
designed to discharge into the land are
defined as seepage facilities and are
subject to the proposed Subpart R
regulations.
Owners and operators of new surface
impoundments that are not designed to
prevent discharge into the land to
comply with this Subpart will not be
permitted as a surface impoundment,
and existing surface impoundments that
are not brought into compliance with
these regulations must be permitted as a
seepage facility under Subpart It remain
on interim status subject to Subpart K of
Part 265, or close.
Surface impoundments (also known
as pits, ponds, or lagoons) are designed
to hold liquid wastes and wastes
containing free liquids Leakage to
ground water generally poses the most
serious threat to human health and the
environment irorn impoundments, but
air emissions from volatile wastes
(today being addressed in § 264.90) and
surface water contamination as a result
of overtopping the impoundment or dike
failure can also be serious problems,
The Agency promulgated regulations
for a limited subset of [ acilities called
surface impoundments on January 12,
1981, (46 FR 2868—2870) addressing
ground water and surface water
concerns The general approach was to
require prim.’iry containment and
inspection.
Surface water concerns were
addressed by standards which prohibit
overtopping the impoundment, require
maintenance of a specified freeboard,
require that the structural integrity of
dikes be certified by a qualified engineer
and preserved by protection from
perennial woody plants and burrowing
mammals and by protective co.’er, and
require inspections at specified
frequencies In addition, the regulations
required a device or method to shut off
waste flow into the impoundment. and
the diversion of run-on away from
impoundments. Above ground
secondary containment was not
required and inspection is used to
ensure that actual or potential d’scharge
is readily identified and corrected.
Ground water concerns ware
addressed by standards which required
a primary liner system in contact with
the waste designed to prevent discharge
from the impoundment during the life
(i.e, active life ‘nd closure period) of
time facility, to meet certain pcrform.mnce
requlrcmcnts. and appropriate
inspection and testing was req mu’ed
during construction and installation A
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Federal Register / Vol. 4b, No. 24 I ‘ihursday. February 5. 1981 / Proposed Rules
Irachate detection, collection, and
removal system beneath the primary
system was also required to detect
e of the primary liner system and
- revent discharge into the land. This
system was to be inspected at least once
each operating day and operated to
rec ove any liquids which accumulate in
it. A containment system evaluation and
repair plan, to be implemented in the
event of a liner failure or evidence of a
possible liner failure, must also be
prepared.
Today’s regulation provides
additional regulatory guidance for single
liner surface impoundments including
those which dispose of hazardous
wastes by leaving wastes or waste
residues in place at closure. A single
l:-.er surface impoundment, including
those which are designed to be closed
without removing the waste or waste
residues, is a land disposal facility as
defined in § § 260.10 and 264.19. A
surface impoundment which is a land
disposal facility must be analyzed in
accordance with the generic land
disposal facility requirements (See
§ § 264.2. 264.20, and 264.21)
1. Applicabthty—4 264.220. The
regulations in this subpart apply to
owners and operators of facilities that
u e surface impoundments to treat or
store hazardous waste and are an
‘nansion of the regulations (46 FR
—2870) which applied only to surface
undments which are used solely for
irage or treatment. Although disposal
m”y occur at some of the facilities
which could be permitted under this
Subpart, these regulations do not apply
to facilities which are designed to
discharge wastes into the land. Facilities
which are designed to discharge into the
land during their active life are defined
as seepage facilities and are subject to
the proposed Part 264, Subpart R
regulations.
2. General design requirements—
§ 264.221. Changes to the regulatory
language include a specific exemption
from the requirements of Subpart F for
those storage or treatment and storage
impoundments which comply with
§ 264.223(b). These facilities by vfrtue of
their double liner containment system
provide internal monitoring of’ any
escaping leachate. Furthermore,
facilities which comply with § 264.223(b)
and which are used solely to treat or
store hazardous waste are not used for
disposal and therefore do not require the
analyses specified for land disposal
Facilities.
3. Closure— 264.228. Closure of a
‘ ‘rface impoundment which will be
t solely to treat or store hazardous
te includes removal of all hazardous
dstc and hazardous waste residues. If
the surface impoundment is to be
designed to close with hazardous waste
residues remaining, authorization must
be obtained in the facility permit. As
stated before, a single liner surface
impoundment, including those which are
designed to be closed without removing
the waste residues, is a land disposal
facility and must be analyzed in
accordance with the generic regulations.
The authorization to close with waste
residues remaining comes from the
analysis required by and compliance
with the generic land disposal facility
regulations.
E. Subpart L—Waste Piles
Today’s publication of regulation for
waste piles under Subpart L of Part 264
is applicable to all facilities which are
defined as waste piles in § 260.10.
The Agency promulgated regulations
for a limited sub-set of facilities called
waste piles on January 12. 1981, (46 FR
2870—2872) addressing ground water and
surface water concerns. The general
approach was to require primary
containment and inspection.
These regulations have been generally
adopted for today’s publication. Several
revisions were, however, made to
principally address situations where
closure with wastes or waste residues
remaining is anticipated. A brief review
of these changes follows.
1. General design requirements—
§ 284.251. Paragraph (b) of § 204.251 has
been revised to delete mention of
ground water. The generic regulations
will, after comprehensive analysis and
documentation, allow discharge to
ground water where human health and
the environment are not L)u’eetened.
Direct discharge to surface water will
still be prohibited without an NPDES
permit.
Paragraph (c) of § 204.251 has been
added to clarify the distinction between
waste pill which are used for storage or
for treatment and storage, and those
which will allow discharges to ground
water and/or surface water (disposal).
Those which will be used solely for
storage or storage and treatment must
have a contairunent system complying
with § 264.253. This includes a leach ate
and run-off collection and control
system: and either an impermeable liner
capable of containing the waste and
associated leachate, and any equipment
to which the liner may be exposed: or If
the liner Is not of sufficient strength to
prevent failure due to physical damage
from equipment used in pile operation, a
leachate detection, collection and
removal system to remove any
discharge.
Changes to the regulatory language
also include a specific exemption from
the requirements of Subpart F or those
storage and treatment waste piles which
comply with § 264.253. Monitoring of
escaping hazardous waste or hazardous
waste residues is achieved by either a
doub!e lined containment system with
le ichate detection, collection, and
removal or periodic removal of the
waste pile and testing of the underlying
base to ensure that it has not
deteriorated to the point where it is no
longer capable of containment, is
already leaking or is otherwise is
disrepair (see § 264.254(b) and (c))
2. General operating requirements—
§ 264.252. Certain waste piles will be
permitted to discharge to surface and
ground water during the life of the pile.
Permission to discharge, or rather not
requiring that discharge be absolutely
prevented, will be based on the
information required in the owner or
operator’s application. Sé tion 264.252(c)
has been revised to emphasize that
leachate and run-off must be collected
and controlled UflICSS authorized by the
permit for the facility.
3. Inspection and teszing —4 264.254.
To ensure that hazardous wastes or
hazardous waste residues are not
escaping from the waste pile, periodic
inspection of wind dispersal, run-on and
other waste containment sytems must
be effected. As previously stated,
Inspection of the waste pile base may be
omitted if the pile has a leachate
detection collection and removal system
as specified in § 204.253(a)(3) (see also
preamble discussion of General Design
Requirements).
4. Closure and post-closure—-
§ 264.258. Closure of a waste pile which
will be used to treat or store hazardous
waste will require removal of all
hazardous waste and hazardous waste
residues. If the waste pile should be
designed to close with hazardous waste
residues remaining, authorization muat
be obtained in the facility permit. Those
which are designed to be closed without
removing waste residues are land
disposal facilities and must be analyzed
in accordance with the generic
regulations. The authorization to close a
waste pile with hazardous waste
residues remaining is determined from
the analysis required by and compliance
with the generic regulations.
F. Subpart M—Lond Treatment
Land treatment Implies that the land
or soil is used as a medium to treat
hazardous waste. The regulations reflect
EPA’s philosophy that applying
hazardous waste to the soil is a waste
management practice reserved for those
wi ste streams that can be successfully
treated in a soil system.
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fednr.il Register / Yol. 46, No. 24 / ‘IhuNda . Fi’bruarv 5. 1981 / Prupo eo Rules
11145
The Agency does not consider land
treatment to be an experimental
- disposal prdctice. There ore certain risks
and uncertainties associated with land
treatment just as there are with other
hdzardous waste management practices.
It would be inappropriate to interpret
the comprehensive monitoring
requirements for land treatment
facilities as being a measure of the
uncertainty associated with the practice.
Rather the monitoring requirements are
comprehensive because land treament
facilities rely on dynamic physical.
chemical. and biological processes
occurring in the soil to degrade and
immobilize waste constituents.
Monitoring to the degree required by
this regulation, provides the data
necessary to evaluate the performance
and hence determine environmental
protection. The Agency considered
many of these same monitoring
requirements for landfills and surface
impoundments, but decided against
them because of the difficulty of their
employment in those situations.
The Agency believes that land
treatment is a viable waste management
practice for selected solid and
hazardous wastes and can be a more
effective disposal option than landfilling
or incineration
1. App/icabi/ity— 264.270. These
requirements apply to all facilities used
for the land treatment of hazardous
waste. A land treatment facility is a
facility at which hazardous waste is
applied onto or incorporated into the
soil surfac.c.
2. General operating requirements—
§ 264.272. The General Operating
Requirements for control of run-on and
run-off remain unchanged from the
interim status version published on May
19, 1980. The rationale for these
requirements is discussed in the May 19,
1980 land treatment preamble (45 FR
33205 ci seq.).
3. Waste analvsis— 264.273
‘ReservedJ. The requirements for Waste
Analysis have been deleted because this
section was thought to be redundant
with the requirements order § 264.13,
General waste analysis, and the
information requirements of § 264.21. An
owner or operator is required undei
§ 264.13 to analyze the waste to the
extent necessary to land treat the waste,
and under § 264.21 to define the
hazardous waste(s) that will be land
treated and predict the mass rate of
hazardous waste and decomposition by
products that iirc expected to leadi or
otherwist: escape from the site.
Given these requirements and the
comprehensive waste analyses needed
to comply with them, the Agency felt the
waste anoi3 sis requirements of § 264.273
weje unnecessary
4. Food-chain crops— 264. 776. Under
Part 265.278 of the Interim Status
Standards, published in the Federal
Register as Interim Final May 1t . 1980,
the Agency permitted the growing of
food-chain crops on active portions
(treated areas) of hazardous waste land
treatment facilities provided that certain
requirements are met. This was a
change from the proposed Interim Status
Standards which prohibited growing
food-chain crops.
Commentcrs objected to this ban,
suggesLing that some crops on active
portions of hazardous waste land
treatment facilities could be grown on
treated soil without endangering human
health. Instead of a ban, commenters
suggested alternatives such as
specifying “safe” application rates to the
soil, and mQnitoring crops for their
uptake of hazardous constitutuents. The
Agency also received comments
suggesting that the ban was inconsistent
with the regulatory approach taken to
protect food-chain crops under Subtitle
D of RCRA. Those regulations were
finalized as the “Criteria for
Classification of Solid Waste Disposal
Facilities and Practices” (The Criteria,
40 CFR Part 257), on September 13, 1979.
The Criteria prescribed annual
application rates and limits on
cumulative loadings for cadmium based
on the specific health risk, and
treatment requirements for wastes
containing PCB or pathogens.
Commenteis argued that the application
of some hazardous wastes to food-chain
crops present no greater risk than such
practice with some non-hazardous
waste.
The decision to permit food-chain
crops to be grown on treated areas
during the interim status period is based
on the premise that where there is
convincing evidence that such crop
growth is safe, It would be unjustified to
probibit it. Such would be the case
where it is demonstrated that hazardous
constituents in a particular waste may
not be taken up by certain food-chain
crops, or after a period of treatment the
constitutents may degrade Into products
non-hczardous to humans. However, the
Agency still maintains that there is little
i’eal need to grow food-chain crops at
land treatment facilities. The small
amount of land used for land treatment
represents a negligible portion of the
total productive land available for crop
giowth in this country. Furthermore,
there are other productive uses of the
land, such as for ornamental horticulture
and growth of fiber crops or other non-
food crops.
Since the Aernc’t’ dut.ided that
piohibiting food-th,iin crop growth on
treated areas of land treatment facilities
could not he justified. it was necessary
for the Agcncy to adopt an approach
that would permit food-chain crops to be
grown and at the some time assure that
public health would be protected. The
Agency carefully examined the
suggestion made by commenters of
specifying “safe” application rates.
However, this approach was rejected by
the Agency because the existing data
base on rates of crop uptake of
-,bazardous substances were not
comprehensive enough to permit the
Agency to specify safe application rates.
Also, regulation by corp monitoring was
considered limited by the fact thaL safe
levels of most hazardous substances in
crops had not been determined by the
Food and Drug Administration, the
Department of Agriculture, or the
Environmental Protection Agency.
These inadequacies which have been
pointed out with the “safe” application
rates approach still exist today.
While the Agency did not yet have a
clear specification of the “safe” level of
contalants in food crops, it assumed that
the level of such contaminants present
in food crops not grown on waste
amended soils is acceptable. Banod on
this assumption, the Agency de ised a
two-part test to determine whether food-
chain crop growth on land treatment
facilities was acceptable. Prior to
growing a crop for market on soils that
have received hazardous waste, the
owner or operator must document that
hazardous waste constituents in the
waste, as well as arsenic, lead, and
mercury, would not (1) be transferred to
the edible portion of the crop by plant
uptake or that it would not (2) occur in
greater concentation in the crop than in
crops grown in the samv region on
similar soils which have not had wastes
applied.
Also, the owner or operator must use
actual field studies or the crop for
comparative purposes. The conditions
under which the comparable crops are
grown must he similar to the conditions
found at the facility. For example, soil
type, soil moisture, soil pH, and soil
nutrients, must be similar at both the
facility and the control sites. The owner
or operator must also document the
sample selection criteria, sample size
determination, analytical methods, and
statistical procedures used to make the
demonstration. hi order to determine
compliance prior to waste application
the owner or operator must pre-test a
sample c.rop using the type of waste and
application rate that will be used at the
facility.
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Federal Register / Vol.46, No. 24 I Thursday, February 5, 1981 / Proposed Rules
The Agency also examined the
approach used in the “Criteria for the
Classification of Solid Waste Disposal
Facilities and Practices” and concluded
‘the limits developed in these
lations for ca•dmium should be
rporated into the Interim Status
regulations.
The Criteria include two approaches
for the land application of wastes
containing cadmium. Control of the pH
of the waste and soil mixture; animal
cadmium application limits that are
reduced over time; cumulative cadmium
application limits based on soil cation
exchange capacity (CEC); and a
restriction of the cadmium concentration
in waste applied to facilities where
tobacco, leafy vegetables and root crops
are grown.
The second approaceh allows
unlimited application of cadmium
provided four specific control measures
are taken. First, the crop grown can only
be used as animal feed. Second, the pH
of the soil must be maintained at 0.5 or
above for as long as food-chain crops
are grown. Third, a facility operating
plan must describe how the animal
owners are provided notice (through
provisions in land records or property
deed) that there are high levels of
cadmium in the soil nd food-chain
crops should not be grown.
The Agency does not believe,
however, that the Criteria sufficiently
“ddress the broad range of constituents
sent in hazardous waste. Therefore,
Agency decided to set additional
. quirements that relate to hazardous
constituents in waste applied as well as
other substances of concern (i.e.,
arsenic, lead, and mercury) because of
their effect on food-chain crops. These
additional substances were identified
because of their relatively high toxicity
to humans and evidence that they can
be taken up by crops.
The Agency believes that the Interim
Status Standards adequately protect
public health, and therefore has adopted
a similar approach for the proposed
regulations under this section. However,
one section of the Interim Status
Standards has been modified for the
purpose of this section. The modification
is the deletion of the “phasing”
approach for the annual application of
cadmium. Under this approach the
annual application of cadmium is
reduced over a set period of time. The
time schedule starts from the present to
June 30. 1984 and allows 2.0 kg/ha of
cadmium to be applied. From July 1. 1984
to December 31, 1966 the amount is
reduced to 1.25 kg/ha, and furth_er
reduced to 0.5 beginning Januar , 1, 1987.
The cadmium limits promulgated
der Subtitle D of RCRA are primarily
aimed at controlling wastewater
treatment sludges containing high levels
of cadmium from beign placed on
agricultural lands. The phased time
period for the reduction of cadmium
applied to agricultural lands is used in
order to correspond with the
pretreatment schedule that wastewater
treatment facilities (POTW’s) must
meet, in accordance with the Clean
Water Act, to reduce the amount of
cadmium in their sludges. The Agency
believes that by using the same time
-schedules, implementation of the
regulation can be carried out without
causing an undue hardship on operators
of wastewater treatment facilities, and
at the same time be assured that public
health will be protected.
Because the phased schedule for
controlling the annual application of
cadmium is oriented primarily towards
wastewater treatment sludges, the
Agency has decided not to incorporate it
into the regulations under this section.
Instead the 1987 annual cadmium
application rate of 0.5 kg/ha is used. The
Agency feels that it is more appropriate
to use the 1987 cadmium limits since
most wastewater treatment sludges
probably will not be classified as
hazardous wastes, and to apply the
phased time period to waste other than
wastewater treatment sludge would be
contrary to its original purpose.
However, in the future, the phased
schedule for annual cadmium
application rate may be incorporated
into the regulations under this section if
the Agency finds that large quantities of
wastewater treatment sludge are falling
within the hazardous category. Also, it
should be noted that the Agency is
currently developing regulations under
section 405 of the Clean Water Act that
will address cadmium limits applied to
food-chain crop lands. These
regulations, when promulgated, may
make it necessary for the Agency to
modify existing cadmium limits in order
to have consistency in its approach to
control the application of cadmium to
food-chain crop lands.
5. Unsaturated zone (zone of aeration)
monhtoring— 284.27& The unsaturated
zone monitoring requirements are
essentially the same as the interim
status requirements published on May
19, 1980. Some changes have been made
to make the standards more clear and to
be consistent with the requirements of
H 264.21 and 284.90.
In response to a possible
misunderstanding concerning the May
19. 1980 regulations, the Agency has
clarified when soil-core and soil-pure
water sampling is to be initiated. The
proposed standards require that soil-
core sampling be initidted prior to waste
application, and that soil-pure water
sampling devices be installed prior to
waste application. The first samples
must be taken from the soil-pure water
sampling devices when sufficient soil.
pure water is collected.
These new requirements apply only to
new facilities since existing facilities
will already have initiated unsaturated
zone monitoring as required under
interim status.
Changes made to the proposed
standards to make them consistent %%i(h
the objectives of § 264.21 and 264.96
provide the owner or operator with a
more tangile unsaturated zone
monitoring design objective. Essent.Jly
the owner or operator is required to
design and implement an unsaturated
zone monitoring plan which will
characterize the leachate that is
expected to leave the zone of
incorporation. In addition the monitor::
results must be able to substantiate thr
predictions made under H 264.21 and
264.96. These requirements are
admittedly onerous but the Agency
strongly feels that the owner or opi ratc;:
must completely as possible undars arul
the effect his waste is having on the
unsaturated zone. This information it
be needed to both predict what effcr. i
land treatment will have on the
groundwater, and determine what
variables need to be manipulated in
order to optimize the performance of thi’
site.
Comments to the May 19. 1900 intrri-n
status unsaturated zone monitoring
requirements indicated a perfcrencr 1 ”r
performance standards versus desi rr
standards.
This complaint is directed towird tho
standard requiring the use of lysitrrtrr
Commentors felt that lysimeters hnd ’
the operation of heavy equipment ann
they feel that soil core and ground ’
monitoring negate the need for 5u’lP ”
water monitoring.
EPA agrees that the operation of
heavy equipment at land treatmer’
facilities may be hindered by the
placement of lysimeters. Howc or. I.
information gained from the use of
lysimeters greatly outweighs any m
loss in land utilization of prodiirtI i’
The Information obtained form ihr
analysis of soil-pore water. i.e. a
measure of the amount of hazardr t ,
constituents passing through the
cannot be determined from soil cr’r -
groundwater monitoring. Lys,mc rnl
one way to measure this contarfl1 ”
transport phenomenon, lined fr. -
are another.
Unsaturated zone mon ,tQrlnR
m Irahud (him £1’”
readily acco P, 0 , . , ..
monitoring. LV
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hid
are shallow and do not require c
significant knowledge of the water table
and ground water flow characteristics
that is required for ground-water
monitoring.
6. Recordl eeping— 264.279. The
requirements for recordkeeping have
remained unchanged from the interim
status standards published on May 19.
1980. The reader is referred to the
preamble discussion of 45 FR 33206 et
seq.
7. Closure and post-closure-—
§ 284.280. The closure and post-closure
requirements have been changed to
allow the use of a qualied soil scientist
to verify that the facility has been
closed in accordance with the
specifications in the approved closure
plan.
One commenter requested the above
change and the Agency agreed with the
validity of the comment. A soil scientist
will have an appreciation for the Factors
likely to influence the establishment of a
vegeta Live cover end the mobility of
hazardous constituents in the soil. An
engineer was not ruled out because of
the possibility of a shortage of qualified
soil scientists in any particular region.
Some minor changes in wording were
made to the closure and post-closure
standards in order to make them
consistent with the objectives of
§ 264.21. These changes, similar to those
made to the unsaturated zone
monitoring requirements. require that
the owner or operator give major
consideration to characterizing the
leachate leaving the zone of
incorporation. The method by which a
site is closed and the length of post-
closure are dependent upon knowing the
nature and extent of leachate leaving
the zone of incorporation and the effects
the leachate will have upon the
groundwater.
8 Special requirements for ignitable
or reactive waste—s 264.281. Comments
to the May 19. 1980 interim status
standards indicated that it was
inappropriate to include § 264.281
because land treatment of these types of
waste is common practice and should be
continued until promulgation of general
facility standards which would allow
case-by-case determinations.
Handling ignitable and reactive
‘vastes involves danger to personnel at
he land treatment facility. There wastes
,resent great danger of lire,
spontaneous chemical reactions, and
explosion Even so, the regulation
allows these mate,ials to be land
treated if these dangers can be
clirninated b ’ inc.oipcration into the soil
Furtherniore. a clause has been added
to the regulation in response to
comments allowing management of
these wastes if they are protected from
conditions leading to ignition or
reaction. The Agency is unaware,
however, how such ignition or especially
reaction could be prevented in the open
area of a land treatment facility unless
the wastes were rendered non-ignitable
or non-reactive.
9. Special requirements for ignitable
was1e— 264.282. The requirement that
Incompatible wastes may not be placed
in the same land treatment area unless
the land process complies with
§ 264.17(b) has been retained and no
wording changes have been made.
No comments were received on this
section of the regulations.
10. Special requirements for classes of
fadiities— 284.283. The standard
requires that a land treatment facility
have a minimum of two meters between
the incorporated waste and the aquifer
being or to be used. (i.e., the historical
high water table for water table
aquifers, or the bottom of the confining
soils for artesian aquifers).
Land treatment facilities which
discharge to an aquifer which in its
entirety, is not and will not in the future
be a source of water supply for any use
(Class A Facility) are exempt. Land
treatment facilities which discharge into
a portion of an aquifer which is not or
will not be used in the future (Class B
facility) are also exempt.
‘rho two meter separation requirement
applies only to those facilities located
over groundwater that is or will be of
future use. This requirement, which was
not proposed as interim final on May 19,
1980, is considered necessary because of
the nature of land treatment facilities,
i.e., the reliance on attenuation of
contaminants in the unsaturated zone.
Although a land treatment facility might
operate successfully over a space of less
than two mcters from groundwater the
Agency feels the risk is too great given
the potential consequences.
C. Subpart N—Landfills
Proper lendfilling of hazardous waste
is more than the act of simple burial.
Hazardous waste landfills must be
carefully engineered to provide long-
term protection of ground water, surface
water, air, and human health. The state
of the art of landfill technology is
developing and changing. However.
there are tethniques currently avuilable
for effecti ely reducing the adverse
health and en ironmental effects from
landfills Furthermore, the Agency
expects that these regulations, in
prohibiting ccrt,iin improper pr ctices.
%%Ill accelerate the de elopmcnt of good
tichmqies for lundfifling, pretre .tnient
of wastes to be landfillcd, and waste
i’eduction
1. Applicability—i 264.300. These
requirements apply to all landfills used
for the disposal of hazardous waste.
2. General design requirements—
§ 284.301. A leachate monitoring system
is the only structure specifically
required in this section. The monitoring
results from this system will provide an’
efficient method for the permit writer to
evaluate the predictions required for
compliai ce with § 264.21. Leachate
quality is one of the first unknowns
which must be estimated before
contaminant release rates and their
effects on groundwater can be
predicted. Therefore, a close agreement
between actual and predicted leachate
quality provides at least some assurance
that the facility Is operating according to
plan. Cross disagreement between
actual and predicted leachate quality
may cause the Administrator to require
a reassessment or recalibration of the
predictive tools used by an owner or
operator. These reassessments could, in
some cases, uncover potential problem
arehs early enough to avoid more costly
clean-up operations.
Only new landfills and landfill cells
are affected by this requirement. The
Agency believes that attempts to retrofit
many existing facilities with a leachate
monitoring system would create an
unacceptable hazard to human health
and to the environment.
EPA specifically requests comment on
§ 264.301(a). Of particular interest are
(1) sampling methods capable of
collecting representative samples of
leachate in a landfill not equipped with
a liner, and (2) the nature and extent of
activities necessary to comply with this
section.
Paragraphs (b) and (c) of this section
provide the minimum acceptable
controls for the construction of liner
systems and leachate collection and
removal systems These regulations do
not require the construction of a liner for
all landfills but EPA recognizes that
many landfills will be constructed using
liners to contain the hazardous wastes.
Those standards are a departure from
the detailed design standards contained
in the December 18, 1976 proposed
regulation (43 FR 59009—59011). The
changes are due to the comments
received on the proposed regulations
and advancements in the stdte uf the
art. Much more information is now
available which can be used in the
design of effective liner systems EPA
has developed Iwo technic.al reports tu
assist in the design “L.n ng of Waste
lmpoundmcnt’and Dispos il Facilities
(SW/870), September. 1980 and “Landfiii
and Surface Impoundment Performance
Etaluation’ (SW /869). September. 1980.
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- I C ç t
11148 Fideral Register I:Vol. 4.o No 24 1 Thursday. February.’5, 1981 I. Proposed Rules :-
The requirements st.ted In Y,4 301 that the wait. do s not meet the l containers filled lth tiquldi Rsduclnj
lndlcate E PA ’.concernforboththe . definlt Ionofignltable( 261:Z1)or thevolumeofthe.mptycoitaln.rsw lll..: .:.. :-
structural lnt r1ty of the system and the reactive (* 261.23) prIor to or minimiz, this effect.
chemical resistance of the liner Immediately after placement In the - The overall intent of the requjrement
materlals For. liner system to be .: -.LandfilL EPA assumes that ths most - ito eliminate ll significant voids
successful much cue end attention must common method used to comply wljh - Including partially empty contalnsrs.
be given to these asp icu . of the design. this regulation will be to mix the waste EPA Is provlillng definitions for “full or
3 GenemLoperatin.g requirements— with soil or some other relatively Inert filled containers’ and ‘parttaIIy empty
254.3(Q Control of precipItation on and material befor, the waste Is landflileô .i: container’ for ommuni Comments are
near the active dispoutl area(s) and This requirement Is the earns as the requested In the following areas (1)
control of wind blown material. at. the requirement In Part 265 iJtemaUv. criteria which may be used
major concerns during operation. These 6. Specialr,quiremsntsfp r to define full or filled container . and (2)
are the same requirements which were Incompatible wostes— .264.313 ThIs the nature and extent of activities which
8 Ven La Part 265 requfrsui ent. which is Identical to Part will be necessary to comply with this -
4 Inspection and Iest,n,g—I 26.4 3Cm . 265 states that Incompatible wastu regulation
These requirements reinforce EPA s must riot be placed In the urns landfill Ii Special r.qwr.ments for doassi of
concern of the need to control surface cell foc,l,t,e,—* 264 318. The requirement Is
water runoff due to rainfall and to V Special requirements for lajuid that all classes of facilities must have a
carefully Inspect any liner system which wastn— 264 314 ThIs requirement does inlnIsnum of two meters between the
is Installed at a disposal facility The not allow bulk Liquids to be placed In a lowest level of cons tlon for the
appurtences used to control the run-on ; - Landfill unless the owner or operator can -landfill and the high 1i pofllonof the .
and run-off at a landfill must be prove that the added liquid will enhance water table
Inspected each week and after major stabIlizatIon of the landfill Such a The purpose of the requirement Is to
storms to ensure that they are landfill must be lined with a material . m lntain a positive separation between
functioning properly which Is chemically and physically the la dflll and any ground water which
There or, specific requirements which resistant to th, added liquid end the might Infiltrat, the waste This I
are applicable to an Inspection and ieachate control system must be capable requirement Is consistent with EPA s
testing program to be Implemented of removing all leachats produced. The theory of maintaining landfills as dry as
during thecwutructionortnitallatlonof lntentofthlsrequhemsntlstoex.rcl.e posslbl. -- - -- —- — — — — —
a liner system. These are minimum needed control over the disposal of H S b R u d d l ii
requirements which will provide dat. to hazardous waste liquids. Earlier U P — It CIWOUfl fl SC Ofl
evaluate the effectiveness of the liner egulatloni buys allowed the placement On May 19, 1060, 2 .65.430,
system. - ‘of liquids In landfills without the Applicability waS promulgated as an
5 Surveying and recordJthepzn , g— requirement to prove that stabilization Is Interim final regulation. In so doing the
264 309 These are the lame enhanced EPA believe. that he Agency enabled well. disposing of
requirements which have been used In potential damage from allowing hazardous waste by undsrgr’ound 1
Part 255 uncontrolled disposal of liquid. In I Injection also regulated under the
6 Closure and post-closure— landfiUs greatly outweighs the benefits Underground Injection Control (UIC)
264 310 The overall objectives of - from allowing the practice Allowing program, authorized by the Safe C
closure and post-dosure are to minimize liquids In Landfill. Increases the Drtnldng Water Act (SDWA .)) to acquire
the need for further maintenance of the ‘— hydraulic head within the fill end 1 1 interIm status under RCRA. The Agency
•facility and to restrict the escape of hydraulic head Is the primary drivi further explained that such Injection
hazardous materials A final cover over , force which cause pollutant migration wells would be regulated under Subpart
complrt.dportionsofalandfill lsan fromlandflul e. RuntllaU1Cproj raz hsdbiin
Important first step In meeting these - EPA does recognize that the - ‘In each State. After an
objectives The design of the final cover decomposition end subsequent Injection well received a permit under - I
must be consistent with the permit for itabIllzatlon of some material. an be UIC It would achieve a RCRA permit by
the facility and therefore with the - ‘enhanced by th. addition of liquid. For rule under * 122.26. As explaIned
predictions made In comnpllanc. with this reason. EPA will allow liquid elsewhere Ln js preamble the permIt 1
I 122.25(d) because the aocuracy of addition when It can be demonstrated by rule ha bi.n amended so that only
these prediction, are vitally contingent that stabilization Is ehhanc.d. csrtstn of those well, can achieve a
on preds. cover designs and This does not alter the basic EPA I RCRA permit by rule The remaIning I
maIntenance procedures EPA has 1 belIef that landfills should be kept dry wells will be subject to permitting under
developed two technical reports to By minimizing liquid. In landfills the ‘ Subpart R or S of the Part 254 proposed , -.
assist in designing landfill covers transport mechanism to move pollutants regulations
Evaluating Cover Systems for Solid and beyond the landfill Is minimized 1 Appl:cabIIity— 264 430, The
Hazardous Waste, (SW/867), - ‘. - ;-. ‘ - - The requirement w ch does not allow proposed requirement. of Subpart R
• -September. 1960 and “Landfill and :- containers holding Liquids or waste - ‘- apply to wells used for the disposal of - -
- - Surface Impoundment Performance : containing free Hqu dI I. the sa pe a’ the hazardons hv, InJedllo i toi s -,
Evaluation (SW/660) September 1080 In ?aif2IiS - stisurla pa throi h .
SimIlurIly any other equipment or 10 Sped a! r.qulr -.rn.nt. for suiliclal aqul er (I s . discharge below
maintenance routine which Es necessary contain.r,—$ 264 316 This requirement the surflclal aquifer) All such wells wiLl C
to Ibide by the permit must be Is that .mptN containeri must be by necessity be cased since they must
continued Into the post-closure care crushed durt disposal so that voId pass through an aquifer Wells which
period. - : - : - - - space Is minimized. ThIsrequlrement - I discharge hazardous waste Into or . - - -
7. Special requirements for i gnitob!e - - ha. bean included because empty -- above the surficlal aquller, for which -
or reactive wasts—$ .264.312 IgnItable containers can degrade. collsps., and casing Is not always necessary, are to be
or reactlva wastes may not be placed In dlsrupt the final cover of the landfill : subject to the requirements of proposed 1
a landfill unless the waste Is treated so which Is the same effect created by Subpart S The requirement, of this
1 I I
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P.b a 5’198j”/ Mpos d Ruks ‘ I
Subpart R. therefore, apply to Class I ‘ h 148 12 (a) restrictIon on location with I Subpart $—5 4 i pctp Fcc/i/ Un
wells and some Class 1Vwells (as regard toundergroundsow cssof
i designated under the IJIC program) ± ‘‘drinking is not tncludsd since some This Section of the regulations applies
&,Such wells must also comply with wails regulated to facliltiss which are dssignsd to
applicable requirement , and standards Subpart R mey discharg. above discharge via seepage tscilltis Ssspags
.establi,hed k Pans 122 and 146 iS. H ’unc1 rground jources of drinking water. facllltlss msy or may not be d.signed to
explained in another section of this ‘.E’ Alao.iequlrements regerdlnE prevention holding and controlled rsleasa
preamble of migration into underground sources of capabllut’ for liquid wastes and wastes
Injection wells which receive a RCRA drinking witer are squally applicable containing free liquids These
permit under Subpart R wilt have preventing migration Into formation, or regulations provide st dards for
complied with the ground water aquifers othar than the zone of design. operation, and inspection for
Fprotechon standard p lso proposed In - ‘ containment. whether or not they are r facilities which an classified as seepage
today a Federal Register The only tunderground sources of drinking water facilities There an four pes of
.Iadditlonaltddinical requirements 4’ In order to’comply with $ 265.43L ‘:. seepage facllitise: (1) Seepage lagoons [ :, H
necessary In Subpart R then relate to t lnjection well wilt need to be cased and (2) dMn beds. (3) seepage pits, and (4)
design and operation capable of cemented and hszardous waste will seepage beds The fIrst two types an
achieving comptlancs and monitoring to.’ need to bE Injected through tubing with similar to surface Impoundments. In that
verily compliance a packer as specified in they are usM for depositing liquid
Part 148 requIrements for Class I , 4 Gensm loperat/n.g requirements— wastes and sludges except they are
wells, promulgated on June 24, 19&), I 264432 ThIs proposaci requirement Is designed with the objective of seepage
were established to assure that injection ‘;‘ a performance standard also, Once an . :::intP the lan& Sespage pits an similar to
or formation fluids not migrate out of the injection wall is properly instaus it dug wills and eapage beds are any
Injection zone and into an underground I must be operated and maintained to . horizontal distribution mtem (whether
source of drinking water In the case of prevent unacceptable rnIg b of covered or uncovered) used to -
RCRA. Subpart R Injection wells “ lnfrct* fliazardous waste or reaction or Intennittently Introduce liquids Into the
(regardless of UIC designation) must be decomposltinn byproducts of the waste 4 ! ’s leaching ftelcts associated
designed and’operated to prevent Section 264432 explaIns that the With septic tank.) . For tha purpose of
migration of hazardous waste out of the operating oceclures InciSed in then regulations, any Injection well that
zone of containment or otherwise Into l 146.13 can enable complianc, with this Is not cased to prevent discharge into
other formations or aquifers Because of perfornianc* standard. Pressure in the surficlal aquifer Ia also a saps,ga
theaimllantyofobjectlvetheAgency F Injectionzoneisnottoexceeda cllit I I ’ -.
has utilized the promulgated Part 148. calculated maximum and pressure on I Applixbliity— I t4&2 Tha
requirements to the extant possible In - the well annulus betwe.n the casing and regulations In this Subparl apply to
t i these proposectSubpart R regulations tubing maintained to assure mechanical Owners and opetators of seepage-
The reader’rnust understand, however, Integrity Injection Into the annt4 s is facilities used to treat, etpre or dispose
Jthot the Pert 146 requirements differ “ -‘explained in I 146.13 aa’unaccep l.. ‘j ’ of hazardous wq’ste. axcept as I 264.1
significantly from Part 264 requIrements.’ ‘ 4.Manithth,,gandresponn— ‘-‘ providss othanQtsa. The regulations for’
The Part 264 requIrements are mInimum’ 1264433 These proposed rlrenenta seepage facilities are Identical, to a
,stondards, requirements and criteria rc .— are similar to thou proposed On May ig,’? degree, to the propossdSgnletibn.s for
which must be developed by a State in * 285.434 for interim status . et rfacs Impoundments under Subpart K
seeking authority to Implement a IJIC ,. facilities. They an also etmilar to those of Part 264 For seepage facilities, there
program These Pen 148 requirements contained In I 146.13(b). DemonstratIon an no regulations for liners and a
do not apply to owners or operators of t of mechanical Integrity and maintenance teachats detection. collection and
injection wells dlnctly Such owners Of allowable injection üm j ‘.“ removal system since seepage facilities:
and operators must comply with State ‘enable owners and operators to assur ‘a.n designed to dlschfle K
requirements which have been that migration beybnd the zone of , The rationale for the surface
established in Implementing a State UIC containment has not occurrect Ground- k Lrnpoundmenta requirements used to
ct program. For this reaeon.theee Part 146 - water quality monitoring Is not general : regulate seepaige facilities can befound
requiremente have not bean adopted by requirement within I 264 43 but may be l In the preamble for Subpart K-$urface
reference In Subpart 9 but are utilized . +requlred in the facility penptlt in certain -‘ (-:Impàundmsnts. Seepage lagoons and ; :
as explained below circumstances I ( drying beds must comply with all
2. Central design and installation 5. (Yosum and post -cia. urn— sections of these regulations, while
requ,rnmentc—$ 264 437 This proposed 1264434 The closure requirements In seepage pits and seepage beds must
requirement is a performance etandard these proposed regulations speèify that only coniply wIth (1) 3 264 463
“Owners and operators must design and ‘.‘ .wellsrnustbeclosedtopreventluture ‘(contalnnienteystem)and 1284.467 ‘
install Injection wells to assure that use and plu e4. Plugging upon well (contingency plan.) provided these two
injected hazardous waste enter and stay abandonment is the norma.) practice ‘ types of aeepage facilities maintain a
within the zone of containment . — Section 264 434 explains that the dike, (Z) 1 264 466 (closure and post-
specified in the facility permit, and ;ot “ plugging techniques deacribed i n closure), (3) 1 264 469 (apecial
mtgrate into other formations or ‘s I 14610 can enable pompllance with the requirements for ignitable or reactive
aquifers En 114612 are design and J plugging requirement Poat-closure care waste), and (4) 3 284.270 (special
construction requirements for Class I . Is not required of wells regulated in requlremsnts for Incompatible wastes)
welis under UlG In 3 264 431 owners I accordance with Subpart K, therefore. “ 1 The types of seepage facilities an not
andoperatore are informed that ‘ en exclusion from compliance with - yet defined in I 26010. They are I I
.‘:‘utttization of the technical standards -? ,I I 264117, 264.110 and I I 284.144— ‘- deicribid In 1 264.19. Th. Agenèy “ T ‘‘.-“,
‘yand considerations specified In 1146.12 ;-:‘284,145 Is included in I 264.4$4. These, “““intends to define those types in the rule’
Willenable compliance with the I :are the only exclusions from the general “but Is solIciting publk comment by this
‘:1 284431 performance requirement. The :‘ standards and requirements of Part 264. proposal before dolngso, - ‘,‘:
I - . - , ‘ - ‘ ,‘‘ ,‘,‘ ‘‘‘‘‘ c , — ‘ ,, .‘‘ I ’’,, ‘‘ — ‘ . . -‘‘ - --.
i 1 jd I
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11150
Federal Register / Vol 46, No. 24/ Thursday, February 5, 1961 / Proposed Rules
J. Subpart T—Minirnuni Acceptable
Treatment of Hoxt,n Ions Wastes Prior
to Disposal
Under this subpart, requirements are
ablished for the minimum acceptable
4tment of hazardous waste prior to
. iposal in a land treatment facility. The
purpose of these requirements is to
reduce the potential adverse effects of
hazardous waste disposal by reducing
the mobility of wastes, or their ability to
cause other wastes to become mobile, or
generate toxic gases.
Owners and operators of hazardous
waste landfills are required under this
subpart, by using available conventional
technology, to con ert soluble metain as
salts to less soluble forms (i.e., oxides,
hydrous oxides or collides) and to
precipitate metals that are in solution.
Waàtes that are highly acidic or alkaline
must be neutralized and wastes that are
or contain surfa.tants or organic
solvents must be disposed of separately
from other wastes. Specifically, wastes
that contain cyanide must be treated so
that the cyanide is destroyed. thus
reducing the risk that toxic hydrogen
cyanide gas will be formed.
The requirements under this subpart,
relating to mobility of wastes, address
three general groups of mechanisms that
may result in the enhancement of waste
migration in soils. The first mechanism
is one in which waste constituents are
solubilized by other waste constituents
rid thereby increasing their potential
migration. Examples of this
echanisms include the solubilization of
organics in organic solvents.
solubilization of metal salts in acid (or
bases). and the sokibilization of
inorganic and organic wastes by the
action of surfactants and chelating
agents. The second mechanism is the
disso!ution of metal salts by percolating
water, while the third mechanism
involves the chemical reactions among
waste constituents which results in the
generation of products which may be
more mobile than the initial reactants.
An example of the third mechanism
would be pesticides that form soluble
salts with alkaline caustics (Guthion/
sodium hydroxide).
Except for § 284.491(a)(5) the Agency
has not proposed establishing treatment
requirements under this section for
specific and non-specific sources of
hazardous wastes listed in § § 261.31 and
261.32. However, it is intended that
treatment requirements be established
for the listed wastes and other wastes
which may be listed as information
becomes available to the Agency. The
Agency is requesting comments on
treatment requirements appropriate to
‘pecific and non-specific sources of
- wastes defined in § 261.31 and 261.32
or specific hazardous wastes which are
appropriate prior to disposal.
K. Amendments to Part 26(1
1. DefinhIions— 260.10. Certain
definitions are being added and other
definitions are being amended to
conform with the usage of the terms in
the regulations governing the land
disposal of hazardous wastes.
In addition, the numbering sequence
of the definitions in § 260.10 is being
deleted in favor of an alphabetized
arrangement of terms to accomodate the
addition of new definitions.
Many comments were received on the
use of the terms contamination and
degradation in the October 8, 1980
Notice. Most of those comments
requested or suggested definitions for
those terms. To avoid the confusion that
often arises by the use of these words.
they have not been used in the
regulations being proposed today.
The amendments of the definitions of
Aquifer, Injection well, Uizder ound
injection, Well, and 14’ell injection in
§ 260.10 re technical amendments to
conform those definitions to the
definitions of the same terms in §1 122.3
and 146.03.
Similarly, the amendment of the
definition of Disposal in § 260.10 is d
conforming amendment (separate from
that referred to in the preamble on Part
122) to the definition of thu term in
§ 122.3. -
‘The more substantive amendments
are related to the Agency’s decision to
regulate surface impoundments which
are not designed to prevent seepage.
other types of seepage facilities (which
were formerly considered “injection
wells”), and other wells which discharge
or injcct hazardous wastes into surficial
aquifers under both the RCRA and the
SDWA. This necessitated the addition
of new definitions for Underground
seepage and Seepage facility and
amendment of the definition of Landfill
and Surface impoundment. A definition
of Surf idol aquifer has also been added
because the term is used in the amended
RCRA permit by rule (see * 122.28 as
amended) for deep injection wells
subject to exclusive regulation under the
UIC Program which are used to dispose
of hazardous wastes. A definition of
Cased injection well has also been
added because the terni is used in the
definition of Seepage facility. A Cased
injection well will usually be a Class I
well as defined for the UIC program
Such wells, when used for hazardous
waste disposal are subject to a standard
of no migration into a Surf k/al aquiler.
Some of these are to be permitted by
rule under the RCRA and individually
permitted under the UIC program.
The above referenced decision als
made it appropriate to add certain
defihitions which existed in Parts 122
and 146 to Part 260. These are
Formation. Formation fluid, injecizu,;
zone, and Pluggiiig.
A new definition has been added f
Land disposalfucilities, and the
definition of Disposalfacility has bt’er.
modified to reflect the fact that waste
will not remain in place after CIOSUr
some types of facilities which are
regulated as land disposal facilities
This situation may occur when either
the waste will be removed or the acti’
or the decomposition byproducts ,f the
waste will migrate from the faci!It} dilil
therefore not remain the facility . f!i ’;
closure. The definitio L of Land
treatm en? facility has been similarly
modified to reflect the fact that wastr ’
may or may nut remain in place after
closure at land treatment facilities A
new definition has also been added in
establish the meaning of a phrase—Z,
of containment—used in the regulatr’ir c
governing land disposal of hazardouc
wastes.
Finally, definitions have been
introduced for the terms Decoinpu ti”
byproduct and Reaction byproduct
These and similar terms, such as
contaminants, have been used
extensively in the regulatiois and
preambles to describe the substanci’ .
other than the hazardous wastes or th
hazardous waste cons ituents whrc.h
be expected to exist in leachate wh”
hazardous waste or hazardous was”
co ,stituents are disposed of into or i”
the land. They have also been added in
the definition of Disposal. Although
many of these byproducts are not
hazardous, some can and do cause
adverse effects on human health and t ’
environment and therefore must be
considered in the permitting of l,ind
disposal facilities.
2. Petitions to amend Part 264 n’ /
265 to allow special types of Irea(1T 1r
storage, and disposal facilities aI°
particular location, for a part Icu1 f
hazardous waste, or for ohozardt ’
waste from a particular source—
§ 26023. In accordance with section 71
of RCRA. Subpart C of section 260 5&!.
forth procedures by which any persofl
may petition EPA for the promuigatu’
amendment, or repeal of any regUlñ
under RCRA. This section provides a
mechanism by which owflerlOPer atdis
or potential owner/operators ma
petition for an amendment of a nY°
operational, locational, design 01 /
riJartsJ
construction requirenients U’
or 265 by demonstrating that the
practice or procedure they prOP
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I.
use is equal to or better than that
already required by the regulations.
Such demonstrations are to be made for
a particular facility or waste and any
petitions granted will be applicable only
to the facility or waste for which the
demonstration was made. This section
incorporates the petitioning procedures
set forth in section 260.20 and allows the
Administrator to grant a temporary
amendment prior to making a final
decision on a petition.
Several comments on the October 8,
1980 Notice requested that when
technical design requirements are
specified in the regulations, the Agency
allow the permittee to substitute
different but equivalent designs. EPA
agrees that this is a desirable feature
and is proposing to institute it through
this petition process. This process will
allow recognition of unique site specific
factors that enable owner/operators to
effectively employ different treatment,
storage or disposal designs. It is also
intended to encourage innovative
technologies and maintain flexibility in
the regulations by allowing the technical
requirements to be adapted to advances
in the state of the art.
L. Aniendn,ents to Pan 122
1. Definitions—s 122.3. Two
definitions—Disposal and Disposal
facilzty are being revised in § 122.3. Both
dcf:nitions are being revised to conform
to revised definitions in § 260.10.
in addition because of the use of the
terms Formation, Formation fluid,
ln;ectioz cone, Plugging, Underground
injection, Well, and Well injection in
Part 264, the parenthetical reference
associated with the term has been
e,.panded to include the RCRA.
The term surficia/aquifer, used in
§ 122.26. has been added in both
§ 1223 end 260.10.
2. Mod fication a.’- revocation and-
reissaanc of permit—s 122 15(aJ(81.
Section 122.25(a)(8) provides the means
by which permits may be modified in
response to the repredictions of locus
and rate of leachate effects required b
§ 122.28(1). This modification provision
is necessary because state of the art
limitations make it impossible to
precisely predict the zone of effects at
the time of permit application. As new
information is gathered through
monitoring, predictions of leachate
migration can be made more accurately.
These repredictions can then be
incorporated into the permit limitations
for ma, imum allowable zone of effects.
If the repredictions indicate that the
originally predicted zone of effects will
be or have been exceeded, the permittee
Is required to propose permit
modifications. The proposed
modifications may b to reduce the rate
of waste disposal or expend the zones of
permitWd effects. Likewise, if it appears
that the originally predicted zone will
not be reached, the permittee may
request a modification of the permit to
reduce the zone limitations. This last
type of modification may be of real
interest to a pennittee since the zone of
permitted effect defined (i.e., the zone of
containment) is an encumbrance on the
land which reduces It real value.
The Director is required to modify a
permit if he finds that the zones of
effects defined in the permit are
substantially unrelated to the actual
zones of effects. The modification in
intended only to decrease the permitted
zones of effects when a permittee has
made a very conservative estimate
during the permitting process that
becomes apparent upon monitoring. All
permit modifications which decrease the
permitted zones of effects or reduce the
rate of waste disposal are considered
“minor modifications” (see § 122.17) and
therefore may be made without a draft
permit or public review
Minor mothficotions of permits—
§ 122.17(o)(8). Permit modification
made pursuant to § 122.15(a)(8) which
decrease the zone of permitted effects
caused by leachate discharges from land
disposal facilities or reduce the rate of
waste disposal are included in the list of
“minor modifications” contained if
§ 122.17. The effect of these
modifications is to make the permit
more stringent. Because they are “minor
modifications”, no draft permit or public
review is required.
4. Application for a Permit—
§ 122.22(a). Certain commentws on the
Part B application informational
requirements proposed on June 14, 1979
(44 FR 34278—SO) noted that part of the
informational requirements to be
submitted with Part B of the applicction
might require more than six months to
obtain. The Agency agrees and is
proposing to add § § 122.22(a)(4) and (5)
to limit the discretion of the Director to
deny an application which is incomplete
when the informational requirements of
the Agency or the regional availability
of professional services with the
requisite skills to generate and evaluate
the information limit the ability of the
applicant to comply with the six month
filing requirement of § 122.22(a)(2) and
(3).
The authority of the Director to deny
an incomplete application, when it is
apparent that a completed application
would not comply with the ground water
protection standard is re-established as
§ 122.22(a)(6) and new provisions are
added to allow an inteiim permit to be
issued.
The provision for the issuance of an
interim permit provides a mechanism to
allow and endores improvements at
existing facilities prior to final permit
Issuance, a mechanism to recognize
“good” facilities, and a mechanism to
terminate interim status for “bad”
facilities. The provision of a five year
limitation for an interim permit is based
on the expected Agency delay in acting
on lower priority permit applications for
existing facilities.
5. Permit application requirements—
contents of Part B of the RCRA permit
application—i 122.25. Specific permit
application requirements applicable to
the land disposal of hazardous wastes
have been added as § § 122.25(c) through
(h). the information required by these
subsections is supplementary to the
requirements to be fulfilled for Part B of
the application in compliance with
§ 122.25 (a). These subsections respond
to comm nters who pointed out that all
of the Part B informational requirements
proposed or. June 14, 1979 (44FR 34276—
80) were not needed or appropriate for
all facilities. It limits the obligation of
applicants to supply information that
would not be relevant to their particular
application.
Many of these provisions are simillar
to those proposed on June 14, 1979 (44
FR 34178—p80), but they are expressed
with greater specificity and are limited
to land disposal facilities. Therefore,
they reflect the concern expressed by
commentors that much of the required
information was not needed for all
far.ilities and should be made specific on
a case by case basis.
a. Specific technical infornia ion
requirements for land d,sposrc/
facilities—b 122.25 fcj. Section 122.25(c)
establishes the obligation to file the
information required to evaluate the
specific types of facilities with reference
to the technical requirements of the
individual Subpart for each facility type
(Subparts K. L, M, N, R, and S).
b. Specific generic information
requirements for land disposal
facihties— 122.25(d) and (e)
Subsection 122.25(d) establishes the
obligation to file, as part of Part B of the
application, a detailed definition of the
wastes to be disposed of. a detailed
prediction of the leachate plume which
will be established as a result of any
permanent disposal of hazardous wastes
into or on the land, and a description of
the location of gaseous migration in and
from the land. These subsections, which
are central to the regulation is discussed
in detail below undor—6. In formation
Requirements for Permitting Discharges
from Land Disposal Facilities.
c. Rcports on h;’drogeology.
chnialology, and geographj’— 722.25(f).
— w
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Federal Register / Vol. 46. No.24 I Thursd iy. February 5, 1981 / Proposed Rules
Subsection 122.25(f) establi ,hes th’
obligation to file, as part of Par Lii of the
‘nplication, reports on the
ogeology, climatology, and
raphy of the area where the facility
to be located.
The report on h droIug and geology
is to be based on by data a%aildble from
public sources and confirmed by site
investigations or based on site
investigations required n p ragruph (cI
Specific reference to accommodatir.g the
potential interested readers of the report
are made in { § 122.25(0(2) (i) and (vii).
These subsections stress the need to
avoid excessive use of technical jargon
which could create lengthy hearings due
to requests for clarification and
interpretation from the interested public.
Subsections 122.25(fl(2) and (fl(3)
establish the obligation to file, as part of
Part B of the application, a report on the
climatology and geography based on the
data required by § 122.25(g) (2) and (3).
d. SiLe investigation requirements—
§ 122.25( ’gJ. The acquisition of basic f,eid
data on site specific conditions is
essential to the preparation of the report
required in § 122.25(1) and to the
development of the generic
informational requirements for land
disposal facilities of 122.25 (d) and (e)
which are discussed in detail below.
The ‘site investIgation requirements of
these regulations require a relatively
‘undard type of field investigation The
iy basis for defining the requirements
the regulation is to establish certain
minimum requirements and to deal with
the degree accuracy needed on a
situation specific basis.
The use of standard datum (i.e., USGS
controls) references is required so that
analysis of the site can be made w!th
valid references to data generated by
others.
The majority of the requiremcnts are
for survey accuracy definition. A survey
accuracy sufficient to allow (not require)
the mapping of the area within forty
meters of any construction activity itt a
contour interval of two meters is
required. The same surface survey
accuracy applies when leachate will
migrate within ten meters of the ground
surface. The Agency is quite concerned
that predictions of the locus of leachate
migration be accomplished with a high
degree of accuracy when leachate will
be near the ground surface. A deph of
ten meters has been chosen to represent
a depth that is beyond casual
excavation and will below the cellar
depth of most small structures. The
survey of the contact surface between
unconsolidated and consolidated
materials is also required; the accuuary
pacified is a four meter cuntout
nterval. Ground waler table contour
iequircnients are similar. The specified
accuracy is two meters where ground
water nuounding can be expected and
where ground water mixed with
le i hate wrll be less than ten meters
from the ground surface. Comment is
requested on the rea300ablenesss of
these requirements.
It is also required that sufficient
ground water data be obtained to allow
flow net analysis of ground water and
leachate flow under varying conditions
of stress on the system.
The required information on
climatology is self explanatory
however, the unformational
requirements on land use and land use
controls requires discussion.
Permit applicants are required to
describe the type of land use, the land
i se controls and the projected land use
in the area of the proposed site. The
rationale for the requirement is to
provide the permit reviewer sufficient
information on the character of the
patterns of activity to judge the
compatibility of the proposed facility.
The presence and strengths of land use
controls to preserve the appropriateness
of Ihe setting are a critical element.
Absent controla, exclusion of future
encroachment of residential or
otherwise less than compatible uses
cannot be prevented. Projections of land
uses are likewise essential, the controls
at best are inducements For or against
particular land uses: whether or not the
“permitted” or “allowed” use will occur
can be haphazard if not desultory. The
permit will be issued considering the
impact on current patterns, compliance
with appropriate land use controls and
compatibility with projecMd land uses.
Itia not the Agency’s intent to either
foster or inhibit local control of land use.
The history of national and state efforts
at land use controls is too heavily
burdened with emotional distraction to
use as a major element of siting strategy.
Siting of hazardous waste management
facilities clearly presents greater then
localized issues for resolution, but the
localized issues are intense, and they
are inLensely perceived. States have
delegated land use controls to local
governments, and inspite of a
resurgence of State interest during the
60’s and 70’s, land use decisions are
preponderantly local issues. The review
process for hazardous waste
management facility siting will establish
the mechanism for presenting both local
and statewide land use decisions.
Howe er, the reviewer is reminded to
maintain a proper perspective.
I’rocedural and substantive issues
involved in establishing land use policy
in the vicinity of prospective sites will
be considered as well as the resulting
designations. The review process will
not be bound by local zoning or other
land use decisions, nor should it be
construed as review, endorsement or
appeal of local decisions by the EPA.
Rather, where local regional or State
planning decisions have been made, or
here local hearings have been held on
land uses issues, the facts, the testimony
and the subsequent changes. as well as
the decisions may be considered by the
reviewer. Full de novo consideration of
these issues should be placed in
persp ictive by the reviewer, considering
the statewide and interstate regional
implications of the siting question. The
reviewer may consider evidence
regarding the exclusionary use of zoning
where it has been practiced, the taking
issue where appropriate or any of the
commonly troublesome land-use pitfalls.
Permit applicants are also required to
provide information concerning whether
or not the aquifer underlying the area in
the vicinity of a facility is or will be
used as a water supply. A variety of
facility designs must be anticipated.
with designs with varying degrees of
reliance upon natural assimilati’ e
capacities versus containment and
treatment. Underlying aquifers wull be
subject to the threat if not the assurance
of entry of contaminants. The Agency
requires a demonstration of any claim
that the aquifer subject to accidental or
designed discharge will not be used ts a
source of water supply for any use: for
instance, if such claim is made. or if
alternatively, the vicinity of the aquifer
near the discharge does bear
withdrawal for use, the Agency requires
rather full description of the use. These
regulations provide the requiremems of
use disclosure which must be supplied
for facilities in Classes A—E.
Class A: Applicants wishing to locate
facilities over aquifers which are not
and will not in the future serve ai
sources of water for any use must
investigate that entire aquifer and
interconnected aquifers into which
leachate will migrate. Systems of
interconnected aquifers should be
treated as a single aquifer for this
purpose. The objective of the
investigation is to ascertain that in fact
domestic, agricultural, industrial or
commercial uses are not now served
and will not be served in the future.
Demonstration of the contention that
they will not serve is intended by the
Agency to constitute the following
1. A tabulation of all withdrawal
controls now in effect (e.g., State
prohibitions on withdrawal) or private
ownership of the whole aquifer with
deed notation to t iarn future owners
2. If the water will not be used
because of its poor quality.
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dc’inonst ration should include lab
.4n.llv 5c 5 and a cost m,sessmcnt mi
ticatment to acci plubIe quality.
3. The closest users of groundwater
should be identified and the intervening
aquifer discontinuity demonstrated.
4. Any existing discharges and surface
outcrops of the aquifer should be
identified.
5. Three dimensional descriptions of
boundary conditions surrounding the
aquifer.
Class B: The requirements for Class A
facilities should be met for the unused
and unusable portion. In addition the
applicant should indicate the nature and
extent of the hydraulic interface with
usable portions of the aquifer. Flow net
descriptions timing and migration
potential should be presented indicating
both the worst case and the most
probable arrival of contamination from
the facility to the used or usable portion.
Classes C, D. az idE. All facilities
located over used or usable aquifers
must submit information concerning the
possibility of contaminants from the
facility arriving at each possible point of
w thdrawal for use. Surface discharges
should be considered possible points of
use for this purpose. Flow net analysis
and pollutant transport predictions are
required. These must be prepared in
sufficient detail to support pollutant
migration increments at three year
intervals to facilitate validation.
The minimum monitoring scheme in
accordance with Subpart F will provide
an acceptable drilling plan for
acquisition of noarsite data on the
aquifer. Well logging, with split-spoon
samples at five foot intervals, will
generally be considered satisfactory
geophysical data. The same level of
detail should be provided on the existing
water wells in the aquifer, where
available. All users should be listed,
clearly indica’ing the level of treatment
now provided, and the capability of thdt
treatment with respect to anticipated
contaminants and their by-products
from the facility.
Subsection 122.25(g) establishes a
similar obligation to file a description of
the ground water monitoring program
proposed to verify or improve the “best
estimate” predictions of leachate
migration and a description of any
modeling program base on monitoring
data which is required by the
regulations oi proposed by the
apphcdnt.
6 Information rcqwrenients fc. r
permitting dischoi os fmm land
disposal facilities—s 125.25(c ). a.
Purpose.—Undcr the approach bei:ig
proposed tod&’y. each hazardous waste
facility will be evaluated directly foi its
impact n human health and the
mvii onnient. lnstciid of merely
l.stir.idtir lg the adverse anvironment,il
inipari of a facility by comparing its
design parameters with national design
requirements thought to be safe, this
approach will evaluate each facility on
an individual basis. To safely and
properly determine the human health
and environmental impact of a
hazardous waste facility, extensive
information is required on: (1) The
characteristics of the wastes disposed,
of both individually and collectively, (2)
the hydrogeological characteristics of
the site, (3) the water quality
requirements of any underlying aquifer.
and (4) the interaction of wastes with
the site hydrogeology and (5) the
resultant effects on water quality. It is
only by the acquisition and subsequent
analysis of this information that a
reasonable assessment of any adverse
health and environmental impact can be
determined on a site specific basis.
b. Summary of proposed regulation—
§ 122 25(d). Because each hazardous
waste management facility is to be
independently evaluated for its Impact
on human health and the environment, a
uniform mode of analysis must be
provided to ensure that all sites are
evaluated by the same criteria. This
uniform mode of analysis will take the
form of extensive informational
requirements for evaluating and
predicting the effect of a hazardous-
waste facility on human health and the
environment. These informational
requirements are outlined in § 122.25(d)
and require the permittee to provide
information on five major topics:
(1) A description of the wastes (both
qualitative and quantitative) to be
disposed of in the facility.
(2) A description of leachate and gas
migration from the facility.
(3) A hydrogeologic description of the
unsaturated zone.
(4) A hydrogeologic description of the
saturated zone.
(5) A description of all discharges into
surface waters and all withdrawals of
ground water, that will be mixed with
leathate from the disposal facility.
The overall objective of these
informational requirements is to acquire
the data necessary to establish the
absence or degree of adverse effects on
human health and the environment.
In order to provide maximum
flexibility in implementing the above
described informational requirements.
varying levels of precision will be
allowed. Section 122.25(e) outlines the
frame ark for recognizing major
differences in site and waste specific
circumstances, and inadequacies in the
state of the art which would indicate a
necessity to allow some variation in the
required degree of precision to comply
with informs lionel requirements. This
section seeks to limit unnecessary
informational requirements and ease the
regululory burden wherever possible
without jeopardizing the assessment of
health and environmental effects. For
example. a detailed analysis of the
effects associated with the human
consumption of affected ground water is
unnecessary if the ground-water
protection standard is met and Lhe water
is not arid will not be consumed.
a. Waste identification oIid
quantification— 122.25(d)(1). Waste
identification and quantification is the
first and most vital step in the analysis
of health and environmental effects
This subsection requires a detailed
accounting of hazardous wastes to be
disposed of in each operational unit of a
disposal facility (see § 122.3 Definition
of “Hazardous Waste Management
facility” and § 260.10 Definition of
“Facility”). This is simiar to the
accounting required in Part A of the
permit application (see § 122.24(g)). The
information required in Part A also
includes an identification by hazardous
waste number (see § 122.1(c)(1)).
However that information (to be
recorded on Form 3) deals only with the
hazardous waste delivered to the facility
and how it is to be stored, treated, or
disposed. One cannot necessarily
identify the specific disposal facility
operational unit from Form 3 unless
there is only one of each type of unit at
the facility. In some cases, the
hazardous wastes disposed of at a
facility may be a waste produced by a
treatment process at the facility. Such a
hazardous waste is not described on
Form.3 except by reference to the
generic descriptions of storage,
treatment, and disposal unit operations
for each identified waste received. It
should be reemphasized that a waste
resulting from the treatment of a
hazardous waste rem&ns a hazardous
waste by definition (see § 261.3(c)(2))
although such a hazardous waste will
not have a Hazardous Waste Number
(see “when applicable” in
§ 122.25(d)(1)(i)).
It is possible for a waste which has
been classified as hazardous to be
exempted from the direct regulatory
jorisdictio.-i of the Agency under Subtitle
C of RCRA in accordance with a
specified procedure (see
§H 261.3(a)(2)(i), and (ii). and
261.3(d)(2), all of which reference
§f 260.20 and 260.22). Sections 260.20
arid 260.22 describe a rulemaking
procedure by which the Administrator
can be petitioned to exclude a specific
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Federal Register / Vol. 46, No. 24 / Thursday, February 5, 1981 I Proposed Rules
waste at a facility from being defined as
hazardous. The procedure is relatively
rigorous, however, and in most cases
where a petitioner would be successful,
it would probably be less burdensome to
apply for and receive a permit. A
successful petitioner would not be
subject to Subtitle C of RCRA, although
would still be subject to Subtitle D.
The key concept to the importance of
the informational requirements is
brought forth in § 122.25 [ d)(1)(ii] and
(iii). Unless absolute storage
(containment) of the waste is achieved
in a land disposal facility, disposal is
only transitory and will ultimately result
in the migraticn of the waste and its
decomposition byproducts. For all
practical purposes, absolute storage in
land disposal facilities is unachievable
for more than some limited period of
time during which active management is
continued. Furthermore, absolute
storage may not be achievable in most
land disposal facilities even where there
is continuous management Because of
these realities, the primary issues in
regulating land disposal facilities are
associated with the rate and locus of
release of waste contaminants. The
çertinent factors are resc ion rates,
decomposition rates, release rates, and
r 4 gr&ion rates.
All hazardous waste is composed of
r. aItcr, whirh cannot be destroyed.
So’ ie listed liezardous wastes are
elemental in form either as
disassociated ions in solution or as
soh ble salts. These materials, hich
can b categorl7ed as metals and
inorg nics. are native to the
environment and are hazardous
primarily due to the relative amount in
hich they are present hen disposed
of as a waste. Additionally. they may be
hazardous because they induce the ionic
components of pure water (the
hydror.ium ion (113)1 or the hydroxyl ion
(Oil—)), to be present in excess amounts.
This results in a water solution which is
corrosive duo to acidity or causticity.
Successful disposal of metals and
inorganics involves their reintroduction
into the natural environment at a rate
which is consistent with their natural
occurrence in the environment. Placing -
such materials on or in the land in a
controlled manner can be a successful
way to achieve this end. To be sure of
safe disposal, knowledge of several
factors is required: the interactions of
materials disposed of in a mixture, the
solubility of the materials in water, the
chemical interaction of the materials
with natural earth materials, and the
concentrations of contaminants which
will constitute an unusual exposure and
cause adverse health and environmental
effects. Proper waste disposal may be
accomplished by several techniques or
- combination of techniques. For example,
in some cases treatment may be
necessary to alter the chemical form of
these materials before disposal.
Similarly, in other cases, design features
can be engineered to reduce the amount
of water available to solubilize the
wastes. Likewise, management controls
can be instituted to limit exposure
within the locus of waste disposal and
migration by simply restricting human
activity. Some listed hazardous wastes
in this category (metals and inorganics)
are so insoluble that restricting re-
excavation is the only control that is
needed. Other listed hazardous wastes
are significar ly soluble only when
mixed with i rtain other wastes.
Therefore, in addition to restricting re-
excavation, these incompatible wastes
need to be segregated. All of the factors
which control the rate of migration aie
determinate provided the locus of
migration is determinate and the
characteristics of the earLh materials
encountered in that migration are
known or can be measured.
Natural and synthetic organics are the
most problematical classes of hazardous
wastes because their numbers are
nearly infinite. Synthetic organics,
created by man for some specific useful
purpose and ultimately discarded, are
often the subject of the greatest public
interest when they can or do adversely
affect human health. It should be
stressed however, that in addition to
synthetic orgariics, natural organics also
constitute a large number of listed
hazardous wastes that exhibit the most
publicly feared adverse effect on human
health—carcinogenesis. Essentially all
organics, whether natural or synthet:c,
are prone to biochemical degradation.
However, because of their toxicity or
their molecular configuration, a number
of organics are extremely persistent in
the natural environment. This effect is
magnified when they are disposed of in
bulk quantities (or high concentrations)
antagonistic to the coexistence of life
forms. The problem of high
concentrations can be dealt with more
successfully through diffuse disposal by
land spreading (see Subpart M—Land
Treatment) rather than landfilling.
Landfilling an organic waste may only
act to attenuate the waste physically as
the waste migrates through the land
(below the soil solum) where life
generally does not exist. In addition,
biodegradation is often limited to
relatively slow anaerobic metabolic
processes such as fermentation because
in a normal landfill, available oxygen is
quickly utilized by any life forms
are present.
With regard to formulated inorg. 1 - 1 1
and decomposition inorganics, Ih d
base for the land disposal iniorn l,iti .. ,
requirements is adequate
respect to natural and syntbpt:c r ’ . -
the data base is less precise. Th 5 .,,
in part, to the fact that the medi s i
measure or even identify spacic
derivatives of mans such organi;
natural and synthetic) and correl,,.
these measurements with obser it
health and enviroi-.mental effects i,, •
relati’ ely recent origin. Except
the effects were so acute as to be
discernable without precise
measurement, the prevailing praco
concerning the presence of mast
organics in drinking water within tn
last decade has been to lump them
together under the heading of “tast”..
odor” problems.
With the proper waste identific,,t:,,
and quantification. all of the additor.i
factors needed to evaluate the rate of
migration of any g - en contamin:it r
mixture of contamnants in earth
materials are determinate. Even
complex mixtures will tend to
differentiate in transfer through the so
due to the rate phenomenon of
chromatographic reaction with the 5o l
Wastes disposed of separately at the
same site may also become mixed in
transit. Therefore, the mixing of wast’c
in the disposal process introduces a
significant complication to the problcn-
of predicting whether adverse effects w
human health and the environment ssil
result. However, by controlling the
creation of new mixtures of
contaminants in disposal to those which
s’:ill not interact (or interact in a
predictable way), the disposer can take
advantage of available reference data to
the extent that it exists. If the disposer
does not control the creation of new
mixtures of contaminants, then he may
have to incur the obligation and cost of
defining environmental fate factors
experimentally.
In § 122.25(d)(1)(ii) an applicant is
required to describe the expected rate o
waste deposition. These data are
essential to any valid predicition of
solubilization, migration, and effect.
These data, supplemented by data
obtained by waste analysis where
required, (see § 264.13(a)(1)) and data
accumulated for annual reporting (see
§ 264.75(d) and 264.75(e)) will be the
basis for triannual reassessment of that
prediction based on actual date on the
type of waste disposed and the rate of
disposal for each waste (see § 122.28(f)).
In § 12125(d)(1)(iii) an applicant for a
permit is separately required to
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• - —, . . .. ,,._ _LC.. , .. r4b - i i a% . . . n
establish an absolute limit on the rate of
waste deposition he is seeking
authorization for. This limit will be used
in determining permit violations. A
permit violation will occur if a’
specilkally defined type of waste is
disposed of in quantities greater than
authorized or if a type of waste not
authorized by the permit is received and
disposed of into or on the land. It should
be noted that the permit limits based on
§ 122.25(d)(1)(iii) will not function to
limit the receipt of waste at the facility.
but only the rate of disposal of that
waste into or on the land. The difference
between the rate of delivery or receipt
and the rate oçpermitted disposal, if
any. must be accounted for in storage.
By this means, permit applicants will be
able to allow for projected business
growth or even provide some margin for
management error in committing
themselves to service clients whose
business needs for disposal services
might expand or cxceed estimate needs.
Permittees can also allow some margin
to accommodate emergency or
unforeseen needs.
d. Leachato niigrntiozi— 122.25(d)(2).
This subsection requires a detailed
prediction of the rate at which leachate
(solubilized contaminants) will migrate
from each land disposal operational
unit. Section 122.25(d)(Zflui) requires a
characterization of the liquid available
to mcbilize solid materials. There are
three types of liquids ii aiIable to act as
scvents: rainwater. liquids placed inthe
disposal facilities, and liquids generated
iii the disposal fric:ilities.
The first type of liquid is infiltrating
rainwater. The amount of rainwater
whicl. can be pred .ctcd to impact on any
particular facility w lt vary with location
due to climate. geology and topography.
Incident rainwater will vary seasonally
at each location 1 he rate of irfrlti ation
at any gi cn tinie is determined by
£iniilysls of riinofl, evaporation, and
transpiration. All of these factors vary
with the physical state and
configur;ition of thi site. Individual sites
can be designed and managed to induce:
Surluce run-off (by proper grading).
evaporation (by allowing liquids to be
e, poscd to the atinosphrie over large
areaS). or transpiration (by possessing a
high density veget-ati e cover). The
r.oroial situation at an .icti e I.andfrll is
such that the infitnation of rainwater is
enhanced due to a disturbed and
unvegetated site surface. In actively
usi ’d areas, surf ace runoff is most ofien
collected and retained on the site
thereby inducing infiltration. Channeling
of run-off from the site to surface waters
is subject to permitting under the NPDES
program, and is usually avoided for
management convenience. ‘l’he net effect
of these factors in non-arid areas with
relatively impermeable soils, is that the
soil below the site (and often the waste
within the site) becomes saturated with
water thereby enhancing solubilization
and migration of the waste constituents
(see § 122.25(d)(4)(il)). The phenomena
for this adverse effect is the elimination
of the zone of aeration in which
maximum attenuation of waste
constituents would normally occur (see
§ 122.25(d)(3)).
The second type of liquids are those
placed in a land disposal facility. In the
Interim Status Standards (ISS) for
landfills and waste piles, this practice
has been restricted, but not eliminated.
By contrast, the waste disposed of in a
surface impoundment or by land
spreading are often in the liquid state. A
solid waste disposed of in a landfill.
even though solid in handling
characteristics, could be as high as 90—
95% liquid and still not release “free
liquids” (see the Preamble to the 1SS at
45 FR 33214).
The third and final type of liquid
referenced in § 122.25(d)(2)(iii) are
liquids which are generated within a
land disposal facility operational unit.
Affixed water is often a part of a solid.
Additionally some solids are
hydrophillic and may capture watpr
from the surrounding medium (including
the air). Of greater potential importance
are the liquids that may be generated by
organic decay. Most organic matter was
originally formed through the process of
photosynthesis which involves the
combining of carbon dioxide (CO J and
water (H 2 0) to form organu materal
(Cl1O)r, Whun the process is reversed
during the decay of organic matter,
water is released. In anaerobic
environments, such as those commonly
found in landfills used to dispose of
organic matter, alcohol intetmediates
are formed through fern’c rita tion
reactions and are often released.
The solution a aiIable to dissolve
solids is a mixture of these liquids and
the dissolved gases in which they are
cxp.ised—preduminately CO 2 . HIS, and
NH, The character of the liquids are
furtlirr altered by the solubilizution of
solids from the wastes and soils with
which it (ames into conta.t. An
tquitrbriu ii between the sulutiun and
the solids with whn.h it is in contact is
most often reached when excess solids
,iiid gases are present (the norm in a
lrindfiltl. For metals rind inorganics this
equilibrium can be determined from
either reference sources or experiniantal
data However for organic:s. the
character of the solution will vary
depending of the adsorptive affinity of
the organic constituents for the solids
(including the soils) with shich it
contacts, Within a landfill, or at the
interface with natural earth materials,
the character of the leachate solution
with respect to organic constituents is
usually determinate only by direct
measurement unless the system is
chemically simple. Based on experience.
it can be empirically characterized by
reference to historical direct
measurements or by experimental
simulation..
Sections 122.25(d)(2)(i) and (ii)
requires the permittee to characterize
the leitchate to the best of his ability.
Section 122.25(d)(2)(iv) requires him to
mak’e a “worst case” predicitior which
will be used in subsequent predictions
of the limits of authorized effects and
locus of effects by which the permit will
be limited. The permit will not directly
limit the maximum rate of leachate
discharge with respect to the
concentration or mass of contaminants
(however, volume may be limited in the
permit as a control on surface
management and ground water -
mounthog). Leachate monitoring is
reqwred by direct or simulative means
for each type of land disposal facility in
the appropriate Subpart (see Subpart K-
Surface lmpoundments, Subpart L-
Waste Piles, Subpart M-Land Treatment,
Subpart N-Landfills, and Subpart R-
Underground Injection and Subpart 5—
Seepage facilities)
a. Unsaturated zone monitoring—
§ 122.25(d) (3). This subsection requires
the permittee to characterize the
migration of leachate and gases through
the unsaturated zone. Gases may be
generated either directly from the waste
in the facility or from leachate. With
respect to leachate. this characterization
will require know!edge of the interaction
of the leachale with each particular type
of earth material with which it will come
into contact. The exchange
characteristics with earth materials are
determinate for individ’ al contaminants
and specific types of e . . th materials
(both soil and rock) and rates of solution
flow. They are commonly described
empirically from laboratory or field (in
s;tu) measurements amid reported
according to a convention involving an
expression called the Frei ndlich
isotherm equation and a “distribution
coefficient” included in the equation.
When consideration of velocity factors
are added, the values referred to as the
“retardation factor’, are expressed as a
function of both the porosity of the
specific earth materials and the
distribution coefficient The velocity
f.ictoi’s are not usually important in the
unsaturated zone but are significant in
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Federal Ret ister f Vol. 40. No. 24 / Thursday. February 5, 1981 I Proposed_Rules
the saturatr d zone. The exchange in the
unsaturated zone is a mass exchange
phenomenon which will vary ith tune
at any location until the exchange
‘nacity of the earth materials is fully
zed (i.e the solution and the soil are
.hcmicul equilibrium and no net
ti chan;e occurs). Therefore a
progressi ’ e diminishing of the wtal
exchange capacity must be anticipated.
If the design of the disposal facility
depends on the exchange taking place.
then the exchange capacity can not be
exceeded. This is a mass baldnce type
of problem which could limit the total
mass of contaminant placed in any one
land disposal operational unit. Control
is achie ubIe by two methods: (1)
Determining the total exchange capacity
available and limiting the total mass of
the waste disposed of to or below that
limit, or (2) retarding the migration of
the leachate by closing and covering the
disposal facility.
An effective infiltration reducing
cover can significantly reduce the
driving force which allows leachate to
migrate. the cover would thereby
commensurately reduce the rate of
contaminant mass migratior. It should
be noted that this design and
management technique requires
continuing maintenance, and becomes
ineffective when the zone of deposition
is within the saturated zone.
Unfortunately, it is quite common for
“tndfills to be designed to operate
thin the saturated zone, being
aintained dry by groundwater and/or
leachate withdrawal sys:ems. This
practice ignores the fact that the water
table ele ation which will be re-
established following closure will
saturate the waste unles3 the leachate
withdrawal is continued ad infiniLim.
When this saturation occurs, the
character of the leachate will tend to
change since greater volumes of water
iill be in intimate contact with the
waste. The driving forces tending to
move the leachate will also be altered
thereby increasing the rate of migration
of solubilized contaminants and likely
causing the leachate to move in new
unpredicted directions.
Another factor which must be
considered for at least the most active
containments is horizontal dispersivity.
This phenomena is caused by capillary
action, molecular diffusion, and the
tortuosity of the dominant vertir.al flow
path through the unsaturated zone.
Horizontal dispersivity can be
empitically determined, but the resulting
horizontal component of flow is usually
so small that a vertical characterization
with some safety factor is sufficient.
This does not mean that the horizontal
.coinponerut of leachate flow can be
ignored, however, since the presence of
ielatively impermeable layers or lenses
will force horizontal flow by inducing
percihed saturated zones.
Ultimately, the complexity of the
ana!ysis required in § 122.25(d)(3) is
dependent on the natural complexity of
the geology in the vicinity of the site.
The regulations require the applicant to
define the locus of effect rcsulting from
his waste disposal activities. The
applicant can choose to locate the
thsposal site where the natural geologic
system is homogenous and relatively
simple to define. Alternatively, by
locating where the system is complex
and thereby difficult to define, the
applicant will be obligated to expend
greater resources jn investigating,
understanding, and defining the locus of
effect that his proposed activity will
hdve on the environment. By careful site
selection, the permit applicant can
greatly reduce the informational burden
of the permitting process, thus reducing
the costs associated with obtaining a
permit.
The art of defining gaseous migration
is less fully developed than the art of
defining liquid migration. The principles
and factors are however known, and the
requirement of definition should
encourage the refinement of the art.
With the incidents of serious adverse
hea!th and environmental effects known
to the Agency, the problem cannot be
ignored due to the relative weakness of
the developed art of definition.
f. SaSurated zone monitoring—
§ 122.25(d)(4). This subsection requires
the perinittee to characterize the
migration of leachate in the saturated
zone. The first task, required in
§ 122.25(d)(4)(ii). is to describe the
alteration caused by the facility in the
vertical elevation of the ground water in
the zone of saturation. This
phenomenon, called ground water
mounding, occurs beneath essentially all
active operational units of land disposal
facilities in response to the addition of
liquids from normal land disposal
practices (see § 122.25(d)(2) with respect
to quantitative factors). In performing
this analysis, it must be remembered
that the elevation of the saturated zone
also rises and falls due to natural
variations in the amount of rainwater
infiltration. Occasionally, the saturated
zone elevation will vary due to external
factors which may influence the
pressure head adjacent to the leachate
migration zone. Seasonal variations in
elevation can be quite large, particularly
in tight soils such as tills and clays.
Determination of these seasonal
variations can be made by conventional
hydrogeologic investigation and an
understanding of the natural system.
Naturally occurring high water table
elevations are often identifiable by
physical observation of the soil due to
soil mottling and can be directly
measured through wells. In some area ’
the U.S. Geological Survey (USGS)
measures these variations in specified
observation wells and reports results
monthly. This data, however, may not
be sufficiently localized for direct
(rather than inferential) use in the
facility design. The characterization of
variations in the elevation of the
saturated zone is of extreme importari. r’
in defining the ground water flow
system because the water table head is
the driving force behind ground water
uigration.
Based upon characterization of the
ground water mounding caused by the
facility and the results of the site
investigation required in § 122.25(g). a
flow net can be devised to predict
leachate flow patterns assuming that the
flow characteristics were similar to
ground water indigenous to the area.
Refinements to this assumption can be
made by considering additive factors to
account for transverse, lateral and
vertical dispersivity. The use of a
ground water flow net and analysis of
leachate dispersivity factors then allo s
the probable leachate plume to be
described as.required in
§ 122.25(d)(4)(iii).
Dispersivity is an empirical factor
which varies with the specific type of
contaminant and earth material through
which the contaminant migrates in the
ground water, Dispersivity can be
described by reference to the three
possible dimensions—transverse,
lateral. and vertical. The real extent of
the plume (in the horizontal plane)
would be described by the
contaminant(s) that exhibited the
greatest transverse and lateral
dispersivity. In practice, experimental
determinations of duspersivity are
imprecise and in situ response can only
be approximated. The format of the
regulation allows this imprecision to be
accommodated administratively by
allowing uncertainties to be accounted
for between the best estimate of the
zone to be affected and the permit
limiting estimate of the zone. These
accommodations are reflected in
§ 122.25(d) (7) and (8).
The third dimension, vertical
dispersivity, would be a reflection of the
transverse dispersivity in homogeneous
medium. Due to layering, however, in
situ resistance to vertical flow is often
greater than the resistance to horizontal
flow. Gravitational effects can also b•
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11157
very significiint. Many contaminants are
immiscible in water and respond
independently to gravitational forces in
ciccordancr. to their specific gravity
Contaminants which are significantly
lighter than waler tend to float at the
surface of the plume zone. Those
contaminants which are significantly
heavier, sink and extend the vertical
dimension of the zone downward.
Similar effects are caused when
contaminants are miscible (or soluble)
in water as the heavier contaminants
usually tend to drag the leachate zone
deeper into the ground water flow
system. The more rapid the relative flow
is in the transverse direction, the less
pronounced vertical dispersivity will be.
The vertical dispersivity effect must be
defined to comply with § § 122.25 [ d)(4)
(iii) and (iv).
‘the definition of the transverse
transport of contaminants by units of
mass depends primarily on the leachate
exchange phenomenon of the earth
medium through which it flows. Exccpt
(n slow moving systems [ e.g. tight soil)
the velocity factor is significant , and
must be taken into account. This means
that “retardation factors” should be
used to express the phenomenon rather -
than “distribution coefficients” alone.
The lea chate-soil exchanges can be an
extremely significant factor in improving
the quality of the leachate through
dilution, or in certain cases [ e.g. tn
shallow systems with sufficient energy
to support biological activity), the
degradation of organic matter. The
dominent effect is a reduction in the
toncentration of contaminants at an
urea of dtscharge (or withdrawal)
through delay (retardation) and dilution
(dispersion). Continuous long term use
of the same disposal area for the same
rvfr ctory contaminants will ultimately
ni’gLite the desired effect of retardation.
V ith respect to immiscible
r ntarninates which tend to layer in the
flow system, the exchange capacity is
u’i,zed more rapidly. Therefore, quality
rnprovement with respect to distance
Cl time are less probable. Immiscible
in;amjnants which are lighter than
V. i!er are quite likely to exhibit greater
ls erse dispcrsivity than water,
• ;“cially if they are less viscous then
e r bimiscible contaminants which
ier than water will tend to be
1 . ;‘i s ted to a greater extent in the
Lral s stem and sink deeper into the
• i , rd t%dter system Heavier
.cible contaminants may exhibit a
S. rp head independent of the
J J %va system (din’ to their own
- ‘ :r gravity) and migrate in different
.tiuns than the ground water
Sections 122.25(dfl4)(i) through (v)
i eqiiire an analysis nf contaminant
transport in the saturated zone. Such an
analysis is within the state of the art,
however the art is not yet precise. The
regulations accommodate this
imprecision by requiring maximum rate
and locus predictions and commitments
(see § § 122.25(a)(1) [ iii), (2)(iv), (3)(v).
[ 4)(iv) and [ v). [ 5)(ii) and (iv). Periodic
re-predictions are elsa required based
on monitoring data collected during
operation of the facilities (see 122.280).
Where imprecision is due to the physical
characteristics of the contaminants (i.e..
those which are immiscible and exhibit
specific gravities quite different than
water or leachate ). design, management,
and regulatory controls should seve to
restrict disposal in the saturated zone.
These controls may be pertinent to the
concentrated lpnd disposal of volatile
organic solvents and chlorinated organic
solvents. ccntrolled (retarded)
evaporation, or long term storage in the
unsaturated Zone.
g. Discharge from zone of
contoinrnent— 122.25(d)(5). This
subsection deals with contaminants
other than gases, that are discharged or
withdrawn from the zone of
containment described in fl 122.25 [ d) [ 3)
( ) and [ iv). it should be noted that the
ground water table fornis the upper
boundary of the zone of containment
except where the description provided
in compliance with § 122.25(d)(3)(v)
shows otherwise.
Section l22.25 [ d)(5)(i) deals with the
expected locus of discharge from the
containment zone while § 122.25(d)(5)(ii)
deals with the locus of discharge to be
authorized by the permit. To be
authorized, the discharge effects (which
are maximum effects not expected to be
me realized) must meet: the ground
wdter protection standard [ established
In § 264 2), the performance standards
(established in fl 264.20 and 264.21),
and the demcnstrntions of performance
(required in § 264.21).
Fluids withdrawn from the saturated
zone are discussed in fi 122.25(d) [ 5)(iii)
and (iv ). in a manner similar to the locus
of discharge considerations discussed
above.
7. Variations in prec ,sion— 122.25(e).
The parpose of this subsection is to
establish a basis for allowing some
varIat ion in the degree of precision
required to comply with subsection [ d)
informational requirements. The
informaticnal requirements are bared on
the premise that a certain amount of
inform ticn is necessary to determine
whether or not an effect resulting from
land disposal is acceptable. This
minimum information must be sufficieiit
Iii iihlow the following questions to be
aiiswrred:
(1) What may cause the adverse
effect?
(2) Where may the effect occur?
(3) How much exposure may occur?
The hard dsta needed to answer these
.questions will vary considerably with
the character of waste disposed of. the
location of the disposal site, and the
method of disposal. These variations in
circumstances surrouading a permit
application indicate a necessity to allow
some variation in the degree of precision
of the data required for informçd
decisions on permit applications.
Additionally, inadequacies in the state
of the art are recognized and accounted
for by allowing best estimates where
currently available prediction methods
do not provide precise data.
The Agency is striving to be as
flexible as possible by limiting
informs tionol requirements where
possible and allowing variations in the
levels of precision required in
recognition of state of the art
constraints. To further aid permit
applicants in meeting the informational
requirements, EPA has available a
number of guidance documents in the
form of Permit Writer’s Guidance
Manuals and Technical Resource
documents [ see § Vil(B) of the Preamble
for more information on these
documents).
Section 122.25(d) [ 2)(iv) requires that
the definition of the character and
volume of leachate discharged from a
facility be a best estimate. The
monitoring and modeling requirements
of § 122.5 [ f] provide a mechanism for
subsequent verification and re-
prediction of this initial estimate.
Section 122.25(e)(3) further clarifies the
term “best estimate” by requiring the
estimate to be sufficiently precise to
establish a number of factors necessary
to determine the pctential adverse effect
of the leachate.
As mcntioned previously, the art of
defining gaseous migration is less fully
developed than the art of defining liquid
migration. In recognition of this,
§ I 22.25(e) [ 5) requires only a best
estimate of the locus of gaseous
migration. At a facility containing many
operational units (the same or different
types of units), the gaseous migration
from one unit may be a small percentage
of the total emissions of the facility.
Section 122.25(e) [ 2) [ iv) allows the rate of
gaseous migration from any one
particular operational unit at a facility
to be considered in conl unction with the
rate of migration from all operational
units at the facility.
Si’ction 122.25 [ dfl8) gives a permit
applicant the option of using a multiplier
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Federal Register ‘ Vol. 46, No. 24 / Thursday. FuL’ruar 5. 1981 / Proposed Rules
(e.g., 105 percent, 120 percent) in
defining the location and rate of
migration to allow For a margin of error
in his predictions. The applicant must.
however, define the factor(s)-if he elects
use one. By providing for a margin of
or in this nay, a permittee can guard
6 ainst permit iviolations resulting from
the imprecision of prediction methods
without compromising the “best
estimates”.
Where leachate (or ground water
affected by leachate) will discharge to
standing surface water or the surface of
the ground, a prediction as accurate as
can be achieved Is required by
§ 122.25(d)(11). However, where the
affected surface water or ground is
within the controlled boundaries of the
facility, a lesser degree of accuracy is
acceptable. This imprecision is allowed
because exposure to the potentially
affected water and ground will be
controlled through the security
requirements contained in § 264.14.
Leachate plumes caused by the
disposal of hazardous wastes into or on
the land may migrate into a number of
various passive collection de ices s ic i
as storm drains, sanitary sewers.
ditches, or agricultural drainage
systems. This migration may cause
damage to the collection devices (e.g..
corrosion of sewer pipes) and the
subsequent, unexpected migration of
contaminants where the leachate plume
interacts with the normal flows
issociated with these devices. Section
.25(e)(12) requires that these factors
predicted and accounted for in the
.iformation submitted by permit
applicants
8. Permits by rule—4 122.26 As
mentioned previously in this preamble,
the scope of the permit by rule to allow
PCRA jurisdiction over certain types of
tacilities to be exclusively administered
under the UIC program has been
proposed for amendment. A basic
pioblem became evident upon analysis
uy the Agency of the decision not to
implement the total UIC ban of Class N
wells. Class IV wells are those which
“inject” hazardous waste above an
“underground source of drinking water”
(USDW). Included are a number of
facilities that are vells because of the
U!C definition (i.e.. deeper than wide).
Many are among those subject to
Subpart S—Seepage Facilities—of
today’s promulgation. It should be noted
that the Class IV ban of wells that inject
directly into a USDW is being
continued, and must be considered a
limitation on RCRA jurisdiction to
permit such facilities.
‘Ebe basic problem i Jha1 th’ scop .
, g 1h jt’to por m pph ations
faqicunil_under the RCRAdnd the
SDWA is not equivalent . Iii today’s
i osed rule th t problem is being
‘resolved by promulgating under botc the
RCRA and the SDWA. In this ay tne
RCRA standard will apply equally to
either program anU, at least within the
Agency, exclusive jurisdiction is not .i
primary issue. The allocation of staff
resources with appropriate talents to
review permit applications for
hazardous waste land disposal faciht.es
can be managed as appropriate to the
Agency’s goals.
r The’permit by rule allows UIC
exclusive jurisdiction iii those
circumstances when it is clear that the
R RA standard will be complied with.
Those circumstances exist only when no
waste will enter a surficial aquifer and
no water will be withdrawn for use from
the zone of containment within the
injection zone. In all other -
circumstances, the RCRA criteria dnd
standards viill apply. Due to the choice
to promulgate under both la s. perrn:’s
using the RCRA rule may be issued h
those administering the UIC progicun.
9. Tn annual repredic iozr of leac.’c :e
plume migration—i 122.28 (f). Permittees
are required in § 122.25(d) to define
maximum rate and locus effects of
leachate discharges from their facility
and include these definitions in tho
permit application. These predictmes
are then inccrporated as permit
limitations (SL ’c § 122.29 (c)) and if
exceeded, constitute a permit viola on.
However, the state of the art in defining
leachate transport is not precise ar 1 d it s
recognized that predictions made at the
time of permit application may not be
accurate. To further account for this
imprecision ( 122.25 (d) and (e) also
account for it), § 122.28(f) requircs
submission of triannual repredi t’or.s of
the effects described in § 122.25(d) and
any information supplemental to the
reprediction required in § 122.25(e). An%
proposed modifications to the
monitoring and modeling program
necessary in light of the repred chor. of
effects must also be submitted.
The triannual rcports, containing the
above described information, need not
be submitted until March 1 of the yea’
•fqllowing the completion of three fu i
years of operation. For the purposes cf
this requirement, the water yea
October 1 to September 30), rather than
the calendar year, is used for the
computation of years of operation
If these repredictions ind .calc thdt
limits on the rate or locus of effects
contained in the permit have or will be
exceeded, the permittee must request a
modification of the permit.
‘rho proposed modification can be ‘o
exp.ind the zone of effects r rt’di.re the
rate of waste disposal (su’
§ 122.15(a)(8)(i)). If it appears that the
maximum zone of effects defined in th.
perrnt exceeds that which will be
reached, the permittee may request a
permit modification to reduce the
defined zone (see § 122 .15(a) [ 8)(ij] ),
If the Director finds that the zone of
effects defined in the permit is
substantially unrelated to the actual
zone of effects, he must require the
permittee to redefine the zone ( 500
§ 122 15(a)(8)(iii).
10. Establishing RCRA perinh!
cond,tions—- 122.2.9. Two permit
conditions are being proposed its
additions to § 122.29 The first,
contained in § 122.29(b), requires thai
RCR.. permits limit the maximum rat ’
of disposal at or below the rate applied
for by the applicant. The second,
contained in § 122.29(c). establishes th.it
the only effects which will be authori. d
by permits are those defined by the
applicant in accordance with § 122.25(c.).
This does not mean that all described
effects will be authorized, but only thut
an effects which are not described in
the application will not be authorized by
the is5uance of a permit even in the
absence of a permit condition. -
VIII. Supporting Documents
The Agency has developed or will
prepare the following supporting
documents in conjunc.tion with these
regulations.
A Background Documenis
Nine background documents suppoi’t
these regulations, providing response to
public comments and rationale for how
and s hy the regulations have tome to
be written the way they are. In
conju.r.ction with the references listed in
them, these documents provide the bas:s
for and defense of the proposed
regulations.
For the most part, they are the same
background documents issued in
support of the May 19, 1980,
promulgation, but they have been
expanded to include: (a) Summaries and
responses to comments on the May 19
in’erim final, interim status regulations:
(b) summaries and response to
comments on the October 8, 1980,
supplemental notice of proposed
rulemaking, permit standards applicable
to owners and operators of hazardous
waste treatment, storage and disposal
facilities: (c) summaries arid responses
to ccmments on the proposed
(December 1978) general standards. anJ
(d) rationale for the general standards
proposed today. The following
dccdments directly support the
regulations propotiLd today.
I S.rfui.e lrnp’nIndmL’nts
\. .i ’ ie Piles
\ L i .L 4
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11159
3. Land Treatment
4. LandfillS
. Underground Injection and
jjndergrOUfld Seepage
6. Information Requirements for
permitting Discharges from Land
Disposal Facilities
7. Ground Water Protection Standard
8. Ground-water and Air Emission
Monitoring
g. Performance Standards for Land
0 5 pos l Facilities
Copies of the Background Documents
used in sppport of these proposed rules
are available for review in all EPA
Regional Office libraries and in EPA
headquarters library (Public Information
Reference Unit) Room 2404, Waterside
Mall, 401 M Street. SW., Washington.
D.C. 20460.
B. Guidance Documents
The permit official must review and
evaluate permit applications to
determine whether the proposed
objectives, design. and operation of a
land disposal facility will be in
compliance with all applicable
provisions of the regulations (40 CFR
264).
EPA is preparing two types of
documents for permit officials
responsible for hazardous waste
landfills, surface impoundments, and
land treatment facilities: Permit Writer’s
Guidance Manuals and Technical
Resource Documents The Permit
Writer’s Guidance Manuals provide
guidance for conducting the review and
“valuation of a permit application for
site.specific control objectives and
designs. The Technical Resource
D ’cuments support the Permit Writer’s
Guidance Manuals in certain areas (i.e.,
i’r’.crs. leachate management, closure,
overs. water balance) by describing
current technologies and methods for
evaluating the performance of the
applicants decign. These documents
will also assist the owner/operator to
identify and evaluate technologies
which can be used to control potential
adverse effects on human health and the
environment in order to comply with the
Part 264 regulations. The information
and guidance presented in these
manuals constitute a suggested
approach for review and evaluation
bdsed on best engineering judgments.
lhere may be alternative and equivalent
methods for conducting the review and
evaluation. However, if the results of
these methods differ from those of the
I.PA method, their validity may have to
ho validated by the applicant.
In re’. iewing and evaluating the
permit application, the permit official
must make all decisions in a well
defined and well documented manner.
Once an initial decision is made to issue
or deny the permit, the Subtitle C
regulations (40 CFR 124.6, 124.7 and
124.8) require preparation of either a
statement of basis or a fact sheet that
discusses the reasons behind the
decision. The statement of baBis or fact
sheet then becomes part of the permit
review process specified in 40 CFR
124.6—124.20.
These manuals are intended to assist
the permit official in arriving at a
logical. well-defined, and well-
documented decision. Checklists and
logic flow diagrams are provided
throughout the manuals to ensure that
necessary factors are considered in the
decision process. Technical data are
presented to enable the permit official to
identify proposed designs that may
require more detailed analysis because
of a deviation from suggested practices.
-. The technical data are not meant to
provide rigid guidelines for arriving at a
decision. References are cited
throughout the manuals to provide
further guidance for the permit official
when necessary.
The following draft Technical
Resource Documents are available:
a Evaluating Cover System for Solid
ajid Hazardous Waste (SW—867)
b. Hydrologic Simulations on Solid
Waste Disposal Sites (SW—868)
c. Landfill and Surface Impoundment
Performance Evaluation (SW—869)
d Lining of Waste Impoundment and
Disposal Facilities (SW—870)
Single copies of these documents are
available from Ed Cox, Solid Waste
Information, U.S F.PA, 20 West St. Clair
Street, Cincinnati, Ohio 45268. If
available copies run out, the Agency
may have to charge by the page for
photocopying EPA is also preparing the
following additional manuals in support
of the Part 264 Land Disposal regulatory
program:
1. Permit Writer’s Guidance Manuals:
a. Landfills
b. Surface Impoundments
c. Land Treatment
d. Piles
2. ‘I’echnical Resource Documents:
a. Management of Hazardous Waste
Leachate (SW—871)
b. Guide to the Disposal of Chemically
Stabilized and Solidified Wastes (SW—
872)
c. Closure of Hazardous Waste
Surface Impoundments (SW—873)
d. Design and Management of
Hazardous Waste Land Treatment
Facilities (SW—874)
e. Soil Permeability Test Manual
f. Leachate Characterization from a
Hazardous Waste Facility
g. Landfill Closure Manual
h. Ground-Water Monitoring for
Owners and Operators of Treatment.
Storage or Disposal Facilities
C’. Economic, Environmental, and
Regulatory Impacts
Under Executive Order 12044, the
Agency is required to prepare a
regulatory analysis for all new
significant regulations. This analysis is
to include a comprehensive economic
impact analysis and a discussion of the
regulatory alternatives considered. The
Agency has not yet prepared the
economic impact analysis for this
rulemaking. However, EPA plans to
complete one and make it available for
public review and comment before a
final rule is promulgated. The Agency’s
October 8, 1980 Supplemental Proposed
Rulemaking Notice described and
invited public comment on the
regulatory alternatives considered. EPA
believes that Notice fulfilled, in part, it’s
obligation under E.O. 12044 to describe
and invite comment on the regulatory
approaches considered. However, EPA
plans to prepare and allow public
comment on a full ‘l egulatory Analysis
before promulgation of a final rule. This
analysis will discuss the approaches
considered and the rationale for the
approach taken in today’s proposed rule.
Under the Federal Reports Act of
1942, 0MB reviews reporting
requirements in proposed forms and
regulations in order to minimize the
burden of respondents and the cost to
the Federal government. For all new
regulations, OMB’s procedures require
us to estimate the size of the reporting -
burden, describe who must report and
apply to 0MB for a clearance.
Accordingly. EPA is estimating the
reporting burden of today’s proposed
rule and will submit a clearance
package to 0MB as soon as possible.
Congress has recently amended this Act
with the Paperwork Reduction Act of
1980. Pub. L 90—511. After the effective
date of this new Act (April 1, 1980) all
agencies must have OMB’s approval of
the reporting burden before’any
regulation is promulgated.
The Regulatory Flexibility Act
requires all Federal agencies to consider
the effects of their regulation on “small
entities”, i.e., small businesses, small
organizations, and small governmental
jurisdictions. It requires agencies to
propose for public comment a
“Regulatory Flexibility Analysis” for
any regulations proposed after January
1, 1981, which will cause a significant
impact on a substantial number of small
entities. The Act requires the analysis to
include, among other things. an estimate
of the number of small entities affected
by the regulations (where feasible), a
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11160
Federal Register I Vol. 46. No. 24 I Thiirsthiv. F’eliruiry 5, 1981 I Proposed Rules
description of th reporting and other
complicince requirements imposed on
them. and a description of any
alte’natives considered to minirn ,e the
onornic inipar.t of the rrguhuticns n
Although EPA has not yet prepored a
Regulatory Flexibility Analysis of the
small entity impacts of the rules it ts
proposing today, it believes that a
significant portion of the potent’ l
i”ipoct of tlies rules on small entil.es
has already been substenti. lly reduced
by the small quantity generator
exemption contained in EPAs Mci 19.
1930. regulations; an exemption graritcd
primarily for administrative reasons.
See 40 CFR 281.5. EPA intends to
analyze the impact of these rules on
small entities more thoroughly in the
futura, and publish i analysis for
public comment.lri the meantime, the
Agency expressly invites [ he public to
address the impact of this rule on small
entities in their comments.
Dated. Jumkir 17, IOCI
Douglas M Castle,
Adnunistrczk ’r.
For the reasons set out in the
preamble. 40 CFR Part 204, 260, and 122
arc proposed to be amended as follows:
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE AND DISPOSAL FACILITIES
1. Amend Table of Contents as
follows:
a. Add to Subpart A—General:
Soc.
264 2 Nun-numerical health and
environmenLa! standard (Ground-water
prolection standard)
b. Add to Subpart B—General Facility
Standards.
204.19 Land disposal facilities.
204.20 Minimum standards applicable to a
vailance from the ground-wi ter
protection standard for ground water
used for drinking
264.21 Pci tormance standards and
associated demonstrations of
performance
c. Add the following:
Subpart F—Ground-water and Air Emission
Monitoring
Src
264 90 Applicability
26491 Cround waler monitoring system
264 92 Sampling and analysis.
26493 Preparation, evaluation, and
response.
264 94 Recordkceping and reporting
264 95 Air emission monitur;ng qvsteiu
204 99 Air emission saniplinq and i ln.ilyais.
2 (14 97 Air omission evniu.iliuri out
ri’spon r.
21,4 qa Air pail Siuli I (lcOi ’d i.l ’ iIii 4 iifl(l
reportii g
Subpart M—La d Treatment
2(3.1 270 Applicability.
234 271 (Reserved]
2( 4 272 Gcr.erdl operating iequiiemc ’iiis
264.273 IP .cservedl
264.274 !Peservcdl
204 275 (Reserved]
264.276 Food chain crops
264.277 (Reservedl
2 ( 14278 Unsaturated zone (zone cif ,irpation)
moni(nrrng.
204.279 Recordkeeping
264.289 Closure and post-closure.
264 281 Special ruquirem nts for ignitable or
reactive waste.
284 282 Special requirements for
incompatible waste.
264 283 Special requirements for ulusses of
facilities.
Subpart N—Landfills
264 300 Applicabhty.
264 301 General design req uiri.ment .
264.302 General opei iting roq;iirenicnls.
264.303 [ Reserved)
264.304 lRoserved]
264 7.05 (Reserved]
264 306 Inspection sr.d testing.
204.307 (Reserved]
264 308 lReservedl
264.309 Surveying and recoi dkeeping
204.310 Closure and post-closure.
264.311 [ Reserved)
264.312 Special requirements for ignitable or
reactive waste.
264.313 Special requirements for
incompatible i astes.
264.314 Special requirements for bquid
Waste.
264 315 Special requirements for containerq.
264.316 Special requirements for classes of
facilities.
Subpart R—Underground Injection
264.430 Applicability.
264.431 General design and installation
requirements.
264.432 General operating requirements.
284.433 Monitoring and response.
264 434 Closure and port-closure.
Subpart S—Seepage Facilities
264 460 Applicability.
264.461 General design requirements.
264.402 General operating requirements.
264.463 Containment systems.
264.464 Diversion structures.
284.465 (Reserved)
264 466 Inspections and testing.
264467 Contingency plans.
264 460 Closure and post-closure
264.469 SpecIal requirements for ignitable or
reactive waste.
264.470 Special requirements for
incompatible wastes.
Subpart T—Minimum Acceptable Treatment
of Hazardous Wastes Prior to Disposal
264.49(1 Appllcabilit).
264.491 General requirements.
2. The authority citation foi Part 264 is
ie -ised to read as follows:
Authority- S rti 3 1006, 2UiJ ,.
3005 of the Sulid Vt’,isti’ Dis’i “,iI \
amended by tin’ Resource dor r,.
overt’ Act 011976, as an’encl , 1 , .
6901 ci seq. § 6405, 5912(i). (“2; , —
arid, .ith re ;ect to ell mli i i
1421. 1422. 1423. and 1424 of Inc S. ,’.
Waler Act, as amended b thp S. -
Water Act Ameadments of
3001 et seq acre 300h. 300h—1. 3o ii , -
300h—3
3jnJ 264 1, paraeraph (dl ic :u
to read as fulloi ’s
§ 264.1 Purpose, scope, and appl.c :.
(d) The requirements of this Pu:
apply to a person disposing of
hazardous waste by means of
underground injection subject t
permit issued under an Undergrui 1 i
ln]ection Control (UIC) program
approved or promulgated under th S
Drinking Water Act and a pcrmii I,
under § 122.26(b) of this chapter on’,
the extent they are required I A ’ § i. .1
of this chapter. These Part 264
regulations do apply to the abovv vi
treatment or storage of hazardous
before it is injected underground
4. Section 264.2 is added to read ., ‘.
follows:
§ 264.2 Nonnumerlcal health and
environmental standard (Ground-water
protection standard).
- - The owner or operator of a land
disposal facility shall not dispose of
hazardous waste into or on any land
unless:
(a)(1) Leachate and other subsurfir.
discharges that will enter into and
migrate within a ground water aquifer
will not mingle with and thereby afle
any ground water which is being or imii ’.
in the future be collected orwithd,ai%n
for domestic, agricultural, industi’i.il.
commercial or other uses, or
(2) A variance is authorized in
accordance with the procedures of
Subpart A of Part 124 based on a
showing by the owner or operator as
required in this section and § § 264.20.
264.21. and § 122.25; and a finding by the
Regional Administrator, that any ground
water which is being or may In the
future be collected or withdrawn for
domestic, agricultural, industrial,
commercial or other uses will not be
adversely affected for such uses and
that public health and the environment
will not be adversely affected; and
(b) Affected ground water will not,
adversely affect the use of the overly ing
land outside of the land disposal fectlit
for residential, agricultural, Industrial. or
commercial purposes or otherwise
adversely affect public health or the
environment: and
Sec
. . * .
I
0’
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FicriilRegisinr/ Vol. 46. No 24 / Thursd iy. Februc ry 5. 1981 / Proposf’d Ruics
11161
(c) Dis ..harges of affectud ground
waters to surface wah ’rs will not
adversely affect existing or potential
future uses of such surface waters or
otherwise adversely affect public health
or the environment.
5. In § 204.10, paragrdph (b) is revised
to read as follows:
§ 264.10 ApplicabIlity.
* . * * .
(b) Section 264.18(b) Is applicable only
to facihties subject to regulation under
this Part 264, Subparts I. J, K. L. M. N. 0.
K. S. and T.
6. Section2B4.19 is added to read as
folows:
§ 264.19 Land disposal facilities.
(a) Several types of facilities at.which
hazardous waste is intentionally placed,
discharged, deposited, or injected into or
on the land; at which waste may remain
after closure; and from which leachate
may discharge into or on any land are
defined in § 260.10. 1heg facilitjeQ
indiulejhe following types:
(1) Surface impoundments other than
those used solely for storage or storage
and treatment,
(2) Waste piles other than those used
solely for storage or storage and
treatment,
(3) Land treatment facilities.
(4) Landfills,
( 5)]Jndorgrotrnd injection facilit’:es ,
(6) e facilitie . includinc ,
seepage lagoons, drying be s. seepage
pits. seepage beds, and inj ilon wells
that are not cased to prevent discharge
a uffgr
(b) No dii sal of hazardous wastes
into or on the land will be authorized by
p ’rmit except In a facility listed in
subsection (a) of this section unless the
specific type of land disposal -facility is
approved by rulemaking petition iii
accordance with § § 260.20 and 260.23.
(c) For the purpose facilitating
descriptions of the varying amounts of
information required to pursue a permit
under § § 264.2(a) (1) or (2) and to
establish compliance with performance
standards, monitoring and modeling
requirements, and technical standards;
and to facilitate descriptions of varying
performance standards, monitoring and
modeling requirements, and technical
standards in these regulu Lions, the
gclasse nd
flidilJ.iJ.fis are estiNiiE :
(1) class A: A land disposal facility
which does or will discharge into an
aquifer which, in its entirety, is not and
will not in the future be a source of
water supply for any use.
(2) C’lass B: A land disposal facility
which does or will discharge into a
portion of art aquifer which is not and
will not in the future be a source of
water supply for any use although other
portions of the same aquifer is or may in
the future be a source of water supply
for some use.
(3) Class C: A land disposal facility
which does or will discharge into a
portion of an aquifer which is or may in
the future be a source of water supply
for uses other than as drinking water.
(4) Class D: A land disposal facility
which does or will discharge into a
portion of an aquifer which Is or may in
the future be a source of public drinking
water supply.
(5) Class E: A land disposal facility
which does or will discharge into a
portion of an aquifer which is or may in
the future be a source of private drinking
water supply.
7. Section 284.20 is added to read as
follows:
§ 264.20 MinImum standards applicable to
a variance from the ground-water
protection standard for ground water used
for drinking.
Owhers anU operators of Class D and
E land disposal facilities shall not;
(a) Discharge contaminants which will
cause the concentration of contaminants
at any point of actual or potential
collection or withdrawal of ground
water for use as drinking water to
exceed:
(1) 80% of the following maximum
contaminant levels specified in the
National Interim Primary Drinking
Water Regulations:
Bonum
Cadmium
CIyow urn
Le d
Niaate (as N
Se}en’Ljm
(2) 40% of the following maximum
contaminant levels specified in the
National Secondary Drinking Water
Regulations:
Chloride
Fojming agerne
Sullate
To’al dissolved aohds (TDS)
(3) 20% of the following maximum
contamination levels specified in the
National Secondaty Drinking Water
Regulations:
MW.
pe 57w
- 03
• 005
- - - - .... 0.2
(4) A color of greater than 3 color
units.
(5) An odor greater than I threshold
odor number.
(6) A sodium concentration greater
than 20 mg/I.
(b) Discharge any of the following
contaminants or groups of contaminants
to ground waters which are or which
could in the future be collected or
withdrawn for usd as drinking water.
Acrylonitrile
Arsenic
Benzene
Beazidine
Beryllium
Carbomc e !nseetic ul i . including but not
limited to.
Mothomyl
2.Methyl -2-(rnethylthiu)propionaldehydeo.
(methylcarbarnyl) o imc ’
Chlorinated Hj drocarbon lz:wctzc.idea.
including but not hrni:e.d to,
Aldrin
Chiordane
DDT (Total—DDT, DUD, & DDEJ
Dieldrin
Endrin and metabobtes
Heptachior and Ileptechlor epoxide (uill
isomers)
Kepone
Lindane as
gamma -Hc, . iichlorocyclciht. rr ie
Hexachlorocyclohesan and
Hcxechlcrocyclohexanc (all isomers)
1 ,2.3 ,4,5 ,6-I-lexachlorocyc luhexane
Methoxychlor
Toxaphene
grains Chloroetheno
pw5rcr Chlorofurm
C’hloropheaoxv Hprli,i irk’s, including but not
limited to,
2.4 Dichlorophcnoxyacetic. acid Z.4-D)
2-Methyl-4-chlorophenoxvpropiunic acid
2 ,3.7.8.Tetrachlorodihenzo.p-dicxjn
2.4.5-Trichiorophonoxyncelic acid
24.5-Trich!orophcnuxypropionir acid (2,4,5.
TP)
Chromium (hexavalunt)
3.3’-Dichlorobenzidi ie
1.2-Dich loroethane
Dwhlomethy/enss. including but nat limited
to;
Pa’ 1.1-Dichlororthylene
bier trans.1 ,2.DIi .hIorOCt!!vt(.:u.
2 O r 2.4-Dimethylphoriol
250 L)i:,,trotoluenes. including but not limitod to.
500 2.4.Dinitrotoluenr .
2.6.DlnutrotolL leni
1,2.Diphenolhyctrazin i’
Flaloeihers and C ’hlonx,/ht’/ E’h, ’rc. including
but not limited to.
Bis(chloromothvl)cihc’r
B:s(2.chlorotheox ’) nwthano
Bis(2-chloroethyl)eiher
Copper
Iron
Manganese
Zinc
001
005
005
10
001
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11162
Federal Register I Vol. 46, No. 24 / Thursday. February 5, 1961 / Proposed Rules
Bis(2..htoroisopropyl)eth er
4-l3roinophenyl phenyl ether
2.Chloroethyl vinyl ether
Chioroniethyl methyl ether
Hexachioroberizeno
‘e’cachlorobutadionc
xachloroeth.ine
drogen sulfide
.‘I,Irosoam:nes. including but not limited to;
N-Nitrosod.-N-but lamine
N-nitrosodiethanolamine
N-Nitrosodiethylamirie
N-Nitrosodimethylamine
N.Nitrosodipheny!amine
N-Ni trosodi.N-prop lam inc
N-N ltroscmeth}Iethylamine
N-Nitrosomethylv inylamine
Polychiorinated b phenyis
Organnphosphozc !nsecl,c,des, including but
not limited to,
0,O.Oiothyl.S-2.(ethylthio)ethyll ester of
phosphnro-thioic acid 1fl ulfoton)
Methyl parathion
Parathion
Phorate
Pen lachioronttrobenzene
Po!ynucleor Aromotic Th’d,vcar1j. ’,j,
includ.ng but not limited h,
Iienz(c)acridirie
Bcn7.(a)enthracene
Benro(b lfluoranthene
Benzo(j)Iluoeanthene
Benzo(a)pyrene
Crysene
Thbenzla.h lacridine
Dibenzla,pjacridine
Dibenzla,hlanthracerie
7H-Dibenzo la.glcarbaznlt ’
Dibenzole,e pyrene
Dibcnzo a,hjpyrene
Dibenzo [ a.ilpyrene
Fluoranthene
- lndenol1,2,3-cd pyrc iie
Japhthaiene
.1,2.2-TeLrachioroethane
Tetrarhioroethene
Totrarhlurornethane
t l,2-Trichloroethane
Trichioroethene
8. Section 204.21 is added to read us
follows:
. . 264.21 Performance standards end
associated demonstrations of
performance.
The demonstrations of performance
required in paragraphs (a), (b), (c), and
(d) of this section shall be considered in
preparing the draft permit required by
§ 124.6 and in preparing the statement of
basis required by § 124.7, and
summarized in accordance with
H 124.8(b)(4) and (5) in the fact sheet
required by § 124 8.
(a) The owner or operator of a land
disposal facility shall not initiate or
continue;
(1) Any discharge that will result in
the migration of contaminants into any
aquifer not described in the permit
application as receiving discharge; or
(2) Any discharge that will enter any
aquIfL ’r s) described in the peimit
‘ppliration as rt-ccrving discharge and
result in migration of contaminants from
the containment zone into surface
waters; and
fi) Result in a violation of applicable
Water Quality Standards approved or
established by the Administrator or
Interfere with the attainment or
maintenance of water quality iii any
portion of the navigable waters for
which the Administrator has established
or caused to be established water
quality related effluent limitations, or
(ii) Be inconsistent with any Areawidu
or Statewide Waste Treatment
Management Plans prepared in
accordance with H 303e or 208 of the
Clean Water Act and approved by the
Administrator, or
(iii) Result in contaminants for which
the Administrator has not developed
and pubIi hed criteria for water quality
in accordance with section 304(a) of the
Clean Water Act:
(A) Reaching any present or potential
source of water withdrawal from
surface waters for domestic,
agricultural, industrial, commercial or
other uses; unless
(B) A variance is authorized in
accordance with the procedures of
Subpart A of Part 124 based on a
showing by the owner or operator as
required paragraphs (a)(2)(h ) and (v) of
this section andr finding by the
Regional Administrator that any surface
water which is being or may in the
future be withdrawn for domestic,
agricultural, industrial, commercial or
other uses. will not be adversely
affected for such uses and that public
health and the environment will not be
adversly affected.
(iv) The owner or operator of a land
disposal facility requiring a variance in
accordance with paragraph (a)(2)(iii)(B)
of this section must demonstrate that
there is a social arid economic need for
the facility, and that there are no
practical options for waste reduction
including resource recovery, treatment
prior to disposal, and waste segregation
which could reduce or eliminate the
need to dispose of the waste into or on
the land.
(v) The owner or operator of a land
disposal fadlity requiring a variance in
accordance with paragraph (a)(2)(iii)(B)
of this section must further demonstrate
that the effects to be caused by
discharge(s) will not adversely affect
public health and the environment by
detailed predictions of the generation,
transport, and fate of individual
contaminants in the leachale
dischaiging 10 surface waters, and by
detailed assessments of the risk of
exposure to such individual
contaminants (akir’g into account:
(A) Transport, dispersion, and 1..
individual contaminants in rui:r.
with respect to; solubility iI grou
water, exchange with the soil or rnr
attenuation by the soil or rock.
degradation of the cuntamina.n.is
dilution by ground water. pers’st. ,r p
the contaminants, accjmuIdt 0 , f
contaminants in soil or rock. n’sc’.
in ground water, volatility from ,
water, and the viscosity, Specific
gravity, and surface tension of the
contaminants or contamiiidnt 5UL’ i :-‘
(B) Transport, dispersion, and Ia’,
individual contaminants in surface
waters with respect to; solub litv in
surface waters, degradation of th
contaminants, dilution by surfa.e
waters, persistance of the contamin,i’;’,.
accumulation of the contaminants in
detritus and benthic deposits, and
volatility from surface waters.
(C) The exposure level to ifldi’.ldiidl
contaminants with respect to;
concentration, duration, and ‘.ari.ihi!it,
(D) The effects of exposure to
individual contaminants on humans.
animals, and plants based on reputablt-
scientific studies which have been
subject to challenging scientific review
with respect to; chronic or acute
toxicity, bioaccumulaLion,
careinogenesis, mutagenesis.
teratogeneais, and eutrophication.
(3) To place in the facility any volatile
wastes that will migrate and be emij ted
ipto the air unless it can be
‘demonstrated that volatile contaminants
will not-adversely affect public health or
the environment:
(i) Because the emissions will not
cause substantial present or potential
hazard to public health and the
environment outside of the facilit or
migrate into structures occupied by
persons; and
(ii) Because access to the land area
where gases will escape will be
controlled during the active life of the
facility, during the closure and the post-
closure care periods, and following the
post-closure care period if gaseous
escape will continue to occur.
(4) Any discharge to ground water
that will adversely affect any structures
which exist or may be constructed in or
above any aquifer described as
receiving discharge.
(b) Owners and operators of Class A
and B lqnd disposal facilities shall not
discharge to or otherwise affect ground
water unless such ground water is not
now and will not in the future be used
as a source of water supply. l’he owner
or operator shall document.
(1) That the authority to conirul
ground water collection and withdrawal
for use is vested with a duly authorized
government entily which has exercised
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Federal Regisier7 Vol. 4U. No. 24 I Thursdiy Feluu.iry 3. 191:1 / Proposed Rules
11163
its authority to control ground watci
collection and withdrawal and use in
favor of the type of use the owner or
operator carries on or intends: or
(2) That privately held vested rights to
control the collection and withdrawal
and use of ground water from within the
containment zone and any withdrawal
and use of ground water which would
cause the zone to expand have been
exercised, or will be exercised prior to
the initiation of discharge, to preclude
continuing or future collection and
withdrawal and use of ground water
uffected or to be affected by the
discharge: or
(3) The owner or operator shall
otherwise document that the ground
water cannot now and will not in the
future be used.
(4) “Well injection” of hazardous
waste directly into ground water which
meets the definition of an “underground
source of drinking water” in § 146,03
will not be authorized by permit unless
the injection is into an “exempted
aquifer”. An aquifer or a portion thereof
exempted solely due to the criteria of
paragraphs (b)(1) or (b)(4) of § 146.03
shall not be considered exempt for the
purpose of hazardous waste injectioa.
(c) Owners and operators of Class C,
D. and E land disposal facilities (i.e.,
those requiring a variance under § 146.2)
riiust demonstrate that there is a social
and economic need for the facility, and
that there are no practical options for
waste reduction includtng resource
recovery, treatment prior to disposal,
and waste segregation whic.h could
reduce or eliminate the need to dispose
of (he astc into or on the land.
(d) Owners and Opel citors of Class C,
Ii. cod E land disposal facilities m.ir.t
furthpi demonstrate that the effects to
l:e i i.usrd by disharge(s) viIl not
;ithursely affect public health and the
(at iionment by detafled predictions of
the c rieration, transport, and fate of
inditidual contaminants in the leach ite
nd by detailed assessments of the risk
uf e posurc to such individual
uintarninants taking into accour.t.
(I) Transport. dispersion. iind ftite of
c dividual contaminants in ground ‘tpr
t itii respect to, solubility in grcuiid
v..itoi. exchange with the sdl or rock.
dtteflUation by the soil or rock,
tkgradano:i ol the contaniiaant&.
dl utiati by ground water. persistanee of
iiIC contaminants, accumulation of the
‘intarninants in soi 1 . or rock. miscibility
Iii gr(; ind watur, v olijtility from ground
t ’. .i i’i. and the viscesity. specific
gret ity, and .iurface tension of the
om ctmtjminant so!ut:uns.
(2) l’he exposure level to individuel
iur.taminarits with respect to;
CUP cer.:i at ion, dtirat ion, and varialai Ii ty.
(3) The effects of exposure to
individual contaminants on humans,
animals, and plants. based on reputable
scientific studies which have been
subject to challenging scientific ret’irw
with respect to; chronic or acute
toAicity. bioaccumulation,
carcinogenesis, mutagenesis, and
teratogenesis.
§ 264,22-264.29 (Reservedj
9. In 40 CFR Part 264. Subpart F is
added to rend as follows:
Subpart F—Ground-water and Air
Emission Monitoring
§ 264.90 AppUcablilty.
(a] Except as otherwise provided in
this chapter. the owner or operator of a
land disposal facility as defined in
§ 260.10 and listed in § 264.19, which is
used to manage hazardous waste must
implement a ground-water monitoring
program, capable of determining
compliance with or violation of the
ground-water quality provisions of the
facility s permit, in accordance with the
requirements of this Subpart, Ground-
water monitoring is required during the
active life of the facility, and if
hazardous wastes or decomposition
byproducts remain after closure, during
the post-closure period as well. -
(b) ‘I’he owner or operator of a facility
from which hazardous waste or
decomposition byproducts hove not
entered the ground viatci must insLill,
operate and maintain a ground-water
monitoring system to detect any such
entry which may occur,
(c) Th owner om operator of a facility
from which )u’zardous waste or
dct.ornpos!tion byproducts l’cve er.tui’ed
the grcund water must install, operate
Cmn’I I1i(ITL in a gronud—water quality
r.:c.n luring system to measure the effect
of d:schumges fro:n the fdcilit} on
grotmnd- t ater quality.
(d) Thu owner or operator of a facility
frum svhith ha drdou3 waste or
decomposition h ’pmodiicts are emitted
into the air must c’ateh sh and operate
an air manual :ng program to measure
the cFLc I of the facility on ambient air
qu:i! 1t3’. a”d the loczito:is of gaseous
release fiain below the surface of the
ground or the surfdce of wcstcs placed
iP.’O 0. on the I ind.
§ 264. 1 Ground-water monttoring systom.
(.il A tround—s atei monitoring
.ystt-:n, to detect the entry of hdzarduus
,ste or ih omnpnsitwn byproducts
from the facility into gruur.d wntcr. niist
be capalile of yielding ground-water
siun ph’s for analysis and must consist
(If
(I) Monitoiiiig wells (at least one)
uistalled hydraulically upgradient (i.e.,
in the direction of increasing static
head) fur the limit of the waste
management area. Their number,
locations, and depths must be sufficient
to yield ground-water samples that are:
(i) Representative of background
ground-water quality in the surficial
aquifer underlying the facility; and
(ii) Not affected by the facility; and
(2) Monitoring wells (at least three)
installed hydraulically downgradient
(i.e.. in the direction decreasing static
head) at the limit of the waste
management area. Their number,
locations, and depths must enable the
immediate detection of any statistically
significant amounts of hazardous waste
or decomposition byproducts that
migrate from the waste management
area to the surficial aquifer.
(b) If the monitoring system described
in paragraph (a) of this section cannot
he utilized because of an inability to
satisfy well-locational requirements.
then the owner or operator must install
an alternate ground-water monitoring
system capable to detecting the entry of
any hazardous waste or decomposition
byproducts into the ground water.
(c) A ground-water monitoring 8ystem
to measure the effect of discharges from
the facility on ground-water quality
must be capable of yielding ground-
tvater samples for analysis to provide
sufficient ground-water quality data to
perform the comparisons and
evaluations required in accordance with
§ 264.93 (fj, (g), and (h) and rruust
consist ot:
(t) Monitoring wells installed
hydraul caliy downgrudmcnt (i.e.. in the
dim ection decreasing static head) at the
limit of the waste management area.
Their number, locations, and depths
must enable the detecticn and
quantification of any hazardous waste
or decomposition byproducts from the
facility which have entered the ground
water, and
( ) Monitoring wel!q installed
hydraulically downgradient from the
limit of the waste management area.
Their number, locations, and depths
must enable the dete:tion and
quantification of nov hazarriouq wa5 r’
or decompos;t!on byproducts from the
facilmiy which have m!graterl via the
ground water.
(d) Separate mon:toring systems for
udc.h cpc .ration .uI unit of a facility are
nnt required pros ided that provisions for
sarnpl:ng uppradient and downgm’adient
water quality enable detection and
measurement of any discharge from the
wdstc management urea (i.e., the limit
projected in the horirontal pldne as it
a
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Federal Register I Vol. 46. No. 24 / Thursday. February 5, 1981 / Proposed Rules
would exist at completion of the
hazardous waste management activity).
(1) In the case of a facility consisting
of only one land disposal operational
lit, the waste management area is
scrihed by the waste boundary
• erimeter).
(2) In the case of a facility consisting
of more than one operational unit, the
waste management area is described by
an imaginary boundary line which
circumscribes the several waste
management operational units.
(e) All monitoring wells must be cased
in a manner that maintains the integrity
of the monitoring well bore hold. This
casing must be screened or perforated.
and packed with gravel or sand where
necessary, to enable sample collection
at depths where appropriate aquifer
flow zones exist. The annular space (i.e.,
the space between the bore hole and
well casing) above the sampling depth
must be scaled with a suitable material
(e.g.. cement grout or bentonitc slurry) to
prc ent contamination of samples and
the ground water.
§ 264.92 SamplIng and analysis.
(a) The owner or operator must obtain
and analyze samples from the installed
ground.watet monitoring system. The
owner or operator must develop and
follow a ground-water sampling and
analysis plan. He must keep this plan at
the facility. The plan must include
procedures and techniques for:
(1) Sample collectio ,i;
(2) Sample preservation and shipment;
(3) Analytical procedures; and
(4) Chain of custody control.
(b) The owner or operator with a
groiind-waier monitoring system
inst dled to comply with the
requirements of § 264.01(a) must:
(1) determine the concentration or
value of the following or other suitable
parameters, used as indicators of
ground-water contamination, in ground-
water samples obtained from monitoring
wells in accordance with paragraphs
(b)(2). (h)(3), and (b)(4) of this section;
(i)pH
(ii) Specific Conductance
(iii) Total Organic Carbon
(iv) Total Organic Halogen
(2) For each monitoring wull, ebtdbhsh
initial background concentrations or
values of the indicator parameters
specified in paragraph (b)(1) of this
section, based on at least quarteily
sampling for one year.
(3) For each of the indicator
parameters specified in paragraph (b)(1)
of this section, obtain at least four
replicate measurements for each sample
and determine the initial background
arithmetic mean and variance for each
vcll by pooling the replicate
measurements for the respective
parameter concentrations or values in
samples obtained from each well during
the year.
(4) After the first year, all monitoring
wells must be sampled and the samples
analyzed at least semiannually.
(c) The owner or operator with a
ground-water monitoring system
installed to comply with the
requirements of § 264.91(c) must
determine the concentrations of
hazardous waste and decomposition
byproducts in ground-water samples
obtained with such frequency as
necessary to enable the evaluations
specified in § 264.93 (I), (g). and (h).
(d) Elevation of the ground-water
surface at each monitoring well must be
measured each time a sample is
obtained and, if such measurements
show a seasonal variation in excess of
five feet or a variation in the relative
elevation of the ground-water between
any two wells in excess of two feet.
measured monthly. All ground-water
elevation measurements will be
recorded as a distance measurement
from the reference elevation on the well’
head, and with respect to mean sea level
based on USGS or USC&GS datum.
§ 264.93 Preparation, evaluation, and
response.
(a) The owner or operator with a
ground-water monitoring system
installed to comply with the
requirements of § 264.91(a) must have an
approved plan for a ground-water
contamination assessment program. The
plan must describe a ground-water
monitoring program capable of
determining whether hazardous waste
or decomposition byproducts from the
facility have entered the ground water.
(b) For each well sampled in
accordance with § 264.92(b)(4), Ihe
owner or operator must calculate the
arithmetic mean and variance, based on
at least four replicate measurements on
each sample, for each indicator
parameter specified in § 264.92(b)(i),
and compare these results with the
respective initial background arithmetic
means established in accordance with
§ 264.92(b)(3). These comparisons must
consider individually each of the wells
in the monitoring system and must
include:
(1) The Student’s t-test at the 0.01
level of significance to determine
statistically significant changes from
initial background concentiations or
values, or
(2) A suitable statistical comparison.
other than the Student’s t-test, or
suitable quality control procedui a (e g.
tolerance intervals) to determine
unanticipated changes fiuni initj,il
background concentrations or ‘alimes
(c) If the comparisons made under
paragraph (b] of this section for the
upgradient wells show a significant
change the owner or operutor mast.
(1) Determine whether the facility h. 13
caused the significant change,
(2) Determine whether the facility
ground-water monitoring program musi
be modified to enable compliance with
the requirements of § 264.90 (a) and ib)
(3) Notify in writing the Regional
Administrator of his findings and of his
proposed modifications to the facility
ground-water monitoring program, and
(4) Reinstate the original or an
approved ground-water monitoring
program for the facility.
(d) If the comparisons made under
paragraph (b) of this section show a
significant increase (or pH decrease).
the owner or operator must:
(1) Implement the plan for a groucd-
water contamination assessment
program which meets the requirements
of paragraph (a) of this section, and
(2) Determine, as soon as technically
feasible, whether hazardous waste or
decomposition byproducts from the
facility have entered ground water.
(e)(1) If the determinations performed
in accordance with paragraph (dJ(2) of
this section support a conclusion that no
hazardous waste or decomposition
byproducts from the facility have
entered the ground water, the owner or
Operator must:
(i) Notify in writing the Regional
Administrator of his findings and
propose for approval any modifications
to the facility ground-water monitoring
program, and
(ii) Reinstate the original or an
approved modified ground-water
monitoring program for the facility.
(2) If the determinations performed in
accordance with paragraph (d)(2) of this
section support a conclusion that
hazardous waste or decomposition
byproducts from the facility have
entered the ground water, the owner or
operator must implement a ground-
water monitoring program in accordance
with § 264.90 (a) and (c).
(f) The owner or operator with a
ground-water monitoring system
installed to comply with the
requirements of § 264.9 1(c) must predict
the anticipated reduction in the
concentration of hazardous waste and
decomposition byproducts in the ground
water between monitoring wells
specified in § 264.92(c)(1) and those
specified in § 264.92(c)(2), initially and
annually thereafter.
(g) At least annually time owner or
opera toi must compare the quality of
ground water samples obtained from the
-------
monitoring wells required in accordance
with § 264 92(c)(2) with the predicted
quality in accordance with paragraph (l
of this section and include an analysis
of this comparison with the annual
report..
(h) The owner or operator must use
the data generated by the ground-water
quality monitoring program required in
accordance with 264.90 (a) and (c) in
preparing the fri-annual reprediction
required in accordance with § 122.28( 1).
§ 264.94 Recordkoeplng and reporting.
(a) The owner or operator must keep
records of all analyses and evaluations
of ground-water quality and surface
elevations required in accordance with
this subpart.
(b) The owner or operator must report
the following information to the
Regional Adminiätrator:
(1) The results of evaluations made in
accordance with the requirements
specified in § 264.93 (c), (e).
(2) Annually: the concentrations or
values determined in accordance with
§ 284.92 (b). (ci. and (d) along with the
evaluations required under H 264.93 (b)
and (g). During the active life of the
facility, this information must be
submitted as part of the annual report
required under § 264.75.
§ 264.95 Air emissIon monitoring system.
(a) An air emission monitoring system
to measure the effect of the facility on
ambient air quality must be capable of
yielding ambient air samples for
analysis to provide sufficient ambient
air quality data to perform the
comparisons arid evaluations required in
accordance with § 204.97 (a), (b). and (c)
and must consist of:
(1) Monitoring air samplers installed
upwind at or beyond the limit of the
waste management area to yield air
samples that are:
(i) Representative of background
ambient air quality in the atmosphere
upwind of the facility, and
(ii) Not effected by the facility; and
(2) Monitoring air samplers installed
downwind at or beyond the limit of the
waste management area. Their number
and locations must enable the detection
and quantification of any hazardous
constituents or decomposition
byproducts from the fdcil lty which have
been transported via atmospheric
dispersion, and
(31 Wind direction and speed
indicators to determine wind direction
and speed Their number and locations
R ust enable the upwind and downwtnd
use or monitoring air samplers installed
in iiccurd.incp with (a)(1) and (a)(2) of
ihi Section and the evaluations
required in accordance with § 264 97 (ii).
(b) (c). and (1).
(b) If the air monitoring system
described in paragraph (a) of this
section cannot be utilized because of an
inability to satisfy locational
requirements. then the owner or
operator must install an alternate air
emission monitoring 8ys em capable of
providing sufficient quantity of ambient
quality data equivalent to the
requirements of paragraph (a) of this
section.
(c) An air emission monitoring system.
to detect the locations of a gaseous
release must enable the immediate
detection of the emissions of any
hazardous constituents or
decomposition byproducts which have
migrated from the limit of the waste
management area defined in
§ 122.25(d)(3).
§ 264.96 Air emission sampling and
analysts.
(a) The owner or operator must obtain
and analyze samples from the installed
air emission monitoring system. The
owner or operator must develop and
follow an ambient air sampling and
analys s plan. He must keep this plan at
the facility. The plan must include
procedures and techniques for:
(1) Sample collection:
(2) Sample preservation and shipment:
(3) Analytical procedures, including’
types of contaminant to be analyzed;
(4) Collection of wind direction,
speed, and stability data; and
(5) Chain of custody control.
(b) The owner or operator with an air
emission monitoring system installed to
comply with requirements of § 264.95(a)
must:
(1) Determine the concentrations of
hazardous constituents and
decomposition byproducts in ambient
air samples in accordance with (b)(2) of
this section.
(2) l or each air upwind and
downwind sampler site, obtain at least
four upwind or downwind
concentrations taken preferably on an
equal interval over a three month period
and determine the arithmetic mean and
variance.
(c) The owner or operator with an air
emission monitoring system to comply
with the requirements of § 264.95(c)
must monitor two times per year with a
portable or other equivalent detection
deuce the concentration of the
following or othcr suitable parameters,
used as indicators to detect the location
of migrated gaseous emissions.
(1) Total hydrocarbons: and
(2) Total halogenated compounds.
(d) The owner or operator with an air
emission monitoring system
implementing therequirements of
§ 264 95 (a) and (c) must determine the
wind direction and speed, and other
moterological conditions any time air to
air emissions are sampled. as necessary
for the evaluations required in
accordance with § 284.97 (a). (b) (c),
and (1).
§ 264.97 AIr emIssion evaluation and
response.
(a) The owner or operator with an
ambient air monitoring system installed
to comply with the requirements of
§ 264.95(a) must predict the anticipated
concentration of hazardous constituents
and decomposition byproducts in the
ambient air at the downwind monitoring
sampler sites taking Into account the
upwind concentration. initially and
quarterly thereafter.
(b) Quarterly the owner or operator
must compare the quality of ambient iiii’
samples obtained from the downwind
air monitoring Sites required in
accordance with * 264.95(a)(2) with the
predicted quality in accordance with
paragraph (a) of this section and include
an analysis of the quarterly comparison
with the annual report.
(c) Annually the owner or operator
must repredict, based on data generated
by the air monitoring program required
in accordance with § 264.90(d), the
anticipated effect of the facility au
ambient air quality. The anticipated
effect must include at a minimum the
worst condition, quarterly, and annual
effects.
(d) As part of the nnual report
required under § 264.75, the owner or
operator must compare the anticipated
effect of the facility on ambient air
quality as repredicted in accordance
with paragraph (c) of this section with
the prbvi ion of the facility permit.
(e) If the comparisons made under
paragraph (d) of this section show non-
compliance with permit provisions on
ambient air quality, the owner or
operator must:
(1) Determine whether the facility
disposal.practice must be modified to
enable compliance with the
requirements of the permit, and
(2) Include his findings and his
proposed modifications to the facility
disposal practice in the annual report
required under § 264.75.
(1) The owner or operator with an air
emission monitoring system to comply
with the requirements of § 284.95fr.)
must have an approved plan for sri air
and area contamination assessment
program. The plan must describe an air
emission monitoring program capable of
ith’ntifying the location of gaseous
release migrated from the limit of the
waste management area, and capable of
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Federal Register f Vol. 46, No. 24 / Thuisday, Ft brwiry 5, 1981 I Proposed Rules
assessing the effect on ambi nl a 1 r
quality In the affected area.
(g) If monitoring performed to omply
with the requirements of § 264 96 [ cJ
shows a detection of gaseous release.
‘he owner or operator must ;niplement
the plan for an air and area
contdminntion assessment progiam
which meets the requirements of
pu”agraph (fi of this section.
(h) After implementation of the plan in
accordance with paragraph (g) of this
section. the owner or operator must
compdre the extent of migration and the
assessment with the provisions uf the
facility permit and in accordance with
the provisions of the plan, provide an
analysis of this c.omparisua in wilting to
the Regional Administrator.
§ 264.98 Air emission recordkeeping and
reporting.
(a) The owner or operator must keep
records of all analyses and evaiuations
df ambient air quality, wind direction
and speed, and air emissions required in
accordance with this subpart
(b) The owner or operator must report
the following information to the
Regional Administrator:
(1) The results of evaluations made in
accordance with the requirements
specified in § 264.97 (d), fe) and (h).
(2) Annually: the concentrations or
values determined in accordance with
§ 264 96 (b), (c), and (d) along with the
evaluations required under § 264 97(b).
During the active life of the facility, this
information must be submitted as part of
the annual report required under
§ 264 75.
§ 264.220 [ Amended]
10. Section 264.220 is amended by
removing the Gornri’ent.
11 In 264.221. paragraph (c) is
revised paragraph (d) is redesignated as
paragraph (e). paragraph (c) is
redesignated as paragraph (f), and ’
new paragraph (d) is added to read es
follows:
§ 264.221 General design requirements.
* a * a *
(c) A surface impoundment must be
designed to prevent direct discharge to
surFace water (except discharges
authorized by an NPDES permit) during
the life of the impoundment.
(d) A surface impoundment which is
designed to be used solely for storage or
storage and treatment and to prevent
discharge into the land and ground
water, and to surface waler (except
discharges authorized by an NPDES
permit) during the life of the
inipoundment.
(1) Must have a containment svstrrin
which complies with § 2 l.22a(b); and
(2)Is c enlpt from the icquiremcnts of
Subpart F.
(e) Dikes must be designed with
sufficient structural integrity to prevent
massive failure without dependence on
any liner system included in the surface
impoundment design.
(I ’) A Iebchate detection, collection,
and removal system must be designed
so that liquid will flow freely from the
collection system to prevent the creation
of pressure head within the collcction
system in excess of that necessliry to
cause the liquid to flow freely
12. Section 264.228 is revised to read
as follows
§ 264.228 Closure and post-closure.
Unless otherwise authorized in the
permit for the facility, at closure all
hazardous waste and hazardous waste
residues must be iemoved from the
impoundment and managed as a
hazardous waste in accordance with all
applicable I eqi.iiremdnts of Paris 262—206
of this chapter Any component of the
contanmcnt system or any apurtenant
structures or equipment (e.g.. discharge
platforms and pipes, and baffles,
skimmers, aerators, or other equipment)
containing or contaminated with
hazardous waste or hazardous waste
residues must be decontaminated; or
removed and also managed as a
hazardous waste.
§ 264.250 [ Amended]
12 Section 264.250 is amended by
removing the comment.
13. In § 264.251, paragraph (b) is
revised, and a new paragraph (r) is
added to read as follows
§ 264.251 General design requirements.
* 3 * a a
(b) A waste pile must be designed to
prevent direct discharge to surface
water during the life of the pile.
(c) A waste pile that is designed to be
used solely for storage or storage and
treatnieni and to prevent discharge into
the land and ground water, and to
surface water during the life of the pile;
(1) Must have a containment system
which complies with § 264.253; and
(2) Is exempt from the requirements of
Subpart F.
14 In § 264.252, paragraph (c) is
revised to rend as follows.
§ 264 252 General operating requirements.
• * * a a
(c) Unless otherwise authorized by the
permit for the facility, Ieachiite and run-
off from the pile must be collected nd
controlled.
15. in § 264.254, new paragraphs (b)
and fi) are ,idded to read as follows:
§ 264.254 inspection and testing.
• a * 3 a
(b) The owner or operator of a wUSt
pile must include in the inspection plan
required under § 254.15 schedule of
inspection of the devices for controil,ng
wind dispersal (where requiiedj and
run-on, and any waste pile contuinni ’nL
system under § 264 253. Except as
otherwise provided in paragraph (c) of
this section the inspection schedule or
a waste pile containment system must
include periodic removal of Inc as1e
pile and testing of the underlying bas a
ensure that it has not dctor crated t
point where it is no longer capable of
containment, is already leaking, or ic
otherwise in disrepair.
(c) If it is impractical to remove the
waste pile and test the underlying base
periodically because of the size of thi:
pile or the type of base used. (e g.
synthetic membrane which could be
damaged during waste removrill. the
owner or operator may omit the liC
base inspection from his inspection
plan: Pro ridod. That the waste pile has
a leachate detection, collection, and
removal system as specified in
§ 264.253(a)(3)
16. Section 264.258 is revised to re.id
as follows:
§ 264.258 Closure end post-closure.
Unless otherwise authorized by Lhe
permit for the facrhity, at closure, all
hazardous %vas e and hazardous waste
residues must be removed from the pde
and managed as a hazardous waste in
accordance with all applicable
requirement’s of Parts 262—26ti of this
chapter. Any component of the
containment system containing or
contaminated with hazardous wastes or
hazardous waste residues must be
decontaminated; or remo ed and also
managed as a hazardous waste.
17. In 40 CFR Part 264, Subparts M, N
R, S. and Tare added to read as fohlo s
Subpart M—Land Treatment
§ 264.270 ApplicabIlity. -
The regulatior,s in this Subpart apply
to owners and operators of hazardous
waste land treatment facilities, except
as § 264.1 provides otherwise.
§ 264.271 [ Reserved]
§ 264.272 General operating requirements.
(a) Run-on must be diverted away
from the acti e portions of a land
treatment facility.
(b) Run-off from actn e portions of a
land treatment facility must be
collected.
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rLdt. ,a’ .. •:, ‘u I FIil .i’.’,’,di . I 1 , I r ii.t -
.1. £
264 273—264.275 lReservod}
§ 264.276 Food chain crops.
(a) Owners or opera tjrs of land
ir ’,IInht’nt facilities who propose to grow
food chdin crops after the effective date
of this Part must comply with
paragraphs (b) and (c) of this section.
(b)(1j Food chain crops must not be
grown on the treated area of a
hazardous waste land treatment facility
unless the owner or operator can
demonstrate, based on field testing. that
arsenic lead, mercury. or other
constituents:
(i) Will not be transferred to the food
portion of the crop by plant uptake or
direct contact, and will not otherwise be
ingested by food chain animals (e.g., by
grazing): or
(ii) Will not occur in greater -
concentrations in the crops grown on the
land treatment facility than in the same
crops grown on untreated soils under
similar conditions in the same region.
(2) The information necessary to make
the demonstration required by
paragraph (a)(1) of this section must be
kept at the facility and must, at a
minimum:
(1) Be based on tests for the specific
waste and application rates being used
at the facility; and
(ii) Include description5 of crop and
soil characteristics sample selection
criteria, sample size determination.
analytical methods. and statistical
procedures -
(c) Food chain crops must not be
grown on a land treatment facility
receiving waste that contains cadmium
unless all requirements of paragraph
(c)(1) (i) through (iv) of this section or all
requirements of paragraph (c)(2) (i)
through (iv) of this section are met.
(1)(i) The pH of the waste and soil
mixture is 8.5 or greater at the time of
each waste application, except for
waste containing cadmium at
concentrations of 2 mg/kg (dry weight)
or less.
(ii) The annual application of
cudmium from a,stc and soil cadmium
does not exceed 0.5 kilograms per
hectare (kgfha).
(iii) The cumulative application of
cadmium from waste and soil cadmium
does not exceed 5 kg/ha if the waste
und soil mixture has a pH of 65.
(iv) If the waste and soil mixture has a
pH of 6.5 or greater, or is maintained at
a pH jf 6.5 or greater during crop
growth, the cumiilati e application of
cadmium from waste and soil cadniiiim
does not exceed: 5 kg/ha if soil cation
exchange capacity (Ci C) is less than 5.
10 kgfha if CF.C is F 15; and 20 kg/ha if
soil CEO is greater than 15.
(2)11] The only fond chain crop
produced is animal feed
(ii) ‘l’he p1-I of the waste and soil
mixture is 6.5 or greati’r at the lime of
waste application or at the time the crop
is planted. whichever occurs later, and
this p 1-I level is maintained whenever
food chain crops are grown.
(iii) There is a facility operating plan
which demonstrates how the animal
feed will be distributed to preclude
ingestion by humans. The facility
operating plan describes the measures
to be taken to safeguard against
possible health hazards from cadmium
entering the food chain, which may
result from alternative land uses.
(iv) Future property owners are
notified by a stipulation in the land
record or property deed which states
that the property has received waste at
high cadmium application rates and that
food chain crops should not be grown,
due to a possible health hazard.
§ 264.277 [ Reserved]
§ 264.278 Unsaturated zone (zone of
aeration) monitoring.
(a) The owner or operator must ha%e
in writing, and must implement, an
‘unsaturated zone monitoring plan which
is designed to characterize the leachate
that is expected to leave the zone of
incorporation and substantiate the
predictions made under H 122.25(d) j2)
and (3) and 122.28(0.
(b) The unsaturated zone monitoring
plan must include, at a minimum:
(1) Soil monitoring using soil cores.
and
(2) Soil-pore water monitoring using
devices such as lysinieters.
(c) To comply with paragraph (a)(1) of
this section, the owner or operator must
demonstrate in his unsaturated zone
monitoring plan that:
(1) The depth at which soil and soil’
pore water samples are to be taken is
below the zone of incorporation.
(2) The number of soil and soit.pore
water samples to be taken is based on
the variability of:
(i) The leachate expected to leave the
zone of incorporation; and
(ii) The earth materials above the
zone of saturation: and
(3) The frequency and timing of soil
and soil-pore water sampling is based
on the frequency, time, and rate of
waste application, proximity to ground
water, and soil permeability.
(d) The owner of operator must keep
at the facility his unsaturated zone
monitoring plan, and the rationale used
in developing this plan.
(e) The owner or operator must
analyze the soil and soil-pore water
samples and compare the results to the
predictions required under H 122.25(d)
(2) and (3) and 122 28ffl.
§ 264.279 Recordkeeplng.
The owner or operator of a land
treatment facility must keep records of
the application dates, application rates,
quantities, and location of each
hazardous waste placed in the facility,
in the operating record required In
§ 264.73.
§ 264.280 Closure and post-closure.
(a) In the closure plan under § 264.112
and the post-closure plan under
§ 264.118, the owner or operator must
address the following objectives and
indicate how they will be achieved:
(1) Control of the migration of
leachate from the zone of incorporation
into the ground water;
(2) Control of the release of
contaminated run-off from the facility
into surface water;
( ) Control of the release of airborne
particulate contaminants caused by
wind erosion; and
(4) Compliance with § 264.276
concerning the growth of food-chain
crops. -
(b) The owner or operator must
consider at least the following factors in
addressing the closure and post-closure
care objectives of paragraph (a) of this
section:
(1) Type and amount of hazardous
waste applies to the land treatment
facility;
(2) The mobility and the expected rate
and amount of migration of the leachate
zone of incoiporation; -
(3) Site location, topography, and
surrounding land use, with respect to the
p tential effects of pollutant migration
(e.g., proximity to ground water, surface
water and drinking water sources);
(4) Climate, including amount,
frequency, and pH of precipitation;
(5) Geological and soil profiles and
surface and subsurface hydrology of the
site, and soil characteristics, including
cation exchange capacity. total organit.
carbon, and pH;
(6) Unsaturated zone monitoring
information obtained under § 284.278:
and
(7) Character of the loachute and its
extent of migration in the earch
mateiials above the zone of saturation.
(c) The owner or operator must
consider at least the following methods
in addressing the closure and post-
closure care objectives of paragraph (a)
of this section:
(1) Removal of contaminated soils:
(2) Placement of a final cover,
considering:
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Federal Register I Vol. 46, No. 24 / Thursday, February 5, 1981 I Proposed Rules
(I) Functions of the cover (e.g..
infiltration control, erosion and run-off
control, and wind erosion control]. and
(ii) Characteristics of the cover.
including material, final surface
‘ontours, thickness, porosity and
ermeability. slope, length of run of
slope, and type of vegetation on the
cover;
(3) Collection and treatment of run-off;
(4) Diversion structure to prevent
surface water run-on from entering the
treated area; and
(5) Monitoring of soil, soil-pore iva tar,
and ground water.
(d) lii addition to the requirements of
§ 264.117, during the post-closure care
period, the owner or operator of a land
treatment facility must;
(1) Maintain any unsaturated zone
monitoring system, and collect and
analyze samples from this system in a
manner and frequency specified in the
post-closure plan;
(2) Restrict access to the facility as
appropriate for its post-closure use; and
(3) Assure that growth of food ch iin
crops complies with § 264.276.
(e) For the purpose of complying with
§ 264 115. when closure is completed,
the owner or operator of a land
treatment facility must submit to the
Regional Administrator certification
both by the owner or operator and by a
qialified engineer or by a qualified soil
at ientist that the facility has been closed
in accordance with the specifacatior.s in
ti e approved closure plan.
264.281 Special requrements for
ignitable or reactive waste.
Ignitable or reactive wastes must not
be land treated, unless.
(a) The waste is immediately
incorporated into the soil so that (1) the
resulting waste, mixture, or dissolution
of material no longer meets the
definition of ignitable or reactive waste
under § 261.21 or 261.23 of this chapter,
and (2) § 264.1 7(b) is complied with: or
(b) The waste is managed in such a
way that it is protected from any
material or conditions which may cause
it to ignite or react.
§ 264.282 Special requirements for
incompatibie wastes.
Incompatible wastes, or incompatible
wastes and materials, (see Appendix V
for examples) must not be placed in the
same land treatment area, unless
§ 264.17(b) is complied with.
§ 284.283 SpecIal requirements for
classes of facilities.
A Class C, D. or E land treatment
facility must have a minimum of two
meters between the incorporated waste
and the aquifer being or to be used. (i.e.,
the historical high waler table for water
table aquifers, or the bottom of the
confining ‘soils for artesian aquifci).
§ 264.284- 264.299 (Reserved]
Subpart N—Landfills
§ 264.300 Appitcabihty.
The regulations in this Subpart apply
to owners and operators of facilities that
dispose of hazardous waste in landfills.
except as § 264.1 provides otherwibe.
§ 264.301 General dcslgn requlrc.nents.
(a) All new landfills and new landfill
cells must have a leachate monitoring
system capable of producing
representative samples of leachate
(b) Any liner systems present at the
facility must be constructed’
(1) Of materials which have
appropriate chemical properties and
strength and of sufficient thickness to
prevent failure clue to pressure head,
physical contact with the waste to
which they are exposed, clirnatc
conditions, the stress of installation, and
the stress of daily operation; and
(2) On a foundation or base capable of
providing support to the liner(s) and
resistance to static head above the
liner(s) to prevent failure of the liner(s)
due to settlement or compress on.
(c) Any leachate collection and
removal syctem present at the facility
must be constructed:
(1) Of materials which have
appropriate chemical propertie’ and are
of sufficient strength and thickness to
resist collapse or clog3ing under the
pressures exerted by the overlying
wastes, waste cover materials and by
any equipment used at the facility.
(2) With suffic!ent capacity to achieve
and mciintain a leachate depth of one-
foot or less at any point on the base of
the landfill.
§ 264.302 General operatIng requIrements,
(a) Run-on must be diverted away
from the ective portions of a landfill.
(b) Run-off from active portions of a
landfill must be collected.
(c) The owner or operator of a landfill
containing hazardous waste which is
subject to dispersal by wind must cover
or otherwise manage the landfill so that
wind dispersal of the hazardous waste
is controlled.
§ 264.303—264.305 [ Reserved)
§ 264.306 inspections and testing.
(a) Each landfill, including
appurtenances to control run-on and
run-off, must be inspected once each
week and after storms to detect
evidence of deterioration,
(b)(i) During construction or
installation, liner and cover systems
must be inspected fur uniformity,
ddmage, and imperfections (e.g. hok.s.
cracks, thin spots, and foreign
materials).
(2) Earth material liner and cover
systems must be tested for compaction
density, moisture content, and
permeability after placement.
(3) Manufactured liner and cover
materials (e.g. membranes sheets, and
coatings) must be inspected to ensure
tight seams and joints and the abst’nr
of tears and blisters
(c) Leachate samples m”st hi-
collected and analyzed once each p,
and the results co!npdred to the
predictions required under
§ 122.25(d)(2). These compal-asons ii ’.
be reported on an annual basis alon,
with the monitoring results requ:red
under § 264.94(b)(2)
§f 264.307—264.308 [ Reserved]
§ 264.309 SurveyIng and rccor keepir ,g
The owner or opcrdt r of a Landfill
must maintain the following iterm an
operating record required az. f 2. 73
(a) On a map, the exact location an
dimensions, including depth. 01 euc . u’fl
with respect to permanentl3 survt,,..t
benchmarks; and
(b) The contents of each celi aiid h :’
approximate location of edch haiz. , Jot:’,
waste type within each cell
§ 264.310 Closure and post-closure
(a) As part of the clos.irc and p:’ .
closure requirements of Subpart
this part, tnc. owner or operator rims;
place a final cover over the landfill. Ti c’
final cover must:
(1) Be designed, constructed and
maintained in a manner which is
consistent with the permit issued for )-r
facility.
(2) Be tested an inspected during
closuie and post-closure according to
the requirements of § 264 306.
(b) During the post-closure care
period, the owner or operator must:
(1) Maintain all containment
structures and equipment at the facility
in a manner which is consistent with the
permit issued for the facility.
(2) Continue to operate the leachate
monitoring system required by
§ 264.301(a) and § 264.306(c).
§ 264.311 [ Reserved]
§ 264.312 Special requirements for
Ignitable or reactive waste.
Ignitable or reactive waste must not
be placed in a landfill, unless the waste
is treated, rendered, or mixed before or
immediately after placement in the
landfill so that:
(a) The resulting waste, mixture, or
dissolution of ma’erial no longer meels
-------
the definition of ignitable or reiictive
vaste under H 261.21 or 2B1.23 of this
chapter. and
I)) Section 264.17(b) is complied with.
264.313 Special requirements for
Incompatible wastes.
Incompatible wastes, or incompatible
wastes and materials. (see Appendix V
fur examples) must not be placed in the
same landfill cell, unless § 284.17(b) is
rcn.plied with.
§ 264.314 Special requirements for liquid
waste.
(a) Sulk or non-containerized liqud
waste or waste containing free liquids
must not be placed in a landfill, unless:
(1) The added liquid is shown to
enhance stabilization of the landfill, and
(2) The landfill has a liner which is
chemically and physically resistant to
the added liquid and a functioning
leachate collection and removal system
with a capacity sufficient to remove all
lea.hate produced.
(b) A container holding liquid waste
or waste containing free liquids must
not be placed in a landfill, unless:
(1) The container is designed to hold
liquids or free liquids for a use other
than storage, such as a battery or
capacLtor: or
(2) The container is very small, such
as an ampule.
§ 264.315 Special requirements for
containers.
[ a) An empty container must be
crushed flat, shredded, or similarly
reduced in volume or filled with solids
before it is buried beneath the surface of
a landfill. A partially empty container
must be
(1) Filled with solids compatible with
the wastes aIr ’ ady in the containor or.
[ 2) Crushed to eliminate void spaces:
or
(3] Emptied and the empty container
crushed flat, shredded, or similarly
reduced in volume befbre it is buried
beneath the surface of the liridfill.
(b) “Full or filled container” means
the material ‘n the container.
(1) Are witain 7.6 centimeters (3
inches) of the top of Ihe container, or
(2) Occupy 90 percent or more of the
volume of the container, whichever
results in the less’r void space.
(c) “Partially empty container” means
ii container that is neither empty nor
lull.
§ 264.3 16 Special requirements for
classes of facilities.
N w landfills. rogurdless of class (see
264 19). must have a minimum of two
meters hetwcvii the leachate detection.
cr,lkction, and removal system liner,
utlwi liner, or ‘. as: ’, whichever is
lo er, and the hislorical high water
table for a water table aquifer, or the
bottom of the confining soils for an
artesian aquifer.
§ii 264.317-264.339 iReservedi
Subpart R—Underground Injection
§ 264.430 ApplicabIlity.
The regulations of this Subpart apply
to owners and operators of facilities
which dispose of hazardous waste by
means of an injection well which
discharges below the surficial aquifer,
except as § 264.1 provides otherwise.
§ 264.43 1 General design and instatlatlon
requirements.
An underground injection well which
discharges hazardous waste below the
surficial aquifer must be designed and
installed to prevent the migration of
hazardous waste and decomposition or
reaction byproducts from the well
casing and from the zone of
containment. An injection well designed
and installed in accordance with the
technical requirements and
specifications included in § 146.12(b),
(c), (d) and (a) of this chapter will be
considered as satisfying the
requirements of § 284.431.
§ 264.432 Genera! operating requirements.
The owner or operator of an
underground injection well which -
discharges hazardous waste below the
su”fir.ial aquifer must prevent the
migiution of hazardous waste and
decomposition or reaction byproducts
from the well casuig and from the zone
of containment. An injection well
opereted in accordance with the
t’chnical requiiements and
specifications included in § 146.13(a) of
this chapter vill be considered as
satisfying the requirements of § 264.432.
§ 264.433 Monitoring and response.
The owner of opei ator of an
underground injection well which
discharges hazardous waste below the
sLirficial aquifer must:
(a) Develop a pk ’n for a monitoring
progiam capable of determining
compliance with § 264 432 and the
facility permit by:
(1) Demonstrating the mechanical
intt ’grity of the injection well; and
(2) Demonstrating that the pressure of
the injected fluids remains wiihin
allowble limits.
(b) Specify in the plan required under
paragraph (a) of this section:
(1) 1-or demonstrating mechanic-al
integi ity:
(i) ‘l’he annular pressure range to be
m.tiiit;iinad and baais for determining it
fm the specific- well tubing, packer and
.asing characteristics and for the
anticipated injection fluid temperature:
(ii) The devices and procedures for
continuous monitoring and recording of
the annular pressure, and evaluation of
that inf ’ormation; and
(iii) Procedures for immediate
response to changes in the annular
pressure outside the allowable range.
and for restoration of mechanical
integrity;
(2) For demonstrating that injection
fluid pressure remains within allowable
limits:
(i) The calculated fracture pressure
and the basis for determining it for the
specific formation and zone of
containment.
(ii) The calculated allowable injection
pressure to be measured at the well
head and the basis for determining it for
specific injection fluid characteristics
(i.e., specific gravity, viscosity and
temperature):
(iii) The techniques and procedures
for continuous monitorir.g arid recording
of the injection pressure at the well
head, and for evaluation of that
information; and
(iv) Procedures for immediate
response to an increase in the well head
pressure above the allowable limit, to
restore pre sure to within allowable
limits.
(c) Implement the monitoring plan
which satisfies paragraph (b) of this
section and determine the mechanical
integrity of the well and the injection
zone pressure.
(d) Keep records-of the monitoring
data and evaluations specified in
pai’agraph (b)(1) and (2) of this section
throughout the active life of the facility.
(e) Submit an annual report to the
Regional Administrator in which
compliance with § 264.432 is assured;
and separatcly identify in the annual
report those corrective actions, specified
in paragraphs (b)(1)(ni) and (b)(2)(iv) of
this section which were implemented
during the reporting period; and provide
an explanation of circumstances which
required corrective action.
§ 264.434 Ciosure and post-closure
(a) The owner or operator of an
underground injection well which
discharges hazardous waste below the
surficial aquifers must close his facility
in a manner that prevents future LiSP of
the well and minimizes threats to public
sci fety.
(b) The owner or opera tar of an
undei’ground injection vcll which
discharges hazardous waste below the
surficial aquifer must close by plugging
the well with cement. Plugging in
accordance with the technical
requirements included in § 146.10(b) of
- V • :—t .r - - ‘ . . 1. — —- -- -- ‘ -
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Federal Register / Vol. 48, No. 24 / Thursday, February 5, 1981 / Proposed Rules
this chapter will be considered as
satisfying this requirement.
(c) The owner or operator of an
uderground injection well which
discharges hazardous wa:te below the
qurficial aquifer is excluded from the
equirements of § § 264.117—264.118 and
§ § 264.144—264.145 of this Part.
§ 264.435—264.459 (Reserved)
Subpart S—Seepage Facilities
§ 264.460 Applicability.
The regulations in this Subpart apply
to owners and operators of seepage
facilities used to treat, store, or dispose
of hazardous waste, except as § 264.1
provides otherwise.
§ 264.461 General design requirements.
(a) Seepage lagoons and drying beds
must be designed to comply with the
requirements of § 264.221. Subpart K.
§ 264.462 General operating requirements,
Seepage lagoons and drying beds
must be operated and maintained to
comply with the requirements of
§ 264.222, Subpart K.
§ 264.483 Containment system.
(a) All earthen dikes must have a
protective cover, such as grass, shale, or
rock, or be constructed of materials
which are sufficiently resistant to wind
and water erosion to preserve the
structural integrity of the dike.
§ 264.464 DiversIon structures.
(a) Run-on must be diverted away
from a seepage lagoon or a drying bed.
§ 264.465 (Reserved)
§ 264.466 InspectIons and testing.
(a) The owner or operator of a
seepage lagoon or a drying bed must
comply with the inspection requirements
of § 234.226. Subpart K.
§ 264.467 ContIngency plans.
Seepage facilities with dikes must
comply with the requirements of
§ 264.227, Subpart K. applicable to dikes.
§ 264.460 Closure and post Closure.
Unless otherwise authorized in the
permit for the facility, at closure, all
hazardous waste and hazardous waste
residues must be removed from a
seepage facility and managed as a
hazardous waste in accordance with all
applicable requirements of Parts 262—260
of this chapter. Any component of the
containment system or any appurtenant
structures or equipment (e.g., discharge
platforms and pipes, and baffles,
skimmers, aerators, or other equipment)
containing or contaminated with
hazardous waste or hazardous waste
residues must be decontaminated; or
removed and also managed as a
hazardous waste.
§ 264.469 Special requirements for
Ignitable or reactive waste.
Ignitable or reactive hazardous waste
must not be placed in a seepage facility,
unless:
(a) The waste is treated, rendered, or
mixed before or immediately after
placement in the facility so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under § 261.21 or 261.23 of this
chapter; and
(2) § 264.17(b) is complied with; or
(b) The waste Is managed in such a
way that it is protected from riy
material or conditions whicF may cause
it to ignite or react; or
(c) The seepage facility is used solely
for emergencies.
§ 264.470 SpecIal requirements for
incompatible wastes.
Incompatible wastes, or incompatible
wastes and materials (see .\ppendix V
for examples) must not be placed in the
same seepage facility, unless § 264.17(b)
is complied with.
§ 264.4711 264.499 (Reserved]
Subpart T—Mlnimum Acceptable
Treatment of Hazardous Waste Prior
to Disposal
§ 264.490 Applleability.
The regulations of this subpart apply
to owners or operators of facilities used
for the land disposal of hazardous
wastes, except as § 264.1 provides
otherwise.
§ 264.491 General requirements.
Except as otherwise provided in this
section or in Part 266, owners or
operators of facilities shall, at a
minimum, use available technology to
reduce the potential adverse effects of
hazardous waste disposal by:
(a) Treating wastes prior to landflhling
to reduce their mobility or their ability
to cause other waste to become mobile,
or ability to release toxic gas.
/ (1) Soluble metals as salts or salt
solutions shall be converted to an oxide,
hydrous oxide or sulfide.
(2) Using available technology to
precipitate metals from solutions In
which they are solubilized due to
complex formations or chelation.
(3) Wastes that are highly acidic or
alkaline shall be neutralized.
(4) Wastes that are or contain
surfactants, organic solvents or
chelating agents shall be disposed
separately from other wastes.
(5) Wastes containing cycnidc salts or
salt solutions shall be treated so that the
cyanide is oxidized.
§f 264.292—264.499 (Resorvedl
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260 is
revised to read as folows:
Authority: Sections 1000, 2002(a). 3001
through 3007, 3010, and 7004 of th Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. 0901 et seq.
6905, 0912(a), 6921 through 0927, 6930, and
6974, and, with respect to “well injection”,
Sections 1421,1422, 1423, and 1424 of the Safe
Drinking Water Act, as amended by the Safe
Drinking Water Act Amendments of 1977,42
U.S.C. 300f et seq aecs. 300h, 300li—1, 300h—2.
and 300h—3.
§ 260.10 (Amended)
2. in § 260.10, paragraph (a) is revised
to read as follows:
(a) When used in Parts 260 through
285 of this chapter, the following terms
have the meanings given below:
3. In § 260.10, remove the number
preceding each defined term.
4. In § 260.10, revise the definitions of
the following terms to read as follows:
(a)* * * -
Aquifer means a geologic formation,
‘group of formations, or part of a
formation that Is capable of yielding a
significant amount of water to a well or
spring.
I * I I *
Disposal means the discharge,
deposit, injection, dumping, spilling,
leaking, or placing of hazardous waste
into or on any land or water so that such
hazardous waste or any constituent,
decomposition byproduct, or reaction
byproduct thereof may enter the
environment or be emitted into the air or
discharged into any waters, including
ground waters.
Disposal facility means a facility or
part of a facility at which hazardous
waste is intentionally placed into or on
any land or water, and at which waste
may remain after closure.
I * * * *
injection well means a well Into
which fluids are being injected.
Landfill means a disposal facility or
part of a facility where hazardous waste
Is placed in or on land and which is not
a land treatment facility, a surface
impoundment, or an injection well or
seepage facility.
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Federal Registm / Vol. 46, No. 24 / Tiiurid iy. }“ebruaiy 5, 1981 I Proposed Rules
11171
Land treotnient fac:ility means a
IdctlilY or part of a facility at which
hazardous waste is applied onto or
incorporated into the SOil surface.
• 4 4 . 4
Surface impoundment or
“impoundment” means a facility or part
of a facility which is a natural
topographic depression, manmade
excavation, or diked area formed
primarily of earthen materials (although
it may be lined with man-made
materials), which is designed to hold an
accumulation of liquid wastes or wastes
containing free liquids, and which is not
on injection well or seepage facility.
Examples of surface impoundments are
holding, storage, settling, and aeration
pits. ponds. arid lagoons.
Underground injection means a well
injection.
• 4 • * *
We/I 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 is greater than the
largest surface dimension.
5. In § 260.10, the following terms and
definitions are added in aphabetical
order to read as follows:
* 4 4
Cased injection ii cli means a well
which is cased within the surficial
aquifer to prevent the escape of fluids
from the well into the surficial aquifer.
• • 4 4 *
Decomposition byproduct means a
byproduct of hazardous waste dcnvcd
from the waste by physical, chemic il. or
biological reactions.
• 4 * 4 4
Formation means a body of rock
characterized by a degree of hthologic
homogeneity which is prevailing, 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 Lntrodu. d fluids, such as
dulling mud.
Injection wize means ‘a geological
formation, group of formations, or part
of a formation receiving fluids through u
‘ oil.
• 4 • , 4
Land disposal facility nie’ans a
disposal facility or port of a disposal
f iculity at which leachate or other
hazardous waste will or may discharge
into ground water.
• 4 4 *
Plugging means the act of or process
of stopping the flow of water, oil, or gas
in formations penetrated by a borehole
or well. -
4 4 4 • •
Reaction byproduct means a
substance resulting from physical,
chemical, or biological reactions
involving a hazardous waste or
decomposition byproduct with any other
substance including byproducts derived
from each materials which react with
hazardous waste or decomposition
byproducts.
• * a • *
Seepage facility means any land
disposal facility which is used to
emplace liquids into the land or the
ground water which is not a cased
injection well, a landfill, a surface
Impoundment, or a land treatment
facility.
• * * * 4
Surficial aquifer me•ms the uppermost
aquifer with an upper boundary defined
by awater table which is naturally
recharged from the ground surface and!
or from the unsaturated zone and in
addition includes formations which are
saturated with water intermittently,
seasonally, or which develop a perched
water table within the unsaturated zone.
• * a * a
Underground Seepzz,gu means the
underground emplacement of fluids at
atmospheric prossur through an
uncased well, a dug hole, or a disposal
facility constructed in a dug hole or an
earth material fill
• 0 4 4 4
Zone of conta innicnl means the
volume of earth materials defined by a
permit applicant in accordance with
§ § 122.25fd)(3)(v) and (4)(iv) beyond
which the permit applicant asserts his
discharge will not cause effects in the
ground water or in earth materials.
6. Section 260.23 is added to read as
follows:
§ 260.23 Petitions to amend Part 264 or
Part 265 to allow special types of
treatment, storage, and disposal facilities at
a particular location, for a particular
hazardous waste, or for a hazardous waste
from a particular source.
(a) Any person who is operating or
who proposes to construct and operate a
ticatment, storage. or disposal facility of
a type other than those types defined in
§ 260.10 or otherwise describad in thr’se
regulations and for which operating
methods, techniques, and practices hava
been prescribed in accordance with
§ 3004(3) of the Act and for which
location, design, and construction
requirements have been prescribed In
accordance with § 3004(4) of the Act:
may petition for an amendment under
this section and § 260.20. To be
successful the petitioner must
demonstrate to the satisfaction of the
Administrator that the operating
methods, techniques, and practices he
proposes to use: and the location,
design, and construction of the facility
he is operating or proposes to construct
and operate are equivalent or superior
to the requirements of Part 264 or Part
265 for the particular location at which
he is operating or proposes to operate
and for the particular hazardous
waste(s) he is treating. storing, or
disposing of or proposes to treat, store.
or dispose of.
(b) After receiving a petition, the
Administrator may request any
additional information which he -
reasonably may require to evaluate the
petition. -
(c) An amendment will only apply to
the particular waste(s) or facility
covered by the petition and
demonstration.
(d) For facilities operating pursuant to
section 3005(e) of the Act and Part 265 of
these regulations, the Administrator
may (but shall not be required to) grant
a temporary amendment before making
a final decision under § 260.20(d)
whenever he finds that there is
substantial likelihood that an
amendment will be granted. The
Administrator shall publish notice of -
any temporary amendment in the
Federal Register
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
1. The authority citation for Part 122
reads as follows:
Authorlty Resource Conservation and
Recovery Act. 42 U.S.C. 0901 et. seq.; Safe
Drinking Water Act, 42 U.S.C. 3001 et. seq.;
and Clean Waler Act, 33 U SC 1251 ei seq
2. In § 122 3, revise the definitions of
the following terms to read as follows:
§ 122.3 DefinItions.
* * *
Disposal (RCRA) means the
discharge, deposit, injection, dumping.
spilling, leaking, or placing of any
‘hazardous waste” inti, or on a ny land
or water so that such hazardous waste
or any constituent or decomposition or
reaction byproduct thereof may enter
the environment or be emitted into the
air or discharged into any waters,
including ground nterq
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Federal Register I Vol. 46, No. 24 I Thursday. February 5, 1981 I Proposed Rules
Disposalfacility (RCRA) means a
facility or part of a facility at which
“hazardous waste” is intentionally
placed into or on the land or water. and
t which waste may remain after
osure.
* * a *
Formatioii (RCRA arid IJIC) means a
body of rock characterized by a degree
of lithologic homogeneity which is
prevailing, but not necessarily, tabular
and is mappable on the earth’s surface
or traceable on the subsurface.
Formation fluid (RCRA and U!C)
means “fluid” present in a “formation”
under natural conditions as opposed to
introduced fluids, such as “drilling
mud”.
* * . a *
Injection zone (RCRA and UIC) means
a geological “formation”, group of
formations, or part of a formation
receiving fluids through a “well”.
Plugging means the act of or process
of stopping the flow of water, oil, or gas
in “formations” penetrated by a
borehole or “well”.
* a * a a
Underground injection (RCRA and
UIC) means a “well injection.”
We/i (RCRA and IJIC) means a bored.
drilled or driven shaft, or a dug hole,
whose depth is greater than the largest
surface dimension.
We/i infection (RCRA and UIC)
.neans the subsurface emplacement of
“fluids” through a bored, drilled, or
driven “well;” or through a dug well.
where the depth Is greater than the
largest surface dimension.
3. In § 122 3. the following terms and
definitions are added in alphabetical
order as follows:
§ 122.3 DefInitions.
a * a
* *
Surf cial aquifer (RCR.A and UIC)
means the uppermost aquifer with an
upper boundar r defined by a water
table which is naturally recharged from
the ground surface or from the
unsdturated zone and in addition
includes formations which are saturated
with water intermittently, seasonally, or
which develop a perched water table
within the unsaturated zone.
a • * * *
Zone of containment (RCRA and UIC)
means the volume of earth materials
defined by a permit applicant in
accordance with § 122.25(d)(3) (v) and
(4)(vi) beyond which the permit
applicant asserts his discharge will not
cause effects in the ground water or in
earth materials.
4. In § 122.15. paragraph (a)(6] is
added to read as follows:
§ 122.15 ModificatIon or revocation and
reissuance of permits.
a a a a *
(a)
(8) For RCRA only. bascd or. (he
repredictions required in § 122.28(1):
(i) When the repredictions indicate
that the limits established in accordance
with § 122.25(d)(3) and (4) have not or
will not be met, the report required iii
§ 122.28(f) shall include a request for
modification of the permit to:
(A) Reduce the rate of waste disposal
defined in accordance with
122.25(d)(1)(iii); or
(B) Increase the zones of permitted
effects defined in accordance wi
§ 122.25(d)(3)(v) and (4)(iv).
(ii) The permittee may include in the
report required in § 122.28(f), a request
for modification of the permit to reduce
the zones of permitted effects.
(iii) If, in the opinion of the Director,
the zones of permitted effects are
substantially unrelated to actual zones
of effects based onmonitoring and
modeling, the Director that the permittee
redefine the zones to more closely
reflect the actual zones of effects which
exist and are predicted.
* a a a *
(5) In § 122.17, paragraph (e)(3) is
added to read as follows:
§ 122.17 Minor modifications of permits.
• a a * a
(e) a a *
(3) Reduce the rate of waste disposal
in accordance with § 122.15(a)(8) (i) or
decrease the zone of permitted effects in
accordance with § § 122.15(a)(8](ii) or
(iii).
• * a a a
6. In § 122.22, paragraphs (a)(4), (5),
(6), (7), and (8) are added to read as
follows:
§ 122.22 Application for a permit.
* * * * *
(a) * * *
(4) If a Part B application filed in
response to a requirment initiated under
§ 122.22(a)(2) is considered incomplete
by the permit applicant at the time of the
required filing, he shall so advise the
Director stating the reason the
application is incomplete and the date
on which the completed application will
be filed.
(5) If the Director determines the
reason that the filing is incomplete is
beyond the reasonable discretion of the
applicant due to the requirements of
§ 122.25(d), (fJ, and (g) Including the
regional availability of professional
services with the requisite skills, he
shall not deny the application on the
basis of § 122.25(a)(3).
(6) If the Director determines that an
incomplete applicalion shows that the
permit applicant will not comply with
§ 2’34.2: ho may either deny the
application or issue an interim permit
with a compliance schedule for the filing
of a completed Part B. He may
incorporate such other conditions in the
interim permit as he finds appropiate to
protect public health or the environment.
(7) If the Director determines that an
incomplete application shows that the
permit applicant will, in all likelihood.
comply with § 204.2; he may issue an
interim permit.
(8) No interim permit shall be issued
for a term longer than five years.
(7.) In § 122.25, paragraphs (c) through
(h) are added as follows;
§ 122.25 Contents of Part B.
a * . * *
(c) Specific information requirements.
The following additional information,
based on the technical requirements of
Subparts K, L. M. N,.R. and S (generic
requirements for all land disposal
facilities are covered in paragraph (d) of
this section). is required from owners or
operators of specific types of HWM
facilities that are used or to be used for
land disposal:
- (1) For all facilities that use surface
Impoundments for reasons other than
solely for storage or storage and
treatment, except as otherwise provided
in § 264.220, all of the applicable
information requirements in
§ 122.25(b)(4).
(2) For all facilities that use waste
piles for reasons other than solely for
storage or storage and treatment, except
as otherwise provided in § 264.250, all of
the applicable information requirements
in § 122.25(b)(3).
(3) For all land treatment facilities,
except as otherwise provided in
§ 264.270, the owner or operator must
submit detailed plans and
specifications, and data which must
collectively include the information
itemized in paragraphs (c)(3) (i) through
(iv) of this section. For new facilities, the
plans and specifications must be in
sufficient detail to provide complete
information to a contractor hired to
build the facility even if the owner or
operator intends to construct the facility
without hiring a contractor. For existing
facilities, comparable detail must be
provided, but the form of presentation
need not assume contraclor construclion
except to the extent that the facility will
be modified.
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Federal Register I Vol. 40, No. 24/Thursday. February 5. 1931 / Primp c i
11173
(i) Detailed design drawings and
icciflC,1fbns of the run-oil collection
ructures required in § 264.272. -
(i:) The unsaturated zone monitoring
-,L,in as required in § 264.278. including
iic rationale used in developing the plan
ar.d a deLailed map of the facility
5 howiflg the location and depth of the
5 o l-pore water sampling devices.
(iii) Detailed descriptions of any
inspection. testing. and recordkeeping
procedures needed to comply with
264.279.
(iv) A description of the operating
procedures including any plans or
equipment that will ensure compliance
tuth H 264.281 and 264.282.
(4) For landfill facilities, except as
otherwise provided in § 264.300, the
owner or operator must submit detailed
plans and specifications accompanied
by an engineering report which must
collectively include the information
itemized in paragraphs (c]14) (I) through
(x) of this section. For new facilities, the
plans and specifications must be in
sufficient detail to provide complete
information to a contractor hired to
build the facility even if the owner or
operator intends to construct the facility
iihout hiring a contractor. For existing
facilities, comparable detail must be
provided, bet the form of presentation
nccd not assume contractor construction
except to the extent that the facility will
be modified.
(i) Detailed design drawings and
specifications of the leachate monitoring
system required in § 264.301(a).
(ii) Detailed design drawings and
specifications of arty liner(s) and liner
base(s) present at the facility and the
installation procedures used to comply
with § 264.301(b).
(iii) Detailed design drawings and
specifications of any leachate collection
and removal system present at the
focility demonstrating compliance with
the requirements in § 264.301(c).
(iv) Detailed plans and specifications
and basis of design of any structures
needed to comply with the general
operating requirements in § 204.302.
(v) Detailed descriptions of any
inspection, testing, and recordkecping
procedures needed to comply with
§ 264.306.
(vi) Detailed design drawings and
specifications of the final cover required
in § 264.310(a).
(vii) Detailed descriptions of all
maintenance, testing and inspection
proce.dures to be used at the facility
during the closure and post-closure care
period as needed to satisfy the
requirements of § 254.310 (b) and (c).
(viii) A map(s) which satisfies the
requirements of § 21M.309 (a) and (b). All
existing facilities must submit map(s)
showing the approximate location of
each hazardous waste type within each
cell for all wastes disposed of during the
interim status period.
(ix) A description of the operating
procedures including any plans or
equipment that will ensure compliance
with § 264.312, 264.313, 264.314 and
264.315.
(x) Detailed design drawing(s) of the
landfill and surrounding geology
showing the dimensions and depth of
the uppermost aquifer beneath the
facility.
(5) For underground injection
facilities, except as otherwise provided
in § 264.430, the owner or operator must
submit detailed plans and specifications
accompanied by an engineering report
which must collectively include the
information itemized in paragraph (c)(5)
(I) through (v) of this section. For new
facilities, the plans and specifications
must be in sufficient detail to provide
complete information to a contractor
hired to build the facility even if the
owner or operator intends to construct
the facility without hiring a contractor.
For existing facilities, comparable detail
must be provided, but the form of
presentation need not assume contractor
construction except to the extent that
the facility will be modified.
(i) A statement of the maximum -
pressure to be applied to the well head
and basis (calculations) of
establishment.
(ii] A statement of the annular
pressure to be maintained and basis
(calculations) of establishment.
(iii) An analysis of the well
construction material selection including
casing, cementing, tubing and packer
materials.
(iv) A description of the operating
procedures to comply with § 284.432.
(v) A description and justification of
well plugging techniques to be utilized at
closure.
(6) For seepage facilities, except as
§ 264.460 provides otherwise, all
applicable information requirements in
§ 122.25(b)(3).
(d) Informational requirements for
permitting discharges froni land
disposalfacilities. Except as provided in
paragraph (e) of this section, each owner
or operator applying for a permit to
dispose of hazardous waste into or on
the land shall file the following
information as part of his application:
(1) A definition of the specific
hazardous wastes to be disposed of in
each disposal facility operational unit,
including;
(i) The specific wastes by hazardous
waste number when applicable.
(ii) The expected rate of deposition of
each specific waste including both
wastes defined as ha7,lr j 1 15 west’s in
accorden ’p ith § 201 3 and an other
waste to be disposed of in COnjun on
ith such hazardous Wasti’s
(hi) The rnaxim ini rate of depo i
of each specific waste described in
accordance with § l 22 .25 ( .i)(1)(ij) l r
which permit authurIzatt is being
requested.
(2) A definition of the rate of rna
transport of leachate and uses from the
land disposal facility, including-
(i) The mass rate of hazardous wastes,
and the decomposition byproducts of
hazardous wastes expectt’d to loath or
otherwise escape from the facility,
(ii) The mass rate of any other wastes
and the decomposition b producia of
such other wastes c\pectod to leac or
otherwise escape front the facility,
(iii) The muss rate of infiltrating
rainwater and other liquids disp 1 J of
or generuk .d within the l tcility expected
to leach or otherwise escape from the
facili v, niid
(iv) The maxiflflmnt injss rate of
infiltrating ruin ater, any ether lIijuld
to be disposed of or gcni’iiiL l within
the facilit . hazardous wastes and any
other wastc to be disposL .Ll of wftltii
the facility, and the deuinpusjtoii
byproducts of such huzum d tis wastes or
other Wastes including gases
to leach 01 otherwi ,it eseapu from th
facility.
(3) A definition of the eum-th materitils
above the rone of suturntiim which will
be in contact with leiic:h it diacltar imi
from the land dispose) lociltty and gm
released from the farility iittd the
leachate, including,
(i) The lateral and c’rtit ii) extent of
the expected migration of Lu&ichiite In
any materials empluevd to ei)ittrol th .
i-ate of leachuic, migriitiu i
(ii) The lateral and vi ’rln:iil extent of
the expected migration of li’nchate hi
each natural earth miitu’riitl Ii)rmutiit
determined to exist hiring sit,’
investigation studies requiriul iii
paragraph (g) of this section.
(iii) The Ia terul and vet Iii.u I extent of
the expected migration of gn:a’s through
any matei’mals or Wasti’s eiupliim:cd
within the facility.
(iv) The Lit r’ral and vr’rt ki I extent F
migration of gases in eadi liulurul
formation deleimjned to e itit (luring the
site investigation studie 5 rltqtilrt:d In
paragraph (g) of this section.
(v) The mnhiximurn Ititurul uiitcl vertical
extent of earth materitils tubove the rnnp
of saturation iund the nrei, ut the nurfaco
of the ground or the Wu tu fur which
authorization to be in contact with
leachato discharged from th Facility or
gases released from thu facility and th
lenthate is being requnatud.
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11174
Federal Register / Vol. 40, No. 24 I Thursday, February 5, 1981 1 Proposed Rules
(4) A definition of the earth materials
in the saturated zone which will be in
contact with the leachate discharged
from the land disposal facility and the
extent and rate of leaching, including,
(i) The mass rate of transpoit of
nflltrating rainwater, any other liquid
to be disposed of or generated within
the facility, hazardous wastes or any
other wastes to be disposed or within
the facility, and the decomposition
byproducts of such hazardous wastes or
other wastes; expected to lea.h from the
facility to the ground water.
(ii) Any alteration in the vertical
elevation of the zone of saturation
expected to occur due to the existence
of the facility and/or the discharge from
the facility to the saturated zone.
(iii) The transverse, lateral, and
vertical extent of the expected migration
of leachate within each natural earth
material formation in the saturated zone
determined to exist during site
investigation studies required in
paragraph (g) of this section.
(iv) The maximum transverse, lateral,
and vertical extent of earth materials in
the saturated zone for which
authorization to be in contact with
leachate discharged from the facility is
being requested.
(v) The maximum mass rate of
transport within the saturated zone of
infiltrating rainwater, any other liquids
to be disposed of or generated within
the facility, hazardous wastes or any
other wastes to be disposed of within
the facility, and the decomposition
byproducts of such hazardous wastes or
other wastes for which permit
authorization is being requested. -
(5) A definition of the discharges and!
or withdrawals of ground water mixed
with leachate, including;
(i) The mass rate of discharge from the
saturated zone of liquids to be disposed
of within the facility, liquids other than
water which will be generated within
the facility, hazardous wastes or any
other wastes to be disposed of within
the facility, substances solub.lized from
earth materials by leachate, and the
decomposition byproducts of such
hazardous wastes, liquids, or other
wastes or substances: into any flowing
surface waters, any standing surface
waters, or to the ground surface within
the zone of containment.
(ii) The maximum mass rate of
discharge from the saturated zone of
liquids to be disposed of within the
facility, liquids other than water which
will be generated within the facility,
hazardous wastes or any other wastes
to be disposed of within the facility,
substances solubilized from eai’th
materials by leachate. and/or the
decomposition byproducts of such
hazardous wastes, liquids, or oilier
wastes or substances: into any floWIng
surface waters any standing surface
waters, or to the ground surface within
the zone of containment foi which
permit authorization is being requested.
(iii) The mass rate of withdrawal from
Ihe saturated zone of liquids to be
disposed of within the facility, liquids
other than water which will be
generated within the facility, hazardous
wastes or any other wastes to be
disposed of within the faci!ity,
substances solubilized from earth
materials by leachate, and the
decomposition byproducts of such
hazardous wastes, liquids, or other
wastes or substances into any well or
other ground water collection device,
except monitoring wells or collection
devices installed or to be installed to
monitor or characterize the leachate and
the ground water.
(iv) The maximum mass rate of
withdrawal from the saturated zone of
liquids to be disposed of within the
facility, liquids other than water which
will be generated within the facility,
hazardous wastes or any other wastes
to be dis2used of within the facility,
substances solubilized from earth
materials by leachate, and the
decomposition byproducts of such
hazardous wastes, liquids, or other
wastes or substances; into any well or
any other ground water collection
device, except monitoring wells or
collection devices installed or to be
installed to monitor or characterize the
leachate and/or the ground water.
(e) The precision of the definitions
required in subsection (d) of this section
may be varied in accordance with the
need for information to establish
compliance with the standards of this
regulation as follows:
(1) The informational requirements of
§ 122.75(d)(1) are applicable to all types
and classes of land disposal facilities
without exception.
(2) The informational requirements of
§ 122.75 are applicable to all types and
classes of land dispoaal facilities
however
(i) For surface Impoundments arid
waste piles, used solely for storage or
storage and treatment which are
designed to preclude leakage, as
described in § 264.19(d) (i) and (ii), no
definition of leachate discharge is
required unless leakage is to be
controlled by a leachate collection
system.
(ii) For seepage facilities and injection
wells which are designed and operated
solely to introduce liquids into the land,
leachate discharge can be considered
equivalent to waste deposition unless
the boundary conditions, between the
liquid and the land, control the rate of
discharge to ii rate less than the rair of
deposition.
(iii) For all types of facilities, the rate
of gas ous escape which occurs dirc&’tl ’
to the atmosphere from any land
disposal facility operational unit ma b ,
considered in conjuctioa with gasemm
emissions from all operational urLits 0 1
the facility.
(iv) For all facilities from which
leachate will discharge into the land, ti*
informational requirements of
§ 122.25(d)(2)(i). (ii). and (iii) are to li
considered as a best estimate of the
volume and character of the leachate
which will discharge from the facilit
into the land or be collected for
treatment, discharge, or disposal from
within or above materials emplaced to
control the rate of leachate migration.
Loachate discharge into the land will be
subject to verification and more precise
definition based on monitoring and
modeling in accordance with § 122.28(f).
(3) For any portion of the leachate
which will discharge into natural earth
material formations, the volume of
dischafge must be defined as precisely
as possible: and the character of the
leachate defined with sufficient
precision to establish:
(i) The physical characteristics of the
leachatc to allow definition of the locus
of leachate migration through natural
earth materials including;
(A) The uniformity of the the expected
leachate (i.e. solubility and miscibility in
ground water and constancy with
respect to time). Immiscible portions of
the leachate or substantially differing
leachate must be considered
independently.
((B) The range of viscosity of the,
leachate and immiscible portions of the
leachate.
(C) The range of specific gravity of the
leachate and immiscible portions of the
leachate.
(D) The range of surface tension of the
leachate and immiscible portions of the
leachate.
(ii) The chemical characteristics of the
leachate and immiscible portions of the
leachate for the purpose of;
(A) Discussing the expected or
probable fate of the contaminants in the
Jeachate base on independent study, or
(B) Discussing the expected or
probable fate of the contaminants in the
leachate based on reliable reference
sources of data.
(4) The informational requirements of
§ 122.25(d)(3)(ii) may be approximated
with respect to the extent of the zone in
each homogeneous natural earth
material formation as a downward
vertical exIei, ion of the overlying
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FedeTal Register I Vat. 4. No. 24 / Thursday. February 5. 1981 f Proposed Rules
111 ’5
formdtIOii in contact with le .ichut
1 ’rc .-itled:
i xpansio of the zone of vertical
i:iigration dLie to boundary conditions
bets’ een foriiiutions are accounted for,
and
(a) E’pansiofl of the zone due to
capIlIaI migration s accounted for.
(5) The informational requirements of
i22.25(d)(3) (iii) and (iv) are to be
onsidered as a best estimate of the
locus of gaseous migration in the land
arid through the land to the la d surface.
(6) The informational requirements of
122.25 [ d)(4)(i) may be considered
equivalent to the best estimates of
fi 12 .25(d)(2) (i), (ii) and (iii) unless
tne permit applicant elects to define and
support the definition of:
(I) Alterations of the chemical and/or
ph sical characteristics of the leachate
hich will occur within the unsaturated
ror.3.
(ii) The exchange capacity of the earth
materials for contaminants in the
h’achato which will not be exhausted
o’.cr the period that the facility will
c.schage leachate.
(7) The informational requirements of
122 25(d)(4)(iii) shall be defined taking
into account the factors defined in
paragraph (3)(i) of this subsection, the
,ittcration of those factors which will
ciccur due to mixing (for miscible
leitchates) with ground water, and
fartors to account for the dispersivity of
ie k achate in the specific natural earth
‘r .tni’ial formations which will be
antacted by leachate.
(8) The maximum locational
d.!:nittcns required in § 122.25(d)(3)(iv)
“J (4)(iv), termed the zone of
-itainmeiit; and the maximum rate
i’finitions of § 122.25(d)(2)(iv) and 4
( ) shall be currela ted with the
• vnum deposition rate definition of
22 25(d)(1)(iii). A delinod factor mny
k applied to each of the maximum
t,. tIenal and rate definitions, except
C’ maximum rate of deposition, to
: ount for any recognized imprecision
lad, of confidence in the analytical
• ‘einir.ations of the maximums.
(9) No information is required under
122 Z5(d)(5) (iii) and (iv) for Class A
Class B facilities unless leachale or
• uund water effected by leachate will
.olected or withdrawn as a fuiiction
t! the facility design for treatment,
scharge, or disposal; or passive
C i!liC!iø devices such as stoim sewers.
! .tary sewers, ditches, or agriCuItLial
(. tiInage systems do or may in the future
ithin the zone of containment.
(1(1) For any portion which will
charge directly or indirectly with
.Ound Water into surface waters; with
f icient precision to establish:
(ij The range of concentrations of
contaminants, to be defined in
accordance with § 122.25(d)(5)(i), which
could occur in the surface waters, and
(ii) That the upper limit of the range of
concentration of contaminants is below
that which is to be defined in
accordance with § 122.25(d)(5)(ii).
(11) For any portion which will
discharge to standing surface water or
the surface of the ground, both of which
should be avoided in a land disposal
facility, it will be necessary to establish:
(i) As accurate a prediction as can be
achieved unless,
(ii) ‘l’he location of potential exposure
to effects resulting from discharges to
standing surface waters or the surface of
the ground is part of the facility to which
access is controlled in accordance with
§ 264.14.
(12) For any portion which will be
collected in a passh e collection device
and discharge to surface waters or to
the surface of the ground, the precision
described in paragraphs (e)(1O) (i) and
(ii) of Lh s section are sufficient provided
the predictions include a definition of
the range of concentration of
contaminants which could occur within
the collection device and be conveyed
through or by the collection device and
any subsequent conveyance device prior
to discharge.
(13) For any portion which will be
collected in a well or other ground water
collection device and withdrawal for
an , use, with sufficient precision to
establish:
(i) The range of concentration of
contaminants, to be defined in
accordance with § 122.25(d)(5)(iii),
which occur in the ground water
witbdrawn: provided
(A) That for Class C facilities, the
piec’ictions may be limited to those
contaminants which could occur over
the range of withdrawal that may
prevail and interfere with the specific
uses to which the ground water may be
put; and
(B) That for Class D facilities the
predictions include, in addition to
predictions for non.drinking uses in
accordance with paragraph (A).
predictions of the full set of
contaminants which could occur over
the range of rates of withdrawal that
may prevail in ground water withdrawn
iid supplied for drinking use: and
(C) That for Class E facilities, the
predictions include, in addition to
predictions in accordance with
paragraphs (A) and lB) predictions of
the full set of contaminants which could
occur in ground water withdrawn fur
private drinking use assuming no
dilution of the affected ground water
due to the rate of withdrawal, and
(ii) That the upper limit of the range of
concentration of contaminants is below
that which is to be defined in
accordance with § 122.25(d)(5)(iv).
(f) A report on the hydrogeology.
climatology, and geography of the area
where the facility is to be located which
will be based on the site Investigation
requirements in paragraph (g) and that
shall include:
(1) A description of the geology and
hydrology of the area and a listing of all
pertinent published and open file text
material and mappin available from the
United States Geological Sur%ey, the
Soil Conservation Service, and State
and Geological Agencies. Text material
and mapping from such public sources
relied upon in preparing the description
shall be referenced, and that which was
not relied upon shall be discussed with
reference to the reasons it was not used.
Any other published or unpublished text
material or mapping used in preparing
the description shall also be referenced,
The description shall:
(I) Include such mapping as is
necessary to ensure an understanding of
the geology and hydrology by a lay
reviewer (e.g., a member of the public at
large rather than a peer) of the
description.
(ii) Be of sufficient detail to define the
various earth material formations in the
vicinity of the site and to serve as a
basis of confirming predictions of the
transverse, lateral, and vertical
migration of infiltrating rainwater, any
liquids to be disposed of or generated -
within the facility, hazardous wastes or
any other wastes disposed of within the
facility, or the decomposition
bypioducts of such hazardous wastes of
other wastes that define the zone to be
affected within the zone of containment.
(iii) Include the logs of borings taken
to establish or improve the
understanding of the geology and the
hydrology of the area to be impacted by
th waste disposal activity.
,iv) Include mapping to define ground
surface contours, consolidated rock
contours, and ground water elevation
contours.
(v) Include a description of any
changes in ground surface contours,
consolidated rock contours, and ground
water elevation contours that will result
from the construction or operation of the
facility.
(vi) Include a description of the
character of each earth material
formation expected to be contacted by
leachate or gases with regard to: type of
material, uniformity, permeability,
porosity, weathering (of consolidated
rock), fracturing (of consolidated rock
and clay), fault zones (of consolidated
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Federal Register I Vol. 46. No. 24 / Thursday. February 5, 19111 I Proposed Rules
ii ’i.k), karat zones (of consolidated rock).
iiid swelling (of clay)
(vii) lncltide.a description and sudi
in:ipping of the progression of the
‘n:gr.ition of the leachato plume in the
iuad %%aer flow system d;iring the
Ii c life of the faciluly, dur ng the post.
u.l ”siiu care period and. unl’ss the
plume discharges to siuface water or it
u ‘a be shown that the plume still be
uuulli•ck.d or withdrawn, subsequent to
tlu tuost-closure period. The mapping
,lu :uH be adequate to ensure an
uuiulu standing of the locus of the
uuui iation of the leachote plume by a lay
ie icwer of the description
(2) A report on the climatolo ic
t.ictu,rs based on the data required in -
p.iruigraph (g)(2) of this section.
(3) A report on the gecgraphic factcrs
h:ised on the data required in paragraph
l’t113) of this section
(p,) Site m i-es /i at/on Rc,u,rw,ien ’c
l .u:lu npplucant for a permit for a
h,iz.urdoiis waste facility shail
liii (‘stigato the site and environs or the
‘utni .ige, treatment, or disposal activity
;nd establish permanent on site vertical
.mnuj horizontal controls to allow all
i ’lcvations and locations to be surveyed,
t’ piessed, and plotted with reference to
I ISGS and 1JSC&GS horizontal and
ii•m i controls.
(1) With respect to geologic and
luv(lrulngrc factors:
(i) Surface topography shall be
.urvc’yed with sufficient accuracy to
1kw the plotting of surface contours at
t’ontour interval not greater than two
meters over an area extending at least
l ou ly meters beyond any proposed
iu)iistruiction activity, including
u:xcavohon or filling, or any area where
leuuthate ilI migrate within ten meters
iii the ground surface.
(ii) Unless reliable boring data is
•I &uilalule from previous investigations,
i,uiffirient borings shall be made in
uiii :onsoj:dated earth materials in the
ucinity of the site and the zone of
or gaseous migration to
r.huiiructr-rize or verify the
(thuiractel I2ation of unconsolidated earth
materials with respect to type of
ni.iti’rial. uniformity, permeability.
porosity, and fracturing. In addition,
where such materials will be subject to
loads or used as a functioning part of a
icastructed facility; swelling.
aittlenicnt, and plasticity shall be
characterized or verified.
(iii) Where Icachate migration will
rn ,uch the ontact surface between
unconsolidated and consolidated c:uilh
materials, the contact surface of
consulidated rock shall be surveyed
with sufiucuent accuracy to allow the
pIi(tiu of the contact surface at a
contour interval of not greater than four
metems.
(ii) Where leachate migration ill
occur within consolidated rock, the
effected consolidate rock shall bi
charactei ized by geologic investigation
with resljett to type of maternil.
permeability, porosity, rclationsF.ip to
any o . erlying mantle of unconsulidatud
materials, relationship to adjacrnt
consolidated materials, degree of
weathering including the formation of
karst zones, degree of fracturing, the
location and character of fault zones.
and attitude.
(i) Cround water elevations shall be
determined with sufficient accuracy to
allow the plotting of water table
contours at a contour interval of not
greater than two meters beneath the site
where ground water mounding may or
will occur due to discharge from the
facility, arid in any area where ground
wuter affected by leachate will migrate
within ten meters of the ground surface.
Beyond the above described areas,
sufficient ground water elevation data
shall be obtained to construct a ground
water flow net for any given set of
conditions of discharge to the ground
water, withdrawal or discharge from the
ground water, and recharge of the
ground water which may occur prior to,
during, or aftcr the active opemation of
the facility.
(vi) To the extent that new borings are
made or new wells are installed to
obtain the data necessary to
characterize or verify the character of
earth materials or the ground water
within and flowing through such earth
materials, boring holes and wells shall
be filled and, if necessary, plugged and
sealed to avoid creating new paths for
fluid migration unless the hole or well
will be maintained as a ground water
sampling well in accordance with
Subpart F.
(vii) All existing excavations, borings,
or wells or other ground water collection
devices within the zone of containment
shall be located by field survey, and
described in detail.
(2) With respect to climatologic
factors;
(i) The seasonal variation in ambient
temperatures including the average
monthly temperature, and the extremes
during any month.
(ii) The seasonal variation in wind
conditions including the average number
of days in any direction and at any
velocity range for which data exists and
the direction and velocity of expected
extremes.
(iii) The seasonal variation in the
type, duration, intensity, and amount of
precipiI utmon inaluding both monthly
averages and the expeJcd extremes
during an month.
(3) With respect to geographic factors:
(i) The type of land use including but
not limited to
(A) The associated densities of human
population living. working. or passm
through the ai’ea
(13) The associated density of aniraal
population lm’.ing 1901 pacsing through
the arcs.
(C) The associated intensity of use for
th prcduction of food chain crops.
(ii) The controls over land use and the
manner in which such controls are
implemented or ame to be implemented.
(iii) Projected future land use based
on trends in land use, existing or
developing plans to modify the land use
(4) With respect to the following
special requirements based on land
disposal facility class:
(i) An applicant for a permit for a
Class A land disposal facility must
investigate the entire aquifer to which
discharge will ocuur and within which
leachate will migrate and establish,
based on reliable refarence data or
independent field in esLigation, that;
(A] No part of the aquifer is now or
will iii the future be used as a source of
water supply for domestic, u ricuItural,
industrial, or commercial uses.
(B) No migraticn can occur from the
aquifer to any other aquifer. -
(ii) An applicant for a permit for a
Class B land disposal facility must
- investigate the entire portion of tho
aquifer to which discharge will occur
and within which leachate will migrate
(which may be eqi ivalent to or inclusi’.e
of the zone of containment) and
establish, based on reliable reference
data and/or independent field
investigation, that;
(A) No part of the portion of the
aquifer is now or will in the future be
used as a source of water supply for
domestic, agricultural, industrial, or
commercial uses.
(B) No migration can occur from the
portion of the aquifer to any other
portion of the aquifer or to any other
aquifer.
(iii) An applicant for a permit for a
Class C land disposal facility must
investigate in detail each location of
ground water withdrawal or collection
for use, referencing well logs or
construction records when available,
with respect to the type of well or other
ground water collection device
including;
(A) The age of the well or collection
device, the materials of construction,
and the location of casing. screens,
seals, plugs, etc.
(B) The zone of collection or
withdrawal.
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Federal i e.g ster I Vol 41i. No 24 / Thursday. Fubrunry 5, 1981 / Proposad flu1 s
iir ’
(C) The nile of grou:iil wak’r
Collecti(i!i or withdra i1.
(I)) The possible yield of the flell oi
other groi.ncl-wnter collection device
(E) The act iai use of the collected or
v itlidrawn ground % ;ter.
(iv) An applicant for a permit for a
Class D land disposal facility must, in
addition to the requirenients of
paragraph (iii) for any ground water use
other than public drinking water.
investigate each location of ground
water withdrawal or collection for use
as public drir.king water, referencing
well logs or construction records when
available, with respect to the type of
well or other ground water collection
device including:
(A) The age of the well or collection
de ice, the materials of construction.
and the location of casing. screenc.
seals, plugs. etc.
(13) The zone of collection or
withdrawal.
(C) The rate of ground water
callection or withdra l.
(D) The potential yield of the well or
other ground water collection dev ce.
CE) The physical potential yield of the
aquifer to addition . l wells or other
ground water collection devices in the
mo zone of withd;awal
(r) The treatment pro ided prior to
Lhst; hc.tion of the g-ound wafer for usi’.
(v) An epp!icunt for a permit f r a
Claqs E bind d posal foeclity must. in
additlim to the rcqunecrents of
paragrcr 1 1 (iii) l’cr a y ground ete; sc
other th, n put l c. d: ; k:ng wat r and he
Ie(li:er’ent of par :aj.’h (gJ(4flw) of
r’c.t’on fir ant’ iciund water use us
. bhc di:r.kicg water investigate each
luc.’ un of graund watei w thdrat ’al or
u.i t cdllcn for us c ’ i s p-ivate dnk n
rr uncin bell icgr. or
:i rI ’c’rth v.’heri avaAdble.
t ’Lh rcs -’ct to th type of well cr other
u.’.d w .iar rn!!ect’on det ice
cc lucii; ;.
(A)The i e of the .cll or cei’ei.ti n
(tenLe h 0 ateiidi, c.fccnsti.iction.
.ind the locution of casings. .rrecn ’ .
‘sls. piu s. etc
IB) The zone of c i !e .t;(in or
IC) The r.ite ci g d water
(“!ect 1 Cl 0; withi.tratt dl
ID) The p ssiolc’ eld of the well or
herground. t1er ccllection deuce
(C) The physical potential yield of the
aquifer to additional t el!s or other
ruund t iter cdllec ion devices in :he
&,,r e zc—e ci withdr ,i L.l.
(‘) The ajtprndtit C rouri es of public
or pi i ?v driiik; n w i ter available to
t i tvell (lwrer.
)hI A descriptiun of the monitoring
‘nd, f planned er required the modeling
rrr;pnsed lii C0nc’lV wih Subpnrt F
(Grouiid Water and Gaseous Eniission
Monitoring) or to verify or refine the
projections of the transverse, lateral,
and vertical extent of the migration of
and the mass of contaminants in the
leachate, the lateral and vertical extent
of the migration of gases. and the mass
of gaseous emissions.
8. In § 122.20, paragraph (b) is revised
to read as follows:
§ 122.26 PermIts by rule.
• * I * •
(b) Injection weIls-Ib& ,o ,c e or
perator of aninje nj&eil4i j sih
ofhaz usLebeneaiiLL sij jal
quifcndbetie.qij a confining zone
that does not allowii ii iW T11iiid
1ntoasurhci Ti iiiT ifThe owner or
operator;
(1) Has a permit for underground
iinjection issued under Part 122, Subpart
or Part 123, Subpart C; and
(2) Complies with the conditions of
ithat permit and the requirements of
§ 122.45 (requirements for wells
managing hazardous waste), and
(3) Providing that no ground water is
being or will in the future be withdrawn
from the zone of containment.
9. In § 122.28, a new paragraph (f) is
added to read as follows
§ 122.28 Additional condltior.s applicable
to all RCRA permits.
* p w • I
(I) The following report shall be
submitted by the pernl:ttee to the
Director on March 1 of the year
followcng three full yeers of perrn’t ted
operat!on, based on an Octobcr I
through September 30 year (i e.. not a
c’.ilender year) and tn-annually
tlieresftor during the active life and
post-closure paniod of the facility.
(1) A r.sodified prediction prepared in
accordance with the permit application
requirements of § 122.25(d). and
(2) Proposed mod hcaticns to the
monitoring and (if nei.essary) mndelmg
program describer in accordance with
the permit pplic.ation requirements of
122 25
10 In § 12 29, pai graph (b) is
redesignated as paragraph (d) and new
paragraphs (b) and ( .) dre added to road
as follows’
§ 122.29 Eatablishlng RCRA permit
conditions.
(b) The maximu!n allowable rate ul
disposal of specific hazardous wastes
end other wastes at or below the rate
for which permit authorization was
requested in accordance with
§ 122.25(d)(1) )iii), and
(c) For land disposal facilities. i
condctiun limiting allowable effects
authorized by the permit to include, at a
nia imum, only those effects to the land.
to the ground water, to the atmosphere.
or via the ground water: to the land, to
the surface waters, or to the atmosphere
as have been defined in the permit
application and which:
(1) Result within the zone of
containment;
(2) Result from discharges from the
zone of containment to surface waters
or to the surface of the ground;
(3) Result from collection or
withdrawal of ground water;
(4) Result from gaseous escape from
the facility of from leachate; and
(d) Each of the applicable
requirements specifced in 40 CFR Parts
264 and 286
jI’R Doc (i1—537 Fii*ct i-4—iJI (145 *r..
BILLING CODE 6S60-29-M
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9
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Friday
February 13, 1981
-
Part UI
Environmental
Protection Agency
Standards Applicable to Hazardous
Waste Land Disposal Facilities; Proposed
and Temporary Interim Final Regulations
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12414
Federal Register I Vol. 46, No. 30 I Friday, February 13, 1981 I Rulen and Regulations
ENVIRONMENTAL PROTECTION
AGENCY -
40 R Parts 122 and 267
isi . 1725—li -
Interim Standards for Owners and
Operators of Ne* Hazardous Waste
Land Disposal Facilities and EPA
Administered Permit Programs: The
Hazardous Waste Permit Program
AGENCY: Environmental Protection
Agency.
ACTION: Interim final rule and request
for comments.
SUMMARY: The Environmental Protection
Agency (EPA) is today promulgating
temporary standards for four classes of
new hazardous waste land disposal
facilities—landfills, surface
impoundments, land treatment facilities
and Class I underground injection wells.
These standards will allow EPA to Issue
permits to new land disposal facilities
pending the development of permanent
land disposal standards for new and
existing facilities.
DATES: Effective Date: August 13, 1981.
Comment Date: This regulation is being
promulgated as an interim final rule. The
Agency will accept comments on it until
April 14, 1981.
ADDRESSES: Comments on this
re ” tion should be sent to Docket
Q ocket 3004: New Land Disposal
s, Office of Solid Waste (WI-I--
5(k , .j.S. Environmental Protection
Agency. 401 M Street, S.W..
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACfl
For information on the technical
aspects of this regulation contact: John
P. Lehman. Acting Director, Land
Disposal Division, Office of Solid Waste
(WH—564), U.S. Environmental
Protection Agency, 401 M Street, S.W..
Washington, D.C. 20460, (202) 755—9185
For information on the management
and implementation of the RCRA permit
program contact:
John H. Skinner, Director, State
Programs and Resource Recovery
Division, Oflice of Solid Waste (WH—
563), 401 M Street, S.W., Washington
O C. 20460, (202) 755—9107 or
Heather Struck, Attorney, Permits
Division, Office of Enforcement (EN—
336). U.S. Environmental Protection
Agency, 401 M Street, S.W.,
Washington. D.C. 20460, f202) 755—
0750.
For State or Regional related
information contact:
Rt’ -‘i I , Dennis Hueber, Chief
( ‘tion. Waste Management
Branch, John F. Kennedy Building.
Boston, Massachusetts 02203, (617)
223—5777.
Region 11, Dr. Ernest Regna, Chief, Solid
Waste Branch, 26 Federal Plaza, New
York, New York 10007, (212) 264—0504/
5.
Region III. Robert L. Allen. Chief,
Hazardous Materials Branch, 6th and
Walnut Streets, Philadelphia.
Pennsylvania 19106, (215) 597—0g80
Region IV, James Scarbruugh, Chief,
Residuals Management Branch, 345
Courtland Street, N.E., Atlanta,
Georgia 30365, (404) 881—3016.
Region V, Karl J. Klepi(sch, Jr., Chief.
Waste Management Branch. 230 South
Dearborn Street, Chicago, Illinois
606C (312) 886—6148.
Regior. Vl, R. Stan Jorgensen. Acting
Chief, Solid Waste Branch, 1201 Elm
Street, First International Building,
Dallas, Texas 75270, (214) 787—2645.
Region VII, Robert L. Morby, Chief,
Hazardous Materials Branch, 324 E.
11th Street, Kansas City, Missouri
64106 (816) 347—3307.
Region VIII, Lawrence P. Cazda. Chief,
Waste Management Branch, 1860
Lincoln Street, Denver. Colorado
80203, (303) 837—2221.
Region IX, Arnold R. Den, Chief.
Hazardous Materials Branch, 215
Fremont Street, San Francisco.
California 94105, (415) 556—4606.
Region X, Kenneth D. Feigner, Chief,
Waste Management Branch. 1200
Sixth Avenue, Seattle, Washington
98101, (206) 442—1260.
SUPPLEMENTARY INFORMATION:
I. Authority
These amendments are issued under
the authority of Sections 1006, 2002(a),
3004 and 3005 of the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. H 8908,
6912(a), 6924 and 6925.
II. Purpose of and Need for These
Regulations
Subtitle C of RCRA requires EPA to
establish a comprehensive Federal
regulatory program to assure the safe
management of hazardous waste. In
addition to regulating the activities of
hazardous waste generators and
transporters, a major goal of this
program is to assure that wastes are
treated, stored and disposed of only at
environmentally sound hazardous waste
management facilities. RCRA seeks to
accomplish this goal by requiring all
hazardous wastes to be designated for.
transported to and treated, stored and
disposed of at permitted facilities and
requiring those permits to contain EPA.
approved requirt-ments lot the design.
construction and operation of the
facility.
Unlike Clean Water Act permits,
which can be issued in the absence of
EPA regulations (see Section 402(a)(1).
33 U.S.C. 1342(a)(1)). RCRA permits may
be issued only after EPA has
promLllgated regulations establishing
standards for hazardous waste
management facilities under Section
3004 of RCRA. See Section 3005(c).
These standards are also directly
enforceable against a facility.’ Section
3008.
On May 19, 1980. EPA promulgated
the first phase of its Section 3004
standards under Subtitle C of RCRA. 45
FR 33066—33568. These “Phase I”
regulations contain self.executing,
largely administrative and operational
standards which existing hazardous
waste management facilities 2 must meet
during interim status. They do not
contain the technical operating, design
and construction requirements
necessary to issue permits to new or
existing facilities (e.g.. requirements for
landfill liners or incinerator destruction
and removal efficiencies). As discussed
at length in the preamble to the Phase I
regulations, these standards were
scheduled to be issued as “Phase 11” of
EPA’s hazardous waste program,
sometime in late 1980. 45 FR 33156—
33157.
EPA has now issued a large portion of
these Phase II standards. Standards for
issuing permits to tanks, piles, storage
surface impoundments and container
management facilities were pi-omulga ted
on January 12, 1981 (46 FR 2802).
Standards for hazardous waste
incinerators appear in the January 23.
1981, Federal Register at 46 FR 7666.
Conspicuously absent from these two
sets of regulations are standards for
permitting the four major classes of land
disposal facilities—landfills, surface
impoundments, land treatment facilities
and Class I underground injection wells.
Drafting standards for these classes of
hazardous waste management facilities
has been the most difficult task EPA has
faced in developing its hazardous waste
program. The Agency first proposed
standards for permitting land disposal
facilities on December18. 1978 (43 FR
58982). EPA received hundreds of
comments on these standards, criticizing
them for their reliance on design criteria
‘EPA will not enforce Section 3004 standards
directly against a facilily which haø a RCRA permit.
Stir 40 CFR 12213 and 45 FR 33312 (May 19. 1980(
2 Throtugliout this preamble, the term “existing
fdI:ilitiex’ will be used to roF r to Facilities which
h,ivp qualified For interim status and the term ‘nc
facilitius’ to refer tu facilities which have not
quiiliIi d for iiit,’rim l Iiii, und,’r S,’r in,!, 3(i’J j i’) of
RCRA
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Federal Register / Vol. 46, No. 30 / Friday. Fcbru ii 13, 1q81 / Rides and R giilations
12415
and their lack of flexibilit). In response
to these comments. EPA examined
several other regulatory approaches.
including containment strategies and
numerical and non-numerical ambient
health and environmental standards.
Based on our analysis of the a4vanlagas
and disadvantages of these alternatives.
we decidcd to develop revised
regulations that combined features of all
four approaches. See 45 FR 66816
(October 8, 1960). Those regulations
were published in the February 5, 1981
Federal Register (46 FR 11126).
Because the specifics of EPA’s revised
land disposal regulations had never
been proposed for public comment and
because the regulations require a permit
applicant to make showings that may be
on the fringes of the technical state-of.
the-art. EPA has decided that they
should be proposed. To assure that the
public has adequate time to fully
evaluate and comment on these very
complex regulations. EPA is providing a
180-day comment period on tEem.
The practical result of these two
actions is that EPA will probably not be
able to issue bnal land disposal
standards until the beginning of 1982 at
the earliest. As noted above, EPA
cannot issue permits for land disposal
facilities until it issues corresponding
Section 3004 standards and those
standards become effective. Under the
most optimistic scenario, this would
mean that no land disposal facilities
could be issued permits until mid-1982 if
the only Section 3004 standards were
the permanent standards proposed
today.
Such a long delay in beginning the
pc-mit program would have undesirable
consequences for existing land disposal
facilities. Because Section 300 5(e) of
RCRA treats e\isting facilities as hating
been issued a RCRA permit until final
EPA or state action is taken on their
permit application, such a delay will not
force them to cease operations. It will.
,wever, slow down the upgrading of
iuse facilities. Although they are now
subject to EPA’s “interim status”
standards, those standards do not
require them to install liners, leitchaic
collection systems and other technt’;il
components which will assure th t they
do not pose hazards to human health or
the environment. The imposition of
these imporiant requirements must
await the promulgation of Phase II
reg’th.tinns and the issuancc of permits.
Furtundtely. there are other
niec:l. ,nisms to dedi wi li e istin
landt’Hs Pending the issuance of
pe, ntI ,i standards. Ei’i c,iti take
r( ’ ‘. i’ve naitmiri ;.gitinst the i oist land
(I . , i o&.i lii leS using its act lion’ y
unmh r i1()3 of RCRA. Ii c- in also
impose monitoring, analysis, tosting and
reporting requirements under Section
3013. In addition, states can take action
to close down or upgrade these facilities
under state law.
The timing of EPA’s final land
disposal regulations creates a much
more serious problem for new facilities.
RCRA prohibits a new facility horn
commencing operations (i.e., treating.
storing or disposing of hazardous waste)
until a final RCRA permit is issued. In
addition, under EPA’s May 19, ‘1980,
hazardous waste regulations, no new
land disposal facilities can begin
construction until they have been issued
a RCRA permit. See § 122.22(b), as
amended by 45 FR 2344 (January 9,
1981). This means that if EPA took no
further action beyond its planned
promulgation of detailed regulations by
the beginning of next year, no new
hazardous waste land disposal facilities
could commence construction or
operations until mid-1982 at the earliest.
This moratorium on the construction
and operation of new land disposal
facilities is likely to have adverse
repercussions for the safe and
environmentally sound disposal of
hazardous waste. A November 1980 EPA
report indicates that our nation faces a
sensitive period regarding its capability
to safely manage all the hazardous. -
waste it produces. The report indicates
that although many large areas of the
country appear to have sufficient
commercial off-site waste management
capa.it for 1961, several areas—New
England. the Midwest, the Plains, the
Rocky Mountains and the Pacific
Northwest (EPA Regions I, V. VII. VIII,
and X)—do not. The total 1981 off-site
capacity shoitf.ill in these five areas
could be more than 1.4 million wet
inetrc tons (WMT), or over 30% of the
tc.ial uoliiim of u astP generators in
these regwns may want to send to
cornmerc al facilities.
lmport:tntly, these findings are based
on the ai suniption that the percentage of
u astris his’orically managed on-site will
remain c.onstant and that existing off-
site coia riercial Iaclmties will not close.
The uascnhlition that the percentage of
astes managud on-site will remain
ci’m’ iiini utihl h. Jp ’s valid if there is a
moratorium on permitting new facilities,
becat s naw industrial operations,
wh:ch a’ estimated to account for
abc il 1.5 m,llion V MT of the 1981
w ‘ste V(’icnLe wut:lJ ha e to rely
prili rml3 on elf-site ccnum rciul
:\fl n h I tern lion Inc ar,J ! ‘Ol’b,n, IIIlVs’b
& i3.s;t 1 I’ic. !ic.’,. .j.,j ii’asfr C “, ro1wn nn .I
ft’S. IS! 1*11(1, C,,)US II iS.qO ’ it1 ,1,Su! 5 t ”nt’Iif
•; • ,‘ut. Not en,bri 1tl iO
facilities to manage their wastes 4 This
would be a significant departure from
iridustrys existing practice of managing
nearly 80% of its hazaidous waste on-
site, with most of it being disposed of in
landfills and surface impoundments.
Similarly, the assumption that existing
sites will not close may prove to be
incorrect. Some existing sites are
presently encountering major public and
governmental opposition to their
continued operation. In the short time
since the hazardous waste management
industry was surveyed for EPA’s report,
at least eight of the 127 commercial
hazardous waste management facilities
identified in the report have closed
down or stopped receiving hazardous
waste. In California (Region IX) alone,
four of its thirteen facilities have
stopped receiving hazardous waste,
creating capacity problems in the
southern part of the State, In Texas
(Region VI). two of its twelve facilities
have closed (although this does not
appear to have significantly reduced
capacity in the Southwest). In Colorado
(Region VIII), ongoing efforts to close
down the state’s only operating
hazardous waste landfill, if successful,
will require persons using that landfill to
transport their wastes an additional
several hundred miles for disposal.
In short, the basic assumption
underlying the conclusions in EPA’s
report—that the status quo will
continue—may prove to be inaccurate in
certain areas of the country, particularly
if no new landfills can be constructed
for the next one or two years. Thus
actual capacity shortfalls in 1981 could
be higher and surpluses lower than
predicted.
Even in those areas which EPA’s
report identifies as having generally
adequate commercial off-site waste
management capacity—Lhe Mid-Atlantic
States, the South and the Southwest
(EPA Regions II, 111, IV, Vi and IX)—
generators may encounter waste-
specific capacity problems. Many waste
management facilities are limited as to
the types of wastes they can handle.
Although it appears that most wastes
slated for off-site treatment, storage or
disposal can be managed by more than
one type of facility—e.g.. an incinerator,
a lardfi!l er a cherrica! treatment
facility—some generators may discover
that their region has limited capacity to
handle their specific waste. In other
cases, generators (particularly
generators of very toxic and hard-to-
manage wastes such as pesticides,
‘Esietsrg indu tii,iI operutions whih cxhnu’ ,t
their CUirefli on ode eapilcity or close on-bite
Fai.,iiiieq in 1911 will aim be reiyin on comnicicial
Iar!it,,”s tsi h. ,ndlr their rnneies
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12416 Federal Register / Vol. 46. No. 30 / Friday. February 13, 1981 / Rules and Regulations
cyanide wastes, radioactive wastes.
polychlorinated biphenyls (PCBs) and
explosives) may find that facility
-‘icrators in their region will not accept
ir waste
‘o respond to its percci ed needs for
additional capacity, the hazardous
waste management industry plans to
increase total off-site landfill capacity
by 8.4 million WMT and land treatment
capacity by slightly more than half a
million WMT in 1981. EPA’s own
regional survey indicates that industry is
planning on building or substantially
expanding almost 100 on-site and off-
site land disposal facilities in the
immediate future. These two figures are
further evidence of a need for additional
landfills and land treatment facilities in
1981 and 1982.
The absence of adequate commercial
capacity in local markets may cause
environmental problems. Generators
confronted with capacity shortfalls in
their area will face the prospect of
having to haul their waste to adjoining
regions with surplus capacity. The
farther these wastes must be
transported, the greater the statistical
danger of spills. Many generators may
find the transportation costs of this long-
distance disposal prohibitive. Even in
those areas where limited capacity is
available, generators may encounter
rising prices at commercial facilities due
‘ the demand for their services. As a
ut of these higher costs, they may
art to stockpiling wastes on-site or
iilegal disposal practices (e.g.. .midnight
dumping). This obviously would defeat
the very objectives of EPA’s Subtitle C
program.
In short, while we are not on the verge
of a national crisis in hazardous waste
disposal because of off-site capacity
shortfal!s it is clear that there will be
insufficient commercial capacity in
some areas that will increase both costs
and the likelihood of improper disposal.
It would certainly be desirable to
remedy this situation; at a minimum.
EPA believes it should not be allowed to
deteriorate any further.
l’he moratorium on new land disposal
contruction and operation has
consequences for on-site facilities as
well. Several manufacturing facilities
ha’ e advised EPA that they intend to
handle their wastes in on-site landfills
or surface impoundments. The ability to
obtain permits for these facilities in
certain areas, may, in some cases.
influence these companies’ decisions
concerning location of their
manufacturing plants. Thus, the
mc’rdtorium may not only prevent-
mpanies from building land disposal
hues, it may delay construction of
the producton facilities connected to
them as fleil.
The Department of Energy has
ex iessecI to EPA its conc.ern that
synfuels plants will have difficulty siting
and co structi1ug production plants and
handling wastes from these plants if
EPA is not able to issue permits to these
facilities during the next several years.
This could hdve important reprecussuons
for the national energy supply.
Fmall3 , the mortorium on the
permitting of new facilities will simply
extend the amount of time during which
hazardous v astes will continue to be
managed at old land disposal facilities.
Although EPA’s interim status standards
will help upgrade-operating practices at
these facilities, many of them are
improperly sited and poorly constructed
and will therefore continue to pose
hazards to human health and the
environment. The availability of well-
designed, environmentally sound new
disposal facilities would help divert
wastes from these old, inadequate sites
and make it easier for states and the
Federal government to close them down,
thus reducing the dangers they present
In short, there are strong reasons of
public policy why permit 1mg of new
hazardous waste facilities shculd begin
as soon as possible. Some of these are
directly related to the purposes of
RCRA. These include the need to
provide new hazardous waste disposal
faculitie’s in areas that now lack them so
as to reduce the pressures for improper
disposal, and the need to provide new
facilities in areas where the existing
ones are Inadequate to provide a reserve
of disposal capacity that in turn will
make it easier to upgrade or if necessary
close down those existing facilities.
Others reflect other important national
goals, most notably, the need to assure
that new investment in energy and other
productive facilities is not delayed
simply because a national solid waste
control program has taken longer tc
establish than Congress initially
anticipated.
The question then becomes whether
RCRA authorizes a regulatory approach
under which some new disposal
facilities in certain categories can be
permitted, and thus can begin
construction, before detailed regulations
establishing disposal requirements have
been issued and have taken effect. For
the reasons given below. EPA has
concluded that it does.
Section 3004 of RCRA, entitled
“Standards Applicable to Owners and
Operations of Hazardous Waste
Treatment, Storage. and Disposal
Facilities’ directs EPA to issue
“regulations * * establishing *
perfoimance sland.irds” in at least
seven distinct areas for huzurdous
waste treatment facilities. Section 3005,
entitled “Permits for Treatment. Storage
or Disposal of Hazardous Waste’ picks
up this theme by stating that permits
may be issued to facilities that comply
“with the requirements of * sectioii
3004.”
EPA believes that this language
should best be read to express a general
Congressional preference for
requirements under Section 3004 that
specify the approach to be taken in
individual permit proceedings and that
substantially narrow the area within
which the permit writer will be free to
set Lerms without reference to detailed
national standards.
1-lowever, nothing in the text of the
statute compels that result. It requires
only that EPA set national regulations
for permit issuance, and that these then
be applied to individual permits. Indeed.
when Congress inserted a separate
permit-issuance stage in the prccedurc
by which RCRA standards are set for
individual facilities, it presumably
intended that stage to serve an
independent regulatory purpose. Many
of the provisions of Section 3004—for
example, Section 3004(3)—are very
generally worded. It is very unlikely that
any nation-wide regulations
implementing them could totally
eliminate the heed for discretion in
individual permit proceedings. The
statute appears to contemplate the
exercise of such discretion when it
requires the submission of detailed site-
specific information in a permit
application, (see Section 3005(b)), and
when it requires widely advertised
public comment on a proposed permit
(see Section 7004(b)(2)).
Given this background, EPA believes
that, though the statute expresses a
distinct preference for regulations under
Section 3004 that provide detailed
binding guidance to permit writers, it
also allows the burden of setting the
precise RCRA requirements that bind a
site to be shifted back and forth
between general regulations under
Section 3004 and site-specific permit
proceedings under Section 3005
according to circumstances.
EPA believes that the public interest
considerations discussed above provide
a temporary justification for taking an
approach that shifts a high degree of
that burden to individual permit
proceedings, and the regulations
promulgated today embody that
approach.
They also contain a number of
safeguards to make sure that taking this
approach now does not undermine
either the general statutory prefei-cnce
for detailed national 8tandards, or result
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Federal Register f Vol. 46. No. 30 / Friday, Fetiruury 13. 1981 / Rules and Regulations
12417
in less responsible environmental
regulation than Congress cxpec cd when
it expressed a preference for deta ili d
standards.
To emphasize the interim nature of
these regulations, their lifetime has becit
limited. They will be replaced by the
more detailed standards now being
developed as soon as feasible.
And while these standards are in
effect, EPA will take steps to assure that
permits issued under them contain the
same depth of analysis and
consideration that they would if they
were based gn more detailed Section
3004 regulations. In other words. EPA
will aim to create a state of affairs in
which each individual permit can be —
viewed, both procedurally and -
substantively, as a site-specific
rulemaking under Section 3004. To the
extent this goal can be achieved. EPA
believes any doubts about the legal
acceptability of this approach will be
further removed.
The permit-issuance procedures in
Part 124 already provide the basic
framework for such an approach. They
provide for detailed explanation of the
terms of.a draft permit. together with
public comment on it, for an
administrative record to assist public
comment, and for a final decision
accompanied by a response to
comments. To further heighten the
procedural similarity to rulemaking. EPA
has provided in these regulations that
the Administrator will review any
permit decision on request. Finally as
discussed in more detail below, EPA
will bun a special permit writing team
to assure quality and national
uniformity in these permits.
Two other consequences of this
approach need to be mentioned. First,
there may well be limits to the number
of permits EPA can process under this
approach. It is likely to be very costly in
resources, since it requires work that
would normally be done once and for all
in a national rulemaking to be repeated
in each individual permit proceeding.
Second as discussed in more detail in
Section IV below, state permit issuance
under Part 267 w:ll not be authorized.
The program under this Part will depend
so heavily on what is done in indi%idtel
permit proceedings that there will be no
practical n y to judge whether state
pro8rnms. whatever they ma . look like
on paper, will oe “equivalent” to the
Federal program as the statute requirec.
However. EPA stands ready to
cooperate with states in reviewimug
applications and etaluating the terms of
draft permits when it is taking .-ic.tion
under this Part.
HI. Implementation of These
Regulations
A. Relationship to Today’s Proposed
Requirements for Land Disposal
Focih ties
As noted above, on February 5, 1981,
EPA proposed permanent permitting
requirements for land disposal facilities.
These include facility and performance
standards in Part 264 and permit
application requirements in Part 122.
After considering comments submitted
on the proposal, EPA will issue final
regulations.
The interim permit regulations -
promulgated today in Part 267 are
temporary regulations designed to allow
land disposal facilities to be permitted
during the interim period while the
Agency considers comments on its
proposed Part 264 requirements and sets
appropriate final requirements. The Part
267 standards are necessarily much
more general than the proposed 264
standards.
A major e cample of the differences
between the proposed Part 264 approach
and the more general Part 267 approach
is their differing approach to setting of
performance standards. Proposed Part
264 very specifically requires numerical
risk analyses. In particular, it sets
concentration limits for many
contaminants, and it specifies the
location where the concentrations must
be measured (at the point of actual or
potential withdrawal for use).
Part 267 does not require the
development of numerical risk analyses,
although such information could be
useful in establishing permit conditions.
Likewise, Part 267 leaves to the permit
process the decision where to apply any
ground water quality limits—eg.. at the
point of initial entry into the saturated
zone, at the facility property boundary,
or at the first downgradient point of use.
Certainly the Part 264 scheme for land
disposal being proposed today could be
used to aide permit decisions.
However, Part 267 does not necessarily
require that the specific analyses and
requirements contemplated in the
proposed Part 264 regulations be
performed for each permit. Depending
on the circumstances, for example, it
may not be possible to await full
development of all the information
required by Part 264 before final action
is taken on a permit for a new land
disposal facility. Furthermore, the
methodology for assessing whether a
proposed facility would be protective of
human health and the environment may
differ from that proposed in Part 264.
EPA has developed other documents
which should he useful to both permit
applicants and permit writers. These are
four Technical Resource l)ocuments:
E aluating Cover Systems for Solid and
Hazardous Waste (SW—867); Hydrologic
Simulations on Solid Waste Disposal
Sites (SW—868): Landfill and Surface
Impoundment Performance Evaluation
(SW—269): and Lining of Waste
Impoundment and Disposal Facilities
(SW—870). See EPA’s notice of
availability of drafts of these four
documents in 45 FR 82964 (December 17,
1980). -
In summary, Part 267 is a general
regulation authorizing the issuance of
permits for new land disposal facilities.
Any available information or mode of
risk analysis may be used, provided that
the resulting requirements protect
human health and the environment.
B. Permit Writing Assistance Teams
The issuance of permits to land
disposal facilities during the initial
stages of the RCRA permit program will
be very difficult. The potential for
improperly sited and designed land
disposal facilities to pollute the
environment ha aroused concern in
many communities, making the issuance
of permits to land disposal facilities
highly controversial.
Many difficult and complex technical
and policy Issues must be addressed in
issuing many of the these permits. Yet,
the interim permitting standards of Part
267 are of necessity quite general,
thereb r leaving many of these issues for
resolution in the permitting process.
To assist permit writers, EPA is
organizing national teams of Federal
and State personnel and outside
consultants who are experts in issues
relating to land disposal facilities.
(Similar teams arc being organized to
assist permit writers in issuing permits
for incinerators.) These experts will
assist applicants in developing permit
applications and will actively
participate in the review of data
submitted by permit applicants, the
decisions whether to issue or deny
permits, and the development of
appropriate conditions when permits are
issued.
EPA expects two chief benefits/result
from its use of permit writing assistance
teams. First, this will bring some of the
Nation’s best expertise lo hear on the
de elopment of permits, thereby
maximizing protection of human health
and the environment. Second, the teams
assure that consistent modes of
anah’sis are used to issue different
permits.
C. Stale hazardous mt’c,sle pro mnzs
Like several other Federal
environmental statutes: RCRA
authorizes EPA to approve stale
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12418 Federal Register / Vol. 46, No. 30 I Friday. February 13, 1981 I Rules and Regulations
programs. Once approved, these
programs operate in lieu of the Federal
program within their respective
“rjsdjctjons. See Section 3006.
CRA is unique among the Federal
ronmental statutes in providing for
. iO types of approvals of state
programs: “interim authorization” and
“final authorization”, Interim
authorization is a temporary approval
lasting up to 24 months after full Federal
program has been established; it may be
granted to states whose programs are
“substantially equivalent” to the Federal
program. Final authorization is a
permanent approval (subject, of course,
to withdrawal for cuase by EPA): a state
may obtain final authorization by
demonstrating that its program is
“equivalent” to the Federal program, is
“consistent with” the Federal program
and other state programs, and provides
adequate enforcement.
By keying interim and final
authorization to the shape of the Federal
hazardous waste progrem, Congress
sought to use the Federal program both
as a model for the development of the
state programs and a “minimum
standard” for their approval. H.R. Rep.
No. 94—1419, 94th Cong., 2d Sess. at 29
(1976). In this way, it hoped to
materially upgrade existing state
programs (whose inadequacy was one
of the factors leading to RCRA’s
enactment) and to assure some degree
- uniformity and consistency in
•ardous waste managemeni
3ndards from state to state. Id. at 30.
Although EPA recognized at the time
its May 19, 1980. hazardous waste
regulations were issued that they would
require fine tuning over time (and in fact
they have been amended in several
respectS to date), they were, in EPA’s
opinion, sufficiently “final” and specific
that they could serve as a model and
“minimum standard” for State programs.
For these reasons, EPA’s regulationr
provided that States could obtain
interim authorization based on those
regulations as early as their effective
date. See § § 123.121, 123.122, 123.128.
Similarly, while EPA also
contemplates future modifications to its
permitting standards for hazardous
waste storage/treatment facilities
(published on January 12, 1981, at 46 FR
2802) and for hazardous waste
incinerators (published on January 23,
1981 at 46 FR 7666), it believes that those
standards, too, can serve as model for
the development and approval of State
programs. Therefore, as discussed
below. EPA expects to begin authorizing
State hazardous waste permitting
programs for these classes of facilities
soon as the storage and incinerator
ulations become effective.
Unlike the final permitting standards
issued for storage facilities and
incineratois, today’s interim permitting
regulations for land disposal facilities
cannot serve as the basis for the
development and approval of Stcte
programs.
First, they are not permanent
standards; they will be effective only for
-at most eighteen months. EPA’s final
land disposal regulations are not likely
to be simply a fine tuning of these
standards. They may look entirely
different and impose very different
requirements.
Second, today’s regulations are not
(and are not intended to be) a “model”
Federal program. They are, rather.
requirements designed to provide a
minimum regulatory framework for
issuing Federal permits to new land
disposal facilities until more detailed
standards can be developed.
Finally, today’s regulations do not
provide a good yardstick for evaluating
State programs for interim or final
authorization. Although they include
broad standards for decision making
and factors to be considered in
determining whether those standards
have been met, they do not specify how
risks should be defined, assessed and
minimized. Nor do they contain specific
design standards; they describe the
general elements commonly associated
with land disposal facilities and require
the applicant to demonstrate that the
design will protect human health and
the environment.
For States which adopt EPA’s
regulations verbatim, the “substantial
equivalency” of the state program will
depend to a great extent on how the
permit writer’s discretion is exercised. It
will therefore be largely impossible tq
determine in advance whether a state’s
regulations are substantially equivalent
to Part 267 and thus sufficient for the
state to be granted interim
authorization. Thus approval of state
regulations as substantially equivalent
to Part 267 would become possible, if at
all, only in retrospect by comparing
EPA-issued permits to state-issued
permits to determine whether they are
substantially equivalent. Indeed, since
there wilt be no specific standards for a
state’s permits to be substantially
equivalent to, there will be no basis to
judge whether these permits are
substantially equivalent. For example, if
a state permit requires containment of
waste for 200 years plus ongoing
monitoring showing that hazardous
constituents do not exceed level 2x at
point y. while a federal permit in
another state with similar
hydrogeulogical and other factors
requires no containment hut requires
that the level of constituents not excer c’
x at point y, are the permits
“equivalent”? The Part 267 standards
are too general to provide a definit l%e
answer.
Similar problems will result if a st,mte
adopts specific performance and design
standards. Again, these must be
compared for substantial equivalency
against the general Part 267, resulting in
the same difficulty of analysis as
described in the preceding example
Beginning the process for
authorization of state programs for
permitting land disposal facilities based
on today’s regulations would result in
considerable duplication of effort at the
state and Federal level. States would no
sooner amend their statutes and
regulations to conform to the land
disposal standards issued today than
they would have to begin modifying
them to bring them into line with the
standards which EPA anticipates
promulgating early in 1982. Similarly.
EPA would spend substantial time
reviewing and approving state interim
permitting regulations over the next year
only to have to start the process all over
again when its final land disposal
standards are issued. These efforts
would divert state and Federal
resources from the more important task
of issuing permits to new facilities and
developing state permitting programs for
storage/treatment facilities and
incinerators.
For these reasons, EPA does not think
it would carry out the intent of RCRA or
make much sense as a practical matter
to begin authorizing state programs to
permit land disposal facilities under Part
267. As noted above, however, the
Agency does believe that its recently
issued standards for tanks, surface
impoundments, containers, piles and
incinerators do provide the necessary
foundation for approving state
permitting programs for those facilities.
Rather than delay the authorization of
any state permitting programs until EPA
has issued final regulations for all types
of hazardous waste management
facilities, EPA has decided that it would
be more consistent with Congress’
objective that qualified states take
formal responsibility for the nation’s
hazardous waste program as soon as
possible to allow states to obtain
interim authorization now for those
permitting programs for which there is a
Federal “model”. In addition, the prompt
authorization of state programs will
pour more resources into the nation’s
permitting efforts, increasing the speed
with which new facilities can commence
operations and existing facilities can be
upgraded or closed.
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Federal k gis er I Voi. 46. No. 30 / krid y. r oiu y 3, 19d1 j Rules and Re ulaiions
12419
Although EPA will not authorize
stotc to implement Part 267, it
anticipates that states will be
significantly involved in the approval of
land disposal facilities during the
eighteen-month period In which Part 267
Is effective. First, states continue to
have authority over the siting of land
dlBposal facilities. Second. states may
(end many do) permit land disposal
facilities independent of the RCRA
permitting process. Third, where a state
permits new tand disposal facilities,
EPA will coordinate its procedures
(including any public hearings) with the
state’s procedures to the maximum
extent practicable. Finally and most
important. EPA intends in all cases to
solicit the state’s comments on
applications and draft permits to assist
us in deciding whether to issue a permit
and, If so, to determining appropriate
standards for the facility.
In issuing the May 19, 1980,
promulgation of Part 123 (approval of
State programs), EPA anticipated issuing
standards suitable for authorizing
permitting programs for all types of
hazardous waste facilities by the end of
1980. Thus the Part 123 regulations
provided for interim authorization in
two phases—Phase I (based on the May
19, 1980, regulations) and Phase LI
(based on the regulations expected to be
promulgated in fall 1980). In addition,
the schedules for filing application for
Interim and final authorization and for
obtaining final authorization are keyed
to the promulgation date of the Phase II
standards.
As explained above, Phase II
standards for land disposal facilities
will be promulgated at a later time than
other Phase II standards so that changes
to the schedule for authorizing State
programs is necessary. Elsewhere in
today’s Federal Register, EPA has
promulgated regulations to effect these
changes in Part 123. These regulations
allow States to obtain interim
authorization to implemert those Phase
II standards which have ready been
promulgated in Part 264.
IV. Section by Section Analysis
A. Subpart A. Subpart A sets forth the
general scope of the Part 267 standards.
It also contains specific requirements
that apply to all land disposal facilities
covered by Part 267.
1. Scope of Part 207. As discussed in
Part II of this preamble, Part 207 is a
temporary regulation designed to
respond to the immediate need for new,
environmentally acceptable land
disposal facilities, Its scope is limited
accordingly.
First, Part 267 covers only new
Idcilities. Since the major purposes of
the regulation are to allow an Increase
in environmentally acceptable land
disposal capacity and to allow the
operation of new energy and other
facilities requiring on-site disposal,
limitation of Part 207 to new land
disposal facilities is appropriate.
Second, Part 287 covers only four
types of land disposal “facilities:
landfills, surface Impoundments, land
treatment facilities and those
underground injection wells which are
classified as Class I under 40 CFR
122.32(a). It does not cover waste piles
used for disposal, New waste pile
facilities may be designed and permitted
as storage facilities under 40 CFR Part
264 Subpart L (48 FR 2802, January 12,
1981). Part 267 also does not apply to
Class IV injection wells. The Agency is
unaware of any emergency demand for
new Class IV wellâ. (Class I wells are in
demand in certain areas to dispose of
highly toxic waste. See Hazardous
Waste Generation and Commercial
Hazardous Waste Management
Capacity—An Assessment, at p.V—19 for
off-site estimates.)
Third, the duration of Part 267 is
limited. As provided in § 267.3 (and as
explained in section A(3) of this
preamble), Part 267 will be used to issue
permits for at most eighteen months.
This limitation again reflects the limited
purpose of Part 267: to provide a -
temporary permitting system for new
environmentally acceptable land
disposal facilities during the brief period
preceding promulgation of permanent
Part 284 standards for these facilities.
These are some specific land disposal
activities which are for a variety of
reasons not covered by Part 267. These
exceptions, patterned after similar ones
in Part 264 and Part 265, are listed in
§ 267.1(c) and explained below:
a. Part 267 does not cover persons
who are disposing of hazardous waste
by means of ocean disposal and are
subject to a permit issued under the
Marine Protection, Research and
Sanctuaries Act. The requirements of
this Part are applicable to such persons
only to the extent they are included in a
RCRA permit by rule granted to such a
person under Part 122 of this Chapter.
The rationale for this provision is
discussed in the May 19, 1980 preambles
to the Consolidated Permit Regulations
(45 FR 33325) and to the Part 264
standards (45 FR 33171). It should be
noted that the permit by rule, contained
in § 122.26(a), given to those subject to
ocean dumping permits does not
currently include Part 267 standards.
However, it does include Pert 264
standards which would otherwise be
applicable to facilities covered by this
Part, and EPA could eventually add Part
207 provisions to § 122.26(a). The
principal reason for including this
provision in Part 267 at this time is to
clarify the fact that facilities subject to
ocean dumping permits will be given the
same treatment under Part 267 as they
currently receive under Part 264.
b. Part 267 applies to persons who are
disposing of hazardous waste by means
of underground Injection and are subject
to permits issued under the
Underground Injection Control (UIC)
program of the Safe Drinking Water Act
only to the extent they are not Included
in a RCRA permit by rule under Part 122
of this Chapter, The rationale for this
provision is discussed in the May 19,
1980 preambles to the Consolidated
Permit Regulations (45 FR 33326, 33335)
and to Part 264 standards (45 FR 33171).
As with ocean dumping, the RCRA
permit by rule does not currently include
Part 267 requirements. Thus at this time
the purpose of this provision is to
indicate that underground injection
subject to the UIC program will receive
similar treatment under both Parts 264
and 267.
c. Part 267 does not cover owners and
operators of publicly-owned trealment
works (POTW’s) which treat, store or
dispose of hazardous waste except to -
the extent that its requirements are
included in a RCRA permit by rule
granted to such a person under Part 122
of this Chapter. The rationale for this
provision is discussed in the May 19,
1980 preambles to the Consolidated
Permit Regulations (45 FR 33325) and to
the Part 264 standards (45 FR 33172). As
with ocean disposal and underground
injection, the RCRA permit by rule does
not currently include Part 267
requirements. Thus at this time the
purpose of this provision is to Indicate
that treatment, storage and disposal of
hazardous waste by POTW’s will
receive similar treatment under both
Parts 264 and 267.
d. Part 267 does not cover owners or
operators of treatment, storage or
disposal facilities that only manage
hazardous waste from small quantity
generators subject to the requirements
of § 261.5. A similar exclusion is
contained in Part 264. For an
explanation of the small generator
exclusion readers should consult the
preambles to EPA’s May 19, 1980
hazardous waste regulations (45 FR
33102] and the November 19. 1900
amendment to § 261.5 (45 FR 76620).
e. ?art 267 does not cover generators
who temporarily accumulate hazardous
waste on-site, provided thai they comply
with § 262.34. A similar exclusion is
contained in Part 264. For an
explanation of the on-site accumulation
provision, readers should consult EPA’s
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124Z0 federal Kegis!e Vol 4b. No. 30 / Frit.hiy. February 13. 1981 / Rules and Regulations
preambles to th February 26, 1980
hazardous waste regulations (45 FR
12730), the May 19. 1980 hazardous
‘regulations (45 FR 33141) and the
iber 19, 1980 amendment to
.34 (45 FR 7662 4).
I. Part 267 does not cover any farmer
who disposes of waste pesticides from
his own use. provided that the farmer
complies with § 262.51. A similar
exclusion is contained in Part 264. For
an explanation of this exclusion one
should consult the preamble to EPA’s
February 26. 1960 hazardous waste
regulations (45 FR 12732).
g. Part 267 does not cover owners or
operators of facilities that qualify as
totally enclosed treatment facilities, as
defined in § 260.10. A similar exclusion
is contained in Part 284. For an
explanation of this exclusion, readers
should consult the preamble to the May
19, 1980 hazardous waste regulations (45
FR 33177).
h. Part 267 does not cover owners or
operators of elementary neutralization
units or wastewater treatment units, as
defined in $260.10 of this Chapter. A
similar exclusion is contained in Part
264. For an explanation of this
exclusion, reader’s should consult the
preamble to the November 17, 1980
amendments to the hazardous waste
regulations (45 FR 76074).
i. Part 267 does not cover any person
who takes steps to contain or treat a
‘of hazardous waste or material
:h, when spilled, becomes a
- .ardous waste. A similar exclusion is
contained in Part 264. For an
explanation of this provision, readers
should consult EPA’s November 19, 1980
amendments to its hazardous waste
regulations.
2. Applicability of Part 264 Slondards.
Although specific land disposal
standards have not yet been
promulgated in Part 264, many general
requirements applicable to all permitted
facilities have been. These include
§ 264.18 (Location Standards),
promulgated at 46 FR 2802 (January 12,
1981); Part 264, Subparts B (General
Facility Standards), C (Preparedness
and Prevention), D (Contingency Plan
and Emergency Procedures) and E
(Manifest SysLem, Recordkeeping and
Reporting), promulgated at 45 FR
33220—33232 (May 19, 1980); and
Subparts C (Closure and Post.Closure)
and Ii (Financial Responsibility),
promulgated at 46 FR 2802 (January 12,
1981). Section 267.2 incorporates these
requirements by reference. Therefore
any permit issued under Part 267 must,
like any other RCRA permit, reflect all
these general requirements.
1 Duration of Part 267 Stondarda and
‘ir ReFationship to Permits As
mentioned previously, the Agency is
limiting the duration of Part 267. The
Agency intends to promulgate Part 264
standards for land disposal facilities in
earJy 1982. Therefore, § 267.3 pros ides
that Part 267 will be applicable and
serve as a basis for issuing permits until
the final Part 264 regulations become
effective or until 2 years after today’s
date, whichever is sooner.
In thus fashioning the schedule for
phasing out Part 207, EPA is mindful of
section 3010(b) of RCRA, which provides
that hazardous waste regulations
promulgated under Subtitle C of RCRA
take effect six months after
promulgation. Thus Part 267 will not
take effect until [ six months from
publication datel. Since Part 267 will
cease to be applicable as a basis for
issuing permits no later than 2 years
from today, it will be in effect for a
maximum of eighteen months. If the Part
264 land disposal regulations are
promulgated within less than eighteen
months after today’s date, so that they
become effective six months later, then
Part 267 will have been the basis for
issuing permits for less than e ghtecn
months.
Since the Part 267 regulations are of
limited duration and are to be
succeeded by another set of standards.
it is necessary to determine the point in
the permit process when Part 2 )7 ceases
to be applicable as a basis icr “-‘ n
permits. The most obvious points to
choose from are the submission of a
complete application, the issuance of a
draft permit or the issuance of a final
permit.
The Agency has decided in § 267.3(b)
that applicants for whom draft permits
have been prepared, for which public
notice has been issued under Part 124,
before Part 267 expires may be issued
permits under Part 267. Where no public
notice of a draft permit has been issued
by that time, no permit will be issued
under Part 267. Rather, a permit will be
issued under the Part 264 standards
which EPA intends to promulgate in
1982.
EPA ’s selection of the public notice of
a draft permit under Part 267 as the
event that determines whether Part 264
or Part 267 regulations will apply to the
issuance of the final permit is consistent
with prior EPA actions relating the
phasing in of new requirements to the
public notice of draft permits. See, e.g.,
40 CFR 124.21(e) (45 FR 33492, May 19,
1980) and former 40 CFR 124.135(a) (44
FR 32948, June 7. 1979, superseded May
19. 1980).
More important. the use of the draft
permit as the dividing line represents
sound policy. By the time EPA prepares
a draft pvrmit. the applicant will havr
submitted the relevant information, EPA
will have developed an appropriate
methodology for determining whether
the proposed facility has been designed
and would be operated in a manner that
will protect human health and the
environment, and EPA will hove drafted
Its conclusions after applying this
methodology to the facts. Given that the
analysis will have been- carried through
to this point, it would be sensible to
continue to usc the same methodology to
finally issue the permit. If the Part 267
regulation ceased to apply even if a
draft permit were already prepared
under these regulations, it is unlikely
that many owners or operators would
make the significant commitment of
resources necessary to develop and
submit relevant information to EPA at
this time. Owners and operators would
reasonably anticipate that Part 207
might well cease to apply, before they
could be issued final permits. thereby
starting anew the entire cycle of permit
application, review and issuance
proceedings under a new set of
standards. Thus, applying Part 267 only
to permits issued in final form prior to
the expiration of Part 267’s applicability
to permit issuance would inhibit
development of new environmentally
sound land disposal facilities, contrary
to EPA’s intent in promulgat ng Part 267.
It would also be inappropriate to
apply Part 267 to all permits arising from
applications that have been submitted
prior to the expiration of Part 267’s
applicability to permit issuance. If EPA
has not completed its analysis of the
proposed facility by the time Part 267’s
applicability expires, it is sensible to use
Part 264 as a basis for assessing the
facility’s design and effect on human
health and the environment. Since Part
264 will be more complete and specific
than the Part 267 regulations, it will
probably resolve some of the issues
relating to the proposed facility. Of
course, any information previously
developed and submitted by the
applicant can still be used in issuing the
permit under Part 264. so that the
applicant will have not wasted its time
ormoney in submitting a Part 267 permit
application. In fact, issuance of a permit
under the Part 264 standards should be
speedier than under Part 267 because of
those standards’ greater specificity.
Once a public notice of a draft permit
is issued under the Part 267 regulations.
the final permit will also be issued
under those regulations. Even after Part
264 regulations are promulgated, any
permit issued under Part 267 will remain
in effect for its stated life (which may
not exceed ten years. as provided in 40
CFR 122.9(b)). This, again, will
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Federal Register I Vol. 46. No. 30 / Friday, February 13, 1981 I Rules and Regulations
12421
encourage new facilities to apply now -
for permits under Part 267. knowing that
these permits will not be immediately
superseded. rather than to wait for the
issuance of Part 264 regulations before
applying.
4. Imminent Hazard Action. § 267.4
provides that notwithstanding any other
provision of Part 267. enforcement
actions may be brought under section
7003 of RCRA. That section provides
that the EPA Administrator may issue
administrative orders or bring suit to
immediately restrain any person
contributing to the disposal or other
handling of hazardous waste which may
present “an imminent and substantial
endangerment to health or the
environment.” These actions may be
instituted regardless of whether the
person is complying with Part 267 or any
other RCRA requirement. Part 264
contains a provision parallel to § 287.4.
5. Additional Permit Procedures
Applicable to Part 287. Procedures for
the issuance, modification, revocation
and reissuance, and termination of
permits under Part 267 are set forth in 40
CFR Part 124. (Grounds for permit
modification, revocation and reissuance,
and termination are set forth in 40 CFR
122.15 and 122.16, 45 FR 33428—30, May
19, 1980.) In addition, the permitting
provisions of Pert 122 apply to permits
issued under Part 267. These two points
are stated explicitly in § 267.5.
Section 287,5 contains several
provisions that modify or expand upon
the requirements of Parts 122 and 124. In
addition to submitting application
information required by § 122.4 and
122.25, applicants are required by §267.5
to submit enough information to
demonstrate compliance with the
applicable performance/design
requirements. Due to the general nature
of the performance/design requirements
of Subpart C—F in these temporary
regulations, specific application
requirements could not be developed.
Applicants should contact EPA to
discuss appropriate application
information. EPA intends to work
closely with applicants to specify
reasonable application requirements as
expeditiously as possible.
Section 267.5 also contains certain
procedural provisions designed to
assure that permits issued under Pan
267 meet a high standard of quality.
Facilities issued permits under Part 267
will automatically be designated
“major” facilities. Since § 124.8 requires
EPA to propuse a fact sheet whenever it
issues a draft permit to a major facility,
EPA will prepare a fact sheet ror each
draft permit issued under Part 267.
Section 267.5 further requires fact sheets
for Part 267 draft permits to be e en
more detailed than standard fact sheets.
which must already be fairly detailed.
Fact sheets for Part 267 draft permits
must reflect the consideration of factors
required by Subparts C—C of Part 267.
For example, § 267.21 (General Design
Requirements for Landfills) requires that
landfills include liner systems designed
to protect human health and the
environment and that the design “reflect
a consideration” of six factors. The fact
sheet for a draft permit issued for a
landfill must show how each of those six
factors was considered and how the
requirements in the draft permit reflect
the considerations.
Section 267.5 contains one other
provision to assure careful scrutiny of
each permit application. Currently,
§ 124.19 allow8 any person who filed
comments on a draft permit or
participated in a public hearing to
petition the EPA Administrator to
review any permit condition. § 124.125
allows persons participating in non-
adversary panel procedures under Part
124 Subpart F to appeal the
recommended decision to the EPA
Administrator. Section 267.5(a)(2)
provides that the Administrator “shall
accept” any such petition or appeal to
review permits issued under Part 267.
This will assure the highest level EPA
review of these permits.
The requirement of fact sheets for
draft permits, the appeal as of right to
the Administrator to review permits.
and the assistance of a national team of
experts throughout the proceedings are
all designed to focus attention by both
the Agenc i and other interested parties
on each Part 267 permit application. This
will increase the quality of the decisions
made in issuing permits under Part 267.
B. Eni ironmezi to! Performance Standard
The Part 267 standards for new
hazardous waste landfill, surface
impoundment, land treatment and Class
I underground Injection facilities rely
heavily on performance standards, At
the center of the regulatory scheme is
the environmental performance
standard set forth in Subpart B. Section
3004 requires that the standards
applicable to owners and operators of
hazardous waste treatment, storage and
disposal facilities be those “necessary to
protect human health and the
environment.” In § 267.10 EPA has
translated this general objective into a
set of more specific goals that will guide
consideration of permit applications.
Four gcneral sets of concerns are
identified in § 207.10.—ground water,
surface water, air quality and
subsurfar.o migration. While these do
not exhaust all possible environmental
concerns for hazardous waste
management facilities, they do represent
the principal concerns and should be
adequate to guide permit decisions in
most situations. Of course, where
necessary to protect human health and
the environment, § 267.10 contemplates
that the Regional Administrator could
Identify and investigate additional
environmental impacts.
EPA does not view § 267.10 as a
provision that will apply directly to
owners and operators of landfill, surface
impoundment, land treatment and Class
I underground injection facilities.
Rather, § 267.10 provides a general set
of objectives that will gnide EPA, the
permit applicant, and the public in
evaluating the acceptability of these
facilities. The broad outlines of the
owner or operator’s permit application
are determined by reference to the other
Subparts of Part 267, which identify the
basic design and operational
components that should be present in a
permitted facility. (As discussed later,
EPA may waive some of those
components under appropriate
circumstances.) While Subparts C, D, E,
F and G of Part 267 set forth the general
design and operational components of
the facility, the specific contents of the
permit application will depend on site-
specific factors and their relationship to
the objectives identified in § 267.10.
For example, Subpart C requires that
all landfills include liners However, the
particular design of a liner will depend
on its function in the permit applicant’s
ground water protection scheme.
Depending on the waste in the facility,
the liner may be used as a filter
mechanism which captures or dcgrades
the various constituents at different
rates. For example, a clay liner may
immobilize certain heavy metals to a
significant degree while allowing other.
possibly less significant constituents, to
eventually pass through. In other
situations, it may be appropriate to view
the liner as a barrier that precludes any
migration of constituents from the
facility while in-situ treatment is
occurring at the facility. Although both
situations requirP some type of liner, the
specifications for the liner will require
consideration of the risks presented by
the waste in the facility and the
development of a ground water
protection approach for the facility in
that environment.
Thus EPA anticipates that § 267i0
will be used to guide the owner or
operator in preparing the permit
application and the EPA and the public
in e aluating the facility. While detailed
analyses of all of the factors identified
in § 267.10 would certainly assist the
nvaluaton of the permit, it will not
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12422 Federal Register / Vol 46, No. 30 / Friday. February 13, 1981 / Rules and Regulations
always be necessary for the permit
applicant to explicitly analyze each
factor. The considerations identified in
267.10 will provide a basis for seeking
t itional information about the facihty
ng the permit process. where it
ppears that the environmental impact
of the facility could be substantial.
Based on that additional information.
additional conditions may be placed in
the permit.
Se.tion 267.10 identifies four gene ldl
sets of concerns that will be examined
in the consideration of land disposal
permits—ground water quality, surface
water quality, air quality and subsurface
migration of waste constituents. Each of
these is discussed in more detail below:
1. Gr nd-Water. Contamination of
ground. ‘ater caused by land disposal is
a major concern under RCRA. Section
267.10(a) therefore provides that
prevention of adverse effects on ground.
water quality is a major component of
protection of human health and the
environment. The regulation provides
that eight factors should be considered
in assessing adverse effects on ground-
water quality.
The first factor is the volume and
physical and chemical characteristics of
the waste itself. The volume of the
waste placed in the facility determines
the maximum amount of waste which
may enter the ground-water (assuming
no attenuation or removal through a
ichate collection system). Relevant
;sical and chemical characteristics
iermine, among other things, the
toxicity of the waste, the ability of the
waste to be contained or immobilized,
degraded or attenuated in or by certain
types of materials. and the probability of
undesirable reactions taking place
among waste or between wastes and
liners or natural earth materials.
The second and third factors are the
hydrogeological characteristics of the
facility and surrounding land and the
quantity, quality and direction of
ground-water flow. These factors affect
the movement of hazaidous waste
constituents in the environment and
thus of crucial importance in assessing
the risks of land disposal.
The fourth factor is proximity and
withdrawal rates of ground-water users.
While drinking water is probably the
most critical use, other uses, such as
agricultural and industrial, are also of
concern. Clearly, water which may be
contaminated by hazardous waste
leachate and then used presents
significant risks.
The regulation allows future uses to
be considered when that Is feasible.
Available approac.hes may include
‘ference to state ground-water planning
‘jrts and local land use ordinances or
the .ise of cci tam presumptions (e g..
assume that the water will be used at
some future time absent evideime to the
contrary).
In addition to ground-water use,
migration of hazardous constituents
through the ground-waler is al of
concern. Migration is separately
addressed in § 267.10(d).
The fifth factor focuses on the existing
ground-water quality including other
soi 1 rces of cor.tamination. This factor is
relevant to predicting future uses of the
ground-wate as well us to determining
the incremental risk posed by the new
facility
The sixth and seventh factors are the
potential for human health risks and the
damage to ildlifc. crops, vegetation
and physical structures caused by
exposure to wastes constituents. These
factors depend on the concentration,
quantities and toxicilies of the
hazardous waste constituents which
uitimately reach a point of use.
The final factor required by the
regulations to be considered in
evalLiating ground-water impacts is the
persistence and permanence of the
potential adverse effects. Most of the
wastes which have been and will be
identified or listed as hazardous are
likely to present significant risks for
many years (in some cases forever, such
as in the case of heavy metals) and thus
to continue to pose the threat of
irreversible degradation of ground-water
long after their deposition. Therefore.
the length of time for which protection
can be assured will be a critical
consideration in evaluating the
adequacy of a facility’s design and
operation. This issue, which should be
examined in conjunction with the waste
characteristics and patterns of ground-
water use, will be evaluated in the
context of each permit.
2. Surface Water. Section 267.10(b)
emphasizes the importance of
preventing adverse effects on surface
waters. Many of the same factors that
influence ground water protection are
significant for surface water. Therefore,
many of the factors listed in § 267.10(b)
parallel those in § 287.10(a).
The volume and the characteristics of
the waste in the facility is the first factor
to be evaluated. Since surface waters
may be contaminated by migration of
waste constituents through
hydi’ologically-connected ground water,
the second and third factors require
considerations of the hydrogeology of
the area as well as the characteristics of
ground water, including its flow
patterns.
Surface water may be contaminated
by runoff from the facility. Therefore
evaluation of rainfall p.mtterns in the
area is the fourth factor which must be
considered. (Topography. which is
relevant to runoff, must be e aIuaIed us
part of the consideration of
hydrogeology.)
Patterns of surface water use.
proximity of the surface water to the
fdcility, and existing water quality are
factors which must be considered.
Assessment of surface water effects are
aided by water quality standards
programs which have been dcvcloped
by the States in c ooperation with EPA.
Such standards provide numerical cad
narrative criteria, tied to particular usea
established for particular water bodies.
that should guide EPA, permit
applicants, and the public in evaluating
the acceptability of disposal hu:ilities.
Risks for human health. wildlife.
crops, vegetation and physical
structures presented by waste
constituents in surface waters must be
assessed just like those presented in
ground-waters. The persistence of the
potential adverse effects must be
analyzed here, although surface water
impacts are less likely to be as long-
lasting or irreversible as those affecting
ground water.
3. Air. Prevention of adverse effects
on air quality is commonly thought of as
a concern identified with such activities
as incineration. The land disposal
facilities regulated under this Part may.
however, have significant effects on the
air. Land treatment facilities, for
example, typically leave wastes
exposed to the air. Depending on the
waste and the weather conditions in the
area, waste constituents may be
dispersed by the wind. Likewise, surface
impoundments used for treatment of
certain wastewaters may contain
wastes or constituents that volatilize
and enter the atmosphere. Also, under
certain circumstances, chemical
processes taking place in a landfill may
produce toxic or explosive gases that
are emitted into the air.
Adverse effects on air quality are
similar in many respects to other forms
of environmental degradation. Thus. as
for ground and surface water, the nature
of the waste (including Its potential for
volatilization and wind dispersal) and
the cumulative impact of other sources
of air pollution must be considered here.
The regulations in this Part anticipate
that some consideration will be given to
the full range of adverse effects which
can be caused by air emissions. Human
health effects due to inhalation of
constituents is of greatest significance
and should be considered in all
circumstances. Other adverse effects
from air pollution are also worth
examining. Deposition of waste
constituents from the air can cause
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Federal Register I. Vol. 46. No iU / I ridu , t -’cin uai i 1 i 81 j t(ui kind I’( itIiZttk)flS
12423
damage to wildlife, crops. vegetation
and physical structures (e.g., buildings).
and those should be considered as well.
EPA’s air pollution programs may 3180
provide useful guidance on the question
of acceptable risk. For example, some
measures developed to control fugitive
emissions from asbestos piles and some
of the Section 112 hazardous pollutant
limitations could be applicable to some
land disposal activities.
4. Subsurface Migration. Subsurface
migration of wastes is a distinct form of
..environmental degradation apart from
contamination of ground-water which is
subsequently drawn for use. The tragedy
of Love Canal provides a classic
example. There waste constituents
migrated from the landfill area through
the unsaturated zone (which lies above
the ground-water) and into the
basements of nearby residential homes.
Direct human exposure resulted from
physical contact with waste and
inhalation of volatile contaminants as
well from Ingestion of contaminated
water. The potential adverse effects of
subsurface migration of waste
constituents must be considered in
addition to any direct effects of such
migration on surface water and ground-
water. However, many of the same
factors considered with respect to
surface and ground-water must also be
considered here.
Both the saturated and unsaturated
zone must be considered in evaluating
the potential for subsurface migration.
This will require some knowledge about
the characteristics of both the waste in
the facility (e.g., liquid vs. solid) and the
geology of the surrounding area. The
patterns of land use in the area.
including proximity to residential
buildings. are particularly important
here, as Illustrated in the example
above. In particular, the potential for
migration of waste constituents into
subsurface physical structures is a
factor which must be considered.
Another type of harm from subsu’ iCe
migration can occur when waste
constituents migrate into the root zone
of crops and other vegetation.
Depending on the constituents (e.g..
heavy metals) phytotoxicity may occur.
In addition, the roots may take up
u3rtain constituents that could
contimminntc the crop and make it unfit
for use in the human food-chain. For
examj,le, EPA has substantial evidence
to indicate that high levels of cadmium,
u substance that can cause kidney
damage at high exposure levels: can be
readily absorbed by leafy vegetables.
Thir, problem can be purticularly
significant at land treatment facilities
that grow crops in the area where waste
has been applied. There the root zone of
the crop coincides directly with the area
receiving waste. Therfore, potential for
migration of waste constituents into the
root zone of food-chain crops and other
vegetation must be considered.
While the essential inquiry in
evaluating new land disposal facilities
will be the acceptability of the facility in
protecting human health and the
environment, EPA believes that
potential applicants should consider
managing hazardous waste in a manner
that avoids the necessity of land
disposal. As EPA examines the problem
of hazardous waste management
generally, it Is becoming increasingly
convinced that the long-range potential
for migration of wastes from even the
good facilities argues for a long-term
strategy that Involves phasing out land
disposal. However, land disposal
remains a necessary option for certain
types of hazardous waste at the present
time.
Those who manage hazardous waste
should at least consider other options
(e.g., treatment, recycling and reuse,
incineration, and elimination of
materials that generate hazardous
waste) before seeking to use land
disposal. Such an approach represents
sound planning to avoid the long-term
responsibility and legal liability (not all
of Which can be eliminated by - -
complying with a RCRA permit) that
will be associated with land disposal in
the future.
C. Landfills
Subpart C of Part 267 sets forth the
general design and operation
requirements that will apply to new
hazardous waste landfills. This Subpart
is designed to guide the preparation of a
.permit. The permit applicant will
present an application that contains a
proposed design and operating plan that
includes the elements contained in this
Subpart. (Where appropriate, the permit
application may also provide a
justification for any requests for waivers
sought by the facility owner or operator
where necessary to allow treatment to
occur.) In justifying the particular design
and operating plan proposed for the
facility, the permit application will have
to reflect a specific examination of the
factors included in this Subpart. Finally.
the permit applicant will be required to
demonstrate how the facility achieves
the objectives identified in § 207.10.
Where appropriate, the applicant may
provide or EPA may require specific
consideration of one or more of the
factors identified in § 267.10. EPA
anticipates that the same general
approach will be used to implement
Subparts D, E, F and G as well.
The first design requirements for
landfills is a liner, for example, a liner
may be used as a gross filler for certain
constituents. Likewise a liner may be
used, as It has traditionally, as a barrier
that contains the waste completely for
some period of time. Generally, this liner
requirement will Involve the
emplacement of materIal into the
ground. Under appropriate conditions, It
might be possible to consider the natural
material which underlies the f,acility as
being part of the liner design.
The amount of leachate that will be
generated in the landfill is of critical
importance in assessing the adequacy of
a liner design. This must involve a
consideration of the waste type (e.g.,
liquid content, biodegradability,
solubility, migratory potential), the
volume of waste, and climatic
conditions In the area (e.g., rainfall.)
in assessing the potential performance
of the liner, the characteristics of the
liner material must be examined. The
permeability of the liner material is a
centml concern. Thickness,
susceptibility to cracking or tearing,
resistance to adverse weather-
conditions and other such factors wifl be
important for all liners. For earthen
liners, the compaction density and
moisture content of the material is also
significant. For synthetic membrane
liners, longevity (based on degradability
and resistence to wear) is significant.
The pressures placed on the liner
should be examined by the applicant in
conjunction with his assessment of the
liner material. Thus factors such as the
pressure head of leachate on the liner,
the properties of the underlying soil (e.g.,
ability to support the liner. presence of
sharp materials) and the potential for
damage to the liner during installation
should also be considered.
Under § 267.21(b), all landfills must
have some kind of leachate and runoff
control system. The facility may have
one system that controls both types of
liquid or separate systems. The selection
of a particular approach will depend on
the relative quality of leachate and
runoff at the facility and on how these
two liquids wll be managed.
The regulations in this Subpart do not
specifically require run.on controls.
Such a design measure has the
sigr.ificnni advantage of avoiding any
contact of run-on water with waste
constituents and therefore will typically
be a desirable design feature. However.
EPA is willing to examine during the
permit process alternative schemes that
provide for control of leachate and
contaminated runoff after it is produced.
Some of the key factors in assessing
the adequacy of a leachate and runoff
control system are those that influence
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12424 Federal Register I Vol. 46. No. 30 / Friday. February 13, 1981 I Rules and Regulations
the volume of leachate and
contaminated runoff produced at the
“ .-ility. This will be determined by the
3cteristics of the waste, particularly
jotential for solubilizing waste
.unstituents in water, and climatic
conditions such as rainfall.
Another important factor is the
quality of contaminated runoff or -
leachate and its implications for
management of those liquids. Depending
on the level of contamination, it may be
necessary, and legally required. to
carefully manage the liquids. This will
influence the design of the facility
because it affects the amount of
contaminated liquid which the permitted
design should allow to be produced. For
example, if it appears that runoff from a
facility will be highly contaminated, the
facility may need to include run-on
controls. If the runoff from the facility is
unlikely to be highly contaminated.
perhaps because of the facility slope or
the operational practices of the owner or
operator, then an alternative design may
be acceptable. If the permit applicant
intends to discharge collected leachate
or runoff to surface waters, the effect of
that discharge or attainment of water
quality standards in the receiving water
as well as any potential responsibility
wider the-Glean Water Act (e.g., NPDES
permit conditions) should be considered.
course, any leachate or runoff which
ilifies as a hazardous waste must be
naged In accordance with the
hazardous waste regulations.
The general operating requirements
for new hazardous waste landfills are
set forth in § 267.22 of this Subpart. This
section requires that incompatible
wastes, as defined In § 260.10, and
incompatible wastes and materials, not
be placed in the same landfill unless
§ 264.17(b) (which contains precautions
to prevent ignitions and reactions) is
complied with. A similar provision is
contained in the Part 26$ interim status
standards for land disposal facilities
and in the Part 264 standards recently
issued for storage facilities. This is a
“good practice” measure which is
justified by the same arguments
supporting its use In Parts 265 and 264.
The Part 267 provision has been
modified somewhat to indicate clearly
that the waite analysis plan required by
§ 264.13 must include the analysis
needed to comply with § 267.22(a).
The regulations also make clear that
any emplaced liner must be installed in
a manner that will protect the function
and physical integrity of the liner. For
xample. the owner or operator must
sure that the installation process does
ot .ause rips or tears in the liner
material and that any seams in the liner
ara properly joined.
As indicated in § 267.22(d). a landfill
must be inspected by the owner or
operator at a sufficient frequency to
assure compliance with § 267.10 of this
Part. General Inspection requirements
are also set forth in § 264.14 and are
applicable to facilities regulated under
Part 267. The frequency of inspections
and the objects of inspection will
depend on the specific design for the
facility; EPA will determine ther.i on a
permit by permit basis.
The closure and post-closure
requirements for landfills are set forth in
§ 267.33. Subpart G of Part 264, which
applies to new facilities regulated by
this Part, establishes the requirements
for closure and post-closure. The
measures taken to properly close a
landfill and maintain it during the post-
closure period will be set forth in the
closure and post-closure plans, which
will be incorporated into permits issued
under this Part.
All landfills must use some t pe of
cover in closing the landfill, The
function and design of the cover will
depend on the applicant’s strategy for
complying with § 267.10, The cover may
be used as a means to prevent wind
dispersal and to avoid public contact
with the waste in the landfill. Under
other circumstances it may be used as a
barrier designed to keep liquids out of
the facility to minimize the production of
leachate. Whatever approach is taken,
the developme t of cover specifications
should be coordinated with the design of
the liner in order to avoid the “bathtub”
effect. This occurs when a relatively
permeable cover is placed over a facility
that has a relatively impermeable liner.
Such a facility may simply fill up with
water and overflow, carrying waste
constitutents with it.
The factors that must be considered in
properly closing a landfill are analogous
to those relevant to closure under Part
265. They include characteristics of the
waste (type. amount, mobility, rate of
migration), characteristics of the cover
(material, surface contours, porosity and
permeability, slope, length of run of
slope, type of vegetation on the cover),
and characteristics of the local
environment (climate, location,
topography, surrounding land use,
geological and soil profiles, surface and
subsurface hydrology.)
A landfill must be maintained in a
manner that complies with § 267.10 of
this Pert during the post-closure period.
The relevant factors are essentially the
same as those considered for closure.
An additional factor that is important
during the post-Unsure period is the
maintenance of any ground water
monitoring system or leachate and
runoff control system at the facility.
These measures are often necessary
because leachate can continue to be
produced and to migrate long after (hi
waste is placed in the landfill.
An important element In the
regulation of landfills under Part 267 is
the “treatment waiver” under § 267.24
Under this provision the Regional
Administrator may waive any of the
requirements in H 267,21, 267.22 and
267.23 where necessary to achieve
treatment of hazardous waste in a
landfill. As indicated earlier in this
preamble. EPA believes that treatment
options should be explored by permit
applicants prior to seeking land disposal
permits. Moreover, EPA expects that
hazardous waste treatment technology
will be undergoing considerable
innovation in the next few years. EPA
does not intend to stifle such innovation
with its land disposal regulations.
Thus, under Part 267, EPA will be
willing to consider modifications to th
basic elements of the landfill
requirements to accomplish a treatment
objective. For example, if an applicant
can demonstrate that the chemical oi
physical treatment process that he
Intends to trigger inside a landfill would
be impeded by the presence of a cover
at closure, EPA would consider such a
waiver. However, the burden is on the
applicant to demonstrate that any
proposed in-situ treatment technique
will be effective. The applicant must
also demonstrate that, If the treatmeni
waiver is granted, the landfill will
comply with the environmental
performance standard of § 267.10.
Under §267.25, the Regional
Administrator may place additional
requirements in permits for new landfills
where necessary to comply with §267.10.
This provision makes it clear that the
other provisions of Subpart C are not
exhaustive. Since the range of potential
site-specific circumstances is broad, the
Regional Administrator must retail’ this
power in order to provide sufficient
flexibility in hazardous waste
permitting. EPA anticipates that permit
conditions under § 267.25 would only be
imposed after full review of the
ppllcant’s proposed design and
operating plea.
D. Surface Impoundments
The regulations applicable to new
hazardous waste surface impoundments
are contained in Subpart D of Part 267.
They are quite similar to those required
for landfills. Therefore this preamble
discussion of Subpart D will address
those provisions that are unique to
surface impoundments.
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12425
Readers should consult the discu’,sion
cii landfills in this preamble for a
discussion of overlapping pros isions.
The major distinction between surface
impoundments and landfills is that
surface impoundments will typically
contain much more liquid than a landfill
Several factors that are common to
these two disposal opLions will be of
more significance in the case of surface
Impoundments because of their larger
amounts of liquids. For example, the
pressure head of leachate on a liner in a
surface impoundment is likely to be
greater than that found in a landfill.
Adjustments in the design and operation
of surface impoundments will need to be
made to accommodate this factor.
As a preliminary matter, surface
impoundments are not necessarily
subject to standards for disposal
facilities. The may instead be used as
storage facilities. (Whether used for
disposal or storage, a surface
impoundment can also be used as a
treatment facility). Storage is defined
under these regulations ( 20O.10) as “the
holding of hazardous waste for a
temporary period, at the end of which
the hazardous waste is treated, disposed
of, or stored elsewhere.” A disposal
facility is one “at which hazardous
waste is intentionally placed into or on
any land or water, and at which waste
will remain after closure.” When a new
facility will be used as a storage facility.
the substantially different standards set
forth in Subpart K of Part 204 will apply.
(See 48 FR 2602, January 12, 1981, for
further explanation of storage under
these regulations and of the
requirements applicable to storage in
surface impoundments.) If a facility is to
be used as a final repository for the
waste and is therefore a disposal
-facility, then the regulations in this Part
apply to the facility.
The design requirements for surface
Impoundments under §267.31 require a
liner but do not require a leachate and
runoff control system. EPA recognizes
that the installation of a leachate
collection system at a surface
impoundment would generally require a
double liner system.
Such a design feature may not always
be necessary. For example. if the liner is
c 1 ose to the water table, normal ground
water monitoring might pick up any
sitmficant degradation of the area
below the facility quickly. Moreover
shice surface impoundments can be
dr.iincd, relatively quick action can be
Liken to limit degradation. Similar
action with landfills (i.e., removal of the
Icachate on the liner) is usually only
feasible with a collection system.
Therefore EPA decided not to require a
leachate control system for all surface
impoundments. EPA will, however, be
examining the need for such a system in
each permit pioceeding when evaluating
the permit applicant’s overall scheme for
managing liquids at a surface
impoundmenl. Where appropriate the
Regional Administrator could require
the installation of a leachate control
system at the facility under authority of
§267.35.
Similarly no runoff control system is
required. The regulations require that
the facility be designed to prevent
overtopping. This can be accomplished
by additional diking to provide
freeboard above the expected liquid
level at the facility. Controls on inflow
and outflow as well as secondary
overflow tanks may also be used to
satisfy this requirement. Since such
measures avoid “runoff’ from the
facility, the only real runoff issue is
whether or not run-on controls are
necessary. As long as a facility satisfies
the overtopping requirement, this type of
control will generally not be necessary.
In some circumstances (e.g., where
rainfall may be heavy and difficult to
anticipate) run-on controls may be
needed to provide a margin of safety.
This issue will be examined during the
permit process, and an additional
requirement for run-on control m y be
placed in a permit under §267.35.
The only other design requirement
addressed by §267.31 is cliking. Where
dikes are part of the surface
impoundment, the dikes must be
designed to comply with § 267.10. The
purpose is to maintain the structural
integrity of the dike against catastrophic
failure, and to protect against excessive
seepage through the dike and against
overtopping of the dike. Structural
integrity may be adversely affected by
erosion of the dike, by the effects of
plant roots on earthen dike materials
and by burrowing animals which create
fissures in the dike. Wind erosion must
also be considered because it can
adversely affect the ability of a facility
to meet the overtopping requirement and
can undermine the dike’s structural
integrity. Water erosion, which also
affects structural integrity, can lead to
e ccssive seepage through a dike. and
thub should be c.unbidured as well.
The genei’aI operating iequirements
for surface impoundments under §207.32
are patterned after those for landfills.
‘liiiis there are requirements for
incompatible wastes, installation of
liners, operation of leachate and runoff
control systems, and inspections. In
addition, the regulations require that
each surface impoundment be operated
to prevent overtopping due to wind and
w;ive action. overfilling. prN pitation or
any combination of these factors This is
generally accomplished by the
maintenance of freeboard between the
liquid waste surface and the top of the
impoundment. Careful management of
controls on inflow and outflow devices
as well as secondary overflow tanks are
typical measures for satisfying
requirement. Implementation of this
provision will require setting specific
permit conditions, such as a minimum
freeboard level, based on the general
requirement.
The general requirements for closure
and post-closure at a surface
impoundment also mirror the analogous
provisions for landfills. The factors for
consideration, ho e ver, additionally
address the significant free liquids
problem presented by surface
impoundments. Such free liquids may
eventually leach or otherwise run out of
the facility and present substantial risks
to human health and the environment. -
Therefore, the permit writer must
consider the possibility of requiring the
removal of some portion of the fr e
liquids in the facility to reduce that risk
and consider the use of absorbent
material in the surface impoundment to
reduce the risks of leaching.
Removal of free liquids should be
considered together with the cover
requirement in § 267.33. The cover
requirement for surface impoundments
is based on the same rationale as the
analogous requirements for landfills. As
a practical matter, free liquids must be
minimized before a cover can
successfully be placed on a surface
impoundment.
A treatment waiver identical to that
for landfills is available for surface
impoundments under § 267.34. The
decision whether to grant a waiver
depends on the individual
circumstances of each Facility and
requires a satisfactory showing that
treatment. seri ing the objectives of
§ 267.10, would OCCUT.
Under § 267.35, the Regiandl
Administrator may place addition,,l
requirements on owneis and opirttoi
of new hazardous waste s :rf.it t’
impoundments here necccs.:r to
comply with § 207.10
E I.rn:cJ Trcct:z;en!
The requirements applicabic to new
hazardous waste land treatmcnt
facilities are set forth in Subpart E of
Part 267. While bearing several
similarities to landfills and surfdce
impoundments. land treatment facilities
are generally designed to achieve
somewhat different purposes. Land
treatment facilities are designed to use
the soil as a treatment medium. The
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12426 Federal Register I Vol. 46, No. 30 / Friday. Febiuary 13, 1981 f Rules and Regulations
intent is to break down the organic
component of the waste througn
chemical and biological prccesses in the
upper layers of the soil. Since adequate
‘alment is expected to occur in the
per soil layers, there is generally no
.aed to design the facility with barriers
above or below the waste. Thus the
design requirements in § 267.41 do not
require a liner or leachate collection
system at the facility.
Runoff may still be a problem at land
treatment facilities: thus a runoff control
system is included as a design
requirement. Design of the system may
include specific runoff and/or run-on
controls. The factors which must be
considered are the same as those
required for landfills and surface
impoundments.
The general operating requirements
for land treatment facilities under
§ 267.42 include some of the same
requirements applied to landfills and
surface impoundments. These include
provisions for incompatible wastes,
operation of the runoff control system
and inspections.
Two additional operating provisions
are contained in § 267.42. First, the land
treatment facility must be operated to
treat the waste in the facility to the
extent necessary to comply with
§ 267.10. The success of the land
treatment option depends heavily on
careful management of the waste at the
cility to ensure that treatment occurs.
is may require the use of traditional
.‘ming techniques, such as tilling the
waste/soil mixture and applying lime to
raise p1-I, in order to aid the treatment
process. Rate and method of application
of the waste to the facility are also
irportant. The particular management
techniques that will be used at the
facility will need to be considered
during the permit process. Thus EPA
anticipates that more specific
management practices will be developed
as permit conditions based on this
general requirement.
Second, § 267.42(d) contains operating
requirements to handle situations where
owners or operators of land treatment
facilities wish to grow food-chain crops
at the land treatment facility. (“Food-
chain crops” is defined in 40 CFR
260.10). This is a potentially dangerous
practice and will be allowed only after
the fullest possible review. If food-chain
crops are grown at a land treatment
facility, the facility must be operated in
a manner designed to protect the quality
of those crops to the extent necessary to
comply with § 267.10.
Several factors must be considered
when food-chain crops will be grown.
“he nature of the waste (its chemical,
vsicul and biological characteristics),
the application rate, the characteristics
of the soil (including its pH, cation
exchange capacity. etc.), and the type of
crop to be grown are important. The
permit writer must examine the
likelihood of plant uptake of waste
constituents as well as the possible
exposure of field workers who will be
handling the crop and working directly
with the soil/waste mixture to wOste
constituents.
The manner in which the crop is
marketed must also be considered.
Crops used by commercial distributors
are likely to be mixed with crops from
other fields before they are used by
consumers. The mixing process reduces
the risk of exposure to high levels of
contaminated food. A h her risk
situation is presented iere the owner
or operator sells the potentially
contaminated crop directly to
consumers.
Fiflally, the potential future uses of the
facility must be considered when food-
chain crops will be grown. Land
treatment facilities usrd for food-chain
crops are likely to be used to grow crops
even after the facility owner or operator
stops applying waste. This may present
significant risks. For example, if the
facility is used to grow field corn for
animal feed the risks may be acceptable
(since corn does not take up most
hazardous constituents at high levels).
However, if that property is later used
for high-uptake leafy vegetables by an
unknowing or uncaring user, a
significant risk may be created. Such a
risk requires consideration. EPA’s
standards for protection of food-chEün
crops in the Criteria for Classification of
Solid Waste Disposal Facilities and
Practices (40 CFR Part 257) provide
standards for cadmium and PCB’s which
should be useful in assessing risks for
this purpose.
Another unique element of Subpart E
is the requirement for an unsaturated
zone monitoring program In § 267.43.
This monitoring program, which applies
to land treatment facilities in addition to
the ground water monitoring program of
Subpart F, is required to assure
compliance with § 267.42(c). It will be
used to determine whether the operating
conditions in the permit are adequate to
treat the waste. The monitoring program
must include the installation of an
unsaturated zone monitoring system at
the facility or at a representative test
plot. If a test plot Is used, then it is
important that the plot be rep l’esentdtive
of the conditions at the facility
(including the soil and climate) and that
the testing procedures be patterned
directly after the waste, the application
rate and the management techniques.
The monitoring system may include soil
core and soil pore monitoring, but the
specifics of Lhc system will be
developed during the permit process.
The key consideration for the
unsaturated zone monitoring system is
that the wells be placed at proper
locations and drilled to sufficient depths
to obtain a representative sample of the
waste treatment process.
The procedures for sampling.
analyzing, and evaluating data ob 3ined
from the monitoring system will be
specified in the permit. Those
procedures will be established based on
a consideration of soil characteristics
(pH, cation exchange capacity, total
organic carbon, permeability and
microbial activity in the soil), the waste
application procedures (frequency, time
and rate of application], climate, and the
potential for rapid migration of waste
conbtitutcnts through the soil. Another
significant factor, for both the
monitoring system and procedures, is
the accessibility of the monitoring
system devices for maintenance and
repair. Lysimeters, for example. may
become clogged relatively easily and
thus it is important to have such devices
accessible for repair.
The closure and post-closure
requirements for land treatment
facilities, contained in § 267.44, are
similar to those required for landfills
and surface impoundments. There is no
requirement for a cover, however,
because land treatment facilities are
designed to treat the waste, end thus
concerns about leachate generation over
time are less severe. The Regional
Administrator may, of course, require
the placement of a cover over the
facility as en additional requirement
under § 267.48, Such measures may be
necessary, for example, if wind
dispersal is a significant problem at the
facility.
The factors for consideration in
closure and post-closure plans for land
treatment facilities are generally the
same as those applicable to landfills and
surface impoundments, with a few
minor modifications. In considering
climate in the area, the amount,
frequency and pH of precipitation can
be particularly signficant. A p1-I change,
for example, could conceivably cause
chemical reactions that reverse
attenuation processes in the soil.
Likewise, in examining geologic and soil
profiles, such factors as the pH. cation
exchange capacity and total organic
carbon in the soil could affect the
relative permanence of any treatment
reactions in the soil. inally, both the
closure and post-closure requirements
should reflect a consideration of
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iS ... t ,t
unsaturaii’d zone monhloring data,
nhich should reveal whether wastc’
Ireatnient at the facility is successful,
and irny ground-water monitoring data.
Like landfills and surface
impoundments. the land treatment
facility regulations allow for a -
“treatment variance” where appropriate.
F. Ground- Waler Monitoring
Subpart F sets forth generally the kind
of ground-water monitoring program
which is required at all new landfills.
surface impoundments or land treatment
facilities under § 267.50. Since a ground-
water monitoring program will be
heavily dependent on the function,
design and operation of a land disposal
facility, the monitoring requirements
must, of necessity, be generally stated.
The specifics of the monitoring program
will be fully explored during the permit
proceedings.
It is necessary to have some kind of
monitoring program at new facilities,
however, because once constituents
enter ground-water. such monitoring
provides the only effective means of
tracking the progress of the plume. Such
information is important regardless of
how the facility is designed. If a facility
uses a controlled release approach, for
example. ground water monitoring is the
only effective means of validating
predictions about the impactDf the
facility, if a containment approach is
used, ground-water monitoring is
essential In detecting the failure of the
design and in tracking the plume to
assist in remedying the problem.
The ground water monitoring program
required by this Subpart includes the
ground-water monitoring system itself.
as well as procedures for sampling,
analyzing and evaluating ground-water
data and taking appropriate response
measures. The ground-water monitoring
system must be capable of indicating the
facility’s impact on ground-water in the
uppermost aquifer to assure compliance
with § 267.10. The uppermost aquifer is
the focus of the monitoring program in
order to give the earliest possible
detection of a contaminant plume.
Where necessary to track a plume’s
progress into other aquifers, the
Regional Administrator may of course
impose additional requirements under
§ 267.53.
The design of the ground-water
monitoring system must be based on a
consideration of several factors. The
placement and depth of the wells must
be aimed at yielding a representative
s imple of constituents in the uppermost
aqu:fei. in order to accurately assess the
impact of the disposal facility, the
monitoring program must account for
background ground-water quality. For
this reuson, the ground-water monitoring
system should be installed at
appropriate locations on both the
downgradienl and upgradient sides of
the facility.
Appropriate design measures should
also be taken to assure the physical
integrity of the monitoring well bore
hole. Casing is a common technique for
accomplishing this goal. Likewise,
design measures must be taken to
prevent contamination of ground water
samples that could bias the monitoring
results. Gravel or sand packing around
ground water sampling points is a
common method for accomplishing this
objective.
The ground-water monitoring
procedures required by this Subpart
must be capable of assuring compliance
with § 267.10. The permit will include
procedures for sampling, analyzing and
evaluating ground-water data. These
procedures must involve sample
collection, sample preservation end
shipment, analytical methods, chain of
custody control and evaluation of the
data. The procedures for data evaluation
should consider the use of appropriate
statistical techniques (Student’s T test,
Mann-Whitney U test) which are best
suited to the use of the data in the
overall ground-water monitoring
strategy for the facility. Whatever
techniques are used, the evaluation
procedures must include some
provisions for determining the extent
and rate of migration of waste
constituents.
The monitoring program must also
include appropriate procedures for
action when the monitoring program
indicates that the facility is not
complying with the permit conditions or
thai facts assumed to be true when the
conditions were set are not true. While
these response procedures are of critical
significance, it is difficult to elaborate
on their content in Subpart F. Since the
response procedures are closely linked
to the overall ground-water protection
approach for the facility, the specific
procedures needed will have to be
developed on a permit-by-permit basis.
Any response procedures must be linked
to the general contingency plan
provisions developed to satisfy Subpart
D of Part 264 (incorporated by reference
in § 267.2)
C. Underground Injection
Subpart C of this Part sets forth the
general requirements applicable to new
hazardous waste underground injection
wells. As indicated in § § 267.1 and
267.80. Part 267 only applies to injection
wells which are classified as Class I
undei § 122.32(a) of this Chapter. The
other mujor type of injection well that
receives hazardous waste are the Class
IV wells, defined under § 122.32(d). The
stdtus of these wells in the RCRA and
UIC program is undergoing further
scrutiny within the Agency. The
proposed 264 standards being published
today, for example, reclassify certain of
these facilities as seepage facilities and
provide a complex regulatory approach
for such facilities. Moreover, EPA has no
evidence that there is a pressing need
for new Class IV wells, particularly
since today’s regulations will allow for
permitting of new hazardous waste
landfills, surface impoundments, land
treatment facilities and Class 1 injection -
wells. Therefore EPA is not now -
including Class IV wells under Part 287.
In issuing RCRA permits for Class I
underground injection wells, EPA will
be making every effort to coordinate -
such permits with the requirements
established for state programs under the
UIC program. To the fullest extent
possible. EPA will be using the 40 CFR;
Part 146 standards for Class I wells in-
issuing RCRA permits.
The requirements for underground —
injection wells under Subpart C are.-
generally stated and thus will require
further elaboration in permits. Under -
§ 267.61 an injection well must be
designed to comply with § 267.10. The --
design must include measures, such as
casing. tubing and packer to prevent the
escape of fluids to the area above the
zone of injection.
In addition, the injection well must be
operated in a manner that will comply
with § 267.10. In developing those
operating methods in his permit
application, the permit applicant must
consider the characteristics of the
waste, the injection pressure and
measures designed to detect failure in
the mechanical integrity of the well.
At closure, an injection well must be
plugged and sealed. There are no post-
closure responsibilities for Class I
injection wells.
As with all other disposal facilities
regulated under Part 267, t Regional
Administrator may place ,.jditional
requirements on owners and operators
of Class I injection wells where
necessary to achieve the environmental
performance standards in § 267.10.
V. Effective Date
These regulations will become
effective six months from today (see
Section 3010(b) of RCRA). However,
EPA is prepared to begin working with
permit applicants immediately to help
them develop their applications. In
addition, although the Agency will not
be issuing any permits under Part 267
until it becomes effective, it will begin
processing permit applications (e.g.,
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12428 - Federal Register / Vol. 46. No. 30 I Friday. February 13, 1981 / Rules and Regulations
reviewing applications, preparing draft
permits) as soon as they are received.
VI. Interim Final Promulgation
These interim final regulations grow
of EPA’s December 18, 1978,
osed land disposal regulations (43
j8982) and its more recent
supplemental proposal (45 FR 66816,
October 8, 1980). Although EPA would
like to have obtained additional
comment on these regulations prior to
promulgation, the Agency has
determined, under Section 553 of the
Administrator Procedures Act, 5 U.s.c.
553, that it would not be in the public
interest to do so. The process of going
through another proposal would
probably take at least nine months, and
thus would largely defeat the purpose of
issuing Part 267 in the first place,
discussed at length in Section 11, above.
These regulations are being
promulgated in interim final form,
however, which means that, while they
are “promulgated” for purposes of the
six-month effective date in Section
3010(b) and the 90-day deadline for
filing petitions for review in Section
7006, the Agency will accept comment
on them prior to issuing “final final”
regulations. EPA intends to rectify any
major problems with the regulations
raised by commenters prior to their
effective date.
VII. Economic, Environmental and
Regulatory Impacts
cutive Order 12044
der Executive Order 12044, Federal
agencies are required to prepare a
regulatory analysis for all new
significant regulations, except in an
emergency or where preparation of a
regulatory analysis would prevent the
agency from meeting a court or statutory
deadline
EPA is currently under a court-
ordered deadline to promulgate final
regulations implementing Section 3004 of
RCRA (including land disposal
standards) by the fall of 1980. See State
of Illinois v. Costle, No. 78—1689 (D.D.C.,
December 18, 1979). The sheer enormity
and complexity of this task, coupled
with the need to divert attention and
major resources to the implementation
and fine-tuning of EPA’s May 19, 1980,
hazardous waste program, have already
resulted in the Agency’s missing its
deadline by over a month. Preparing a
regulatory analysis on the Part 267
regulations published today would have
further delayed EPA’s compliance with
the court’s order.
Furthcrmoie, as noted above, EPA’s
P irt 267 standards are being issued to
nh(’( l an inimedate need for additional
hazw’dous waste land disposal capacity.
While they may not rise to the level of
“emergency” regulations, there is a real
need for them to be issued as soon as
possible.
For these reasons, EPA believes that it
is not required to prepare a regulatory
analysis under Executive Order 12044.
Moreover, even if a regulatory analysis
were required, EPA believes it has in
part fulfilled that requirement by its
October 8, 1980. solicitation of public
comment on several alternatives for
regulating land disposal facilities. See 45
FR 66816,
The Agency will be preparing a
regulatory analysis to accompany the
proposed Part 264 land disposal
regulations which it is publishing
elsewhere in today’s Federal Register. It
is also planning to evaluate the
economic impact of its Part 267
standards as they are implemented. This
information will be useful to EPA in
developing its final land disposal
regulations.
B. The Regulatory Flexibility Act
The Regulatory Flexibility Act
requires all Federal agencies to consider
the effects of their regulation on “small
entities”, i.e., small businesses, small
organizations and small governmental
jurisdictions. Section 603 of the Act
directs agencies to propose for public
comment a “regulatory flexibility
analysis” for any regulations which will
cause a significant impact on a
substantial number of small entities.
This analysis must include, among other
things, an estimate of the number of
small entities affected by the regulations
(where feasible), a description of the
reporting and other compliance
requirements imposed on them, and a
description of any alternatives
considered to minimize the economic
impact of the regulations on them.
EPA does not presently believe that
these rules will have significant
economic effect on a substantial number
of small entities. EPA estimates that
only about 25 facilities per year will be
permitted under these regulations
nationwide. Although there is no way to
know in advance what percentage of
these facilities will be owned by small
entities. EPA esitmates that only about
25 facilities per year will be permitted
under these regulations nationwide.
Although there is no way to know in
advance what percentage of these
facilities will be owned by small
entities, EPA anticipates that the large
capital requirements and the technical
complexity involved in establishing sale
and secure land treatment or disposal
facilities will mean that larger entities
will predominate in the field. ‘fherefre,
in accordance with Section 605(b), no
regulatory flexibility analysis has been
prepared for these regulations.
EPA will re-examine this conclusion
over the next six months, and invites
comment on it together with comment
on other aspects of these regulations.
However, it is certain that any economic
impact on small entities, to the extent
one exists, will not be adverse. These
rules provide a means for hazardous
waste disposal facilities to open.
operate, and serve customers where
none would have existed before. They
therefore operate to expand, not restrict,
the range of opportunity open to
participants in the economy.
Considering this fact, the fact that the
rules will not even take effect for
another six months, and the public need
for speedy action described above, EPA
believes that, even if further study
should suggest the need for a regulatory
flexibility analysis, it is appropriate at
this time to defer preparation of such an
analysis under Section 608.
EPA, within 180 days of the
publication of these rules, will either
affirm its conclusion that no regulatory
flexibility analysis is required, or issue
such an analysis.
C. The Federal Reports Act of 1942. as
Amended
Under the Federal Reports Act of
1942, 0MB reviews reporting
requirements in forms and regulations
which collect identical information from
more than ten persons in order to
minimize the burden on respondents and
the cost to the Federal Government. For
all new regulations containing such
information rdquests OMB’s procedures
require agencies to estimate the site of
the reporting burden, describe who must
report and apply to 0MB for a
clearance.
EPA’s Part 267 regulations impose two
types of reporting requirements: permit
application requirement and reporting
requirements in the permit itself. To the
extent that these requirements
incorporate EPA’s May 19, 1980, Part 264
standards by reference, that have
already been cleared by 0MB The
remaining permit application
requirements, although they seek the
same board general categories of
information (e.g., information on how a
liner will meet the requirements of
§ 267.10), are so site-specific in terms of
the specific information they require and
the reporting burdens they impose that
they are not requests for “identical
information” from more than ten
persona. For this reason, EPA does not
believe that they are subject to 0MB
review under the Act.
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Federal Register / \‘ul 4b. l\ . ti I t-’ridii , F i:iu ’ii;iI 0. U1 / . Oh ,ii,tl . r i
I3ucutise 0MB, in the course of its
review, often makes good suggestions as
to ways to minimize reporting
roquirenients, EPA will be voluntarily
preparing an estimate of the reporting
burden which might be imposed by its
Part 267 regulations and submitting it to
0MB for its review in the near future.
Because the Agency does not expect to
be processing more than 30 or 40 permit
applications under these regulations, the
reporting impact of the regulations, on a
national basis, should be minimal.
(Sections 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.
6924 and 0925)
Dated. January 17. 1981
Douglas M. Costle -
Adzninzstm!or
1. Title 40 of the Code of Federal
Regulations is amended by adding the
following new Part 267:
PART 267—INTERiM STANDARDS
FOR OWNERS AND OPERATORS OF
NEW HAZARDOUS WASTE LAND
DISPOSAL FACILITIES
Subpart A—General
Sec
267 1 Purpocc. scope and applicability.
287.2 Applicability of Part 264 standards
267.3 Duration of Pail 257 s cndards and
their relationship to permits
2117.4 lmm nen1 hazard action.
2675 Additional permit procedures
applicable to Part 267
267.6 Definitions
Subpart B—EnvIronmental Performance
Standard
26710 Environmental performance
st . indard.
Subpart C—Landfills
Applicability
General design requirements
Gencial operating requirements
Closure and pest.closure.
Treatment of wa ie
Additional requirements
Subpart D—Surf ace Impoundments
267.30 Applicability
257.31 General design requirements
26732 Generul operating requirements
207.33 Closure and pmt.closure
267.34 Treatment of waste
257 33 Additional requirements
Subpart E—Land Treatment
267 40 Applicability
26741 General dcsi n requirements
2t ’T 42 General operating reqLiirements
2117.43 Uneaturated zone monitoring
‘2b ’ 44 Closure and post.closure
‘C ’7 45 ‘lreiitnit’nt of aste
.tr 40 Addition,il requirements
Subpart F—Ground Watcr Monitoring
26750 Applicability
SI,’
07 51 Giutmnd-wetci monitnlmg system
267 52 Gr.iund.wutei monitoring
prni.edures
2117 53 Additional requirements
Subpart G—Underground Injection
267.60 Apphcabil.ty
267.61 General design requirements
26762 General operating requirements
267.63 Closure
267.64 Additional requirements.
Authority: Sections 1006, 2202(a). 3004 and
3005 of the Solid Waste Disposal Act, as
amended by the Resource Conserva’ion and
Recovery Act of 1978. as amended. 42 U.S.C.
6905, 691 2(a ). 6924 and 6925
Subpart A—General
§ 287.1 Purpose, scope and apptlcablIlty.
(a) The purpose of this Part is to
establish minimum national standards
that define the acceptable management
of hazardous waste for new land
disposal facilities.
(b) The regulations in this Part apply
to owners and operators of new
hazardous waste landfills, surface
impoundments, land treatment facilities
and Class I underground injection wqjls
(as defined in § 122.32(g) of this
Chapter) that require individual RCRA
permits under 40 CFR Part 122.
(c) The requirements of this part do
not apply ‘to:
(1) A person disposing of hazardous
waste by means of ocean disposal’
subject to a RCRA permit by rule issued
under § 122.26(a) of this Chapter.
(2) A person disposing of hazardous
‘.iste by means of underground
injection subject to a RCRA permit by
rule under § 122.26(b) of this Chapter.
(3) An owner or operator of a POTW
subject to a RCRA permit by rule under
§ 122.26(c) of this Chapter.
(4] The owner or operator of a facility
permitted. licensed, or registered by a
State to manage municipal or industrial
solid i us(e. if the only hazardous waste
the facility treats, stores, or disposes of
is e c1uded from regulation under Parts
262 through 265 and Parts 122 and 124 of
Ihis Chapter by § 261.5 of this Chapter:
(5) The owner or operator of a facility
which treats or stores hazardous waste,
which treatment or storage meets the
c.’iter ld in § 261.6(A) of this Chapter.
except to the extent that § 261 .6(b) of
this Chapter provides otherwise;
(6) A generator accumulating waste
on-s:te in compliance with § 262.34 of
this Chapter;
(7) A farmer disposing of waste
.pc’sticides horn his own use in
compliance with § 262.51 of thus
Cru pter.
(8) The owner or operator of a tot ll
enclosed treatment facility. as defined in
§ 260 10’
(9) The owner or operator of an
elementary neutraliz,ition unit or a
wuste ater treatment unit as defined in
§ 260 10 of this Chapter.
(10) Persons with respect to those
activities that are carried out to
immediately contain or treat a spill of
hazardous waste or material which.
when spilled, becomes a hazardous
waste.
§ 267.2 ApplicabIlity of Part 264 standards.
In addition to the standards contained
in this Part, owners and operators of
new hazardous waste landfills, surface
impoundments, land treatment facilities
and underground injection wells must
comply with § 264.18 and Subparts B. C.
D. E, G and H of Part 264.
§ 267.3 DuratIon of Part 267 standards and
their relationship to permits.
(a) The regulations in this Subpart are
applicable, and will serve as a basis for
issuing permits, to owners or operators
of new hazardous waste landfills
surface impoundments. land treatment
facilities, or underground injection
facilities until final Part 264 regulations
for such facilities become effective or
until February 13, 1983. whichever is
earlier.
(b) Only those owners and operators
of new hazardous wasle landfills,
surface impoundments, land treatment
facilities or underground inJection wells
who have applied for a permit and for
whom public notice of the preparation of
a draft permit has been issued under
§ 124.10 of this Chapter by the date final
Part 264 regulations for these facilities
become effective or (2 years after date
of publication], whichever i curlier.
may be issued permits under the
regulations in this Part.
§ 267.4 imminent hazard action.
Notwithstanding any other provisions
of these regulations enforcement
actions may be brought purcusril to
Section 7003 of RCRA
§ 267.5 AddItional permit procedures
applicable to Part 26?.
(a) The procedures for issuance,
modification, revocation and reissuunce.
arid termination of permits under this
Part aie set forth in Part 124 of this
Chapter In addition, the follo%%’lng
procedures apply to prrmiIs inder Part
267.
(1) Any Iacilit3 for which a draft
permit is prepared pursuant to this Part
is a nia]or hazardous t nste management
facility. A fact sheet shall be prepared
for cdch such facility in accordance with
§ 124 8 lnsli’ud of the “brief summary of
the basis for the draft permit conditions”
requiicd by § 124 0(b)(4). the fact sheet
shall include a detailed discussion of
207.20
207.21
267.22
267 23
26724
26725
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12430 Federal Register I Vol. 46, No. 30 / Friday, February 13, 1981 / Rules and Regulations
basis for the draft permit conditions.
This shall include a demonstration that
relevant factors listed in Subparts C—C
—f this Part were considered and a
wing of how the draft permit reflects
e considerations.
(2) The Administrator shall accept any
petition under § 124.19 of this Chapter
and any appeal under § 124.125 of this
Chapter to review a permit issued under
this Part.
(b) The provisions of Subparts A and
B in Part 122 of this Chapter apply to
permits under Part 267. In addition to
the information required by § 122.4 and
§ 122.25 of this Chapter, the applications
for permits under this Part must include
the following information:
(1) For r ‘andfill, sufficient
informatk a to demonstrate compliance
with Subparts C and F of this Part.
(2) For a surface impoundment,
sufficient information to demonstrate
compliance with Subparts D and F of
this Part.
(3) For a land treatment facility,
sufficient information to demonstrate
compliance with Subparts E and F of
this Part.
(4) For an underground injection well,
sufficient information to demonstrate
compliance with Subpart C of this Part.
§ 267.6 DefInitions.
Unless otherwise specified in this
Part, terms used in this regulation are
9ned in § § 260.10 and 122.3 of this
ipter.
Subpart B—Environmental
Performance Standard
§ 267.10 EnvIronmental performance
standard.
All new landfills, surface
impoundments, land treatment facilities
and undergmund injection wells shall be
located, designed, constructed, operated.
maintained and closed in a manner that
will assure protection of human health
and the environment. Protection of
human health and the environment shall
include, but not be limited to:
(a) Prevention of adverse effects on
ground-water quality considering:
(1) The volume and physical and
chemical characteristics of the waste in
the facility, including its potential for
migration through soil or through
synthetic liner materials;
(2) The hydrogeological
characteristics of the facility and
surrounding land;
(3) The quantity, quality and
directions of ground-water flow;
(4) The proximity and withdrawal
rates of ground.water users;
r5) The existing quality of ground-
er, including other SOUrcOS of
contamination and their cumulative
impact on the ground-water:
(6) The potential for health risks
caused by human exposure to waste
constituents;
(7) The potential damage to wildlife,
crops, vegetation and physical
structures caused by exposure to waste
constituents;
(8) The persistence and permanence
of the potential adverse effects; and
(b) Prevention of adverse eftects on
surface water quality considering:
(1) The volume and physical and
chemical characteristics of the waste in
the facility;
(2) The hydrogeological
characteristics of the facility and
surrounding land, including the
topography of the area around the
facility;
(3) The quantity, quality and
directions of groundwater flow:
(4) The patterns of rainfall in the
region:
(5) The proximity of the facility to
surface waters;
(6) The uses of nearby surface waters
and any water quality standards
established for those surface waters ;
(7) The existing quality of surface
water, including other sources of
contamination and their cumulative
impact on surface water
(8) The potential for health risks
caused by human exposure to waste
constituents;
(9) The potential damage to wildlife,
crops, vegetation and physical
structures caused by exposure to wante
constitutents;
(10) The persistence and permanence
of the potential adverse effects: and
(c) Prevention of adverse effects on
air quality, considering:
(1) The volume and physical and
chemical characteristics of the waste in
the facility, including its potential for
volatilization and wind dispersal;
(2) The existing quality of the air,
including other sources of contamination
and their cumulative impact on the air;
(3) The potential for health risks
caused by human exposure to waste
constitutents;
t4) The potential damage to wildlife.
crops, vegetation and physical
structures caused by exposure to waste
constituents;
(5) The persistence and permanence
of the potential adverse effects; and
(d) Prevention of adverse effects due
to migration of waste constituents in the
subsurface environment, considering:
(1) The volume and ph ,sical and
chemical characteristics of the waste in
the facility, including its potcntiol foi
migration through soil;
(2) The geologic characteristics of the
facility and surrounding land:
(3) The patterns of land use in the
region:
(4) The potential for migration of
waste constituents into sub-surface
physical structures;
(5) The potential for migration of
waste constituents into the root zone of
food-chain crops and other vegetation;
(6) The potential for health risks
caused by human exposure to waste
constituents:
(7) The potential damage to wildlife.
crops, vegetation and physical
structures caused by exposure to waste
constituents: and
(8) The persistence and permanence
of the potential adverse effects.
Subpart C—Landfills
§ 267.20 Applicability.
The regulations in this Subpart apply
to owners and operators of new
facilities that dispose of hazardous
waste in landfills.
§ 267.21 General design requirements.
(a) Each landfill must include a liner
designed to comply with § 267.10 of this
Part. The design of the facility liner must
reflect a consideration of:
(1) The physical and chemical
characteristics of the waste in the
facility;
(2) The pressure head of leachate on
the liner; -
(3) Climatic conditions in the area;
(4) The permeability of the liner
material, including compaction density
and moisture content where earthen
materials are present;
(5) The physical and chemical
properties of the soil underlying the
facility that supports any emplaced
liner; and
(6) The potential for damage to the
liner system that could occur during
installation of any emplaced liner.
(b) Each landfill must include a
leachate and runoff control system
designed to comply with § 267.10 of this
Part. The design of the facility leachate
and runoff control system must reflect a
consideration of:
(1) The physical and chemical
characteristics of the waste in the
facility:
(2) Climatic conditions in the area;
(3) The volume of leachate or
contaminated runoff that could be
produced at the facility; and
(4) The available options for managing
any leachate or contaminated runoff
that is collected at the facility.
§ 267.22 General operating requirements.
(a) Incompatible wastes, or
incompatibic waste and materials, must
-------
not be placed in the same landfill, unless
§ 264.17(b) is complied with. The waste
analysis plan required by § 264.13 must
include the analysis needed to comply
with this paragraph.
(b) Any emplaced liner material must
be installed in a manner that will protect
the function and physical integrity of the
liner.
(c) The leachate and runoff control
system must be operated and
maintained in a manner that will comply
with § 267.10 of this Part. The
procedures for operating the leachate
and runoff control system must reflect a
consideration of:
(1) The volume of leachate or
contaminated runoff produced at the
facility;
(2) The capacity of any leachate or
runoff collection device at the facility;
(3) Climatic conditions in the area;
and
(4) The quality of the leachate or
runoff produced and the available
alternatives for managing any leachate
or contaminated runoff produced at the
facility.
(d) The landfill must be inspected at a
sufficient frequency to assure
compliance with § 267.10 of this Part.
§ 267.23 Closure and post-closure.
(a) A landfill must be closed in a
manner that will comply with § 267.10 of
this Part. Closure must include
placement of a final cover over the
landfill, and the closure plan under
§ 264.112 of this Chapter must specify
the function and design of the cover.
Proper closure of a landfill must reflect a
consideration of:
(1) The type and amount of waste in
the facility:
(2) The mobilIty and expected rate of
migration of waste:
- (3) Site location, topography and
surrounding land uce;
(4) Climatic conditions in the area:
(5) Characteristics of the cover
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
cover and
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site.
(b) A landfill must he maintained in a
manner that complies with § 267.10 of
this Part during the post-closure period.
The post-closure plan under § 264.116 of
this Chapter must specify the
procedures that will be used to satisfy
this paragraph. Proper maintenance of a
landfill during the post-closure period
must reflect a consideration of:
(1) The type nnd amount of waste in
the facility:
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use;
(4) Climatic conditions in the area;
(5) Characteristics of the cover
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
coven
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site; and
(7) The maintenance of any ground-
water monitoring system or leachate
and runoff control system at the facility.
§ 267.24 Treatment of waste.
The Regional Administrator may
waive any of the requirements in
§ § 267.21, 287.22 or 267.23 of this
Subpart where necessary to achieve
treatment of hazardous waste in a
landfill, provided that the waiver does
not result in noncompliance with
§ 267.10.
§ 267.25 Additional requirements.
The Regional Administrator may
place additional requirements on
owners and operators ornew landfills.
besides those otherwise required by this
Subpart. where necessary to comply
with § 267.10 of this Part.
Subpart D—Surface Impoundments
§ 267.30 Applicability.
The regulations in this Subpart apply
to owners and operators of new
facilities that dispose of hazardous
waste in surface impoundments.
§ 267.31 General design requirements.
(a) Each surface impoundment must
include a liner designed to comply with
§ 267.10 of this Part. The design of the
facility liner must reflect a consideration
of:
(1) The physical and chemical
characteristics of the waste in the
facility:
(2) The pressure head on the liner;
(3) Clime tic conditions in the area;
(4) The permeabIlIty of the liner
material, including compaction density
and moisture content where earthen
materials are present:
(5) The physical and chemical
properties of the soil underlying the
facility that supports any emplaced
liner; and
(0) The potential for damage to the
liner system that could occur during
installation of any emplaced liner.
(b) Each surface impoundment must
be designed so as to prevent
overtopping due to wind and wave
12431
8Ctjo O% f 1jj -- ‘r
Combination th,•,
(c) Where d k,, re ..‘ t C surId
the d.’&.-i _ :
dQsignedtoComp!. :‘ I i’ iDol this
Part. The design of or.) i : d kes
must reflect a Conijdera -i cit
(1) The stZuctu,al tntc,i r.t ,f thC dike
including the effects of plants arid
burrowing animals on earthcm dukes.
(2)The potential for water eroblun of
the dike; and
(3)The potential for wind erosion of
the dike.
§ 267.32 General Operating requirements.
(a) Incompatible wastes, or
incompatible wastes and materials,
must not be placed in the same surface
impoundment, unless § 264.17(b) is
complied with. The waste analysis plan
required by § 264.13 must include the
analyses needed to comply with this
paragraph.
(b) Any emplaced liner material must
ber installed in a manner that will
protect the function and physical
integrity of the liner.
(c) The surface impoundment must be
operated so as to prevent overtopping
due to wind and wave actio:i,
overfilling, precipitation or any
combination thereof.
(d) The surface impoundment must be
inspected at a sufficient frequency to
assure compliance with § 267.10 of this
Part.
§ 267.33 Closure and Post-closure.
(a) A surface impoundment must be
closed in a manner that will comply
with § 267.10 of this Part. Closure must
include placement of a final cover over
the surface impoundment, and the
!osure plan under § 264.112 of this
Chapter must specify the function arid
design of the cover. Proper closure of a
surface impoundment must reflect a
consideration of:
(1) The type and amount of waste in
the facility, including the omouni of free
liquids;
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use;
(4) Climatic conditions in the area;
(5) Characteristics of the cover
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope and type of vegetation on the
cover;
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site; and
(7) The potential for eliminnting free
liquids from the facility.
Federal Register / Vol. 46, No. 30 I Fritiav, February 13 1981 Rules ari,j Ru— -. .‘
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12432 Federal Register I Vol. 46; No. 30 I Friday, February 13, 1981 I Rules and Regulations
(b) A surface impoundment must be
maintained in a manner that complies
with § 267.10 of this Part during the post-
closure period. The post-closure plan
1 er § 264.118 of this Chapter must
ify the procedures that will be used
- satisfy this paragraph. Proper
maintenance of a surface impoundment
during the post-closure period must
reflect a consideration of:
(1) The type and amount of waste in
Lhe facility; -
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surroupding land use;
(4) Climatic conditions in the area;
(5) Characteristics of the cover
ncluding material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
cover;
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site; and
(7) The maintenance of any &ound-
water monitoring system at the facility.
§ 267.34 Treatment of Waste.
The Regional Administrator may
waive any of the requirements in
§ 267.31, 267.32 or 267.33 of this
Subpart where necessary to achieve
treatment of hazardous waste in a
rface impoundment, provided that the
ver does not result in
compliance.
§ 267.35 AdditIonal requirements.
The Regional Administrator may
place additional requirements on
owners and operators of new surface
impoundments, besides those otherwise
required by this Subpart, where
necessary to comply with § 207.10 of
this Part.
Subpart E—Land Treatment
§ 267.40 ApplicabIlity.
The regulations in this Subpart apply
to owners and operators of new
facilities that dispose of hazardous
waste in land treatment facilities.
§ 267.41 General design requirements.
Each land treatment facility must
include a runoff control system desigi ed
to comply with § 267.10 of this Part. The
design of the facility runoff control
system must reflect a consideration of:
(a) The physical, biological and
chemical characteristics of the waste in
the facility;
(b) Climatic conditions in the area;
Ic) The volume of runoff that could be
iluced at the facility: and
(d)The available options for managing
any contaminated runoff that is
collected at the facility.
§ 267.42 General operating requirements.
(a) Incompatible wastes, or
incompatible wastes and materials,
must not be placed in the same land
treatment facility, unless § 264.17(b) is
complied with. The waste analysis plan
required by § 264.13 must include the
analyses needed to comply with this
paragraph.
(b) The runoff control system must be
operated and maintained in a manner
that will comply with § 207.10 of this
Part. The procedures for operating the
runoff control system must reflect a
consideration of:
(1) The volume of contaminated runoff
produced at the facility;
(2) The capacity of any runoff
collection device at the facility;
(3) Climatic conditions in the area;
and
(4) The quality of the runoff produced
and the available options for managing
any contaminated runoff from the
facility.
(c) The land treatment facility must be
operated to treat the waste in the
facility to the extent necessary to
comply with § 267.10 of this Part.
(d) If food-chain crops are grown at
the facility, the facility must be operated
in a manner designed to protect the
quality of those crops to the extent
necessary to comply with § 267.10 of
this Part. Proper operation of a land
treatment facility on which food-chain
crops are grown must reflect a
consideration of:
(1) The characteristics of the soil,
including the pH:
(2) The volume and chemical,
biological and physical characteristics
of the waste in the facility:
(3) The type of crop to be grown;
(4) The manner in which such crop
marketed (e.g. direct sale to consumers,
use as an animal feed grain);
(5) The potential future uses of the
facility:
(6) The potential for crop uptake of
waste constituents; and
(7) The potential exposure of workers
who handle the crop to waste
constituents.
(e) The treatment facility must be
inspected at a sufficient frequency to
assure compliance with § 267.10 of this
Part.
§ 267.43 Unsaturated zone monitoring.
In addition to the ground-water
monitoring program required in Subpart
F of this Part, a land treatment facility
must have an unsaturated z3ne
monitoring program which will assure
compliance with § 267.10. An
unsaturated zone monitoring program
must include an unsaturated zone
monitoring system at the facility or at a
representative test plot, as well as
procedures for sampling, analysis and
evaluation of data. The unsaturated
zone monitoring program required by
this paragraph must reflect a
consideration of:
(a) The placement and depth of
monitoring wells that is necessary to
obtain a representative sample of the
success of waste treatment in the
facility;
(b) Soil characteristics, including its
pH, its permeability and the level of
microbial activity in the soil;
(c) Climatic conditions in the area;
(d) The potential for rapid migration
of waste constiti ents through the soil;
and
(e) The accessibility of the monitoring
system devices for maintenance and
repair.
§ 267.44 Closure and post-closure.
(a) A land treatment facility must be
closed in a manner that will comply
with § 267.10 of this Part. The closure
plan under § 264.112 of this Chapter
must specify the measures which will be
used to satisfy this paragraph. Proper
closure of a land treatment facility must
reflect a consideration of:
11) The type and amount of waste
applied to the facility;
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use:
(4) Climatic conditions in the area,
including the amount, frequency and pH
of precipitation;
(5) Geologic and soil profiles and
surface and subsurface hydrology of the
site, including cation exchange capacity,
total organic carbon and pH of the soil;
and
(6) Unsaturated zone monitoring
information obtained under § 267.43.
(b) A land treatment facility must be
maintained in a manner that complies
with § 267.10 of this Part during the post-
closure period. The post-closure plan
under § 264.118 of this Chapter must
specify the procedures that will be used
to satisfy thvi paragraph. Proper
maintenance of a land treatment facility
during the post-closure period must
reflect a consideration of:
(1) The type and amount of waste
applied to the facility;
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use:
-------
ederat i•gist f t ‘.0, . ‘ tcg i,, • 1
(4) Climatic condilions in the urea. -
including the amount, frequency and p11
of precipitation;
(5) Geologic and soil profiles and
surface and subsurface hydrology of the
sue. including cc lion exchange capacity.
total organic carbon and pH of the soil.
(6) Unsaturated zone monitoring
information obtained under § 2(37.43.
and
[ 7) The thaintenancc of any ground-
water monitoring system at the facility
§ 267.45 Treatment of waste.
The Regional Administrator may
waive any of the requirements in
§ 267.21, 267.22 or 267.23 of this Subpeirt
where necessary to achieve treatment of
hazardous waste in a land treatment
facility, provided that tho waiver does
not result in non-compliance with
§ 267.10.
§ 267.46 Additional requirements
The Regional Adnunistiator ma
place additional requirements on
owners or operators of new land
treatment facliflies, besides those
otherwise required by this Subpart.
where necessary to comply with § 267.10
of this Part.
Subpart F-—Ground-Water Monitoring
§ 267.50 ApplicabilIty.
Each new hazardous waste landfill.
surface impoundment. or land treatment
facility must hove a ground-water
monitoring program. winch includes a
ground-water monitoring system,
procedures for sampling, analysis and
e aIuation of ground-water data, end
appropriate response procedures.
§ 267.51 Ground water monitoring system
The ground-water system required by
this Subpart must be capable of
- determining the facility’s impar. on
ground-water in the uppermost aquifer
so as to assure compliance with § 25’ 110
of this Part. The design of the ground-
water monitoring system must reflect a
consideration of:
(a) The placement and depth of
monitoring wells that is necessary to
9 btein a representative sample of
constituents in the uppermost aquifer.
including those pre3ent in the ground-
water upgradient from the facility:
(b) Measures such as casing hich
maintain the integrity of the monitoring
sell bore hole: end
(c) Measures which prevent
contamination of ground-water samplet..
§ 267.52 Ground water monitoring
proceduree.
(a) Tho ground-water monitoring
procedures required by this Subpart
must hc apabhe of assuring complianre
tb § 207.10 of this Part, Tie’
pincedures must reflect a cniisider itioi i
of’
(1) Sample collection procedures;
(2) Sample preservation and shipment
procedures:
(3) Analytical methods;
(4) Chain of custody control; and
(5) Evaluation procedures, including
methods for determining the extent and
rate of migration of waste constituents.
(b) The ground-water monitoring
procedures required by this Subpart
must include appropriate procedures for
when the ground-water monitoring
program indicates that the facility is not
in compliance with § 267.10 of this Part.
Such response procedures must be
contained in the contingency plan
required by Subpart D of Part 264
§ 267.53 Additional requirements.
‘J’he Regional Administrator may
place additional ground-water
monitoring requirements on owners or
operators of facilities subject to this
Part. besides those otherwise required
by this Subpart, where necessary to
comply with § 267.10 of this Part.
Subpart G—Underground Injection
§ 267.60 Applicability.
‘l’he regulations in this Subpart apply
to owners and operators of now
f icititics that dispose of hazard waste in
underground injection wells which are
classified as Class I under § 122.32(a) of
this Chapter.
§ 267.61 General design requirements.
An injection well must be designed to
comply with § 267.10 of this Part. The
facility design must include measures
(as. casing. tubing and packer set) to
prevent the escape of injected fluids to
the area above the zone of injection.
§ 267.62 General operating requirements.
An injection well must be operated in
a manner that will comply with § 26.10
of this Part. The methods for operating
Ihe injection well must reflect a
r.onsidnration of’
(a) The volume and ph sicaI and
chemical characteristics of the waste
injected in the well;
(b) The injection pressuire and
(c ) Monitoring measures to assure that
the mechanical integrity of the well is
ma iii ta med
§ 267.63 Ciosure.
An injection tvm ’ll mu5t be plugged and
senind at closure to prevent the escape
of injected fluids to the aica above the
‘,‘J)fl(’ ci injection.
§ 261.64 Additional requirements.
The Regional Administrator mn
pl ire additional requirements on
ot ners and opuritors of new injection
clls. besides those otherwise required
by this Subpart. where necessary to
comply with § 2(37110 of this Part.
PART 1 22— [ AM ENDED]
2. Part 122 of Title 40 of the Code of
Federal Regulations is amended by
revising § 1 22.11(c) to read as follows:
§ 122.11 Requirements for recording and
reporting of monitoring results.
* • —
(c) Applicable reporting requirements
based upon the impact of the regulated
activity and as specified in Parts 264.
266 and 267 (RCRA) P, rt 146 (UIC),
§ 122.62 (NPDES). and, when applicable.
40 CFR Part 230 (404). Reporting shall be
no less frequent than specified in the
above regulations.
3. Part 122 of Title 40 of the Code of
Federal Regulations is nmerided by
revising § 122.29 to reas as follows:
§ 122.25 EstablishIng RCRA permit
conditions.
(Applicable to State RCRA pro rarns. SN
§ 123.7)
In addition to the conditions
established under § 122 8(a). each RCRA
permit shall include permit conditions
necessary to achie a complia’ice with
each of the applicable requirements
specified in 40 CFR Paris 264. 206 and
267. lii satisfying this provision, the
I)irector may mncurpor itt.’ apphcabk.
requirements of 40 CFR Parts 264, 260
and 267 directly into the permit or
establish other permit condmiions that
are based on these Parts.
l R Oc,c 81—23D5 I ilc•d —12—Iml B 15 n’
BILLING CODE 6560-30-M
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10
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Rules and Regulation.
27333
the amendments added a new Section
1425 to the Act. SectIon 1425 establishes
an alternative method for a State to
•blate prima! enforcement
responsibility for thai. portions of Its
Underground injection Control (UIC)
program related to he recovery and
production of oil and gas. More
ipeclilcally, ‘‘ In lieu of the
showing required under subpar,r.pb
(A) of section 1422(b)(1) the State may
demonstrate that such portion of the
State program meets the requirements of
subparagraphs (A) through (D) of
section 1421(b)(1) and represents an
effective program’’ • to prevent
underground Injection which endangers
drinking water eources.
Section 1422(bJ(1) of the SDWA
specifies that a State. In order to obtain
approval for its UIC program. must
make a satisfactory showing that It has
ladopted and will implement a program
Ithat meets the requirements of
regulatIons Issued by the Administrator.
ISuch regulations have been promulgated
it 40 CFR Parts 122. 12:. 124 and 148.
This notice Is intended to provide
guidance for the Implementation of the
alternative demonstration provided for
In the new Section 1425. It contains
Information on: (13 how States may
apply for approval under Section 1425
and (2) the criteria the Environmental
Protection Agency (EPA) will use In
approving or disapproving applications
under Section 1425.
DATC Effective date: This guidance Is
Issued as Interim final. it becomes
effective upon May19. 198L
COMMENT DAft EPA will accept public
comments on this document until July
20.1981.
ADDuass: Comments should be sent to
Mr. Thomas E. Belk. Chief, Ground
Water Protection Branch. Office of
Drinking Water (‘WH$50J.
Environmental Protection Agency. 401 M
Street. SW, Washington. DC. 20460.
Such comments, together with other
relevant materials, will be maintained at
the same adlreu.
P0* PU*TNE* IN 0RMATI0N CDNTACT
1*. Thomas S. Belk (202) 428-3934 .
0MB ApprovaL This guIdance his been
cleared for publication by the Olfics of
Management and Budget.
Dated: ilay 11.1981.
Waft., C. laibro. ft..
Acthtg Mmin!ebvtez.
Tabli if Contonts
s•
5: L a 4L
ENVIRONMENTAL PROTECTION
AGENCY
4ocFRa I
1US41
State Underground injection Control
Prngrams
AQCNcY Environmental Protection
Agency.
£Cnott Interim Final Guidance and
Request for Public Comment.
sutsu*itr. The Safe Drinking Watar Ant
of 1974 (SDWA) was amended on
December 5.1680. Among other changes.
I I
U —
at_____
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27334 . Federal Register I Vol. 46. No. SB I Tuesday, May 19 . 1981
I Rules and Regulations
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The 1980 amendments to the Safe
• j g Water Act (SDWA) added.
Section 1423 whIch provides an
Cematlve means for States to acquire
primary enforcement responsibility for
the control of underground Injection
related to the recovery and production
of oil and natural gu. This document
contains guidance on: (1) how States
may appiy for approval under Section
1425; and (2) the criteria EPA will use in
approving or disapproving applications
under Section 1425.
EPA Is mindful of the fact that, to
enacting SectIon 1425, Congreu
Intended that States be offered an
alternative to the detailed requirements
of the regulations promulgated t 40 C I ? .
Parts 122.123.124 and 145. and that
State programs to control injections
related to oil and gas production hi
considered on their merits.
Nevertheless, Section 1425 does require
a State to demonstrate that such portion
of Its Underground Injection Control
(UICJ program: (1) meets the
requirements of Section 1421(b)(1J (A)
through (D): and (23 represents an
effective program to prevent injection
which endangers drinking water
sources. Further, SectIon 1425 requIres
the Administrator of EPA to approve or
;approve such portion of a Stale’s UIC
ram for primary enforcement
ponsibility based on his judgment of
whether the State has succeeded In
making the required demonstrations.
Consequently. EPA believes that
States are entitle to guidance en the
Implementation of Section 1425. The
- procedures and criteria contained in this
document were developed in
consultation with interested States.
They represent a model” State
application and program which, in
EPA’s view, meet the requirements of
the amended SDWA. A State
application which conforms to these
procedures and meets the suggested
aiterla should be approvable under
Section 1425.
A State may choose to apply In a
different form and make demonstrations
different from those suggested in this
document EPA will consider such
applications. However, they will have to
be reviewed on a case-by.case basis to
determine whether they meet the
requirements of the Act. Such reviews
may involve additional requests for
information, more time and less
assurance of ultimate approval.
This guidance and the regulations
promulgated 1140 CFR Parts 122.123.
124 and 145 are both aimed at achieving
the same fundamental objective: the
protection of underground sources of
drinking water from endangerment by
well injection. There are, however, some
slgnlficant differences between them.
The most Immediate difference Is that
one isa regulation and the other Is
guidance. This was a deliberate choice
on the part of the Agency because It
doe. not view the new Congressional
mandate as requiring another set of
detailed regulations for It.
ImplementatIon. In any event, there Is
Insufficient time to develop such
regulations In light of the short time
remaining before State program
submissions are due under Section
1422(b)(IXA) of the SDWA.
A further difference Is that State
program submissions wider Section
1422(b)(1} of the SDWA are required to
meet a different legal standard from
State program submissions under
Section 1425. Under Section
1422(bJ(1)(A3. the State Is required to
make a showing that its UIC program
“meets the requirements of regulations
in effect under section 1421 “
Under Section 1425, the State Is required
to demonstrate that the Class II portion
of Its UIC program meets the
requirements of Section 1421(bJ(1) (A)
through (D3 and represents an effective
program loprevent underground
injection which endangers drinking
water sources.
As a consequence of these
differences, this guidance Is much less
detailed than the regulation, and leaves
a great deal more discretion to the State
to develop and EPA to approve Slate
LJIC programs wider Section 1425.
*0 ApplicatIons
£1 Definition
For the purposes of Section 1425 of the
SDWA:
1. The underground Injection of brine
or other fluids s hfch are brought to the
surface In connection with oil or natural
gas production; and
5. Any underground Injection for the
secondary or tertiary recovery of oil or
saImsi gas: and
3. Any Injection for the storage of
hydrocarbons which are liquid at
standard temperature and pressure;
shall be defined as ‘Class II’ Injections
or wells.
£2 Need for on Undeigrowid Injection
Control (UIC) Pro rem
Any State which has Class Dwells
must have an UIC program to assure
that such wells do not endanger
underground sources of drinking water
(USDWs). A State may submit Its Class
II program to EPA for approval. U EPA
approves the program, the State has
primary enforcement responsIbility for
that portion of Its UIC program.
• If. State chooses not to appiy, or If Its
program Is disapproved, or If subsequent
to approval the State loses primary
enforcement responsibility because the
Administrator determines, under Section
1425(c)(2). that the demonstration Is no
longer valid, EPA must prescribe and
Implement a program in that State.
When EPA Implements a Class fl
program for a State, It will do so in
accordance with the requirements of 40
cFRPart s Iz2, 124and141
A State which does not have any
Class I I wells need not develop a Class
II control program In order to qualify for
primacy under the UIC program. Under
the regulations t 40 CFR 123.51(d). such
a State only needs to demonstrate that
Class II wells cannot legally occur until
the State has developed an approved
program to regulate such injections.
£3 Applications Under Section 2425
Any State which has Class Dwells
may, et Its option apply for primary for
Its Class II UIC program elthen (1) under
the regulations st4O CFR Parts 122.123,
124 and 145. or (2) under Section 2425 of
the SDWA.
£4 When Should Application be
Mode?
House Roport No. 96-1348.
accompanying the 1980 amendments.
states on page 5 that: “The Committee
expects that alternative demonstrations
will be submitted on the same schedule-
Accordingly. as demonstratIons req&
for state programs meeting Federal
regulations promulgated under Section
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Federal Register I Vol. 4O No. 06 1 Tuesday. May 19. 1981 I Rules and Regulation.
27335
‘lfb) State. have ro days from July
. to submit applications. or until
“aIils period may be extended by up to
another V0 days by the Regional
AdminIstrator, for ‘good causa” or
until Jaiuior/ 1& ior a
A State need not wait until ft Is ready
to submit Its application total! classes
of wells. EPA will entertalnparllal
applications fm primacy as long as the
program for which approval Is sought
covers: (1) all elements of a progra . to
regulate a particular class or classes of
Inlection practices even If the class es
classes Involve the Jurisdiction of more
than one State agency or (2) all
elements of a program to regulate all the
classes or types of wells within he
Jurisdiction of a single State agency.
However, Ifs State submits a partial
application, the alternative
demonstration under Section 1425 may
be used only for the Class I I portion of
the application. The portion of the
program covering types of practices
other than Class II will have to meet the
lequfrements of 40 CFR Pans 122, IA
124 and 146.
U L)7ecU of. PwtiaMpp!ixUoa
The recent amendments have changed
tlon 1443 of the SDWA so thata
r may receive grant support until
, 1982. Alter that date, It must have
achieved full primacy In order for grant
eligibility to continue. As a
consequence. a State may receive
partial primacy for Its Class II con ol
program and continue to receive grants:
(1) If It has obtained an extension for
pubmitling the remainder of Its
spplicatlos: (2) until it declares its -
Intention not to file any further
upplicatlons; (3) untIl EPA terminates Its
rant for cause; or (4) untIl July 1982,
whichever Is soonest.
It. State receive, full primacy, Its
sliglbility for grants will, otcourse,
sontlius.
P0 ementa of an Appfleatbon f
Primacy under Section 1425
11 Elements of a Slate Apph’coilon
A complete State submission should
tontain the following elements:
a. a letter from the Governon
fr a description of the progra
ca statement of legal authority;
d. copies of the pertinent statutes and
egulations:
a. copies of the pertinent State forms:
md
I. a signed copy of a Memorandum of
- wenienL
She natwe of these elements Is
lescribed further below.
U l , .tt.r ham the Governor
The letter from the Governor should.
a. request approval of the State’s
program for primacy under the UIC
fr specify whether approval Is sought
under Section 1425 of the SDWA or
under 40 Q ’R Parts 122.123,124, and
141i and
c.afflrmthat the State Isw lfllngand
able to wry out the program described.
a, hu am scr(piloa
A State’s application Is expected to
contain a Ml description of the program
for which approval Is sought. to
sufficient detail to enable EPA to make
the Judgments outlined In Section 5
below. Such a description should:
a. Specify the sth cture. coverage and
scope of the prograun
b Specify the State permitting process
and address, to the extant applicable.
the following elements:
1. Who applies for the permit or the
authorization by rtde
3. SIgnatories required for permit
application and reports:
a. Conditions applicable to permits.
Including: duty to comply with permit
conditions, duty to reapply, duty to halt
or reduce activity, duty to mitigate,
proper operation and maintenance,
permit actions, property rights,
Inspection and entry monitoring. record-
keeping. and reporting requirements;
4. ComplIance schedules:
I Transfer of permits:
5, Termination of permits:
?. Whether area permits or project
permits are grnntedi
I Emergency permits:
S. The availability and use of
variances and other discretionary
exemptions to progra .mitIc
requirements: and -
10. AdministratIve and ludiclal
procedures for the modification of
_ts.
c Des 1be the operation of any rules
used by lb. State toregulate Claasfl
wells:’
d. Describe the technical requirements
applied to operator. by the State
a. Include a description of the State’s
procedures for monitoring. Inspection
and requiring reporting from operators:
I Discuss the State’s enforcement
program. e.g..
1. AdminIstratIve procedures for
dealing with violations:
3. Nature and amounts of penalties.
Sne. and other enforcement tools:
3. Criteria for taking enforcement
actions: and
4. U the State I. seeking approval for
an existing program. snn M kry data em
A. Past practice in the use of
enforcement tools;
a Current compliance!non.
compliance with State requirements;
C. Repeat violations at the same well
or by the name operator at different
we l ls:
DWell failure rates: and
E. LISDW contamination cases based
an actual field work and citizen
complizints.
g. Detail the State’s staffing and
resources. and demonstrate that these
are sufficient to carry out the proposed
program.
bit more than one State agency is
Involved In the Class U program.
describe their relationships with regard
to carrying out the Class 11 program:
I . Contain a reasonable schedule for
completion or an Inventory of Class U
wells In the Stats:
J. Include the procedures for
exempting aquifers, a list of the aquifers
or portions of aquifers proposed for
exemption at the time of application.
and the reasons for the proposed
exemptions, unless these have been
described In the partial applications -
made by the Stats:
fr Contain a plan (Including the basis
for assigning priorities) for the review of
all existing Class II well, in the State
WithIn five years of program approval to
assure that they meet current non-
endangerment requirements of the State
(this may include permit modification
and reissuance, If appropriate);
I. Describe State requirements for
ensuring public participation In the
process of Issuing permits and modifying
permits In the case of substantial
changes In the project area. Injection
pressure or the Injection horiros: and
m. Describe State procedures for
responding to complaints by the public.
£4 Statement of LegoiAuthority
‘The statement of legal authority Is
Intended to assure EPA that the State
has the legal authority to carry out the
program described. It may be signed by
a competent legal officer of the Stats, for
example. the Attorney General. the
Counsel for the responsible State
agency, or any other officer who -
represents the Agency In legal matters.
The statement may. at the option of
the State, consist of. Ml analysis of the
legal basis for the State program.
Including case law as appropriate. Or
the statement may consist of a simple
certification by the legal representative
that the State has adequate authority to
carry out the described progam. If the
State chooses to submit a certification,
the program description shoul9 detail
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27338 Federal Register F Vol. 46, No. 96 I Tuesday, May 19, 1981 1 Rules end Regulations
he legal authority on which the vailoul
.1 ents of the States program rest.
Copies of Stobiles and Regzdoilont
The application should contain copies
of ill applicable State statutes. rules and
regulations. including those governing
State administrative procedures.
3.8 Cop!.. of Stole Fo ma
The application should contain
examples of .11 forms used by the State
In administering the program. Including
application forms, permit forms and
aeportlog foums.
27 Mernoronduai of Agmavat
The bead of the cognizant Stat.
agency and the EPA Regional
Administrator shall execute s
memorandum of agreement which shall
set forth the terms under which the State
will cariy out the described program
and EPA will exercise fts oversight
responsibility. A copy of such an
agreement signed by the Director of the
State agency, shall be submitted as part
of the application.
At. minimum. the memorandum of
agreement should:
a. Include a commitment by the State
that the program will be carried out as
‘ escribed and be supported by an
ropriate level of staff and resources:
Recognize EPA’s right of access to
• y pertinent State files;
c. Specify the procedures (eg..
notification to the State arid
participation by State officials)
governing EPA Inspections of wells or -
operator records:
d. Recognize EPA ’s authority to take.
Federal enforcement action under
SectIon 1423 of the SDWA in cases
where the State fails to take adequate
enf?1cement actlons
e. Agree So provide EPA with an
annual report on the operation of the
State program, the content of which may
be negotiated between EPA and primacy
States from time to time;
L Provide that aquifer exemptions for
Class U wells be consistent with aquifer
exemptions for the rest of the tflC
program
g. When appropriate. may include
provisions for joint processing of
permits by the State and EPA Ice
facilities or activities which require
permits from both EPA and the State
under different programs; and
is. Specify that If the State proposes to
allow any mechanical integrity tests
other than those specified or justified in
“c program application, the Director
I notify the cognizant Regional
nInistrator and provide enough
information about the proposed test that
• Judgment about Its usefulness and
reliability way be made.
U Process for Approval or
Disapproval .1 Application
4.2 Public PartIcIpation by Slot..
Section 1425 relieves State, of the
responsibility to hold public hearings or
afford an opportunity for public
comment prior to submitting in
application So EPA. Therefore, when -
application is made by a State under
SectIon 1425, It may. but need not.
provide an opportunity for public
bearings or comments.
4j Complete Applications
WIthin 10 w&klng days of the receipt
of. final application, EPA will
determine whether the application is
complete or not and so notify the State
In writing. U the application Is found to
be Incomplete It will be returned to the
Stat. with specific requests for
additional material or changes.
However, the State may. at its option.
insist that EPA complete Its review of an
application u submitted.
• SPA Review’
a. EPA ha. 90 days to approve or
disapprove an application. U EPA finds
thai the application Is complete, the -
review period will be deemed to have
begun on the date the application was
received In the cognizant Regional
Office. If an application has been found
to be incomplete and the State insists
that EPA proceed with Its review of the.
application as submitted, the review
period will begin on the date that EPA
receives the State’s request to proceed
In. writing. ‘fise review period may be
extended by the mutual consent of EPA
and the State.
is. Within the 9O.day period. EPA will
request public comments and provide an
opportunity for public hearing on each
application, In the applying State. In
accordance with 40 CFR 123.54(c) and
(411 the State has not done so. EPA
will hold at least one psblic hearing In
the Stat..
alt. State’s application Is approved.
the State shall have primary
miforcement responsibility for Its Class
U program.
d. U a Stste’. application Is
disapproveit EPA intends within on
days of disapproval oras soon
thereafter as feasible, prescribe a Class
U program for the State In accordance
with Section 1422(c) of the SDWA and
40 DR Parts 322,124 and 346.
1.0 Criteria for Approving or
Disapproving State Programs
£2 General
Section 14:5 of the SDWA states that:
‘ the State may demonstrate that
(the Class U] portion of the State
program meets the requirement. of
subparagraph. (A) through (D) of
Section 1421(b,iI) and represents an
affective program (including adequate
recordkeeplng and reporting) to prevent
enderground injection which endangers
drinking water sources.”
Thus Section 1425 requires that a Slate.
In order to receive approval for its Class
I I program wider the optional
• demonstration, make a successful
showing that Its program meets five
conditions:
a. Section 1421(b)(1J(A) requires that
an approvable State program prohibit
any underground injection In such State
which is not authorized by permit or
rule. -
• b. Section 1421(bJ(1)(B) requires that
r approvable State program shall
require that:
1. The applicant for a permit must
satisfy the State that the underground
injection will not endanger drinking
water sources; and
2. No rule may be promulgated which
authorizes any underground injection
which endangers drinking water
sources.
a. Section 1121(b)(1)(C) requires that
an approvable State program include
inspection, monitoring. recordkeeplng.
and reporting requirements.
d. Section 3421(b)(1)(D] requires that
an approvabie State program apply to:
(1) underground injections by Federal
agencies; and (2) underground injections
by any other person, whether or riot
occurring on property owned or leased
by the United States.
e. Section 1425(a) requires that an
approvable State program represent an’
effective program to prevent
underground injection which endangers
drinking water sources.
The following sections provide
guidance to EPA personnel for making
the required judgments with respect to
these five conditions In the review of an
application for approval under Section
1425.
£1 Section 2421 (b)(1)(A)
The question of whether a State
program prohibiti unauthorized Class U
injections Is a function.of the State’s
statutory and regulatory authority. A
determination of whether the State
program meets this condition should be
made from a review of the coverage r -
scope of the program. the statement
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Federal Register I Vol. 46, No. 0 Tuesday, May 19 1981 1 Rules and Regulations
27337
legal authority submitted by the Stats,
-4 of the statutes and regulations
nielves. One important
.isideratlon Is whether the State has
an appropriate formal mechanism toe
modifying permit. In cases where the
has undergone . gnIflcant
£3 Sedilon 1421(b)(1J(E) -
1%. determInation of whether a State
program Is adequate in requiring that
the applicant demonstrate that the
proposed Injection will not endanger
drinking water sources turns on two
elements: (1) whether the State program
places an the applicant the burden of
making the requisite showlnf and (2)
the extent of the Information the
applicant Is required to provide sic
basis for the State agency’s decision.
Whether the burden of making the
requisite showing Is on the applicant
should be determined from the State’s
description of Its permitting process. U
the necessary information Is available In
State flies, the Director need not require
It to be submitted again However. as a
matter of principle, the applicant should
not escape ultimate responsibility for
assuring that the Information about his
operation is accurate and available. One
consideration In this regard Is whether
well operator has a responsibility to
3rm the permitting authority about
.ny material change In his operation, or
any pertinent Information acquired since
the permit application was made.
With regard to the extent of the
inform tion to be considered by the
Director, the Stale program should
require an application cont*In( g
sufficiently detailed Information to make
a knowledgeable decision to grant or
deny the permit. Such Information
should Include:
a. A map showing the area oheview
and Identifying all wells of public record
penetrating the injection interval
hA tabulation of data on all wells of
public record within the area of review
which penetrate the proposed Injection
tone. Such data should Include a
fescription of each well’s type.
ronstruction. date of drilling location,
fepth. record of plugging and/or
ompletion . and any additional
flformatlon the Director may require;
c.Data on the proposed operation.
i%cludini
1. Average and maxImum daily ibte
uid volume of fluids to be injecledi
2. Average end maximum Injection
pressure; and
S. Source, and an appropriate analysis
nlection fluid If other than produced
ater, and compatibility with the
receiving formatIon; -
d. Appropriate geological data on the
Injection zone and confining zones
Including llthologlc description,
geological name, thickness, and depth; -
s. Geologic name, and depth to bottom
of all underground sources of drinking
water which may be affected by the
Injection;
j Schematic drawings of the surface
and subsurface construction delails of
the syste
g. Proposed stimulation program
•b. All available logging and testing
data on theweth and
I. The need for corrective action on
wells penetrating the injection ions In
the area of review.
There are two circumstances under
which the director may require less
Information from the applicant. First, the
Director need not require an applicant to
esubmlt inforu ,afton which is up-to-
date and readily available In State files.
Second, a State’s application may
outline circumstances or conditions
where certain items of Information may
not be required In a specific case. Such
circumstances may Include situations
where, based upon demonstrable
knowledge available to the director
about a specific operation, the Director
proposes to permit that operation
without requiring corrective action or’
alternatives to Ii. Examples of sucL
circumstances are gravity or vacuum
Injections and Injections through zones
of plastic heaving shales.
Section 1421(b)(1 )(BJ also requires a
State which authorizes Class U
Injections by rule to show that such
rules do not allow any underground
Injection which endangers drinking
water sources. The determination of
whether the State program meets this
requirement may be made from the
program description. statement of legal
authority. the text of the rules
themselves, and the manner In which
the Stale has administered such rules.
£4 Section U2I(b)(1)(C)
This section of the SDWA requires
that an approvable State program
contain elements for Inspection.
monitoring. recordkeeplng and reporting.
The adequacy of the State program In
these respects maybe assessed with the
use of the following alien..
a. Inspection.
An approvable State program Is
expected to have an effective system of
field Inspection which will provide fan
1. Inspections of Injection facilities,
wells, and nearby producing wells: and
2. The presence of qualified State
Inspectors to witness mechanical
Inlegrfty tests, corrective acflpn
operations, and plugging procedures.
• An adequate program should insure
that. at a minImum. 25% of all
m .hanlcal Integrity test’ performed
each year will be witnessed by a
qualified Slate Inspector.
b. Monitoring. Reporting and
Recordkeepl, .
1. The Director should have the
authority to sample Injected fluids at
any time during Injection operation.
2. The operator should be required to
monitor the Injection pressure and
Injection rate of each Injection well at
least on a monthly basis with the results
reported annually.
3. The Director should require prompt
notice of mechanical failure or
• dowuhole problems in Injection wells.
4. The State should assure retention
and availability of all monitoring
records from one mechanical Integrity
test to the next (La., 5 years).
5.5 Section U21(t ’fftJ(D)
An approvable State program must
demonstrate the State’s authority to
regulate injection activities by Federal
agencies and by any other person on
property owned or leased by the United
States. The adequacy of the State’s
authority In these regards may be
assessed on the bails of the program
description and statement of legal
authority submitted by the State. Such
authority and the programs to carry It
out must be In place at a time no later
than the approval of the program by
EPA. EPA will administer the UIC
program on Indian lands unless the
State has the authority and Is willing to
assume responsibility.
£6 Section 1 425(o)
In additIon to the four demonstrations
discussed above. Section 1425 requires a
State to demonstrate that the Class U
program for which it seeks approval in
fact “represents an effective program to
prevent underground injection which
endangers drinking water sources.”
Among the factors that EPA will
consider hi assessing the “effectiveness”
of a State program are: (1) whether the
State has an effective permitting process
which results in enforceable permits; (2)
whether the State applies certain
minimum technical requirements to
operators by permit or rule: (3) whether
the State has an effective surveillance
program to determine compliance with
Its requIrement.: (4) whether the State
has effective means to enforce against
violators: and (5) whether the State
assures adequate participation by the
public In the pernit Issuance process.
Evidence oft: presence or absence
of ground water contamination Is
lmpo:tant.,Nowever. it cannot serve as
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27338 Federal Register I Vol. 46, No. 96 / Tuesday, May 19. 1981 1 Rules and Regulations
be sole alterfon of effectfve ss. Not
eU States have collected such evidence
systematically. More importantly, the
absenc. of evidence of contamination,
especially If based on an absence of
complaints, Is not necessarily proof that
pound water contamination has aol
Each of the five factors named above
Is discussed further In the following
subsections. In Its review of these
factors. ‘A Is not necessarily looking
for a minimum set or even any particular
elements. The effectiveness eli State
program will be assessed btrevlewthg
the State’s entire program. The absence
of even an Important element In a Stats
program may not by Itself mean that the
program Is ineffective as tong as there Is
a credible program for detecting and
eliminating injection practices which
allow any migration which endangers
drinking water sources.
a. Pennifling P vces&
Section SIb of the Program
Des IpUon outlines the m!Jor element.
of the permitting process. The listing of
these consldertions should not be
viewed as Federally imposed minimum
policy, but rather as an outline of the
Information which will be necessary for
A to evaluste the effectiveness of the
tate’s permitting process.
; States may deal with permitting
considerations, such as limitations on
the transfer of permit., In a variety of
ways. There are many permitting
approaches which may be equally
effective. EPA ’s review will turn an
whether the permitting process, taken as
a whole, represents an effective
mechanism for applying appropriate and
enforceable requirements to operators.
b. Technical Criteria.
Any approvable State program should
have the authority to apply, by permit or
role, certain technical requirements
deslgncd to prevent the migration of
Injected or formation fluids Into
USDWs. Any State program adopting
the language of 40 CFP. 346 should be
considered approvable on Its face value
for that portion of the program to which
It applies. State applications not relying
on the language of 40 CFR 148 should be
reviewed for the presence and adequacy
of the following kinds of technical
requirements In the State program.
Siting qulrements should be’
considered in the placement s 4
construction of any Class II disposal
well. Such requirements should be
designed to assure that disposal zones
ire hydraulically Isolated from
anderground sources of drinking water
(USDWs). Such isolation may be shown
through Information supplied by the
applicant, or data, on file with the State,
S.. S
which would be analyzed by qualified
hate staff.
S. Consbvcf Ion.
A. Effective programs ah uld require
all newly drilled Class II wells to be
cased and cemented to prevent
movement of fluids Into USDWs.
Specific casing and cementing
isguirementa should be based o n :
I. the depth to the base of the USDW;
ILthenatureoftheflu ldstobe
Mject.d and
• Ill, the hydrologic relationship
between the injection zone and the base
dtheUSDW.
B. All newly converted Class D wells
- should be required to demonstrate
mechanical Integrity.
I Operoilon.
A. Adequate operating requirements
should establish a maximum Injection
pressure for a well which assures that
the pressure In the injection zone during
injection does not initiate new fractwea
or propagate existing fractures In the
confining zone. limitations on Injection
pressure should also preclude the
Injection from causing the movement of
fluids bite an underground source of
drinking water.
Acceptable method. for establishing
limitations on Injection pressures
include: -
L Calculated fracture gradients: -
IL Injectivity tests to establish fracture
pressure: or
Iii. Other compelling geologic.
hydrologic or engineering data.
B An effective State program should
have the demonstrated ability to detect
and remedy system failures discovered
during routine operation or monitoring
seas to mitigate endangerment to
USDW.
1. Plu glnj andAbandonmenL
Plugging and abandonment
requirements should be reviewed for the
presence of the following elements:
A. That appropriate mechanisms are
available hi the State program to Insure
the proper plugging of wills upon
abandonment;
B That all Clsss Dwells are required.
upon abandonment, tobe plugged In a
manner which will not allow the
movement of fluids into or between
USDWL and
C. That operators are required to
maintain financial responsibility In
some form, for the plugging of their
Injection wells.
IAr,a of Review.
An effective State program Is
expected to incorporate the concept of
an area of review defined as a radius of
not less than Ifs mile from the well, field.
or project.
Alternatively, a Slate prupam may
substitute a concept ole zone of
endangering Influenc, In lie of this
fixed radius. The zone of endangering
influence should be delerrnlned for Ih.
estimated Iii , of the well, field, or
project through the use of an spproprlaW
Iculation, formula, or mathematical
model that takes the relevant geologic.
hydrologic, engineering and operational
features of the injection well, field or
project Into account.
S. CotrecUve Action.
An approvable State program Is
expected to Include the authority to
sequire the operator to take corrective
actions on wells within the area of
review or zone of endangering Influence.
A. Corrective action may include any
of the following types of requirementar
I . recemeutlngr
IL workovez
Ill. recondiilonlng or
Iv. plugging or replugging.
BA State program may provide the
Director the discretion to specify the
following types of requirements in lieu
•f Immediate corrective actlon
I, Permit conditions which will as.we
a negative hydraulic gradient at the base
of USDW at the well in question;
II. Monitoring program (i.e., monitoring
wells completed to the base of USDW
within the zone of Influence); or
II I. Periodic testing to determine fluV
movement outside the Injection lnterv
at other wells within the area of revlelb.
However. If monitoring or testing
indicate the potential endangerment of
any USDW. corrective action shall be
required.
C. In cases where the Director has
demonstrable knowledge of geologic.
hydrologic, or engineering condition.,
specific to a given operation, which
assure that wells within the zone of
endangering influence or area of review
will not serve as conduits for migration
of fluids into an USDW, a State program
may provide the Director the discretion
to permit a specific operation without
requiring corrective actions or any of the -
alternatives specified In Subsection (ll)
above. Examples of such circumstances
are gravity or vacuum injections and
Injections through zones of plastic
heaving shale.. However, under the
statute the State program may, In no
circumstances, authorize an injection
which endangers drinking water
sources.
. Mechanical Integrity.
An approvable State program Is
expected to require the operator to
demonstrate the mechanical integrity of
a new injection well prior to operation
and of all injection wells periodica’
• least once every five years. For the
purpose of assessing the State’s
mechanical integrity requirement.:
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Federal Register I Vol. 46, No. 96 / Tuesday. May 19. 1981 1 Rules and Regulations
27339
.. An injection well has mechanical
4TttylI.
I. there Is no significant leak In the
casing, tubing or packer. and
II. there Is no significant fluid
movement Into an underground source
of drinking water through vertical
channels adjicent to the well boie.
B. The foUpwI g tests are considered
to be acceptable tests to demonstrate
the absence of significant leaks:
La pressure test with liquid or gas;
Ii. the monitoring of annulus pressure
In those well. Injecting at a positive
pressure. following an Initial preuule
test or
Ill. all other tests or combinations of
tests considered effective by the
Director.
C. The following are considered to be
acceptable tests to demonstrate the
absence of significant fluid movement In
vertical rI uIneIs adjacent to the well
bore:
I cementing records (they need not be
reviewed every five years].
I I. tracer surveys:
IlL noise logs:
lv. temperature surveys: or
viany other test or combination of
tests considered effective by the
Director.
• D. U the State program allows or
• ecifles alternative tests under B(lll) or
)(v) above, the program description
should supply sufficient Information so
that the usefulness and reliability of
such tests in the proposed circumstance
may be assessed.
c. Suro’.illance.
The demonstration of an effective
surveillance program has already been
discussed In Section 54 above.
d. Enforcement.
A Slates enforcement of Its program.
l .a crucial consideration In making the
Iudgment of whether the State program
Is effective. States have used a number
of enforcement tools to shUt the
conom1e Incentive of operation move
toward compliance with the law. Often
State programs hay, employed civil
penalties and, for repeat or willful
violators, criminal fines or jail
sentences. Other commonly used
practices are administrative orders and
tourt injunctions. In the area of oil and
tas regulation, many States have found
pipeline severance a powerful tooL In
issesslng a State’. enforcement
program. EPA will consider not whether
i State ha. ill or any particular
inforcement tools but whether the
State’s program. taken as a whole.
spresents an effective enforcement
.lort. Certainly, there are many
inforcement matrices which create
rifective programs. In addition. EPA i 1 afl
ok at whether the State has exercised
Its enfo ment authorities adequately
Mthe .st.
s. Pub!icPozlielpotlon.
On.factortobeuiedbyEPAin
assessing the ‘effectlveness” of a Stats
program Is the degree to which It
assures the public an opportunity to
participate In major regulatoiy
decistons. Ills assumed that most Statei
already have legislation that goveins
public participation In State decision.
making and defines such processes u
appeals. etc. Therefore, the following
represents only a minimal list of
•lemerits that EPA will considen
1. PublIc Notice of permit application:
A. The State may give such notice or
It may require the applicant to give
o t ice.
B. The method of gtvlng notice should
be adequate to bring the matter to the
attention of interested parties and, in
particular, the public In the area of the
proposed Injection. This may involve
one or more of th. following:
I. Posting:
IL Publication In an official Stats
nitstet
Iii. Publication ins local newspaper
lv.Ma illngtoalist of Interested
persons: or
v. Any other effective method that
achieves the objective.
C. An adequate notice should:
I. Provide an adequate description of
the proposed action:
IL identify where an interested party
may obtain additional Information. This
location should be reasonably
accessible and convenient for interested
persons;
UI. State how a public hearing may be
requested. and
Iv. Allow for a period of at
least 15 days.
2. The State program should provide
opportunity for a public hearing If the
Director finds, based upon requests, a
significant degree of public Interest.
A. The Director may hold a hearing of
hi, own motion and give notice of such
bearing with the notice of the
application.
B. If a public hearing I. decided upon
during the comment period, notice of
public hearing shall be given in a
newspaper of general circulation. The
bearing should be scheduled no sooner
than 15 days after the notice.
I The final State action on the permit
application should contain a ‘responss
to comments” which summarizes the
eubstantive comments received and the
disposition of the comments.
Si Oversight
Li GenervJ
Once a Class 11 program Is approved
under Section 1425. the State has
primary enforcement responsibilily for
such ?ortion of Its UIC program The
CIas . II program Is a grant’elig!ble
activity and is subject to the same EPA
oversight as other portions of the UIC
program (e.g.. State/EPA Agreements.
Midcourse Reviews, grant conditions,
stc4
A will cor.duct a mid-course
evaluation of Class U programs as
suvisioned In 40 CFR 122.18(CJ(4)(ii) and
148.25. However. In lieu of a special
reporting requiremer.t. additional
requirements have been added to the
State’s annual report to EPA. Should this
mechanism prove unable to provide the
necessary data, a special reporting
requirement may be negotiated with the
primacy State. at a later date.
—‘*3 ?Rs po,(à
As pail of the Memorandum of
Agreement. each State shall agree to
submit an annual report on the
operation of Its Class El program to EPA.
Ala minimum the annual report shall
contain:
a. An updated inventoiy
b. A summary of surveillance
programs. including the results of
monitoring and mechanical Integrity
testing. the number of Inspection., and
corrective actions ordered and
witnessed.
cAn account of all complaints
reviewed by the State and the actions
taken:
£ An account of the results of the
review of existing wells made during the
yearand .
is. A summary of enforcement actions
taken.
Ox. si-icia FJ.d 5-114i. 1414
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11
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3156
-F,deeal Registurf Vol. 16. No. 189 1 ‘Thursday. August 27, 1981 I Rules and Regulations
PREAMBLE
4OcFRPwtoI22.idI4S —
. RL 180641
Underpround Injection C .olrul
Program Criteria wd Standards
*OENCY Environmental Protection
Agency.
ac’no’c Technical amendments to final
r egulationj.
SIMAAV The Environmental Protection
Agency I. promulgating technical
amendments to the requirements of Its
Underground Injection Control (UIC)
program promulgated on May 19.1980.
In the Consolidated Permit Regulations
(40 CFR Part 122) and on June 24.1980.
in the Technical Ciltena and Standards
(40 CFR Part 146). The concepts and
approaches published here have been
commented upon extensively by a broad
spectrum of interested parties Including
environmental groups; Federal. State
and local government officials; and
industry.
These technical amendments are
consistent with Agency Intent at the
time of promulgation. EPA is publishing
these technical amendments as part of a
settlement agreement reached with
petitioners who have challenged the
regulations in cowl.
M1I Effective date: August 27,1981.
*ooaas Questions should be referred
totheOftheo Dr4nk1ngWater(WH-.
850). EPA. Washington, DC 20480.
. : PII ttn IN OaMA1I0II cONTAC1
Thomas E. Belk, EPA Office of Drinking
Water (WH-550). EPA. Washington. DC
20460. (202) 426-3934.
uP tz swra v PW0RMAnose EPA
originally proposed regulations to
Implement Part C of the Safe Drinking
Water Act on August 31. 1970 (41 FR
3673045). That proposal Included the
prãgram regulations. the technical
alterl a and standards, and the related
grant regulations. Numerous written sets
of comments were filed and many
persons commented at public hearings
In Dallas, Denver and Washington, D.C.
Alter careful review of those public
comments. EPA det. rmlned that there
were many ways that the initial
proposal could be made generally more
flexible and less burdensome without
saciiticlng the resulting environmental
protection to any significant degree.
Further, In the fall of 1978. the Agency
decided to consolidate the regulations
for its major permit programs: the
Hazardous Waste Management program
under the Resource Conservation and
Recovery Act (RCRA): the UIC program
under the Safe Drinking Water Act
(SDWA): and the National Pollutant
Discharge Elimination System (NPDES)
under the Clean Water Act (CWA).
As a consequence of these events, the
Agency took the following series of
actions In 1078 and 1079. The pant
regulations related to the UIC program
were promulgated in final form on
October 12. 1978(43 FR 47130 ci seq.).
The Initial group of 22 States needing an
UIC program were listed on September
25.1978(43 FR43420). In addition, the
UIC program regulations were
eproposed In four pails on April 20 and
June14. 1079
• 40 CFR Part 122 reproposed the
regulatory framework for the UIC
program.
• 4O FRPad123describedthe
elements of an approvable State
program and proposed the process for
EPA approval of State participation In
the UIC program.
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Fideral R.glstsrF Vo1 46, No. 166 I Thursday, August 27, 1981 F Rules and RegulatIons 43137
• 40 CFR Part 124 desaibed the
proce4ures for permit application snd•
Issuance which EPA Intends to follow
when It has responsibility for
Implementing the program. Certain
provisions of 40 DR Part 124 would also
be applicable to State UIC programs.
• 40 DR Part 146 proposed the
technical aiteria and standards to be
used by EPA or the State in
Implementing the UIC program. ‘
Following the reproposal, five public
bearings were held and further
vommenta received. After reviewing
these comments, the Agency
promulgated Criteria and Standard. as
40 DR Part 148 on June 24, 1990. The
Consolidated Permit Regulations were
promulgated on May19. 1910.
Subsequent to promulgation of the.
UIC program, a number of petitioners
filed suit. The petitioners raised a total
of 93 issues with respect to both 40 DR
Part 146 and 40 DR Part 122.
In assessing the 93 iuues raised by
the petitioners, the Agency reviewed
studies relied upon to draft the
• Ngul t1ons. reassessed comments
received during nilemakiog. and re
evaluated cost and production Impacts.
Based on this re-evaluation, the Agency
1. (1) publishIng technical amendments
where citations were Incorrect,
typographical errors were made, or
language was unclear: (2) proposIng
amendments were more substantive.
changes resulted; and (3) issuIng
guidances where further explanation
W81 Deeded.
The amendments promulgated today
are final technical amendments to both
40 DR Part 122 end 40 DR Part 148.
They fall into one of the following
categories: requirements for operators
authorized under an area permit;
‘information and analytical burdens
Impo.ed on operators; deflnldons
limitation. bn injection pressure;
clarification of the classification
scheme; errors and omissions; and
miscellaneous actions that do not St the
other categories. • •
Area P,rudts -
Both the proposed and floalUiC
regulations included the concept of an
area permit to allow an owner or
operator of wells with a similar purpose
and consthaction to be authorized by a
single permit. The Agency did not Intend
that Injection well. authorized under
area permits be jequired to satisfy most
requirements on a single well basis.
However, during the course of
settlement dl,cutnicns with petitioners,
the Agency became aware that the
requirements outlined tar facilities with
area permits were not dearly
distinguished from those applied to
single well permit holders. indeed, the.
Agency received questions on whether
the option of using an area permit lay
with the operator, or the Director. The
applicant has the choice of applying for
a single well or an area permit provided
that he qualifies under I 122.39.
In several sections, thererforu. the
regulations have been amended to
clarify requirements for area permit
applicants and holders. The Agency
Intends to propose in the near future, an
amendment which definçs the term
“project”.The term is now used Ins
number of places throughout the
gulatlons In connection with
esquirenients applicable to operations
authorized under the area peimiL
SectIons 122.38 and 122.43. for example,
have been amended to add “project” In
several sentences which had previously
referred only to individual wells.
In assessing the need for these
amendments, the Agency became
convinced that under the regulations as
promulgated, It was not dear whether
I 122.41(c) precluded ope ration of new
wella for ares permits under $ 122.39(c).
nor was it clear whether “normal
operations”, as used In $ 122.37(a) (II)
Included plugging and abandonment of
wells In existing Class U and UI
facilities. Accordingly, these sections
are being amended to clarify that
facilities authorized under I 122 . 39(c)
may continue normal operations,
Including plugging and abandoning
wells, provided they comply with
applicable requirements.
The section on corrective action,
$ 122.44, has been amended by adding a
new section, I 122.44(b)(4), which
confirms that In the case of area permits
for Class III wells (which usually
Involve a net withdrawal of ground
water) the Director Is to base thi need
for corrective action on the overall
effect of the field or project on the local
hydrology, not the effects of each well
Individually. The new section requIres
that where corrective action Is not
deemed necessary based on the effects
of the field, a monitoring program
required In 114833 (b) must be designed
toverlfytheyalidltyof such
determinations.
For Class UI wells, the Director may
elect to require specific Information on
only a representative number of wells
within the area of review when the
wells are similar In age. type and
construction and the Information would
be repetitive.
The definition of area of review In
I 14803 and I 122.3 Is amended to
clarify the use of the concept In the case
of facilities applying for area permits.
The new wording emphasizes that In
such cases, the area of review Includes
both the project area and the
surrounding area as established
according to I 148.06. In addition, the
language In $148.03, which defines area
of review Is Incorporated Into
II 148.06(s)(2), 148.06(b) (1) and
148.06(b)(2) to state Agency Intent mor
clearly.
bformation Requirements
Some of the amendments published
today place limits on or clarify
Information requirements which may be
Imposed on owners or operators. In
reviewing these sections of the
regulations. the Agency concluded that
the requirements were drafted too
broadly. They could, therefore, be
Interpreted to require more data than
the Agency Intended or are necessary to
accomplish the purposes of the
regulations.
For example. petitioners correctly
pointed out that requirements listed In
I 148.24(aff2) and I 146.34(aJ(2), dealing
with existing features and facilities In
the area ofreview, Imposed a
potentially limitless burden on the
extent of the search for Information.
These sections have been amended to
define the scope of the requirement and
nipre clearly reflect the Agency’s intent.
Specifically, the Director must consider
only the location of all producing wells,
injection wells, abandoned wells, dry
holes and water wells. The review of
additional inforrastion Is left to the
Director’s discretion as appropriate to
the Individual case. -
Similarly, I 148.24(a)(3) and
I 146.34(aJ(3) now require that the data
on wells within the area of review must
be “reasonably available &om public
records” or otherwise known to the
applicant Further, this tabulation of
data is required only for wells shown on
the map specified in I 148.24(a)(Z) and
I 148.34(aJ(2).
The Agency Is also clarifying
I 148.22( I). which requires the results of
logs and tests conducted during the
construction of Class Dwells to be
submitted to the Director. The Agency
Intended the submittal to Include only
Information required to evaluate
whether drilling and construction
practices were adequate to protect
Underground Sources of Drinking Water
(U$DW5). Petitioners pointed out that
the regulations. as written, could have
mqulred massive amounts of data on
strata which have little dizeçt relevance
to protecting USDWs to be submitted to
the Director. After reviewing the
requirement, the Agency decided that
Information related to(1) USDW5 and
adjacent confining zones and (2) the
Injection zonP and adjacent formation.
-------
would provide tbell a with
gulf iclent lof 1 &lics to ei’shte
of the w . totor ’_on
the h mvening stn d c L.i.
little towirds JW, lr *L4 USDW. w
not consIst with e.cy ’ Nd
— .
needlessly burdensome to both the
regulated community and the Dirsctor
Under Information to be consIdered
by the D i or ’, I 146.1(alfl)
* 146.Z4(a)(71 ond I 346.34(aX1l) N
Initially p lgvted the Agency
requested that “eo amiog è.w ’ -
be submitted. to making this re est the
Agem s heuy intent was to tak
general details on the onuatr on c i
the welI,suc h a. the d
casiog. Pethioner. posted that
“sag oeeriag &awiegs” is a lee. of M
that implies specific scaLe. leveis .1
details and material that go beyond
what the Agency required or intended.
Accordingly. these sections sr i
amended to request sd emetic drawings.
In the regulations. as written the
applicant was required to 5 h, if 5 aJ
operating data before the Direct could
authorize injec on . The petitic ,
correctly pointed out that this was not
feasible and the Agency I. amending
* 14814(bX3 ] . I 146.24(b133 and
I 14a34 (b) (3J to iarify that what Is
required Is anticipated c i . vhnm
operating parameters.
In *146 .07(a ). I 14607 ( b) Nd
I 146.32(bJ(S) the Director wu required
to consider the tozidty of injected or
formation fluids. The Agency did not
Intend to refer to any formally defined
set of subatances. Nor did the Agency
Intend the Düeclot to require toxicity
tests ea defined in R A. To avoid s
unintended comiotitlons. the Director Is
now to consider the ‘flatme of Injected
or formation fluids to bnpasfng specific
permit requirements. The amoent c i
Information required of the appIi to
describe the nature of the ficids
adequately will vary under per& lar
ciruwnetances and Is left So the
discretion of the DL .
Reporting eqoireinenb under
I 146.23(c) have been more c)easly
delineated. The specific Information
required Is now listed In the section.
In I 14612(b). I 14623(b) and
I 146.32(b). reference wee made tea
quabfled” log analyst. Petitk i
pointed out that see .1 the word
iIquahILed Implied a standard that des.
not exist The Agency speed and the
section use refer. tea bowie eable ”
log analyst
Section 146.23(g) e ,ta lthe. sitarla
for a monitoring iwo aa sI Class Ill
facilities However. I 14t33(bX5)
contained a fw’ths’ delineation which
cosldbterpretedasaiiaddthoni l
veqe t To derVy
I 146.32(g) spe mashoring art la
and I 1u.33(b)(5J now only the
fiequnucy of
Wadlon PNI.IMV Lbdtations
Cocune hors petibonare Nd Slats.
cont latiog primacy ‘ ied that
the location of the confining —
used Is *146.22(1). I 146.23(a) was not
cieur. As stated to the Prv We to
CFR Part 148(45 FR 42483). the Aguncyr
.primary aim in that a stnat of
relatively hepermeable material
separate USDW from lbs toje’
sone and that this .frs sot be
bresrMd by injection or aa Bald.
Accordingly, the lonsticu of the
_____sam ha. been clarified by
a idmg I 14 82 2 (a) and I 146.23(a).
The Initial presunigahon of *14623(a)
contained a premare limitation no Class
U operathew which was not umsistent
with Agency toteeL As evidenced is the
repeoposed regulations (44 FR 23762).
the Agency Intended that Class B
facilitias be allowed to operate over the
fracture pee. sine of the teje co
provided thai Injection did sot Initiate
fracteres In the con irt zone. In lbs
promulgated version. the Agency
Intended to ulmify two seas. F ,i. abs
location ci the juiIiith ama was
further delmeated. Nd a iAwd .
of the term “bottom bc e pru. ge ” WU
dropped so that the ucteal pee e hi
the formation was the regulated
pressure. These changes ware thmnrmed
In detail In the preamble to the
promulgated regulation. (see 45 PR
42483). _
However, the Agency isadvi1 tly
the standard In drafting the
regulations Aonoeding!y. this section Is
being amended. The Agency feels that
the final wesron promulgated bme Is
more camistazd with Ms Initial intent
and with the special status affOrded
Class II opastiam to tim Safe tektng
Water .
To assure that Class B veils operating
over the fracture presawe establish on
appropriate none oiendangeethg
Iniluonce. * 1 44 aJ has been amended
so that all known wells within the area
of review affected by increased pressors
are amsidmed for coe?e ve on .
Sections 14613(a) and 1 4 6 . 2 3(a) have
bees amended. The sections, a.
originally promulgated. did aol v ect
Agency Intent Specifically, the ban
r ’t fractar the injection am, was
meant to apply only during normal
operatmu not for well st nhi Kqn . in
was for this seance that these sections
were hinted wider “operating
requirements.” The Agency I. aware
that operation ci Class I and UI wells
without stimulation could render ether
type of ipevutmon impractical and the
Agency intended is the final ieguiaucoa
that Clam land UI wells be allowed to
fracture for wall stimulation. However.
the drafting of the two sections did not
dearly reflect this Intent.
As slated. s limitation on b4ectloi
pressure for Class I (I 146.13) and Ce.
UI (I 146.33) must be observed “except
during well stimulation.” In the course
.1 normal cperation., wells may be
stimulated Initially before being placed
Into service and periodically throughout
the life of the well thereafter. The
exception applies both tu Initial and
subsequent periodic well stimulatIon.
Well Clap .1 &i.
Alter promulgating the regulations In
June of 195 the Agency received an
extensive number of questions from
both States and Industry on well
classification. In addition, several
petitioners requested that the
regulations establish the classification
of certain specific practices about which
the regulations were silent or unclear.
Based on these requests for
clarification, the classification scheme Is
being amended as follows: Class V
wells now specifically Include among
other types of operations: Injection well.
used In experimental technologies. sand
backfill and other backfill wells which
Inject radioactive waste; and
radioactive waste disposal wells other
than these injecting Into Clau IV wells.
wells which inject spent brine after
halogen recovely wells used for
sciatica mining of conventional in
(e.g.. stopes Leading etc.). and all
wells which are not included In Class L
U. UI or IV. Storage of hydrocarbons
which sie of pipeline quality and are gas
at standard temperature and preuur. Is
no longer regulated under these
regulations sea result of the 1980
amendments to the Safe Drinking Water
Act
Is us1 g the term “sand backfill”, the
.Agency intends to cover a broad range
of miningielated waste. Included In this
definition would be such coaT processing
wastes as sludge from acid mine
drainage stabthaation ponds. wastes
associated with ole beneficlatlon, and
inert materials used for stabtlivii 1
unde o .d mines.
it Is important to note that Included In
Class Varewells used to dispose of
radiosctlve wastes beneath all
formations containing underground
sources of drinking water. An example
of such wells would be tI wells used In
conjunction with certain In situ uranium
mines The Agency those this coerse of
action since the Nuclear Regulatory
Commission, the Department of Ener
-------
F.d!ral RegIster 1 Vol. 48 No “t .Thneday,%August 27, 1981 I es an
egu ai ons
and other concerned Agencies sri In the
proceu of developing a comprehensive
radioactive waite management program
a Executive Order
Issued In February 1980. AccordIngly,
the Agency feels that development of
•Pectflc requirements for radioactive
wastes under the UIC pr am would be
premature at his time.
SectIon 146.05(c) has been amended So
further clarify the classthcatlon of
solution iIning processes such as stopeg
leaching which us upployed at
conventionally mined sites. The
mended version specifically excludes
inch operations and further clarIfies the
coverage of Class III regarding solution
mining. In placing stopes and ulmilsr
processes In Class V. the Agency
intends that the processes be further
studied to detennlne whether such
operations pose a threat to USDW.
Petitioners requested clarification on
whether the ban on Class IV Injection,
listed In I 122.31(d) and I 122.36 applied
to injection into aquifers exempted
under I 146.04. The UIC regulation, did
not limit the scope of aquifer -
exemptions for a particular purpose. nor
did they limit the Director’s discretion In
defining the scope to which exemptions
applied. The Agency is amending these -
sections to make explicit that the
injection. of hazardou. waste Into
exempted aquifers are not banned at
this time. Such injections are classified
as Class IV wells for which
requirements are reserved.
Requirements for such Class IV wells
will be develdped in the future.
Definitions
Since promulgating the regulation,,
the Agency has received further
questions from Slates; Industry In
general and the petitioners that point to
problems with definitions. The Agency
has reviewed the comments and
clarified the existing definition, when
appropriate. The changes that ,esulte
from this process are being published
today.
The definition of “sd l ,hig ” Is
deleted from I 122.3 sInce It Is not used
In the body of the regulations.
The definition of “casing” is being
clarified to include materials other than
metal since many wells employ other
materials, such as PVC. The Agency.
recognizes That In many circumstances,
materials other than metal may provide
superior protection tq USDW and It was
not the Agency’s Intent to preclude their
use.
The term “well logs” Is being dropped
from the definitions In I 14803. It Is not
used in the regulations. ‘Logs”.. term of
sri with a clear and specific meaningS.
used Instead.
hâ bi pólntedoottb the Agency
that ‘plugging”. as defined, Implied that
flow in formations (not just the well
bore) was to be stopped. The Agency
has amended I 140.03 to provide a more
accurate definition of the term.
-The definition of “radioactive wastes”
was amended to delete references to
listings under the authority of the RCRA.
since such a listing has not been made
for radioactive waste and may not be
for the foreseeable future. Accordingly,
a reference to such a listing could be
confus l n&
Similarly, In I 146.O8(c)(1) the term’
‘w U records” was used and the
• definition of well records was included
-In I 146.03. The Agency intended that In
I 146.08(c)(1) cementing records be used
to demonstrate the presence of adequate
cement to prevent migration of fluids.
The term “well records” was used
inappropriately since It includes
information which I. not directly
relevant to mechanical Integrity.
Accordingly. I 146.08 has been amended
to specify cementing records and the
term “well records” has been deleted
from the definitions in I i4s .
Wording in 1122.1 0(a) seemed to
Imply that a permit would automatically
be terminated for any noc.compliance,
no matter how minor. The new language
clarifies that the Director has the
discretion to decide whether or not to
terminate the permit.
Under * 12Z.41(c)(li) as originally
promulgated. there Is no limit on bow
long the Director may take to inspect a
newly constructed well. This could
conceivably delay operations
Indefinitely. The section has been
amended to require that, If the Director
elects to inspect a newly constructed
well. be must schedule such anr
inspection within a reasonable time
period. which was the Agency’s Intent.
Errois and O tI LIM .
Section 122.17(0(1) contained
reference to I 146.16. I 148.26. and
I 148.36. These sections do not exist In
the promulgated regulations and the
Agency Is therefore amending the
regulations to delete referencg ,to them.
SectIon 148.34(b) contained reference
to a negative number computed under
1 148.06(a). In the example equation
included In the regulations, as well as
most other models used to calculate the
zone of endangering Influence,.
negative number Is neither possible nor
does It have meaning physically. The
section Is therefore being amended to
reflect results consistent with most
accepted models.
The section on financial responsibility
for Class! well., I 146.14(a)(18)
contained an Incorrect cross citation, It
now refers to the correct sectIon. 40 CFR
122.42(g).
in discussing authorization by rule.
I 122.37(a)(2) refe to existing Class Il
wells. It has come to the Agency’.
attention that specifying appropriate
construction requirements for existing
well. does not make sense and
accordingly. I 122.37(a)(2fl1)(H) now
specifies that casing and cementing
requirements be applied. where
appropriate.
In I 148.34(a)(15), a typographical
error was made; the section refers to
*122.42(9). It should be I l 22 . 4 2(p). It I,
being amended.
An amendment to I 122.18 and
122.37. which was published in the June
24,1980. Federal Register wIth 40 CFR
148. contained two errors. First. the
amendment was published under the
beading “Marine Sanitation Act’. The
correct reference should be to Part 122.
Consolidated Permit Regulations.
Second. instructions under amendment
(d) referred to deleting paragraph (c)(1)
of I 122.27. The correct citation is
paragraph (c)(1) of I 122.37.
A typographical error was made in
I 122.6 Signatories topem7it
applications and reports. The first
section was Incorrectly labeled
I 122.6(1), It is now amended to read
1122.6(a).
Exscutlvs Order 12291
Under Executive Order 12291, EPA
must judge whether the amendments to
the regulation are major and therefore
subject to the requirements of a
reg ilatory impact analysis. These
amendments are not major because they
are clarifications of the Agency s Intent
when It promulgated the regulations.
These amendments were submitted to
0MB for review as required by
Executive Order 12291. Any comments
from 0MB to EPA and any response by
the Agency are available for public
Inspection at the Office of Drinking
Water, Environmental Protection
Agency. 401 M Street, SW., Washingion,
D.C.
(Sees. 1421.1422. 1423. 1431. 1443. 1447. 1450.
Be?. Drlnldng Waist Act, as amended. 42
U.S.C. 300(1)51 seq.)
Dated. August21. 1981.
Ansi P4. Gorsuch,
AdmirtisLotoj.
40 CFR Part 122 Is amended a.
follows:
-------
43160 Federal Register Vol. 46. No. 166 / Thursday, August 27. 1981 / Rules and Regulations
PART 122—EPA-ADMINISTERED
PERMIT PROGRAMS; THE NATIONAL
POLLUTANT DISCHARGE
EUMIPIATION SYSTEM; THE
HAZARDOUS WASTE PERMIT
PROGRAM; AND THE UNDERGROUND
INJECTION CONTROL PROGRAM
1. In 122.3 three definitions are
revised to read as follow,: -
I 122.3 Dsfk l is. -
• • • _• •
A’es of review (UIC) means the erea
surrounding an Injectioc well described
according to the criteria set forth In
1146 .06 .orinthecaseofanareapeiii r lt.
the project area plus a circumscribing
area the width of which Is either ¼ of a
nile or a number calculated according
to the criteria set forth In * 146.06.
• * • • •
Plugging MC) means the act or -.
process of stopping the flow of water.
oil, or gas into or out of a formation
through a borehole or well penetrating
that formation.
• . • • •
RadIoactive waste (UIC) means any
waste which contains radioactive
material in concentrations which exceed
those listed in 10 CFR Part . Appendix.
B. Table II . Colwnn2.
• • S S S
2. In f 122.3 the definition far
“Acidizing” is removed.
3. In f 122.16 the Introduction to
paragraph (a) I. revised to read as
follows:
• 122.11 Thnnlnatlon of permits.
• S S S S
(a) The Director may terminate a
permit during its term or deny a permit
renewal application for the following
causes:
• . •_ . •
4. In f 122.17 paragraph (1)(1) ie
revised to read as follow.:
1122.17 MInor modIfIcatIons of permits.
• S S S S -
(f ) ’ • •
(1) C) singe quantities or types of
fluids injected which are within the
capacity of the facility as permitted md ,
in the judgment of the Director, would
not interfere with the opera lion of the
facility or Its ability to meet conditions
described In the permit and would not
change its dasslficatlon.
5. In * 122.31 paragraph (d) Is revised
by adding the following:
• 122.31 Purpose and scope of subpart C.
• * S S
(d)’
The prohibition applicable to Class IV
wells wider I 122.36 does not apply to
Injections of hazardous wastes Into
aquifers or portions thereof which have
- been exempted pursuant to I 146.04.
6. In *122.32 paragraphs (c)(2), (cX3)
and (c)(4) are revised and (cX5) is added
to read as follows:
1122.32 C lauIfIcation of Inj an maSs
• S • S a
(2)Inahuproduct lcnofu ran lumar
other metals;
(3) Solution Inlnhig of salts or potash
(4) In situ combustion of fossil fuch
and
(5) ecovery of jeothermal ene .
7. 1n 1122.38paragraph(b] I saddedto
read as follow.:
• 122.36 mbratIon of certain Class IV
maSs
• • S ’S •
(b) The prohibition applicable to Class
W wells does not apply to Injections of
hazardous wastes into aquifers or
portions thereof which have been
exempted pursuant to 146.04.
8. In *122.37 paragraph (a)(1XII) and
(a)(2)(iJ(H) are revised as follow.: -
* 122.37 AuthorIzation f mdsrr,smd
injection by
• . e -•S S
(ii) Notwithstanding the prohibition In
I 122.33. rules under paragraph (a)(1) of
this section authorizing Class II and
Class 111 wells or projects In existing
fields or projects may allow them to
continue normal operations until
permitted, Including construction,
operation, and plugging and
abandonment of wells as part of the
operation, provided the owner or
operator maintains compliance with all
applicable requirements.
• . I S S
(H) Section 146.22 (casing and
cementing requirements where
appropriate).
• • S S •
9. In *122.38 paragraphs (a) and (b)(2)
are revised to read as follow.:
* 122.39 App6catlon for a p.rmll
authorIzation by permit .
• _• S S S
(a) Permit ópplicotion. Except as
provided In *122.37 (authorization by
rule), all underground Injections into
Class L II, or Ill wells in listed States
shall be prohibited unless authorized by
permit. Those authorized by a rule or
under 122.37 must still apply for a
permit under thi. section unless
authorization was for the life of the well
or’; oject. Rules authorizing w i
Injections for which permit ap
have been submitted shall lapse
partIcular well injection or project upon
the effective date of the permit or permit
denial for that well Injection or project.
(b)
(2) For new injection wells, except
new wells In projects authorized under
I 122.37(a)(1) or covered by an existing,
area permit under * 122.39(c). a
reasonable time before construction is
expedtedtobeg ln.
10. In I 122.41 the Introduction to
paragraph (c) and paragraph (cX2)flI)
are revised to read as follow.:
• S S • S
(c) In addition to I 122.7(I)(1) (notice
of planned changes except for all new
wells authorized by an area permit
under f 122.39(c). a new injection well
may not commence Injection until
construction is complete, and
(2)
(II) The permittee has not received
notice from the Director of his or her
Intent to inspect or otherwise review the
new injection well within 13 da’ - ‘be
date of the notice in paragraph f
this section, In which case prim
Inspection or review is waived ana the
permittee may commence injection. The
Director shall Include In hIs notice a
reasonable time period In which he shall
Inspect the welL -
• S S S
11. In 1122.43 piragrephs (a) end (b) -
are revised to read as follow.:
*122.43 Watv.rofrsqu sm.ctby -
Director.
(a) When Injection doe . not oc
Into, through or above an underground
source of drinking water, the Director
may authorize a well or project with 1 .i
stringent requirements for area of
review, construction, mechanicil
Integrity, operation. monitoring, and
reporting than required In 40 CFR Part
146 or * 122.42 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 I 146.00(a) is smaller or equal to
the radius of the well, the Dire’ ty
- 1*122.41 AddItional conditions app1Ic Is
“to all UIC permits .
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Federal Register / Vol. 46, No. 166 / Thursday, August 27, 1981 I Rules and Regulations
43161
authorize a well or project with less
stringent requirements for operation,
monitoring, and reporting than required
In 40 CFR Part 146 or § 122.42 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.
• • •• • •
12. In 122.44 paragraph (a) I. revised
and (bX4) added to read as follows:
g 122.44 Corrective action .
• • • • ._-
(a) Coverage. Applicants for Class I, II
(other than existing), or UI 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 U
wells operating over the fracture
pressure of the Injection formation, all -
Imown 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 bre necessaty 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
I 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)
(4) Class 711 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 potentloinetiic
surface(,s) and flow direction(s) rather
than the discrete effect of each well. ifa
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. .
40 CFR Part 146 Is amended as
follows:
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAIL
CRITERIA AND STANDARDS
tin I 146.03 five definitions are
revised to read as follows:
I 14603 DefinItions.
• • . . 4
Area of review means the area
surrounding an Injection well described
according to the criteria set forth hi
I 146.06 or In the case of an area permit,
the project area plus a circumscribing
area the width of which Is either ¾ of a
mile or a number calculated according
to the criteria set forth In { 148.06.
Casing means a pipe or tubing of
appropriate material, of varying
diameter and weight, lowered Into a
borehole during or after drilling In order
to support the aides of the hole and thus
prevent the walls from caving, to
prevent loss of drilling mud Into porous
ground, or to prevent water, gas, or
other fluid from entering or leaving the
hole.
• • S • - •
Plugging means the act or process of
stopping the flow of water, oil or gas
Into or out of a formation through a
borehole or well penetrating that
formation.
• • S S •
Radioactive Waste means any waste
which contains radioactive material In
concentrations which exceed those
listed in 10 CFR Part 2i). Appendix B,
Table 11 column 2. -
• • • S S
2. In I 146.03 the definitions for “Well
log” and “Well record” are removed.
3. In I 146.05. paragraphs (c)(2). (e)(8),
(e)(11), and (e)(13) thru (e)(15) are
revised and (c)(3) and (c)(4) are-
renumbered as (c)(4) and (c)(5) and a
new (c)(3J is added to read as follows:
• S •• S S
146.05 CIaSSIIICStIOII of jection wefis.
• S S S S -
(c)’ S’
(2) In situ production of uranium or
other metals. This category includes
only in-situ production from oie bodies
which have not been conventionally
mined. Solution mining of conventional
mines such as stopes leaching Is
Included hi Class V.
(3) SolutIon mining ‘of salts or potash.
(4) In situ combustion of fossil fuel.
Note—Fossil fuels Inclu’des coal. tar sands,
oil shale and any other fossil fuel which can
be mined by thisproces.. -
(5) Recov ery of geothermal energy to
produce electric power.
Ncte —Cless UI wells include the recovejy
of geothermal enelgy to pmduco electric
power but do not indude well. used In
heating or aquaculture which fall under Cbs.
V.
• S • • S
(11) Radioactive waste disposal wells
other than Class IV;
• S S S S
(13) Wells used for solution mining of
conventional mines such as stopes
lea ch lng
(14) Wells used to inject spent brine
Into the same formation from which it
was withdrawn after extraction of
halogens or their salts: -
• (15) Injection wells used In
experimental technologies.
4. In I 146.06 paragraphs (a) and (b)
are revised to read as follows:
•146.06 Area of review.
• S S I I
(a) Zone of endangering influence. (1)
The zone of endangering influence shall
be:
(i) In the case of application(s) for
well permit(s) under I 122.48 that area
the radius of which Ii the lateral
distance in which the pleasures In the
Injection zone may cause the migration
of the injection and/or formation fluid
Into an underground source of drinking
water or
(ii) In the case of an application for an
area permit under 122.39, the project -
area plus a circumscribing area the
vidth of which Is the lateral distance
from the perimeter of the project area. In
which the pressures in the Injection zone
may cause the migration of the Injection
and/or formation fluid Into an
underground source of drnking water.
(2) Computation of the zone of
endangering influence may be based
upon the parameters listed below and
should be calculatedfor an injection
time period equal to the expected life of
the Injection well or pattern. The
following modified Theis equation
Illustrates one form which the
mathematical model may take.
r (2.25 K H t$ -
S 10’
Where:
X=4 lO -I(h.—b .,x$PC )
2.3 Q
r=Radius of endangering Influence bu m
Injection well (length)
K=Hydraulic conductivity of the Injection
zone (length/time)
( a) ‘ -
(8) Sand backfill and other backfill
wells used to inject a mixture of water
and sand, mill tailings or other solids
into mined out.portions of subsurface
mines whether what Is Injected Is a
radioactive waste or not.
• I I I . S
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43162 Yederal Register! Vol. 46. No. 166 1 Thursday, August 27, 1981 / Rules and Regulations
H-Thickness of the injection zone flength)
t —TIme of injection (time)
S—Storage coefficient (dimensionless)
Q=lnjection role (volume/time)
b,=Observed angina! hydrosfatic head of
injection zone (length) measured from
the base of the lowest underground
source of dnnking water
h, .=Hydrosiauc head of underground source
of drinking water (length) measured from
the base of the lowest underground
source of drinking water
SpG 1 — Specific gravity of fluid In the
Injection zone (dimenslonleu)
. —3.142 (dImensIonless).
The above equation Is based on the
following assumptions: -
(I) The Injection zone Is homogenous
and isotroplc
(Ii) The Injection zone has infinite
area extent
(iii) The Injection well penetrates the
entire thickness of the injection zone;
(iv) The well diameter Is I nfinitesimal
compared to “r” when injection time Is
longer than a few minutes: and
(v) The emplacement of fluid into the
Injection zone creates instantaneous
Increase In pressure. - -
(b) Fixed Rod/us. (1) In the case of
application(s) for well permit(s) under -
122.38 a fixed radius around the well
of not less than one-fourth (¾) mile may
beused. - -.
(2) In the case of an application for an
area permit under 122.39 a fixed width
of not less than one-fourth (¾) mile for
the circumscribing area may be used.
• In determining the fixed radius, the
following factors shall be taken into
consideration: Chemistry of injected and
formation fluids: hydrogeology
population and ground-water use and
dependence: and historical practices In
the area.
• , •$ • e • -
5. In 146.07, paragraphs (a) and (b)
are revised to read as follows:
O 146.07 Corrective action . -
• S S S •.-*
(a) Nature and volume of Injected
fluid; - 1 ,.
(b) Nature of native fluids or by-
products of injection: -
6. In * 146.08, paragraphs (c)(1) and
(c)(2) are revised to read as follows:
- 0 146.08 MechanIcal Integrity -
(1) The results of a temperature or
noise log or
(2) For Class II only, cementing
records demonstrating the presence of
adequate cement to prevent such
migration: or
7. In 146.12, the Introduction to
paragraph (d) Is revised to read as
blows:
•148.12 Construction requirements.
• • S f_ *
(d) Appropriate logs and other tests
shall be conducted during the drilling
and construction of new Class I wells. A
descriptive report interpreting the
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: . . -
• • S 4 •
6. In § 146.13, paragraph (a)(1) Is
revised to read as follows:
• 146.13 OperatIng, monitoring end
reporting requirements.
(a)
(1) Except during stimulation Injection
pressure at the weilbead shall 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. In no case shall injection
pressure initiate fractures In the
confining zone or cause the movement
of injection or formation fluids into an
underground source of drinking water.
• S S * S
9. In 146.14, paragraphs (a)(11).
(a)( 16) and (bfl3) are revised to read as
follows:
0146.14 Wonnabon to be considered by
the Director.
• ‘* 5* • •
(a)’
(11) SchematIc or other appropriate
drawings of the surface and subsurface
• construction details of the well.
• 4 5 5 5
(16) A certificate that the applicant
has assured, through a performance -
bond or other appropriate means, the
resources necessary to close, plug or
abandon the well as required by 40 CFR
122.42(g).
( b) ”
(3) The anticipated maximum pressure
and flow rate at which the perinittee
will operate; . • -•
• S S S S
10. In I 146.22, piragraph (a) and the
Introduction of paragraph (f) are revised
to read as follows:
* 146.22 Construction requirements.
(a) All new Class Dwells shall be
sited In such a fashion that they Inject
Into a formation which Is separated from
any USDW by a confining zone that Is
free of known open faults or fractures
within the area of review.
a S S S ••
(f) Appropriate logs an4 ott
shall be conducted during the
and construction of new Class II wells.
A descriptive report Interpreting the
results of that portion of those logs and
tests which specifically relate to (1) an
USDW and the confining zone adjacent
to It, and (2) the injection and adjacent
formations shall be prepared by a
knowledgeable log analyst and
submitted to the Director. At a
minimum, these logs and tests shall
Include:
• 5 4 5 5
11. In 0146.23, paragraphs (a)(1) and
(c)(1) are revised to read as follows:
0146.23 Operstlng monitoring end
-9—
(a)’’’
(1) Injection pressure at the welihead
shall not exceed a maximum which shal
be calculated so as to assure that the
pressure during Injection does not
Initiate new fractures or propagate
existing fractures In the confining zone
adjacent to the USDW6. In no case shall
Injection pressure cause the movement
of injection or formation fluids Into an
underground source of drinking water.
• .S 5. 5 -• -
(c)’ S I - -
(1) Reporting requirement. a
minimum include an annual i th
Director summarizing the resin.
monitoring required under paragraph (b
of this section. Such summary shall
Include monthly records of injected
fluids, and any major changes In
characteristics or sources of injected
fluid. Previously submitted information
ay be Included by reference.
12. In 0146.24 paragraphs (a)(2), (a)(S)
(a)(7) and (b)(3) are revised to read as
follows:
0146.24 informatIon to be considered by
the Director . -
• S S S S
(a)’’’
(2) A map showing the Injection well
or project area 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 am
location of all existing producing wells,
Injection wells, abandoned wells, dry
holes, and water wells. The map may
also show surface bodies of waters,
mines (surface and subsurface), quarrier
and other pertinent surface features
Including residences and roads, and
- faults if known or suspended. C’”
-------
Information of public record and
pertinent Information known to the
applicant is required to be Included on
thi, map. This requirement does not
apply to existing Class II wells; and
(3) A tabulation of data reasonably
available from public record. or -
otherwise known to the applicant on all
wells within the area of review Included
on the map required under paragraph
(a)(2) of this section whIch penetrate the
proposed Injection zone or. hi the case
of Class U wells operating over the
f cture pressure of the injection
- formation, all known wells within the
area of review which penetrate
formations affected by the Inasaie In
• pressure. Such data shall Include a
description of each well’s type.
construdtlon, date drilled, location,
depth. record of plugging and
•completlon. and any additional
information the Director may require. In
cases where the Information would be
repetitive and the wells are of similar
age, type, and construction the Director
may elect to only require data on a
representative number of wells. This
requirement does not apply to existing
Class II wells.
. .4 . .
• (7) Schematic or other appropriate
drawings of the surface and subsurface
construction details of the well;
* . • S.
(31 The anticipated maximum pressure
and flow rate at which the permittee
will operate. . • .. . - . . -
,• • S • S
13. In I 146.32, paragraph (b) and -
(b)(5) are revised to read as follows:
148.32 ConstructIon r.qt*.msnt,.
(b) Appropriate logs and other tests
shall be conducted during the drilling
and construction of new Class Ill wells.
A descriptive report Interpreting the
results of such logs and tests shall be
prepared by a knowledgeable log
analyst and submitted to the Director.
The logs and tests appropriate to each
type of Class Ill well shall be
determined based on the intended
function, depth. construction and other.
characteristic. of the well, availability
of similar data In the area of the drilling
site and the need for additional
Information that may arise from time to
time as the construction of the well-
progresses. At a minimum, such logs and
tests shall Include deviation ôhecks.
conducted on all holes where pilot holes
and reaming are used, at sufficiently
frequent intervals to assure that vertical
avenues for fluid migration In the form
of dwérginj holes are not crested during
(5) The nature and volume of the
htecled fluid, the formation water, and
the process by-products; and
14. In 1 148.33 paragraphs (e)(1) and
(bX5) axe revised to read as follows:
{ 148.33 OperatIng, monitoring aid -
reporting requIr.maxts.
• (a) • ’
(1) Except durhi well stimulation
Injection pressure at the welihead shall
be calculated so as to assure that the
juessure In the Injection zone during
Injection does not Initiate new fractures
or propagate existing fractures In the
Injection zone. In no case, shall injection
pressure Initiate fractures In the
confining zone or cause the migration of
Injection or formation fluids into en
underground source of drinking water
b )
(5) Quarterly monitoring of wells
required by 148.32(g). . -
15. In I 146.34 paragraphs (a)(2), (a)(3),
(alihl). (a)(15) and (b)(3) arerevised to
read as follows:
I 145.34 Information to be considered by
flu Director.
• S 5 4 4
(a)
(2) A map showing the injection well
or project area for which a permit Is
sought and the applicable area of
yeview. Within the area of review, the
snap must show the number or name and
location of all existing producing wells.
Injection wells, abandoned wells, dry
holes, public water systems and water
- wells. The map may also show surfaoe
bodies of waters, mines (surface and
subsurface) quarries and other pertinent
surface features Including residences
and roads, and faults If known or
suspected. Only Information of public
record and pertinent Information known
to the applicant Is required to be
Included on this map.
(3) A tabulation of data reasonably
- available from public records or
otherwise known to the applicant on
wells within the area of review Included
on the map required under paragraph
(a)(2) of this section which penetrate the
proposed Injection zone. Such data shall
Include a description of each well’s type.
construction, date drilled, location,
depth, record of plugging and
completion. and any additional
Information the Director may require. In
• cases where the information would be
repetitive and the wells are 0! simIlar
age, type, and construction the Director
may elect to only require data on a
representative number of wells.
• 4 4 4 4
(11) Schematic or other appropriate
drawings of thE’surface and subsurface
construction details of the well;
• S S S S
(15) A certificate that the applicant
has assured, through a performance
bond, or other appropriate means, the
resources necessary to dose, plug. or
abandon the well as iequired by 40 CFR
122.42(g) and - - -
• S S S S
(3) The anticipated maximum pressure
and flow rate at which the permittee
will operate;
• S S • S
CFR Part ISO
0F34221R343 PN-FRL-1921-IJ 1
Gly’ hosate; Tolerances and
Exemptions From Tolerance br
Pestlc’tde Chemicals In or o, aw
Agrlcuherai Commodities /
AOENCT k uvironmentai Pr iectlon
Agency (ER ).
ACTION: FInh(rule .
IuMMARy . Tbk rule est lishes a
tolerance for tL comb ed residues of
the herbicide glyphos e (N.
Iohosuhonomethu flal cinel and Its
metabolites in or o rage grasses at 0.2
part per million (pp and forage
legumes at 0.4 ppm. is regulation was
requested by Mons n Co. This
regulation will eat hg the maximum
pcrmisslble level r the ombined
residues of glyph sate In ton forage
grasses and le es.
LFflC1 ’IVE 0* EffectIve o August V.
1081. -
ADDRESS: Wri en objections ay be
Bubmitted to e: Hearing Cle
Envlronmen I Protection Agen , Rm.
M-3708 (A- 0). 401 M St., SW,,
Washlngto DC 20460.
POR FUR H INFORMATION CONY Cit
Robert J. aylor, Product Managei (PM)
25. Regisjration Divisi on (TS—787
Office of Pesticide Programs.
EnvIrotunental Protection Agency.
412E. Mr2, 1921 Jefferson Davis \
Highi ay. Arlington. VA “ “2 . (703_k
557 ).
SUPPLEMENTARY INFORMATION: EPA
issued a notice that was published In the
Federal Register of October 28,1980(46
I
,
-------
12
-------
. Federal Register I Vol. 46 No . 190 / Thursday. October 1. 1981 I Proposed Rules
48243
chosen. Also, § .14(B)(l)(c) contains a -
typographical error in refemng to a
vanor pressure of 1.0 psia. This should
end 1.5 psia. Maryland has noted
has committed to change it at
st convenient future time.
Therefore, EPA is proposing this rule on
the basis that 1.5 psia Is the proper -
vapor pressure. -
EPA proposes to approve the
amendments to COMAR 10.18.21. noting
the intent in § .14(b)(1)(c) to refer to 1.5
psia as the vapor pressure.
11. 7 ’echnical Memorandum TM—118
TM—no the State of Maryland Stack
Test Methods were amended to reflect
the above regulation changes and the
conditional approval of the Part D plan.
They are consistent with EPA stack test
requirements, and satisfy the
conditional approval.
EPA proposes to approve TM—lie as
amended November1980 as a revision
to the Maryland SIP. —
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
12.ChoI7gesto4OCFRPort52 . -
Approval Status § 52.1073 will be
revised to reflect the changes to
§ § 52.1074, 52.1076. 52.1077, 52.1080,
52.1081, 52.1084,52.1089, 52.1090, 52.1091,
‘2. 52.1093. 52.1094, 52.1095, 52.1096.
, 52.1098, 52.1099. 52.1100, 52.1103,
4, 52.1105,52.1106, 52.1108,52.1109.
and 52.1111 due to the current approved
SIP measures (45 FR 53409, August 12.
1980).
Legal Authority § 52.1074 will be
revised to reflect the current SIP as
roposed on August 1. 1979 (44 FR
45144) and approved August 12, 1980(45
FR 53460).
Section 52.1076 ir proposed to be -
repealed and reserved due to the
indefinite suspension of the provisions
of § 52.22(b). -
Section 52.1077 (b) and (c) are
proposed to be amended to reflect the
approved SIP.
Section 52.1080(b) —(k) are proposed to
be repealed since they are obsolet and
the currently approved SIP measures
replace them.
Section 52.1081—this section is
proposed to be repealed since it has
been made obsolete by the currently
approved SIP.
Section 52.1083—thIs provision is
proposed to be repealed as it has been
satisfied with the current approved SiP
measures.
-‘tion 52.1084—this provision is
ied to be repealed as it has been
ad with the current approved SIP.
Section 52.1089—this provision is
proposed to be repealed as it has been
replaced by I/M provisions in the
current approved SIP.
Section 52.1090 is proposed to be
repealed as it has been made obsolete
by the current SIP measures.
Section 52.1091—.1084 are to be
repealed as they are obsolete measures.
Section 52.1095 has been replaced by
the current approved SIP J/M
requirements and is proposed to be
repealed.
Section 52.1096—.1100 are proposed to
be repealed as they are ol solete - -
measures.
Section 52.1103—52.1104,52.1105. and
52.1106 have been replaced by current
SIP measures and are proposed to be
repealed.
Sections 52.1108-52.1109 have been
replaced by a current SIP measure and
Is proposed to be repealed.
Section 52.1111 Is proposed to be
repealed, this measure is obsolete and
Its purpose has been achieved by other
current SIP measures.
As noted in the Federal Register
notice approving the Maryland Part D
plan (45 FR 53470), these obsolete
measures can be deleted: therefore, EPA
proposes to amend 40 CFR Subpart V—
Maryland in accordance with the above
evaluation and In response to the
request made by the Governor of
Maryland on January 20. 1981.
Based upon the above evaluations It is
the tentative decision of the
Administrator to approve these
proposed revisions to the Maryland
State Implementation Plan as discussed
In this notice.
The public is invited tóiubmit
comments on whether these -
umandinents should be approvid as
revisions to the Maryland State
- . Implementation Plan. .
The Administrator’s decision to
approve or disapprove the proposed
revision will be based upon the
comments received and on a
determination whether they meet the
requirements of Part D of Title I and
Sections 110(a)(2) and 111(d) of the
Clean Air Act.
Under Executive Order 12291. EPA
must judge whether a regulation is
“Major” and therefore subject to the
requirement of a Regulatory impact
Analysis. This regulation is not major
because this action, if promulgated, only
approves State actions and imposes no
new requirements.
This regulation was submitted to the
Office of Management and Budget for
review a required by Executive Order
12291.
Pursuant to the provisions of 5 U.S.C.
605(b) the Administrator has certified
that SIP approvals under Sections 110
and 172 of the Clean Air Act will not
have a significant economic impact on a
substantial number of small entities. See
48 FR 8709 (January 27. 1981). This
action, if promulgated, constitutes a SIP
approval under Sections 110 and 172
within the terms of the January 27
certification. This action only.approvea
.State actions. It imposes no new
requirements.
-Dated: August 25.1981.
AwhiR.MoTth.
Actir gRegionoIAdministro or.
FR Dcc. 514 5552 FII.d o-ao.ei. ass .mp
COOS S5I 3 M
40 CFR Parts 122 and 146
IWH -FRL-1921—3 1
Underground Injection Control
Program Criteria and Standard.
AGENCY Envirorunental Protection
Agency.
ACTION: Proposed rule.
SUMMART: The Enviror.mental Protection
Agency is proposing amendments to its
Consolidated Permit Regulations (40
CFR Part 122) and Technical Criteria
and Standards [ or State Underground
Injection Control Programs (40 CFR Part
148). as promulgated May 19, 1980 and
June 24, 1980 respectively.
The Agency is proposing these
amendments as part of a settlement
agreement reached with a number of
companies, trade associations and the
State of Texas which have challenged
the regulations in court.
DATES: EPA will accept public
comments on the proposed amendments
until November 16. 1981, either in
writing or at the informal public
hearings to be held at the time and place
listed below.
ADDRESSES: Written public comments
should be sent to the comment clerk.
UIC Program Regulations, Office of
Drinking Water (WH-550). EPA.
Washington, DC 20460.
Public hearings will be held at the
Humphrey Building, Humphrey
Auditorium, 200 Independence Avenue,
Washington, D.C.. on November 2. 1981;
and at the U.S. Post Office Building, 1828
Stout Street, Room 269, Denver
Colorado, on November 5, 1981.
FOR FURThER INFORMATION CONTACT:
Thomas E. Belk, Chief. Ground-Water
Protection Branch, Environmental -
Protection Agency. (202) 426—3934.
-------
48244.
Federal Register I Vol. 46, No. 190 I Thursday. October 1. 1981 I Proposed Rules
SUPPLEMENTARY INFORMATION:
I. Background
EPA originally proposed regulations to
‘lement Part C of the Safe Drinking
r Act (SDWA) On August 31. 1976
e ’R 38730—45). That proposal included
the program regulations. the technical
criteria and standards, and the related
grant regulations for the Underground
Injection Control (UTCI program.-
Numerous written comments were filed
and many persons ,oomxnented at three
public hearings.
After careful review of those public
comments, EPA determined that there
were many ways that the initial
proposal could be made generally more -
flexible and less burdensome without
sacrificing the resulting environmental
protection to any significant degree.
Further, in the fall of 1978, the Agency
decided to consolidate the regulations
for its major permit protrams: the
Hazardous Waste Management program
under the Resource Conservation and
Recovery Act (RCRA); the UIC program
under the Safe Drinking Water Act
(SD WA); and the National Pollutant
Discharge Elimination System (NPDES)
under the Clean Water Act (CWA).
As a consequence of these decisions
the UIC program regulations were
reproposed in four parts on April 20 and
June 14, 1979:
40 CFR Part 122 reproposed the
ulatory framework for the UIC
ogram.
.0 CFR Part 123 described the
elements of an approvable State
program and proposed the process for
EPA approval of State participation in
the UIC program.
• 40 CFR Part 124 described the
procedures for permit application ar’d
issuance. Certain provisions of 40 CFR
Part 124 would also be applicable to
State UIC programs.
• 40 CFR Part 146 proposed the
- technical criteria and standards to be
used by EPA or the State in
implementing the UIC program.
After five public hearings and review
of public comments the Agency
promulgated final Consolidated Permits
Regulations on May 19, 1980 (45 FR
33290 et seq.) and Technical Criteria fc
State Underground Injection Control
Programs, on June 24, 1980 (45 FR 42472
et seq.).
A number of trade associations,
mining companies, oil and gas
producers, iron and steel producers, and
the State of Texas petitioned for review
of these regulations, insofar as they
were promulgated pursuant to the S3fe
flrinking Water Act. In all a list of 93
es was filed by the petitioners wiw
.ourt of Appeals for the District of
Columbia Circuit. The Ageniy has
discussed these Issues with the litigants
and has reviewed studies on which it
relied to draft the regulations.
reassessed comments received during
rule making and reevaluated the cost
and production Impacts of the
regulations in the light of these
discussions. The proposed amendments
are the result of these reevaluations.
While EPA anticipates that the final
promulgation of these proposed
amendments In substantially the same
form will provide a basis for settlement
of the litigation affecting these
regulations, EPA will consider carefully
-all public comments on this proposal
before making its final decision.
II. Changes to the Major Program
Concepts
A. Classification of Injection Wells
When the Agency originally proposed
these regulations in 1976, injection wells
were grouped Into three categories:
• Waste Disposal and Engineering
Wells, including industrial and
municipal disposal wells, subsidence
control wells, mining wells, storage
and geothermal wells. etc;
• Injection Wells related to Oil and Gas
Production; and
• Drainage Wells. including wells used
to dispose of storm water runoff,
Irrigation return flow, and excess
ponded suface waters.
In oi’der to make technical
requirements more specifically and
appropriately applicable to particular
injection practices, the Agency
developed a more fully articulated
classification scheme for the reproposal
in 1979. Injection welliwere grouped
into five classes:
• Class I retained the industrial and
municipal disposal wells and nuclear
storage and disposal wells injecting
below the deepest underground
source of drinking water (USDW) in
the area.
• Class II “etained the injection wells
related to oil and gas production.
• A new Class III contained mining,
geothermal, and other special process
wells. - -
• A new Class N included wells used
by generators of hazardous wastes or
hazardous waste management
facilities to inject into or above
USDWs.
• Class V included all other wells (e.g.,
subsidence control, irrigation return
flow, etc.) not included in Classes I—
Iv..
This five-part classification scheme.
with certain adjustments. was
promulgated in 1980. These amendments
propose to make several changes in the
promulgated classification scheme.
Classes I and IV. The Preamble to the
1979 reproposal pointed out that wells
not injecting Into, through or above
USDWs were covered by the regulations
Ir :lass V and requested comment on
this decision (44 FR 23740—1).
Commenters seemed not to be opposed
to this inclusion, but argued that the
injection of hazardous waste, regardless
of the Injection zone, merited stricter
regulation than that outlined for Class
V. The Agency agreed with this
‘comment and categorized Injection of.
hazardous wastes not into, through or
above USDWs in Class I instead of
Class V. The possible choices for
classifying such practices were either
Class I or Class IV. At that time,
however, the Agency was contemplating
a total ban on all Class IV operations. A
ban was judged to be an overly stringent
measure for the control of wells not
injecting into, through or above USDWs.
Therefore, such wells were placed in
Class I in order to create a presumption
that they could be authorized to operate
with a permit. At that time the Agency
realized that the technical requirements
of Class I may not be applicable to each
such injection practice. Partly to provide
for such situations, the final regulations
contained § 122.43(a) which allows the
Director to ease virtually all
requirements for such injections as long
as doing so does not result in an
increased risk of movement of fluids
Into an USDW (&ee Preamble to the final
Part 146, 45 FR 42474 and 42479—80).
Several change have occurred since
the Agency made the decisions outlined
above. First, in the course of the
litigation, industry representatives
sought clarification about whether an
injection of hazardous waste into an
exempted aquifer was a banned
practice. This had not been the Agency’s
Intent, and these amendments now
clarify that such Injections are not -
banned. Second. the Agency in the final
regulation decided not to go ahead with
a ban on all Class IV wells at the time
the regulations were promulgated. The
final regulations only ban the injection
of hazardous wastes directly into an
USDW. Requirements for other Class IV
wells, those injecting above an USDW.
were reserved and the Agency
requested further public comment
regarding appropriate regulation (45 FR
33331 et seq. and 42485 el seq.). Third.
the final regulations did not provide for
an interim rule to authorize the
continued operation of existing Class IV
wells for which requirements were
reserved. This was because, at the time
the final regulations were Issued, the
Agency expected to have final
regulations promulgated within a few
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48245
months, well before any operational
State programs raised the question of
,thorization for the continued
era tion of the reserved Class IV wells.
n light of the foregoing discussion
ese amendments propose two
changes. One, the injection of hazardous
wastes not into through or above
USDWs is moved from Class Ito Class
IV. Two, * 122.37 is amended to snake It
possible to authorize the continued
operation of existing Class IV wells for
which requirements have been reserved.
Class II. The Agency Is proposing to
broaden Class II to Include wells in
which waite waters from gas plants,
which are an integral part of the
production of gas from oil and gas fields.
are injected along with produced brines,
so long as these waste waters are not a
hazardous waste at the time of injection.-
It has been pointed out to the Agency
that ills a fairly common practice to
dispose of blow-down waters from
cooling towers and boilers used In the
Initial drying process of natural gas.
along with the produced brine separated
from the gas. EPA believes that adding
this blow-down water which generally
contains very low total dissolved solids
levels to the brine does not increase the
risk to underground sources of drinking
water. It seems reasonable to reduce the
administrative burden for the Director
‘ d the owners or peratora which
uld result from requiring a separate
isa I permit for these wells.
Class III. The major change to the
Class III category is the shift of two
types of wells currently in Class UI to
Class V: Geothermal wells used for the
production of electric power were
considered Class III in the promulgated
regulations. However, these wells really
do not “inject for extraction of mineral
or energy”: rather they are used to
reinject brines from which heat has been
extracted into the formations from
which they were pumped. In many
cases, such rein jection serves to
recharge these formations. For this
reason tim Agency is proposing to place
the!e wells in Class V to allow for an
assessment of the practice.
In discussions with the litigants it was
pcinted out to EPA that the technical
requirements for Class III wells were not
appropriate for injection wells used for
in situ recovery of lignite, coal, tar sands
or oil shale. Theèe are emerging
technologies and the Agency does not
wish at this time to Impede their
development by imposing technical -
requirements which may not fit the
various practices or which may restrict
their technical evolution. The Agency
refore proposes to place these wells
Class V where they can be further
..iudied and assessed.
Class V. Finally the Agency is
proposing some language In
§ 122.31(d)(2) and is rewording the
inclusio in Class V to exclude
cesspo . and septic systems used for
non-residential establishments when
they are used solely for the disposal of
sanitary wastes and have a maximum
capacity to serve fewer than 20 persons
a day. The Agency thinks that these
types of system would be similar to
single residential systems which are
excluded from the regulation and
accordingly, is proposing to exclude
them as well.
B. Underground Sources c/Drinking
Water
The Safe Drinking Water Act requires
that the regulations protect drinking
water sources. I.e., “underground water
which supplies or can reasonably be
expected to supply any public water
system.” In the promulgated regulations
current underground sources of drinking
water were defined as “aquifers or
portions of aquifers which currently
provide drinking water for human
consumption. Aquifers in which the
ground water contains fewer than 10.000
mg/i were considered potential sources
of drinking water. Aquifers which were
not currently used for drinking water -
could be exempted if they were:
(1) Mineral, hydrocarbon or
geothermal energy producing;
(2) Situated at a depth or location
which makes recovery of water for
drinking purposes economically or
technologically Impractical;
(3) So contaminated that it would be
economically or technologically
impractical to render the water fit for
human consumption; or
(4) Located over a Class UI mining
area subject to subsidence or
catastrophic collapse.
After discussion with the litigants and
a review of the record on the subject the
Agency is proposing to amend this
definition to reflect more closely the
intent of the Safe Drinking Water Act.
This proposal defines current
underground sources of drinking water
as aquifers or their portions which
currently supply public water systems.
Aquifers In which the ground water
contains fewer than 10,000 mg/l are still
considered potential sources of drinking
water if they supply water for human
consumption or can yield a sufficient
quantity of water to supply a public
water system.
The Agency has reviewed the current
Information on the drinking water use of
aquifers containing high levels of total
dissolved solids (‘rDSs). This review
found that the use of water containing
up to 3,000 mg/I TDS is fairly
widespread. The Agency has also found
that ground water containing as much as
9,000 mg/i TDS is currently supplying
public water systems. EPA also believes
that technology for treating water
containing high levels of TDS is
advancing. Therefore, based on this
review and the legislative history of the
Safe Drinking Water Act, the Agency
still believes that it is reasonable to
protect aquifers containing water with
fewer than 10,000 mg/I TDS as potential
sources of drinking water.
At the same time the Agency believes
that the use of aquifers containing water
between 3,000 and 10,000 mg/I of TDS is
likely to be a function of economics and
specific local hydrogeologic
circumstances. Therefore, the Agency is
proposing to provide flexibility to the
Director for exempting such aquifers.
A new criterion In Section 146.04
would allow for exemption ii “the total
dissolved solids content of the ground
water is more than 3,000 and less than
10,000 mg/I and ills not reasonably
expected to supply a public water
system.” As part of the flexibility
afforded the Director, subsequent to
State program approval such
exemptions will not be considered
program revisions. Rather the Director,
after notice and opportunity for a public
hearing, must notify the Administrator
in writing of the designations and the
exemptions will become final unless the
Administrator disapproves of them
within 45 days. However, there are no
changes for designation of exempted
aquifers which are part of a State
program submission.
The Agency is also proposing to
modify the first exemption criterion
which could have been construed as
prohibiting mineral exploitation of
previously unproduced areas. The
Agency still wants to prevent the
possibility of wholesale exemption of
aquifers over large areas of the country
simply because they are mineral
bearing. However. EPA Is proposing a
modification to allow for exemption of
aquifers if they are expected to yield
commercially-producible minerals or
hydrocarbons.
A subsection is being added to
§ 122.35 which details specific
Information which the Director should
require from permit applicants in order
to make a judgement that an aquifer
contains commercially-producible
minerals or hydrocarbons.
C. “No Migration” Standard
The basic purpose of the UIC
regulations is to provide a framework
for State programs which assures that
underground injections will not
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Federal Register I Vol. 46, No. 19(1 / Thursday. October 1, 1981 I Proposed Rules
‘endanger” drinking water sources.
Section 1421 (b) (1) states that regulations
published by the Agency under Section
1421 “shall contain minimum
iirexnents for effr live programs to
ent undergrounci injection which
..Jangers drinking water sources. .
In the course of developing these
regulations, the Agency has attempted
to develop a standard for
“endangerment” which would both meet
the intentions of the Act and provide a
usable, measurable test for use by
Injectors and regulatory agencies.
The 1976 proposal provided that
underground injection operations found
to endanger should be discontinued and
offered the following definition;
‘ ‘Underground Injection endangers
underground sources of drinking water 11(1)
such Injection may make it necessary for a
public water system using an underground
drinking water source to increase treatment
of the waten or (2) If such injection might
make It necessary for a public water system -
which uses the source In the future to use
more extensive treatment of the water than
would otherwise have been necessary, or (3)
If such injection may otherwise adversely
affect the health of persons such as by adding
a substance that would make water from the
source unfit for human consumption. (41 FR
38737)’ •
Many commenters argued, and EPA
agreed, that this definition was vague
and confusing. Therefore in the 1979
—roposa! the Agency decided to avoid
finition of engangerznent and to
vide instead an operational standard
to meet the statutory goal. As explained
In the preamble [ The test in these -
reproposed regulations is whether
injection operations will cause the
migration of injected or formation fluids
Into an underground source of drinking
water. If injection into a well can cause
such migration, the owner/operator
must take appropriate action to
eliminate the fluid migration (44 FR
23740).] The Agency believed that this
standard, applicable to Class 1—Ill wells,
was achievable through sound
engineering practices. However, the 1979
reproposal provided for two exemptions
to the strict “no migration” standard.
First, for casing and cementing of Class
I I wells. the Director could grant relief
from the requirements for existing wells
If injection would “not result in the
migration of fluids Into an underground
source of drinking water so as to create
a significant risk to the health of persons
using the source of drinking water” (44
FR 23762). Second, Class V wells were
subject to the different standard of “no
significant risk to the health of persons”
‘ 4 FR 23766).
the promulgated regulations there
a blanket prohibition at 122.34
against movement of fluid into
• underground sources of drinking water
for Class I, II or III wells. No Class IV or
V wells were authorized if they caused
or allowed movement of fluid containing
any contaminant into underground
sources of drinking water, and the
presence of that contaminant could
cause a violation of any primary
drinking water regulation under 40 CFR
Part 142 or adversely affect the health of
persons.
In Part 146 the specific lechnii al
requirements were stated so as to be
achievable through good engineering
practices.
In § § 146.06 and 146.07 the goal was to
determine the area in which injection
pressure could cause the upward
vertical movement of formation or
Injection fluids via Improperly plugged
or completed wells and apply necessary
remedies.
Similarly in § 146.10(a), Plugging and
Abandonment of Class I—Ill Wells, and
In the definition of plugging in § 146.03,
the Agency was specifically concerned
with vertical movement of fluids through
a borehole or well which could lead to
communication between aquifers.
In current § 146.12,146.22 and 146.32
the requirement is that wells be cased
and cemented to prevent movement of
fluids into or between underground
sources of drinking water. The goal of
this requirement is two-fold: one, to
prevent movement of injected fluids
from the well into USDWs which would
occur if the tubular goods were leaking;
and two, to prevent vertical movement
of Injected or formation fluids through
the bore hole which could occur if the
casing, cement and pi&er were not
properly set. TheJestojjrpper
con urtionis set byj 146.08.
Mec Ixtj grity.Awellis properly
constructed if there is no significant leak
In the casing, tubing or packer, and
properly cemented if there Is no
significant fluid movement through
veffit á1 dilililils adjacent to the welL- ’
b
Infl 148.13,14623 and 146.33 the
requirement is that the injection
pressure be calculated so that there is
no fracturing of the confining zone and
no movement of injection or formation
fluids into underground sources of
drinking water. This prohibition Is
against movement which could occur if
the confining zone were fractured, or the
injection pressure resulted in a zone of
endangering influence greater than that
used in setting the corrective action
requirements. The only exception to this
would be in certain Class Ill operations
such as uranium mines which operate in
exempted aquifers. There the concern
would be with lateral movement of fluid
Into the protected portions of the -:
aquifers. The “no migration” stand .4 ,.
achievable through net withdrawal of -
water from the mined zone, during th Z’
life of the mining operation. The
therefore thought that the promuIgat .-
regulations had achieved an approp
and feasible standard. -
Discussions with the Iitigants,: .j :.;
however, pointed out one remaij!c ’ - ...
problem. Paragraph 146.10(d) -
established two requirements with
respect to the abandonment f a Clasi ..
II I well field which underlies or is j -
aquifer which has been exempted und j ’
40 CFR 146.04. First, the plugging and t.
abandonment plan to be prepared hr u
permittee was to demonstrate that
movement of contaminants from
mined zone into an USDW would
Second, the Director was to prescrib ..
such aquifer cleanup and monitorIng
measures as necessary and feasible on z
case-by-case basis to insure that no -’--
. migration from the mined zone into a-
USDW would occur. . . -
It has been called to the Agency’I4
attention that a “no migration” standiid
may not be technically or economicaUj” ’
feasible to achieve In the case of at le ’
some abandoned Class Ill sites It may
be extremely difficult to remove all .1’
residues of the mining activity, for . . 1,’:
“-p example, ammonia, from the miningM .
I As the natural flow of the aquifer is--
I reestablished after abandonment. such “
I residues may be.dissolved or eluted
I over time and carried into protected £.
portions of the aquifer.
To solve this problem, this -.
tamendmerit proposes to change the. .
Istandard in § 148.10(d) from “no
nigration” to one of “adequate -
rotection.” The plugging and
bandonxnent plan to be submitted bi
he permittee would have to .. I
emonstrate an adequate level of
protection for USDWs. Similarly, tb!
irector would be empowered to -.
%,rescribe necessary aquifer cleanup ,
monitoring to assure an adequateJfvul.:
of protection for USDWs. . .
The proposal of a different standai4
for § 146.10(d) reflects EPA’s judgmeflI
that the abandonment of Class ll1 i i
mining operations which underly or
inject into aquifers exempted under
§ 146.04 represents a sufficiently unIQ
situation that a different standard fore
the protection of USDWs is appropfl ’
The “adequate protection” standaf
intended to require all efforts on the P!d:
of the operator that are necessary to
assure that there will be no movem
of fluids into an underground source Q .
drinking water so as to create a
significant risk to the health of pers0 ’-
EPA does not believe that it is eitherç
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Federal Register I Vol. 46. No.. 190 I. Th irsday. ‘Octóber i ’i9 .81 . I. Proposed Rules
48247
possible or even prudent to prescribe a
more specific standard as part of these
minimum national requirements. The
priate level of protection is best
ined by the Director in each
I ual case. In establishing the
s ._ .. tic requirements. EPA expects the
Director to take the particular
circumstances of the mining site into
account—for example, the nature and
concentration of the residuals, the
hydrogeology of the aquifer, the
economic and technical feasibility of
cleanup actions, the importance of the
aquifer. the proximity of water wells,
and the number of people relying on the
USDW down-gradient from the mining
site.
The Agency also believes that since
the “no migration” standard does not fit
all the technical requirements it is not
appropriate to keep it in § 122.34(a) as a
general requirement and is proposing to
amend this section to provide that [ no
authorization by permit or rule shall
allow 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 same language is
also used in § 122.31(d) “Scope of the
P-—— t or Rule Requirements” where
ction refers to § 122.34.
fly, a change is proposed for
\ 4(b) which requires the Director
to take certain steps when monitoring
indica tea movement of fluids. This has
been reworded to specify that this.
section only applies if there Is -
movement of contaminants into an
underground source of drinking water
and that movement is not authorized
under Part 146.
[ Mechan!ca1In1egrity) -
The mechanical integr ty requirement
in the promulgated regulations was the
result of consideration by the Agency of
comments and contractors’ reports
prepared for the Agency. However, after
discussions with the litigants and
reevaluation of available information,
the Agency Is proposing some
modifications of this requirement.
The regulations now require Class II
wells to show that there is no significant
leak iii The casing, tubing or packer by
Continuous monitoring of annulus
pressure, or by periodic pressure tests
with liquid or gas which can only be
done in wells completed with tubing and
packer where the arinulus can be filled
W L quid and pressure applied to the
.EPA proposes to amend this
ment for two reasons:
One, the periodic pressure test is
burdensome in wells completed without
a packer. In order to provide some relief
to operators of such wells the Agency Is
willing to accept instead records of
injection pressure and flow rate,
provided that these data are available
and that an initial pressure test was.
performed. The Agency still expects
owners or operators to run one pressure
test at a time when the well is shut
down and running the test would not
-cause loss of production.
Two, the pressure test cannot be
preformed in certain wells completed
without long string casings. In such
cases the Director is to require a ground-
water monitoring program and
inspection of annular space where
possible in addition to the pressure and
flow rate data, to verify the absence of
fluid movement into underground
sources of drinking water.
These proposed changes only apply to
enhanced recovery wells since EPA
believes that shutting down these wells
In order to run a pressure test could -
have a substantial impact on oil and gas
production. Further for these wells a
strong economic incentive exists for the
operator to insure that the wells
function properly, i.e., that there are no
significant leaks from the well. There
are no changes proposed for salt water
disposal wells since shutting these wells
down for a few days every five years In
EPA ’s view would only have minimal
Impact on oil and gas production.
Finally it has come to the Agency’s
attention that in the case of Class III
wells the logging techniques prescribed
to verify the absence oUIuId movement
behind the casing of a well are not
reliable when PVC casing Is used. For
such wells this proposal now only
requires that the operator submit
- cementing records showing the presence
of adequate cement to prevent
migration. The monitoring program
prescribed by § 146.33(b) shall be
designed to verify the absence of
significant fluid movement.
E. Area Permits
This proposal contains one
amendment to the Area Permit
requirements. The current regulations
require that all wells covered by an area
permit be of one class as defined in
§ 122.32. It has been called to EPA’s
attention, however, that certain -
operations, for example storage of
hydrocarbon in salt domes, may employ
more than one type of well (Class III
wells fo mining the salt and Class H
wells to inject the hydrocarbons). The
same wells may also be used as Class H
at certain times and Class Ill at others.
It seems reasonable for these operations
to be placed under a single permit and
therefore the Agency is propo ing to
delete the requirement that all wells in
an area permit be of a single class. The
permit will specify construction,
operation, and monitoring and reporting
requirements applicable to each type of
well covered. However, because the
Agency believes injection of hazardous
waste deserves to be treated differently
from other types of injection, the
regulations limit this relief to wells
which are not used to inject hazardous
waste.
A definition related to area permits
has been added to H 122.3 and 146.03.
These sections now include the term
“project” defined to mean a group of
wells in a single operation. This term is
now used in a number of places
throughout the regulations in connection
with the requirements applicable to
operations authorized under an area
permit.
III. Changes to Class H Requirements
The promulgated regulations set out
the information which had to be
considered by the Director in specifying
casing and cementing requirements
( 146.22(b)) and issuing permits
( 146.24(a)). After discussions with the
litigants the Agency has reassessed the
amount of information required and is
proposing to delineate more precisely
the Information which it feels is
Indispensable for setting requirements,
from the information which it is
desirable to take into-account. The items
previously included in § § i,46.22(b) and
146.24(a) have been retained in the
proposal except for some clarifying
terminology. However, the requirements
have been reorganized to distinguish the
Information the Director may consider
from the information he must consider.
The requirements in § 146.22(g) have
been streamlined and reworded to make
it clear that the information required is
for the project in general and need not
be repeated for every single will
authorized by an area permit.
EPA is proposing that the logging
requirements In * 146.22(f) be modified
in two ways. First, the proposal allows
the use of electric logs intend of only
resistivity and spontaneous potential
logs. This proposed change would allow
the Director and owner or operator to
use the most effective logging program
In any given situation instead of being
limited to only two specific logs. Second,
for surface casing, the logging
requirements would now only apply in
areas where the lithology is unknown.
Shallow logs are not usually run for oil
and gas wells since the information
obtained is of little use to the
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48248
Federal Reglster I Vol. 48, No. 190 I Thursday, October 1, i i f proposed Rules
companies, and the logging requirements
would be burdensome without
corresponding environmental benefit
where enough information on the
shallow zones Is readily available from
ther sources.
Finally, these proposed amendments
would reduci the monitoring
requirements by allowing for
observation instead of monitoring
(which Implea recording) of injection
pressure, flow rate and cumulative
volumes at the time Intervals which
were specified In the regulation at
§ 148.23(b). These observations would
have to be recorded once a month and
summaries submitted to the Director
annually as now required. If at any time
the Injection pressure or the flow rate
exceed the limits imposed in the permits
the operator will be in non-compliance
and must make an immediate report to
the Director according to the
requirement of § 122.41(d). ImposIng on
the operator the burden of recording
these data daily or weekly when he is in
compliance with the terms of the permit
could result in unnecessary paperwork.
Monthly records, however, are useful In
providing information on the overall
performance of the well.
IV. Changes to Class Ill Requirements
Despite the care the Agency had
taken in drafting the Class Ill
requirements, discussions with the
litigants have pointed out particular
Instances where the requirements could
be modified, to make them more
appropriate for particular operations,
without any loss of environmental
benefits.
The Agency Is proposing to amend
I 148.10 to allow discretion to the
Director in the choice of plugging
material for Class I II wells. The cement
required by the promulgated regulations
Is not necessary, for example, to form
the bottom plug in wells used in the
Frasch sulfur mining process since sulfur
left at the bottom of the well will harden
when hot water Injection ceases and
forms an adequate plug.
The Agency is also proposing in
I 148.32(a) to allow discretion to the
Director as to whether or not to cement
the casing of new wells in existing fields
where historical practice and available
data may show that cementing is not
necessary to protect underground
sources of drinking water. Similarly, the
Agency not realizes that some shallow
wells are constructed by a pilot hole and
reaming technique. For those wells
which will be cased and ceme ted by
circulating cement to the surface, the
Agency does not believe that deviation
checks are necessary since the
cementIng method will effectively plug
off any diverging hole. Section 148.32(b)
has been reworded to provide for this
alternative. -
The proposal would amend the
monitoring requirements of § 146.33 to
bring them closer to existing practices
and require monitoring of Injection
pressure and either flow rate or injected
volumes, or metering of injected and
produced volumes, depending on the
type of operation monitored. The
proposal also liberalizes the frequency
of monitoring. A’n important factor In
protecting underground sources of
drlnldng water from the impact of Class
Ill operations Is that certain limits for
Injection pressure, flow-rate, or In the
.case of shallow operations such as
uranium mines, levels of certain
indicator parameters in the monitoring
wells, be established as permit
conditions. Since noncompliance with
any of these conditions must be reported
to the Director immediately and
corrrective measures taken, continuous
monitoring and recording does not
- appear to be Indispensable to ensure
protection of the USDWs. The greater
discretion provided will allow the
Director to select the monitoring
requirements which will provide the
greatest environmental safeguards while
reducing the burden on owners or
operators.
Finally, discussions with the litigants
brought out the fact that some of the
Information required for permitting in -
* 146.34(a)(7) concerning the analysis of
injected fluids was of a highly
confidential nature and may not be
necessary for the Director to know in
order to protect underground sources of
drinking water. Accordingly, it Is
proposed that the requirement for a
specific qualitative and quantitative
analysis of injected fluids be relaxed to
require only qualitative analysis and
ranges In concentrations of constituents
of the injected fluids. If the information
is deemed proprietary the applicant may
submit only data on the maximum
concentration of certain constituents
which are not to be exceeded.
The applicant for a permit can request
that this information be treated as
confidential. In § 122.19 the Agency has
set out the requirements for
confidentiality claims. Nothing in the
UIC program Is intended to override
protection which is afforded proprietary
Information under State law, except
Insofar as Federal statutes or
regulations require disclosure of
information.
In keeping with the proposed change
to § 146.34(a)(7), EPA is proposing that
the monitoring requirements at
§ 146.33(b)(1) be changed to require
monitoring of the nature of injected
fluids rather than a more detailed
analysis of the physical and chemical -
characteristics of the injected fluids so
long as the original analysis has not
been rendered incorrect or, incomplete..
In addition, two minor changes are -
being proposed to § 148.34(a): first, mapi
and cross sections need not show the
lateral limits of underground sources of
drinking water which could have
required maps and cross-sections
covering several miles; and second, the
extent of the formation testing program
would be clarified by referencing it to -
I 148.32(c). This section would be
revised in a manner consistent with the
revisions proposed for Class II wells to
make it clear that the information
required is for the project In general and
need not be repeated for every single
well authorized by an area permit.
V. Changes to Part 122
A. 180-Day Notice of Abandonment
It has been pointed out to the Agency
that the 180-day notice of abandonment
of a well was not desirable since once a
well is inactive, speedy plugging Is
Important to protect underground
sources of drinking water. The
requirement could also have conflicted
with State laws in some cases.
Accordingly, the Agency is proposing
that the Director be responsible for
deciding when notice of abandonmenf
needs to be given, and that specific time
frames be set in the permits.’Language
In § 122.37, 122.39(c) and 122.41(e)
would be revised to this effect.
B. Miscellaneous Changes
Section 122.10(a) would be revised to
allow 30 days instead of 14 to submit
progress reports after each interim or
final date In compliance schedules.
Section 122.41 would be revised to
require that records of the nature and
composition of injected fluids be
retained for 3 years instead of 5 years
after completion of plugging and
abandonment proceudres.
Section 122.42(g), Financial
Responsibility, would be revised In
order to make it clearer that surety
bonds are not the only means of provin
financial responsibility.
VI. Changes to Part 146
A. Definitions
The Agency proposes to amend the
definition of “packer” by deleting the
words “which can be expanded” from
the current definition since it is aware
that non-expandable packers are
available. The type of packer used in a
particular circumstance will be
discussed as part of a permit applicatio
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48249
process and the Director has the
ultimate responsibility to approve or
d ‘rove the use of a given packer.
gency is adding two definitions
ection, one for “conventional
mIIa .. and the other for “experimental
technologies.” These terms have been
used in the recently promulgated
technical amendments to the regulations
and these definitions have been added
for the benefit of the regulated
community.
B. Plugging ondAbondorunent
Section 146.10(b) specifies that the
placement of plugs during the
abandonment of wells in Classes I—Ill
must be accomplished by the use of one
of three methods. The three methods
named are currently the major
acceptable methods for placing plugs. By
specifying the use of one of the three
methods, the Agency intended to assure
the use of readily available and effective
technology in the abandonment of wells.
It is, however, possible that new
methods for the placement of plugs may
be developed in the future which are as
good as, or better than, the existing
technology. Since § 148.10 does not
provide for the use of any alternatives to
the three specified methods, the wording
of the requirement could work to
fruetrate the development and use of
r ‘thnology. Such a result was not
1 :ncy’s intent. Therefore, this
a.. 4 mefit would provide the Director
the discretion to allow the use of a
method for placing plugs, other than
those specified, as long as the -
alternative can be shown to be at least
as effective as the ones specified.
VII. Economic and Regulatory Impacts
A. Expected Economic Impact
The regulations being proposed today,
if promulgated: will result in saving to
owners and operators of approximately
$70 million over five years over the costs
they would have incurred under the
existing regulations. These savings
result from reductions In the
requirements for mechanical integrity_.
testing, monitoring and reporting. and
permit application for Class II wells, as
well as the removal of certain wells
from coverage under Class III. The
proposed regulations are not expected to
have any impact on oil and gas
production, or on production from Class
Ill operations.
In addition to savings to owners and
operators EPA expects the States to
sa’ $1.4 million over five years due to a
d number of permits to review as
less detailed information to
eva,.iate in the application.
A detailed economic analysis of this
proposal is available upon request.
B. Paperwork Reduction
The proposed r gulations will result in
a lesser paperwork burden on owners
and operators, as well as State
enforcement bodies, by reducing the
amount of monitoring information which
must be collected and the number of
times per year the Information is to be
submitted. In addition, less detailed
information will be required on permit
applications, and applications for area
permits can cover wells of various
classes, not just wells of similar
construction. These changes are
expected to result in a reduction of
213,000 hours of monitoring and
reporting time expended by owners and
operators, and a reduction of 102.000
hours of permit processing time by the
States, over a five-year period.
C. Impact on Small Businesses
Under the Regulatory Flexibility Act
an agency is required to prepare an
Initial regulatory flexibility analysis
whenever it is required to publish
general notice of any proposed rule,
unless the head of the agency certifies
that the rule, if promulgated will not
have a significant.economic impact on a
substantial number of small entities
These proposed regulations will reduce
the costs to small Class II businesses.
(The Agency knows of no small
businesses affected by the changes in
the Class Ill regulations.) As noted in
the separate document discussing the
economic effects of these proposed
regulations, the Agency examined two
potential definitions of a small entity for
Class II operations. One involved a
definitiozi by the Department of Energy
based on the production of a firm with a
small oil and gas firm producing
annually less than 400.000 barrels of oil
or less than 2 billion cubic feet of gas.
Approximately 97% of the firms
producing oil and gas fall into this
category. An alternative definition was
based upon well production with
stripper wells defined as those
producing less than 10 barrels per day of
oil. Stripper wells account for
approximately 70% of all producing
wells. Under both definitions it seems
probable that the majority of resource
savings from this proposed change could
accrue to small entities. Therefore, the
Administrator certifies that this
regulation will not have a significant
impact on a substantial number of small
entities.
The economic effects of these
proposed regulations on small
businesses are discussed in greater
detail in a separate background
document available from the Agency.
D. Executive Order 12291
Under Exectuive Order £2291, EPA
must judge whether the amendments to
the regulation are major and there ore
subject to the requirements of a
regulatory impact analysis. These
proposed amendments modify certain
monitoring and reporting requirements,
provide greater flexibility to operators
and to State enforcement agencies and
generally make the regulations more
flexible and less burdensome for a
eavings of approximately $70 million
over five years. They therefore do not
constitute major rulemaking. This
proposal was submitted to 0MB for
review as required by Executive Order
12291.
(Sec. 1421. 1422,1423, 1431. 1445. 1447. 1450.
Safe Drinking Water Act, as amended 42
U.S.C. 300(f) et. seq.)
Dated: September 19. 1981.
Arnie M. Gorsuch,
Administrator.
40 CFR Part 122 is amended as
follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM; THE
HAZARDOUS WASTE PERMIT
PROGRAM: AND TIlE UNDERGROUND
INJECTION CONTROL PROGRAM
1. In 122.3 the definition for
“underground source of drinking water”
is revised and a definition of “Project”
added to read as follows:
122.3 Definitions.
• • 4 4 •
P,o;ect means a group of wells in a
single operation.
Undet round source of drinking water
(USDW) (RCRA and UIC) means an
aquifer or its portion:
(1)(i) Which supplies any public water
system; or
(ii) Which contains a sufficient
quantity of ground water to supply a
public water system; and
(A) Currently supplies drinking water
for human consumption; or
(B) Contains fewer than 10,000 mg/i
total dissolved solids; and
(2) Which is not an exempted aquifer.
2. In § 122.10 paragraph (a)(4) is
revised to read as follows:
122.10 Schedules of compliance.
(a)
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Federal Register / Vol. 46, Nd 190 I Fhursday, October 1, ig8i / Proposed Rules
(4) Reporting—A RCRA or NPDES
permit shall be written to require that no
later than 14 days following such interim
date and the final date of comphance,
“ e permittee shall notify the Director in
riting of its compliance or
aioncompliance with the interim or final’
requirements. A UIC permit shall be
written to require that if paragraph
(a)(1)(ii) of this section is applicable.
progress reports be submitted no later
than 30 days following each interim date
and the final date of compliance.
3. In § 122.31 the introduction to
paragraph (d) is revised and paragraph
(dli2)(iii) is redesignated (d)(2)(iv) and a
oew (d)(2)(iii) is added to’read as.,
follows: - -
122.31 Purpos. and scope of subpart C.
• • • • •
(d) Scope of the permit or rule
requirement. The UIC permit program
regulates underground injections by five
classes of wells (see definition of “well
iniection,” § 122.3). The five classes of
wells are set forth in § 122.32. 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,
the Subpart provides that no injection
shall be authorized by permit or rule if it
results in the movement of fluid
containing any contaminant Into
JSDWs 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 ( 122.34).
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 ( 122.36). 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 ( 122.37) or the
Director must require remedial action or
closure by order ( 122.34(c)). During
UIC program development, the Director
may identify aquifers cnd portions of - -
aquifers which are actual or potential
sources of drinking water (see § L23.4(g)
for State programs). 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 whicl have
no real potential to be used as drinking
water sources. Therefore they are not
USDWs. No aquifer is an “exempted
dquifer” until It has been affirr Itively
designated under the procedu.. in
§ 122.35. 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.
(2) • • r
(iii) Nonresidential ceespoola, septic
systems or similar waste disposal
systems if such systems (A) are used
solely for the disposal of sanitary waste,
an I B)’havèthdcapacity ’l ’servè fewer
than 20 persons a day.
(iv) Any dug hole which is not used
for emplacement of fluids underground.
4. In § 122,32 paragraphs (a)(1), (b)(1)
and (ci) are revised and (c)(4) and (5) are
removed to read as follows:
§ 122.32 ClassIfication of Injection wells.
(a) Class I. (1) Wells used by
generators of hazardous wastes or
— owners or operators of hazardous waste
management facilities to inject
hazardous waste beneath the lowermost
formation containing, within one quarter
mile of the well bore, en underground
source of drinking water.
(b) Class IL (1) Which are brought to
the surface in connection with
conventional oil or natural gaa
production and may be commingled
with waste waters from gas plants
which are an integral part of production
operations, unless thosi waters are
classified as a hazardous waste at the
time of injection,
* . S S S
(d) Class IV. -
(1) Wells used by generators of
hazardous wastes or of radioactive
wastes, by owners or operators of
hazardous wastes management
facilities, or by owners or operators of
radioactive waste disposal sites to
dispose of hazardous wastes or -
radioactive wastes into a formation
which within one quarter (¼) mile of the
well contains an underground source of
drinking water,
(2) Wells used by generators of
hazaidous wastes or of radioactive
wastes, 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
above a formation which within one -
quarter (¼) mile of the well contains an
underground source of drinking water.
(3) Wells used by generators of
hazardous wastes or owners or
operators of hazardous waste
management facilities to dispose of
hazardous wastes, which cannot be
classified under § * 122.32(a)(1) or
122.32(d)(1) and (2) (e.g., wells used to
dispose of hazardous wastes into or
above a formation which contains an
aquifer which has been exempted
pursuant to § 146.04).
• • 5
5. In § 122.34 paragraphs (a) and (b)Aa
are revised to read as follows:
* 122.34 ProhibitIon of movement of fluid
Into underground sources of drinking
vat.r.
(a) No authorization by permit or rules
shall allow 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, II , and Ill wells, If any
water quality monitoring of an
underground source of drinking water -
Indicates the movement pf 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 § 122.15, or the permit.
may be terminated under § 122.16 ii
cause exists, or appropriate enforcement
action may be taken if the permit has
been violated. In the case of wells
authorized by rule, see § 122.37(a).
. • S S S
6. In * 122.35 paragraph (b) is revised
and paragraph (c) Is added to read as
follows:
• 122.35 IdentIfication of underground
sources of drinking water.
• S S S S
(b)(1) 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
gradient) which are clear and definite,
all aquifers or parts thereof which the
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48251
Federal Register / Vol. 46, ’ No. 190.! Thursda ,O tober ” 11981 / Proposed Rules
Director proposes to designate as
exempted aquifers using the criteria in
n CFR 146.04.
‘No designation of an exempted
r submitted as part of a UIC
jam shall be final until approved by
the Administrator as part of the State
program.
(3) Subsequent to program approval,
the Director may. after notice and
opportunity for a public hearing, identify
additional exempted acquifers.
Exemption of aquifers identified (i)
under § 146.04(b) shall be treated as a
program revision under § 123.13; (ii)
under § 146.04(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
Ad ninistrator shall state the reasons
and shall constitute final agency action
for purposes of judicial review.
(c)(1) For Class HI wells, the Director
shall require an applicant for a permit
which necessitates an aquifer exemption
under § 146.04(b](1) 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 d3scription of the mining zone,
al information on the mineralogy
aochemistry of the mining zone,
/sis 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 § 122.38(c).
Approval of the aquifer exemption shall
be treated as a program revision under
§ 123.13.
(2) For Class II wells, a demonstration
of commercial producibility shall be
made as follows:
(i) For a Class II 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 demonstratlpn by the applicant of
historical production having occurred m
the project area or field.
(ii) For Class II wells not located in a
held or project containing aquifers from
which hydrocarbons were previously
produced, Information such as logs, core
data, formation description, formation
depth, formation thickness and
formation parameters such as
‘iability and porosity shall be
‘ered by the Director, to the extent
.nformation is available.
7. In § 122.37 paragraphs (a)(1)(iii)(D).
(a)(2)(i)(D), and (a)(3) are revised to read
as follows:
§ 122.37 AuthorizatIon of underground
Injection by nile.
(1)
(iii) • •
(D) Section 122.41(e}—(notice of
abandonment ;
(2)’
(D) Section 122.41(e)—(notice of
abandonment); .
(3)(i) Injection Into existing Class IV
wells as defined in § 122.32(d)(1) may be
authorized for a period not to exceed six
months after approval or promulgation
of the UIC program. Such rules shall
apply the requirements of § 122.45(c).
(ii) Injection into existing Class IV
wells as defined in § 122.32(d)(2) and (3)
may be authorized until six months after
approval or promulgation of an UIC
program incorporating criteria and
standards under Part 146. Subpart E
applicable to Class IV injection wells.
Such rules shall apply the requirements
of § 122.45(c). -
8. In § 122.39 paragraphs (a)(1), (a)(3),
(a)(4) and (c)(1) and the introduction to
(c) are revised to read as follows:
§ 122.39 Area permits.
• • • •
(a)
(1) Described and identified by
location in permit application(s) if they
areexisting wells, except that the
Director may accept a single description
of wells with substantially the same
characteristics;
• . • .• •
(3) Operated by a single owner or
operator; and
(4) ‘Used to inject other than
hazardous waste. -
• • • • •
(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.
9. In § 122.41 paragraphs (b) and (e)
are revised to read as follows:
§ 122.41 Additional conditions applicable
to all UIQ permits.
• • • * •
(b) In addition to § 122.7(j)(2)
(monitoring’and records): the permittee
shall retain records concerning the
nature and composition of all injected
fluids until three years after the
completion of any plugging and
abandonment procedures specified
under § 122.42(f). The Director may
- require the owner or operator to deliver
the records to the Director at the
tonclusionof the retention period.
(e) 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.
10. In § 122.42 paragraph (g) is revised
to read as follows:
§ 122.42 EstablishIng UIC permits.
conditions.
• • • • •
(g) Financial responsibility. The
permit shall require the permittee 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.
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
40 CFR Part 146 is amended as
follows:
1. In § 146.3 the definitions for
“Conventional mine”, “Experimental
technology”, and “Project” are added
and the definitions for “packer” and
“underground source of drinking water”
are revised to read as fQllows:
§ 146,3 - Definitions.
• • • •
.
Con ventional mine means an open pit
or underground excavation for the
producticinof minerals.
Experimental technology means a
technology which has not been proven
feasible under the conditions in which It
is being tested. • *
Packer means a device lowered into a
well to produce a fluid-tight seal within
thecasing.
Project means a group of wells in a
single operation.
Underground source of drinking water
(USDW) means an aquifer or its portion
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48252 - Federal Register I Vol. 48, No. 190 I Thursday, ‘Octo er j g j / Proposed Rules
(1)(i) Which supplies any public water.
system; or
(ii) Which contains a sufficient
‘uantihl of ground water to supply a
blic iater system; and
A) Currently supplies drinking water.
br human consumption; or
(B) Contains fewer than 10.000 mgI I
total dissolved solids; and
(2) Which is not an exempted aquifer.
2. In 146.4 paragraph (b)(1) and
(b)(4) are revised and (c) Is added to
read as follows: -
§ 146.4 Cdterla for exempted aquifers.
• • S S
• . .
(1) It is mineral, hydrocarbon or
geothermal energy producing, or can be
demonstrated by a permit applicant as
part of a permit application for a Class II
or III operation to contain minerals or
hydrocarbons that considering their
quantity and location are expected to be
commercially producible.
• * b • S -
(4) It Is located over a Class III well
mining area subject to subsidence or
catastrophic collapse; or
(c) The Total Dissolved Solids content
of the ground water is more than 3,000
and less than 10,000 mg/I and it is not
reasonably expected to supply a public
water system.
3. In § 146.5 paragraphs (a)(1). (b)(1).
), (e)(2), (e)(9), (e)(12) and the
.ntroduction to paragraph (e) are
revised, (e)(16) is added and (c) (4) and
(5) are removed to read as follows:
§ 146.5 ClassificatIon of Injection wells.
• • S S
(1) Wells used by generators of
hazardous waste or owners or operalors
of hazardous waste management
facilities to inject hazardous waste
beneath the lowermost formation
containing, within one quarter (¼) male
of the well bore, an underground source
of drinking water.
(1) Which are brought to the surface in
connection with conventional oil or
natural gas production and may be
commingled with waste waters frcn gas
plants which are an integral part of i.
production operations, unless those
waters are classified as a hazardous
wasteal the time of injection. -
(d) class/v. (1) Wells used by
generators of hazardous wastes or of
adioactive wastes, by owners or
perators of hazardous waste
.nanagement facilities, or by owners or
operators of radioactive waste disposal
sites td dispose of hazardous wastes or
radioactive wastes into a formation
which within one quarter (¼) mile of the
well contains an underground source of
drinking water:
(2) Wells used by generators of -
hazardous wastes or of radioactive -
wastes by owners or operators of
hazardous waste management facilities.
or by owners or operators of radioactive
waste disposal sites to dispose of - -
hazardous wastes or radioactive wastes
above a formation which within ¼ mile
of the welt contains an underground
source of drinking water.
(3) Wells ised by generators of
hazirdoü *aife öi wners ôr
operators of hazardous waste
management facilities to dispose of
hazardous wastes, which cannot be
classified under § § 146(a)(1) or 148.5(d)
(1) and (2) (e.g.. wells used to dispose of
hazardous wastes into or above a
formation which contains an aquifer
which has been exempted pursuant to
146.4).
(e) Class V—Injection wells not
included in Class I, H, III, or IV. Class V
wells include: *
(2) Cesspools includiiig multiple -
dwelling, community or regional
cesspools, or other devices that receive
wastes which have an open bottom and
sometimes have perforated sides. The
UIC requirements do not apply to single
family residential cesepools nor to non-
residential cesspools which receive
solely sanitary wastes and have the
capacity to serve fewer than 20 persons
aday.
(9) Septic system wells used to inject
the waste or effluent from a multiple
dwelling, business establishment. -
community or regional business
establishment septic tank. The UIC
requirements do not apply to single
family residential septic systemwells.
nor to non-residential septic system
wells which are used solely for the
- disposal of sanitary waste and have the
capacity to serve fewer than 20 persons
a day.
• * -•• - ., S
(12) Injection wells associated with
the recovery of geothermal energy for
heating. aquaculture and production of
electric pqwer , .-.• - . -
(16) Injention wells used for in situ
recovery of lignite. coal, tar sands, and
oil shale.
4. In § 146.8 the introduction to
paragraph (b) is revised and paragraphs
(b)(3). (c)(3) and (c)(4) added to read as
follows:
§ 146.8 MechaniCal Integrity.
(b One of the following methods must
be use -to-eve ua
signihcant.leaks under paragraph (a)(1)
of this section :
• S • • •
(3) Records 6f monitoring showing th ’
absence of significant changes in the.
‘ ‘re1ationship between injection pressure.
and injection flow rate for the following
Class II enhanced recovery wells: -
(I) Existing wells completed without a
packer provided that a pressure test has
been performed and the data is
available arid provided further that one
pressure -lest shall be.per!ormed at a -
time when the well is shut down and if
the running of such a test will not cause
further loss of significant amounts of oil
or gas; or
(ii) Existing wells constructed without
a long string casing, but with urface
casing which terminates at the base of
fresh water provided that local
geological and hydrological features
allow such construction and provided
further that the annular space shall be
visually inspected. For these wells, the
Director shall prescribe a monitoring
program which will verify the absence
of significant fluid movement from the.
injection zone into an USDW.
(c)
(3) For Class Ill wells where the
-nature of the casing precludes the use of
the logging t hniques prescribed at
(c](1)’of this paragraph, cementing
records demonstrating the presence of
adequate cement to prevent such
migration: -
(4) For Class lii wells where the
Director elects to rely on cementing
records to demonstrate the absence of
significant fluid movement, the
monitoring program prescribed by
* 146.33(b) shall be designed to verify
the absence of significant fluid
movement.
I. • • • •
/ 5. In § 146.10 paragraphs (a) and (d)
/ are revised and paragraph (b)(4) is
¼ .added to read as follows:
* 146.10 PluggIng and Abandoning Class
I-lit Wells.
(a) Prior to abandoning Class I—lU
wells the well shall be plugged with
cement in a manner which will not
allow the movement of fluids either into
or between underground sources of
drinking water. The Director may allow
Class III wells to use other plugging
materials if he is satisfied that such
materials will prevent movement of
fluids into or between underground
sources of drinking water.
(b)
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Federal Register I Vol. 46. No. 190 I Thursday. October 1 1981 1 Proposed Rules
48253
. . .
u, (he plugging and abandonment
plan required in 40 CFR 122.42( 1) and
122.41(e) shall, in the case of a Class II I
project which underlies or Is in an
aquifer which has been exempted under
40 CFR 146.04. also demonstrate
adequate protection of USDWs. The
Director shall prescribe aquifer cleanup
and monitoring where he deems it
necessary and feasible to insure
adequate protection of USDWs.
6. In § 146.22 paragraphs’ (b) (4),.(5) .,
(6). and (7) are removed; the -
introductory text to paragraph (b) is
redesignated as paragraph (b)(1); the
existing paragraph (b](1) is redesignated
as (b)(1)(i); paragraphs (b) (2) and (3] are
redesignated (bfli) (ii) and (iii) and
revised; (b)(2) is added: the introduction
to (f)(2)(i). paragraphs (f)(2)(i)(A).
(fl(2)(ii)(A), and (g) are revised to read
as follows:
9146.22 ConstructIon requirements.
a a a I I
(b)(i)
(ii) Depth to the bottom of all USDWs;
(iii) Estimated maximum and average
injection pressures;
“ In addition the Director may
c ‘information on:
lure of formation fluids;
l , uthology of injection and
confining zones;
(iii) External pressure. internal
pressure, and axial loadin ,g
(iv) Hole size:
(v) Size and grade of all casing-strings;
(vi) Class of cement
(2)
(i) For surface casing intending to
protect underground sources of drinking
water In areas where the lithology has
not been determined:
(A) Electric and caliper logs before
casing is installed: and
(ii)
(A) Electric, porosity and gamma ray
logs before the casing Is installed;
(g) At a minimum, the following
information concerning the injection
formation shall be determined or
calculated for new Class 11 wells or
projects:
(1) Fluid pressure;
1 ’ estimated fracture pressure;
‘ sical and chemical
ci ristics of the Injection zone.
7. In § 146.23 the introduction to
paragraph (b)(2) is revised and a
paragraph is added at the end of (b)(2)
to read as follows:
9146.23 OperatIng, monitoring and
reporting requirements.
a a I •a I
(b)a * a -
(2) Observation of injection pressure,
flow rate, and cumulative volume at
least with the following frequencies:
And recording of one observation of
Injection pressure, flow Tate and
cumulative volume at reasonable
intervals no greater than 30 days.
8. In §148.thrstb) n (cj.
are redesignated (c) and (d)
respectively; paragraphs (a) (10) through
(14) are removed; paragraphs (a) (4)(iii),
(5), (6), (8) and (9) are revised; and a
new paragraph (b) is added to read as
follows:
* 14524 (Amended)
• a a a *
(a)
(4) • •
(iii) Source and an appropriate
analysis of the chemical and physical
characteristics of the injection fluid.
(5) Appropriate geological data on the
injection zone and confining zone
including lithologic description.
geological name, thickness and depth;
(8) Geologic name and depth to
bottom of all underground sources of
drinking water which may be affected
by the Injection;
(B) In the case of new ii jection wells
the corrective action proposed to be
taken by the applicant under 40 CFR
122.44; -
• (9) A certificate that the applicant has
assured through a performance bond or
other appropriate means, the resources
necessary to close, plug or abandon the
well as required by 40 CFR 122.42(g);
(b) In addition the Director may
consider the following:
(1) Proposed formation testing
program to obtain the information
required by 9 146.22(g);
(2) Proposed stimulation program;
(3) Proposed injection procedure;
(4) Proposed contingency plans, if any,
to cope .with well failures so as to
prevent migration of contaminating
fluids into an underground source of
drinking water,
(5) Plans for meeting the monitoring
requirements of.9 148.23(b).
9. In 9 148.32 the introduction to
paragraph (a), and paragraphs (b) (c)
and (d) are revised to read as follows:
9146.32 ConstructIon requirements.
(a) All new Class Ill wells shall be
cased and cemented to prevent the
migration of fluids into or between -
underground sources of drinking water.
The Director may waive the cementing
- ‘ requirement for new wells in existing
projects or portions of existing projects
where he has substantial evidence that
no contamination of underground
sources of drinking water would result.
The casing and cement used in the
construction of each newly drilled well
shall be designed for the life expectancy
of the well. In determining and
specifying casing and cementing
requirements, the following factors shall
be considered:
• • * • •. : “‘
(b) Appropriate logs and other tests -
shall be conducted during the drilling
and construction of new Class ill wells.
A descriptive report interpreting the
results of such logs and teats shall be
prepared by a knowledgeable log
analyst and submitted to the Director.
The logs and tests appropriate to each
type of Class III well shall be
determined based on the intended
function, depth, construction and other
characteristics of the well, availability
of similar data in the area of the drilling
site and the need for additional
Information that may arise from time to -
time as the construction of the well
progresses. Deviatio i checks shall be
conducted on all holes where pilot holes
and reaming are usea, unless the hole
will be cased and cemented by
circulating cement to the surface. Where
deviation checks are necessary they
shall be conducted at sufficiently
frequent intervals to assure that vertical
avenues for fluid migration in the form
of diverging holes are not created during
drilling.
(c) Where the injection zone is a
formation which is naturally water.
bearing the following information
concerning the injection zone shall be
determined or calculated for new Class
Ill wells or projects:
(1) Fluid pressure.
(2) Fracture pressure, and
(3) Physical and chemical -
characteristics of the formation fluids.
(d) Where the injection formation is
not a water bearing formation, the
Information in paragraph (c)(2) of this
section must be submitted.
a a a - I a -
10. In § 146.33 paragraphs (b)(i), (b)(2),
(b)(3) and (b)(4) are revised to read as
follows;
9146.33 (Amended]
• I a •
-
(4) or an alternative method approved
by the Director, which will reliably C
provide a comparable level of protection
t’ ‘argroijnd sources of drinking
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4&254
Federal Register! Vol. 46. No. 190 / Thursday , October 1, 1981 g’ Proposed Rules
(b)
(1) Monitoring of the nature of
injected fluids with sufficient frequency
to yield representative data on its
haracteristics. Whenever the injection
.uid is modified to the extent that the
analysis required by § 148.34(a)(7)(th) is
incorrect or incomplete, a new analysis
as required by § 146.34(a)(7)(iii) shall be.
provided to the Director.
(2) Monitoring of injection pressure
and either flow rate or volume semi-
monthly, or metering and daily
recording of injected and produced fluid
volumes as appropriate.
(3) Demonstration of mechanical
integrity pursuant to § 148.08 at least
once every five years during the life of
the well for salt solution mining.
(4) Monitoring of the fluid level in the
injection zone semi-monthly, where
appropriate and monitoring of the
parameters chosen to measure water
quality in the monitoring wells required
by § 146.32(e). semi-monthly.
• a a * a
Ii. In § 146.34 paragraph (a)(4),
(a)(7J(iii), (a)(8) and (b)(2), are revised to
read as follows:
§ 146.34 Inlomiatlon to be considered by
the Director.
.. a a a
(4) Maps and cross sections indicating
the vertical 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 every underground source of
drinking water which may be affected
by the proposed injection;
(7)’’•
(iii) Qualitative analysis and ranges in
concentrations of all constituents of
injected fluids. The applicant may
request Federal confidentiality as
specified in 40 CFR Part 2. If the
information is proprietary an açplicant
may. in lieu of the ranges in
concentrations, choose to submit
maximum concentrations which shall
not be exceeded. In such a case the
applicant shall retain records of the
andisclosed concentrations and provide
them upon request to the Director as
part of any enforcement investigation.
(8) Proposed formation testing
rogram to obtain the information
equired by § 146.32(c).
b a a a a
(b) • a a
(2) A satisfactory demonstration of
nechanical integrity for all new wells
and for all existing salt solution wells
pursuant to § 146.08; -
IFS Dcc. 5I 1M FiI.d e. O-8i. t45 imJ
BU.UNG 000E S510-25-M
4OCFR Parts l22and 146
(SW-FRL-1943-7)
Undèrgrouhd Injection Control
Program Criteria and Standards;
Hearings
AGENCY: Environmental Protection
Agency.
Acriow: Notice of public hearings .
SUMMARY The U.S. Environmental
Protection Agency (EPA has proposed a
set of amendments to the regulations
establishing the Underground Injection
Control (UIC) Program under the Safe
Drinking Water Act (SDWA). The
proposed regulations represent changes
to 40 CFR Part 122 (procedural
requirements under the Consolidated
Permit regulations) and 40 CFR Part 146
(Technical Criteria and Standards, State
UIC Programs) which were promulgated
on May 19, 1980 and June 24, 1980. Most
of the proposed amendments are part of
a settlement the Agency reached as a
result of a suit filed by trade
associations, mining companies, oil and
gas producers, iron and steel producers.
and the State of Texas. In addition. the
Agency proposes to provide greater
flexibility in establishing the
requirements for plugging and
abandoning wells. To meet the tight
schedule contained in the settlement
stipulations and so satisfy the public
notice requirements of 40 CFR Part 25, -
EPA hereby gives notice of its intention
to hold two one-day public hearings in
November 1981 at the locations listed
below.
The Agency also intends to publish a
proposal amending 40 CFR Part 122 to
allow more flexibility in developing an
UIC program for Class II wells located
on Indian lands. If practical, the Agency
will receive comments on this proposal
at the above scheduled public hearings.
Those wishing to participate should
confirm the dates and locations at the
address given below, before attending
either hearing.
DATES: The hearings will be held in
Washington, D.C. on November 2, 1981
and in Denver, Colorado on November
5,1981. In addition to the public
hearings, EPA will accept written public
comments on the proposed amendments
ijntil 45 days after they are published in
the Federal Register.
ADDRESSES The November 2, 1981
hearing will be held at the Humphrey
Building. Humphrey Auditorium, 200
Independence Avenue, Washington.
D.C. The November 5, 1981 hearing will
be held in the U.S. Post Office Building,
1823 Stout Street, Room 269, Denver, -
Colorado. The hearings will begin at 8:3G
a.m. on both days. The agenda is shown
in the Supplementary Information
section of this document.
Comments and request to speak at the
public hearings should be addressed to
Mr. Thomas E. Belk, Chief, Ground
Water Protection Branch, Office of
Drinking Water (WH-550) U.S. EPA. 401
M Street, SW., Room 1045 East Tower,
Washington, D.C. 20460. Copies of the
proposed amendments will also be
available at this location.
FOR FURTHER INFORMATION CONTACV.
Mr. Thomas E. Belk. (202) 426—3934.
SUPPLEMENTARY INFORMATION: In
general, the proposed amendments
attempt to increase flexibility of State
Programs, reduce paperwork and
reporting burdens, and solve some
problems which would have made
compliance difficult for specific
industries. The Agency believes that
these actions are possible without
ssicrificing the environmental benefits
expected from the program.
The Agency proposes to make the
following changes to the regulations
JSee FR Doc. 81—28164 in the Proposed
Rules Section of this issue).
• Amend the definition of -
undergroun8 source of drinking water
(USDW) to reflect more closely the
language of the Safe Drinking Water Act.
(SDWA). Under the proposed definition,
an USDW would be an aquifer that (1)
currently supplies any public water
system (PWS); or (2) a formation that
contains a quantity of ground water
sufficient to supply a PWS, and either
currently supplies drinking water or
contains fewer than 10,000 mg/i TDS.
Provide increased flexibility for
exempting aquifers between 3,000 and
1O,00G mg/i TDS which could be
exempted by the State Director if they
were not reasonably expected to supply
a public water system. Designation of
exempted aquifers, under this new
criterion, would become effective within
45 days of a written notification of such
designation by the State Director to the
Administrator unless the Administrator
disapproves of the submission in -
writing.
• Modify the “no migration” standard
as defined in Section 122.34. The
standard as now proposed would be
tied to the statutory language. However,
the prohibition against migration has
been retained in Part 146 when
appropriate, except for a change of
-------
Federal Register I Vol. 48, No . 190 I Thursday. October 1. 1981 I Proposed Rules
48255
wording in Section 146.10(d) to call for
“p ’uate protection” after
nment of certain Class UI
ons
.arify that existing Class IV wells
injecting Into exempted aquifers may
continue operations, and provide for
authorization by rule for Class IV wells
for which requirements were reserved in
the promulgated regulations.
Reclassify several types of wells:
Non-residential septic systems serving
fewer than 20 people would be
exempted from control.
—Gas “blow down” wells located in
producing fields would be hi Class II.
—Certain brine disposal wells or -
halogen reco ery proces es Would bè’in
Class V. -
—Geothermal wells would be in Class
• Amend the mechanical integrity
testing requirements to allow for
increased flexibility where appropriate,
specifically:
—Monitoring of pressure and volume
for Class II enhanced recovery wells
could be used as a valid demonstration
after an initial test.
—Certain wells cannot test using
conventional methods could monitor
USDWS and submit data on operating
pajameters in lieu of the tests now listed
I’ ‘egulatlons.
las III wells could demonstrate
.nical integrity through cementing
,records.
• Allow for the use of materials ther
than cement for plugging of Class III
wells provided that the Director Is
satisfied (through historical practices.
for example) that the alternative is
effective.
• Clarify requirements for area
permits.
• Ease information requirements:
—The logging requirements would he
eased where local lithology is known.
—Area permit applications would
only require description of typical wells
rather than each well.
—Specificity of analysis of injected
fluids would be reduced.
—Applicants would only be
responsible for information reasonably
available.
• Amend the monitoring requirements
to bring them closer to current practices.
Public Hearing Agenda:
The agenda for the hearings is as
follows:
Revistration—8:30 AM—e,OO AM
d Amendments to UIC Regulations
oposed amendment for UIC
. ems on Indian 1.ands—9.00 AM—500
PM or until all speakers have been heard
Background Documents.
Background documents in support of
the proposed rule are available for
review in all EPA Regional office
libraries, in the EPA Headquarters
(Public Information Reference Unit).
Room 1404. Waterside Mall, 401M
Street. SW. Washington, DC. and in the
docket located in Room 1045, East
Tower, 401 M Street. SW, Washington,
DC. - . ., -. -..
— — -. — — I_ —
Dated: September 23.1981. -. ‘ .,
BnzceR.Rariett,
ActingAssistontAdminlszmtor for Water.
(FR Dcc. 51-28656 Filed 5-30-11. 145 .mj
BIWNO CODE 6550-25-N
-—J ,i
FEDERAL EMERGENCY
MANAGEMENT AGENCY
44 CFR Part 67
[ Docket No. FEMA-60741
National Flood insurance Program;
Proposed Flood Elevation
Determinations; Massachusetts
AGENCY: Federol Emergency
Management Agency.
ACTION: Proposed rule; correction .
SUMMARY: This document corrects a
Notice of Proposed De ermInatlons of
base (100-year) flood elevations
previously published at 46 FR 30121 on
June 5, 1981. This correction notice
provides a more accurate representation
of the Flood Insurance Study and Flood
Insurance Rate Map for the Town of
Ayer, Middlesex County
Massachusetts
- EFFECTIVE DATE: October 1, 1981.
FOR FURTHER INFORMATION CONTACT:
• Mr. Robert C. Chappell. P.E., Federal
Emergency Management Agency,
National Flood Insurance Program (202)
287-0270, Washington. D.C. 20472.
SUPPLEMENTARY INFC MATION: The
Federal Emergency Management
Agency gives notice of the correction to
the Notice of Proposed Determinations
of base (100-year) flood elevations for
selected locations in the Town of Ayer,
Middlesex County. Massachusetts,
previously published at 46 FR 30121 on
June 5.1981, in accordance with Section
110 of the Flood Disaster Protection Act
of 1973 (Pub. L 93—234). 87 Stat. 980,
which added Section 1363 to the
National Flood Insurance Act of 1968
(Title XIII of the Housing and Urban
Development Act of 1968 (Pub. L 90-
448)), 42 U.S.C. 4001-4128, and 44 CFR
67.4(a).
Pursuant to the provisions of 5 U.S.C.
605(b). the Associate Director, to whom
authority has been delegated by the
Direclor, Federal Emergency
Management Agency, hereby certifies
that the prop’sed flood elevation
determinat is, if promulgated, will not
have a significant economic impact on a
substantial number of small entities. A
flood elevation determination under
section 1363 forms the basis for new
local ordinances, which, if adopted by a
local community, will govern future
construction within the flood plain area.
The elevation determinations, however,
Impose no restriction unless and until
the local community voluntarily adopts
flood plain ordinances in accord with
these elevations. Even if ordinances are
adopted in compliance with Federal
standards: the elevations prescribe how
high to build in the flood plain and do
not proscribe development. Thus, this
action only forms the basis for future
local actions. It imposes no new
requirement; of itself it has no economic
impact.
The location descriptions listed below
have been amended to read as follows:
Sowc. of
Ooo
EIIVIX i ’I
m lcd
Nedional
0 10dedic
v eflici l
dediec
Bernetti
Bro
Second upsD.wi Coipoict.
TPàd csssen Cc.poi&e Lindts. -
251
256
In addition, the following stream
names have been changed:
I m
Nanacofais Brook I _. ,...___J Brook
Tieutwy do Ptiramne Brondi 1 I I.ong Paid Brook
N, . . .. ... .l BrocI 2 ____ B ri Brook
(National Flood Insurance Act of 1988 (Title
XIII of Housing and Urban Development Act
oF 1988). effective January 28,1969 (33 FR
17804. November 28, 1968). as amended: 42 —
U.S.C. 4001-4128 Executive Order 12127.44
FR 19367: and delegation of authority to the
Associale Director).
Issued: September 21,1981.
Iolw E. Dickey,
ActingAssociate Director. State and Local
Programs and Suppofl.
hR Dc c. Si-SUN Filed 5-30.11,8.45 .ml
55WNO CODE 671843-86
44 CFR Part 67
IDocket No. FEMA-60791
National Flood Insurance Program;
Proposed Flood Elevation
Determinations; Massachusetts
AGENCY: Federal Emergency
Management Agency.
-------
13
-------
4992 Federal Register I Vol. 47. No. 23 I Wednesday, February 3, 1982 I Rules and Regulations
are similar. and. therefore. (4) ambient
pollutant levels should decrease from
those levels which would occur under
the Indiana SIP or Indiana’s previously
submitted “RACT” regulations. EPA,
today. is approving both the emission
limits and the mass per year limit.
contained In the revised Farm Bureau
submission. -
EPA’s approval of these revised
particulate emission limits does not
affect any other SIP regulation which is.
applicable to the facility, including
opacity limits. Indiana’s particulate SIP
does not contain methods to determine
compliance for non-stack sources such -
as Farm Bureau. This deficiency Is being
addressed In EPA’s analysis of Indiana’s
Part 0 particulate SIP. which should be
proposed in the Federal Register shortly.
and, therefore, will not be addressed in
today’s action. EPA’s action on
compliance methods in its Part D
rulemaking will apply to Farm Bureau as
well.
Because EPA considers today’s action
as noncontroversial and routine. It Is
approving It today without prior
proposal. The public is advised that this
action will be effective April 5, 1982.
However, if notice Is received by EPA
within 30 days that someone wishes to
submit adverse or critical comments,
is action will be withdrawn and a
ibsequent notice will be published
efore the effective date. The notice will
withdraw the final action and begin a
new rulemaking by announcing a
proposal of the action and a comment
period. I.
Pursuant to the provisions of 5 U.S.C.
Section 605(b). 1 hereby certify that the
attached rule will not have a significant
economic impact on a substantial
number of small entities, because it only
approves emission limits for a single
source. Furthermore, this action only
approves a State action. It will impose
no new requirements.
The OffIce of Management and Budget
has exempted this rule from the
requirement of Section 3 of Executive
Order 12291.
If no comments are received on
today’s action and it, therefore, becomes
final, judicial review of this action under
Section 307(b)(1) of the Clean Air Act Is
available only by the riling of a petition
for review In the United States Court of
Appeals for the appropriate circuit
within 60 days of today. II comments are
received on today’s action, as discussed
earlier. EPA will withdraw its final
approval and propose today’s action for
public comment. Under these
-e.umstances, a petition for review
-t be filed within 60 days from the
.e of EPA’s ultimate rulemaking.
tinder section 307(b)(2) of the Clean Air
Act, the requirements which are the
subject of today’s notice may not be
challenged later in civil or criminal
proceedings brought by EPA to enforce
these requirements.
Nots. —Incorporatlon by ieterence of the
State Implementation Plan for the Slate of
Indians was approved by the Director of the
Federal Register on July 1,1982.
(Sacs. 110 and 172, Clean Air Act, as
amended (42 U.S.C 7410 and 7502))
Date& January 29, 1982.
Ann. M. Ooreuth. - . -. -.
Administrator.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Title 40 of the Code of Federal
Regulations, Chapter I, Part 5215
amended as follows
Section 52.770 is amended by adding
paragraph (c)(30) as follows
* 52.770 IdentificatIon of plan.
• • * a •
(30) On AprIl 10, 1981, IndIana
submitted revised emission limits for
Indiana, Farm Bureau Cooperative
Association’s Beech Grove plant
• • • U U
IP* D -V?Oflimd54 - t.6 I
NWNO S5IQ1S
40 CFR Parts 122 and 145
EWH-FRLI OI$-23 -
Underground Injection Control
Program Criteria and Standards
AGENCY: Environmental Protection. .—.
Agency. -
ACTION: Final rule
SUMMARY: The Environmental Protection
Agency is promulgating amendments to
Its Consolidated Permit Regulations (40
CFR Part 122) and Technical Criteria
and Standards for State Underground
Injection Control Programs (40 CFR Part
148). The amendments are in response to
petitions for review of the regulations In -
these areas as promulgated on May 19.
1980 end June 24. 1980. The regulations -
are promulgated under Part C of the
Safe Drinking Water Act.
DAYE The regulations in fl
promulgation shall become effective
March 5, 1982: except * 148.23 and
§ 148.33 which contains information
collection requirements which are under -
review at 0MB.
Comments of a technical and non-
substantive nature may be submitted
until March 5. 1982.
ADDRESSES: Comments of a technical
and non-substantive nature should be
addressed to, Judy Long. Comment
Clerk. Ground Water Protection Branch,
EPA, Office of Drinking Water (WH-.
550), WashIngton. DC 20400(202) 755’-
0405.
FOR FURThER INFORMATION CONTACY:
Thomas E. Balk, Chief, Ground Water
Protection Branch, Environmental
Protection Agency. (202) 426—3934.
SUPPtEMENTARY INFORMATION: These
amendments, with very few exceptions. -
are the same as were proposed on
October 1,1981 (45 FR 48249 at seq.). . -
The discussion below explains these
few changes and responds to the major
comments. The preamble of the October
I proposal (45 FR 48243 et seq.) contains
a detailed discussion of the background
and reasons for these amendments and.
in conjunction with the additional
explanation included here, serves as the
Statement of Basis and Purpose for this
rulemaking. -
L Respons. to Comments
Testimony on the proposed
regulations was given at public hearings.
in Washington, D.C. and Denver,
Colorado and was overwhelmingly
favorable. in addition, written
- comments were received which were
generally favorable to the proposal.
However, the Agency received some
adverse comments and some comments
of a technical nature which are
addressed below.
A. Comments on the Major Pmgram
Concepts
Several commenters expresses
concern regarding what they see as
excessive relaxation of requirements
and cite in particular
(1) The revised definition of
Underground Source of Drinking Water
(USDW)
(2) The additional aquifer exemption
criterion;
(3) The changes in the “no-migration”
standard
(4) The shifting of certain practices
from Class III to Class V: and
(5) ContinuIng operation of certain
existing Class IV wells. - -
These changes were proposed by the
Agency only after it was satisfied that
they were consistent with the mandate
of the Safe Drinking Water Act. In
deciding whether or not the proposed-
changes were appropriate, the Agency
considered three key points in the Sale
Drinking Water Act (SDWA):
• The Agency’s mandate is to
promulgate minimum requirements for
effective Stats programs to prevent
-------
Federal R*giitsr 1 Vol. 47, No. 23 / Wedne5duy. February 3. 1982 / Rule5 and RegulatIons 4993
underground injection Which endanger, protect, all currently use l aquife tIsapprove such exemptions
drinkrng water sources (SDWA section. regardless of wheth.r they are currently ( ‘I22.35(c9
:1421(b)(lfl. i ed a s public water system5. The
• The test of endangerment is ‘ deilnition is tied to “public water. - of hi No Migratipn Standard
het her or not injectton may result in system because the SDWA uses Several commenters saw the revision
the pre encein underground water precisely this term to describe what the of 122.34; “ProhibItion of movement of
which supplies OF COfl tVOSOflObJJji1f t1 - d to- i ‘ — ‘- fitad into undergroond sources of
i’ pi ced to upply any public Woter (SDWA section IiZl(dfl2)). drinking water,” as a major weakening
• s; fi. ’n, of any contaminant and if the . . of the lati as. As it ted i th
presenci of that contaminant m.y re,ult- RSVI 5IOn of ths Aquifer Exemption i 10 It C
• •• - Crit 14 • ••• • •preamuie to tne proposal (46 FR 46247). . -
u su n systems not complying with any ‘ a the change In izii4 Is necessitated by
ndtiona 1 pnmary water In addition to existing cnteri the the fact that the statement was too
may otherwise adversely amendments will permil the Director to broad and did not take into
• • section 1 s2 i ç • :.exempt an quif.r not currently a source consideration the fac! that Part 148 as
• The A , e, 1 emp31sau of dnnking water if It contains betweeti originally promulgated allows some
prescrtbe’ reqennts w ic i t er re 3000 and 10,000 m /l total dissolved migrition in certain cases (particularly
with or impedr (A) the underurnund solid, (TOS) and “is not reason.bly cementing of existing or newly
iniection of biineor other fluI which :expected to supply a public water ••• converted Class II welts (1 14822(c) and
are brouokt to the surf system” (SDWA sectIon 1404(c)) (d)) The Agency believes that the
- with oil natural asproduction.or(8) Several comrnenlers expressed th. technical requirements of Part 148. •• . i-
whichretaintherton mIgratioflst.ndsrd : ‘
secondary or tertiary recovery of ml or 3000 and 10.000 m i/I of Iota] diuolved where appropriate are adequate to
1 natural as ’andto” • rovidefor so dirrD 5) isveryvut b bso e en.ureprotectlonofunder round
i consideration o1varytn geolo ic, partaofthecounli’ particularly the sources of drinking water Several
hydrological, or historical condition. : western States, and that the new comrnenters also notedthat in •‘
different States and in different aieas ;.: tmPhi0 i cr1te1400 I not appropriate. I 122.34(b) the duty of the Director to
within a State” (SDWA section 1421(b) - ‘ - I of this concern seems to be based prescribe addiJion.l requirements ss
• (Z) and (3)). •. -. - : -: . - on the assumption that all waters remedial action Is based on an •• • -
The statutory mandate of the Safe COnt ifllflg between 3,000 and io,ooo , indication of the moven t ient of any
Drinking Water Act affords a Fai e of I TUS WIll 1* exempted. The contaminant into an IJSDW The
4iscretiori to EPA In developing specific agrees that aquifers containingb.tween •. comrnenters expressed concern thst
program requirements. These 3.q00 and 10.000 mi/l TDS be contamination would ha . to occur
amendments adjust the requirements as extremely valuable . t and it is for this before any remedy could be undertaken
originally promulgated within that - reason that ha c 1rrent defmltion t i However In addition to t ie authority of
range are consistent with the statutory USDWs retains the 10,000 mg,q the Director to prescribe additional
‘dir cti es cited above and relieve well limit Although the Agency established requirements in 1122.34(b). the Part 146
operators of unnecessarily burdensome national definition for an (JSDW the technical requirements impos. many L
requirements without any significant Agency believes it appropriate to , _m.ndatory standards designed to
reduction in en ’ironmental protection. ‘ . account for varying geological and • • • protect LJSDWs. A violation of any of .
K I th D.FuiI’ 2 f hydrological conditions by providing these requirements would trigger •
000 •- -- -- • . ., . • • - remedlalactionIncludingan •••
• Unde 1 C C fl LI I-U -. - CXIu i.y or tue oiate uu tors to • • • • . •: ‘
F TOUfl u Casw ..iiw wae,aisr requestexempil .on.sforsome aquifers en lortementactlonlfnecesiary .,
Se eral commenters interpreted the (or portions thereof) containing between whether or not an underg r ound Sourv8
• • revised definition to mein that only • 3,000 and 10,000 mg/I ‘ [ US. The value of • of drinking water was already affected.
• aquifers which currently supply a public. such aquifers is certainly dependent • For example. if a mechanical Integrity •
- • ii ’oter system will be protected. In fact, . Iipon “geologic and hydrological • test shows • leak In the casing of. well,
• -• the Agency. aware of the mundate to • conditions” In the speciflc States, nnd • remedial action must be undertaken
protect not only those aquifers but also EPA is required to consider such whether or not the leak has caused
underground waters which can variability under SDWA section migration into an IJSDW Similarly
reasonably be expected to supply any 1421(b)(3)(A)(ll) The new criterion ii Injection pressure must be limited so as
public water system ‘has kept a broad consistent with the SDWA. which uses not to fracture the confining zone
• interpretAtion of these potential sources - th lamé language to define the range of whether or not Fracturing of the zone
• of dnnking water by defining as USDWs its protection as “underground water • would cause migration Into an USDW. • -
any aquifer which currently supplies • which supplies or can reasonably be -• The Aguncy believes that the change in
drinking water for human consumption expectedtosupply any public water 1 122.34 has in no way weakened the
or contains fewer than 10,0%’ mg/I of -• -: system” (SDWA section 1421(d)(2) requirements of Part 140 and will -.
total drssolvedsohds as long as it : • • (emphasis added)). This possibility for promulgate the change as proposed. •
contains a sufficient quantity of water to - exemption certainly should not be Shift Certain Practices From Class Ill
supp y a pu ic water system as uCuiflCu : interpreted as a mandate to exempt alt to ClauV • •
• by the Safe Drinking Water Act (SDWA - - such aquifers. Therefore, the Agency as - • • • - :
section 1401(4)). An aquifer qualifies • safeguard to ensure that this - Several commenter-s were of the • •
under his criterion if it is capable of • ex mption not be abused, requires • opinion that welts used in the recovery
yielding enough water. for 25 individual,, public notice of end opportunity of energy from lignite, tar sands and oil
This quantity 13 actually very small and .• comment on any proposed exemption.- shale ihoutd remain In Clau Ill, rather
inmost cases is less than the amount . - Further, it has retained the right to - . than be placed in Clasi V. because they .
normally produced by a single low yield - •.. •• • view Class V as unregulated. In fact. -
domestic well. Therefore,.EPA believes - • • n, tu ci i M despit the fle ibilIty that the shift :•
thaI th current definition effectively • Gc alm.n. u.s ii A. Ocirthi’r u i. • ufford . Class V still maintain,
-------
4994 Federal Register! Vol. 47, No. 23 I Wednesday, February 3. 1982 I Rules and Regulation;
significant regulatory safegu’ards. The
Director of a State program must have
enforcement powers against Class V
wells, and must be able to: request that
‘ie owner/operator of a Class V well
itain a permit; and take enforcement
.ction against Class V wells, or order
closure of Class V wells, jibe rmds that
these wells may cause a violation of a
primary drinking water standard or may
otherwise adversely affect the health of
persons ( 5 122.34 (c) and (d)).
Within three years of approval of a
State program, the State must submit
recommendations for the appropriate
regulatory approaches for Class V wells
(5148.52). The Agency believes that
waiting those three years provides an
opportunity to set regulatory
requirements, where necessary, which
can then be based on extensive
knowledge of the practices.
In taking this approach, the Agency
recognizes that these are emerging
technologies, which may pose unique
problems that may not be adequately
addressed by the existing technical
requirements and that may warrant
different regulatory treatment.
Furthermore, many of these
experimental operations involve Federal
participation under other programs and,
as such, are already subject to extensive
environmental scrutiny.
Continuing Operation of Certain
xisting Class IV Wells -
‘ number of commenters were
ncerned with the Agency’s approach
to the regulation of hazardous waste
disposal wells. Specifically, commenters
objected to: (1)the absence of final
standards for Class IV wells other than
those injecting directly Into USDWs: (2)
the clarification that hazardous waste
injection into exempted aquifers is not
banned by the regulations at this time;
and (3) the amendment to * 122.37 to
provide authority for those Class IV
wells for which standards were reserved
to continue to operate. Each of these
comments is addressed below.
Absence of Final Standards. During
the promulgation of the Consolidated
Permits Regulations in the spring of
1980. the Agency decided to reserve the
standards and requirements for certain
types of Class IV wells. This decision Is
not a part of the present rulemaking, and
was discussed in the preamble to the
final Consolidated Permits Regulations.
At that time, the Agency requested
further public comment on several
options under consideration (45 FR
33331—3). In that discussion, the Agency
also expressed its belief that technical
requirements for certain Class IV wells
and certain hazardous waste
‘ agement facilities governed by the
Resource Conservation and Recovery
àt (RCRA) should be developed in
coordination in order to assure, to the
extent allowable under the governing
statutes, consistent technical -
requirements for facilities capable of
causing a similar degree of
environmental risk. The Agency is still
proceeding in that context. Final
requirements for the reserved Class IV
wells will be the subject of a separate
rulemaking In the future.
Injection into ExemptedAquffers. In
explaining the aquifer exemption
portions of these regulations, 5 122.31(d)
clearly stated that exempted 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.” (45 FR 33437;
(emphasis added).)
Therefore, the injection of hazardous
waste into an exempted aquifer Is not
included in the ban prescribed by
§ 122.36. The Agency’s willingness to
clarify this point by adding
§ 122.3 1(d)(3), does not constitute a
departure from the regulatory
framework of the promulgated -
regulations.
Authorization for Class IV. At the
time of promulgation. the decision on
how to treat Class IV wells used to
inject above USDWS had not been
made, and requirements for these wells
were reserved. The regulations as
originally promulgated did not
specifically authorize these wells to
continue operation pending
development of these requirements. The
Agency anticipated completing the
requirements for Class IV in a relatively
short time, certainly prior to the
effective date of any State IJIC Program.
The Agency has not yet developed
these requirements, and now that
several State programs are about to be
established these Class IV wells could
be considered banned because not
specifically authorized. To avoid the
unintended result and to preserve full
discretion in determining how these
wells should be treated, 5 122.37 has
been amended to provide explicitly for
their continued operation until such a
time as the Agency develops its final -
regulatory requirements for them. The
amendments would not authorize the
construction of new wells of this type.
B. Other Comments
Several commenteri were concerned.
with the proposed changes In
requirements for analysis of injected
fluids for Class III wells. The proposal
requires that a qualitative analysis and
ranges in concentrations of all - -
constituents of injected fluids be
furnished instead of qualitative and
quantitative analyses. The Agency
believes that this change is in fact
appropriate for Class Ill operations. In
most cases, the purpose of fluid Injection
in a Class Ill well is to cause chemical
reactions in the injection zone which
will change the nature of the Injection
formation, and result In the presence In
the injection zone of a fluid, the
chemical composition of which can be
quite different from that of the injected
fluid. For example. In the case of salt
mining operations, It is not the injected
fluid, fresh water, which may endanger
USDWs, but the brine solution that
results from the injection of the fresh
water into a salt deposit. It I. this
solution which needs to be closely
monitored in order to protect USDWs.
Moreover, as explained In the
preamble to the proposed amendments
(46 FR 48248), the exact chemical
composition of the injected fluids is
sometimes of a highly confidential
nature, and asking the applicant for a
permit to reveal that composition could
have imposed a burden on the applicant
without a corresponding environmental
benefit. The Agency also stated that the
applicant could request Federal
confidentiality if he considered that the
required information was of a
proprietary nature. One commenter
expressed the opinion that by the terms
- of the SDWA and various Federal
regulations, information on the nature of
injected fluids cannot be afforded
confidential treatment. Those
provisions, however, deny
confidentiality only to “information
which deals with the existence, absence,
or level of contaminants in drinking -
water” 5 122.19(b)(2). By allowing
applicants to demonstrate that certain
information should be treated
confidentially, the Agency has not
changed the standards of confidentiality
nor established any presumption that
applicants will meet these standards. -
The determination as to whether the
composition of injection fluids could be
construed to deal with the absence,
existence, or level of contaminants In
drinking water, thereby precluding
confidential treatment. would have to be
made at the time an application for
confidential treatment was filed. Apart
from such a determination, the cited
provisions cannot force the Agency to
gather specific information. The
determination of what information is
necessary for EPA to administer its
standards and protect drinking water is
a matter squarely within the Agency’s
discretion. EPA has determined that, for
the reasons outlined above, precise
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Federal Register I Vol. 7. No. 23 / We&iesday. Fèbruiry3, 1982 Rules and Regulations
4995
analyses of injected fluids aie not
necessary for protection of drinking
waler. It is In an enforcement action that
knowledge of the iwease concentrations
becomes necessary, because the Agency
may need to know exactly bow much a
given operator contributed to whatever
damage may haveocairred. The
regulations specifically preserve VA’s
right to collect precise analyses in the
course of any enforcement investigation.
Commenters were also coonesned
with the proposed changes In nionitcaing
requirements for Class Ill wells. The
Agency believes that they are consistent
with the mandate of the Safe Drinking
Water Act that the Agency promulgate
minimum requirements. The range of
operations covered in Class ill
encompasses a variety of technic 1
practice. which cannot be adequately
addressed by a single huwl ,A
Momtostng requirements mast be
carefully tailored to each siteation. mid
this can only be accomplished by giving
discretion to the Director to set specific
requirements, within the framework of
the regulations, for each type of
operation under his jurisdiction.
One commenter requested that the
Agency dearly state that the decision to
apply for an area permit and thesize of
the project to be covered by the area
permit rests with the applicant. While
the applicant has the option of applying
for an area permit. the final decision on
whether or not to grant area permits.
and on whether or not the project
qualifies as a candidate for an area
permit under the altena listed at
* 122.30. rests with the Director. On the
same subject, two commentezs -
expressed the opinion that area permits
s)iould be available for wells used to
Inject hazardous waste. Because of the
liberalization of requirements for area
permits, particularly the discretion given
to the operator regarding constniction of
new wells under an area permit without
prior notice to the Director, the Agency
believes that the restriction of area
permits to wells that do not inject
hazardous waste is reasonable.
However, this does not mean that an
operator who is going to construct Iwo
or three wells at one facility to handle
hazardous waste cannot request that the
permits be processed in a single
permitting action.
One cominenter expressed the opinion
that all reference to wells used for
storage of natural gas should be —
removed from the regulations, end that
these wells should dearly be exduded
from the regulations since they have
been excluded from coverage of the Act
by the 1980amendments (SDWA section
1421 (d)(lfl. The Agency agrees and is
revising 44 Ifl3l(dJaadl4I51(bj
—ly.
One commenter stated that the words
“eneigy extraction” should be removed
from the defimtion of Class 111 wells,
since these wells have been transferred
to Class V for the time being -mid that
the definition should be similar in
4 122.32(c)(2) and 4 146.05(c)(2). The
Agency agrees and is ieviswg these
sections accordingly. if pursuant to the
assessment of Class V wells the Agency
finds It appropriate to place additional
practice. to Class L I I. the definition e.ill
be revised.
One comnienter stated that
- 4 146.08(c)(1). which describes the lests
appropriate to detect the ab n’ e of
fluid movement behind thecazing ala
well. is Inconsistent with the flexibility
given the Director to exempt certain
Class III wells from the oementhig
requirements, since these tests am
primarily designed to detect the
presence of cement behind the casing. -
The Agency disagrees that a
temperature log can only be used if a
well has been cemented. it is designed
to show movement of fluid between
strata and is based on the vanationin
temperature of formation thdd with
depth. it is not dependent on the beat of
hydration of cement as described In the
comment. In any case, the Director has
discretion regarding which teat of
mechanical intregrity is applicable in
particular situations and the Agency
believe, that the Director will use this
discaetlon to require only appropriate
tes
One commenter stated that wells used
at liquid natural gas pipe line terminals
to inject water extracted during the final
gas drying process along with blow.
down water should be clearly identifled
as Class II wells. The Agency believes
that national minimum standards are
not the appropriate place to classify all
individual practices., some of which may
be unique to geological and hydrologic
conditions or the regulatory program
peculiar to one or a few States.. The
classification scheme is Intended as a —
framework for State Directors and the
decision to place these and other
borderline wells in one class or another
shall be made one case-by-case basis.
Several comments were received
pointing out technical problems with the
proposaL
• A paragraph added to 4122.31(d) in
the August 27 technical amendments
was accidentally deleted in the October
I proposed amendments. It has been
reinstituted as 4 122.31(d)(3).
• The Instructions on the changes to
4122.39. and 4146.24 were not
consistent with the amendatoi’y
language and have been revised
accordingly.
The amendatory language in
* 12 2.42 (g) is changed to refer to
injection wells rather than uiection
operations to conform with the language
of the stipulation agreemenl
One commenter pointed out that
- packers are not necessarily placed
Inside the casing. but can also be used
between casing and borehole. The
Agency agrees and Is dropping the
words “within the casing” from the
definition in 4 140.03.
• There Is an incorrect cross
reference lif * 146.05(d)(3) which refers
to p146.05(1) instead of 4 146.O5ja)(1).
The correct cross reference is now
inserted.
• In * 148.08(b) [ 2) the Final period is
replaced with “or” to allow for the
addition of new paragraph (bfl3).
• The first line in the amenda tory
language for 4 146.22(b)(1) is changed to
show the new paragraph numbering.
• Inthe August27 technical
amendments the equation for the radius
of endangering influence in 4 146.06 was
misprinted in the Federal Register. The
brackets encompassed only the
numerator instead of the whole fraction.
It is corrected in this promulgation.
In order to assist EPA to correct
typographical errors, Incorrect muss.
references and similar technical errors.
comments of a technical and non-
substantive nature on the final -
regulations may be submitted until
March 5, 1982. The effective date will
not be delayed by consideration of such
comments.
FinaUy, Iwo commenters requested
that slurry borehole mining be clearly
excluded from Class Ill and placed in
Class V. and several commenters stated
that salt solution mining wells should be
In Class 11. These comments pertain to
the regulatory scheme as originally
promulgated. Since the amendments that -
are the subject of this rulemaking do not
Involve these issues, the Agency does
not feel that It Is appropriate to deal
with these comments at this time.
II. Economic and Regulatory Impacts.
A. £ ipected Economic Impact
The regulations promulgated today
will result in savings to owners and
operators of approximately $70 million
over five years compared to the cost
they would have Incurred under the -
existing regulations. These savings
result from reductions in the
requirements for mechanical integrity
testing, monitoring and reporting. and
permit application for Class II wells, as
well as the removal of certain wells
-------
4995 Federal Register / Vol. 47, No.23 I Wednesday, February 3. 1982 I Rules and Regulations
from coverage under Class ill. The
proposed regulations are not expected to
have any adverse Impact on oil and gas
production. or on production from Class
Ill operations. In addition to savings to
owners and operators EPA expects the
States to save $1.4 million over five
years due to a reduced number of
permits to review as well as less
detailed information to evaluate in the
application.
A detailed economic analysis of this
proposal Is available upon request.’’
B. Paperwork Reduction. -
In accordance with the Paperwork
Reduction Act of 1980,44 U.S.C 3501 et
seq.. the reporting or recordkeeping
provisions that are included In this final
rule have been submitted for approval to
the Office of Management and Budget
(0MB). They are not effective until 0MB
approval has been obtained. A notice of
that approval will be published In the
Federal Register.
The promulgated regulations will
result in less paperwork burden on
owners and operators, as well as State
enforcement bodies, by reducing the
amount of monitoring Information which
must be collected and the number of
times per year the information is to be
submitted. In addition, less detailed
Information will be required on permit
applications, and applications for area
permits can cover wells of various
classes, not just wells of similar
onstruction. These changes are
xpected to result in a reduction of
213,000 hours of monitoring and
reporting time expended by owners and
operators, and a reduction of 102,000
hours of permit processing time by the
States, over a five-year period.
C. Impact on Small Business
These regulations are expected to
reduce the costs to small Class U
businesses, and the Agency knows of no
small businesses affected by the
changes in the Class Ill regulations. As
noted in the separate document
discussing the economic effects of these
regulations,’ the Agency examined two
polential definitions of a small entity for
Class II operations. One involved a
definition developed by the Department
of Energy, defining a small entity as a
firm producing less than 400.000 barrels -
of oil or less than 2 billion cubic feet of
gas annually. Approximately 97 percent
of the firms producing oil and gas fall
into this category. An alternative
definition was based upon well
production with stripper wells defined
Analysis of the Expected Economic Impact. of
the Proposed IJIC Regulations. U.S. EPA Office of
Drinking Water. September 1981.
‘Ibid. -.
as those producing lea. than 10 barrels
per day of oil. Stripper wells account for
approximately 70 percent of all
producing wells. Under both definitions
ft seems probable that the majority of
resource savings from these changes
would accrue to small entitles. Since the
limited savings to Class 11 businesses
will be spread among so many small
entities the Impact on each of them is
-likely to be small. Therefore, the
Administrator certifies that this
regulation will not have a significant
Impact on a substantial number of small
entitles.
D. Executive Order 12291-. - -
Under Executive Order 12291, PA
must judge whether the amendments to
the regulations are major and therefore -
subject to the requirement of a
Regulatory Impact Analysis. These
Amendments modify certain monitoring
and reporting requirements, provide
greater flexibility to operators and to
State enforcement agencies and
generally make the regulations more
flexible and less burdensome for a
savings of approximately $70 million
over l ye years. As such they do not
constitute major rulemaking according
to the criteria In E.O. 12291 Section 1(b).
This regulation was submitted to 0MB
for review as required by E.O. 12291
Section 3(c)(3). Any comments from -
0MB to EPA and any response by the
Agency are available for public
• inspection at the Office of Drinking
Water, U.S. Environmental Protection
Agency, 401 M Street, SW. Washington,
DC
(Secs. 1421,1422, 1423,1431, 1445,1447.1450.
Safe Drinking Water Act, as amended 42
U.S.C. 300(f) ci seq.)
Dated: January 28, 1982.
Anne M. Gorsuch, -
Adniinistroior. .
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM; ThE
HAZARDOUS WASTE PERMIT -
PROGRAM; AND THE UNDERGROUND
INJECTION CONTROL PROGRAM
.40 CFR Part 122 is amended as
follows:
1. In $ 122.3 the definition for
“Underground source of drinking water”
Is revised and a definition of “Project”
added to read as follows: -.
$122.3 DefinItIons.
• • * •
Project means a group of wells in a
single operation. —
• • • •
Underground source of drinking water
(USDW) (RCRA and UIC) means an
aquifer or its portion:
(1)(l) Which supplies any public wate’
system: or
(Ii) Which contains a suffIcient
quantity of ground water to supply a
public water system: and
(A) Currently supplies drinking water
for human consumption: or
(B) Contains fewer than 10,000 mg/I
total dissolved solids; and -
(2) Which I. not an exempted aquifer.
• • • a C
2. In $122.10 paragraph (aJ(4) is
revised to read as follows:
* 122.10 Schedules of compliance.
(a) *
(4) Reporting—A RCRA or NPDES
permit shall be written to require that no
later than 14 days following such 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. A UIC permit shall be
written to require that if paragraph
(a)(1)Lii) of this section is applicable.
progress reports be submitted no later
than 30 days following each interim date
and the final date of compliance.
• • • I a
3. In $122.31 the Introductionto
paragraph (d) Is revised; paragraph
(d)(2)(iii) is redesignated (d)(2)(v) and
new paragraphs (d)(2)(iii). (d)(2)(vi) and
(d)(3) are added to read as follows:
$ 122.31 Purpose and scope of Subpert C.
• a * a a
(d) Scope of the permit or rule
requirement. The UIC permit program
regulates underground Injections by five
classes of wells (see definition of “well
injection.” $ 122.3). The five classes of
wells are set forth in $ 122.32. 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 SDW&
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
USDWs, If the presence of that
contaminant may cause a violation of
any primary drinking wéter regulation
under 40 CFR Part 142 or may adversely
affect the health of persons ($ 122.34).
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 ($ 122.30). Class V wells
will be inventoried and assessed and
regulatory action will be established at
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Federal Register I Vol. 47. No. 3 I Wednesday February 3. 1982 I Rules and Regulations
4997
a laler dale. In the meantime, if remedial
action appears necessary. an Individual
permit may he required 9 122.37) or the
Director must require remedial action or
closure by order (I 122.34(c )). During
UIC program development, the Director
may Identify aquifers and portions of
aquifers which are actual or potential
sources of drinking water (see I 123.4(g)
for State programs). This will provide an
aid to the Director in canying out his or
her duty to protect all USDWS. An
aquifer is a USDW if It fits the
definition, even if it has not bean
“identified,” The Directormay also -
designate “exempted aquifers”swing
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 nod
USDWs. No aquifer is an “exempted
aquifer” until it has been affirmatively
designated under the procedures in
122.35. Aquifers which do no! fit the
definition of “underground sources of
drinking water” are not “exempted
aquifers.” They are simply not subject to
the special protection afforded USDWs.
(2)’ -
(iii) Nonresidential 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.
(i%’) Injection wells used for injection
of hydrocarbons which are of pipeline
qua lily and are gases at standard
temperature and pressure Los’ 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 § 122.36 does not app 1 .y
to injections of hazardous wastes into
aquifers or portions thereof which have
been exempted pursuant to I 146.04.
4. In I 122.32 paragraphs (a)(1), (b)(1)
the Introduction to paragraph (c)
paragraphs (cR2) and (d) are revised -
and paragraph (c)(4) and (5)removed to
read as follows: -
122.32 C*asstflcstion of injection watin.
5
11)Wel lsnsedbygenerato redf
hazardous waste or owners or operators
of hazardous waste Inanagemeni
facilities to inject hazardous waste
beneath the lowermost formation’
containing, within one.quarter mile of
the vell bore, an underground source of
drinking water,
. .4 4 .5 5
(b)
fil Which ate brought to the surface in
connection with conventional oil or
natural gas production and may be
commin ed with waste waters from.gss
plants which ate an integral part of
production operations, miles, those
waters are classified as a hazardous
waste at the time of injection.
• • S 4, •
(c) Class HI. Wells which inject for
exfractlon of minerals including:
• S • • S
(2) In situ production of uranium or
other metals: this category includes only
in-sits production from ore bodies which
have not been conventionally mined.
Solution mining of conventional mines
such as stopes leaching is included in
ClassY.
• S 4 4 •
(d)Class lV -
(1) Wells used by generalorsof
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 (¼) mile of the well contains an
underground source of dnnking water.
(2) Wells used by generators of -
hazardous waste or of radioactive -
waste, by owners or operators of
hazardous waste management facilities,
pr by owners or operators of radioactive
waste disposal sites to dispose of
hazardous waste ori’adioactive waste
above a formation which within one-
quarter (4’4) mile of the well containi 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 tinder
I I 122.32(afll) or 122.32(d) (1) and (2)
(e.g.. w&ls used to dispose of hazardous
waste Into or above a formation which
contains an aquifer which has been
exempted pursuant to 146.04).
• 4 5 .5 4
5. hi I 122.34 paragraphs (a) and (b)
are revised to read as follows:
122.34 ProhibItion of movement of Avid
into underground sources of drinking
water. - - , , :, . . . : :.. ‘ —. .
• S S ••
(a) No authorization by permit or rule
shall allow the movement of fluid
containing any contaminant Into
underground soutues of drinking water,
If the presenceof that contaminant may
cause a violation c i ’ any primary
drinking water regulation under 40 CFR
Pan 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 L U. and 111 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, encepl as
authorized under Part 148, 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
imposedby modifying the permit In
accordance with § 122.15, or the pennhl
may be terminated under § 122.16 If
cause exists, or appropriate enforcement
action may be taken if the permit has
been violaled. In the case of wells
authorized by rule, see I 122.37(a).
• .5 5 5 .4
. In 1 122.35 paragraph (b) is revised
and paragrap) (c) is added to read as
follows: -
§122.35 IdentifIcatIon of underground
sources of *k%kIng water.
• S S 5 .5
(b)(i) 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
gradient) which are clear and definite,
all aquifers or parts thereof which the
Director proposes to designate as
exempted aquifers using the criteria In
40 CFR 148.04.
(2) No designation of an exempted
aquifer submitted as part of a U 1C
Program shall be final until approved by
the Administrator as part of the State
program.
(3) Subsequent to program approval,
the Director may. after notice and
opportunity for a public heaiing. idontify
additional exempted aquifers.
Exemption of aquifers identified (i)
under I 146.04(b) shall be treated as a
program revision under § 123.13; (ii)
under § 146.04(c) shall become final if
the State Director tubmils the
axemption in’writing to the
Administrator end the Administrator
has not disapproved the designation
within 45 days. Any disapproval by the
Administrator shall state the reasons
and shalt constitute final Agency action
for purposes of judicial review.
(c)(1) For Class ill wells, the Director
shall require an applicant for a permit
which necessitates an aquifer exemption
under I 146.04(b)( 1) to furnish the data
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4998 Federal Register Vol. 47, No. 23 1 Wednesday. February-3. 1982 I Rules and Regulations
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 timetable of planned development
of the mining zone shall be considered
by the Director In addition to the
information required by § 122.38(c).
Approval of the aquifer exemption shall
be treated as a program revision under
123.13.
(2) For Class II wells, a demonstration
of commercial producibility shall be
made as follows:
(i) For a Class if 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 and
formation parameters such as
permeability and porosity shall be
considered by the Director, to the extent
such information is available.
7. In 122.37 paragraphs (a)(l)(iii)(D),
(a)(2)(i)(D). and (a)(3) are revised to read
as follows:
§ 122.37 AuthorizatIon of underground
Injection by rule.
(a)
(1) *
(iii)
(DJ Section 122.41(e)—(notice of
abandonment);
(z)a a a
(i) a a
(0) Section 122.41 (e)—(notice of
abandonment):
(3)(i) Injection Into existing Class IV
wells as defined in § 122.32(d)(1) may be
authorized for a period not to exceed six
months after approval or promulgation
of the UIC program. Such rules shall
apply the requirements of 122.45(c).
(ii) Injection into existing Class IV
wells as defined in § 122.32(d)(2) and
(3) may be authorized until six months
after approval or promulgation of an
UIC program incorporating criteria and
standards under Part 146. Subpart E
applicable to Class IV injection wells.
Such rules shall apply the requirements
of § 122.45(c). .
• a • a * -
0. In § 122.39 paragraphs (a)(1), (a)(3),
(a)(4) and (c)(1) and the Introduction to
(c) are revised, and paragraph (a)(5) is
removed to read as follows: -
§ 122.39 Pris permits.
a * - • a a
(a)*a -
(1) Described and identified by
location in permit application(s) if they
are existing wells, except that the
Director may accept a single description
of wells with substantially the same
characteristics; - —
a a a a ‘‘ -
(3) Operated bya single owner or
operator and -
(4) Used to inject other than :
hazardous waste. -
a * a a
(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.
9. In § 122.41 paragraphs (b) and (e)
are revised to read as follows:
I 122.41 AdditIonal conditions applicable
to aM UIC permits, -
• a a a a -
(b) In addition to § 122.7(j)(2)
(monitoring and records): the permittee
shall retain records concerning the
nature and composition of all injected
fluids until three years after the
completion of any plugging and
abandonment procedures specified
under § 122.42 ( 1). The Director may
require the owner or operator to deliver
the records to the Director at the
conclusion of the retention period.
(e) 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
10. In § 122.42 paragraph (g) is revised
to read as follows:
§ 122.42 EstablishIng U 1C permits
conditions.
a a * a a
(g) Financial responsibility. The
permit shall require the permittee to
maintain financial responsibility and
resources to close, plug, and abandon
the underground injection wells in a
manner prescribed by the Director. The
permittee must show evidence of
financial responsibility to the Director
by the submission of a surety bond, or
other adequate assurance, such as
financial statements or other materials
acceptable to the Director.
PART 146—UNDERGROUND
INJECTION CONTROL PROGRAM:
CRITERIA AND STANDARDS
40 CFR Part 146 is amended as
follows:
1. In § 146.03 the definitions for
“Conventional mine”, “Experimental
technology”, and “Project” are added
and the definitions for “Packer” and
‘Underground sources of drinking
water” are revised to read as follows:
§ 146.03 Defkii%Ions.
a a a a a
Conventional mine means an open pit
or underground excavation for the
production of minerals.
Experimental technology means a
technology which has not been proven
feasible under the conditions in which It
is being tested, a a -
Packer means a device lowered into a
well to produce a fluid-tight seal.
Project means a group of wells In a
single operation.
Underground source of drinking wi
(USDW) means an aquifer or its porti
(1)(i) Which supplies any public water
system; or
(ii) Which contains a sufficient
quantity of ground water to supply a
public water system; and
(A) Currently supplies drinking water
for human consumption; or
(B) Contains fewer than 10.000 mg/I
total dissolved solids; and
(2) Which is not an exempted aquifer.
2. In § 146.04 paragraphs (b)(1) and
(b)(4) are revised and (c) is added to
read as follows:
§ 146.04 CrIteria for exempted aquifers.
• I a a a
(1) It is mineral, hydrocarbon or
geothermal energy producing, or can be
demonstrated by a permit applicant as -
part of a permit application for a Class U
or III operation to contain minerals or
hydrocarbons that considering iheir
quantity and location are expected to be
commercially producible.
(4) It is located over a Class Ill well
mining area subject to subsidence or
catastrophic collapse; or -
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4999
Federal Register I Vol. 47, No. 23 I Wednesday, ‘Fèbtuary 3, 1982 / Rules and Regulations
(c) The Total Dissolved Solids content
of the ground water is more than 3,000
and less than 10.000 mg/I and it is not
reasonably expected to supply a public,
waler system.
3. In § 146.05 paragraphs (a)(1). (b)(1).
(d). (e)(2), (e)(9), le)(12) and the
Introduction to paragraph (c) and (e) are
revised. (e)(16) is added and (c)(4) and
(c)(5) are removed to read as follows:
14505 laaalflcatIon of Injecuon weIs.
• • S • I
(a)’ • ‘ —
(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 (¼) mile
of the well bore, an underground source
of drinking water.
(b)’
(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 integral part of -
production operations, unless those
waters are classified as a hazardous
waste at the time of injection.
(c) Class Ill. Wells which inject for
extraction of minerals including’.
(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 (¼) 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
facilitles.or by owners or operators of
radioactive waste disposal sites to - -
dispose of hazardous waste or
radioactive waste above a formation
which within one quarter (¼) 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
U l46.05(a)(i) or 146.05(d) (1) and (2)
(e.g.. wells used to dispose of hazardous
wastes into or above a formation which
contains an aquifer which has bien
exempted pursuant to 4 146.04).
(e) Class V—Injection wells not
Included in Class I, II. Ill. or IV. Class V
wells include:
• S S S
(2) Cesspools Including multiple
dwelling, community or regional
cesspools, or other devices that receive
wastes which have an open bottom and
•ometimes have perforated sides. The
UIC requirements do not apply to single
family residential cesspools nor to non-
residential cesspools which receive
solely sanitary wastes and have the
capacity to serve fewer than 20 persons
aday. ‘:• •
(9) Septic system wells used to inject
the waste or effluent from a multiple
dwelling, business establishment,
community or regional business
establishment septic tank. The UIC
requirements do not apply to single
family residential septic system wells,
nor to non-residential septic system
wells which are used solely for the
disposal of sanitary waste and have the
capacity to serve fewer than 20 persons
a day. , -
• .• •••••, -‘
(12) Injection wells associated with
the recovery of geothermal energy for
heating. aquaculture and production of
electric power.
(16) Injection wells used for in situ
recovery of lignite, coal, tar sands, and
oil shale.
4. In 4146.06 paragraph (a)(2) Is
revised to read as follows:
4146.06 Area
• S S S •
(a) 5 ’ -
(2) Computation of the zone of
endangering influence may be based
upon the parameters listed below and
should be calculated for an injection
time period equal to the expected life of
the injection well or pattern. The
following modified Theis equation
illustrates one form which the
mathemalical model may take. -
f /2.25KHt ”
Si0 ’/ - -
where
x= 4sKHIh, .—h 1 ,S,Ci )
r= Radius or endangering Influence from
injection well (length)
k=H)’drautic conductivity of the Injection
zone (length/time)
H=Thickness of the injection zone (length)
t=Time of injection (time) -
S=Siorage coefficient (dimen.&onless)
Q=Injeclion rale (volume/time)
h,, Observed original hydrostatic head or
Injection zone (length) measured from
the base of the lowermost underground
source of drinking water
h ,,=Hydrostatic head of underground source
of drinking water (length) measured from
the base of the lowest underground
source of drinking water
S,G 1 = Specific gravity of fluid In theinjection
zone (dimensionless)
v=3.142 (dimensionless)
The above equation is based on the
following assumptions:
5. In 4 146.08 the Introduction to
paragraph (b) and paragraph (b)(2) are
revised and paragraphs (b)(3). (c)(3) and
(c)(4) added to read as follows:
• 146.08 MechanIcal Integrity.
• S S S •
(b) One of the following methods must
be used to evaluate the absence of
significant leaks under paragraph (a)(1)
of this section: -
• S S • S
(2) Pressure lest with liquid or gas; or
(3) Records of monitoring showing the
absence of significant changes in the
relationship between Injection pressure
and injection flow rate for the following
Class II enhanced recovery wells:
(iJ Existing well. completed without a
packer provided that a pressure test has
been performed and the data Is
available and provided further that one
pressure test shall be performed at a
time when the well is shut down and if
the running of such a test will not cause
further loss of significant amounts of oil
or gas: or
(ii) Existing wells constructed without
a long string casing. but with surface
casing which terminates at the base of
fresh waler provided that local
geological and hydrological features
allow such construction and provided
further that the annular space shall be
visually Inspected. For these wells, the
Director shall prescribe a monitoring
program which will verify the absence
of significant fluid movement from the
Injection zone Into an USDW.
(c)
(3) For Class HI wells where the
nature of the casing precludes the use of
the logging techniques prescribed at
paragraph (c)(1) of this section.
cementing records demonstrating the
presence of adequate cement to prevent
such migration; -.
(4) For Class III wells where the
Director elects to rely on cementing
records to demonstrate the absence of
significant fluid movement, the
monitoring program prescribed by
4146.33(b) shall be designed to verify
2.SQ
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5000 Federal Register I Vol. 47, No. 23 Wednesday, February 3. 1982 / Rules and Regulation .
the absence of significant fluid
movement. -
* a a. a a - -
6. In 148.10 paragraphs (a). (b)(2),
(b)(3) and’(d) are revised and paragraph
(b)(4) is added to read as follows:
•148.10 Plugging and abandoning Class
i—ill wills.
(a) Prior to abandoning Class 1—Ill
wells the well shall be plugged with
cement in a manner which will not
allow the movement of fluids eif her into
or between underground sources of
drinking water. The Director may allow
Class UI wells to use other plugging
materials If he Is satisfied that such
materials will prevent movement of
fluids into or between underground
sources of drinking water. -
(2) The Dump Bailer Method
(3) The Two-Plug Method; or
(4) An alternative method approved
by the Director, which will reliably
provide a comparable level of protection
to underground sources of drinking
water.
* • 4 • •
(d) The plugging and abandonment
plan required in 40 CFR 122.42(f) and
§ 122.41(e) shall, in the case of a Class
III project which underlies or is in an
aquifer which has been exempted under
40 CFR 146.04. also demonstrate
adequate protection of USDWs. The
Director shall prescribe aquifer cleanup
and monitoring where he deems it
necessary and feasible to insure
adequate protection of USDWS.
7. In § 146.22 paragraphs (b) (4), (5).
(6). and (7) are removed: the -
Introduction to paragraph (b) is
redesignated as paragraph (b)(1): the
existing paragraph (b)(1) is redesignated
as (b)(1)(i); paragraphs (b) (2) and (3) are
redesignated as (b)(1) (ii) and (iii) and
revised; a new paragraph (b)(2) is
added: the introduction to (fl(2)(iJ.
paragraphs (f)(2)(i)(A), (fJ(2)(iij(A), and
(g) are revised to read as follows:
* 146.22 ConstructIon requIrements.
• a * * a
(b)(i)
(I) Depth to the injection zone
(ii) Depth to the bottom of all USD We;
and
(iii) Estimated maximum and average
injection pressures:
(b)(2) In addition the Director may
consider information mu
(i) Nature of formation fluids:
(ii) Lithology of injection and -
c.onfining zones:
(iii) External pressure, internal
pressure. and axial loading;
(iv) Hole size;
(v) Size and grade of all casing strings;
and . -.. -
(vi) Class of cement. -
a a a a a
(2)
(I) For surface casing Intended to
protect underground sources of drinking
water in areas where the lithology ha.
not been determined;
(A) Electric and caliper logs before -
casing is Installed: and
(Il) . ‘
(A) Electric. porosity and gamma ray
logs before the casing is installed:
• .b a a- a
• (g) At a minimum, the following
information concerning the injection
formation shall be determined ot
calculated for new Class I I wells or
projects:
(1) Fluid pressure; -- -
(2) Estimated fracture pressure;
(3) Physical and chemical
characteristics of the injection zone.
8. In § 146.23 the introduction to
paragraph (b)(2) Is revised and a -
paragraph Is added at the end of (b)(2)
to read as follows:
§146.23 Operating, monitoring and
rsportlng requirement..
a a a a •
(b)* a S
(2) Observation of injection pressure.
flow rate, and cumulative volume at
least with the following frequencies:
And recording of one observation of
injection pressure, flow rate and
cumulative volume at reasonable
intervals no greater than 30 days.
* • a a a
9. In § 146.24 paragraphs (a)(4)(iii).
(a)(5) and (a)(8) are revised, paragraphs
(a)(8) through (a)(12) are removed.
paragraphs (a)( 13) and (a)(14) are
redesignated (a)(6) and (a)(9)
respectively, paragraphs (b) and (c) are
redesignated (c) and (d) respectively
and a new paragraph (b) is added.
§ 146.24 information to be considered by
th director.
• a a a a — .
(4J..a
(iii) Source and an appropriate
analysis of the chemical and physical
characteristics of the injection fluid.
(5) Appropriate geological data on the
injection zone and confining zone
including lithologic description.
geological name, thickness and depth
(6) Geologic name and depth to
bottom of all underground sources of•
drinking water which may be affected
by the injection:
• • • • ‘
(8) In the case of new Injection
the corrective action proposed to
taken by the applicant under 40 C
122.44: -
(9) A certificate that the applicant has
assured through a performance bond or
other appropriate means, the resources
necessary to dose, plug or abandon the
well as required by 40 CM 122.42(g);
(b) In addition the Director may
consider the following;
(1) Proposed formation testing
program to obtain the information
required by § 146.22(g);
(2) Proposed stimulation program
(3) Proposed injection procedure:
(4) Proposed contingency plans, If any.
to cope with well failures so as to
prevent migration of contaminating
fluids into an underground source of
drinking water —
(5) Plans for meeting the monitoring’
requirements of § 148.23(b).
S S * S S
10. In * 146.32 the introduction to
paragraph (a), and paragraphs (b) (c)
and (d) are revised to read as follows’
§ 146.32 Construction requirements.
(a) All new Class III wells shall be
cased and cemented to prevent the
migration of fluids into or between
underground sources of drinking w
The Director may waive the ceme
requirement for new wells in existii ..
projects or portions of existing projects
where he has substantial evidence that
no contamination of underground
sources of drinking water would result.
The casing and cement used in the
construction of each newly drilled well
shall be designed for the life expectancy
of the well. In determining and
specifying casing and cementing
requirements, the following factors shall
be consideredi
S S S S a
(b)Appropriate logs and other tests
shall be conducted during the drilling
and construction of new Class III wells.
A descriptive report Interpreting the
results of such loge and tests shall be
prepared by a knowledgeable log -
analyst and submitted to the Director.
The logs and tests appropriate to each -
type of Class Ill well shall be
determined based on the intended
function, depth, construction and other
characteristics of the well, availability
of similar data in the area of the drilling
site and the need for additional
information that may arise from time to
time as the construction of the well
progresses. Deviation checks shall 1’
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Federal Register I Vol. 47. No. 23 1 Wednesday, February 3. 1982 / Rules and Regulations
5001
conducted on all holes where pilot holes
and reaming are used, unless the hole
will be cased and cemented by
circulating cement to the surface. Where
deviation checks are necessary they
shall be conducted at.sufficiently
frequent intervals to assure that vertical
avenues for fluid migration in the form
of diverging holes are not created during
drilling.
(c) Where the injection zone s a
formation which Is naturally water-, -
bearing the following information
concerning the Injection zone shall be
determined or calculated for new Class
UI wells or projects: .- -
(1) Fluid pressure;
(2) Fracture pressure; and
(3) PhysIcal and chemical
charateristics of the formation fluids. -
(d) Where the injection formation is
not a water-bearing formation, the
Information in paragraph (c)(2) of this
section must be submitted.
• • • S S
11. In 148.33 paragraphs (b)(1). -
(b)(2). (b)(3) and (bJ(4) are revised to
read as follows:
146.33 Operating manfloring. and
reporting requirements. -
• S • • S
(b )
(1) MonitorIng of the nature of
injected fluids with eufficient frequency
to yield representative data on its
characteristics. Whenever the injection
fluid Is modified to the extent that the
analysis required by 146.34(a)(7)(iii) is
incorrect or Incomplete, a new analysis
as required by 146.34(a)(7)(iii) shall be
provided to the Director.
(2) Monitoring of injection pressure
and either flow rate or volume semi.
monthly, or metering and daily
recording of injected and produced fluid
volumes as appropriate. -
(3) Demonstration of mechanical
integrity pursuant to 146.08 at least
once every five years during the life of
the well for salt solution mining.
(4) Monitoring of the fluid level in the
injection zone semi-monthly, where
appropriate and monitoring of the
parameters chosen to measure water
quality in the monitoring wells required
by 148.32(e), semi-monthly.
• S S S •
12. In 146.34 paragraphs (a)(4).
(a)(7)(ili). (a)(8) and (bJ(2), are revised to
read as follows
• 146.34 information to be considered by
Vie Otrector.
• S S • S
(a) S S
(4) Maps and cross sections indicating
the vertical 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 every underground source of
drinking water which may be affected
by the proposed injection:
S S •
(iii) Qualitative analysis and ranges in
concentrations of all constituents of
injected fluids. The applicant may -
request Federal confidentiality as
specified In 40 CFR Part 2. If the
information is proprietary an applicant
may. in lieu of the ranges In
concentrations, choose to submit
maximum concentrations which shall
not be exceeded. In such a case the
applicant shall retain records of the
undisclosed concentrations and provide
them upon request to the Director as
part of any enforcement investigation.
(B) Proposed formation testing
program to obtain the information
required by 146.32(c).
(2) A satisfactory demonstration of
mechanical Integrity for all new wells
and for all existing salt solution wells
pursuant to 146.08.
• S S S •
13. In § 140.51. paragraph (b)(1) là
revised to read as follows:
I 146.51 ApplicabIlity.
• S S S
(b) It also includes wells not covered
In Class IV that inject radioactive
material listed In 10 CFR Part 20,
Appendix B, Table II. Column 2.
• S S • S
JFR 0cc rdcd I -34t ais urni
IILUNO 0001 Ss.O-SS -e
40 CFR Part I SO
IPP 1F25361R396; PH-FRL-2040-51
Cyano(3.Phenoxyphenyl)Methy l-4 ..
Chloro-Alpha-(I-
Methylethyl)Benzeneacetate
Tolerances - -
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule. -
8UMMARY This rule establishes a
tolerance for residues of the Insecticide
cyano(3-phenoxyphenyl)methyl-4-
chloro-alpha-(i.
methylethyl)benzeneacetate In or on
cabbage. This regulation to establish the
maximum permissible level for the
insecticide In or on cabbage was
requested by Shell Oil Company.
EFFECTIVE DATE Effective on February
3,1962.
ADDRESS: Written objections may be
submitted to the: Hearing Clerk (A—no).
Environmental Protection Agency. Rm.
3708.401 M St.. SW., Washington. DC
20460.
FOR FURTHER INFORMATION CONTACT:
Franklin D. R. Gee, Product Manager
(PM) 17. Registration Division (IS—
767C). Office of Pesticide Programs,
Environmental ProtectIon Agency. Rm.
207. CM:z, 1921 Jefferson Davis.
Highway, Arlington. VA 22202, (703-.
557—2090).
SUPPLEMENTARY INFORMATION: EPA
Issued a notice that published in the
Federal Register of September 23, 1981
(48 FR 47006) that Shell Oil Co.. 1025
Connecticut Ave., NW., Suite 200,
Washington, DC 20036, had filed a
pesticide petition (PP 1F2536) with the
EPA. The petition proposed thai 40 CFR
180.379 be amended by establishing a
tolerance for residues of the insecticide
cyano(3-phenoxyphenyl)methyl-4-
chloro.alpha-(i-
methylethyl)benzenepcetate in or on the
raw agricultural commodity cabbage at
10.0 parts per million (ppm). No
comments were received In response to
this notice of filing.
The data submitted in the petition and
other relevant material have been
evaluated. The toxicological data
considered in support of the proposed
tolerance included: An acute oral rat
toxicity study with median lethal dose
(LD.) of 1—3 grams (g)/kilogram (kg) of
body weight (bw) (water vehicle) and
450 milligrams (mg)f(kg) of bw
(dimethyl-sulioxide (DMSO) vehicle): a
90-day dog feeding study with a no-
observed-effect level (NOEL) of 500 ppm
(highest dose tested): a 90-day rat
feeding study with a NOEL of 125 ppm:
an 18-month mouse feeding study with a
NOEL of less than 100 ppm wIth no
- oncogenic effects at the highest level fed.
(3,000 ppm); a 24-month mouse feeding
study with a NOEL of 10—50 ppm for
males and 50-250 ppm for females (no
oncogenic effects were noted at 1,250
ppm. the highest dose tested); a 24-
month rat feeding study that
demonstrated no oncogenic effects at
1,000 ppm (only level tested—
— significantly decreased body weight was
observed at this dose level); a 2-year rat
feeding study with a NOEL of 250 ppm
(highest level fed}—.no oncogenic effects
were observed: a 3-generation rat
reproduction study with a NOEL of 250
ppm (highest level fed); teratology
studies (in mice and rabbits, both
negative at the highest dose of 50 mg/kg
of bw/dayj: and the following
mutageniclty studies: Mouse dominant
lethal (negative at 100 mg/kg of bw.
-------
14
-------
32274 flderal R.gifler I Vol. 47. No.143 / Monday, fuly 28. 1982 / RU I CA and Re*uliUons
EWVIRONMEWTAL PROTECTION PerniitUn& Requirement, for Land fl Struta for Prbtecbua
AOLNCY thipoat] F.dllitIaC Thi public docket A. Cro!znd Water
-. for thes, regulation. I. bc . t ad In Pnozn 1. Conuidiratlons Culding the G,ound-watw
40CFR Pet 122 210,214 aid 2(5 S2%C lit giental PSectlcm ProtfllfOn Strita - H
Agency. 401 hi Strett. sw..: 2. Aifltlvn prsrn lned -
fl..S 172 ’4J Was o DC_andtsavafl bI f ( tConboi&nten
HazwbtaWpsta Mazwgsn.nl _ ‘ lewIaj 1mm 0:00 am to 4 -tO p.m. cs MoStorth aM Psqcsm
S stsrr Standr* AppUcthM to Monday throujh Friday. ndudir ° Prugsw
snS’d Opratwa of Kaardo.a holidays. Tr’flrn fl.rj j ofPnDtectionSfrsteD
Wnts Trsstmsnt, SIngs, aid tON RINThER SNt MAflOW l(TAtfl f t £t (acu Waler H
D tspoal FedUtSa and EPA For general Info rmatioa contact thu C. Air -
*rtust.c.d Psniin prog arrs ROtA hazardous Watt botlint. Office •VTL D.tMlid An4 ats of tha Pula—Paila
of so l idWssta(Wt3-&3J.US.
*oascv Environmental Protectioa Et’sental p tj n Agency, 401 hi A- D. nifioni 1PM’ O)
Agency. SirerL tW ..Waah1agton.D.C. )4 00. I LA UIIfl . , - . --_--- -
Ltnbit lpterim final rule i’lth request telephone 4%0) 424-4346.01 In
for co m m en S . Waahthgton. D.C.. t Constituent. HaiaMnu. Watts Cimstftuent
_____________________ ttdst lnjPorfion ’
iw’sAwt The ,nmnental For Infonnsflonon the t.chnlcal TU nt zone
A cy [ FPA) Is requirad by he aspect. of this regu lation contact Iohxi t Uppa st Aquifer
Rnujn Conservation and Recovery A 4 U II fl . bktCtOT. 1.51 (1? and a. C.on!amlns Osanies fPafl at Sc iafl ft
Act CRA to Iuu• elandarda jnuuitna-i Watts Thvta’on. Stu Acting N. C. H) a
I y Dlractot Land Disposal D1vision O i. , atiun j A,jj jn — .
h a i r - 1 t .1 .a zs at (WH-bO5).
‘ °: t:: 1 ’ mnacn 1 s.Lwun# Envlroiimtntal Protection Ap.cy. 401 hi Eoodplalna ( ais4b))
‘ I .f i 1 saw..w.al n. acwøo. raP OtsthoI(PaJta
a dose of hazardous wasit ’ tApp l lcabtutfl laz)
Acwrdlng)y, EPA It today tuning- a. )tqula tad Unite
thtntm final’stsndardi applicabis to It ,avb ! ,ouzL uw b.bdahio lLe
owners and operators of new and t ADSX(P -• - 2. EnhEAurt of ?rcirm. ( 1*431 )
nisting he n rdoua waits I.± d disposal 0. bacSpo’und Cro ni-we tr Pn tactI Standard H
fa dlities and thseonespondlng .A. Sinctuasnd stgtcaoft h eHazard ot ls fl3KC)
proctdure. for panult applicati out. EPA Waits Ragulatesy Prugram 4. Hazardous Constitui I ( I aLt)
htialsó am! am Mnnts • 1- Ptt am
sntt avsdatrThwInSiz C , wlptlcxi cifpayts$IsnsjardaS tQn2ntI UmI’sfl*4M) - .
&aJ r ulatlons become ff J - New LaM Disposal FSS]JIS. . - .. a. Altam.atfva. Pn&nsd
axmaiym$tLwbIthSslXWgntht acton%eRfrtnztSPrro¼*tiaOf - tuneAltC .utr tknuzc Its -: - .
frrthsds t sofrmlestbonURQA - TodapaKau lat tcn - - tCIa iy aP*t(tatZ - - - H -
•$.ctIcrn301rs’M Pt 1c P a&myosvsn $ 4LandDWcsl - tA ltarnaftmtzamIntd H -
H -
a.. titt is: t ier nnn I V. c laM ? aR 7 ASYItS - y.CcmzpllancaPe* ’d(* ZM96) - -:
- ncuw..awa n..i C i a t t’a.’.s #. .“h - tàS b teds7. te uIaiions - N. G ’i Csamd-watur U4tatng
th.npwtln&arrtcordknPln - - kbntPtna n0tt a T h d - R. urcnrts9a*.v1 ) .
proviSos that are Included In this foal 1 ’r’ 1 Standards - - - - - : 1 tflnnlnflce of &ckground (4 atrljj)
ml. will be aubmlttsd for approval ft Putot Regizlatcsy Acttvtty - - (3. $tatiztirsi Práadurn ( I $42flb))
thtOfficà of Management and Budpt 1. Rsspunsitd]Ity lot Cottictivu a. basic Statistics! Piocst.
- ioa They an not effectin wiW 0MB ActIon - - I - - c Airative to Basic Pr saSs - -
approval has been obtatnad under the I 2. Mou 1zi 1’ am i Ns alzaU - c-Eta t hud Prócsdtrea for Crp%iana
EPA 11) bUsh t o! the -- i,onudo 1 s - - - . -. - MonltMng -I -
- ‘ofths LUSaiPOUM $.cthmWslls - totkeSttnaUn • II I I
TaCUIdkIIP $ of this n - - ..
after It - 5P TOV Standards - - - - L flaSel M lt ’ S tam
Comments must be nbmlttad 0001 V. Relationship of S Part $4 taM Disposal - - Values
before November , 19&.. - - . Standards to Other RCZA Sob this C - d. Duty S Mcznltär it ipilana Pcdnt
*N**$t C Pnmelits sboo)d ha a t L a Ziruistlons - - a. Ground-water now and Direction -
Docket Oerk Offi of Solid Waits A -P to Us PUt $5 tOtElt StitUt - &mpling and Analyalu Proathn,
fWH-M2) 11.5. EnvIronmental . iIiIsnldp to the i tt r Standards jot g Deta ,Sn!ng Statisti Cal SIJ]lffiflS -
pr t . ectionAency,40lMSfraetS.Ws Wa it j a lPsdLUn - StI,&a} -:
TWuhlngtoniiC 3)SuLlalephone I ) CRal1 a1itoSto$flT 1 ”’ ? - - - - - -
- ., 9jn4sn.lnmot1m dmtnt5$Nl9t P11 ’ s f ytoMOYPrOtrc -
ic m mn sran i lsah M - DR SPbSCon SPannU
potion toast L PSflflItIII4 t t.lauonehlp to Raqiteincta for Itat. - . - t Ctoo&tttn PrOttCtEOtStt d
8tandar!s for Land Disposal !sclllUn. P ADtk)t4nt1on - . - I. - *lOflltQtl13$ S m I -
Cccwnts pertaining sp.clksily to
______ to * 30k Part z. Inirlm.Autbcrtsatlon - : - - - : tCont LlanS Point MStMn - -
I f l a d_dbanarkM toAst $06. tYMbotatio -- - - - - . tc . nd.ntr mowand1)WPfttm
I —
F . I
-------
a
a
t Duty Co Search For Additional Hazardous
-Coctafittwnts - - —
g. Sampling and Analysts Procedures
h. Determining Statistical Significance
i. Re.po .. to P” d1n of Statistical
S#thcance
j.DutytohiodxfyProçtm
k. Duty to Ensure Compliance 1th Ground-
water Protection Standard
a Conective Action Program 9 a4.ICr)
a. Ground-water Protection Stand rd
b Objeifte o lCorrsjitvu ctlun
c. limIng ri Ltniprflte Adlup ,
4. Duty to Usan Up Contamination Past the
Compliance Point
• Corrective Action Monitoring
• LR.eportjng
E. Design and Opntlizg Standardt Ccnl
• Di m mfPsrta4.Subpart.LLM.NJ
1. introductIon
2 Malor Features of the Design and
Qpntlng Standards
3. Ratloüala Underlying the Des$o end
Operating Standards
4. RatIonal. for Requiring l in e rs that Prevent
Migrat loD of Waptes During the Active
Life of the Unit
5. Ooeureo!Land Disposal Units
ttrirtitP rtãccia
7. Waiver boa the Line tad iS . Leschata
Collection and Rsmovai Requiremant.
• Special Pro%lslona for Double-lined Units:
Exemption born the Ground-water
Protection Requiram ants of Subpart F
• Spedhcatlon oF Des ign and Opntlng
Requirements to Permits
1ft.teththcal Resource Decaiments and
Chidance
F. Surface impoundmanta (Pal 254. Subpart
K) -
• t Relationship to Previously Prnlgatsdor
• — . .P ed Kale. fix Permitting Saface
• Irpmmimota
P. Abeenoe of (esthete Collection and
• fl.-4,4s*l C j44besnnl. b Piw4sre
I Lthr £spsthcrn f L trj
a C. dO .cuaa 3rt c
£ r’ lny-rtp ?]%L n i ‘ ricd
an & cj P
• SMonitoring and InspectIon (5 a4 cfl
• 7.Fmei icyRepatra( 5YA2 r)
• Qoaure and Poet-do sure care (5 4fl8)
ft Ftnandai Responsibility tot Plie s and
Surface Impoundments from width
• Waste. Are Removed at ( insure
(33 254n1(d) and Th&2*d))
10. Special Requirements for Ignitable or
Ma clye Waite end lnc pstfble
Waatss (55 2 M and 254230)
C. Wa.ta Piles (‘Pan 2M. Subpart Li
1. &tetatlonshlp to Previously Promulgated
Design and Operating Standards fat Piles
2. Des Ign and Operating Requirements
(S2Mfli)
• •. Liners and Las tha a Collection By. time
b. Control of Run-an end Run-off
t txemptkmofCrtalnPlleebcc the
Crtnsnd-water Protactloo RequIrements
of Subpart P (3 254 2S )
4. Man] toting and inspectIon (5 41S4)
t Special Requirement. For Ignitable or
Reactive West. and ISnTpetlble
Wutee( 5 525425 1and 2 5t2S7)
S On.W end Poetostin Ctfl (5 25421 )
V. Rni.itt flit.
I — • ‘ — •
ft Land Treatment (Part 254. Subpart M) as amenifed, 42 USC. &)S. eUlZja)
-1.Appllcablhtfl jTh4rofl 0924.andOQZS. -
2. Treatment Prc razn (5 254r1) -
3. Treatment bemnnsnH (5 25&V2) IL BackgruzS —
tDesgnadOnti ReëjSretnenta
(32 64 -27 3) A. SLr’Jcfttrv and StoS of the
5 Food-chaIn Dope (S 254 t) Ilarwdow Wa3fa Rqu1ctz ny hvgi
• 6. Unsaturated Zone Monitbrlng (5 2Mfl)
7. Recordleeptng (5 eztj — ,. 1. Pivgmnl Sbvcftzre. Subtitis Cc
- - t (ic.,u s and Poet-closure CareS 2542 0) RCRi\aeatee • ‘ap J -to-grave -
S Special Raqulreniahtsloè Ignitable or masagemcnt system lñtanded to en
Reactive Waite (5 INlEt) that huasdous Ivasti I.e safely tree
I I I bp 4i PMUII(IernPtII 1* In iiilh9 4IlWM sturtd nr tilipossi oJ P1rst Uuhlflhi
WaitS 9 SquIres EPA to entlty hthidcue
- I. Landfill. (Peal 254. Subpart N)
1. SpecIal Requirements For Ignitable at • wnts. cond, L deco a m.nffce
Raactlve Waite and tiicompatlbls - • SY5tam dnl.gned to frank the movei
Wastes (53254312 and 254.313) - of hazardous wajts, ted requires
2. Special Requirements Fe liquid Waste ithdons wash gtntors and
(3254.314) I
3. S edal Req ulrements for • - tranapcttn toemp1o3 sp oprLati
(5254.3 15) - • - mianarmsnt preSS. as wall as
4 DIsposal of Small Containers of Hazards. r edum to ,âacn the effective
We ata In Ovarpacked Dnzma (Lab Park.) opeçatlon of the manifest eys*sn
; • • • - owners and erstpn’of eatmênt
J. Interim Status Conforming Qiangee (Pan - storage and dlsj oaal tadlltlee nusi
ms)
timply with standards that “may
K gRaquhemeota (Part 122) • ns sny toprotact huma bSth
I. introduction wvfr=nC which sr i ntah
ZBath,puo74
3. Content. of Part B for Sonic. by fl’A w ider SeciSt *1)4 otRCP
Impoundments. Wasti Plies. Land him standards are g nsriafly
Treatment Units, and L andfills • • Implemented ththugh j,ennlta that
4. When to Sutcit Parts kend 0 Issued by .uthorlzed states or EPA
5. Special Permitting Procedurse for Land • owners and operators of hAwdou
• Treatment Units nets treatment eton$e. and diap
ft (iartflcatlcn of the Scope of (ha flA • I
Pernilt Requirement
7. Ozangs. to the Conditions Under Which • All substantive ERA Subtitle C
EPA May Modify Permits t tdaUons that Sjià saw
S Request for Part i n Comments • • reqtdremants (Indudlnjtodaj’s
VIII. G al Solicitation Of Puhllc’Crcants perm_!tthig standards lot lad diap
cc Regulatory Analysis hcintnj betin eff ftvi i t t
A. txeaitive Order 12 1:R ulatosy Impact •ft theIr pmm 4gauánby EPA. I
Analysts
fl k uiakuy flnct.ilau A.1 • Ncilon *00a44 on the aiftifre di
‘c pp, rj ge-t t - the Section 3(*4ilandast (the hr
C lnjtd& t r - • d .‘hth tan r the
• • ___
J1.ss4 w -‘$° w Aainsr b
3. Corrective Action Cam anal Ttmsr • prohibited excapt In acboniana wi
tCostetcrLandfllls
I. Costs for Surface Impoundments • • Pclt that Implements the Section
ftCostafotLandTreatmentUnlta • • :• I -
7. Coal. fat Waste Piles • recognizing that not Sn permits a
I. Ciosurs Analysis • • • be Issued within six mhnths of the
F. Total Coals- • pmulgatjon of U .sjdkii j 3005 SlIM
C. Industay Aitalyala . • - Congme outed lqtSth statue” I
a rnvit , Analysts • • I Section 3(XE(e) of ICZA. Ownn a
1. SensitivIty c i Ccwvectin Action Coats
2. S.naltlvlty of Costs to Hydso .olog1c • • opetetcwtofaxlstlnjbazaidoua wa
Aa-aumptlocs • treatmant,.toregs.anddlsposal
3. Ss-nultlvity of Coats to Treatment facllItl-as who gn for SP—” t
Aatumptlons • ,. are treated as hIvhzbeea a
4 AddIng a Sluay Wall to Reduce the • pennft, until an authorIzed state or
Pumping Rate • takes final sdmlnlatr,ftye actIon a
5. Cost of floodplain Standards • p rrn applications, flirtS status
X- List of Bub}ect. In 40 (YR Parts 122. L
254 .andZSS •- I - • • DotnllevesfacWtyownsjorgpa
of complying with Section arc s
LAutba i lty
- These regulations are Issued under the 2. Regulation DenThprn rn l Statt
suthority of Sect Ion. 1006. fl124a), Sti. Implement the various sectIons bt
and 3005 of the Solid Waste Disposal Subtitle C of RC A. EPA has liens
Act is amended by the Resource following Sets of ngulatione In ml
ConamrvRtlon end Recovery Act of )975 of the Cod. of ?edenl Rajulatitma
• • • • • • • • • • •• • • • • • I
- • - ‘L • - • • . — — - -
• • • . • ••
FSdaTSI Reglistat / Vol. 47, No. 143 Monday. July a 1962 / Rules and Regulation-s
a
-------
It. Land Treatment (Part Th4. Subpart PA)
i.Apphcabthty(I 4rO)
2. Treatment Pro gram ($ 4.t1)
- 3. Treato3ent D.monstnflQn (4 2?A272)
4. DesIgn and Opnting Requirements
S. Food-chain Crops (4 2B1.rS)
e. Unsaturated Zone Monltortrzj I I 4n)
7. R.cordkeeplng{$2*4rv) —
- . S Ocraure and Poetciosure Care(j 428O)
9. Sped.] R.qulremuntslor Ignitab le or
Reactive W..ti (I 42E)
10. SpecIal Raquiraments hqlwnnpatlbl.
Wastn(4fl2ZZ)
L Landfills (Part 4. SubplJl N)
1. Special Requirements lot Ignitable w
Sea dive Waste and Incampalib}.
Waite. (3 % 4.312 and ThE 313)
2. Speciej Requlremsots for Uquid Waste
9Tht3u)
3. Special Req uiremrjts for Container,
& Dt.pos.al of Sma l l Contatnse of Itatsednus.
West. In Ovrpacked Drums (Lab Packs)
(I i3l8)
) Interim Status CSortnlnj Canges (Pail
K. Permitting Raquliemante (Pail U i)
ltntmdudflon.
.LflacIpvund H
a. Contents of Part D for Swisce
• Impoundmznte. Waite Filet Land
Treatment Unit. and landfills
4. When to Submit Parts A and fl
S. Spedsi Permitting Procedures for LaS
-T r ea t ment Unite
a a.rtacatton of the Scope of the PC A
PrmllR.qSnm •.•
7. Gangs. to the Candid ons USer Which
rAMayModl !yPeitS
tP.qaetSPaitttCommettts
VI IL Geeal BolidLa Lion of Publ lctommante
&Exscutlve Ordar liSt; Rquletoiylrnpicl
Analysis
t Ragnlatcry FIszlbtlJly Aol
WC.Papsrwo&Redx tctl Ac1
U, tadividual Unit Costs H
tC.riiers lkpproach
2. Deelfl and Opeattn Standirds
a. Corrscth’u Action Cats — Thnbg
L anf o L a ndffli
S. Costs for Surface lmgxnmdmsnts
t Coats foe land Treatment Un ite
7. Costs foe Wale PEiss
• tQaswsAna lytls
tTotslCasts
C. industry Analysis
a S aiUvity An.lyats
1. SensItivity of Correictlva Action Costs
2SetslUblty of Costs to Hyd.mgeologlc
Assump t ions
a. Sensitivity of Costs to Treatment
Asiompfions
4. A dd Ing s Shzsy Wall to Reduce t he
Pumping Rats
- t Coat of floodplain Standards
LL AslofSuWec litn E OO’RPsxls l iZ Z*t ,
Th(andTh5
L Author1 y
t These regulations Are Issued under the
• authority of Sections lOOt 2OO2 a), 3004.
and 3005 of the Solid Waste Disposal
• ActasamendedbytheResource
Conservation and Recovery Act of 1V&
as amended. 42 liSt esos. %‘lz(aL
6824, and 0925.
H. background - -
A struct urn and ot t ’ s of the
LHarardou Waste Regulatory Prvgmm
,.• i.I&agthmStn.rctura&sbfids Cot.
RCA creates a Th41540fl!S:cm
management system Intended to sn.suló
that hazardous waite Is safely treated,
.-stdorddc rnstsubu uac :
• requires EPA to entIfy hazardous
wast Second, Lctetteeam.anlfes l
system designed to track the movement
at batanI ,us nate and esquires
0< tiazardaus waits generators and
transportera to employ appropriate
management pasctlceu as wall as
procedtotsurs ft. effective
operation of the manifest spin Third.
owners and operaton of treatment.
storage and disposal fadlitlas must
comply with standards that “may be
necessary to protect human health and
• Lbs environmant” whick are established
bAtmdarSecfton 4cfRcRA. ’ .
Thnsst.snd.ard.ngenna lly
Implementd through permits that are
LssuedbyauthodxedstatnorEPAto .,
aware and oparetors of haz.ardàus
waits treatment storage, and disposal
fadlitles.
All subst nlivs ROtA Subtitle C
• ragulstlons,that tmpose new
- . requiremants (includlug todays - - . —
permitting ndardsforknddisposal
(adilties) bàcoms affective six months
after theIr promulgation by fl A. Under
SectIon 3005(4 on the sfecllvs date of
the Section 3004itandards (th. first set-
of which beams effective on November
19, 1960). s-I) treatment storage, and
disposal of hazardous waste Is :
prohibited azapt In accordance with.
permit that Lthplsments the Section 3004
stands_rd_La , I
Recogitlziig that not all permits would
be Issued within six months of the
• promulgation of Section 3(04 standards,
Congress created Interim etatuC In
Section 3005(e) of ROtA.. Owners and
operators of existing hazardous waste
treatment. storage. and disposal
facilities wh qua fp for Interim status
are treated s havlngbeen issued a
permit unffl:s n authorized state or EPA
tales final administrative action on their
permit applications. Interim statue does
not ralieve a’ facility owner or operator
of complying with SectIon 3(04 •. -
2. Regulation D v.lopment Status. To
Implement the varIous sections of
Subtitle C of RCR.A, EPA tin Issued the
following sets of regulations In Title 40
of the Cods of Federal R.egulatlont
— - — a tfl N&IC flIbtdij 1uW * I9 e2 Rules — RIgU]*IIOnI $ f l 7 5
r i
t Dut to Search for Additional Hs.zardous
Constituents
. Sampling and Analysis Procedures
b. Determining Statistical SI.gnlricsnce
I. Response to Vwding c i Sististlcsi
S ignificance -
E)utytoModifyPvogram
k. Duty to Ensure Compliance with Ground-
water Protection Standard
13- Contc ivs Action Prpgram (3 ThElOG).
a. Cround-water Protection Standard -
L Ob}ectlve of Corrective Action
c tmlng of Corrective Action
tfluty toCean Up Contamination Pest the
Compliance Point
a. Corrective Action Monitoring
f.Repcr ng
E. Design and Operating Standards: Gctsral
• Thsaasion(PestTh&Subpart JKLKtN)
1. tntrductlan
2. Major Features of the Design and
Operitlag Standards
3. RatWnsJ, Underlying the Des4n and
Operating Standards
4. RatIonale for Requiring Linen that Prevent
Migration of Wastes During the Active
Life of the Unit
I. Qosure of Land Disposal Unite
• SFxlstlngPat lons , • -
• 7.Wa ivecfromtheL liwandthets.schat .
Collection and Rsmcrral Requirements
• t$pedal Provisions for Double-lined Unitt
• EsLemption Inn Lb. &round-watar
• • Prâtection sequlncsntiofSubpaflP
• • t8pedflcat lonof vealgnandOprat lrtg
‘-. taquirements in Permits
• n.jsdinica1 Paso ur i s Doaum*nte and
• t Surface Impoundments (Part ThE. Subpail
a
1 Rslstlcrnshlp to Pniloasiy PromuLgated or
• Prt posad Rule, for Permitting Surface
tmpcaandments.
2. Absence of Laschste Collection and
Removal R.qulramants for &zrfac.
• Lmcnindments -‘ -
• 3 LIn.r RequIrements (3 234 fli efl
4. ContrOl of OvartcppLng (3 234fl1(c))
5. Stnictural lnqilty of Dike, (33 42Z1(d)
‘and 234224cfl
• S Monitosing and InspectIon ( 3 2 34.2 2 3(c ))
7.EmsrjencyRtpetn(3 Th&W’) - . • -
• S Cineura and Poe l -closure cars (3234223)
5. flnsndal Pesponsibility lot files and
• Surface impoundments from which
• • Ws.atrsAreRtmovedatt3o sure •
• (33 2 3422$4d)snd m E lSeLdJ)
10 Spedal Requirements for Ignitable or
• • Ra tin Waite and tncormpadbte
Wastes ( 13 Y-4fl and 2t4_ )
C. Waste Pftaa (Part 234. Subpart L)
5. Re latIonship to Previously Promulgated
Des Ign sod Operating Standard. for PiJes
2. Des tin and Operating Req ulreinsnts
• -,: (3234.25fl: -
• tUnera and Leachats Coflectlnn Systems
b.Contrè lofRun-cnand Fun-off
3. Exemption of Cartain Piles from the
• - - Croni-weler Protection Requirements
• ofSubpartl’(3-234253)
4- Monltärtng and Inspection (3 234. 4)
S Special Requirements for Ignitable or -
• • • Reactive Waste and Irtompatible
Ws.ste-s(33Th4. afld234.2Sfl
S Closure and Post-closure care (3 ZMfl)
- 7.SsnslIPllee -
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Federal Register I VoL 47. No. 143 I Monday , July 28, 1982 f Rules and Regulation .
Part ztO.—Hazardocs Waite Manasement dertnitioi ol generator’ and edded who use au t h wood
Sy.tem Genera] other definliont ’ For the woods intnutnd end use.
Pail 1._4Iawdous Waite Mana ement 45 m mns, OCtober 3O,1 k. - 14. 45 FR 7$53Z Novembn 23, 1 Ck
0 ZdeSUficlflnn and Usting o f - Temporsill$rexdudedfrvtnhszardous r Ii ath.llra rn.sal
, ±, , . waits sth us wastes that currently are ae i 1 produth, -spedflca&c ‘
HnaSous w deemsd hazardous solely due to the products, and tntaimsdlsies that when
Pail m—Standwl, r I SIPO!IC 5 i preeria of trivalent Jinalum. discarded orintended to be discarded
Iiazsrdous Wastes , 3. 45 FR 72037, October 30, 19 are considered to be hazardous wastes.
Pa il 4.—Standarda for Ownn tad Debuted waste from the leather tanning and removed . 11 trade n nn frun Lb.
O tor. of Ilnartuu Weti . and titanium dioxide pnWuctlon lists.
Tiutmet, SLflsRe. and D(aposal industries. ___
i5.45 &t2
Pail &-4ntertm Status St and ards for r t. r i a t ..zt. L
Owners and operaton of Hazardous , TM f 1 1 i i i! generated In a product or SW mateiisl
Waste Ttestmcit. Storage. and Disposal pipeline Is not subject to ,!gulalionuntfl. -
- tract mnants ‘‘h ! - Ir v in th. pipeline In which -
—tart tiYd-4nfl8tvndtdl fotOwon and Pail t
5115 the! F than
• Parts lfl-12t—Ccxsolldatad Pwnit hezardouswastesprsvlously listed In an asses opera
rlali P’ thns r*rmit reguistions k enal eguLatiot the purpose of transporting prodact w
‘a hazardous Waste 15C1lit155 Cd StatS 6.43 FR 76074 Novemb e r 17 1U8(k fe W matetals. .
F°Vc uh ) S the licabtll f It 45 FR I DscetnbeT 31.. 1960
• These regulations have been 284. and 5 to owun and operators of a transporter i i dung
• promulgated In ssvnl stages and art waitawater tnstment tanlca under the pmeMt of hazardous waste Is - - - - ;
tamed chiefly In the Fo l iowing uvrn s woram c4 t required to obtaizi a sunp permit :/
F aJ R gfl rhll iJ na H óperatcn ol neutralization transport 17.48 FR D44. Januai7 tizir 1 .:
1.45 PP. 3W , May Ia. i 60 Part s vehicle., or a,ntalnne end anks that A m i1ed ‘ # t , of ‘tisting.
na end rs, general provlslon of neutralize wastes that are &zaidou.s barardote waste management Fad]ltf;
Pail a End Parts I n - Ut only because they c i i i 1I4 the clarified aamsblictIonss added
2.45 FR 47fl2, July 16, 1 k listing of TM corrothlty” charectuis tic or are listed definition of ‘Ysdnl, State, or local
additional hazardous wastes In Part i. only for that mason. . . approwdis or clfl apd amended
t 45 FR 2604. January12, IZt Pails 7.45 FR Peelt November it t n t pénnit requirements to allow raw - .
284 and in standards for storage and Excluded fr Subtitle C regulation (1) hazar waite ntanra it tjfl
treatment fadllde. and Parts 284,285, solid waste from rain ntMi g (other the a lead dispopal facilities) t
and in, standards for closure, post- operations, and (2) rent kiln d at. ‘comments wnflectlon before recsivthg
closure care, and f In.. ndsj t 45 FR 7 November lU 1 (t p 1 ts.
responsThfllty.- t• Carifisdtliespedalmqu lrcwtsfor it 48FK48i4.jannaryitlAt -H
4.48 FR 7668. January 23, i Q at Parts generators of . rnsfl quentltleá & Finalized the lilting of thlrt..i. , ., -. -
• ‘284 and 122. standards for Incinerators.’ hazardous waste. • ksnrdous wastes from epsdflc k r5
5.48 FR 12414 Febnxaiy 13.1981: Part 9.45 FR 76624 November11. it deleted two wastes hr S tnt
287. InterIm permitting standards for P l lm lnatedthedlst mnct lonbetweenon- final hazardous waste list eat Mred
four classes of nrw land disposal ails and off-site accumulatiozi for action on and suspended the
facilities. . treatment, storage, or disposaL effectiveness of the listing of nine
While lmplement lizgtheseregu latlona, 13. 4SFR766 Novaabnlt196& —wastesthtntm lfuimonjulyw
EPA has been continuously . . Clarified that the Part 284 and 285 1980, and deferred act Ion on ona waste H
evaliating them. In some cases, EPA has standards and Pail 122 m1thng proposed on that data •
discovered that Implementhtgpartlcular . req men beatmentandstorage H it-MThWftJanuasy*i IT,
provisions could lead to unanticipated • of harardous f laWs tot çplicab)s ‘Ravised public partidpetko
• - adverse coneequencts. In others, EPA • to (1) acti Ons taken to Immediately • rlrements In the stats enfun. nit
• has determined that crtab • • contain and beat spills of hazardous process durfttg Interim authorlzathn
requirement. either wn unneceasary to wastes. andjz) materials that, when • m l FR and - Ia
• protect and the - spifled, becOthe_a rdoas wastes. . • part
en or to I i . 7683Q . t ov • nnulrementa for authorization of state
(fls ffl 4 S drSmetancss under which . .
more effecllnly. Finally. some • hazardous waste man.gemen lt cflhiles 2 FR 13r F-s-
on, required fmtb. c3anficatlc . may qualify for Intarim status. - a a’ a. •r wufll5J7 . .. -
As a rnult ‘ & has at various times 12.45 FR 76524. November 2.5, it “ r UJICIWI statusarc 11 wauone to
revised eo of the regulations B ated Clarified the situations In which - . ow aquld Igr4isble wastes In. -:
ebovs lbs regulatory amendments, • residues of hat.rdous wastEs (a dnims. •j ’ MW}JSSU t iM
• eofsuspems lon.çndnotknof - -banels,tankttths.oto*l ertypeOf - . - • • -
• corna lnnemustb.manageda ,W UIIfl .• --- -- -- - -
• Usted below: . . - hnardous wastes. a48FR1 Marchfl hIet - - •. -
. t45FR7 Z&Odobefl1t - -
• AaarsiSdIXI..4npnMngwtana • DetslEdwistesthatuwbAzardc*a - --.-•I q nJa w ZiOt -
- Jsazardowa f lernted lnsaznteot sdthybeèaiq.stbsys,ihlbttthat’ ‘*46flV1*May lt lJSt
• trasIxItetlon tta or nefa li4 t 1dtf daracttstlc, are genesated S DeTS ed aft d14 deli of ftaa al . -
precsnt*’ , nbjsct to R( A, 4i . arerMcsl bntsa of wood a wood requirements b in $ly it flfl, $ —
amnded 3 SIP to modify the • iids, add en genwated by people October z I a
- •-------- — • -‘a - - . -- - t ’-S • s
t_ -— a S —. —• .
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• Fadanl Register ,‘ Vo l. 47. No. 143 p’ Monday ,July 2, 1982 / Rules ehdRrsdstlóns- 1
24.46 FR 27473. May20. 1961: Made 35.47 FR 1231& March 22. 1982 Many commentsrs aitlclzadihs -
technical corrections to many of the , Amended the Interim its (us regulations proposal. arguing that twas not
rules listed above. ‘ governing the disposal of containejized sufficiently flexibla (despite its
2.5. 46 FR 33302. June 29. 1981: liquid hazardous wastes in landfills. 1 IncorporatIon of vs.rlancas) and notl
Extended to November 19. 1981. the date 36. 47 FR 15032. April 7. 1982: adequately oriented toward a’clesrly
for compliance with the Interim ststus Amended the financial repponslbuity articulated regulatory goal. I
standards that prohibited the dipos al of regulations !o provide additional options In response to public comments. EPA
ot tsinerized liquid IgnitDh!: . - j for owners or operators to demonstrate reconsidered the proposedapkroach of
lnnIfihts Also allowed (without time financial responsibliiiy. design standards. Based on this -
Iiinitation)thelasidfiliingofsolid 37.47FR15304.April8.198 1 . recons lderation.EPAtentitlvely
Ignitable wastes. Amended the Part 122 regulations to seleèted a risk assessment approach. On
26. 46 FR 36704. July 15. 398 1: ,,- make minor changes injitceilaneoui October 8. 1980. EPA published a
SpSified new procedures\u. tu ’ . :: 1 requirt supplemental notice of proposed
• participotion in hazardous waste 3W 47 ts L • P It 1982 rulemakIng (45 FR 86816). In which EPA
permitting. Amended the Lability coverage outline*i four regulatory optioni and I
27.46 FR 48147. October 1. 1981: requIrements to: (1) add an option of a announced Its traatlve selection of the
Deferred the effective date of financial financial test as a means of risk assessment approach. EPA provided
• requirements from October 13. 1981. to demonstrating Liability coverage; (2) add 3o-day comment period.
April 13. 1982. - an option of submitting a certificate of On February 5.1981, EPA reproposed
26. 46 FR 55110. November 8. 1981: Insurance as evidence of Insurance; arid techrticaj standard. for permitting land
Amended Part 284 and Part 22.2 (3) change the requirements for the disposal facilities (48 FR 21128). The
regulations concerning piles and endorsement and certlflcat . propoul adopted a site-specific risk-
containers to better tailor the standards 39. 47 27520. June 24.1982. • assessment approach. This approach.
to the types of hazard posed by specific Amended the permitting and interim nuid have iired the permit writer; - —
situations — stalks regulations for hazardous waste basad on information and predictions
• a 48 FR 56582. November 17. 1Q81: Incinerators to: (1) sxempt certain • submitted i e ths applicant, taivaluste
‘t 7 EiérnnsdcertalnàtegonS of mixtures corrosive and reactlvs waste& (2) the potentisi risks to tunnan heAlth aid
of solid wsstss snd hazardous wastes change the performanca andssda for - th t that would be os.d b
from us presumption of hazardousness, hydrogen chiorlds s.n particuists a n.rtrnilsr faclile’s location, d.aignj
30.48 FR 56592. November 17,1981: amlsalonL and (3) clarify permit .1z ,u. to ill.
Amended tha Interim status standards requirements befon, during, and tntnnlnjtv of ths naiiaaa r i laUoA
for the disposal of tgnltablL nactIve trial burns. • • M. Issuel
• and containerized liquid wastes In Thu regulations discussed ahoy. have •• IV .4’ ’SIar onth commeKt •
landfills to illow the land-disposal of covered moat aspefl of hazardous :Od a •acided. • I
small containers of liquid and solid wasta control under Subtit l e C of RCRA, .
wastethatartplacedtnovaqmcked buthavsfalledtofullyaddressamajor ‘° li rt lsanS
drums flab packs). .• - component—Past 284 permItting U5 COww 1 fb4a s. °af .nd I:
31.47FR lZ lflanuaxyll.198L standardsforlanddlsposal facilities. • IVnOU5:yjnnn
Amended the regulations waiving permit Today’s promulgation contains those
requirements for accumulation of wastes standards for new and existing land e5fl5 O v,uatwo “ .• • -
on-slte’for less than 90 days to (1) clarIfy disposal IscWties (except underground ubli asj la ental notIce ox
that the provision applies to all Injection wells). - (48FR20314). Ths notice presented
rner.tric Including those o - B. ThitoryofRu1emakin forLcrr many quntlons relating to these Issnai
accumale sasa uOU5 W55.•v .0 ? • . -, .1 • •
f ii • Disposal awnoaruz • _ and requested comment on torn. sus
• • tation 12)remov.the EPA has promulgated todays questions addressed various regulatory
requirements for the uss of Department permitting standards for hazardous • approaches; Including site-specific risk
• / of Transportation-approved containers; • ws.sta land disposal facilities after - • assessment, broad design stanuaxus. • -
(3) mvi i. labelling requirements for • considering, and obtaining public • • • location stanaards. contatntnrt 1 • i i
• accumulated wastes; and (4) allow an comments on, a aids rang. of regulatory • stand . J ,jnirslte irntlntkJaM
- extension of the 90-day accumulation • :• options. Own a period of several years, • dls it also Insitad pornm.mt on •
• limit In certain circumstances. • • • EPA has proposed two different sets of • dtvsrae technical questions and on -
• • 3L47fl1254.JanuazylL l962. standardsend.IntwoseparstsFednl ,•• pract lcslccns lderationa.suchasths
Provided an opportunity for • - Ragistar notice.. solicited comments on ai1miniatrsti burdeps that are IIksly to
neutralization surface Impoundments to various land disposal Issues • be Imposed by various r.gulator)è
obtain waivers from Interim status Furtlermore, as discussed In the next • approaches and the LikelIhood ox public
• - • ground-water monitoring requirements. • section. EPA has already promulgated acceptance of facilities perrnltt.d wt
33.47 FR 7841. February 23,1982. InterIm standards for four classes of these different approaches. • I
-• • Delayedthscomp l iancedates lor.(1) new land disposal facilities. - Finally. on!)ecamber2t l9 ol.EPA
• the submission of annual reports; (2) di. •• EPA originally proposed tec.hnlcal held a public meeting to discun EPA ’s
• submission of Initial—year quarterly • • standards for permitting Land disposal reappraisal of Its regulatory approach
• ground—water monitoring d.ats; and (3) . facilities on December 16. Ifl (43 FR • and Its movement towards the combined
•thi preparation ofground—waterquality 58232).Thebaslcapproschwastoset • approach ofground’watnptotectlon
jtogram assessment outlines. • • • uniform design requirements for land stsiidards plus design and operating
34.47 FR 8304, February 25.1982. • disposal facilities, subject to • standards. A 14-day comment period • -
Delsyed th. data lot compliance with • opportunities for varlences when • • - was provided. Thus, ths public was
l bs Interl status standard prohibiting alternative designs could achlevs I provided opportunity to comment on the
• the disposal of conlainortzed liquid • equivalent environmental protection. A I outline of todays regulatory spproac I !
wastes In landfills. • • 90-day comment period was provided: which grows out of (and modIfies
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32278
Fed.ral Register / Vol. 47, No. 143 / Monday. july 28, 1982 / Rules and Regulations (‘
somewhat) the basic element.. discussed The development of Part 284 standards
in December 1981. for injection wells Es discussed in
Together, the various propos ils and section IVR3 of this preamble.
notices outlined above have addressed
D. Court Order Requiriny the
the basic features of many çliffer nt
options for regulating land dipossi Prornu lgotion of Today’s Regulations
under Subtitle C of RCRA.Vurthennore, Based upon ths public comments
numerous public bearings, meetings; and submitted En response to the February 5,
technical symposia have been held to 1981. proposal and ths May 28, 1981.
assist EPA to develop appropriste land supplemental notice. EPA concluded
disposal standards. The regulstion. that • thorough review and modification
promu lgated today are based upon prior of Its regulatory strategy for land
proposals and public comments disposal of hazardous wastes would be
responding to the proposals and required. To ensure that aU aspects of
combine those features that the Agency this complex issue couldte integrated
believes will best effectuate the Into the land disposal standards, EPA
purposes of RCRA. These features are intended to proznu.lgste these standards
discussed Liter in this prtsmble in the in the fall of 1983. However, on
context ci the specific regulatory November 13 ,3981, EPA was directed by
provisions promulgated today. a court order th State yf Illinois v.
Gorpuch [ DJ1C., Civil Action No. 76-
C Promulgation of Part 267 Standards 1689) “to promulgate regulations for
for New Land Disposal Facilities existing hazardous waste land disposal
At the time of the February 5. 1981, facilities on or before February 1.1982”.
reproposal of land disposal standards, Alter unsuccessfully moving for
EPA was pwnicularly concerned about reconsideration of the court order, EPA
the lack of permitting standards for new med an appeal with he u .S. Court of
land disposal facilitlas. The Lack of such Appeals for the !llstrIct of Columbia
standards preduded the construction circuit. The l It Circuit granted EPA a
and operation of new .nvlronmentslly stay of the Court order pending the
sound facilities and posed potential outcome of the appeal. On Tune 7, 1982,
difficulties for new Industrial facilities ths D.C. Circuit ordered EPA to
that needed to rely upon the on-site promulgate today’s regulations by July
• disposal of hazardous wastn. To 15, 1 2.
- all eviats this short-lena problem. EPA EPA has promulgated today’s
promulgated Interim standards for four regulations ahead of the schedule which
classes of new land disposal facilIties the Agency had desiret In order to
(1andfill surface Impoundments, land comply with tha DC Circuit’s court
treatrnant units, and Class I •. . cider, While the Agency feels that
underground Injection wells) In 40 GR todays regulations are reasonable and
Part2t7onFebnsaiyfl.$6l(4OFR compIywtththsreprlram e ntsofSeclion
-32414). - ; .• 3004ofRCRA,thsynnotthesame
Salon 2672 provIdes that Part 267 regulations that EPA wot ld have liked
applies only to the owner or operator of to Issue In the.faU of 9S3As discussed -
a new hazardous wash landfill, surface elsewhere In this presmbls. EPA hopes
- 4xnpoundment. land treatment unit or to Improve these regulations In the
Class I underground Injection wall, who blurs by developIng (1) numerIcal H
has applied for, permit and for whom 4 criterla for certain design parforroance
public notice of the preparation of a ‘standards expressed today only In
draft permit has been issued either prior narrative terms, and (2) specific
to FebnsarvLl3asa3, or six months after standards that are tailored to specific
Part 264 regulatIons for the facility waates, locations, and managsmènt
become effective, whlchevr WIooWi1. practices.
Thus, ths Part 267 regulations will cease
to ipply to landfills, surface Ill. 8wnraer of the Part 2*4 Land
Impoundments and laud’trestment unitp DISPoSal RagulaUota,
• six months from today —January 28,. The regulations promulgatsd today In
l 3. After that date, only permit 40 (YR ParUS4 apply to all landfills,
applications that bays already reached urfsc. impoundments, waste piles. and
i ke draft permit stage will continue to be land trsstment units used to treat, store,
processed wider Part ‘287. or dispose of hazardous waste. They
The Part 287 standards for InjertiQa apply to both new and existing waste
wells will retnsb In effect until management units and distinguish
Febi’uary 13, 13. EPA Intend, to between these uñha i i approprldte
• ektend the Part 287 standards for circumstances.
Injection we lls beyond February 13. p ConformIng changes have been made
1983, If Part 264 standirdsforr such units In the permlttlàg standards In Part 122,
are not promulgated by that dats. ETA the deflnlUpns.in Part 280, and the
comments On this approach.- Interim status standards In Pert zns. The
F ,
regulations will, upon thejr effective
date, supersede the Part 287 regulations
for new landfills, surface Impoundments ,
and land treatment ugilts that were
promulgated on February 13.1981. They
will also supersede the Part 284
Subparts IC and I standards for surface
impoundments and waste piles that
were promulgated on January 1Z 1981.
The regulations zonalat primarily of
two sets of performance standards. One
(SubpaitelC—NofPart284)isasetof
design and operating s” 4 7 4 s
separatsly tailored to eich of the four
types of units covered by the
regulations. The other (Subpart F) Is a
single set of ground-wateimonItoring
and reapooss requirements applicable to
each of these units. The former is
intended to ensure that owners or
operators minimize the formation of
leachate and the migration of leachate
to the sdjscent subsurface soils and to
ground water and surface waters. The
latter Is intended to ensure that owners
or operators detect any ground-water
contamination, and perform corrective
action when such contamination
threatens human health and the •
environment • • • • • •.
The design and operating etandards
require units (other than land treatment
• unit.) to have liners to prevent migration
of wsstes to tha subsurface soil or to’
ground water and surface wstsrs during
the active life of the cmlLLandfWa and
piles are also required to ban laathtts.
collection and removal systems (sudi as - : -
dralns that collect leachats and pumps-’,
that remove II) to rnlnlmira the leachate
remaining after closure. Surface • ,‘
Impoundments, for whlch,Jeachate •
• collection and removal system. are • - ‘ •.. -
Inspproprlat. (due to the laip
quantities of liquid that regularly enter
the Impoundments). are required là
remove liquid wastes and/or solidify the
wastes at closurs to minirnira post-
cloaure leaching of wasts, A variance
from the llxleeed leachate collection
requirements Ii av.tiahls tounfts whers-
owners or operators demonstrate that
- westeHromThiIr’unlts will nevef . ‘ -
migrate to pound water or surface-
water In idditlon. existing portlop,s of
units are exempt from these -
requirements. . • - -
At clostse, all vutes and waste
residues must be removed from piles
and from surface Impoundmants thst are
permitted ci storage or treatment
facilities at the request of the owner or • -
- bperitor. (Piles tha r be pirniltt.d only
as storage or treatment facilities.) Other
surface Impoundrnent.s. as well as
landfills, will be closed with the wastes
left in place afl3 bust be provided with
a final cover (capped) at closure. They
• • • • • • • • • 1 ’
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:‘
tensfal Re$at I VoL 47. No. 143/ MondayJuly a 1982 / Rules ad Regu]atlonj
‘must then be maintained and monitored lOachata collection and removal system owners and operators of hazarijoni
foE ground-water contamlnetjon during above the liners generally required for waste manqn facilities as may be
4h ost-closure care period. traw landfills an piles). C Ia leak Is neceswy or desirable to protect human
mund-w r protection dliscoveteij the leaking liner must be health and the environsea Thus far the -
requirements contained In Subpart F . repaJred or replaced, or else the owner Ageaèy has established standaMs
establish a three-stage program to or operator then becomes rnPct to the requiring demonstration of financial
• detect evaluate, and, necessary. ground-water monitoring an response respons filly for dosure, post-closure
correct ground-water contamination requirementa. (An additions ] exemption care, and lia .lliiy coverage (Subpart H,
d the active life of the unit plus a from the ground-water monltonng and Parts 284 and 285 nvIsed Interim final
ctLnc period destgnated In the response requirements S provided for regulauo promulguted April 7. 1982 (47
permit lles that are perlocllcaflj, removed from FR 15032-15074) and April 18 1982 (47
The first stage of the ground-water their liner so t the linerpay be FR 10544-tasel)). The Agency t e
monitolingan responseprngranujjg 1nspectedforle ,; - - - £thIded beth w d b e
detection monitoring program, which Both the design and operating appropriate to establish standards
requires the permittee to Install a standards and ground-water - owners and operators of
ground-water monitoring system at the monitoring and response program will hwi waste management facilities
waste boundanj (Including both be Implemented through e Issuance of to demonstrate finanda) responsibility
upgradlent and downgradlent wells) to eermlts. In the case of the ground-water for any corrective actions required to be
monitor the ground water fotparametera monitoring and response program, taken to comply with the ground-water
that would Indicate whether a leachate permit modifications may be required p tethon standard, The Agency
plume has reached the waste boundary, when there Is a need to progress from therefore Invites public comment on tlilã
if a plume Is detected, a second stage—a one stage of the program to the next, and other Issues discussed In this
compliance monitoring program—.-Is IV. Present and Future Regulatory section elatIng to financial
established. The compliance monitoring A 1 d IOTOtISy’s responsibility sor corrective action.
program trucks the migration of RegulatIo n . At those facilities where all other
hazardous constituents (constituents on
ground-water protection measures have
Appendix VU) of Part 281 thatare L Although today’s regulations nearly failed and a leachate plume Is migrating
reasonably expected to be in or derived complete the regulatory framework for beyond the compliance point (a point at
from waste disposed at the facUlty and hazardous waste land disposal facilities, the waste boundary where compliance
that are found In ground water). - EPA plans to continue working to with the round waterprotetjjon
The results of compliance monitoring Improve the regulations. Major activities standard Is being measured), corrective
are compared against a round-water In this regard are discussed low. action measures are the key means for
protection standard. The standard A: Interim Final Promu&azjon of t on ci protecting human health and the
requires that hazardous constituents not DiE &SLOJ dOJVI environment EPA believes It Important.
exceed the following concentration
limits: To comply with the court order In therefore, that the owr 3 er or operator be -
(1)(s) For any constituent the • StoLe of I lLi nois v. Coauch, EPA is able tc perform corrective action
background level In the ground water 1 or promulgating ian i diaposaj stanzlar-js measure, If and wheli they are needed.
(b) For any of the 14 hazardous • • that are In Interim final form and thus This certainly suggests a need for
constituents covered by the National will become effective six months after fh iidd responsibility to cover
Interim Primajy Drinking We toy • promulgation In accordance with corrective action. There are, however. - ‘
Regulations (NWDWR), the maximum • Section 3010 of RCRA. As noted above several factors that must be considered
concentration limits (MCLs) for drinking In Section IL B. of this preamble, EPA In deciding whethet such financial
water established In those regulations, U has previously pr-ed, dIs d in responsib ty is either necessary or
-. the background level of the constituent Federal Register notices, or received 4pelrable and In formulating
Is below the MCIa. or • - public thnrmsnt on, the Issues relevant requirements for such financial
(2) Any other limits shown y the • to odays promulgation. However, while responsibility,. - ••••--••- -• - - -•- -
Ownerorepentorthnot ba lm human based UpOnpzv’dlouslydjscnned • - TheprImaryj s f 0 f d
health and the environment, • - • • • regulatory approaches, tod ’s respQnslbillty requirements for closure
If the ground-water otecti on • I standawis dIff from previous proposals . nd post -ciosme Is to assure - tsar:
standarj I i violated, the third • In how ihey Integrate various ements funds will be available when heeded to
• stage corrective Ictlon—4s activated, of thosi a proaches, Therefore, EPA -aerform those activitlel, The Agency
Corrective action must continue until the des tj public comment on these established theSe requirements i light
standard Is compiled with. Corrective standArds before they take effect. • of Its concl nalon that In their absence,
action consists of the removal of the • Couseqiently, EPA Is promulgating some owners or operators of hazardous -
contamination (by pumping or other todays lion In Interim final form. • waste management facilities would be
means) or In-situ treatment of the A lW-day comment j’sed is bth unwilling or unable to perform closure
• - hazardous constituents, provided. EPA requests that significant • and post-closure care or make funds
The regulations provide an option • • Issues be brought to - available to do so. The Agency Imposed.
whereby owners or operators may • • • attention as soon as possible to enable these requirements during the operating -
• coàply with a more stringent set of • EPA to maki appropriate modifications • life of the facility because there Is very •
liffle eco ow c va a Owner or
thereby obtain awaiverof Iwater effecuve. :1: •- • • I -
and post-closure activities at the and of .:
standards
• monorinsandresPone r L Rezdator /AcsJv y • • that kdlihJsusefuJlifewh e n Is ,t - - H
tat (Instsad of the single liner • i. Financial Rosponsibj lfty for • • Is minimaL - • •
generally required for new portions of Corr ectiv e Action, Section 3004{8)of • Slmllarjy, thi primary purpose of any
• units) and a detection system RCIt requires EPA to establish finanrlal responsibility requlreman for
between the liner, (In addition to the financial responsIblfl jstandards for corrective action wou d be to assure
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32280
Federal Register! VoL 47. No. 143 1 Monday, July 20 , 1982 / Rules and Regulntionw .
that money will b. available when demonstrate financial responsibility for
needed to cohduct neceusi corrective correctly, action during the oper tlng
action measures. The A ency expects life of the facilIty. (2) requIring owners
that ..ny financial responsibility or operators of only those facilities at
requirements for thrpectlve action which which the need for corrective action has
it may establish would be similar to the been established to demonstrate
existing financial responsibility finandal responsibility or that action:
requirements for closure and post- or (3) requIring the o iers or operators
closure care. However. there are of certain facilities to dem nstrate
fundamental differences between the financial responsibilityonly upon the
nature of the requirements for corrective occurrence of some other event (such as
action and those for closure and post- the commencement of compliance
closure care. These differepc i ie - -monitoring). - - - -- -. -
difficult questions regarding w hether Each of these options bus significant
similar financial re .ponsTbUity drawbacks. Under the first option, there
requirements are appropriate for is. substantisi likelihood that many
corrective action as those established ownerá and operators wilt be required
for closur, and post-closure care. Unlike to ppend subltantlal amounla of money
the closure and post-closure care to demonstrate financial responsibility
requirements, It may be very difficult to for corractive action which they will
determine with a reasonable degree of never be required to undertake. Under
certainty during the operatIng Ill, of a the second option, there may be a
facility whether correcth. action substantial number of ownrs or
measures will be required at $ facility operators that will be unable or
and If soth. amoUnt of money Unwilling to assure that fund. will be
necessary to perform those measures. available for corrective action alter their
Unless these Issues are properly facility has doled, Is.vlng no fund.
resolved, the financial responsibility avallabis to perform the needed
requirements for corrective action may correctly, action. The tl lrd option may
either provide very little assurance that suffer from the problem, presented
thenecessa.rycorrectlv ,acllonw lllbe smderbothoptlonsonsandtwo.The’
performed ata facility when needed, or Agency solicits comments on thl, Issue
impose a very high cost upon owners and Is specifically Interested In
and operators of h rudous waste suggestions on altñrnatlv. approaches.
management facilities which. In many A s cond major Ilsued relating to the
cases, will not requir, any corrective financial responsibility requirements Is
ctlon. lb. appropriate method for detarrnlnlng
The most dIffiQilt Issue facing the the amount c f funds to be .uured
Agency Ii determining when It should Unlike the closure and post-closure
require the ownari or operators of a requirements, the amount of money
facility to demonstrate flnanrIil iteceuary to complete required
• responsibility for corrective action. In corrective action may be extremely
developing the na nr 4 aI ruponsihthty difficult to estimate sf ore the need for
requirements for closure and post- con.ctlvs action baa bi n established
closure care. the Agency learned that snd may even be difficult to estimate
thcojd,monsfrating lln..nc$al - S once ltsnudhub..nestibli .hed.
reiponsl illfty fo activities like Consequently. if the A$,ncy were to
-: correcti*.aclioncanbsóult. fttabllahiftnan cialre spöna i hthty
substantiaL However, In the case of the requirement for corrective action, the
‘ financial rsipcmslbfllty requirements for Agency would hay, to develop a bail.
) closure aid post-closure care. the ‘for d.teTrnlning and appropriate amount
Agencyconchid.dthstthos. -— of funds tob.auwed. One a ltem .sUv.
• requirements were appropdate even . Is a *cbedule which establishes nrloüs
though tha costs are substantial because amounts to be assured depending upon
- - It Ii certain that closure and post-closure the sit, and type of facility, the number
care will be needed at facilities and they of years which the facility has been In
must be prov1d.4p omptly to protect operation, conformity to design and -.
buman health and the environment In operating standards. and other relevant
contrast, however, the At,ncy expects - factors. Comments ire requasted on
that 1or many facthtIa the only time at thetb luuu. - -
‘wh1chftwIflb cvtaInthatcorrective - - 1beAgenoyexpects’thstf ii ancIal -
- - - action pill be requIred I i bozI1y before - rssponalbfllty lot qnectiv action could
lb. onsct1v actIonj i*ssmes are to be - be demonstrated by th. urns flnanclsl
undertaken. This. In many cases, 1U be - suursnca m chanlam. which may be
— after the fadifty has dosed, . used to demoi atrsts flnanchal
Coos.Qu.ntly, the Agsn y faced with responsibility for dostirs and post.
at least this. optlonL (1)vequirln th. closure cars (thtst funds, surety bond
- owners or operators of all f*dil1tle. to - letters of aedit, I eurinc, financial test
-- --.. 5’ - S S• - - -
aiql corporate guarantee, and state
guarantees). The Agency believes these
mechanism. would provide an
appropriate level ofiuurance that
-funds would be available when needed
for necessary corrective action. -
Insurance, su h as Is ayallable for o-
site cleanup of nuclear waste facilities.
may be ps.rtlc 4arly appropriate for
corrective action because ol the -
contingent nature-of corrective action..
Insurors will be able to spread the zisk
associated with funding corrective - - -
- action and thus should be able to reduce
the costs which owners and operators
would have to bei.r to provide financial
responsibility for this activity.
Comments are solicited on 1 ether any
other financial me snlim might be
used to provide financial assurance For
corrective action and whether any
rnodlflcatlons of the closure and post-
- closure mechanisms would be required
to make them appro *1.te for corrective
action. -
An additional Issue related to
financial responsibility requirements for,
land disposal facilities concerns the
relationship of the Post-closure Liability
TnastFund under&sctlon232of the
Comprehensive Environmental •
Response. Compenutlczn. and Liabil’
Act (CER A) to thai. regulations.
Under Q.A Section 107(k), the
- liabilities eli bivgrdou* west. disposal
facility are fran.f.ned to the Pund only -
if th. following condition, are t -
1. The facility has recslvpd a permit
under Subtitla C of Ra A
2.’The facility hs complied with Its
permit and has bean properly closed In
accordance with tl .peruilt and • -
3 Tha facility and ii rróuñdlni as ,. - -
has been monitored for up to five years
afthclosuretodemonstratelhattlier. Is
no substantial likelihood fat I wdous
- substances to migrate off-sit. ortob.
relused frumconflnement, or for other
risk, to public health or wsl pj ’. -
ThaPtiWdos snotbsg lntobuildup ,v la
• tax on bazardoui waste received at
- na bmrdotaiwut.dlspo aa 1 • -
• tacllitles ,until October 1 1903. -
- AsEPAd.va lopsltsappioachto -
financial responsibility for correctlv•
action, ft will consider bow best to • -
rylate that approach to th provIsIoni of -
- the Post db ms , UabilutyTrnat Pund:t
under C R A A aolldts mmints
-outhl .1u. - - -.
2- Mo tof ills and .uIi’çz?lrot1on
- S lrnproundzn.nts .Th.A,g e ncy
• bell ttwotjpwçfwut . -•
• management units covered by today.
- Pan 254 permitting standar4s Should not -
ba.Ubjedtothsfulluiof.tanaazda ’
• promulgated today. Thesi are monoft
and neu .iI ti sjfr!acs • •
— • - •-- - - __‘• 5.___ 5 ,
-------
Impoundment.. EPA Intend. to propose believes that ilk. monoflus,
aspirate uttnd.rds for these units. iieutrillzailon surface Impoundment.
Monofilh. are landfill,, surface may present low enough risk, to ground
Impoundments . or waste piles used to water to justify th. Imposition of len
treat, store or diepose of one or moran! than the full Part 264 standard,. (Indeed.
a small group of Inorganic wastes. rH. EPA recently promulgated a regu1at1or
group include, wastes that are that provides an pportunlty for
hazardou, solely because they exhibit neutralization Impoundments to obtain a
the chancterlslic of EP toxicity (defln ed waiver frorp the Part 285 InterIm status
Lu I 261 24). El’ toxicity is md w ter monitoring requlrementa ,
characte.ri.ticthat indicates (lit See 47 FR 1254. January11, 1Q82.)
likehihoâd that certain metal, and other The Agency Is preparing a proposal to
con ,t1t ents could be leiched by an establish a sepirat. set of standards for
acidic leaching medium in significant monofill. and neutralization surface
Concentrations. This group Is further impoundments that are Ieu extensive
limited to rpeclflcwa .t,, that the thin the general standards but are
Agency 1orms11y find, would not leich equafly protective of human health and
significant concentration, of these th environment It expects to be able to
constituents In the absence of in acid publish this proposal soon. in the
1eechIn medium. At present. the meantime, until th. final set of reduced
A ency expects that the following standard. are promulgated. EPA will
wastei may meet the above yft jj assign it. lowest lind-dIpposal
thus would be eligible for inclusion na permitting priodly to monflils and
future regulation concerning inonofihl,. neutralization surface Impoundments
—. - and will focus lie pemilWng effort, on -
other types of waits man*getnent units.
2. Rzaldue, train Ioundsy IUJTISOS .mlulons tJn.der rthmd1njactJon Wells.
ntro1a
3. M.tál casting Underground Injection wefl. are uniqus
t c kiln d t among waste fflInij.mCnt units In that
I. H droxId. and carbonsta sludgeS they a e .p.c4flcafly regulated under a
resultIng tram th. treatment of plating bath separate statute as well as undir RCRA.
wssts Under the Safe Drinking Water Act
ft Residue, from titanium dioxid. (SDWA). EPA regulates thi subsurfac.
productibn Injection of liquids In walls through the
7. Ov n residue fro the production of underground injection control (NC)
throm. nd oxide ç.en gmrit. in program. SD A. S.cti 1421 C l MQ.
$z61.32.sw.stepd )e)and
ft_viImm on ci trnJ dust , U 1C regulations are set forth In 40 CFR
IIII u . Part. 122-124 and 148. Where the liquids
in Injected are hamrdous wastes, there Is
overlapping jurisdiction betw.en the
Under management condition, that UIC program md th.RCRA hazardous
preclud. contact between the abov• waste program. -
waites nd ad di, EPA believes that Becaus. of the overlapping
there may be an extremely low Jurisdictions between SDWA and
likelihood that significant Ra A. EPA has ted a permit-
cóncentratlonp of hazardous by-ru]. for injection wells In I 122.20(b).
constituents could leach Into nearby That section provIde, that Lb. owner or
sound waters. In essence, although operator of an Injection well disposing
-. these wastes have the potential to cause of hazardoul wasta will be deemed to
substantial harm If mIsmanaged (since have a R permit If he (1) has and
• they exhibit the characteristic of EP plle. with an U1C permit and (2)
toxicity), they mny be managed in a way complies with special requirements In
• that makes It very unlikely br this harm I 122.45 for wells Injecting hazardous
t a occur. Therefore, EPA believes that It waste.
m.y be unnecessary to require monofill. The development of IJIC standard.
that prevent waste-add contact to under SDWA addressing the Injection of
comply with the full Part 204 standards. hazardous wastes Is not yet complete.
Neutralization surface Impoundment. EPA recently setiled two lawsuits that
are surface I mpoundment. that (1) era challenged the regulations Initially
uied to neutralize wastes th*t a x . promulgated to Implement the UIC
hazardrnzs solely because thai exhibit program. NatzzralRé ,ourcej Defense
lb. characteristic of pilvity Co i/ . (PCCfr.. No. -i& 7
(I 122) or have been Hated In Part 61 and consolidated cas.s) American
Subpart 0 io!ely for this reason (2) PetmThwn InstiMa v. EPA (DCCIr.. No,
contah no other waster and 13) 8O-1875A and consolidated cases).
neutraliz. the corioilv. wastes Based ujion these settlements, EPA has
• suffldently rapidly so that there Is no promulgated revised UIC regulations 47
potentlil for migration of ha,aidou. FR 4992. February 3, 19S2. Those
wutos from lb. Impoundment ‘A regulations contained standards for two
‘ types c f hazardou, waste injection
wells. Cl . ,. I Well. (thou that Inject
waste below underground sources of -
drinking water), and those Clu. IV
well.. th which waste is Injected directly
Into underground sources of drinking
water, IJIC .t.*ndards have not been
promulgated for Class IV wells in which
waste Is injected abov, underground
sources of drinking water.
Because of the interaction between
the RCRA md U]C programs. EPA coifld
not separately promulgate R A
stand.rd, today for Class IV wells In
whIch waste, are Inject.dabov.
underground sources of drinking water. -
Howeve ’, EPJi intends to deveYo
standaird, for this limited set of facilities
and Issue them na minner that nsuxes
contintied consistency between the LJIC
- andRCRAregu1atorypro *ms.
- - 4 TóJIoriag of Stcindo.rds for Sped! k TT
Wastes. Apart from the specific
regulatory activities discussed -.
- 1mmedlatet .bovs, EPA1a condu n2
regulatory Impact inalysei for sich of
- the varinu. types of wast. management
units. In addition, It Is conducting a
degree-of -hazard” study which will
• exam lq,,artOusciomb lnat lonsofwast,
type. and volumes. treatment and
disposal jechnologle., and - --
.nvironmentel settings. Thi. study Is -
tntendedto ldent lfyway.Inwh lch
• RCRASubtltl.C standards could be
tailor d to better address particular
problem..
Based upon these studies, EPA hopes
to pmpo a appropriate regulatory
amendments In 1O 3 — promulgate •
themlnlQM. H
5 . Units Not C ‘eredbyPzumu&pted :- •
Standards. The Part 204 regulatIons
- promulpt.dtodats,togetherw lth H -
future’lgulatlona lot underground • •
- InjeØon facilitie, and for underground
t 9 iks that Cannot be entered for - -
InspitIoner I nt nd edtor iulst.all H H
- types of treatment. storage, and disposal
facilities. It Is poulble. howevet that
some hazardous waste management
practice I, currently used, or may be
developed in the future, that doe. not fit
- the description of any of the specific —
units (containers, tanks, surface ‘‘ ‘.
Impoundments, waste piles, land - H
treatment units, landfill.., Incinerators,
- and uhdergroun4 Injection well.) that
- are covered or are soon to be covered
by specific Subpart . of Part 204. - • - -
EPA Is considering promulgating
regulition. In a separat. Subpart to
address waste management units that
are not covered by another unit -specific
S 4p rt Such regulations would consist
of genó sl environmental performance
standards similar to thou c ntalned In
.- •
• H: • - • • •
Federal Register f VoL - 47, No. 143 I Monday. uIy 20 , i 82 I RUIeP and Regulations
-------
32.282
Federal Register /Vol. 47. No. 143 / Monday, July 26, 1982 1 Rules end Regulation.
EPA solicits comments on what type
of units. If any. are currently in
existence, or likely to come Into
existence in the near future that are not
covered by the current Part 264
regulations. EPA also solicits comments
on the appropriate means to write
standsrdi for such units In compliance
with Section 3004 of RCRA.
V. Rslatlonglp of the Part 264 L*nd
Disposal Standards to Oth.s RCRA
Subtitle C Regulation.
A. Relationship to the Part 285 Interim
Status Standards
EPA hi. made these land disposal
standards consistent with the Interi m
status land disposal standards. The
basic interim statuS design and
- operating standards (e control, on
nm-on and run-ofL freeboard for surface
Impoundments. Inspection, and
restrictions on landliillng liquid.
Ignitable. and reactive wastes) re
continued In the Part 284 standards,
although sometimes In modified form. in
some instances, based upon comments
subautied on the May 19.1960 InterIm
• final regulations. EPA determined that
some modification of the Part 285
Interim status standards Is warranted. In
such cases. EPA has amended those
standard.. In the Part 285 rules
promulgated today and based the new
Part 284 standards on the amended Part
5 standards.
One Important a ea where EPA hs.s
ensured consistency Is ground-water
monitoring. As exp4lned In Section VI
of this preamble, ground-water
protection standard, and monitoring
requirements are a central element of
the Part 284 land disposal standards.
Ground-water monitoring systems that
have been Installed at th. limit of the
waste management area to comply with
the monitoring requirements of Part 285
Subpart Fmsy also be used to perform
the ground-water monitoring required by
Part 264 Subpart F.Thus while the
• ground-water monitoring programs In
Parts 284 and 285 differ, they are fully
compatible.
B. Relationship to the Part 267
Standardsfor New Land Dispos ci
Facilities . •
• As discussed abv. In Se ct1cin IIC. of
- — this preamble, the temporuy Part 287
standard.. for new landfills, sutface
piles ex ilr,
onjanuary 28, 1963, and wilibe
upeneded by today’s Part 284
1s andard ,ønthatdsts.
- C. Relationship to Standards for Storo, e
- Surface Impoun dmenfs ond Stornge
Piles vmuJ ated on Jar, uwy 1Z 1981
On January 12. 1961, EPA
promulgated. In Interim final form, Part
-284 standard, for new and existing
surface IrnpQwldment.s and Waste piles
that are used for storage or treatment of
hazardous wastes and are designed and
operated to prevent discharge. Law the
land, ground water. anctiurface water
(except as authorized by a National
Pollutant Discharge Elimination System
permit). The standards (40 CFR Part 284,
Subparts K and L) provided for the
containmentof all wastes during the
units operating life, followed by
removal of wastes at closure. No
ground-water monitoring was required.
These standards wfflb entirely
superseded by today’. regulations on -
January 28, 1963. Consequently. EPA
today is withdrawIng 11. October 20
1981, proposal to suspend the effective
date of the January IZ 1961. standards
as they apply to ed.ting stcrag. surface
Impoundment... (48 FR 51407).
Discussions of the major differences
between the January 12 regulatIons and
today’s regulations. and of how the
transition from the January12
regulations will be effected are
contained in Sections V1LF. (Surface
Impoundments) and VILG. (Waste Piles)
of this preamble.
D. Relationship to the C.onsolidated
Permit Regulations
Procedure. for issuing and modifying
hazardous waste permits are contained
In 40 CFR Parts 122 and 124. These
procedures apply to permitting the land
• disposal facilities covered by the Part-
• 4 technical standards promulgated
today.
The permitting procedur i In Parts 122
and 124 wIll be used In a varlçty of
contexts other than Initially permitting
facilities. As discuued later La thi.
preamble, the ground-water protection
program In today’s regulations contain.
several types of rçciulrernenta that may
need to be specified after the permit h i
been Issued ajul would thus require
Interaction between the pérmittee and
permit-issuing authority. These Include
detailed “comptIs ce monitoring ”
programs which must be developed and
Implemented when I 1U.l “detection
monit 1ng” Indicates that waste -
con titt t . b.v ,.uIe red1heground -
water h-i h. waste boundary snd
correc on programs that must be
d e1ope and Implemented when
ceinpllanc. monitoring Indicate. that
the grou d-w stir protection standard
b..a-4otated. In each of this.
cases., the Part 124 procedures will be
used to modify the parmiL -
Today’. regulations contain some
amendments to the Part 1, 2peru:iitting
standard.. These are designed to
conformihe permit requirements. ind
especially the permit application
requIr merits. to the new standardp
promulgated todsy See the dlscuUion
below In Section V I I. K. of this
preamble. • - -
E Fielationship to Requirements
State Pzogrcth Authorization -
1. Genervi Discuuiort. Like several
other Federal environmental itatutes,
ItCRA authorizes EPA to approve State
programs. Once approved, these • -
programsoperatetn lieuoftheFederal
program within their respective -
• Jurisdictions. Sc. Section 3LK of RCRA.
- Regulations govei nIng U A approval of
Stats hazardous waste pri ams are - — •
contained In 40 CFRParI 123 (45 FR
3&May19 19 46FR7964and • ••• • •
6 -6310. January28, 1 61).. • -
RCRA Is uniqu. among the Federal • -
environmental statutas In providing for
two types of approval, of State
programs. “Interim authorization” and -
“final authorization”, interim
authorization Is a temporary approval •
lasting up to 24 months after a full
Federal program ha. been established. It
may be granted to State. who ,.
programs are “substantially equivalent”
to the Federal program. Final
• authorization Is a permanent approval
(subject to withdrawal by EPA for
causes specified in Section 3006(e) of
- RCRA) a State may obtain final
- authorization by demonstrating hat Its
program (1) Is “equivalent to” the -
Federal program. (2) Is “consIstent w1th
• - the Federal progr , and (3) provIdes
adequate enforcement -
2. Interim Authorizadon. Because EPA
has promulgated Its Section 3004
standard. In several stage,, ii has •
provided that State iay apply for and
receive interim authorization In stages. -
Phaset allows States to admlnh.ter • - -
progran si lleuofandcorrespondIngto . - -
• that portion of the Federal program
which covers Identification and haling
of hazardqu. waite (40 O ’R Part 281)-
• and generators and transporter, of
‘: hazardous waste (Part 282 and 263), and
establish.. Interim status standatds for -
hazardous waste treatment, storage, and - -
disposal facilities (Pail 285). Phase I I
- allows Slats, to adminislarpermit - ___
programs for hazardous waste • -
treatment, gtor.ge. and disposal - - -
• façi11ties the permits must apply
- standards substantially equivalent to
the Federal Part264 standards. A. each •
component of Part 284 standards Is ••. ,-
• • • -•
—4,.
-------
t Ground Water
Ground-water protection has been one
of EPA. central concerns In devi sE 0g 8
regulatoiy strategy for hazardous waste
land disposal. A large number of the
documented damage casea from
hazardous waste land disposal have
Involved ground-wat 8 contamIn flon.
Likewise the legislative hlstoiy of
RCRA. Including the damage cases ched
Inthe1O76Sena epj that
the Congress was quite xnoemed about
ground-water contamInaIJ when ft
aeated the hazardous waste program.
Accordingly. today ’. regulations deal
very explicitly with ground-water
protection. -
2. Congidejr j 0 9 Guiding the
Ground-water Protection Strategy.
EPA’. ground.wa protection strategy
under these regulations baa been shaped
bye variety of policy conc EPA’.
decisions on the regulat1o have been
particularly Influenced by five genera]
considerations of regulatory policy.
While several of these have been
discussed In previous Fadáaj Register
aotlcea on land dlspoa4 ft La helpful to
_______________________ - - - - j y .o, i a Rules and Regu]atj n 9 32283
Promulgated. EPA anz ow In a dlgcugg them here because they provide
Federal R g1støy notice that States mey’ a useful context In which to explain the
apply for interim authortz tjon for that overall strategy of todays re*uiatlona.
component (as well as Previously First, EPA haa Concluded that the
promulgated components). e 40 CFR regulatJo ahould be designed to reduce
l 23 .121(c) [ 2) In a separate notice In some of the uncerta [ Jes associated
today’s Federal Register EPA Is with hazardous waste di po 9 aI. Su h an
anno i ng the contents of Component approach allows Owners an4 operators
C of Phase U interim authorjzatio to do intelligent p)annln,g fOr their
which addresses State program analogs operations and helps to assure the
to today’s regulations, public that safe practices are being used.
3 .FinoiAuthonzation With the EPA wants to make sure that the
promulgation today of permanent Part issuance of a RCRA permit for a facility
284 standarda for landfill 9 , surfac 0 means that a certain level of protection
knpoundrnents waste piles and land is pmvid J and that the public can be
treatment units, IheRCRA Subtitle C assured that the prescribed level of
program La now vlftually complete. protection will be achieved.
Because the Federal regulatory program The way to meet this objective is to
Is almost compIe, e, EPA believes it is avoid regulatory schemes that
now appropriat to begin granting final principally rely on complicated
authori u 0 I c 1 States whose progrRm predictions about the long term fate,
are consistent vIth and equivalent to transport, and effect of hazardous
tl 1 e Federal pi$raxn and which provide constituents Intheenvi eni Such
adequate e .f ement. In the notice to predictions are often subject to scientific
today’. Fsdi J Rsgist e announcing the uncertainties about the behavior of
-. contents of ompon C. EPA Is also particular consftln th In the
announcfng/tj t States may now apply bydrogeologjc environment and about
• for final aui horjzation. the effect, of those consUt t.o 0
,J , receptor populations, likewise, the
Sfra or magnitude of thepotentjai effects
In assurtng that today’. regulation 2 depencj on future IngfltutIa j factor.
adequateJ protect human health and (e,g., land- patte In the area
the environment, EPA has addressed ar ,u the faduIty the lntentiou of the
potential adverse effects on ground or operator to remain at the site)
Water. surface water, and air quality, thifl can also bee .on of uncertainty.
This section descrIbes generajiy how rTh f while EPA acknowle4 that ____
today’. regulations protect each of these . thee árejjtu atj where predldflona f
three envlr hxnental media and how fuh effect, can be made reasonably, it
EPA Iàtenda to refine It. regulatory 1 hit nri to emphasjza regulatory
•approacj over time, measure. tha i do not require such
prediction.,
- Se nd , EPA’. strategy for protection
must Consider the unique tharacter Ic.
of growd water. Ground water Is a
fragfl reson , Once con tamjnateij, on
aquifer remain, pofluted for a relatively
long time end It may be extremely
difficult to leatare the quality of the
water In the aquifer. At the same time, I
I. often sailer to limit the Impact of
polluted ground water on human heal
and th. environment than ft Is to limit ____
the Impact of polluted surface water or
air. ow d water does not rovide a
habitat fwfial1orwfldij 0 , and human
use of grotu d water I. usually limited to
s1t atjons where the ground water Is
Withdrawn for particular Purpose.. Thu9
by auurtn g that ground-wat( , quality i
Compatible with the various uses to
w h i c h It may be put
reasonably sure that human health and
the environment will be protected.
Third. EPA has concluded that the
standard, Issued today should not stifle
innovation. The recent attention given to
hazardous waste management In this
country Is a relatively new phenomeno
EPA expects that the state of scientific
knowledge about bow to control
hazardous wastes will make significant
strides In the next few decades In order
to avoid creating mpedjm ,nt, to such
technologi Innovation EPA ha tried
to use performance standards whenever
possible. Performance standarda -
establish envlrorunentat design, or
operating objectives and leave to the
owner or operator and the permit-
Issuing authority the decision of what
the most appropriate design and
operating measures are or achieving the
st ndar L Besides being more cost-
effective, such an approach keeps EPA.
the States, and the public focused on the
Issue that Is of greatest concern—the
environmental results that can be
expected from the facility. -
Fourth, EPA ha conduded that he
purpose. of RCRAcan ot be achieved
facilities are capable of being
Implemented the c*rntexl of the permit’
program. Permitting agencies (at the
Sting and Federal level) muSt be able to
Issue permit, torontal
acceptable facilities and to dens permIts
to those facilitie, that cannot provide
adequate level. o1envI , .
protection •
In order to meet this need, EPA’.
regulatory approach itlust be one that
can be Implementor] quickly and that
limit, the seed to flduet oampIe , ____
behavjo effecti of hazardous
Conatjtuej t In the eny onmsn Th
latter con Idera I, particularly
Important because the national pool of
a on such topic, thefats and
tran .poTt of l1aazd u waits
COflStjtu ant 5 In the sub uiface
environment Is quits limited end should
be conserved for those Itü tJoni where
such analysis must be done. ll1erefo
EPA believes that the strategy for - - -
protection under these regulations
should emphasize .tandaydp that ‘
provide a clear Indication to the
atadcornnmn I t yof
expected. Such certainty should reduce
• the time InvOlved In actln on penñjt
and should avoid the need for complex
analyse, with uncertain outcome,,
Fifth, EPA ha. Concluded that the
regulated community should be required
to devote the bulk of Its environmental
protection expendftu_res to measure.
that are most likely to produce
significant environmental results. There
Is a limited amount of resource,
available to provide envIronmen j
protection and these resources should
be used, in the most Cost-effective
manner possible A regulatory strategy
which tendato require exhaustive data
collection and analysis prior to
p -
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32284
a
Fe Ierul Register! VoL 47, No. 143 I Monday. July 2fi.. 1982 / Rules end Regulations
permitting doesn’t serve that goil of control measures. Wherever possible.
Expenditures on such analysis ire often today’s reguhtions hive relied on thes
better spent on design and operating approaches. Performance standards,
measures that have been shown to be however, are often difficult to develop
effective in controlling hazardous waste. and it has not been possible ip the time
While EPA is willing to explore new allowed to promulgate these regulations
ideas in hazardous waste mana$ement for EPA to develop performance
with permit applicants, it does not standards for all situations. TI re1ore.
intend to establish standardsthat some of the standard. In today’s
require exhaustive analyses in order to regulations draw upon other rcgiilatory
determine whether they have been met, approaches (e.g.. design standards).
2. Alternatives Examined. In the Over time EPA intend, to reline the land
course of rulemaking on the land . disposal regulation., to develop
disposal regulations. EPA has performance standard, that apply to
considered (and sought comment) on a more situation. and to make more
variety of alternative approaches to explicit the performance standard.
regulation. In pr vloua Federal Register established In today’s regulations.
notices EPA has Identified at least five 3. Control Strotegy. Based on the
possible regulatory approac.hes considerations outlined above and on
1. Design and Operating Standards— the comments receWed during
Such standards would requir. rulemaking. EPA has developed a
installation of specific equipment or use strategy for ground-water protection at
of particular practices. An example is a land disposal facilities that it believes is
liner specification such ii 2 led of clay adequate to protect human health and
with a permeability of 10’crnJsec. the env1ronmen? The fundamental goal
2. TechnIcal Performance ‘ of the regulations Is to mlnimI e the
Standards—Such standards establish an the environment of the
engineering objective and allow the h. rdous component of waste placed
permit applicant to develop • design or In land disposal units. EPA’. strategy for
set of practices toachlev. the objective, achieving this goal has two basic
An example is a requ1rem nt to develop etetnents. One element Ii a liquid.
a run-off control system that can
accommodate the water volume from a gemeui strategy for the disposal
units at the facility that I. Intended to
specified storm event (e.g.. 24-hour. 25- leachata generation In the
year storm).
3. ContaInment Sta.ndard—Such a waste management units and to remove
performance standard would require le chate from th waste management
that the permittee keep waste or waste units before It enters the subsurface
constituents within a certain area for a This I , the ‘ first line of
fixed period of time. An example Is a defense” In the sense that it seeks to
liner standard requiring that the liner prevent ground-water contamination by
able to contain waste for 100 years. wnothng the source of the -
4. Environmental Performance contamlnatlcm. The other element of the
Stand.räi—.Such standard. specify general strategy is a ground-water
limits (usually numerical) on Ievsls of monitoring and response program that is
contamination that may b. tolerated ii’s designed to remove leach te from the
the environment. An example is a round water if it Is detected. The
ground-water quality standard for the rnothtoiing and respon.s, program serves
ground water below the facility. as a backup to the Liquids management
5. Risk Assessment Standard—Such strategy.
standard would establish broad a. Liquids Manngement Program—
narrative aiteria to guide the permit. When hazardous wastes are In liquid
Issuing authority in doing a site-specific form or are mixed with other liquids.
• assessment of the risks associated with they are in a form which presents the
the facility and in developing permit greatest threat to ground water because
conditions that reduce th. risk to of their potential for migration In the
acceptable level.. An example Es a subsurface environment. EPA believes.
standard which requires the permit therefore, that a systematic effort to
applicant to demonstrate that there will reduce the volume of liquids that carl
be no significant risk of c.apcer resulting potentially enter the subsurface
from the facility. - environment should be a bask tenet of
Each of these approaches has its own any ground-water protection strategy.
advantages. Generally. EPA believes ‘ There are two aspects of a prudent
that technical p.rformance standards In liquid, management strategy. First, the
conjunction with environmental - generation of leachate should be
performance standards provide the ii 9 ht minimized. primarily by keeping liquids
mix of certainty and flexibility to be out of the waste management units.
Implernentable and to assura the proper Second. reasonable steps should be
emphasis on the environmental results taken to’remove liquids from the unite
before they enter the s’ubsurfuce . , .- .
environment.
Today’s regulations e,thbliah a liquià.
management strategy for each type of
land disposal unit under Subparts K-N.
These portions of the regulations
e tablith the principal technical
requirements for surface impoundments.
waste piles, land treatment unit.s, and.
landfills. These requirements vary
somewhat between Subparts depending
on the characteristics of each unit type.
but they do fall Into a few .g.neral—
ategorles. To avoid the generation of
Icachate, the owner or operator of some
types of units will be required to control
run-on to the unit, to substantially
restrict the placement of liquid waste or,.
waste containing free liquid s. or to place
a cap on the unit at dosure. To prevent
the migration of liquid. Into-the
environment. the owner or operator may
be required to place onderlineri below
the waste, to Install le.cbate cçllectlon
and removal system., to assure the
structural Integ rity of any dikes used at
the-unit, to control run off from the unit.
to treat l aurdoiia constituents, or to - -
remove free liquids at closure.
Today’s regulations have stated these—
requirements a performance standards
to the extent possible. EPA also intend.
to Issue guidance that will describe
specific design and operating mealures
that maybe used to satisfy the
performance standard,.
EPA believes that the placement of r
liners beneath the waste In a land
disposal unit Is oftan a sy element In a’
general lIqul4.s management strategy. It
should be emphasized, however, that
liner, must be viewed as componimt. of
an overall liquldsrnanagementiyitsm. -
A liner Ii a barrier t.cbnology that
prevents or greatly restricts migration of
liquid. 1ntc e growid. No liner,
however, c ’keep all liquids out of the
ground for all time. Eventually liners
will either degrade. tear or aack and
will allow liquld ato thlgrite out of the
unit. It Is, there!ore important that other
meuures be taken to removs liquids
from the uthtdorlng the time that the
liner I. most effective (La .. during the
active life of the facility). [ aachats
collection and removal system. at
landfills and measures to remove free-
liquids from surface tmpoiindmtntsat
closure an, the principal techniques
used to remove liquid.. . ,, ,-
EPA’sviewofthefundllonofaljrer —
contrasts somewhat with that of some
members of th. public and the regulated
community. Sthne have argued that
linCra are devices that provid, a
perpetual seal against any migration
from a waste management unit EPA has
concluded that the more reasonable
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____________________________________________ — — . • . . . . , ‘ . . . . “ . .
‘ :. ‘ ?‘ R. s, V 47, No. 143 /. Monday July 28, 1982 / Rulel’ nd Re ilations ‘ 32285
H
S , .. I
asswnption, based on what is known liquids emerging from the unit, the does.not. however, obviate the need to
about the pressures placed on liners monitoring and response program forces establish the monitoring and r.iponseH
over time, Is that any liner will begin to . .- EPA and the owner or operu ,wr to prbgriiiiii lose to the waste as
leok eventually. Otheri have argued that address specific chemical constituents possible.
liners should be viewed ass means of in the leachate coming from the unit. . . Early detectionof contamination
retarding the movement of liquids from EPA believes that This Increased - allows the owner oroperator as well as
a unit for some period of time. While concern with the specific chemical the permitting authority the additional
this view accords with how liners do in components of l athate is appropriate time needed to develop corrective action
fact operate, EPA doe, not believe that considering the ui ation addressed by measures that will be successful and
this is a sound regulatory strategy for the rnoMoring and’reaponse program. cost-effective. It 138150 sound policy to
tound.water protection becat se it ii This element of the g’ibund-water - . conduct corrective action close to the
principally designed to delay the protection strategy is concerned with waste in order to minimize ground-water
appearance of ground water . . hazardous waste leochate that has depletion on the aquife • to lncreaae the
contamination rather than to achieve a actually entered the ground water and cdst-elfectiveness of th corrective
more permanent solution. Accordingly, thus is at a point where adverse . ac tion. and to reduce substantially the
EPA views liners as a barrier technology environmental impact . are most possibility that a plume of
that can be best used to facilitate the Imminent, EPA believe, that a ‘careful ,. contamii atJortwill migrate beyond the
removal of liquids from a waste - . examination and consideration of the owner oroperator’s control.
imanagementanitdurln .gitsactivelife ;potentialeffectsoftheapecif lc. : - : / Akeye)ementofthemonitortngandi
(Including the closure period) and .. :. , constituents in hazardou. waste program s the establishment
= thereby provide a greater assurance of: leachato is necessary at that time LA. ‘ of a ground-water otecUonitindiI d H
long-term Pr téctia the facility. . . 1order to assure that the statutory for the waste management units. The
While mandate, to protect human healti, and “ principal purpose of this standard lab
prev nting migration from the unit until the environment is achieved. ‘ Indicate the level of g rou nd -we t . ’ .
well after closure, their principal role . ‘ In contrast. it isnot necessary to . contaminatIon that triggers the n
occurs during the active life. After ‘‘ know the complete chemical . corrective action me ures. The
closure. EPA believes that a protective composition of hazardous waste at water protection standard also deftht
cap becomes the prime element of the stages that are more remote from the the constituents that must be address
liquids management strategy. A well. ‘ point of actual Impact on the in the compliance monitoring program
designed and carefully maintained cap environment. For example, It is not (the monitoring scheme that must be
can be quite effective at reducing the ‘ ‘ necessary to know every element of a used when hazardous waste leachate
volume of liquids entering a unit and waste before listing It as a hazardous has entered the ground water). I
therefore can substanlially reduce the ‘ “waste. The presence of some ‘ ‘ ‘ Where possible. the ground-water
potential for leachate generation at the constituenti which could cause potential i otec.na . .ndard is
unit for tong periods. ‘_: . .- . . .-- hazardito human healthorthe environmental performance standards
b Ground- Water Monitoring and environment under some management that establish numerical concentration
Response Pm ram—The second . -‘ scenario Is sufficient to warrant ‘ limits for individual contamInants.
element of the overall ground-water ‘ identifying a waste as hazardous. ‘ Specifically, EPA has relied on the ‘,.
protection strategy f ,n the regulations is Likewise, at the time of placement of . - -
National Interim Primary Drinking , . . . ‘ . -
• the monitoring and response program - : waste in a l id dispasal unit it would be Water Regulations to establish H :. •‘
established in Subpart F. This is a ‘ appropriate to focus on the broad ,‘ maximum cdntaminant limits for a -
program that requires graduated leveis ‘,“‘ characteristics of the waste, such as the “ pU ar set of toxic metals md’
of monitoring and corrective action , liquid content or corrosive .
.r ponsibilities that increase as the u’c,haraát rlstjcs of,the wUte..Thus the’,.; pesflcides. EPAbope. to eventually
evidence of ground water contamira n ’ ,tñ reised ie Ió1concerri wlth ti .” expand the list of constituents for which
- ‘Increases. -, ‘ , ‘- - - . .•‘ “ ‘ ‘ - ‘ ‘ ‘Ipecific makeu,p of hazardous waste . . specific health-based concentration -
• - When there is no evidence of ground.. - leachate at the time of its discovery in, ‘ limits may be used. .•‘ i’ - -
water contamination, the owner or ‘‘‘. .‘ ground water is fully consistent with the ,Where such environmental ‘ ‘ ‘
o erutor is simply requtred to mont to ‘ general philosophy of the monitoring erformance standards are not a allable
- detect whether leathate has entered the “, and response program—increasing --. ,‘ for chemical conitituenti that are 1
grc)wld water. Once there’is evidence ‘ ‘ ‘ attention to the conitituents In the known to be hazardous, EPA ha .’
- ‘ ‘: that a unit is leaking. the owner or ‘‘ ‘ .‘ - wast al the evidence of Imminent - - ‘ provided that the action level which “ - H
- = operator takes on the re ponsibility of - ‘- . adverse impact on ground water ‘ . ‘, triggers corrective action will be any
defining the potentially dangerous’: - . ‘: increases.’ ‘.. ; . - 5- . ‘ statistically significant Increase o ,ter,the’
- component of the leachateentering’ the ‘ ‘ ‘-The monitoring .nd response program’ background level of the constituent in
ground water and monitoring to assure -. in today’s tegulations Is to be instituted the ground water below the waste
that the level of hazardous constituents ‘ in the ground water immediately outside management unit. EPA believes that this
in the ground water does not exceed ‘ the waste management area. EPA ii a reasonable approach for three
concentrations that could adversely - ‘ believes that the owner and operator - reasons. First, as will be discussed in
affect human health and the ‘ , - should be capable of controlling ‘, ‘ rhore detail later, It is the best of the
environment, if the leachate causes :: ‘ hazardous constituents in the ‘ vailabló alternatives. Second, a “i o
increases that exceed a specified - ‘ ‘ environment as soon as possible after ‘ increase over background” standa d
ground-water protection standard for ‘‘ “they appear in the environment, As will assures that causation (namely the fact
the’ unit, corrective action measures = be discussed later, there may be some ‘ that the facility is the sourpe of the
must be taken to achieve compliance ‘ situations in which human health and Increased concentration) Is established
with that standard. . , the environment will not be threatened at the same time that noncompliance
Unlike the liquids management If hav]rdousconstituente in the ground With theground-water protection
strategy for the unit, which seeks to ‘water move beyond the waste standard is determlned,This appro’ach
minimize the total rate and volume of all -mnnn ement boundary. This possibility ‘ avoids the possibility that the owner or
• I ‘ ‘ : - ‘‘‘ -: ‘ -:‘.“ ‘ -,‘ ‘ ‘, ,. ‘:- H
• • : , ,“ - ,-. . :‘ , ,-
‘‘‘‘S : -‘ “ , ‘ • ‘‘:.‘‘ •, ‘‘ ,,‘ , ,
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32286 Federal Register I Vol 47, No i43 / Monday, July 26,4982 / Rules nd Re ulatlons
oper.tor would be forced to clean up the alternative concenirstion limit lies with disposal and the appearance of any
ground water even though hazardous . the permit applicant. . adverse effects on ground water fron
constituents had not migrated frorn .his The effectiveness o the monitoring . that disposel. This simple physical fact
units into ground water. . - and response program depends has raised major policy Issues that have
Third, this approach Is consistent with ultimately on the success of corrective been some of the most difficult .
a ground-water protection philosophy action measures. EPA”expects fhet . questions that EPA has had to consider
that seeks to maintain groundwater corrective action measures will prove to in the development of today’s .. . ‘.:
quality necessary for current and future be effective In many places. Th regulations. - - ‘..; ‘..
uses. Background ground-water quality,’ national experience with ground-water . In the Agency’. vlew,’there seems
independent of the effects of hazardous ‘cleanup, however, is relatively limltçd at little doubt thit the general goal of any
waste disposal, will define the highest this time. EPA expects that over time the strategy for protecting grpund water ‘
— - u e to which a particular aquifer may be state of knowledge about ground-water from hazardous waste,$hould be to
put. An aquifer which is already too cleanup measures will irnprove< As our’ provide protection bra very long tIrne .,_
dirty to be used as a drinkmg’water expenence with corrective action Ground water Is a relatively abundant
aource hill certainly not be transforMed measures Improves it may be necessary resource in this country, but ltli lso
into a prime drinking water supply with to broaden or narrow the use of ‘. fragile QBC that Is not easily cleaned up,
the ad ent of hazardous waste disposal corrective action measures in the land once it is contaminated Moreover
activities in the area A regulatory disposal regulations many of the chemical constituents
strategy that prevents increases o er There are two aspects of the present in hazardous waste do not
baekground levels of contamination corrective action program established in degrade over t ime or do so at very slow
-aisuresth it the existing and potential today s regulations that reflect a rates Thus It can be expected that a
u e of that aquifer will be maintained recogultion of the uncertainties , hazardous waste land disposal unit
In some cases state authorities may associated with ground water cleanup presents some risk to ground water well
have clearly defined what those uses First EPA has not made corrective into the future
are In other areas these usep may be - action the only means for ensunng While this line of thinking may
established by custom or by agreements ground-water protection at land d1spos l , suggest that the regulation, should be
between private parties. In any case, the facilities. EPA has concluded that a aimed at perpetual protection, EPA has
maintenance of background’quality sound liquids management strategy can concluded that no useful purposeR
should ensure that hazardous waste . be the prime method for providing long- served by announcing • regulatory ‘...‘ ‘ -
disposal activities will nat adversely ., . term protection of ground water at land strategy that professes to protect ground
affect other uses of ground water in the disposal facilities. The monitoring and water forever. First, such a professed -‘ : - -
area , . 5’ . response program is a back up program •. objective Is ultimately misleading. While
• -. . , . ‘ 5’ . . “,. . which becomes moat tmporti.nt If the proper hazardoul waste management
- This latter justification for the no liquids management strategy fails. . practices can provide long-term • 5;,
mcrease over ackground 5 ,stan a .‘• ‘ Ultimately, then. s’ atory -‘‘ ‘pwtedlio It ii possible to spedfy
also suggests a basis for modification of approach relies on corrective action with any degree aiaccuracy how those ..
the ground water protection standard It measures only i tsn all other technologies will perform several -
Is possible that some Increases in the reasonable measure. to control ground hundred years from now Certainly It is
level. of particular constituents in water pollution hav• fall.d. impossible to attempt ta red1ct and
ground water can be tolerated without Second. any corrective actIQn program ‘ design for all potential future turn.. In
adversely affecting current and futUre required under today’. regulktion . must human events (e.g.. act.. of war) and
use of the ground water beyond the be designed to meet the ground water geologic history (e.g. another Ice Ag.)
facility Accordingly, EPA ha. provided , protection standard by removing waste Second. such a regulatory philosophy
a mechanism for allowing we constituents orby treating them In does not reflect a proper attitud, toward
estsblishment of alternative place Thus the program emphasizes the future We cannot assume that our
concentration limits above l sckgmwid measures that are most ltk ly to achieve ability to cope with the .nvlronm,ntal
leveis for hazardous constI tients - relatively permanent results. In contrast risks usoi ed with hazardou, waste
covered by the ground water protection to correctiv, action measures that disposal will not Improve La the fuPint
standard. EPA has concluded that such simply create barriers or modify the (The technology for controlling ¼
an option is a reasonable element of any gradient In the ground water to prevçnt hazardous wastes In partleulerI.s
ground water protection scheme arid migration. Such .cbi 1ques may provk o currently in in embryonic staga and
does not create a major loophole in the good controls for ibm. period of time EPA exp.cts that substantial progress
regulatory scheme but their effects are necessarily less will be made in this fl.ld in the near
Rational choices can be made about permanent thin a strategy that future ) ThIS is not a mlsplsc.d faith In
the uses of ground water In an area and emphasizes removal or in place I the salvation of future teohnolog.y but
about the limits on contamination that treatment of contaminants As dlscusaed rather a simple recognition that tuture
are necessary to protect those usea EPA below, EPA has decided that owners generations may be much better able to
has conduded that public confidence En and operator-s will not be expected cope with problem. of ground water
such decisions will be enhanced. generally to conduct compliance pollution than we axe today
• however, by as.urthg that a decision to monitoring and correctiv&actlon • ‘.,‘. ‘ . Therefore, EPA ha. concluded that Its
establish an alternative concentratio programs forever It Is, therefore all the regulatory strategy should seek to
limit Is the result of a dsliberatlve - , , more appropriate tc emphasiza provide long term protection. but it * —
process Therefore EPA his required ¼ correct1vi act1on measures that can be should not profess to provide protection
that there be • fulL consideration of all expected to achieve relatively for infinity EPA consldersd whether it
relevant factors befor. setting permanent results should specify some JIx.d time Ørlod
alternative concentrations limits - c. Tim. Thimn of Prot.ci ian that would provide an outsr bound on
Likewise EPA has made It dear that the SLrotegy—There Is often a substantial how long-It can reasonably expect to
burden of proof In justifying - ag between the act of waste assure ground At this
-------
action during the tim. that the most ground-wat.r protedllon ’standard I.
jlgnificint portion of the lenchate plume achievd. This will ensure that the time
Is emerging from the regule ted unit, period for Lb. compliance monitoring
There could be two potentlnF+eason. and corr.ctlvi .ctlori programs Is linked
fórThe a peaIance of iriiiii tIó i1n tdthe purpose of the program—the
ground water (1) the regulated unit liner L removal of the har.ardou. component of
has felled and Is allowing leachate to any plume from the unit.
pass through It or (2) the unit did not EPA also recognizes tha I some
have a liner and liquids present in the technical factors could cause the period
unit ore aimply seeping into tbi ground during which significant amounts of
unobstructed by any barriers. In either lee chate enter the subsoil to be much
case the liquids available for migration less then the active life of th regulated
to ground water should be sharply unit. The major situation where this
curtailed by the placement of the final would occur is-where a liner In the unit
cover on the unit at dosure in fact, a provides a effective barrier for some
well-designed and carefully maintamod peri .d of time. and the liner does not fail
cover should reduce the rate of until late in the active If, of the unit. At
migration of kachate to ground water to L this time. EPA does not know how to
insignificant levels. Thus, the active life account for this possibility In defining
• of the unit, the period during which the what the appropriate compliance-period
• cover is not present, is thr time period should be because it is not possible to
• during which the release of leachate to know precisely when the liner actually
the subsurface environment Is likely to fails. Accordingly, the rçgulationi
be greatest. provide that the compliance period must
Projecting that same analysis into the extend for a period at least as tong as
ground water, it is logical to assume that the active life of the unit, based on the
once contamination appears in ground assumption th.t an Improperly install.è.. .
water the most substantial release to liner may begin to leak as soon as wast ,,
ground water will occur during a period iispoui begini.
that is equal to the active life (Including L The second major time period used in
the closure period) of the unit. Based on the regulations concerns post-closure
this technical analysis. EPA has iesponstbilitles. The owner or operator
concluded that the compliance period must know how long after closure he
for the compliance monitoring program must continue to nihintaln the liquids
must extend for a time period that is at management measures, such as the
.Jeaalequallo the aciiveiile i f lheunit cover. and rnnt inii In mnnitnr I
EPA recognizes, however, that several determine whether haMrdous
technical factors may cause the plume constituents are leaking into ground
caused by a “no liner” or “failed liner” % Qater. This ii a difficult time frame to
scenario to continue to appear alter a define because it implies some I
compliance period that Is based on the assessment of bow long owners and
unit’s active life. First, the placement of oprator. should be held responsible for.
a cover at closure does not immediately i unit at which there has been no
ihut oil the ex.filtrstion of liquid from evidence of ground-water.
the unit. Partitularly at a landfill there ii ‘ contamination.
likely to be a deliqullying period during i The existing hazardous waste
which liquid in the waste passes down gulstions have established a post-
through the waste and into the ground. lqsure care period that extends for 30
In addition, various contaminant. may 4 ieers after closure at a lend disposal
move at different speeds through the I.cility but allows for variances to
unsaturated z.ó ’ne below the facility, increase and, in some cases, decrease
Thu, the detection of hazardous 1 tl at time period. EPA promulgated
constituents In ground water may reflect r gulatlons establishing that post-
the appearance of the fastest-moving cloiure care period on May 19 19.00 (45
constituents. The slower moving FR 33068) and received comment on that
constituents may begin to appear later approach. This time period represents
and continue to appear for a petiod that whet EPA thinks Is a reasonable burden
is longer than the compliance period toplace on the owner or operator to
(i.e., the period equal to the active life of maintain a presence at the facility.
the unit) as measured from the first While some cornmenters have
appearance of the fastest-moving recommended shorter or longer time
constituent. , periods, others hive Indicated that the
The regulations account for this • existing post-closure care period
phenomenon, if it occi.i s , with a represents a reasonable burden for the
variance. If a corrective action program facility owner or operator.
is under way when the normal Given the current state of knowledge
compliance period ends, the compliance about hazardous Waite disposal and
period will be extended until the given the record developed in •
• • •: • _. •. ,. • • • . • •
: ‘ - ‘-- ‘‘ . •• • •
• • • T arws d.f7vo1 4 No, 143 ond y’ )uly_26._92t/_Rules_and_Re uh)dons • ___
‘time, EPAsimply his not been able to
develop in adequate rationale for auch
a time frbme. (A. will be discussed later,’
EPA intends to initiate .everaj studies to
explore whether There Is iieasonable
basis for speciFying such a time lramq.)
Therefore, PA has decided that the
basic strategy for today’s regulations is
‘to require the owner or opere or to take
reasonable steps (including the
installation of various control
k’rhnologies) that are likely In provide
• lung-term protection of ground water,
-.ithout specifying exactly how long
these steps are expected to be effective,
The’Lquids management strategy
embodied in today’s regulations, for
example, emphasizes design and
operating measures that are designed to
reduce th present end future likelihood
of Ieathzite migration to grounçl water.
In the monitoring and response program,
the owner or operator must be prepared,
while he i i present at the facility, to take
needed corrective action as soon as
ground-water contamination appears.
t’here variances from this
responsibility are allowed, the owner
operator must be able to demonstrate
that relatively permanent conditions are
present in and around the facility that
• are expected to prevent adverse effects
on human health or the environment.
Conditions that simply delay the time
when adverse effects woi. 1 1d occur do
• not pçvide*i aa jcir.the o srneror _______________________
ppe 4tor to be. relie ed of his
responsibiIite. wider the monitoring and
response program.
In Lame areas, however, it has been
necessary to specify time periods in the
regulation in order to make the
regulations workable. One such time
period is the compliance period (i.P.. the
time period over which the owner or
opera tot must be ready to perform
corrective action once hazardous
constituent. have appeared in ground
water.) The other time period is the
post-closure care period. This period
defines how long the o mer or operator
must maintain design feitures aimed at
long-term ground-water protection and
how long he must monitor the ground
water as long as contamination is not
detected.
The compli ce period Is linked to the
active life of the waite management
area. It is a time period that is at least
equal to the number of years that the
regulated unit(s) received waste but it
may he longer where additional time is
needed to complete corrective action
that was ongoing at the lIn e that the
normal compliance period ends. In
getting the complianc, period, the basic
objactlve Is to have the owner or
operator ready to conduct corrective
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•32288 Federal Reg ter I Vo’l. 47. No. 143 / Monday. July 26 , 1982 / Rules and Regulations
rulemaking on these regulations. EPA
ha. concluded thai this time per.od is a
reasonable way to define the owner or
operator’s responsibility after closure to
continue liquids management measures
and to monitor ground water where no
contamination has appeared. The
Regional Administrator may modify this
time period under the regulations where
necessary to protect human health and
the environment. Such a variarjce I.
necessarily open-ended because it can
potentially be based on variety of site-
specific factors.
EPA is not entirely satisfied with the
way today’. regulations address the
Issue of time In protecting ground water.
EPA Intends to analyze further the
qu*!stion of whether there is an optimal
time frame to be used in a ground-waler
protection strategy for land disposal
facilities, Specifically EPA Intends to
itudy each of the following approaches
to setting an optimal time frame.
First. EPA will consider whether there
Is a technical bash, for setting a proper
time frame. EPA is interested in
determining whether the Lime period can
be linked to the likelibood of sIgnificant
attenuation of constituents En the
unsaturated zone. Thus, EPA would
explore the circumstances under which.
if contamination did not appear In
ground water for a certain number of
years. ii could be concluded that
zuffident attenuation had occurred to
reduce to insignificant levels the
potential hazard of any plume that could
reach ground water.
Second, EPA will consider whether
there is an optimal tune period that
balaYices the need for protection at
V Individual facilities against the need lot
environmentally-acceptable capacity for
land disposal of hazardous-waste. At
some point. th Imposition of long-term
re ponsibiities on owners and operators
of land disposal facilities could become
io expensive that new facilities would
not be developed and that existing
facilities would close, thereby reducing
the available capacity for hazardous
waste that may have to be placed In
land disposal facilities. Such a situation
would not be desirable as a matter of
national environmental policy because it
tends to create pressure for the worst
forms of uncontrolled hazardous waste
disposal.
Third, EPA will %onsider whether
there is an optimal time frame for
ground-water protection that balances
the cost of additional protection against
the benefits derived from increasing th
time frame for protection.
B. Surface Waler -
EPA is also concerned with the impact
of hazardous waste land disposal on
sifice -, As .n -t 0 r its gcnc r .d
hquids management s ategy for waste
- management units. EPA has imposed
requirements that ihould minimize the
Impact on surface waters. For example,
run-off controls at landfill., land
treatment units, and piles. and The
overtopping requirement at surface
imnpouridments ,.will avoid the migration
of hazardous constituents over the land
surface to surface water. in addition,
uni , ocated in 100-year floodplain.
mu generally be designed to prevent
washout, a measure that Is primarily
concerned with surface water - -
p rot action.
The general strategy for the protection
of ground water En today’s regulations
should also serve the purpose of surface
water protection. Most aquifers are
hydraulically connected to surface
water. To the extent that today’s
standards assure protection of ground
water upgradient from a surface water
body. EPA I. also providing protection
of that surface water. In fact, as will be
-discussed later, EPA has built a concern
- for surface water into the th&l ’iitoring
and response program as well as the
design and operating requirements being
promulgated today.
In addition, it should be recognized
that the surface water effects from
hazardous waste land disposal are
controlled under other EPA programs
besides the RCRA hazardous waste
progran Specifically, the discharge of
pollutant.. Into navigabls watets from a
point source Is subject to regulation
under the Clean Water Act (CWA). Such
a discharge must receive a permit under
the National Pollutant Discharge
Elimination System (NPDES). as -
provided for In Section 402 of the CWA
.Where a htvud6us waste land disposal
facility ha.. a point source discharge, the
appropriate requirements of the CWA
must be met for that discharge.
CAIr -
For several reasons, A has found it
very difficult to eddress the effects of
lend disposal units on air quality in
these regulations. First. EPA has less
information and experience with air
pollution at these units than with other
types of environmental problems (e.g.,
ground-water contamination.) As a
result, less Is known about the extent of
the problem and about the available
‘-control technologies for remedying the
- problem. This makes It difficult to
assess the need for particular
requirements to deal with air pollution.
Second. based ott the Information that is
available to EPA, It appears that the
question of whether a unit has an air
pollution problem, particularly where
volatile emissions are at Issue, is
dtpendcnt onth,e nature of the
particular waste being placed in the
unit. Several oLthe experts attending -
EPA’s technical symposium on land
disposal, for example, Indicated-that
some surface lnipoundinents could have
significant air emissions but that the -
extent olthe problem was prlrnaiily
dependent on the volume of volatile
hazardous constituents placed In the
impoundment. -
Given the limited information on air
emissions from h z.a.rdous waste land
di poial units and the fact that the
problem appear. to be highly waste—
specific. EPA ha. not attempted to
establish extenslvs control measures fort
such problems as volatile emissions In
these regulations. EPA considered
establishln a narrative standard for air
emissions that would be a.rialogou.a to
that contained In I 7.1( c) of the
temporary standard. for new hazardous
waste land disposal facilities. EPA
decided. however, that It needed more’ --
Information before it would know how
to translate such a broad standard Into
eciflc controt requirement. that could -
become pe m1t conditions. -
EPA has required a few operating
measures aimed at avoiding adverse
effects from air emissions. Specifically.
EPA requires wind dispersion controls
to minimize emissions of pa.rtlculate_ -
matter at waste piles, land treatment
unit., and landfills. - -
EPA has begun a detailed study of
potential air emissIon problem . and will
focus first on defining the extent of the -
problem and the circumstances under
which emissions threaten human health - -
and the environment This work Is being
done In conjunction with EPA. broader
- degree of hazard studies and regulatory
Impact analyses. A. a result of thu
work. EPA may propose banning certain
wastes In cer4ajn type.. of units or
plating restrid ’ ive design and operating -
standards on unit.. handling significant
quantities of volatile wastes in those -
circumstances where it has clearly -
identified air pollution problems.
V I I. Detailed Analysis of lit. Ruiss—
Part.s 260, 2M, 2 5 , and 122 -
This section of the preamble discusses
the specific provision. In today’s
regulations. Before beginning the
- discussion, however, It I. Important to
clarify the meaning of various terms
used to describe what areas ase being
regulated at a disposal facility. When
using the term “facility,” EPA I.
referring to the broadest extent of EPA ’s
- area jurisdiction unçler Section 3004 of
- RCRA. In many cases, particularly for
off-site facilities, this means th entire
- sltethatisunderthecontrolofth.
C-
w
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•—--- - —. / -
Feden I Register/VpL 47,No. 143 / Monday. fuly 28. 1982/ Rules md Regulations - 32289
owner or operator engaged En h.x rdous be Issued for all unit. ala f dhity. EPI I necessary to serve the’u,er, of. given
— waste management. Within the facility - may Issue a permit [ or some set of units water supply system.
there will be an area where har.ardou, at a facility. (Under these qrcuxnstances. In t} e preamble to the Decernbet,i8.
waste treatment. storage, and disposal the Interim status standartf o.J Part 285 1878 proposal, the Agency had
activifles occur. This i,the waste - - cuntimwin .pply4o units thi4-ir not —- —ingge ted 800 gallon.
management area. , c,overi d by the Individual permit and minimum yield which would constitute a
The waste management area is made have not been formally denied an “usable quantity.” based upon the needs
up of one or more waste management individual permit) of a family of four persons. The Agency
units. The provisions in the Part 284 nd ‘Today’s regulitions also refer to used the design specification of 125
265 regulations (principally (he technical waste management “por-ti9J:ls/’ This ii gallon per person per day En amving at
standards In Subparts K—N) establish the smallest area typically referred to in this minimum yield. Commenters
requirements that re to be 1mpleme ted these regulations This simply mean. - pointed out, however, that thi. design
on unit by unit basis. A waste , area within the confines of a specification is only applicable to
management unit is a contiguous area of waste management unit. municipal public water supply streams
land on or in which waste is placed. A Finally, today’s regulations have and Includes sllowances 1or washing of
Waite management unit is the largest clarified somewhat the terminology used automobiles, lawn w terln& c tral - . -i
area in which there Is. sigiuflc...nt to describe Ureas used for land ‘sewerige. mlnimaPfuré rutecticm. etc.
- - likelihood of mixing of waste - treatment. In the past. EPA has used the Comrnenters su ested that. If the
constituents in the same area. Usually term “land treatment facility” to - - igency wished to base ( he , minimum
this Is due to the fact that each waste des ibe the plot of ground on or in yield specification on th needs.of •
management unit is subject !o a uniform which land treatment occurs. This ari family of four in a rural area (a typic.ai
set of management practices (e.g., one is esentiafly the waste management unit situation where a single. private,
liner and kachate collection and . described. Therefore. EPA ground .water supply well would be
- removal system). intend. to use the term “land treatment used) an individual dem.and of between
Today’. regulations establish specific unit” when describing these areas. This 5 and 50 gallon, per person per day, to
requirements for surface impoundments, shift In terminology is designed to make satisfy health and personal hygiene
wastepilea.landueatmentunlta,and thelariguageusedlntheregulations need wouldb.approprIste:
•1
i landfdis, Generally,eath of these four - more precise. It does not reflect a -— Coinmenler, also stated that many
terms is synonyinous with the concept of substantive change In the scope of the l rtd disposal facilities are sited In areas
a waste management unit. For-example, land treatment requirements. Thus. the v rber, uturatsd upper day layers sit
a surfitce frn ourtdmerrt Is t idcaI1’ a term Iand treatment unit” In today’s available to servs s a natural barrier to -‘
single depression In the ground In which ations is synonymous with the term the migration olleachate Into4he pound
- - wastes are allowed to mix. Landfills - - nd treatment facifity” used in water In the actual uppermost aquifer.
I may, however. Present an excePtion to - previously-Issued regulations. - Since any utw’ated soIl material can
this general rule. Some landfill, are - . - - yield quantities of ground water to
designed asa series oladjacent - - A. De’finixioni ( Part 26P) wells, even it an extremely Low rate .
trenchep that are separately linecLin In todaY’s regulations, EPA is adding one Interpretation ofi drfiiiitIon of -
- this s Ituation, the term “landfill” can several definitions to 40 CFR Part 260 aquifer could requir, the saturated clay ‘
refer to the entire set of trenches. Yet, that are used En the land disposal landfill liner to be monitored In
each individual trench is a separate
waste management unit under today’s regulation.. In addition, EPA I. accordanc, with the ground-water
regulations. (The principal replacing one definition and darifying m6nltorlng requirementa.
implication of thIs tinction .i. the meaning of ,nother. Il.wa. never th. A,g ncy’s Inttnt to
determining what area of the facility Is - - - 1. Aquifer. The term “aquifer” Is consider uturated clay landfill liners to
subject to the monitOring and response defined in Past 280 (promulgated on May be subject to groundwater monitoring
program in Subpart P. ThIs will be 19, p80) geologic formation, group as an aquifer. Howaver, no acceptable
discusiedInmoredetailInS. tioa olfortnatlonaorpartofaformation - eriter lonwa i s u este&norhasthe
capable of yeflding a significant amount Ag ncy been able to produce a - -
- Vi i i ). of this preamble.) - of ground water to wells or springs. - - universally acceptable Interpretation of
IPA ’s hazardous waste management
regulations have also uied the term - - Public comment, have suggested that 2 “si nIflcant amount” which is - -
- process”to describes part of the sLgniflcant amount” Iisn imprecis.) appropriate in aU of the various -
facility. “Process” refers to general term which may leave owners and cirdumstances that may be encountered.
daises of waste management activities operators In doubt as to which / The Agency wishes-to define the term
(e.g.. surface Impoundments, piles) and formations constitute aquifers. ‘aquifer” more precisely In a manner
thus embodies a set of units that may be Cornrnentejs correctly pointed out that that La consistent with both the RCRA I
- present at a fadlity. For example,. - the concept of a “significant amount” - program and the Sale Drinking W ter
facility may contain three separate was actually sIte-specific, depending Act program, and that reflect. the
surface Impoundments, two waste piles, upon the demand far ground water, ground-water policy that EPA Is - I
and $ single LandfilL Such a facility - Furthermore, commenters stated, the currently developing to coord4n te it..
contains six waste management units potential yield (amount) of ground water pou d water protection program&tPA
and three waste management proceases from one well could be dramatically is working on lb.). Issue, and will
(e.g.. surface Impoundment, waste pile, lower than the yield from. cluster or - annOunce its result when the work Is
and landfill.) field of wells at the same Location. In - - - completed. - - -
un sum. parts of today’s regulations water-scarce areas, it Is not uncommon - 2. Certification. The term.
and In this preamble, the term “facility to Install several wells Into the same “certification’ . “Ceiiify ”. and “certified”
permit” is used In describing a permit formation to collect sufficient ground are u ed throughout the regulations,
Issued under Section 3005. While the water to feed into a public water supply including those promulgated today, to -
broad term “facility” Is used, this Is not system. The lower the yield to one well, refer to the rendering of a professional
intended to mean that a permit can only the greater the number of wells opinion concerning compliance with a
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32290
Federal Register / Vol. 47. No. 143 I Monday. July 26, 1 fl2 I Rules and Regulations
requirement of the re ula ions by a
qualified professional in the field.
Cornmenters have su gestcd that courts
sometimes interpret these terms to imply
That certification is equivalent to a
guarantee or warranty, thus relieving
other parties (e.g.. owners and
operators) of their responsibilities under
regulations as a result of such
certifications. This was not Intended by
the Agency in the various RCRA
certification requirements. By requiring
a certification, the Agency I iceking an
opinion from a professional qualified in
the field but does riot Intend to relieve
owners and operators from their
responsibilities under the regulations.
The definition does not address the
potential Eiabilitie of the certifying
party. This is a matter to be resolved
between the certifying party and the
owner or operator in accordance with
applicable law. Since EPA stilt believes
the terms “certification” and “certify”
accurately denote the Agency’s
intention. EPA I . choosing to define the
termi to eliminate possible legal
inisinterpretaton.
3. Con tüuenL, Hazardozi3 Waste
Constituent. Both the term “constituent”
and the term “hazardous waste
constituent” are defined in 40 CFR
280.10 t mean “a constituent which
caujed the Administrator to Hat the
hazardous waste In Pert 281. Subpart D.
of this Chspter. or a constituent listed In
Table I of 1 281.24 of this Chapter”.
However, ths first of these terma,
“constituent”, has been tized throughout
the RCRA reguistioni In Its ornmon
sense (i.e., an element or component of a
whole) rather than in reference to
constituents listed In Table I of
Appendix V I I of Part 261. To reflect the
actual use of this term fh the re ij1atlons,
the terra “constituent” has been dropped
from the definitions l.a 280.10.
Therefore, as with other undefined
terms, it Is to read En its common.
everyday sense.
The definition of “hazardous waste
constituent” remains unchanged. This
term refers to a constituent of a waste
which caused the Administrator to list
the waste as a hazardous waste or a
Table I constituent,
4. Exi tingporiion. Anew term.
‘sexist lag portion.” has been added to
260.10 to describe the portion of a
waste management unit that ii exempt
from those requirements i.a Subparts K.
L and N of Part 264 which would
involve Impractical retrofitting for
existing opera Lions. TheAgency
believes th.t literal expansions of
exiating waste management units (I.e..
-the placement of wastes on additional
Land surfaces) after permit Issuance
should Incorporate n F l of the dcs gn
standards in Subparts K, L, and N of
Part 204 because the construction of
features like a liner for such expansions
would not require impractical
retrofitting. Therefore, today’s
regulations do not exempt all existing
waste management units from liner
requirements but do exempt the land
surface Included In the original Part A
permit application on which wastes
have been placed prior to permit
lasuance. hits term Is used In Subparts
K.L,andNofPart2&4.
5. Treo&nent Zone. Today’.
regulations also define “treatment
zone”. a term used in the Subpart M
requirements for land treatment units.
This term describes the area within a
land treatment unit in which all
degradation. transformation, or
immobilization of hazardous
constituents must occur. For a complete
explanation of this term, see the
preamble discussion of Subpart M.
6. Uppermost Aquifer. The term
“uppermost aquifer” is generally
understood to mean the first geologic
formation beneath the natural ground
surface which meets the definition of an
aquifer. The uppermost aquifer will be
the first aquifer affected by leakage from
a facility. In rise situations, however,
lower aquifers are hydraulically
Interconnected with the uppermost
aquifer within the facxllity property
boundary. In these situations, hazardous
constituents could migrate, via the
uppermost aquifer, to lower aquifers.
Therefore, when monitoring ground
water quality for the purpose of
determining compliance with the,-
ground.water protection standard, the
entire system of aquifers, rather than
Just the uppermost aquifer. may. be of
concern To avoid the repeated use of
the phrase “uppermost aquifer and
hydraulically interconnected lower
aquifers” throughout Subpart F of Part
264, the term “uppermost aquifer” has
been defined in 280.10 to include the
entire lystem of aquifers which are
hydraulically interconnected with the
uppermost aquifer within the facility
property boundary.
B. Confori’nin.g Changes ’ (Part 26-f,
Subparts B E, C, H)
Because of the promulgation of
today’s new Subparts and Sections, a
number of minor conform1n changes
are being made in sever-al sectioni of
Part 264. These changes merely add
, references to the new Subparts and
Sections to several existing reference
lists inSubpartp fl, E, C, and H.
Specifically, minor conforming changes
arebeingmade In 2M.15 (general
Inspection requirements), 284’73
(operating record), 204.77 (udditioual
reports), 1 264.112 (clos.ure plan)
§ 284117 (post-closure care arid use of
properly), 204.118 (poit-closure plan).
§ 264.142 (cost estimate for facility
closure), and 204.144 (cost estimate for
post-closure monitoring and
maintenance).
C. Location Standards (Part 264 ,
Subpart B)
1. Applicability ( 284.10). Section
264.10(b) Jlsts those facilities to which
the floodplain standardurider
264.18(b) applies. Storage surface
impoundments and storage piles subject
to r lotion under Subpai ts K and L
res ctively. were made subject to the
floodplain requirements of I 204.18(b)
when EPA promulgated regulations
applicable to these facilities en January
12, 1981. Part 284 standard. applicable
to other types of surface Impoundments
and waste piles are being promulgated
for the first time In today’s rules;
I 264.I0 [ b) has been amended to include
thernaswell. - -
Part 204 standard. applicable to
hazardoui waste land treatment units
and landfills ire also being promulgated
for the first time today and they have
been made subject to 204.18(b), by an -
amendment to I 204.10(b).
The Agincy has concluded that ill
types of’ surface Impoundment. and —
waste piles. as well as land treatment
units and landfills, should be subject to
the floodplain standards. In all of these
types of waste management units.
hazardous wastes could bat iashed out
by floodwaters unless adequate controls
ire imposed. Consequently, $ 204.10(b)
is being modified by adding waste
management units subject to r gutation
under Subpart.. M and N to the list of
facilities to which the floodplain
standard applies. Sections 284.11
through 284.I8 [ emain unchanged by.
today’s rule, except forpilnor
conforming chi nges to 1 284.15. as noted
above, ft should be under-stood.
however, that 1 284.18(a), seismic
considerations, applie, only to new land
disposal facilities.
2. Floodplains ( 2&f.18.(b)). The
Agency has concluded that hazardous
waste surface impoundments, waste
piles, land treatment units, and landfills
preferably should not be located in a
100-year floodplain, Facilities so located
must be designed. constructed, operated,
- and maintained to prevent washout of
- any hazardous waste by a 100-year
flood. However, In accordance with
2O.4.15(b)(1)(l), if the owner or operator -
• demonstrates to the Regional
Administrator that, In the event of a
flood, the waste ouId be r noved to a
-------
safe area before floo d waters reached
the facility, special design and operating
features 10 prevent washout aie noj
required. The Agency realizes thaflhis
__li_opt ion may no t bevieble4ormnny— -——
existing surface impoundthents. waste
piles, land treatment units. anil landfills.
Accordingly, the Agency Is promulgating
a second exemption. defining narrow
circumstances in which extsting
facilities, riot designed and operated to
prevent washout may be loèated in a
100-year flood plain without the owner
or operator’s making the demonstration
conlained in 284.18 [ bfll)(l). ‘These
circumstances are where the owner or
operator demonstrates that a washout
would cause no adverse effects on
human health or the environment.
Section 28418 (bfliil lists the lactors that
must be considered In making this
demonstration. These factors are the
following: the volume and
characteristics of the waste in the
faciLity; the concentration of hazardous
constituents that could result En affected
surface waters; current and potential
uses of and water quality standards
established for affected surface waters;
And the impact of hazardous
constituents on the sediments of
affected surface water bodies or the
- soils of the 100-year floodplain.
These factors address the principal
adverse health and environmental
effects that potentially can result from
• floodwàshàü1ófhèzárdoua waste land
disposal facilities. They are Intended to
cover the eIt cts that might occur during
the flooding washout (es., the
contaminabon of river sediments and
floodplain soils caused by
sedimentation of washed-out hazardous
constituents as and alter the
floodwaters recede) ’The Agency Is
unable to provide more definitive
criteria because of the wide variations
in facility locations, flooding character
“ of adjacent water bodies, types of
wastes stored or disposed of in
facilities, and other site-specific
conditions. The Agency solicits public
comment on these factors,
The general floodplain requlrementi
- . are consistent with the other
requirements in Subpayts K through N.
which are designed to prevent the
escape of hazardous waite or hazardous
- constituents Into surface water and
‘hydraulically cormecled ground waters
in order to prevent potential adverse
effects on surface water quality. (See
also Section Vii: E—t of this preamble
and the preamble to 0264.18(b), 46 FR
2813—2815. January 12, 1981.)
The Agency recognizes, however, that
existing hazardous waste surface
impoundments, waste piles. land
treatment units, arid landfills located in to refine the regulations over time. As En
• 100 .year floodplsins were placed there . ,todayis regulations, EPA’s objective wW
before 0 264.18(b) applied to them. in to develop a cositeflective monitoring
Consequently. because the pwferred wgrsm thaflvjijprovlde reliable
about the effects of lqnd
floodplain ls’not practicably available dii ósal units on ground water In order
for those waste management units, they to ensure protection ci human health
may have to take advantage of one of and the environ.menL -
the two exemptions from thIs 1. Applicobility ( 264.90). a. -
tequlrement. Regulated wWs—The requirements of
With the exception of small thlssubpart apply to new and existing
huipoundn ents and waste piles. It may surface impoundments, landfills, waste
be Impossible to remove hazardous - piles, arid land treatment units that
waste from waste management units manage hazardous waste. In defining.
before flood waters can reachthecn. the acnpeofthlssubpaii hówivir, t is
• A’so, It may bedlificult to construct new netessary to define rather precisely the
walls or dikes or elevate exIsting walls particular waste managment
or dikes around these units to prevent components that are subject to the
washout from a 100-year flood. ground-wther monitoring and response
Retrofitting may not be feasible or pr grant This subpart uses the term
practicable for reasons such as: “regulated wait’ t In defining the portion
Inadequate lartdspace on which to build of the facility that Is subject to the
new or expanded dikes; Inadequate requirements of this subpart. A
structural capacity of existing walls or regulated unit Is any waste management
dikes to accom.modate expansions; and unit of the above types that receives
unwarran!ed disruption of the o ration hazardous waste after thç effective date
of the existing unit (principally surface c t today’s regulations.
lxnpoundmçnts) and, in so me cases, A waste management unit can be a
associated manufacturing operations. regulated unit even th5ugh It contains ‘
when building or exsandi.ns dikes. ‘predominantly non’hazardous waste or
‘The 100-year floo plain rule may hazardous waste which was dlisposed
seem inconsistent with the requirement prior to the effective date of these -
that surface Impoundments, landfills, ‘ regulations or prior to November 19,
land treatment units and waste piles the effective data-of the
‘have run-off control systems designed to gula lions defining what Is a hazardous
withstand the effects of q 25-year storm. waste (40 aa part z61)and estabtisbirtw—’-’
The two crltertaare nolthcbnslsterit. - the permitting requIrements (40 (YR
however, Although the Agency Is in_.izsj for hazardous waste
concerned about the effects of run-off,
these effects are not likely to be as management facilities. ,
serious as those that would result from Many existing waste management
flood, A flood would cany hazardous waits may contain wastç that was
materials much farther from the facility plwd there belore the effective date of
than would run off that excçeded the these regulations or before November
rvn-off control system, and a flood 19.1080 . Some conirnenters have raIsed •-
probably would carry away a greater ‘ questions about EPA’s legal authority to
quantity of hazardous materials. Thus, ‘regulate such waste and about the
reasonableness of regulating them under,
the environmental coñskjüences of a a RCRA permit as a polic /matter.
flood are very great, and waste
management facilities generally should EPA believes that It has legal
not be lota ted where a flood may occur • authority under Subtitle C of RCR.A to
regulate any activity. èmls lon, or
‘P. Cround-water Thviection (Part 264 - release from a facility that Il recelvirti
1 ubp 1J .- • hazardous waste.Section300of g cRA
F tantalns the requirements pro des that EPA has authority to Issue - ;
for Stoni taring and response program regulations verlng owners or
that i lll serve as a backup to the other operators ox treatment, slorage, and
ground-water protection measures in disposal facilities as may be necessary
today’s regulations. The requirements of to protect hunian 6 ealth and the’
this subpart define a general set of,• environment. This section does not limit
responsibilities that the owner or - EPA’s authority to those portions of (ha
operator must meet but allow • facility that receive hazardous waste • -
considerable flexibility in bow the after a specific date. • •
monitoring and response programs may Section 3(1)5 of ROtA, which provides •:,.
be designed. • for Issuance of permits to treatment,
EPA intends to’exàm [ ne closely the storage, and disposal facilities, Indicates
monitoring programs and the monitoring that after the effective date of any
• data developed to meet these Section 3005 regulations any treatment,
requirements and to use this information - storage. an4 disposal of hazardous .,.
1 ester I VOI. V,.No. 143 / Monda , July a 1082 (Rules and- egWatlons’ - • Sfl O l
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4
32292 Federal Register / yol. 47. No. 143/ Mondey, july 26. 1982 1 Rulee and Re u1atlons
weste without • permit is prohibited. many types of we te, ’to determine what
EPA does not believe that the characteristics of the leachat. Ire
prospective nature of this provision. attributjble to particular wastes. It 1.
operates to limit EPA ’. stansrd-aetLir g therefore appropriate to focus regulatory
authority under Section 3004. Tb. concern on ths leachate as It I. .nd not
prospective nature of SectIon 3005 10 IpeculitS on what Inc ementaI effect
reflects the permitting scheme of P.CRA particular wastes have hid aoths
Owners or operators seek permits for a Ieathst.’s quality and characteristics.
particular future activity (i.e. treatment. Another reason for sub)ectlng .11
stori e, and disposal of hazardous waste in a regulated unit to the
waste) at the facility. The owner or monitoring and response yruçam I .s that
operat or doe. not generally seek a the manapment probl posed by a
permit for actions he has already taken unit Is not substantially affected by the
• (i.e .. previous treatment. storage and timing of when hazardous r*initltuenti
disposal activities.) EPA’. authority to were plac In the unit U the unit’s liner
deny permission to conduct future waste fails, the laatha!e can be sxp.cted to
management activities is one of the contain constituent. from wastes placed
principal sanctions under the permit before and alter the effective dute of
program. these regul.atlàns. Likewise, coiiective
As a condition for allowing future action measures (e.g. counterpumping)
waste management activities, however, do not selectively remove constituents
RCRA provides that the owner or from wastes placed at different (lines
operator must meet the requirements of but rather control ths entire plume.
Section 3004. Under S.ction 3004, EPA Thus, once wastes are In the same unit.
must define the responsibilities olin the natws of ccmcth/e action would
owner or operator that are necessary to not be substantially altered by attempts
protect human health mu the lo distinguish between wastes pluced in
environment In order to accomplish that the same unit at different times. _____
objective. EPA may ciee to impose In defining what Is a “regulated” unit.
duties that are designed to remedy the however. D’A ha. sought to address the
present adverse effects of past activity. concern In the regulated community thet
Likewise. EPA may require the owner or a permit under Subtitle Cmay not be the
operator so continue cettain activities -. appropriate mechanism for requiring
that are destgned to protect human cleanup øf contamination from iU
health and the environment after lb. previous waste management activity at
owner or operator has ceased placing a facility. PA he. defined a regulated
Waste Into the ground. (Such future unit is one which receives hazardous
responsibilitie. are the correlativ, duty waste after the effective date of today’s
that must accompany the i irrent right to regutatloms.
dispose of hazardous waste. EPA thinks EPA believes this has several
that those duties can be moate ectIveIy advantages. First, It gives reasonable
imp r ented throu permits.) Under notice to thaiegulatsd community abut
RCR,A. an owner or operator who what the regulations will require and
wishes to Initiate or cnntlnu- . storage. will allow them to adjust their
freatment, or disposal antivltkea at a . management practice, accordingly. It
facility must take on all of t sa avoids the prOspect that the owner or
responsibthtiea. EPA has concluded that operator would face responalbthties
thea. rssponsibllitle, must Include under a permit for units that were
reasonable measures to addres, current operated and Fully closed before any of
ground-water pollution atbibut.h a to • the SectIon 3004 standards were
waste placed before the date of permit established. (Any adverse ëff,cta on
Issuance under thea. regulations. ground water from such units may be
EPA ha. decided that these art ‘sound addressed under other EPA .uthorities.
policy reasons for subjecting regulated lncludi gSection 7003 of RCRA.) This
units to the groundwater monitoring approach Is certainly consistent with
and response program of Subpart F. • Section 3010 of RCRA which provides
First. coca wastes are placed ,tn th. • that rsgulallon.s under Subtitle C are to
same unit there Ii a strong possibility becom. affective aix months after they
that the constituents In the waste will are pron idgateuL The legislative history
react with esch other to form new • of this provision Indicates that the
compounds or to alter lb. physical or purpose of tI’e provision was to give the
chemical state of the waste constituents. regulated co.mmt lty a reasonable time
- Sums of lb. interactions may cause the per d In which toprepare for new
resulting leachat.. to become more tozic requirements.
or more mobile In the subsurface • Second, this approach ensures that
• .nvlronmeri A.! the time that leachate ther. will be an early Incentive to
• emerges from a unIt it Is extremely Institute the proper design and operating
difficult particularly at wilt. thathandl. measures to reduce the potential for
significant ground.w.ter cont iminotion
from regulated units. With the Isrua cS
of today. regulations, the regulated
community will have th. benefit of
reviewing EPA’s concluslaps on what a
sound liquids management strategy for a -
land disposal unit should be. think.
t}iat today’. regulation. should create
Incentiv.i t Institut,reasonabla deslg
and operating measures before a permlF
appl lcat lon l scalledthfocsnex lstthg -
un ltandflnalactlon i stskeñonthe
permit (EPA .cknowledgei that It will
•tak. several years to complete this —
proceas for all existing land dispoi it
units.) By Indicating that ill units .
receiving waste alter the effectiv date
of todsy’s regulation. will ultimately be
• subject to the monitoring and response
programofSubpartP,EPAhascreated ‘f..
the inoentlv. for owners and operators
to take reasonable steps today to reduce
the likelihood that they will fece long.
term responsibilItIes for conectlvs
action.
There will be situations where It will
be difficult to tell whether a plum. of
contamination comes from a regulated
unit. This I . most likely to occur when
several regulated units are adjacent to
other storage or disposal cmlts As will
be d crlbed later, the compliance point •
where there are several regulated units
is an imiginas, boundary
circumsaiblng eli of these units. In such
a situation, It may be difficult to
determine whether r ulated units at.
causing a lea chats plume that appears
at the cucnpl4ance point
The regulatIons provide that any
waste constituent that rn.Igrstss beyond
thecomplI.ncepolntIs iesumedto
come from a regulated unit The owner
or operator may. however. over e
this presomptlon If be demonsirstu.
with mzrltw{njdata or other
Inforcnatlcc, that the constituents are
coming from anoth .z trrce . • • •.••, -
• b. Excju.Ions—Thsr , are limited
exclusions from the Subpart F •
r.qulretnants. First any of the erieral —
sxduslonstn 254.1rsmoveceu1aln
facilities from Subpart F as well.
Second, double lined sw’faca
impoundments, piles, and land il1s
‘(described in I 422Z ZM2SZ and
• 2M,3 . respectively) are excluded. a,
are piles complying with I 250 c)
and I 2M163. The spidftc element, of
these types of 1ts are described In
detail In latar sections, Th. reason that
• mostofthesepi’ovlslonsprovtd.abasis
fo an sxdnslqn from Subplrt Fis that
they Involve aome ongoing method for.
detecting whether the units liner ha.
failed. As long ult Is deer thai the 1lne
hei not failed. EPA and the pu illc can
be confident that hazacostithentr
• •... .. St
1.
4
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from such regulated units will not enter -
ground waler, The exclusion for a pile s
designed to satisfy 2 8 4250(c) Is based
on the premise that the specified
• coaditians red une the possibiltty of.
leachate generation to such a degree
that wound-water contamination is not
likely to occur. ..
Third. the owner or operator of alarid
treatment unit may suspend compliance
with Subpart F requirements if he can
demonstrate to the Regional
Adminiai-’ ’ ; rder { 284 180 (d) tf t
the hazardous constituents In the waste
have been effectively treated. The
requirements for such a demongtratlon
are described in the discussion of land
treatment In Section VII. Hi. of this
preamble. It should be recognized. -
however, that this exclusion relieves the
owner or operator from Subpart F
responsibilities only during the post-
closure care period. -
Fourth. the owner or operator of a
regulated unit may be excluded from
Subpart F If the Regional Administrator
finds that there Is no potential for
hazardous constituents to migrate from
the regulated unit to the uppermost
aquifer during the active life of the unit
(including the dosure period) and the
post-closure care period specified under
284.117. ThIs exclusion Is designed for
units located In hydr’ogeologlc settings
that prevent leachate migration to
ground water for very long periods. In
a setting, hazardous waste
leachote would simply not be able to
• reach ground water during the active Life
of the unit and the posfilosure care
period. Where there is a high degree of
confidence that such a hydrogeologic
setting is present. EPA decided that It -
would be of little value to require the
- penniitee to implement a detection
- monitoring program. (Such a program
• would simply not detect contamination
‘during the active life of the regulated
unit plus the post-dosui-e care period.)
Moreoier, EPA believes It may be
productive to exclude such Locations
from ground-water monitoring. Such
locations are relatively desirable for
waste disposal because soils which
provide tong delays In the arrival of
leachate In ground water may also have
cbara teristics that attenuate hazardous
constituents. Exvludirtjground-water
monitoring requirements it such
locations could encourage the use of
such environmentally desirable
locatioflL - .
This exclusion is based on the -
premise that It may be unnecessary to
require detection rnonltorlngln some
favorable hydrogeotogic settings.
Therefol’e. it S appropriate thet the time
frame should be the same as that of the
detection monitoring program—the
active life of the regulated unit plus the Estimations of effective porosity are
post-closure care period. - , difficult to make. For this reason. EPA
This exclusion involves substituting believes thaI 10 percent effecuive
predictions of Likely mlgra ion to ground porosity, aIow.valne.should be-used to—--—
wa lerforactualground-water avoid the uncerla lnty Involved In
monitoring. EPA believes that it Is estimating effective porosity and to
extremely difficult to make accurate ensure relatively abort travel time
predictions about the migration of predictions for the soil beneath the
liquids through tho unsaturated zone. regulated unit. Seventh, soil attenuation
Several of the experts attending EPA ’s mechanisms should be Ignored In travel :
technical symposium on land disposal’ ‘ time predictions. Eighth. ilnce a
held In May of 1P B 1 Indicated that they regulated unit may have been In
.did not have a high degree of confidence operation well before the prediction of
Lu predictions of leacbate fate and t.ravel time Is made, an owner or
transport in the subsufface environment, operator should assume that migration
The prlnicpnl reason for this low ‘ of fh&lds through the soil began when the
confidence in such predictions Is that unit commenced operation.
appropriate values for the several As another measure to increase
variables that need to be considered are c JiderGth a prediction made to
often extremely difficult to determine, qualify for this exclusion, EPA has
Since this exclusion Involves required that thi owner or operator’s
substituting inherently uncertain demonstration must be certified by a
predictions for pound-water monitoring, qualified geologist or geotechnical
EPA believes that a safety factor should engineer. •• • - • • • .• • -
• be built into the exclusion. Thus, today’s lAstly, EPA considered establishing
regu lationsprovldethatownersor . • • anexempulonfroinSubpartF
• ‘operators must base any predictions • • requirements for a regulated unit located
made to qualify for this exclusion on over an uppermost aquifer which Ia so
I assumptions that tend to maximize the dirty that It would never be used for any
• estimated rate of lea chate migration. purpose and which, regardless of any
While these assumptions are not • level of contamination. is not
specified In the regulations, the • • capable of significantly contaminating
following Is a list of the t es of • • another usable aquifer or lurface water
assumptions that EPA will use • that Is hydraulically connected. EPA
determining whether an exclusion Is believes that this would be an extremely
- warranted. Geulogistsind geotechnical situation. If Indeed such a location - •
engines gould be familiar with most • exists and has, therefore, chosen not to
of these assumptions.
First, the thickness or depth of soil establish such an ex.erpptlon at this tireS.
underlying the regulated unit should • However. EPA requests comments on
determined. mis factor • the existence of such locaifons and the
determined directly by soil l ,c ,± . appropriateness of such an exemption
U soil depth estimates are used In the Stibj,afl F. • - -
prediction, however, the gntnirnum 2. &tablishiiecd of Programs
In the range of depth estimates should ( 2M.91j Under Subpart F the Regional
be selected. Second, the calculation of Ada]lnlstrator will be establishing In a
• travel time should be based only on facIlity permit the elements of a -
- natural soil properties. Ignoring the - monitoring and response program. The
effects of synthetic or recpmpacted • purpose of * 2M is to make clear that
natural soil liners placed beneath the the owner or operator of each regulated
waste. Third. the prediction should unit subject to this subpart must
based on the travel time of the most institute some kind of monitoring and
dense andlor least viscous fluid in the reapoflfte program and that the content
• regulated unit [ I.e., the fluid with the of the program will be specified In the
lowest kinematic viscosity). For facility permit. The other sections of
example, some solvents are less viscous Subpart Pprovlde further elaboration of
than water and thus are likely to move the content of the various programs.
faster than water. Fourth. since the The owner or operator must Institute
depth of liquids or leachate In a unit can - . at least one of the three types of
vary, the prediction should assume that • programs set forth In Subpart F—a
the unit is full,of liquids (I.e., the • detection rnonltorlrtg program, a
‘thaxlmjim possible hydraulic head). • compliance monItoring program, or a
Fifth, the owner or operator abou.Id corrective action program. The permit
• aisume that the soil Is saturated msy, however, contain all three and
• because fluids will pass through such specify the conditions under which each
soils thore quickly than unsaturated will be used. EPA expects that In many
soils. Sixth, the owner or operator - ‘ - situations It may be appropriate to
should sccount for the effective porosity specify more than one program In a
• of the soil when making a prediction. - facility permit. For example, It Is logical
- • -
• • Federal Register g Vol. 47, ND. 143 / Monday, July 26. 1982 1 Rules and Regulations 32293
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32294 iederal Register / Vol. 47, No. 143 I Mond iy, July 26, 1982 1 Ru1e and Regulations
to have a cori pliance monitoring necessary to protect human hcalth-or, and the success of the corrective action’
program and e corrective-action the environment. program. -
program in the sama.permit. Then the Besides being combined with each - When the compHsn ’ce period en4s
permittee will be able to slift back and other, monitoring and response before the close of he post-closure care
forth between the compliance programs may also be linked to other - period. todays regulations provide that
rnonitoringmode and thecorrective provi loni ,of a facility permil There are the owner or operator must reinstate a
action mode of operation as the levels of certain design and operating measures detection monitoring program for the
‘hazardous constituents In ground w iter that allow owners or oper.thrs to forego remainder of the post-closure care
fluctuate above pnd below the Subpart F monitoring the response perlocLln I 2M )jc) [ 2) , the regulations
concentration limits for the constituents. programs. Theseexclualons, however, - make tiear that detection monitoring
There may be some Incentive to terniinate Ii such design and operating programs. onça Instituted. continue
combine programs in the same permit measures fall to meet their objectives, through the post-closure cars period.
because the establishment of such a - Therefore. j erm1ttee. may want to have (the permitting regulations under 40 (YR
program would be a major modification a monitoring and response program [ e ,g.. 122i5 provide thi( the Re laijal
lilt occurred afler the Issuance af.the a detection monitoring program) Administrator may InItlats Eperrnit r
-Initial permit. A proceeding to modify a Included In the permit even though theyçj modification to estbilib a detection
permit would be conducted In - - employ one of the designs that qualify rncnflorfiig program If the complianc&
compliance withEPA permitting them for an exclusion. The permit would period ends before the end of thajosl-
- pro edure. and could be time - specify that the Subpart F program need closur, care period upedfte*?in the
corrsuirning. Once a program Is not begin until the design failed- For permit.) ‘ -
established In a facility permit. the example, the owner or operator of a EPA believes this I , r aionable tor
owner or operator must continue to ‘ double-lined lurfic. Impoundment may two rWons. First. s1nc the owner or -
Implement the program unless the choose to initiate smonitoting and operator will be present at the facility
permit specifies when certain response program. In lien of repairing through the post-closur, period under
• obligations mpy terminate c i unless the the facility liner, if tht liner fails during the permlt.lt ts pproprtIte for him to
owner or operator obtains a permit the active life of th. Impo undment . take .11 reasonable steps to as,ruró’’
modification. It ii, therefore, wise for the Initiation of p Subpart F program Is the ground-water prot.ctlon. Sln e detection
owner or operator to anticipate t rben be only appruprlat action to tak. lithe monftcnin8 involves a relatively light
bel)evea a permit, modification will be - owner or operator Intends to use a monitoring burden, It should be ‘
needed and to assemble the Information double-liner design to provide protection relatively easy for the owner or operator’
nece ary for such a modification. dunng the post-closure care period. ‘to perform. Second, the completion of a
UltixnaIely. the Regions] While an own ’ r or operator may have successful corrective action program
Administrator has the authority to more than coe monitoring and response (I.e.. • showing that the givund-wuter - -
lncludemorethanoneprograinina progrmththefacilltyperrnltthereare protectionstandn rdinthepermlthaur
facility permit even though the owner or ceaIr mIn1mum requirements epecifl d not been exceeded fore period of the,
operator did not specifically ask for In 264.91. if hazardous constituents yein) or the completion of the - - - — -
• - multiple programs. While the owner or - from • regulated unit have not entered, complianc monItoi -ing program does - - -
operator can only be operating under the ground water, the owner or operator nol provide absolutseuurance that a - .
one program at a lime, there will be must st-leapt have a detection plume of significant contamination will - -
-situations where It I. necessary for an rncmltcwlng ptuiw ,w . This Ii to ensdr never appear belpw. regulated unit.
owner or operator to take prompt action th , any leakage from the fadl4ty Is Since bañrdou. or sl3tuentj move at -
under his permit when monitoring data detected. Once hazardous constituents different speeds thxoujb soil and since
- indicate that another type of program La appear in ground water. th owner or - they may bereleased from the regulated.
appropriate.. - operator rrfuzt at aminlmum.have a “- unit at different times, It Ii possible that
The Regional Administrator must compliance rnem1tortn program that can a plum. of tontaminatlan could appear
have the flexibilily to establish In the determine whether the iund-wa4er .- several years after’an Initial plume from
permit a program that ii conditioned on performance .t,i 4ard Is exceed 4. - ‘-the unit had been detected and cleined
the ocmnrence o1som,eveut(e ,g — ‘ If that atandard Ii exceeded, the - ‘up. Th r,fore adetecilon mo lbrtn,g
appearance of contaminstion) in ordei owner or operator’ uat hayS a - progrem ieeded to deterüiIn whather
to adequately protect hum•n eaIth and - cozrectlve actlop program. Co 1ance such a delayed plume appears. -
the .nvlronmenL For example.. - monitoring pro rama and)àfcor t1ve - 1en4tu r ’ oTthe’progrimes1*bI1jbed
regulated unit may be located abovs,. action program, will contlpue th ugb.. Jn the Initial permILwIfl lep.nd o t the’
fast moving ground water and near in the compifance period under I 2*96. “Wormatlon ay.Ilal l. at the tIps of
mporantdriklwate eourcilnsucb -SectIon264 .Q1’alaotndlcateajhata f ’ - p rmIttInj.ThskeyquestisaIswhethet -.
a situation, the tthe needed to modify corrective acth,n program liteeded s eg i3aled nnlthu begun to teak. For - —
the facility permit to replac, a detection when hazardous constltuent t4nder - new lotlts this Is not an Issue, but it may
monitoring program with a corrective 4.93 exceed conce tretIon limits : be somewhat problematii,for exIstIn.j
action program cojild allow puhetantial under 264.94 in the ground Water - units. Since owe1prçperator. of
damage to occur. In hs altoatlon It - between the compliance point and the most existing i*its will be nd pg
might be appropriate to have ü downgradlent facility properly monitoringin accord with the Parr e&
approved corrective actIon program in boundanj. (Th. rationale for thi? , Interim stalizijequlrernents, tb .
the pethlt that wo d be trl ered by provision Is dIsc ed In &ectlon should be a reliable . F1nioi tjon -
the detection of coraamInit pn lii the VUD ,i34 of this preamble.) It Is that can ’be used tpdeterrnlri. wb k
ground water. Thus, today. regul atffns possible thai the tothpllance period may hazardous constltuent.liav. e t. ea -th, .
specifl aflfprovid. thaiths Regfo i be shorter tl an the normal post dosure ground water ‘ - - .
Mmlnha*rstor may tncorpqrata ooe’ care period for (hi facility dapsndlng oh - Thr lu of whether a r lai.4 uál
more monitoring and resposiu progçams when canramInatlon first appeared. ha quliflas for oniof (ha . alopJ n - - -. -
Into th. facility permit u may be length of the regulated uniti actlv e Ills 264.90 will also he addrs.p J l ith
. ‘
) - , -. - - I —
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Federal RegIster / Vol. 47. No. 143 / Monday. July a tgaz / Rules i4 Regulaticnj (
Initial permitting process. An nppllcant
who bell eves he qualifies for such an
exclusion will submit Lnfórmatlcsn to
demonstrate that fact In his permit
applicalioft He rosy also wish tosnbrvit
thilnlorthition necessary to establish a
Subparl F monitoringáM response
program as well in case EPA determines
that he dOes no! qualify for the
exclusioa
3. Ground- woter &oiecilox, Swndcrd
If 264 92). The ground-water protection
standard in 284.92 indicates when
corrective action is necessa y to control
plumes of contamination that ha we
emerged from a regulated unit. The
ground-water protection st andard -
essentially tells the owner or operato..
when corrective action must begin a -nd
when it may be, terminated. In this way.
the ground-water protection standard
provides protection for human health
and the environment.
There are Four prlndpal eleitte ate of
the ground-water protection standard:
(flThe hazardous constituents lobe
rnotfltoced a-nc! removed If ne ssary (2)
UWcoptentratlon Limits for each --
hazqrtlous constituent that trigger
co llective actIon; (3) the point of
compliance for measuring concentration
limits; and (4) the compliance period.
Each of these elements of the standard
Is described In a separate section of
Subpart F. -
The ground-water protection standard
will be established when hazardous -
wnstltuents fronfategulated unit
appear In ground water. As will be
discussed,iater. a waste constituent
must be in the ground water before It
can be pert of the ground-water
protection standard, There may be -
situations where an owner or operator
- will want to anticIpate events and
establish elements of the ground-water
protection standard before hazardous
constituents actually appear In ground
waler. For example. if be expects that a - .
particular constituent that Is prevalent
In his waste wIfi eventually migrate to
ground water and be selected ass
hazardous constituent, he may want to
establish an alternative coniznhra lion
limit for that constituent under * 4.94.
While today’s regulations do not
preclude the establishment of elements
of the ground-water protection standard
before leachate from a regulated unit
appears in ground water, EPA does not
intend to give first priority to such
requests. EPA must use its available
resources to give prompt consideration
to the establishment of pound-water
protection standards at facilities that
are contributing Ieachate to ground
water. - -
Where It establishes concentntion
limits before cxmtamlnants arrive In
ground water, EPA is essentially
establishing a partial compliance
monitoring program for a reguls ted unit
that S conditional on appearance of -
contaminants Ip t Im groontwiter. Once
contamination ctually appears In
ground waler and a permit modification
proceeding Is thg ered, the Regional
Administrator may reassess the
Justification for the nilernete
concentration limit In light ti the
Infonnation available at the time that
the grotmd.water prutectlon standard is
actually established, -
- F inally. It should be recognized that -
the ground-water protection standard Is
not a general performance standard that
applies directly to own.ete or operators.
Under a permit an owner or operator Is
responsible for conducting the
monitoring and corrective action
measures that are designed to achieve
the ground-water protection standard If
monitoring Indicates that the ground-
water protection staLndird Is exceeded,
- the ownaror operator is responsible for
tak ing certain actions specified In the
• permit If he Fails to take these actions.
,he Is subject to enforcement actlon If
the actions specified are Inadequate to
bring the facility back into complianoe
with the ground-water prptectlon
- standard, the permit must be modified.
- : Section lfllS(a) [ 7) has been amended
toprpvlde that a permit may be -
modified when the corrective action
program has qot brought lbs regulated
unitback Into compliance with the
ground-wster protection standard within
a reasonable period of time.
4. Hazardous Cbnslituents ( 28’ S%1.
In keeping with the regulatory
philosophy described earlier In this
preamb ln, the objective of the Subpart F
- monitoring and IrS p o n se program Is to
remove the hazardous portion of any
Ieach te plume that ha4 reached ground
water horn a regulated urVt. Thus,’ In
establishing the ground-water protection
- standard for the facility,- the Regional
Administrator must define the - - - .
hazardous portion of the plume.
Ths lsaccomphshedby lderttifying
hazardous constituents. Under today’s
regulatlons,the Regional Administrator
makes three findings when identifying a
constituent as a hazardous constituent -
under 284S3. First, the constituent
must be listed La Appendix VU] of 40
C I II Part 281. Second, the constituent
- must have been detected in the ground
water below a regulated unit. Third. the
constituent must be reasonably
expected to be In orderived from the
waste contained In the regulated unit -
a. Aisemotiver Examined—EPA
considered several options for
identlfjlng hazardous constituents. One
option was to focus on the list of
Appendix %? rmst4 4 ts ldenffiecitn
Part 281. When EPA lists a hazardous
waste under Psi i it often lists the
Par lcu1arwaatemnsmuents that- 1--—--——
caused EPA to Identify It as a har.ardous
waste. These constituents are Identified -
In Appendix VI]. - -
EPA concluded that Appendix VII
was not an appropriate list to use In
ldentiIying hararifrrus constituents, Fri
identifying Appendix Vii constituents,
EPA did not attempt to conduct an —
exhaustive analysis of all constituents La
the waste that could have caused the
waste to be bazardous For purposes of ,
- % deptIfylng a waste as h hazardous, it
was sufficient to Identify a few - -
constituents that could poses
substantial present a potential hazard
to buibin health or the environment If
the waste was improperly mai’iaged. &,, -
Therefore, limiting hazardous -
• constituents to those In Appendix VU -
would prec lude EPA from addressing
other hazardous constituents known to
be La the wastes,
In addition, AØpendlx VII only applieç--------
to listed waste. It does not address
hazardous oons’tltuents that may be -
present In wastes deemed hazardous
becausetheyexhlb ltoneof tIme
characteristics In Part Mt Moreover,
Appendix VII Is not designed to address
the hazardous constituents that may be
formed when various wastes are mixed
Inaregulatedunit,orr, ,eaw Ith
constituents to thi soil. - - -
A second option considered was a
narrative standard that would establish
general criteria for what constituted a - -
hazardous constituent The Regional - , -
Administrator would use these criteria
to Identify individual hazardous
constituents and would specify them In
lIme permit. EPA rejected this option for
two reasons. First, It did not serve the • -
general goal of providing certainty to the
regulated community or theptmbllc. - _ _ _
• Permit applicants mold not predict the
potential scxipe f the* responsIbilItIes, - •
andthepubl lcwo u ldbsu mnoertain ••
whether most of the potentially • - : - -
dangerous constituents would be -
- covered, Second, narrative criteria could - -
prove difficult to Implement ssn
practical matter In the permitting • :
process. Under Subpart F. hazardous
constituents are to be Identified when
the Regional Administrator establishes a
compliance monitoring or ixrn’ectlve
action program for the facility. Before
that decision can be made, however, the
óp1icant must know what universe of
potential hazardous constituents to
monitor In order to provide the data
base fran which the Regional - - - • -
AdmIn istrator would select hazardous
- constituents. A narrative ptargtartj Is not
- C - •
S
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32296
F deral Regieter / Vol. 47 No. 143 f Monday . july 26. 1982 / Rules and Regulations
very helpful in this situation because it Apprndix VIII pruvidos certainty tcrthe
would force the applicant to guess at . regulated community. It dearly defines
what might be present or to monitor for . their environmental responJthillties and
absolutely everything. EPA believes that thus should assist in the management of
• Ills a waste of resources to monitor for land disposal units.
everything because there will be b. Pub/ic Comments on list of
constituents (e.g. chlorides) that do not Appendix VIII—.Severs.l comipcnters
present any real danger. At the same have raIsed objections to the use of
time. EPA dots not believe tt Is sound Appendix VIII In these regulations.
regulatory policy to leave to the Some have argued that Appendix VIII
.pplicant the decision of what waste has not been subject to rulemaking or
constituents misht be hazardous scientific peer review. This is not
constituents. Therefore. EPA rejected correct Appendix VII] baa been subject
the option of establishing a purely to public comment on several occasions.
narrative daflnltion of hazardous Appendix ym aaiompanled tha Interim
constitUent concluding that some final hazardous wasts nilas of May 19,
specific li½st of constituents was - 1960(45 FR 33132). Paflactlng public
n4eaasy comments peceived those rules, EPA
•tPA con4uded that hazardous modified Appet VIII on Novamber
conal3tuentsshouldbebastdonthsbst 1Z1960(lSflCCflNovnbcZA.
of constituents fr i App pdIxVIIl of Part 1900(45 FR ?154Ø341y S 1961 (48 FR
264. Appen4lx VIliJaaLjfl of sw r47fl, and Jux ti_I ( FR fl). In
t 1 aaardouicoaaflturnts and classes of: ed )ltlon, rnmmrits on th a outline of
constituents that have bet shown to toth s regulations, that was discussed
• have toxlc carclnogenlc.-pntagenlc or , In the public mee ting of December 21,
terstogenic effects oabuSts or other 1981, had an opportunity to comment on
life forms. It lnc)udtsmeny of thp - the use of Appendix VIII. These
• cvnsUtuents.ldentlfledund r Section - opportunities for p4llc review have
307(a) of the than Water Act. Section. •, also provided thr scientific communit y
311 of thtleañ Water A4 Section Itt enopportunity to comment on the list.
of the Clean Air Act. and Section l4lZqf Some comrnenters have claimed that
the Safe Drinking Wstef*tt. Purther, It ther! Is i Iaâk of rellible analytical
covers genetically active ainstltuents nethbds for constituents on Appendix
that EPA’s Cancer AueismtntGroup VIII. Of the 387 constituents listed En
baa evaluated and determined to Appendix VIII. tha Agency has
sufficl ’nt1y threaten human health and deaalbed qpalytlcal methods for all but
• - the enylronment to wanant regulillon nine constituents which are un bló In
under EPA sjnogrjmt F Inally. It •‘ water md this would not be 6 ected
Includes the most acutely toxic to be found In round water gmples.
iubstancesl lated lntheN lOSHRegistry Sámecommenteróhanargudthats
or regulated by the Departrrent of AppendlAfllll places en unreasonable
Transportation- ass transportation -. rnonltort burden on the regulated 5
hazard .. community. The morfltorhzg burden
• EPA h s used this List of constituents issoclpted with the use of Apjlehdlx
•. In the hazardous waste listing jfrocasa. Ylli depends In the first Inutanca on the
EPAhas also used Appendix VIII In Its ‘- nature of the wastes placed Eta
• regulations’ for Incinerator.. For each regulated unit EPA doel not believe
.: constituent listed In Appendix VI]]. EPA •‘ that It Is unrrsson ble to place £ Sr.
baa prepared • Hsa4th end - . exten lve monitoring burdenron owneri
Environmental Effects Background end operators who handle wastes that
Document Each document describer- -• contato many potentially dangerous
end eveluetee the constituent’s edverse’ constittteS.s. As wlfl be dlsoussqd later
effects on butanE and other life forms In this pteamblt. the owner or operator
and substg jtl.te’s the fe et that the . . wfll be allowed to demonstrate thst
constituents may pose a substantial some Appendix VIII stltuente cannot
hazard to human health or the be In a regulated unit because of the
environment. . nature of the wssts. Ultimately, tho
EPA believes that Appendix VIII his rcasonablsness of the monitoring
several advantages as a basis for burden depends on the health and
defining htzardcnis constituents. First eovltonmentai ratIonale wnderlylng the
Appendix VIII Is a relatively Indu Ion of. constituent on Appendix
comprehepsive list of constituents that . . VHL PPA lieves that the constituents
may csun significant harm to hums, on Appendix VIII art those which may
health and the enylrmtmént, as • ‘ paces eubst ntlathazard to human
Ind Icated lb thedesaiption ofita p4h. helith rir the erivlronntant, If an owner
end should easurtt the public th.etthb , ‘or op ratdr djpagrees with that
• monttorl jnd response’ plogram • ‘ conclusion and has djta to challelgo
pro 4dee diquuti prolectlon.’Secodd. that conclusion, homey petItion the
4.
- . . •. i 3
I ,
p
- 1’
Agrnry under Z&).20 to teniove • —
constituents from the list
As pert of Its óngolng refinement of
• the regulations. EPA will consider
adding constituents to Appendix VIII. II
members of the public believe that
additional constituents should be on
Appendix VIII, they can also petition the
Agency to expand the li d
c Se/tctinj Hazardous Constituents
from Appendix VJ1I.—BesIdes being on
Appendix VIII. a constituent must meet
two other cilterle before It may be
Identified as e hazardous constituent • -
First It must be to the ground wat,rfle’
ground-water protection standard Is
only concerned with waste constituents
that reach ground water. Second.a
waste tdnslltuent must reeeonably be
• expected to be Sot derived from waste
contained In e regulated w ilt A
constituent derIved from waste may be
a by-product of reaction of waste or
waste leachste with other waste or
- materials In a reguleted unit or with soil
underlying the unit As a gener$ matter,,
EPA will consider ths presenc , of the
constituent in the pound water at the
compliance point as e eufliqlent InItial
Lndlcatiqn that the constituant Is derived •
• 1romwas 1InaregulatedunlL -
-- EPAmecogn lzes.however.thatltls -
possible that a constituent appearing at
- the compliAnce point-may not originate
from a regulated unit today’e
regulations. thnfore, allow the Ørmlt •
* eppil cant two sounds for arguing that a - ,
constituent did-not drive from the
wastelnaregulatedunltOnly2thàof -.
those arguments. howey r, may be •
• cons 1der4 In the sat#ll#bment of
Ijszardoüs toni titusMa. 1)e dwnit or
• opiretor may be hatdllng a nets with - -
relaUvelyian11 rm thkmlcal - -
chars ctarlsdt* end he-may be able to - - -
show that 1 It-ImpOssible for certain
t stituents to ever eppetr In the, -.
Ieechate.ej esg1ng from his regulated -
unit In thWtuationjip Regional ‘
• Adjn1nIetr tor may conclude that some - -
Appendix VIII constituents fodnd In • -
ground water ebould rtht be Identified a
hazar4ouI constituents for that - , - , - -
regulated-unit - • • - :
• The second line of argument that the
a p icant may want hi pursue Is that
while a particular constituent could
appear In the leachate from his . -
regulated wilt the applicant belIeves
that the constituent found it t ground
• water Is coining from a source other
than the regulated unit Before accepting -
- such a ahowlng however, EPA believes
It Is important to have sufficient . -
monitoring data to pliow for statistical ‘, -
• comparisons of background values for a • -
• “constituent to the level of that
cpnstltuent at the complIance poInt • * -
• - ,: • ‘ •
-.5 V
-------
Thereiore, todays r julationa provide
the owner or opera tot an opportunity to
make such a showing in the context of
hi5 detection or compliance monitoring
programs EPA does not believe,
however, that such an analysis should
be the basis for deleting Appendix V iii
constituents from the list of hazardous
constituents in the-ground-water
protectiOn standard.
EPA has provided a limited variance
in § 264.93 that would allow an
applicant to ask the Regional
‘Administrator to eliminate some
constituents found In ground water from
The hat of hazardous constituents
specified In the facility permit The
burden that must be met here, however.
is a heavy one. Basically the owner or
operator must be able to demonstrate
that the constituent Is not capable of
posing a substantial threat to human
health or the environment at any time
under any circumstances that might
reasonably occur, barring wyr or acts of
Cod. /
The variance speciflcalj 1 dofs not.
however, allow the owner br dper-ator to
argue that adyerse effects 1 errbuman
health or the environment will simply be
delayed for some period of time. Thus,
the owner or operator could itol receive
a variance under 1204.93 (b) by arguing
that a plume olcontamlnation would riot
reach potential users (e.g.. not migrate
beyond the facility property boundary)
for some period of time.
The variance provided In I 264 ,93 (b)
is designed to address relatively limited
situations. For example, the applicant
may be able to demonstrate that,
regardless of the coricentratirut that the
hazardous constituent might reach In
ground water underly i ng a regulated
unit, because of Its half-life and the slow
rate of ground-water flow. ft can never
pose a hazard to human health or the
environment
Today’s regulations specify a set of
factors that the Regional Administrator
will consider when considesinga
variance under [ 284S3{b). The factors
used in the Regional AdrnlnlstratofA
analysis are similar to those Identified
In * 287fl the general performance
standard applied to new hazardous
waste land disposal facilities In the Part
287 temporary standards. The factors
have been modified iljghtly to explicitly
indicate that the Regional Adnilni trator
wilEexamine the ground-water and
surface-water uses In the area around
the facility. (The 26740 standard also
addresied air protection and subsurface
migration, which are not part of the
anatyals In this varlance4 Basically, the
factors are designed to name that the
following topics are áimb d (1) The
jotentlal for lasehate mlgrstlon from a
reg ulated unIt (2) the quality of the
leachate as,l1 mIgrates; (3) the current
and future uses of ground water and
surface water In the area; and (4) the
health and envlmnmefttal effects
associated with exposure to different
levels of hazardous constituents.
Under the tindergrowid Injection
Con trolJtJICJ program of the Safe
Drinking Water Act the States will be
identlfyi g undergrouztd sour s of
drinking water (USDW) and exempted
aquifers. (Sec 40 CFR 1122.35) The UK
program is aimed at protecting USDW’s.
Exempted aquifers are aquifers that
have many of the same characteristics
as underground sources of drle)dng
water but that are unlikely to be used
for public drinking water supply due to a
variety of technical and economic
faclors. tinder the UIC program, a State
must seek approval from EPA for any
decision to exempt an aquifer. In making
decisions about the use of an aquifer
under the variance In this section, EPA
believes it Is Important to build on the
decisions already made by the States
and EPA under the (JIC program. This
will insure consistency In EPA ’s overall
approach to ground-water protection.
Today’s regulations provide.
therefore, that the Regional
Administrator will consider any
decisions made under *122.35. the
provision that allows for Identification
of USDW’s and exempted aquifers. In
any decisions about ground-water use
for purposes of this variance. The
Regional Administrator will rely on that
decision, however, only to the extent
that it Is consistent with the ground-
water protection strategy In today’s.
regulations. For example, if an aquifer Is
exempted for a fIxed period ol time (e.g.,
In some mining situations), then the
Regional Administrator may consider
what thSlikelyusaofthatground water
-wi ll be after the fixed timeperiod In
deciding whethm a variance under this
section Is appropriate.
5. Concenrrctjbt, Limits ( fl4SJJ As
Indicated earlier, the grorind-water
protection standard indicates when
conecthrs ctlon Is needed at the
facility, i tt order to serve that purpose,
the ground-water protection standard
must establish an action level for each
constituent that will tri er initiation of
a corrective action program. In 264.94,
the regulations set forth the criteria that
I the Reglonnl Administrator will use In -
establishing juch concentration limits - -
- - for asci i hazardous constituent
- a. AJienati vet &WnJnS—EPA
considered several options far defining
concentration limits. One approach is to
setjlmlts based on the detectability of
the constituent In ground water. A -
second approach Is to establish
- Federal Register / Vol. 47, No, 143 / Monday, July 28, 1982 / Rules and Regulation; 3fl97 -
numrrica limits 4 r each constituent
that are based on a’health or
—environmental rationale, A third option
Is to establish narrative criteria ba4 _
on pro teçtlon of human health and the
environment In the regplatlons and to
allow the Regional Administrator to set
specific contamination limits lit the
permit slier considering a variety of
site-specIfic factors. The fourth option is
to ensure that a hasardods constituent
does not exceed the background -
concentration of that constituent In the
ground water. - -
EPA decided nqt to use the first
- - option. which wo uld trigger ixtrrectln -
action whenever there Is a detectable
level of the constituent at this.
compliance point. Detectable lev libf
hezardous constituents may appear at
the compliance point through no fault of
the owner or operator. Natural
background IevelI of chemical
constituents or other sources of
contaimlnatjoa could cause such
delectable values. EPA believes It is -
unfair to the owner or opera tar to cause
him to clean up contamination that
cannot be reasonably linked to leachate
from a regulated unit.:
Today’s regulations embody imix of
the other three options. Each has
advantages hut no single approach Is
appropriate in all situations. The second
- option, which Involves the -
- establishment In the regulations of - -
- numerical lists lot each constituent, Is
based on health and environmental
factors. This Is a desirable optloà
because It assures that the action level
Is directly related to the protection of
human health o; the environment
Unfortunately ’ such an approach Is not
fully adequate at this time because EPA
has not established such contamination
llmlthfarrnostofthehazardoua . - -
constituents listed on Appendix VEIL
There for. EPA has used health-based TT
contamination halts where such Limits
exist, Specifically, the max imum
‘contaminant limits established for the
constituents In the Natlonat Interim
Primary Drinking Water Regulations
(NIPDWR) under the Safe Drinking -
Water Act will be used In the ground- ‘ -
water protection standard,Thorse
constituents and associated - -
concentration limits are spedflcally . -
ldentifledthTable 1underImt ,
There may also be situations where - -
1I !e third option,’ wttlch Invbtves the site- -
- specific establishment of concentration -
- limits based on a narrative standard,
will be feasible. EPA decided nut torely
solely on this approach, however, for -
several masons. - -
It may require dsta that are not -
readily available. Moreover,-tbe data -
-f
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-I
32.29
Federal Register / Vol. 47, No. 143 I Monday. Tuly 28, 198.2 I Rule , end Regulations
collection end analysis needed for euch
an epproach m.y be extremely time-
consuming end reuource- [ ntenslve. EPA
is concerned that such an approach
could lead to a cumbersome
adminjitritive process that would delay
the initiation of needed measures to
control plumes of contamination. In
addition, the result of the analylis under.
such a standard could be subject to
considerable scientific uncertainty and
might not serve to aesure the public that
adequate meaaures were beln taken,
Finaily, thi, approach could divert the
owners or oper.tors resourcas from
expenditures on proven control
measures that will provide significant
environmental protection to
expenditures on complex analysis and
predictions about the fate and transport
of bezardoos constituents.
Therefore EPA has decided to provide
for this option throu8h a variance.
Todays reg ilatIona allow the owner or
operator an opportunity to request an
alternate concentration limit ased one
demonstration that the conce tralj qn -
will not advsrs.ly affect human health
and the environment lith, data on
which the demonstration abased Is
subject to considerable uncertAinty. EPA
will not establish the requested
concentration limit To avoid
unreasenabl.delaytnth.
aimrnenceinsnt of correctly, action.
todlys regulation. p ov1de specific
deadline, for the submission of
Information necessary to e,tabll,h Ihe
ground-water protection standard. An
owner or operator who wants to Justify
• concentration limit based on the’
narrative aitsrla In the regulatloni must
do so within the general time frames
applicable to the establishment of other
ypesofconcsntraUquiim1ta.
In those situations whir, there hno
concentration limit speclfled In the
regulations (La. lbs NI [ )WR maximum
co tarnI.ant Is vii.. in Tabl. 1) and
whera the ownsr or operator f.aiLs t -‘
• justify en siternats concentration limit
under the vaiünts, today’s regulations
will be based on the fourth option.
which w,ould require that th. level of.
• hazardous conajituent not exceed the
background co nentratlon of that
constituent In Lb. ground water.
This approach ha. several
advantage.. First, It sesurad 1 at t .
utandird will npt violated unless
b ’IZIJdOUI conitJtu ti bay, entered th(
ground water from. regulated unit
(This ..ssumei th,t normal fluctuations,
In background are accountedfor In the
analysis of whether background ha&.
been exceeded. This concern will b o
discussed in Section VU. D .P. of This
p reamble.F
Second thi, approach providea -
ae5urance to the public that the ground
water quality will not mode en
worse by the advent of hazardous w stc
ditpos l In the area. As dlscusied
earlier In the prtamble. this approach
assures that the current and 1ut USCI
of ground water in the area will be
preserved. EPA concluded that this
approach was the best of available
alternatives for those hazardous
constituents not addressed by the ‘
MPDWR. for which an alternste
concentration limit cannot be
established. becanse it properly
balances the need to fully protect humin
health and the environment and the
need to develop fair. workable
requirements for the regulaied
community.
While the numerical limits Identified
In T bla I for the NWDWR constituents
are gener lly appropriate concentration
limits for those constituent ., there Is one
situatloif where the “no increase over
background’ standard will be used for
those constituents. It Es possible that In
some situations thu level of the
constituent to background ground water
exceed, the NIPDWR limit for that
constituent Unless the “no Increase
over background standard is applied In
that situation, the regulations would
forts the owner or operator to inltist•
corrective action measures even though
no contamination had entered the
ground water from regulated units at lb.
• facility, S 4. ea t Is Inconsistent
with th. bfllo purpos, of the monitoring
&nd reaponi. prt ram.
b. (lie of Altemats Concentration
Lint/ta—Under $ U4. th. owner or
operator may ask (cu a concentration
limit other than a NIPDWR contañiln nt
limit ore “no increase ovar background”
limit The basic test that the Regional
Administrator will use in evaluating
such a demonstration is whether the
constituent would pose a substantial
present or potentiAl hazard to human
health or the nvlronment at any future
time, barring war or acts of God.
The alternate limit nay hi sought at
any time but EPA will not allow the
consideration of such a demonstration
to unreasonibly delay the establIshment
of the ground-water protection standard
for • facility. Once the ground-water
protection standard has been
established In th. permit, th. owner
mus seek altc’nita concentration limits
through errn1t modillcatloni under the
procedures In 40 CFR Part 124. Such
mc,dlflcstlon. are always majoY,
mp lficallona and the burden of)roof Is
on the applicant to )ustIF the1. aHai)ce. -
The fictor, that the Regional
Ad i1nistr.tor will use In considering
this variance are identical to the factors
to be considered for the ri nce in
$ 284,93. whIch allows the Regionil
Administrator to exclude some
Appendix VIII constituents found in
ground water from the liii of hazardous
waste constituents In the ground-water
protection standard. The distinction is
that the vi-I.nce In $ 284.93 does not
limit the concentration of the constituent
In the ground water underlying the
facility; this variance does.
A few examples may help to explain
ho this variance may work. These
examples are not to be tnterpreted as
scenarios that will necessarily qualify -
for alternative concentration limits nor
are they the only possible scenarios. An
owner or operator may have e’iegulated
unit located close to a river that ii
downgradlent from the unit. The owner’
or operator ntsy also be able to show
that the ground water between the unit
and the river will never by used He may
also be abl. to show that as long as
contaminant levels are maintained
betow certain threshold. th -
assimilative capacity of the ilver will
not be exceeded. ml, situation may be
$ good candidatifor in altamat • -
concentration limit
Asecondscsnarlotsonelnwhlcbth.
owneroroparatortsabls to
demonstrat. that that. Is a high . - ‘
Concentra lion threshold for a
contaminant baud on available health
and environmental data- By keeping the
concentration of the cont.mln.nt in th.
iround water at the compll*nr point
below that leveL be can sisurs that
there will be no adverse 1ff ects • -
downstream on human health or the
environment A third .cenailo might be •
based on attenuation In the uturated
zone. Ths owner or operator may be
ab letoshowthata slong.iths
concentration of a hazardous
constituent d not exceed certain
level,, at lbs pliance point, the
concer traUon of that constituent at a
downgrsdlent point of use will be non-
detectable or within ommonly accepted
health standards. (It should be noted
that EPA believes It extremely difficult
to make this latter demonstration.)
As with the variance In $ 4.Q3, the
owner or operator may not receive en
alternate concentration limit by showing
that lb. advers, effects on human health
and the environment will be delayed. In
addition, EPA Intendi to rely on
designations of underground sources of
drinking water and exempted aquifer-.
under the UIC program when
considering what the uses of ground
water are likely to be In the area. in
addition It should be understood that
the variance In this section will not be
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— —
used to reconsidet the health basis oi allow significant ground-water itself. Thu limit Includes any horiwntul
the National Interim Primary Drinking contamination before corrective action space taken up by liners, dikes, or other
Water Regulations. The Regional. would begin. - ba -rlen designed to contain waste na
Administrator miy estab1 sh aitemative_,lbe lourth npt nn constdurü 4. the —tejdateitii’tm-pnpniwottir
conc ntratiOñ limituT6ithe n iituents edge of the waste mansgement area. provision is to avoid the lmplldallon that
in Table 1. but these altematiye limits EPA ultimately decided that this was the mdnltorlng and corrective action wells
must be based ‘on factors (e.g.. likely beat of the available options for several shculd be drilled throug?rthe structures
attenuation during migration) that do reasons. EPA believes this approach wilt which srexlesigried to control the waste,
not ciii into question the-basis For the ‘provide the greatest assurance to the cleirly a counterproductive result.
MCLs. public. Given the fact that there 1* lr defining the compliance point for
8. Compliance Point ( 25-4 .95j The degree of uncertainty about how the ‘ground-water protection standard. W
ground-water protection standard roust iuccessful corrective sr - lion measures EPA considered the Implications of the
also dpfine the,point In the ground wat er will be, EPA does not think that It makes seldcted approach for existing plumes
at which the starkiard must be met. The sense to allow contamination of larse that have appeared at exlsttqg facilities.
Agency éoneidered several options and quantities of giound water when At the j im. that it initiate, permitting for
concluded that the compliance point selecting a compliance poInt. Moreover. existing facilities. EPA may find that
should be the edge of the waste since the owner or operator Is not hn rdous constituents have already
management area. expected to be present at the facility mlgiatad beyond the compliance point -
a. Alternati ves E,wminad—The first forever. it is reasonable to require him to at some units. Under the regulatory
option considered was some point keep the pound water under his control system in today ’s regulations. howa er,
directly below the waste. EPA rejected as clean as possible while he ts present portions of plumes that have migrated - , H
that option for several reasons. Iris not at the facIlity. This is consistent with the beyond the compliance point will be
generally practical to attempt to monitor general philosophy of these regulations addr ,saed under the penniL EPA will
ground water directly underneath a land to retuire reasonable steps to provide require tha cleanup of the portion of
• disposal unit. Dritling wells thmngh a long-term environmental protection. these plumes up to the property
‘re ulatcd unit itself Is unwise because In addition, P2k belIeves that boundary as a condition of continued
\aucii wells can only undermine the - correctivs action is likely to be most oper tion after ths effective date of
integrity of the unit design. ca-eating a cost-effective whsn conducted at the theses-tiles. {Thts Issue Is discussed In
conduit for the passage of hazardous edge of the waste management area. ctt 6 n Vlli.D.13.d. of this preamble.)
constituents to pound water. it is - The pligne of contamination Is likely to Pinlona of plumes that have migrated
‘conceivable that wells could be drilled be most concentrated at that point beyond the facility property boundary
at an angle underneath a regulated u.nlt - meaning that less water will need to be are ndt subject to the monitoring and
so that there would not be a need to removed and managed if it La removed response program of Subpart F.
penetrate the liner In the regulated unit. - there instead of some other EPA believes that today’s regulations
EPA doea not think that this type of downgridient point. In addition to being refleci a reasonable approach. as e
- - nonitoring system has been shown to toal-elfect lve, a strategy that reduces mutter of liw and policy, on the
operate effectively at a sufficient the need to remove 1st-ge quantities of appro riate scope of the Subtitle C
number of hazardous waste dis osal ground water isa sound water program. Plumes that have already
units to justify its use as the general - conservation policy. By using the edge of migrated beyond the property boundary
rk quirement in today’s regulations- - the waste management area as the point may b sddreséed by other EPA
Moreover, there will not typically be a of compliance, EPA has reduced the pmgra if such a plume presents an
substantial delay In detecting hazardous likelihood that corrective act ion lmrninntt and substantial endangerment
cijnstituents if the compliance point is at measures would deplete the aquifer and to health or the environment. EPA may
the edge of the waste management area thereby Impair usa of ground water 10 ts e enforcement action under Section
a , opposed to some polntbelowa the area.
- n gulated unit. b. Us . of Cornpliance Point—While 7003 tocorrect the situation. Such -
‘A second option considered was the . ‘coxnpl.lance point’ Is the term of art - p lurneamsy also qualify for remedial
action measures under the -
property boundary. EPA considered this used to define the losation where the - -- Comprehensive Envtronrnental
approach carefully but decided that it ground water protection standard Is
did not provide sufficient tim to take measured the “compllsnce point” Is . fr Response. Compensation, and Liability
corrective action once noncotnpliance factasurfacetoraset4,p.olnts) - Act (CE (CLAL - - -- -
ocbirred. Moreover, this approach could SpeciflEally. the cornpllancepbint is m -r uaeM
atlàw contamination of large quantities vertical surface located at the these other authorities to address
of ground water within the property - bydraulically downgraqient limit of the plumes of contamination that have
boundary. water that would eventually • waatenanagemnent ares that extends . migrated beyond the property boundary
move off site. down Into the uppermost aquifer - at the Urns of Initial perrnlttinr EPA
A third option considered was to underlying the regulated units. The must operate within the constraints of. -
establish a buffer dlstancs outside of the waste management area is the limit - those laws and thu. cannot guarantee’s
• wa ite management area. EPA decided projected In the horizontal plane of the that actinne under these other
• - - not to take this approaclt There was no area on which waste will be placed • authorities will also be approprisle. EPA
rationale for a fixed buffet distance that - during lb. activa life -of a regutated wilt. - does however, to take a close
would appl to all facilities. EPA did - This area will be specified in the facility look at plumes of contamination that
actively consIder tha use of a butler - permit When there l.a more than one have mlgc-ated beyond the property
zone thst was haaed on assuring at least regulated unit at the facility, the waste - boundary at the time of initial pern1ttii g -
5 years of flow time within the property management area is deaaibed by en to determine whether action under other
boundary. EPA eventually decided - imaginary line circumscribing the authorities is justified.
Igalnet this approach because It wal several regulsted units. 7. .Com iliancePeriod(g264 - /. In
diffièult to justify the 5-year time frame The edge of the waste management setting the ground-water protection
end because thia approach could still area Is not the outer limit of the waste atandardmhe Regional Administrator
H
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32300
Federal Register / Vél. 47, No. 143 I Monday. July 20. 1982 I Rules end Regulations
must define the time period over which
It will apply. In I 204.96. the regulations
Indicate that the compliance period to
be set In the permit Is the number of
years equal to the active lift of the
waste m.anagement ares (Including any
waite management activity prior to
permitting, and the closure period-)
As described In Section VIA of the
preamble, the compliance period Is to be
based on the active life of. regulated
unit, the time period during which the
most significant release of liquid.. to the
ground Is likely to occur. Where more
than one unit Is contained within the
waste management area of the facility,
liquids may enter the ground for the
period beginning when waite Is first
placed En any unit within the waste
management area and continuing until
The last unit within the waste
management area is properly closed.
Accordingly, the appropriate time frame
for this compliance period Is the period
equal to the activelife of the waste
management area.
EPA recognizes that there msy be
situations where particular plumes or
portions of plumes can be linked to
particular units, depending on the
configuration of the waste management
area.. For example, where the waste
management area Is made up of a series
of adjacent landfill trenches and ground-
water flow Is parallel to those trenches,
It may theoretically be possible to
distinguish which trench created a
plume that m.y appear at the
compliance point. Todays regulations,
however, do not allow for the
establishment of Individual compliance
periods for each regulated unit within
— the waite management area. EPA is
considering whether to provide for such
an option and seeks (qrther cOmment on
this Issue. In particular, EPA asks
commentera to address the need for
such a provision, the practical feasibility
of distinguishing plumes from different
units within the same waste
mansgemont ares, and the techntcal
criteria thst might be used In
determining when thIs option might be
appropriate.
In calculating the compliance period.
the Regional Administrator will Include
the Dma that any regulated unit was
operating prior to permitting The bests
for the complianca period Is the time
period during which leachata could have
entered the pound tius to tha absanca of
a liner or the failure of the liner. The fact
that aome of that Urns period ctcunod
before peTnult I.ssuanca and some after
should not influence the length of the
Urns period. -
Ths compliance period begins to run
when the owner or operator Initiates e
compliance monitoring program Onder
4
I W4.99 following detection of
hazardous constituents In ground water.
‘Ibis assumes that detection of
hazardous constituents In ground water
indicates that the front of the plume Is
entering ground water.
it Es theoretically possible. however,
that the ectual front of the plume Is
relatively dilute and that the detection
monitoring program would not Indicate
the presence of hazardous constituents
in the ground water until some later,
more contaminated, portion of the plume
appears bench. a the theory of
plume migration described In Section
VIA of this preamble would suggest
that the compliance period should be
shorter than the length of the regulated
unit’s active life. (tinder that theory, the
compliance period is linked to (ha time
period during whlth the most significant
portion of the plume Is expected to
appear.)
EPA knows of ao way to a ount for
this scenario In sit tin.g the compliance
period because It depends co knowledge
about th. quality of teachata that Is
entering the pound watar, a fact that
will not be known at the tima the
ground-watar protection standard Is
established. Therefore, the compliance
parlod will be linked to the full active
life of the regulated unit (or tha waste
management ares If there Ii wore than
one unit), based on the assumption that
the detection monitoring program will
detect the Initial front of a plume of
contamination emerging from the
regulated unit.
The compliance period may extand
beyond the number of yen equal to the
• active life of the waste management
area If corrective action has been
Initiated but not completed. EPA
believes that corrective adticm measures
should be completed once begun- The
capital expenditures will have alreAdy
been made, so tli permittas will only
bear the additional costs of operating
the corrective action equipment The
fact that the ground-wa tar protection
stsndard Is still exceeded at the end of
the normal compliance periodindicatea
that an environmental problem Es still
present This may be. caused by the fact
that some constituents In the plums may
have proceeded through the soil more
slowly than thoee that wn at the front
of the plum.. in keeping with the general
philosophy that the owner or operator
should seek to remove environmentally
significant levels of hazardous waste
ieacbste from the environment, EPA
bellnres that It Is reasonable for the
compliance period to be extended where
necessary to completi corrective action.
It Is necessary. then, to define what is
meant by completing correctlva action.
Today’s regulations indicate that the
owner or operator can demonstrste the
tuccesa of càx-rectlve actlbn by showing.
with monitoring data, that the ground-
water protection standard has not been
exceeded fore period of three
consecutive ’ yen. This time period
should provide a reasonable margin of
safety In determining whether a plume
of contamination has been removed. .
Depending on when corrective action
bekins and Its success In removing or
treating contamination, It Is possible -
that thecomplianceperlod willextend
beyond the poaf -closure care period for
the unit. The regulations do not provide
that the post-closure period would be
automatically extended for the same
duration as the complianca period. It
may not always be necessary for the -
eowpllanca period and tha post-closure
care period to continua for the same
amount of time because the activities
lnvolved.may have differing objectives
Cover maintenance, for example, may
not be directly related to the task of
cleaning up a plume caused by leachate
that entered the pound during the unit’s
active lifa. The Regional Administrator
may. however, modify tha permit to
extend the post-cloaure care period
under I 204.117 of the existing
regulations Under the general crIteria
established In I 4.117, It may be
entirely appropriate to extend the post- —
closure care period to be coterminus
with the complianr peiloct
a. Genam! Ground-water Monitoring
Requirements ( 4.97J In I 4J7.
EPA has eet forth a series of men 1
requirements that address such toptca as
well design and placement, sampling
‘and analysis procedures, analytical
methods, sampling of water elevations.
determination of background, and
statistical procedures.
it Is most efficIent to escrlbe these
requirements as they c ne up In later
sectlona of this preamble that discuss
the specific ground-water monitoring
programs. Two of those gener-sI
requirements. howsver, deserve special
discussions. They n described In the
following two sections. ,
9, Determination of EacAgmund
(fl64.97(gfl. In many situations, the
concentration limit for a particular
hazardous cotiatituent will require no
Increase over the background
concentration of the constituent in
addition, the detection monitoring
program relies on Increases over
bsckground levels of parameters or
constituents to define when a regulated
unit Is leakIng Tods s regulations are
desIgned to ensure that thi calculation
of background ground-water quallty’ vlll--
be based on accurate data.
4
I,
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then to determine: whether ground-water
qaulity at each well increases
ètgnilic.antly over time. The ’principal
disad vantage of this apprnach is that Is
can lead to major miscalculation, at On
existing regulated unit. Such a unit cOuld
be leaking quite heavily, lithe plume’of
contaminstion I . included in the dat&
base used to determine background. tho
plume could continue to flow and the
analysis of grou.nd-wster quality at the
downgradient wells would not show a’
statistically significant increase.
Another option is to base background
on data from both upgradient and
downgradlent wells.This pproach
siifkrs from tha same general problorn ‘ I
described above. A plume of real
contamination could become part of the
data bose for determlnistj background
and lead to a fatlura to dated,.
significant plume ,
A third option. which EPA bellavel Is
pr ferable in most sitUations, Is to base
b ckpound data on upgrsdlent walls.
Aisuxning these walls are properly
placed, they should produce dats that
art not hissed by contamination from
the facillty ‘ I
There Is, however. a conceptual
difficulty with flit usa of upgradient
walls a . the basis for determining
baèkgrouncL In a theoretical sense. u.n
‘inkrease over background” test at the
compliance point attempts to compare
— thsss.mplrd iUufld-wster quality at the
compliance point to what that ground-
water would have been at the
compliance point In the absence of the
facility.
In the option Just described, the
upgrsdlent wells are being used to
indinte what the ground-wster quality
at the compliance point would have
been in the absenc. of the facility. The
• prohltm here Is thst there insy be some
lag time between upgradient and
downgradient wells du. to the slow
movement of ground water. Thus.
upgrpnlgoundiwafrr.qualltymay-
not llwsys be exsctly the same as
background ground-water quality at the
• compliance point While this factor may
be a source of error, EPA knows of no
relisble way to correct for I L Given the
alternatives, EPA still believes that this
appthach itsupertor because 1st least
doesnot present the possibility of
lndudlng leachste frame regulated unit
In tha data base for calculating
background values.
Thrra may be situations, however.
where the dats used to calculate
background values msy be taken from
wells:other than the upgradient weila. fr i
somejituations. it msy not be possible
to determine what wells are upgradierit.
For example. If a land disposal trait sits
Federal Register f Vol. 47. No. 143 I Monday . uly 28, 1982 / Rules and Regulations
I — ,
32301
The level of chemical con tifuents in detection monitoring parameter) suggeat
ground water may fluctuate that additiohal measurements of
substantially over time. Ond of the . background concentrations are
major sources of vanation is seasonal necessary to adequately account for -
fluctuation. During different times of the anticipated seasonal variutionr ibis
year the recharge rates to.ground water situation could Occur when Appendix
will vary, reflecting the dtfterences in Viii constituents in ground water at the
c limate, rainfall, and other factors , compliance point are present in
\Vhen recharge rates are high. there may concentrations which are not greater by
be more dilution and the background a statistically significant amount than
concentrations of cortsiituefits tend tQ the concentration, of these cortstituents
f.ill. When the recharge rate is low, the in samples from upgradient wells. If, in
concentration of constituents in such a situation, the owner or operator
background ground water may incresse. has evidence that the concentrations of
EPA believes that such variation in the constituents in ground water vsry
background concentrations should be over time, then additional sampling snd
accounted for if this can be done analysis over time to account for such
without compromising other regulatory variation in background conoentrations
otijçctives. For detection monitoring. may be prudent.
todriy’s regulations provide that Occasionsily. additional sampling and
background concentrations will be analysts over time may be appropriate
determined by the mean of values even where compliance point
measured at least quarterly for one year. concentrations excaed upgradient
Quarterly sampling is required to concentrations, at a given point in ilme,,
roughly accord with the seasons, If the Regional Administrator believes II
EPA does not believe that this general reasonably poisible that this d.lfferenc.
approach can be used in the compliance l.a dua to saasonsl or spatial variation In
monitoring program because of the ground-water quality. In this case,
environmental situation at the time that - howavar, the Regional Administrator
such a program is required. If hazardous would consider whether the rate of
constituents are moving downgrsdient, ground-water flow (and any plume of
they may present a considerable rIsk of contsminstlon) was aulliclently slow
causing adverse effecta on human health that additional time far collection of
and the envirorunent. EPA does not ground-water quality data would
believe It is generally appropriate to Jeopardize the potential for successful
allow such’i plume to continue to ‘ ‘ correttlve actio n If It Is determined to be
n lgrate4i llethFowneroroptrator ‘ necessary. ThiRejhuiilAdiiilnistr’stor
coliects background data for one year. ‘ would not, however consider allowing
Therefore. EPA will, whenever possible, time for additional data gathering in’
rely on whatever reliable background cases where the initial difference In .
data Is available to establish. ‘: compliance point and upgrsdlent
II background values for the compliance ‘ constituent concentration is well above
monitoring program. •‘ . potential seasonal vitiation.
Today’s rules requlre that a request • The owner or operator who wants to
for a permit modification to Incorporate’ ‘ account for seasonal variations in the
a compliance monitoring program be background values ham at least two
aubmitted by the owner or operator’ ‘- additional opt.iorts. He can anticipate the
within 90 days of determining that there need for such dsja by collecting
has been a statistically significant : upgradient data on Appendix VIII
increase in the concentration of a ‘ • constituents likely to be In leachste
detection monitoring parameter . During ilcfuresietecllon monitoring program
I this day peridd multiple ground-water indicates that les.k.ge has occurrea. He
samples can be obtained from the • • “may also continue to collect background
monitoring wells, and analyzed for the • • data after the compliance monitoring
presence and concentration of program permit a issued. He may use
‘hazardous constituents. Potential that data in making a demonstration
seasonal variations In concentrations under % 284.99(J) that an apparent
cannot be established during this perioct Increase over concentration limits In the
Depending on the length of the permit ground-water protection standard is
process. the owner or operator may caused by contamination from other
have enough time to develop one year of sources. He may also use the data in -
background data for each constituent. • seeking a permit modification to change
The Regional Administrator will • • the background values contained In the
exercise discretion in processlag a • compliance monitoring program.
permit modlilcation application to Another issue In the entabiishment of
incorporate compii.nce monitoring background for a constituent is the
vhen available data (Including de&ta question of what wells should be used in
èoliected during the 90 days after finding the data base. One option Is to establish
a statistically significant increase In a background at downgradient wells and
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32302
Federal Re ster I’ Vol. 47. No. 143 / Monday. Jul 3 Y26 , 1982 I Rules end Regulations
on a hilltop, the entire perimeter ole
regulated unit is, in a sense.
downgradirnt. in such • situation. It
may be more useful to establish
back&ound by drawing sernplea from a
nearby background plot that Is
representative oF general ground-water
quelity in the area.
In other eitu•tions, the possibility that
wells other than upgrsdient wells may
be,plfected by contamination from a
reguleted unit may not be • serious risk.
For example, at a new facility that ha.s
not yet received waste. It might be quite
acceptable to use downgridlent well.. In
the determination of background -
ground-water quality.
To account for iltuationa such as
these. EPA has provided a vaiiance from
- the general requirement that background
ground-w trr quality be based on
upgr.dient wells. Such. variance La
appropriate where hydrogeologlc
conditions do not allow the owner or
Operator to determine whet wells are
upgr.dlent or where sampling at other
wells will provide an Indication of
background ground-water quality thetis
as representative or more repieaentatlve
than that provided by upgrdlent well.-.
Tod y ’i regulations do not specify
bow many wells must be installed to
provide the deta base for ds1ei mln1rig
background ground-water quality. In
I 4-V7(g), however, the regulations
indicate that certain minimum rimnbeTl
of samples must be tAken. The owner or
operator must t.k. at least one sample
from each wall used In the calcolu lion of
background (i a , one from each
upgr.dlent well In the normal case).
This will ensure that broadly-based data
are used. .nd that the owner or operator
cannot selectively us a varlousdata
points. -
The regulations also require a
minimum of four sample. from the entire
system in the determination of
background. ThIs means thet U there Ii
only one upgradlrnt well. then Lb.
owner or operator would ak . four
replicate, at that welt 1.1 then, ar . two
wells, the owner or operator would take
two from eech well
10. Slotiaticol P vcedure, ( . 4.97(hJJ.
In the detection monitoring program, the
owner or operator must determine
whether background value, of
monitoring parameters or constituents
are exceeded at the compliance pOInI In
the compliance monitoring program, the
owner or operator must det .milne
whether concentration limit. (which
may Indude background values) for
hazardous constituents are sxc.uded at
the compliance point. In order to be sure
that the ground-wat .r quality measured
.t the compliance point refI.cts an
accurata Indication of whether a
b,ck round value or concentrahon hniit
ía ex eded. todays regulations rsquire
that the owner or operator determine
whether a stat.istically significant’
increase (or decrease in the case of pH)
over background values or
concentration limits occurs at the
compliance poini
Th regulations set forth the general
standerd.. that must be met by the
statistical procedure. used at the
facility. In referring to ‘statistical
procedure.” In 2 4.97(b}, EPA means
to emphaslza that the concept of
‘atatistical significanc.” must be
reflacted In a number of aspect, of the
monitoring program..Thl. involve, not
usI Lb. choice of a level of significance.
but also the choice of a statlsticpl test,
and lb. requirements of lii, number of
sampl and the number of replicate
• meuurementi run on each sample.
SInce allot Ibm Interact to dstermln,
the ability of the procedur, to detect
contamination. th, statistical procedures
must be evaluated In their entirety and
not evaluated by Individual component
!PA. basic concern In establishing
standard.. for atatlitical procedures Is to
achiev, a proper balance between Lb.
risk that the procedures will falsely
Indlcata that. regulated unit Is causing
background values or concentration
limits to be exceeded (false pg. ltive4 -
and the risk that Lb. procedure. will fall
- to in ikati that background values or
• concentration limits are being ce.ded
when that is. In fact, th. situation (1.1,.
negative.). Todays regulations are
• designed to addres . . that concern
directly.
a. Basic Stoliaticol Procedure—EPA
has not been abl, to specify one let or -
several sets of statistical procedure.
that will provide a high l.vel of
confidence in Lb. results for all
situations. Many different situations
exist and no one procedure Is -
- appropriate for .11 drcuxnit. .nces.
EPA also found It difficult to try to
reduce lb. regulations to a set of
epecthc numerical p.rform.anca
standards that would acbleve Lb. proper
blan c . between filsi poaltlves and false-
ne ’gstlv.a. A major reason for EPA’.
Inability to establish such performance
standards at this tin. I, that Lb.
probability of correctly dscldlng that a
• regulated unit is contaminating (often
expresii d as the “pow,r’ of a at. tistical
test) cannot be easily summarized by a
single number becaus. Lb. pow’ of a
test is related to the magnitud. of the
di1f rence b.twe.n two populations.
Today’s regulations do not attempt to
expreu the Idea of “exceeding
b ckgrnund value, or concentration
limit.” to (inns of any minimum
ma,gnltuds. any Increase I.. a cause for
- -1
concern under today’s regulstlon3. The
Implication of this for the statistical
procedures Is t et a performance’
standard related to the power of a
statistical teat would have to be
spedfled for every possible minimum
magnitude that might be of concern.
This Is not feasible at this time given the
state of knowl,d . about ground-water
contamination. -
An alternative would be for EPA to
d.dd. what magnitud. of Increase It
was concerned about and to sp.d.Iy
bowpowerfulthetestwouldbefoi-that
magnitud. of difference. However, the
Agency Is unable, at this time, to
determine an amount of contamination
th.t Is acceptsble and thus I. not able to -— —
set such a magnitude. Also, the problem
would remsin of having to specify how
pow ,rful the test shoubi be far values -
above that minimum difference of
concern. EPA Invites comment on this
Issue. -
Consistent with Its general strategy,
however, EPA his tried to bring
certainty to these regulations wherever
possible. -
Therefore, the Agency I. establishing
a specific sampling. requirement.
statistical test, and sIgnificance level for
thou, situations for which the Agency
bellevis ths test I . appropriate. This
specific approach will than serve as a
b.nrl mark against which other
statistical procedures may be compared.
Th. comparison should be based on
th.tr theoretical properties r imhLn .d
with available data tromth. apeclflc
alt.. It will generally be euler to make a
relative comparison of one proceilun.
against another than to detarmin. the
best possible lest it. given sita.
The regulation, establish a standard
statistical procedure for usa In the
detection phas. when the background
data I . approximately normelly
distributed. The pro ure requires
background umpling” ata. umpllng
data from the compliance point, and a
spedfic statistical test protocoL For any
parameter or constituent from • specific
wall, Lb. protocol L a as follows: Compare
the mean contaminant Lavsl of Lb.
compliance point data wIth th, mean
contaminant level of tb. background
data using Cochran’s Approximation to
the Behren,-Flsher Student’s (-teal U the
comparison I . . found to hi significant at
the 0.05 level of signilicanos, a new
s mpI. Ia drawn from that specific well -
and lb. comparison of the mean of th
new monitoring dat, with the
background data Es made. If this (retest)
comparison Is significant at the O.
level of signIficant.. tb. sits is judged to
produce a statistically significant
difference In contaminant lavsL U the
p
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Federal Register ‘ Vol. 47. No. 143 1 Monday, July 28. 1982
j Rules nd Ragulafi a la — 3L3O3
comparison is non-significpnt on elthir triteria that might be used to predict
the Initial teat or the retest, the site Is whether monitoring data are likely to be
judged not to produce a significant normally distributed.
difference In contamthant leveL As clescrthed In the previous se ction
Tod 07 ’ n3ululiu rdeftneihe oflflifr Ithb1e det llüü monitoring
situation in which the distribution Is background values are bas ed on
likely to be normal by a coefficient of quarterly sampling with at least four
variatica The coefficient of variation for replicate measurements on samples
distribution Is the sLax4ard deviation taken per quarter. Should there be only
divided by the mean. Today ’s - . one background well, the four
regulations assume that a sample with a meaiurements per quarter are obtained
coefficient of variation less than 1.00 Is by splitting a sample from’the one well
likely to have a normal distribution. This Into four eliquots süd conducting
•assumption Is based on the following separate analyses of each aliquot. If
analys is. - there Is mare than one well, the
For a normal distribution, regulations require there to be at least
approximately 05% nEal! possible dots four measurements per uafler frorç, the
lie within plus or minus two standard background wells as a group with a
deviations of the mean. Since ground- minimum of one measurement per well.
water constituent levels cannot have This number of background
negative values, zero Is the lower bound measurements Is judged by the Agency
to the distribution of sampling data and to be the minimum requIrement to
hence such data should have a . adequately establish background
coefficient of variation(standard ç :. concentratIons. Using fewer background
deviation divided by the mean) of’’ ‘‘ measurements unald decease the
• approxImately 0.5 or less. Whcn’sample confidence In the background estimate
standard deviation and sample mean and redact the ability of a given
are used to estimate the coefficient of statistical procedure to detect
variation rather than the true contnmlnetlcn of a given amount
(population) standard deviation and The Agency 1. requIring that
mean, the probabilistic nature of this’ monitoring wells be sampled at least
sample coefficient of var iation must be semi-annually and that when a well Is
considered. if the data Is from a normal sampled, the sample Is divided into at
.distrThutlon., then less than 10% of all least four sliquots on which separate
sample coefficients of variation will ‘ analyses and measurements are then
exceed 1.00 by random chance. 11 the conductect The reason for requiring four
—-r-data Is nonitorinth tsuchnrlth& all quat 1 W A ate
skewed to the left or right), then the obtain Informatkm on measurement
sample standard deviation will be large error. It has bron EPA’s experience that
relative toihe sample mean and, measurement errur eannn ( be reliably
therefore, make the probability of a estimated with less than four reacting ..
sample coefficient of variation , The st andard statistical test being
exceeding tOO quite large. Accordingly required is the Cochran’s
100 Is being used to dlst nguIsh between Approximation to the Bahrens-Flshar
situations that era and are not likely to Students 1-test The 1-test Is appzuju’iate
have ae T na 1 distributions. in most situations because
In specifying 1.00 Instead of 03 as the concentrations measured above the limit
• coefficient of variation the Agency of quantification (defined as the value
believes that It will reduce the burden, below which numerical estimates of
on both the owner or operator and the concentration an unreliable) tend to be’
- : -Agency, of establishing a site-specific apptnxlmately normally distributed. The
data comparison procedure. More test I . believed So be reasonably
facilities will, therefore, utilize the Insensitive to moderate deviation from
specified Student’s i-test than if the nonnality hubs distribution oldie data.
coefficient of variation were specified as The version of the S-test required for
0.5. For those facilities where the sample , the comparison of mean level of
coefficient of variation Is Ins than too background data with the mean level of
but at which the ground-water quality Is compliance point data is not the one
not quite normally distributed, the most commonly encountered when
specified t-tnt should remain valid due comparing two data sets. A key
to the “robustness” of the i-test. , “assumption (aside from that of
While EPA has decided that a normality) for the usual test Is that the
coefficient of varIation 01200 provides a underlying variances of the two data
reasonable aiterlon for determining sets are equaL With ground-water
whether monitoring data are likely to be monitoring data the background data -
normally distributed. EPA specifically has variability due to measurement
seeks further comment on this Issue. ‘ error and seasonal variation, but the
EPA also urges connecters to provide compliance point monitoring data has
auggest lr ,nsaboutotherstatlstjcal var lab llltyonlyduetoneasurement
error. Therefore, the appropriate test for -
comparing the two data sets Is the
Jiehrens.Flsher Student’s 1-test which
1 tth-es speç tabloLkg L _ ...... _ .
approximation to the relatively complex
Bebrens-Fisher Student’s t-test Is
supplied by the Cochras?s
approximation to the Behrens -Fisher
Student’s S -test, which uses standard
tabks. These tables are commonly
available and It takes no special -
statistical skills to interpret the results
cfthetesL -
EPA Is fixing the level of significance
for the Student’s t-test at 0.05 for each
parameter at each well 1 , When the
Agency proposed this significance level
for Interim status ground-water
monitoring. It received some criticism
that this would produce too many
nètiflcallons of contamination where
noriehadettuallyoccurrtd. -
EPA recognizes that this could be a
problem, particularly when there are
many comparisons being made for
different parameters and for different
wells. However, EPA Is concerned that a -
owersign1flcanco level would unduly
compromise the ability to detect
contamination when It did. In fact.
occur. - ‘
Instead EPA believes that, given the
number of parameters likely to be
selected In a detection monitoring
program, the problems ceated by a
— elgnlfloanoeieveloto.o5rays adequatil 7
controfledby lheprovlslon foran -
automatic retest procedure. The -
1 regulatlons for use of the Student’s t-test -
ipecify that, for each specific well, one
- musl retest those parametErs that tea ted
as a significant difference the first time. I
They also specify that the observed
difference of the flril safnple Is not
considered to be statistically significant
for purposes of this regulation unless the
retest elsa shows a significant
difference.
I I nay be demonstrated that, without
the retest provision, the !compoln&llng”_Li
effect of multiple comparisons asetes
en overall significance level that EPA
bellevesto be too high. Forexamplu, If
there were twelve comparIsons (4 -
parameters at each of three •
downgradlent wells), each to be made at
a significance level of 0.05, then the
overall significance level for the twelve
c)mpar1sonsasanentIregroupba4o
too high for practical use. If the retest
procedure l used In the seine Situation,
the overall significance level for the
entire group Is 0.03, 5 more acceptable
value. • ‘ - ‘
EPA certainly seeks to avoid a
situation where non-contaminating sites
are falsely Identified as contarnlnatln,g
due to repeated use of a univariate
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Federal Register I Vol. 47. No. 143 / Monday, July 28, 1982 / Rule, and Regulatwn
statistical teat procedure. EPA doei not
b-lirve, however, that this prob!em
should be addressed by reducing the
significance level applied to individual
testa and thereby undermining the
ability to detect real contamination.
Comments are invited on how to
conl(rnct a stutistic.al test procedure
that h s an acceptably low probability
of falsely identifying a non-.
contaminatingregulated unit, yet
provides an acceptably high probability
of identilyirig a truly contaminating
regulated unit.
EPA recognizes that even where the
diatribution of background data ii
expected to be normally distributed (I.e..
the co .erncient of variation is less thin
1.00). there may be situation . where the
owner or operator can devise statistical
procedures that a-re more cost effectivc
to him and which will provide reliable
results. Therefore. todays regulations
- allow the Re Ionml Administrator to
approve such procedures If he finds that
the procedures balanc. the risk of false
positive, and hue negative. In a
manner comparable to that provided by
Lhr Student’s t-t.eit protocol specified In
the regulations. In examining the
comparability of the su e .ted
procedure, the Reglon.al AdmInistrator
will not locus one sins), aspect of the
procedure. such as the significance level
of the test, but rather will look to the
overall ability of the procedure to
- provide a reasoneble balance between
the risk of false positives and fuse
negatives. The Regional Administrator
will specify In the permit such things as
the sampling frequency ani3 he sample
size for the alternative statistical -
procedure.
‘b. GenemlAliernative to Ba,ic
- . - Procedure—EPA recognize. th.t there
will be situation. where the I-test
specified for the detection monitoring
program will not be useabli In that
program or In the cmnpliance monitoring
program. In such situations, I I Is
necessary to develop procedures that
are tailored to the specific situstlon at
the facility. EPA his establisheds
general narrative standard for such
situations. The standard Indicate, that
EPA has two principal concerns In the -
development of such proced ues: (1)
That the procedure be appropriate for
the distribution of the data used to
establish background values at
concentration limits; and (2) that the
procedurs provides • reasonable
balance between the risk of false
positives and t l.e negatives.
EPA has not specifically required that
the procedure be comparable to the
t-test protocol described above, The
regulations Indicate, Instead, that the
procedure must provide reasonable
coitliclence that the migration of
hai ardous constituents from a regulated
unit into and through the aquifer will be
indicaed. (The reference to hazardous
con ttuents does not mean that this
option only applies to compliance
irionitoririg. the test also applie, to
monitoring parameters nd constituents
In the detection monitoring program
since they are surrogates indicatingihe
presence of hazardous constituents.)
-The t-test protocol will, however, be
used as a general benchmark for
defw .Irt ‘ressonable conlidence” In the
- proposed procedure. If the owner of
operator shows that his suggested teal Is
compar ble to the Student’s t-test in It.
results, then It I. likely to be acceptable
under the.”reasonable onfldenc test.
There may be situation.. bowaver.
where It will be difficult to directly
compare the performance of an
alternative teat to tha t-telJ protocol. In
such cases, the.alternatlv. Last will have
to be evaluated on Its own merits.
EPA would like to give further
specificity to these general aiterta for
evaluating statistical procedures. The
Agency will be analyzlna hi, Issue
further tO see whether more specific
- cited. can be developed. The Agency
hopes to at least provide further
guidance about the kind, of statlatlcal
procedures that could be adequate
:unde th. general aiterls In the.
regulation.. EPA encourages public
comment on this luue.
c. StoLisLlcoJ Procedures for
Cdnrtpliance Man1torh —The basic t-
test protocol sp.clfled In the regulations
• . was not applied to the compliance
monitoring program. The reason for this
Is that EPA believe. • compliance
rnonltorlngprogrimt.moreliketytobe.
- subject to a high “experiment error rsts
than is the detection monitoring
program. Art experirnint error rate -
dependa on the number of individusi
comparisons being made for a facility.
Each Individual comparison of.
constituent at a compliance point to the
concentration limit for that constituent
1, subject to an snot rate (Le.
probability of, false positive) that Is
determined by the slgnl.flcanc. level
used with the test. When ma.ny
Individual comparisons are made, this
error rate is compounded such that the
probability that at least one comparison:
will falsely indicate statistical.
significance will greatly Increase.
EPA expects that the list of
constituent, to be monitored In the
compliance monitoring progr .m , vlll be
greater than that En the detection
monitoring program. The experinient
r1-or rate In such a situation could be
‘ioo high. Therefore, the statistIcal
procedures used in the compliance
mouttoring program have been generally
subjected to the “reasonable
con1idcnce standar .L Where the
number of h zerdous constituents
identified in the compli,ance monitoring
program is not too large, It may be quite
reasonable to use the tte t protocol in
the compliance monitoring program and
such an approach would be encouraged.
di ,Othcr Situations—There will be
other situations where the general
standard rather than the t-teit protocol
should be used to evaluate the owner or
operator’s statistical procedures. One
such aituationoccura whep the
coefficient of variation for the
background data Is greater than 1.0th -
auth a situation Ills quite possible that
the data is not normally distributed. In
that situation the general narrative test
will be used. It Is particularly important
In such a situation toeniüre that any -
statistical procedure used is appropriate
for this distribution of the data.
A second situation that will probably -
requir, the crafting of a specialized
-procedurs Is one In which the
background level of. constituent Ia
below the detectabWty limit of the -
analytical methoda aPed or (a recorded -
as a trace level of the constituent EPA
believe, that appropriat, statistical
• peduscai lb.dev.lop.dInsuc 1
cases. -
Another situation which may bi
confronted. En the compliance
monitoring mode. Involve. point in time
comparisons between upgradlent and - . . -
down d l entgroun4-wat.rumple
analyses. In contrast to comparisons
against previously established
background values. In sItuations where . -
there Is a high temporal correlstion of
• upgradlent end downgr adlerit ground.
water quality, that I . upgradlent and
downgradlent quality varies uniformly
over time, then well to well comparison,
may be judged appropriate by the
RegIonal Administrator. An appropriate
statistical comparison procedure will
need to be estab g ied In PeTmIt. which -
Incorporate such lInt In time
comparisons.
The statistical procedures developed
under the general standard need not
always be more complex than those
used En the ba,lc I-test protocol. For
example, wher. an .Iternativ. -
concentratio’n limit Is a fixed health-
based number which has no variance, a
simpler versIon of th. t-test than the
Cochran’. Approximation of the
Behrens-Ftsher Solution m.y hi used. . -
11, Detection Monitoring Progmm
( 25498I. The last three section.. of
Subpart P (i.e., I 2O4.9 , 2 .4.g9, and
284100) set forth the specific elements
of each type of ground-water monitoring
—
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Federal Register I VoL 47, No. 143 I Monday, July 26, 1982 I Rules and Regulations
and response program. In doing so, these
sections define the specific
responsibilities that an owner or
operator must meet under Subpart F,
Incorporating the appropriate elemcnts
of the other sections of Subpart F.
U hazardous constituents from a
regulated unit have not reached ground
water at the time of permit
consideration, the owner or operator
may receive a detection monitoring -
program permit. The following Is a
description of what such a program will
contain.
a. Pammeters to be montored—The
purpose of a detection monitoring
program is to determine whether a
regulated unit Is leaking. The Regional
Administrator will specify in the facility
permit the constituents or parameters
that must be monitored In order to make
that determination.
The list of parameters to be monitored
may Include indicator parameters, such
as pH. specific conductance, total
organic carbon. or total organic halogen.
These four parameters are the specific
monitoring parameters used in the Part
265 ground-water monitoring
regulations. The list of parameters may
also Include the results of gas
chromatography procedures using
specific detectors, such as GC/ECD or
CC/Fm. Where indicator parameters
are not capable of detecting all known
waste constituents or reaction products
In ground water, the Regional
Administrator may include specific
waste constituents or reaction products
in the list of detection monitoring
parameters.
The basic test that the Regional
Administrator will apply is that the
parameters used must provide a reliable
indication of the presence of hazardous
constituents in ground water. In making
that determination, the Regional
Administrator will address four major
factors. First and foremost, the Regional
Adniinisfrator will consider the types
and quantities of hazardous wastes that
are managed at a regulated unit, and the
concentrations of constituents within
those wastes. The Regional
Administrator will consider whether
those waBtes are inorganic, organic. or
both. The Regional Administrator may
also consider, for example, whether an
organic hazardous waste is a
chlorinated compound, the quantity of
this waste managed at the regulated
unit, and the concentration of
constituents within the waste.
Second. the Regional Administrator
will consider the quality of the Jeachate
as it passes through soil beneath the
waste management area prior to
entering ground water. Because an
accurate prediction of leachate quality,
mobility, stability, and persistence In the
unsaturated zone Is very difflcul this
consideration will often not be critical in
selecting detection monitoring
parameters. However, there may be
situations where approximations of
these leachate characteristics will lead
to rejection of certain Indicator
parameters or may assist In selectIng
others to account for products of
leachate reactions with soil. For
example, the Regional Atb ts1.frator
could choose an inorganic indicator
parameter to detect soil constituents
that may be leached from the soil into
ground water as a result of leakage from
a surface Impoundment containing
highly corrosive wastes. Third the
Regional Administrator will consider the
detectability of the potential monitoring
parameters or constituents. Routine
analytical procedures must yield
accurate concentrations or values for
monitoring parameters If they are to be
usable In detection monitoring
programs. Parameters which are
extremely difficult to measure in ground.
water samples will seldom be specified
by the Regional A 4mI, i trator
regardless of how representative they
are of the waste managed In a regulated
init.
Fourth, the Regional Administrator
will consider the variability of the
concentration or value of a monitoring
parameter In background ground water
that is unaffected by a regulated unit. -
Today’s rules include the use of the
coefficient of variation In selecting
detection monitoring parameters. The
coefficient of variation Is derived by
dividing the standard deviation of a
parameter in background ground water
by the average concentration or value.
As discussed previously In this
preamble, the coefficient of variation
has been included In these rules to
account for the occasionally wide
variation in background ground-water
quality over time. In general, ground-
water quality tends to vary seasonally,
principally due to recharge events, such
as heavy spring rain. By comparing the
average concentration or value during a
gIven year. the Regional Administrator
will draw conclusions about the
potential effectiveness of a detection
monitoring parameter. Monitoring
parameters with large coefficients of
variation will be avoided whenever
possible because It becomes
increasingly difficult to determine
statistically significant changes In
ground-water quality as the coefficient
of variation for a parameter increases.
b. Detection monitoring system—The
owner or operator must Install a ground-
water monitoring system at the
compliance point that complies with
certain basic performance standards.
The monitoring system must Include a
sufficient number of wells, Installed at
appropriate locations and depths, to
yield ground-water samples that
indicate the quality bf ground water
passing through the point of compliance.
This general standard is sImilar to the
Part 265 requirement concerning well
placement In that It places the burden
on the applicant to develop a system
that yields representative samplen
Unlike the Part 265 regulations,
however, today’s regulations do not
require a ‘nininium number of
dowugradient wells. Such a requirement
is not as necessary In today’s
regulations because EPA will be
evaluating the adequacy of the system
during the permit process. EPA expects
that at least three wells, the ,,ilnlmum
number of wells specified In the Part 265
rules, will be needed at moat facilities.
There may be situations. however,
where an adequate job may be done
with fewer wells, The Agency Intends to
issue guidance on ground-water
monitoring that will assist the applicant
on this issue.
EPA anticipates that ground-water
monitoring systems installed at most
Interim status facilities will be sufficient
for detection monitoring In today’s rules.
Systems developed for assessment
monitoring under the interim status
regulations may not, however, be
adequate. For example, such systems
may not have been installed at the
compliance point. The Information
provided by sampling at such wells may.
however, be useful in the permitting
context The applicant may use data
from interim status assessment
monitoring to justify an alternate
concentration limit for particular
hazardous constituents.
As in the Part 285 regulations, today’s
rules provide that monitoring wells may
be placed at the limit of the waste
management area when the facility
Includes more than one regulated unit.
An adequate monitoring system must
also comply with requirements
concerning well installation. The wells
must be cased In a manner that
maintains the Integrity of the monitoring
well bore hole. The casing must be
screened or pe4orated and packed with
gravel or sand, where necessary, to
enable collection of ground-water
samples. The annular space above the
sample depth must be sealed to prevent
contamination of samples and the
ground water. These represent standard
practices that are designed to prevent
contamination of ground-water samples
and to avoid the possibility that a
ground-water monitoring well could
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Federal Register I Vol. 47. No. 143 I Monday July 26. 1982 I Rules and Regulations
become a conduit allowing
contamination Into pound water. The
Part 265 regulations contain a similar
requirement.
c. Establishment of background
values—Under the detection monitoring
program, the owper or operator
determines whether contaminants from
a regulated unit have entered pound
water by comparing the levels of
constituents at the compliance point to
background values for those
constituents. The first step in the
process, then, Is to establish a
background value for each monitoring
parameter or constituent in the facility
permit. In most cases, the background
value Itself will be in the permit. The
Regional Administrator may, however.
specify In the permit the procedure to be
used in calculating background and
Indicate that whatever value results
from that calculation shall automatically
become part of the permit. For example,
the owner or operator may have only
assembled 8 months of background data
at the time the permit Is ready to be
Issued. Rather than wait another 6
months until the rest of the one year of
background data has been assembled.
the Regional Administrator may simply
specify how the additional background
data will be used to calculate the
background value.
The monitoring system used to
establish background ground.water
quality must meet the same general
requirements that the monitoring system
at the compliance point must meet, with
one modification. The well placement
scheme must be designed to yield
samples that represent the quality of
background ground water that has not
been affected by leakage from a
regulated unit. As with the monitoring
system at the compliance point, today’s
regulations do not specify a minimum
number of wells.
Backg ound calculations must be
based on data drawn from the
appropriate wells. The general
guidelines for what wells should be used
In the determination of background
values are In l 264.97(g). The owner or
operator should use those guidelines In
eBtablishing background values (Section
Vlll.D.9. of this preamble explains those
provisions.)
The background values In the
detection monitoring program must be
calculated in a form that Is necessary for
the determination of statistically
significant increases under I 264.97(h).
Thus. In the case of the Student’s West,
the owner or operator would need to
calculate the mean and variance of the
background data.
d. Duty to Monitor at Compliance
Point—Once the detection monitoring
system has been established, the owner
- or operator must sample pound water
at least semi-annually at the compliance
otht during the active life of a regulated
unit (including the closure period) and
the post-closure care period. The
duration of the monitoring program Is
based on the general pound-water
protection strategy discussed esther hi
- this preamble. The frequency of
sampling will be specified in the permit.
As In the interim status regulations,
today’s rules require that sampling must
occur at least semi-annually.
e. Ground Water Flow and
Direction—Each time the pound water
Is sampled at the compliance point, the
owner or operator must determine the
pound-water flow rate and direction In
the uppermost aquifer. Determining the
gradient In the aquifer will enable the
owner or operator to ensure that
upgradient wells continue to be
upgradient and downgradient wells
continue to be downgradlent.
Information on ground water flow rates
can be useful In deciding what the
frequency of monitoring should be and
In devising a corrective action program.
f. Sampling and Analysis
Procedures—The detection monitoring
program must Include procedures for
sampling and analysis that comply with
the general performance standards in
1264.97(d) and 1284.97(e). The owner or
operator must develop sampling and
analysis procedures that involve -
relatively standardized measures for
insuring that samples taken from
monitoring wells are properly handled
to avoid inadvertent contamination from
other sources. Ultimately, the objective
here is to provide reasonable confidence
that the samples taken will reflect true
ground water quality. The procedures
must address: (1) The procedures for
obtaining samples from ground water
monitoring wells; (2) procedures for
preserving the samples for shipment to
the laboratory; (3) the analytical
procedures to be followed in analyzing
samples; and (4) the “chain of custody”
procedures to be used to prevent loss or
mislabeling of samples during shipment
and analysis. EPA Intends to Issue
guidance on these topics.
The detection monitoring program will
also indicate what analytical methods
will be used In analyzing ground water
samples. The general standard in
S 264.97(e) requires that the methods be
appropriate for pound water sampling
and provide sri accurate estimate of the
presence of hazardous constituents in
pound water samples. Some
commenters have asked EPA to indicate
what the analytical methods should be.
To assist owners or operators. EPA Is
revising Test Methods for Evaluating
Solid Waste (SW-846) to Include
guidance on acceptable analytical
methods and procedures for ground.
water sample analyses. This guidance
should assist In the development of
appropriate analytical methods for both
the Part 265 and Part 264 monitoring
requirements.
g. Determining Statistical
Sign fficance—Each time the owner or
operator takes samples at the
compliance point he must determine
whether the level of the monitoring
parameters and constituents Is above (or
below In the case of pH) the background
values for those parameters and
constituents by an amount that is
statistically significant. The appropriate
statistical procedures to be used are
specified In 1264.97(h) and will depend
on the pattern of the background data.
The permit will specifically detail the
statistical test that will be used. (See
Section VUID.1O of this preamble for a
description of the statistical
procedures.)
The owner or operator must complete
the statistical analysis within a
reasonable period of time. EPA has not
specified a minimum period of time
because It recognizes that the
reasonableness of such a time period
will depend on several factors.
Therefore, the regulations provide that
the Regional Administrator will specify
a time period within which the
statistical analysis must be completed
after considering the two key factors
that could Influence the time needed—
the complexity of the statistical test and
the availability of laboratory facilities to
perform the analysis of pound water
samples.
h. Response to Finding Statistical
Significance—If the comparison
between data at the compliance point
and background values shows that a
statistically significant Increase (or
decrease in the case of pH) has
occurred, there Is a presumption that a
regulated unit Is leaking. The owner or
operator must pursue one of two options
In responding to that finding.
The first option is to seek a permit
modification to establish a compliance
monitoring program (and perhaps a
corrective action program) at the
facility. Such a permit modification
would be justified by the “new
Information” cause for modification
under I 122.15(a)(2). The owner or
operator must take several steps as part
of this option. Flzs he must notify the
Regional Administrator In writing within
seven days that he has detected a
statistically significant Increase at the
compliance point. The notification must
Indicate what parameters or
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Federal Register I Vol. 47, No. 143 / Monday!_Ju!y 26, 1982 I Rules and Regulations
32307
constituents have shown an increase.
Second. he must sample the ground
water at all monitoring wells for a1l
constituents Identified In Appendix VIII
of Part 281. ThIs will identify all
potential hazardous constituents In the
ground water.
Third. the owner or operator must
begin to take additional samples to
determine background values for all
constituents detected at the compliance
point. The owner or operator may be
seeking to establish an alternative
concentration limit (ACL) for some of
the hazardous constituents. lie must.
however, collect some background data
on such constituents to be ready In the
event that the AD. cannot be justified
and that ‘no Increase over background”
will become the concentration limit The
owner or operator must comply with the
other general performance standards for
ground water monitoring systems, for
determination of background, and for
preparing data Ins form necessary for
statistical analysis when developing this
data.
Fourth. the owner or operator must
submit a permit application for a
compliance monitoring program within
90 days. That application should
indicate what hazardous constituents
iiave been found In ground water. For
each such constituent found, the owner
or operator must Indicate what type of
concentration limit (background value,
NIPDWS level, or alternate
concentration limit) should be
established. The owner or operator must
also describe any appropriate changes
to be made to the ground water
monitoring system, the monitoring
frequency, sampling and analysis
procedures or methods, or statistical
procedures. In most cases, the permit
applicant will at least be modifying the
constituents to be monitored, and
therefore, the analytical methods to be
used. Monitoring frequency Is also likely
to be Increased. Changes to the
statistical procedures may also be
needed. depending. for example, on the
variance found In background data. In
most cases, the applicant will not need
to make substantial changes to the
ground-water monitoring system.
Given that the modifications to the
ground water monitoring program will
primarily be ones involving changes in
operating procedures. EPA believes that
the applicant should be able to submit
the application within 90 days.
If the owner or operator wants the
Regional Adminlatrator to establish
alternative concentration limits, the
information needed for the application
will be more extensive, As Indicated
earlier in this preamble. EPA does not
believe that permit issuance should be
unreasonably delayed to allow an
applicant to begin to collect data
necessary for an AD. showing.
Applicants who anticipate that they will
want to pursue an AD. demonstration
should do some advance plpnnIng to
allow them to make the demonstration
quickly.
In recognition of the fact that an
application requesting an AC!. will
necessarily contain more Information
and analysis than an application based
on the other types of concentration
limits, however, today’s regulations
allow owners and operators additional
time to submit the Information
necessary to justify an ACL WIthin 90
days after detecting a statistically
significant Increase In the concentration
of detection parameters or constituents
at the compliance point the owner or
operator must indicate whether he
intends to seek an AC!. variance for
each of the Appendix VIII constituents
that have been found In the ground
water at the compliance point. He
indicates his choice by either proposing
a concentration limit (background value
or NIPDWR limit) or giving notice of his
intent to seek an ACL. The owner or
operator has an additional 80 days to
submit the actual Information necessary
to support each of the ACL’s sought
Timely AC!. demonstrations will be
evaluated in the context of the
permitting process on the compliance
monitoring program. EPA will indicate
Its decision on the merits of the AD.
demonstration when It Issues the
compliance monitoring permit The
permit will either contain a background
value or NIPDWR limit (If EPA rejects
the AD. demonstration) or It will
contain an AD. (which may be equal to
or less than the one proposed by the
applicant).
Fifth, the owner or operator must
sublit within 180 days an engineering
feasibility plan for a corrective action
program. Once the monitoring indicates
that a regulated unit Is leaking and that
hazardous constituents are present In
the ground water, EPA believes that It Is
reasonable to assume that corrective
action Is likely to be necessary. In many
cases, the Regional Administrator will
be specifying a corrective action
program in conjunction with a
compliance monitoring program.
Therefore, EPA believes that the owner
or operator should submit a preliminary
proposal for corrective action at the
facility In conjunction with an
application for a compliance monitoring
program.
This plan does not need to detail
every aspect of the program but rather
should be an engineering feasibility plan
showing what general corrective action
measures can be taken. The plan should
be sufficiently specific to allow EPA to
determine that the corrective action
program proposed could work at the
facility. Recognizing that this plan could
take some time to prepare, EPA has
given the applicant 180 days to submit It.
The regulations also Indicate that
there are two situations where such a
feasibility plan will not be necessary.
First, If the only hazardous constituents
are those listed In Table 1, and If the
concentrations of those constituents at
the compliance point are below the
contaminant limits specified In Table 1.
the likelihood that corrective action will
be needed is less clear. Therefore. there
Is no automatic requirement for a
corrective action feasibility plan in
those cases. Second, If the owner or
operator has requested an AD. for
every Apendix VIII constituent
significantly above-background, or
above appropriate NIPDWS levels found
in ground water at the compliance point.
then he is not required to submit the
engineering feasibilIty study. U an AD.
were granted for all of these
constituents, It would not necessarily
follow that e corrective action program
would have to be established. Therefore.
where such a comprehensive request for
ACL’s has been made, the Regional
Administrator will make a decision on
the ACL demonstration before requiring
the submission of information necessary
for a corrective action program.
The owner or operator has another
option for responding to evidence that
there Is a statistically significant
increase (or decrease in the case of pH)
at the compliance point. The owner or
operator may submit a report to the
Regional Administrator indicating why
he believes that the perceived Increase
was caused by a source other than a
regulated unit or was the result of error
In sampling, analysis, or evaluation.
This report should be accompanied by
additional monitoring data which
Indicates that the values used In the
Initial analysis of statistical significance
are incorrect. Since this report is an
action that may substitute for the
submission of a permit modification
application as described above, It must
be submitted wIthin 90 days.
The owner or operator may submit the
report just described and a permit
modification application. The owner or
operator may also choose to file the
report In lieu of the permit modification
application, If he does so, however, he is
subjecting himself to a risk. Such a
report can only operate to exempt him
• from the general duty to file a permit
modification application If It clearly
indicates that the contamination is from
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32308 Federal Register I Vol. 47, No. 143 Monday, July 26, 1982 / Rules and Regulations
another source or Is due to error. If the
report fails to demonstrate such facts
and the owner or operator has not filed
an application for a permit modification.
he Is In violation of his permit. EPA
could, therefore, take enforcement
action If It finds such a report to be
Inadequate. Therefore, where the owner
or operator knows that the data on
which he bases his report Is somewhat
questionable. It may be prudent to also
file a permit modification application.
L Duty to Modify Program—The
owner or operator has an ongoing
responsibility to make sure that the
detection monitoring program continues
to comply with the requirements of this
section. If he determines that It does not
meet the general standards contained In
this section, he should Initiate a permit
modification proceeding to make
appropriate changes. For example. If his
monitoring of ground-water elevation
Indicates that the gradient of the
uppermost aquifer has . shifted. he should
apply for a permit modification to make
appropriate changes to the ground-water
monitoring system.
J. Duty to Ensure Compliance with the
Ground- Water Protection Standard—
The monitoring and response program of
Subpart F provides for a graduated
response over time to the problem of
ground-water contamination as the
evidence of such contamination
increases. Since there is a significant
likelihood that ground-water
contamination problems will appear
some time into the active life of a
regulated unit or the post.dosure care
penod, EPA wants to make sure that
owners or operators engaged in current
waste disposal will remain at the faclhty
to manage any plume of contamination
that emerges from a regulated unit. For
example. EPA wants to avoid a situation
which would allow an owner or
operator who has not detected -
hazardous constituents In ground water
to continue to operate while he faces the
relatively light burdens of the detection
monitoring program and to walk away
once significant problems appear in
ground water. To clarify a permittee’s
responsibilities. EPA is amending
* 122.21(d) which sets forth the scope of
the RCRA permit requirement The
amendment clarifies that owners and
operators of hazardous waste
management facilities must have
permits during any post-closure care
period for the facility and during any
compliance period for the facility as
well as during the active life of the
facility. EPA is making a conforming
change to I 122.10(b) to clarify that
closure activities and post-closure care
both must be undertaken pursuant to a
permit.
One way of avoiding the possibility
that the owner or operator would choose
not to operate under a permit once
contamination appeared Is to provide a
specific condition In the Initial permit
for the facility which obligates the
owner or operator to monitor for and
clean up hazardous constituents In the
future as may be necessary to achieve
the ground water protection standard.
EPA believes that such a peqnit
condition constitutes sound regulatory
policy. EPA believes that the right to
dispose of hazardous waste carries with
It a correlative duty to Insure that future
contamination does not cause
environmental problems. Thus, a fufure
responsibility should be condition of a
present authorization to operate.
Today’s regulations indicate that a
detection monitoring program will
Include a general permit condition
requiring the owner or operator to take
monitoring and corrective action
measures that are necessary to assure
compliance with the pound water
protection standard. The exact nature of
that commitment will be fleshed out In
later permit proceedings If there is a
need to take additional monitoring and
corrective action measures.
12. Compliance Monitoring Program
(I 26f.99). Once the owner or operator
determines that there are hazardous
constituents from a regulated unit, In
ground water, he must establish a
compliance monitoring program at the
facility. Many of the requirement. of this
program are analogous to those required
for the detection monitoring programs.
The discussion here will only elaborate
on those elements of the compliance
program that differ from the detection
program.
a. Ground Water Protection
Standard—The ground-water protection
standard for a facility will be
established in the compliance
monitoring program permit. The
Regional Administrator will specify in
such a permit the four elements of the
ground-water protection standard: (1)
The hazardous constitutents (I 264.93);
(2) the concentration limits for those
constituents (I 204.94) (3) the
compliance point (* 264.95): and (4) the
complliance period (I 204.96). The
criteria used to establish these permit
conditions are discussed In other
sections of this preamble.
b. Compliance Monitoring System—
The owner or operator must establish a
monitoring system at the compliance
point that will be used to determine
whether the ground water protection
standard is exceeded. The ground water
monitoring system must satisfy the same
general performance standards on well
placement and Installation (e.g., casing)
that apply to detection monitoring
systems Installed at the compliance
point.
c. Concentration Limits—The levels of
hazardous constlluents found at the
compliance point must be compared to
the concentration limits established In
the ground water protection standard.
The concentration limit for a constituent
will be specified In the permit either In
relationship to the background
concentration of the constituent or as a
specific concentration for the
constituent In both cases, statistical
comparison procedures will be util zed.
In the first case, the concentration
limit will be specified to allow for a
determination of a statistically
significant Increase In the concentration
of a constituent at the compliance point
over the concentration of that
constituent In ground water unaffected
by a regulated unit. In most situations.
the background concentration of a
constituent will be specified in the
permit as a result of pooling upgradient
sample analyses over time, principally
to account for seasonal variations In the
naturally occurring pound waler
quality.
Where there Is a high temporal
correlation between ground water
‘quality at the upgradient and
downgradient monitoring wells, ft may
not be necessary to require the pooling
of samples over time to account for
seasonal variations. In such a situation.
It would be acceptable to compare
upgradient and downgradient pound.
water quality each time the ground
water is sampled. Accordingly, today’s
regulations provide that the Regional
Administrator may allow for such a
“single-point-in-time” comparison of
upgradient and downgradient samples
as an alternative to making comparisons
of downgradient sampling results
against a set background level that was
based on a pooling of samples over time.
Where this option is used, the Regional
Administrator will specify in the permit
a procedure for how background values
will be calculated each time sampling
occurs rather than specific background
values.
The Agency has very limited
Information regarding the prevalence of
temporal uniformity in pound water
quality for hazardous constituents. The
Agency Invites comments regarding this
phenomena where concentrations of
constitutents th ground water vary over
lime but where the amount of variation
at two different monitoring wells in the
aquifer Is virtually the same. Based on
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32309
such further Information, the Agency
may expand the use of the method Just -
described for detervtththig whether
statistically significant Increases occur
In these regulations.
In the other case, the concentration
limits specified In the permit will be
either an MCI., for those constituents
listed In Table 1 under 5264.94. or an
ACL (alternate concentration limItl
established under 5 284.94(b).
When the concentration limit Is one of
the maximum concentration limits
(MCI.’.) In Table 1, a problem arises
when the MCI. Is quite close to the
background value of the constituent.
The MCI. may be within the normal
range of fluctuating background quality.
Thus, when the monitoring system picks
up a value that exceeds the MCI., It Is
not possible to tell whether the Increase
was due to leachate from a regulated
unit or from normal fluctuations In
background.
To account for this possibility, today’s
regulations provide that, when an MCL
Is within the normal range of
background fluctuations of a
constituent, the background value will
be used as the concentration limit. This
approach will provide reasonable
confidence that corrective action will be
triggered by an Increase over an MCI.
only when the Increase was not caused
by normal background fluctuations.
The test used to determine whether
the MCL or the background value will
be used relies on a statistical concept. If
analysis Indicates that the MCL does
not exceed the background value of a
Table I constituent by a statistically
significant amount, then the
concentration limit will be based on the
background value of the constituent. In
addition, if the background value for a
constituent Is greater than the MCI., the
background value will be used.
.The system used for the collection of
background data must meet the general
performance standards applied to such
systems. The data must be drawn from
the proper wells as outlined under
* 264.97(g) and must be expressed In a
form necessary for the determination of
statistically significant Increases under
2 64.97(h).
d. Compliance Point Monitoring.—.
Under a compliance monitoring
program. the owner or operator must
sample ground water at the compliance
point throughout the compliance period
to determine whether a concentration
limit is exceeded. Since a compliance
monitoring program Is used when
hazardous constituents are In the ground
water, EPA believes that sampling must
be more frequent than It I. In the
detection monitoring program. EPA has,
therefore, required that sampling should
occur at least quarterly. The data
collected must be expressed In a form
necessary for the determination of
statistically significant Increases.
a. Ground Water Flow and
Direction—The owner or operator must
determine ground water flow rate and
direction In the uppermost aquifer each
time samples are taken at the
compliance point. The rationale for this
requirement Is explained in the
preamble to the detection monitoring
program.
L Duty to Search forAddltlanoi
Hazardous Constituents—Since the
hazardous constituents In a regulated
unit will leak into ground water at
different rates, It can be expected that
the quality of leachate entering the
ground water will change over time.
Therefore, an assessment of leachate
quality at the time that the leading front
of the plume reaches the compliance
point will not necessarily reflect the
range of hazardous constituents that
will appear at the compliance point
during the compliance period.
To account for this fact, owners or
operators are required to sample and
analyze the ground water to determine
whether additional hazardous
constituents besides those Identified In
the permit are appearing at the
compliance point. In order to make this
determination, the owner or operator
must analyze the ground water samples
for Appendix VIII constituents at least
annually. If this analysis reveals -
constituents that had not been found In
the sampling used In the Initial
determination of the list of hazardous
constituents, then the owner or operator
must report his findings to the Regional
Administrator. It will then be up to the
Regional Administrator to reopen the
permit to add hazardous constituents
and appropriate concentration limits to
the facility permit. The cause for this
permit modification would be the new
Information that the permittee has found
additional constituents in the ground
water. See * 122.15(a)(2).
g. Sampling and Anoioysis
Ptocedures—As in the detection
monitoring program, the owner or
operator must develop sampling and
analysis procedures and methods that
satisfy general performance standards
set forth In the regulations. As described
In the preamble discussion of the
detection monitoring program, those
standards are designed to assure that
the program develops accurate and
reliable Information on ground-water
quality at the facility.
Ii. Determining Statistical
Significance—Each time samples are
taken at the compliance poInt, the
owner or operator must determine
whether there Is a statistically -
significant Increase at the compliance
point over the concentration limit for
each constituent. The procedures to be
used must meet the requirements In
5264.97(h ). As the preamble dIscne
of that section indicates, different
criteria apply to statistical procedures
used In the compliance monitoring
program than apply in the detection
monitoring program. The statistical
analysis must be performed within a
reasonable period of time, as discussed
In the preamble to the detection
monitoring program.
L Response to Finding of Statistical
Sign, Icance—If the analysis Indicates a
statistically significant increase over a
concentration limit, the owner or
operator must respond in a manner that
Is analogous to what Is required in the
detection monitoring program when a
statistically significant Increase Is
found. The owner or operator must
notify the Regional AaimInI.trator In
writing within seven days about what
constituent. have exceeded their
concentration limits. He must also begin
to prepare an application fore permit
modification to establish a corrective
action program for the facility, unless
one has already been established In the
permit. Where the monitoring data
developed during the course of the
compliance monitoring program provide
the basis for knowing that concentration
limits are exceeded, the cause for this
permit modification would be the new
Information of the increase over a
concentration limit. See * 122.15(a)(2).
The owner or operator has 90 days to
submit an application for a corrective
action program. EPA believes this Is a
reasonable time frame. particularly In
light of the fact that In the normal course
of permitting he will have aleady
submitted an engineering feasibility
study for corrective action as part of the
deliberations over his compliance
monitorIng program.
The owner or operator will not have
submitted an engineering feasibility
study previously, however, If he had
attempted to make ACL demonstrations
for all Appendix VIII constituents fov d
at the compliance point or If the only
constituents found were NIPDWR
constituents which were not above
levels found In Table I under * ggte4.
(These two situations are discussed in
Section VILD.11.h. of this preamble.)
Where these two situations arise, the
regulations allow the owner or operator
180 days. rather than 90 days, to submit
the application for a corrective action
program.
The application for the corrective
action program must provide suScient
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32310 Federal Register I Vol. 47, No. 143 I Monday, July 26, 1982 I Rules and Regulations
information to allow the Regional
Administrator to make two findings.
First, the Regional Administrator must
be able to determine that the corrective
action proposed by the applicant will be
able to bring the facility back into
compliance with the ground-water
protection pt nd ,d for the facility. This
will require a detailed description of
how the applicant intend. to remove or
treat the pound water. This Information
should also describrany treatment
processes that the owner or operator
intends to use on pound water that Is
removed from the aquifer. EPA Is
particularly concerned that units used to
treat these waters meet any applicable
requirements of the hazardoui waste
regulations.
Second. the application must describe
a pound-water monitoring program that
will be used to demonstrate the
effectiveness of the corrective action. In
many cases, this program will be
essentially the same as the compliance
monitoring program, because that
program was the one used to determine
that the ground-water protection
standard was exceeded. Some
modifications to the compliance
monitoring program may be appropriate,
however, to demonstrate the
effectiveness of corrective action. For
example. It may be necessary to
Increase the frequency of monitoring or
to Increase the number of wells at or
near the compliance point In those areas
where the plume appears to be
concentrated. In order to fully evaluate
the effectiveness of the corrective action
program, owners or operators may wish
to install additional monitoring wells
beyond the compliance point.
As In the detection monitoring
program, the owner or operator may file
a report along with, or in lieu of. the
permit modification application that
explains why the statistically significant
increase was caused by a source other
than a regulated unit or was the result of
error In sampling, analysis, or
evaluation. As In the detection
monitoring program. the owner or
operator takes the risk that he will
ultimately be in violation of his permit If
he files the report In lieu of a permit
application and the report fails to
demonstrate that the statistically
significant increase was not caused by
leachate from. regulated unit.
f. Duty to Modify Progrwn—As In the
detection monitoring program, the
owner or operator has an ongoing
responsibility to make sure that the
compliance monitoring program
continues to comply with the
requirements of this section and to seek
permit modifications when needed. This
provisions Is explained In more detail In
the preamble for the detection
mOnitoring program.
k. Duty to Ensure Compliance with
the Ground-water Protection
Standards—As described In the
preamble for the detection monitoilng
program, EPA believes that the current
right to dispose of waste carriers with It
a correlative duty to control adverse
effects from that activity that appear hr
the future. Therefore, today’s regulations
Indicate that the facility permit will
include a general condition obligating
the owner or operator to conduct future
monitoring and corrective action
measures as may be necessary to
achieve the pound-water protection
standard.
13. Corrective Action Progmm
( 284.1X). If hazardous constituents
from a regulated unit exceed the ground-
water protection standard established
fora regulated unit, the owner or
operator must have a corrective action
program designed to bring the unit back
into compliance with the standard. A
corrective action program may stand on
Its own In the permit or may be
specified in conjunction with a
compliance monitoring program. The
following describes the general elements
of a corrective action program.
a. Ground-water Protection
Standard—The goal of the corrective
action program Is to bring the regulated
unit into compliance with the pound-
water protection standard. Accordingly,
the elements of the pound-water
protection standard will be specified In
the permit Including the list of
hazardous constituents, the
concentration limits for each
constituent, the compliance point. and
the compliance period.
b. Objeciive of Corrective Action—
While the general goal of the corrective
action program is to achieve compliance
with the pound-water protection
standard, today’s regulations Indicate
that this goal must be achieved by
removing the hazardous constituents or
treating them In place. This Is consistent
with the general pound-water
protection strategy described earlier In
this preamble. EPA believes that the
appropriate way to protect ground water
Is to prevent generation of hazardous
waste leachate. where feasible, and to
remove such leachate from the
subsurface environment when ft
appears. EPA believes that In situ
treatment of hazardous constituents is
analogous to removal because It also
provides long/term protection of human
health or the environment. While the
Agency recognizes that In situ treatment
Is an emerging technology, with
chemical and biological techniques
applied In only limited circumstances to
date, In situ treatment may be an
effective corrective action strategy.
EPA does not believe that measures
which only prevent migration of
hazardous constituents In the ground
water for some period of time provide
an adequate level of protection. Such
approaches simply defer adverse
pound-water effects until some later
time. Therefore, EPA does not believe
that measures which only modify the
gradient In the aquifer or create barriers
(e.g., slurry walls) provide a fully
adequate solution under the Subtitle C
program. Such measures can, however.
be combined with other measures. euch
as counterpurnping. to constitute an
adequate corrective action program.
The regulations do not describe In
great detail the specific measures that
must be taken for corrective action.
Corrective action measures are highly
dependent on site-specific factors.
Moreover, the state of the art of ground-
water cleanup will probably Improve
substantially In the next few years. EPA
does not want to establish rigid
guidelines for corrrectlve action that
stifle innovation In this area. Therefore.
EPA will rely on the broad performance
standards established In I 204.100 to
evaluate specific corrective action
measures.
c. Timing of Correct! reAction—EPA
‘reccgnlzes that Is will take time to
Install correctIve action measures and
that the time needed will depend on
site-specific factors. Therefore, today’s
regulations do not attempt to establish a
minimum time period for Installing
corrective action measures. Instead, the
regulations simply provide that
corrective action must begin within a
reasonable period of time to be specified
in the permit by the Regional
Administrator.
Some permits may combine the
elements of the compliance monitoring
program wIth the corrective action
program. In such a situation, the
appropriate response to the discovery of
a statistically significant Increase Is the
Initiation of the approved corrective
action program rather than submission
cia permit modification application. in
I 264.100(c), today’s regulations make
this point clear.
Corrective action must extend as long
as Is necessary to achieve the ground-
water protection standard. EPA has not
specified a minimum time limit within
which the standard must be achieved.
EPA believes that any such limit should
be based on site-specific factors. EPA
anticipates that the owner or operator
may be switching back and forth
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32311
between the compliance monitoring end
corrective action mode during the course
of the compliance period as ground-
water quality fluctuates above and
below the concentration limits specified
in the permit. EPA should be able to
specify in the permit the conditions
under which these shifts In the mode of
the monitoring and response program
take place such that permit
modifications will not be necessary.
Corrective action must continue
through the compliance period to the
extent necessary to meet the ground-
water protection standard. 11 corrective
action Is still needed at the end of the
compliance period, the owner or
operator must continue the corrective
action until It has achieved the
standard. In defining what It means to
“achieve” the standard, EPA must
indicate how long the owner or operator
must demonstrate through monitoring
data that the ground-water protection
standard has not been exceeded. In
order to provide an adequate margin of
safety, EPA has provided that the
ground-water protection standard must
not be exceeded for a period of three
bonsecutive years before the corrective
action program can be terminated.
d. Duty to Clean Up Con lolnin allan
Past the Compliance Point—At the time
that EPA considers a regulated unit at
an existing facility for permitting, it is
possible that a plume of contamination
will have migrated beyond the
compliance point. Clearly, such a plume
of contamination can present a risk of
adverse effects on human health and the
environment. Corrective action
measures designed to remove the plume
of contamination at the compliance
point will be at least partially successful
In controlling contamination beyond the
compliance point, but there is no
guarantee that such a plume will be
completely removed.
Some or all of the plume may be
within the facility property boundary
and thus within the steal jurisdiction of
Section 3004. Therefore, It Is within
EPA’. authority to require cleanup of
this contamination under the permit.
EPA has decided that It is reasonable
to require the owner or operator to take
corrective action measures to clean up a
plume (or portion of a plume) of
contamination that has migrated beyond
the compliance point but not beyond the
property boundary as a condition for
receiving a permit under today’s
regulations. EPA’s decision Is based on
several considerations. First, the
existence of such a plume may
constitute a very real and present
danger to human health and the
environment. In fact, the proximity of
such a plume to the facility property
boundary indicates that it may present a addressed under other authorities such.
threat that Is even more imminent than as CERCLA.
that presented by the portion of the Accordingly, today’. regulations
plume that is just arriving at the require that the owner or operator take
compliance point at the time of permit correctIve action to dean up .igi’fficant
consideration, plumes (or portions of plumes) of
T1 1 e fact that the plume can be linked contamination from regulated units that
to wastes placed before these are In the ground water between the
regulations were Issued does not negate compliance point and the facility
the fact that the existence of the plume property boundary at the time of permit
Is a present condition that may cause consideration. The regulations require
present and future harm to human (in 281.91(a)) that a corrective action
health and the environment if the plume program is necessary If hazardous
Is allowed to continue to migrate. In constituents under 264.93 exceed
requiring the corrective action program concentration limits under 0 264.94 in
to address the plume beyond the the pound water between the
compliance point, EPA I. not Imposing compliance point and the downgradlent
new requirement. directly on past facility property boundary, The nature
practices, but rather Is requiring the of that corrective action program is
owner or operator to address a current defined In 0 264.100(c).
ground-water contamination problem ‘. The Regional Administrator will
that may cause present and future ,- f determine whether there Is a need to
damage.
Second, this approach, in conJunctior i- dean up a plume beyond the compliance
with the decision about what constitutes point using some of the same general
a regulated unit, provides fair notice to criteria used to determine whether the
the owner or operator about what his groundwater protection standard ls.
exceeded. Thus, corrective action is
responsibilities will be. Th jrgund
water protection standai 1 In today’s .!rlssered If hazarao ii onsutiients
guTitlon. only appiieiiojiwices of under 0264.93 from the regulated unit
contamination from regulated units (I.e., exceed concentration limits under
ánlts that receive waste fter
4gC Tbese same general cfileria
be used to define when the
the owner or operator can show that a corrective action Is complete. Corrective
jiartlcular’plume does not originate frozi action measure may be terminated when
a regulatid unit, the permit would not hazardous constituents no longer exceed
hqulre him to clean up such a plume: their respective concentration limits.
(EPA could, of course, seek cleanup of The corrective action program to
such plumes under other authorities, clean up a plume beyond the compliance
Including Section 7003 of RCRA.) Thus, point must be Initiated and completed
the regulations provide the owner or within. reasonable period of time,
operator with a reasonable time period considering the extent of contamination.
(I.e., the time between the Issuance of The permit will specify the measures
today’. regulations and their effective that the owner or operator will take to
date) to define the units (and thus the satisfy this provision and will set forth a
potential plumes) that will be subject t schedule for when these activities must
the requirements of this Section. be completed. These measures may be
Third, this approach links the scope of carried out In conjunction with other
the owner or operator’s responsibility to corrective action measures designed to
the scope of his control. The property achieve compliance with the ground-
boundary defines the area within which water protection standard. In
the owner or operator can feasibly I 264.100(d), today’s regulations also
conduct corrective action measures such Indicate that the monitoring program
as counter-pumping. In some situations, needed to determine whether the
it might also be possible for 1dm to ground-water protection standard is
obtain permission to enter neighboring .k.eg achieved should also be capable
property to conduct corrective action to of determining whether 1 284.100(e) is
reach a plume that has migrated off-site. being met where there Is a plume from a
EPA has not required, however, that the regulated unit beyond the compliance
owner or operator attempt to dean up point.
the portion of a plume from a regulated Today’s regulations do not specify
unit that has migrated beyond the that the facility property boundary, for
jacllity property boundary because there purposes of this provision, Is the
Is no gu antee that the owner or boundary in existence at any particular
operator could obtain such permission. — point in time. While EPA expects that, In
It is Inappropriate, therefore, to impose most cases, a facility’s property
this as a general requirement for all boundary will not change substantially
facilities. Plumes migrating beyond the between the effective date of these
property boundary could, however, be regulations and the date of permit
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32312 Federal Register I Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations
Issuance, It Is possible that an owner or
operator may sell a piece of the property
during that Interim period. EPA Is
concerned that today’s regulations
should not create an Incentive for an
owner or operator to sell pieces of the
facility property in order to avoid the
responsibility of cleaning up phimes (or
portions of plumes) of contamination
under this provision.
Accordingly, EPA seeks public
comment on how ft can better define the
concept of the facility property
boundary to avoid such undesirable
results. Specifically, EPA requests
comment on whether the regulations
should require corrective action at
permitting for any plume (or portion of a
plume) that Is within the facility
property boundary as it existed on the
effective date of these regulations, the
date that the permit application was
submitted, the date of permit Issuance.
or some other point In time.
e. Corrective AcLion Monitoring—The
corrective action program must include
a monitoring program That is capable of
demonstrating that the corrective action
measures have been successful. The
monitoring program should be based on
the compliance monitoring program of
I 264.99, sInce this Is the program that Is
designed to determine compIi tnr . with
the ground-water protection standard.
Where a compliance monitoring
program is established in the same
permit as the corrective action program.
or has been established In an earlier
permit, such a program should be
sufficient for the corrective action
monitoring. In some cases, however, ft
may be necessary to have more frequent
monitoring or to have a different
configurati.n of wells during the
corrective action stage than during the
compliance monitoring stage. The
Regional Administrator will specify In
the facility permit the monitoring
program to be used. It must be at least
as effective as the compliance
monitoring program In determining
whether the ground-water protection
standard is exceeded.
f. Reporting—Todays regulations
provide that the owner or operator must
report In writing semi-annually on the
effectiveness of the corrective action
program. EPA believes this requirement
is reasonable In light of the fact that the
permit may not specify when corrective
action must be completed. EPA believes
that an ongoing reporting requirement is
needed under these circumstances to
ensure that the owner or operator does
not simply continue to Implement
measures that are not achieving the
ground-water protection standard.
K Design and Operating Standards
General Discussion (Port 264. Subparts
1. Introduction. The Part 264
regulations promulgated today for
surface Impoundments. piles, landfills.
and land treatment units used to treat,
store, or dispose of hazardous wastes
include a set of design and operating
standards in Subparts K-N in addition
to the ground-water protection
requirements In Subpart F.The design
and operating standards are of two
types. First Is a set of standards that are
analogous and. In some cases. Identical
to the Interim statutes standards that
have already been established for these
units In 40 CFR Part 285. These
standards generally require sound
operating practices. Second isa set of
new and generally more rigorous
standards that emphasize
environmentally protective design and
construction features as well as
complementary operating and
maintenance practices. This preamble
discussion will focus on the latter set of
standards.
In developing the design and
operating standards. EPA has
considered .11 of Its previous rul I ’ 4 ng
activities (see the discussion in section
II of thi, preamble) and the public
comments received as part of the
rulemaking process. While the
comments submitted to EPA were by no
means uniform, the following general
guidelines appear to reflect a broad
consensus and, In EPA ’s opinion, a
sound approach to writing the design
and operating standards (as well as the
Subpart F ground-water standards).
(1) The standards should reflect
clearly articulated regulatory goals.
(2) The standards should be
understandable by the regulated
community and the general public and
capable of being administered
efficiently by permit-Issuing authorities.
(3) The standards should require
different units to achieve consistent
environmental results, while providing
ample flexibility for site-specific factors
to be considered during the perinftth*g
process.
(4) The standards should be specific
enough to provide as much certainty as
possible, but, again, should be flexible
enough to allow environmental results
to be achieved in the manner that is
most coat-effective for a specific
combination of wastes, unit, and
location and that does eot stifle
Innovation.
Accordingly, the major feature of the
Subparts K-N regulations promulgated
today Is a set of design performance
standards. The standards clearly set
forth the environmental results to be
achieved (e.g., there must be no
migration of wastes from a landfill
during Its active life) In terms of
generalized design requirements (e.g. a
landfill must have a liner to prevent the
migration of wastes from the landfill
during Its active life).
The design performance requirement
sets forth general performance goals
(e.g.. a liner must have appropriate
chemical properties and sufficient
strength and thickness to prevent
failure). However, EPA recognizes that
there are many ways to achieve such
goals. Therefore, detailed specifications
are not set forth In these rules but.
rather, are left to be determined during
the permitting process. EPA has
developed In the past and will continue
to develop technical manuals and
guidance documents to assist permit
applicants and permitting authorities In
evaluating the appropriateness of
various equipment, materials, and
designs in the context of specific units.
wastes and locations (see the discussion
In Section V I I. Es. below.)
The design and operating standards
generally apply to all surface
lmponMm nts, waste piles, land
treatment units, and IandFilk , Including
both new and existing units. However.
portions of units on which wastes have
been placed prior to permit Issuance are
exempt from certain design
requirements which would require
burdensome and possibly hazardous
rebofitting of the units. (See Section VII
E.G. below.) Furthermore, the regulations
provide a waiver from some design and
operating standards If the permit
applicant demonstrates that there will
never be any ground water or surface
water contamination If the waiver is
granted.
2. Major Feolwes of the Design and
Operating Standards. The regulatory
goal adopted In the design and operating
standards is to minimize the formation
and migration of leachate to the
adjacent subsurface soil or ground
water or surface water. Thus, while the
ground water protection requirements
are intended to result In detection,
evaluation and, If necessary, correction
of ground water contamination, the
design and operating standards we
Intended to minImi.e the possibility of
such contnin4n tion. Thus, these two
sets of standards are complementary.
One set Is preventive; the other offers a
cure for situations In which the
preventive measures have not sufficed
to eliminate threats to human health and
the environment
The regulatory goal of minimizing the
formation and migration of leachate is
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FederalRegister/ Vol. 47, No. 143 ! Monday, July 26. 1982 / Rules and Regulations
32313
achieved differently with respect to -
different units. For land freabnent units,
the design and operating standards
require that hazardous constituents be
degraded. transformed, or Immobilized
within the freabnent zone. Due to the
unique features of land treatment units,
these units are discussed separately
below In Section VILH. of this preamble.
For surface Impoundments, piles, and
landfills, any treatment that occurs Is
usually not Instantaneous and is often
incomplete. (An exception Is -
neutralization surface Impoundments In
which treatment may be very quick and
complete. See the discussion above In
Section IV.B.2. of this preamble.)
Therefore. EPA has assumed in writing
the standards that some hazardous
constituents will be capable of migrating
from these units to adjacent subsurface
soil or ground water or surface water.
For these units, therefore. EPA has
developed regulations to minimize the
rate and volume of waste and leachate
migration. The regulations have the
following key features:
(1) Each impoundment, pile, or landfill
(except existing portions) must have a
liner that is designed and Installed to
prevent any migration of wastes out of
the unit to the adjacent subsurface soil
or ground water or surface water
throughout the active life of the unit.
(2) To miniml.e the potential for
release of hazardous constituents both
during the unit’s active life and after the
unit is closed:
a. Piles and landfills must have
leachate collection and removal systems
(during their active lives and, after
closure, until leacate Is no longer
detected), as well as measures to
prevent run-on of liquids into the unit.
b. Surface impoundments must have
all wastes and waste residues either
removed or solidified at closure. Piles
must have all wastes and waste
residues removed at closure. -
(3) To further minimize post-closure
leaching of hazardous constituents, any
wilt In which hazardous constituents are
not entirely removed or decontaminated
at closure must have a final coverjcap)
placed on top to minimize the
percolation of liquids into the unit. The
cap must be maintained until the end of
the post..closure period.
3. Rationale Underlying the Design
and Operating Standards. In developing
standards for land disposal units, EPA
considered and rejected the option of
promulgating ground water standards In
conjunction with only those operating
requirements already In the Part 265
Interim status standards. EPA expects
that today’s Part 284 ground water
protection standards in Subpart F will.
In most cases, adequately protect human
health and the environment from ground
water contaminatIon. They also address
surface water contamination threats to
some degree, since land disposal units
that contaminate surface water often do
so by leaching waste constituents to
ground water, which then serves as a
conduit to adjacent surface water.
However, EPA concludes that sound
policy as well as the law support an
approach that supplements those
standards, where appropriate, with
design and operating standards that
vnInImI.e contamination threats by
controlling the source of contamination,
I.e.. the unit Itself.
First, at present, the technologies for
detecting and remedying ground-water
contamination, while fairly advanced.
remain subject to error. To detect
ground-water contamination, one must
carefully study the hydrogeologic setting
to properly place monitoring wells.
Because each setting Is unique and often
is heterogeneous, occasional error. in
well placement are inevitable despite
the best efforts of owners and operators
to comply with Subpart F. Furthermore,
the technology of performing corrective
action Is new. The Agency’s and the
regulated community’s experience in
conducting remedlatlon activities
(beyond the feasibility study stage) Is
fairly limited to date. Thus, while
ground-water monitoring and
remediation techniques are important;
activities and thus are appropriately -
required In Subpart F, design and
operating standards will significantly
Increase confidence by reducing the
potential for ground-water
contamination.
Second, corrective action can be
expensive. It may involve pumping and
treating large volumes of contaminated
ground water for many years. In some
cases, the owner or operator may lack
the financial resources to perform the
required corrective action. Elsewhere in
this preamble (Section IV.B.1.) EPA
discusses and invites public comment on
options for financial responsibility
requirements to address this problem.
Any such requirements that might be
promulgated are likely to reduce, but
cannot eliminate entirely, the possibility
that owners or operators of land
disposal units will lack the finances
needed to perform necessary corrective
action. Furthermore, If ground-water
contamination occurs after the owner or
operator has completed all required
post-closure maintenance and
monitoring activities required in his
permit, substantial sums of money may
need to be drawn from the Fund
established In CERCLA or otherwise
expended by the public. Design and
operating practices can reduce this
problem by mIniml?ITlg the amount and
rate of leachate migration to the
subsurface soil and ground water.
For the above reasons, EPA believes
that design and operating standards are
necessary to protect human health and
the environment. EPA emphasizes.
however, that despite the promulgation
of design and operating standards. the
Subpart F standards are also necessary
to fully protect human health and the
environment Design and operating
features, like the ground-water
monitoring and response program. are
effective but not fail-safe. Most land
disposal units, however well designed.
will eventually leak after closure to
some extent. Furthermore, many e3dst ing
units lack adequate liners and may
already be leaking. When leaking
occurs, EPA expects that complIance
with the Subpart F requirements will. In
most cases, result In detection of
contamination that may threaten human
health and the environment and In
remedlation of the threats. In addition,
EPA anticipates that the technologies
needed to Implement Subpart F will
continue to advance. just as they have
rapidly Improved In recent years. Thus.
the standards promulgated today
provide a two-part “prevention and
cure” system, each part adding to
confidence In the system as a whole.
This combined approach, including
both design and operating standards
and monitoring and corrective action
requirements. coniports wIth the
language and intent of Section 3004 of
RCRA. This Section requires EPA to
promulgate regulations establishing such
performance standards as may be
necessary to protect human health and
the environment, and direct that these
standards Include requirements
respecting:
(1) Operating methods, Jechniques and
practices as may be satisfactory to the
EPA Adniinisfraton
(2) Reporting. monitoring, and
inspection, ,.
(3) Location, design, and construction
of facilities: and
(4) Contingency plans for effective
action to minimize unanticipated
damage from hazardous waste
treatment, storage, or disposal.
EPA believes that the two-pronged
approach promulgated today
successfully addresses the various
factors listed by Section 3004. We
further believe that the regulatory
approach will help a concerned public
gain confidence that land disposal units
permitted pursuant to the standards
promulgated today wIll protect human
health and the environment.
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32314 Federal ReSIster I Vol. 47, No. 143 I Monday, July 26, 1g82 I Rules and Regulations
4. Rationale for Requfring liners that
Prevent Migration of Wastes During the
Active Life of the UniL
During our development of the
requirement that each Impoundment.
pile, and landfill have a liner designed
to “prevent” migration of wastes out of
the unit during the active life of the unit.
EPA considered requiring Instead that
the liner merely migration.
This distinction has significant practical
consequences with respect to the types
of materials that may be used for liners.
For example. while a clay liner
minimizes migrations, It does not
completely prevent m gration. since
liquids will slowly enter the pores of the
clay, move through It, and ultimately
flow out of It.
EPA decided to require a design to
prevent migration during the unit’s
active life. This standard, together with
requirements to minimize post-closure
migration, represent the beat available
technology to achieve the goal of
minimizing the raje and volume of
leachate migration for all time. Merely
designing to minimize migration during
the unit’s active life would result in an
increased risk of ground-water
contamination both during the unit’s
active life and after closure.
When a synthetic membrane liner, for
example, is Installed in a landfill, the
leachate collection and removal system
installed above the liner (as required by
today’s regulations for landfills and
piles) can achieve virtually a 100%
removal efficiency. In contrast, If a clay
liner is used, some leachate will seep
Into the liner rather than be removed
through the drainage layer. This
leachate will remain In the soil after
closure and will likely migrate to the
ground water at some future time.
Prevention, rather than minimization,
of leachate migration similarly produces
better environmental results In the case
of surface impoundments used to
dispose of hazardous wastes. As
discussed in Section Vll.F. of this
preamble, an Impoundment is not
required to have a leachate collection
system. and thus no leachate is removed
during Its active life. One of the
regulatory options for closing a surface
Impoundment Is to solidify remaining
wastes and cover the Impoundment with
a low permeability cap (i.e., to close the
unit in the same manner as a landfill).
These measures will likely nearly
eliminate further migration of hazardous
constituents from the Impoundment for
the near term and will minimize
migration Into the distant future. If the
liner has prevented migration
throughout the active life of the
Impoundment, then all wastes and
.leachate will still be above the liner at
closure where they can be dealt with
relatively easily. But if the leachate has
migrated Into a soil-based (e.g., clay)
liner prior to closure, future migration of
these wastes Is more likely. A liner that
prevents rather than lnImIzes leachate
migration provides added assurance
that environmental coniaminition will
not occur.
The above rationale does not apply
fully to a pile or to a surface
Impoundment from which all wastes and
waste residues will be removed at
closure (i.e., “storage” piles or surface
Impoundments; some of these may beat
the wastes as well as store them). Since
all contaminated liners will be removed
or decontaminated at closure, It Is
environmentally acceptable for leachate
to enter Into such liners during the pile’s
or Impoundment’s active life. For
example, suppose that a five-foot clay
liner (but not the underlying soils)
received some leachate during the active
he, after which the entire contaminated
liner system Is removed. In that case, the
standard of preventing migration out of
the unit during Its active life would have
been met, and the environmental goal of
long-term minlmm,ation of leachate
migration would also have been
achieved.
In accordance with the rationale
explained above, the regulation requires
that landfills, surface Impoundments.
and piles have liners designed to
prevent migration to the adjacent
subsurface soil or ground or surface
water during their active lives. First, it
further provides that in the case of a
storage unit (i.e., a pile or a surface
Impoundment from which wastes and
waste residues will be removed or
decontaminated at closure), the liner
may be constructed of materials that
may allow wastes to migrate into the
liner (but not into the adjacent
subsurface soil or ground water or
surface water) during the active life of
the unit, provided that the liner Is
removed at closure. Thus, In appropriate
situations, clay or admixed materials
may be acceptable liner materials.
Second, in the cases of landfills and of
surface impoundments used to dispose
of hazardous waste, the regulations
provide that the liner must be
constructed of materials that prevent
wastes from passing into the liner.
Synthetic liners are the only commonly’
used materials of which EPA Is aware
that would meet this standard.
EPA recognizes that even a thIn, 30-
mll synthetic liner can sorb a de minimis
quantity of wastes into Its structure and
allow some vapor to pass through. EPA
of course, does not interpret such de
minimis sorption or passage to violate
the requirement that disposal units not
allow wastes to pass into the liner.
However, clay liners, even If relatively
“tight,” would violate this requirement.
It should be noted that the standard of
designing to prevent migration Is a
design performance standard. It requires
that liners be “designed constructed and
Installed” to prevent migration during
the unit’s active life. If the permittee
complies with this requirement and the
liner falls subsequent to Installation
despite such compliance, the permittee
will not be In violation of the permit as
It relates to this standard.
EPA Is not requiring that liners
prevent migration of wastes after the
unit Is closed rather, the regulations
require that post-closure migration of
liquids be “mInbith d”. Absolute
prevention of migration forever or for
very long times Is beyond the current
technical state of the art. Thus, at some
time some migration will probably
occur. Thus, Instead of relying on
bottom liners to provide post-closure
protection of ground water, EPA Is
relying principally on linal cover (caps),
as discussed below.
5. Closure of Land Disposal Units. A
cap Is a top liner, placed on the unit at
closure. Caps, like bottom liners cannot
be expected to last forever. However, a
properly designed and maintained cap
can prevent the entry of liquids Into the
‘ ,closed unit, and thus the formation and
migration of leachate, for many years
and can minimize It thereafter In the
absence of damage. Therefore. EPA
requires that the cap be designed and
constructed to provide long-term
minimization of the movement of liquids
into the closed unit. Because clays wjll
generally last longer than synthetic
materials, clay caps rather than
synthetic caps should usually be the
materials chosen to provide long-term
minimization.
To avoid the build-up of liquids In the
closed landfill or Impoundment (the
“bathtub effect”) EPA requires that the
cap be as impermeable as the bottom
liner. This will require the installation of
a synthetic membrane cap whenever the
bottom liner Is synthetic. Thus, many
units will be required to have two-layer
caps consisting of a synthetic layer to
avoid the bathtub effect and provide
short-term prevention of Infiltration, and
a clay layer to provide long-term
minimization of precipitation InfiltratIon
and leachate generation. EPA believes
that this will provide maximum short-
term and long-term protection of human
health and the environment.
EPA recognizes the need for certainty
and uniformity In Implementing the
regulatory concept of “long-term
minimization” of liquids migration.
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32315
Therefore, EPA I . currently developing
numerical limits for liquid migration;
The technical approach being used is
discussed In EPA’s Guidance Document
for Landfill Design—liner Systems and
Final Cover (see Sectlon9of this
preamble discussion below). EPA hopes
to propose these numerical limits within
iix months.
t Existing Portions. The design and
operating standards contain a limited
exemption for “existing portions”
(defined today In 280.10). An existing
portion Is any area on which waste has
been or Is being placed at the time of
permit issuance. This may be one cell or
trench of a landfill, an Impoundment, or
a section of a pile. Existing portions are
exempt from the requirementslo Install
liners and leachate collection systems.
However, they remain subject to the
remainder of the design and operating
requirements (e.g.. placing a cover over
wastes remaining at closure) as well as
the ground-water protection
requirements of Subpart F.
Installing liners and leachate
collection systems at existing portions
would create severe difficulties for
many facilities. Owner or operators
would have to remove wastes before
Installing liners and leachate collection
systems. This presents several types of
problems.
Some facilities may lack space In
which to store the wastes temporarily
while retrofitting. Even worse, in some
cases, the ongoing waste disposal
operation Is integral to production
operations. For example, some facilities
use large volumes of water as part of
their manufacturing processes and use
surface impoundments to treat
wastewaler or to store or dispose of
sludge. Unless additional space is
avbilable to construct a new
Impoundment to receive the wastes
being removed from the existing
Impoundment. it may be impossible to
retrofit the old impoundment without
shutting down production facilities.
A second problem Is safety. Exhuming
wastes from a landfill, for example, may_
create significant hazards for workers
and others who are nearby and may be
exposed to the wastes.
The Congress recognized the problem
of retrofitting existing units when it
amended Section 3004 of RCRA ii) 1980
to add the following provision:
In establishing such standards the
Administrator shall, where appropriate.
distinguish in such standard. between
requirements appropriate for new facilities
end for facilities In existence on the date of
promulgation of such regulations.
This provision does not absolutely
require EPA to have separate standards
for new and existing unit, but does
Indicate that EPA must consider
whether distinctions should be drawn.
The legislative history of this provision
specifically Indicates that the Congress
was concerned about burdensome
retrofitting problems that existing units
might have In complying with location
and design requirements that EPA might
appropriately specify for new portions.
H.R. Rep. No.98-1444 (1980).
The limited exemption for existing
portions In these rules implements the
legislative Intent The exemption applies
only to those requirements which would
require dangerous or Impracticable
retrofitting at existing units (I.e.. bottom
liners and leachate collection and
removal systems). Moreover, It applies
only to existing portions of existing
units. New portions of existing units
(e.g.. lateral extensions of existing
landfills such as new cells or trenches)
are not entitled to the exemption since
they would not experience the
retrofitting problems pertaining to
existing portions.
EPA is concerned that this exemption
may be too broad In some situations and
too narrow In others. It may be that
there are some situations where waste
can be removed with minimal risk and
at a reasonable cost even at existing
portions, so that the policy concern
behind the exemption Is Inapplicable.
For example, It may be quite simple to
remove a small waste pile or a amaltor
partially filled landfill trench and place
a liner underneath it. Similarly, It may
be feasible to retrofit an existing surface
impoundment that Is used infrequently
(e.g.. to hold overflows) or that is not
essential to daily production needs.
Also, EPA realizes that there may be
little environmental gain in requiring
owners and operators of units very near
the end of their operating life to comply
with the liner requirements. For
example, If 95 percent of the capacity of
a landfill Is consumed at the time of
permitting, there may be little benefit to
requiring a liner system under the
remaining 5 percent. EPA does not
currently have enough Information to
distinguish among various types and
sizes of existing portions to fashion a
narrower exemption. EPA requests
public comment about the scope of the
exemption and welcomes suggestions
about how this exemption can be better
crafted to address those situations
where substantial retrofitting would not
be necessary or could be accomplished
without causing environmental harm or
excessive burdens or, alternately, where
upgrading practices at existing facilities
may provide de minimis additional
protection.
7. Waiver from the liner and the
Leochate Collection and Removal
Requirements. U an owner or operator
of an Impoundment. pile. or landfill can
demonstrate to the Regional
_ Administrator that the use of alternate
design and operating practices, In
combination with location and waste
chalucteristics. will prevent the
migration of any hazardous constituents
Into the ground water or surface water
forever, then he may obtain an
exemption from the liner and the
Leachate collection and removal
requirements. The basis for the
exemption is that such requirements
become superfluous If no potential
threat to ground water or surface water
will occur at any time.
An example of a situation for which
this exemption may be appropriate is
one where: (1) A large unsaturated zone
below the unit Is composed of materials
that are capable of attenuating any
hazardous constituents In the leachate
before It reaches ground water or
surface water (e.g.. attenuating
hazardous constituents through Ion
exchange); (2) the unit Is located In an
arid area In which precipitation does not
recharge ground water and (3) the unit
handles only a smell quantity of wastes.
Given an appropriate combination of
such factors, together with proper design
and operating practices. (e.g., the use of
a thick liner possessing substantial
attenuative capacity), it may well be
that the owner or operator could
demonstrate that no hazardous
constituents could ever migrate as far as
the ground water or surface water.
Although the requirements for liners
and leachate collection and removal
systems apply only during the life of the
unit, the waiver of these requirements Is
based on a demonstration that migration
to ground or surface water will not occur -
at any future time. These requirements.
while operative during the unit’s active
life, are designed to ensure that the post-
closure migration of liquids Is minimized
to the extent that ground- or surface-
water contamination will never occur.
Therefore, a waiver of these
requirements must logically be based on
a showing that the equivalent
environmental result will be achieved,
I .e.. that ground. or surface-water
contamination will never occur.
EPA also considered granting a
waiver from the closure provisions in
situations as described above, where It
Is demonstrated that hazardous
constituents cannot reach the ground
water. However, the closure provisions
have other benefits In addition to
ground.water protection. Including: (a)
prevention of the “bathtub” effect (i.e.,
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32316 Federal Register I Vol. 47, No. 143 ‘ Monday. July 26, 1982 / Rules and Regulations
filling with leachate and overflowing):
(b) protection of surface water from run-
off; and (c) discouragement of direct
access 40 the wastes. The Agency has.
therefore, decided not to waive the
closure requirements where ground-
water contamination is not possible.
Another waiver from the design and
operating requirements considered by
the Agency involved facilities located
over aquifers which are not underground
sources of drinking water (exempted
aquifers under the Safe Drinking Water
Act—see 40 CFR 122.35 and Section
VILD.5.c. of this preamble. The
a, ument can be made that if an aquifer
or a portion of an aquifer Is, for some
reason, not usable as a drinking water
supply, then there is little reason to
install devices (e.g., liners) to protect it.
The Agency Is concerned, however, that
exempted aquifers or portions of
aquifers under the Safe Drinking Water
Act may be only temporarily exempted
in some cases, and that they may flow
into nonexempted portions, into surface
water bodies, or into nonexempted
Interconnected aquifers (e.g., underlying
aquifers). The Agency has not bad time.
however, to fully evaluate to what
extent, if any, such an exemption may
be protective and has, therefore, not
Included it in this promulgation. Existing
facilities over exempted aquifers or
exempted portions of aquifers will,
however, be considered low priority for
permitting pending review of this issue.
The Agency solicits comments on
these and other waivers from the design
and operating requirements which might
provide adequate protection.
8. Special Pro visions for Double-lined
Units: Exemption from the Ground
Water Protection Requirements of
Subpart F The design and operating
standards contain special sets of
standards for surface impoundments,
piles, and landfills with double liners
and leak detection systems. Compliance
with these standards Is not mandatory.
However, if an owner or operator
voluntarily applies for and is Issued a
permit to comply with these special
standards (in addition to the other
stajidards generally applicable to these
units), then he is not subject to the
ground water protection regulations
contained In Subpart F (except under
special circumstances discussed below).
These special standards require that
there be two liners underlying the unit
and a leak detection system between the
two liners. The two liners must be
designed and constructed in a manner
that prevents the migration of liquids
into or out of the space between the
liners. This can be achieved by lapping
or sealing the edges of two synthetic
membrane liner. at the surface. A leak
detection system is any system (e.g., a
drain and pump, or appropriate
Instrumentation) that enables the owner
or operator to detect whether any liquid
has entered into the space between the
liners. If liquids are detected in the leak
detection system, It may be concluded
that the liquids resulted from a leak In
one of the liners. Some water may enter
the space betwesn the liners at the time
of installation. This would occur only
once, at the time of unit start-up. A
prudent owner or operator would
remove this water at that time, since the
presence of water in the leak detection
systim at a later time will be assumed
to Indicate that one of the liners is
leaking.
- If liquid leaks Into the leak detection
cystem. h dicating a leak In at least one
of the two liners, the owner or operator
must notify the Regional Administrator
within seven days after detecting the
- leak. He then has two options. One Is to
repair or replace,the liner and obtain a
certification from a qualified engineer
that the leak has been stopped. This
must be done within a period of time
specified in the permit. The period of
time should be set to ensure expeditious
repair or replacement but, since one
liner Is still Intact, can be set reasonably
to cause minimal disruption of
production processes that are dependent
on the unit’s continued operation.
For many units, repair or replacement
Is impractical. just as retrofitting an
existing portion to install a liner Is -
Impractical. as discussed in the
preceding section of this preamble. The
second option is to forfeit the exemption
from the Subpart F ground-water
protection standards and to begin to
comply with a detection monitoring
program, under § 264.98, to ensure that
any migration of leachate to ground
water will be detected. However, this
option Is available only if such a
program is already incorporated in the
permit. Otherwise, after detection of the
leak, ground-water contamination could
ensue while proceedings are still being
conducted to modify the permit to
establish a detection monitoring
program.
Ordinarily, a permit written for a
double-lined unit eeeking an exemption
from Subpart F would not contain any
detection monitoring requirements. In
that case, if an owner or operator
discovers a leak in the leak detection
system, be will have to repair or replace
the leaking liner or else be in violation
of the permit Therefore, EPA
recommends that those who anticipate
retrofitting problems in attempting to
repair or replace leaking liners should
request that detection monitoring
programs be established In their permits
In accordance with the requirements of
I 264.9L as contingent requirements.
Such requirements would be
automatically triggered in the event of a
leak, but would not have to be complied
with until such a leak occurred. The
permit would specify well placement.
detection parameters to be monitored.
and the frequency of monitoring. If a
leak occurred, the permlttee would then
install the wells end begin monitoring in
accordance with a schedule set forth in
the permit.
The regulations require that the liners
must meet the requirements normally.
applicable to liner, In single liner
systems: they must prevent the
migration of wastes to subsurface soil or
to ground water or surface water during
the life of the unit. This Is consistent
with the policy objectives outlined In
Sections VILE.1. and VU.E.2. above.
Furthermore, It should be noted that, as
a practical matter, owners or operators
seeking to use this exemption from
Subpart F will insure that both liners
prevent migration. Otherwise, leakage
into the leak detection system will
occur, resulting In the need to repair or
replace the leaking liner or begin
groundwater monitoring, as discussed
above.
The leachate collection and removal
requirements for single-lined piles and
landfills also apply to double-lined
systems. The leachate collection and
jemoval system must be placed on top
of the upper liner, and must be
maintained and operated to collect and
remove the leachate. This implements
the policy objective of reducing the
amount of leachate that can leach in the
future to the subsurface soil or ground
water or surface water.
Finally, to be eligible for the
exemption from the Subpart F ground-
water protection requirements, a double-
lined unit (including the liners and leak
detection system) must be placed
entirely above the seasonal high water
table. Placement of unite in the ground
water poses special problems
associated, among other things. with
external pressures applied by the
saturated earth. The Agency is
concerned that these pressures can
cause disruption (collapse or caving In)
of the liner system and disruption of the
leak detection system to the point that it
may not work. While collapse of the
liner system can occur when a single
liner unit Is located in the ground water,
the ground-water monitoring system can
be expected to function to detect
contamination. Since ground-water
monitoring is waived for double-lined
facilities, It is imperative that the leak
detection system function. The Agency
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Federal Register Vol. 47, No. 143 I Monday. July 28, 1982 I Rules and Regulations
32317
Is not confident at this time that It dan
specify design safeguards that will
ensure continued function when the unit
Is placed In the saturated zone (i.e.. in
the ground water).
9. Spec$ cation of Design and
Operoting Requirements in Permits. The
design and operating standards In these
rules are written as performance
standards. The purpose In using the
performance -standard approach.ls to
address the legitimate concern of many
commenters that the regulatory
standards provide flexibility In meeting
the performance goals established by
EPA. This allows the use of cost-
effective, site-specific designs.
equipment, and operating practices, and
encourages Innovation.
In promulgating performance
standards. EPA is relying on the
issuance of permits to clearly establish
the specific designs and operating
requirements which each Individual
owner or operator must comply with. It
Is thus the permit-issuing authority’s
task to translate general standards into
specific detailed obligations. The permit
writer will do so in accordance with the
procedural requirements of 40 CFR Part
124, which provide for the issuance of a
draft permit, documentation explaining
the basis for the conditions In the draft
permit, a public comment period a
public hearing If requested. the Issuance
of a final permit, and a right of
administrative appeal.
The regulations for each type of land
disposal unit contain a provision that
requires that the Regional Administrator
will specify in the permit all design and
operating practices that are necessary to
Insure that the general design and
operating standards are complied with.
For example, the landfill standards
require that leechate depth over the
liner not exceed one foot. This
requirement may be complied with by
using a combination of design features
(e.g.. slope and permeability of the
drainage layer above the liner) and
operating practices (e.g.. the amount of
bulk liquids placed in the landfill) based
upon assumptions concerning natural
conditions (e,g. , expected precipitation
rates). The permit writer will not only
approve the design features but will also
specify the operating practices In the
permit. The documentation prepared to
support the permit Issuance (a statement
of basis under 124.7 or a fact sheet
under 0124.8) would Indicate the
assumptions concerning natural
conditions that were used In deriving
appropriate design and operating
conditions. Thus, the design features
and operating practices Incorporated in
the permit will be those used by the
owner or operator to demonstrate
compliance with the performance
standard (i.e.. the one-foot depth limit).
• 10. TeciznicolReaowve Documents
and Guidance. EPA recognizes the need
for guidance to assist applicants In
understanding what specific designs and
operating practices would be considered
acceptable to EPA and to assist permit
writers In establishing specific permit
conditions. Accordingly, EPA has
developed two groups of documents.
The first group is a series of eight
detailed technical resource documents
dealing with various technical issues.
These documents discuss (a) facility
design and operating technologies, and
(b) methods for evaluating the
performance of designs, but are not
necessarily correlated with the
regulations. These documents, In their
current draft form (EPA expects to
revise them by early 1983), are available
from the National Technical Information
Service, U.S. Department of Commerce,
Springfield, Virginia 22181. The
documents are as follows:
(1) Evaluating Cover Systems for Solid
and Hazardous Waste (EPA Publication
No. SW-867. NTIS Publication No. PB-
81-166-340).
(2)•Hydrologlc Simulation on Solid
Waste Disposal Sites (EPA Publication
No. SW—868, NTIS Publication No. PB—
81—106—332).
(3) Landfill and Surface Impoundment
Performance Evaluation (EPA
Publication No. SW-869. N’flS
Publication No. PB-81—186-357).
(4) Lining of Waste Impoundment and
Diposal Facilities (EPA Publication No.
SW-870, NTIS Publication No. P 5-81-
106-365).
(5) Management of Hazardous Waste
Leachate (EPA Publication No. SW-871,
NTIS Publication No. P5-81—189-359).
(6) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste (EPA Publication No. SW-872.
NTIS Publication No. PB-81—181—505).
(7) Closure of Hazardous Waste
Surface Impoundments (EPA Publication
No. SW-873. NTIS Publicitlon No. PB—
81-166-894).
(8) Hazardous Waste Land Treatment
(EPA Publication No. SW-874, NTIS
Publication No. PB-41—18Z—107).
The second group Is a set of four
guidance documents correlating to the
most Important performance
requirements (e.g.. liners and caps)
contained In the design and operating
standards promulgated today. These
documents contain design specifications
which the Agency believes will
generally lead to compliance with the
performance requirements. The purpose
of these documents Is to reduce the
uncertainty associated with translating
the general performance standards Into
specific and operating requirements for
particular units. Thus, If an applicant
follows one of the example
specifications set forth in the guIdan! ,
be will generally receive a draft permit
from EPA. (Of course, the final permit
may contain different provisions from
the draft permit, based upon an
evaluation of comments received on the
draft permit.)
At present the draft guidance
documents contain only a few design
examples. The examples will be
expanded over time as EPA gains
experience Implementing the
regulations. The current drafts are
available at U.S. Environmental
Protection Agency. Central Library,
Room 2404,401 M Street. SW.,
Washington. D.C. 20480 and In EPA’s
Regional office libraries. The documents
are:
(1) Surface Impoundments—Liner
Systems. Final Cover. and Freeboard
Control;
(2) Waste Pile Design—LIner System.;
(3) Land Treatment Units:
(4) Landfill Design—Liner System.
and Final Cover. These documents will
soon be available from the National
Technical Information Service. EPA will
announce their availability In the
Federal Register.
Surface Impoundments (Port 284,
Subpart K)
Subpart K contains the design and
operating standards for surface
Impoundments used to treat, store or
dispose of hazardous waste. The basic
requirements are: (1) A liner to prevent
migration of wastes out of the
Impoundment Into the subsurface soil
and ground water or surface water
throughout the impoundment’s active
life (with an exemption for existing
portions): (2) prevention of overtopping
the sides of the Impoundment (3)
assurance of structural thtegrIty and
(4)(a) removal or decontamination of
waste residues and contaminated soils
and equipment at closure, or (b)
solidification of remaining wastes,
capping the wastes and conducting post-
closure care. An exemption from the
ground-water protection requirements of
Subpart F Is provided for impoundments
that have double liners and leak
detection systems. A variance from the
lIner requirement Is provided to any
Impoundment If the owner or operator
demonstrates to the Regional
Administrator that hazardous
constituents will never migrate from the
Impoundment into ground water or
surface water.
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32318 Federal Register I Vol. 47, No. 143 I Monday. July 26, 1982 I Rules and Regulations
Many of these features of the Subpart
K regulations are discussed above in
Section VILE, of this preamble. The
remainder are discussed below.
1. ReJationship to Previously
Promul otedorProposedRu!ee fr
Pemziliing Swfoce impoundments.
These rule. supersede two previous
regulations covering surface
Impoundments. On January 12,1981,
EPA promulgated Subpart K standards
applicable only to storage surface
Impoundments (Impoundments that are
designed to prevent migration of wastes
out of the Impoundments during active
life and that have all wastes and waste
residues removed at closure). These
rules required surface Impoundments to
Install double liners and leachate
detection, collection, and removal
systems and to remove all wastes at
closure (40 CFR Part 284 Subpart K. 46
FR 2802). No ground-water monitoring or
remediation requirements were
established for these impoundments.
The regulations did not cover surface
Impoundments used to dispose of
hazardous wastes.
Many member, of the regulated
community objected to the January 12,
1981 regulations as Inappropriate for
existing Impoundments because
extensive retrofitting would be required
for many existing sites. They argued that
such retrofitting would require costly
reconstruction and could In some cases
result in shutting down plants, resulting
In severe economic disruption. (See the
discussion of retrofitting In Section
Vll.E.6.) On October 20. 1981. EPA
proposed to suspend the effective date
of these rules, as applied to existing
- Impoundments pending a re-
examination of the rules’
appropriateness for existing
Impoundments (46 FR 51407). Pending
this reexamination. EPA announced that
It would not begin processing permit
applications for existing surface
Impoundments, although EPA.
announced willingness to process
voluntarily submitted applications.
Subpart K. as promulgated on January
12. 1981. Is entirely superseded by the
new Subpart K promulgated today.
Today’s regulations have a broader
scope; they cover both storage and
disposal surface Impoundments.
Furthermore, the October 20. 1981
proposal is withdrawn. Similarly, the
permitting policy announced in the
proposal Is now withdrawn, and.
consistent with its overall permit
priorities, EPA will begin requesting the
submission of Part B applications from
the types of storage surface
Impoundments described In the January
12,1981 standards. In addition, on the
• ffect ve date of today’s regulations.
EPA will begin I1htg In Part B permit
epplicatlons for all types of surface
Impoundments covered by these
standards.
Although the January 12,1981,
regulations have been superseded, many
Ideas in those regulations are
Incorporated In the new standards. For
example, today’s exemption of double-
lined Impoundments, piles and landfills
from the ground-water protection
standard Is consistent with a imfln .
approach In the January12 regulations.
Similarly, as was true under the January
12 regulations, post-closure care and
monitoring are not required If all waste
Is removed at closure. Some of todays
other requirements (e.g., overtopping
controls and Inspection) are also similar
to those contained In the January12
regulations.
However, today’s regulations apply
more broadly and are more flexible than
the January 12 regulations. They cover
disposal impoundments as well as
storage Impoundments. Even for
Impoundments used for storage (or
storage and treatment only), more
control options are now offered.
Whereas the January 12 regulations
required double liners, the new
standards allow a single liner coupled
with ground-water monitoring as an
alternative option. And whereas the
January12 regulations required that all
hazardous wastes and hazardous waste
constituents be removed from the
Impoundment at closure, the new
standards allow as additional options.
the decontamination or solidification
and stabilization or wastes left In place,
covering by a cap, and post-closure
monitoring and maintenance.
A second set of regulations.
superseded by todays standards are the
Part 287 regulations for new surface
Impoundments and other land disposal
units. See the discussion above in
Section ILC. of this preamble.
It should also be noted that the new
standards do not Incorporate the
“seepage facilities” concept for which
standards were proposed (but never
promulgated) on February 5,1981(46 FR
line). Seepage fadlilies aze lagoons
that are designed Intentionally to leak.
Depending on design. they may also be
considered as underground Injection
units-or land treatment units. In any
case, EPA has concluded that land
disposal facilities should be designed
not to leek at all during their active
lives, except in rare cases (see
I 264.221(b)). Therefore.jnost new
Impoundments must be lined In
accordance with these standards, and
land treatment facilities must prevent
release of hazardous constituents by
beating them within the treatment zone.
Thus, new seepage facilities (other than
existing portions that comply with the
Subpart F ground-water protection
requirements and other applicable
requirements) may not be permitted
under these regulations. EPA Invites
public comment on ft. decision not to
authorize seepage facilities.
2. Absence of LeacJioie Collection and
Removal Requirements for Surface
impoundments. Unlike piles and
landfills, surface Impoundments are not
required to have leachate collection and
removal systems above the liners.
Surface Impoundments are needed in
many Industrial facilities to properly
beat wastewaters and thereby minimize
surface water pollution. These
Impoundments are often designed to
handle large flows, In many cases
exceeding one millIon gallons per day.
Often, rather long retention times are
required to ensure appropriate treatment
of the wastewaters. Since a surface
Impoundment Is Intentionally desIgned
to hold liquid wastes, often In extremely
large volumes, It makes little sense to
require a virtual drain at the bottom.
The liquid removed from the drainage
layer would Itself need to be managed.
very lIkely In a second Impoundment.
No environmental purpose would be
“iérved by such a liquids management
program.
The key liquids management goals, for
Impoundments as well as piles and
landfills, are to prevent migration of
waste during the unit’s operating life
and to minimize migration afterward .
The former goal is achieved by the liner.
The second goal Is best achieved, In the
case of a surface Impoundment, by
dewaterlng, solidifying, or removing the
contents, of the Impoundment at closure.
The regulatory approach for surface
Impoundments achieves environmental -
results analogous to those achieved for
piles and landfills. In most cases, these
units must be designed, constructed, and
Installed so that no migration occurs
during the active life of the facility. in
the case of piles and landfills, which
contain relatively small amounts of
liquIds, leachate collection and removal
Is practicable and results In a reduced
volume of hazardous constituents
available for post-closure mIgration. In
the case of surface Impoundments, for
which the collection and removal of
relatively large amounts of liquids Is not
practicable, removal or solidification of
liquid wastes at closure likewise results
In a reduced volume of hazardous
constituents available for post-closure
migration.
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Federal Register I Vol. 47, No. 143 I Monday, July 28, 1982 / Rules and Regulations
32319
3. Liner Requirements (Section
264221(a)). The regulations for liners In
surface Impoundments (as well as
landfills and piles) include several
subsidiary performance standards
Intendedto assure that each liner will
meet the performance goal of preventing
the migration of wastes to adjacent
subsurface soil or ground water or
surface water at any time during the
Impoundment’s active life. These
standards consist of general common-
sense engineering goals, leaving the
details to be specified one case-by.case
basis In permits.
First, the liner must be constructed of -
materials that will resist degradation.
Synthetic liners can be degraded by
exposure to imcompatlble wastes or
leachate and in some cases by excessive
exposure to sunlight. Clay liners can
develop highly Increased permeabilitles
(sometimes by several orders of
magnitude) when exposed to certain
types of chemicals. The regulation thus
requires appropriate materials to be
used to avoid such problems. When the
permit Is Issued, the appropriateness of
the liner material will be considered in
the specific context of the wastes to be
placed In the impoundment.
Second. liner materials must be of
sufficient strength and thickness to
prevent failure due to physical stresses
(e.g.. earth-moving equipment, dredging
equipment, and the weight of large
volumes of liquid wastes). While this
requirement applies to all liners, it Is
especially crucial for synthetic linerL
which can rupture If they are
mishandled or are too thin. Most
synthetic liners need to be at least 30
mils (thousandths of an Inch) thick to
assure that this requirement is complied
with.
Third, the foundation underneath the
liner must be capable of supporting the
liner and resisting pressure gradients. If
the support system settles, compresses,
or uplifts the liner may rupture or crack.
Finally, the liner must cover all
jurrounding earth likely to be in contact
with the waste or leachate. This assures
that liners will be placed not only
underneath the wastes but also on the
sides of the wastes. Thus, lateral as well
as vertical migration will be prevented.
4. Control of Overtopping (Section
264.221(c)). Section 264.221 requires that
a surface Impoundment be designed.
constructed, maintained and operated to
prevent overtopping (the flow of liquids
over the top and out of the
impoundment) resulting from normal or
abnormal operations; overfilling. wind
and wave action; rainfall: run-on:
malfunctions of level controllers, alarms
and other equipment; and human error.
This language reflects the variety of
potential causes of overtopping.
• Constructing dikes to provide a large
amount of freeboard above expected
levels in the impoundment is one means
of controlling overtopping. Operating
practices such as adjusting Inflows and
outflows to regulate the Impoundment
level, or using automatic level
controllers or alarms, will also help
prevent overtopping when potential
problems, such as unusually large
storms, occur.
The regulatory language differs from
that contained in the January 12
regulations, which requIred 2 feet of
freeboard or any alternative amount of
freeboard based on documentation
acceptable to the Regional
Administrator showing that no
overtopping will occur. In substance,
however, the new standard Is similar. It
sets forth a general performance
standard to prevent overtopping, and
leaves to the Regional Administrator the
task of specifying the specific design
features and operating practices in the
permit.
The term “prevent” Is absolute and
quite stringent, reflecting the Agencjs
view that outflow of liquid hazardous
wastes over the top of an impoundment
poses a potentially very serious threat to
human health and the environment. Not
only is there the very real threat posed
by the actual escape of hazardous
wastes, but also overtopping can
threaten the structural Integrity of the
dike Itself, creating the potential for
catastrophic damage. EPA realizes,
however, that certain events or
combinations of events that can cause
overtopping will be so improbable that
they must and should be ignored. Some
of these might even be considered to
border on the absurd, e.g., the possibility
that all of the production storage tanks
and basins associated with a
manufacturing operation will break at
once, releasing the contents to a surface
impoundment, causing it to overflow.
TheAgency does not intend that
overtopping resulting from highly
Improbable events be protected against
One common event that will frequently
have to be addressed is overtopping
potential resulting from drainage of
stormwater Into the Impoundment. In
this case EPA believes the impoundment
should be designed and operated to
prevent overtopping resulting from at
least the flow generated by the 24-hour,
100-year storm event. This storm event
Is recommended since It Is the rarest
event for which data are readily
available.
EPA had deleted a requirement
contained in the January 12 regulations
that run-on be diverted away from a
surface impoundment. We agree with
commenters who noted that run-on Is
acceptable so long as the design and
operation of the impoundment are such
as to ensure that run-on does not cause
overtopping. Therefore, EPA has simply
Included run-on as a factor to be
addressed in preventing overtopping.
5. St return! Integrity of Dikes
(Sections 264221(d) (and 264.226 (c) ).
Surface Impoundments must have dikes
that we designed. constructed, and
maintained with sufficient structural
Integrity to prevent massive failure. This
requirement Is essentially the same as In
the January 12 regulatIons, with one
exception.
The January12 regulations provided
that structural Integrity of the dikes
should be maintained without
dependence on any liner system
Included in the surface impoundment
design. This requirement reflected the
Importance of absolutely preventing any
dike failures, which have in the past
resulted In sudden release of very large
quantities of liquid wastes from
Impoundments. Even though these
regulations require that liner systems
not leak during the active life of the unit,
same liners will leak due to physical or
chemical damage. It Is not prudent,
therefore, to depend on the integrity of
the liner system as a necessary
condition for dike stability. Therefore,
dikes must be constructed to prevent
collapse due to scouring or piping in the
event of liner leakage.
However, the January12 language
faIled to distinguish between cases
where the liner is a part of the dike and
cases where ills not, In some cases, on
the one hand, several feet of compacted
clays may be used as part of the dike In
a storage surface Impoundment and may
contribute to structural stability in ways
other than retarding leakage. On the
other band, a synthetic liner would not
normally be considered by engineers In
the field to provide strength to the dike
Itself, and even a clay liner may fail to
provide additional structural Integrity If
It is not intentionally designed to
achieve that purpose.
In light of the variety of circumstances
summarized above, today’s regulations
simply contain a performance standard
requiring structural integrity to prevent
massive failure. The extent to which a
particular liner should or should not be
considered in assurifl g structural
Integrity will be determined on a case-
by-case basis.
Due to the importance of structural
Integrity, I 264.223(c) requIres that prior
to permit Issuance, the owner or
operator must obtain a certification from
a qualified engineer that the dike has
structural integrity. Furthermore, a
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32320 Federal Register I Vol. 47, No. 143 I Monday, July 20, 1982 I Rules and Regulations
recertification Is required if an
Impoundment I. about to begin
operation after It has been out of service
for six months or more. The -
recertification Is necessary to assure
that no rh iges to the dike (erg.. erosion
during the shut-down period)’have
Impaired It. structural Integrity. The
period of six months Is based on EPA’.
judgment that significant changes may
occur during a period of that length.
The certification must cover two
aspects of structural Integrlty (1) The
force exerted on the dike by the
contents of the Impoundment and (2) the
dike’s resistance to scouring and piping
In the event that the liner leaks. The
former ensures that the dike will not
collapse or be swept sway simply as a
result of the pressure exerted against It
by It. contents. The latter assures that
the dike will not collapse or be washed
away if liquid begins to seep through It.
While seepage through a dike is
Important from the standpoint of its
inherent pollution potential, It also can
cause the dike’s constituents (usually
soil) to become more fluid, to move, and
to flush through, creating a hole and
massive collapse—a very serious
consequence. Although evaluations of
structural Integrity are not foolproof, the
Agency believes that an evaluation and
certification provides an important
measure of protection.
6. Monitoring and Inspection (Section
264.226(c)). Section 264.226 contaIns
several types of Inspection
requirement., apart from the
certification of dike structural Integrity
already discussed In Section Vll.F.5.
above. First, liners and caps must be
inspected during construction and
Installation for uniformity, damage and
imperfections, and after installation to
insure tightness of seams and ioints and
the absence of tears, punctures, and
blisters.
EPA considers the liner inspection to
be very important. Properly constructed
or installed synthetic liners should
prevent any migration of wastes for
many years. However, improperly
constructed or Installed liners can result
lii migration of wastes almost
immediately after startup of the unit.
Section 284.228 also requires
inspections, weekly and after storms, of
design features and equipment
necessary to prevent overtopping for’
sudden drops In the level of the
impoundment’s contents; for the
presence of liquids in leak detection
systems. and of dikes. These inspections
are not very expensive or time
consuming thus weekly inspection of
these important features Is reasonable.
However. EPA does agree with the
comnmenters who argued that the daily
Inspections required In the January12,
1981. nile. were uimwaasarily frequent
and burdensome.
7. Emergency Repair. (Section
284.227). The January12 regulation.
required that whenever there is a
“positive Indication of a failure of the
containment system” the Impoundment
,must be removed from service. “Positive
Indication” was described as Including
waste detected in the leachate detection
system or a breach (e.g.. hole, tear,
crack, or separation) In the liner.
Commenters argued that the harsh
remedy of Immediately removing an
Impoundment from service should only
be required to prevent or remedy
massive or catastrophic failure and not
to deal with relatively small-scale liner
breaks. EPA agrees and has modified
the regulatory language to deal only
with the truly emergency situtations.
Section 204.277(a) require. removal of
an Impoundment from service when the
level of liquids In the Impoundment
drops suddenly and the drop Is not
known to be caused by changes In the -
flows Into or out of the Impoundment. In
such a case, rapid discharge through the
liner most be presumed. For example, It
may be that the liner Is leaking and that
channels In the underlying soils are
permitting rapid migration of wastes out
of the Impoundment. EPA does not
anticipate that these circumstances will
occur In many cases. A second and
probably more likely situation requiring
removal from service Is a leaking dike.
This Indicates the potential for massive
dike failure. Even though dikes are
required to be constructed to prevent
failure, even In the event of leakage, our
ability top structural Integrity of
dikes Is not perfect and the potential
damage associated with dike collapse Is
so great that the Agency believes
immediate action Is necessary In the
event active leakage Is discovered.
Minor deterioration of the dike (e.g.,
erosion) which can be easily repaired
would not require the removal of the.
Impoundment from service.
Removal of the Impoundment from
service Is defined In I 264.227(b) as
consisting of several steps. (1) Stopping
the addition of wastes to the
Impoundment (2) contaIning surface
leakage; (3) stopping future leakage; (4)
taking other necessary steps to prevent
catastrophic failure; (5) If necessary to
stop the leak or prevent catastrophic
failure, emptying the Impoundment, and
(8) notifying the Regional Mmlnlafrator
of the problem. Section 264.277(c)
requires that the contingency plan for
the impoundment Include procedures for
complying with these requirement..
if the impoundment is returned to
service after removal from service under
*264.2 7 7(a). the dike’s structural
integrity must be recertified. If It has
been removed from service due to a
sudden drop in liquid level and It has a
liner which was Installed to comply with
O 204.221, the repaired liner must be
certified as complying with the
applicable conditions.
If an existing impoundment which is
exempted from the liner requirements.
ha. experienced a sudden drop In liquid
level, then a liner that complies with
* 264.221 must be Installed prior to Its
return to service. Due to the extreme
failure of the Impoundment, Installing a
liner Is absolutely essential to ensure
that substantial leakige to ground water
will not occur In the future.
If the impoundment Is not returned to
service, O 264.227(e) requires that It must
be dosed. This requirement Is necessary
to assure that the failed impoundment Is
not left with liquid wastes In it for an
unnecessary period of time.
& Closure and Post-closure Co,e
(Section 264.274). Section 204.228 offers
owners or operator, of surface
Impoundments two alternative, for
closing their facilities. The first
alternative is to remove or
decontaminate all wastes at closure.
The second Is to leave the wastes In
place, eliminate free liquids, stabilize
the wastes, place a cap (final cover) on
- ! top of the waste, and conduct post-
closure monitoring and maintenance.
If the ou er or operator elects the
first alternative, he must remove or
decontaminate all wastes, waste
residues, contaminated system
components such as liners,
contaminated subsoil. and
contaminated structures and equipment.
This Is necessary because under this
option, no post-closure care or
monitoring Is required. The
Impoundment I a storage unit leaving
no hazardous constituents In the ground
after closure. All the removed residues,
subsoil. and equipment must be
managed as hazardous wastes unless
the provisions of 0281.3(d) are complied
with.
If the owner or operator makes all
reasonable effort, to comply with his
closure plan and to remove or
decontaminate all residues and
contaminated subsoil. (e.g.. he removes
or decontaminates all waste and waste
residues above the liner as well as some
contaminated subsoil) and then finds
that he cannot comply with hi. closure
plan because he Is unable to remove or
decontaminate all of the remaining
contaminated subsoil., he must close
the unit under the second option and
perform post-closure care as described
below. This situation Is likely to occur
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32321
often In the case of existing portions
that do not have lineii or have --
Inadequate liners. In a few cases, liners
Installed in accordance with the
requirements of { 264.221 of these
regulations may also fail. In any of these
cases. contamination may have
migrated a considerable distance from
the Impoundment and possibly even
entered the pound water. This situation
necessitates closure under the second
alternative to inlntailae the rate of
migration and monitor for potential
ground water contamination. In
contrast, facilities with good liners that
do not fail wIll be able to avoid post-
closure responsibilities.
The second alternative for closing a
surface Impoundment requires several
steps. First, free liquids must be
eliminated, by removing liquid wastes
and/or solidifying the remaining waste
residues. As discussed above in Section
VILF.2. this Is an Important step In
minimizing the rate of leachate
migration.
Second. the remaining wastes must be
stabilized to a bearing capacity to
support final cover (Including the top
liner and earth materials placed above
that liner to protect the liner, allow the
growth of shallow-rooted vegetation.
and promote drainage). Fai1uie o do so
Is likely to result In substantial
differential settlement of the final cover
over time, thereby creating channels
through which liquids can enter the
Impoundment and eventually leach the
waste constituents into the ground
water.
Third, a final cover must be placed
over the closed Impoundment. The cover
must be designed and constructed to
provide long-term minimization of the
migration of liquids into the closed
impoundment. In addition, the cover
must be at least as Impermeable as the
bottom liner. The purpose of these
requirements has been discussed in
Section VI. E. 5. of this preamble.
The final cover must also be designed
to minimize erosion, since erosion would
result in exposure of the covered wastes
and Inmeased Infiltration. Such
protection Is provided by installing
proper sloping, covering with
appropriate vegetation, and other
construction techniques. Finally, the
cover must accommodate settling and
subsidence so that Its integrity is
maintained.
Several practices can help minimize
and accommodate settling and
subsidence at some closed
impoundments and especially at closed
landfills (which are subject to the same
general closure requirements as surface
unpoun ments). These include placing
wastes and fill material (especially if
biodegradable material) uniformly
throughout the unit and constructing the
final cover with a slightly greater slope
than ultimately desired. Another
potentially useful approach Involves
phasing of final closure. For example.
the permittee may place an Interim,
partial. or temporary cover (cap) on the
unit and, after the Initial (and likely
most severe) subsidence and settling
have occurred. Install the final cover, in
such a case, the Regional Administrator
can extend the 180.day closure period of
I 264.113(b), provided that the Interim
cover will adequately minimize
Infiltration or that the bottom liner Is
still functioning.
Once the final cover has been
Installed and compliance with the
closure provisions has been certified.
the post-closure period begins. Post-
closure care consists of maIntaining the
final cover and performing monitoring.
Generally, monitoring consists of
continued ground water monitoring and.
if necessary, corrective action under
Subpart F Just as was required during
the unit’s active life. In a case where the
impoundment has a double liner and
leak detection system, leak detection.
rather than ground water monitoring.
must be continued during the post-
closure period. U a leak is discovered,
the owner or operator must notify the
Regional Administrator, who will then
modify the permit to require compliance
with the ground water protection
requirements of Subpart F. (Alter
closure, repair or replacement of a
leaking liner would involve at least a
temporary destruction of the final cover,
resulting in the potential for ,gnficant
Infiltration of liquids. and thus is not
desirable.) The presence of a final cover
on top of the wilt should minimize
Infiltration of liquids Into the unit and
the discharge of liquid out of the unit.
Thus, detection monitoring should be In
place well before any ground water
contai Inntion could occur.
o. Financial Responsibili yfor Piles
and Surface hnpoundmants from which
Wastes are Removed at Closure
(Sections 264.228(d) and 264J58(d)L As
noted above, an owner or operator of a
pile or surface Impoundment who
removes (and properly disposes of) or
decontaminates all wastes. waste
residues, and contaminated equipment
and soils, has no further closure or post-
closure obligations (except to bave
closure properly certifIed (0 264.115)).
However, the regulations recognize that
complete removal may not be
practicable In some cases and provide In
such cases for placing a final cover over
the unit and conducting post-closure
monitoring and maintenance.
If capping and post-closure care
become necessary, funds must be
available for those task,. In preparing
the regulations, EPA became concerned
that units whose owners or operators
planned to remove or decontaminate all
wastes at closure would have closure
plans that address only removal and
would have no post-closure plans.
Correspondingly, these units would have
financial responsibility only for the
expected means of closure. Yet, further
closure activities and postclosure care
might be necessary In some cases due to
unanticipated difficulty In removal or
decontamination.
The above concerns presented a
dilemma. On one hand, If EPA does not
require owners and operators to have
closure and post-closure plans to
provide for capping the units and
performing post-closure monitoring and
maintenance, then sufficient funds might
not be available to take these actions In
appropriate circumstances. On the other
hand, if EPA requires owners or
operators to have financial
responsibility for these activities, those
who successfully remove all
contamination at closure will have
unnecessarily expended extra funds to
demonstrate financial responsibility for
capping and post-closure care.
EPA has attempted to balance these
two competing considerations by
correlating the financial responsibility
requirements for capping and post-
closure care to the likelihood that such
activities will actually become
necessary at particular piles or storage
Impoundments. Therefore, EPA
separately considered two types of
units: (1) Those that do not have liners
that comply with the design standard of
preventing migration (i.e., most existing
poi tions). and (2) those that do have
such liners.
Piles and storage surface
Impoundments that lack liners meeting
the design standards. by definition do
not prevent the migration of wastes to
the subsurface soil or ground or surface
water. At best. they minimize such
migration, and at worst, they provide
little or no control. At these units, it will
often not be possible to remove all
contaminated soils at closure. In some
Instances, leachate may already have
contaminated the ground water. It Is
thus reasonable to conclude that these
units will often need to be covered at
closure and will require post-closure
maintenance and monitoring. Therefore,
EPA is requiring that such storage piles
and storage impoundments have: (1)
Closure plans to remove or
decontaminate the wastes, waste
residues. and contaminated equipment
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32322 Federal Register / Vol. 47, No. 143 I Monday, July 26, 1982 I Rules and Regulations
and soils; (2) contIngent closure plans to
cover the units; and (3) contingent
postclosure plans to perform post-
closure monitoring and maintenance.
The contingent plans must be followed
only If compliance with the primary
closure plan does not result in the
removal of all contaminated soils.
The financial responsibility
requirements for these units (contained
In 204228(d) and 204258(d), wIth
conforming amendments in Subparts C
and H) cover only the contingent plans.
(If the owner or operator uses a bust
fund for financial responsibility, he must
pay for the waste removal or
decontamination and no money I. paid
out from the fund to reimburse him for
this activity unless he successfully
completes removal or decontamination.)
Thus, the owner or operator must
demonstrate financial responsibility
only for final cover and post-closure
care. If the owner or operator Is unable
to pay for closure, funds will be
available to cover the unit and provide
post-closure care. Although the wastes
will not have been removed In this
event, society will be in no worse a
position than It would have been If the
unit had been permitted and closed as a
disposal unit.
The Agency Is aware that In some
cases. It may be cheaper to close surface
Impoundments (or piles) as a disposal
facility. Thus, this rule would result In
less financial assurance than If coverage
of closure as a storage Impoundment (or
pile) were required. The Agency
believes that In these cases. owners or
operators will simply apply for a permit
as a disposal operation anyway. And, In
the final analysis, It Is ultimate
protection that Is sought: this can be
provided by ensuring adequate closure
as a disposal facility.
Piles and storage surface
impoundments that have liners designed
to prevent migration during their active
lives should, In the normal course of
events, succeed In such prevention If
they plan to remove or decontaminate
their wastes, etc.. at dosure. Therefore.
EPA I. not requiring contingent closure
plans to cover the units or contingent
post-closure plans to maintain or
monitor the units. Conristent with this
approach. financial responsibility for
such activities Is also not required.
However, in some cases, a liner will fail
to meet Its design objective of
preventing migration throughout the
unit’s life. In such a case, the owner or
operator will need to obtain a permit
modification that imposes final cover
requirements as well as post-closure
monitoring and maintenance
requirements.
• 10. Special Requlrvments for 4gnitoble
orheacilve Waste and incompatible
‘Wastes (Sections 264.226 and 264.230).
Sections 204.229 and 204.230 contInue
the good-operating-practice provisions
contained in the January 12. 1981.
Subpart K regulations concerning the
appropriate handling of Ignitable and
reactive wastes and Incompatible
wastes. The comments contained In
those regulations have been deleted,
however, since they merely reiterated
the requirements of ft 204.13.204.17,
and 204.73.
C. Waste Piles (Part 28 Subpart L)
Subpart L contains the design and
operating standards for wastes piles
used to store or treat hazardous wastes.
Waste piles may not be used to
Intentionally dispose of wastes. If the
owner or operator of a pile wishes to
- dispose of wastes, he must apply for a
landfill permit and manage the pile as a
landfill.
The basic requirements for waste
piles are: (1) a liner to prevent migration
of wastes out of the pile and into the
subsurface soils and ground water or
surface water during the pile’s active life
(with an exemption for existing
portlons) (2) leachate collection and
removal; (3) control of run-on and run-
off; and (4) removal of wastes at closure.
Two exemptions from the ground-water
protection requirements of Subpart F are
provided. One Is for piles that have
double liners and leak detection
systems. The other Is for any pile that
has a single liner from which the wastes
are periodically removed so that the
liner can be Inspected for eracks. leaks
or potential leaks. In addition, an
exemption from both the Subpart L liner
and leachate collection and removal
standards and the Subpart F ground-
water protection requirements Is
provided to dry piles that are inside or
under structures protected from
precipitation, run-on and wind dispersal.
Finally, a variance from the liner and
leachate collection and removal
requirements is provided If the owner or
operator demonstrates to the Regional
Administrator that hazardous
constituents will never migrate from the
pile into ground water or surface water.
Many of the features of the Subpart L
regulations (liners, leachate collection
and removal systems, end double liner.
and leak detection systems to obtain
exemptions from Subpart F) are
explained In the general discussion of
design and operating standards (see
Section VII.E.2. of this preamble) or in
the discussi on of analogous provision.
in Subpart IC for surface Impoundments
(see Section VU.F. of this preamble) and
will not be discussed again here.
Features that relate specifically to piles
are discussed below.
1. Relationship to Previously
Promulgated Design and Operating
Standords for Piles. These rules
supersede the Subpart L design and
operating standards for piles that were
promulgated on January 12.1981(40 CFR
Part 264 Subpart L 48 PR 2802). and
amended on November 0, 1981 (40 FR
55110). The January12. 1981 regulations
contained two sets of standards for piles
that are contained, In revised format. In
today’s regulations. First, today’s -
regulations, like the January 12
regulations, cover double-lined piles
with leak detection systems between the
liners. Second, they address single-lined
plies that are periodically removed from
their liners so that the liners may be
Inspected for puncture, cracking. or
other similar damage. In addition,
requirements for leachate collection and
removal are contained, as are
exclusions from ground-water protection
requirements. (However, as discussed
previously, today’s regulations contain
new provisions for Imposing ground-
water protection requirements In case of
liner failure, unless the liner Is repaired
or replaced.)
An additional set of standards that Is
continued In today’s regulations Is the
November 6,1981 regulations for
a.indoor. piles (see 45 FR 55111). Those
r4ilations provided that a pile Is
exempt from liner and leachate
collection requirements If It (1)1 . insIde
or under a structure that provides
protection from precipitation so that
neither run-off nor leachate Is generated;
(2) receIves no free liquids; (3)Is
protected from run-on; and (4) will not
generate leachate through
decomposition or other reaction. In
addition, such piles were not subject to
ground-water protection requirements.
Today’s 264.250(b) contains this set of
standards.
Today’s regulations provide greater
flexibility than the January 12.1981
standards by providing a set of
standards authorizing the permitting of
pile . that have single liners and that are
not periodically removed for liner
Inspection, provided that they comply
with the Subpart F ground-water
protection requirements. This additional
standard Is consistent with the basic
regulatory philosophy for landfills and
surface impoundments.
2. Design and Operating
Requirements (Section 284.251). a.
Liners and LeocJiote Collection
Systems—Waste piles (except for
existing portion.) must have liners and
leachate collection and removal systems
above the liners. To reduce pressure
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32323
head on the liner, the leachate collection
and removal system must be designed
and operated to assure that leachate
depth over the liner does not exceed one
foot. The appropriate technologies
needed to meet this requirement depend
on the size of the pile, waste
permeability, and climatic conditions. If
the pile Is small or the waste Is
permeable; a separate drainage layer
below the waste may not be needed.
Instead, merely using a relatively
Impermeable liner and sloping the liner
so that any leachate will flow can
provide a leachate collection and
removal system which will meet the
maxImum one-foot head requirement.
For larger piles and lees permeable
wastes a separate drainage layer of
relatively permeable material and,
perhaps. a tile drainage system, will be
needed to meet the maximum one-foot
head requirement. Other techniques
Include diversion of run-on and covering
the pile to prevent rain Infiltration.
All leachate collection systems, but
most Importantly those incorporating
drainage layers and tile drains, must be
designed and built so that they will
continue to function. More specifically,
they must be capable of (1) wIthstanding
the chemical attack that can result from
contact with leachate; (2) withstanding
the forces exerted by wastes,
equipment, earth pressures, etc.; and (3)
operating without clogging. Any of these
phenomena (chemical attack, external
forces, or clogging) can reduce or
destroy the efficiency of these systems.
b. Control of s-un-on and ran-off—
Section 264.251(c)-(e) contains specific
requirements regarding run-on and run-
off. To minimize leachate generation, the
owner or operator must design.
construct, operate and maintain a run-an
control system capable of preventing
flow onto the active portion of the pile
during peak discharge from at least a 25-
year storm. To minimize hazards from
run-off of contaminated liquid, a runoff
management system must collect and
control the water volume resulting from
at least a 24-hour, 25-year storm. Finally
the collection and holding facilities
associated with run-on (if any) and run-
off control systems must be emptied or
otherwise managed expeditiously after
storms to maintain capacity of the
system. This last requirement, not
contained in the January 12. 1981
regulations, Is intended to ensure that
capacity of the system Is not consumed
by successive storm events.
The basic nm-on and nm-off control
standards are similar to the January 12,
1981 requirements, except that the
design storm to be protected against are
now specified In the regulations. This
specification responds to commenters
who argued that the previous
requirement. were so vague as to leave
owners and operators uncertain as to
the extent of their responsibilities.
EPA chose the 25-year storm as the
storm size which should be protected
against In nm-on and nm-off systems for
both piles and Landfills. EPA is unaware
of any hard data to quantify the relative
degrees of risk reduction provided by
differently sized nm-on and nm-off
control systems. Difference, In cost can
be calculated more easily. EPA
estimates that managing a 100-year
storm requires a 7 to 25 percent Increase
over the cost required for a 25-year
storm, depending on location, watershed
size and unit size and design. For
example, for a typically sized landfill.
the cost difference might typically
amount to 310.000. While this does not
seem lobe a prohibitive expense, EPA
does not wish to require the additional
protection If the potential benefits are
de minimis. It can be argued, for
example, that a storm mare severe than
a 25-year storm would produce such a
large volume of run-off and such a short
contact time with the waste that any
hazardous constituent levels In the run-
off would be very low.
However, In the absence of
iubstantial data base, EPA remains
concerned that, at least in some -
situations, designing only to -
accommodate a 25-year storm Is
Inadequate. For example, If a pile or
landfill has a 25-year active life, there Is
at least a 50-percent chance that the
design capacity of the system will be
exceeded during the unlt’i active life.
Therefore, EPA requests information,
Including any available data, on the
following questions:
(1) What relative benefit. (In terms of
types and magnitude of averted damage)
can be expected from designing for a
100-year storm event versus designiiig
for a 25-year event?
(2) What are the relative costs for 25-
year and 100-year storm designs for
variously sized and located piles and
landfills?
(3) Under what circumstances and
conditions does overflow of run-off and
run-off control systems cause an
adverse environmental or human health
Impact? Are there sensitive areas or
conditions under which more stringent
design Is warranted? Can these be
succinctly and clearly defined?
Readers should note that the selection
of a 25-year criterion for run-on and run-
off controls differs from the selection of
a 100-year criterion set in the floodplain
standards In 254.18. flooding Is a
potentially more serious event than
either nm-on ci ’ nm-off, since a flood is
capable of washing away Large
quantities of bulk wastes and drums of
wastes, and may transport them
considerable distances. Therefore, EPA
believe, that protection against a 100-
year flood I. necessary.
The final design and operating
standard contained In 264.251
conflnues the January 12, 1981
requirement that wind dispersal be
controlled (e.g., by cover or wetting).
The language has been modified to
clarify that only particulate matter must
be controlled. As explained in section
VI.C. of this preamble, EPA Is not
regulating volatile emissions in the
design and operating standards being
promulgated today.
3. Exemption of Certain Piles Prom
the Ground-water Protection
Requirements of Subpart F (Section
284.253). Apart from the exemption from
Subpat F for piles, Impoundment. and
landfills that have double liners and
leak detection system., discussed above
In Section VD.E.8. of this preamble,
I 264.253 provides a special exemption
from Subpart F for any waste pile that Is
periodically removed from the liner so
that the liner may be inspected for
cracks, erosion, or other conditions that
could result In leakage. This exemption
relies on Inspection of the liner to assure
that the liner Is intact and is not
allowing leachate to migrate through the
liner. This Inspection procedure obviates
any need to monitor the ground water.
The liner must prevent m gralion of
wastes into the subsurface soil or
ground or surface water during the
active life of the unit. Thus, It must be a
low-permeability liner. Furtherinore, It
must be of sufficient strength and
thickness to prevent failure due to
puncture, cracking, tearing, or other
physical damage from equipment used
to place waste on the liner or remove
waste from the liner for Inspection.
Synthetic membrane liners are not
likely lobe capable of withstanding
damage from repeated removal and
replacement of wastes during liner
Inspections. Clay liners will also be
unsuitable In many cases, because when
exposed to air, they tend to dry out to
some extent and crack, resulting in the
development of channels through which
leachate may migrate. Therefore, EPA
expects that reinforced concrete with
appropriate coatings will be the lIner
material chosen by most owners and
operator . wishing to qualify for a
Subpart F exemption under f 264.253.
For piles obtaining a Subpart F
exemption pursuant to 0 264.253, the
regulations further provide that the
Inspection plan generally required by
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32324 Federal RegIster 1 Vol. 47, No. 143 F Monday, July 26. 1982 / Rules and Regulations
I 264.15 Include a schedule of Inspection
which Includes periodic removal of the
waste pile and testing of the liner to
ensure that It has not deteriorated to the
point at which ft Is no longer capable of
containment or Is already leaking.
This exemption Is Intended for, and as
a practical matter will apply to. small
piles, especially small piles where the
normal operation of the pile periodically
or routinely results In removal of the
waste. The removal of the waste from
other than small piles on a periodic and
routine basis to Inspect the liner, as
required by the rule, would normally be
Impractical because of handling and
storage difficulties. As discussed above
In Section G.2.a., larger piles of less
permeable wastes In wetter climates
will need a relatively permeable
drainage layer (e.g., gravel or sand) and
possibly a tile drainage system In order
to ply with the one-foot head
requirement. To remove the wastes and
drainage layers from such piles in order
to meet the Inspection requirement, will
normally be Impractical. Usually, only
small piles will have sufficient drainage
to the sides of The pile to meet the one-
foot head requirement without a
drainage layer. Exceptions might include
large piles that are covered, located in
areas of low rainfall, or that contain
waste which Is impermeable. The
regulations do not specify the pile size in
an exemption, but the practicality of
both Inspecting the liner and meeting the
one-foot head requirement will limit the
size In practice.
Finally, the rule requires that If the
liner is leaking. the owner or operator
must notify the Regional Administrator
and either repair or replace the liner or
else begin a detection monitoring
program under Subpart F if such a
program has already been incorporated
In the pile’s permit as a contingency.
These two options are Identical to the
two options available for double-lined
piles, impoundments and landfills that
are exempt from Subpart F. (See
discussion above In Section VILE.8. of
this preamble.)
4. Monitoring and Inspection (Section
264.254). Section 264.254 contaIns
requirements for inspections of liner
systems before and after installation.
These are similar to the liner inspection
requirements for surface Impoundments
discussed above In Section VIl.F.7. of
this preamble. Special Inspection
requirements for piles exempted from
the Subpart F ground-water protection
requirements are set forth in 0264.252
and 284.253.
5. Speciol Requirements for gnitab1e
or Reactive Wastes and for
incompatible Wastes (Sections 264.256
end 264.25 7). The language of the
January 12, 1981, regulations for
Ignitable or reactive wastes has been
modified to conform to the language
contained In the analogous surface
Impoundment requirements in I 26422&
However, the substance of the
regulations Is unchanged. The regulatory
language of the January12, 1981 version
of 0264.257 (Incompatible wastes) has
been retained, but the comments to that
section have been deleted because they
were merely explanatory and lacked
regulatory effect.
5. Closure and Poet-closure Core
(Section 284.258). SInce piles are storage
facilities, all waste residues, and
cont iv ineted subsolls and equipment
must be removed or decontaminated at
closure. This requirement Is Identical to
the first alternative for closing surface
Impoundments under * zu.228(aJ(1),
and Is discussed In more detail In
Section VIIF.9. of this preamble.
If the owner or operator removes or
decontaminates all waste residues and
makes all reasonable efforts to remove
or decontaminate .11 contamInated
containment systems, subsolls,
structures, and equipment and finds
after such efforts that some
contamination remains that be cannot
remove or decontaminate, then the pile
will be considered a disposal unit under
these regulations and must be dosed in
accordance with the closure
requirements for landfills. Thereafter,
the owner or operator must comply with
the landfill post-closure requirements.
The procedure Is the same as for a
surface Impoundment whose owner or
operator ha. planned to remove all
wastes at closure and, because he finds
that he cannot practicably remove or
decontaminate all contaminated soil at
closure, becomes a disposal unIt subject
to the second closure alternative under
* 284.228(aX2) and to post-closure
requirements.
A “reasonable effort” to remove all
contaminated subsoils includes removal
of all wastes and waste residues In the
unit, all contaminated liners and
equipment, and at least some subsoil.
After making reasonable attempts to
remove all contaminated subsoil and
failing thereby to remove all
contaminated subsoil, the owner or
operator may then cease further removal
attempts but must dose the unit and
perform post-closure activIties as he
would do In the case of a landfill.
7. Small Piles. Several commentere on
the January12, 1981, regulations
suggested that small, low-hazard
temporary waste piles should be
exempted from Subpart L requirements.
While EPA believes that there may be
some merit to these comments, It has not
to date received enough Information to
be able to define the size, duration and
contents of piles that might deserve such
an exemption. EPA solicits Information
that would pertain to the
appropriateness of such an exemption.
In addition, the Agency solicits
Information supporting the possibility of
exempting certain type of piles from
particular design and operating
requirements or Subpart F ground-water
protection requirements.
H Land Treatment (Port 264. Subpart
M)
EPA believes that land treatment can
be a viable management practice for
treating and disposing of some types of
hazardous wastes. Land treatment
involves the application of waste on the
soil surface or the Incorporation of
waste Into the upper layers of the soil In
order to degrade, transform or
Immobilize hazardous constituents
present In hazardous waste. The success
of land treatment particularly depends
upon the operational management of the
units. Unlike many landfills or surface
Impoundments, for example, land
treatment does not use highly
Impermeable liners to contain wastes.
Rather, land treatment relies on the
dynamic physical, chemical, and
biological processes occurring In the
upper layers of the soil for the
degradation, transformation, and
- Immobilization of hazardous
constituents. In this sense, land
treatment can be viewed as an “open”
system.
Because land treatment depends upon
a number of soil/waste Interactions for
success, It Is ispeclaily Important that
the units be carefully operated.
MaIntenance of proper soil pH to
optimize microbial action and metal
Immobilization, careful management of
waste application rate to prevent
exceeding the soil’s treatment capacity,
and control of surface water run-off to
prevent unheated hazardous waste from
leaving the facility are several of the key
operational aspects. In addition, well-
managed land treatment Includes
monitoring In the unsaturated zone to
provide Information that the owner or
operator will use In modifying his
operating practices to maximize the
success of treatment processes.
As described in other sections of this
preamble. one of the principal objectives
of the design and operating
requirements applicable to each type of
unit Is to provide effective management
of liquids at the facility to minimize the
risk of ground-water contamination. At
surface Impoundments, landfills and
piles this objective Is principally served
by the construction of barriers that
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32325
prevent liquids from entering the units
and from entering the soil.
The general approach must be
modified somewhat for land treatment
units. Land treatment units are
dissimilar to other land disposal units in
that they are not designed and operated
to minimize oil releases to ground water.
On the contrary. they are open systems
that freely allow liquid to move out of
the unit. The goal of land treatment.
therefore, is to reduce the
hazardousness of waste applied in or on
the soil through degradation.
transformation and immobilization
processes.
The land treatment regulatory
approach, however, does seek to
minimize the uncontrolled migration of
hazardous constituents into the
environment. This is accomplished by
using a defined layer of surface and
subsurface soils (referred to as the
“treatment zone”) to degrade, transform
or immobilize the hazardous
constituents contained in the leachate
passing through the system. Such
treatment processes achieve the same
general objectives as the liquids
management strategy used at other
types of land disposal in that they act to
prevent hazardous constituents from
migrating into the environment.
1. Applicability (Section 264270). The
regulations In this Subpart apply to
owners and operators of new and
existing land treatment units. There is
no exemption for “existing portions” as
found in the regulations for other types
of land disposal. The requirements for
land treatment units do not require the
placement of liners under the waste and.
thus, should not pose major retrofitting.
problems for existing portions.
2. Treatment Program (Section
264.271). The key element of a land
treatment unit is the program which the
owner or operator establishes to
degrade, transform or immobilize the
hazardous constituents in the wastes
managed at the unit. Today’s regulations
indicate that there are three principal
elements to the treatment program that
will be specified In the facility permit.
First, the permit will specify the wastes
that may be handled at the unit. (The
Regional Administrator will base his
selection of the wastes allowed at the
unit on the treatment demonstration
under I 284.272.) EPA is concerned that
parties who engage in uncontrolled
dumping of waste not be allowed to
daim that they are conducting a land
treatment operation simply because
some breakdown of waste constituents
occurs when the waste is dumped.
Therefore, EPA believes that land
treatment should be reserved for those
hazardous wastes having hazardous
constituents that can be completely
degraded, transformed, or Immobilized
through land treatment.
At present, the Agency believes that
land treatment should be confined to
wastes that are primarily organic and
that can be greatly reduced in volume
by physical, chemical, and biological
decomposition In surface soils. The
Agency also believes that the smaller
Inorganic or persistent organic fractions
of these wastes can also be effectively
treated in surface soils. Hazardous
constituents such as heavy metals and
persistent organic compounds are either
unaffected or are only slowly affected
by the primary treatment mechanism.-.
degradation and transformation.
Instead, these hazardous constituents
can be treated by immobilization In
surface soils. —
Effective immobilization of hazardous
constituents at land treatment units can
occur through chemical or physical
processes. Hazardous constituents may
be effectively immobilized via chemical
reactions, such as precipitation,
complexatlon, and cation exchange
reactions, or via physical attenuation
processes which entrap hazardous
constituents within the soil matrix.
Dilution, however, does not constitute
an acceptable treatment process.
Dilution does not provide chemical,
biological, or physical “treatment” (i.e.,
degradation, transformation or
Immobilization) of hazardous
constituents. Rather, dilution allows
wide dispersal of hazardous
constituents In the soil matrix. Since
they remain untreated, such constituents
may eventually migrate and concentrate
to unacceptable levels In ground water
or surface water.
Second, the land treatment program
will include a set of design and
operating measures that are necessary
to maximize degradation.
transformation and immobilization of
hazardous waste constituents. (The
Regional Administrator will also base
hi. selection of these design and
operating conditions on the treatment
demonstration under I 284.272.)
The waste application rate and the
timing of such applications are two of
the most important elements of a
program for managing a land treatment
unit. The Regional Administrator will,
therefore, explicitly address these two
factor. in the facility permit. Another
critical factor is pH control. Soil pH has
a major influence on the magnitude of
microflora populations, which are
essential for degradatio and on the
mobility of metals. There are many unit-
specific operations that will be
necessary to achieve the intended
performance, such as proper tilling
frequencies, maintenance of microbial
populations (perhaps by the addition of
fertilizers), and careful management of
the water content of the treatment zone.
These spedfics of unit operation will
also be addressed in the facility permit.
Third. the treatment program will
Include an unsaturated zone monitoring
program. The purpose of this program Is
to determine the success of treatment In
the treatment zone. The information
provided by this monitoring will help In
making modifications to the operating’
practices at the unit to maximize the
success of treatment. Thus, the purpose
of the monitoring Is to assist In ‘fine.
tuning” the land treatment program. The
elements of the unsaturated zone
monitoring program will be discussed In
more detail later in this preamble.
As part of the development of the land
treatment program. the Regional
Mrnlnlstrator will define a list of
hazardous constituents that are of
concern. These are the constituent. that
the owner or operator must seek to
degrade, transform or immobilize. As in
Subpart F, the basic universe from
which hazardous constituents are
selected Is the list of constituents In
Appendix VIII of Part 281. (The
preamble discussion of Subpart F
explains the basic rationale for using
Appendix VIII).
In the land treatment regulations, the
hazardous constituents are those
Appendix VIII constituents that are
reasonably expected to be in, or derived
from, waste placed in or on the
treatment zone. The owner or operator
must assist in establishing what the
hazardous constituents will be ot the
facility by conducting a thorough waste
analysis of the wastes that will be
handled at the facility. (This step is
required under the general waste
analysis provision of I 284.13 because
such information is necessary to ensure
compliance with Subpart M.) It may be
possible to develop waste analysis
procedures that attempt to characterize
broad classes of waste; if so, It will not
be necessary to analyze each batch of
waste that might be handled at the unit.
Another basic element of the
treatment program Is a clear definition
of the treatment zone, the portion of the
unsaturated zone In which the owner or
operator intends to accomplish
degradation, transformation and
Immobilization of hazardous
constituents. The Regional
Administrator wIll specify the vertical
and horizontal dimensions of the
fre tment zone.
One of the crucial ãoncerns about the
treatment zone Is It. depth. EPA
considered several options for defining
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32326 Federal Register I Vol. 47, No. 143 I Monday, July 26, 1982 I Rules and Regulations
the appropriate depth of the treatment
zone. One option was to make the
treatment zone the “zone of
Incorporation.” (This was the approach.
Included In the February 5,1981
proposed rules.) Commeaters pointed
out, however, that liquid hazardous
wastes are sometimes spread on the
surface of the soil and thus are not
Incorporated. In such cases a “zone of
Incorporation” Is not a meaningful
concept. Therefore, EPA decided not to
use this approach.
A second option was to let the owner
or operator define the treatment zone as
long as it was above the water table.
While this approach had the advantage
of flexibility, EPA was concerned that
an owner or operator could defeat the
basic purpose of the unsaturated zone
monitoring program by selecting a deep
treatment zone. The purpose of the
unsaturated zone monitoring program Is
to give relatively prompt feedback on
the success of treatment in the treatment
zone. If the treatment zone was deep,
there would be a considerable lag time
(possibly several years) between the
time that waste was applied and the
time that the failure of the treatment
process was detected. EPA, therefore,
concluded that there needed to be a
maximum depth for the treatment zone.
Ultimately, EPA concluded that the
treatment zone should be no deeper
than 1.5 meters (5 feet).This depth from
the initial surface soil elevation was
chosen as a maximum depth for the
treatment zone because soil conditions
below this depth are generally not
conducive to degradation and
immobilization of hazardous
constituents. Under the anaerobic and
reducing conditions which occur in most
soils below 1.5 meters, the solubility of
most heavy metals Increases. Also, the
anaerobic conditions limit survival of
the soil microflora necessary for
degradation of most wastes. The 1.5
meter depth, as a maximum, should
enable nearly all land treatment units
the opportunity to operate successfully.
Today’s regulations place one more
constraint on the depth of the treatment
zone. The Agency Is today requiring a
minimum distance of one meter (3 feet)
between the bottom of the treatment
zone and the seasonal high water table.
This minimum distance is necessary to
(1) allow for Installation and
implementation of the unsaturated zone
monitoring, and (2) provide some
minimum buffer to account for
fluctuation In the seasonal high water
table.
Unsaturated zone monitoring at land
treatment units must include soil
monitoring and soil pore.liquid
monitoring immediately below the
treatment zone. At least 15 cm (6 inches)
of soil depth below the treatment zone is
needed for adequate soil sampling.
ThIrty cm (12 inches) of soil will be
sufficient, In most cases, for placement
of the soil pore-liquid sampling device
wholly below the treatment zone.
However, due to the difficulties
associated with field monitoring, sample
collection will often occur somewhere
above or below the desired depth.
Hence, sufficient soil depth (above the
seasonal high water table) must be
available to account for the Inherent
errors associated with field monitoring.
The Agency believes that a one meter
soil depth will accomplish this.
The seasonal high water table, as
specified In local soil surveys (which
have often been conducted jointly by the
Soil Conservation Service and the State
Agricultural Extension Agency), will
often fluctuate over time. The degree of
fluctuation will vary depending on the
hydrologic and geologic characteristics
of a particular site. In most cases, the
Agency believes that a one meter soil
buffer will adequately account for this
fluctuation.
3. Treatment Demonstration (Section
284.272). The first step in the
establishment of a land treatment
program Is to conduct a treatment
demonstration. The purpose of this step
Is to establish what combination of
operating practices at the unit (given the.
natural constraints at the site such as
solid characteristics and climate) can be
used to completely degrade, transform
or immobilize the hazardous
constituents in the wastes that the
owner or operator seeks to manage at
the unit.
The treatment demonstration Is used
to define two elements of the land
treatment program. First. it establishes
what wastes may be managed at the
unit. The owner or operator may only
apply those hazardous wastes that he
has shown can be degraded,
transformed or immobilized auch that
hazardous constituents ai i not expected
to emerge from the treatment zone.
Second. the treatment demonstration
will define the initial set of waste
management practices (Including waste
application rates) that will be
Incorporated into the facility permit
These practices may be modified over
time as data from the unsaturated zone
monitoring program Indicates the need
for adjustments.
The treatment demonstration occurs
before the unit is at full-scale operation
under a permit. The information
generated from the demonstration will
be submitted to the Regional
Administrator and will be used to set
permit conditions.
The treatment demonstration presents
Issues that are analogous to those that
EPA has addressed fortrla l burnsln the
hazardous waste incinerator regulations.
A treatment demonstration may involve
field testing of particular wastes on a
sample soil plot, or It may Involve
laboratory testing. (These are not the
only methods of making a treatment
demonstration, as will be discussed
later in this preamble.) Where field
testing or laboratory analyses are used,
hazardous waste disposal or treatment
is occurring and RCRA provides that
such an activity requIres a permit. EPA
has provided a limited mechanism under
the permit regulations. in 122.27, for
the Issuance of phased land treatment
permits that will allow some owners and
operators to make a treatment
demonstration using field testing or
laboratory analyses without first
receiving a disposal or treatment permit
separate from the actual facility permit.
The basic criterion used In evaluating
a treatment demonstration Is that it
must be possible to achieve complete
degradation, transformation or
immobilization of the hazardous
constituents in a waste if that waste is
to be applied at the unit. WIthin the
limits of the tests used In the
demonstration, this is a standard that
requIres 100% treatment EPA believes
that land treatment should be limited to
wastes for which complete treatment is
possible; therefore, the “100% treatment”
criterion is most appropriate. EPA
recognizes that It will not always be
possible to achieve 100% treatment at an
operating unit because of variations in
climatic and other conditions not fully
under the control of the owner or
operator. Thus, the failure to achieve
100% treatment at an operating unit does
not necessarily constitute a permit
violation but rather It will often be
grounds for modifying permit conditions
to maximize the success of treatment at
the unit.
The treatment demonstration can be
accomplished using Information derived
from published literature, laboratory
studies, field studies or actual facility
operating experience (I.e., monitoring
results). Successful demonstrations will
most often Involve data obtained from
several of the above sources.
A literature search on the particular
waste In question should first be
conducted. Information in the published
literature may assist in the design of
laboratory or field experiments, or
significantly reduce or eliminate the
need for additional experimentation.
However, the Agency believes that, for
most land treated hazardous wastes, an
inadequate data base Is available In the
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32327
literature to predict unit-specific wasie-
soil interactions. -
Laboratory studies may be used as•
rapid screening techniques for
examining, within a reasonable time
frame. the effects of various factor. on
treatment effectiveness. Extrapolation of
this data to field conditions, however.
may often be difficult because of the
complex Interactions occurring In the
field. Therefore, field studies often will
be necessary to verify certain lab-
generated results.
For existing units, actual operating
data (i.e.. monitoring results) can also be
effectively used to demonstrate
treatment. The monitoring data must
Include results from soil-core, soil pore-
liquid, and ground-water monitoring.
All data used to demonstrate the
tree tability of the hazardous
constituents in a specific waste In a
particular land treatment unit must be
generated under conditions similar to
those present at the unit. At a minimum,
the following unit-specific
characteristics and conditions must be
simulated in the treatment
demonstration:
(1) CharacterIstics of the land-treated
waste:
(2) The depth and characteristics of
the treatment zone;
(3) Topography of the treatment zone;
(4) Climate of the area; and
(5) Operating practices (such as waste
application method and rate, tilling
depth and frequency, and soil
conditioning practices (e.g.. pH
adjustment, fertilization, etc.)).
Specific guidance regarding the
necessary elements of the treatment
demonstration is provided in the RC a .4
Land Treatment Guidance Document.
4. Design end Operating
Requirements (Section 264.273). In
§ 284.273, the regulations indicate what
general design and operating -
requirements apply to land treatment
units. The principal design and
operating measures are those that are
required as part of the land treatment
program. These requirements can
Include limits on waste application rates
and methods, measures to control soil
pH, measures to enhance microbial or
chemical reactions (e.g.. fertilization,
tilling) and measures to control the
moisture content of the treatment zone.
The Regional Administrator will specify
these design and operating conditions In
the facility permit based on the results
of the treatment demonstration under
I 284.272.
In addition, there are other general
design and operating requirements that
apply to land treatment units that are
analogous to those required at other
types of land disposal units. The unit
must have effective run-on and run.off
management systems. These control
systems are essential In limiting the
transport of hazardous constituents
either through the treatment zone
toward ground water or off of the
surface of the unit I n an untreated
condition where they may contaminate
surface water or an off-site location.
Run-on control. are particularly
Important at land treatment units. EPA
believes that proper treatment requires
careful management of the soil’s
moisture content Excess water In the
treatment zone caused by run-on can
significantly limit the treatment
effectiveness and can also hinder such
operations as tilling. In addItion, nm-on
will increase the amount of water
flowing down through the treatment
zone and, therefore, Increue the
likelihood of the transport of hazardous
constituents out of the treatment zone
towards ground water.
Today’s regulations provide that the
owner or operator must design,
construct, operate and maintain a run-on
control system that Is capable of
preventing flow onto the active portion
of the unit during the peak discharge
from at least a 25-year storm. The peek
discharge will have to be determined on
a unit-specific basis and will depend on
the rainfall patterns in the region as well
as the size and terrain of the watershed.
The rationale for the 25-year storm
event Is explained in the preamble
discussiOn of the design and operating
standards (Section VILG.).
Today’s rules also require that owners
and operators of land treatment unlti
must design. construct, maintain, and
operate a run-off management system
capable of collecting and controlling a
water volume at least equivalent to a 24-
hour, 25-year storm. The preamble
discussion of the design and operating
standards (Section VILG.) contains
further discussion of the rationale for
this design.
Besides the general requirements to
establish run-on and run-off systems.
today’s regulations require that the
owner or operator manage the treatment
zone in a manner designed to minimize
run-off. In order for hazardous
constituents to be properly treated, It Is
necessary that these constituents not be
allowed to run off the surface of the unit.
Minimization of nm-off can be achieved
through proper unit siting and design.
particularly with regard to soil
characteristics and slope, as well as
through proper management of unit
operation. Including the method, rate.
and scheduling of waste application.
Another requirement calls for control
of wind dispersal at the unit If the
treatment zone contains particulate
matter that Is subject to wind dispersaL
Wind dispersal can be a serious concern
at Land treatment units because
hazardous waste Is generally placed on
or barely under the soil surface.
Measures to control wind dispersal will.
however, be somewhat different than
those used at other types of land
disposal units. PotentIal control
measures for land treatment units
Include establishment of vegetative
cover, maintenance of proper surface
soil moisture, end the use of chemical
soil atabilI Ing agents.
5. Food-chain Craps (Section 4276).
In some cases an owner or operator may
grow food-chain crop. on a land
treatment unit This practice raises
public health concerns. Accordingly.
EPA has placed restrictions on the
growth of food-chain crops on land
treatment units. The Agency believes
that food-chain crops can be safely
grown on land treatment units if these
standards are met.
Today’s regulations on food-chain
crops are basically the same as the
restrictions found in the interim status
standards. Growth of food-chain crops
Is not allowed unless the owner or
operator complies with two primary
criteria. First. he must demonstrate (for
every hazardous constituent except
cadmium) that hazardous constituents
will not occur In greater concentrations
In or on the crop grown on the unit than
In or on the same crop grown on
untreated soils under similar conditions
in the same region. Second, If cadmIum
Is a hazardous constituent at the unit,
the owner or operator must comply with
certain specified management.practlcea
that are designed to limit the entry of
cadmium Into the food chain.
The owner or operator must make the
demonstration necessary to meet the
first criterion before the crop Is actually
planted. This demonstration must
describe the crop to be planted, the soil
characteristics of the treatment zone
(e.g.. pIt cation exchange capacity) and
describe the procedures used in
conducting any tests of crops, Including
the,sample selection criteria, the sample
size, the analytical methods and the
statistical procedures used. Any tests
attempting to measure crop uptake must
be based on the specific wastes and
application rates being used at the unit
because these are critical factors In the
validity of the test. The owner or
operator may make this demonstration
using field tests, greenhouse studies,
available data, or, In the case or existing
units, operating data. Of course, If the
owner or operator wants to use field
tests or greenhouse studies to make the
demonstration, and he is not the owner
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32328 Federal Register I Vol. 47, No. 143 I Monday. July 26. 1982 I Rules and Regulations
or operator of an existing unit already
growing the specific crop, he will have
to obtain a permit for conducting such
activities.
The analysis provided by the owner
or operator must show that hazardous
constituent levels In the crop grown at
the unit will not exceed those found In
the same crop grown on untreated soils
under similar conditions In the same
region. (This test does not, however.
mean that the comparison crop would
be from another hazardous waste land
treatment unit data from such units
cannot be used as the basis for
comparison.)
The basic philosophy of this
requirement Is similar to that used In
Subpart F for ground-water protection.
In the absence of specific standards for
hazardous constituents In food. EPA
bellevps It reasonable to assure that
there will be no significant Increase of
such constituents In the human food
chain as a result of hazardous waste
disposal.
In defining the crop to be used for
comparison purpose EPA considered
several options. These Induded (1)
dropping the “In the same region” test or
(2) revisIng the test to call for
comparisons to a national average of
hazardous constituents found in crops
grown on untreated soils. EPA rejected
the first option because It does not want
to encourage owners and operators to
“shop around” for comparison date from
the region of the country where the
crops contain the highest levels of
certain metals or other constituents.
This might allow more highly
contaminated food-chain crops to be
marketed from land treatment units.
The Agency rejected the second
alternative because It believes that there
is not yet an adequate national data
base for most hazardous constituents In
crops grown on untreated soils.
Therefore, because the Agency has been
unable to-identify less burdensome but
adequately protective demonstration
alternatives, the alternatives In today’s
rules are the same as those In the
Interim status standards.
EPA has not provided for a health-
based variance from the food-chain crop
standard based on narrative criteria.
EPA believes that specific contaminant
limits for food should be established in
national rulemaking to allow for input
from Federal agencies like the Food and
Drug Administration. which are chiefly
responsible for setting such standards.
Today’s regulations differ from the
interim status standards In identifying
the constituents of concern under the
standard. The interim status standards
require that the comparison must be
made for constituents listed in Appendix
VU and In Table I of I 261.24. Today’s
• rules, however, inquire this same
demonstration to be made for all
- hazardous constituents (i.e., all
Appendix VIII constituents) that are
reasonably expected to be In, or derived
from, the waste being land treated. —
The Agency has made this
demonstration more comprehensive In
light of several comments stating that
the safety of food-chain crops grown on
land treatment units could not be
ensured If the requl ed demonstration
Included only Appendix VII and Table I
constituents. Commenters have
observed that may hazardous
constituents not listed in Appendix VII
or Table I of I 261.24 could threaten
human health if present In food-chain
crops from land treatment units. The
Agency agrees with these commenters
and has decided. because of the high
level of risk that could be associated
with Inadvertent or undetected non-
compliance with the standards for food-
chain crops, to require this more
comprehensive demonstration.
If the owner or operator demonstrates
that the food-chain crops grown at the
unit will not have contaminant levels
above those found in similar crops
grown on unheated soils under similar
circumstances In the same region, the
Regional AdmIn1 trator will indicate In
the facility permit that these crops may
be grown at the unit. The owner or
operator may not plant any food-chain
crop not Identified In the permit.
The second component of the food-
chain crop standard applies only to
cadmium. The regulations set forth two
sets of management practices that can
be used to ensure that cadmium will not
cause any adverse effects on human
health or the environment. These
requirements are nearly Identical to
those established in the Criteria for the
Classification of Solid Waste Disposal
Facilities and PractIces (40 CFP. Part
257). The rationale for the requirements
are the same. -
It should be noted that today’s
regulations provide for “phasing in” the
limits on annual application rates
according to the same schedule found In
the Criteria. On February 5,1981 EPA
had proposed to eliminate this phasing-
In approach from the Part 264
regulations. EPA has decided, however,
to retain the phasing approach to
maintain equity between solid and
hazardous waste facility owners and
operators. Since both standards addresS
aggregate cadmium levels in the waste,
hazardous wastes present no greater
risks to food-chain rops than solid
wastes if the standards are met.
6. Unsaturoted Zone Monitoring
(Section 284.278). As Indicated earlier,
the purpose of unsaturated zone
monitoring Is to provide feedback on the
success of treatment In the treatment
zone. The information obtained from
this monitoring will be used to adjust
the operating conditions at the unit In
order to maximize degradation.
transformation and Immobilization of
hazardous constituents In the treatment
zone.
For example, If a4 tficant increase
of a hazardous constituent is detected in
unsaturated zone monitoring, the owner
or operator will examine more closely-
the facility characteristics that
significanily affect the mobility and
persistence of that constituent. These
significant facility characteristics may
Include treatment zone characteristics
(e.g., pH, cation exchange capacity.
organic matter content), or operational
practices (e.g., waste application method
and rate). Modifications to one or more
of these characteristics may be
necessary to maximize treatment of the
hazardous constituent within the
treatment zone and to ! ,diiImi.e
additional migration of that constituent
to below the treatment zone.
It should be emphasized that
unsaturated zone monitoring Is not a
substitute for ground-water monitoring.
Both are required at land treatment
units. Ground-water monitoring Is
designed to determine the effect of
- bazardous waste leachate on the ground
water. Unsaturated zone monitoring
cannot perform that function as a
general matter. Instead, unsaturated
zone monitoring simply gives an
Indication of whether hazardous
constituents are migrating out of the
treatment zone.
Likewise, unsaturated zone
monitoring Is not equivalent to the leak
detection monitoring that is used at
some other types of disposal units (e.g..
double.lined surface impoundments).
Leak detection monitoring Is used in
conjunction with a relatively “closed”
design (e.g.. two liner, with a drainage
layer between them) that Is designed to
pick up any liquid migrating from the
unit. EPA believes that such a design
can be a substitute for the ground-water
monitoring and response program of
Subpart F.
Unsaturated zone monitoring,
however, operates In an open aystem
that allows liquids to pass through the
unsaturated zone. While EPA believes
that unsaturated zone monitoring Is
generally reliable, It cannot provide the
same level of certainty about the
migration of hazardous constituents
from the facility that a double-lined
surface Impoundment (with a leak
detection monitoring program) can
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Federal Register / Vol. 47. No. 143 I Monday. July 26, 1982 I Rules and Regulations
32329
provide. Therefore, unsaturated zone
monitoring cannot be a substitute far
ground-water monitoring.
Some commenters have expressed
concern about the reliability and
practicality of unsaturated zone
monitoring, particularly soil-pore liquid
monitoring. EPA believes that adequate
technology and expertise Is available to
,develop effective and reliable systems.
The Agency also believes that the
Inconvenience cited by some
cominenters can be avoided.
Commenters stated that the placing of
lysimeters (one type of device for
monitoring soil-pore liquid) on the active
portion of a land treatment unit would
hinder site operations. However, the
Agency knows of a number of existing
land treatment units with monitoring
systems engineered so that the above-
ground portion of the device for
sampling soil-pore liquid is located off
the actual treatment zone. This and
other methods can be used to avoid any
inconvenience associated with the
location of these devices.
The unsaturated zone monitoring
program must be designed to determine
the presence of hazardous constituents
below the treatment zone. Generally this
means that the owner or operator must
monitor for the hazardous constituents
Identified for each hazardous waste that
Is placed In or on the treatment zone.
EPA believes, however, that there
may be some situations where this
general monitoring burden may be
reduced without compromising the
objectives of the unsaturated zone
monitoring program. Some hazardous
constituents will be more difficult to
degrade. transform or Immobilize than
others. Therefore, If the owner or
operator monitors for the constituents
that are difficult to treat and can
demonstrate that such constituents are
not migrating from the treatment zone.
then EPA can be reasonably certain that
other hazardous constituents are being
adequately treated.
The Regional Administrator may
address this situation by selecting
principal hazardous constituents (PHCs)
for the unit. A PHC Is a hazardous
constituent contained in the waste
applied at a unit t} at Is difficult to
degrade, transform or Immobilize in the
treatment zone. The owner or operator
may ask the Regional Administrator to
establish PHCs at the unit If the owner
or operator can demonstrate to the
Regional Administrator’s satisfaction
that degradation, transformation or
Immobilization of the PHCs will assure
adequate treatment of the other
hazardous constituents in the waste.
The Regional Administrator will be
particularly concerned with two factors
when deciding whether to establish
PHCs. First, he will be concerned with
the mobility of the constituent Since
PHCs will be monitored in the area
below the treatment zone, the Regional
Administrator will want to’assure that
the PHC give an early warning of the
failure of the treatment process.
Therefore, a PHC must be one of the
most mobile constituents in the
treatment zone. Second. a PHC must be
one of the most concentrated and
persistent constituents in the treatment
zone. This Is to assure thai the
constituent provides a reliable
Indication of the success of treatment in
the treatment zone.
In the selection of principal hazardous
constituents, the Regional Administrator
will evaluate the results of waste
analyses. literature reviews, laboratory
tests, and field studies. Waste analyses
will be used to Identify the hazardous
constituents In the waste. Information
obtained from literature reviews.
laboratory tests, and field studies
(including monitoring results for existing
units) will be used to assess the relative
mobility and persistence of the various
hazardous constituents. The extent of
data needed to support the selection of
one or more principal hazardous
constituents for a particular waste wit)
be determined by the Regional
Administrator. - .
Both soil-core and soil-pore liquid
monitoring are required in today’s rules.
These two monitoring procedures are
Intended to complement one another.
Soil-core monitoring will provide
Information primarily on the movement
of “slower-moving” hazardous
constituents (such as heavy metals).
whereas soil-pore liquid monitoring will
provide essential additional data on the
movement of fast-moving, highly soluble
hazardous constituents that soil-core
monitoring may miss.
The general elements of the
unsaturated zone monitoring program
are patterned after those required for
ground-water monitoring in Subpart F.
As In the detection monitoring program.
the unsaturated zone monitoring
program is designed to determine
whether the level of hazardous
constituents In the soil or soil-pore
liquid below the treament zone shows
statistically significant increases over
the background levels of those
constituents in the soil or soil-pore
liquid, in addition, today’s regulations
Include requirements for monitoring
systems, sampling frequency and
sampling and analysis procedures and
methods that are analogous to those in
Subpart F. Some modifications of the
Subpart F monitoring program must be
made, however, to make ft compatible
with land treatment
First, the basis for establishing
background values differs. In the
ground-water monitoring program,
background values are based on data
taken fromupgradlent monitoring wells.
Such a concept Is not applicable to land
treatment units. Background values at
land treatment units are established by
sampling the soil and soil-pore liquid In
a background plot. A background plot Is
generally a segment of the soil near the
unit that has characteristics similar ‘to
that of the treatment zone and that has
not been contaminated by hazardous
waste. At a new unit, however, the
owner or operator could use the actual
treatment zone prior to waste
application as the background plot The
key characteristic of the background
plot Is Its similarity to the treatment
zone.
Second, the unsaturated zone
monitoring program will rely on
statistical procedures that are somewhat
different than those used fat detection
monitoring programs under Subpart P. In
order to account for seasonal variations
In soil-pore liquid quality, background
values will be based on one year of
quarterly sampling as In the detection
monitoring program. Since background
soil levels are not likely to change
significantly during such a time frame,
today’s rules allow that background soil
levels maybe established following a
one-time sampling. Unsaturated zone
monitoring is similar to compliance
monitoring, however, in that there may
be several constituents to be monitored.
Thus, the probability of an experiment
error rate Is high. Therefore, the
statistical procedures used in the
unsaturated zone monitoring program
will be based on a narrative standard as
used in the compliance monitoring
program.
This standard seeks to provide
Hreasonable confidence” that the
migration of hazardous constituents
from the treatment zone will be
Indicated after balancing the risk of
false positives and the risk of false
negatives. [ This preamble discusses the
rationale for this standard In Section
Vll.D.lo.) If the number of constituents
to be monitored is small, then this
standard can be met by the use of the
Student’s t-test protocol described in
• 264.W ’(h).
While EPA believes that the standard
for statistical procedures Just described
should be adequate for most situations,
EPA Intends to further analyze the
appropriateness of other statistical
procedures for unsaturated zone
monitoring. For example, EPA Is
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32330 Federal Register / Vol. 47, No. 143 / Monday. July 26 . 1982 I Rules and Regulations
considering whether other factors that
might affect background levels of soil.
pore-water quality should be
specifically addressed in devising the
monitoring protocols. EPA specifically
asks for public comment on this issue.
Third. the unsaturated zone
monitoring program doe. not call for
measurements of the flow and direction
of ground water. The gradient In the
ground water is not relevant to
unsaturated zone monitoring and, thus,
such information Is not necessary.
Fourth. the response to the detection
of a statistically significant Increase in
Subpart M differs from the response
required In Subpart F. The results of
unsaturated zone monitoring are to be
used in the modification of the operating
practices at the unit. Thus, the required
response Is the submission, withIn 90
days. of a permit modification
application that sets forth how the
owner or operator will adjust his
operating practices (Including waste
application rates) to maximize
degradation. transformation and
immobilization of hazardous
constituents In the treatment zone.
However, an opportunity exists in
today’s rules for not submitting the
permit modification application. but
only If the owner or operator can
successfully demonstrate to the
Regional Administrator that the
statistically significant Increase results
from an error in sampling, analysis, or
evaluation. This error demonstration
must be submitted to the Regional
Administrator within 90 days of the
owner or operator’s knowledge of the
statistically significant increase.
As indicated earlier In this preamble.
the appearance of hazardous
constituents below the treatment zone
does not In Itself constitute a violation
of the regulations. (This Is analogous to
the fact that a landfill liner which has
been designed not to leak does not
violate the design standards If the liner
falls at some future lime.) Under the
regulatory strategy In these regulations,
contaminants that are not controlled by
the design and operating measures will
be addressed by the monitorIng and
response program In Subpart F.
7. Recordkeepin.g (Sections 264.279).
Today’s rules state that the operating
record for the unit (as required in
I 284.73) must include Information on
the dates and rates of the application of
hazardous wastes. Waste application
dates and rates are two vital factors, as
discussed earlier In this preamble.
which the owner or operator must
carefully track and manage In order to
achieve proper waste treatment.
8. Closure and Post-clog ure Care
(Section 28t 280). The closure and post-
• closure care requirements In today’s
regulations are quite similar to those
that are required In the Interim status
regulations. The interim status
regulations. however, expressed the
requirements asa set of considerations
that were designed to achieve general
environmental objectives stated In the.
regulations. Today’s regulations state
the general design and operating
TM conslderations” as actual duties that
the owner or operator must meet. Those
duties are designed to achieve the same
general environmental objectives as the
interim status requirements.
During the closure period the owner or
operator must continue the operating
practices that are designed to maximize
degradation, transformation, and
Immobilization at the unit. Operating
practices designed to maximize
treatment include tilling of the soil.
control of soil pH and moisture content,
and fertilization. These practices must
generally be continued throughout the
closure period. In addition. during the
closure period, the owner or operator
must continue those practices that were
designed to m1nIml e run-off from the
treatment zone and to control wind
dispersion (If needed). The run-on and
run-off systems must be maintained. The
owner or operator must also adhere to
the restrictions on food-chaln.crops
specified In the permit.
The owner or operator must continue
to operate the unsaturated zone
monitoring program as provided for
under *264.278 with one exception. Soil-
pore liquid monitoring may be
terminated 90 days after the last
application of waste at the unit. EPA
expects that the fast-moving
constituents that the soil-pore liquid
monitoring system is designed to detect
should migrate out of the treatment zone
soon after these constituents are applied
If they are to migrate at all. EPA
believes that any such migration Is
likely to occur in less than 90 days after
the waste is applied. After the 90 days,
the soil-core monitoring program
becomes the principal mechanism for
detecting migration out of the treatment
zone.
The major element of the closure
procedures at a land treatment unit Is
the placement of a vegetative cover that
Is capable of malnt*Ining growth
without extensive maintenance. Section
284.280(a)(B) requires the owner or
operator to establish a vegetative cover
at such time that the cover will not
substantially impede degradation.
transformation, or Immobilization of
hazardous constituents. Thus, the
vegetative cover must not be established
until sufficient treatment has occurred
so that the placement of the cover and
termination of certain operating -
practices (e.g.. tilling) will not
substantially Inhibit treatment
processes.
Once the vegetative cover is
established, certain general practices
designed to maximize treatment
processes (e.g.. tilling) cannot be
conducted without damaging or
destroying the vegetative cover. Such
practices should not, therefore, continue
once the cover is established.
Accordingly, today’s regulations provide
In I 264.280(a)(1) that those practices
aimed at enhancing degradation,
transformation, and Immobilization of
hazardous constituents that would be
Inconsistent with the establishment of
the vegetative cover under
I 264.280(a)(8) should not be continued
once the cover Is established.
A vegetative cover consists of any
plant material established on the
treatment zone to provide protection
against wind or water erosion, or to aid
In the treatment of hazardous
constituents. The major function of the
vegetative cover during closure and
post-closure care Is to minimi,e wind
and water erosion. Perennial grasses are
often used because they can be rapidly
established into a thorough cover.
However, the best suited plant species
will depend on the season and region of
‘the country. Agronomists from the State
Agricultural Extension Service, USDA,
or nearby universities can be valuable
sources of Information regarding crop
selection and cultivation practIces
which are best suited to a given region.
Section 246.115 of the general
requirements for closure requires that
the owner or operator submit a
certification from an Independent
registered professional engineer that a
unit has been closed In accordance with
the approved closure plan specified in
the permit. In the case of land treatment
units, EPA believes that a qualified soil
scientist should be as quelifled as a
professional engineer to evaluate the
adequacy of such measures as
vegetative cover. Therefore, today’s
regulations provide that an Independent
qualified soil scientist may make the
certification.
During the post-closure care period,
the owner or operator must continue
many of the activities required during
the active life (including the closure
period). These Include control of wind
dispersal, maintenance of run-on and
run-off systems and continuance of
food-chain crop restrictions. The owner
or operator must also continue soil-core
monitoring but may suspend soil-pore
liquid monitoring go days after the date
of the last waste application. (This time
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32331
period may have already passed during
the closure period.) In addition, the
vegetative cover established during
closure must be maintained.
The owner or operator must also -
continue tp take actions that foster
degradation, transformation and
Immobilization processes In the
treatment zone. These operating
measures must be tempered somewhat
during the post-closure care period.
Only those measures that do not -
interfere with the other post.closure care
requirements should be continued. Thus.
the application of lime to maintain the
pH in the treatment zone Is an
acceptable practice but tilling of the soil
that destroys the vegetative cover at the
unit should not be continued. The
Regional Administrator may wish to
state In the facility permit, the level of
treatment, particularly degradation or
transformation. required at a particular
site prior to the start of post-closure
care. This would greatly Influence the
type and extent of actual “treatment”
activities necessary during the post.
closure care period and may assure
greater control over completion of these
treatment processes. Guidance for
specification of levels of treatment Is
provided In the RCRA Land Treatment
Guidance Document. (See Section VII.G.
of this Preamble.)
The post-closure care regulations also
set out a variance that would allow the
owner or operator to be relieved from
compliance with the post-closure care
requirements as well as the closure
requirement for establishment of a
vegetative cover. This variance can be
obtained If the Regional Administrator
finds, based on a demonstration by the
owner or operator that the level of
hazardous constituents within the
treatment zone does not exceed the
background values for those
constituents by statistically significant
amounts. Such a demonstration may be
made at any time after the last
application of waste Is made at the unit.
The sampling and data evaluation
standards. Including the requirements
for evaluation of statistical significance,
are specified In todays rules. These
requirements are almost Identical to
corresponding standards contained in
264.278. They include only soil
monitoring and analysis, however, not
soil-pore liquid monitoring.
It Is Important to note that an owner
or operator who can successfully make
the showing that hazardous constituents
are no longer present In the treatment
zone at statistically significant amounts
may be eligible for a further exemption
during the post-closure care period. If
the owner or operator can also
demonstrate that no hazardous
constituents have migrated below the
treatment zone during the active life of
the land treatment unit, there is little
prospect that corrective action measures
under Subpart F would be necessary.
Accordlngiy. the regulations provide
that an owner or operator that can make
both such demonstrations to the
Regional Administrator may be
exempted from Subpart P.
9. SpecialRequlrementsfarLjnitable
orReaciive West. (Section 284.281). As
Is required for the other types of land
disposal units, today’s regulations
restrict land treatment of Ignitable and
reactive waste. The rationale for this
provision Is the same for land treatment
as It is for the other type. of disposal
units.
10. Special RequJiements for
Incompatible Wastes (Section 264.282).
As is required for other types of lend
disposal units. today’s regulations
restrict land treatment of Incompatible
waste. The rationale for this provision Is
the same for land treatment as It Is for
the other types of disposal units. It
should be recognized, however, that one
way a waste Is incompatible with a land
treatment unit occurs when It operates
to undermine treatment processes In the
treatment zone (eg.. by destroying
microbial populations).
I. Landfills (Part 264, Subpart N)
Subpart N contains the design and
operating standards for landfills used to
dispose of hazardous wastes. The basic
requirements are: (1) A liner to prevent
migration of wastes out of the landfill
and Into the subsurface soil or ground
water or surface water during the
landfill’s active life (with an exemption
for existing portions, such as cells or
trenches that already contain wastes);
(2] a lea chate collection and removal
system (3) control of run-on and run-off;
and (4) cappIng the wastes at closure
and conducting post-closure care. An
exemption from the ground-water
protection requirements of Subpart F is
provided for landfills that have double
liners and leak detection systems. A
waiver of the liner and leachate
collection and removal requirements Is
provided If the owner or operator
demonstrates to the Regional
Administrator that hazardous
constituents will never migrate from the
landfill Into ground or surface water.
Many of the features of the Subpart N
regulations (liners: leachate collection
and removal systems: and double liners
and leak detection systems Installed to
qualify for exemptions from Subpart F)
are explained In the general discussion
of design and operating standards (see
Section VIlE, of this preamble) or In the
discussion of analogous provisions In
Subparts I C and L for surface
Impoundments and piles (see Section
VILF. and VU.C. of this preamble). They
will not be discussed again here. The
few ren nIr g Issues that are unique to
landfills will be discussed below.
1. Special Requirements for Ignhlabie
or Reactive Waste. m id for
Incompatible Wastes (Sections 284.212
and 284.313). Sections 264.312 and
264.313 are based upon the analogous
Part 265 interIm status standards.
Section 265312 was amended on-June
29,1981, and 264.312 Is based on the
amended version. A discussion of the
basis for the current restriction on
landflulng Ignitable and reactive wastes
Is set forth In the preamble to those
standards at 46 FR 33402 Uune 29.1981).
2. SpeciolRequirements for Liquid
Waste (Section 284.314). Section 264314
restricts the disposal of liquids In
landfills. It Is based upon the analogous
Part 265 interIm status standards,
Including portions which were recently
promulgated on March 22. 1982(47 FR
12216).
3. Specie) Requirement. for
Containers (Section 264.315). Section
264.315 provides that containers (except
for very small containers) must be either
(1) at least 90 percent full when placed
In a landfill, or (2) crushed, shredded, or
similarly reduced In volume to the
maximum practical extent before burial
In the landfill. The purpose of the rule Is
to minimize subsidence In the landfill
resulting from decaying containers
having void spaces.
The analogous Interim etatus standard
In 285.315 provides only that an empty
container must be crushed, etc., before
placement In the landfill. However, It
falls to define the term “empty” (and
“full”) and to address the subsidence
that may be caused by the disposal of
partially empty containers. Today’s
promulgation of f 264.315 (and the
proposal of ¶llel modification of
* 265.315) addresses these regulatory
saps.
In the February 5.1981 proposal. EPA
proposed that to be considered full.
containers have either 3 inches or less of
void space or 10 percent or less volume
of void space, whichever Is less. Some
comnienters argued for less stringent
numbers. Other commenters argued that
crushing or shredding empty containers
Is ImpracticaL These commenters did
not provide EPA with data to support
their comments.
The Agency believes that by allowing
only full containers or those that have
been crushed or otherwise reduced In
void space to be placed In a landfill,
disruptive subsidence of the final cover
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32332 Federal Register I Vol. 47, No. 143 L Monday, July 26, 1982 I Rules and Regulations
resulting from the placement of partially
filled containers In landfills can be
avoided. The Agency disagrees with the
commenter who suggested that crushing
or shredding empty containers Is
impractical. Several landfills are
currently doing so and container
crushing equipment is readily available.
Those owners or operators having
containers which are partially filled may
either (a) fill them to greater than 90
percent of their capacity. (b) empty them
and then crush or shred them to the
maximum extent practical, or, (c) to the
extent technology and safety allow.
reduce the volume of the partially full
containers. The provision allowing
landfluing of containers that are 90% full
means that there could be about 4
inches of void apace in the typIcal 55-
gallon drum.
The Agency would prefer to set a
performance limit on the required
effectiveness of volume reduction and
has considered Imposing a requirement
limiting maximum remaining void space
after crushing to 10 percent of the
precrushed volume. EPA presently lacks
the data necessary to determine the
practicality of such a limit. The Agency
Is, therefore, seeking comment.
particularly from those currently
crushing drums and those manufacturing
crushing equipment. as to what numeric
performance level may practically be
required.
One commenter suggested that all
containers which are so small that void
spaces In them would not significantly
affect the stability of a landfill should be
allowed. The Agency agrees and is,
therefore, exempting very small
containers, such as an ampule.
4. Disposal of Small Containers of
Hozariious Waste in Overpocked Drums
(Lob Packs) (Section 264.316). Section
284.316 provides that small containers of
hazardous wastes in overpacked drums,
commonly known as “lab packs,” may
be placed In landfills If certain
requirements are met. This provision
allows disposal of Ignitable or liquid
wastes In drums In accordance with
these special conditions. This regulation
Is based upon the recently promulgated
Interim status standard for lab packs (46
FR 56592. November 17, 1981).
J. interim Status Conformin.g Changes
(Pa,: 285)
Some of the regulations promulgated
today In Part 264 suggest conforming
changes to parallel sections of Part 265.
The Part 265 requirements were
previously promulgated in interim final
form and interested parties have
commented on them. The changes made
today are necessary to ensure
consistency In application of policy
decisions orto ensure a lack of conflict
between the provisions of the twoparts.
Some ithk iges . however, must be
proposed because they contain
significant changes to existing rules and
the public has not bad an opportunity to
comment on the appropriateneas of
applying them during the Interim status
period. These are proposed In another
section of today’s Federal Register.
A careful side-by-side reading of the
Part 264 rules promulgated today and
the existing Part 265 rules, will identify a
number of additional differences which
are not substantive. Most of these
differences are necessary because Part
265 Ia intended to be largely self
Implementing. whereas the Part 264
requirements are implemented with
substantial interaction with the Agency
through the permitting process.
Therefore, conforming changes have not
been made to address those differences.
Some other differences represent EPA’s
effort to make the new Part 264
requirements more easily understood.
Conforming changes that are solely a
matter of exposition are not made In this
rulemaldng (except when associated
with some other change).
1. Waste Piles—Containment (Section
285.253). In the Part 264 regulations, the
addition of the 25-year storm event as
the design criterion for run-on and run-
off control systems resulted from
comments on the interim status and
permitting requirements which contain
• only narrative design criteria. EPA has,
therefore, adopted the same storm event
as the design criterion for Interim status
as well. The Agency has also adopted as
an lntei’Im status requirement the Part
284 provisIon that run-off collection
systems be emptied expeditiously to
maintain Capacity.
2. Waste Piles—Closure and Post-
closure Care (Section 265.258/. The
Interim status requirements for waste
piles contained no closure requirements.
At the time they were written, the
Agency thought that the requirements
would be obvious. Since the rules
applied only to storage piles, the wastes
would have to be removed at closure In
accordance with Subpart C. Any pile
which would remain at closure Is
considered to be a landfill and would be
subject to the closure and post-closure
requirements o Subpart N. However,
some comments and questions received
by EPA indicated some confusion on
this point. Therefore, a section to clarify
the closure requirements Is being added
to both the Part 264 standards and to the
Interim status requirements.
3. Land Treatment—General
Operating Requirements (Section
265.222). ThIs section is being changed
to add the 25-year storm design criterion
for run-on and run-off control systems
and to require them to be emptied or
managed expeditiously to prevent
successive storm events from filling
them up, reducing available capacity.
The same changes are being made to the
pile requirements (see paragraph 1
above), and the rationale Is the same as
for the corresponding Part 264 rluirgea.
In addition, a requirement Is being
added to ensure control of wind
dispersal of particulate matter at land
treatment units. A similar requirement Is
contained In the requirements for waste
piles and landfills. The Part 265
requirements currently contain a
requirement that the owner or operator
must consider wind dispersal controls
as a part of closure.
4. Land Treatment—Food Chain
Crops (Section 265.278). PrevIously, this
section of Part 265 required that future
property owners be notified by a
stipulation In the land record or property
deed which stated that food chain crops
should not be grown due to a possible
health hazard. One commenter on the
May19. 1980 standards suggested that
the stipulation state that. rather than not
allowing food chain crops to be grown
on the site In the future, food chain
crops could be grown but only In
compliance with the requirements of
* 285.276(c)(2). The Agency agrees with
this commenter, as It believes that
compliance with 285.276(c)(2)
whenever food chain crops are grown
provides adequate public health and
environmental protection.
5. Land Treatment—Recordkeeping
(Section 285.279). The redundancy
caused by the inclusion of certain -
recordkeeping requirement. in both
I I 265.73 and 265.279 has been
eliminated. Since records are required
under * 265.73 of the quantity and
location of each hazardous waste placed
In the unit, there Is no need for the same
requirements to appear in I 265279.
Section 265.279 now only addresses the
keeping of records on hazardous waste
application dates and rates. These are
additional recordkeeping requirements
to those specified in I 285.73.
6. Land Treatment—Closure and post-
closure care (Section 265.280). Several
changes have been made to the closure
and post-closure care requirements of
• 265.280 in order to make the Interim
status requirements more consistent
with the closure and post-closure care
requirements for land treatment units.
In today’s rules, under I 265.280(d),
several monitoring, maintenance, and
control activities are required of land
treatment unit owners or operators
during the closure period. These are, for
the most part, extensions through
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Federal Register I Vol. 47, No. 143 / Monday, July 26, 1982 I Rules and Regulations
32333
closure of activities which are required
during earlier unit operations. The
unsaturated zone monitoring system - -
must be maintained and operateck In
compliance with specifications to be
provided in the closure plan. (As in the
Part 264 regulations, the owner or
operator may terminate soil-pore watr
monitoring 90 days after the last waste
application.) The ma-on and run-off
management systems required under
I 285.272 (b) and (c), respectively, must
be maintained. These new requirements
constitute minimum operation and
maintenance standards for unit closure
and replace the earlier 285.280
standards requiring that these
operations only be “considered” for
inclusion In the closure plan. In addition,
control of wind dispersal of hazardous
waste during closure (as well as post-
closure) Is now required.
In response to a comment received on
the May 19. 1980 standards. today’s
rules allow the use of an Independent
qualified soil scientist to verify that the
unit has been closed In accordance with
the specifications In the approved
closure plan. A qualified soil scientist
will have a knowledge of the factors
most likely to influence the fate and
transport of hazardous waste
constituents in the soil.
The existing I 205.280 requirement
that the unsaturated zone monitoring
system be operated and maintained
during the post-closure care period Is
also being revised today. Under today’s
rules, both Parts 264 and 265, only soil
core monitoring and not soil-pore water
monitoring is required during the post-
closure care period. Because waste is no
longer being applied to the unit during
the post-closure care period, the Agency
believes that soil-pore water monitoring.
which Is primarily intended to detect the
movement of the more mobile hazardous
constituents. Is unnecessary. Soil-core
monitoring should provide all the
monitoring Information necessary to
determine whether hazardous
constituents are migrating toward
ground water during the post-closure
care period.
7. Land Treolment—Speciol
requirements for ignitable or reactive
waste (Section 255.281). In response to a
comment on the May 19, 1980
regulations. a paragraph has been added
to { 285.281 to allow the land treatment
of Ignitable or reactive wastes If they
are protected from conditions leading to
Ignition or reaction., This clause provides
greater flexibility to the owner or
operator. The Agency does not think.
owcver, that such Ignition, or
especially reaction, can be prevented
very easily In a land treatment unit
unless the wastes were rendered non.
Ignitable or non-reactive.
8 Landfills—Ceneml operating
requirements (Section 2&5 3O2). As with
the waste pile and land treatment
regulations, the Interim status
requirements for landfills are being
modified to adopt the 25-year storm
criterion for design of run-on and nm-off
control systems (see paragraphs 1 and 3
above). The common sense requirement
that these systems be expeditiously
emptied after storms to maintain
capacity has similarly been added.
9. Landfills—Special requirements for
ignitable or reactive wastes (Section
265.322). As a result of a delayed
compliance date for the restriction on
landfilling of liquid waste In containers
(I 265.314(c)), the language In the
regulations respecting Ignitable waste Is
more complicated and confusing than Is
necessary. Accordingly, these provisions
have been simplified In both Parts 284
end 265. The change divorces
consideration of the physical state of the
waste (I.e., whether It Is a liquid or a
solid) from the management
requirements regarding Its Ignitability.
Requirements respecting Ignitability are
covered In II 284.312 and 285.312, and
those requirements relating to liquids
are covered In I I 264.314 and 265.314.
This does not represent a substantive
change, only a clarification. Previous
rulemaking actions on this topic have
indicated EPA’s intent to address the
problems associated wIth the ignitable
characteristic of a waste under I 265.312
and the liquid nature of a waste under
I 285.314. The restrictions on liquid
wastes in general, coupled with the
requirements that ignitable wastes be In
containers when landfllled, as a
practical matter, result In a virtual ban
on the landfilling of liquId Ignitable
wastes.
10. Lan df ills—Special requirein eMs
for liquid wastes (Section 285.314). The
standards adopted In I 264.314
concerning the acceptance of bulk
liquids In landfills are slightly different
from the Interim status requirements
promulgated May 19, 1980. The language
has been changed to specify that bulk
liquids can be placed In landfills only
when the facility Is equipped with a
liner system (underliner and leachate
collection system) that meets the
requirements of the regulations
(1 284.302(a)). The same change is also
being made to the interim status
requirements (I 285.314). The new
language replaces the May 19. 1980
requirement that a facility receiving bulk
liquids have a liner system which Is
chemically and physically resistant to
the liquid and a functioning leachate
detection system capable of removing
the percolating liquids. Since that
requirement does not specify the design
or required effectiveness of the liner
system in any way, the Agency Is
concerned that a substantial portion of
the added liquids would be allowed to
pass through the liner and escape. The
changes made today specifying
compliance with the liner performance
standards of Part 284, will ensure that
bulk liquids will be placed in landfills
only when the liner system has been
designed to y contain the wastes so
that all leachate can be collected and
removed. According to EPA’s
Information, only a relative few existing
landfills are equipped with appropriate
liners and leachate collection units.
Therefore, bulk disposal of liquids In
many existing landfills may be curtailed
upon the effective date of these
requirements, at least until new,
appropriately designed cells can be built
at those landfills.
K Permitting Requirements (Part 122)
On May 19, 1980. EPA promulgated
the consolidated permIt regulations (40
CFR Part 122,45 FR 33418) which
Include requirements for permitting
hazardous waste management facilities
under RCRA. Owners and operators of
facilities which treat, store, or dispose of
hazardous waste must obtain permits
from EPA, end EPA must Issue those
permits In accordance with the Part 122
and Part 124 regulations.
1. Introduction. Part 122 provides for
a two-part hazardou. waste permit
applicatIon Part A and Part B.
Requirements for the content of Pert A
of the permit application remaIn
unchanged from the May 19, 1980
promulgation. (40 CFR 122.24,45 FR
33434). Requirements for the content of
Part B of the permit application were
amended January 12,1981 (40 CFR
122.25,46 FR 2889) to provide specific
Information requirements for owners
and operators of hazardous waste
treatment and storage facilities. Today’s
amendments to I 122.25 specify the
contents of Part B of the permit
application for new and existing waste
piles, surface impoundments, land
treatment units, and landfills. In order to
receive a RCRA permit for any of these
types of units, owners or operators must
submit sufficient Information In Parts A
and B to enable EPA to determine
whether the unit Is In compliance with
the Part 264 standards, or for a new unit,
whether It will be In compliance with
those standards.
2. Background. On May 19, 1980, EPA
promulgated certaIn general regulations
under Parts 264 and 122 applicable to
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32334 Federal Register / Vol. 47, No. 143 I Monday, July26 , 1982 I Rules and Regulations
hazardous waste management facilities
to be permitted under RCRA (45 FR
33221. 33434). The Part 204 regulations
contained administrative and technical
standards for operating permitted -
facilities. The Part 122 regulations,
among other things, specified what
Information owners or operators of
facilities had to submit to EPA in their
permit applications to demonstrate their
compliance with the Part 264 standards.
Sections 122.4,122.24 and 122.25 set
forth the required content of Parts A and
B of the permit application, respectively.
On January 12. 1981, EPA
supplemented the May19. 1980 rules by
promulgating specific standards for
several types of hazardous waste
treatment and storage facilities, among
them surface Impoundments and waste
piles (Part 204. Subparts K and L, 40 FR
2888-2872). At that time, EPA also -
added companion requirements to
I 122.25. directing permit applicants for
treatment and storage facilities to
submit Information In their Part B’s
pertinent to the new Part 264 standards
(46 FR 2889—2891).
On February 13,1980. EPA
promulgated temporary standards for
permitting new land disposal facilities
(40 CFR Part 287,46 FR 12429). Those
regulations included technical and
administrative requirements for new
disposal surface Impoundments, new
land treatment units, and new landfills.
No specific permit application
requirements were promulgated at that
time.
As explained earlier in this preamble,
today’s amendments to Part 284
Subpart. K, L, M and N subsume and
replace the specific standards for
surface impoundments, waste piles, land
treatment units, and landfills as
promulgated January 12, 1981, and
February 13, 1981. Similarly, today’s
new Part B permit application
requirements subsume and replace the
Part B requirements of January 12, 1981,
for surface Impoundments and waste
piles, and add new Part B requirements
for land treatment units and landfills.
3. Contents of Part B for Surface
impoundments. Waste Piles, Land
Treatment Units, and Landfills, The-
required content of Part B of the permIt
application is specified in three
subsections in I 122.25. Paragraph (a)
lIsts general Information required for all
types of units. Paragraph (b) lists
Information required for individual
types of units (e.g.. waste piles,
landfills). Paragraph (c) lists ground-
water monitoring information required
for surface impoundments, waste piles,
land treatment units, and landfills.
Section 122.25(a) remains
substantially unchanged from the
January 12. 1981 promulgation.
(Conforming cross-references have been
added to paragraphs (a)(5) and (a)(13).)
Thus, applicants for RCRA permits for
waste piles, swface impoundments, land
treatment units, and landfills must
address In their Part B permit
applications the general Information
requirements (paragraph (a)) published
in the January 12,1981 Federal Register,
as well as the specific Information
requirements (paragraph (b)) published
today for each respective unit type, and,
where applicable, the ground-water
monitoring information requirements
(paragraph (c)) published today. Part B
requirements pertaining to ground-water
monitoring apply to all four types of
units unless they are exempted by
204.90 (applicability of Subpart F).
As In the January 12, 1981.
promulgation of 1122.25 (b), today’s
specific Part B requirements are each
tied to a Part 204 standard and.
wherever possible. parallel the structure
of the respective Subparts in Part 264. In
general, the Part B requirements in
today’s rules state the form and subject
matter of the Information required (e.g.,
detailed plans of liner systems) and
refer to the companion regulation in Part
204 whIch is germane to the permit
application.
In the Part B submission. the permit
applicant muBt submit Information in
sufficient detail to enable the Regional
Administrator to judge whether the unit
will be in compliance with the Part 284
standards, and thus eligible for a RCRA
permiL The applicant must address each
aspect of design and operation Included
under individual Part 264 standards. For
example, 122.25(b)(7)(il) requires that
detailed plans and an engineering report
be submitted which describe the liner
system to be used In a landfill, as
required under 0264.301. Section 204.301
lists, among other things. a number of
design standards for liners, including the
strength, thickness, and chemical
properties of the liner material. Each of
these characteristics of the liner
material must be addressed In the Part B
submission for landfills. If the applicant
submits a Part B which does not address
each requirement with enough detail so
that the Director 1 can make an Informed
judgment as to whether the unit will
meet the Part 264 standards, the
applicant will be asked to clarify his
submission by providing more
Information (see 124.3(c)).
‘The term “Director” ir uee3ln EPA’. psrmlttinj
regulation, to mean the Reglon*l AdmInl.Uator In
any6tat, whey. EPA Ii running the R A
hazardou, we.te program. and the State Diiector In
any State with authorization to am lie huerdoua
Waite program (or • pert of It. program) In lam of
EPA’. naming the Federal program.
4. When to Submit Ports A and B. As
provided in 1122.21 In EPA’s May 19,
1980 hazardous waste regulations (45 r
33432), the submission of Part A of the
permit application is a condition of
“Interim status” for existing hazardous
waste management facilities. That
regulation further provide, that the
Director shall set a date, giving at least
six months notice, for submission of Part
B of the permit application for existing
facilities. Therefore, owners and
operators of existing facilities are pot
required to submit Part B until requested
by EPA. although they may voluntarily
submit Part B of the permit application
before it has been requested by EPA.
Owners and operators of new facilities
must submit Part A and Part B of the
permit application at least 180 days
before physical construction Is expected
to commence. Owners and operators
may not commence construction of new
facilities until a permit has been issued.
5. Specie/Permitting Procedures for
Land Treatment Units. Section 204. 272
provides that a treatment demonstration
must be made prior to the permitting of
any land treatment unit. The purpose of
the treatment demonstration is to show
that hazardous constituents in the waste
can be completely degraded.
transformed, or Immobilized In the
treatment zone. The I 204.272
requirements allow the owner or
operator to use, among other means.
field tests or laboratory analyses to
make the treatment demonstration.
Therefore, the owner or operator of a
new land treatment unit, or the owner or
operator of an existing unit who wants
to land treat new waste, needs the
opportunity to use field tests or
laboratory analyBes to make this
demonstration. However, field tests and
laboratory analyses can only be
performed under a permit because they
Involve the treatment and disposal of
hazardous waste.
Paragraph (c) has been added to
* 122.27 to allow an owner or operator
who needs to make a treatment
demonstration to obtain a phased permit
which will cover not only the field test
end laboratory analyses but also facility
construction and operation. In this way.
the owner or operator may not have to
obtain a permit separate from the actual
facility permit to conduct field tests or
laboratory analyses. If the Director
finds, based on the information
submitted by the owner or operator In
Part B of the permit application for a
land treatment unit, that substantial
Information exists upon which to base
the Issuance of an operation permit (I.e.,
the applicant has submitted Information
indicating a likelthood that he can
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32335
achieve complete treatment at his
facility), the Director may Issue a two-
phase facility permit.
The issuance of a two-phase facility
permit would avoid the necessity of two
separate permitting procedures—the
first for permitting the field tests ct
laboratory analyses for the treatment
demonstration, and the second for
design. construction, operation, and
maintenance of the actual land
treatmint unit. However, tithe Director
finds that owner or operator has not
submitted substantial Information
indicating a likelihood that he can
achieve complete treatment at his
facility (based, for example. on land
treatment of very similar waste) a two-
phase facility permit will not be Issued
In this latter case, the owner or operator
must apply for and receive a
demonstration permit to conduct the
field tests or laboratory analyses and
perform these tests or analyses prior to
the Director’s consideration of a facility
permit. Section 122.27(c)(1) provides that
a demonstration permit need only
contain conditions implementing the
requirements of 264.272(c). Thus the
conditions that would be Included In
any demonstration permit would be the
same as those that would be Included in
the fIrst phase of a two-phase land
treatment facility permit. Minimum
conditions are specified. but the Director
may include any conditions he Finds
may be necessary to protect human
health and the environment.
An owner or operator who wants to
receive a two-phase permit to
accommodate conducting field tests or
laboratory analyses, must include a
treatment demonstration plan in Part B
of his permit application. See
122.25(b)(6)(i). The demonstration plan
must propose that the field tests or
laboratory analyses be performed under
conditions similar or directly relating to
those present in the treatment zone of
the unit. Specific conditions for which
similarity or direct relevance are
necessary are listed in 264.272(c).
These include: waste characteristics.
climate, topography, soil characteristics
(including treatment zone depth). and
operating practices (including
unsaturated zone monitoring). It is
Important to note that any waste
constituents listed in Appendix VIII of
Part 261 that are reasonably expected to
be in, or derived from, waste to be land
treated at the actual unit are those
constituents for which a treatment
demonstration Is required. An owner or
operator may. of course, use a
combination of field tests, and
laboratory analyses. and other data to
demonstrate that all Appendix VIII
constituents contained in the waste can
be treated completely.
Following receipt of the Part B
application, Including the treatment
demonstration plan, the Director will
process the two-phase facility permit
completely through the Part 124
procedures, Including preparation of a
draft permit and an opportunity for
public comment and hearing, assuming
he has enough Information on which to
base draft permit conditions for the
design, construction, operation and
maintenance of the unit. Alter
completion of this process, and If the
Director deems it appropriate, Ihe two.
phase facility permit will be Issued. The
first phase of the permit will become
effective as provided in 124.15(b). The
second phase will not be effective until
after the owner or operator has
successfully completed the treatment
demonstration and the Director has
made any modifications necessary to
ensure compliance with all Subpart M
requirements. -
Included In the first phase of the
permit will be the conditions for
performance of the treatment
demonstration. The conditions will be
established based upon the treatment
demonstration plan submitted by the
owner or operator. 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 a d
vertical dimensions of the treatment
zone), monitoring procedures, post-
demonstration clean-up activities, and
all other Part 264 requirements which
the Director finds appropriate. In order
for the owner or operator to proceed
with actual construction and operation.
i.e., proceed Into phase two of the
permit. It is necessary that he complete
the treatment demonstration
satisfactorily.
The Director will Indude, as
conditions In the second phase of the
facility permit, all Subpart M
requirements pertaining to unit design.
construction, operation, and
maintenance, as well as all other
applicable Part 284 requirements. The
Director will establish the conditions In
the second phase of the permit based
upon the substantial but Inconclusive or
incomplete Inlormation contained In the
Part B application.
Following completion of the field tests
or laboratory analyses, the owner or
operator must submit to the Director a
certified statement, signed by a person
authorized to sign a permit application
or report under I 122.6. that the tests or
analyses were carried out in accordance
with the conditions specified in phase
one of the permit. All data collected
during the field tests or laboratory
analyses must also be provided to the
Director.
The Director will then determine
whether the results of the field tests or
laboratory analyses, together with any
other data submitted by the owner or
operator relevant to the treatment
demonstration, meet the requirements of
* 284.272, i.e., that the hazardous
constituents In the waste can be -
completely degraded, transformed. or
Immobilized under conditions similar to
those of the treatment zone. if the
Director determines that the hazardous
constituents can be completely treated,
he will (1) modify the second phase of
the permit to Incorporate any additional
requirements which he finds will be
necessary for operation of the unit in
compliance with Part 264. Subpart M,
based upon the data from the completed
treatment demonstration and (2) make
the second phase of the permit ffectlve.
The permit modification to Include
changes based upon the completed
treatment demonstration may proceed
as a minor modification under 122.17,
if any such change is minor. Otherwise.
it will proceed as a permit modification
under I 122.15(a)(2).
The Agency thinks that adjustments
to a number of the operating procedures
at land treatment units will, in many
cases. be considered minor
modifications. For example,
modifications to (1) waste application
rate, technique, or frequency, (2) lIming
or fertilization practices, or (3) tilling
depth and frequency would usually be
considered minor modificationi except
where there were substantial Increases
In the waste application rate or
frequency. Examples of modifications
likely to be considered “major” Include
significant changes In (1) characteristics
of the land treated wastes (e.g., moisture
content) and (2) treatment zone
characteristics (e.g., depth of soil, soil
texture, slope).
If the results of the first treatment
demonstration are Inconclusive and the
owner or operator wants to do
additional field tests or laboratory
analyses, the Director may modify the
permit (whether It Is an individual
permit that covers only a treatment
demonstration or whether It is the
treatment demonstration phase of a
two-phase permit) to authorize such
additional tests, incorporating in the
permit those terms and conditions
nece ssaiy to meet 264.272(c)
requirements. The modification of a
permit to allow a second treatment
demonstration may be made as a minor
modification, provided the conditions
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32336 Federal Res ter / Vol. 47, No. 143 / Monday, July 261982 / Rules and Regulations
for the second demonitratlon are
substantially the same as the conditions
for the Srst demonstration.
A permit applicant seeking a.
demonstration permit (rather than a
two-phase facility permit) must also
submit a treatment demonstration plan
In Part B of his application. Such a
permit applicant should consult with the
Director before submitting his Part B
Information because the Director may
allow him to submit less Information In
his Partfl application than would be
required for a two-phase facility permit
Once a complete application has been
received, the Director will process It
under the Part 124 procedures using the
snjstantlve standards in 264.2721c).
6. Clarification of the Scope of the
RC1LA Permit RequiremenL EPA is
today n 1 cIng two clarifying changes to
* 12221(d), “scope of the RCRA permit
requirement”. The first change clarifies
that owners and operators of hazardous
waste management facilities are
required to have permits during any
post-closure period (see * 264.117) and
any compliance period (see 1264.96)
applicable to their facilities, as well as
during the active life of the units
(including the closure period).
a. Post-closure Pennita—EPA has
always intended that owners and
operators be required to have permits
during the active life of their units and,
for disposal units, through the
post-closure care period as well. EPA
could have issued regulations (like the
Part 285 interim status standards) that
are enforceable independent of a permit
to impose many of the requirements that
apply to a facility after closure, but
imposing standards through the permit
allows EPA and facility owners and
operators a much greater opportunity to
tailor the requirements to individual
facilities. Such Individualized
requirements provide a greater
assurance of human health and
environmental protection because they
allow site specific Implementation of
general standards (such as the location
of ground-water monitoring wells).
Using a permit as the vehicle for
imposing post-closure care requirements
also means that EPA has an existing
system—the permitting procedures and
requirements in 40 CFR Parts 122 and
124—to use when interaction between
EPA and the facility owner or operator
is necessary during the post-closure care
period. For example this would be
necessary If the Regional Administrator
wanted to extend the post-closure care
period under * 264.117(a)(2)(li) because
of data obtained after facility closure.
Such interaction would also be critically
Important under the Subpart F ground-
water monitoring standards
promulgated today. If an owner or
operator found hazardous constituents
in ground water under his facility while
doing detection monitoring. be then
•would be required to establish a
compliance monitoring program. If he
were violating the ground-water
protection standard for his facility while
doing compliance monitoring. be would
then need to establish a corrective
action program. EPA think that the
establishment of such pound-water
monitoring programs should be done
through the permitting process. That
process ensures procedural protections
for owners and operators of hazardous
waste management facilities and also
ensures an opportunity for public
participation as mandated under Section
7004(b) of RCRA.
Although EPA’s Intent, as evidenced
In the Parts 122 and 264 regulations.’bas
always been that disposal facilities are
required to obtain permits during the
post-closure care period, that was not
stated as clearly as It might have been
in the regulations. EPA is remedying that
deficiency today by amending the Part
122 regulations to expressly provide that
disposal facilities are required to get
permits for the post-closure care period.
EPA Intends that all disposal
facilities, Including those that close
during interim status, be required to
have post-closure permits. This Is a
logical corollary to the definition of
“regulated unit” Included In today’s Part -
264 regulations. EPA believes that to
assure adequate protection of human
health and the environment It is
important that any wa.tes disposed
after today’s Part 264 standards become
effective be subject to those standards,
although the standards will not be
directly applied until a permit Is Issued
for the unit The fact that an owner or
operator may close a unit or his entire,
facility before EPA issues him a permit
should not preclude the Agency from
Issuing a permit that incorporate.
applicable Part 264 post-closure care
standards, including Subpart F ground-
water monitoring requirements.
In addition to sathficthg some
measure of human health and
environmental protection, the Agency
thinks that it would be inequitable to
allow the owner or operator of one
hazardous waste disposal unit to
operate under the less protective interim
status requirements, then close when
‘For example. I muis requires • pcst.closui,
c are plan that must be approved a. part of the
pennifting process and become.a condition of the
permit. Section 1z2.15(a)(73 notes thni cliowable
permit modifications Include change. In the pelted
for post-closure care and permission to diatutb the
Integilty of the con’ ” t ”” ”t .y.tem under
S Z64i17 c).
EPArequiredhim to subm ltPartll of his
permit application, and thereafter be
subject only to the interim status
requirements, while another operator
would be subject to the stricter Part 264
requirements because his Part B
application was requested earlier. Such
a system would ereate Inequities
whereby persons whose permits were
processed last could get a significant
competitive advantage.
As noted above, today’s regulations
do limit the applicabWty of thePart2b4
regulations to “regulated units”—i.e..
units that continue to receive wastes
after the effective date of the
regulations. To be consistent post-
closure permits will be limited to the
same class of units. Thus, disposal units
which stop accepting waste before the
effective date of today’s regulations will
not have to get permits covering the
post-closure care period. However.
those disposal units that continue to
receive waste after the effective date of
today’s regulations will be required to
have post-closure permits, even If they
dose belore receiving an initial RCRA
permit.
A conforming change to 122.10,
Schedules of compliance, Is also being
made to clarify how and when permit
applicants or permittees cease
conducting regulated activities at
- hazardous waste disposal facilities. The
change to that section points out that
owners and operators of treatment and
storage facilities have closure
responsibilities and that owners and
operator. of disposal facilities have both
closure and post-closure responsibilities.
b. Permits for Individuoi Units. The
second change EPA Is making to the
scope of the RCRA permit requirement
clarifies that EPA can Issue or deny a
permit to one or more units at a facility
without affecting the Interim status of
any remaining units for which a permit
has not been issued or denied. EPA
normally would permit all of the
hazardous waste management activities
at a facility simultaneously but there
may be circumstances where this would
be impossible or undersirable. For
example, an owner or operator might
want to add a new surface
impoundment to hlsiacillty, but he may
also be storing hazardous waste in an
underground tank that cannot be
entered for inspection, a process for
which EPA has not Issued permitting
standards. In such a situation, EPA
would want to be able to proceed with
permitting the new surface
Impoundment without affecting the
interim status of any unpermitted units
such as the facility’s underground tank.
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 I Rules and Regulations
32337
The Agency Is elaldug a conforming
change to 122.13(a)(7) to provide that
any permit Issued to a facility for loss
than all of the units at the facility may
be modified to include conditions
applicable to units that are permitted
later.
7. Changes to the Conditions Under
Which EPA MayModify Permits. EPA
is today adding four causes for permit
modification to 122.15(a)(7) (In
addition to the conforming i hnnge
described above) and three causes for
minor permit modifications to
I 122.17(e). The circumstances under
which these causes for modifications
would be invoked ale discussed In the
preamble to the accompanying
regulations In Subparts F and M of Part
264.
8. Request for Part 122 Comments.
Today’s amendments to If 222.10,
122.l5,122.17,122.21. 122.25. and 122.27
are promu3g ted In Interim final form.
EPA solicits comments from the public
on all of these amendments. The Agency
would especially welcome comments on
the Part B requirements for surface
Impoundments, waste piles, land
treatment units and landfills, and on the
special permitting procedures for laud
treatment units. Comments pertaining
specifically to regulatory amendments to
Part 122 should be sent to “Docket
3005—permitting requirements for land
4isposal facilities.” The Agency will
consider all timely comments before
promulgating these regulations in “final
final” form.
VIII. General Solicitation of Public
Commeats
EPA generally solicits comment on
today’s rules and their supporting
rationale provided In this preamble. On
many regulatory issues, the Agency is
particularly interested in the public’s
response and has highlighted these
areas throughout the preamble. For
convenience, the areas on which the
Agency has specifically requested
comments are catalogues below. EPA
seeks comment on:
1. Requiring financial assurance for
corrective action to remedy ground.
water contamination at facilities and
how to structure these requirements.
2. Promulgating regulations that would
consist of general environmental
performance standards similar to those
contained In 40 FR I 267.10 to be used
in permitting unique facilities that do not
fit into the descriptions of classes of
facilities we now have standards to
cover tcontainers, tanks, surface
impoundments, waste piles, land
treatment units, landfills, and
incinerators.)
3. Exempting from Subpart F (Ground.
water Protection Standard) facilities
located over an uppermost aquifer
which Is so dirty that It would never be
used for any purpose and which,
regardless of any future level of
contamination is not capable through
hydraulic connaction of significantly
contaminating another usable aquifer or
surface water,
4. Factors that can be employed to
demonstrate that no adverse health and
environmental effects can potentially
result from a flood washout if a variance
from the floodplain requirement for
designing to prevent washout Is to be
granted.
5. How to construct a statistical test
procedure that when used In a ground-
water monitoring program Involving a
large number of comparisons wIll have
low probability of falsely Identifying a
non-contaminating unit, yet provide high
probability of identifying a truly
contaminating unit.
6. How to give further specificity to
the general criteria for evaluating
statistical procedures employed in
ground’water monitoring.
7.. Alternatives to the coefficient of
variation in defining when ground-water
monitoring data are likely to be
normally distributed.
8. Crafting the liner and/or leachate
collection system exemption for existing
portions of units to better address those
situations where substantial retrofitting
would not be necessary and no
exemption is warranted, and to better
handle those situations where upgrading
at an old site may provide very little
additional environmental protection and
an exemption may be desirable.
9. The decision by the Agency not to
grant a waiver from the facility closure
standards where a site mey be able to
show location characteristics that may
make it unnecessary for ground.water
protection. (EPA still wants to have a
cover designed in accordance with the
closure requirements to provide air and
surface water protection.)
10. EPA’s decision not to provide a
waiver now from the design and
operating requirements to any sites over
State-exempted aquifers that are
contaminated and that are not protected
under the Underground lnjection.Control,
Program.
11. Where seepage facilities may be
appropriate.
12. Where small or short-term piles
not currently exempted from Subpart F
ought to be exempted.
13. The r lative benefits and costs of
designing piles and landfills to protect
against the 25-year and ’100-year storm
event.
14. The circumstances and conditions
where overflow of run-on and if•
control systems may cause an adverse
environmental or human health impact.
15. Exempting small, low •
temporary waste piles from Subpart L
requirements.
18. Alternative statistical procedures
to be used In the conduct of unsaturated
zone monitoring at land treatment units.
17. The reasonableness of the
requirement that containers destined for
landfill be either (1) at least 90 percent
full or else (2) crushed. shredded. or
similarly reduced in volume.
Specifically. EPA seeks data on the
quantitative relationship between
landfill void space and subsidence. EPA
also seeks data from manufacturers and
users of drum-crushing equipment
18. Part B permit application
requirements for surface Impoundments.
waste piles, lend treatment facilities,
and landfills, and on the special
permitting procedures for land treatment
units.
IX. Regulatory Analysis
A. Executive Order 12 2: Regulatory
Im.poct Analysis
Executive Order 12261 requires each
Federal agency. “to the extent permitted
by law,” to prepare and consider a
Regulatory Impact Analysis (R1A) in
connection with every major rule. The
order further requires that a final RIA be
transmitted to the Office of Management
and Budget (0MB) at least 30 days
before the Agency publishes the major
rule. EPA has determined that the land
disposal regulation promulgated loday Is
a major rule. However, EPA has
concluded that the existing facility
portion of this rule Is exempt from the
requirement that a final R1A be
submitted to 0MB 30 days prior to
promulgation. Section 8 of the Executive
Order, Exemptions, states that the
“procedures prescribed by this Order
shall not apply to:. . . (2) Any
regulation for which consideration or
reconsideration under the terms of this
order would conflict with deadlines
imposed by statute or by Judicial order.”
Cem leting an RIA and transmitting It
to 0MB 30 days before EPA publishes
these regulations for existing facilities
would conflict with Judicial deadlines. A
court order in Stale of Illinois v.
Gorsuch (D.D.C.. Civil Action No. 78-
1689). signed on November 13, 1981,
directed EPA to promulgate regulations
for existing hazardous waste land
disposal facilities on or before February
1, 1982. Although the order was
temporarl)y stayed, the appeals court
has now ordered that these regulations
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32338 Federal Register / Vol. 47. No. 143 I Monday. July 26, 1982 I Rules and Regulations
be promulgated by July 15, 1982. If EPA
were to delay promulgation until
completing the RIA and transmitting it
to 0MB. ft would violate the deadline
ordered by the Court. Therefore. EPA is
exempt from compliance.
EPA began work on an RIA for land -
disposal facilities before November 13.
1981, but preparing the analaysis.
requires collecting data that are
currently unavailable In-house and then
analyzing these data. The effort is now
in Its data gathering stages. When
complete, the RIA will examine the need
for the regulation, alternative
approaches, and the costs, benefits, and
distributional effects of the alternative
approaches. EPA expects to complete a
draft of this analysis in May of 1983, and
will consider these results to determine
whether any changes to the land
disposal standards are warranted.
Within time and data constraints, EPA
was able to address some of the
analytical requirements of the Executive
Order, The Agency prepared
preliminary estimates for the range of
costs these regulations may impose on
regulated units of particular kinds and
sizes, on facilities, and for the total costs
of the regulations. EPA then allocated
these costs to particular waste
generating industries and compared
them to other economic parameters to
obtain measures of the relative
significance of the costs resulting from
this rule. The results are summarized in
D through H of this section:
D. individual Unit Costs; E. Closure
Analysis; F. Total Costs; C. Industry
Analysis; and H. Sensitivity Analysis.
The docket for this rulemaking and the
EPA regional libraries contain a more
extensive report on this analysis.
Athough the Agency has not
completed Its formal benefits analysis
for land disposal regulations, it expects
these regulations to provide important
benefits. First, they will promote
economic efficiency. By internalizing the
costs of waste management, the
regulations promote the allocation of
resources to the area of their highest
social value through the free market
pricing system. Second. they will
promote equity. Currently, people living
near hazardous waste facilities bear
some of the cost of disposal In the form
of risk of ground-water contamination
and the damages that can result to
property values and to health. These ‘
regulations will provide a uniform,
nation-wide protective floor that
requires the owners of hazardous waste
facilities to take steps that will reduce
the lilceithood that populations will be
exposed to harmful ground-water
contamination. They will thus shift some
of the cost of land disposal from those
who live near the sites to users of the
products that generate the waste.
B. Regulotorj ?lexibilhtyAcl
The Regulatory Flexibility Act (5
U.S.C. 601 el seq.) requires each Federal
agency to p a final Regulatory
Flexibility Analysis (RFA) when It
promulgates a final nile. (5 U.S.C. 004).
The purpose of the RFA Is to describe
the effects the regulations will have on
small entities and examine alternatives
that may reduce these effects. An
agency head may delay completing the
analysis for up 10180 day. after
publishing the rule In the Federal
Register. if he publishes a finding that
the final rule Is being promulgated In
response to an emergency that makes
timely compliance Impracticable. (5
U.S.C. 608).
EPA intends to study the Impact of
today’s regulations on small entities.
However, as In the case of the R1A.
developing an RFA Is a difficult and
time-consuming task. EPA ends that the
court-ordered deadline constitutes an
emergency and that completing the RFA
by the Court-ordered deadline has not
been practicable. EPA will publish the
RFA within 180 days of today’s
publication, In compliance with the
Regulatory Flexibility Act.
C. Papeiworic Reduction Act
In accordance with the Paperwork
Reduction Act of 1980 (44 U.S.C. 3507).
EPA will submit the reporting and
iucordkeeping provisions that are
Included in this final rule to 0MB for
approval. They will not become
effective until EPA obtains 0MB
approval. A notice of the effective date
of the reporting and recordkeeplng
provisions of this Interim final rule will
be published in the Federal Register
when 0MB approval is obtained.
D. Individual Unit Costs
EPA estimated unit costs using
engineering models. A number of
engineering models were developed
because the unit costs and costs per unit
of waste vary significantly with the size
and type of unit. The resulting unit costs
provide the basis for the total cost of the
design and operating standards.
Although we show costs for corrective
action following, EPA based
calculations of the total cost of
corrective action on a facility basis
rather than on a unit basis
1. Genera! Approach. The cost
estimation procedure for model units
has three components: estimating costs
for design and operating changes.
estimating costs for a range of corrective
action scenarios, and transforming coats
into “annual revenue requirements.” All
cost estimates are In 1981 dollars.
First, to estimate costs for design and
operating measures, the steps owners
and operators of hazardous waste
disposal units might take to comply with
the regulations were Identified. Since
some of the these measures were
already required under the Interim
Status Standards (ISS regulations), the
analysis separated these requirements
In order to estimate the cost of the
additional requirements resulting from
this Part 264 rulemaking.’The analysis
also separated pre-ISS costs for landfills
and surface Impoundments. The ISS
baseline costs used In this analysis do
not reflect state requirements.
Where the under-liner requirements of
the design and operating standards were
applicable, the Agency examined three
possibilities: (1) Owners and operators
would Install only the single synthetic
liners needed under the regulations. (2)
they would install the double liner
(synthetic/clay) system suggested by the
guidance. or (3) they would install
double synthetic liners to enable them to
avoid monitoring the ground water.
Second, EPA estimated the costs of
corrective action activities using three
different timing assumptions for the
length of corrective action and two
counterpwnping strategies reflecting
- hydrogeologic conditions. Timing will
depend on how well units and facilities
perform, and on how quickly ground-
water quality can be restored. The
counterpumping strategy used will
reflect the judgments of owners or
operators, Regional Administrators and
State Directors; technical conditinns will
affect but not control those decisions.
To keep the total number of cost cases
presented manageable a single set of
unit cost estimates and a “median” set
of hydrogeologic assumptions were
used. The hydrogeologic assumptions
were used as averages although they do
not necessarily reflect average
nationwide conditions. EPA believes
that the values used are the best
available for estimating total costs,
given time and resource constraints.
However, actual facility costs In
particular cases may be higher or lower
than the estimates presented In this
section. To present a more complete
picture of potential costs, the sensitivity
analyses examine the effects of varying
key technical assumptions. In addition,
the docket report contains a more
detailed description of the assumptions
‘155 requirementé mrrently to piece were ujed.
No adjueujentu were iade to reflect confoming
change, to 15$ regulatloni pubitohed with today’.
rule.
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Federal Register / Vol. 47, No. 143 I Monday, July 28 . 1982 I Rules and Regulations
used in preparing these estimates, and
includes analysis of the sensitivity of
results to alternative unit cost
assumptions.
Third, the stream of costs over tIne
was converted into “annual revern’e
requirements” using discounted cash
flow analysis. Annual revenue
requirements are the added revenues a
facility would have to obtain (through
Increased prices for Its products or for
Its waste management services) in each
year of facility operation. in order to
cover the costs of these regulations. This
approach provides a consistent basis for
presenting and comparing relevant
costs. However. It Implicitly assumes
that future costs can be predicted, and
recovered at an even rate over a
facility’s operating life. Since each
facility will face great uncertainty about
corrective action costs, and different
competitive conditions, revenue
requirements estimated using this
perfect amortization assumption are not
necessarily good predictors of actual
pricing behavior under Part 284
regulations.
Because annualizing smooths uneven
cash howl, this analysis also reports
first year costs to provide an Indication
of the maximum cash flow burden that
facilities could face for design and
operating requirements, and for
corrective action If necessary.
Costs for regulatory requirements
related to bulk and containerized
liquids, and the permitting process are
not included in the estimates reported
here. ‘These costs may be significant, but
additional data are needed before
reliable estimates can be made. Costs
for floodplain standards are addressed
In the sensitivity analysis.
2. Design ond Operating Standards.
To comply with the design and
operating standards, new storage and
disposal facilities and lateral
expansions of existing units must Install
liners, and in the case of piles and
landfills. leachate collection systems.
While the regulations do not absolutely
require a synthetic liner for landfills,
waste piles, and surface Impoundments,
in nearly all cases, at least a single
synthetic liner Is the practical result of
the regulatory requirement. Those
installing double liner systems with a
leak detection system between them are
exempt from ground water monitoring
and the other requirements of Subpart F.
Additionally, waste piles may be placed
on a sturdy impermeable base and
regularly inspected ii i lieu of the
requirements of Subpart F.
Owners and operators will choose to
install the liner system that Is most
‘In computing annual revenue requfrementa a3%
real discount rate and. twenty-year facility
operating life were used In all cases.
advantageous for them. This will not
necessarily lead them to install the
lowest cost liner that EPA will allow,
since greater Investment In the liner
system should lower the probability that
corrective action will need to be taken.
The probability that corrective action
will be needed depends on the
containment system used, and on
bydrogeologic condftions, but EPA Is
currently unable to quantify these
relationships. The Agency believes that
some owners and operators will choose
each of the different liner systems,
reflecting their local hydrogeologic
conditions and their differing estimates
of the relationship between liner
Investments and the probability of
having to perform corrective action. To
Indicate the range of potential liner
costs, the cost for each of the liner
systems Is shown.
S. Conective Action Costs end
Timing. The costs associated with
corrective action for a unit or facility
depend on when contamination Is
discovered, the specific contaminants,
the magnitude of the plume, and
numerous site-specific hydrogeologic
factors. The Agency can estimate
corrective action costs for simple sets of
conditions, but does not know what
conditions are actually like for the
average of all facilities. For this analysis
It was assumed that ground water -
begins 10 feet down, that plumes reach a
depth of 75 feet. and that the aquIfer ’ n
be characterized by “median”
hydrogeologic conditions.’
The Part 264 regulations require
removal of contamination from ground
water, at the “waste boundary” for new
plumes, and to the property boundary
for existing plumes. For this analysis,
EPA chose to make the conservative
assumption that corrective action would
need to deal with well-established
plumes. Cost estimates are based on
counterpumplng, and Include costs for
treating pumped water, preparing
corrective action plans, and monitoring
ground water as required in the
regulations.
Costs for corrective action are
sensitive to assumptions about when
corrective action begins and how long It
must continue in order to remove all
statistically significant contamination.
To bound the range of actual costs an
owner or operator could encounter. EPA
‘Plua iedepthofeetwWbetypicalonlyfar
w.lJ.estabulsbed plumeE new plumes will be
shallower and lass expensive to control. The
median hydro eolcglc conditions used wets
bydraulic gradient (change In ground water
“elevatlon) of 5 feet per mile, and baosmlulvlty
(flow rate across a one square mile moss-section.
per foot of hydraulic gradient) of iOO.dOO gallons per
foot per day. These assumptions result In an aquifer
diachaige (total pound water flow volume) of 0.5
nillbon gallons per square mile of aquifer moss-
section per day.
developed costs for three scenarios:
action beginning In year zero and
continuIng 150 years,’action beginning
In zero and continuing for 20 years, and
action beginning in year 49 and
continuing for 20 years. (The 20 year
figure was chosen to match the
assumption that operating lives are 20
years.)
The analysis also used two different
counterpumplng strategies because
corrective action costs are also fairly
sensitive to the pumping strategy
required. Where hydraulic gradients are
unidirectional. (i.e., in “simple” cases)
recovery wells can be located at the
dowugradient toe of the plume. This Is
Strategy 1, and involves atinimuni costs
for a counterpumplng program. The -
simple conditions needed for this
approach probably are not very
common. Where hydraulic gradients are
not unidirectional,’ another strategy Is
needed to assure that all contamination
I. contained. Wells are located Inside
the plume and pumping Is maintained at
a rate sufficient to rdverse all gradients
in the vicinity of the plume. This Is
Strategy 2, and It Involves higher costs.
The range of cost estimates that
results from these alternative
assumptions reflects EPA’s uncertainty
about conditions at actual facilities.’To
‘The discounted present value of costs inairred
over a long but finite furture period Is essentially
Identical to the discounted costs Incurred In
pumping braver.” If costs are Incurred as
expenditures are made. A corrective action period
of 150 years captures about 99% of the cost of
continuing the action forever.
‘Thi, can occur due to complex hydrogeology. tha
pressure of emplaced wastes on the aquifer, at
pumping at off-site wells surrounding the plume.
‘The unit cost data. hydrogeologic assumptions
and algorithms used here to estimate containment
costs have been subjected to some peer leview and
lasting end D’A believes the colt estimates that
result from use of this model are the best estimates
available at thIs tinte. However, the algorithnis and
data must still be considered lobe incompletely
verified and validated.
Several key assumptiona should be noted. (1) A
simplified treatment coat model was used that may
significantly underestimate costs for higher
eoneentretlons and more complex mlxtwea of
contaminants, and may somewh.l oveveatimate
costs for smaller plumes and for imatment of
volatile. (2) Cost estimates an p obsbly less
reliable for facilities with small waste pile, and the
smallest surface Impoundments than for other
facilities because corrective action coats for plumes
of lass than one-half acre in area were not
niodelled. (3) The cost estimating model Is d o sed y
applicable only WithIn the limits established by the
assumptions made to facllItste cost estimation. The
use of two counterpumpuig sfrstegles compensates
for this simplification to acme extant. (4) In
addition, the alegTithms do not account for
replacement or retirement of wells or treatment
facilities. Wells can become utnuseable within
months, or last for years, depending cv coiroalvtty
and other characteristics of the plume. Treatment
may be required as long as pumping continues, or
may be unnecassary during the latte, stages of
corrective action. For economic analysis pwposea
aPA assumed that wells will last for 30 years and
that treotment facilities will be used for as long us
remedial action continues.
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32340 Federal Register / Vol. 47, No. 143/ Monday, July 26, 1982 / Rules and Regulations
display the alternative cues, the
relevant tables have columns displaying
each t4inlng scenario discussed above.
For each timing cue. the range of costs
shown reflects cost differences betweer
Strategy land Strategy 2.
To estimate the cost of
counterpumping it was necessary to
estimate the size of the plumes to be
contained. Plume width is the most
sensitive parameter within the
modelling framework used for corrective
action cost estimates, and their Is reason
to expect that unit width serves as a
conservative estimate of plume width. If
a unit falls becuase of age. then a
general failure acioss the unit is likely
so that the width of the unit might
approximate the width of the plumr ifs
unit fails due to a localized problem or
single rupture, then the plume width
should be smeller than the unit width.
Thus, using unit width as a proxy for
plume width should result in a
conservative measure of the coal of
counterpumping.’
Corrective action coats will occur only
to the extent that ground waler is
contaminated and to the extent that
protection of the environment requires
taking corrective action.
4. Cost for Land! ills. Table 1 shows
the annual revenue requirements needed
to compensate for the coat of Part 264
requirements for on-site landfills of
different sizes without corrective action.
It covers the annual revenue
requirements associated with the cost of
required liners, final cover and leachate
collection systems. It assumes that
waivers are not obtained, and that no
landfills currently use any of the
features required under Part 264. This
tends to overstate costs since there are
landfiUs that are at favorable locations
that would qualify for some site specific
waivers or Include these features
TABLE I .—MNUAL J 5IJ7 p.5.
CUIRED TO OFFSET INCREMENTAL COSTS
Dut TO PART 264 REGu T1o.i5 WIThOUT
CORRECTIVE ACTION LANDFILLS BY UNrT
SIZE
I 1 s
I — SW
Die !
DostNSw Dsiei.
p ’ L SW
— I
p 1
pxo
Pw
VT’
Pw
V
P0001
•
MT’ 000)
P si
SIT’
I-
•
SW
Psi Psi
vr ’
--
Ostis S w
ed J
‘ WI
Psi
V
VT’
Died.
SfiSI SW
Psi Psi
Yne
PD0
Ifl.0X._
008 1
1, I I
1.100 10
Thus. If a 15,000 MT/year landfill with
a double synthetic liner did not
contaminate ground water to the extent
that corrective action was necessary,
the incremental annual revenue
requirement would be $290,000 or $19
per metric ton. If contamination were
detected immediately resulting In
Immediate counterpumping for 20 to 150
years. an additional revenue
requirement of between $93,000 to
5194.000, or $6 to $13 per ton would be
added to the basic Part 264 costs (using
Strategy I counterpumping).
To help put these costs In perspective.
costs estimated in the absence of
regulations (pre-ISS) range from $11 to
$240 per metric ton for the large and
small on-site landfills, respectively. ISS
Incremental cost estimates for these two
sizes range from $6 to $128 per metric
ton. Prices at commercial landfills in
1981 ranged from $55 per metric ton to
$240 per metric ton, depending on the
type of waste and whether ft was In
drums or bulk. This does not include
transportation, which averaged about
$0.15 per ton mile.-
Table 3 shows the costs that existing
landfills could Incur in the first year as a
result of the Part 204 requIrements.
Potential first year coals for design and
operating requirements (D&O) using a
a, double liner (synthetic/clay) and for
Immediate corrective action are
reported separately for Strategy I and
‘3 Strategy 2. 56 In the example discussed
FIs,t year pan 094050 costa are
aptwoidmately the seine so annual suvenue
- reqolsuntsnts because the major lnoremeni.l cost
so e aseosec costs OidIb U I
Sma SW os* TWi vs dtlaisir Win cods
dell. *d S c wI Oiled 00 6 15-dIe
dosbs SW aIxJcI 0,30 seed
Use dsi*N opdSW Sw co
‘MT mSW ipa semx 0,
Table 2 show. the additional annual
revenue requirements associated with
corrective action If It Is needed.
above, the first year cost is $3os.ooo if
no corrective action Is needed, and an
additional $315,000 to $465,000 if
counterpwziping is undertaken
Immediately.
• TABLE 3.—FIRST YEAR COSTS PER UNIT DUE
TO PanT 284 REGULATIONS. LANDFILLS BY
Sc. mleeic spin pai
so
Sw’
c -
colon cost
UIsin st.
0in4Mrpwr
— . -. .
2.000... ._
7,000 —
16.000 , _.
— —
00.000
1 2 0 1 en_
530 5131- 529 5
Si 206-305
166 256-405
lee 255-415
305 315 .466
154 371-585
510 425.6 55
1 475-700
5. Costa/or Suiface impoundments.
EPA estimated costs for existing surface
Impoundments using basically the same
methods that were used to estimate the
cost for landfills, but varied some
features to reflect differences In the
regulations and the units affected, and
estimated two additional cost cases. It
was assumed that surface -
Impoundments close as landfills In all
cases. (Costs for units where all waste.
liners and contaniinatet subsoil. are
removed at closure, and for clay-lined
storage Impoundments, are not
reported.)
element In the coat modal I . the cell liner, which Is
Installed for one cell in each year of the landfills
operathig life
TmLE I.—*MIUAL RIVENUE PER UNiT ‘RE-
OIIRED’ 10 OFFDi INCREMENTAL COSTS
25 TO PART 264 REGULATIONS WITNOUT
CORRECTIVE ACiiOst t LANDFILLS BY UNIT
TAatE L—ANNuAL REVENUE PER UNIT REO4JRED TO OFFSET htca iice t Oasis DuE TO P,ARI
264 CORRECTIVE ACTION REGULATIONS. LANDFILLS BY UNIT Size
30.
Dispel ssi 0 rç
109
Dst.ct yes- 0 pine
20 yes-.
Dodd i 49
ps ’ P0yec.
‘ 0 r
I
PS ,
I PS,
s-
-
000)
--
t.n
600.. .
2.000 ,_
1.000. .
7,000 .. —
I5,000_ —
135—lIe
145-395
172—267
170—275
104-309
215461
262-391
392-400
371—396
73-113
34-63
21-39
13-2 1
S-tO
44
1-3
65-IS
71-109
52—129
S5-132
00-145
101-174
113-ISO
123406
130-150
35-55
16—26
12—19
5-10
3-6
2-3
1-2
1744
1047
2141
21-32
34- 15
2S ’42
25-45
30-60
34—46
5-14
44
3-5
2-2
I-I
‘-1
‘-‘
31.009
eo.mo .__ — .___
125. 000_..
,It.aa Use 09
‘MT - miSc 30S
UNIT Size
6 00_ . .
2.009_.
5,000_
7 , 00 0J
1 s.ox
00,000.
531
10
75
S I
148
2fl
379
RE
25
II
14
10
5
S
552
54
154
507
323
622
552
5101
47
09.
30
12,
Is,
14
543
52
146
1 5 1
2 00
181
77.
‘When esttmutln comactive action costs for
faohues. EPA asauned thai facility width. iather
than unit width, approxtmale. the plume width
-------
Federal Register I Vol. 47. No. 143 1 Monday. July 26. 1982 I Rules and Regulations
32311
The no-corrective-action case was
estimated in much the same way as the
no-corrective-action case for landfihls.
However, surface Impoundments
generate dredged material that must be
Iandfilled; the incremental cost of
disposing of this material in a Part 284
landfill rather than In an ISS landfill is
counted as a surface Impoundment cost
In this section.t! In addition, operators
of existing surface Impoundments may
choose to (1) continue operations
without installing liners; (2) close the
existing unit and construct a new
impoundment lined with one of the three
liners described earlier, or (3) retrofit the
“For this analysis It was assumed that dredged
materiel Is disposed of In 0123.000 MT/yr. landfill.
Landfill disposal coats vary depending on the type
of hner system It was assumed that the landfill
would not need coriecuve action If corrective
acI ,on were necessary, costs would be all 5 htly
lugher.
13 3ecau,e these higher landfflling costs are also
Included i i , the landfill coat estim iea, landfill and
surface Impoundment costs cannot limply be added
to get total costs.
- TABLE 5.—ANNUAL REVENUE PER UNIT RE-
OUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 CORRECTIVE ACTION REG-
ULATIONS SURFACE IMPOUNDMENTS BY UNrT
Ice (sets.)
Detect
eavO
pmip 150
l
Detect
pewO
pump 20
i ®i
Detect
pew4O
ps , 20
)
0.25601’ 8122-6163.
10 ._..._ 125-100
20 .. 130-100 -
5D . .... .____,...— —. 149—225 .
110.. 102—261....
$Is- 677......
5146..........
65-95....._
7I—109_..
S1-121_
115-419
16-22
17-24
15-27
20-31
Thus, If a 2-acre surface Impoundment
did not contaminate ground water to the
extent that corrective action was
necessary. the incremental revenue
requirement would by $16,000 to $25,000
PC’ year, depending on the type of liners
existing Impoundment with any of these
three liners. Costa are estimated for all
of these cases. The retrofit case Includes
the costs of disposing of contaminated
material from the existing
Impoundments. and the replacement
case Including closure and post dosure
care costs for existing units. Neither
case Includes land costs nor the
economic costs of disrupted plant
operations, which are likely to vary a
great deal across sites.
Tables 4, 5, and 6 summarize these
results. Costs are reported on the basis
of the size of the Impoundment rather
than per unit of waste because the
amount of liquid processed through an
impoundment of a given size can be
highly variable. The cost for an
Impoundment will depend on the
compliance elements that the unit
selects or is required to undertake—no
scenario would include more than one
kind of corrective action or more than
one kind of alteration.
TABLE 6.—FIRST YEAR COSTS PER UNIT DUE
TO PART 264 REGULATIONS: SURFACE 114-
POUNDMENTS BY UNIT SIZE
S irs
(sets.)
Basic cost
no
eorecwe
Sctsin
CWTSCIIVe
SCSO
Fe.IIcty sftsrailcn’
ReirciS Ripisce
ret
.25__..
.5_.._.
t0.............
2 0__.._...._
50.._...._....
1l.O........,...
( ‘
51
2_....... . ...._
2
0.
Is
8150-8220
159-200
129—251
199-299
209-319
254499
$123
226
412
962
2.141
4422
5142
010
120
715
1.715
5.508
‘Aas,a.iss eetT.cIms scIon taken I , Yset Zeta
‘AU&&yOs 20 1a4 5 wmes ret
‘LeSs Seth 5500
used by off-site landfills where the
dredged material Is disposed of. If the
owner chooses to retrofit, the
Incremental annual cost will be $48,000
to $71,000; If he replaces the
Impoundment, the incremental annual
cost will be $59,000 to $78,000.
depending on the type of liner system
Installed.
If corrective action Is necessary and
counterpuznping is undertaken
Immediately, an additional annual
revenue requirement of $05,000 to
5138.000 would be added to the basic
Part 264 cost (under Strategy I
counterpwnp lng).
The fIrst year cost for the basic
requirement Is $3,000; if counterpumplng
Is undertaken, the first year cost is
$189,000 to $299000; and If the unit
elects to retrofit the fIrst year cost is
$882,000.
Current prices that could provide
perspective for these costs are not
readily observed, because most surface
Impoundments are on-site. However, II
was possible to estimate the total
revenue requirements for new
Impoundments constructed and
operated to comply with ISS
requirements, using assumptions
consistent with those used for Part 264
cost estimates. These annualized
revenue requirements ranged from
542.000 for the smallest facility, to
5424.000 for the largest. including
revenue requirements of $8,000 to
$174,000 In the absence of any
regulation.
6. Costs for Land Treatment Units.
The Agency estimated costs for land
treatment units on a model plant basis,
as for landfills and surface
Impoundments and calculated
corrective action costs In an Identical
fashion (i.e. for action by all facilities in
Year Zero or Year 49). though for units
of different sizes. It was necessary to
make assumptions about the numbers of
units that would be required to
undertake certain operating
modifications under Part 264 rules. EPA
assumed that ten percent of land
treatment units would require a pH
adjustment, 90 percent would require
Irrigation and a crop cover to control
wind dispersal, 25 percent would need
to Increase their soil monitoring and
number of lysimetera. EPA assumed that
aU unIts would conduct one waste field
test, and that all would close with
hazardous constituents in the treatment
zone. It was also assumed that ten
percent of all units would encounter
problems during operation (i.e., they
would fail ongoing tests of soil core and
soil pore liquids), resulting In operating
modifications: three percent of all units
(30 percent of those with problems)
would adjust their pH. five percent
would expand the treatment area, and
two percent would reduce their waste
TABLE 4.—ANNUAL REVENUE PER UNiT REQUIRED TO OfFSET INCREMENTA l. COSTS Due TO PART
264 REGULATIONS WITHOUT CORRECTIVE ACTION: SURFACE IMPOUNDMENTS BY UNIT SIZE
See (wee)
Base
coet
($000)
R*eR owe
Ri um.1 ss
Baum
.
Siebc
w
( $020)
Oettle
w
0000)
Detbe
letta
Bar
0000)
6mØs
sy
(ss9c
bw
($000)
01e
Bar
($000)
e
ajr
Sisec
(w
( $Q00)
- --
025 $4- I
05. . .. 6-9
10 . — — - . . -. ._ . -. 10-10
20 .__...._.._. .... _ _ _ .. . _. . .._. 16-25
SO .. ._.____._._.__.____— . . -. -. 45-01
11.0 —- —. .._ . ._..__ ._.._. .._ _._ -. 90-15?
59
IS
25
45
92
225
$13
23
37
71
148
345
20
IS
34
71
157
374
$19
26
35
59
106
252
522
SI
45
75
152
954
510
27
42
76
156
567
Size.
‘Coats plilOes 5aOaatad aitli siilac. recwaknsnts
eetn 05 Wa were not wsnstsd Cost ‘spotted
Ba a 05 we Ir s menI.
-------
32342
Federal Register I Vol. 47, No. 143 I Monday. july 26. 1982 I Rules and Regulations
loadings. Tables 7,8. and 9 summarize
the results.
TABLE 7.—.ANNUAL REVENUE PER UNrr RE-
QUIRED TO On’szi INOREMENTA1. COSTS
DUE 70 PART 264 RzouI.Anol’is WITHOUT
CORRECTIVE ACTION LAND TREATSIE1JT BY
UNrT Size
-
Se. (e.ss )
usc sc 105
.)
F ur
I
17
$17
95
46
122
559
545
14
II
5
7
55. .__.. .______________
209 . ... —. .
743
247.1___.__. ._._.__
‘503.0 urn . .‘-- - 103 , 205 MT 903
w. pen yes? Inn ps e Fu rcnent C I ,*ste CN4.0
pen ws I I dy lt
T*at.E 8.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OrFsET INCREMENTAL COSTS
DUE TO PART 264 CORRECTIVE ATIQTI Ace-
uLATIONs: LAND TREATMENT BY UNrT SIZE
,
1 7
65 ...
201_.
7&3_
2471....
enc, a
90
P
$934-IS? —
4 5 4-23 6 —
171-275 ..........
-371 —
035-472..........
oe.ct , a F De. ye. 4$
.r20 I
9(1T209U51$
510-IS .._I$le_22
75-1 94_._.j 95-03
-1T 2943
1 69-ISO ........J 27-44
110434...........l 3446
TABLE 9—FIRST YEAR Cosrs pE Uwrr DuE
TO PART 264 REGULATIONS- LAND TREAT.
MENT BY tiNT SIZE
So. (wee)
03M
N o e. ? L1N•
Boorn
lC
CCCI
Psm.eM.
17_.......__.......
15 — -_ -. _ _ _ _ _
201 — ..
743 .._...
2471... ..
576
51
103
134
03$
5175-265
205-365
035-425
535425
565-1,025
Thus, 11 the operator of an average
size (20.1 acre) land treatment unit
applies waste at an average rate (206
MT per acre per year) and does not
contaminate ground water to the extent
that corrective action Is necessary, the
incremental annual revenue requirement
would be $45,000 or $11 per MT. If
contamination Is detected immediately
resulting in immediate counterpumping,
885.000 to $178000 per year or $21 to $45
per MT would be added to this basic
Part 264 cost (under Strategy 1
counterpumping).
As shown In Table 9, the first year
cost if no corrective action is needed for
this size wilt Is $100,000. U corrective
action is needed Immediately, the first
year cost Increases by 8265.000 to
8425.000.
To put these costs in perspective.
prices for commercial land treatment in
1981 ranged from $5 to $24 per metric
toi l.
- 7. Costs for Waste Piles. Waste pile
- unit cost estimates assume that all
existing waste piles would bs managed
as storage rather than disposal units.
Accumulated wastes must periodically
be removed and disposed of In a landfill:
therefore, the Incremental costs of using
a Part 264 rather than an ISS landfill are
Included here as a waste pile cost.
(These costs are also reflected In the
landfill cost estimates, so unit costs are.
not additive.) The analysis assumes that
all piles are exposed and are at or above
grade. Costs for enclosed piles
(Including the cost of enclosure) could
be significantly lower, and costs for
below grade plies are likely to be higher
(In practice, many large below grade
piles would probably close as landfills).
The analysis looked at three
alternative compliance paths to reflect
the options available to waste pile
owners or operators under the
regulations: (1) Retain the ISS sturdy
impermeable base and undertake
ground-water monitoring: (2) Inspect the
ISS base periodically (assumed to mean
annually) without ground-water
monitoring; or (3) Install a new base
with a double liner system and leachate
collection system and dispense with
inspections and ground-water
monitoring (until leakage is detected).
For waste piles, It was again assumed
that corrective action consists of
counter-pumping In Year Zero or Year
49.
Tables 10. 11, and 12 summarize the
results. The annual revenue
requirements shown In Table 10 include
the cost of disposing of the waste pile
and base at the time of closure In a Part
264, 123,000 MT/yr off-site landfill with
a double (synthetic/clay) liner that does
not require corrective action.
TABLE 10.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAl. COSTS
DUE TO PART 264 REGULATiONS WITHOUT
CORRECTIVE ACTION: WASTE PILES BY Uwrr
SIZE’
INo000O
D69ctyuwO
pumrpiSOysa ..
°° ‘
DeMd
t0
p,nç2O
D69CI
49
prç2O
Z,
2- 6 90
1,500
1 1 5 041 5S.._......
133—207
171-113..
9—IS.. —.
$IS-123
16—24
50.
0
5’)
.
Wc u m
6911 !
.MrSur-
Nop.ct
bill
0000)
$4
4
4
4
4
4
0 3
rid
USCI.I.
W
55m i
W 4.Ia
e.lNopi p76
0000)
•
10...........
25_
100____.
100
1,500.......
$41
44
44
44
44
44
$12
12
12
12
14
17
(‘p
(9
(‘I
(9
155-5237
170-265
TABLE 11..—AN2JUAI. REVENUE PER UNIT RE-
QUIRED To OFFSET INCREMENTAL COSTS
DuE TO PART 264 CORRECTIVE ACTION Ace-
ULATIONS: WASTE PILES BY UNIT SIZE’
‘c a. — - . “ ulpi uI69 — UsaSen
Se. 500,000 a. feet sun No Sdori11d Ceid 116911.06
$4 i 600,000 enSe loot pile
TABLE Ia—FIRST YEAR COSTS PER UNIT DUE
TO PART 264 REGULATIONS: WASTE PILES
BY UNIT SIZE
‘Not 41611.9 CeIS $4 sOO.000 5c loot pile prp . 0e
a. ’ scour basmrd
Thus, If the operator of a 100,000 cubic
foot waste pile decides to inspect the
unit’s ISS base rather than monitor
-- ground water or change to a liner and
leachate collection and removal system.
and does not contaminate ground water.
the additional annual revenue
requirement Is $20,000. If contamination
Is detected In year zero and
counterpumping is necessary, additional
annual revenue requirements of $71,000
to $150,000 would be added to the basic
Part 264 cost (under Strategy I
counter pumuingl.
First year costs for the three Part 264
options are shown in Table 12. Without
corrective action, these costs for the unit
discussed above are $4,000 to $44,000,
depending on the D&O option chosen.
Corrective action taken in Year Zero
_____ could add up to $105,000 to $237,000 to
_ “ !° “ these costs.
50. 1 50006 ’ )
S ..
Son
rid
COl IC
5’. Closure Analysis
$15
‘7
71
27
2?
55
17
9
15
20
26
“7
This section examines the economics
of closing small on-site landfills and
shipping wastes to commercial sites and
sr replacing existing on-site surface
: Impoundments. Small on-site landfills
g may become uneconomic compared to
17 larger commercial facilities as a result of
these regulations. Small surface
Impoundments may close to avoid
liability for corrective action (related to
past leakage) that could otherwise be
imposed through the permit process.
‘cosa $4 ule. pin d C I 2 1. 25.010 6b0 1031
uenrnsa I yew . 5. . , Si Coele Nra 100.000 00.5
loot pIe enumnu a2 ssu operating No, CO69 So ’s 500.003
in pile snnaoo 5 10 yew opriting Ms rid cooN to’
• 1.000.000 enOme loot pile aen” ,e a 20 yew lee
J.tus . cpu26ng No. 5*03 0369555 tmemraonn at ee. do
imt me.... snonot0110afy
-------
Federal Meg star f Vol. 47, No. 143 Mo iday, luty 26. 1982 / Rules and Regulations
12343
U small wifilis choose to close or If
small surface impoundments are
replaced. a substantial portion of all
hazardous waste units will have been
significantly affected by these
regulations. EPA estimates that there
are about 255 small (500 MT/yr. or less)
landfills: this represents 44 percent of all
landfills. There are about 2,7e0 small
(one acre or less) surface
impoundments, or 55 percent of all
surface Impoundments.
Results of the analysis on small
landfill closures indicate that operators
of small on-site landfills would in many
cases be better off closing and shipping
their wastes to off-site commercial
facilities for disposal. For small surface
Impoundments . the economics favor
replacing existing units under most
.cfrcumstancos If closure of the existing
Impoundment eliminates an obligation
to undertake w otive action. Each of
these issues is summarized below.
Table 13 Indicates that wider the Part
264 regulatIons, owner/operators of
small .on slte Iaii4AlI . could expect their
annual revenue requirements to Increase
by about $82/inn ueiulslhig a single
synthetic liner design and no ooisectlve
action. ibis teased as the base case.
(With a double liner jsynthetic/clayj.
this figure would be $104/ton, or $OSlton
with a double.synthetlc11ner 11
corrective action is considered likely.
the increases In expected zevanne
requirements could range from $90 to
$458 per ton. These expected cost
Increases understate the savings that
could actually be achieved by dosing.
since major cost cornpc,r.enls of ISS like
closure, post closure, and financial
responsibility, as well as expenses for
basic trench or cell construction, could
be avoided or recovered If the landfill
closed.
These incremental costs (which are
conservhtire estimates of incremental
savings from closure) compare with
actual 1961 prices for commercial
disposal that iange from $55/Ion to
$240/ton. This sensitivity analysis
assumes that prices for commercial
services will not change as a result of
the Part 204 regulations. This
assumption Is reasonable If commercial
facilities already meet most design and
operating standards and do not face
corrective action requirements, and If
commercial capacity Is adequate to
meet demand at current prices.
Tasi.E 13—EFFEcTS Cf THE INCREM&flAL COSTS CF PART 264 REOULATIONS 014 THE EcoNoMic
VLABIUTY OF SMALL ON-SITE LANDcS.L1’
.
he
s s
Bass . m ciITieivS
iCXn
,
cost en muvic ilys
Eqiivuleni Situ,.’ st W eiti I i .
isv
en’s,
0473 1.4 532.0 17 iS I S
ewas
‘
$ 47
miss
ss. cost ries w . ,niiisic mi u no wmctiis sctu ,i end co .s.sd demand 01 1 .ut. sucoss
d c c i nOt sgit.canvy m i ii css I.o. ccii rms etu Sm ,dVS en0s se icimtupwn 5mg cods’ iirSIgv 1
20 ysem ituwig m sit 49 P 59 11 c c l i isWiis iii m. iiuis Ui01M otMulaMs CCOtIIII9III 5m9 MISs’ wst y
2 condituns I c , I SO yssts sIring rY , Zero
‘Oui1e Gs cmijIatsd I S liflQS i galst mss 01 555 ci I24G. mId. i _ . .w11m,. . coal 0120
Ills -
Under the base case assumptions
used in Table 13, It would be
advantageous for a firm operating a
small on-site landfill Ic close the landfill
and ship its wastes to a commercial
facility for disposal if the firm is quoted
disposal prices that are at the low end of
the actual range. Where the firm faces a
price of $55/ton for commercial
thsposnl ii could afford to ship wastes
up to 4 miles. assuming a
transportation cost of $0.15/ton mile. If
the firm is quoted prices closer to 5240/
ton, It would be more cost-effective for
the firm to continue running its landfill.
Where the firm expects that corrective
action could be necessary at its tandflll,
It could close the landfill and ship
wastes from VS to 2887 miles for
disposal in a commercial landfill
charging $55/ton. fnslead.of bearing the
costs and responsibility for corrective
action. Where the commercial disposal
price is closer to $240/ton, It may be
more cost-effective for the firm to
continue disposing its wastes on site.
but this would depend on the
hydrogeologic conditions existing at the
site and the expected duration of
corrective action.
These economic factors may be offsei
by concerns over liability potentially
associated with sending wastes off site.
or by concerns over potential price
increases at commercial facilities
Similar comparisor.s can be made
between the costs of replacing small
surface impoundments to limit the
possibility that corrective action will be
needed, or doing nothing and hoping
that corrective action will not be
necessary. Actual decisions to close and
replace a surface impoundment will be
based on individual owner or operaiorb
expectations regarding the probabilit
that their impoundments have been
leaking or will leak in the future.
Table 14 compares the incremental
costs of taking corrective action under
-various conditions with the costs of
replacing 114 acre,1/2 acre and I acre
surface impoundments.
T*ai. 14.—CoMPARISON or CORRECTIVE AcnQIi CosTs Wim Ci.OSE/CoNsl RUCT COSTS FOR
SMALL SURFACE IMPOUNDMENTS; INCREMENTAL ANNUAL REVENUE REQUIREMENTS
r5o ,s nuIssii.
I
m I S
cipuersucIrlis I isuus ’o s’20 Wtysr49Is’20 csrs 0II)
rs 5000) “ 1
I, as , .. -- —
S S . -
I we...
$1104167 — —I s .a1 u’s-sn s’s
51 9 5-5101 — I SS’453_.._. -I W- . ..._. I
1150—5190 ......_... , ri-ass ....................._.., S2b-S32_ —- - I
01 wig. 01 cc,vecwe mic, 1 easa Based on &aisgp I w16 1 1g. mIS C I alige bsud su Sss ur 2
Asiii doiiio Urns’ deign. mcii espeneive CI p0 5mb.. Systems.
-------
32344 Federal Register I Vol. 47, No. 143 / Monday, July 26. 1982 I Rules and Regulations
Based on Table 14, It may often be
more advantageous to close existing
units and conafruct new ones where It -
appears likely that this would etiunIna e
- the need for corrective action. This may
be the case where an Impoundment Is
believed to have been leaking but has
not yet resulted In significant
contai ih tIon at the waste boundary.
(In this case, the owner/operator would
need to be able to distinguish
contamination from the closed and the
new unit, perhaps through use of tracers
added to new waste or based on the
arrangement of monitoring wells.) Of the
three corrective action t1mh g cases
examined, electing to continue to
operate the existing Impoundment when
corrective action will be necessary Is
only advantageous under the “best”
assumptions, Le., when action Is not
needed untIl Year 49 (the year before
owner/operator responsibility ends) and
continues for 20 years.
F. Total Costs
EPA estimates that the total
annualized cost of these regulations (for
existing facilities l1) could range from
$150 to $1,145 million. Details on the
components of these cost estimates are
reported in table 15.
The broad range covered by these
estimates results primarily from the
uncertainty regarding the amount of
corrective action that will be needed.
ISS monitoring will eventually provide
an Indication of the severity of current
environmental problems. Currently.
however. EPA is unable to predict
reliably the number of facilities able to
comply with the ground-water
protection standard specified In the
regulations. EPA cannot predict when
facilities will fall, or how long corrective
action will have to continue at a typical
site. Data on a host of other site specific
factors that will affect the cost of the
corrective action are also unavailable.
Finally. EPA cannot predict the number
of facilities affecting ground water that
might be able to avoid corrective action
by showing that actual concentrations of
Appendix VIII constituents at the
compliance point pose no threat to
human health or the environment.
To estimate total D&O costs EPA
estimated the size distribution of units
from the Part A’s.” For each model unit,
“We wore unable to estimate total costs for new
facihtie. due to the difficulty of projecting the
number of facilities that would be affected
Determining lnaemental coats for. lingle new
facility is difficult In soy event, because EPA has
not previously esthnated the costs of the Part 207
regulations that now apply to these facilities
“Complete details are in the docket report. Based
on Part A of TSDFpertn i l applications. EPA
estimates that there are 573 exIsting hazardous
v,aste landfills, capable of accepting about 12
EPA multiplied the revenue
- requirements reported In Individual Unit
- Costs by the number of unite, and
summed to obtain an estimate of total
D&O costs.
The lower bound estimate of D&O
costs assumes that Iaii ,Ifilla use single
synthetic liners, and that waste piles
choose to replace the containment
system to avoid the need far ground
water monitoring. The upper bound
D&O estimates assume that landfills
have double synthetic liners, that waste
piles monitor ground water, and that
surface Impoundments are closed and
replaced by new units with double
synthetic liner
To estimate total correctlvehctlon
costs, EPA grouped Individual units Into
facilities, and assumed that plume sizes
were related to the acreage of the total
waste management areas at the
facilities. Part A data provided
Information on the number of facilities
with various combinations of units, and
allowed EPA to estimate the average
total acreage at sites with each
combination.” EPA added 50 percent to
the calculated acreage to allowlor
common areas, variations In plume
shape, and constraints on siting of
recovery wells.
EPA assumed that all facilities were
permitted simultaneously and
Immediately. To the extent that some -
facilities close rather than apply for
permits, others apply for but do not
receive permits, or permits are Issued
‘over time, costs will differ from these
estimates.
Under the regulations, corrective
action Is only required in those cases
where Appendix VIII constituents
million tons of waste per yam 4240 surface
Impoundments with 11.159 aces of surface ares 241
land treatment facilities with 12.100 sores of
operating ares. and en waste piles with $7 million
cubic feet of wastes. ‘Thus. D&O oosts eta based on
5 562 units Surveys to venfy these estimates are
now underway, and It I. likely that the final
estimates will be lower.
We were unable to sImply add the cepacitles
reported on the Part A’s bscause capacities for
some types of units are reported U t different units of
measure there than the units of measure used In this
analysis (i.e. landfills In ace-feet rather than metric
tons, and surface Impoundments Ia gallons or liters
rather than sores of surface eisa. In addition, we
assumed that the remi.th . isntlng like of all
units was 20 years. Annual capacity figures fur each
kind of facility should therefore be viewed as
estimated based on available dsta. rather than as
a regates of reported capacities.
“in adding costs for units to obtain totals an
— adjustment was made to avoid double counting the
costs of landflhling surface Impoundment sludge and
wastes removed front pllaa.
“Once again, It was neeaaaaiy to make
assumptions in order to transform the units repurtad
on the Part A’s Into ames of surface atea. However,
the corrective action coat estimates are based on
2484 facilities, the number of disposal facilities
which submitted Part A of the permit application.
Increase In ground water, and where the
owner or operator Is unable to show
that the actual concentration of those
constituents pose no threat to human
health or the environment Total costs
as high as the high cost case are very
unlikely since It assumes that all
landfills Install double synthetic liner
systems, all existing surface
Impoundments close and build new
Impoundments with double synthetic
liner systeI s, and that In spite of these
actions, all facilities require Immediate
corrective action lasting 150 years and
using an expensive counterpumping
strategy. A. the need for corrective
actIon Increases, and as owners and
operators Install more expensive liner
systems the total cost of the regulations
will Increase from the low cost case
toward the high cost case.”
The lower and upper bound costs are
shown In Table 15. The annualized D&O
cost for the regulations ranges from $150
to $468 million per year. Depending on
the frequency, speed and concentration
with which Appendix VIII constituents
reach pound water, total Incremental
annualized costs could be as high as
$1,145 million.
T*at.z 1S.—Tomi. AnNUAL REVENUE Ra-
OWREMENTS Fon PAIn 264 REGULATIONS:
Au. LAND Dis out. FACILITIES
IDote a Ii u ons3
Bmetiw
lss s)’
Low tOri
cobmite
Landis, 060 -—
$ ma —
DI0...........
(Aaimsil to
ted$lsd ma1s lJ)
Wait. psss D&o._.._...._l
(Athatowfltw I
tsndl1led maIanafl _.4
Landlsai_.srt oaO.___l
Onreusre adorn
$301
531
(IsO)
15
(10)
51
—
551
102
(57)
7
(5)
20
—
$155
401
‘ (Its)
12
45)
SD
$7?
J,
702
150
1,145
‘11w oral basMiw coats di $702 a a E itss p.48
costs ci aimS 5151 uWlcm to t. .strne. aiw 5150 oition to
Sstsos l ,Vo(s rtu Dou dst. ma ,ai awsous to
west. — — told ssco wdtr P 1 ,400 scat. m
ted co.amto -. . aid I*suctils costs Sailed I i
a test osst tactep en cost. Sidud, uiar. Iwi
“good ‘ mi.s sep” . lsc ’earwrti 72 .
cent ci Sw IS O costs ci $341 litton lidudad Si lie Iaaai ,ie
ore (1a t. ISO duaws ($52 uitban , en draws (140
IsM on ) pusast wall, . ..., .Jl .,I1.. , ($42 indi an), end t.wsMl
(182 ui15i4 rs manorm
C. IndusbyAnoiysis
The economic impacts of these
regulations will depend In part on how
“Actually, the high cost case does not reflect the
highest possible costs and the low cost case does
not represent the lowest possible cost that could
occur under the regulations, because waivers are
potentially available for acme iequlrements alid
because we use median technical assumptions In
determining cost. It Is. however, extremely unlikely
that the tree cost of these regulations wIll fall
outside these boundaries
-------
Federal Register I Vol. 47, No. 143 I Monday, July 26. 1982 / Rules and Regulations
32345
the costs of the regulations are
distributed scrose Industries and firms.
As described In Total Costs, EPA
calculated upper and lower bound coel
estimates. These two cost scenarios
were then applied to selected industries,
In order to obtain a preliminary
indication of whether economic impacts
might be significant. The industries
examined were selected because there
were large number, of on-site land
disposal facilities in the Industries, or
large quantities of waste shipped off-
site, or both.
Upper and lower bound costs were
allocated to industries using available
information on the use of land disposal
of hazardous waste in these industrial
sectors. This information is sufficient to
allow EPA to identify the Industries on
which these regulations are most likely
to impose significant costs. However,
cost estimates for any given Industry are
highly sensitive to the numbers and
sizes of facilities attributed to that
Industry, and the data base used to
derive these factors for individual
industries is imprecise.
Table 16 lists the Industries EPA
examined, and their SIC codes. The
range of potential annual revenue
requirements is reported and compared
to total costs of production, value
added, and value of shipments in Table
17. The range of potential firBt year
expenditures Is compared to an estimate
of annual capital expenditures for each
industry in Table 18. Table 19, at the end
of this section, provides estimates of the
range of potential annual revenue
requirements (in excess of pre-ISS costs)
for the combination of ISS (Part 265) and
Part 204 regulations. In all asses cost
ranges reflect the upper and lower
bound cases used earlier in this
analysis.
These comparisons do not constitute
an economic impact analysis at either
the industry or firm level. At the
industry level, they do provide an initial
screening to Judge whether economic
impacts might be large or small. If the
upper bound costs do not appear
significant compared to economic
parameters for an industry, then the
analysis Indicates that broad and
significant economic Impacts are
unlikely. These comparisons are also
useful In Identifying those Industries
where the most significant Impacts are
likely to occur. However, the high coat
case cannot Indicate that there will in
fact be significant Impacts, because
costs are probably overstated In the
high cost case.
To the extent that economic
aggregates such as value added are
representative of firms in the industry
sectors, the ratios reported here could
also provide some insight into potential
burdens for typical” firms In each
industry. However, it ahould be
remembered that costs are likely to be
overstated in the high cost case, iS and
that there are no truly typical firms.
Four-digit SIC codes include highly
“has scenario is appropriate fore firm with.
mix of on- and off-site disposal, required to
undertake correcti s action lasting 150 years at an
early date at all of iti on.alte facilihes .fter having
Installed the most expensive technology modelled.
and simultaneously faced with higher off-site costs
due to the need for early colyactive aclion at all
avellable off-site facilities.
diverse operations with widely varying
costs of production, value added and
value of shipments per unit of hazardous
waste generated. In addition, facilities
will use different mixes of on- and off-
site disposal for these wastes, and so
face different exposure to thb
regulations.
The docket report contains a full.
description of the methodology used to
construct these tables.
TABLE 16.—InDusTRIES EXAMINED ev SIC
CODES
I—
c
iads
TABLE 17.—COMPARISON OF ANNUAL REVENUE REQUIREMENTS DUE TO PART 264 LAND DISPOSAL REGULATIONS TO SELECTED INDUSTRY
MEASURES, sY SIC CODE
and ngti coat i ases l
A,w ,eIixad coat ($000)
5322—53 309
1.3924,104... _ . ——
______—-
3.167-16.944. . —
3.204— 16.3 15.......... .___ —.
1.079-73.084... —— —
4. 596-24.176 —.
L484-iO.976 . .. -
1.640-7242. ______
1.303-7,31 5
996- 5 73g
I.037 . .A 57L
2.517—,e.s ea
3.736—23.635
1.003-7,201 ——
—
l5l—2,347. ,....._....
3 506—12 733.._
.16-317 _________________
20-1 09 ____
02-0 5
2 5-135.. . --
.35-3.35 .... —
33-194.
20-
.66-3.24
I ,)
13-266
‘3- Ia
10-64
L
Il- la
.54-20
“ -. 12
02- 14
1 15-731
05-53
08— Ia
a _ e,
eI-1c
66-57
.24-206
1 5-SC
01-07
21-164
04- ii
Ilanvç isis
u Gas Es6sction ______
Wood Prsarvmg . . —
N.a isat Oilonne ....._. ,. ____________
kiorganc POmsnti .. ... . — —_______
0 nat Qisawahi.__
PIasba Maisnal isis Rooms ______
• nVisba Ri 6er__. ...
OsSutosic Msn .Made Fbars. —______
Orga,* Thsu, NcnCuII ,aeaic .. ....___________
Mswis5 end Bclisloals. ___
Psints nd Allied Pwó,icts .. —____________
Guio and Wcod Cosivecal _____
Cy ’ -Iic Qvds, and litternisGaiei.
Iadoab i s l O srw Cosiriosli . —______
,— Fistlesi -—___
PhcWP. .1,c Faititsars — ,. - ____________
— Osirsashi . _
Disnaca? Pnu atabons NEC - ______
PsvoSen RVvai -. . .. ... __-
tib.csbrç Cos and Grsasas
SissI Fienscsa iris Sisal Mills . .. —
EMavo.Mot&hrg ,cat Plc&jcts
94ssl Wis sos R.lstad Products — —.
Bray Iron Fo ,,,dn.
5 .condry Nonferrous Metals
Coçtar Railing and Brsi n9 - - -.
P 1 5 t h9 and Pobihing Mole! Coatmn; sod Asisd
Ssmce s. .. - -
Momir Vehicles 5 ,01 Indies
Maui Vehicle Pals and Acoassonas -
1300
sot
3612
a’s
6 619
6621
3636
6636
3624
6636
6651
asi
6665
6666
6673
3674
367.
6692
6699
3611
6602
3612
3613
6615
as ’s
3341
33 5 16
34719
3711
37 14
Sic cod.
Mosatred coat an a Deicerltaga of—
Cost 01 pioniction
Vales added
Vat,. of stspinsnls
______ ___________________________ 1.
0721....
2491 _.__. —. ______
2012 _.. _.___ ——
2616 ________
2510 ._ ...... _______ 15- 57.
ii oo
6623 - __
2424 _. ._ -— _______ 0S—27 _
2661 - . ___
--
2974 _________
2692 ......_._....... . ..._. —--.——- .—-—-———
2699 . __ . .. 1.332-72 15
2911.. _.. . ... -. ......._ -. 23.939—1 16657 .. ..... ——
2992 ..._ . ._.. .._ 1.065-5230. —. --______
3312 . . ,... — _. .... ..... 6495—37153 _. - -.
10-127.
na_at
ic—.,o_ .__.__
12-. 52...._...._______________
._s U I
es- ____
e3- 20_________
05-24 --
244—1545
21-135
n.L . i, 53
.12-73.
.04- 27
.57-42
07- 49.
23—1 13
.52-31 —.
.35—1 26 ...._.. . —. —
-------
32346 Federal Register p Vol. 47, No. 143 1 Monday. July 26, 1982 I Rules and Regulations
TAS LE 17.—.COMPARsON or Ains ai. RevEswc RECUIRBEVTS Due o PART 264 LAND Disrosai. REGULATIONS TO SELECTED INDUSTRY
MEASURES. DY SIC CoDe—Continued
•NscSSw 6212 w45401S
ILsu u I
Ts.LE lB —COMPARISON OP FiRST YEAR EXPENDITURES DUE TO PaRT 264 LAND Dus ’osat.
REGUI.ATIONS TO YEARLY CAPITAL OUTLAYS BY SIC CODE
SIC code
21 . -,...a . p000)
r. 92W S1fl
0721 -
115249.430 ——
V)
1300 .
l19I-3 1.097.............. —
3491
1174-42.900
2.37-12475
2112 —
S)95—12 1 .$07
.31.41.50
a’s ._.
17 54 - 1 2 8. 243
.73-141 54
I I . 3N.4Sl. _ —
.724601
2121 . .
fL O 2 0 .1 2 9 .5 94
.33403
an
ii eo -i 14. 029
114-21932
2123 .__ ___
5B9-4 5.052
I 514974
2124 ...
5135-53.955
.11-2431
2133 — ._
$ 4l-L5D7
07449
2281_
5 14-14 .383
.12.4 27
2 1 5 ’
5133.44.90 1
5.3144831
sees -
sue- i 1 1.140... ._
i-ifl 04
2109 —
$ fl9-t37.33l
104.20 -
3173 . .....
$17043.233 —
04.417
2174
1190-7.951
10124.52
2 179. —
$I.11I-13.214 —
70125421
3522 . .__
14334 1.905.
303 19095.
2129 -. - . __
3911. _.
172741433
1I5.0 49-7 13 . 313 ——
1.3 ] ? 121238..
351217.42
2192 -
1863-11.263. —— . ..
457124026
3312 -- .
16.271-11.3 54
52 390
9013 ... . . _.
5257-19 . 344
421250.22
3319 -. ._... ... - . .._._
5080-17.963
1481252.33
33215.. - . . .. . —.
1549-15.339
3.39126203
3341 -
51300—33.954 -—
131 12 3461
33516 ...
13216-14. 597
1.0212105.25
34719 - ........
3711. - . ... _.._ . ...
3714 - ..._ - ...
54424 - 1 03J17........
1155 41.125. .... . . ...........__ ................_._J
$265-29.022. . . . . . . . .. ._......._ . . ......._._. .._ J
1.33129031
.0210468
06to438
3313
3315
$3215
3311
6
$ 17 19_
371 1
3714.... . . ..
$16562
.
SIa d co21 P9031
9 Sd 2011 090 O —
- -.
6 2a90dod
V62a21J. . , .. . ..a1L
71 1-7.042
LI
94
“.4
.11-75
.1 5-.34
.05-18
.11-75
27- Ill
Nieesa.ry dais acoilable
-------
Federal Register / Vol. 47, No. 143 / Monday, July 28. 1982 I Rules and Regulations
32347
—
15$l1
$5411
3333.
1 144.
33215
3311 —
3 35i6
34719
3,11 —
1.01-348
4 3-1.0 5
I 14—241
88
‘Ns cuwy Sate WiavIdabte
H Sensitivity Analysis
The following reports on analysis of
the sensitivity of counterpumping costs
to the number of units or facilities
affected, plume size, technical
assumptions about hydrogeology and
treatment costs, and the use of a
confining slurry wall to reduce pumping
rates and costs. This section also
examines the potential cost of floodplain
requirements.
1. Sensitivity of Corrective Action
Costs. Total corrective action costs are
very sensitive to whether corrective
actiQn occurs at individual units within
a facility or at the facility as a whole. As
desc 1bed earlier In this preamble, two
distributions were used to develop total
costs in this analysis. The first
disfributed Individual land disposal
units by size and was used to estimate
D&O costs on a unit-by-unit basis and to
report costs by unit. The second
distribution combined individual units
to form multi-unit land disposal facilities
and was used to estimate total
coirective action costs on the basis of
total acreage at land disposal sites.
If corrective action costs were to be
estimated using the first distribution (on
a unit-by-unit basis), instead of on a
facility-by-facility basis, total costs
reported would be significantly higher.
Ranges of corrective action costs using
the two distributions are reported in
Table 20.
TABLE 20.—COMPARISON OF CORRECTIVE AC.
TION COSTS USING UNITS ano FACILITIES
($000,000)
—
Scsnsr ,o
Carectrve s easi
OuI.d ‘sar Outset yaw
4Ossid 088dpwi
par020’ I SO ’
0.882 wJts
a _424-.- . .-— _ -.
196 61.175
II 871
Year. 188119 aVategy 1.
‘Y is 18819 avitegy 2.
As table 20 shows, If all 5.662 land
disposal units were to undertake
corrective action individually.
counterpumping costs would range from
$96 million to $1,176 million per year and
would be 80 to 90 percent higher than
the total corrective action costs reported
In Total Costs.
Both of these estimates depend In part
on plume sizes, which In this analysis
were necessarily related to the surface
areas used for waste management.
However, areas used are not directly
reported on the Part A of the permit
application for some units, and therefore
bad to be derived. In addition, plumes
may be larger than the facility area
when corrective action begins due to
Irregular shapes, the orientation of the
facility relative to ground water flow, or
site-specific constraints on the location
of recovery wells. The 50 percent area
add-on used for sites with more than
one type of unit deals with some of this
Imprecision. In any event, corrective
action costs are relatively insensitive to
plume size, If hydrogeologic conditions
are held constant. As reported In table
21, the cost of corrective action for a 25
acre plume is only 28 to 45 percent more
expensive than counterpwriping for a 5
acre plume. although the size of the
plume has increased by 400 percent.
Similarly, while a 125-acre plume Is 125
times bigger than a 1-acre plume. the
counterpumping cost associated with
the 125-acre plume is only 1.9 to 2.6
times greater, depending on the strategy
used and the timing of corrective action.
TABLE 21—COMPARISON OF INCREASES vi
COUNTERPIJMPING COSTS WITH INCREASES
vi PunbtE SIZE
Sal ar
ales
e aat
Strategy I tar 20 yearn
1*511.11; 51 yea ’ 49
Strategy S b I SO
ysara staitrig 51 yea’S
6603
P88SnI
3cr.
pIuv51 a
uskat
3303
--
3cr.
p
1
5
25
75
125
16
15
23
55
10
—
13
20
82
7
1 50
225
32?
420
-——
45
55
II
In the corrective action scenario
where each unit takes corrective action
Individually, the average plume size is
7.3 acres. The average plume size
increases to 15.6 acres when it is
‘TADI.E 19—COMPARISON OF ANNUAl. REVENUE REQUIREMENTS DUE TO PART 264 LAND DISPOSAl. REGULATiONS AND PART 265 LAND DIPOSAI. -
- REOULATIOWS TO SELECTED INDUSTRY MEASURES DY SIC CODE
ELSa ut N i Ceut esJ
es—fl
ec cs
Miuatsed cout D0X 000)
km ,atsad COat 05 S al-
al PI0 46Or
Vali. .33 ,4
Vatra at .11.....Sa
2491..
asia..
2 5 1 9.
2 52L
3323-
2523
sA
I’)
1’)
2551
2 58t______
2565.
1 569
2573
2074
2692..
S ell
2092
2312
2013
881 C
‘4-u -
‘4-SI
• )-123
$10-
1 $4
13$19_
‘—$10—
$5 $11_
1Sf-SIB
6347.
123-552
12-56 -.
aa . eu
I,)—
( ‘ I
124-4 2 6
.75-133.
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32348 Federal Register I Vol. 47. No. 143 / Monday. July 26. 1982 I Rules end Regulations
assumed that corrective action is taken
on a facility basis. Even this difference,
which probably is greater than the range
• of error In our plume size estimates. has
an Insignificant effect on total conective
action costs.
2. Sensitivity of Costs to
Ilydrogeologic Assumptions. EPA
examined the effects of alternative
assumptions regarding aquifer
transmlssivfty and gradient on
corrective action costs for two plume
sizes.” The Agency found that riianging
gradient or fransmissivity assumptions
has almost no effect on costs for small
plumes under Strategy I conditions.
However, for large plumes changing the
gradient from 0.5 to 50 feet per mile or
changing the transmlsslvlty front 10,000
to 1.000.000 gallons per day per foot can
Increase the annual revenue
requirement calculated for
counterpumping by about 50 percent.
Under Strategy 2 conditions, the same
changes In transmlsslvfty can Increase
costs for small plumes by 50 percent and
costs for large plumes by about 150
percent. Details of this analysis appear
In the docket report.
3. Sensitivity of Costs to Treatment
Assumptions. All corrective action cost
estimates displayed In this preamble
assume that the ground water removed
through counterpumping is treated in a
facility built on site to deal with a
simple mix of contaminants In low
concentrations. EPA used a simple
average of costs for three types of
treatment: activated carbon; reverse
osmosis; and a treatment train
consisting of coagulation, flocculation.
sedimentation and filtration. These
processes are capable of addressing the
bulk of potential ground water
contaminants, and except In unusual
cases the concentrations of pollutants
that are likely to be encountered should
be within the ranges that can be treated
by these systems.
On balance, these estimates give a
reasonable Indication of likely costs in
average situations. Specific scenarios
would need to be addressed to
substantially Improve on these
estimate..
Moving from an average of treatment
costs to costs for a single approach can
change corrective action costs up br
down by a third to a half.
‘Is all cases, the small plume (100 lix 200 ft)
approiimitely the size of the plume seed to
estimate corrective action cost, fore S acre .udace
Impoundment. The Is two and one.half times as
large as the plume size for the smallest (500 MT/yr)
landfIll modelled The large plume (1000 fix am ftj
I, close in size to the plum . used to estimate costs
for a 35.000 mebic ton per year Ia .dfilL A 20 acre
eurface impoundment would Involve about the same
size plume.
Some cost decreases may be possible
If the pumped water contains only
volatile pollutants that can be treated
through air stripping. Where the
volumes of recovered water are very
low and the contaminants to be
removed are of a suitable kind, pre-
engineered treatment equipment can be
trucked to the site at some cost savings.
Large cost Increases are possible If the
recovered waler contains consaseliusnts
In high concentrations, or If the
recovered water contains a mixture of
contaminants. Mixtures can require use
of a combination of the approaches
examined here, or use of more complex
chemical or biological treatment.
(Details are contained in the docket
report.)
4. Adding a Slurry Wall to Reduce the
Pumping Rote. EPA also examined an
alternative strategy for compliance
based on use of a confining slurry wall
and a surface cover to minimize the
amount of pumping and treatment
required. This approach removes
contamination, but at a very slow rate,
so that for purposes of cost calculation.
It must be assumed that the plume will
exist for a very long time. EPA found
that this approach could save money in
many cases, compared to pumping ate
higher rate over a shorter period of time.
The difficulty In using this technique
may be In demonstrating that the plume
will be effectively contained and
removed.
EPA estimated the cost of this
strategy for a small plume (100 ft x 200
ft) since slurry wall costs increase more
rapIdly with plume size than do
counterpwnping costs. EPA determined
that with a slurry wall in place pumping
rates would be in the range of 10.000 to
50.000 gallons per year (38 to 189 MT/
year). Because these rates are very low
relative to what they would be without
the slurry wall (4 to 22 million gallons
per year under base case conditions),
EPA assumed that the contaminated
ground water would be treated In pie-
engineered facilities trucked to the site,
at a cost of $85 per 1.000 gallons or $22
per metric ton. At this cost, over 250.000
gallons of recovered water—five to
twenty-five times the amount
.expected—could be treated before a
slurry wall becomes financially
unattractive.
Use of a slurry wall would be even
more attractive under pessimistic
assumptions regarding gradient and
transmlsslvlty, because these changes
would not affect the costs of the slurry
wall approach. The slurry wall approach
would be much less attractive with
deeper plumes, and infeasible at depths
greater than 150 feet.
5. Costs of Floodplain Standards. The
Part 284 regulations require that
facilities located In 100-year floodplalns
be designed, constructed, operated. and
maintained to prevent washout of any
hazardous wasteby a 100-year flood.
Dike costs were only estimated for
surface Impoundments. It was assumed
that Impoundments are likely to be
located In floodplains because they are
often part of systems for treating
Industrial effluent before It I. discharged
In surface water. It was assumed that -
dikes ate built around S sides of the
surface Impoundment, that there is a 40
buffer zone between the surface
Impoundment and the dike, and that
dike construction Is entirely
Independent from the surface
Impoundment.
EPA estimated the costs of
consfructing dikes of various heights to
withstand the effects of a 100-year flood
Actual dike heights are likely to vary
with floodplain topographies, river
depths, and heights during 100-year
floods. Costs were estimated for dike
heights of 2. 3, 5, and 9 meters, but the 3.
meter (about 10 feet) height Is used as
an average cost estimate. Dike widths
varied with height and ranged from 14
meters for a 2-meter high dike to 49
meters for a 9-meter high dike. The
width of the dike significantly Increases
• The amount of land required for the
- ‘facility. For example, a %-acre surface
Impoundment would need to be situated
on 1.5-acres to accommodate the buffer
zone and a 3-meter dike. Similarly. an 11
acre surface Impoundment would
require about 16 acres to allow for the
buffer area and a 3-meter dike.
Annual revenue requirements for
dikes of various heights were estimated
In the seine way that other D&O revenue
requirements were estimated for surface
Impoundments. Costs for a 3 meter dike
ranged from $3,000 for a ) -acre surface
Impoundment to $17,000 for an li-acre
Impoundment. For smaller surface -
Impoundments. these costs were about
50 percent of the basic costs of
complying with the Part 264 regulations,
and roughly 20 to 25 percent of the costs
of retrofitting or replacing a facility. For
large surface Impoundments, a 3-meter
dike would add about 15 percent to the
basic compliance cost, and about 6
percent to the retrofit or replacement
cost.
If It Is assumed that all surface
Impoundments construct 3-meter dikes
to protect against washout from a 100-
year flood, the total Incremental cost
would be $29 mIlllon.es
•Cests were estimated on a unit-by-unit basis ice
el I 4210 surfaus Impoundments. EstimatIng cost, on
-------
Federal Register / Vol. 47, No. 143 I Monday. July 26, 1982 I Rules and. Regulations
32349
X. List of Subjects
40 CFR Port V
40 CFR Port 260
Administrative practice and
procedure, Confidential business
Information, Hazardous materials.
Waste treatment and disposal.
40 CF Port 284
Hazardous materials, Packaging and
containers. Reporting and recordkeeping
requirements. Security measures. Surety
bonds. Waste treatment and disposaL
Waste supply.
Dated: July 9, 1982.
Anne P .4. Gozuuth,
Adminisfrctez.
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1260,10 (AinindedI
2. 40 CFR Part 260 is amended by
removing the following from 260.10:
“Constituent” or “hazardous waste
constituent” means a constituent which
caused the Administrator to list the
hazardous waste In Part 261, Subpart D,
of this chapter. or a constituent listed In
Table 1 of I 261.24 of this chapter.
3. 40 CFR Part 260 is amended by
adding the following terms and
definitions to I 260.10 in alphabetical
order.
“Certification” means a statement of
professional opinion based upon
knowledge and belief.
“Existing portion” means that land
surface area of an existing waste
management unit, limluded in the
original Part A permit application, on
which wastes have been placed prior to
the Issuance of a permit.
“Hazardous waste constituent” means
a constituent that caused the
AAmIn trator to list the hazardous
waste In Part 281, Subpart D, of this
chapter, or a constituent listed In Table
I of 261.24 of this chapter.
“Treatment Zone” means a soil area
of the unsaturated zone of a land
treatment irnit within which hazardous
constituents are degraded, transformed.
or immobilized.
“Uppermost aquifer” means the
geologic formation nearest the natural
ground surface that Is an aquifer, as well
as lower aquifers that are hydraulically
interconnected with this aquifer within
the facility’s property boundary.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACIUTIES
4. In 40 CFR Parr 264, the Table of
Contents Is amended by adding listings
for Subparts F, M. and N, and revising
listings for Subparts K and L, to read as
follows:
• S S S S
Subpart F—Ground’wster Protection
264.90 ApplIcability. -
204.91 Required programs.
204.92 Cround.water protection standard.
204.93 Hazardous constituents.
264.94 Concentration limits.
264.95 PoInt of compliance.
284.96 Compliance period.
264.97 General ground-water monitoring
requirements.
204.98 Detection monitoring program.
264.99 Compliance monitoring program.
264.100 CorrectIve action program.
264.101—284.109 IReservedi -
• • S S •
Subpart K—Surface Impoundments
264.220 ApplicabIlity.
204.221 Design and operating requirements.
264.222 Double.llned surface
Impoundments: Exemption from Subpart
F ground-water protection requirements.
264.223-264.225 (Reserved]
261.226 MonItoring and inspection.
204.227 Emergency repairs; contingency
plans.
264.288 Closure and post-closure care.
264.229 SpecIal requirements for ignitable or
reactive waste.
264230 SpecIal requirements for
Incompatible wastos.
264231—264.249 (Reserved)
Subpart L—Wsats PS1S
264150 ApplIcability.
284151 Design and operating requirements.
214152 Dmzbleslined plles Exemption em
Subpart F ground-water protection
requirements.
264253 inspection of liners: E ’pt fonm
Subpart F ground-water protection
requirements.
264254 MonitorIng and laspedion.
264255 (Reserved]
264236 Special requirements for IgnItable or
reactive waste.
264157 Special requirements for
Incompatible wastes.
264258 Closure and post-closure care.
284259-264288 (ReservedJ
Subpart U—Land Trsatmsnt
204.270 ApplicabilIty.
204.271 Treatment program.
204.272 Treatment demonstration.
204.273 Design and operating requirements.
204.274—204.275 (Reserved)
204.270 Food-chain crops.
264.277 (Reserved)
204.278 Unsaturated zone monitoring.
204.279 Recordlceeping.
204.280 Closure sad post-closure care.
264.281 Special requirements for Ignitable or
reactive waste.
264282 SpecIal requirements for
Incompatible wastes.
264283—264.299 (Reserved]
Subpart N—Landfills
204.300 Applicability.
204.301 Design sad operating requirements.
284.302 Double-lined landfills: Exemption
from Subpart F ground-water protection
requirements.
264.303 Monitoring and Inspection.
284.304—264.306 IReservedi
264.309 Surveying end recordkeeplng.
204.310 Closure and post-closure care.
264.311 (Reserved)
264.312 SpecIal requirements for Ignitable cr
reactive waste.
264213 Special requirements for
incompatible wastes. -
284.314 Special requirements for liquid
waste.
204215 Special requirements for containers.
264.318 Disposal of small containers of
hazardous waste in overpacked drums
(lab pecks).
264.337—264.339 (Reserved)
a S • S S
5. The authority citation for Part 204
reads as foUows:
AuthorIty Secs. 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.SC
0905.6912(a). 0924. and 6925).
8. In 40 CFR Part 264, Subpart B,
H 264.10(b), 284.15(b)(4), and
264.18(b)(1) are revised to read as
follows:
•264.10 Appilcabty.
• S • 5 5
(b) Section 264.l8tb) applies only to
facilities subject to regulation under
Subparts I through 0 of this part.
Administrative practice and
procedure. Air pollution control,
Hazardous materials, Reporting
requirements. Waste treatment and
disposal, Water pollution control, Water
supply, Confidential business
Information.
• Hazardous materials, Packaging and
containers, Reporting requirements,
Security measures. Surety bonds, Waste
treatment and disposal. -
40 Cl 7l Port 285
For the reasons set out In the
preamble, 40 CFR Parts 260, 264, 265,
and 122 are amended as set forth below.
1. The Authority citation for Part 260
reads as follows:
Authority Secs. 1006,2002(a). 3001 through
3007, 3010, and 7004, of the Solid Waste
Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976. as
amended 142 U.S.C. 8905,6912(a). 0921
through 0927,6930, and 6974).
a facility-b) -facility be,,, for all land disposal sites
would Increase the total colt reported here by about
75 percent.
-------
32350
Federal Register VoL 47 No. 143 1 Monday July 26, 1982 I Rules and Regulations
I 264.15 General Inspection ,squirsmsnts.
• • • • •
(b)W
(4) The frequency of inspection may
vary for the Items on the schedule.
However, It should be based on the rate
of possible deterioration of the
equipment and the probability of an
environmental or human health incident
if the deterioration or malfunction of
any operator error goes undetected
between Inspections. Areas subject to
spills, such as loading and unloading
areas, must be Inspected daily when in
use. At a minimum, the inspection
schedule must include the terms and
frequencies called for in { § 264.174,
284.194, 284.226. 264.253. 264.254. 204.303.
and 284.347, where applicable.
1264.18 LocatIon standards.
• S • • S
(b) Floodplains. (I) A facility located
in a 100-year floodplain must be
designed. constructed, operated, and
maintained to prevent washout or any
hazardous waste by a 100-year flood,
unless the owner or operator can
demonstrate to the Regional
Administrator’s satisfaction that:
(i) Procedures are In effect which will
cause the waste to be removed safely,
before flood waters can reach the
facility, to a location where the wastes
will not be vulnerable to flood waters;
or
(ii) For existing surface
Impoundments, waste piles, land
treatment units, end landfills, no
adverse effects on human health or the
environment will result if washout
occurs, considering:
(A) The volume and physical and
chemical characteristics of the waste in
the facility;
(B) The concentration of hazardous
constituents that would potentially
affect surface waters as a result of
washout:
(C) The Impact of such concentrations
on the current or potential uses of and
water quality standards established for
the affected surface waters; and
(D) The Impact of hazardous
constituents on the sediments of
affected surface waters or the soils of
the 100-year floodplain That could result
from washout.
• S S •• S
7. In 40 CFR Part 204, Subpart E ,
254.73 Is amended by revising
paragraph (b)(8), and I 284.77 is
amended by redesignating paragraph Cc)
as paragraph (b). It Is further amended
by revising newly redesignated
paragraph (b) and adding a new
paragraph (c) to read as follows:
1264.73 OperatIng iscord .
5 - S S S S
(6) MonitorIng. testing, or analytical
date where required by Subpart F and
1 1264.220.284.253, 264.254, 264.278
204.278.264.280,264.303.264.309, and
2 6 4.347;
• S S • S
• 264.77 AddItional r.pcrt..
• S S • S
(b) Facility closures specified in
1284.115; and
(c) As otherwise required by Subparts
F and IC-N.
8.40 CFR Part 204 Is amended by
adding Subpart F to read as follows:
Subpart F—Groundwater Protection
* 264.90 Appllcablifty.
(a) Except as provided in parigraph
(b) of this section, the regulations In this
subpart apply to owners and operators
of facilities that treat, store, or dispose
of hazardous waste In surface
Impoundments, waste piles, land
treatment units, or landfills. The owner
or operator must satisfy the
requirements of this subpart for all
wastes (or constituents thereof)
contained in any such waste
management unit at the facility that
receives hazardous waste after the
effective date of this subpart
(hereinafter referred to as a “regulated
unit”). Any waste or waste constituent
migrating beyond the waste
management area under I 284.95(b) is
assumed to originate from a regulated
unit unless the Regional Administrator
finds that auch waste or waste
constituent originated from another
source.
(b)The owner or operator Is not
subject to regulation under this subpart
If:
(1) He is exempted under I 204.1;
(2) He designs and operates a surface
Impoundment In compliance with
• 204-222, a pile In compliance with
I 264.250(c). 284.252. or I 264.253, or a
landfill In compliance with I 204.302:
(3) The Regional Administrator finds,
pursuant to I 264.280(d), that the
treatment zone of a land treatment unit
does not contain levels of hazardous
constituents that are above background
levels of those constituents by an
amount that is statistically significant,
and if an unsaturated zone monitoring
program meeting the requirements of
* 264.278 has not shown a statistically
significant increase In hazardous
constituents below the treatment zone
during the operating life of the unit. An
exemption under this paragraph can
only relieve an owner or operator of
responsibility to meet the requirements
of this subpart during the post-closure
care period; or
(4] The Regional Administrator finds
that-there Is no potential for migration of
liquid from a regulated unit to the
uppermost aquifer during the active life
of the regulated unit (Including the
closure period) and the post-closure care
period specified under * 284.117. This
demonstration must be certified by a
qualified geologist or geotechnical
engineer. In order to provide an
adequate margin of safety In the
prediction of potential migration of
liquid, the owner or operator must base
any predictions made under this
paragraph on assumptions that
maximize the rate of liquid migration.
(c) The regulations under this subpart
apply during the active life of the
regulated unit (including the closure
period). After closure of the regulated
unit, the regulations in this subpart:
(1) Do not apply If all waste, waste
residues, contaminated containment
system components, and contaminated
subsoil. are removed or decontaminated
at closure:
(2) Apply during the post-closure care
period under 264.117 If the owner or
operator Is conducting a detection
monitoring program under I 204.98; or
:13) Apply during the compliance
period under I 284.96 If the owner or
operator Is conducting a compliance
monitoring program under *264.99 ore
corrective action program under
I 284.100.
*264.91 RequIred programs.
(a) Owners and operators subject to
this subpart must conduct a monitoring
and response program as follows:
(1) Whenever hazardous constituents
under I 264.93 from a regulated unit are
detected at the compliance point under
I 264.95, the owner or operator must
institute a compliance monitoring
program under l 204.99;
(2) Whenever the ground-water
protection standard under I 284.92 Is
exceeded, the owner or operator must
Institute a corrective action program
under I 284.100:
(3) Whenever hazardous constituents
under I 28493 from a regulated unit
exceed concentration limits under
* 264.94 In ground water between the
compliance point under I 264.95 and the
downgradient facility property
boundary, the owner or operator must
Institute a corrective action program
under I 264.100; or
(4) In all other cases, the owner or
operator must Institute a detection
monitoring program under I 284.98.
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Federal Register / Vol. 47. No. 143 I Mnn y. July 26, 1982 / Rules and Regulations
32351
(b) The Regional Mmhilstrator will
specify In the facility permit the specific
elements of the inonftorlng and response
program. The Regional Mmint.tratcr.
may Include one or more of the
programs Identified In paragraph f a) of
this section Iii the facility permit as may
be necessary to protect human health
and the environment and will specify
the circumstances under which each of
the programs will be required. In
deciding whether to require the owner
or operator to be prepared to Institute a
particular program, the Regional
Admini frator will consider the
potential adverse effects on human
health and the environment that might
occur before final administrative action
on a permit modification application to
Incorporate such a program could be
taken.
• 264.92 Oround-wat.r protection
standard.
The owner or operator must comply
with conditions specified in the facility
permit that are designed to ensure that
hazardous constituents under 264.93
entering the ground water from a
regulated unit do not exceed the
concentration limits under § 284.94 In
the uppermost aquifer underlying the
waste management area beyond the
point of compliance under 264.95
during the compliance period under
• 284.90. The Regional Administrator
will establish this ground-water
protection standard In the facility permit
when hazardous constituents have
entered the ground water from a
regulated unit.
• 264.93 I$awdous constituents.
(a) The Regional Administrator will
specify In the facility permit the
hazardous constituents to which the
ground-water protection atandard of
• 264.92 applies. Hazardous constituents
are constituents Identified In Appendix
VIII of Part 281 of this chapter.that have
been detected In ground water In the
uppermost aquifer underlying a
regulated unit and that are reasonably
expected to be In or derived from waste
contained In a regulated unit, unless the
Regional Administrator has excluded
them under paragraph (b) of this section.
(b) The Regional Administrator will
exclude an Appendix VIII constituent
from the list of hazardous constituents
specified In the facility permit if he finds
that the constituent is not capable of
posing a substantial present or potential
hazard to human health or the
environment. In deciding whether to
grant an exemption, the Regional
Administrator will consider the
fdllowing:
(1) Potential adverse effects on
ground-water quality. conelderlng -
(1) The physical and chemical
characteristics of the waste In the
regulated unit. Including Its potential for
migration;
(II) The hydrogeologlcal
characteristics of the facility and
surrounding land
(Ill) The quantity of ground water and
the direction of ground-water flow’,
(Iv) The proximity and withdrawal
rates of ground-water users
(v) The current and future uses of
ground water In the area:
(vi) The existing quality of ground
water, Including other sources of
contamination and their cumulative
Impact on the ground-water quality;
(vii) The potential for health risks
caused by human exposure to waste
constituents
(viii) The potential damage to wildlife,
a’opa. vegetation, and physical
structures caused by exposure to waste
constituents:
(lx) The persistence and permanence
of the potential adverse effects: and
(2) Potential adverse effects on
hydraulIcally-connected surface water
quality, considering:
(I) The volume and physical and
chemical characteristics of the waste In
the regulated unit
(ii) The hydrogeological
characteristics of the facility and
surrounding land;
(iii) The quantity and quality of
ground water, and the direction of
ground-water flow;
(lv) The patterns of rainfall In the
region;
(v) The proximity of the regulated unit
to surface waters;
(vi) The current and future uses of
surface waters in the area and any
water quality standards established for
those surface waters;
(vii) The existing quality of surface
water, including other sources of
contamination and the cumulative
Impact on surface water quality
(viii) The potential for health risks
caused by human exposure to waste
constituents
(Ix) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituents: and
(x) The persistence and permanence
of the potential adverse effects.
(c) in making any determination under
paragraph (b) of this section about the
use of ground water In the area around
the facility, the Regional AiImInI trator
will consider any identification of
underground sources of drinking water
and exempted aquifers made under
I 122.35 of this chapter.
• 254.94 UmIts.
(a) The Regional M” ” .fratnr will
specify In the Iacflhty permit
concentration limits In the ground water
for hazardous constituents established
under 1204.93. The aww ntr fl o.f a
hazardous consdtuenL
(1) Must not exceed the background
level of that constituent In the ground
water at the time that limit I. specified
In the permlt or
(2) For any of the constituents listed In
Table 1, must not exceed the respective
value given in that Table if the
background level of the constituent Is
below the value given In Table 1 or
(3) Must not exceed an alternate limit
established by the Regional
Mmini trator under paragraph (b) of
this section.
(b) The Regional Administrator will
establish an alternate concentration
limit for a hazardous constituent if be
finds that the constituent will not pose a
substantial present or potential hazard
to human health or the environment as
long as the alternate concentration limit
Is not exceeded. In establishing
alternate concentration limits, the
Regional Administrator will consider the
following factors:
(1) Potential adverse effects on
ground-water quality, considering:
T*at.z 1.—MAIUMUM CO NTRAT1O4 or Cow-
STITUEHTS FOR GROUND-WATER PROTEC-
TION
M
ow
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(I) The physical and chemical
characteristics of the waste In the
regulated unit. Including Its potential for
migration;
(ii) The hydrogeological
characteristics of the facthty and
surrounding land
(Ill) The quantity of ground water and
the direction of ground-water flaw;
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32352
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 I Rules and Regulations
(lv) The proximity and withdrawal
rates of ground-water users;
(v) The current and future uses of
ground water in the area;
(vi) The existing quality of ground
water. Including other sources of
contamination and their cumulative
Impact on the ground-water quality;
(vii) The potential for health risks
caused by human exposure to waste
constituents;
(viii) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
Constituents;
( lx) The persistence and permanence
of the potential adverse effects; and
(2) Potential adverse effects on
hydraulically-connected surface-water
quality, considering:
(I) The volume and physical and
chemical characteristics of the waste In
the regulated unit;
(II) The bydrogeological
characteristics of the facility and
surrounding land;
( Iii) The quantity and quality of
ground water, and the direction of
ground-water flow.
(Iv) The patterns of rainfall In the
region;
(v) The proximity of the regulated unit
to surface waters;
(vi) The current and future uses of
surface waters In the area and any
water quality standards established for
those surface waters;
(vii) The existing quality of surface
water, Including other sources of
contamination and the cumulative
Impact on surface-water quality;
(viii) The potential for health risks
caused by human exposure to waste
constituents;
(ix) The potential damage to wildlife.
crops. vegetation. and physical
structures caused by exposure to waste
constituents; and
(x) The persistence and permanence
of the potential adverse effects.
(c) In making any determination under
paragraph (b) of this section about the
use of ground water in the area around
the facility the Regional Administrator
will consider any identification of -
underground sources of drinking water
and exempted aquifers made under
122.35 of this chapter.
f 264.95 Point •f compliance.
(a) The Regional Administrator will
specify In the facility permit the point of
compliance at which the ground-water
protection standard of § 204.92 applies
and at which monitoring must be
condueted. The point of compliance is a
vertic& surface located at the
hydraulically downgradient limit of the
waste management area that extends
down Into the uppermost aquifer
underlying the regulated units. -
(b) The waste management area Is the
limit projected In the horizontal plane of
the area on which waste will be placed
during the active life of a regulated unit.
(1) The waste management area
includes horizontal space taken up by
any liner, dike, or other barrier designed
to contain waste In a regulated unit.
(2) If the facility contains more than
one regulated unit, the waste
management area Is described by an
imaginary line circumscribing the
several regulated units.
26496 Cornpilics p.d d
(a) The Regional Administrator will
specify In the facility permit the
compliance period during which the
ground-water protection standard of
I 264.92 applies. The compliance period
Is the number of years equal to the
active life of the waste management
area (Including any waste management
activity prior to permitting, and the
closure period.)
(b) The compliance period begins
when the owner or operator Initiates a
compliance monitoring program meeting
the requirements of 204.99.
(c) lithe owner or operator Is engaged
In a corrective action program at the end
of the compliance period specified in
paragraph (a) of this section. the
compliance period Is extended until the
owner or operator can demonstrate that
the ground-water protectinn standard of
I 204.92 has not been exceeded for a
period of three consecutive years.
* 264.97 General ground-water monItoring
requirements.
The owner or operator must comply
with the following requirements for any
ground-water monitoring program
developed to satisfy I 264.98. I 284.99.
or I 264.100:
(a) The ground-water monitoring
system must consist of a sufficient
number of wells, installed at appropriate
locations and depths to yield ground-
water samples from the uppermost
aquifer that:
(1) Represent the quality of
background water that has not been
affected by leakage from a regulated
unit and
(2) Represent the quality of ground
water passing the point of compliance.
(b) If a facility contains more than one
regulated unit, separate ground-water
monitoring systems are not required for
each regulated unit provided that
provisions for sampling the ground
water In the uppermost aquifer will
enable detection and measurement at
the compliance point of hazardous
constituents from the regulated units
that have entered the ground water in
the uppermost aquifer.
(c) All monitoring wells must be cased
In a manner that maintains the Integrity
of the monitoring-well bore hole. This
casing must be screened or perforated
and packed with gravel or sand. Where
necessary, to enable collection of
ground-water samples. The annular
space (I.e., the space between the bore
bole and well casing) above the
sampling depth must be sealed to
prevent contamination of samples and
the ground water.
(d) The ground-water monitoring
program must include consistent
sampling and analysis procedures that
are designed to ensure monitoring
results that provide a reliable indication
of ground-water quality below the waste
management area. At a minimum the
program must include procedures and
techniques for.
(1) Sample collection;
(2) Sample preservation and shipment
(3) Analytical procedures; and
(4) Chain of custody control.
(e) The ground-water monitoring
program must include sampling and
analytical methods that are appropriate
for ground-water sampling and that
accurately measure hazardous
constituents In ground-water samples.
(I) The ground-water monitoring
program must include a determination of
the ground-water surface elevation each
time ground water Is sampled.
(g) Where appropriate, the ground-
water monitoring program must
establish background ground-water
quality for each of the hazardous
constituents or monitoring parameters or
constituents specified in the permit,
(1) In the detection monitoring
program under 284.98, background
ground-water quality for a monitoring
parameter or constituent must be based
on data from quarterly sampling of wells
upgradient from the waste management
area for one year.
(2) In the compliance monitoring
program under I 264.99, background
ground-water quality for a hazardous
constituent must be based on data from
upgradlent wells that:
(I) Is available before the permit Is
Issued;
(11) Accounts for measurement errors
In sampling and analysis; and
(iii) Accounts, to the extent feasible,
for seasonal fluctuations In background
ground-waler quality If such fluctuations
are expected to affect the concentration
of the hazardous constituent.
(3) Background quality may be based
on sampling of wells that are not
upgradicnt from the waste management
area where:
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Federal Register / Vol. 47. No. 143 I Monday. July 26. 1982 f Rules and Regulations
32353
(i) Hydrogeologic conditions do lot
allow the owner or operator to
determine what wells are upgradient, or
(ii) Sampling at other wells will
provide an Indication of background
ground-water quality that is as
representative or more representative
than that provided by the upgradient
wells.
(4) In developing the data base used
to determine a background value for
each parameter or constituent, the
owner or operator must take a minimum
of one sample from each well and a
minimum of four samples from the entire
system used to determine background
ground-water quality. each time the
system is sampled.
(h) The owner or operator must use
the following statistical procedure in
determining whether background values
or concentration limits have been
exceeded:
(1) If. in a detection monitoring
program, the level of a constituent at the
compliance point Is to be compared to
the constituent’s background value and
that background value has a sample
coefficient of variation less than 1.00:
(i) The owner or operator must take at
least four portions from a sample at
each well at the compliance point and
determine whether the difference
between the mean of the constituent at
each well (using all portions taken) and
the background value for the constituent
is significant at the 0.05 level using the
Cochran’s Approximation to the
Behrens-Fisher Student’s t-test as
described in Appendix IV of this part. If
the test indicates that the difference Is
significant, the owner or operator must
repeat the same procedure (with at least
the same number of portions as used in
the first test) with a fresh sample from
the monitoring well. If this second round
of analyses indicates that the difference
is significant, the owner or operator
must conclude that a statistically
significant change has occurred; or
(ii) The owner or operator may use an
equivalent statistical procedure for
determining whether a statistically
significant change has occurred. The
Regional Administrator will specify such
a procedure in the facility permit if he
finds that the alternative procedure
reasonably balances the probability of
falsely identifying a non-contaminating
regulated unit and the probability of
failing to identify a contaminating -
regulated unit In a manner thai is
comparable to that of the statistical
procedure described in paragraph
(h)(l)(i) of this section.
(2) In all other situations in a
detection monitoring program and in a
compliance monitoring program, the
owner or operator must use a statistical
procedure providing reasonable
confidence that the migration of
hazardous constituents from a regulated
unit into and through the aquifer will be
Indicated. The Regional Administrator
will specify a statistical procedure In the
facility permit that he finds:
(I) is appropriate for the distribution
of the data used to establish background
values or concentration limits; and
(H) Provides a reasonable balance
between the probability of falsely
Identifying a non-contaminating.
regulated unit and the probability of
failing to Identify a contaminating
regulated unit.
• 264.98 DetectIon monitoring prcgraiv .
An owner or operator required to
establish a detection monitoring
program under this subpart must, at a
minimum, discharge the following
responsibilities:
(a) The owner or operator must
monitor for indicator parameters (e.g..
specific conductance, total organic
carbon, or total organic halogen), waste
constituents, or reaction products that
provide a reliable indication of the
presence of hazardous constituents in
ground water. The Regional
Administrator will specify the
parameters or constituents to be
monitored in the facility permit, after
considering the following factors:
(I) The types, quantities, and •. -
concentrations of constituents In wastes
managed at the regulated unit;
(2) The mobility, stability, and
persistance of waste constituents or
their reaction products In the
unsaturated zone beneath the waste
management area;
(3) The detectability of indicator
parameters, waste constituents, and
reaction products In ground water, and
(4) The concentrations or values and
coefficients of variation of proposed
monitoring parameters or constituents in
the ground-water background.
(b) The owner or operator must install
a ground-water monitoring system at the
compliance point as specified under
I 264.95. The ground-water monitoring
system must comply with I 264.97(a)(2).
(b) and (c).
(c) The owner or operator must
establish a background value for each
monitoring parameter or constituent
specified in the permit pursuant to
paragraph (a) of this section. The permit
will specify the background values for
each parameter or specify the
procedures to be used to calculate the
background values.
(1) The owner or operator must
comply with I 264.97(g) in developing
the data base used to determine
background values.
(2) The owner or operator must
express background values in a form
necessary for the determination of
statistically significant increases under
• 264.97(h).
(3) In taking samples used in the
determination of background values, the
owner or operator must use a
water monitoring system that complies
with 1264.97(a)(1), (b) and (c).
(d) The owner or operator must
determine ground-water quality at each
monitoring well at the compliance point
at least semi-annually during the active
life of a regulated unit (including the
closure period) and the post-closure care
period. The owner or operator must
express the ground-water quality at
each monitoring well in a form
necessary for the determination of
statistically significant Increases under
I 264.97(h).
(a) The owner or operator must
determine the ground-water flow rate
and direction in the uppermost aquifer
at least annually.
(I) The owner or operator must use
procedures and methods for sampling
and analysis that meet the requirements
of I 264.97 (d) and (e).
(g) The owner or operator must
determine whether there Is a
statistically significant increase over
background values for any parameter or
constituent specified in the permit
pursuant to paragraph (a) of this section
each time he determines ground-water
quality at the compliance point under
paragraph (d) of this section.
(1) In determining whether a
statistically significant increase has
occurred, the owner or operator must
compare the ground-water quality at
each monitoring well at the compliance
point for each parameter or constituent
to the background value for that
parameter or constituent, according to
the statistical procedure specified in the
permit under 264.97(h).
(2) The owner or operator must
determine whether there has been a
statistically significant increase at each
monitoring well at the compliance point
within a reasonable time period after
completion of sampling. The Regional
Administrator will specify that time
period in the facility permit, after
considering the complexity of the
statistical test and the availability of
laboratory facilities to perform the
analysis of ground-water samples.
(Ii) If the owner or operator
determines, pursuant to paragraph (g) of
this section, that there is a statistically
significant increase for parameters or
constituents specified pursuant to
paragraph (a) of this section at any
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32354 Federal Register I Vol. 47, No. 143 / Monday. July 28, 1982 I Rules and Regulations
monitoring well at the compliance point,
he must:
(1) Notify the Regional Administrator
bf this finding in writing within seven
days. The notification must Indicate
what parameters or constituents have
shown statistically significant increases;
(2) immediately sample the ground
water in all monitoring wells and
determine the concentration of all
constituents Identified In Appendix VIII
of Part 261 of this chapter that are
present In ground water
(3) Establiah a background value for
each Appendix VIII constituent that has
been found at the compliance point
under paragraph (h)(2) of this section, as
follows:
(I) The owner or operator must comply
with * 264.97(g) In developing the data
base used to determine background
values;
(ii) The owner or operator must
express background values In a form
necessary for the determination of
statistically significant Increases under
• 264.97(h): and
(lii) In f*ki g samples used In the
determination of background values, the
owner or operator must use aground-
water monitoring system that complies
with I 264.97(a)(1), (b), and (c);
(4) Within 80 days, submit to the
Regional Administrator an application
for a permit modification to establish a
compliance monitoring program meeting
the requirements of * 264.99. The
application must include the following
Information: -
(i) An Identification of the
concentration of any Appendix VIII
constituents found In the ground water
at each monitoring well at the
compliance point;
(ii) Any proposed changes to the
ground-water monitoring system at the
facility necessary to meet the
requirements of I 284.99;
(lii) Any propoasd changes to the
monitoring frequency, sampling and
analysis procedures or methods, or
statistical procedures used at the facility
necessary to meet the requirements of
I 264.99,
(iv) For each hazardous constituent
found at the compliance point, a
proposed concentration limit under
§ 264.94(a)(1) or (2). ore notice of intent
to seek a variance under § 264.94(b); and
(5) WIthin 180 days, submit to the
Regional Administraton
(I) All data necessary to justify any
variance sought under 264.94(b): and
(ii) An engineering feasibility plan for
a corrective action program necessary to
meet the requirements of * 264.100,
unless:
(A) All hazardous constituents
Identified under paragraph (h)(2) of this
iection me listed In Table I of 264.94
and their concentrations do not exceed
ie respective values given In that
Table: or
(8) The owner oroperatorhas sought
a variance under * 264.94(b) for every
hazardous constituent Identified under
paragraph (h)(2) of this section.
(i) If the owner or operator
determines, pursuant to paragraph (g) of
this section. that there Is a statistically
significant Increase of parameters or
consitutents specified pursuant to
paragraph (a) of this section at any
monitoring well at the compliance point,
he may demonstrate that a source other
than a regulated unit caused the
increase or that the Increase resulted
from error In sampling, analysis, or
evaluation. While the owner or operator
may make a demonstration under this
paragraph In addition to, or In lieu of.
submitting a permit modification
application under paragraph (h)(4) of
this section. bela not relieved of the
requirement to submit a permit
modification application within the time
specified In paragraph (h)(4) of this
section unless the demonstration made
under this paragraph successfully shows
that a source other than a regulated unit
caused the Increase or that the increase
resulted from error In sampling.
analysis, or evaluation. In making a
demonstration under this paragraph, the
owner or operator must:
(1) Notify the RegIonal Administrator
In writing with in seven days of
determining a statistically significant
Increase at the compliance point that he
intends to make a demonstration under
this paragraph:
(2) Within 90 days, submit a report to
the Regional Administrator which
demonstrates that a source other than a
regulated unit caused the Increase, or
that the Increase resulted from error In
sampling. analyais, or evaluation:
(3) Within 90 days, submit to the
Regional Administrator an application
for a permit modification to make any
appropriate changes to the detection
monitoring program at the facility; and
(4) Continue to monitor In accordance
with the detection monitoring program
established under this section.
(I) If the owner or operator determines
that the detection monitoring program
no longer satisfies the requirements of
this section. be must, wIthin 90 days,
iubmit an application for a permit
modification to make any appropriate
changes to the program.
(k) The owner or operator must assure
that monitoring and corrective action
measures necessary to achieve
compliance with the ground-waler
protection standard under *204.92 are
taken during the term of the permit.
* *04.95 Canipil.nos monitoring program.
An owner or operator required to
establish a compliance monitoring
program under this subpart must, at a
minimum, discharge the following
responslbflltle.:
(a) The owner or operator must
monitor the ground water to determine
whether regulated units are In
compliance with the ground-water
protection standard under I 204.92. The
Regional Administrator will specify the
ground-water protection etandard In the
facility permit, Including:
(1) A list of the hazardous
constituents Identified under *264.93;
(2) Concentration limits under 0 284.94
for each of those hazardous
constituents;
(3) The compliance point under
•204.95and
(4) The compliance period under
*264.96.
(b) The owner or operator must Install
a ground-water monitoring system at the
compliance point as specified under
• 264.95. The ground-water monitoring
system must comply with 264.97(a)(2),
(b) and (c).
(c) Where a concentration limit
established under paragraph (a)(2) of
this section 1, based on background
ground-water guality, the Regional
Administrator will specify the
concentration limit in the permit as
- follows:
(I) If there is a high temporal
correlation between upgredient and
compliance point concentrations of the
hazardous constitutents, the owner or
operator may establish the
concentration limit through sampling at
upgradient wells each time ground
water is sampled at the compliance
point. The Regional Administrator will
specify the procedures used for
determining the concentration limit In
this manner in the permit In all other
cases, the concentration limit will be the
mean of the pooled data on the
concentration of the hazardous
constituent
(2) ISa hazardous constituent is
Identified on Table I under 284.94 and
the difference beti een the respective
concentration limit in Table I and the
background value of that constituent
under * 264.97(g) Is not statistically
significant, the owner or operator must
use the background value of the
constituent as the concentration limit. in
determining whether this difference is
statistically significant, the owner or
operator must use a statistical procedure
providing reasonable confidence that a
real difference will be Indicated. The
statistical procedure must:
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Federal Register I Vol. 47. No. 143 I Monday. July 26 1982 I Rules and Regulations
32355
(I) Be appropriate for the distribution
of the data used to establish background
values: and
( I I) Provide a reasonable balance
between the probability of falsely
Identifying a significant difference and
the probability of falling to Identify a
significant difference.
(3) The owner or operator must:
(I) Comply with 264.97(g) In
developing the data base used to
determine background values;
(II) Express background values In a
form necessary for the determination of
statistically significant Increases under
264.97(h). and
(Iii) Use a ground-water monitoring
system that complies with 284.97(a)(1),
(b). and (c).
(d) The owner or operator must
determine the concentration of
hazardous constituents In ground water
at each monitoring well al the
compliance point at least quarterly
during the compliance period. The
owner or operator must express the
concentration at each monitoring well In
a form necessary for the determination
of statistically significant Increases
under 264.97(h).
(e) The owner or operator must
determine the ground-water flow rate
and direction In the uppermost aquifer
at least annually.
(f) The owner or operator must
analyze samples from all monitoring
wells at the compliance point for all
constituents contained In Appendix VIII
of Part 261 of this chapter at least
annually to determine whether
additional hazardous constituents are
present In the uppermost aquifer. U the
owner or operator finds Appendix VIII
constituents En the ground water that are
not identified In the permit as hazardous
constituents, the owner or operator must
report the concentrations of these
additional constituents to the Regional
Administrator Within seven days after
completion of the analysis.
(g) The owner or operator must use
procedures and methods for sampling
end analysis that meet the requirements
of 264.97(d) and (e).
(h) The owner or operator must
determine whether there is a
statistically significant increase over the
concentration limits for any hazardous
constituents specified In the permit
pursuant to paragraph (a) of this section
each time he determines the
concentration of hazardous constituents
In ground water at the compliance point.
(I) In determining whether a
statistically significant Increase has
occurred, the owner or operator must
compare the ground-water quality at
each monitoring well at the compliance
point for each hazardous constituent to
the concentration limit for that
constituent according to the statistical
procedures spedfled In the permit under
2 04 . 97(h).
(2) The owner or operator must
determine whether there has been a
statistically significant Increase at each
monitoring well at the compliance point,
within a reas nabIe time period after
completion of sampling. The Regional
Mmintstrator will specify that time
period In the facility permit, after
considering the complexity of the
statistical test and the availability of
laboratory facilities to perform the
analysis of ground-water samples.
(I) U the owneror operator
determines, pursuant to paragraph (h) of
this section, that the ground-water
protection standard is being exceeded at
any monitoring well at the point of
compliance, be must: -
(1) Notify the Regional Administrator
of this fInding hi writing within seven
days. The notification must indicate
what concentration limits have been
exceeded.
(2) Submit to the Regional
Ali,niniRtrator an application for a
permit modIfication to establish a
corrective action program meeting the
requirements of 284.iOO wIthin 180
days, or within 90 days If an engineering
feasibility study has been previously
submitted to the Regional Administrator
wider 284.98(h)(5). The application;
must at a minimum include the following
Information:
(I) A detailed description of corrective
actions that will achieve compliance
with the ground-water protection
standard specified In the permit under
paragraph (a) of this saction and
(Ii) A plan fore ground-water
monitoring program that will
demonstrate the effectiveness of the
corrective action. Such a ground-water
monitoring program may be based on a
compliance monitoring program
developed to meet the requirements of
this section.
if) If the owner or operator
determines. pursuant to paragraph ( Ii) of
this section, that the ground-water
protection standard Is being exceeded at
any monitoring well at the point of
compliance, be may demonstrate that a
source other than s regulated unit
caused the Increase or that the Increase
resulted hum error In sampling, analysis
or evaluation. While the owner or
operator may make a demonstration
under this paragraph hi addition to. or hi
lieu of, submitting a permit modification
application wider paragraph (1)(2) of this
section, he Is not relieved of the
requirement to submit a permit
modification application within the tune
specified in paragraph (9(2) of this
section unless the demonstration made
under this paragraph successfully shows
that a source other than a regulated unit
caused the increase or that the Increase
resulted from eivor In sampling.
analysis. or evaluation. In making a
demonstration under this paragraph, the
owner or operator must
(1) NotIfy the Regional Administrator
In writing within seven days that he
Intends to snake a demonstration under
this paragrap
(2) WIthin 90 days. submit areport to
the Regional Aibnin frator which
demonstrates that a source other than a
regulated unit caused the .thn iard to be
exceeded or that the apparent
noncompliance with the standards
resulted from error In sampling.
analysis, or evaluation;
(3) WIthin 90 days. submit to the
Regional Administrator an application
for a permit modification to make any
appropriate changes to the compliance
monitoring program at the fadility and
(4) Continue to monitor In accord wIth
the compliance monitoring program
established under this section.
(k) U the owner or operator
determines that the compliance
monitorIng program no longer satisfies
the requirements of this section. be
must, within 90 days, submit an
application for a permit modification to
make any appropriate changes to the
program.
(1) The owner or operator must assure
that monitoring and corrective action
measures necessary to achieve
compliance with the ground-water
protection standard under 264.92 are
taken during the term of the permit.
O 264.100 Corr.ctlve action program.
A- owner or operator required to
es:.. iish a corrective action program
wider this subpart must, ala minimum.
discharge the following responsibilities:
(a) The owner or operator must take
corrective action to ensure that
regulated units are in compliance with
the ground-water protection standard
under I 264.92. The Regional
Administrator will specify the ground-
water protection standard In the facility
permit, including:
(1) A list of the hazardous
constituents Identified under I 284.93;
(2) Concentration limits wider 4 264.94
for each of those hazardous
const ltuents
(3) The compliance point under
0 284.95; and
(4) The compliance period under
I 284.96.
(b) The owner or operator must
Implement a corrective action program
that prevents hazardous constituents
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33356 Federal Register p’ Vol. 47, No. 143 / Monday, July 26, 1982 I Rules aid Regulations
from exceeding their respective
concentration limits at the compliance
point by removing the hazardous waste
constituents or treating them In place.
The permit will specify the specific
measures that will be taken.
(c) The owner or operator must begin
corrective action within a reasonable
time period after the ground-water
protection standard Is exceeded. The
Regional Administrator will specify that
time period in the facility permit. If a
facility permit Includes a corrective
action program In addition to a
compliance monitoring program, the
permit will specify when the corrective
action will begin and such a requirement
will operate In lieu of I 284.99(i)(2).
(d) In conjunction with a corrective
action program, the owner or operator
must establish and implement a ground-
water monitoring program to
demonstrate the effectiveness of the
corrective action program. Such a
monitoring program may be based on
the requirements for a compliance
monitoring program under f 264.99 and
must be as effective as that program In
determining compliance with the
ground-water protection standard under
I 264.92 and in determining the success
of a corrective action program under
paragraph (e) of this section. where
appropriate.
(e) In addition to the other
requirements of this section. the owner
or operator must conduct a corrective
action program to remove or treat In
place any hazardous constituents under
* 264.93 that exceed concentration limits
under 5 264.94 in ground water between
the compliance point under 5 284.95 and
the dowugradient facility property
boundary. The permit will specify the
measures to be taken.
(1) Corrective action measures under
this paragraph must be Initiated and
completed within a reasonable period of
time considering the extent of
contamination.
(2) Corrective action measures under
this paragraph may be terminated once
the concentration of hazardous
constituents under 5 264.93 is reduced to
levels below their respective
concentration limits under 5 264.94.
(f) The owner or operator must
continue corrective action measures
during the compliance period to the
extent necessary to ensure that the
ground-water protection standard is not
exceeded. If the owner or operator Ia
conducting corrective action at the end
of the compliance period, he must
continue that corrective acti’on for as
long as necessary to achieve compliance
with the ground-water protection
standard. The owner or operator may
terminate corrective action measures
taken beyond the period equal to the
active life of the waste management
‘area (including the closure period) if he
can demonstrate, based on data from
the ground-water monitoring program
under paragraph (d) of this section, that
the ground-water protection standard of
* 264.92 has not been exceeded for a
period of three consecutIve years.
) The owner or operator must report
In writing to the Regional Administrator
on the effectiveness of the corrective
action program. The owner or operator
must submit these reports semi-
annually.
(li) If the owner or operator
determines that the corrective action
program no longer satisfies the
requirements of this section, be must,
within 90 days, submit an application
for a permit modification to make any
appropriate changes to the program.
H 264.101—264.109 tRssSrvsdI
9. In 40 CFR Part 264. Subpart C,
* 264.110 Is amended by revising
paragraph (b) 5284.112 Is amended by
revising paragraphs (a). Introductory
text, and (a)(1), 5 264.117 Is amended by
revising paragraphs (a)(1)(l) and (II ), and
I 264.118 Is amended by revising
paragraph (a), Introductory text. (a)(1),
(2)(i) and (II) to read as follows:
* 264.110 ApplicabIlity.
• S S S •
(b)Sectlons 264.117—264.120 (whIch
concern post-closure care) apply to thi
owners and operators of:
(1) All hazardous waste disposal
facilities: and
(2) Piles, and surface Impoundments
from which the owner or operator
intends to remove the wastes at closure.
to the extent that these sections are
made applicable to such facilities In
II 264.228 and 264.258.
5264.112 Closure plan; amendment of
plan.
(a) The owner or operator of a
hazardous waste management facility
must have a written closure plan. The
plan must be submitted with the permit
application, in accordance with
5 122.25(a)(13) of this chapter. and
approved by the Regional Administrator
as part of the permit Issuance
proceeding under Part 124 of this
chapter. In accordance with 5122.29 of
this chapter. the approved closure plan
will become a condition of any RCRA
permit. The Regional Administrator’s
decision must assure that that approved
closure plan Is consistent with
55 264.111, 264.113, 264.114. 264.115, and
the applicable requirements of
H 264.178,264.197,264.228,264.258,
264.280. 264.310. and 264.351. A copy of
the approved plan and all revisions to
the plan must be kept at the facility until
closure Is completed and certified In
accordance with I 264.115. The plan
must Identify steps necessary to
completely or partially close the facilIty
at any point during Its Intended
operating life and to completely close
the facility at the end of its Intended
operating life. The closure plan must
Include, at least
(1) A description of how and when the
facility will be partially dosed. If
applicable, and finally closed. The
description must Identify the maximum
extent of the operation which will be
unclosed during the life of the facility,
and how the requirements of II 284.111.
264.113,264.114, 264.115. and the
applicable closure requirements of
55 284.178. 264.197, 264.228. 264.258,
284.280,264.310, and 284.351 will be met
S S * * S
I 264.117 Post-closure cars and use of
property.
(a)(1) S
(I) Monitoring and reporting in
accordance with the requirements of
Subparts F, K L, M, and N of this part
and
(ii) Maintenance and monitoring of
waste containment systems In
• accordance with the requirements of
• SubpartsF ,KL,M,andNofthispart.
* S S * S
I 264.11$ Post-closure plan; amendment
of plan.
(a) The owner or operator of a
disposal facility must have a written
post-closure plan. In addition, certain
piles and certain surface impoundments
from which the owner or operator
Intends to remove the wastes at dosure
are required by * * 254.228 and 264.258
to have post-closure plans. The plan
must be submitted with a permit
application, in accordance with
* 122.25(a)(13) of this chapter, and
approved by the Regional Administrator
as part of the permit Issuance
proceeding under Part 124 of this
chapter. In accordance wIth *122.29 of
this chapter. the approved post-closure
plan will become a condition of any
permit issued. A copy of the approved
plan and all revisions to the plan must
be kept at the facility until the post-
closure care period begins. This plan
must Identify the activities that will be
carried on after closure and the
frequency of these activities, and
Include at least:
(1) A description of the planned
monitoring activities and frequencies at
which they will be performed to comply
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32357
10. In 4OCFR Part 204, Subpart H
* 264.144 is amended by revising
paragraph (b): 204.142 is amended by
revising paragraph (a). except for the
comment; 0 264.244 Ia amended by
revising paragraph (a); and * 264.145 is
amended by revising the undesignated
paragraph preceding paragraph (a) to
read as follows:
I 264.140 AppUcablNIy.
• . S S S
264.144 Cost estimate for post-cfo.we
cers.
closure care required ander Subpart C
• of Part 204.
. . S S
p264.145 F nclaIdsuraacs
cinsure $ 5
The owner or operator of a facility
subject topost Io monitoring or
maintenance requirements must
establish financial assurance for post.
closure care In accordance with the
approved post.closure plan for the
facility. Re must dtoose from the
following options:
Ii. In 40 R Part 204, Subparts K and
L me revised to read as follows:
Subpart K—Surface Impowtdmems
*204220 App6cat iIty.
The regulations in this subpart apply
to owners and operator, of facilities that
use surface Impoundments to beat,
store, or dispose of hazardous waste
except as 1264.1 provides otherwise.
* 264221 DesIgn and operating
(a) A surface Impoundment (except
for an existing portion of a surface
Impoundment) must have a liner that Is
designed. constructed, and installed to
prevent any migration of wastes out of
the Impoundment to the adjacent
subsurface soil or ground water or
surface water at any time during the
active life (Including the closure period)
of the Impoundment. The liner may be
constructed of materials that may allow
wastes to migrate Into the liner (but not
Into the adjacent subsurface soil or
ground water or surface water) during
the active life of the facility, provided
that the Impoundment Is cloned in
accordance with 284.228(a)(1). For
Impoundments that will be closed in
accordance with 0 264.228(aX2), the
liner must be constructed of msterials
that can prevent wastes from migrating
Into the liner during the active life of the
facility. ‘The liner must be:
(1) Constructed of materials that have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(Including static head and external
hydrogeologic forces), physical contact
with the waste orleachale to which they
are exposed, climatic conditions, the
stress of Installation, and the stress of
daily operation;
(2) Placed upon a foundation or base
capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement,
coiapreulon. or uplifi, and
(3) installed to cover all surrounhling
earth likely to bela contact with the
waste ci’ leachale.
(bj The owner or operator will be
(or post’ exempted from the requirements of
paragraph (a) of this section If the
Regional Administrator finds, based on
a demonstration by the owner as’
operator, that alternate design and
operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituents
(see 0 264.93) into the ground water or
surface water at any future time. In
deciding whether to grant an exemption.
the Regional Arb,tiniatrator will
consider:
(1)The nature and quantity of the
wastes;
(2) The proposed alternate design and
operation;
(3) The hydrogeologic setting of the
facility, induding the attenuative
capacity and thickness of the liners and
soils present between the impoundment
and ground water or surface water, and
(4) All other factors which would
Influence the quality and mobility of the
leachate produced and the potential for
It to migrate to ground water or surface
water.
(c) A surface Impoundment must be
designed, constructed, maintained, and
operated to prevent overtopping
resulting from normal or abnormal
operations; overlilling; wind and wave
action; rainfall; run’on; malfunctions of
level controllers, alarms, and other
equipment; and human error.
(d) A surface Impoundment musL have
dikes that are designed, constructed.
and maintained with sufficient
structural integrity to prevent m ssive
failure of the dikes. In ensuring
structural integrity. It must not be
presumed that the liner system will
function without leakage during the
active life of the unit.
(e) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
* 264.222 Ooi le-lInsd surface
impoundments: Exemption from Subpart F
ground-water protection requirements,
a) The owner or operator of a double-
lined surface impoimdment is not
subject to regulation under Subpart F of
this part If the following conditions are
met
(1) The impoundinentjincluding Its
underlying liners) must be located
entirely above the seasonal )I4gb water
table.
(2) The impoundment must be
underlain by two liner, which are
with Subparts F, K, I., M, and N of this:
part during the post-closure care period-.
(2)
(i) The Inteignty of the cap and final:
cover or other containment systems In
accordance with the requirements of
Subparts K. L ht and N of this part and
( i l)Thefunctionofthefacility
monitoring equipment In accordance
with the requirements of Subparti F. K,
I LandNofthispartaad
(b) The requirements of 0* 264.144
and 204.145 apply only to owners and
operators of:
(I) Disposal facilities, end
(2) Piles, and surface Impoundments
from which the owner or operator
intends to remove the wastes at closure.
to the extent that these sections are
made applicable to such facilities in
* 0 264.228 and 204.258.
• S S S •
* 264.142 Cost satimats for closure.
(a) The owner or operator must have a
written estimate, In current dollars,of
the cost of closing the facility in
accordance with the requirements In
*0 264.111—264.115 and applicable
closure requirements in 0 * 264 178,
204.19?, 204.228,264.258,264.280,264210,
and 264.351. The estimate must equal the
cost of closure at the point In the
facility’s operating life when the extent
and•manner of Its operation would make
closure the most expensive, as indicated
by its closure plan (see 4 264.112(a))
(a) The owner or operator of a facility
subject to post-closure monitoring or
maintenance requirements must have a
written estimate, In current dollars. of
the annual cost of post-closure
monitoring and maintenance of the
facility In accordance with the
applicable post-closure regulations hi
0 * 264.1t7—284.120, 264.228, 264.258,
284.280, and 264,310. The post-closure
cost estimate Is calculated by
multiplying the annual post-closure cost
estimate by the number of years of post.
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Federal Register Vol. 47, No. 143 / Monday. July 26, 1982 L Rules and Regulations
designed and constructed In a manner
that prevents the migration of liquids
Into or out of the space between the
liners. Both liners must meet all the
ipecifications of 284.221(a).
(3) A leak detection system must b
designed, constructed, maintained, and
operated between the liners to detect
any migration of liquids Into the space
between the liners.
(b) if liquid leaks Into the leak
detection system, the owner or operator
must:
(1) Notify the Regional Administrator
of the leak in writing within even days
after detecting the leak: and
(2)(l) Within a period of time specified
In the permit, remove accumulated
liquid. repair or replace the liner which
Is leaking to prevent the migration of
liquids through the liner, and obtain a
certification from a qualified eugneer
that, to the best of his knowledge and
opinion, the leak has been stopped; or
(II) If a detection monitoring program
pursuant to § 284.98 has already been
established In the permit (to be
complied with only if a leek occurs),
begin to comply with that program and
any other applicable requirements of
Subpart F of this part within a period of
time specified in the permit.
(c) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
H 264.223-264.225 (Reserved)
5 2 54.226 Monlloring and Inspection.
(a) During construction and
installation, liners except In the case of
existing portions of surface
Impoundments exempt from
§ 264.221(a)) and cover systems (e.g.,
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
Imperfections (e.g., holes, cracks, thin
spots, or foreign materials). Immediately
after construction or installation:
(1) Synthetic liners and covers must
be inspected to ensure tight seams and
Joints and the absence of tears.
punctures. or blisters: and
(2) Soil-based and admixed liners and
covers must be inspected for
Inperfections including lenses, cracks,
channels, root holes, or other structural
non-uniformities that may cause an
increase in the permeability of the liner
or cover.
(b) While a surface impoundment is in
operation. It must be inspected weekly
and after storms to detect evidence of
any of the following:
(1) Deterioration, malfunctions, or
Improper operation of overtopping
control systems;
•(2) Sudden drops In the level of the
impoundment’s contents; and
(3) The presence of liquids in leak
detection systems, where Installed to
comply with § 284.222; and
(4) Severe erosion or other signs of
deterioration In dikes or other
containment devices.
(c) Prior to the Issuance of a permit.
and after any extended period of time
(at least six months) during which the
impoundment was not in service, the
owner or operator must obtain a
certification from a qualified engineer
that the Impoundment’s dike, Including
that portion of any dike which provides
freeboard, has structural integrity. The
certification must establish, in
particular, that the dike:
(1) Will withstand the stress of the
pressure exerted by the types and
amounts of wastes to be placed In the
impoundment; and
(2) Will not fall due to scouring or
piping. without dependence on any liner
system included in the surface
impoundment construction.
* 264.227 Emergency repalrs contingency
(a) A surface Impoundment must be
removed from service In accordance
with paragraph (b) of this section when:
(1) The level of liquids in the
Impoundment suddenly drops and the
drop is not known to be caused by
changes In the flows into or out of the -.
Impoundment; or
(2) The dike leaks.
(b) When a surface Impoundment
must be removed from service as
required by paragraph (a) of this section,
the owner or operator must:
(1) Immediately shut off the flow or
stop the addition of wastes into the
impoundment;
(2) Immediately contain any surface
leakage which has occurred or Is
occurring:
(3) Immediately stop the lealq
(4) Take any other necessary steps to
stop or prevent catastrophic failure;
(5) Ifs leak cannot be stopped by any
other means, empty the Impoundment;
and
(6) Notify the Regional Administrator
of the problem in writing within seven
days after detecting the problem.
(c) As part of the contingency plan
required in Subpart D of this part. the
owner or operator must specify a
procedure for complying with the
requirements of paragraph (b) of this
ucion.
(d) No surface Impoundment that has
been removed from service In
accordance with the requirements of
this section may be restored to service
unless the portion of the Impoundment
which was failing is repaired and the
following steps are taken:
(1) if the Impoundment was removed
from service as the result of actual or
Imminent dike failure, the dike’s
structural Integrity must be recertified In
accordance wIth § 264.226(c).
(2) If the impoundment was removed
from service as the result of a sudden
drop In the liquid level, then:
(I) For any existing portion of the
Impoundment, a liner must be Installed
In compliance with § § 284.221(a) or
284.222; and
(II) For any other portion of the
impoundment, the repaired liner system
must be certified by a qualified engineer
as meeting the design specifications
approved In the permit.
(e) A surface Impoundment that has
been removed from service In
accordance with the requirements of
this section and that Is not being
repaired must be closed In accordance
with the provisions of § 284.228.
§ 264.228 Closure and post.closure care.
(a) At closure, the owner or operator
must
(1) Remove or decontaminate all
waste residues, contaminated
containment system components (liners,
etc.), contaminated subsoils, and
structures and equipment contaminated
with waste and leachate, and manage
them as hazardous waste unless
§ 261.3(d) of this chapter applies; or
(2)(i) Eliminate free liquids by
removing liquid wastes or solidifying the
remaining wastes and waste residues;
(ii) Stabilize remaining wastes to a
bearing capacity sufficient to support
final cover: and
(iii) Cover the surface Impoundment
with a final cover designed and
constructed to:
(A) Provide long-term minimization of
the migration of liquids through the
closed impoundment
(B) Function with m1n1mni
maintenance;
(C) Promote drainage and minimize
erosion or abrasion of the final cover,
(D) Accommodate settling and
subsidence so that the cover’s integrity
Is maintained; and
(B) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsolls present.
(b) If some waste residues or
contaminated materials are left In piece
at final closure, the owner or operator
must comply with all post-closure
requirements contained In § § 284.117—
264.120, including maintenance and
monitoring throughout the post-closure
care period (specified In the permit
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Federal Register I Vol. 47. No. 143 I Monday , July 26, 1982 I Rules and Regulations
32359
under 4 264.117). The owner or operator
must:
(1) Maintain the Integrity and
effectiveness of the final cover.
including making repairs to the cap as
necessary to correct the effects of
settling, subsidence, erosion, or other
events;
(2) MaIntain and monitor the leak
detection system In accordance with
I 264.222. where such a system is
present between double liner systems;
(3) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this part and
(4) Prevent rwi .on and run.off from
eroding or otherwise damaging the final
cover.
(c) (1) If an owner or operator plans to
close a surface Impoundment in
accordance with paragraph (a)(1) of this
section, and the impoundment does not
comply with the liner requirements of
4 264.221(a) and Is not exempt from
them In accordance with 4 264.221(b).
then:
(I) The closure plan for the
impoundment under 4 264.112 must
Include both a plan for complying with
paragraph (a)(1) of this section and a
contingent lan for complying with
paragraph (a)(2) of this section in case
not all contaminated aubsoils can be
practicably removed at closure; and
(ii) The owner or operator must
prepare a contingent post.closure plan
under 4 264.118 for complying with
paragraph (b) of this section in case not
all contaminated subsoils can be
practicably removed at closure.
(2) The cost estimates calculated
under 44 264.142 and 4 264.144 for
closure and post.closure care of an
Impoundment subject to this paragraph
roust include the cost of complying with
the contingent closure plan and the
contingent post-closure plan, but are not
required to include the cost of expected
closure under paragraph (a)(1) of this
section.
(d) During the post-closure care
period. if liquids leak into a leak
detection system installed under
4 264.222, the owner or operator must
notify the Regional Administrator of the
leak in writing within seven days after
detecting the leak. The Regional
Administrator will modify the permit to
require compliance with the
requirements of Subpart F of this part.
4264.229 Special requirements for
Ignitable or reactive waste.
Ignitable or reactive waste must not
be placed in a surface impoundment,
unless:
a) The waste Is treated, rendered, or
mixed before or Immediately after
placement in the Impoundment so that:
(1) The resultln waste, mixture, or
dissolution of material no longer meets
the definition of Ignitable or reactive
waste under 44 261.21 or 261.23 of this
chapter, and
(2) SectIor 204.17(b) is complied with;
or
(b) The waste I. managed in such a
way that ills protected from any
material or conditions which may cause
it to ignite or react or
(c) The surface impoundment Is used
solely for emergencies. -
* 264.230 Special requirements for
Incompatible wastes
Incompatible wastes, or incompatible
wastes and materials. (see Appendix V
of this part for examples) must not be
placed in the same surface
impoundment, unless 4 264.17(b) 1.
complied with.
44 264.231-264.249 (Reserved)
Subpart L—Waste Piles
4 264.250 ApplicabilIty.
(a) The regulations In this subpart
apply to owners and operators of
facilities that store or treat hazardous
waste in piles, except as 4 264.1
provIdes otherwise.
(b) The regulations In this subpart do
not apply to owners or operators of
waste piles that are closed with wastes
left in place. Such waste piles are
subject to regulation under Subpart N of
this part (Landfills).
(c) The owner or operator of any
waste pile that is inside or under a
structure that provides protection from
precipitation so that neither run-off nor
leachate is generated is not subject to
regulation under 4 264.251 or under
Subpart F of this part, provided that:
(1) Liquids or materials containing
free liquids are not placed in the pile;
(2) The pile Is protected from surface
water run-on by the structure or In some
other manner
(3) The pile is designed and operated
to control dispersal of the waste by
wind, where necessary, by means other
than wetting; and
(4) The pile will not generate leachate
through decomposition or other
reactions.
4264.251 DesIgn and operating
requirements.
(a) A waste pile (except for an
existing portion of a waste pile) must
have:
(1) A liner that is designed.
constructed, and Installed to prevent
any migration of wastes out of the pile
Into the adjacent subsurface soil or
ground water or surface water at any
time during the active life (including the
closure period) of the waste pile. The
liner may be constructed of materials
that may allow waste to migrate Into the
liner Itself (but not Into the adlacent
subsurface soil or ground water or
surface water) during the active life of
the facility. The liner must be:
(I) Constructed of materials that have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(Including static head and external
bydrogeologic forces), physical contact
with the waste or leachate to which they
are exposed, climatic conditions, the
stress of installation, and the stress of
daily operation;
(ii) Placed upon a foundation or base
capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement.
compression, or uplift; and
(iii) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate and
(2) A leachate collection and removal
system Immediately above the liner that
Is designed, constructed, maintained,
and operated to collect and remove
leachate from the pile. The Regional
Administrator will specify destgn and
operating conditions in the permit to
ensure that the leachate depth over the
liner does not exceed 30 cm (one foot).
The leachate collection and removal
system must be:
Ci) Constructed of materials that are:
(A) Chemically resistent to the waste
managed in the pile and the leachate
expected to be generated: and
(B) Of sufficient strength and
thickness to prevent collapse under the
pressures exerted by overlaying wastes,
waste cover materials, and by any
equipment used at the pile; and
(ii) Designed and operated to function
without clogging through the scheduled
closure of the waste pile.
(b)The owner or operator will be
exempted from the requirements of
paragraph (a) of this section if the
Regional Administrator finds, based on
a demonstration by the owner or
operator, that alternate design and
operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituents
(see I 264.93) Into the ground water or
surface water at any future time. In
deciding whether to grant an exemption,
the Regional Administrator will
consider:
(1) The nature and quantity of the
wastes;
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32360 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
(Z) The proposed alternate design and
operation;
(3) The hydrogeologic setting of the
facility, including attemiative capacity
and thickness of the liners and soils
present between the pile and ground
water or surface water; and
(4) All other factors which would
Influence the quality and mobility of the
leachate produced and the potential for
It to migrate to ground water or surface
water.
(c) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow Onto the active portion
of the pile during peak discharge from at
least a 25-year storm.
(d) The o wier or operator must
design. construct, operate, and maintain
a run-off management system to collect
and control at least the water ,olwne
resulting from a 24-hour. 25-year storm.
(e) Collection and holding facilities
(e.g., tank, or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
(f) If the pile contains any particulate
matter which may be subject to wind
dispersal, the owner or operator must
cover or otherwise manage the pile to
control wind dispersal.
(g) The Regional Administrator will -
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied
264252 Double.1ined plies: Exemption
from Subpart F ground-water protection
requirements.
(a) The owner or operator of a double-
lined waste pile is not subject to
regulation under Subpart F of this part if
the following condition, are met:
(1) The pile (including its underlying
liners) must be located entirely above
the seasonal high water table.
(2) The pile must be underlain by two
liners which are designed and
constructed in a manner that prevents
the migration of liquids into or out of the
space between the liners. Both liners
must meet all the specifications of
O 264.251(a)(1).
(3) A leak detection system must be
designed, constructed, maintained, and
operated between the liners to detect
any migration of liquids into the space
between the liners.
(4) The pile must have a lea chate
collection and removal system above
the top liner that is designed,
constructed, maintained, and operated
in accordance with f 264.251(a)(2).
(b) If liquid leaks into the leak
,detection system, the owner or operator
• must:
(1) Notify the Regional Administrator
of the leak in writing Within seven days
after detecting the leak; and
(2) (i) Within a period of time
specified In the permit. remove
accumulated liquid, repair or replace the
liner which is leaking to prevent the
migration of liquids through the liner,
and obtain a certificaton from a
qualified engineer that, to the best of his
knowledge and opinion, the leak has
been stopped; or
(ii) If a detection monitoring program
pursuant to I 264.98 has already been
established In the permit (to be
complied with only If a leak occurs),
begin to comply with that program and
any other applicable requirements of
Subpart F of this part within a period of
time specified in the permit.
(c) The Regional Administrator will
specify In the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are aatisfIed
• 264.253 Inspection of liners. Exemption
from Subpart F ground-water protection
requirements. -
(a) The owner or operator of a pile is
not subject to regulation under Subpart
F of this part if the following conditions
are met:
(1) The pile (including its underlying
liner) must be located entirely above the
seasonal high water table.
(2) TF.e pile must be underlain by a
liner (base) that meets all the
specifications of I 264.251(a)(1).
(3) The wastes In the pile must be
removed periodically, and the liner must
be inspected for deterioration, cracks, or
other conditions that may result in
leaks. The frequency of inspection will
be specified in the inspection plan
required in 264.15 and must be based
on the potential for the liner (base) to
crack or otherwise deteriorate under the
conditions of operation (e.g.. waste type,
rainfall, loading rates, and subsurface
stability).
(4) The liner must be of sufficient
strength and thickness to prevent failure
due to puncture, cracking. tearing. or
other physical damage from equipment
used to place waste in or on the pile or
to clean and expose the liner surface for
Inspection.
(5) The pile must have a leachate
collection and removal system above
the liner that Is designed, constructed,
maintained, and operated in accordance
with § 264.251(a)(2).
(b) If deterioration, a crack, or other
condition is Identified that is causing or
could cause a leak, the owner or
operator must:
(1) Notify the Regional Administrator
of the condition In writing within seven
days after detecting the condition; and
(2)(i) Repair or replace the liner (base)
and obtain a certification from a
qualified engineer that, to the best of his
knowledge and opinion, the liner (base)
has been repaired and leakage will not
occur; or
(IL) Ifs detection monitoring program
pursuant to 0 264.98 has already been
established in the permit (to be
complied with only Ifs leak occurs).
begin to comply with that program and
any other applicable requirements of
Subpart.F of this part within a period of
time specified In the permit.
(c) The Regional Administrator will
specify In the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
* 264.254 MonItoring and inspection.
(a) During construction or Installation.
liners (except in the case of existing
portions of piles exempt from
0 284.251(a)) and cover systems (e.g..
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
imperfections (e.g.. holes, cracks, thin
spots, or foreign materials). Immediately
after construction or installation:
(1) Synthetic liners and covers must
be inspected to ensure tight seams and
joints and the absence of tears.
punctures, or blisters; and
(2) Soil-based and admixed liners and
covers must be inspected for
imperfections Including lenses, cracks,
channels, root holes, or other structural
non-uniformities that may cause an
increase in the permeability of the liner
or cover.
(b) While a waste pile is iii operation,
it must be Inspected weekly and after
storms to detect evidence of any of the
following:
(1) Deterioration, malfunctions, or
improper operation of run-on and run-off
control systems;
(2) The presence of liquids in leak
detection systems, where Installed to
comply with I 264252
(3) Proper functioning of wind
dispersal control systems, where
present; and
(4) The presence of leachate In and
proper functioning of leachate collection
and removal systems, where present.
{264.255 (Reserved]
• 264.256 Special requirements foe
Ignitable or reeclive waste.
Ignitable or reactive waste must not
be placed hi a waste pile unless:
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Federal Register I Vol. 47, No. 143 I Monday, July 26, 1982 / Rules and Regulations
(a) The waste is treated, rendered. or
mixed before or immediately after
placement in the pile so that
(1) The insulting waste, mixture, or
dissolution of material no longer meets
the definition of Ignitable or reactive
waste under fi 201.21 or 28123 of this
chapter, and
(2) Section 264.17(b) la complied with
or
(b) The waste Is managed In such a
way that It I . protected from any
material or conditions which may cause
It to Ignite or reacL
264.257 SpecIal requirements for
krecmpatlbl. wastes.
(a) Incompatible wutes, or
Incompatible wastes end materials, (see
Appendix V of this part for examples)
must not be placed In the same pile.
unless f 264.17(b) Is complied with.
(b) A pile of hazardous waste that Is
incompatible with any waste or other
material stored nearby In containers,
other piles, open tanks, or surface
Impoundments must be separated from
the other materials, or protected from
them by means of a dike, berm, wall, or
other device.
(c) Hazardous waste must not be piled
on the same base where incompatible
wastes or materials were previously
piled, unless the base has been
decontaminated sufficiently to ensure
compliance with 264.17(b).
f 284.258 Closurs and poet-closure care.
(a) At closure, the owner or operator
zimst remove or decontaminate all waste
residues, contaminated containment
system components (liners, etc.),
contaminated subsoils, and structures
end equipment contaminated with
waste and leachate, and manage them
as hazardous waste unless I 261.3(d) of
this chapter applies.
(b) If, after removing or
dec.ontaminatthg all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components. subsoils.
structures, and equipment as required In
paragraph (a) of this section, the owner
or operator finds that not all
contaminated .ubaoils can be
practicably removed or decontaminated,
he must close the facility and perform
post-closure care In accordance with the -
closure and post-closure care
requirements that apply to landfills
(f 264.310).
(c)(1) The owner or operator of a
waste pile that does not comply with the
liner requirements of I 284.251(eXl) and
ls not exempt from them In accordance
wlth I * 264.250(c) or 264.251 (b). must:
(I) Include in the closuin plan for the
pile under I 264.112 both a plan for
complying with paragraph (a) of this
section and a contingent plan for
complying with paragraph (b) of this
section In case not all contaminated
aubsoils can be practicably removed at
closurr, and
(II) Prepare a contingent post-closure
plan under I 204.118 for complying with
paragraph (b) of this section In case not
all contaminated subsoil. can be
practicably removed at clcswe.
(2) The cost estimates calculated
under I 1264.142 and 264.144 for closure
arid post-closure care of a pile sublect to
this paragraph must include the cost of
complying with the contingent closure
plan and the contingent post-closure
plan, but are not required to include the
cost of expected closure under
paragraph (a) of this section.
H 264.265-264.269 1 Rsssrvsd]
12.40 CFR Part 264 Is amended by
adding Subparts M and N to read as
follows:
Subpart M—Land Treatment
I 264.270 Appllcabfllty.
The regulations In this subpart apply
to owners and operators of facilities that
treat or dispose of hazardous waste In
land treatment units, except as I 264.1
provides otherwise.
*264.271 Treatment prs ’am .
(a) An owner or operator subject to
this subpart must establish a land
treatment program that Is designed to
ensure that hazardous constituents
placed in or on the treatment zone are
degraded, transformed, or Immobilized
within the treatment zone. The Regional
Administrator will specify In the facility
permit the elemepts of the treatment
program, induding
(1) The wastes that are capable of
being treated at the unit based on a
demonstration under I 204.272;
(2) Design measures and operating
practices necessary to maximize the
success of degradation, transformation.
and immobilization processes in the
treatment zone In accordance with
I 284.273(a); and
(3) Unsaturated zone monitoring
provisions meeting the requirements of
I 284.278.
(b) The Regional Administrator will
specify In the facility permit the
hazardous constituent. that must be
degraded, transformed, orbnmobfllzed
under this subpart. Hazardous
constituents are constituent. Identified
In Appendix VIII of Part 281 of this
chapter that are reasonably expected to
be in. or derived from, waste placed In
or on the treatment zone.
(c) The Regional Administrator will
specify the vertical and horizontal
dimensions of the treatment zone in the
facility permit. The treatment zone I. the
portion of the unsaturated zone below
and Including the land surface in which
the owner or operator intends to
maintain the conditions necessary for
effective degradation, transformation, ci
Immobilization of hazardous
constituent.. The maximum depth of the
treatment zone must be:
(1) No more than 1.5 meters (5 feet)
from the Initial soil surface: and -
(2) More than 1 meter (3 feet) abo e
the seasonal high water table.
1264.272 Treatment dsmonstra000.
(a) For each waste that will be applied
to the treatment zone, the owner or
operator must demonstrate, prior to
application of the waste, that hazardous
constituents in the waste can be
completely degraded, transformed. or
Immobilized in the treatment zone.
(b) In maldng this demonstration, the
owner or operator may use field tests,
laboratory analyses, available data. or.
In the case of existing units, operating
data. If the owner or operator Intends to
conduct field tests or laboratory
analyses In order to make the
demonstration required under paragraph
(a) of this section. he must obtain a
treatment or disposal permit under
I 122.27(c). The Regional Administrator
will spedfy in this permit the testing.
analytical, design. and operating
requirements (including the duration of
the tests and analyses, and, in the case
of field tests, the horizontal and vertical
dimensions of the treatment zone.
monitoring procedures. closure and
clean-up activities) necessary to meet
the requirement. in paragraph (c) of this
section.
(c) Any field test or laboratory
analysis conducted In order to make a
demonstration under paragraph (a) of
this section must:
(1) Accurately simulate the
characteristics and operating conditions
for the proposed land treatment unit
including:
(I) The characteristics of the waste
(including the presence of Appendix VIII
of Part 261 of this chapter coutituents]
(ii) The climate In the area;
(iii) The topography of the -
surrounding area;
(Iv) The characteristics of the soil in
the treatment zone (including depth);
and
(v) The operating practices to be used
at the unit.
(2) Be likely to show that hazardous
constituents in the waste to be tested
will be completely degraded.
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32362 Federal Register I Vol. 47, No. 143 I Monday July 26. 1982 I Rules and Regulations
transformed, or immobilized in the
treatment zone of the proposed land
treatment unit, and
(3) Be conducted in a manner that
protects human health and the
environment considering:
(i) The characteristics of the waste to
be tested;
(ii) The operating and monitoring
measures taken during the course of the
test;
(iii) The duration of the test:
(iv) The volume of waste used in the
test;
(v) In the case of field tests, the
potential for migration of hazardous
constituents to ground water or surface
water.
• 264.273 DesIgn and ops atIng
rsqu lr.m.nts.
The Regional Administrator will
specify in the facility permit how the
owner or operator will design, construct,
operate, and maintain the land
treatment unit in compliance with this
section.
(a) The owner or operator must
design, construct, operate. and maintain
the unit to maximize the degradation,
transformation, and immobilization of
hazardous constituents In the treatment
zone. The owner or operator must
design. construct. operate. and maintain
the unit In accord with all design and
operating conditions that were used in
the treatment demonstration under
§ 264.272. At a minimum, the Regional
Administrator will specify the following
in the facility permit:
(1) The rate and method of waste
application to the treatment zone;
(2) Measures to control soil pH.
(3) Measures to enhance microbial or
chemical reactions (e.g., fertilization.
tilling): and
(4) Measures to control the moisture
content of the treatment zone.
(b) The owner or operator must
design. construct, operate, and maintain
the treatment zone to minimize run-off
of hazardous constituents during the
active life of the land treatment unit.
(c) The owner or operator must
design, construct, operate, and maintain
a nm-on control system capable of
preventing flow onto the treatment zone
during peak discharge from at least a 25-
year storm.
(d) The ownç or operator must
design, construct, operate, and maintain
a run-off management system to collect
arid control at least the water volume
resulting from a 24-hour, 25-year storm.
(e) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and nm-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
the design capacity of the system.
(f) If the treatment zone contains
particulate matter which may be subject
to wind dispersal, the owner or operator
must manage the unit to control wind
dispersal.
(g) The owner or operator must
inspect the unit weekly and after storms
to detect evidence of:
(1) Deterioration, malfunctions, or
improper operation of run-on and nm-off
control systemL and
(2) Improper functioning of wind
dispersal control measures.
p264.274-264 . 275 IR.s.rvsdj
• 264.276 Food-chaIn crops.
The Regional Administrator may
allow the growth of food-chain crops in
or on the treatment zone only If the
owner or operator satisfies the
conditions of this section. The Regional
Administrator will specify in the facility
permit the specific food-chain crops
which may be grown.
(a)(1) The owner or operator must
demonstrate that there Is no substantial
risk to human health caused by the
growth of such crops in or on the
treatment zone by demonstrating, prior
to the planting of such crops, that
hazardous constituents other than
cadmium:
(i) Will not be transferred to the food -. -
or feed portions of the crop by plant
uptake or direct contact, and will not
otherwise be ingested by food-chain
animals (e.g., by grazing); or
(ii) Will not occur in greater
concentrations in or on the food or feed
portions of crops grown on the
treatment zone than In or on Identical
portions of the same crops grown on
untreated soils under similar conditions
in the same region.
(2) The owner or operator must make
the demonstration required under this
paragraph prIor to the planting of crops
at the facility for all constituents
identified in Appendix VIII of Part 281 of
this chapter that are reasonably
expected to be in, or derived from.
wa$e placed In or on the treatment
zone.
(3) In making a demonstration under
this paragraph, the owner or operator
may use field tests, greenhouse studies,
available data, or, in the case of existing
units, operating data, and must:
(i) Base the demonstration on
conditions similar to those present In the
treatment zone, Including soil
characteristics (e.g., pH, cation
exchange capacity), specific wastes,
application rates, application methods,
and crops to be grown; and
(ii) Describe the procedures used in
conducting any tests, including the
sample selection criteria, sample size,
analytical methods, and statistical
procedures.
(4) If the owner or operator intends to
conduct field tests or greenhouse studies
in order to make the demonstration
required under this paragraph, he must
obtain a permit for conducting such
activities.
(b) The owner or operator must
comply with the following conditions If
cadmium Is contained In wastes applied
to the treatment zone:
(1)(i) The pH of the waste and soil
mixture must be 6.5 or greater at the
time of each waste application, except
for weste containing cadmium at
concentrations of 2 mg/kg (dry weight)
or less;
(Ii) The annual application of
cadmium from waste must not exceed
0.5 kilograms per hectare (kg/ha) on
land used for production of tobacco,
leafy vegetables, or root crops grown for
human consumption. For other food-
chain crops, the annual cadmium
application rate must not exceed:
Tm,. p.ngd .
.
--‘
Cd
30
N
,w
)
Pmsmit to Juns 30.1304. .. . ...
4y 1,1304 tO Dsc 31 1306.. — ..--...
Bsgm tngJin 1. IOB?......._..._....
20
1.25
0 5
(iii) The cumulative application f
cadmium from waste must not exceed 5
kg/ha if the waste and soil mixture has
a pH of less than 6.5; and
(iv) If the waste and soil mixture has a
pH of 6.5 or greater or Is maintained at a
pH of 6.5 or greater during crop growth,
the cumulative application of cadmium
from waste must riot exceed: 5kg/ha If
soil cation exchange capacity (CEC) is
less than S meq/lOOg; 10 kg/ha If soil
CEC is 5-15 meq/loog; and 20 kg/ha if
soil CEC is greater than 15 meq/lOOg; or
(2)(i) Animal feed must be the only
food-chain crop produced;
(ii) The pH of the waste and soil
mixture piust be 6.5 or greater at the
time of waste application or at the time
the crop Is planted. whichever occurs
later, and this pH level must be
maintained whenever food-chain crops
are grown;
(iii) There must be an operating plan
which demonstrates how the animal
feed will be distributed to preclude
ingestion by humans. The operating plan
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Federal Register I Vol. 47, No. 143 I Monday. July 26. 1982 Rules and Regulations
32363
must describe the measures to be taken
to safeguard against possible health
hazards from cadmium entering the fond
chain, which may result from alternative
land uses: and
( lv) Future property owners must be
notified by a stipulation in the land
record or property deed which states
that the property has received waste at
high cadmium application rates and that
food-chain crops must not be grown
except In compliance with paragraph
(b)(2) of this section.
1264.277 ( flsssrbodl
{264.278 Unutw ’atsd zone monhtodng.
An owner or operator subject to this
subpart must establish an unsaturated
zone monitoring program to discharge
the following responsibilities:
(a) The owner or operator must
monitor the soil and soil-pore liquid to
determine whether hazardous
constituents migrate out of the treatment
zone.
(1) The Regional Adznfn1 tratoy will
specify the hazardous constituents to be
monitored In the facility permit. The
hazardous constituents to be monitored
are those specified under I 264.271(b).
(2) The Regional Administrator may
require monitoring for principal
hazardous constituents (PHCsJ in lieu of
the constituents specified under
1284.271(b). P}4Cs are hazardous
constituents contained in the wastes to
be applied at the unit that are the most
difficult to treat. considering the
combined effects of degradation.
transformation, and Immobilization. The
Regional Administrator will establish
PHCs If he finds, based on waste
analyses, treatment demonstrations, or
other data, that effective degradation,
transformation, or immobilization of the
PHCs will assure treatment at at least
equivalent levels for the other
hazardous constituents In the wastes.
(b) The owner or operator must install
an unsaturated zone monitoring system
that includes soil monitoring using soil
cores and soil-pore liquid monitoring
using devices such as lysimeters. The
unsaturated zone monitoring system
must consist of a sufficient number of
sampling points at appropriate locations
and depths to yield samples that:
(1) Represent the quality of
background soil-pore liquid quality and
the chemical make-up of soil that has
not been affected by leakage from the
treatment zonn: and
(2) Indicate the quality of soil-pore
liquid and the chemical make-up of the
soil below the treatment zone.
(c) The owner or operator must
establish a background value for each
hazardous constituent to be monitored
under paragraph (a) of this section. The
permit will specify the background
values for each constituent or specify
the procedures to be used to calculate
the background values.
(1) Background .011 values may be
based on a one- e sampling at a
background plot having characteristics
similar to those of the treatment zone.
(2) Background soil-pore liquid values
must be based on at least quarterly
sampling for one year at a background
plot having characteristics similar to
those of the beathient zone.
(3) The owner or operator must
express all background value. to a form
necessary for the determination of
statistically significant Increases under
paragraph (1) of this section.
(4) In thicing samples used in the
determination of all background values,
the owner or operator must use an
unsaturated zone monitoring system
that complies with paragraph (blil) of
this section.
(d) The owner or operator must
conduct soil monitoring and soil-pore
liquid monitoring immediately below the
treatment zone. The Regional
Administrator will specify the frequency
and timing of soil and soil-pare liquid
monitoring Sn the facility permit after
considering the frequency, timing, and
rate of waste application, and the soil
permeability. The owner or operator
must express the results of soil and soil-
pore liquid monitoring In a form -
necessary for the determination of
statistically significant increases under
paragraph (f) of this section.
(e) The owner or operator must use
consistent sampling and analysis
procedures that are designed to ensure
sampling results that provide s reliable
indication of soil-pore liquid quality and
the chemical make-up of the soil below
the treatment zone. At a minimum, the
owner or operator must Implement
procedures and techniques for
(1) Sample collection:
(2) Sample preservation and shipment;
(3) AnalytIcal procedures: and
(4) ChaIn of custody control.
(f) The owner or operator must
determine whether there is a
statistically significant change over
background values for any hazardous
constituent to be monitored under
paragraph (a) of this section below the
treatment zone each time he conducts
soil monitoring and soil-pore liquid
monitoring under paragraph (d) of this
section.
(1) In determining whether a
statistically significant Increase has
occurred, the owner or operator must
compare the value of each constituent,
as determined under paragraph (d) of
this section, to the background value for
that constituent according to the
statistical procedure specified in the
facility permit under this paragraph.
(2) The owner or operator must
determine whether there has been a
statistically significant Increase below
the treatment zone within a reasonable
time period after completion of
sampling. The Regional Administrator
will specify that time period In the
facility permit after considering the
complexity of the statistical test and the
availability of laboratory facilities to
perform the analysis of soil and soil-
pure liquid samples.
(3) The owner or operator must
determine whether there is a
statistically significant Increase below
the treatment zone using a statistical
procedure that provides reasonable
confidence that migration from the
treatment zone will be Identified. The
Regional Administrator will specify a
statistical procedure In the facility
permit that he finds:
(I) Is appropriate for the distribution
of the data used to establish background
values; and
lii) Provides a reasonable balance
between the probability of falsely
Identifying migration from the treatment
zone and the probability of falling to
Identify real migration from the
treatment zone.
(g) If the owner or operator
determines, pursuant to paragraph (I) of
this section. that there is a statistically
significant increase of hazardous
constituents below the treatment zone,
he must
(1) Notify the Regional Administrator
of this finding in writing within seven
days. The notification must indicate
what constituents have shown
statistically significant increases.
(2) Within 90 days, submit to the
Regional Administrator an application
for a permit modification to modify the
operating practices at the facility In
order to maximize the success of
degradation. transformation, or
Immobilization processes in the
treatment zone.
(h) If the owner or operator
determines, pursuant to paragraph (f) of
this section, that there is a statistically
significant Increase of hazardous
constituents below the treatment zone,
be may demonstrate that a source other
than regulated units caused the Increase
or that the Increase resulted from an
error in sampling. analysis, or
evaluation. While the owner or operator
may make a demonstration under this
paragraph in addition to, or in lieu of,
submitting a permit modification
application under paragraph (g)(2) of
this section, be Is not relieved of the
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32364 ‘ederal Register I Vcl. 47,No. 143 / Monday 1 July 26, 1982 Rules and Regulations
requirement to submit a permit
modification application within the time
specified In paragraph (g)(2) of this
section unless the demonstration made
under this paragraph successfully show;
that a source other than regulated units
caused the Increase or that the increase
resulted from an enor In sampling,
analysis, or evaluation. In making a
demonstration under this paragraph. the
owner or operator must:
(1) Notify the Regional Administrator
hi writing within seven days of
determining a statistically significant
increase below the treatment zone that
he intends to make a determination
under this paragraph;
(2) Within 90 days. submit a report to
the Regional Administrator
demonstrating that a source other than
the regulated units caused the increase
or that the Increase resulted from error
In sampling, analysis, or evaluation;
(3) Within 90 days. submit to the
Regional Administrator an application
for a permit modification to make any
appropriate changes to the unsaturated
zone monitoring program at the facility.
and
(4) Continue to monitor in accordance
with the unsaturated zone monitoring
program established under this section.
I 264.279 Recordkeeplng.
The owner or operator must include
hazardous waste application dates and
rates In the operating record required
under I 264.73.
§ 264.280 Closur, and post-closure care.
(a) During the closure period the
owner or operator must:
(1) Continue all operations (including
pH control) necessary to maximize
degradation, transformation or
immobilization of hazardous
constituents within the treatment zone
as required under § 264.273(a). except to
the extent such measures are
inconsistent with paragraph (a)(8) of this
section.
(2) Continue all operations in the
treatment zone to minimize run-off of
hazardous constituents as required
under § 264.273(b):
(3) Maintain the run-on control system
required under § 284.273(c);
(4) Maintain the run-off management
system required under § 284.273(d).
(5) Control wind dispersal of
hazardous waste If required under
§ 284. 73(f);
(6) Continue to comply with any
prohibitions or conditions concerning
growth of food-chain crops under
§ 264.276;
(7) Continue unsaturated zone
monitoring in compliance with § 264.278.
except that soil-pore liquid monitoring
may be termInated 90 day. after the last
application of waste to the treatment
aone; and
(8) EstablIsh a vegetative cover on the
portion of the facility being closed at
such time that the cover will not
substantially Impede degradation,
transformation, or Immobilization of
hazardous c istituents In the treatment
zone. The vegetative cover must be
capable of maintaining growtb vIthout
extensive maintenance.
(b) For the purposç of complying with
I 264.115. when closure Is completed the
owner or operator may submit to the
Regional Administrator certification by
an independent qualified soil scientist,
itt lieu of an independent registered
professional engineer, that the facility
has been closed In accordance with the
specifications in the approved closure
plan.
(c) During the post-closure care period
the owner or operator must:
(1) Continue all operations (including
pH control) necessary to enhance
degradation and transformation and
sustain Immobilization of hazardous
constituents In the treatment zone to the
extent that such measures are consistent
with other post-closure care activities;
(2) Maintain a vegetative cover over
closed portions of the facility;
(3) Maintain the run-on control system
required under § 264.274(c);
(4) MaIntain the run-off management
system required under I 284.273(d);
(5) Control wind dispersal of
hazardous waste if required under
• 264.273(f);
(8) Continue to comply with any
prohibitions or conditions concerning
growth of food-chain crops under
§ 264.276; and
(7) Continue unsaturated zone
monitoring in compliance with I 264.278,
expect that soil-pore liquid monitoring
may be terminated 90 days after the last
application of waste to the treatment
zone.
(d) The owner or operator Is not
subject to regulation under paragraphs
(a)(8) and (c) of this section if the
Regional Administrator finds that the
level of hazardous constituents in the
treatment zone soil does not exceed the
background value of those constituents
by an amount that Is statistically
significant when using the test specified
In paragraph (d)(3) of this section. The
owner or operator may submit such a
demonstration to the Regional
Administrator at any time during the
closure of post-closure care periods. For
the purposes of this paragraph:
(1) The owner or operator must
establish background soil values and
determine whether there is a
statistically significant increase over
those values for all hazardous
constituents specified In the facility
permit under § 264.271 (b).
(i)Background soil values may be
based on a one-time sampling of a
background plot having characteristics
similar to those of the treatment zone.
(ii) The owner or operator must
express background values and values
for hazardous constituents In the
treatment zone in a form necessary for
the determination of statistically
significant increases under paragraph
(d)(3) of this section.
(2) In taking samples used In the
determination of background and
treatment zone values, t ie owner or
operator must take samples at a
sufficient number of sampling points and
at’appropriate locations and depths to
yield samples that represent the
chemical make-up of soil that has not
been affected by leakage from the
treatment zone and the soil within the
treatment zone. respectively.
(3) In determining whether a
statistically significant Increase has
occurred, the owner or operator must
compare the value of each constituent in
the treatment zone to the background
value for that constituent using a
statistical procedure that provides
reasonable confidence that constituent
presence in the treatment zone will be
‘identified. The owner or operator must
use a statistical procedure that:
(I) Is appropriate for the distribution
of the data used to establish background
values, and
(ii) Provides a reasonable balance
between the probability of falsely
identifying hazardous constituent
presence in the treatment zone and the
probability of failing to identify real
presence in the treatment zone.
(e) The owner or operator Is not
subject to regulation under Subpart F of
this chapter Il the Regional
Administrator finds that the owner or
operator satisfies paragraph (d) of this
section and if unsaturated zone
monitoring under § 264.278 indicates
that hazardous constituents have not
migrated beyond the treatment zone
during the active life of the land
treatment unit.
§ 264.281 Speciat requiremeat, for
Ignitable or reactive waste.
The owner or operator must not apply
ignitable or reactive waste to the
treatment zone unless:
(a) The waste is immediately
incorporated into the soil so that;
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
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Federal Register I Vol. 47, No. 143 / Monday, July 26 , 1982 / Rules and Regulations
323i5
waste under 281.21 or 261.23 of this
chapter. and
(2) Section 284.17(b) is complied with;
or
(b) The waste is managed in sur.h a
way that It is protected from any -
material or conditions which may cause
ft to Ignite or react.
I 264.282 SpecIal roquIremenhs for
Incompatibio wutsa.
The owner or operator must not place
Incompatible wastes, or Incompatible
wastes and materials (see Appendix V
of this pert for examples), In or on the
same treatment zone, unless I 284.17(b)
Is complied with.
ft 264.283-264299 (Reserved)
Subpart N—Landfills
I 264.300 ApplicabIlity.
The regulations In this subpart apply
to owners and operators of facilities that
dispose of hazardous waste In landfills,
except as 284.1 provides otherwise.
* 284.301 Design and operating
requlrsments.
(a) A landfill (except for an existing
portion of a landfill) must have:
(1) A liner that is designed,
constructed, and Installed to prevent
any migration of wastes Out of the
landfill to the adjacent subsurface soil
or ground water or surface water at
anytime during the active life (including
the closure period) of the landfill. The
liner must be constructed of materials
that prevent wastes from passing into
the liner during the active life of the
facility. The liner must be:
(i) Constructed of materials that have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(including static head aiid external
)iydrogeologic forces), physical contact
with the waste or leachate to which they
are exposed, climatic conditions, the
stress of Installation, and the stress of
daily operation;
(ii) Placed upon a foundation or biise
capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement,
compression, or uplift and
(lii) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate; and
(2) A leachate collection and removal
system Immediately above the liner that
Is designed. constructed, maintained,
and operated to collect and remove
leachate from the landfill. The Regional
Administrator will specify design and
operating conditions in the permit to
ensure that the leachate depth over the
liner does not exceed 30cm (one foot).
The leachate collection and removal
system must be:
(I) Constructed of materials that are:
(A) Chemically resistant to the waste
managed in the landfill and the leachate
expected to be generated; and
(B) Of sufficient strength and
thickness to prevent collapse under the
pressures exerted by overlying wastes,
waste cover materials, and by any
equipment used at the landflll and
(ii) Designed and operated to function
without clogging through the scheduled
closure of the landfill.
(b) The owner or operator will be
exempted from the requirements of
paragraph (a) of this section if the
Regional Administrator finds, based on
a demonstration by the owner or
operator, that alternative design and
operating practices, together wIth
location characteristics, will prevent the
migration of any hazardous constituents
(see I 284.93) Into the ground water or
surface water at any future time. In
deciding whether to grant an exemption,
the Regional Administrator will
consider:
(1) The nature and quantity of the
wastes;
(2) The proposed alternate design and
operation;
(3) The hydrogeologic setting of the
facility, Including the eltenuative
capacity and thickness of the liners and
soils present between the landfill and
ground water or surface water, and
(4) All other factors which would
influence the quality and mobility of the
leachate produced and the potential for
ft to migrate to ground water or surface
water.
(c) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portion
of the landfill during peak discharge
from at least a 25-year storm.
(d) The owner or operator must
design, construct, operate, and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm.
(e) Collection end holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
(f) If the landfill contains any
particulate matter which may be subject
to wind dispersal, the owner or operator
must cover or otherwise manage the
landfill to control wind dispersal.
(g) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
I 264.302 Double-lIned iondfflis
Exemption from Subpart F growid .ontsr
protection requirement..
(a) The owner or operator of a double-
lined landfIll Is not subject to regulation
under Subpart F of this part If the
following conditions are met
(1) The landfill (including Its
underlying liners) must be located
entirely above the seasonal high water
table.
(2) The landfill must be underlain by
two liners which are designed and
constructed in a manner to prevent the
migration of liquids Into or out of the
space between the liners. Both liners
must meet all the specifications of
I 264.301(a)(1).
(3) A leak detectjon system must be
designed. constructed, maintained, and
operated between the liners to detect
any migration of liquId into the space
between the liners.
(4) The landfill must have a leachate
collection and removal system above
the top liner that Is designed,
constructed, maintained, and operated
In accordance with § 284.301(a)(2).
(b) If liquid leaks into the leak
detection system, th h owner or operator
must:
(1) NotIfy the Regional Administrator
of the leak in writing within seven days
after detecting the leak: and
(2)(i) Within a period of time specified
In the permit. remove accumulated
liquid, repair or replace the liner which
is leaking to prevent the migration of
liquids through the liner, and obtain a
certification from a qualified engineer
that, to the best of his knowledge and
opinion, the leak has been stopped; or
(ii) If a detec.tion monitoring program
pursuant to 264.98 has already been
establiBhed In the permit (to be
complied with only If a leak occurs).
begin to comply with that program and
any other applicable requirements of
Subpart F of this part WithIn a period of
time specified In the permit.
(c) The Regional Administrator will
specify In the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
*284,303 MonItoring end Inspection.
(a) During construction or installation,
liners (except In the case of existing
portions of landfills exempt from
I 264.301(a)) and cover systems (e.g.,
membranes, sheets, or coatings) must be
Inspected for unIformity, damage, and
Imperfections (e.g., holes, cracks, thin
-------
32366 ForlersI Re ster / VoL 47,No. 143 I Monday, July 26, 1982 I Rules and Regulations
spots, or foreign material.). Immediately
after construction or installation:
(1) Synthetic liners and covers must
be Inspected to ensure tight seams and
Joints and the absence of team.
punctures, or blisters; and
(2) Soil-based and admixed liners and
covers must be Inspected for
Imperfections Including lenses, cracks.
channels, root holes, or other structural -
non-unIformItIes that may cause an
Increase hi the permeability of the liner
or cover.
(b) While a landfill is In operation, It
must be Inspected weekly and after
storms to detect evidence of any of the
following!
(1) DeterioratIon. malfunctions, or
Improper operation of run-on and run-off
control systems;
(2) The presence of liquids In leak
detection systems, where Installed to
comply with 5284.302;
(3) Proper functioning of wind
dispersal control systems, where
present: and
(4) The presence of leachate in and
proper functioning of leachate collection
and removal systems. where precept.
5 5264.304-264.309 (N.aerv.d)
5264.309 SurveyIng and mcordk.splng.
The owner or perator of a landfill
must maintain the following items In the
operating record required under
5 284.73:
(a) On a map. the exact location and
dimensions, including depth, of each cell
with respect to permanently surveyed
benchmarks: and
(b) The contents of each cell and the
approximate location of each hazardous
waste type within each cell.
5264.310 Closure and post-closure ears.
(a) At final closure of the landfill or
upon closure of any cell, the owner or
operator must cover the landfill or cell
with a final cover designed and
constructed to:
(1) ProvIde long.term minimization of
migration of liquids through the closed
landfill;
(2) Function with minimum
maintenance:
(3) Promote drainage and minimize
erosion or abrasion of the cover
(4) Accommodate settling and
subsidence so that the cover’s Integrity
Is maintained. and
(5) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) After final closure, the owner or
operator must comply with all post-
closure requirements contained in
* * 264.117—264.120 including
maintenance and monitoring throughout
-the post-closur, care period (specified in
the permit under 5 204.117). The owner
or operator must:
(1) Maintain the Integrity and
iffectireness of the final cover,
Including making repairs to the cap as
necessary to correct the effects of
settling, subsidence, erosion, or other
events;
(2) MaIntain and monitor the leak
detection system In accordance with
*264.302; where such a system Is
present between double liner systems:
(3) Continue to operate the leachate
collection and removal system untIl
leachate is no longer detected;
(4) MaintaIn and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this Part;
(5) Prevent nm-on and run-off from
eroding or otherwise damaging the final
cover, and
(6] Protect and maintain surveyed
benchmarks used in complying with
* 264.309.
(c) During the post-closure care
period, If liquid leaks Into a leak
detection system Installed under
5 264.302, the owner or operator must
notify the Regional Administrator of the
leak In writing within seven days after
detecting the leak. The Regional
Administrator will modify the permit to
require compliance with the
requirements of Subpart F of this Part.
5 264.311 IRsssrv.dl
* 264.312 Spedat requirements for
Ignitabte or reactive waste.
(a) Except as provided in paragraph
(b) of this section, and In 5 264.318,
ignitable or reactive waste must not be
placed in a landfill, unless the waste in
treated, rendered, or mixed before or
Immediately after placement in a landfill
so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of Ignitable or reactive
waste under * * 261.21 or 281.23 of this
Chaptez- and
(2) Section 204.17(b) Is complied with.
(b) Ignitable wastes in container, may
be landfllled without meeting the
requirements of paragraph (a) of this
section. provided that the wastes are
disposed of in such a way that they are
protected from any material ci’
conditions which may cause them to
ignite. At a minimum. Ignitable wastes
must be disposed of in non-leaking
container, which are carefully handled
and placed so as to avoid heat, sparks,
rupture. ur any other condition that
might cause Ignition of the wastes: must
be covered daily with soil or other non-
combustible material to minimize the
potential for ignition of the waste.; and
must not be disposed of in cells that
contain or will contain other wastes
which may generate heat sufficient to
cause Ignition of the waste.
5264313 SpscI sqabumsnts for
incompatible wasts
Incompatible wastes, or incompatible
wastes and materials, (see Appendix V
of this part for examples) must not be
placed in the same landfill cell, unless
* 264.17(b) is complied with.
* 264.314 pscIaI rsqulrsmsnts for Squid
waste.
(a) Bulk or non-containerized liquid
waste or waste containing free liquids
must not be placed in a landfill unless.
(1) The landfill has a liner and
leachate collection and removal system
that meet the requirements of
* 204.301(a)-, or
(2) Before disposal, the liquid waste or
waste containing free liquids is treated
or stabilized, chemically or physically
(e.g., by mixing with an absorbent solid),
so that free liquids are no longer
present.
(b)Containers holding free liquids
must not be placed In a landfill unless.
(1] All free-standing liquid: (I) has
been removed by decanting, or other
methods; (ii) has been mixed with
absorbent or solidified so that free-
Mending liquid is no longer observed. or
- (iii) has been otherwise eliminated; or
(2) The container is very smali. such
as an ampule; or
(3) The container is designed to hold
free liquids for use 0th ?? than storage.
such as s battery or capacitor, or
(4) The container is a lab pack as
defined In 5 204.310 and is disposed of
In accordance wIth 5 284.316.
* 264.315 SpecIal requirements for
Unless they are very small, such as an
ampule, containers must be either:
(a) At least 90 percent full when
placed in the iandflII or
(b)Crushed, shredded, or similarly
reduced In volume to the maximum
practical extent before burial in the
landfill.
• 264.316 DIsposal of small containers of
hazardous waste hi ovsrpacked drums (tab
pac&s).
Small containers of hazardous waste
In overpacked drums (lab peck.) may be
placed In a landfill If the following
requirements are met:
(a) Hazardous waste must be
packaged In non-leaking Inside
containers. The Inside containers must
be of a design and constructed of a
material that will not react dangerously
-------
Federal Register I Vol. 47, No. 143 / Monday, July 26, 1982 F Rules and Regulations
32367
with, be decomposed by. or be Ignited
by the contained waste. Inside
containers must be tightly and securely
sealed. The Inside containers must be of
the size and type specified In the
Department of Transportation (DO!)
hazardous materials regulations (49 CFR
Parts 173, 178 and 179). if those
regulations specify a particular Inside
container for the waste.
(b) The Inside containers must be
overpacked In an open head DOT-
specification metal shipping container
(49 CFR Parts 178 and 179) of no more
than 416-liter (110 gallon) capacity and
surrounded by, at a minimum, a
sufficient quantity of absorbent material
to completely absorb all of the liquid
contents of the Inside containers. The
metal outer container musl be full after
packing with inside containers and
absorbent material.
(c) The absorbent material used must
not be capable of reacting dangerously
with, being decomposed by, or being
Ignited by the contents of the Inside
containers In accordance with
I 264.17(b).
(d) Incompatible wastes, as defined in
I 260.10 of this chapter. must not be
placed In the same outside container.
(e) Reactive wastes, other than
cyanide- or sulfide-bearing waste as
defined in I 201.23(a)(5) of this chapter,
must be treated or rendered non-
reactive prior to packaging in
accordance with paragraphs (a) through
(d) of this section. Cyanide- and sulfide.
bearing reactive waste may be packed
in accordance with paragraphs (a)
through (d) of this section without first
being treated or rendered non.reactive.
264.317-264.339 (Reserved)
13. 40 CFR Part 264 is amended by
adding Appendix IV to read as follows:
Appendix TV
Cochron ‘s Apprcxrn,olion to the Behrens-
Fisher Students’ t.test
Uiing all the available background data (rib
readings), calculate the background mean
(Xs) and background variance ( 1). For the
single monitoring well under Investigation
(n . reading), calculate the monutonng mean
(Xe) and monitoring variance (s,, ).
For any set of data (X 1 . X . . . X,) the
mean Is calculated by:
— ci+){ 2 . - +X, .
n
and the vanance Is calculated by:
(X ,— )’-f ’(X 3 — )’. . .
n-i
observations In the set of data.
The t-test uses these data summary
measw’es to calculate a t-statlstlc (t) and a
comparison t-statlstic (11. The t . value Is
compared to the value and a conclusion
reached as to whether there has been a
statistically significant change In any
Indicator parameter.
The t.statlstic for all parameters except pH
and similar monitoring parameters Is:
I .—
U the value of this t.statistic Is negative then
there Is no significant difference between the
monitoring data and background data. It
should be noted,that significantly small
aegative values may be Indicative of a failure
of the assumption made for teat validity or
errors have been made in collecting the
background data.
The i-statistic (U’ against which t will be
compared, necessitates finding t 5 and t_ from
standard (one-tailed) tables where,
t t-tables with (n,—1) degrees of freedom,
at the 0.05 level of significance.
t =t.tables with (n .,—1) degrees of freedom.
at the 0.05 level of significance.
Finally, the special weightings W 5 and W
are defined as:
A
— an w =
it 5 it,,
The t-statiatic (t) Is now compared with
the comparison t-statistic (tJ using the
following decision-rule:
Ut’ is equal to or larger than t,, then
conclude that there most likely has been a
significant increase In this specific
parameter.
If 1’ is less than t , then conclude that most
likely there has not been a change In this
specific parameter.
The t-statistic for testing pH and similar
monitoring parameters Is constructed in the
same manner as previously described except
the negative sign (if any) Is discarded and the
caveat concerning the negative value Is
ignored. The standard (two-tailed) tables are
used in the construction t, for pH and similar
monitoring parameters.
If t is equal to or larger than I ,. then
conclude that there most likely has been a
significant increase (If the Initial t had been
negative, this would imply a significant
decrease). If t. Is less than t,, then conclude
that there most likely has been no change.
A further discussion of the test may be
found In Statist,cd Methods (6th Edition,
Section 4.14) by C. W. Snedecor and W. C-
Cochran, or Principles and Procedures of
Stolistics (1st Edition, Section 5.8) by R.G. 0.
Steel and J. H. Torile.
STANDARD T-TAsI.Es 0.05 Lava OP
SIGNIFICANCE
ci Wudsin
-w
—
‘
—
1_.
---. —
$314
2.060
2.353
12706
4208
2152
.
4
5.__._..___
2132
Lois
2.776
2571
e.. —
1.343
120$
2447
2266
-. --
S. .-..
i..eo
2
•__
1.533
1.312
1786
1782
1 771
1761
2.232
1.225
2201
2178
2.150
2.145
1O..
1I
12. — ...
13....... ..
14__ —
15.. .____..____...
16_ ——
1.753
1.71 1
1740
£13 1
2.120
2.110
17 - .
..___.
1.734
2.101
1 8 ..__._. ..___...._.
1.721
ism
20...... -.
..
.__.._.
1.725
1.721
1.717
2.055
2Q 10
1071
1714
1711
1705
2.063
2061
LOI S
24
25_._.
30
40.. - ...
1597
1.551
2043
1221
Adopted P w ’i luble Ill 01 “&II1SLcal Tab l 9 g t
A9n iufaI ., M.c’ . .ll RaarCl” (19 17. R. & Patw w
F Y.te’.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
14. The authority citation for Part 265
reads as follows:
Authority: Sections 1006. 2002(a). and 3004
of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery
Act of 1976. as amended (42 U.S.C. 6905,
6 912(a), and 6924).
15. In 40 CFR 265, Subpart I, 5 265.253
is amended by revising paragraph (a)
and removing paragraph (c), and
5 265.258 Ia added to read as follows:
5265.253 ContaInment
If icachate or run-off from a pile is a
hazardous waste, then either
(a)(1) The pile must be placed on an
Impermeable base that is compatible
with the waste under the conditions of
treatment or storage;
(2) The owner or operator must
design, construct, operate. and maintain
a run-on control system capable of
preventing flow onto the active portion
of the pile during peak discharge from at
least a 25-year storm;
I •.‘+Ss’
V a,,
and so the comparison i-statistic Is:
W’t s+W , ,tuI
Ws+W , ,
where ‘n” denotes the number of
-------
32368 Federal Register I Vol 47 No. 143 I Monday. July 26, 1982 I Rules and Regulations
(3) The owner or operator must
design, construct, operate, and maintain
a nm-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm:
and
(4) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously to maintain design
capacity of the system; or
• • • • •
I 265.258 csosur. and post-closure cars.
(a) At closure, the owner or operator
must remove or decontaminate all waste
residues, contaminated containment
system components (liners, etc.).
contaminated subsoils. and structures
and equipment contaminated with
waste and leachate, and manage them
as hazardous waste unless § 261.3(d) of
this chapter applies: or
(b) If, after removing or.
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils.
structures, and equipment as required In
paragraph (a) of this section, the owner
or operator finds that not all
contaminated subsoils can be
practicably removed or decontaminated.
be must close the facility and perform
post-closure care in accordance with the
closure and post-closure requirements
that apply to landfills (I 265.310)
16. In 40 CFR Part 265. Subpart M is
amended by revising I 265.272 (b), (c)
and (d). and adding paragraph (e). and
by revising 265.276(c)(2)(iv). 265.279.
and 265.281 and in * 265.280 by revising
paragraphs (c) and (d) and adding new
paragraphs (e) and (I) to read as follows:
f 265.272 General operating requirements.
(b) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portions
of the facility during peak discharge
from at least a 25-year storm.
(c) The owner or operator must
design, construct, operate, and maintain
a nm-off management system capable of
collecting and controlling a water
volume at least equivalent to a 24-hour,
25-year storm.
(d) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and nm-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design caps city of the system.
(e) If the treatment zone contains
particulate matter which may be subject
to wind dispersal, the owner or operator
musS manage the unit to control wind
dispersal.
265.270 Food sIi n craps
• • • • •
(c)
(2)
(lv) Future property owners are
notified by a stipulation In the land
record or property deed which states
that the property has received waste at
high cadmium application rates and that
food chain mops must not be grown
except In compliance with paragraph
(c)(2) of this section.
o 26 Th Rsosndng.
The owner or operator must include
hazardous waste application dates and
rates in the operating record required
under * 265.73.
• 265.280 Closure and posIdoturs care.
• • S S S
(c) The owner or operator must
consider at least the following methods
in addressing the closure and post-
closure care objectives of paragraph (a)
of this section:
(1) Removal of contaminated soils;
(2) Placement of a final cover,
considering:
(I) Functions of the cover (e.g.,
infiltration control, erosion and nm-off
control, and wind erosion control); and
(1I) ’Characterlstics of the cover.
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
cover, and
(3) MonItoring of ground water.
(d) In addition to the requirements of
Subpart C of this part, during the closure
period the owner or operator of a land
treatment facility must:
(1) Continue unsaturated zone
monitoring In a manner and frequency
specified in the closure plan, except that
soil pore liquid monitoring maybe
terminated 90 days after the last
application of waste to the treatment
zone; -
(2) MaintaIn the run-on control system
required under 0 265.272(b);
(3) Maintain the run-off management
system required under 0 265272(c); and
(4) Control wind dispersal of
particulate matter which may be subject
to wind dispersal.
(e) For the purpose of complying with
265.115, when closure Is completed the
owner or operator may submit to the
Regional Administrator certification
both by the owner or operator and by an
independent qualified soil scientist, In
lieu of an Independent registered
professional engineer, that the facility
has been closed in accordance with the
specifications in the approved closure
plan.
(I) in addition to the requirements of
0285.117, during the post-closure care
period the owner or operator of a land
treatment unit must
(1) ContInue soil-core monitoring by
collecting and analyzing samples in a
manner and frequency specified In the
post-closure plan
(2) Restrict access to the unit as
appropriate for Its post-closure use;
(3) Assure that growth of food chain
crops complies with 255.27ft and
(4) Control wind dispersal of
hazardous waste.
0265,281 SpecIal requirements for
Ignitable or reactive waste.
Ignitable or reactive waste must not
be land treated unless:
(a) The waste Is Immediately
incorporated into the soil so that:
(1) The resulting waste, mixture, or
dissoibtion of material no longer meets
the definition of Ignitable or reactive
waste under II 265.21 or 261.23 of this
chapter; and
(2) SectIon 264.17(b) Is complied with:
or
(b) The waste is managed In such a
way that Ills protected from any
material or conditions which may cause
It to ignite or react.
17. In 40 CFR 285, Subpart N is
- amended by revising 0* 265.302 (a), (b)
and (c), 265.312. and 265.314(a)(1). to
read as follows:
1265.302 General operating requirements.
(a) The owner or operator must
design. construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portion
of the landfill during peak discharge
from at least a 25-year storm.
(b) The owner or operator must
design, construct, operate and maintain
a run-off management system to collect
and control at least the waler volume
resulting from a 24-hour, 25-year storm.
(c) Collection and holding facilities
(e.g., tanks or basins) associated wIth
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
1265.312 Speclai requirements for
ignitable or reactive waste.
(a) Except as provided in paragraph
(b)of this section, and In I 265.316,
Ignitable or reactive waste must not be
placed in a landfill, unless the waste is
treated, rendered, or mixed before or
Immediately after placement In a landfill
so that
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32369
(1) The resuithig waste, mixture, or -
dissolution or material no longer meets
the definition of ignitable or reactive
waste under fl 261.21 or 26123 of this
chapter. and
(2) Section 265.17(b) 1. complied with.
(b) Ignitable wastes hi containers may
be landfllled without meeting the
requirements of paragraph (a) of this
section provided that the wastes are
disposed In such a way that they are
protected from any material or
conditions which may cause them to
Ignite. At a irlnimum, ignitable wastes
must be disposed In non.leaking
containers which are carefully handled
and placed so as to avoid heat, sparks.
rupture, or any other condition that
might cause Ignition of the wastes; must
be covered daily with soil or other non-
combustible material to minimize the
potential for Ignition of the wastes; and
must not be disposed In calls that
contain or will contain other wastes
which may generate heat sufficient to
cause ignition of the waste.
* 265.314 SpecIal requirements tsr liquid
waste.
(a) Bulli or non-containerized liquid
waate or waste containing free liquids
must not be placed in a landfill unless:
(1) The landfill has a liner and
leuchate collection and removal system
that meets the requirements of
§ 264.301(a) of this chapter. or
PART 122—EPA ADMINISTERED
FERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
18. The authority Citation for 40 CFR
Part 122 is revised to read as follows:
Authority: Resource Conservation and
Recovery Act. as amended. IRCRA). 42 U.s C.
6901 01 seq.: the Safe Drinking Water Act.
42 U.S.C. § soof et seq.. the Clean Water Ad.
33 U.S.C. § 1251 El Req.. and the Clean Air
Act. 42 U.S.C. § 1857 el seq.
19. in 40 CFR Part 122. I 122.10(b) is
amended to read as follows:
122.10 Schedules of compliance
. I I • I
(b) Alternate schedules of
compliance A RCRA. U]C, or NPDES
permit applicant or permittee may cease
conducting regulated activities (by
receiving a terminal volume of
ha7ardous waste and (1) for treatment
and storage HVi’M facilities, closing
pursuant to applicable requirements,
and (2) for disposal HWM facilities,
closing and conducting post-closure care
pursuant to applicable requirements; by
plugging and abandonment for UIC
wells; or by termination of direct
discharge for NPDES sources) rather
than continue to operate and meet
permit requirements as follows:
3D. In 40 R Part 122, * 122.15(aX7) Is
amended by adding new paragraphs
( lv ), (v), (vi). (vii), and (viii) to read as
follows:
J 122.15 Modlficatlit revocation and
vsluuincS of paimfta .
(7) For RCR.4 only, the Director may
modify a permit
• I I I I
(iv) When the corrective action
program specified in the permit under
• 284.100 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
I 284.88. when the owner or operator
has been conducting a compliance
monitoring program under I 264.99 or a
corrective action program under
* 284.100 and the compliance period
ends before the end of the post-closure
care period for the unit.
(vi) When a permit requires a
cornpliance 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.
21. In 40 CFR Part 122, §122.17 Is
amended by adding new paragraphs (e)
(6). (7) and (8) to read as follows.
§ 122.17 MInor modifications of pormnlts.
I S I S I
(e)
(6) Change the treatment program
requirements for land treatment units
under I 264.271 to Improve treatment of
hazardous constituents, provided that
the change Is minor.
(7) 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 § 122.27(c). provided that the
change Is minor.
(8) Allow a second treatment
demonstration for land treatment tobe
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 I 264.272(a), provided the
conditions for the second demonstration
aie substantially the same as the -
conditions for the first demonstration.
I I S I I
22. in 40 CFR Part 222, I 12u21(d) Is
amended by adding a third sentence to
the introductory text preceding
paragraph (1), and adding a new
paragraph (4) to read as follows:
!1291 PurpcuendsoopeofubpattB.
(d) ‘
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 (insert date 6
months after date of promulgation], -
during any post-closure care period
required under I 264.117 and during any
compliance period specified under
I 264.96. includIng any extension of that
compliance period under I 284.98(c).
(4) Permits for 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. -
23. In 40 CFR Part 122, I 122 25 is
amended by revising paragraphs (a)(5),
(a)(13). (b)(3) and (b)(4), and by adding
new paragraphs (b)(6), (b)(7) and (c) to
read as follows:
* 122.25 Contents of Part B.
• • I S S
(a)
(5) A copy of the general Inspection
schedule required by I 264.15(b).
Include, where applicable, as part of the
Inspection schedule, specific
requirements In § § 284.174. 264.194.
264.226. 284.254, 284.273, and 264.303.
• I I S I
(13) A copy of the closure plan and,
where applicable, the post-closure plan
required by II 264.112 and 264.118.
Include where applicable, as part of the
plans. specific requirements in
0*284.178.264197.264.228,284258,
284.280, 264.310, and 264.351.
• S S I I
(3) For facilities that store, treat, or
dispose of hazardous waste in surface
impoundments, except as otherwise
provided in § 264.1:
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32370 Federal Register I Vol.
47, No. 143 I Monday, July 26, 1982 / Rules and Regulations
(i) A list of the hazardous wastes
placed or to be placed In each surface
impoundment
(ii) Detailed plans and an engineering
report describing how the surface
Impoundment I. or will be designed.
constructed, operated. and maintained
to meet the requirements of 284.221.
This submission must address the
following Items as specified In * 284.221:
(A) The liner system (except for an
existing portion of a surface
Impoundment). If an exemption 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 wifi. In
conjunction with location aspects.
prevent the migration of any hazardous
constituents into the ground water or
surface water at any future time:
(B) Prevention of overtopping: and -
(C) Structural lntergrlty of dikes;
(iii) If an 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:
(iv) A description of how each surface
impoundment, including the liner and
cover systems and appurtenances for
control of overtopping. wllFbe inspected
in order to meet the requirements of
* 264 226 (a) and (b). This information
should be included in the inspection
plan submitted under paragraph (a)(5) of
this section;
(v) 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;
(vi) 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
paragraph (a)(7) of this section;
(vii) A description of how hazardous
waste residues and contaminated
materials will be removed from the unit
at closure, as required under
* 264.228(a)(1). 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 284.228 (a)(2) and (b)
will be complied with. This information
ahould be Included In the closure plan
and, where applicable, the post-closure
plan submitted under paragraph (a)(13)
of this section:
(viii) If ignitable or reactive wastes
are to be placed In a surface
Impoundment. an explanation of how
*284.229 will be complied with:
(ix) 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.
(4) For facilities that store or treat
hazardous waste In waste plies, except
as otherwise provided In *284.1:
(I) A list of hazardous wastes placed
or to be placed In each waste pile;
(ii) If an exemption Is sought to
* 264.251 and Subpart F of Part 284 as
provided by * 264.250(c). an explanation
of how the requlrements of * 264.250(c)
will be complied with;
(lii) Detailed plans and an engineering
report describing how the pile is or will
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:
(A) 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
* 264.251(b). the owner or operator mustS
submit detailed plans and engineering . -
and hydrogeologic reports as
appropriate, describing alternate design
and operating pratices that will, in
con junction with location aspects,
prevent the migration of any hazardous
constituents Into the ground water or
surface water at any future time;
(B) Control of run-on;
(C) Control of run-off;
(D) Management of collection and
holding units associated with run-on and
run-off control systems: and
(E) Control of wind dispersal of
particulate matter, where applicable;
(iv) If an exemption from Subpart F of
Part 264 is sought as provided by
* * 284.252 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;
(v) 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 paragraph (a)(5) of this
section. If an exemption is sought to
Subpart F of Part 264 pursuant to
* 264.253. descrIbe izfthe inspection plan
how the inspection requirements of
* 284.253(a)(3) will be chmplled with:
(vi) 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;
(vii) if Ignitable or reactive wastes are
to be placed In a waste pile, an
explanation of how the requirements of
* 284.256 will be complied with;
(viii) If incompatible wastes, or
Incompatible wastes and materials will
be placed in a waste pile. an
explanation of how * 264.257 will be
complied with;
(ix) A description of how hazardous
waste residues and contaminated
materials will be removed from the
waste pile at closure, as required under
* 264.258(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 paragraph (a)(13) of
this section.
• . • • •
(6) For facilities that use land
treatment to dispose of hazardous
waste, except as otherwise provided in
* 264.1:
(i) A description of plans to conduct a
treatment demonstration as required
under * 264.272 The description must
Include the following information:
(A) The wastes for which the
demonstration will be made and the
potential hazardous constituents in the
wastes;
(B) The data sourcçs to be used to
make the demonstration (e.g.. literature,
laboratory data, field data, or operating
data);
(C) Any specific laboratory or field
test that will be conducted, including
(1) the type of test (e.g.. column
leaching. degradation);
(2) materials and methods, including
analytical procedures;
(3) expected time for completion:
(4) characteristics of the diit that will
be simulated in the demonstration,
Including treatment zone characteristics,
climatic conditions, and operating
practices:
(ii) A description ala 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:
(A) The wastes to be land treated;
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Federal Register I Vol. 47. No. 143 I Monday, July 28, 1982 I Rules and Regulations
32371
(B) Design measures and operating
practices necessary to maximize -
treatment in accordance with
* 264.273(a) Including:
(1) Waste application method and
rate;
(2) Measures to control soil pit
(3) Enhancement of microbial or
chemical reactions:
(4) Control of moisture content;
(C) Provisions for unsaturated zone
monitoring. including:
(1) Sampling equipment. procedures.
and frequency;
(2) Procedures far selecting sampling
locations:
(3) Analytical procedures:
(4) Chain of custody control;
(5) Procedures for establishing
background values;
(6) Statistical methods for interpreting
results;
(7) The justification for any hazardous
constituents recommended for selection
as principal hazardous constituents, in
accordance with the criteria for such
selection in * 264.278( 5):
(D) A list of hazardous constituents
reasonably expected to be in, or derived
from, the wastes to be land treated
based on waste analysis performed
pursuant to § 264.13;
(E) The proposed dimensions of the
treatment zone;
(iii) A description of how the unit is or
will be desLgned, constructed, operated.
and maintained in order to meet the
requirements of 264.273. This
submission must address the following
Items:
(A) Control of run-on;
(B) Collection and control of run-off.
(C) Minimization of nm-off of
hazardous constituents from the
treatment zone;
(D) Management of collection and
holding facilities associated with nm-on
and run-off control systems;
(E) Periodic Inspection of the unit.
This Information should be Included In
the inspection plan submitted under
paragraph (a)(5) of this section;
(F) Control of wind dispersal of
particulate matter, If applicable:
(iv) 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
I 264.276(a) will be conducted includmg:
(A) Characteristics of the food-chain
crop for which the demonstration will be
made;
(B) Characteristics of the waste,
treatment zone, and waste application
method and rate to be used in the
demonstration:
(C) Procedures for crop growth,
sample collection, sample analysis, and
data evaluation;
(D) Characteristics of the comparison
crop Including the location and
conditions under which II was or will be
grown.
(v) If food-chain crops are to be
grown. and cadmium Is present In the
land-treated waste, a description of how
the requirements of * 284.27 8(b) will be
complied with;
(vi) 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 * 284.280(a)(8)
and { 264.280(cfl2). This Information
should be Included in the closure plan
and, where applicable, the post-closure
care plan submitted under paragraph
(a)(13) of this section:
(vii) 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;
(viii) if incompatible wastps, or
incompatible wastes and materials, will
be placed In or on the same treatment
zone, an explanation m how 284.282
will be complied with.
(7) For facilities that dispose of
hazardous waste In landfills, except as
otherwise provided in * 264.1:
(I) A list of the hazardous wastes
placed or to be placed In each landfill or
landfill cell;
(Ii) Detailed plans and an engineering
report describing bow the landfill Is or
will be designed, constructed, operated.
and maintained to comply with the
requirements of * 264.303. This
submission must address the following
items as specified in 284.301:
(A) 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
I 284.301(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 an)’ hazardous
constituent into the ground water or
surface water at any future time;
(B) Control of run-on.
(C) Control of nin-off
(D) Management of collection and
holding facilities associated with rim-on
and nm-off control systems; and
(E) Control of wind dispersal of
particulate matter, where applicable.
(lii) lien exemption from Subpart F of
Part 264 Is sought, as provided by
I 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 leaJ
detection system between the liners. -
and a leachate collection and removal
system above the liners;
(lv) A description of bow 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
paragraph (aX5) of this section;
(v) Detailed plan. 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
accordailce wIth * 2 64.310(b). ThIs
information should be included in the
closure and post-closure plans
submitted under paragraph (a)(13) of
this sectIon.
(vi) If Ignitable or reactive wastes will
be landfllled. an explanation of how the
requirements of * 284.312 will be
complied with;
(vii) If Incompatible wastes, or
Incompatible wastes and materials will
be Iandfllled. an explanation of how
* 264.313 will be complied with;
(viii) If bulk or non-containerized
liquid waste or waste containing free
liquids is to be landfilled, an
explanation of how the requirements of
* 264.314 will be complied with;
(ix) ! ! containers of hazardous waste
are to be landfilled, an explanation of
how the requirements of § 284.315 or
264.316. as applicable, wIll be complied
with.
(a) Additional information
requirements. The following additional
Information regarding protection of
ground water is required from owners or
operators of hazardous waste surface
impo undments. piles, land treatment
units, and landfills, except as otherwise
provided In I 264.90(b):
(1) A summary of the ground-water
monitoring data obtained during the
Interim status period under I * 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 bydrogeologic
investigations of the facility area).
(3) On the topographic map required
under paragraph (a) (19) of this section,
a delineation of the waste management
area, the property boundary, the
proposed “point of compliance” as
defined under I 264.95, the proposed
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32372 Federal Register I Vol. 47, No. 143 / Monday, July 28, 1982 I Rules and Regulations
location of ground-water monitoring
wells as required under I 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 Is
submitted that:
(I) Delineates the extent of the plume
on the topographic map required under
paragraph (a)(19) of this sectioiz
(ii) Identifies the concentration of
each Appendix VIII of Part 261 of this
chapter 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 1264.97;
(6) lIthe 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 I 264.98. This
submission must address the following
items as specific under I 264.98:
(i) A proposed list of indicator
parameters, waste constituents, or
reaction products that can provide a
reliable indication of the presence of
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 to 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 I 264.99. The owner or
operator must also submit an
engineering feasibility plan for a
corrective action program necessary to
meet the requirements of I 264.100,
except as provided in I 264.98(hfl5). To
demonstrate compliance with I 264.99.
the owner or operator must address the
following Items:
l) 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
11264.97 and 264.99;
(iv) Proposed concentration limits for
each hazardous constituent, based on
the criteria set forth In 1 264.94(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 I 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 I 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
action program which meets the
requirements of 1 264.100. 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
I 264.94(b). 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
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 assess
the adequacy of the corrective action.
24. In 40 CFR Part 122, I 122.27 is
amended by revising the section title
and adding new paragraph (c) to read Sb
follows:
§ 122.27 Short term and phased psrmlts.
• • • • •
(c) Permits for land treatment
demonstrations using field tests or
laboratory analyses.
(1) For the purpose of allowing an
owner or operator to meet the treatment
demonstration requirements of I 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.
(i) 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.
(ii) 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.
(2) If the Director finds that a phased
- permit may be iBsued. be 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.demonstrafton clean.
up activities, and any other conditions
which the Director finds may be
necessary under I 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
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Federal Register ‘ Vol. 47, No. 143 I Monday. July 26, 1982 / Rules and Regulations
32373
information contained in the Part B
application.
(I) The first phase of the permit will be
effective as provided In I 124.15(b) of
this Chapter.
(ii) The second phase of the permit
will be effective as provided in
paragraph (c)(4) of this section.
(3) When the owner or operator who
has been issued a two-phase permit ha.
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 I 122.6, that the field
tests or laboratory analyses hove been
carried out In accordance with the
conditions specified In phase one of the
permit for conducting such tests or
analyse.. 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.
(4) 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
• 122.17, provided any such change is
minor, or otherwise will proceed as a
modification under § 122.15(a)(2)
(ii) 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 final decision on the second phase of
the permit. The second phase of the
permit then will become effective as
specified in f 124.15(b).
(iii) If modifications under
I 122.15(a)(2) arc necessary, the second
phase of the permit will become
effective only after those modifications
have been made.
iF Doc 1—10489 FiIrd 7—23-&’ 845 sr J
SIWNO COOS S5IO4O-
4OCFR Pert 123
t$WH-FRL 2068-41
Requirements for Authorization of
State Hazardous Waste Programs
AOENCV U.S. Environmental Protection
Agency (EPA).
ACrION: Final rule and interim final rule
with request for comments .
WNUARV On January 28. 1981. EPA
published amendments to the schedule
for authorization of State hazardous
waste programs under the Resource
Conservation and Recovery Act. Those
amendments were published a. an
interim final rule with a request for
comments. In response to comments.
EPA i today changing the schedule for
submission of State applications for
interim authorization and the date by
which State enabling legislation must be
in place. These changes, which are
\ promulgated as a final rule, will provide
additional flexibility in the State
application process but will not alter
substantive environmental standards or
create significant economic Impacts.
EPA is also today promulgating the
remainder of the January 1981
amendments aa a final rule.
In addition. EPA Is today
promulgating an interim final
amendment to Section 123.129, providing
a limited exception to the contents of
Component A of Phase II interim
authorization.
DATES: The amendments to Sections
123.122, 123.125, 123.128, and 123.137
published today are final rules effective
July 28. 1982. (The interim final
amendments published on January 26,
1981. were effective upon publication.)
The amendment to Section 123.129
published today is an interim final rule
effective July 26, 1982. The Agency will
accept comments on this amendment
until September 24, 1982.
ADDRESSES: Comments on the
amendment to Section 123.129 should be
sent to Docket Clerk (Docket No. 3000).
Office of Solid Waste (WH—562]. U.S.
Environmental Protection Agency. 401 M
St. SW., Washingto; D.C. 20460.
The public docket for these
regulations is located at the U.S.
Environmental Protection Agency, Room
S-269C, 401 M St. SW.. Washington.
D.C. 20460, and is available for viewing
from 9:00 AM to 4:00 PM, Monday
through Friday, excluding holidays.
FOR FURTHER INFORMATION CONTACT
Bruce R. Weddle. Deputy Director, State
Programs and Resource Recovery
Division, Office of Solid Waste (WH—
563), U.S. Environmental Protection
Agency, 401 M Street, SW.,
* Washington. D.C. 20460. (202) 755-0107.
SUPPLINENTARV INFORMATION
I. Background
On May 19. 1980(45 FR 33384), EPA
published as a final rule the
requirements for Interim authorization of
State hazardous waste program . under
Section 3006(c) of the Resource
Conservation and Recovery Act
(RCRA). These requirements, codified in
40 CFR Part 123, Subpart F. established
among other things two phase..of
interim authorization and a schedule for
State applications for these phases. The
first phase (Phase I) authorizes States to
administers hazardous waste program.
which includes the identification and
listing of hazardous wastes: the
regulation of generators and
transporters of hazardous wastes: and
the enforcement of preliminary
standards for hazardous waste
treatment, storage and disposal
facilities. The second phase (Phase II)
authorizes States to administer a permit
program for treatment, storage and
disposal facilities.
On January 28, 1981 (46 FR 8298). EPA
published amendments to the schedule
for State applications for Phase II of
interim authorization. Those
amendments were necessary to
reconcile Phase II with changes In the
schedule for promulgation of the Federal
permitting standards for hazardous
waste management facilities, codified in
40 CFR Part 264. As noted in the
preamble to those amendments, “the
substantive program requirements for
Phase II for the most part have not been
changed Rather, these
amendments implement needed changes
in the schedule and related requirements
for Phase U to keep the interim
authorization program in
correspondence with the underlying
Federal program” (46 FR 8300).
In those amendments EPA divided
Phase II of interim authorization into
‘components”. Each component
corresponds to one or more specific
categories of facilities requiring RCRA
permits (e.g.. incinerators, landfills, etc.).
State programs can receive interim
authorization to issue permits to the
specific category or categories of
facilities covered by each component.
States may apply for authorization for
each component as It becomes available
and Is announced in the Federal
Register, or may wait until all
components are announced and apply
for all of Phase fl authorization at that
time. This approach gives States the
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32374 Federal Register I VoL 47, No. 143 f Monday, July 26, 1982 Rules and Regulations
flexñ,illty to adapt their Phase U
application schedule to State.neads.
II. Regulalosy O anges Adopted Today
EPA received comments on the
amendment, to Part 123, Subpart P. from
several State and local officials and
members of the regulated coinmunfty. In
response to those comments, EPA I.
today chAT In 8 a number of provisions
dealing with the schedule for Interim
authorization.
Several commenters suggested that 40
CFR U 123.122 and 123.125 which
establish the schedule for State
applications for Interim authorization
and the deadline for State enabling
legislation, be revised. After
consideration of these comments, EPA
has decided to modify these provisions
to provide additional flexibility to the
States. These rhanges are discussed In
the following parts of this preamble.
Section II.H. discusses an amendment to
40 CFR I 123.129. which provides a
limited exception to the contents of
Component A of Phase U interim
authorization.
A. Deadline for interim Authorization
Applications. Section 123.122(c)(1J, as
amended on January 26. 1981. provides
that the interim authorization
application period closes six months
after the effective date of the final
component of Phase IL EPA believes
that an application deadline is
necessary to signal the end of the
Interim authorization application
process and to encourage States to move
on to final authorization. However. EPA
recognize. that some States which are
committed to administer an interim
authorization program may come close
but may still not be able to meet this
deadline, due to scheduling problems
created by State legislative and
regulatory processes.
Therefore, today’s amendments add a
provision that “the Regional
Administrator may extend the
application period for good cause.” EPA
intends that this extension only be
granted on a case-by-case basis to
States which have made a good faith
effort to meet the application deadline
and which can submit a complete
application within a reasonable period
of time. States which will not be ready
to apply for interim authorization within
a reasonable period of time should turn
their efforts to preparing a final
authorization program. More than a
brief extension of the interim
authorization application period would
be counter-productive, due to the limited
duration of interim authorization (it
expires 2 years after the effective date
of the laSt component) and the need for
States to obtain final authorization by
the end of interim authorization (In
order to avoid reversion of the program
to ‘EPA).
B. Application Period for Phase £ In
the January1981 amendments,
I 123.129(c)(3) provided that States
could apply for Phase I alone (without
applying for any component of Phase II)
until “six months after the effective date
of the first component of Phase IL” This
deadline for applying for Phase I alone
was January 13,1982.
The pwyose of this deadlinewas to
ensure that State Implementation of
Phase U was not unreasonably delayed.
Since the adoption of this deadline,
however, there have been a number of
delays and revisions In the Federal
Phase U regulations. As a result, a
number of State. which desire to
implement the RCRA Phase I program
are not yet prepared to apply for Phase
I I.
Therefore. EPA ‘has decided to extend
the period during which States may
apply for interim authorization for Phase
I alone. Section 123.122(c)(3) Is today
removed from the State authorization
requirements. A State may now apply
for Phase I at any time prior to the
expiration of the interim authorization
application period. (This period is
established In 40 CFR 123.122(cXl), as
discussed above.)
C. Application Period/or individual
Phase!! Components. The January 1981
amendments also set time limits for
State applications for Individual
components of Phase II. Sections 123.122
(c)(5) and (6) established a one year
period during which a State could apply
for a particular Phase U component
without also applying for subsequent
components. This provision created
difficulties similar to those discussed
above for the Phase I deadline.
Comments received included the request
that more time be provided for Phase U
applications.
In response to comments. EPA has
decided to extend the application period
for each component of Phase II. Sections
123.122(c) (5) and (6) are today removed
from the State authorization
requirements. A State may nowapply
for an Individual component of Phase II
(without applying for any other
component) at any time prior to the
expiration of the Interim authorization
application period.
D. Requirement So Apply forAll Parts
of interim Authorization. Section
123.122(c)(7), as amended on January 26,
1981, requIres States which have
received partial interim authorization
(i.e., interim authorization for Phase I
alone or Phase I and some components
of Phase Ii) to apply for oil of Phase II
within 6 mpnths of the effective date of
the last component of Phase U. Section
123.137 contains the related stipulation
that States with partial interim
authorization which fail to submit an
amended application for all of Phase II
by the above deadline will terminate
and responsibility for ECRA
Implementation will revert to EPA.
EPA recognizes, as noted above, that
some States may come close but still not
be able to meet this deadline. In
addition, some States with partial
interim authorization may not wish to
apply for the remaining elements of
Interim authorization and may decide.
Instead, to prepare an application for
final authorization. (States may apply
for final authorization at any time after
the announcement of the last component
of Phase U. See 123.31(c)(1). as
amended on January 26. 1981.)
However, States wIth partial interim
authorization may find that they are
unable to apply for and receive final
authorization by the deadline cited
above in 123.122(c)(7) and 123.137.
particularly given the delays In the
promulgation of the underlying Federal
program. In those circumstances, such
States would lose their partial Interim
authorization. This result would disrupt
administration of the hazardous waste
program and complicate the transition to
State responsibility for RCRA
implementation.
• To avoid such a result. EPA has today
added a provision to those sections that
“the Regional Administrator may extend
this deadline for good cause.” EPA
thtends that this extension be granted to
those States which are making a good
faith effort to apply for and receive final
authorization or the remainder of
interim authorization within.
reasonable period of time.
It should be noted that as a result of
other amendments adopted today.
several of the paragraphs In I 123.122(c)
have been renumbered. The provision
related to partially authorized States is
now 3 123.122(c)(4).
K Conditions for Phqse HApplicotion.
Section 123.122(dXl) currently provides
that a State may not apply for a
component of Phase I I unless It is
already authorized for (or is
simultaneously applying for) Phase I and
previously announced components of
Phase II. Several commenters pointed
out that the ability of a State to
administer a permit program for a
particular Phase II component Is not
necessarily contingent on authorization
for the other components. For ex mp)e.
a State may operate a competent
permitting program under RCRA for the
facilities covered in Component B
(incinerators) without also operating a
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Federal Register I Vol. 47, No. 143 1 Monday . July 26, 1982 / Rules and Regulations
32375
permitting program for the facilities In’
Component A (tanks, container., pile.
and surface Impoundments).
Therefore, In response to comments,,
EPA has decided to remove the
requirement in 123.122(d)(1) that
State. must be authorized for (or
simultaneously apply for) previously
announced components of Phase II
when applying for a particular
Individual component. In other words,
application for components in order of
their announcement Is no longer
required. States may now apply for
Phase fl components in any order (e.g.,
Component B, then Component A).
However, It continues to be essential
that States obtain Phase I authorization
before (or at the same time) they receive
authorization for any ccmponent of
Phase II. Phase I contains the basic
framework of the hazardous waste
program. A State cannot effectively
implement the Phase II permitting
program without these elements.
Therefore, EPA will retain the
requirement that States must apply for
Phase I before (or at the same time) they
apply for a component of Phase II.
F. Changes in the Federal
Regulations. The January 1981
regulations required that States applying
for Phase II authorization must amend
their programs to bring them Into
conformance with the current Federal
program (Including adopting changes as
necessary to conform with changes in
the Federal regulations). This basic
provision, In 123.122(d)(2), is retained
in today’s promulgation, but is slightly
modified to account for the change in
{ 123.122(d)(1) described above. Today’.
amendment allows States to apply for a
particular Phase II component without
addressing changes In the Federal
regulations covered In other
components. If the State is not
authorized for or seeking authorization
for those other components.
In ddiion, 123.122(d)(2) has been
reorganized and revised to more clearly
explain this requirement and to separate
the obligations of States already
authorized for parts of the RCRA
program from those States applying for
authorization for the first time. The
specific requirements which States must
address when applying for a Phase I I
component are outlined in the Federal
Register announcement of that
component and in the RCRA State
interim Authorization Guidonce
Manual.
C. Deadline for Slate Enabling
Legislation. RCRA Section 3006(c)
provides that Interim authorization may
be granted to those States which have
“in existence a hazardous waste
program pursuant to State law” no more
than 90 days after the “promulgation of
regulations under Sections 3002, 3003,
3004, and 3005.” EPA Interprets this
provision to mean that, at a minimum, a
State must have basic enabling
legislation for the program in place. I.e.,
basic statutory authority to regulate
hazardous waste, In order to be eligible
for interim authorization.
The application of the 90 day deadline
has been a difficult Issue, since the
Federal program Is being Implemented
in two phases and several components,
with a number of separate regulatory
promulgations. In the January 26, 1981,
amendment,, EPA applied the 90 day
eligibility requirement for Stete enabling
legislation to each component of Phase
II, since each component Is created by a
promulgation under RCRA Section 3004.
Section 123.125(a) of those amendments
provided that the State enabling
legislation for each component must be
in existence within 90 days of the
promulgation of the Federal regulations
comprising that component.
Based on comments received
regarding this interpretation. EPA has
reconsidered the January 1981
amendment and has modified its
interpretation of the 90 day deadline.
We now agree that the 90 day
requirement In RCRA Section 3006(c)
probably was intended by Congress to
provide a onetime test to Identify those
States with existing programs which,
could qualify for Interim authorization.
EPA’s phased implementation of the
hazardous waste program does not
provide a convincing reason to establish
additional 90 day deadlines or tests
which States must meet in order to
satisfy basic eligibility for Interim
authorization.
The remaining question Is when the
one.ti ne eligibility test should occur.
RCRA establishes the Federal
hazardous waste program as both a
model for the development of State
programs and a minimum standard for
their approval. EPA believes that States
should have an opportunity to review all
of the major elements of the Federal
program before they are required to
undergo an eligibility test based on the
existence of statutory authority.
Therefore, EPA has decided to tie the 90
day deadline to the announcement of
the final component of Phase II. At that
time, all of the major elements of the
Federal program will have been
established. The enabling legislation
requirement In Section 123.125(a) has
been revised to provide that: “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.”
Most States which have received
Interim authorization for Phase I will
have already demonstrated adequate
authority and thus satisfied the enabling
legislation requirement Unauthorized
States can satisfy the requirement by
certifying that the necessary legislation
was in place at any time prior to the
date 90 days after the announcement of
the final component of Phase II.
The 90 day deadline for State enabling
legislation Is also mentioned in
I 123.128(d) of these regulations, which
provides for a limited exception from
the generator, transporter, and related
manifest requirements. The reference to
the 00 day deadline In that paragraph Is
todey changed In con junctipn with
EPA’s modified Interpretation of this
requirement. States which have received
Phase I Interim authorization under the
terms of that paragraph may now 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 Phaae IL”
H. interim Authorization to Permit
Soroge Surface lmpoundment& The
contents of Components A end B of
Phase II interim authorization were
announced on January 26, 1981 (46 FR
7984). Component A covered tanks,
container storage facilities, waste piles
and storage surface Impoundments.
Component B covered Incinerators.
These components covered both new
and existing facilities In those
categories.
On October 20, 1981, EPA proposed to
temporarily suspend the effective dates
of its permitting standards for
Incinerators and storage surface
impoundments, as applied to existing
facilities, pending a reexamination of
their appropriateness for existing
facilities (46 FR 51407). In the preamble
‘to the proposed suspension, EPA stated
that the Agency’s policy would be to
postpone decisions on the authorization
of State permitting programs for existing
Incinerators and existing storage surface
impoundments until the Agency had
resolved this Issue.
In response to this policy, a few States
informed EPA of their Intent to submit
draft applications for authorization of
Component A, excluding existing
storage surface impoundments.
Subsequently, EPA received negative
comments on the postponement of State
authorization for exIsting storage
surface impoundments and existing
Incinerators, and decided to change this
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32376 Federal Register / Vol. 47, No. 143 / Monday. July 26. 1982 I Rules and Regulations
policy. On February 4, 1982. EPA
announced that Its new policy would be
to authorize State programs that meet
the regulatory requirements for
Com onents A and B to permit both new
and existing Incinerators and storage
surface Impoundments, as well as the
other facilities In those components (47
FR 8010).
This change In policy raises questions
about the status of those States which
planned to apply for Component A
without addressing existing storage
surface Impoundments. Those States
relied on the Agency’s then-current
policy of postponing authorization for
such facilities and prepared applications
based on this understanding.
Furthermore, some States are
understandably reluctant to adopt
regulations corresponding to EPA’s
current permitting standards for storage
surface Impoundments. while EPA is
reexamining those standards.
Therefore, EPA today Is amending
4 123.129 to allow Interim authorization
for Component A without storage
surface Impoundments. States will thus
have the choice of eIther (1) Including
new and existing surface Impoundments
In Component A. as allowed by the
January 26. 1981 announcement and the
February 24, 1982 policy statement, or
(2) taking advantage of today’s
amendment by excluding new and
existing surface Impoundments from
Component A.
Today’s amendment requires that a
State authorized for Component A under
this exception must commit In Its
Memorandum of Agreement with EPA to
adopt State permit standards for storage
surface impoundments which are
substantially equivalent to 40 CFR Part
264 no later than the State’s application
for the component of Phase II which will
correspond to the Federal land disposal
standards.This provision ensures that -
the duration of the exception will be
limited.
This exception applies to el/storage
surface Impoundments. both new and
existing EPA has decided that the
exception should not be directed only at
existing storage surface impoundments,
as that would create confusion for the
public and the regulated community.
Instead, States must choose to either
apply for all of Component A, Including
both new and existing Impoundments, or
to apply for Component A under this
exception, without being authorized to
permit any storage surface
Impoundments, existing or new.
EPA’s permit standards for storage
surface impoundments (40 CFR Part 284
Subpart IC) will remain in effect in States
which are authorized for Component A
under this exception. EPA will follow
the policy announced on October 20,
1981, for not c Hthg in Part B permit
applications for existing surface
impoundments, pending a final decision
on the proposed suspension. However,
the Agency will process voluntarily
submitted permit applications for these
facilities, Including applications from
new facilities.
Ill. Other Actions on the January 1981
Amendments to Part 123
EPA received other comments on the
January1981 amendments to Part 123
which are not discussed In the preceding
section of this preamble. EPA’s written
response to these comments on the
January1981 promulgation Is available
for public Inspection at the RCRA
Docket Room, Room S—269C, 401 M
Street SW., Washington. D.C. 20460.
Today, EPA I. promulgating the
January 1981 amendments to Part 123,
Subpart F, Including the additional
changes In * J 123.122, 123.125, 123,128,
and 123.137, as a final rule. Also, EPA Is
today promulgating the additional
change In 123.129 as an Interim final
rule, with a request for comments. EPA
printed the entire Subpart F of Part 123,
as amended, In the January 1981
promulgation. Today EPA is publishing
only the changes discussed In the
preceding section of this preamble.
On January 26, 1981, EPA also
published two minor amendments to 40
CFR Part 123, Subpart B, the
requirements for final authorization of
State hazardous waste programs. Those
amendments changed the application
and effective dates for final
authorization, In conjunction with the
changes in the schedule for Interim
authorization. (See 46 FR 8300.) EPA
received no comments on those changes
In the final authorization dates. Those
changes to Part 123, Subpart B, are also
today promulgated as a final rule,
IV. Interim Final Promulgation
EPA believes that use of advance
notice and comment procedures for the
amendment to 123.129 would be
Impracticable and contrary to the public
Interest, and therefore finds that good
cause exists for adopting this change In
Interim final form (see 5 U.S.C.
553(bXBII. As discussed In Section n.H.
above, without this amendment, States
which relied on EPA’s policy statement
of October 20, 1981, In preparing their
applications for interim authorization
might not be able to receive interim
authorization in an orderly and timely
fashion.
V. Effective Data
RCRA does not specify when EPA’s
regulations governing the authorization
of State programs are to take effect (see
Section 3010(b) of RCRA, 42 U.S.C.
8930(b)). The Mmh Istradve Procedure
Act (seeS U.S.C 553(d)) requIres that
the effectIve date for a regulation be not
less than 30 days from the date of
publication, unless there Is good cause
for an earlier date.
EPA finds that good cause exists for
making these amendments effective
upon publication. Moat of the
amendments were promulgated as
Interim final rules on January 26, 1981, li i
substantially the same form, and have
been In effect since that date. The
additional Interim final amendment to
O 123.129 Is being promulgated to ensure
that States which relied on EPA policy
statements In preparing applications can
receive Interim authorization In an
orderly and timely fashion. This Is a rule
that rectignizes an exemption and thus
may be made Immediately effective (see
B U.S.C. 553(d)(1)).
The process for Phase II Interim
authorization of State programs has
begun and Is continuing. A delayed
effective date would confuse and disrupt
the ongoing process. Furthermore, these
amendments provide additional
flexibility to the States by simplifying
and relaxing the schedule for Interim
authorization applications. Persons
affected by these amendments will
-therefore not need lead time to comply
-with new regulatory requirements.
Accordingly, EPA Is making all of these
rules effective upon publication.
VI. Compliance With Executive Order
.12281
Under Executive Order 12291, EPA
must judge whether a regulation is
“major” and therefore subject to the
requirement of a Regulatory Impact
Analysis. The amendments promulgated
here are not major because they will not
result In an effect on the economy of
$100 million or more and will not result
In an Increase In costs or prices. These
amendments will not result in any of the
other significant adverse effects
addressed In the Executive Order. These
amendments merely simplify and add
flexibility to requirements related to the
schedule for Interim authorization of
State hazardous waste programs.
These amendments were submitted to
the Office of Management and Budget
(0MB) for review as required by
Executive Order 12291.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act. 5
U.S.C. 801 et seq., EPA is required to
determine whether a regulation will
have a significant Impact c i i a
substantial number of small entities so
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Federal Register I Vol. 47, No. 143 1 Monday. July 26.1982 I Rules and Regulations
32377
as to require a regulatory flexibility
analysis. No regulatory flexibility
analy ls is required where the head of
the agency certifies that the rule will not
have a significant economic Impact on a
substantial number of small entities.
The amendments promulgated here
merely simplify and add flexibility to
requirements related to the schedule for
interim authorization of State hazardous
waste programs and do not affect the
compliance burdens of the regulated
community. Therefore. pursuant lob
U.S.C. 605(b). 1 hereby certify that these
regulations will not have a significant
Impact on a substantial number of small
entities.
VIII. Paperwork Rodudion Act -
Under the Paperwork Reduction Act
of 1980. 44 U.S.C. 3501 el seq.. EPA must
estimate the paperwork burden created
by any Information collection requests
contained In a proposed or final rule.
Because there are no information
collection activities created by this
rulemaking, the requirements of the
Paperwork Reduction Act do not apply.
Information collection requirements
contained elsewhere in 40 CFR Part 123
have been approved by the Office of
Management and Budget (0MB) under
the provisions of the Paperwork
Reduction Act and have been assigned
0MB control number 2000-0387.
List of Subjects In 41) CFR Part 123
Hazardous materials. Indians—lands.
Reporting end recordkeepthg
requirements, Waste treatment and
disposaL. Water pollution control. Water
supply. Intergovernmental relations.
Penalties. Confidential business
Information.
Dated: July 9.1982.
Anne M. Goimich.
Administrator.
Title 40 CFR. Part 123, Subpart F, Is
amended as follows:
PART 123—STATE PROGRAM
REQUIREMENTS
1. The autkrity citation for Part 123.
Subpart F. reads as follows:
(Seca. 1006. 2002(a) and 3006 of the SOW
Waste Diaposal Act, as amended by the
Resource Conservation and Recovery Act of
1075, as amended. 42 U.S.C. 0905. 09 12(a) and
0926)
2. The interim final rules amending
Part 123 whIch were published on
January 26. 1981 (48 FR 8298) are
adopted as final rules and further
amended as follows:
a. Section 123.122 is amended by
revising paragraphs (c) and (d) to read
as follows:
• 123.122 Schedule.
• S • • •
(c)(1) 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 II. 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 U shall
apply only for Interim authorization for
Phase 1.
(3) A State may apply for Interim
authorization for a component of Phase
H upon the announcement of that
component. provided that the State
meets the requirements 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 component. of Phase
II) shaU amend Its original submission to
include all of the components of Phase U
not later than 0 months after the
effective date of the last component of
Phase IL The Regional Administrator
may extend this deadline for good
cause.
(dXl) No State may apply for Interim
authorization for a component of Phase
U unless It: (iJ has received Interim
authorization for Phase L or (ii) ii
simultaneously applying for Interim -
authorization for that component of
Phase II and forPhase L
(2) When a State applies for Interim
authorize tion for a particular component
of Phase 11.11 shall demonstrate that Its
interim authorization program for Phase
I (and, If applicable, Its program for any
other components of Phase II) is
substantially equivalent to the Federal
program, including modification 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 I
(and any additional requirements for
other Phase U 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 program 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.
(b) Section 123.1.25 ii amended by
revising paragraph (a) to read as
follows:
1123.125 £tterm.y Scn.rars 1 —tmd .
(a) Any State seeking to administers
program under this subpart shall submit
a statement from the Stale Attorney
General (or the attorney for those State
or interstate agencies which have
independent le 5al counsel) that the
laws, of the State. or the interstate
compact provide adequate authority to
carry out the program described under
I 123.124 and to meet the applicable
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 123.128(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 B. State
statutes and regulations cited by the
State Attorney General or Independent
legal counsel shall be lawfully adopted
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
II, the Attorney General’s statement
submitted for interim authorization for
Phase I (or for Phase I and other
components of Phase 11) shall be
amended and recertified to demonstrate
adequate authority to carry out all
requirements of that compiment.
• • • S •
c. Section 123.128 paragraph (d) Is
amended by Inserting the following
words In the twenty-first line after the
phrase “withIn 90 days” and by
removing the words “of the
promulgation of Phase I”:
1123.12 1 Program requirements for
Interim authortsatlon for Phase L
• S S S S
(d) Limited exceptions from generator,
transporter, and related manifest
requirements.
of the announcement of the last
component of Phase U. ’
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32378 Federal Register I Vol. 47, No. 143 I Monday. July 26, 1982 I Rules and Regulations
d. Section 123.137 Is amended by
revising paragraph (a) to read as
follows:
j 123.137 Rsvlalon of State programs.
(a) A State program approved for
Interim authorization for Phase I or for
Phase I and for some but not all
components of Phase II shall termlnatq
on the last day of the 6th month after the
effective date of the last component of
Phase U 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
* 123.122(c)(4). The Regional
Administrator may extend this deadline
for good cause.
e. Section 123.137 paragraph (b) is
amended by inserting the following
words in the tenth line after the phrase
“pursuant to” and by removing the
words ‘1 123.122(c)(7)”:
* 123.137 Rsverslan of Stats programs.
• • • • •
(b) * I 123.122(c)(4)
S. Section 123.129(a) Is amended as an
Interim final rule by adding new
paragraphs (a)(4) and (a)(5) to read as
follows:
• 123.129 AdditIonal program
requirement. for intsrlm authorization for
Phase N.
(a)
(4) The Administrator may authorize a
State program for Phase B Component
A, even though the State program does
not have standards corresponding to 40
CFR Part 264 Subpart K (Surface
Impoundments), If the State commits in
Its Memorandum of Agreement to adopt
State standards substantially equivalent
to 40 CFR Part 284 Subpart IC 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 K in effect.
• . • * •
ra Do 52-IN’S Ph.d 7-33-52 145 a J
PILUNO CCCI S 5IO ’ .ø -O
.40 CFR Part 123
(SWH-FRL 2173-2]
A ithorIzatlon of Stats Hazardous
Waste Programs
AQiNCY: U.S. Environmental Protection
Agency (EPA).
*cyiorc Announcement of Component C
of Phase fl Interim Authorization, and
Beginning of Final Authorization .
•UUMARY The regulations governing
authorization of State hazardous waste
programs under the Resource
Conservation and Recovery Act provide
that EPA will announce each of the
components of PhaseD Interim
authorization lii the Federal Register.
This notice describes the content,
application requirements, and effective
date of the last component of Phase II
(Component C). which corresponds to
the Federal permitting standards for
land disposal facilities. State. may
commence the application process for
Phase B Component C with this
announcement.
The announcement of the last
component of Phase II enables the final
authorization process to begin, because
the major elements of the Federal
hazardous waste program are now In
place. States may commence the
application process for final
authorization with today’s
announcement.
This notice also describes several
Important deadlines In the interim
authorization proces. which are created
by today’. announcement.
FOR FURTHER INFORMATION CONTACT:
Bruce R. Weddle, Deputy Director, State
Programs and Resource Recovery
Division, Office of Solid Waste (WH—
563), U.S. Environmental Protection
Agency, 401 M Street, SW.,
Washington. D.C. 20460. (202) 755-0107.
FOR FURTHER INFORMA TIONON
1!tIPLEMENI ’A TION COA7A CT:
Region I. Dennis Huebner. Chief.
Waste Management Branch, John F.
Kennedy Building. Boston,
Massachusetts 02203. (017) 223—5775.
Region II, Dr. Ernest Regna, Chief,
Solid Waste Branch. 26 Federal Plaza.
New York. New York 10278 (212) 264-
0504 /5.
Region ill, Robert L. Allen, Chief,
Hazardous Materials Branch, 6th and
Walnut Streets, Philadelphia,
Pennsylvania 19100, (215) 597—0980.
Region IV. James Scarbrough, Chief,
Residuals Management Branch, 345
Courtland Street. N.E., Atlanta, Georgia
30365, (404) 881-3016.
Region V. Karl J. Iclepltsch, Jr.. Chief,
Waste Management Branch, 111 West
Jackson Street, Chicago, illinois 60604,
(312) 886-7435.
Region VL P. Stan Jorgensen. Chief.
Solid Waste Branch, 1201 Elm Street.
First International Building, Dallas,
Texas 75270, (214) 707-2645.
Region Vil Robert L. Morby, Chief,
Hazardous Material. Branch, 324 East
11th Street. Kansas City, MissourI 04106
(816) 374—3307.
Region VIII, Louis W. Johnson. Chief,
Waste Management Branch, 1860
Lincoln Street, Denver Colorado 80295,
(303) 327—2221.
Region DC, Philip Bobel. Chief,
Hazardous Materials Branch, 217
Freemont Street, San Francisco,
CalifornIa 94105, (415) 974-8165.
Region X. Kenneth D. Feigner. Chief,
Waste Management Branch, 1200 6th
Avenue, Seattle, Washington 98101,
(206) 442—1260.
SUPPLIMENTARY INPORMATIOPC
L Background
Section 3006 of the Resource
Conservation and Recovery Act (RCRA)
provides for two types of EPA approval
of State hazardous waste programs to
operate in lieu of the Federal program:
1. State programs which are
“sub. lially equivalent” to the Federal
program may receive a temporary
• “Interim authorization”; and
--2. State program. which are
“equivalent” to and “consistent” with
the Federal program and “provide
adequate enforcement” may receive a
“final authorization”.
The final authorization process has
not been available to States up to now,
because the major elements of the
Federal hazardous waste program were
not In place. Instead, State programs
have been granted interim authorization
In phases arid components
corresponding to the phased
development of the Federal program.
On May 19. 1980, EPA published the
requirements for Interim authorization of
State hazardous waste programs (see 45
FR 33384). These requirements, codified
In 40 CFR Part 123, Subpart F,
established, among other things, the two
phases of interim authorization and a
schedule for State applications for these
phases. The first phase (Phase I)
authorizes States to administer a
hazardou. waste program, which
Includes the Identification and listing of
hazardous wastes; the regulation of
generators and transporters of
hazardous wastes; and the enforcement
of preliminary standards for hazardous
waste treatment, storage and disposal
facilities. The second phase (Phase U)
authorizes States to administer a permit
-------
Federal Register / Vol. 47, No. 143 I Monday, July 26, 1982 / Rules and Regulations
32379
program for freatetent, storage and
disposal facilities.
Phase II of Interim authorization. In
turn, Is divided Into three “components”
corresponding to the major Federal
permitting standards for hazardous
waste management facilities, codified in
40 CFR Part 264. Each component
corresponds to one or more specific
categorie, of facilities requiring RCRA
permits (e.g., incinerators, landfills).
State program. can receive Interim
authorization to Issue permits to the
specific category or categories of
facilities covered by each component.
States may apply for authorization for
each component as it becomes available
and is announced In the Federal
Register, or may wait until all three
components are announced and apply
for all of Phase U authorization at that
time. This approach gives States the
flexibility to adapt their Phase I I
application schedule to State needs.
States with Interim authorization must,
however, apply for all of Phase II within
six months of the effective date of the
last component. (See amendments to
Part 123 published on January 26, 1981.
46 FR 8298, and elsewhere in today’s
Federal Register.)
EPA has to date announced the first
two components of Phase II. The
contents of Components A and B of
Phase II Interim authorization were
announced on January 26, 1981 (40 FR
7964). Component A covers tanks.
container storage facilities, waste piles
and storage surface Impoundments.
Component B covers Incinerators. The
remaining component of the Phase U
program, Component C, covers land
disposal facilities.
Final authorization can begin once the
major elements of the Federal program
are in place. which occurs when the
Phase II permit program is complete.
Section 123.31(c) provides that States
may apply for final authorization “at
any time after the promulgation of the
last component of Phase II.”
Today’s promulgation of standards for
land disposal facilities elsewhere In the
Federal Register completes the
establishment of the basic Federal
hazardous waste program. This event
has a number of significant effects ob
the State authorization process, which
are described in this notice.
Today, EPA:
• Announces the contents,
application requirements, and effective
date of Component C of Phase I I,
corresponding to the Federal permitting
standards for land disposal facilities.
Component C will be the last Phase U
component
• Announces the beginning of the
final authorization process.
• Announces several Important
deadlines I n the Interim authorization
process, which me ereated by the above
events.
The remainder of this notice discusses
these actions In mois detail.
IL Component C of Phase II. Interim
Authorization
A. Content of Component C
Component C corresponds to the
Federal standaids for Issuing permits to
four types of land disposal facilities:
landfills, land treatment units, waste
piles, end surface impoundments.
Component C also Include, the new
options for storage surface
Impoundments and waste piles added
by today’s promulgatIon. The Federal
technical regulations for land disposal
are codified In 40 CFR Part 264, Subparts
F, K, I ., M, and N. A State receiving
Interim authorization for Phase B,
Component C, will be authorized to
administer a State permit program under
RCRA for the above categories of
facilities. In lieu of the Federal permit
program for these facilities.
B. Relationship Between Components A’
and C
Subparts K and L of Part 284 (Surface
Impoundments and Waste Piles] were
originally promulgated on January12.
1981 (see 46 FR 2802). Those regulations
addressed storage and treatment In
certain classes of surface impoundments
and waste piles, and were included In
Component A (see 48 PR 7964, January
26,1981). Subparts IC and L are today
being amended as part of the land
disposal promulgation, and these
amendments will replace the January 12,
1981 versions of those Subparts when
the amendments become effective on
January20. 1983. Given this situation.
States may apply for interim
authorization for Subparts K and L In
the following manner
1. States which submit a complete
application for Component A to EPA
and for which EPA has published a
notice of public hearing prior to the
effective date of today’s amendments to
Subparts K and L may apply for
Component A based upon the original
announcement of Component A.
Including the January 12. 1981 provisions
of Subparts IC and L’ A number of
‘Prior to the effective detect today’.
amendment, to Subpart. K and L EPA will review
such appilontlone for Component A based upon the
ortgin.I announcemanl olCompoMni A, Including
the January 12. 1981 provisions of Subparts K and 1..
After the effective date of today’. amendment. to
Subparts K and 1. EPA wIU review such
appbcatioas for Component A based upon the
pothons of the amended Subparts K and L
crerespondiog to the January12 provisions. siem
States are currently preparing to apply
for Component A based on the original
EPA announcement, and this policy
enables such States to proceed to
complete application without a sudden
change in the application requirements.
States which receive Interim
authorization for Component A based
on the January 12, 1981 provision. of
Subparts K and I ., will be authorized to
Issue RCRA permits to the categories of
facilities covered in those provisions.
but will not be authorized to Issue
RCRA permits to other types of surface
Impoundments or waste piles. (A State
will still be able to apply for Component
A under the exception clause at
* 123.129(a)(4). without covering surface
Impoundments at all.)
2. After the effective date of today’s
amendments to Subparts IC and I., States
will be able to apply for Interim
authorization to permit surface
Impoundments and waste plies by
applying for Component C, which
corresponds to the amended provisions
of Subparts K and I. After that point, the
contents of Component A will be limited
to storage and treatment in containers
and tanks. This I. because the January
12,1981 provisions of Subparts K and I
originally included in Component A will
have been replaced by today’s
amendments. Therefore. States will
need to address these amendments by
applying for Component C In order to
receive Interim authorization to permit
surface Impoundments and waste piles.
This change In the content of
Component A does not affect any State
that recelvea.authorizatf on for
Component A based on a complete
application submitted before the
effective date of today’s amendments to
Subparts K and L
3. States with Interim authorization
must app1 ) ’ for all of Phase U within one
year of todays announcement (see
I 123.122(c)(4)). Therefore, States will
have to apply for Component C
Including today’s amendments to
Subparts K and L by that date or face
reversion of the RCRA program to EPA.
(See discussion of “State. with Partial
Interim Authorization” In Section IV of
this preamble.)
those aniendnient. ispisce the previous laagvsge of
those Subpaits. EPA antidpates that any Stale
pragr.m which adopt. the January12. sesi
standards for permitting double .hned storage
aurface Impoundment, and aat& piles with hne2s
will be found .ub.tsntj.1l, equivalent to the
•“ ‘ ‘d provisions of Subp.rts K and I.for these
limited cstagocies of fadlilies.
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32380 Federal Register I Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations
C. Requirements for State Applications Federal program adopted after today’s
for Component C -. date. Such changes. including
amendments to Part 264 covering new
In order to receive Interim I,rocesses not currently subject to
authorization for Phase II. Component C •tafldai(is (e.g.. underground tanks
a State must demonstrate that: which cannot be entered for inspection),
1. Its land disposal permit program would be addressed as part of the final
Frovides “substantially the same degree authorization process established in
cf human health and environmental 123.13(e). Since Component C Is the
protection” as the Federal permitting last Phase II component, interIm
standards for land disposal facilities authorization will not be available for
(see * 123.129(alil)). These Federal peimit such new processes, and EPA
standards Include the administrative retain permitting responsibility until
permit standards (40 CFR Part 264, the State receives final authorization for
Subparts A—E, C—H), as they apply to the relevant program element. (See
land disposal facilities, and the di ission below under Final
technical land disposal standards (40 Autho alion.)
CFR Part 264. Subparts F, K, L, M, and EPA will soon distribute to the States
N). and other Interested persons an
2. Its permitting requirements and addendum to the RCRA State Interim
procedures are substantially equivalent Authorization Guidance Manual which
to the Federal regulations cited in will specify the application process and
* 1 123.7 (a) and (b). Those regulations requirements for Component C in more
‘re the applicable Federal procedures detail. This Manual will contain
Irom 40 CFR Parts 122 and 124 (see chechlists outlining the requirements
§ 123.129(d)). contained in the various regulations
3. It has received interim montioned above, including a list of
authorization for Phase I or Is specific amendments to the Federal
simultaneously applying for interim regulations which must be addressed in
authorization for Phase II (see the Sate application for Component C.
{ 123.122(d)(1), as amended elsewhere In
today’s Federal Register). D. States Authorized for Components A
4. Its interim authorization program or B Under Exception Clauses
(for any phase or component) is Recent amendments to 123.129(a)
aubstantially equivalent to applicable allow States to receive interim
modifications to the Federal program authorization for Phase II Components
(see f 123.122(d)(2)). Some of the Federal A and/or B without coverage of certain’
regulations have been revised since requirements if specific conditions are
t ieir original promulgation. A State mot (see 47 FR 10552. AprIl 10, 1982. and
applying for Component C must amendments promulgated elsewhere in
demonstrate that its program is today’s Federal Register). A State
substantially equivalent to all applicable authorized under these exception
requirements, including rcgulator clauses must take the following actions
amendments, which have been In order to receive interim authorization
promulgated on or before the date of for Phase H Component C:
this notice. Amendments to the 1. A State which received interim
regulat ions cited above in items (1). (2). authorization for Phase II Component A
and (3) would have to he addressed. If or B. or both, pursuant to { 123.129(a)(2)
such amendments make the Federal must adopt State liability coverage
program more stringent. For example, a requirements by the time of its
State authorized for Phase I based on application for Component C. The State
the May 19. 1980 regulations and liability coverage requirements must be
applying for Component C would have In effect before such a State can receive
to address additions to the regulated interim authorization for Component C.
universe of hazardous waste and the z. A State which received interim
establishment of the financial authorization for Phase II Component A
responsibility requirements for facilities pursuant to 123.129(a)(4) must adopt
with interim status. In addition, a State State standards substantially equivalent
authorized for or seeking authorization to today’s amendments to 40 CFR Part
for Phase II Components A and/or B and 264 Subpart IC (Surface Impoundments)
applying for Component C would have by the time of its application for
to address amendments to the Federal Component C. These Slate standards
regulations corresponding to must be In effect before such aState can
Components A and/or B, If such receive interim authorization for
amendments make the Federal program Component C.
more stringent.
States applying for Component C (or
other Phase II components) will not be
raquired to address changes to the
commencing with this announcement.
State interim authorization for Phase II,
Component C can take effect on or after
January 26, 1983.
IlL Final Authorization of State
Hazardous Waste Programs
A. FinalAuthorization Program
As noted earlier, a State may apply
for final authorization at any time after
the announcement of the last component
of Phase II, which completes the
establishment of the basic elements of
the Federal hazardous waste program.
Today’s announcement of Component C
notes that It is the last Phase II
component. Therefore, the application
process for final authorization may
begin commencing with this
announcement.
Section 123.31(c)(2) provides that
State programs under final authorization
may take effect on the effective date of
the last component of Phase H.
Therefore. State final authorization can
take effect on or after January 26, 1983.
Unlike interim authorization, final
authorization does not expire after a
limited period of time; likewise, the
application period for final authorization
does not close at a set time. States must
satisfy the requirements of 40 CFR Part
123 Subparts A and B to receive fInal
authorization, regardless of their Interim
authorization status. States need not
have received interim authorization in
order to qualify for final authorization.
EPA will soon distribute to the States
and other interested persons a RCRA
State Final Authorization Guidance
Manual which will specify the
application process and requirements
for final authorization. This Manual will
contain checklists outlining the
requirements contained in 40 CFR Part
123 Subparts A and B.
B. Future Changes ondAdditions to the
Federal Regulations
The promulgation of the land disposal
permitting standards completes the
establishment of the basic Federal
hazardous waste program. However,
EPA anticipates that there will be some
future modifications to the Federal
program, as new information is obtained
regarding the characteristics of
hazardous wastes, technologies for
treatment, storage, and disposal, and
implementation of the current
regulations. EPA is conducting
Regulatory Impact Analyses on the
major hazardous waste regulations and
Is examining a “degree of hazard”
approach to managing hazardous
wastes. EPA also plans to add
permitting standards for several
£ Effective Dale of Component C
States may apply for interim
authorization for Phase II, Component C
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Federal Register I VoL 4 , No. ‘i4’3 I M aay Juiy’ 6, 1982 I Rules and Regulations
32381
processes not currently covered by the
Part 264 standards for owners and
operators of hazardous waste
management facilities. These new
standards will address such procesies
as (1) treatment or storage in certain
types of “underground tanks” not now
covered by Part 264. (2) thermal
treatment of hazardous wastes (in
devices other than Incinerators), and (3)
treatment of hazardous wastes by
chemical, physical or biological methods
(in other than tanks, surface
impoundments or land treatment
facilities).
Despite these plans to revise and
supplement the scope of the Federal
permit standards, EPA believes that the
basic elements of the RCRA permit
program are now in place and that final
authorization of State programs should
commence. Permit standards have been
promulgated for the hazardous waste
facilities which handle the vast majority
of wastes and generally represent the
most serious environmental and public
health concerns (i.e., landfills, surface
impoundments, and Incinerators). The
future promulgation of the few
remaining standards (e.g.. thermal
treatment), while important additions.
will serve to “fill out” a large completed
regulatory framework.
EPA announced on January 26, 1981.
that it might “allow final authorization
to begin . . . with one or two Part 264
Subparts unpromulgated. EPA may
decide to do this If, for example, the
standards for thermal treatment or
chemical, physical and biological
treatment have not been promulgated
when the land disposal standards are
promulgated” (46 FR 8300). The land
disposal standards have been the major
“missing piece” of the RCRA program.
and their promulgation establishes a
program which Is sufficiently
comprehensive for final authorization to
begin. Furthermore, the interim’
authorization program Is limited in
duration by the language of RCRA. EPA
does not believe that any further
extension of interim authorization and
the further postponement of final
authorization are warranted. It was
clearly the intent of Congress that once
the major regulatory elements were in
place, final authorization should be
made available. Therefore. EPA will
proceed with the final authorization
process as described in today’s notice.
This decision raises two questions
concerning the future additions to the
Federal regulatory program: (1) When
will States that receive final
authorization be required to adopt those
new standards, and (2) what is the
status of facilities for which EPA has not
ye promulgated Part 284 stindards but
which are located in States with final
authorization?
The final authorization regulations
contain procedures for the revision of
already approved State programs when
Federal regulations are modified or
supplemented. Section 123.13(e)
provides that State programs approved
for final authorization must make
revisions required by changes to the
Federal RCRA standards “within one
year of the date of promulgation of such
(new or modified] 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.” l’his language
provides a clear and orderly process for
maintaining the “equivalence” of State
programs that have received final
authorization.
Owners and operators of facilities
located in a State with final
authorization are generally subject to
that State’s RCRA program, since the
State program operates “In lieu or’ the
Federal program. However, such a State
may not Issue a RCRA permit to a
facility before the appropriate facility
standard (e.g., the standard for thermal
treatment) has been promulgated by
EPA and the State’s program Is judged
equivalent to and consistent with the
Federal program. This Is because there
would be no Federal program covering
that group of facilities for the State to be
“equivalent” to or to operate “in lieu or’
prior to EPA’s promulgation of such
standards. A State may regulate end
permit such facilities Independently
under the provisions of State law, but
such State permits would not be
considered RCRA permits. After the
appropriate Federal facility standard
has been promulgated. the authorized
State would be required to modify Its
program according to the dates
established in * 123.13(e).
Under current regulations, the
affected facility would not be subject to
the RCRA standards until the State
adopted equivalent standards and those
were approved by EPA. Section 264.1( I)
provides that the Federal standards for
owners and operators of hazardous
waste facilities are not applicable In
States with final authorization.
Therefore, there could be a one (or two)
year period during which the new RCRA
standards would not apply In such a
State. until the State adopted an
equivalent and consistent standard.
RCRA permits could not be issued to
affected facilities during the ore (or two)
year period described above, and
operation (and. In some cases,
construction) of new facilities In the
subject categories would not be allowed.
Such a de facto ban on construction
and operation of the affected new
facilities is clearly undesirable. given
the general need for additional capacity
for the treatment, storage and disposal
of hazardous wastes and the prospect
that new facilities In the categories
under discussion would operate with a
higher level of environmental protection
than many older, more conventional
facilities To avoid this situation, EPA,
elsewhere in today’s Federal Register, is
amending 284.1(f) to make Part 264
permit standards for new categories of
facilities applicable to facilities in States
with final authorization until the State
has adopted equivalent State standards.
This will allow EPA to Issue RCRA
permits during the one (or two) year
period when the authorized State lacks
RCRA permitting authority for those
new categories of facilities. This
amendment is directednt the small
number oF new facilities In the
designated categories which would
otherwise be unable to conduct
necessary activities during this period of
State regulatory development. This
amendment also clarifies the
applicability of permit standards for
new categories of facilities in States
with Phase II interim authorization.
IV. Deadlines In the Interim
Authorization Process
A number of important deadlines for
interim authorization are triggered by
the announcement of the final Phase II
con ponent. This section of the notice
identiFies these deadlines.
A. Expiration of Interim Authorization
RCRA 3006(c) provides that Interim
authorization extends for 2 )1 years after
the promulgation of the Federal
hazardous waste regulations. Section
123.122(b) of the State authorization
reqwrernents interprets this provision to
mean that interim authorization “may
extend for a 24-month period from the
effective date of the last component of
Phase H.” (This expiration date is 2)1
years after the promulgation of the last
major element of the Federal
regulations.)
Since Component C is the last Phase II
component, the two year prior begin on
January 26. 1983. At the end of that
period. “all interim authorizations
automatically expire and EPA shall
administer the Federal program In any
State which has not received final
authorization” (see I 123.122(b)(2fl. EPA
encourages au uthorized States to
prepare and apply for final authorization
well in advance of this deadline, In
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32382 Federal Register I Vol. 47, No. 143 I Monday. July 26. 1982 Rules and Regulations
order to avoid reversion of the RCRA
program to EPA.
8. End of Interim Authorization
Application Period
Section 123.122(c)(1) provlaes that a
State may apply for Interim
authorization until the end of the 8th
month after the effective date of the last
Phase II component. The Interim
authorization application period will
close on July 26. 1983.
EPA Is amending this provision
elsewhere In today’s Federal Register by
adding that “the Regional Administrator
may extend the application period for
good cause.” The preamble to this
amendment notes that “EPA Intends
that this extension only be granted on a
case-by-case basis to States which have
made a good faith effort to meet the
application deadline and which can
submit a complete application within a -
reasonable period of time”.
C. States With Pargiolinterim
Authorization
Section 123.122(c)(4), as amended
elsewhere In today’s Federal Register,
requires States which have received
partial Interim authorization (I.e..
Interim authorization for Phase I alone
or Phase I and some components of
Phase II) to apply for all of Phase II
within 6 months of the effective date of
the last component of Phase II. This
deadline will occur on July 26, 1983.
Section 123.137 contains the related
stipulation that State programs with
partial interim authorization which fail
to submit an amended application for all
of Phase U which meets the
requirements of the Federal program by
the above deadline will terminate and
responsibility for RCRA Implementation
will revert to EPA.
Alternatively, State programs with
partial interim authorization can avoid
program reversion to EPA by applying
for and receiving final authorization by
the above deadline, in addition, today’s
amendments to these two sections
provide that the Regional Administrator
may extend the deadline for good cause.
This extension Is Intended to be granted
In the same amanner as the extension to
the application deadline discussed
earlier.
D. Deadline for State Enabling
Legislation
RCRA SectIon 3006(c) provides that
Interim authorization may be granted to
those States which have “in existence a
hazardous waste program pursuant to
State law” no more than 90 days after
the “promulgation of regulations under
Sections 3002, 3003, 3004. and 3005.”
EPA interprets this provision to mean
that, at a minimum, a State must have
basic enabling legislation for the
.program In place, I.e.. basic statutory
authority to regulate hazardous waste.
In order to be eligible forluterim
authorization.
The deadline by which the State
enabling legislation must be In place Is
found in 123.125(a ). This section Is
amended elsewhere In today’s Federal
Register to tie the deadline to the final
Phase U component, which establishes
the last major elements of the Federal
program. This section 1. revised to
provide that: “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. ” This
deadline will occur on October 25, 1982.
Most States which have received
Interim authorization for Phase I will
have already demonstrated adequate
authority and thus satisfied the enabling
legislation requirement. Unauthorized
States which desire to apply for interim
authorization can satisfy the
requirement by certifying that the
necessary legislation was In place at
any time prior to the date given above.
V. Compliance With Executive Order
12391
Under Executive Order 12291, EPA
must judge whether a regulation is
“major” and therefore subject to the
requirement of a Regulatory Impact
Analysis. The notice published today Is
not major because It will not result in an
effect on the economy of $100 million or
more and will not result in an increase
In costs or prices. It will not result in
any of the other significant adverse
effects addressed In the Executive
Order. The notice announces the last
component of Phase U interim
authorization, the beginning of final
authorization, and several deadlines in
the Interim authorization process. These
announcements are based on and carry
out regulations promulgated under
RCRA.
This notice was submitted to the
Office of Management and Budget
(0MB) for review as required by
Executive Order 12291.
VI. Authority
Sections 1006. 2002(a) and 3006 of the
Solid Waste Disposal Act, as amended
by the Resource Conservation and
Recovery Act of 1976. as amended. 42
U.S.C. 6905,6912(a) and 8926.
List of Subjects In 40 CFR Part 123
Hazardous materials, Indians-lands,
Reporting and recordkeeping
requirements, Waste treatment and
disposal, Water pollution control, Water
supply, Intergovemmeutal relations.
Penalties, Confidential business
information.
Dated: July 9,1962.
Anne M. Gersuch,
Administrator.
PR Dec. -1a47i Piled - .I5 U I a J
cone
40 CFR Part 264
18W-FRI. 2173-Il
Hazardous Waste Management
System; Standards for Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities
LoiNcy: Environmental Protection
Agency (EPA).
Ac’riow: Interim final rule.
SUMMAR Elsewhere in today’s Federal
Register, EPA announces that States
may commence the application process
for final authorization. As described in
that announcement, EPA plans to add
permitting standards for several
processes which are not currently
covered by the Part 264 standards for
owners and operators of hazardous
waste management facilities. Section
123.13(e) requires States with final
authorization to make revisions to their
- programs “within one year of the date of
promulgation of such rFederalj
regulations. unless a State must amend
or enact a statute. . . in which case
such revision shall take place within
two years.” Under the current
regulations, until a State makes those
revisions, neither EPA nor that Stale has
the authority to issue RCRA permits to
facilities covered by those new
permitting standards, Including new
facilities which need a RCRA permit in
order to commence operation (and. in
some cases, construction).
To remedy this problem, EPA is today
amending its hazardous waste
management regulations to enable
certain facilities located In States with
final authorization to obtain a federally.
Issued RCRA permit during the time
preceding the State’s authorization for
those new standards. EPA Is also today
clarifying the applicability of new
permit standards In States with Phase II
Interim authorization.
The Agency expects that this
• amendment will result In savings to the
regulated community by enabling new
facilities subject to these post-
authorization standards to obtain a
RCRA permit and begin operation
before the State adopts equivalent new
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Federal Register I Vol. 47, No. 143 / Monda July ’ 26. 1982 I Rules and Regulations
32383
standards. New facilities are expected
to operate with a higher level of -
environmental protection than older,
more conventional facilities. Therefore,
this amendment will have a positive
environmental Impact by allowing these
new facilities to obtain RCRA permits
sooner than they would otherwise be
able.
DATES: Effective dote: January 26, 1983.
Comment dote: EPA will accept public
comment on this amendment until
September 24. 1982.
ADDRESS: Comments should besent to
the Docket Clerk (Docket 3004—
Additions to federal regulations after
state authorization). Office of Solid
Waste (WH—562), Washington. D.C.
20460.
FOR FURTHER INFORMATION CONTAC7
Terrance Grogan, Office of Solid Waste
(WH-563), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington, D.C. 20480. (202) 382—2224;
or the RCRA Hothne toll-free at (800)
424—9346 or in Washington, D.C. at 382—
3000.
SUPPI,EMENTARY INFORMATION:
1. Background
On February 26, 1980, and May 19,
1980. EPA published regulations
pursuant to the Resource Conservation
and Recovery Act of 1976, as amended
(RCRA). establishing the first phase of a
comprehensive program for the handling
and management of hazardous waste (45
FR 33066—33285, now codified in 40 CFR
Parts 260-265). These regulations
require. among other things, that
facilities which treat, store, or dispose of
hazardous waste must obtain a permit
from EPA or an authorized State. The
permit must be based on standards
promulgated by EPA in 40 CFR Part 264.’
Section 3006 of RCRA allows a State
which seeks to administer end enforce a
hazardous waste program to obtain
authorization from EPA to run the
program in lieu of the Federal
Government. EPA will authorize a State
if it determines that the State’s program
is “equivalent” to and “consistent” with
(in the case of final authorization), or
“substantially equivalent” to (in the
case of interim authorization), the
Federal program. The authorized State
can then issue and enforce permits for
the treatment, storage, or disposal of
hazardous waste, under RCRA.’
‘Portion. of 40 CFR Part 254 were promulgated on
May 29,1980(45 I 33154). January 12.1981 146 JR
28021 and January 23. 1981 (45 JR 7667). The major
itiasing piece of the RCRA performance .tar.dards
as the land diepoaal reguiattoria. until their
tromulgation elsewhere in today’. Federal Register.
‘States n’ay iaaue hazardous waste permits under
State law in any case, whether or not they are
juthor,zed under RCRA.
On May 19, 1980, EPA promulgated
regulations which spell out in detail,
among other things, the requirements for
States to receive authorization to
administer the RCRA permit program in
lieu of the Federal permit program. (See
45 FR 33377, codIfied In 40 CFR Part
123).
Elsewhere In today’s Federal Register,
EPA is promulgating permitting
.tand rds for land disposal facilities,
which represent the last major piece of
the RCRA hazardous waste program.
However. EPA Intends to add permitting
standards for processes not currently
covered by the Pail 264 standards. For
example, the Part 264 standards do not
currently cover treatment and storage of
hazardous waste in certain types of
underground tanks; thermal treatment of
hazardous waste In devices other than
incinerators; or treatment of hazardous
waste by chemical, physical or
biological methods (other than In tanks.
surface Impoundments or land treatment
units).
Adding Part 264 permitting standards
to the Federal regulations after States
have obtained final authorization raises
the following problem under the existing
regulations. Section 123.13(e) provides
that State programs approved for final
authorization must make revisions
required by changes to the Federal
RCRA program “within one year of the
date of promulgation of such (new or
modified] regulation, unless a State must
amend or enact a statute In order to
make the required revision in which
case such revisions shall take place
within two years.” This language
provides a clear and orderly process for
maintaining the “equivalence” of State
programs that have received final
authorization. However, there may still
be a one or two year gap between the
time new standards are promulgated by
EPA, and the time that the State adopts
and is authorized for equivalent
standards.
The problem arises when a person
plans to build a new facility (or expand
an existing one) with processes covered
by the new Part 264 standards during
this one or two year period in a State
with final authorization,’ Such a person
could not receive a RCRA permit for
these processes from the authorized
State during this period. This Is because
the State’s RCRA authorization includes
only those portions of the Federal
program for which the State has been
judged to have equivalent and
consistent standards, State programs
‘Facfl,ties in elustence on November 19. 2980,
may qualify for interim status when the new
standards ate promulgated. See Section 3005(e) of
RCRA and 40 CFR Part 122 22(a).
cannot operate “In lieu of’ this new part
of the Federal program until they have
received authorization for those new
Pazt264 standards.
In addition, the person could not
- receive a federally-issued RCRA permit
If he or she Is located In a State with
final authorization, because 264.1(1) U
currently worded provides that the
requirements of Part 264 do not apply to
a person who treats, stores or disposes
of hazardous waste In a State with a
RCRA hazardous waste program
authorized under Part 123. ’ (This
provision was originally promulgated on
the assumption that by the thee of final
autjlorization, Part 284 standards would
be in place for all categories of
facilities.)
The owner or operator of a new
facility could therefore face a period of
time in which he cannot obtain a RCRA
permit from either the a ithorized State
or the Federal government. This
effectively places a ban on the operation
(and, in some cases, construction) of the
facility. EPA did not intend to Impose
this de facto ban, and believes It Is
undesirable. These new facilities may
provide needed additional treatment,
storage. and disposal capacity at a
higher level of environmental protection
than older, more conventional facilities.
The Agency Is today amending
• 264.1(1) to rectify this problem. Under
this amendment, Part 264 will apply to
these facilities until the State receives
final authorization for the new
standards. Facilities subject to these
new standards may therefore obtain a
federally-issued RCRA pbrmit during
that limited period of time. They will not
have to wait until the State in which
they are located adopts equivalent and
consistent standards.
The language of 5 284.1(f) Is also being
amended to clarify the applicability of
Part 264 in States with Phase I I interim
authorization wider RCRA 5 3006(c).’
This amendment ensures that States
authorized for any of the Phase II
components will operate the RCRA
permit program in lieu of EPA for
facilities covered In their authorized
components. For example. If a facility
conducted incineration of hazardous
wastes, and the facility was located in a
State with interim authorization for
Phase II. Component B (the component
covering incinerators), then It would not
‘Part 264 doe, currently app 1 y to underground
Inlection. If the authorized State program does not
• covent See4OCFRIZ84I(I)
‘For a discussion of Phase U Interim
authorization. ace amendment. to Part 123
published on January 26, 1981,48 FR 8298. and the
announcement of Pnaae I I Component C eliewbere
In todays Federal Register
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Federal Register I Vol. 47, No. 143 / Monday. july 26. 1982 I Rules and Regulations
be subject to Part 264. and the State’s
“substantially equivalent” standards
would operate In lieu of the Federal
standards.
However, Part 264 will apply to the
permitting of new processes (e.g..
underground tanks) added to the
coverage of Part 264 after the
announcement of Component C. Since
Component C Is the last Phase II
component. hitenm authorization would
not be available for permitting these
new processes. EPA would retain
permitting responsibility for such new
processes In States with Interim
authorization, since the processes would
not be included In the State’s
authorization for Phase fl. States would
receive authorization to operate the
RCRA permit program in lieu of EPA for
such new processes as part of final
authorization, under the provisions In
* 123.13(e) described above.
EPA requests comments on the
approach taken In this amendment for
both final and interim authorization. In
particular, comments are solicited on
alternatives to Federal permit Issuance
in authorized States during the period
between addition of new R RA permit
standards and State authorization for
equivalent and consistent standards.
U. Interhn Final Promulgation
EPA believes that the use of advance
notice and comment procedures for this
amendment to the applicability section
of 40 CFR Part 264 would be
Impracticable and contrary to the public
Interest, and therefore finds that good
cause exists for adopting this change in
interim final form (see 5 U.S.C.
* 553(b)(B)).
This amendment is designed to make
the language of * 264.1(f) consistent with
the Agency’s original intent In
promulgating that section. EPA never
intended a situation where a facility
could not obtain a RCRA permit from
either EPA or an authorized State after
the appropriate Part 264 standards were
promulgated. The current language of
264.1(f) was based on the assumption
that Part 264 standards would be In
place for all categories of facilities by
— the time of final authorization. However,
this did not happen, and thus certain
new facilities could face a temporary
ban on operation (and, in some cases.
construction) In States with final
authorization due to current regulatory
language. Today’s amendment rectifies
this situation by allowing continued
operation of the RCRA permitting
process, as originally intended.
This interim final amendment will
take effect in six months, at the same
time that final authorization can take
effeci. This timi, g ensures that the
- ECRA permitting process will not be
• disrupted in States with final
authorization.
EPA will accept comments on this
amendment for 60 days. and will make
any further changes deemed necessary
as a result of those comments.
UI. Exeosfive Order 22211
Under Executive Order 12291, (48 FR
12193. February 19.1981), EPA must
judge whether a regulation Is “Major”
and therefore subject to the requirement
of a Regulatory Impact Analysis. A
major rule Is defined as a regulation’
which Is likely to result flu
• An annual effect on the economy of
$100 million or more:
• A major Increase in costs or prices
for consumers, Individual Industries,
Federal. State or local government
agencies or geographic regions; or
• Significant adverse effects on
- competition, employment. Investment,
productivity, innovation or on the ability
of United States-based enterprises to
compete with foreign-based enterprises
In domestic or export markets.
This regulation Is not major because It
will not result In an effect on the
economy of $100 million or more nor will
It result in a major increase in costs or
prices to consumers, industry or
government entitles. 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. Because this
amendment is not a major regulation, no
Regulatory Impact Analysis is being
prepared.
This amendment was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
IV. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. * 601 el seq., whenever an
agency Is required to publish a
rulemaking, It must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
Jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. This amendment will not have a
significant economic impact on a
substantial number of small entities.
Accordingly. I hereby certify that this
regulation. If issued in final form, will
not have a significant economic impact
on a substantial number of small
entitles.
List of Subjects In 40 CFR Part 361
Hazardous materials. Packaging and
containers. Reporting and recordkeeplng
requirements, Security measures, Surety
bonds, Waste treatment and disposal.
Dated: july 9,1982.
AnmM Gormth,
Adrn lizist rotor.
Title 40 CFR Part 264 Is amended as
follows:
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACIUTIES
1. The authority citation for Part 264
reads as follows:
Authority: Secs. toos, 3002(a). and 3004,
Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovezy Act. (42
U.S.C. *j 0905,0912(a), and 0924).
2. Section 264.1(f) Is revised to read as
follows:
1264.1 Purpose, .cope and applicability.
C C C C •
(I) The requirements of this part do
not apply to a person who treats, stores.
.or disposes of hazardous waste In a
- State with a RCRA hazardous waste
program authorized under Subparts A
and B of Part 123 of this chapter, or in a
State authorized under Subpart F of Pail
123 of this chapter for the component or
components of Phase U interim
authorization which correspond to the
person’s treatment, storage or disposal.
processes; except that this part will
apply:
(1) As stated in paragraph (d) of this
section, If the authorized State RCRA
program does not cover disposal of
hazardous waste by means of
underground injection; and
(2) To a person who treats, stores or
disposes of hazardous waste in a State
authorized under Subparts A and B of
Part 123 of this chapter. at a facility
which was not covered by standards
under this part when the State obtained
authorization, and for which EPA
promulgates standards under this part
after the State is authorized. This
paragraph will only apply until the State
Is authorized to permit such facilities
under Subparts A and B of Part 123 of
this chapter.
C • C C C
!R Do 13-ISSIQ Filed ?-13.I t4s ‘ l
.MJro COOS U
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32385
. f _.yfr.__,
Federal Register I Vol. 47, No. 143 f Monday, July 26, 1982 I Proposed Rules
ENVIRONMENTAL. PROTECTION
AGENCY
40 CFR Part 265
(SW$-FRL 2173-31
Hazardous Waste Management
System: Interim Status Standards for
Owners and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities -
AOENCr. Environmental Protection
Agency.
ac’now: Notice of Proposed Rulemaking .
BUMMAR Elsewhere in today’s Federal
Register the Environmental Protection
Agency Is promulgating standards
around which hazardous waste surface
impoundments. waste piles. land
treatment units, and landfills will be
permitted. These rules suggest some
conforming changes to Part 265. the
Interim Status Standards, for
consistency and compatibility. Most of
these are promulgated as part of today’s
rulemaking. A few however, potentially
have more Impact and could benefit, In
the Agency’s view, from additional
public input. For these ressons,the
Agency is proposing the following
conforming changes.
(1) A variance to the two fool
freeboard requirement for surface
Impoundments.
(2) Final cover performance
requirements for surface Impoundments
and landfills.
(3) An additional variance allowing
placement of some ignitable or reactive
wastes in surface impoundments.
(4) More definitive requirements
respecting placement of containers in
landfills.
DATES: EPA will accept comments on
the proposed rules on or before
November 23. 1982.
ADDRESS: Comment. should be sent to
Docket Clerk (Docket 3004.—Land
Disposal Interim Status Proposal). Office
of Solid Waste (WH- .562). U.S.
Environmental Protection Agency, 401 M
Street, SW., Washington. D.C 20460.
The public docket for this proposed
rule is located in Room S—289, U.S.
Environmental Protection Agency, 401 M
Street, SW., Washington, D.C., and is
available for viewing from 9:00 a.m. to
4:00 p.m.. Monday through Friday,
excluding holidays.
FOR FURThER INFORMATiON CONTACT’
RCRA Hotline at 800-424-9346 (In
Washington. D.C. call 382—3000) or
Rodney JenkIns (202) 382—4658. Office of
Solid Waste (WH—564), U.S.
Environmental Protection Agency, -
Washington, D.C. 20460.
P ZMmSTARY$ MMIO*
I. Explanation of the Proposal
Elsewhere In today’s Federal R.gi.t.i,
EPA has promulgated regulations
affecting treatment, storage. and
disposal of hazardous wastes In surface
Impoundments. waste piles, land
treatment units, and landfills. Those
rules establish standards that must be
met for facilities to receive a permit
under the Resource Conservation end
Recovery Act (RCRA) hazardous waste
regulatory program. Also Included are a
series of conforming changes to the
interim status requirements of Part 265,
which were made to provide
consistency and compatibility. There
are, however, a few additional
conforming changes which the Agency
believes should be adopted during
interim status. Because they may have
substantial Impact on Interim status
operations as well as on the
environment, and because, In most
cases, the public has not had sufficient
opportunity to comment on the
appropriateness of applying them to the
Interim status period. EPA Is proposing
these changes today.
A. Swfoce Impoundments—General
Operating Requirements
Section 265.222 contains the rules
designed to prevent overtopping of
Impoundment dikes. The current Interim
status regulations require not only that
overtopping not occur but that a
minimum freeboard of two feet be
maintained to ensure It. The Agency
received numerous comments claiming
that the two foot requirement is not
necessary if the performance
requirement to prevent overtopping is in
place. In any event, some claimed, the
two foot minimum might not be suffcient
in some cases.
EPA generally agrees with these
commenters and, in the Part 284
regulations. the Agency requires only
that overtopping be prevented. As with
most Part 264 requirements, this will be
implemented through the permitting
process. when the applicant will
demonstrate that design features and
operating practices at the facility will, In
fact, prevent overtopping. During Interim
status, in the absence of Agency review
provided by the permitting process, EPA
has concern that a general performance
requirement, such as “prevent
overtopping”, can be adequately self-
Implementing or readily enforced.
Therefore, the Agency Is proposing
today to expand the two feet minimum
freeboard requirement by allowing a
lesser level if a qualified engineer
certifies that alternate design features or
operating procedures will prevent
overtopping. EPA believe, that a
qualified engineer con review design
and operating features and adequately
conclude whether overtopping Is
possible. The owner or operator would
also be required to maintain the
certification and the basis for It at the
facility to facilitate enforcement
Inspections. The Agency believes this
approach to be self-lmplementable and
to provide a degree of protection
equivalent to that of the two foot
minimum.
B. Surface Impoundments—Closure and
Post-Closure Core
The current interim status
requirements allow surface
Impoundments to be closed by digging
up remaining wastes and contaminated
liners. equipment. and surrounding soils.
Alternately. the owner or operator may
solidify liquids and apply a final cover
in accordance with the landfill
requirements for closure 9 265.310).
Also. in the second case, he must carry
out the post-closure care requirements
as if his impoundment were a landfill.
The Agency does not propose to
change this basic approach and, In fact,
has adopted It as the basis for the Part
264 permitting standards. EPA believes
that the new standard, In Part 264 are
more easily understood and that they
are as applicable during interim status
as for permitted facilities. The Agency
further believes the new Part 284 rules
are readily Implementable during
Interim status as well since the existing
Interim status closure and post-closure
care review process is similar to the
review process for closure and post.
closure care plans conducted during the
permitting process. Therefore. the
Ag ncy is proposing to adopt, as interim
status requirements. the new Part 284
closure and post-closure care
requirements for surface impoundments
9 264.228) except for some of the post-
closure care requirements. (interim
status facilities are not required to have
leak detection systems or leachate
management facilities and, thus, the
post-closure requirements of Part 264
respecting them are inappropriate for
Interim status facilities.)
The fundamental requirements are not
greatly different than the interim status
requirements promulgated on May 19,
1980. The new requirements proposed
today are, however, much more explicit.
Identifying more clearly what is
expected of the final cover. They are
also somewhat more stringent. The
cover must now “minimize” Infiltration
instead of simply “controlling” It. It must
not be any more permeable than the
bottom liner to prevent the “bathtub”
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 I Proposed Rules
effect. Since the bottom liner may be.
highly impermeable, the cap may also -
have to be impermeable as well. It must
also accommodate settling and
subsidence. The reasons for these
requirements are discussed at length In
the preamble to the Part 284
requirements promulgated today Care
elsewhere In this Issue of the Federal
Register.
The proposed interim status post.
closure care requirements also contain
some differences from those now in
place. The new provisions require that
erosion from precipitation be prevented.
This requirement I. appropriate for
Interim status Just as itls for permitted
units. The current interim status
provisions relating to leachate collection
systems, gas collection systems,
maintenance of benchmarks, and
restriction of access would be dropped
as Inappropriate under this Proposal, the
first three because surface
Impoundments are not required to have
such equipment, and the last because it
is redundant to t 265.117(b).
C. Surface In poundments—1gnitabIe or
Reoctive Waste
The existing limitations on placing
Ignitable or reactive waste in surface
Impoundments allow the practice only If
placing the waste in the impoundment
results in the waste not being ignitable
or reactive any more: or the
Impoundment is used solely for
emergencies. The new Part 264
requirements allow use of
impoundments for Ignitable or reactive
waste If the waste is protected from
conditions that could cause it to ignite or
react. EPA doesn’t expect this variance
to be used much, but concedes that
protection against carelessly thrown
matches and from certain reactions may
be practical. Since the management
methods providing protection can be
reviewid during permitting. EPA agrees
that the new variance provides
additional flexibility to the owner or
operator without sacrificing human
health or environmental protection.
Adoption of the same variance during
Interim status, however, is fraught with
the same enforcement and self.
Implementation problems as adoption of
the freeboard variance discussed in
Section A. The Agency proposes to
circumvent these difficulties by using
the same approach proposed for the
freeboard variance, namely that the
owner or operator obtain certification
from a qualified chemist or engineer that
the design features of this facility or the
operating practices employed will
prevent Ignition or reaction. EPA
expects that a qualified engineer or
chemist can evaluate the operation and
adequately determine that it is safe.
Enforcement of the rule can adequately
•l* carried out by comparing the basis
for the certification kept at the facility
against actual practIce.
U Landfills—Closure and Post .Closure
The Part 264 Subpart N requirements
for closure and post.closure care
promulgated today elsewhere in this
Federal Register, are being proposed
here in modified form for adoption as
Interim status rules. A. discussed in
Section B of this preamble for surface
Impoundments, the new rules are clearer
and more explicit. Because of this, they
should be more easily Implemented
during interim status than the exl .llng
rules.
The interim status closure and post.
closure requirements in place now are
very general In nature, req Wring that
owners or operators develop a plan to
“control” Infiltration based on
consideration of certain factors. The
new requirements are more specific and
are more stringent Cover, must be
designed to “minimize” Infiltration
Instead of simply “controlling” It. They
must also allow no more precipitation to
pass through than would the bottom
liner to prevent the “bathtub effect”.
Additionally, the cover must
accommodate settling and subsidence. . -
These provisions are as applicable to
landfills which dose under interim
status as they are to permitted landfills.
The post.closure care requirements
for interim status units adopted today
are somewhat different than those
adopted In Part 264. The Part 264
provisions include some requirement.
relating to unit components (e.g., leachate
collection and treaiment systems) which
are not required during interim status.
Post closure care provisions affecting
these systems would, therefore, be
inappropriate.
H. Landf ..7s—Special Requirements for
Contoine. ”s
The current interim status
requirements mandate that empty
containers be crushed flat prior to
placement in the landfill. The purpose of
this requirement is to minimize
subsidence due to empty containers.
Collapse of empty containers I . thought
to be a leading cause of differential
subsidence which In turn poses a
serious threat to the continuity and
proper functioning of the final cover,
Commenters on this provision made
three basic points:
(1) Small containers should be
exempted,
(2) Provide guidance on when a
container Is empty (or full) for purposes
of this rule, and
(3) Provide guidance on how much
crushing and shredding Is necessary to
comply.
The agency agrees with all of these
points, and. In the Part 264 requirements
promulgated today, has accommodated
points (1) and (2). The rationale for the
various provisions is discussed In the
Preamble to that Issuance. EPA believes
those provisions respond to the
commenter. requests with regard to
Interim status but wishes to propose
them to obtain added comment.
The Agency is not yet able to provide
more specific general guidance at
present on how much shredding or
crushing is necessary to comply with the
n ile. EPA believes that crushing
sufficiently to produce a void space of
10 percent or less of the volume
originally present should adequately
minimize differential subsidence. The
Agency is not absolutely certain,
however, that .hreddinI and crushing
equipment can actualy achieve that
level. In the Preamble to the Part 284
promulgation. EPA has asked for data
and may propose a change at a later
time.
U. Classification
The regulation, proposed today are
Interim Status Part 265 conforming
changes to the Part 264 permitting
standards promulgated elsewhere In
today’s Federal Register. Considering
the magnitude of the costs and impacts
of the promulgated regulations, the
Agency doe . not believe these proposed
requirements will result in an annual
effect on the economy of $100 million or
more: a major increase In costs or prices
for consumers, Individual industries,
Federal, State, or local government
agencies. or geographic regions; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or In domestic
or export markets. Therefore, EPA does
not expect today’, proposed rule to be
sub ject to the major rule provisions of
Executive Order 12291 and, therefore.
does not believe that a regulatory
Impact analysis Is necessary.
The proposed rules might have a
significant impact on small entities,
however, thereby triggering the
requirements of the Regulatory
Flexibility Act. As part of the Regulatory
Flexibility Analysis being conducted for
the Part 264 permitting regulations
promulgated today, EPA will consider
the impact of these proposed rules on
email entities. The result, of that
analysis will be available for review.
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Federal Register/Vol. 47. No. 143 / Monday. July 26, 1982 / Proposed Rules
32387
prior to any action to finalize these
proposed rules. In performing this
‘analysis EPA will determine in more
etali the costs to the economy of the -
uposal and. If necessary. perform a
sgulatory Impact analysis.
The certification requirements of
proposed I 265.222(b) and 265.229(b)
are subject to the O! fB clearance
requirements of the Paperwork
Reduction Act of 1980.
This proposal was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291 and the Paperwork Reduction Act.
fl] Request for Comment
EPA Invites comments on all aspects
of the proposed rule. All comments
should be addressed to the Docket Clerk
(see Addresses above) and should
prominently bear the notation: “Docket
3004—Land Disposal Interim Status
Proposal”. All comments should contain
specific documentation in their support
Lists of Subjects in 40 CFR 265
Hazardous materials. Packaging and
containers, Reporting and record.
keeping requirement. Security measures.
Surety bonds. Waste treatment and
disposal. Water supply.
Dated: July 9. 1982.
Ann. M. Gorsuch.
Administ rot or.
For the reasons set out in the
ireamble, Part 265. Subparts K and N. of
‘itle 40 of the Code of Federal
egulationa are proposed to be amended
as follows.
PART 265—tNTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT. STORAGE, AND
DISPOSAL FACILITIES
1. The authority citation for Pert 265
reads as follows
Authority: Sections 1006, 2002(a). and 3004
of the Solid Waste DspoaaI Act, as amended
by the Resource Conservation and Recovery
Act of 1976. as amended (42 U.s c. 6905.
6912(a). and 6924)
2. In 40 CFR 265. Subpart K.
00 265.222. 285.228. and 265.229 are
revised to read as follows
265.222 General operating r.qulr.m.nts.
(a) A surface impoundment must
maintain enough freeboard to prevent
any overtopping of the dike by
overfilling. wave action, or a storm.
There must be at least 60 centimeters
(two feet) of freeboard
(b) A freeboard level less than 60
centimeters (two feet) may be
maintained if the owner or operator
obtains certification by a qualified
gngineer that alternate design features
or operating plans will, to the best of his
knowledge and opinion, prevent
overtopping of the dike. The
certification, along with a written
Identification of alternate design
features or operating plans preventing
overtopping, must be maintained at the
facility.
0285.228 Closurs and post.closuv. cars.
(a) At closure, the owner or operator
must:
(1) Remove or decontaminate all
waste residues, contaminated
containment system components (liners,
etc.). contaminated subsoils, and
structures and equipment contaminated
with waste and leachate. and manage
them as hazardous waste unless
* 261.3(d) of this chapter applies; or
(2)(i) Eliminate free liquids by
removing liquid wastes or solidifying the
remaining wastes and waste residues:
(Ii) Stabilize remaining wastBs to a
bearing capacity sufficient to support
final cover and
(iii) Cover the surface Impoundment
with a final cover designed and
constructed to:
(A) Provide long-term minimization of
the migration of liquids through the
closed impoundment;
(B) Function with minimum
maintenance; -
(C) Promote drainage and minimize
erosion or abrasion of the cover
(D) Accommodate settling and
subsidence so that the cover’s integrity
is maintained: and
(B) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) In addition to the requirements of
0 285.117. during the post-closure care
period, the owner or operator of a
surface impoundment in which wastes
remain after closure In accordance with
the provisions of paragraph (a)(2) of this
section must:
(1) Maintain the integrity and
effectiveness of the final cover,
Including making repairs to the cover as
necessary to correct the effects of
settling, subsidence, erosion, or other
events;
(2) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this part; and
(3) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover.
{265.229 Special requirements for
ingflhtabls or reactiv, west..
Ignitable or reactive waste must not
be placed in a surface impoundment.
unless:
(a) The waste Is treated, rendered. or
mixed before or Immediately after
placement in the impoundment aothat
(1) The resulting waste, mixture. or
dissolution of material no longer meets
the definition of Ignitable or reactive
waste under 00281.21 or 261.23 of this
thapter and
(2) Section 285.17(b) I. complied with;
or
(b)(1) The waste Is managed In such a
way that it Is protected from any
material or conditions which may cause
It to Ignite or react; and
(2) The owner or operator obtains a
certification from a qualified chemist or
engineer that, to the best of his
knowledge and opinion, the design
features or operating plans of the facility
will prevent ignition or reaction; and
(3) The certification and the basis for
It are maintained at the facility; or
(c) The surface Impoundment Is used
solely for emergencies.
3. In 40 CFR 285, Subpart N. II 285.310
and 285.315 are revised to read as
follows:
• 265.210 Closure and post-dosurs cats.
(a) At final closure of the landfill or
upon closure of any cell, the owner or
operator must cover the landfill or cell
with a final cover designed and
constructed to:
(1) Provide long-term minimization of
migration of liquids through the closed
landfill;
(2) Function with minimum
maintenance;
(3) Promote drainage and miminmize
erosion or abrasion of the cover
(4) Accommodate settling and
subsidence so that the cover’s integrity
is maintained: and
(5) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) After final closure, the owner or
operator must comply with all post-
closure requirements contained in
H 265.117-265.120 inc1udii g
maintenance and monitoring throughout
the post-closure care period. The owner
or operator must:
(1) Maintain the Integrity and
effectiveness of the final cover,
including making repairs to the cover as
necessary to correct the effects of
setthng. subsidence, erosion, or other
events.
(2) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this pelt
(3) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover and
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32388 Federal Register / Vol . 47, No. 143 / Monday, July 26, 1982 / Proposed Rules
(4 Fr.t ct tnd maintain surveyed
bc d’z rka used th complying with
§ i ,.3l ) ?.
Spscclsl nqufrsmsrvts for
cc24 01n4r..
r’ ) chey sit wery s;all. such as an
c!s’tp k’. co , taInes musi be either
At h t at percent full when
,u the lanillill; or
t’i ushed. s hredded, or similarly
r jk ’ .t in volume to the maximum
exleat teiore wial in the
; s ;.w# coos sue-s-o -
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